In Nieves v. Bartlett, published May 28, 2019, the U.S. Supreme Court, in a split opinion, reversed a 9th Circuit decision which itself reversed summary judgment for the defendant police officers. During a winter sports festival in Alaska, one of the defendant officers was speaking with festival goers when the plaintiff told the goers they should not speak with the police. The officer approached the plaintiff to explain the situation. The plaintiff told him to leave. Several minutes later, the other defendant officer was talking with a teenager when the plaintiff allegedly approached, stood between the officer and teen, said that the officer should not speak with the minor, and stepped close to the officer. The officer pushed him back. The two defendant officers arrested him. According to the plaintiff, after he was handcuffed, the first officer said, "[B]et you wish you would have talked to me now." The state dismissed the criminal charges against the plaintiff. He sued the officers under 42 U.S.C. section 1983 for violating his First Amendment rights by arresting him in retaliation for his speech. The allegedly protected speech was his refusal to talk to the first officer and his intervention in the second officer's conversation with the teen. The district court granted summary judgment on the ground that the officers had probable cause to arrest the plaintiff. The 9th Circuit held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest.
The opinion of the court, in which five justices joined, was that a plaintiff must establish absence of probable cause to establish a retaliatory arrest claim. If the plaintiff establishes lack of probable cause, the plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest. If that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation. There is a narrow exception for circumstances where officers have probable cause to make arrests, but typically elect not to do so, as in jaywalking situations. Such situations pose the danger that officers may exploit their arrest power to suppress speech. Therefore, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence he was arrested when otherwise similarly-situated individuals not engaged in the same sort of protected speech had not been. Under these rules, the plaintiff's retaliation claim was subject to summary judgment, because there was probable cause to arrest him, and because the evidence of the first officer's statement would not support a retaliatory arrest claim against the second officer.
Another justice, Thomas, concurred in the decision except for the exception to the no-probable-cause rule. Justice Gorsuch concurred that absence of probable cause is not an absolute requirement and its presence not an absolute defense, but dissented from the rules the majority drew. Justice Ginsburg concurred that the officer for whom there was no evidence of retaliation was entitled to summary judgment, but otherwise dissented. Justice Sotomayor dissented, opining that probable cause should not be a defense.
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