Nieves v. Bartlett (17-1174)

argument 17-1174

Nieves v. Bartlett

Supreme Court of the United States 1h 1m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal issue in Nieves v. Bartlett and why does it matter?

John G. Roberts 0:00

We'll hear argument next uh this morning in case seventeen eleven seventy four, Nieves versus Bartlett. Mr Borgazon.

Mr. Borgagson 0:10

Mr Chief Justice, and may it please the court. This case shows why retaliatory arrest claims should be governed by the well-grounded common law rule that the existence of pre uh uh probable cause would protect against liability for enforcing the criminal law. First, these uh determining causation in these claims is especially difficult for the reasons the court recognized in Lozman. And second, the law's tools for filtering out speculative claims and giving officers a margin for. error error don't work well in these cases. And the court doesn't want to rule. where an officer can be hailed into court on any routine arrest and forced to defend the purity of his motives, however reasonable his actions.

Mr. Borgagson 0:51

Nor should the court want a rule that gives officers a reason to hesitate in situations where they should be able to act decisively. I want to start with the point about complexity because I believe this case has all of the elements of the court identified in Losman. One, uh speech can be a valid consideration for the officers in deciding whether to effectuate an arrest.

Elena Kagan 1:12

Why doesn't qualified immunity take care of that? If if if in fact a speech uh by its nature is disruptive or otherwise interferes with the actions of the police officer. That would give them qualified immunity, whether there was probable cause or not.

Mr. Borgagson 1:31

I don't believe that's the way that qualified immunity works, because if the speech is protected, then the question is, well, was it clearly established that you couldn't retaliate against someone for their protected speech? And at least if this court rules in the respondents' favor

Elena Kagan 1:46

is that one of your arguments has been that almost all arrests involve speech. that in some form or another speeches implicated in the incident of arrest. But if it is truly integrated in this in the incident of arrest. something like 'I'm going to blow up the President'. That's going to give you probable cause, but more importantly it's going to give you qualified immunity.

Elena Kagan 2:20

a situation between the two and it came about after the arrests, meaning the statement was made after the arrest. So this is the unusual case, not the normal case.

Mr. Borgagson 2:32

Well I think it The way the Ninth Circuit applies to qualified immunity, I actually think this is correct. is um if the It's a question of fact as to whether the officer actually was legitimately considering the speech in deciding whether to arrest, or whether the officer was not and simply was acting based on animus.

Elena Kagan 2:56

wasn't present when Officer Nieves had his interaction. with um with the uh defendant, respondent here. Um how could he have been animated by Animus.

Mr. Borgagson 3:15

Well all the other speech that Mr. Bartlett was engaged in in the interaction with Mr um with Officer Waite and the

Elena Kagan 3:23

I'm sorry, I keep thinking right, but it is Waite.

Mr. Borgagson 3:27

And he was challenging Officer Waite's authority to do what he was doing. Um that is protected conduct, but at the same time when paired with other conduct and the the sense of danger that Officer Wade perceived.

Unknown 3:45

The question I thought just as I was asking was what is the what is the the animus uh that with which White is charged?

Mr. Borgagson 3:54

So there are two theories of animus and these were briefed in the um in the in the district court and at the Ninth Circuit. For Officer Wait, the anima the alleged animus is that he was essentially retaliating because he didn't like Mr Bartlett challenging his authority. For Officer Nieves, the um the alleged retaliation is that he was retaliating and he was motivated because Mr Bartlett didn't uh engage with this questioning earlier. So you have two separate theories of retaliation, you have two different actors, you have a fast paced situation. This is going to be an incredibly complex situation for the jury to disentangle.

Elena Kagan 4:31

Why is this any more complex than racial discrimination? Meaning In almost all situations involving racial discrimination or allegations thereof. It's complex. Um mixed motive cases are the norm, not the exception.