A U.S. Supreme Court ruling has freed police officers in Alaska from civil claims for arresting a man in retaliation for his speech.
But a dissent from Neil Gorsuch, President Trump’s first appointee to the court, contends the decision chips away at the protections provided by the Constitution’s First Amendment.
The 6-3 decision dismissed the case brought by Russell Bartlett, who was arrested after he refused to be interrogated by police and warned others who also were being confronted by the officers.
The Rutherford Institute, which filed a friend-of-the-court brief in the case, said the decision was a “setback to First Amendment rights.”
“Contempt of cop” claims for actions such as “filming police, asking a question of police, refusing to speak with police” are becoming more common, Rutherford said.
“Although the court recognized that people have a right to be free from a retaliatory arrest over lawful First Amendment activities, it ruled that if police have probable cause for the arrest, the person cannot sue for a free speech violation unless they can show that someone else was not arrested for the same actions,” the organization explained.
Gorsuch’s warning was blunt.
“History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively,” he wrote. “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.'”
John W. Whitehead, president of the Rutherford Institute, said Americans increasingly 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.”
“This case is 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,'” he said.
Gorsuch said probable cause might be enough to “defeat claims for false arrest or false imprisonment.”
However, “that doesn’t mean probable cause is also enough to defeat a First Amendment retaliatory arrest claim. The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.”
He explained: “Everyone accepts that a detention based on race, even one otherwise authorized by law, violates the 14th Amendment’s Equal Protection Clause. … I can think of no reason why the same shouldn’t hold true here.”
The majority opinion, which dismissed Bartlett’s claims, recounted the incident.
“Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during ‘Arctic Man,’ a raucous winter sports festival held in a remote part of Alaska. According to Sgt. Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak to the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartless was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said ‘bet you wish you would have talked to me now.'”
He sued for retaliation. The majority said that claim failed because the officers insisted they had probable cause for the arrest.
WND reported earlier that the charges on which the officers arrested Bartlett were dismissed.
The institute’s brief explained how easy it is for officers to abuse the law.
“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.”