Supreme Court places limits on retaliatory arrest claims brought under First Amendment

The U.S. Supreme Court on Tuesday shot down First Amendment claims advanced by an Alaskan party-goer who said police officers arrested him in retaliation after he refused to speak to them during a 2014 festival, setting what dissenting justices said was a bright-line rule eliminating many constitutional claims when probable cause exists.

Despite taking three cases since 2012 involving the interplay between free speech protections and arrests supported by probable cause, the high court hadn't until this week articulated broad authority on the issue.

Just last term, the justices on an 8-1 vote found in favor of a Florida man arrested after he refused to leave a council meeting in the city of Riviera Beach where members were discussing plans to evict him from its marina following his repeated and vocal criticism of local government.

But on Tuesday, Chief Justice John G. Roberts Jr. wrote for a six-justice majority differentiating the unique facts of that case from the Alaskan's, saying plaintiffs suing under a federal law that allows litigants to collect damages for constitutional violations must show a "causal connection" between protected free speech and a retaliatory arrest in order to succeed on their claims.

Holding otherwise "would pose overwhelming litigation risks," he wrote in an opinion joined fully by Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Brett M. Kavanaugh.

"Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation," Roberts wrote. Nieves v. Bartlett, 2019 DJDAR 5418 (U.S., May 28, 2019).

Justice Clarence Thomas joined the opinion almost in its entirety, but took issue with a portion carving out a narrow exception for plaintiffs who could show that officers have arrested them for crimes like jaywalking, which otherwise would likely not result in detention.

"That qualification has no basis in either the common law or our First Amendment precedents," he said.

The case before the high court involved Russell Bartlett, an attendee of "Arctic Man" -- a winter sports festival held in the Alaskan wilderness -- who was arrested after yelling to a group of his friends not to speak to officers investigating underage drinking.

According to Bartlett, the arresting trooper said to him, "Bet you wish you would have talked to me now" after putting Bartlett in handcuffs following an altercation between the two.

In 2017, 9th U.S. Circuit Court of Appeals Judges Kim McLane Wardlaw, Richard R. Clifton and John B. Owens said in an unpublished memorandum disposition that Bartlett could pursue constitutional claims against the two arresting officers, despite a lower court's conclusion otherwise.

Bartlett might be able to establish that the officers' conduct, if approved, would chill future First Amendment activity and had evidence that could possibly prove retaliation was the sole reason for the arrest, Wardlaw, Clifton and Owens concluded.

Roberts said Tuesday officers had cause to arrest Bartlett, who appeared intoxicated and thrust his body between a police officer and a fellow festival attendee.

The court's opinion did not come without detractors.

Justice Neil M. Gorsuch, who concurred in the judgment alone, said there appeared to be no good reason to exempt First Amendment claims in the face of probable cause.

"Everyone accepts that a detention based on race, even one otherwise authorized by law, violates the Fourteenth Amendment's Equal Protection Clause," he wrote in partial dissent. "I can think of no sound reason why the same shouldn't hold true here."

And Justice Ruth Bader Ginsburg, similarly concurring in the judgment alone, endorsed a balancing test that would first require the plaintiff to demonstrate "unconstitutional animus," before a defendant would then have to show why an action was reasonable.

Justice Sonia Sotomayor wrote in dissent to say she would have affirmed the 9th Circuit, endorsing Ginsburg's reading of the law and saying the 9th Circuit's reading of it could stand.

A spokesperson said the Alaska Department of Law was "pleased" with the ruling Tuesday.

"As a result of the Court's decision, a lawsuit against two Alaska State Troopers who had arrested a man for disorderly conduct at the Arctic Man festival must be dismissed," Cori Mills said in an email.

Zane D. Wilson, a shareholder at CSG Inc. who represented Bartlett, did not respond to a request for comment by press time.