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On The Front Lines

Court Watch: Citing Bogus ‘Contempt of Cop’ Charges, Rutherford Institute Challenges Police Use of Retaliatory Arrests to Punish Speech

WASHINGTON, DC  —The Rutherford Institute is challenging bogus “contempt of cop” charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that empower police to penalize and arrest individuals for engaging in lawful First Amendment activities (filming police, asking a question of police, refusing to speak with police). 

Nieves v. Bartlett involves a legal challenge by an Alaska resident who was arrested, allegedly in retaliation for refusing to be interrogated by police and intervening after police attempted to question other people. Weighing in before the U.S. Supreme Court in Nieves v. Bartlett, Rutherford Institute attorneys warn that overcriminalization, which renders all Americans unknowingly guilty of violating at least three laws a day, makes it all too easy for police to weaponize the legal code in order to retaliate against individuals perceived as challenging police authority.

Attorneys Erin Glenn Busby and Lisa R. Eskow of the Supreme Court Clinic at the University of Texas School of Law assisted the Institute in presenting the arguments in Nieves. For further information, see The Rutherford Institute’s “Constitutional Q&A: Rules of Engagement for Interacting with Police.”

“Increasingly, Americans are being arrested and charged with bogus ‘contempt of cop’ charges (otherwise known as asserting your constitutional rights) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers that be,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “This case is a yet another reminder that in the American police state, ‘we the people’ are at the mercy of police who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect.’”

In 2014, Russell Bartlett camped out with friends at Arctic Man, a multi-day annual event in the Hoodoo Mountains of Alaska that features snowmobiling and ski races and attracts tens of thousands of people. On the final night of Arctic Man, Bartlett attended a party at a neighboring campsite. While at this party, Bartlett was approached by Alaska State Trooper Luis Nieves, who was monitoring the Arctic Man event for underage alcohol consumption. Nieves approached Bartlett, who had consumed two to three beers before attending the party, tapped him on the shoulder and asked if he could speak with Bartlett. Bartlett asked Nieves “What for?” After further questioning, Bartlett exercised his First Amendment right to refrain from speaking and informed Nieves that he did not want to speak with him. Nieves walked away, although he considered remaining to see if Bartlett would become disorderly. Bartlett later observed another Trooper questioning a fellow camper and approached the pair, believing the questioning to be improper. Just as Nieves returned, the second Trooper stepped toward Bartlett and shoved him, causing him to stumble. The Troopers then forced Bartlett to the ground and threatened to taser him if he resisted. Bartlett was arrested for disorderly conduct and resisting arrest, with Nieves allegedly taunting Bartlett, “Bet you wish you would have talked with me now.” The charges were later dismissed. Bartlett sued the Troopers, asserting that he was arrested in retaliation for not speaking to Nieves and challenging the Troopers’ authority. The district court ruled that police had probable cause for the arrest. On appeal, the appeals court held that persons have a right to be free from an arrest that is in retaliation for exercising their freedom of speech, even if the arrest is supported by probable cause.

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