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May 28, 2019

Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims

The Supreme Court handed down three opinions from argued cases this morning, but still has us still "Waiting for Gundy."  The opinion already getting the most attention is a per curiam ruling in an abortion case from Indiana (that was never argued), but criminal justice fans will be most interested in the ruling in Nieves v. Bartlett, No. 17-1174 (S. Ct. May 28, 2019) (available here) concerning whether First Amendment retaliatory arrest claim is precluded by a showing of probable cause.

The somewhat intricate particulars of the case and the opinions in Nieves will likely be of greatest interest to those who closely follow police practices and/or civil rights claims.  But because the case generated a notable voting line up and an array of notable separate opinions, all criminal justice Court-watchers may find the case worth a read.  In particular, Nieves provides still more evidence that Justice Gorsuch does not seem to be a big fan of the modern criminal justice system, as shown by this passage from near the start of his lengthy separate opinion:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively.  In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.  If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

There are a bunch of other interesting passages and flourishes in some other opinions, but for now I will be content to say that all the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.

May 28, 2019 at 01:18 PM | Permalink


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