Plaintiffs bringing a retaliatory arrest claim for exercising First Amendment rights must plead and prove the absence of probable cause for their arrest, unless they can show similarly-situated people who did not engage in protected speech were not arrested, the U.S. Supreme Court held May 28 in Nieves v. Bartlett.


The case arose out of the “Artic Man” sports festival near Paxson, Alaska.  Thousands of raucous party-goers attend the festival.  Fights and underage drinking are common.


Sergeant Nieves asked some partygoers to remove a beer keg because minors had been taking the alcohol.  Russell Bartlett, who was highly intoxicated, yelled at the keg owners not to talk to police, and yelled at Nieves to leave.  Nieves left.


Several minutes later, Bartlett saw Trooper Weight asking a minor whether he had been drinking.  Bartlett approached Weight and yelled at him not to speak to the minor.  Weight pushed Bartlett back, and a brief scuffle ensued.  Nieves rushed over and arrested Bartlett for disorderly conduct and resisting arrest.


The State ultimately dismissed criminal charges against Bartlett.


Bartlett then brought a §1983 suit against officers Nieves and Weight for violating his First Amendment rights.  He claimed police made a retaliatory arrest because he told other partygoers and the minor not to talk to police, which was protected speech.


The officers claimed they arrested Bartlett because he interfered with a police investigation and initiated a physical confrontation with Weight.


The district court held that because the officers had probable cause to arrest Bartlett, this precluded his First Amendment retaliatory arrest claim.  But the Ninth Circuit reversed.




The Supreme Court, in an opinion joined at least in part by six justices, held that Bartlett must show the absence of probable cause for his arrest.


Retaliatory arrest claims present the same “causal complexities” as retaliatory prosecution claims, so should be decided by a similar objective standard, the Court said.  “It is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff’s potentially criminal conduct.”


Retaliatory prosecution claims require a showing more than the “subjective animus” of an officer.  They require showing that the decision to press charges was objectively unreasonable because not supported by probable cause.


“Like retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case,” the Court said.  “And because probable cause speaks to the objective reasonableness of an arrest … its absence will – as in retaliatory prosecution cases – generally provide weighty evidence that the officer’s animus caused the arrest, whereas the presence of probable cause will suggest the opposite.”


Thus, “the plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest,” the Court held.


Once the plaintiff establishes the absence of probable cause, then the plaintiff must show that retaliation was a “substantial or motivating factor” behand the arrest.  If that showing is made, the defendant-officers can prevail “only by showing that the arrest would have been initiated without respect to the retaliation.”


The Court noted two exceptions to its holding that probable cause will generally defeat a retaliatory arrest claim.  The first is when a person is arrested pursuant to an “official policy” of retaliation.


The second is “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,” the Court said.  “In such cases, an unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.”