Russell Bartlett was arrested by law enforcement officers after verbally protesting the officers’ investigatory conduct, which he saw as improper. Alleging that the officers arrested him in retaliation for exercising his free speech rights, Bartlett later sued them under 42 U.S.C. § 1983 for retaliatory arrest in violation of the First Amendment, but a district court ruled that because the officers had probable cause to arrest Bartlett for harassment under Alaska law—a crime with which he was never charged—Bartlett was completely prohibited from suing them for retaliatory arrest under Section 1983. The United States Court of Appeals for the Ninth Circuit reversed, ruling that plaintiffs may obtain damages for retaliatory arrest regardless of whether there was probable cause to arrest them for some offense, if they can show that retaliation was the reason for the arrest. The officers filed a petition for certiorari, and the Supreme Court agreed to hear the case.

CAC filed a friend-of-the-court brief on behalf of Bartlett, rebutting one of the officers’ main arguments for dismissing his case. According to the officers, plaintiffs who sue for retaliatory arrest under Section 1983 must demonstrate that there was not probable cause to arrest them for any crime because this showing was required to prevail under two “analogous” state torts that were recognized by the common law when Section 1983 was enacted in 1871. As we explain in our brief, however, Section 1983 was meant to protect the unique and fundamental rights guaranteed by the federal Constitution, not the interests protected by state tort law. The historical catalyst for its passage was the campaign of violence and intimidation by the Ku Klux Klan—tacitly supported by Southern courts and legislatures—which was denying former slaves and their white sympathizers their basic rights and freedoms. Congress passed Section 1983 to deter such violence by enabling the federal courts to give individuals whose constitutional rights had been violated an effective legal remedy. Although Congress expected Section 1983 to be interpreted in light of general tort principles, rules drawn from state tort law may be applied to Section 1983 claims only when doing so is consistent with the statute’s remedial purpose. And as we show, the purportedly analogous state torts cited by the officers here protected different interests and served different aims than the First Amendment. Applying the probable cause requirement drawn from those torts would prevent Section 1983 from playing the role Congress intended and from addressing the unique harms that ensue when government officials selectively use their authority to punish those whose speech they dislike.

In a divided decision prompting five separate opinions, the Court held that plaintiffs alleging a First Amendment retaliatory arrest must generally demonstrate that the police lacked probable cause. But the Court established an exception to this rule: even if police had probable cause, plaintiffs can still proceed by showing that the police “typically exercise their discretion” not to make arrests in similar circumstances. As an example, the Court cited jaywalking, which in many places is “endemic but rarely results in arrest.” In his partial dissent, Justice Gorsuch argued that there was “no legitimate basis for engrafting a no-probable-cause requirement onto a First Amendment retaliatory arrest claim.” Adopting a central point of our brief, Gorsuch explained why “a First Amendment retaliatory arrest claim serves a different purpose” than other types of unlawful arrest claims, and why “that purpose does not depend on the presence or absence of probable cause.” Gorsuch expressed hope that the majority’s new rule and its exception would be read “commonsensically” by the lower courts in future cases.