The US Supreme Court ruled Tuesday in Nieves v. Bartlett that probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.
The facts of the case surround the arrest of Bartlett by officers Nieves and Weight. Bartlett was arrested in Alaska at the winter sport festival “Arctic Man” following the second of two interactions with the officers. Subsequently, Bartlett brought suit claiming that his arrest was “in violation of his First Amendment right and was in retaliation for his speech.”
Chief Justice John Roberts wrote the majority opinion, working through the elements of retaliatory action for protected speech, which is settled law. These elements include showing a causal connection between the alleged retaliatory action and the speech and proving that there was no probable cause.
The court concluded that: “The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” On the specific facts of the case presented, the court held that “[b]ecause there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.”
Justice Clarence Thomas wrote separately, concurring in part and concurring in judgement. Thomas disagreed with the portion of the majority opinion where the court makes the qualification that: “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” claiming that this exception is created by the majority as a matter of policy.
Justice Neil Gorsuch also wrote separately, concurring in part and dissenting in part. Gorsuch argued that: [The Court has] no legitimate basis for engrafting a no probable-cause requirement onto a First Amendment retaliatory arrest claim.” Gorsuch concluded that absence of probable cause is not an “absolute requirement” of a retaliatory arrest claim, but that does not make probable cause irrelevant: “I would reserve decision on those questions until they are properly presented to this Court and we can address them with the benefit of full adversarial testing.”
Justice Ruth Bader Ginsburg wrote separately, concurring in the judgement and dissenting in part. Ginsburg stated that: “[i]n this case, I would reverse the Ninth Circuit’s judgment as to Trooper Weight.”
Finally, Justice Sonia Sotomayor dissented from the majority opinion:
The majority instead announces a different rule: that a showing of probable cause will defeat a §1983 First Amendment retaliatory arrest claim unless the person arrested happens to be able to show that “otherwise similarly situated individuals” whose speech differed were not arrested. … Because the correct approach would be simply to apply the well established, carefully calibrated standards that govern First Amendment retaliation claims in other contexts, I respectfully dissent.
The court reversed and remanded the case to the lower court.
