SCOTUS to Hear Oral Argument in First Amendment Retaliatory Arrest Case Against Law Enforcement Officers

Nieves v. Bartlett:  SCOTUS to Hear Oral Argument in First Amendment Retaliatory Arrest Case Against Law Enforcement Officers

By: Kathleen Wieneke

For the third time in seven years, the Supreme Court is faced with the question of whether probable cause bars a First Amendment retaliatory arrest claim under 42 U. S. C. § 1983.  On November 26, 2018, the Court will hear oral argument in Nieves v. Bartlett, a Ninth Circuit case out of Alaska, and will once again confront the issue of whether probable cause for the underlying arrest ends the retaliatory arrest inquiry.  Despite the overwhelming majority of Circuit Courts barring such claims, under current Ninth Circuit precedent, a First Amendment retaliatory arrest claim may proceed, even where probable cause exists.  In 2012, in Reichle v. Howards, 566 U.S. 658, the Supreme Court dodged the question of the probable cause bar by granting qualified immunity to law enforcement officers because the law was not clearly established.  In 2018, in Lozman v. City of Riviera Beach, 568 U.S. 115, the Court again declined to reach the issue, deciding only that a retaliatory arrest claim against a municipality could survive a “but for” causation test.  Hoping the third time will be the charm, the Supreme Court may finally decide in Nieves to resolve the split in the Circuits and conclude that the existence of probable cause defeats a First Amendment claim for retaliatory arrest under 42 U. S. C. § 1983.