In a recent U.S. Supreme Court decision, Nieves v. Bartlett, No. 17-1174 (May 28, 2019), Chief Justice John G. Roberts, writing for the majority, cited the Restatement of the Law, Torts.
In that case, the plaintiff brought an action under 42 U.S.C. § 1983 against two police officers, alleging that, during a winter sports festival in Alaska, he was arrested by the officers for disorderly conduct and resisting arrest in retaliation for his protected First Amendment speech—“his refusal to speak” to one officer and “his intervention in [the other officer’s] discussion with [an] underage partygoer”—although the charges were ultimately dismissed by the state, claiming that one of the defendants said, “[B]et you wish you would have talked to me now,” after the plaintiff was handcuffed. The U.S. District Court for the District of Alaska entered summary judgment for the officers, finding that there was probable cause for the arrest and “the existence of probable cause precluded [the plaintiff’s] First Amendment retaliatory arrest claim.” The U.S. Court of Appeals for the Ninth Circuit reversed in part, holding that “a plaintiff [could] prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest.”
The U.S. Supreme Court reversed and remanded, holding that the plaintiff’s retaliatory-arrest claim failed as a matter of law because both officers had probable cause to arrest the plaintiff. The Court explained that its holding was “confirmed by the common law approach to similar tort claims.” Citing Restatement of the Law, Torts § 653, the Court reasoned that a claim of malicious prosecution required a plaintiff to show that the criminal charge was made without probable cause and that the defendant was motivated by malice in making or instigating the charge. The Court further reasoned that, in false-imprisonment claims, “arresting officers were protected from liability if the arrest was ‘privileged,’” and, under the common law, as set out in Restatement of the Law, Torts §§ 118, 119, and 121, “officers were privileged to make warrantless arrests based on probable cause of the commission of a felony or certain misdemeanors.”
The Court concluded that “[a]lthough probable cause should generally defeat a retaliatory arrest claim, a narrow qualification [was] warranted for circumstances where officers [had] probable cause to make arrests, but typically exercise[d] their discretion not to do so.” Citing Restatement of the Law, Torts § 121, Comments e and h, the Court explained that “[w]hen § 1983 was adopted, officers were generally privileged to make warrantless arrests for misdemeanors only in limited circumstances” but that, now, warrantless misdemeanor arrests are permitted “in a much wider range of situations” in all states and the District of Columbia. The Court therefore determined that the “no-probable-cause requirement should not apply when a plaintiff present[ed] objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Find the full opinion here.