WASHINGTON, D. C. – Attorney General Karl A. Racine today led a coalition of 15 states and the District of Columbia in a friend-of-the-court brief in a United States Supreme Court case that could make it more difficult for police to do their jobs. The brief urges the Court to overrule a lower court and hold that a police officer is not subject to a retaliatory-arrest suit when the officer had probable cause to make the arrest. The brief explains that a contrary ruling would constrain officers’ ability to protect the public, including through community policing.   

“Police officers must be able to make swift decisions about arresting individuals when they have probable cause,” said Attorney General Racine. “This broad, bipartisan coalition recognizes that after-the-fact First Amendment claims should not limit an officer’s ability to make crucial split-second determinations in the interest of public safety.”

The multistate amicus brief comes in Nieves v. Bartlett, a case in which a man sued two Alaska state troopers who had arrested him for disorderly conduct. Although there was probable cause for the arrest, the arrestee sued, claiming that the troopers were retaliating against the exercise of his First Amendment rights. The Court must decide whether a plaintiff may sue police officers for retaliatory arrest if the officer had probable cause to arrest the plaintiff. The U.S. Court of Appeals for the 9th Circuit ruled in favor of the arrestee, and the officers appealed the decision to the Supreme Court.

The states’ brief argues that a decision upholding the 9th Circuit would inhibit effective policing and encourage a flood of lawsuits claiming retaliatory arrest. This would chill the willingness of officers to make arrests, even when based on probable cause and when necessary to protect public safety.  Acknowledging the importance of the First Amendment interests at stake, the brief also contends that the states and the District have effective administrative and disciplinary procedures in place, including civilian complaint review boards, to address misconduct by officers and to protect those interests. 

The Court will hear oral arguments in the case in its next term, which begins in October 2018.

A copy of the brief is available at: http://oag.dc.gov/sites/default/files/2018-08/Amicus-Brief-Nieves-v-Bartlett.pdf