JURISPRUDENCE
The Supreme Court Just Made It Easier for Police to Arrest You for Filming Them
By BRIAN FRAZELLE
MAY 31, 20193:13 PM
The First Amendment makes it unconstitutional for government officials to retaliate against you because they dislike your speech. At the same time, federal law gives you the right to sue state officials for compensation if they violate constitutional rights such as your right to free speech. But on Tuesday, the Supreme Court invented a rule that will often allow police officers to arrest people in retaliation for disfavored speech without liability.
By enabling police officers to target viewpoints they dislike with near impunity, the decision could be catastrophic for protesters and the press. The justices, meanwhile, didn’t even try to ground their decision in the text or history of the statute they were interpreting. Instead, the court was surprisingly frank about its rationale: The justices simply don’t want police officers to have to defend themselves in court against these types of allegations.
In
Nieves v. Bartlett, a divided court ruled that individuals can’t sue police officers for retaliatory arrest if those officers had probable cause to arrest them for any crime, no matter how minor—and that’s true even if the real reason for the arrest was speech the officers didn’t like. In other words, if you are jaywalking in violation of a local ordinance, officers can arrest you without fear of liability even if they’re making the arrest only because you’re participating in a Black Lives Matter demonstration or wearing a “Make America Great Again” cap.
Because local laws are full of minor infractions, like “loitering,” that are frequently violated without incident, police will often have a pretext to arrest people engaged in speech the officers don’t like. By immunizing such abuse, Nieves may have devastating effects on demonstrators, press photographers, and anyone who wants to exercise their speech rights in public, like the right to film the police or verbally challenge officer misconduct. The power to arrest is a potent tool for suppressing speech because even if charges are later dropped, arrestees must undergo the ordeal—and dangers—of being booked and jailed, and they may have to disclose the arrest on future job and housing applications, among other ramifications.
Congress long ago recognized that making officers financially liable is the most effective way to deter such misconduct. And that’s why a federal law called Section 1983 enables lawsuits against state officers for violating constitutional rights. This landmark statute was enacted during Reconstruction when Southern states were refusing to respect basic liberties. As one congressman said, the federal government could not directly compel these states to fall in line, but it could “deal with the offenders” by giving “the injured party … an original action in our Federal courts.” Section 1983 therefore authorizes suits for violations of “any rights” that are “secured by the Constitution.”
The Nieves decision takes a red pen to the statute Congress wrote, based on some justices’ fear that police actions taken “during a legitimate arrest could land an officer in years of litigation.” That objection, though, was already made in the proper forum—Congress—when it debated and passed Section 1983 many years ago. Opponents claimed that “this bill … puts in jeopardy the officers of the States, though in the conscientious discharge of their duties” and would lead to “vexatious, expensive, and protracted litigation.” Those objections failed in the political process. Stepping into Congress’ role nearly a century and a half later, the Roberts court revived them.
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