AG Hill signs Indiana onto retaliatory arrest case

Indiana Attorney General Curtis Hill has signed onto another multi-state Supreme Court amicus brief, this one challenging a 9th Circuit Court of Appeals ruling that allowed a retaliatory arrest lawsuit to proceed against Alaska police officers despite probable cause supporting the arrest.

Hill joined Indiana to the amicus brief in Luis A. Nieves, et al. v. Russell P. Bartlett, 17-1174, which is being led by the Washington, D.C., Attorney General’s Office. The case was brought against two Alaska state troopers who arrested a man for disorderly conduct based on probable cause.

The 9th Circuit, however, allowed the retaliatory arrest claim based on an alleged violation of First Amendment rights to proceed, despite the existence of probable cause. That holding, the amici argue, goes against Supreme Court precedent in Hartman v. Moore, 457 U.S. 250 (2006), which precluded First Amendment retaliatory prosecution claims where probable cause was present.

“The Ninth Circuit’s contrary ruling creates immense practical difficulties for law enforcement,” the states and D.C. wrote. “If a litigant need not prove the absence of probable cause, virtually every arrest would give rise to a potentially viable retaliatory-arrest lawsuit for damages.”

“… Suspects routinely speak to police during encounters, make other reported or overheard statements, and display speech on their clothing, possessions or vehicles,” the amici continued. “Unless the speech itself constitutes a crime, virtually all of it would be protected under the Ninth Circuit’s rule.”

Allowing the 9th Circuit’s decision to stand would discourage police from executing justified arrests and would unnecessarily change the standard of arrest in an analysis based on officers’ subjective motivations, the states wrote in the amicus brief. Such a standard would weaken qualified immunity, they said.

Further, the amici rejected the idea that the reasonableness of an arrest could be determined based on whether offenders are frequently arrested for the offense in question. Such information is not readily available to police officers when making split-second arrest decisions, the states claim, further noting that community policing makes arrest patterns highly localized.

“Community policing calls for decentralized decision-making, involving ‘increasing tolerance for risk taking in problem-solving efforts, and allowing officers discretion in handling calls,’” the amici wrote. “It also envisions continually identifying and prioritizing problems, designing responses, and evaluating their effectiveness.”

“… Any demand that arresting officers show that police generally arrest for the offense would ignore the dynamic nature of community policing and undercut its application,” they wrote.

Finally, the amici noted most police departments and/or municipalities employ internal and external review processes that respond to citizen complaints of officer misconduct. Police departments have an interest in taking these processes seriously, the states said, because doing so ensures officers behave and are trained appropriately.

In a statement Wednesday, Hill said allowing the 9th Circuit’s ruling to stand will make it harder for law enforcement to do their jobs. The “flood of lawsuits” that would follow in the circuit court’s wake, he said, would “chill the willingness of officers to make arrests… .”

“The safety of families and neighborhoods across Indiana and the entire nation depends on the ability of police to exercise their duties in good faith whenever they perceive probable cause to make arrests,” Hill said. “Suspects obviously enjoy the right of due process and should always be considered innocent until proven guilty in court, but at the point of arrest police must feel free to do their jobs and follow proper procedure without fear of unreasonable second-guessing of their actions after the fact. At a moment’s notice, our brave officers must make snap judgment calls that often are truly life-or-death decisions.”

The Supreme Court is scheduled to hear the case during the 2018 term.

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