The Right to Criticize Police Distinguishes A Free Society From A Police State

The government is asking for a rule that functions as a bar on retaliatory arrest claims. That should frighten you.

Last week, the United States Supreme Court took oral argument in Nieves v. Bartlett, a case that tests the key element to free speech liberty: the right to speak freely without government retribution. (Before I go further, I must reiterate that I have personally worked on this case. In fact, I am on Bartlett’s brief.)

The case arises from an arrest for disorderly conduct at a snowmachine (you lower 48 folks call them snowmobiles) race in the Hoodoo mountains of Alaska. The troopers and the one who was arrested, Mr. Bartlett, gave two very different accounts of the arrest. Mr. Bartlett claimed the arrest occurred only after he refused to speak with one trooper and subsequently criticized another for his investigation. The police claimed Mr. Bartlett was in violation of the Alaska statute for disorderly behavior because he, in part, approached the trooper “aggressively” and spoke close to his face (in an obscenely loud venue).

It just so happens, however, the arrest was caught on tape (a find made by Mr. Bartlett himself on YouTube after the prosecutor denied the existence of video), and the video would raise serious questions regarding the police account of the arrest. A member of the appellate court noted the video “plainly contradicted” the police affidavits describing the arrest of Mr. Bartlett. These contradictions were not immaterial either, but related to the underlying basis for the arrest.

For example, in addition to being guilty of walking “aggressively,” the troopers also claimed Mr. Bartlett had stepped between the trooper and the minor the trooper was investigating. The video proved this significant claim (and many others) to be a blatant falsehood. When a police expert with several decades of experience viewed the footage, he concluded the arrest “was more probably than not” an example of what is known in the police vernacular as “contempt of cop” or “having failed the attitude test.”

Because of the material falsehoods, the appellate court found Mr. Bartlett’s retaliatory arrest claim presented a genuine issue of material fact as to the cause of the arrest, thus satisfying the summary judgment standard and Bartlett’s right to a trial.

The government, however, appealed the appellate court’s ruling and after Supreme Court granted cert, the case was heard on oral argument last week.

The government argued none of Mr. Bartlett’s evidence mattered because probable cause existed for the arrest. As long as probable cause for any misdemeanor infraction could be found, the government maintained all retaliatory arrests claims should fail. This standard would amount to what is essentially a complete bar to retaliatory arrest claims and it is easy to see why.

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For example, take a case where, on video, an officer arrests a citizen for a clear case of jaywalking but says, “I have never arrested someone for jaywalking even though I see it all the time, but you have a MAGA hat on and I dislike the president and all his supporters so you are getting arrested.” In this scenario, one would have clear and irrefutable evidence the arrest was in retaliation for the citizen’s protected speech, yet under the government’s standard the citizen would be barred from a claim.

More importantly, under the government’s standard, the system would most often be shielding the greater harm at the expense of a miniscule infraction. When the police retaliate against protected speech depriving citizens of their rights that is a far worse crime than common misdemeanors.

It is not these kinds of blatant violations that one typically sees however. Often it is a case like Mr. Bartlett’s where you have an overly broad and vague statute that grants law enforcement virtually unfettered discretion to arrest anyone who walks “aggressively” or verbally criticizes them. As we noted in our brief:

More than seventy-five years ago, Justice Jackson warned that “[w]ith the law books filled with a great assortment of crimes,” there is a “fair chance of finding at least a technical violation of some act on the part of almost anyone.” When the government “pick[s] the man and then search[es] the law books,” government abuse of power becomes most dangerous. “It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group.”

In the time since Justice Jackson issued those words, our overcriminalization problem has only become worse, and is undeniably used as a tool to target specific segments of the population. Retaliatory arrest claims present a vital check on the potential for government abuse and a system that tolerates police dishonesty.

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Of course, claims of retaliatory arrests should have limits. Indeed, the common law for which Mr. Bartlett’s claim relates to permits probable cause as a bar to felony arrests. This is because, if an officer finds you robbing, shooting, raping, or murdering someone, it would be entirely illogical to believe the officer only arrested you for criticizing him/her. Moreover, proving someone else’s subjective intent is always difficult, in order to pass summary judgment any person bringing a retaliatory arrest claim would need substantial evidence beyond a he said she said scenario.

Lastly, it is important the Court provides a workable standard which addresses the serious constitutional concerns in these cases instead of leaving “victims violated but not vindicated.” Trust between police and many communities is at its lowest ebb in many areas of this country. When the courts bar meritorious claims this does not protect law enforcement, it further erodes law enforcements standing. Adding to the shame of this case is the smearing of Mr. Bartlett as a slobbering drunk by the troopers, government, and even the press when Mr. Bartlett had at most a couple of beers and was far from being intoxicated. Having a couple of beers while speaking your mind used to be the sort of behavior that made us a free society, and now it can get you arrested. The Constitution requires a check.


Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.