By JW August, journalist and Past President of Californians Aware

Do the police ever abuse authority? Do you think most officers believe citizens have the right to speak their minds, for example in protesting how they’re being treated? That’s something to weigh as you consider a recent decision by the U.S. Supreme Court.

In Nieves v. Bartlett, the court decided on May 28 that individuals cannot claim they were arrested in retaliation for exercising their First Amendment rights if the police have other lawful reason—probable cause—for arresting them. The court’s motivation was to reduce frivolous lawsuits against the police, a worthy consideration … but one which comes at a cost to free speech.

That’s not an issue if you believe the police are never vindictive or never act in a retaliatory manner.

For those not as willing to believe in the good nature of all police officers, the decision means if you are lawfully arrested for even a misdemeanor, you can’t argue it was done to punish your speech, unless you can prove that customarily, others not engaging in challenging speech were not arrested for the offense that officers charge you with.

And how do you prove that?

What the decision also means is that some of the recent legislative advances in police transparency and accountability in California (public access to body camera video, officer discipline records) have been offset by the expansion of officers’ discretion to use the power of arrest to chasten challenging speech. The scales of justice have again tilted farther from the center.

The case concerns an arrest made at a popular winter festival.

The issue arose when police got into a dispute with one Russell Bartlett, who was arrested after refusing to talk to them and loudly telling other attendees to do likewise. An officer claimed Bartlett was drunk. He was forced to the ground and arrested. Disorderly conduct charges were later dropped but Bartlett sued for damages, claiming the arrest was in retaliation for his speaking up against the officers.
The U.S. Ninth Circuit Court of Appeals agreed with Bartlett, saying the presence of probable cause does not excuse retaliatory arrests.

The Supreme Court disagreed by a 6-3 vote, with Associate Justice Neil Gorsuch laying out what was in play. “Mr.Bartlett contends the officers’ retaliation against his First Amendment protected speech entitles him to damages. For their part, the troopers insist that the fact they have probable cause to arrest Mr. Bartlett” for any crime should be enough to protect them from liability.

Critics might argue this allows police to go after anyone whose viewpoints they dislike with impunity. For the media and for protesters, it’s potentially a game changer. It raises, says Terry Francke of Californians Aware, “interesting questions for reporters and press photographers and videographers in California, who under state law have news gathering protections and rights going beyond the First Amendment.”

Like access to a disaster scene.

A real-life scenario this reporter experienced was being denied access to a cordoned-off fire area. I told the CHP officer that under state law I was allowed to enter at my own risk. He did not agree. I argued he was wrong. I lost.

The trooper’s decision was later discussed with his superiors—but this was well after the fire had been knocked down. I do have state law on my side; accredited journalists can enter a disaster scene at their own risk.

But as attorney Francke says, “government agents are too often likely to deny those rights, out of either ignorance of indifference.” He goes on to say that the agents are used to “compliance with what they consider to be lawful orders.”

So what if the journalists insist on entry and they are arrested? Can the government agency later claim that, despite having the access law on their side, defying the officer was per se a criminal act and under Nieves v. Bartlett, the officer was not liable for damages for retaliatory arrest?

Will the ruling allow police more liberties to abuse their authority or should we trust them not to? Do you think officers will continue to support the right of citizens to speak their minds? It’s something to weigh as you consider the ramifications of this decision by the U.S. Supreme Court.