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A case last term was supposed to settle the issue. Fane Lozman was arrested in 2006 during a public comment period at a meeting of the City Council in Riviera Beach, Florida. Lozman was a well-known local gadfly who’d already won a case against his hometown at the Supreme Court once before. (Lozman had questioned an economic-development project that the council favored; the city government responded by maliciously seizing and sinking the houseboat Lozman lived in.) The council secretly planned to have police arrest Lozman—in order to “intimidate” him— if he spoke up at a meeting. He was cuffed and led out of the session.
Police charged him with “disorderly conduct.” The local prosecutor, however, refused to prosecute, and the case was dropped.
After the city prosecution fizzled, Lozman filed a civil suit against the city in federal court. The facts made “retaliatory arrest” an easy conclusion, but the federal district judge, after deep research, concluded that Lozman could legally have been arrested for violating the obscure state crime of interrupting “any assembly of people met for the worship of God or for any lawful purpose.” That wasn’t the charge; indeed, neither the officers nor their superiors had ever heard of the statute, passed in 1868. Nonetheless, there was, in some strange, abstract legal sense, probable cause floating in the air. The judge said that was the end of Lozman’s lawsuit, and dismissed it.
The U.S. Supreme Court reversed. But instead of the larger issue—does the existence of probable cause for any charge negate a claim for retaliatory arrest?—Justice Anthony Kennedy’s 2017 opinion focused on the issue of the city council’s “official retaliatory policy,” which made Lozman’s case unusual, “unlike an ad hoc, on-the-spot decision by an individual officer.” Because those facts were “far afield from the typical retaliatory arrest claim,” Kennedy wrote, the larger issue “must await a different case.”
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Which takes us to Arctic Man, and one of those “ad hoc, on-the-spot” decisions, this time made by an Alaska state trooper, Sergeant Luis Nieves, during an encounter with Russell Bartlett, one of the roughly 10,000 subzero merrymakers gathered at Camp Isabel for booze and merriment.
What is agreed is that Nieves approached Bartlett to ask him to put his beer keg inside his RV. Bartlett—who had, it is safe to say, looked that evening upon the wine when it was red and gave its color in the cup—refused to talk to Nieves. He had every legal right to do that; citizens don’t have to answer questions from police, and there was at that point no evidence of any crime. Nieves left. Not long afterward, a second trooper, Bryce Weight, approached another attendee, who appeared to be underage. Bartlett intervened, telling the young man not to talk to police and instructing Weight to leave the boy alone. The exchange was, to say the least, testy. Bartlett was standing close to Weight and speaking loudly; Weight shoved Bartlett away, and Nieves arrested Bartlett.