LUIS A. NIEVES, ET AL., PETITIONERS
v.
RUSSELL P. BARTLETT
Argued
November 26, 2018
ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Respondent
Russell Bartlett was arrested by police officers Luis Nieves
and Bryce Weight for disorderly conduct and resisting arrest
during "Arctic Man," a raucous winter sports
festival held in a remote part of Alaska. According to
Sergeant Nieves, he was speaking with a group of attendees
when a seemingly intoxicated Bartlett started shouting at
them not to talk to the police. When Nieves approached him,
Bartlett began yelling at the officer to leave. Rather than
escalate the situation, Nieves left. Bartlett disputes that
account, claiming that he was not drunk at that time and did
not yell at Nieves. Minutes later, Trooper Weight says,
Bartlett approached him in an aggressive manner while he was
questioning a minor, stood between Weight and the teenager,
and yelled with slurred speech that Weight should not speak
with the minor. When Bartlett stepped toward Weight, the
officer pushed him back. Nieves saw the confrontation and
initiated an arrest. When Bartlett was slow to comply, the
officers forced him to the ground. Bartlett denies being
aggressive and claims that he was slow to comply because of a
back injury. After he was handcuffed, Bartlett claims that
Nieves said "bet you wish you would have talked to me
now."
Bartlett
sued under 42 U.S.C. §1983, claiming that the officers
violated his First Amendment rights by arresting him in
retaliation for his speech-i.e., his initial refusal
to speak with Nieves and his intervention in Weight's
discussion with the minor. The District Court granted summary
judgment for the officers, holding that the existence of
probable cause to arrest Bartlett precluded his claim. The
Ninth Circuit reversed. It held that probable cause does not
defeat a retaliatory arrest claim and concluded that
Bartlett's affidavit about what Nieves allegedly said
after the arrest could enable Bart- lett to prove that the
officers' desire to chill his speech was a but-for cause
of the arrest.
Held:
Because
there was probable cause to arrest Bartlett, his
retaliatory arrest claim fails as a matter of law. Pp.
4-16.
(a)
To prevail on a claim such as Bartlett's, the plaintiff
must show not only that the official acted with a
retaliatory motive and that the plaintiff was injured, but
also that the motive was a "but-for" cause of the
injury. Hartman v. Moore, 547 U.S. 250, 259-260.
Establishing that causal connection may be straightforward
in some cases, see, e.g., Mt. Healthy City Bd.
of Ed. v. Doyle, 429 U.S. 274, but other times it is
not so simple. In retaliatory prosecution cases, for
example, the causal inquiry is particularly complex because
the official alleged to have the retaliatory motive does
not carry out the retaliatory action himself. Instead, the
decision to bring charges is made by a prosecutor-who is
generally immune from suit and whose decisions receive a
presumption of regularity. To account for that
"problem of causation," plaintiffs in retaliatory
prosecution cases must prove as a threshold matter that the
decision to press charges was objectively unreasonable
because it was not supported by probable cause.
Hartman, 547 U.S., at 263. Pp. 5-7.
(b)
Because First Amendment retaliatory arrest claims involve
causal complexities akin to those identified in
Hartman-see, e.g., Reichle v.
Howards, 566 U.S. 658; Lozman v. Riviera
Beach, 585 U.S. -the same no-probable-cause
requirement generally should apply. The causal inquiry is
complex because protected speech is often a "wholly
legitimate consideration" for officers when deciding
whether to make an arrest. Reichle, 566 U.S., at
668. In addition, "evidence of the presence or absence
of probable cause for the arrest will be available in
virtually every retaliatory arrest case."
Ibid. Its absence will generally provide weighty
evidence that the officers' animus caused the arrest,
whereas its presence will suggest the opposite. While
retaliatory arrest cases do not implicate the presumption
of prosecutorial regularity or necessarily involve multiple
government actors, the ultimate problem remains the same:
For both claims, it is particularly difficult to determine
whether the adverse government action was caused by the
officers' malice or by the plaintiff's potentially
criminal conduct.
Bartlett's
proposed approach disregards the causal complexity involved
in these cases and dismisses the need for any threshold
objective showing, moving directly to consideration of the
officers' subjective intent. In the Fourth Amendment
context, however, this Court has "almost uniformly
rejected invitations to probe [officers'] subjective
intent," Ashcroft v. al-Kidd, 563 U.S. 731,
737. A purely subjective approach would undermine that
precedent, would "dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching
discharge of their duties," Gregoire v.
Biddle, 177 F.2d 579, 581, would compromise evenhanded
application of the law by making the constitutionality of
an arrest "vary from place to place and from time to
time" depending on the personal motives of individual
officers, Devenpeck v. Alford, 543 U.S. 146, 154,
and would encourage officers to minimize communication
during arrests to avoid having their words scrutinized for
hints of improper motive. Pp. 8- 11.
(c)
When defining the contours of a §1983 claim, this
Court looks to "common-law principles that were well
settled at the time of its enactment." Kalina v.
Fletcher, 522 U.S. 118, 123. In 1871, when §1983
was enacted, there was no common law tort for retaliatory
arrest based on protected speech. Turning to the
"closest analog[s]," Heck v. Humphrey,
512 U.S. 477, 484, both false imprisonment and malicious
prosecution suggest the same result: The presence of
probable cause should generally defeat a First Amendment
retaliatory arrest claim. Pp. 12-13.
(d)
Because States today permit warrantless misdemeanor arrests
for minor criminal offenses in a wide range of
situations-whereas such arrests were privileged only in
limited circumstances when §1983 was adopted-a narrow
qualification is warranted for circumstances where officers
have probable cause to make arrests, but typically exercise
their discretion not to do so. An unyielding requirement to
show the absence of probable cause in such cases could pose
"a risk that some police officers may exploit the
arrest power as a means of suppressing speech."
Lozman, 585 U.S., at . Thus, the no-probable-cause
requirement should not apply when a plaintiff presents
objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort
of protected speech had not been. Cf. United States v.
Armstrong, 517 U.S. 456, 465. Because this inquiry is
objective, the statements and motivations of the particular
arresting officer are irrelevant at this stage. After
making the required showing, the plaintiff's claim may
proceed in the same manner as claims where the plaintiff
has met the threshold showing of the absence of probable
cause. Pp. 13-15. 712 Fed.Appx. 613, reversed and remanded.
OPINION
ROBERTS CHIEF JUSTICE
Respondent
Russell Bartlett sued petitioners-two police
officers-alleging that they retaliated against him for his
protected First Amendment speech by arresting him for
disorderly conduct and resisting arrest. The officers had
probable cause to arrest Bartlett, and we now decide whether
that fact defeats Bartlett's First Amendment claim as a
matter of law.
I
A
Bartlett
was arrested during "Arctic Man," a weeklong winter
sports festival held in the remote Hoodoo Mountains near
Paxson, Alaska. Paxson is a small community that normally
consists of a few dozen residents. But once a year, upwards
of 10, 000 people descend on the area for Arctic Man, an
event known for both extreme sports and extreme alcohol
consumption. The mainstays are highspeed ski and snowmobile
races, bonfires, and parties. During that week, the Arctic
Man campground briefly becomes one of the largest and most
raucous cities in Alaska.
The
event poses special challenges for law enforcement.
Snowmobiles, alcohol, and freezing temperatures do not always
mix well, and officers spend much of the week responding to
snowmobile crashes, breaking up fights, and policing underage
drinking. Given the remote location of the event, Alaska
flies in additional officers from around the State to provide
support. Still, the number of police remains limited. Even
during the busiest periods of the event, only six to eight
officers are on patrol at a time.
On the
last night of Arctic Man 2014, Sergeant Luis Nieves and
Trooper Bryce Weight arrested Bartlett. The parties dispute
certain details about the arrest but agree on the general
course of events, some of which were captured on video by a
local news reporter.
At
around 1:30 a.m., Sergeant Nieves and Bartlett first crossed
paths. Nieves was asking some partygoers to move their beer
keg inside their RV because minors had been making off with
alcohol. According to Nieves, Bart-lett began belligerently
yelling to the RV owners that they should not speak with the
police. Nieves approached Bartlett to explain the situation,
but Bartlett was highly intoxicated and yelled at him to
leave. Rather than escalate the situation, Nieves left.
Bartlett disputes that account. According to Bartlett, he was
not drunk at that time and never yelled at Nieves. He claims
it was Nieves who became aggressive when Bartlett refused to
speak with him.
Several
minutes later, Bartlett saw Trooper Weight asking a minor
whether he and his underage friends had been drinking.
According to Weight, Bartlett approached in an aggressive
manner, stood between Weight and the teenager, and yelled
with slurred speech that Weight should not speak with the
minor. Weight claims that Bartlett then stepped very close to
him in a combative way, so Weight pushed him back. Sergeant
Nieves saw the confrontation and rushed over, arriving right
after Weight pushed Bartlett. Nieves immediately initiated an
arrest, and when Bartlett was slow to comply with his orders,
the officers forced him to the ground and threatened to tase
him.
Again,
Bartlett tells a different story. He denies being aggressive,
and claims that he stood close to Weight only in an effort to
speak over the loud background music. And he was slow to
comply with Nieves's orders, not because he was resisting
arrest, but because he did not want to aggravate a back
injury. After Bartlett was handcuffed, he claims that Nieves
said: "[B]et you wish you would have talked to me
now." 712 Fed.Appx. 613, 616 (CA9 2017).
The
officers took Bartlett to a holding tent, where he was
charged with disorderly conduct and resisting arrest. He had
sustained no injuries during the episode and was released a
few hours later.
B
The
State ultimately dismissed the criminal charges against
Bartlett, and Bartlett then sued the officers under 42 U.S.C.
§1983, which provides a cause of action for state
deprivations of federal rights. As relevant here, he claimed
that the officers violated his First Amendment rights by
arresting him in retaliation for his speech. The protected
speech, according to Bartlett, was his refusal to speak with
Nieves earlier in the evening and his intervention in
Weight's discussion with the underage partygoer. The
officers responded that they arrested Bartlett because he
interfered with an investigation and initiated a physical
confrontation with Weight. The District Court granted summary
judgment for the officers. The court determined that the
officers had probable cause to arrest Bartlett and held that
the existence of probable cause precluded Bart-lett's
First Amendment retaliatory arrest claim.
The
Ninth Circuit disagreed. 712 Fed.Appx. 613. Relying on its
prior decision in Ford v. Yakima, 706 F.3d 1188
(2013), the court held that a plaintiff can prevail on a
First Amendment retaliatory arrest claim even in the face of
probable cause for the arrest. According to the Ninth
Circuit, Bartlett needed to show only (1) that the
officers' conduct would "chill a person of ordinary
firmness from future First Amendment activity," and (2)
that he had advanced evidence that would "enable him
ultimately to prove that the officers' desire to chill
his speech was a but-for cause" of the arrest. 712 Fed.
Appx., at 616 (internal quotation marks omitted). The court
concluded that Bartlett had satisfied both requirements: A
retaliatory arrest is sufficiently chilling, and Bartlett had
presented enough evidence that his speech was a but-for cause
of the arrest. The only causal evidence relied on by the
court was Bart-lett's affidavit alleging that Sergeant
Nieves said "bet you wish you would have talked to me
now." If that allegation were true, the court reasoned,
a jury might conclude that the officers arrested Bartlett in
retaliation for his statements earlier that night.
The
officers petitioned for review in this Court, and we granted
certiorari. 585 U.S. (2018).
II
We are
asked to resolve whether probable cause to make an arrest
defeats a claim that the arrest was in retaliation for speech
protected by the First Amendment. We have considered this
issue twice in recent years. On the first occasion, we
ultimately left the question unanswered because we decided
the case on the alternative ground of qualified immunity. See
Reichle v. Howards, 566 U.S. 658 (2012). We took up
the question again last Term in Lozman v. Riviera
Beach, 585 U.S. (2018). Lozman involved unusual
circumstances in which the plaintiff was arrested pursuant to
an alleged "official municipal policy" of
retaliation. Id., at (slip op., at 11). Because
those facts were "far afield from the typical
retaliatory arrest claim," we reserved judgment on the
broader question presented and limited our holding to arrests
that result from official policies of retaliation.
Id., at (slip op., at 10). In such cases, we held,
probable cause does not categorically bar a plaintiff from
suing the municipality. Id., at - (slip op., at
11-12). We now take up the question once again, this time in
a more representative case.
A
"[A]s
a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory
actions" for engaging in protected speech. Hartman
v. Moore, 547 U.S. 250, 256 (2006). If an official takes
adverse action against someone based on that forbidden
motive, and "non-retaliatory grounds are in fact
insufficient to provoke the adverse consequences," the
injured person may generally seek relief by bringing a First
Amendment claim. Ibid. (citing Crawford-El v.
Britton, 523 U.S. 574, 593 (1998); Mt. Healthy City
Bd. of Ed. v. Doyle, 429 U.S. 274, 283-284 (1977)).
To
prevail on such a claim, a plaintiff must establish a
"causal connection" between the government
defendant's "retaliatory animus" and the
plaintiff 's "subsequent injury."
Hartman, 547 U.S., at 259. It is not enough to show
that an official acted with a retaliatory motive and that the
plaintiff was injured-the motive must cause the
injury. Specifically, it must be a "but-for" cause,
meaning that the adverse action against the plaintiff would
not have been taken absent the retaliatory motive.
Id., at 260 (recognizing that although it "may
be dishonorable to act with an unconstitutional motive,"
an official's "action colored by some degree of bad
motive does not amount to a constitutional tort if that
action would have been taken anyway").
For
example, in Mt. Healthy, a teacher claimed that a
school district refused to rehire him in retaliation for his
protected speech. We held that even if the teacher's
"protected conduct played a part, substantial or
otherwise, in [the] decision not to rehire," he was not
entitled to reinstatement "if the same decision would
have been reached" absent his protected speech. 429
U.S., at 285. Regardless of the motives of the school
district, we concluded that the First Amendment
"principle at stake is sufficiently vindicated if such
an employee is placed in no worse a position than if he had
not engaged in the [protected speech]." Id., at
285-286.
For a
number of retaliation claims, establishing the causal
connection between a defendant's animus and a plaintiff
's injury is straightforward. Indeed, some of our cases
in the public employment context "have simply taken the
evidence of the motive and the discharge as sufficient for a
circumstantial demonstration that the one caused the
other," shifting the burden to the defendant to show he
would have taken the challenged action even without the
impermissible motive. Hartman, 547 U.S., at 260
(citing Mt. Healthy, 429 U.S., at 287; Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 270, n. 21 (1977)). But the consideration of
causation is not so straightforward in other types of
retaliation cases.
In
Hartman, for example, we addressed retaliatory
prosecution cases, where "proving the link between the
defendant's retaliatory animus and the plaintiff 's
injury . . . 'is usually more complex than it is in other
retaliation cases.'" Lozman, 585 U.S., at
___ (slip op., at 8) (quoting Hartman, 547 U.S., at
261). Unlike most retaliation cases, in retaliatory
prosecution cases the official with the malicious motive does
not carry out the retaliatory action himself-the decision to
bring charges is instead made by a prosecutor, who is
generally immune from suit and whose decisions receive a
presumption of regularity. Lozman, 585 U.S., at ___
- ___ (slip op., at 8-9). Thus, even when an
officer's animus is clear, it does not necessarily show
that the officer "induced the action of a prosecutor who
would not have pressed charges otherwise."
Hartman, 547 U.S., at 263.
To
account for this "problem of causation" in
retaliatory prosecution claims, Hartman adopted the
requirement that plaintiffs plead and prove the absence of
probable cause for the underlying criminal charge.
Ibid.; see id., at 265-266. As
Hartman explained, that showing provides a
"distinct body of highly valuable circumstantial
evidence" that is "apt to prove or disprove"
whether retaliatory animus actually caused the injury:
"Demonstrating that there was no probable cause for the
underlying criminal charge will tend to reinforce the
retaliation evidence and show that retaliation was the
but-for basis for instigating the prosecution, while
establishing the existence of probable cause will suggest
that prosecution would have occurred even without a
retaliatory motive." Id., at 261. Requiring
plaintiffs to plead and prove the absence of probable cause
made sense, we reasoned, because the existence of probable
cause will be at issue in "practically all"
retaliatory prosecution cases, has "high probative
force," and thus "can be made mandatory with little
or no added cost." Id., at 265. Moreover,
imposing that burden on plaintiffs was necessary to suspend
the presumption of regularity underlying the prosecutor's
charging decision- a presumption we "do not lightly
discard." Id., at 263; see also id.,
at 265. Thus, Hartman requires plaintiffs
in retaliatory prosecution cases to show more than the
subjective animus of an officer and a subsequent injury;
plaintiffs must also prove as a threshold matter that the
decision to press charges was objectively unreasonable
because it was not supported by probable cause.
B
Officers
Nieves and Weight argue that the same no-probable-cause
requirement should apply to First Amendment retaliatory
arrest claims. Their primary contention is that retaliatory
arrest claims involve causal complexities akin to those we
identified in Hartman, and thus warrant the same
requirement that plaintiffs plead and prove the absence of
probable cause. Brief for Petitioners 20-30.
As a
general matter, we agree. As we recognized in
Reichle and reaffirmed in Lozman,
retaliatory arrest claims face some of the same challenges we
identified in Hartman: Like retaliatory prosecution
cases, "retaliatory arrest cases also present a tenuous
causal connection between the defendant's alleged animus
and the plaintiff 's injury." Reichle, 566
U.S., at 668. The causal inquiry is complex because protected
speech is often a "wholly legitimate consideration"
for officers when deciding whether to make an arrest.
Ibid.; Lozman, 585 U.S., at ___ (slip op.,
at 9). Officers frequently must make "split-second
judgments" when deciding whether to arrest, and the
content and manner of a suspect's speech may convey vital
infor-mation-for example, if he is "ready to
cooperate" or rather "present[s] a continuing
threat." Id., at (slip op., at 9) (citing
District of Columbia v. Wesby, 583 U.S.___, ___
(2018) (slip op., at 10) ("suspect's untruthful and
evasive answers to police questioning could support probable
cause")). Indeed, that kind of assessment happened in
this case. The officers testified that they perceived
Bartlett to be a threat based on a combination of the content
and tone of his speech, his combative posture, and his
apparent intoxication.
In
addition, "[l]ike retaliatory prosecution cases,
evidence of the presence or absence of probable cause for the
arrest will be available in virtually every retaliatory
arrest case." Reichle, 566 U.S., at 668. And
because probable cause speaks to the objective reasonableness
of an arrest, see Ashcroft v. al-Kidd, 563 U.S. 731,
736 (2011), its absence will-as in retaliatory prosecution
cases- generally provide weighty evidence that the
officer's animus caused the arrest, whereas the presence
of probable cause will suggest the opposite.
To be
sure, Reichle and Lozman also recognized
that the two claims give rise to complex causal inquiries for
somewhat different reasons. Unlike retaliatory prosecution
cases, retaliatory arrest cases do not implicate the
presumption of prosecutorial regularity or necessarily
involve multiple government actors (although this case did).
Reichle, 566 U.S., at 668-669; Lozman, 585
U.S., at (slip op., at 10). But regardless of the source of
the causal complexity, the ultimate problem remains the same.
For both claims, it is particularly difficult to determine
whether the adverse government action was caused by the
officer's malice or the plaintiff 's potentially
criminal conduct. See id., at ___ (slip op., at 9)
(referring to "the complexity of proving (or disproving)
causation" in retaliatory arrest cases). Because of the
"close relationship" between the two claims,
Reichle, 566 U.S., at 667, their related causal
challenge should lead to the same solution: The plaintiff
pressing a retaliatory arrest claim must plead and prove the
absence of probable cause for the arrest.
Bartlett,
in defending the decision below, argues that the
"causation in retaliatory-arrest cases is not inherently
complex" because the "factfinder simply must
determine whether the officer intended to punish the
plaintiff for the plaintiff 's protected speech."
Brief for Respondent 36-37; see also post, at 5
(Sotomayor, J., dissenting). That approach fails to account
for the fact that protected speech is often a legitimate
consideration when deciding whether to make an arrest, and
disregards the resulting causal complexity previously
recognized by this Court. See Reichle, 566 U.S., at
668; Lozman, 585 U.S., at (slip op., at 9).
Bartlett's
approach dismisses the need for any threshold showing, moving
directly to consideration of the subjective intent of the
officers. In the Fourth Amendment context, however, "we
have almost uniformly rejected invitations to probe
subjective intent." al-Kidd, 563 U.S., at 737;
see also Kentucky v. King, 563 U.S. 452, 464 (2011)
("Legal tests based on reasonableness are generally
objective, and this Court has long taken the view that
evenhanded law enforcement is best achieved by the
application of objective standards of conduct, rather than
standards that depend upon the subjective state of mind of
the officer." (internal quotation marks omitted)).
Police officers conduct approximately 29, 000 arrests every
day-a dangerous task that requires making quick decisions in
"circumstances that are tense, uncertain, and rapidly
evolving." Graham v. Connor, 490 U.S. 386, 397
(1989). To ensure that officers may go about their work
without undue apprehension of being sued, we generally review
their conduct under objective standards of reasonableness.
See Atwater v. Lago Vista, 532 U.S. 318, 351, and n.
22 (2001); Harlow v. Fitzgerald, 457 U.S. 800,
814-819 (1982). Thus, when reviewing an arrest, we ask
"whether the circumstances, viewed objectively, justify
[the challenged] action," and if so, conclude "that
action was reasonable whatever the subjective intent
motivating the relevant officials." al-Kidd,
563 U.S., at 736 (internal quotation marks omitted). A
particular officer's state of mind is simply
"irrelevant," and it provides "no basis for
invalidating an arrest." Devenpeck v. Alford,
543 U.S. 146, 153, 155 (2004).
Bartlett's
purely subjective approach would undermine that precedent by
allowing even doubtful retaliatory arrest suits to proceed
based solely on allegations about an arresting officer's
mental state. See Lozman, 585 U.S., at ___ (slip
op., at 9). Because a state of mind is "easy to allege
and hard to disprove," Crawford-El, 523 U.S.,
at 585, a subjective inquiry would threaten to set off
"broad-ranging discovery" in which "there
often is no clear end to the relevant evidence,"
Harlow, 457 U.S., at 817. As a result, policing
certain events like an unruly protest would pose overwhelming
litigation risks. Any inartful turn of phrase or perceived
slight during a legitimate arrest could land an officer in
years of litigation. Bartlett's standard would thus
"dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of their
duties." Gregoire v. Biddle, 177 F.2d 579, 581
(CA2 1949) (Learned Hand, C. J.). It would also compromise
evenhanded application of the law by making the
constitutionality of an arrest "vary from place to place
and from time to time" depending on the personal motives
of individual officers. Devenpeck, 543 U.S., at 154.
Yet another "predictable consequence" of such a
rule is that officers would simply minimize their
communication during arrests to avoid having their words
scrutinized for hints of improper motive-a result that would
leave everyone worse off. Id., at 155.
Adopting
Hartman's no-probable-cause rule in this closely
related context addresses those familiar concerns. Absent
such a showing, a retaliatory arrest claim fails. But if the
plaintiff establishes the absence of probable cause,
"then the Mt. Healthy test governs: The
plaintiff must show that the retaliation was a substantial or
motivating factor behind the [arrest], and, if that showing
is made, the defendant can prevail only by showing that the
[arrest] would have been initiated without respect to
retaliation." Lozman, 585 U.S., at ___ (slip
op., at 8) (citing Hartman, 547 U.S., at
265-266).[1]
C
Our
conclusion is confirmed by the common law approach to similar
tort claims. When defining the contours of a claim under
§1983, we look to "common-law principles that were
well settled at the time of its enactment." Ka-lina
v. Fletcher, 522 U.S. 118, 123 (1997); Manuel v.
Joliet, 580 U.S. ___, ___ (2017) (slip op., at 12)
...