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Supreme Court Makes Retaliatory Arrests Easier for Police

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Imagine that you are exercising your right to free speech, and that speech happens to be something that is critical of law enforcement. Shortly after, you are mysteriously arrested, for a charge that you know is false. It becomes clear that your arrest was not because of anything you did that was illegal, but rather, was just retaliation for your legally speaking out against the police.

Can you sue for wrongful arrest? The United States Supreme Court just this summer spoke out on this very question.

Man Arrested for Refusing to Speak

The case began when a man in Alaska was attending a music festival. He was, according to the facts of the case, a bit intoxicated, and as the police began questioning festival goers, the man began informing the people being questioned that they did not have to speak to the interrogating police. He also refused to speak to the police.

The man was arrested. Officers claimed that the man had started to approach them and that they felt threatened, which is why they arrested him. The man alleged that as he was being arrested, the officer said “bet you wish you would have talked to me now,” an indication to the man that the arrest was just retaliation by police for refusing to speak, and for informing others of their right not to speak to the police.

Lawsuit for Retaliatory Arrest

The charges against the man were dismissed, and he sued the police for violation of his civil rights. The lower court found that the police had probable cause to initially arrest the man, so they dismissed his case. He appealed the case all the way to the Supreme Court.

The Supreme Court unfortunately appeared to make it easier for officers to retaliate. The court said that so long as there is probable cause for the arrest—a very lenient and relatively easy standard to prove—then there can be no retaliatory arrest. Only if there is no probable cause does the question of the officer’s subjective motives (such as retaliation) become an issue.

The Court thus put in place a test that requires victims of retaliatory arrest, or those who feel that they are being punished for exercising their free speech rights, to show no probable cause for the arrest. The only exception, according to the Court, was where there is evidence that other people, who were doing the same or similar things as the victim, were present but were not arrested.

Thus, if police overlook people that they would have probable cause to arrest, but they arrest a victim for doing the same thing as those they overlooked, the victim could still bring a suit for wrongful arrest.

First Amendment Rights Are Threatened by the Ruling

The case is very troubling, as some justices pointed out, as it opens the door for police to use criminal laws as a tool to silence first amendment offenders. In fact, because probable cause requires less than an actual, proven violation of criminal law, it makes it very easy for officers to silence critics validly exercising their first amendment rights.

Have you been a victim of wrongful or retaliatory arrest? Contact the Alabama police misconduct attorneys at Lasseter Law Firm today to discuss whether you have a cause of action for damages.

Resource:

scholar.google.com/scholar_case?case=14343575767344432456&hl=en&as_sdt=6&as_vis=1&oi=scholarr

https://www.lasseterlaw.com/police-misconduct-is-often-protected-by-qualified-immunity/

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