Month: October 2019

Dahlia Lithwick is joined by all-star SCOTUS experts to walk us through this week’s biggest legal and constitutional developments. First, Laurence Tribe answers the questions Amicus listeners have been asking about the next steps in the impeachment process. Next, Pamela Karlan takes us inside the chamber for Tuesday’s oral arguments in a trio of Title VII cases at the high court. 

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On May 28, 2019, the Supreme Court decided Nieves v. Bartlett, a case that considers the conditions a plaintiff must meet to prevail on a claim of retaliatory arrest by law enforcement.
State troopers Luis Nieves and Bryce Weight arrested Russell Bartlett during the 2014 “Arctic Man” winter sports festival held in Alaska’s Hoodoo Mountains. According to the officers, an apparently intoxicated Bartlett started yelling at Sergeant Nieves when the latter asked partygoers to move a beer keg to make it less accessible to minors. Several minutes later, when Trooper Weight asked a minor whether the minor and underage friends had been drinking, Bartlett approached, inserted himself between Weight and the minor, and yelled that Weight should not speak with the minor. Weight contends Bartlett then approached him combatively and Weight pushed him back. Sergeant Nieves, seeing the altercation, hurried over and arrested Bartlett. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive, and contends that after he was handcuffed Nieves said: “[B]et you wish you would have talked to me now.”
Although Bartlett was charged with disorderly conduct and resisting arrest, the State ultimately dismissed the criminal charges against him. Bartlett then sued the officers in federal district court under 42 U.S.C. §1983, alleging that they had arrested him in retaliation for his speech, thereby violating his First Amendment rights. The court granted judgment in favor of the officers, concluding that they had probable cause to arrest Bartlett and that the existence of probable cause necessarily defeated Bartlett’s retaliation claim. The U.S. Court of Appeals for the Ninth Circuit reversed, however, arguing that even in the face of probable cause a claim of retaliatory arrest can prevail where the officers’ conduct would chill a person of ordinary firmness from First Amendment activity, and where the desire to chill speech was a “but for” cause of the arrest. The U.S. Supreme Court then granted certiorari to clarify the applicable legal standard.
By a vote of 6-3, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Chief Justice Roberts, the court held that the existence of probable cause defeats a claim of retaliatory arrest as a matter of law--unless the plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. The Chief Justice’s majority opinion was joined by Justices Breyer, Alito, Kagan, and Kavanaugh in full, and by Justice Thomas except as to Part II-D. Justice Thomas also filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor also dissented.