Choose Your Words Carefully: Reimagining Retaliatory Arrest After Nieves v. Bartlett

By Ryan Hor

In the summer of 2020, the United States experienced potentially its largest ever social movement in the protests against racial inequality. Predictably, protestors clashed with law enforcement officers, often leading to arrests. Arrested individuals could bring § 1983 retaliatory arrest claims alleging that the officers deprived them of their First Amendment right to free speech. Such claims underline the tension between two vital interests: free speech and law enforcement effectiveness.

In 2019, the U.S. Supreme Court decided Nieves v. Bartlett, which crafted a new framework for retaliatory arrest claims that consequently diminished a plaintiff’s chance to prevail and recover damages. The Court held that, aside from a narrow exception, the presence of probable cause would extinguish the plaintiff’s claim. Rather than striking a balance between the two interests, the Court heavily tipped the scale in favor of law enforcement.

Challenging the Court’s current position, this Note examines prior § 1983 retaliation decisions and concludes that a more appropriate framework would eradicate the probable cause standard and instead permit introduction of evidence of an officer’s subjective mindset. Further, to overcome the causal complexity inherent in retaliatory arrest claims, this Note advocates for the addition of a proximate cause requirement, such that the interests of both parties can be adequately balanced. Ultimately, this new framework provides the opportunity for both the plaintiff and the law enforcement officer to litigate about the officer’s subjective motivation surrounding the arrest.