In cities all across this country, the following scenario plays out: The police are on the street interacting with a citizen who does not welcome their presence. Soon a crowd forms and neighbors and onlookers share their displeasure for what they view as harassment of the person. The police tell the onlookers to disperse or they will be arrested. The onlookers refuse and continue to voice their displeasure. The police get fed up and in retaliation for being bothered by the onlookers, they begin arresting the onlookers on a trumped-up charge such as disorderly conduct, obstruction, blocking the intersection or interfering with a police investigation.

The First Amendment to the United States Constitution has longed protected against government officials punishing citizens for their speech. However, the United States Supreme Court just gave their stamp of approval on the police making retaliatory arrests. In the recently decided case of  Nieves v. Bartlett, the Supreme Court ruled that as long as the police have probable cause to arrest you for any offense, even if it’s jaywalking, it is perfectly legal, no matter what the officer’s true motives were.

The facts of the Nieves case stem from an incident that occurred at Alaska’s annual Arctic Man festival, described by Chief Justice John Roberts as “an event known for both extreme sports and extreme alcohol consumption.” Alaska State Trooper Luis Nieves arrested festival goer Russel Bartlett, who was allegedly acting belligerent and charged him with disorderly conduct and resisting arrest. However, Bartlett alleged that his arrest was in retaliation for him challenging officers as they questioned another teenage festival goer and Bartlett had refused to talk to the officers when they requested. According to Bartlett, as he was being arrested Nieves said, “[B]et you wish you would have talked to me now.”

Bartlett filed a civil rights lawsuit against the police under 42. U.S.C. Section 1983 alleging civil rights violations and police misconduct. Specifically, Bartlett alleged that the officers violated his First Amendment rights by arresting him in retaliation for his speech—his initial refusal to speak with trooper Nieves and his intervention in officers’ discussion with the minor. On appeal, the Supreme Court took into account the number of arrests police officers make on a daily basis and said that if “doubtful” retaliatory arrest claims were allowed to proceed on allegations of the officers’ state of mind, it would cause an increase in allegations of police misconduct lawsuits and subject officers to years of possible civil rights litigation and ultimately it would cause police officers “undue apprehension” and make it harder for them to carry out their duties.

This decision is troublesome for several reasons. First, it strikes a blow to First Amendment Free Speech. A cornerstone of our democracy is that citizens should be able to protest and speak their grievances without fear of retaliatory government action. This ruling says that as long as the police have some legitimate reason to arrest you they can do so even if their underlying motives were that they didn’t like what you said and there is nothing you can do about it. Secondly, this country is in the midst of a national conversation about police accountability and police officers engagement with communities of color. This ruling only subtracts from the police reforms that many have fought to put in place.

And lastly, it makes already vulnerable minority and disadvantaged communities more vulnerable to police abuses by making it easier to get arrested for filming police officers. Countless times throughout each day, police officers go into communities of color and engage with citizens who feel that the officers’ conduct is not always honest. A long history of police brutality and misconduct has made communities of color mistrustful of law enforcement and this frustration can oftentimes be expressed to the officers during police encounters. The Nieves decision has made it so that the police can arrest you for jaywalking or loitering even though the real reason for the arrest was the fact that you were recording their actions or shouting Black Lives Matter.

The Nieves decision also makes it harder for those who feel they were the victims of police misconduct and a retaliatory arrest to prevail in court should they decide to file a civil rights lawsuit for police misconduct. For years, police misconduct and civil rights lawsuits have been the only mechanism to seek justice for police abuses. In recent years, cities like Chicago have paid hundreds of millions of dollars to settle claims of police brutality and misconduct. This ruling means that police misconduct and civil rights attorneys in cities such as Chicago now have an uphill battle when trying to seek justice for a victim of a wrongful retaliatory arrest.

If you believe you’ve been the victim of police misconduct, you should speak to a civil rights attorney. You have rights. Use them.


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