First Amendment

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

In American Legion v. American Humanist Society the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.

The State and Local Legal Center (SLLC) amicus brief argues the Supreme Court should rule the challengers have no standing to bring this case. The SLLC also argues the cross doesn’t violate the Establishment Clause and that the Court should come up with a single, clear test to evaluate the constitutionality of public displays.  

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

In Maryland-National Capital Park and Planning Commission v. American Humanist Association the Supreme Court will decide whether a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I.  

Prince George’s County citizens and an American Legion Post raised money to build the monument. In 1925 it was dedicated at a Christian prayer service. Over the years Christian religious services have been held at the cross.

In 1961 the Maryland-National Capital Park and Planning Commission took title of the land and the cross because it is located in the middle of a busy traffic median. The cross is part of a park honoring veterans. Other monuments are located anywhere from 200 feet to a half-a-mile from the cross. None are taller than 10 feet.

The Supreme Court decides numerous difficult cases each term. It may be surprising that no issue has vexed the Court like whether probable cause to arrest someone means they can’t bring a First Amendment retaliation case. In Nieves v. Bartlett the State and Local Legal Center (SLLC) argues in an amicus brief (for the third time) that probable cause defeats First Amendment retaliation claims.   

Russell Bartlett was attending Arctic Man, an Alaskan snowmobile race, when he declined to talk to Police officer Luis Nieves who was patrolling the large outdoor party. Officer Nieves later observed Bartlett yelling at a separate officer, Bryce Weight, and Weight pushing Bartlett away. Believing Bartlett posed a danger to Officer Weight, Officer Nieves arrested Bartlett. Bartlett alleges that Nieves said “bet you wish you had talked to me now” in the process of the arrest.

Bartlett sued Officer Nieves claiming Nieves arrested him in retaliation for his refusal to initially speak to Nieves in violation of the First Amendment. The district concluded there was probable cause to arrest Bartlett. All federal circuit courts to decide this issue except the Ninth Circuit have held that to bring a First Amendment retaliatory arrest case plaintiffs must be able to prove the absence of probable cause to arrest them, which Bartlett could do not in this case.

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