But, Officer! Was It Something I Said? Supreme Court to Consider Whether Claim of Retaliatory Arrest for Protected Speech Must Demonstrate the Absence of Probable Cause

Nieves, et al. v. Bartlett, No. 17-1174 (S. Ct.). Oral argument scheduled for November 26, 2018.

Amicable encounters between the public and the police are the exception rather than the rule, if the explosive, and sometimes deadly, media reports reflect the current cultural reality. Individuals or groups arrested not infrequently believe that the law enforcement intervened not because of criminal activity but because of protected activity. Suits such as that in Nieves ensue when an arrestee asserts that arrest resulted from speech or expressive activity disfavored by the arresting officer.

Police officers enjoy qualified immunity from suit for conduct in connection with their official duties absent violation of known constitutional rights. Thus claims against the police are, rightly or wrongly, not easily won, but recognition of a right to be free from retaliatory arrest, without the necessity of proving any arrest was without probable cause, would provide one more arrow in the quiver of those seeking redress for violations of constitutional rights under 42 U.S.C. Section 1983.

The Ninth Circuit, where this case originated, is alone among federal courts in holding that a retaliatory arrest claimant need not prove that there was no probable cause for arrest. Given that in other circuits the presence of probable cause will foreclose actions against officers for retaliatory arrest, Nieves presents an opportunity for the Court to weigh in on a position generating no small amount of controversy.

The concerns of all involved are well founded. Police do not want to face time and career consuming litigation. The public does not want to be afraid to speak in the presence of the police or to dispute the police without recourse.

Much more is in issue than a fracas and an arrest at a lively sporting and drinking event in Alaska. Outstanding amicus submissions have grounded the case for and against permitting actions without proof of probable cause in both history and practice.

Principal Parties Merits’ Briefs

Brief of Petitioners Nieves v. Bartlett 17-1174

Brief of Respondent Nieves v. Bartlett 17-1174

Reply Brief of Petitioners Nieves v. Bartlett 17-1174

Amicus Submissions

Amicus Constitutional Accountability Center Nieves v. Bartlett 17-1174

Amicus District of Columbia and Several States Nieves v. Bartlett 17-1174

Amicus First Amendment Foundation Nieves v. Bartlett 17-1174

Amicus Institute for Free Speech Nieves v. Bartlett 17-1174

Amicus Institute for Justice Nieves v. Bartlett 17-1174

Amicus National Police Accountability Project Nieves v. Bartlett 17-1174

Amicus National Press Photographers and Media Nieves v. Bartlett 17-1174