“Police officers conduct approximately 29,000 arrests every day,” Chief Justice John Roberts noted in his opinion in Nieves v. Bartlett, an important First Amendment case decided last Monday. That’s roughly the population of Georgia cuffed and stuffed on an annual basis.
One might think that many arrests is too many. One might wonder about the degree to which factors such as race, immigration status, and wealth contribute to individual arrests. One might even wonder about the percentage of cases in which the power to arrest is abused.
America’s chief justice, however, worries more about the overworked police than about the people they arrest. Arresting that many folks is “a dangerous task that requires making quick decisions,” he wrote—so many people, so little time. It is thus the job of the Court “to ensure that officers may go about their work without undue apprehension of being sued.”
If that’s the appropriate aim for an Article III court, Nieves will help achieve it; the decision will make it harder to hold officers to account when they—as we all know they sometimes do—arrest citizens in retaliation for speech they don’t like. It can occur in a political-protest situation or simply during everyday dealings between police and people. Police—not all, but some—can be quick to cuff a nettlesome protester, an officious onlooker with a cellphone camera, or a mouthy suspect. The law of the First Amendment is clear: An individual should not face official retaliation for engaging in “protected speech” alone, even when that speech is unpleasant or hostile. “Retaliatory arrest” is a recognized federal cause of action.