__ U.S. __ (2019), 17-1174, Nieves v. Bartlett

Docket Nº:17-1174
Citation:__ U.S. __, 139 S.Ct. 1715, 27 Fla.L.Weekly Fed. S 847
Opinion Judge:ROBERTS, Chief Justice.
Party Name:Luis A. NIEVES, et al., Petitioners v. Russell P. BARTLETT
Attorney:Jahna Lindemuth, Attorney General, Dario Borghesan, Anna R. Jay, Stephanie Galbraith Moore, Anchorage, AK, for Petitioners. Jeffrey L. Fisher, Pamela S. Karlan, Leah M. Litman, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, Kerri L. Barsh, Greenberg Traurig, Miami, FL, Zane ...
Judge Panel:ROBERTS, C.J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II-D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part an...
Case Date:May 28, 2019
Court:United States Supreme Court
 
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Page __

__ U.S. __ (2019)

139 S.Ct. 1715, 27 Fla.L.Weekly Fed. S 847

Luis A. NIEVES, et al., Petitioners

v.

Russell P. BARTLETT

No. 17-1174

United States Supreme Court

May 28, 2019

Argued November 26, 2018

Syllabus

[*]

Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during "Arctic Man," a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight 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 saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said "bet you wish you would have talked to me now."

Bartlett sued under 42 U.S.C. § 1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech— i.e., his initial refusal to speak with Nieves and his intervention in Weight’s 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. It held that probable cause does not defeat a retaliatory arrest claim and concluded that Bartlett’s affidavit about what Nieves allegedly said after the arrest could enable Bartlett to prove that the officers’ desire to chill his speech was a but-for cause of the arrest.

Held : Because there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law. Pp. 1721 - 1728.

(a) To prevail on a claim such as Bartlett’s, the plaintiff must show not only that the official acted with a retaliatory motive and that the plaintiff was injured, but also that the motive was a "but-for" cause of the injury. Hartman v. Moore, 547 U.S. 250, 259-260, 126 S.Ct. 1695, 164 L.Ed.2d 441. Establishing that causal connection may be straightforward in some cases, see, e.g.,

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, but other times it is not so simple. In retaliatory prosecution cases, for example, the causal inquiry is particularly complex because the official alleged to have the retaliatory motive does not carry out the retaliatory action himself. Instead, the decision to bring charges is made by a prosecutor— who is generally immune from suit and whose decisions receive a presumption of regularity. To account for that "problem of causation," plaintiffs in retaliatory prosecution cases must prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman, 547 U.S. at 263, 126 S.Ct. 1695. Pp. 1722 - 1723.

(b) Because First Amendment retaliatory arrest claims involve causal complexities akin to those identified in Hartman — see, e.g., Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985; Lozman v. Riviera Beach, 585 U.S. __, 138 S.Ct. 1945, 201 L.Ed.2d 342— the same no-probable-cause requirement generally should apply. The causal inquiry is complex because protected speech is often a "wholly legitimate consideration" for officers when deciding whether to make an arrest. Reichle, 566 U.S. at 668, 132 S.Ct. 2088. In addition, "evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case." Ibid. Its absence will generally provide weighty evidence that the officers’ animus caused the arrest, whereas its presence will suggest the opposite. While retaliatory arrest cases do not implicate the presumption of prosecutorial regularity or necessarily involve multiple government actors, the ultimate problem remains the same: For both claims, it is particularly difficult to determine whether the adverse government action was caused by the officers’ malice or by the plaintiff’s potentially criminal conduct.

Bartlett’s proposed approach disregards the causal complexity involved in these cases and dismisses the need for any threshold objective showing, moving directly to consideration of the officers’ subjective intent. In the Fourth Amendment context, however, this Court has "almost uniformly rejected invitations to probe [officers’] subjective intent," Ashcroft v. al-Kidd, 563 U.S. 731, 737, 131 S.Ct. 2074, 179 L.Ed.2d 1149. A purely subjective approach would undermine that precedent, would "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties," Gregoire v. Biddle, 177 F.2d 579, 581, would compromise evenhanded application of the law by making the constitutionality of an arrest "vary from place to place and from time to time" depending on the personal motives of individual officers, Devenpeck v. Alford, 543 U.S. 146, 154, 125 S.Ct. 588, 160 L.Ed.2d 537, and would encourage officers to minimize communication during arrests to avoid having their words scrutinized for hints of improper motive. Pp. 8-11.

(c) When defining the contours of a § 1983 claim, this Court looks to "common-law principles that were well settled at the time of its enactment." Kalina v. Fletcher, 522 U.S. 118, 123, 118 S.Ct. 502, 139 L.Ed.2d 471. In 1871, when § 1983 was enacted, there was no common law tort for retaliatory arrest based on protected speech. Turning to the "closest analog[s]," Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383, both false imprisonment and malicious prosecution suggest the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim. Pp. 1722 - 1723.

(d) Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations— whereas such arrests were privileged only in limited circumstances when § 1983 was adopted— a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose "a risk that some police officers may exploit the arrest power as a means of suppressing speech." Lozman, 585 U.S., at __, 138 S.Ct., at 1953. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Cf. United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687. Because this inquiry is objective, the statements and motivations of the particular arresting officer are irrelevant at this stage. After making the required showing, the plaintiff’s claim may proceed in the same manner as claims where the plaintiff has met the threshold showing of the absence of probable cause. Pp. 1726 - 1728.

712 Fed.Appx. 613, reversed and remanded.

ROBERTS, C.J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II-D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

[139 S.Ct. 1717] Jahna Lindemuth, Attorney General, Dario Borghesan, Anna R. Jay, Stephanie Galbraith Moore, Anchorage, AK, for Petitioners.

Jeffrey L. Fisher, Pamela S. Karlan, Leah M. Litman, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, Kerri L. Barsh, Greenberg Traurig, Miami, FL, Zane D. Wilson, Tyler P. Broker, CSG, Inc., Fairbanks, AK, for Respondent.

OPINION

ROBERTS, Chief Justice.

[139 S.Ct. 1720] Respondent Russell Bartlett sued petitioners— two police officers— alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The officers had probable cause to arrest Bartlett, and we now decide whether that fact defeats Bartlett’s First Amendment claim as a matter of law.

I

A

Bartlett was arrested during "Arctic Man," a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska. Paxson is a small community that normally consists of a few dozen residents. But once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption. The mainstays are high-speed ski and snowmobile races, bonfires, and parties. During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.

The event poses special challenges for law enforcement. Snowmobiles, alcohol, and freezing temperatures do not always mix well, and officers spend much of the week responding to snowmobile crashes, breaking up fights, and policing underage drinking. Given the remote location of the event, Alaska flies...

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