{"id":2078,"date":"2021-07-02T21:05:02","date_gmt":"2021-07-02T21:05:02","guid":{"rendered":"https:\/\/www.stonebusailah.com\/?p=2078"},"modified":"2021-07-02T21:05:02","modified_gmt":"2021-07-02T21:05:02","slug":"supreme-court-rules-in-favor-of-officers-in-first-amendment-retaliation-claim","status":"publish","type":"post","link":"https:\/\/villagegreentesting.com\/StoneBusailah\/2021\/07\/02\/supreme-court-rules-in-favor-of-officers-in-first-amendment-retaliation-claim\/","title":{"rendered":"SUPREME COURT RULES IN FAVOR OF OFFICERS IN FIRST AMENDMENT RETALIATION CLAIM"},"content":{"rendered":"\n

By Robert Rabe Esq.<\/strong><\/p>\n\n\n\n

In Nieves v. Bartlett, the Supreme Court considered whether individuals who allege they were arrested in retaliation for their speech, in violation of the First Amendment, are barred from seeking damages under 42 U.S.C. \u00a71983, if there was probable
cause to arrest for any crime. The Court held that probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.<\/p>\n\n\n\n

Claims of retaliation for the exercise of First Amendment rights are recognized under \u00a71983. To prove a First Amendment retaliatory arrest claim, a plaintiff must show that he engaged in constitutionally protected conduct, and he was subjected to an adverse action by the defendant officer. Now, following Nieves v. Bartlett, a plaintiff bringing a retaliatory arrest claim must also plead and prove the absence of probable cause for the arrest. Absent such a showing,
the retaliatory arrest claim will fail.<\/p>\n\n\n\n

This case involves an arrest that took place at Alaska\u2019s Arctic Man, which Chief Justice Roberts described as \u201can event known for both extreme sports and extreme alcohol consumption.\u201d According to Sergeant Nieves, he was speaking with a group of
attendees when an intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the Nieves to leave. Rather than escalate the situation, Nieves left. Trooper Weight stated that Bartlett then approached him in an aggressive manner while he was questioning a minor, stood between him and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves observed the confrontation and initiated an arrest. Bartlett claims that Nieves said to him \u201cbet you
wish you would have talked to me now\u201d, after he was handcuffed.<\/p>\n\n\n\n

Bartlett sued under 42 U.S.C. section 1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech – his initial refusal to speak with Nieves and his intervention in Weight\u2019s discussion with the minor.
The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The Ninth Circuit reversed, holding that probable cause does not defeat a retaliatory arrest claim. As noted above, the Supreme Court held that because there was probable cause to arrest Bartlett, his retaliatory arrest claim
failed as a matter of law, and reversed the decision of the Ninth Circuit.<\/p>\n\n\n\n

The Supreme Court rejected a focus on an officer\u2019s motive. Allegations about the officer\u2019s mental state, something easy to allege and difficult to prove, would impose on officers \u201coverwhelming litigation risks,\u201d in which a stray comment by the officer envelops him in \u201cyears of litigation.\u201d This would cause \u201cundue apprehension\u201d in officers, making it hard for \u201call but the most resolute\u201d to discharge their duties.<\/p>\n\n\n\n

The Court did carve out a \u201cnarrow qualification\u201d to the no-probable-cause requirement for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.\u201d This exception is necessary because \u201can
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.\u201d Thus, a plaintiff can overcome the requirement if he \u201cpresents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected
speech had not been.\u201d If the plaintiff can show such objective evidence, then \u201cthe plaintiff\u2019s claim may proceed in the same manner as claims where the plaintiff has met the threshold showing of the absence of probable cause.\u201d For example, where \u201cjay walking\u201d is an offense, to enforce the statute only against the person complaining about police conduct might still be
deemed to be retaliatory, even though there was probable cause to do so.<\/p>\n\n\n\n

In order to not become THAT officer – the one the Court decides has \u201cexploit[ed] the arrest power\u201d – you should insure that in a group situation, ALL similarly situated individuals are arrested, not just the one with the mouth making all the noise and
criticizing law enforcement (or any other group).<\/p>\n\n\n\n

Stay Safe!<\/strong><\/p>\n\n\n\n

Robert Rabe<\/strong> is Stone Busailah, LLP\u2019s writs and appeals specialist. His 41 years practicing law include 16 years as a Barrister, Supreme Court of England and Wales, practicing in London, England.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Robert Rabe Esq. In Nieves v. Bartlett, the Supreme Court considered whether individuals who allege they were arrested in retaliation for their speech, in violation of the First Amendment, are barred from seeking damages under 42 U.S.C. \u00a71983, if there was probablecause to arrest for any crime. The Court held that probable cause to […]<\/p>\n","protected":false},"author":1,"featured_media":2079,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22],"tags":[],"class_list":["post-2078","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-first-amendment"],"_links":{"self":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2078","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/comments?post=2078"}],"version-history":[{"count":0,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/posts\/2078\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media\/2079"}],"wp:attachment":[{"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/media?parent=2078"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/categories?post=2078"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/villagegreentesting.com\/StoneBusailah\/wp-json\/wp\/v2\/tags?post=2078"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}