©2019 Jack Ryan, J.D., Legal & Liability Risk Management Institute
The United States Supreme Court noted that in a case where officers normally exercise their discretion and forego an arrest, a plaintiff may have a claim if the plaintiff presents objective evidence that other similarly situated persons who were not exercising the same type of protected speech had not been arrested.
In Nieves v. Bartlett, the United States Supreme Court considered the issue of whether an arrest by an officer, supported by probable cause, of a subject who is exercising their First Amendment rights, can form the basis of a lawsuit against the officer for a retaliatory arrest. In this case, the argument is that the officer made the arrest because the person was exercising their First Amendment rights, for example, by filming the officer, by yelling at the officer, or by protesting an officer’s actions.
The Court outlined the facts in Nieves as follows:
Bartlett was arrested during “Arctic Man,” a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska. Paxson is a small community that normally consists of a few dozen residents. But once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption. The mainstays are high-speed ski and snowmobile races, bonfires, and parties. During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.
The event poses special challenges for law enforcement. Snowmobiles, alcohol, and freezing temperatures do not always mix well, and officers spend much of the week responding to snowmobile crashes, breaking up fights, and policing underage drinking. Given the remote location of the event, Alaska flies in additional officers from around the State to provide support. Still, the number of police remains limited. Even during [*8] the busiest periods of the event, only six to eight officers are on patrol at a time.
On the last night of Arctic Man 2014, Sergeant Luis Nieves and Trooper Bryce Weight arrested Bartlett. The parties dispute certain details about the arrest but agree on the general course of events, some of which were captured on video by a local news reporter.
At around 1:30 a.m., Sergeant Nieves and Bartlett first crossed paths. Nieves was asking some partygoers to move their beer keg inside their RV because minors had been making off with alcohol. According to Nieves, Bartlett began belligerently yelling to the RV owners that they should not speak with the police. Nieves approached Bartlett to explain the situation, but Bartlett was highly intoxicated and yelled at him to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account. According to Bartlett, he was not drunk at that time and never yelled at Nieves. He claims it was Nieves who became aggressive when Bartlett refused to speak with him.
Several minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking. According to Weight, Bartlett approached in an aggressive [*9] manner, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. Weight claims that Bartlett then stepped very close to him in a combative way, so Weight pushed him back. Sergeant Nieves saw the confrontation and rushed over, arriving right after Weight pushed Bartlett. Nieves immediately initiated an arrest, and when Bartlett was slow to comply with his orders, the officers forced him to the ground and threatened to tase him.
Again, Bartlett tells a different story. He denies being aggressive and claims that he stood close to Weight only in an effort to speak over the loud background music. And he was slow to comply with Nieves’s orders, not because he was resisting arrest, but because he did not want to aggravate a back injury. After Bartlett was handcuffed, he claims that Nieves said: “[B]et you wish you would have talked to me now.” 712 Fed. Appx. 613, 616 (CA9 2017).
The officers took Bartlett to a holding tent, where he was charged with disorderly conduct and resisting arrest. He had sustained no injuries during the episode and was released a few hours later.
At the outset, the Court noted that the prosecutor dismissed the charges against Bartlett and Bartlett then brought a lawsuit alleging that the officers violated Bartlett’s First Amendment rights by arresting him in retaliation for his speech. The speech which Bartlett said was protected was his refusal to speak with Nieves earlier in the night and his intervention in Trooper Weight’s discussion with the underage subject.
The United States Supreme Court noted that the question before the Court was “whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.” The Court noted that this question had been left open in Lozman v. City of Riviera Beach, where the Court decided that a City Policy of retaliation against a subject for exercising their First Amendment rights could give rise to a cause of action even when probable cause for an arrest existed.
In its analysis the Court pointed out that, “As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. In law enforcement cases, the Court noted that a lack of probable cause in an arrest will generally substantiate that a subject’s arrest was in retaliation for their exercise of First Amendment rights. But what about when there is probable cause to make an arrest?
In analyzing the arrest situation, the Court noted that speech is a legitimate consideration for officers who are making an arrest and pointed out that the subject’s speech may indicate to the officer whether or not the subject is going to cooperate or, in the alternative, poses a threat.
The Court rejected an analysis put forth by Bartlett suggesting that courts simply look at the arresting officer’s subjective intent in making the arrest. The Court noted that the Fourth Amendment analysis calls for the court to determine the objective reasonableness arrest and does not look at the subjective motivation of the particular officer. The Court, for the second time in a year, pointed out that officers in the United States make 29,000 arrests per day “a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving. To ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness. Thus, when reviewing an arrest, we ask “whether the circumstances, viewed objectively, justify [the challenged] action,” and if so, conclude “that action was reasonable whatever the subjective intent motivating the relevant officials. A particular officer’s state of mind is simply ‘irrelevant,’ and it provides ‘no basis for invalidating an arrest.’ (citations omitted).
The Court noted that a purely subjective approach as sought by Bartlett would undermine the long-standing Fourth Amendment analysis and allow lawsuits to proceed against officers solely on plaintiff’s allegations of the officer’s mental state in making the arrest. The Court pointed out: “As a result, policing certain events like an unruly protest would pose overwhelming litigation risks. Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation. Bartlett’s standard would thus ‘dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.’”
The Court concluded that as a general matter probable cause should defeat a First Amendment retaliatory arrest claim with a narrow qualification. In a case “where officers have probable cause to make arrests, but typically exercise their discretion not to do so. In such cases, an unyielding requirement to show the absence of probable cause could pose ‘a risk that some police officers may exploit the arrest power as a means of suppressing speech.’” The Court provided: “For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.”
The Court held that to no-probable cause requirement to establish a claim does not apply “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” The Court noted that even under this narrow exception an objective rather than a subjective analysis would apply since the question would be whether objectively reasonable officers generally exercise discretion rather than making the arrest.
The Court closed by issuing summary judgment in favor of the officer because the officers had probable cause to arrest Bartlett.
Generally, in the case of an arrest by an officer, probable cause will defeat a plaintiff’s allegation that the officer’s arrest was in retaliation for the exercise of the subject’s First Amendment rights UNLESS:
Plaintiff can show that officers generally exercise their discretion and do not arrest for this crime but arrested in the subject’s case because of the protected speech.
 Nieves v. Bartlett, 2019 LEXIS 3557, slip op. No. 17-1174 (2019).
 Lozman v. City of Riviera Beach, 138 S.Ct. 1945 (2018)