Municipal Liability, Publications

Probable Cause Existed and Plaintiff’s Retaliatory Arrest Claim Against Two Officers Gets Tossed.

August 22, 2019

Overview:  In 2014, plaintiff was arrested during “Arctic Man,” a week-long winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska.  The event is known for both extreme sports, as well as extreme alcohol consumption. Police officers spend most of the weekend responding to snowmobile crashes, breaking up fights and policing underage drinking. With Paxson being such a remote location, Alaska flies in additional officers from around the state to assist local policeman at the festival.

On the last night of Arctic Man, officer #1 had asked some partiers to move their beer keg inside of their RV so as to limit consumption by minors.  Plaintiff, standing nearby, told the RV owners that they did not have to speak to officer #1. Officer #1 approached plaintiff and explained the situation, but plaintiff belligerently yelled at him to leave.  In an attempt to deescalate the situation, officer #1 left.

Several minutes later, plaintiff observed a different officer, officer #2, asking a group of teenagers whether they were drinking underage.  Plaintiff positioned himself between officer #2 and the minor and yelled in slurred speech that officer #2 should not speak to the minor. Officer #2 claimed that plaintiff subsequently stepped toward him in a “combative way”, which led officer #2 to push the plaintiff back. Officer #1 observed the confrontation between officer #2 and the plaintiff and ran over to assist.  Officer #1 then initiated an arrest of the plaintiff who had to be forced to the ground in order to be apprehended.

Plaintiff denied that he was aggressive, and claimed that he stood close to officer #2 so that he could speak to him over the loud music. Plaintiff also claimed that he was slow to comply with the arrest because he didn’t want to aggravate an existing back injury.  Plaintiff was charged with disorderly conduct and resisting arrest. He sustained no injuries and was released a few hours later.

After the state dismissed criminal charges against him, plaintiff sued the officers under 42 U.S. C. §1983 claiming that his First Amendment rights were violated when the officers arrested him in retaliation for his speech.  The district court granted summary judgment in favor of the officers finding that the existence of probable cause precluded plaintiff’s First Amendment retaliatory arrest claim.  On appeal, the Ninth Circuit disagreed and overturned the district court’s ruling.  The officers then petitioned the U.S. Supreme Court to review the case.

Outcome: The Supreme Court reversed and remanded the case, finding that in order to succeed on a claim of retaliatory arrest plaintiff must first establish the absence of probable cause for the underlying arrest.   In this instance, the court reasoned that at the time officer #1 initiated the arrest of plaintiff, he knew that plaintiff had been drinking, had yelled at officer #2 and was standing close to officer #2.  The court found that a reasonable officer in officer #1’s position would likely conclude that plaintiff’s actions indicated that he was challenging and provoking officer #2 and thus probable cause existed for his arrest.  Because there was probable cause to arrest plaintiff, his retaliatory arrest claim failed as a matter of law.

To view the complete appellate ruling, click here.

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