Yesterday, Attorney General Curtis Hill announced Indiana has joined a coalition of 15 states and the District of Columbia in a friend-of-the-court brief in a U.S. Supreme Court case that could make it more difficult for police to do their jobs. The brief urges the Court to overrule a lower court and hold that a police officer is not subject to a retaliatory-arrest suit when the officer had probable cause to make an arrest. The brief explains that a contrary ruling would constrain officers’ ability to protect the public, including through community policing.
“The safety of families and neighborhoods across Indiana and the entire nation depends on the ability of police to exercise their duties in good faith whenever they perceive probable cause to make arrests,” Attorney General Hill said. “Suspects obviously enjoy the right of due process and should always be considered innocent until proved guilty in court, but at the point of arrest police must feel free to do their jobs and follow proper procedure without fear of unreasonable second-guessing of their actions after the fact. At a moment’s notice, our brave officers must make snap judgment calls that often are truly life-or-death decisions.” The multistate amicus brief comes in Nieves v. Bartlett, a case in which a man sued two Alaska state troopers who had arrested him for disorderly conduct. Although there was probable cause for the arrest, the arrestee sued, claiming that the troopers were retaliating against the exercise of his First Amendment rights. The Court must decide whether a plaintiff may sue police officers for retaliatory arrest if the officer had probable cause to arrest the plaintiff. The U.S. Court of Appeals for the 9th Circuit ruled in favor of the arrestee, and the officers appealed the decision to the Supreme Court. The states’ brief argues that a decision upholding the 9th Circuit would inhibit effective policing and encourage a flood of lawsuits claiming retaliatory arrest. This would chill the willingness of officers to make arrests, even when based on probable cause and when necessary to protect the public safety. Acknowledging the importance of the First Amendment interests at stake, the brief also contends that the states and the District have effective administrative and disciplinary procedures in place, including civilian complaint review boards, to address misconduct by officers and to protect those interests. The Court will hear oral arguments in the case in its next term, which begins in October 2018.