Is Physical Liberty an Important Right?


Last May, the U.S. Supreme Court in Nieves v. Bartlett considered what might sound like an easy question. Can a plaintiff sue a police officer for violating the First Amendment if the officer arrests the plaintiff to punish the latter for protected speech? Complicating the picture is the fact that the officer at the time of the arrest did have probable cause to arrest the plaintiff for an actual offense. For a simple illustration, imagine that you affix a controversial bumper sticker to your car. The sticker says the government should confiscate all real property and make it available, collectively, to everyone: su casa es mi casa. The officer, offended, pulls you over, arrests you for driving seven miles per hour over the speed limit, and says, “I’m arresting you for speeding. Anyone else, I’d give a warning. But you’re a communist. I read your bumper sticker. And communists belong in the clink.” Should you have a cause of action against the police under 42 U.S.C. § 1983, the federal civil rights statute?

The actual facts of Bartlett are different, more complicated, but the holding is broad so the particulars matter less than they otherwise might. The Court ruled that no First Amendment cause of action lies for retaliatory arrests, so long as police have probable cause to believe some actual offense took place, even if the offense was not what motivated the officer to carry out the arrest. Such an arrest is pretextual, in the sense that the officer is using the real offense as a pretext or excuse for arresting the suspect for expressing a controversial view. The Court allowed for only a narrow exception to the rule for offenses in which police officers “typically” exercise their discretion not to arrest upon probable cause. Unfortunately for you (our hypothetical communist driver), and for most people arrested for speech, consistent collective police decisions to exercise their discretion not to arrest for particular crimes are unusual. And it isn’t even clear how a plaintiff would go about proving such an exercise of discretion to keep a judge from dismissing a suit.

In this column, I will consider whether such pretextual, speech-based arrests are a problem, how they differ from other pretextual arrests, and how the ruling in this case resembles the law of a seemingly different area, post-conviction incarceration for convicted criminals.

Why a Problem?

One reaction readers might reasonably have is as follows. If a person commits a crime, or police have good reason to think that he did, then he deserves to be arrested. It is appropriate for police to take a person into custody in the presence of probable cause, no matter why police are really arresting them. Limited resources, moreover, make it necessary for police to pick and choose whom to arrest among the many against whom they have probable cause. But such resource constraints confer no entitlement upon any suspect to avoid a legitimate arrest on probable cause.

Along similar lines, imagine I want a medical degree but have not attended professional school and know nothing about medicine. Assume now that the dean of Cornell Medical School refuses to give me a degree, not because I am a medical dunce, but because I own a green car. This fact does not suddenly make me eligible for a medical degree. And just as I do not deserve a degree in medicine, a person who drives seven miles per hour over the speed limit does not deserve to avoid arrest. We might dislike the dean and the police officer for relying on the wrong basis for doing what they do. But in neither case is the person who suffers the resulting harm a true “victim” of misconduct, because he and I are exactly where we should be in the end, respectively denied a medical license and arrested.

One answer is what I have elsewhere called the “targeting harm.” We all have the right to avoid having people do things to us for the wrong reasons. Even if we deserve a particular fate, in other words, we should meet that fate because we deserve it, not because a police officer or a medical school dean dislikes us for some illegitimate reason. If Steve has been rude and inattentive at work, he deserves to be passed over for a raise because of the rudeness and inattention. If instead, his boss passes him over for a raise because he is African American or Muslim or gay (or, for that matter, because he is Caucasian, Christian, or straight), the boss wrongs him.

There is, of course, a difference between refusing me a diploma because of my green car and denying someone a raise because he is a Muslim. The targeting harm is far more invidious in the latter case, and anti-discrimination principles specifically identify suspect categories because the targeting harm is unacceptably grave there. But what is the remedy in either type of case? Should I get the medical degree? Should rude and inattentive employees get raises? Should the drivers of speeding vehicles be allowed to continue speeding, unmolested?

The answer to these questions is generally no. But we may still wish to compensate people in some other way for the targeting harm. And perhaps more importantly, the legitimacy of a decision may—at least in some cases—be less clear than denying a medical license to someone who has not attended school. In the case of driving over the speed limit, for example, police routinely use their discretion to decide whether to (a) ignore the speeding, (b) pull over the driver but issue a warning, or (c) arrest the driver. In such a case, it is no longer easily discernible whether an arrest is the correct response. And accordingly, if the actual reason for the arrest is retaliation for protected speech, then we might properly wonder whether the officer should not have arrested the would-be plaintiff at all, precisely because he would not have done so but for the illicit motive. Like suspect classifications (race, religion, etc.), fundamental rights such as the First Amendment freedom of speech properly trigger a higher level of scrutiny of otherwise legitimate government behavior.

Why Is the Court Doing This?

Given that the Roberts Court tends to zealously guard the freedom of speech, why does it insulate police from lawsuits for a large category of retaliatory arrests? One possibility is that the majority opinion by Chief Justice Roberts tells the truth. It is just too difficult to prove that an officer had a retaliatory motive for an arrest, and we do not want people suing the police every time police perform an apparently legitimate arrest. Generally, an objective standard allows police to do their job without undue interference.

I offer another possibility, however: the incarceration paradox. In the 1990s, I published an Article entitled Freedom From Incarceration: Why Is This Right Different From All Other Rights? The thesis was that one of the fundamental rights that people hold in this country is freedom from physical confinement. Under the Fourteenth Amendment substantive due process jurisprudence, the government may deprive a person or people of a fundamental right only in the pursuit of a compelling interest, and the deprivation must be neither under- nor over-inclusive with respect to pursuit of that interest. The analysis is called “strict scrutiny” and is often not just strict but fatal in fact.

So if the government wanted to confine anyone who was sick with the flu, its plan would have to survive this exacting level of scrutiny. In my Article, I pointed out the oddity of the criminal law, which allows the government to deprive people of their right to freedom from incarceration even in the absence of a compelling interest in the particular law. An offense may, in other words, be trivial and unrelated to a compelling government interest and yet the government may take away liberty from those who violate it. We have something of a paradox here, because people receive lots of procedural protection—notice in the form of a statute, the right to an attorney and a trial at which the government must prove guilt beyond a reasonable doubt. Yet they do not receive the benefit of strict scrutiny, where a judge asks whether the law sending someone to prison fulfills a compelling governmental interest. Call this the incarceration paradox.

Returning to arrests, the Court may be drawn into another incarceration paradox. If police have probable cause to carry out an arrest, then they have done their duty under the Fourth Amendment, which offers procedural protection. In those conditions, we need not inquire further into why the officers did what they did, just as the Court won’t look closely at why a criminal statute does what it does.

The justices made a similar move when the petitioner in Whren v. United States, a 1996 case, challenged his arrest on the grounds that a reasonable officer would not have arrested him in the absence of an ulterior motive. The Court said that because police had probable cause to arrest Whren, the arrest did not violate the Fourth Amendment. And the Court now says that in most cases, when police have probable cause, an arrest does violate the First Amendment either.

Perhaps because arrests also implicate freedom from incarceration (or at least freedom from physical restraint), the Court once again embraces the incarceration paradox. Police have probable cause to arrest. For what? It doesn’t matter. What motivated the arrest? That doesn’t matter either, so long as there is probable cause. Unfortunately, however, procedure cannot take the place of substance. When police arrest a person because of his speech, he should be able to sue. The First Amendment, like the fundamental right to freedom from incarceration, affords something essential and different from procedural protection. We must remember that substance and procedure are not interchangeable.

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