On The Front Lines
U.S. Supreme Court Upholds Arrest Over ‘Contempt of Cop’ Charge, Limits Right to Challenge Police Use of Retaliatory Arrests to Punish Speech
WASHINGTON, DC — In a setback to First Amendment rights, the U.S. Supreme Court has issued a ruling protecting police from lawsuits by persons arrested on bogus “contempt of cop” charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that result from lawful First Amendment activities (filming police, asking a question of police, refusing to speak with police). In Nieves v. Bartlett, the Court ruled 6-3 to dismiss the case of Russell Bartlett, an Alaska resident who was arrested after he refused to be interrogated by police and intervened after police attempted to question other people. Although the Court recognized that people have a right to be free from a retaliatory arrest over lawful First Amendment activities, it ruled that if police have probable cause for the arrest, the person cannot sue for a free speech violation unless they can show that someone else was not arrested for the same actions.
Filing an amicus brief in Nieves, The Rutherford Institute warned that overcriminalization makes it easy for police to weaponize the legal code in order to retaliate against individuals they perceive are challenging their authority. Justice Neil Gorsuch echoed this warning in his dissent: “History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’”
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 the Nieves amicus brief. 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. While at a campsite party, Bartlett exercised his First Amendment right to refrain from speaking with a state trooper who was monitoring the event for underage alcohol consumption. Bartlett later intervened after observing another Trooper questioning a fellow camper in what he believed was an improper manner. At one point, one of the troopers reportedly caused Bartlett to stumble, then forced him to the ground, threatened to tase him if he resisted, and arrested him for disorderly conduct and resisting arrest. The charges were later dismissed. Bartlett sued, asserting that he was arrested in retaliation for challenging the Troopers’ authority.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated.