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Our Opinion: Free speech suit could discourage wrongful arrests

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By making it easier to sue for retaliatory arrests, Supreme Court justices could pump the brakes on “contempt of cop” cases where citizens’ cross words and surly attitudes lead to low-level criminal charges.

The high court heard oral arguments this week in Nieves v. Bartlett, a free speech lawsuit Russell Bartlett filed after state troopers arrested him during the 2014 Arctic Man winter sports festival in Alaska. Authorities were investigating reports of underage drinking and Bartlett brushed off one trooper who asked him questions and yelled at a second lawman who was speaking with a teenager.

In addition to resisting arrest, Bartlett was accused of disorderly conduct — a catchall charge that’s so vaporous it can be contorted to fit nearly any behavior an officer dislikes. Prosecutors dismissed the charges and Bartlett sued, claiming his arrest constituted retaliation for the lawful exercise of his First Amendment right to free speech.

The case ping-ponged through lower courts as judges weighed competing precedents. It’s settled law that Americans have the right to criticize law enforcement officers and that jeering the police, in and of itself, is not a crime. However, it’s also well-established that the presence of probable cause to make an arrest outweighs claims of targeting or retaliation. Otherwise, cops’ self-styled critics would seem to enjoy immunity from laws that apply to the rest of us.

Previous Supreme Court rulings show ambiguity on the issue. In June, the high court upheld a Florida gadfly’s right to sue for a retaliatory arrest made during a city council meeting. In 2006, justices decided officials couldn’t be sued for retaliation when they could demonstrate probable cause to prosecute.

Justice Samuel Alito questioned the content of Bartlett’s speech, asking whether dismissive remarks made to a law enforcement officer warranted deference under the First Amendment.

“The right to criticize a police officer is one of the distinguishing features between a police state and a free state,” attorney Zane D. Wilson replied, according to The New York Times’ account of the hearing. We agree.

We’d be remiss without saying that we’re proud supporters of law enforcement. Our police officers, sheriff’s deputies, state troopers and investigators put their lives on the line to rescue victims of crime and protect society from predators. Most officers do an exemplary job. The occasional slings and arrows of public scrutiny, however, come with the badge and gun.

Justice Stephen Breyer, the Times’ Adam Liptak wrote, “seemed eager to find a compromise that would allow dismissal of many suits at an early stage but allow ones with substantial, objective proof that officers intended to retaliate.”

Breyer warned that a sweeping standard could stay officers’ hands, preventing them from making legitimate arrests. We’re not so sure.

No one expects sworn law enforcers to turn a blind eye to shootings, robberies, thefts and vandalism because the perpetrators exercised free speech rights during the commission of those crimes. At issue here are discretionary arrests on low-level infractions.

Jaywalking. Loitering. Disorderly conduct. Victimless crimes. Real penny-ante stuff that’s arguably a waste of the criminal justice system’s time and resources in the first place.

Dealing a blow to the broken windows theory of policing, a June 2016 New York Department of Investigation report found increased enforcement of so-called “quality of life” codes that criminalize social ills like public drinking and loitering did not reduce the rate of felony offenses committed in New York City.

In other words, locking up people for irritating but harmless behavior and clogging up our courts with petty prosecutions probably aren’t making you any safer.

Some minor crimes allow wide latitude for enforcement or lenience, giving officers the choice of letting offenders off with a warning, writing a citation or effecting an arrest. A citizen’s free speech must not be seen as an aggravating factor that brings the handcuffs out of their holster.

That’s the crux of Bartlett’s argument — if the First Amendment shields his words, the indignity of arrest and the threat of punishment, even if later withdrawn, is a clear infringement of his rights.

We join The Associated Press, The Media Coalition, the Institute for Free Speech and the Electronic Frontier Foundation, among other First Amendment advocates, in supporting Bartlett’s right to sue.

The Supreme Court should rule that his lawsuit can proceed, and in doing so, discourage overzealous enforcement of low-level misdemeanor statutes that wouldn’t be invoked absent critical but constitutionally protected speech.

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