Nieves v. Bartlett

Civil Rights

Argument: November 26, 2018

Petitioners’ Briefs: Luis A. Nieves

Respondents’ Briefs: Russell P. Bartlett

Court below: 9th Circuit Court of Appeals

Court below: 9th Circuit Court of Appeals

Can Bartlett claim he was arrested in retaliation for exercising his First Amendment rights even if the police had probable cause to arrest?

Nieves v Bartlett

Russell Bartlett was attending the Arctic Man ski and snowmobile race festival in Alaska. The festival is known for lots of drinking and partying.

One evening of the festival, Sergeant Luis Nieves and Trooper Bryce Weight were patrolling the festival and investigating underage drinking. While patrolling, Sergeant Nieves approached Bartlett and asked to speak with him. Bartlett refused to talk. The interaction was somewhat verbally aggressive, however, Sergeant Nieves ended up walking away from Bartlett.

Shortly thereafter, Bartlett observed Trooper Weight questioning a teenager. Bartlett believed that the trooper could not question the teenager without a parent or guardian present, so he approached Trooper Weight to interfere. According to Trooper Weight, Bartlett was hostile and aggressive. Sergeant Nieves then approached to assist and a physical altercation ensued between Bartlett and the troopers. The troopers aggressively took Bartlett down and arrested him for harassment and other charges.

Speaking out against police

Bartlett sued Nieves and Weight for a number of claims, including retaliatory arrest. Bartlett claimed that the troopers arrested him in retaliation for refusing to talk to Nieves and for questioning the troopers’ authority to speak to the teenager, not for another valid reason. Bartlett’s refusal to talk and the statements he made to the troopers would be protected under the First Amendment. Therefore, Bartlett wants to prove that the real reason for his arrest was because he was exercising his First Amendment rights and the troopers didn’t like it. However, the trial court found that the troopers had probable cause to arrest Bartlett for harassment and said that made the arrest proper regardless of Bartlett’s claim of retaliation.

To prove or not to prove lack of probable cause

Nieves and Weight argue that the Court’s prior holding in Hartman v. Moore requires Bartlett to prove that the troopers did not have probable cause to arrest him in order to bring a retaliatory arrest claim. That case found that if a prosecutor has probable cause to prosecute, then courts will not question if there was prosecutorial misconduct. As a result, where there is probable cause to prosecute, any claims for retaliatory prosecution are barred. The Court based this ruling in part on the fact that it would be complicated to prove that the choice to prosecute was improper if there’s probable cause. The troopers rely on this case to argue that the Court shouldn’t get into complicated questions of causation or the real reason for an arrest because police must make quick decisions, therefore claims for retaliatory arrest should be barred if there is probable cause.

However, the Court’s holding in Lozman v. City of Riviera Beach, Florida earlier this year showed there is at least one situation where an individual can sue for retaliatory arrest even if there was probable cause. In that case, the Court held that Lozman could have the opportunity to show that the real reason for his arrest was for retaliation against exercising his First Amendment rights because Lozman sued the city, rather than the individual officers who arrested him. By suing the City, Lozman opened the door for the Court to consider his claim that the City had an official policy of retaliation against him. Bartlett relies on this case to argue that he should have the opportunity to show a court that the real reason for his arrest was not for any unlawful actions, but for retaliation against exercising his First Amendment rights in speaking out against the troopers.

Kristen Monkhouse


Kristen Monkhouse is a lawyer originally from Indiana, but was brought to Texas by law school and has lived there since. She now practices municipal law in Dallas and has a passion for learning the little details of the law. Connect on LinkedIn here.