Did the Supreme Court make it easier for police to do their job, or easier for police to avoid accountability for doing it wrong?

According to the United States Supreme Court in Nieves v. Bartlett, Bartlett was attending a festival, and the police said they were talking to some people and a drunk Mr. Bartlett started yelling to those persons, “Don’t talk to the police!”  The officers approached Bartlett to find out what was up with him.  Bartlett allegedly became belligerent with the police.

According to Mr. Bartlett: He was not drunk or belligerent and only complained to the police about bothering people with no reason.

Some kind of struggle ensued and the police arrested him for disorderly conduct and then for resisting arrest.  Bartlett later sued the police for violation of his constitutional rights — retaliation against him for exercising his First Amendment rights.

It has long been the law that police can stop, detain, or arrest, if they have constitutional justification for doing so — reasonable suspicion for a stop, or probable cause for a search or arrest — and just because they are doing so for an ulterior or “pre-textual” reason, does not make the otherwise justified intrusion unconstitutional.  Common examples include following a suspected criminal around, with no proof the “suspect” did or are doing anything, and then pulling them over or stopping them for speeding, not using a turn signal, maybe not coming to a complete stop at a sign, or taillight out or license plate obstruction.  Literally, any traffic infraction would do.  Then with the person pulled over, lawfully, the police can engage in activity such as searching the person or the car, depending on the circumstances.

But at the same time, it has always been unconstitutional to initiate an arrest, search, detention, or prosecution in violation of the 14th Amendment guarantee of equal protection of the law — a famous case being shaking down Chinese persons for operating a laundry without a permit, while White laundries did the same thing with no consequence.  And it has always been the law that the government (including police officers) can’t retaliate against citizens for exercising their First Amendment free speech rights.  There is a long line of cases that police can’t arrest someone for cursing at them for example (as long as it doesn’t cross over to threats of harm, or interference with lawful police activity).  Putting up with non-threatening verbal “challenge” is part of the job of being a police officer.

In this case, the Supreme Court tweaked all that — and melded these rules, and according to the dissents and concurrences, made a new rule, that is neither in the Constitution nor in the applicable federal civil rights protection statute.  The “new rule” is that basically even if the police are retaliating against someone for exercising their First Amendment rights, if the police otherwise had justification — probable cause that a crime was committed for example — the arrest is allowed and there is no right to sue for unconstitutional retaliation, unless the plaintiff has “other evidence” of unlawful motive — more than just “I’m exercising my first amendment, and they arrested me for it.”  Like someone else doing the same conduct, without the First Amendment exercise, and they didn’t get arrested; or the officer saying something more indicative of bad motive, like “I’ll show you who’s boss,” etc.  (although in this case the plaintiff alleged the officer said, “bet you wish you would have talked to me now.”).

The result though is that Bartlett can’t sue the police for arresting him for retaliation for exercise of his First Amendment rights, because the police had at least probable cause to believe he was committing the crime of disorderly conduct (in most states, disturbing the peace or public intoxication), and Bartlett didn’t have better evidence of a retaliatory motive.

In the course of the various opinions on the case, Justice Sotomayor dissented from the majority holding, that might make it easier to violate constitutional rights, stating:

“Put into practice, the majority’s approach will yield arbitrary results and shield willful misconduct from accountability. As one example, suppose police respond to reports of a man prowling a front porch. The man says that he is a locked-out homeowner; the police want ID. The man alleges profiling; the officers insist they are just doing their jobs. Tempers flare. A passerby, stepping into a next-door neighbor’s yard for a clearer view of the confrontation, pulls out a cell phone camera and begins streaming video of the encounter to her social media followers. One of the officers notices and orders the passerby to stop recording. When the passerby persists, the officer places the passerby under arrest for trespassing.

Will this citizen journalist have an opportunity to prove that the arrest violated her First Amendment rights? Under the majority’s test, the answer seems to turn on how many other curious bystanders she can identify who were not arrested in a situation like hers. If she was one of a crowd to enter the neighbor’s yard that night, she can sue using her readily available comparator neighbors. But if she was keeping a lonely vigil, she is out of luck (unless she can find some other pool of comparable individuals). And the video of the officer demanding she stop recording moments before the arrest? Irrelevant, apparently. What sense does that make?”

In addition, normally conservative Justice Gorsuch disagreed with the mostly conservative majority:

“Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, 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. The freedom to speak without risking arrest is “one of the principal characteristics by which we distinguish a free nation.” Houston v. Hill, 482 U. S. 451, 463, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).

So if probable cause can’t erase a First Amendment violation, the question becomes whether its presence at least forecloses a civil claim for damages as a statutory matter under §1983 [the federal statute that allows suit against someone who violates your federal constitutional rights]. But look at that statute as long as you like and you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit. Instead, the statute imposes liability on anyone who, under color of state law, subjects another person “to the deprivation of any rights, privileges, or immunities secured by the Constitution.” Maybe it would be good policy to graft a no-probable-cause requirement onto the statute, as the officers insist; or maybe not. Either way, that’s an appeal better directed to Congress than to this Court. Our job isn’t to write or revise legislative policy but to apply it faithfully.”

So, it may appear that in fact the United States Supreme Court made it easier for police to retaliate against “citizen journalists.”  It certainly is arguable that the Court made it easier for police to avoid accountability to citizens who are just exercising their Constitutional rights.

For further reading the Bartlett case can be found at:


This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only.  Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed.  Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations.  Internet reading is never a substitute for an actual consultation with a competent lawyer.  More information about my practice and background can be found at:


I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.


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