Retaliation Insinuation

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Pretty open-and-shut, it would seem.

At a 2014 festival-cum-ski-race northeast of Anchorage, Alaska, a large crowd of revelers was being overseen by a small crew of state police.

One of the officers, Sergeant Luis Nieves, approached a group of merrymakers to ask them to move their beer keg out of the reach of minors. Russell Bartlett, one of the celebrants, objected. When spoken to by Sergeant Nieves, Mr. Bartlett refused to respond, which was his constitutional right.

Nearby, another trooper, Bryce Weight, was questioning some suspected underage drinkers. Mr. Bartlett, who was old enough to legally drink and seemed to have availed himself of that permission, approached and, moving very close to Officer Weight, told the policeman to leave the young people alone. Weight pushed Mr. Bartlett away, and Sergeant Nieves came over and arrested Mr. Bartlett. According to the officers, the arrestee was slow to comply with their orders and was thrown to the ground, threatened with a Taser and handcuffed.

Mr. Bartlett testified later that Sergeant Nieves had taunted him: “Bet you wish you would have talked to me now.”

That assertion was the crux of a lawsuit filed by Mr. Bartlett, under a federal statute that allows a citizen to seek damages when a police officer violates his constitutional rights. He claimed that his arrest had been retaliatory, punishment for his silence.

The question of whether Mr. Bartlett’s refusal to answer the officer’s question was the real reason for his arrest and thus qualified as grounds for such a suit reached the U.S. Supreme Court, and a majority of the Justices recently ruled that the fact that the officers had other, unrelated “probable cause” to arrest Mr. Bartlett precluded his right to file such a claim.

Writing for the majority – Justices Thomas, Ginsburg and Gorsuch concurred only in part; Justice Sotomayor filed a dissent – Chief Justice John Roberts asserted that the Court has a responsibility “to ensure that officers may go about their work without undue apprehension of being sued.”

Some contend, though, that, all the same, the ruling was overly broad and infringes on another responsibility of the Court: to protect citizens’ right to free speech.

That’s because the recent ruling will make it easier for police to arrest a participant in a protest or rally for anything from holding a sign whose sentiment the officer finds objectionable to filming a policeman’s actions, each of which arrest would be a violation of the citizen’s rights.

The Court did not straightforwardly permit such illegal arrests, of course. It still required that a violation of an actual law be the reason for an arrest. But in cases where it isn’t clear whether the violation was the real reason for the arrest, or whether the arrest was due to an officer’s retaliation against protected free speech (even where, unlike in the Alaskan partying case, there is actual evidence of the latter), the decision disallows lawsuits by those claiming their arrest was because of their views or speech.

The vast majority of law enforcement officers are upstanding and dedicated to the responsibilities and limitations of their authority. But, as in every profession, there are also bad apples. And in a profession that confers powers to its members well beyond those of ordinary citizens, the potential for adverse consequences is magnified.

Over the years, the Supreme Court has made clear that police can arrest citizens for virtually any offense, from driving a mile beyond the speed limit, not fastening a seat belt, loitering or jaywalking. Then there’s “disorderly conduct” or “failure to obey a lawful order,” not to mention “affray.” (Never heard of that technical term for a scuffle or confrontation with another citizen? You’re far from alone.)

The Nieves ruling doesn’t disallow violation of First Amendment rights lawsuits in cases where a “probable cause” arrest is for a crime regularly ignored by police, like jaywalking.

But what if a citizen claims that an officer has arrested him for, say, not following an officer’s order quickly enough – “resisting arrest” or “failure to obey a lawful order” –  and a video shows the officer stating baldly during the arrest that he doesn’t like the arrestee’s picket sign or chant? A few weeks ago, the arrestee could file suit under federal law. Now, it would seem, he cannot.

As Justice Gorsuch noted in his partial dissent to the majority opinion, “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.”

The Justice went on to invoke a phrase from a 1987 case, Houston v. Hill: “The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation’.”

It’s often difficult, even impossible, to tease out any person’s inner feelings.  But, Justice Gorsuch is saying, in a “free nation,” an accusation of malign intent deserves, at least, its day in court.

© 2019 Hamodia