Written by David Karl Gross

As most Alaskans have come to know, Arctic Man is an extreme race involving a skier and a snowmobile.  It is a uniquely Alaskan race that combines extreme conditions with the beautiful Alaska landscape. At the beginning of the race, the skier starts at the top of a mountain which drops 1,700 feet in less than two miles to the bottom of a narrow canyon. When the skier reaches the bottom, he joins up with his snowmobiling partner by grabbing a tow rope. Over the next two miles, the snowmobile pulls the skier uphill at speeds reaching up to 85 miles per hour.  Just before reaching the top, the skier drops the tow line and goes over the side of a second mountain, dropping another 1,200 feet to the finish line.  Typically, there are more than 10,000 spectators from around the world watching the race. 

During the 2014 Arctic Man, a scuffle broke out that has resulted in a change to the constitutional law of the land.  Here’s what happened:  Russell Bartlett was attending the 2014 Arctic Man as a spectator.  Late on the last day of the competition, after what was likely a long day of drinking, Mr. Bartlett got into a confrontation with a police officer, Sergeant Luis Nieves.  Mr. Bartlett claims that Sgt. Nieves became angry because Mr. Bartlett refused to speak to the officer and refused to answer his questions.  Later, Mr. Bartlett ran into another officer, Trooper Bryce Weight, who was interrogating some minors he suspected of drinking.  Mr. Bartlett intervened, telling the trooper he should not be talking to minors without their parents’ consent.  Because Mr. Bartlett positioned himself too close to Trooper Weight, and was allegedly being belligerent, the trooper pushed Mr. Bartlett away.  Sgt. Nieves saw this encounter and proceeded to arrest Mr. Bartlett for disorderly conduct.  During the arrest, Mr. Bartlett was slow to comply, so he was also charged with resisting arrest.  After the arrest, Sgt. Nieves is alleged to have said, “I bet you wish you would have talked to me now,” referring to the earlier incident where Mr. Bartlett refused to speak to him.

Eventually, the charges against Mr. Bartlett were dropped.  Thereafter, Mr. Bartlett filed a civil lawsuit claiming that the police officers had violated his First Amendment right to free speech.  He alleged that his protected speech was his refusal to speak with Sgt. Nieves earlier on the day of his arrest.  He contended that Sgt. Nieves arrested him in order to punish him for exercising his right not to speak.  The U.S. District Court for the District of Alaska dismissed the case on the basis that a claim for a constitutional deprivation of free speech arising out of an arrest cannot stand where there is probable cause for the arrest.  In other words, the court concluded that where a police officer has a reasonable basis to make an arrest, he cannot be held liable for depriving the person arrested of his or her constitutional right to free speech, even if there was a causal connection between the arrest and an attempt to stifle speech.  Because there was probable cause for Mr. Bartlett’s arrest, his constitutional claim was dismissed.

The case was appealed to the Ninth Circuit Court of Appeals, where the court disagreed with the lower court’s ruling.  The Ninth Circuit concluded that just because there is probable cause to make an arrest does not mean that the individual arrested cannot bring a claim for depriving a citizen of their constitutional right to free speech.  The case was appealed to the United States Supreme Court, who agreed to hear the case.

On May 28, 2019, the Supreme Court reversed the decision of the Ninth Circuit.  In so doing, the Court created a new standard for determining the viability of a constitutional claim based on the assertion that an arrest took place to stifle free speech.  In reaching its opinion, Justice Roberts, writing for the majority, reiterated the longstanding rule that in order for a plaintiff to succeed with such a claim, they must prove the absence of probable cause for arrest.  In other words, in order to prevail, a plaintiff will need to prove that the officer had no reasonable basis to make an arrest.  Justice Roberts then carved out an exception to this rule.  He concluded that if the plaintiff can present objective evidence showing that similarly-situated people would not have been arrested, the claim can proceed to trial, even if there was probable cause to arrest.

Justice Roberts provided an example to illustrate the application of this newly-created exception to the rule.  He described a situation where a person was engaged in protected speech when a police officer arrested that person, arguably in an effort to stifle the person’s speech.  If the basis for the arrest was that the person had jaywalked, and if it can be shown that no one else is ever arrested for jaywalking in that area, the constitutional claim can proceed, even if there was probable cause supporting the arrest.  Justice Roberts appeared to create this exception to avoid a situation where a police officer can manufacturer an arrest for the purpose of preventing speech.

Several of the other justices were not pleased with this exception to the general rule.  First, Justice Clarence Thomas argued that no such exception existed in the common law.  Specifically, he pointed out that claims for false imprisonment, malicious arrest, and malicious prosecution did not have the newly-created exception, but instead required a showing that no probable cause existed.  He went on to point out that the statutory cause of action for a deprivation of constitutional rights, as set forth in 42 U.S.C. § 1983, is supposed to be guided by the common law, yet the common law never envisions the newly-created exception.

In addition, Justice Sonia Sotomayor pointed out a practical problem with the new exception.  She provided examples illustrating how difficult it would be to prove that a similarly-situated person would not have been arrested, had they not been exercising their free speech, such as a police officer arresting a person who was recording police conduct on their iPhone, which is protected speech, because they had stepped onto the corner of the private property where the arrest was taking place. Justice Sotomayor queried how that person could prove that a similarly-situated person not recording would not have been arrested. She warned the lower courts to be careful in the manner they implement this exception because of her fear that the newly-created standard makes a constitutional claim far too difficult to prove.

With this, the law of the land has now been changed.  It is not clear whether this change in the law will be good or bad, or whether it will encourage or discourage illegal arrests, but Mr. Bartlett and Arctic Man can take some credit for creating this new law.  However, while Arctic Man can now claim to have altered this country’s constitutional law, it is unclear whether this notoriety makes Alaska or Arctic Man look great.  The decision of the court seems to portray the race in a very negative light.  Justice Roberts, in his written decision, describes the race as being known for not just extreme racing, but also “extreme alcohol consumption.”  He also calls the small town of Paxson, Alaska, which hosts many of the spectators and participants, as “one of the largest and most raucous cities in Alaska.”  The description of Mr. Bartlett’s conduct did not help, as his apparent disdain for police officers is typically not well received by the general public.  The court also leaves the impression that Alaska is the Wild West where everyone is intoxicated, minors are looking to steal kegs of beer, and police officers are routinely accosted and abused.  All in all, this does not paint a very good picture of Alaska.  Therefore, while I think it is novel to have Arctic Man serve as a backdrop to the evolution of our constitutional law, I wish Alaska would have been cast in a better light.