Can I Sue for Retaliatory Arrest?

File under: Police Misconduct, Civil Rights, First Amendment, Retaliatory Arrest

Threading the Finest Needle: Retaliatory Arrest Claims after Nieves v. Bartlett.

As part of our civil rights and police misconduct practice, we regularly field phone calls that – in addition to whatever other physical or legal indignities were visited upon the caller by the police – feature some variation of the following refrain: “I wasn’t even doing anything illegal, the officer just arrested me because he was upset…”

The technical name for this is a “retaliatory arrest”; the usual story involving the citizen engaging in some perfectly legal, usually core-First-Amendment activity – perhaps videotaping an officer conducting an arrest of a third party, or offering a colorful assessment of the officer’s intelligence and physical attractiveness – that has sufficiently provoked the officer and produced an arrest (at least) as a response. The violation of the civil rights occurs because the arrest isn’t prompted by criminal behavior, but as a means of evening the score for the citizen exercising a right guaranteed to them under the law, albeit in a fashion the officer finds obnoxious. This sort of thing, unfortunately, comes up routinely. And, despite the fact that it seems straightforward enough in theory, in practice this variety of regrettable police behavior presents a difficult basis on which to build a successful lawsuit. Also – because there is rarely good news where police misconduct litigation and the Supreme Court are concerned – this already-bad situation was recently made worse by our nation’s high court.

On May 28th, The Supreme Court published its decision in Nieves v. Bartlett, concerning the ability to bring federal civil rights law suits in the context of 1st. Amendment retaliatory arrest cases. The facts – which occur against the backdrop of a week-long winter festival in the remote Alaskan wilderness known for “extreme sports and extreme alcohol consumption” and involve an arguable lack of judgment on the part of all involved parties– are summarized nicely here. While Mr. Bartlett, perhaps, doesn’t make for the most sympathetic plaintiff, look past that to the worrying upshot of the case: that retaliatory arrest suits will almost always fail where the police can point to probable cause for the arrest. Nieves puts the burden on the Plaintiff to plead and prove a lack of probable cause behind the arrest -relying solely on objective factors (no relying on subjective indicators like the arresting officer’s own snarky remarks). The Court’s sole, narrow exception to this rule is for arrests involving trivial, rarely enforced offenses (e.g., jaywalking) where the pretextual basis for the arrest is more or less clear on the face of the charge brought.

Put in layman’s terms, this means that – at some point between conducting the retaliatory arrest and writing up the official police report – the arresting officer needs only dream up a plausible charge, and plausible explanation supporting it, to scuttle a claim. How hard, in practice, is that for an officer to do? Well, Lavrenty Beria – Stalin’s chief of secret police – was allegedly fond of saying “show me the man and I’ll show you the crime.” It’s not as though the officer suffers from a shortage of criminal offenses from which to choose, and the standard – probable cause – is famously low. As a related question, how worrisome is this development – if it was already hard to hold police accountable on this theory of culpability, how much has the needle really moved? A variety of commentators from around the political spectrum agree it’s pretty troublesome and represent a progression from “bad” to “much worse.” It’s also worth echoing the concerns that this decision potentially reaches and unavoidably chills desirable public interaction with / oversight of police: that perhaps it’s one thing when the defendant comes to grief as a result of drunkenly advising underage drinkers of their right to remain silent to an officer’s consternation, but it’s quite another where a concerned citizen is now without civil remedy if they are arrested for “trespassing” while trying to capture video of officers employing excessive force in the arrest of a third party. Even Justice Gorsuch, never likely to be accused of being a civil rights firebrand, expressed queasiness in his concurrence that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.” Strong stuff indeed from a Justice known for being an otherwise-thuddingly-dull writer.

So, what should you do if this happens to you? Is it still worth calling an attorney? Perhaps. Set your expectations realistically, but don’t assume all hope is lost – the hole in the needle has gotten significantly smaller, but it still may be possible to thread. A clever officer will appreciate the necessity of always finding a plausible charge to offer up in their police report, as a matter of insurance. But the facts still matter, and with body-worn cameras becoming more common the police report may not be the final word on what actually happened. Attorneys experienced in civil rights litigation – obligatory plug: the attorneys of Hedges & Tumposky all meet this description – who stay current on the developments in the field may be able to navigate the hurdles thrown up by Nieves and preserve your claim.

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