Violations Without Vindication: How the Supreme Court’s Decision in Nieves v. Bartlett Permits Retaliatory Arrests and Threatens to Undermine the Fight For Racial Equality
By: Michael Mills
In May 2019, the Supreme Court handed down its decisions in Nieves v. Bartlett. For the most part, the decision flew under the radar, garnering little media attention (with some exceptions). However, this seemingly innocuous Supreme Court decision now threatens to undermine what has been described as “a defining moment in the future of American politics” and a “turning point against police brutality”—the George Floyd protests.
As a general matter, the Constitution prevents the government from retaliating against an individual for exercising her constitutional rights. As a recent example, President Donald Trump’s former lawyer, Michael Cohen, was released from prison after a judge determined Cohen’s house arrest was revoked as punishment for writing a tell-all book about Trump. Since Cohen had a First Amendment right to write a book about Trump, the government could not retaliate against him for writing it.
Likewise, a police officer violates the First Amendment when she arrests an individual because she dislikes his speech—known as a retaliatory arrest. But what does it matter if the officer violates the First Amendment when there are no consequences? One incredibly important remedy is to sue the officer under 42 U.S.C. § 1983. Section 1983 allows victims of state action that violate the victim’s constitutional rights, such as a retaliatory arrest, to sue the perpetrator. The statute is designed to deter state actors, such as police officers, from violating the Constitution.
At this juncture, Nieves v. Bartlett comes into play. The Supreme Court decided in Nieves that an arrestee cannot sue an officer under Section 1983 for a retaliatory arrest as long as the officer had probable cause to arrest the individual. So, as was the case in Nieves, it did not matter that an officer arrested a concert-goer for telling partiers not to talk to the cops since the officer had probable cause to arrest the concert-goer for being drunk and disorderly. The Section 1983 lawsuit was barred regardless of the officer’s intentions.
As I discuss in a forthcoming piece, this ruling is incredibly dangerous. It is really easy to achieve probable cause to arrest somebody. In fact, you can be arrested for something as trivial as not wearing a seatbelt. As a result, officers that wish to arrest people because the officers dislike the person’s speech will easily be able to insulate their unconstitutional actions from liability. All the officer has to do is find some offense the speaker committed—which is easy to do in this age of overcriminalization—and the officer is free to violate the First Amendment without repercussion.
The Court did try to alleviate this harm by adding an exception to this rule for very minor offenses that an officer usually would not arrest for, such as jaywalking. But, as I point out in my forthcoming work, this exception will not likely function as intended since the standard is too harsh, meaning not many speakers will qualify under it. And even if the exception did function as intended, while it may prevent a retaliatory arrest for not wearing a seatbelt, the exception would not apply to many activities that protesters are commonly arrested for, such as unlawful assembly, failure to disperse, disorderly conduct, and blocking roads.
Now just what are the harms of this dangerous decision? Arrests are incredibly humiliating, result in invasive searches, are mentally taxing, and harm an individual’s reputation. Even minor arrests can have long-lasting effects, such as property seizures, harmed employment prospects, debt from hiring an attorney, or housing evictions. Most people want to avoid these burdens. However, if you knew that police would target you for arrest because you did something as minor as ignoring an order to disperse while protesting police brutality, you may be discouraged from protesting against police altogether. This phenomena is known as a chilling effect—a speaker would be chilled from exercising their First Amendment right because of a targeted government law or action.
Police officers using retaliatory arrests to chill speech was a serious concern prior to George Floyd’s murder. For example, the Ferguson Police Department has a long history of arresting those who disrespect or criticize the police. But now, the George Floyd protests have taken that harm and amplified it by thousands.
The George Floyd Protests
George Floyd was an unarmed Black man who was murdered after a police officer kneeled on his neck for eight minutes and 46 seconds—ignoring his repeated cries that he could not breathe. The video of his murder went viral, resulting in national outrage and protests in at least 140 cities worldwide. So far, over 14,000 people have been arrested across the nation. Among those arrested, there are countless examples of protesters and reporters alike being arrested due to officers’ animus towards their speech.
Protesters are facing the majority of retaliatory arrests since police have vast discretion to find criminal conduct during protests. In the face of mass unrest over the racial inequalities in America, many mayors “have thrown up their hands and ordered curfews or called in the National Guard.” The result has been a surge in protesters arrested, often with those who are exercising their First Amendment rights the loudest or the most controversially being the targets for retaliatory arrest.
Take, for example, this video which garnered some media attention. In it, a young man gives a passionate speech about viewing people of different races equally and reminds the police that people should not be judged and killed because of a bad day. Officers promptly walked over, removed the speaker from the crowd of people, and arrested him for disobeying an order to disperse. The Constitution clearly proscribes targeting the protester, yet Nieves immunizes these officers from legal consequences. Violating the order to disperse gave officers probable cause to arrest the protester. Additionally, officers frequently arrest for failure to disperse, so his offense does not fall into the Nieves exception. Thus, since the officers had probable cause to the arrest the protester and he was arrested for a non-trivial offense, the protester is categorically barred from holding the officers accountable for violating his constitutional rights. It does not matter that he was clearly targeted for arrest in a crowd full of protesters because of his constitutionally-protected speech—the officers are insulated from any legal liability for their actions.
Many other examples exist from all across the nation. In another similar video, a man begs the police to protect and serve the people instead of using excessive force. Officers, too, picked him out from the crowd and arrested him. Police officers have also targeted symbolic speech, such as one protester whom police arrested after handing out flowers and another arrested for waving a donut in front of officers. Police have also retaliated with violence, such as this one man who was pepper sprayed in his second-story apartment after he criticized officers for arresting protesters on the sidewalk. These few examples only scratch the surface of the clear pattern that has emerged during these protests: those with speech that law enforcement dislikes the most will be targeted.
As The Issue Spotter has previously noted, another disturbing trend occurring during the George Floyd protests is the intentional targeting of reporters with arrests and violence. There have been over 500 acts of aggression against reporters during the George Floyd protests—including over 50 arrests. Some prominent examples of retaliation against the press include the arrest of CNN reporter Omar Jimenez on live television, the arrest of a New Jersey reporter after he recorded police throwing two individuals to the ground, and the punching of an Australia cameraman live on television. Just like with the protesters, these incidents only scratch the surface of retaliatory actions police have taken against reporters in an attempt to dissuade critical speech.
Nieves’ Chilling Effects on the Fight for Racial Equality
It is reasonable for these protesters and reporters who are having their constitutional rights violated to expect to have recourse against the officers. As the Supreme Court has indicated, that’s exactly what Section 1983 is designed to do—remedy past constitutional violations and discourage future ones. Thus, it is incredibly important that the George Floyd protesters and media have remedies to compensate for these unconstitutional retaliatory arrests in order to deter future violations. Otherwise, police would be licensed to chill this immensely important social movement without repercussion.
However, the vast majority of these protesters and media will be disappointed—and perhaps chilled—to find out that Section 1983 provides them no remedy. Protesters are being arrested for a wide range of offenses, including unlawful assembly, disorderly conduct, curfew violations, violating orders to disperse, and obstructing roadways. These offenses are all beyond the trivial offenses that Nieves exempted. Thus, since officers had probable cause to arrest many of the George Floyd protesters for their overcriminalized conduct, it does not matter that the officers targeted certain protesters and press because of their speech. Nieves categorically bars them from recourse.
The chilling effects that Nieves permits are startling. Although millions of people still participated in the George Floyd protests, it is reasonable to assume because of the nature of chilling effects that there were some protesters that declined to participate out of fear that they would become victims of the heavily publicized retaliatory arrests. And, even more impactful, when the next tragic death of an unarmed Black person occurs (as we have seen time and time and time again), many protesters will likely be further discouraged from demonstrating because of how flagrantly officers were able to suppress the First Amendment during these protests without repercussion. In short, officers are using retaliatory arrests to try and stomp out the George Floyd movement and demands for racial justice—and the Supreme Court says protesters are powerless to stop it.
Congress Needs to Act
In another piece, I suggest how lower courts can interpret Nieves so retaliatory arrest lawsuits can still succeed under the exception the Supreme Court laid out. However, there is only so much that lower court can do when the vast majority of retaliatory arrest claims, such as the ones that have arisen from the George Floyd protests, will be barred by the case’s main holding. The Supreme Court’s word on this issue does not have to be final, though. The Court in Nieves was not interpreting the Constitution—a matter it has the final say over (barring a constitutional amendment). Instead, the Court was interpreting the requirements to sue for a retaliatory arrest under Section 1983. Unlike the Constitution, Congress can easily amend statutes to change the meaning the Court has given them. For example, many commentators and legislators have called for Congress to amend Section 1983 to remove officers’ qualified immunity, which is another judicially-created doctrine that the Court has used to limit officers’ liability.
Following this same path, I propose amending Section 1983 to provide that a retaliatory arrest claim may still be brought even if the officer had probable cause to arrest the speaker. So long as the motivation for the arrest was the speaker’s protected speech, the retaliatory arrest lawsuit should be able to proceed. Removing the license the Supreme Court granted officers to engage in retaliatory arrests would require a strikingly simple amendment. But doing so would have a major impact in helping protesters fully effectuate their First Amendment right to protest the deep-seeded racial injustice in America.
One major drawback of this amendment may be that a police officer’s intent for an arrest may often be hard to discern. While the George Floyd protests have illustrated many flagrant examples of retaliatory arrests, a police officer’s intent is not always so obvious, and there will certainly be some lawsuits where the officer’s intent is unclear. However, Congress should still act to amend Section 1983, despite these concerns, for three reasons.
First, some Circuit Courts had rejected the probable cause rule prior to Nieves, and there was no evidence that police officers were flooded with retaliatory arrest lawsuits in those jurisdictions. Second, while it may be difficult to sort out what the police officer’s motivation for an arrest was, society trusts courts and juries to discern intent all the time. Intent is a major element in most other retaliation lawsuits, Fourteenth Amendment equal protection claims, and a wide variety of torts. The case should be no different here—especially when protesters’ constitutional rights are at stake. Third, even if this amendment would lead to the occasional case where a police officer is found liable when the officer’s intent was not clear, it is still important for Congress to take a stand in favor of free speech to help support the fight for racial equality in America. Throughout history, public demonstrations have been deeply important in forwarding social change. A free and uninhibited discourse where protesters are free to criticize police without retaliation is essential to bring about change at this “turning point” in American history. Thus, Congress must continue the legacy of pivotal American social movements by passing Section 1983 reform to protect protesters from retaliatory arrests.
 See Arielle W. Tolman & David M. Shapiro, From City Council to the Streets: Protesting Police Misconduct After Lozman v. City of Riviera Beach, 13 Charleston L. Rev. 49, 62–64 (2018).
 Id. at 54–55.
About the Author: Michael is a 3L at Cornell Law School. He currently serves as an Articles Editor on the Cornell Law Review and his Note, The Death of Retaliatory Arrest Claims: The Supreme Court’s Attempt to Kill Retaliatory Arrest Claims in Nieves v. Bartlett, will be published in Volume 105 Issue 7 of the Cornell Law Review. His research focuses on Constitutional Law and, in particular, the First Amendment. He is a member of Cornell’s First Amendment Clinic and he hopes to pursue a career in either academics or appellate litigation.
Suggested Citation: Michael Mills, Violations Without Vindication: How the Supreme Court’s Decision in Nieves v. Bartlett Permits Retaliatory Arrests and Threatens to Undermine the Fight For Racial Equality, Cornell J.L. & Pol’y, The Issue Spotter (Aug. 7, 2020), http://jlpp.org/blogzine/violations-without-vindication-how-the-supreme-courts-decision-in-nieves-v-bartlett-permits-retaliatory-arrests-and-threatens-to-undermine-the-fight-for-racial-equality/.