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What is retaliatory arrest? Which story will the court believe?

Oct 7, 2019 | Criminal law

In the last Supreme Court term there were few criminal cases. One that did get some attention involved retaliatory arrest. This is when an officer retaliates against someone who is exercising their First Amendment freedom of speech. It also provides a cautionary tale about the subjective nature of memory and experience.


Challenging a law enforcement officer’s version of events can be tough following an arrest and criminal charge. One way to level the playing field is to have an experienced defense attorney tell your side of the story. Keep reading this post to learn more about the Supreme Court case.

Officer versus an Alaska sports festival attendee

From the statement of the facts, you can already get a feel for the court’s bent. The narrative of the account seems to be giving law enforcement more credibility. This happens all the time in criminal cases.

The police officer, Luis Nieves, claimed that Russell Bartlett, who didn’t want to talk to him, was drunken and disorderly. The officer claimed the Bartlett yelled at him. Bartlett challenged that, saying he hadn’t been drinking and did not yell. Later, when another police officer, Bryce Weight, was talking to a minor, Bartlett interjected himself.

What happened next? The officer said Bartlett approached in a threatening manner, yelling and slurring his speech. Bartlett denied being aggressive and mentioned a back injury preventing him from immediately complying with the officer’s demands. Regardless, Bartlett was pushed, forced to the ground and arrested. Once handcuffed, Bartlett remembered Officer Nieves saying, “bet you wish you would have talked to me now.”

Section 1983 claims

This case goes beyond the criminal matter and was brought in civil court by Bartlett. When a government official violates the constitutional rights of an individual, that person is entitled to damages.

The courts disagreed about what exactly Bartlett was arrested for – was it for not talking to the police and telling another attendee not to talk, or was it drunken and disorderly conduct? This is basically what the decision hinges on. If law enforcement can point to a violation of the law that supports an arrest, then the claim for a civil rights violation fails (as Bartlett’s did). The majority leaves open a tiny window for those who can bring objective evidence that others engaging in the same protected speech were not arrested. This is a high bar.

The dissent in the case is troubling. Justice Gorsuch points out how a police officer could effectively shield himself or herself from liability by claiming an arrest was related to a crime, any crime. State legislatures provide many to choose from.

In this case, if the court had sided with Bartlett’s version of what occurred, the outcome might have been different. This is a cautionary tale about the importance of framing facts and telling a believable story. Many would probably find it believable that a festival attendee was drunk. What if he was in his mid-40s or 50s, claimed a back injury, had graduated from AA with decades of sobriety or was a wiry guy with a smaller stature? Were any unique facts about Bartlett that would have rendered his story more believable left out?

Credibility determinations affect outcomes whether in criminal or civil court. Getting in touch with an experienced criminal defense attorney right away is the best way to get ahead of the prosecution’s narrative, and is often the first step to building a strong, credible defense.