The police have a wide range of options when it comes to interacting with the public, and recent developments have given them even more power than ever before in certain areas. Both physical and legal issues can arise in the actions between a police officer and a member of the public during an engagement; however, not all of them have a simple or consistently successful recourse.
If you suspect that your interaction with a law enforcement officer resulted unjustly in an arrest, you may be a victim of retaliatory arrest. In order to understand if this was the case, you must first learn more about what constitutes retaliation and how recent changes from the Supreme Court have impacted how officers do their jobs.
What Is A Retaliatory Arrest?
Retaliatory arrest refers to the act of a police officer arresting someone in retaliation to (or, in other words, entirely as a response to) an action that individual took against the police officer. Most commonly, this takes the form of a public citizen exercising their First Amendment rights, which provokes an officer into making an arrest even when nothing criminal or illegal was occurring.
Some of the most frequent types of retaliatory arrest occur when the public attempts to use a phone or camera to record a police officer and is arrested as a result, or if an individual speaks out against an officer and upsets them, after which the officer arrests them for their speech. However, retaliatory arrest can come in many forms; the crux is simply that the police initiated an arrest in response to an action that was not illegal.
The Nieves v. Bartlett Case And Its Impact
In 2019, the Nieves v. Bartlett case was resolved in the Supreme Court, changing the way that cases of retaliatory arrest proceed. The court determined that the onus of proof is on the plaintiff, or the person who was arrested by police, to prove that there was no reason or probable cause for the arrest. This means that because of the Nieves v. Bartlett case, pursuing justice for retaliatory arrest has become more difficult than ever before. However, you still have options.
Can You Sue For Retaliatory Arrest?
The short answer is that yes, you can sue for retaliatory arrest. However, due to the recent decision by the Supreme Court, your case may be particularly challenging. This is why it is critical to work with a highly experienced civil rights attorney who can advocate for you and help you to craft a compelling case. The most problematic concern with a retaliatory arrest lawsuit lies in the ability to disprove probable cause, which is the plaintiff’s (that is, your) responsibility.
Defendants And Probable Cause
Probable cause is what a retaliatory arrest case hinges on. In order to justify the arrest and make the claim that it was not done in retaliation for an act, a police officer need only create a probable cause for arresting you. If an officer did not want you to exercise your right to record the police, they could claim that you were trespassing in order to secure the footage. If you are speaking out against an officer, probable cause could include claims that you were belligerent and so were arrested to protect others.
A police officer has the duration of time between the arrest and writing the official report on the incident to determine what probable cause may have been. In court, the person who was arrested must prove that probable cause did not exist, which can be extremely challenging.
The only context in which probable cause becomes less of an issue is in very narrow cases of crimes that are rarely enforced, such as jaywalking, in which the pretext of an arrest would much more clearly be for an issue other than the crime itself.
However, the Supreme Court’s ruling puts the burden of proof on the plaintiff rather than the defendant, making the vast majority of retaliatory arrest cases exceptionally difficult to win. That does not, however, mean that winning is impossible.
Work With An Experienced Civil Rights Law Firm
If you suspect that you were arrested as a result of retaliation by a police officer while exercising your civil rights, you may have a case for retaliatory arrest in court. However, it takes an experienced civil rights attorney to win in these particularly challenging lawsuits, which is why you should seek legal counsel as soon as possible after the incident. The attorneys at The Brown Firm would be happy to help you explore your options. Reach out to schedule a consultation to discuss your next steps.