Earlier this week, the Supreme Court invented a rule that will allow police officers to arrest people in retaliation for disfavored speech or actions without liability. What that means is: if you’re caught jaywalking in violation of a local ordinance while wearing a #BlackLivesMatter shirt, the police could arrest you for the shirt and use jaywalking as the actual offense.
In Nieves v. Bartlett, a court ruled that individuals cannot sue police officers for retaliatory arrest if those officers had probable cause to arrest them for any crime, no matter how minor. And even if the real reason for the arrest was speech, the officers didn’t like or finding out they’re being recorded.
According to Slate, Congress recognized that making officers financially liable was a highly effective way to deter such misconduct. Hence the introduction of Section 1983 in the federal law, which enables lawsuits against state officers for violating constitutional rights.
Loitering is a minor infraction amongst many that are frequently violated but without incident, but could now be enforced more stringently as a pretext to arrest people engaged in speech or normal activity the officers may not like. If the change happens, Nieves v. Bartlett may have a devastating effect on demonstrators, press, and anyone who tries to exercise their free speech rights in public. That also includes the right to film the police or verbally challenge officer misconduct, as we’ve see more often throughout the last several years.
Last year, Justice Stephen Breyer made it clear he was looking for a “compromise” that would sacrifice some First Amendment rights in order to limit the number of lawsuits made against police. Breyer and Chief Justice John Roberts debated over various approaches, even legislators putting a bill together. However, no discussion about the meaning of the First Amendment or the text and history of Section 1983 was mentioned.
The good side to the decision is, the court created an exception to the harsh new rule that states even if police have probable cause to arrest, a plaintiff can still come out on top if they can show how police “typically exercise their discretion” not to make arrests in similar circumstances. We’ll see how that goes.
