Case No. 17-1174 | 9th Cir.
Preview by Michelle Divelbiss, Online Editor
The Supreme Court has previously held that a First Amendment retaliatory prosecution claim is defeated by probable cause. See Hartman v. Moore, 547 U.S. 250 (2006). Now the Court will address whether probable cause also defeats a First Amendment retaliatory arrest claim.
Respondent Russell P. Bartlett attended Arctic Man, a festival and ski race in Alaska, which is known for excessive alcohol consumption. Petitioners, Sergeant Luis Nieves and Bryce Weight, are Alaska Troopers who were tasked with policing the event. Bartlett was intoxicated and confronted the troopers: Bartlett confronted Sgt. Nieves when he was approaching an RV and shortly thereafter confronted Weight when he was investigating whether a teenager had been drinking. Bartlett allegedly acted aggressively and was intoxicated; the parties dispute each other’s characterization of the events. At one point, Weight used a sanctioned “open-palm push” and pushed Bartlett away from him. When Sgt. Nieves saw the encounter become physical, he arrested Bartlett because he thought he was a threat.
Bartlett sued Sgt. Nieves and Weight for retaliatory arrest and other alleged violations. Bartlett claims that probable cause does not defeat a claim of retaliatory arrest if he can prove “‘that the officers’ desire to chill his speech was a but-for cause’ of the officers’ action.” Brief for Respondent at 1–2, Nieves v. Bartlett, No. 17-1174 (U.S. filed Oct. 2, 2018) (quoting Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013)).
Will the Supreme Court overturn another Ninth Circuit case? If probable cause for any offense can defeat a retaliatory arrest claim, individuals may have an even more difficult time successfully bringing such a claim. On the other hand, it might be good public policy to require an individual charging officers with retaliatory arrest to have clean hands.