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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, January 31, 2019

Arctic Man Goes to SCOTUS

As extreme sports go, Arctic Man must be a trip. To paraphrase Chief Justice John Roberts, when you put 10,000 mostly drunk people in the middle of nowhere, 8 cops are just not enough to keep the peace.

We here at the Law Blogger would add: the object of the event is to determine who can ski the fastest being pulled behind a snowmobile. Physical limitations and judgment come into play from the outset, to be sure.

Nevertheless, that was the situation in central Alaska that led to Nieves v Bartlett which has been winding its way to the SCOTUS for the past 4-years. The state troopers perhaps best set the stage in their petition for certiorari:
Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event.
On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.
Trooper Nieves asked Bartlett to identify himself and requested that he move a tapped keg inside his tent. Instead, Bartlett refused the trooper's commands exhibiting belligerent behavior toward the troopers.

In front of the troopers, Bartlett instructed the minor not to answer their questions; no parents or guardians of the boy were anywhere to be located.

Bartlett's conduct resulted in resisting arrest and disorderly person charges. When his criminal charges were dismissed, Bartlett filed suit against the troopers.

His separate civil rights law suit was filed in a federal court under 42 USC 1983; now, the case has made it all the way to the SCOTUS. Oral arguments were presented last November; a decision will be issued this spring.

This case is the latest in a series of what is known as "contempt of cop" or "retaliatory arrest" cases: an arrest based on an officer's perceived slight, with the occasional emphasis on the content of the accused's speech. The collateral civil litigation in Arctic Man claims that the subject of such an arrest was merely exercising his right to free speech under the First Amendment to the United States Constitution. To arrest someone under such circumstances, the claim goes, violates the speaker's fundamental right to free speech and thus constitutes an illegal seizure under the Constitution.

On the other hand, the petitioners, Alaska State Troopers, assert an age-old common law principle that law enforcement officers are immune from civil liability wherever probable cause to arrest exists. The troopers argue they had probable cause to arrest Bartlett on multiple charges thus, they are immune from his civil rights law suit.

The civil rights law at issue in the case, 42 USC 1983, provides a cause of action where a state actor, under the color of state law, subject a person to the deprivation of any right provided by the Constitution; in this case, the First Amendment and its attendant right to free speech.

How far can you go in your speech when interacting with a peace officer? Can you insult, challenge, disparage, offend, mischaracterize, or demean the officer?

Not to put too fine a point on it, but the precise issue argued at the SCOTUS was whether Bartlett, the declarant, had the affirmative duty in his civil lawsuit to demonstrate that the troopers lacked probable cause to make an arrest. Which party shoulders the burden of evidence production affects the trajectory of the case.

Alaska argues that under the civil rights statute, Bartlett must prove a negative [i.e. that no probable cause existed allowing the officers to intervene] or he must prove his arrest was executed pursuant to a municipal policy of retaliation.

The Troopers' reply brief frames the issue posed in this case, facing officers each and every day as they go about fulfilling their duties:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.
Of course, the officer must have the power to exercise his professional discretion to make an arrest in light of probable cause that a crime is being committed. Our safe society depends on this basic law enforcement power.

Against this tapestry is also the backdrop of the Roberts Court's vigorous protection of First Amendment freedom of speech, and its contrasting penchant to defer to law enforcement's discretion of how they do their job, assuming probable cause exists to intervene with the citizenry.

We here at the Law Blogger will anxiously await the Supreme Court's decision.

Post #623

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