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When 'contempt of cop' gets you arrested

The Supreme Court is considering the concept of “contempt of cop” and reviewing the question of whether a police officer can cover up a retaliatory arrest by claiming a person was guilty of jaywalking or littering.

Or something else.

“Contempt of cop” is the label being applied to a situation in which someone exercises legitimate constitutional rights, such as declining to respond to an officer’s questions, and then finds himself in handcuffs at the mercy of an officer who just doesn’t like that attitude.

Such retaliatory arrests often are complicated by minor charges, which officers then claim give them probable cause for the cuffing, the case explains.

A non-profit legal group that has been warning about the growth of government and its control over individuals’ lives says that shouldn’t be allowed.

“Increasingly, Americans are being arrested and charged with bogus ‘contempt of cop’ charges (otherwise known as asserting your constitutional rights) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers that be,” said constitutional attorney John W. Whitehead, president of the Rutherford Institute and author of “Battlefield America: The War on the American People.”

“This case is a yet another reminder that in the American police state, ‘we the people’ are at the mercy of police who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect.'”

At issue are the retaliatory arrests, which sometimes have been covered up by “a wide array of arrestable offenses – including commonplace crimes like jaywalking and littering.”

“It would not be difficult for officers to target speakers for their speech and then insulate the arrests from challenge by pointing to some misdemeanor offense for which probable cause arguable existed,” the institute explained.

It has filed a friend-of-the-court brief in a case brought by two officers caught up in such a situation. They are asking the Supreme Court to overrule the 9th U.S. Circuit Court of Appeals, which concluded people have a right to be free from an arrest that is in retaliation for exercising their freedom of speech, “even if the arrest is supported by probable cause.”

The institute explained the background.

“In 2014, Russell Bartlett camped out with friends at Arctic Man, a multi-day annual event in the Hoodoo Mountains of Alaska that features snowmobiling and ski races and attracts tens of thousands of people.”

He was at a campsite party the final night when Bartlett “was approached by Alaska State Trooper Luis Nieves, who was monitoring the Arctic Man event for underage alcohol consumption.”

“Nieves approached Bartlett, who had consumed two to three beers before attending the party, tapped him on the shoulder and asked if he could speak with Bartlett. Bartlett asked Nieves ‘What for?’ After further questioning, Bartlett exercised his First Amendment right to refrain from speaking and informed Nieves that he did not want to speak with him.”

Rutherford said Nieves “walked away, although he considered remaining to see if Bartlett would become disorderly.”

“Bartlett later observed another trooper questioning a fellow camper and approached the pair, believing the questioning to be improper. Just as Nieves returned, the second trooper stepped toward Bartlett and shoved him, causing him to stumble. The troopers then forced Bartlett to the ground and threatened to taser him if he resisted.

“Bartlett was arrested for disorderly conduct and resisting arrest, with Nieves allegedly taunting Bartlett, ‘Bet you wish you would have talked with me now.'”

The charges later were dismissed and Bartlett sued the troopers for retaliatory arrest.

The district court ruled for the officers, the 9th Circuit reversed and the officers appealed to the Supreme Court.

The institute said its challenge was to “bogus ‘contempt of cop’ charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that empower police to penalize and arrest individuals for engaging in lawful First Amendment activities (filming police, asking a question of police, refusing to speak with police).”

The institute warns Americans routinely violate components of the legal code of which they may be unaware, and it is “all too easy for police to weaponize the legal code in order to retaliate against individuals perceived as challenging police authority.”

The filing points out the possible impact on the First Amendment of the practice of police covering up their retaliation.

“Rather than allowing the existence of probable cause to eradicate retaliatory-arrest claims, as petitioners advocate, probable cause should be balanced against the speakers’ right to freedom of speech through the traditional, burden-shifting framework articulated by this court.

“In light of the wide array of arrestable offenses – including commonplace crimes like jaywalking and littering – it would not be difficult for officers to target speakers for their speech and then insulate the arrests from challenge by pointing to some misdemeanor offense for which probable cause arguable existed,” the filing said.

“It would not matter if the crime for which probable cause existed did not actually motivate the arrest; and it would not matter if the person arrested did not actually commit the crime. Speakers should have no avenue for redressing retaliatory arrests under petitioners’ approach.

“Valuable speech would be chilled.”

That’s contrary to the American ideal, the filing said.

“Modern First Amendment jurisprudence reinforces the vital role of free speech as a bulwark against tyranny and as a core value to protect. This court has repeatedly emphasized the importance of free speech to political freedom and representative government.”