U.S. Supreme Court Chemerinsky: How retaliatory-arrest claims relate to the First and Fourth amendments By Erwin Chemerinsky Posted December 3, 2018, 7:00 am CST Free Case Evaluation UC Berkeley Law School Dean Erwin Chemerinsky Maybe the third time will be the charm, and the Supreme Court will finally decide an important issue in civil rights litigation: Does the existence of probable cause for an arrest preclude a First Amendment claim that government officers acted impermissibly in retaliation against speech? In Nieves v. Bartlett, argued on Nov. 26, the court returns to this issue, which it twice before ducked. The question arises frequently. Imagine that a person is giving a speech on a public sidewalk and offends police officers. The officers decide to arrest the person for littering, having seen the speaker throw something on a public sidewalk. Does the existence of probable cause for the littering arrest preclude a claim under the First Amendment that the arrest was in retaliation for the content of the speech? The issue arises because for Fourth Amendment claims, under Whren v. United States (1996), the subjective motivation of the officers is irrelevant. For the Fourth Amendment, it is sufficient that there is probable cause for the search or arrest. But under the First Amendment, subjective motivation matters; the government generally cannot impose sanctions against a speaker in retaliation for the content of the message. In Hartman v. Moore (2006), the Supreme Court held that there cannot be a First Amendment claim for retaliatory prosecution when there is probable cause for the prosecution under the Fourth Amendment. The government and government officials argue that there is no reason to treat retaliatory arrest claims any differently. But civil rights plaintiffs argue that there is a significant difference between prosecutorial decisions, which are generally protected by absolute immunity, and arrests by police. For these, officers are protected only by qualified immunity and are liable if they violate clearly established law that every reasonable officer should know. The issue of whether probable cause for an arrest precludes a First Amendment retaliation claim was first before the Supreme Court in Reichle v. Howards (2012). But the court did not address the requirements for a First Amendment retaliatory-arrest claim. Instead, the court said the officers were protected by qualified immunity because at that time the law was not clearly established that a retaliatory-arrest claim exists under the First Amendment. Last term, the issue was squarely presented in Lozman v. City of Riviera Beach, Florida. Fane Lozman was a longtime critic of the City of Riviera Beach government. He was arrested for disrupting a public meeting, and he sued pursuant to 42 U.S. Code Section 1983, claiming that his arrest violated the First Amendment because it was in retaliation for his speech. The 11th U.S. Circuit Court of Appeals at Atlanta ruled against Lozman on the ground that the existence of probable cause for the arrest precluded a suit under the First Amendment. The Supreme Court reversed but on very narrow grounds. Justice Anthony Kennedy wrote for the court in an 8-1 decision. He began by clearly stating the issue presented: “This case requires the court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech.” But then Kennedy said that resolution of the issue “must await a different case.” The court said that Lozman alleged that the “city itself retaliated against him pursuant to an ‘official municipal policy’ of intimidation.” The court held that when a plaintiff alleges a municipal policy caused the arrest, then the existence of probable cause for the arrest does not negate the First Amendment claim. The court concluded that “Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the city.” But the court left unresolved the more common situation in which the claim is that an individual officer retaliated against speech by arresting the speaker. The high court quickly granted review in Nieves v. Bartlett. The case arose in the context of Arctic Man, a multiday ski and snowmobile race event that happens in the Hoodoo Mountains in a remote part of Alaska. Russell Bartlett was one of about 10,000 people who attended in 2014. An officer approached Bartlett, but Bartlett declined to talk to the officer. A bit later, Bartlett saw officers questioning a teenager. When Bartlett approached them, the officer, Luis Nieves, shoved Bartlett, pinned him to the ground and then arrested Bartlett for disorderly conduct and resisting arrest. Bartlett sued saying that the arrest was in retaliation for exercising his First Amendment rights and also that it violated the Fourth Amendment. The federal district court granted Nieves motion to dismiss on both claims. The 9th U.S. Circuit Court of Appeals at San Francisco affirmed on the Fourth Amendment claim, concluding that the officer was protected by qualified immunity. But the appeals court reversed and remanded on the First Amendment claim, following 9th Circuit precedent that “an individual has a right to be free from retaliatory police action, even if probable cause existed for that action.” Thus, once more the issue is before the Supreme Court as to whether probable cause for an arrest precludes First Amendment claim for retaliation. The parties, including the United States, which is participating on the side of the police officer, disagree as to the First Amendment significance of the case and whether there are adequate alternative remedies. Nieves argues that the speech involved in this case is relatively unimportant. He says challenges to officers’ authority and personal insults are not “speech on matters of public concern that ‘occupies the highest rung of the hierarchy of First Amendment values.’ ” Nieves also argues that there are other ways to deter and punish retaliatory arrests. By contrast, Bartlett argues that the “freedom of individuals verbally to oppose or challenge police action” is “one of the principal characteristics by which we distinguish a free nation from a police state.” He argues that there really is no meaningful alternative remedy to allowing suits under Section 1983. The case thus clearly presents to the court for the third time this important issue concerning the relationship of the First and Fourth amendments. It comes before a court that has been protective of speech and protective of police officers. Likely it is for this reason that the court has ducked the issue. But the justices obviously want to resolve the question, and this case may finally provide that opportunity. Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His new book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in November.