Nieves v. Bartlett

What Happened

Russell Bartlett attended “Arctic Man,” a raucous winter sports festival in remote Alaska that draws about 10,000 people for high-speed races, bonfires, and parties in the frozen mountains. The event is infamous for heavy drinking and poses serious challenges for law enforcement.

During the festival, Sergeant Luis Nieves was talking with a group of attendees when Bartlett — who appeared intoxicated — started shouting at them not to talk to the police. Nieves approached, but Bartlett yelled at him to leave. Rather than escalate, Nieves walked away. Bartlett disputes this account, claiming he wasn’t drunk and didn’t yell.

Minutes later, Trooper Bryce Weight was questioning a minor when Bartlett approached aggressively, stood between Weight and the teenager, and yelled with slurred speech that Weight shouldn’t be talking to the kid. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply — he says because of a back injury — the officers forced him to the ground. After Bartlett was handcuffed, he claims Nieves said: “Bet you wish you would have talked to me now.”

Bartlett sued under § 1983, alleging the officers arrested him in retaliation for his First Amendment–protected speech — specifically, his refusal to speak with Nieves and his intervention in Weight’s conversation. The District Court granted summary judgment for the officers because probable cause existed for the arrest. The Ninth Circuit reversed, holding that probable cause doesn’t defeat a retaliatory arrest claim.

What the Court Decided

Chief Justice Roberts, writing for the majority, reversed the Ninth Circuit and held that the existence of probable cause generally defeats a First Amendment retaliatory arrest claim. The Court drew on its prior decision in Hartman v. Moore, which imposed a similar no-probable-cause requirement in retaliatory prosecution cases.

The reasoning was rooted in causal complexity. In the arrest context, protected speech is often a “wholly legitimate consideration” — an officer who hears someone shouting may have both a retaliatory motive and a legitimate basis for arrest. When probable cause exists, it becomes extremely difficult to determine whether the arrest was caused by the officer’s animus or by the suspect’s criminal conduct. Probable cause provides strong evidence that the arrest was justified regardless of the officer’s subjective motive.

The Court also emphasized its longstanding reluctance to probe officers’ subjective intent in the Fourth Amendment context. A purely subjective approach would “dampen the ardor” of officers, compromise evenhanded application of the law, and “encourage officers to minimize communication during arrests to avoid having their words scrutinized for hints of improper motive.” 587 U.S. at 404–405.

However, the Court carved out a narrow exception. Because modern law authorizes warrantless arrests for a vast range of minor offenses — far broader than at common law — a rigid probable-cause rule could allow officers to exploit the arrest power to suppress speech. So the Court held that the no-probable-cause requirement does not apply when a plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 587 U.S. at 407. This is essentially a selective enforcement theory: if the police routinely let similar conduct slide for everyone except the person engaged in protected speech, probable cause doesn’t save the arrest.

What It Means in Practice

Nieves makes retaliatory arrest claims extremely difficult. In most encounters where an arrest occurs, the officer will have at least arguable probable cause for some offense — disorderly conduct, obstruction, resisting arrest, or a minor traffic violation. Under Nieves, that probable cause creates a near-absolute bar to a retaliatory arrest claim, even if the officer’s real motive was to punish constitutionally protected speech.

The narrow exception — showing that similarly situated people not engaged in protected speech weren’t arrested — is hard to satisfy. You need objective evidence of differential treatment, and the comparison must be to people in genuinely similar circumstances, not just people who committed the same technical violation.

This ruling is particularly significant for protest-related arrests. Officers routinely have probable cause to arrest protesters for minor offenses (blocking traffic, noise violations, failure to disperse). Under Nieves, even if the real reason for the arrest was to silence the protest, the claim fails if probable cause existed.

How You Can Use It

Nieves is mainly a defense case, but the exception matters:

• Invoke the exception. If the police tolerate certain conduct from everyone except people exercising their First Amendment rights, gather evidence of that differential treatment. Show that others did the same thing without being arrested.
• Key quote for the exception: “The no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 587 U.S. at 407.
• Challenge probable cause directly. If you can show there was no probable cause at all, Nieves’s general rule doesn’t apply and you can proceed on the merits of the retaliation claim.
• Retaliatory prosecution is different. If the retaliation took the form of prosecution rather than arrest, Nieves doesn’t govern — Hartman v. Moore does, and that case has its own framework.
• Template: “While Nieves v. Bartlett, 587 U.S. 391 (2019), generally requires absence of probable cause, Plaintiff’s claim falls within the recognized exception because Plaintiff presents objective evidence that similarly situated individuals not engaged in protected speech were not arrested for [same conduct]. [Cite evidence of differential treatment.]”

How It Can Be Used Against You

Nieves is a formidable barrier:

• “Probable cause existed.” If the officer can articulate probable cause for any offense — even a minor one unrelated to the officer’s real motivation — the retaliatory arrest claim is likely dead under Nieves.
• The comparison problem. The defense will argue that no adequate comparators exist — that the plaintiff’s situation was unique, that others weren’t in “otherwise similar” circumstances, or that differences in behavior justified different treatment.
• Subjective motive is irrelevant. Even if the officer said something damning — like Nieves’s alleged “bet you wish you would have talked to me now” — that statement alone doesn’t defeat probable cause. The inquiry is objective.

How to counter: If probable cause is marginal, challenge it head-on. Argue that the offense alleged by the officer was fabricated or that the elements weren’t met. If you’re arguing the exception, build a record of similarly situated people who weren’t arrested — through records requests, witness testimony, and data on arrest patterns. And don’t abandon other claims: even if the retaliatory arrest claim fails under Nieves, you may have viable excessive force, unlawful detention, or equal protection claims that aren’t subject to the probable-cause bar.