Supreme Court Hears Case on Arrests Motivated by Politics

In a lively Supreme Court argument on Wednesday, the justices returned to a thorny question that has engaged them at least three other times: When can people sue over arrests they say were motivated by retaliation for criticism of the government?

The general rule is that the existence of probable cause for the arrest is enough to bar lawsuits claiming retaliation in violation of the First Amendment.

Justice Neil M. Gorsuch said that was a recipe for abuse, allowing for politically motivated arrests. “How many statutes are there on the books these days, many of which are hardly ever enforced?” he asked. “Last I read, there were over 300,000 federal crimes, counting statutes and regulations.”

“They can all sit there unused,” he added, “except for one person who alleges that I was the only person in America who’s ever been prosecuted for this because I dared express a view protected by the First Amendment.”

In the court’s last encounter with the question, in Nieves v. Bartlett in 2019, Chief Justice John G. Roberts Jr.’s majority opinion recognized a narrow exception, using the example of jaywalking. “At many intersections, jaywalking is endemic but rarely results in arrest,” he wrote, adding that there may be circumstances in which someone arrested for that crime could sue for retaliation.

“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” he wrote, “it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.”