Garrett Epps: Can police retaliate against loudmouths?

Of course, police seldom charge anyone with “engaging in protected speech to which I object.” The charge is often something like “disorderly conduct” or “failure to obey a lawful order.” Sometimes people really are guilty of those offenses; sometimes people weren’t engaging in speech activities at all, but later claim they were. But sometimes people incur the disapproval of a cop for reasons other than those charged.

How does the law sort them out?

Arrests are supposed to be based on something called “probable cause”—which means a “reasonable ground to suspect that a person has committed or is committing a crime.” The police officer must have information at the time suggesting that possibility.

Police agencies argue that, if the officer has probable cause to arrest, the First Amendment issue should be irrelevant. That would allow a lot of First Amendment abuse. Over the years, the Supreme Court has made clear that police can arrest citizens for virtually any offense, down to driving without fastening a seat belt. Most people can’t go through a day without committing one—or more than one—crime, including crimes they haven’t heard of. What happens when a citizen claims that an officer has arrested him or her because of First Amendment speech?

Roberts joined with four other members of the Court to provide an answer: If the officer has probable cause, then his First Amendment motivation is irrelevant—unless the 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.”

In other words, if you cheese off an officer by bad-mouthing the mayor (or the cop), you can be arrested if there is probable cause you did something wrong. And you can’t sue for “retaliatory arrest” unless either the arrest is for an offense such as “spitting on the sidewalk” or “affray,” which police virtually never use, or a hundred people are doing the same thing and only the ones engaged in protected speech were arrested. The burden will be on you to prove that the charge is rare—or that others were doing exactly the same thing at the same place and time and weren’t arrested. (I suspect that many courts will require proof that it really was exactly the same thing.)

After that, you have the burden to show that the “expressive activity” (speech, picketing, carrying a sign, etc.) was the real cause of the arrest. The “causation” element is hard, since you have to prove the officer’s state of mind. Officers sometimes tell you their motivation, in remarks such as “You can’t talk that way about our military.” But (surprise!) it turns out those won’t help you, because Roberts has modified his rule thus: “Because this inquiry is objective, the statements and motivations of the arresting officer are ‘irrelevant.’” Some other evidence is needed, or the case will be dismissed before trial.