Can police retaliate against loudmouths?

What is agreed is that Nieves approached Bartlett to ask him to put his beer keg inside his RV. Bartlett—who had, it is safe to say, looked that evening upon the wine when it was red and gave its color in the cup—refused to talk to Nieves. He had every legal right to do that; citizens don’t have to answer questions from police, and there was at that point no evidence of any crime. Nieves left. Not long afterward, a second trooper, Bryce Weight, approached another attendee who appeared to be underage. Bartlett intervened, telling the young man not to talk to police and instructing Weight to leave the boy alone. The exchange was, to say the least, testy. Bartlett was standing close to Weight and speaking loudly; Weight shoved Bartlett away, and Nieves arrested Bartlett.

According to Bartlett, Nieves then said, “Bet you wish you would have talked to me now.” The troopers deny this; a partial video record of the encounter doesn’t include those words. (The state declined to prosecute Bartlett, and the full video in its possession disappeared before the lawsuit.) During oral argument in the Ninth Circuit, Judge Kim McLane Wardlaw told the state’s lawyer that the troopers’ story was “full of fabrications and facts—alleged facts—that are plainly contradicted by the video.”

This is hardly surprising to anyone who has ever been in a police court; the working presumption for criminal lawyers is that no witness—police officer or potential perp—is telling the truth. But the trial judge said the words spoken didn’t matter; he decided that even if Trooper Nieves had in essence admitted he was arresting Bartlett for legally refusing to talk to him, Bartlett still had no case. The reason: In the confrontation with Weight, Nieves could have concluded that he had probable cause to arrest Bartlett.

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