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Festival Goer Loses Free Speech Case Against Police (3)

May 28, 2019, 2:21 PMUpdated: May 28, 2019, 11:10 PM

A man who attended a raucous winter sports festival in the remote mountains of Alaska lost his First Amendment case at the U.S. Supreme Court May 28 against the officers who arrested him.

Because there was probable cause for the arrest of “Arctic Man” attendee Russell Bartlett in 2014, his retaliatory arrest claim fails as a matter of law, Chief Justice John G. Roberts Jr. wrote for the court.

“For a cop on the street, this a pretty easy opinion to live by,” said Lisa Soronen, executive director of the State and Local Legal Center, which supported the officers in an amicus, or friend of the court brief.

But she noted “a little bit of a hitch” in the chief justice’s opinion, by way of an exception it carved out that plaintiffs can take advantage of even if there was probable cause.

Bartlett argued in his civil suit that the officers arrested him in retaliation for his refusal to speak to them and for his challenge to their attempt to question a teenager without a parent or guardian present.

The incident took place at the festival described by Roberts at the argument as “10,000 mostly drunk people in the middle of nowhere.”

The state is pleased with the decision, it said in a statement.

One of Bartlett’s lawyers, Greenberg Traurig shareholder Kerri Barsh, said that although they’re disappointed with the outcome, “we are pleased that the Supreme Court provided clarification on an approach for how other First Amendment claims for retaliatory arrest would be allowed to proceed in the future.”

Different Tales of Arctic Man

The parties offer conflicting versions of the events beginning around 1:30 a.m. on the last night of the festival and ending in Bartlett’s arrest for disorderly conduct and resisting arrest.

Sgt. Luis Nieves says Bartlett was belligerently yelling to RV owners that they shouldn’t speak with Nieves, who was asking some partygoers to move their beer keg inside their RV.

The sergeant says Bartlett was highly intoxicated and yelled at him to leave. Bartlett says he wasn’t drunk and never yelled at Nieves, contending it was the sergeant who became aggressive when he refused to speak with him.

Bartlett then saw Trooper Bryce Weight asking a minor whether he and his underage friends had been drinking. Weight says Bartlett was aggressive, standing between him and the teenager, yelling with slurred speech that Weight shouldn’t speak with the minor. The trooper says Bartlett came too close, forcing the trooper to push him back. Nieves came over to arrest Bartlett, who the officers say was slow to comply with orders.

Bartlett says he wasn’t aggressive and that he only stood close to Weight so the trooper could hear him over the loud background music. He says he was slow to comply with orders so as not to aggravate a back injury.

Bartlett claims Nieves said “bet you wish you would have talked to me now” after he cuffed him.

No Probable Cause Needed, Usually

Bartlett sued the officers on First Amendment grounds after the state dropped the charges against him.

The federal trial court granted summary judgment for the officers, finding they had probable cause to arrest Bartlett which, the trial court said, precluded his retaliatory arrest claim.

But the U.S. Court of Appeals for the Ninth Circuit reversed the trial court, holding that a plaintiff can win such a suit even if there was probable cause.

Yet Bartlett’s claim can’t survive summary judgment, Roberts wrote, reversing the Ninth Circuit. He was joined in full by Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan, and Brett M. Kavanaugh. Justice Clarence Thomas joined most of the opinion.

“As an initial matter,” the chief justice wrote, “the record contains insufficient evidence of retaliation on the part of Trooper Weight. The only evidence of retaliatory animus identified by the Ninth Circuit was Bartlett’s affidavit stating that Sergeant Nieves said ‘bet you wish you would have talked to me now.’”

Roberts wrote that that allegation about Nieves “says nothing about what motivated Weight, who had no knowledge of Bartlett’s prior run-in with Nieves.”

In any event, Roberts wrote, Bartlett’s claim against both officers fails because they had probable cause to arrest him.

Yet the chief justice carved out an exception to the “no-probable-cause requirement,” saying it shouldn’t apply when a 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.”

Four Justices Write Separately

Roberts’ opinion sparked several separate ones, from Thomas as well as from Justices Neil M. Gorsuch, Ruth Bader Ginsburg, and Sonia Sotomayor.

Thomas joined Roberts’ opinion for the most part, but he disagreed with the “similarly situated” exception. It “has no basis in either the common law or our First Amendment precedents,” Thomas wrote.

Gorsuch partially dissented in an opinion lamenting the expansive nature of modern criminal laws, while Ginsburg’s partial dissent took aim at the majority’s decision to “state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”

Justice Sonia Sotomayor fully dissented. She charged the majority with shortchanging the First Amendment’s “hard-earned wisdom in the name of marginal convenience.”

The case is Nieves v. Bartlett, U.S., 17-1174, reversed, remanded 5/28/19.

(Adds comment from Barsh. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com