“The Supreme Court’s recent decision in Nieves v. Bartlett threatens to render retaliatory arrest lawsuits superfluous and allows officers to flagrantly chill speech without repercussion. An officer violates the First Amendment when she arrests an individual because of his protected speech. Prior to the Supreme Court’s decision in Nieves, the individual could bring a lawsuit against the officer under 42 U.S.C. § 1983 for depriving the individual of his First Amendment rights. Nieves, however, required the individual to show that the officer lacked probable cause for the arrest. This requirement nearly eliminates retaliatory arrest claims since it is incredibly easy for an officer to show probable cause. Even if the individual could show the officer lacked probable cause, the individual could have already sued the officer for a false arrest. Thus, retaliatory arrest claims are now superfluous and no longer serve any purpose in discouraging officers from chilling free speech. The decision’s negative effects will be compounded with the increasing number of retaliatory arrests during protests of recent police killings of Black individuals, including George Floyd and Breonna Taylor.
The Court did create an exception in Nieves for when an officer had probable cause but normally would not exercise her discretion to arrest. For example, when an officer arrests an anti-police protester for jaywalking. Nonetheless, the Court suggested such a high standard to govern this exception that very few retaliatory arrest claims will succeed. Instead, lower courts should adopt a less stringent standard. This Note advocates that lower courts adopt a burden-shifting test used in employment discrimination cases. This standard is more realistic for plaintiffs to satisfy, and thus, will allow the Nieves exception to deter officers from chilling speech.”