Supreme Court Finds That an Officer’s Probable Cause Bars First Amendment Retaliatory Arrest Claims
Last year, FEDagent reported on oral argument heard before the Supreme Court in Nieves v. Bartlett. This week, the Supreme Court issued its decision on that case, holding that a law enforcement officer’s probable cause to arrest an individual precludes a citizen’s First Amendment retaliatory arrest claim as a matter of law.
Each year, thousands of winter sports enthusiasts gather in the remote Hoodoo Mountains near Paxson, Alaska to attend “Arctic Man,” a week-long festival. The event is known for its extreme sports and alcohol consumption. During the festival, the Arctic Man campground brings in 10,000 people, becoming one of the largest and most raucous areas in Alaska. Given the remote location of the event and the amount of people who gather for Arctic Man, Alaska flies in additional law enforcement officers from around the State to provide support.
In April 2014, Russell Bartlett attended Arctic Man. On the last night of Arctic Man, Sergeant Luis Nieves and Trooper Bryce Weight arrested Bartlett. The facts were largely undisputed as they were caught on camera by a local news reporter. However, the parties disputed certain details about the arrest.
At around 1:30 am, Sergeant Nieves asked some partygoers to move their beer keg inside their RV because minors had been making off with alcohol. According to Nieves, Bartlett belligerently yelled to the RV owners not to speak to the police. Nieves approached Bartlett, and Bartlett yelled at Nieves to leave. Nieves then left. Bartlett disagreed with Nieves’s account, and stated that he was not drunk at that time and never yelled at Nieves. He claimed that Nieves became aggressive when Bartlett refused to speak with him.
Minutes later, Bartlett saw Trooper Weight asking a minor whether he and his underage friends had been drinking. According to Weight, Bartlett approached him aggressively, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. Weight claimed Bartlett stepped close to him, and in a combative way, so Weight pushed Bartlett back. Nieves saw the confrontation, rushed over, and initiated an arrest. When Bartlett was slow to comply with Nieves’s orders, the officers forced him to the ground and threatened to tase Bartlett.
Bartlett also disputed this account. He denied being aggressive, and claimed that he stood close to Weight so that he could speak over loud music. Bartlett also argued that he was slow to comply with Nieves’s orders, not because he resisted arrest, but because he did not want to aggravate a back injury. Bartlett claimed that after he was handcuffed, Nieves said: “[B]et you wish you would have talked to me now.” After the incident, the officers charged Bartlett with disorderly conduct and resisting arrest.
The State ultimately dismissed the criminal charges against Bartlett, and Bartlett then sued the officers under 42 U.S.C. § 1983. Bartlett claimed the officers violated his First Amendment rights by arresting him in retaliation for his speech – his refusal to speak with Nieves and his intervention in Weight’s discussion with the underage partygoer. The officers responded they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. The district court granted summary judgment for the officers. The court determined the officers had probable cause to arrest Bartlett and held that the existence of probable cause precluded Bartlett’s First Amendment retaliatory arrest claim.
The Ninth Circuit disagreed, and reversed the district court’s dismissal of Bartlett’s retaliatory arrest claim. The Ninth Circuit relied on Ford v. Yakima, 706 F. 3d 1188 (2013), and held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even if the officers had probable cause to arrest. According to the Ninth Circuit, Bartlett needed to show (1) that the officers’ conduct would “chill a person of ordinary firmness from future First Amendment activity,” and (2) that he had advanced evidence that would “enable him ultimately to prove that the officers’ desire to chill his speech was a but-for cause” of the arrest. The court found that Bartlett satisfied both requirements.
The officers petitioned the Supreme Court for review, and the Court granted certiorari. The question before the Court was whether an officer’s probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.
The Supreme Court stated to prevail on a claim like Bartlett’s, he must show not only that the officer acted with a retaliatory motive and that he was injured, but also that the motive was a “but-for” cause of the injury. In some cases, the Court noted, the causal connection is complex because the officer alleged to have the retaliatory motive does not carry out the retaliatory action himself.
In Hartman v. Moore, 547 U.S. 250 (2006), the Court addressed retaliatory prosecution cases. In retaliatory prosecution cases, the Court explained that the decision to bring charges is made by a prosecutor, who is generally immune from suit and whose decisions receive a presumption of regularity. Thus, even when an officer’s animus is clear, it does not show that the officer “induced the action of a prosecutor who would not have pressed charges otherwise.” To account for causation in these cases, the Court stated that plaintiffs must prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.
Officers Nieves and Weight contended that the same no probable cause requirement applies to First Amendment retaliatory arrest claims. The Supreme Court agreed with the officers. The Court found that retaliatory arrest claims face some of the same challenges identified in Hartman. The Court stated that in these cases, the causal inquiry is complex because protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest, and that officers must make “split-second judgments” when deciding whether to arrest. The Court noted that “the content and manner of a suspect’s speech may convey vital information,” including whether the suspect is “ready to cooperate.” Here, the officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication.
Also, the Court stated that like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in “virtually every” retaliatory arrest case. The court stated that the existence of probable cause speaks to the “objective reasonableness of an arrest,” and its absence provides “weighty evidence that the officer’s animus caused the arrest.” While the Court noted that retaliatory prosecution and retaliatory arrest claims give rise to causal inquiries for different reasons, the “ultimate problem remains the same” and “[f]or both claims, it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff’s potentially criminal conduct.” The court stated that the causal challenge should lead to the same solution that the plaintiff must plead and prove the absence of probable cause for the arrest.
The Supreme Court further found that its conclusion is confirmed by the common law approach to similar tort claims – false imprisonment and malicious prosecution. The Court mentioned that for claims of false imprisonment, the presence of probable cause was generally a complete defense for officers. Also, malicious prosecution claims required the plaintiff to show that the criminal charge against him was “unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice.”
The Court noted that although probable cause should generally defeat a retaliatory arrest claim, a qualification is warranted where officers have probable cause to make arrests and exercise their discretion not to do so. In these 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.” Thus, the no probable cause requirement does not apply when a plaintiff presents objective evidence that he was arrested when similarly situated individuals not engaged in the same sort of protected speech had not been.
The Court ruled that Bartlett’s claim cannot survive summary judgment here. The Court stated that there was insufficient evidence of retaliation here, and in any event, both officers had probable cause to arrest Bartlett. Because there was probable cause to arrest Bartlett, his retaliatory arrest claim failed.
The Supreme Court reversed the Ninth Circuit’s decision, and remanded the case for further proceedings.
Read the full case: Nieves v. Bartlett
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.