In Monday’s argument in Nieves v. Bartlett, the justices pushed all sides for a compromise approach to handle the broad range of cases that might qualify as First Amendment retaliatory arrests, an approach that would neither allow all claims nor defeat all claims.

The case arises from the arrest of respondent Russell Bartlett at Alaska’s Arctic Man Festival, which Chief Justice John Roberts described as “10,000 mostly drunk people in the middle of nowhere” patrolled by eight police officers. In a civil damages action, Bartlett alleged that petitioners Luis Nieves and Bryce Weight, two Alaska state troopers, arrested him because he refused to talk with Nieves (who wanted him to move a keg indoors) and because he told Weight not to talk with a teenager outside the presence of the youth’s parents. The troopers responded that Bartlett’s retaliatory-arrest claim should fail because they had probable cause for the arrest. The district court granted summary judgment to the troopers on the First Amendment retaliation claim, and the U.S. Court of Appeals for the 9th Circuit reversed.

Arguments of petitioner

Assistant Alaska Attorney General Dario Borghesan argued for the “well-grounded common-law rule that the existence of probable cause protects against liability for officers enforcing criminal law.” This standard is necessary because causation is especially difficult in these cases; because other tools for filtering weak claims and giving officers “margin for error” do not work well; and because the court should avoid a rule that might cause an officer to hesitate in fast-paced situations in which he must act decisively or that would allow that officer to “be haled into court … and forced to defend the purity of his motives.”

Justice Samuel Alito introduced the problem of the broad range of “retaliatory arrest” cases. On one end of a spectrum is the “disorderly person situation,” in which police officers encounter a group of people and someone insults the officers (what Justice Ruth Bader Ginsburg describes as “contempt of cop”); on the other end is a case in which a journalist who wrote something critical of the police department is arrested or cited for a minor speeding violation. A rule that probable cause precludes a retaliatory-arrest claim would be well-suited for the first situation, Alito suggested, but would create problems in the second. Justice Elena Kagan followed up, noting that “the point is that there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” Borghesan responded that cases in the second category are “vanishingly rare” and the court should design a rule for the typical first-category case.

In response to questions from Ginsburg, Borghesan urged the court to recognize that police officers arrest based on conduct and are not legal technicians. Officers thus should escape liability if there is probable cause “for the stated crime of arrest or the crimes charged or crimes closely related to those crimes.”

Arguments of United States as amicus curiae

Arguing for the United States as amicus curiae in support of the troopers, Principal Deputy Solicitor General Jeffrey Wall argued that most constitutional tort claims contain an objective requirement that prevents a purely subjective inquiry into officers’ motivations. This is especially necessary in retaliatory-arrest cases, which are easy for plaintiffs to allege and difficult and expensive for officers to defend.

Kagan questioned the propriety of importing a probable-cause requirement from the Fourth Amendment, where it appears in the substantive law, into the First Amendment; the presence of probable cause for an arrest does not change the fact that the arrest occurred in retaliation for protected speech. And the imposition of a probable-cause requirement for retaliatory prosecution in Hartman v. Moore was justified by the involvement of a prosecutor who was entitled to absolute immunity, a number of upstream and downstream actors, and the presumption of regularity that attaches to prosecutorial action — none of which is present for retaliatory arrest. Wall responded that Hartman was about the difficulty of establishing causation in all retaliation cases and the way that establishing the absence of probable cause helps the causation inquiry; that concern remains in all cases.

The justices and Wall then discussed middle-ground approaches. Alito proposed requiring the plaintiff to plead and prove “a comparator who engaged in similar conduct” as the plaintiff but who was not arrested. Wall suggested that such a rule may be “too defendant friendly,” because virtually all cases will lack such a comparator; although Alito’s suggestion might work in protest cases (in which a group of people are protesting but only one person is arrested), comparators will be absent in cases of one-on-one interactions with an officer. Wall argued that the better rule is that the officer escapes liability when there was probable cause for the charge on which the officer made the arrest or charges identified within a “reasonable time frame after the arrest,” such as through the initiation of the criminal complaint.

Justice Sonia Sotomayor pushed Wall about the “not so uncommon” cases in small municipalities when an individual engages in some form of expression, and then is cited for numerous building-code violations or jaywalking or other misdemeanors; the United States’ argument insulates such behavior. Given how infrequently such cases go to trial, Sotomayor wondered whether “it is worth giving up the protections” for such a fundamental right.

Arguments of respondent

Arguing for Bartlett, Zane Wilson urged the court to reject a rigid probable-cause requirement because it would bar meritorious First Amendment retaliation cases, it is not required to screen out meritless cases, and it lacks any grounding in the common law of 1871 (when Congress enacted 42 U.S.C. § 1983, the provision under which Bartlett brought his retaliatory-arrest suit).

Alito and Ginsburg questioned Wilson about the precise speech against which the officers retaliated. Alito suggested that the plaintiff was “not protesting some social issue or making some important point,” but merely having “a personal dispute with a police officer.” Wilson responded that Bartlett “was expressing his disagreement with how the officer was conducting his … investigation” and that the right to criticize a police officer is “one of the distinguishing features between a police state and a … free country.”

The need to weed out non-meritorious cases prior to trial was of great interest to the court. Kagan argued that the problematic paradigm case for Bartlett is the “encounter between a police officer and a citizen that goes south,” when the citizen’s back-talk combines with his conduct to give the officer reason to believe the citizen should be arrested to prevent real harm. Roberts added that determining the role the citizen’s speech played in the arrest involves factual questions about subjective intent. Roberts, Ginsburg, Kagan, Justice Stephen Breyer and Justice Brett Kavanaugh took turns expressing varying versions of the concern that only a jury could resolve these disputed facts about the officer’s subjective intent and motivation, meaning these cases cannot be weeded out prior to trial, even if they lack merit. And the risk of trial, Breyer suggested, will have a chilling effect on officers, causing them to be overly careful and not arrest people whom they should arrest.

Wilson offered a number of responses. He emphasized the increasing prevalence of recording technology, so that most interactions between police and the public will be recorded. He repeatedly argued that the demand for evidence of subjective intent would come at the summary-judgment stage and that a plaintiff unable to produce evidence of intent at that point would be unable to get to trial. Wilson explained that the 9th Circuit’s purportedly modified approach to summary judgment in such cases actually is a vigorous application of the Supreme Court’s test for retaliation, in which the plaintiff must show that his speech was a cause for the arrest and the officer can rebut by showing that he would have arrested the plaintiff anyway. Wilson argued that officers will not experience a chilling effect on their conduct so long as they “remain[] loyal to enforcing the law,” a remark that Roberts derided as “cavalier” and that Kavanaugh argued ignores that people often say critical or obnoxious things to police in the heat of an encounter.

Kagan asked about the solicitor general’s proposal of a probable-cause requirement limited to crimes identified by police around the time of the arrest. Wilson responded that evidence of probable cause is a significant and perhaps dispositive factor, but it should not be controlling or necessary in all cases. Wilson instead proposed that a probable-cause element should apply to arrests for “serious offenses” but not to petty offenses. The problem of retaliation for speech arises not in murder investigations and arrests, but around petty offenses such as disorderly conduct, in which the officer’s discretion to arrest or not is at its zenith and it is easy to arrest for no reason other than because the officer wishes to retaliate against an individual who exercised his free-speech rights.

Editor’s Note: Analysis based on transcript of oral argument.

Recommended Citation: Howard M. Wasserman, Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests, SCOTUSblog (Nov. 27, 2018, 11:05 AM), https://www.scotusblog.com/2018/11/argument-analysis-contempt-of-cop-justices-search-for-compromise-standard-for-first-amendment-retaliatory-arrests/