Can a First Amendment retaliatory arrest claim be brought under 42 U.S.C. § 1983 when there is probable cause for the arrest?
The Supreme Court will determine whether probable cause can function as a defense for police officers facing a retaliatory arrest claim under 42 U.S.C. § 1983. Petitioners Luis Nieves and Bryce Weight (“Nieves”) contend that Supreme Court precedent requires plaintiffs to plead and prove the absence of probable cause in order to bring a retaliatory arrest claim. Additionally, Nieves argues that a probable cause requirement conforms with common law authority and accords with the First Amendment’s purposes and values. Respondent Russell Bartlett (“Bartlett”) counters that Supreme Court precedent and the common law actually do not support a probable cause requirement for retaliatory arrest claims. Further, Bartlett asserts that the text of 42 U.S.C. § 1983 itself cannot support a probable cause requirement. From a policy perspective, this case is important because it asks the Court to balance a plaintiff’s First Amendment right to free speech with the ability of police officers to make arrests without fear of a lawsuit.
Questions as Framed for the Court by the Parties
Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.
Respondent Russell Bartlett attended Arctic Man 2014, an extreme ski event held in Alaska’s Hoodoo Mountains. The event brings people to Alaska for several days of partying. During the last night of the event, Petitioners, Alaska State Troopers Luis Nieves and Bryce Weight, were investigating a party for underage drinking. In the course of their investigation, Trooper Nieves approached Bartlett and asked to speak with him. Bartlett refused, and Trooper Nieves let him leave. Later that same night, Bartlett noticed that a minor who had attended the same party was speaking with Trooper Weight. Bartlett intervened, telling the Troopers that they did not “have the authority to talk to [the minor] without a parent or guardian present.” Trooper Weight responded by pushing Bartlett away. Trooper Nieves then approached the men, grabbed Bartlett’s arm, and told him to “back up.” The troopers then ordered Bartlett to lie on the ground. After initially hesitating, Bartlett complied after the troopers threatened him with an electric stun gun. Bartlett was placed in the police car. . In the police officers’ car, an exchange took place between Trooper Nieves and Bartlett where Nieves told Bartlett that he was “going to jail.” Bartlett asked why, and Trooper Nieves responded, “For harassing my trooper.” Then Trooper Nieves allegedly said, “[B]et you wish you would have talked to me now.” Bartlett was brought to Arctic Man’s jail tent, and the troopers drafted a police report in which they described Bartlett as “hostile,” “aggressive,” and “combative in nature.” However, Bartlett claims that he never attempted to harm the troopers.
On April 14, 2014, Bartlett was charged on counts of disorderly conduct and resisting or interfering with arrest. These charges were subsequently dropped on February 4, 2015. On March 2, 2015, Bartlett filed a lawsuit against the troopers, alleging that they had violated his constitutionally protected rights under 42 U.S.C. § 1983. Specifically, Bartlett brought claims for false arrest, excessive force, malicious prosecution, and retaliatory arrest. Bartlett also brought a claim under 42 U.S.C. § 1985 (“Section 1985”) for conspiracy. Both parties moved for summary judgment. On July 7, 2016, the United States District Court for the District of Alaska granted the troopers’ motion for summary judgment and dismissed Bartlett’s Section 1983 and Section 1985 claims.
On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of the claims for false arrest claim, excessive force, and malicious prosecution. However, the Ninth Circuit reversed the district court’s decision as to Bartlett’s claim of retaliatory arrest. The court held that, even if the troopers had probable cause to arrest Bartlett, this did not prevent Bartlett from succeeding on his claim for retaliatory arrest. The troopers filed a petition for a writ of certiorari on February 16, 2018. The Supreme Court of the United States granted certiorari on June 28, 2018.
PROPER INTERPRETATION OF 42 U.S.C § 1983’S REQUIREMENTS
Nieves argues that a plaintiff bringing a 42 U.S.C § 1983 (“Section 1983”) First Amendment retaliatory arrest claim must prove that the police officers lacked probable cause to make the arrest. Nieves contends that Supreme Court precedent governing First Amendment retaliation claims supports requiring a probable cause element for retaliatory arrest cases. Specifically, Nieves points to the Supreme Court case of Hartman v. Moore, where the Court held that a plaintiff must prove that there was no probable cause in their case in order to succeed in a retaliatory prosecution claim. Nieves maintains that the rationale behind Hartman should apply here because the lack of probable cause is an important and essential tool in clarifying whether retaliatory motives factored into the decision to prosecute or arrest, as causation is difficult to determine in these types of cases.
Further, Nieves argues that speech can constitute a legitimate reason for an arrest if, for example, the speech indicates to the officers that the speaker may interfere with their duties. Nieves insists that a probable cause element is necessary in Section 1983 actions because a plaintiff could easily allege that an arrest was motivated by illegitimate reasons related to speech. Additionally, Nieves maintains that causation is very difficult to establish in retaliatory arrest cases because the plaintiff and officers involved in the arrest will likely have no history of interactions, and the evidence is often limited to witnesses’ memories of a charged encounter that took place over the course of only a few seconds or minutes. Nieves argues that a probable cause requirement would overcome this issue because the lack of probable cause for arrest will tend to show that retaliation was the cause of the arrest. Nieves also asserts that Court precedent has established a preference for using objective tests to govern police conduct, rather than relying on the subjective intentions of arresting officers. Moreover, Nieves maintains that the Court has established a preference for clear-cut, bright-line rules for law enforcement over case-by-case analysis and that a probable cause test aligns with this preference.
Bartlett counters that the plain text of Section 1983 definitively rejects the probable cause requirement proposed by Nieves. Specifically, Bartlett argues that there is no way to read a requirement of proof of lack of probable cause to arrest into the statutory language—such an element would require plaintiffs to prove two constitutional violations. Bartlett contends that Nieves’ proposed probable cause requirement would impermissibly allow the Court to interpret the language Congress provided in Section 1983 to make its own policy choice, effectively limiting liability for First Amendment retaliatory arrest claims to municipalities. Bartlett also maintains that adding a probable cause element to First Amendment retaliatory arrest claims would require plaintiffs to prove a Fourth Amendment violation too because an arrest without probable cause is a Fourth Amendment violation. Bartlett insists that Section 1983’s language offering a remedy for any Constitutional violation means that a plaintiff should not be obligated to establish two such violations in order to succeed on a claim.
Furthermore, Bartlett asserts a probable cause element would allow police to silence protected First Amendment speech claims because probable cause of some crime arguably exists in almost every arrest. Bartlett also contends that Supreme Court precedent does not support a probable cause element for First Amendment retaliatory arrest claims. In particular, Bartlett asserts that the Court has previously acknowledged that Hartman’s framework for malicious prosecution cases does not work effectively in retaliatory arrest cases because of the considerations specific to prosecutors. Bartlett argues that probable cause is an element for retaliatory prosecution under Section 1983 because absolute prosecutorial immunity prevents any examination of a prosecutor’s motives for bringing a case, making causation difficult to determine—the existence, or lack thereof, of probable cause acts as a substitute for this prohibited inquiry and, thus, solves the causation problem that would otherwise exist. However, Bartlett maintains this problem does not exist for retaliatory arrest claims because police officers have only qualified immunity, rather than absolute immunity, and causation in these types of cases is not nearly as complex. Bartlett asserts that the only question for a jury regarding causation in First Amendment retaliatory arrest cases is whether the arresting officer wanted to discipline the plaintiff for their speech.
THE COMMON LAW
Nieves contends that Supreme Court precedent has established that the necessary components of Section 1983 claims are informed by the common law of torts, and that a probable cause element for First Amendment retaliatory arrest claims is consistent with the common law. Nieves proposes that the closest common law analogies to retaliatory arrest claims are malicious prosecution, malicious arrest, and false imprisonment claims. Nieves asserts that both malicious arrest and malicious prosecution claims, as well as false imprisonment claims in most jurisdictions, were defeated by the existence of probable cause at common law—even where the arresting officer did in fact have a improper reason for the arrest. Additionally, Nieves argues that the rationale behind the common law rule allowing probable cause to defeat these claims, that officers would be overwhelmed with lawsuits for malicious arrest and have difficulty proving their innocence without such a rule, applies with equal force to First Amendment retaliatory arrest claims under Section 1983. Nieves maintains that the fact that probable cause defeated analogous common law claims supports a probable cause requirement in First Amendment retaliatory arrest cases under Section 1983 because Congress intended Section 1983 to be informed by settled common law principals.
Bartlett counters that the common law background surrounding Section 1983 does not support a probable cause requirement for First Amendment retaliatory arrest claims. Specifically, Bartlett asserts that an analogy to common law malicious arrest is misplaced because the First Amendment itself is a rejection of common law doctrine. Bartlett asserts that while common law doctrines like false arrest and malicious arrest may be informative of Fourth Amendment constraints as they involve similar conduct, they are not relevant to First Amendment claims like Section 1983 actions. Further, Bartlett claims that even if the common law were relevant, false arrest is more closely related to retaliatory arrest claims than malicious prosecution. However, Bartlett maintains that even common law false arrest and false imprisonment do not support inserting a probable cause requirement here because probable cause was not enough by itself to constitute a defense to liability at common law. Further, Bartlett contends that the Ninth Circuit’s rule regarding Section 1983’s common law analogies is the most accurate—that probable cause is not dispositive as to whether retaliatory motives were present but has considerable probative value. Finally, Bartlett asserts that Supreme Court precedent rejects the idea that the presence of probable cause should prevent an officer from being held liable for an arrest made in bad faith.
CONFORMITY WITH THE FIRST AMENDMENT’S PURPOSES AND VALUES
Nieves argues that the proposed probable cause element conforms neatly with the values of the First Amendment. Nieves contends that Court precedent establishes that a lesser standard that does not contain a probable cause element is appropriate for only a small subset of retaliatory arrest cases. Thus, Nieves maintains that the probable cause element should be required in more typical retaliatory arrest cases where an individual is alleged to have violated constitutional rights and that this comports with First Amendment values for two reasons. First, Nieves asserts that individual officers are far less capable of targeting and suppressing speech than a deliberate government policy and that the First Amendment is primarily—though not solely—oriented toward protecting speech aimed at effecting social and political change or discourse. Second, Nieves argues that citizens have other avenues beyond Section 1983 claims to discourage police officers from making retaliatory arrests, such as citizens recording instances of law enforcement making retaliatory arrests and filing complaints with the police department or by establishing a pattern of retaliatory arrests that do begin to threaten First Amendment rights.
Bartlett counters that the probable cause element defeats the purposes and values of the First Amendment. Bartlett argues that while an individual officer may not have the same power to curb speech that official government policy does, officers with the power to conduct arrests protected from Section 1983 claims by the existence of arguable probable cause would allow the government to attack any citizen whose speech was disfavored. Furthermore, Bartlett insists that even individual arrests by individual police officers can and do create a chilling effect on speech that goes beyond the individual arrested, allowing such officers to broadly harm First Amendment rights. Bartlett asserts that the First Amendment’s purpose is partly to prevent the government from being able to curtail disfavored speech and that a probable cause defense to Section 1983 claims would give law enforcement broad power to do so.
BALANCING THE POLICE’S DISCRETIONARY ARREST POWER AND THE FREEDOM OF SPEECH
The District of Columbia and fifteen States (“the States”) in support of Nieves argue that probable cause protects the police’s ability to react to difficult situations and to conduct investigations effectively. The States first contend that all speech is protected except for three narrow categories of speech—fraud, fighting words, and true threats. The States then assert that people under arrest often criticize the police out of discontent. As a result, without the probable cause test, the States contend that a person under arrest could easily allege that their protected speech was the cause of their arrest. Further, the States assert that the discretionary power to enforce a law depends on the situation beforehand and that police officers often decide to arrest after a brief assessment of the events, of which the speech involved is one element that they may legitimately consider. According to the States, without the probable cause test, any arrest based on an offense that is rarely sanctioned would become suspicious on the ground that there is usually no good reason to arrest for such offense. Finally, the States argue that the risk of being sued for retaliatory arrest might deter police officers from arresting in legitimate situations. The National Association of Counties (“NACo”), in support of Nieves, adds that, without the probable cause standard, officers would second-guess themselves while making an arrest—which are often “tense and rapidly evolving situations”— in order to consider whether their personal opinions were influencing their decision to arrest in order to avoid a future retaliatory arrest claim.
The Institute for Free Speech, in support of Bartlett, counters that courts must protect the First Amendment by ensuring that protected speech was not the cause for the arrest. According to the Institute for Free Speech, the National Press Photographers Association (“NPPA”), and the Rutherford Institute, in support of Bartlett, courts must make sure that the arrest was actually based on a violation of the law, not the speech surrounding the encounter with law-enforcement authorities. The Institution for Free Speech asserts that inserting a probable cause element into First Amendment retaliatory arrest claims might deter individuals from speaking out of fear of retaliation. Moreover, the First Amendment Foundation (“FAF”), in support of Bartlett, maintains that any violation of the law constitutes probable cause for arrest. Thus, the Institute for Free Speech warns, requiring plaintiffs to prove that there was no probable cause to arrest will allow for retaliatory arrests to occur because many criminal statutes are broad and can reach a large range of conduct, making it easier for officers to find probable cause of some crime sufficient to make an arrest. Moreover, the NPPA, and the Institute for Justice, in support of Bartlett, assert that many statutes, such as loitering statutes and traffic laws, are enforced at the sole discretion of police officers. According to FAF and the Rutherford Institute, people often inadvertently break these laws, making the police’s decision to arrest always justifiable.
HOLDING ENFORCEMENT OFFICERS ACCOUNTABLE
The States argue that state and federal legislatures are better positioned to create mechanisms aimed at protecting citizens against retaliatory arrests. According to the States, many localities have created administrative review or citizen review boards, as well as engaged the local community in assisting internal investigations of the police. The States note that some States have created citizen complaint processes and have provided services dedicated to investigating them. Additionally, the States also point out that many local governments have published citation guidelines for misdemeanors or low-level crimes. The States further contend that officers who violate an individual’s rights are necessarily subject to disciplinary sanctions. While the States agree that police officers must be held accountable when they violate the constitutional rights of individuals, the States assert that the procedural guidelines and disciplinary sanctions are more appropriate than damages suits to protect against retaliatory arrests—some states even allow individuals to bring claims of retaliatory arrest under their state law.
FAF counters that the ability to speak against the unlawful use of arrest power is a necessary check against the use of that power. According to FAF, individuals should be able to speak up against the wrongful use of police power against lawful activities without facing the risk of jailtime. Moreover, the Constitutional Accountability Center (“CAC”), in support of Bartlett, and the Institute for Justice contend that the right to criticize enforcement officers is necessary in a democracy. Indeed, Institute for Free Speech asserts that the ability to challenge actions taken by the police distinguishes a free state from a police state. However, under the proposed probable cause standard, courts would not be able to inquire into the police’s motives for arrest, which means that courts could not determine whether the arrest was in response to protected speech. Finally, FAF contends that a retaliatory arrest claim is often the only effective way to get redress after a retaliatory arrest. The Activists maintain that other avenues, such as complaints or reports to chief officers, often cause harassment and threats, and therefore, they are not sufficient to redress a retaliatory arrest, the Activists say.
- Lisa Soronen, Supreme Court Will Hear First Amendment Retaliatory Arrest Case, National League of Cities (Sept. 6, 2018).
- Michelle Divelbiss, Nieves v. Bartlett, George Washington Law Review (Nov. 5, 2018).