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06-01-2019, 03:40 AM
The Supreme Court Just Made It Easier for Police to Arrest You for Filming Them (https://slate.com/news-and-politics/2019/05/supreme-court-nieves-police-abuse-case.amp).
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.
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.
Things were clearly headed in this direction during oral argument last fall, where the justices’ questions suggested that they viewed the case as an opportunity to decide what rules would be best for society. Justice Stephen Breyer made no secret of the fact that he was looking for a “compromise” that would sacrifice some First Amendment rights to limit the number of lawsuits against the police. For an hour, the justices debated the merits of various approaches like legislators crafting a bill. Missing was any substantial discussion of the meaning of the First Amendment or the text and history of Section 1983.
In response, the plaintiff’s counsel had to remind the justices of a truism they have often repeated: If a law produces socially undesirable results, it’s the job of Congress—not the court—to amend that law. This prompted a stunning but revealing question from Chief Justice John Roberts: “What law is Congress supposed to change?” Amid all the policy debate, it seemed the chief had completely forgotten this case was about interpreting a federal statute.
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.
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.
Things were clearly headed in this direction during oral argument last fall, where the justices’ questions suggested that they viewed the case as an opportunity to decide what rules would be best for society. Justice Stephen Breyer made no secret of the fact that he was looking for a “compromise” that would sacrifice some First Amendment rights to limit the number of lawsuits against the police. For an hour, the justices debated the merits of various approaches like legislators crafting a bill. Missing was any substantial discussion of the meaning of the First Amendment or the text and history of Section 1983.
In response, the plaintiff’s counsel had to remind the justices of a truism they have often repeated: If a law produces socially undesirable results, it’s the job of Congress—not the court—to amend that law. This prompted a stunning but revealing question from Chief Justice John Roberts: “What law is Congress supposed to change?” Amid all the policy debate, it seemed the chief had completely forgotten this case was about interpreting a federal statute.