MIAMI – Nov. 27, 2018 – Kerri L. Barsh, a shareholder in Greenberg Traurig, P.A.’s Miami office, returned to the U.S. Supreme Court for the second time this year on Nov. 26 as co-counsel in a case involving free speech and retaliatory arrest. This time, Barsh is co-counsel for Russell P. Bartlett in Luis A. Nieves v. Russell P. Bartlett, along with attorney Zane D. Wilson and two members of the Stanford Law School Supreme Court Clinic, Pamela S. Karlan and Jeffrey L. Fisher.
The case is significant because it involves two issues that are of great importance to the Chief Justice Roberts-led U.S. Supreme Court: safeguarding freedom of speech and protecting law-enforcement discretion.
In Nieves v. Bartlett, the question posed centers on whether the presence of arguable probable cause is a bar to a claim of First Amendment retaliatory arrest under Section 1983. The Supreme Court addressed that issue last term in Barsh’s prior case, Lozman v. City of Riviera Beach. But in that case the court ruled narrowly, in part, because the retaliatory animus for the arrest resulted from a municipal policy, rather than from the in-line police officers whose authority Bartlett challenged.
“Nieves v. Bartlett is an extremely important case as the U.S. Supreme Court has the opportunity to determine the doctrinal rule under which a broad category of First Amendment retaliatory arrest claims is evaluated,” Barsh said. “In doing so, this case would address a situation that many citizens may encounter – a confrontation with a police officer – and would answer the question of an individual’s ability to seek legal redress for violation of her First Amendment rights in arrests based upon discriminatory motivation by that officer.”
Barsh was victorious in Lozman’s case when the court ruled on June 18, 2018, that “when retaliation against protected speech is elevated to the level of official policy,” then the presence of probable cause for Lozman’s arrest does not preclude his claim of retaliatory arrest under the First Amendment. This was Lozman’s second victory before the U.S. Supreme Court and, in both cases, Barsh has served as co-counsel.
Co-chair of Greenberg Traurig’s Environmental Practice, Barsh represents clients in an array of environmental regulatory and litigation matters.
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