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Monday, November 19, 2018

SCOTUSBlog Preview: First Amendment retaliatory arrests

I have a SCOTUSBlog preview of  Nieves v. Bartlett (to be argued November 26), considering whether a plaintiff seeking damages for a First Amendment retaliatory arrest must show absence of probable cause. The Court last term punted on the question in Lozman v. City of Riviera Beach, because the case involved a retaliatory municipal policy, not only one officer's single retaliatory decision

I describe this as a sneaky-important case, because it involves a collision of two Roberts Court commitments--protecting First Amendment rights and immunizing law enforcement from damages suit and liability. The last part of the petitioner's brief downplays the constitutional importance of talking back to, challenging, criticizing, or insulting police officers performing official functions, insisting it is not speech on matters of public concern that should be protected against retaliatory motives; this eliminates the need for damages liability to vindicate that speech. The brief also argues that police departments will discipline rogue officers who engage in retaliatory arrests, especially in an age of body cameras and citizen video, when departments are more committed to internal accountability. The second point is laughable as an empirical matter. The first is correct on free-speech principle only if the First Amendment does not extend to the rough-and-tumble of ugly public protest or if police officers, the public officials with whom the public has the most direct contact, are above rhetorical challenge and criticism. But both are ideas I could see this Court majority buying, with the second commitment prevailing over the first.

Posted by Howard Wasserman on November 19, 2018 at 03:02 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

Interesting!

Posted by: anna | Dec 7, 2018 10:50:34 AM

I hope however it is handled it is the issue of ~selective enforcement~ that gets keyed in on more than the proof of retaliation only.

It seems like the issue should be less about a snap judgement about an officer concerned with public safety .. there needs to be broad latitude there ... but less to no lattitude in decisions made by non public saftey officers...

... very much including building inspection departments, the IRS , campaign contribution issues etc.

Anything that has the taint of a retaliatory use of enforcement .. even by a tip to the agency, has got to be highly suspect in our current political environment where norms of decency and good faith have so eroded ...

..,. if you don't like an appointment or a donor or you need to coerce testimony any fishing expedition seems to be justified in the press today.

Agencies need to justify their inquiries on random spot checks or whatever ... let the police officer have some latitude if the directions and training they get is more egalitarian and teaches them to lean hard against biases.

Posted by: Mike | Nov 27, 2018 5:20:43 PM

Comment of mine , has appeared , and then , disappeared , so here again :


Interesting . It is hard naturally to judge right now the case , for , it is clearly missing probably , too many factual and legal elements it seems .

Just worth to note :

First , you mention in that preview that common doctrine of filling " arrest report " . So , it may clearly solve the problem you have mentioned of , I quote :

Retaliatory arrests often involve multiple officers, creating complex questions of whose animus played what role in the arrest.

End of quotation :

So , typically , the senior officer or the one in charge , is writing down such report , while by himself , was present and active in the arrest . Very good starting point then .

Second , we tend to forget always , the " tunnel of time " factor in such cases . The judge , is observing the case , from the police officer view , at the time that the decision had been made , not being smart after the fact . As such , the subjective perspective is critical and prevails even.

In Andrew Kisela v. Amy Hughes , Petitioner Andrew Kisela, a police officer in Tucson,Arizona, shot respondent Amy Hughes and later sued by her . I quote the Supreme court :

The question is whether at the time of the shooting Kisela’s actions violated clearly established law.

And :

All three of the officers later said that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick.

And :

“Because the focus is on whether the officer had fair notice that her conduct was unlawful,reasonableness is judged against the backdrop of the law at the time of the conduct.”

End of quotation :

So , when a person , as alleged here , is insulting a police officer , resisting arrest , refuses to talk to them ( not it seems , for guarding his right to stay silent ) it may , raise suspicions , at the time of the incident , that such person , created suspicious behavior ( reasonably can be argued ) . In this regard , such retaliatory arrests , has to do with first amendment , doesn't differ that much one may argue , from for example , suspicious driving.And even more suspicious , because clearly , head on , such person , has no respect to law officers , or , hiding something one may argue .

Thanks

Posted by: El roam | Nov 19, 2018 5:21:48 PM


Interesting . It is hard naturally to judge right now the case , for , it is clearly missing probably , too many factual and legal elements it seems .

Just worth to note :

First , you mention in that preview that common doctrine of filling " arrest report " . So , it may clearly solve the problem you have mentioned of , I quote :

Retaliatory arrests often involve multiple officers, creating complex questions of whose animus played what role in the arrest.

End of quotation :

So , typically , the senior officer or the one in charge , is writing down such report , while by himself , was present and active in the arrest . Very good starting point then .

Second , we tend to forget always , the " tunnel of time " factor in such cases . The judge , is observing the case , from the police officer view , at the time that the decision had been made , not being smart after the fact . As such , the subjective perspective is critical and prevails even.

In Andrew Kisela v. Amy Hughes , Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes and later sued by her . I quote the Supreme court :

The question is whether at the time of the shooting Kisela’s actions violated clearly established law.

And :

All three of the officers later said that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick.

And :

“Because the focus is on whether the officer had fair notice that her conduct was unlawful,reasonableness is judged against the backdrop of the law at the time of the conduct.”

End of quotation :

So , when a person , as alleged here , is insulting a police officer , resisting arrest , refuses to talk to them ( not it seems , for guarding his right to stay silent ) it may , raise suspicions , at the time of the incident , that such person , created suspicious behavior ( reasonably can be argued ) . In this regard , such retaliatory arrests , has to do with first amendment , doesn't differ that much one may argue , from for example , suspicious driving.And even more suspicious , because clearly , head on , such person , has no respect to law officers , or , hiding something one may argue .

Thanks

Posted by: El roam | Nov 19, 2018 5:16:43 PM

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