Supreme Court Reverses 8th Circuit’s Blessing Of BS Retaliatory Arrest For ‘Mouthing Off’ To Missouri Cop

Fortunately, not everything the Supreme Court does these days is absolutely horrible. In this case (handled by the Institute for Justice) a Missouri man can resume his lawsuit against the officer who arrested him for… well, for reasons the cop ginned up well after the arrest had already happened.

Mason Murphy was minding his own business walking down a rural road when Officer Michael Schmitt decided it was time to, um, intervene. He pulled up to Murphy, got out of his car, and demanded the man provide him with an ID. Nine minutes of argument followed, with Murphy refusing to identify himself and ending with Officer Schmitt handcuffing him, driving him back to the station, and throwing him in a cell for two hours.

The officer’s original defense of the arrest was “failure to identify.” The problem was the law only requires people to ID themselves if they’re committing a crime, suspected of committing a crime, or about to commit a crime. That leaves a lot of open space for “failure to ID” arrests, but not nearly the amount of open space on the rural road Murphy was walking along before his walk was interrupted by the police officer.

Belatedly realizing “failure to identify” might not actually work as a justifiable arrest, Officer Schmitt consulted with other officers after he had already arrested Murphy to find some reason to justify this arrest after the fact.

While in the police car, Officer Schmitt told Murphy he was arrested for “[f]ailure to identify.” He then changed his tune when he told someone via his police radio that Murphy was stumbling and walking on the wrong side of the road. Yet Murphy was not stumbling or acting impaired. When Officer Schmitt arrived at the jail with Murphy, he made a phone call in which he described Murphy as a “dip shit walking down the highway” who “would not identify himself” and “ran his mouth off.” He then asked, “What can I charge him with?” Later, Officer Schmitt falsely claimed that Murphy was drunk. Officer Schmitt even admitted on multiple occasions that he did not “smell anything” on Murphy. Despite all this, Officer Schmitt insisted Murphy “sit here for being an asshole.” Roughly two hours later, Murphy was released.

The officer finally settled on an extremely obscure state law that requires pedestrians to “walk only on the left side of the roadway or its shoulder facing [oncoming] traffic.” Of course, he had already arrested Murphy for something else earlier, but then realized he couldn’t make his “failure to identify” bullshit stick unless he found some other crime to justify the deployment of the failure to identify law.

It was clear from the comments the officer made, as well as his scramble to find a justification for the arrest, that this was a retaliatory arrest prompted by Murphy allegedly “being an asshole” by refusing to comply with an unlawful order.

Somehow, the Eighth Circuit Court of Appeals still found a way to side with the officer. It said the walking on the wrong side of the road thing was indeed a crime, therefore it was perfectly legal to arrest someone for failure to ID, even if all the justification for the original charge came after the fact. In essence, the Eighth Circuit told cops in the district it was fine to arrest people first and come up with a justification later.

But that’s not how the law works. And that’s not even how Supreme Court precedent works. Even if one decides its ok for cops to manufacture justifications for arrests after arrests have already occurred, the precedent set in the Supreme Court’s 2019 Nieves decision says even probable cause for an arrest can be undermined in retaliation cases if there’s evidence on the record showing officers rarely, if ever, responded to violations of cited laws with arrests.

There’s nothing on the record suggesting anyone in Missouri has ever been arrested for violating the “walking down the wrong side of the road” statute. At best, if anyone had ever even been stopped by police for doing so, the violation would be handled by a citation, rather than an arrest.

Murphy (and his Institute for Justice reps) appealed this decision. And the Supreme Court has found in favor of the plaintiff, reversing the decision and sending it back to the Eighth Circuit to deliver a decision that considers the Nieves decision, as well as another victory scored by the IJ in another recent First Amendment retaliation case.

This morning, the U.S. Supreme Court granted the Institute for Justice’s (IJ) petition for certiorari in Murphy v. Schmitt, vacated the 8th U.S. Circuit Court of Appeals’ decision, and remanded the case back to the lower court for reconsideration in light of IJ’s recent win in Gonzalez v. Trevino. The Eighth Circuit had ruled against Mason Murphy in his lawsuit alleging retaliation for the exercise of his First Amendment rights.

“This decision is a huge step forward, not just for Mason Murphy, but for all Americans who have been retaliated against by government officials for their speech,” said Marie Miller, an attorney at the Institute for Justice, which filed the petition on Mason’s behalf. “Our work is building lasting precedent, making it easier for people to hold officials accountable when their rights are violated. We will continue fighting until all Americans are protected against government retaliation.”

The Gonzalez v. Trevino case got sent back to the Fifth Circuit Appeals Court earlier this year. In that case, Sylvia Gonzalez, a city council member with a knack for irritating her fellow council members and dead set on removing the city manager from office, was arrested for the obscure charge of “removing a government record.” What actually happened was Gonzalez either mistakenly or deliberately (depending on whose testimony you believe) removed a copy of signed petition calling for the dismissal of the city manager and (again, either mistakenly or deliberately) misled the mayor about its current location when asked.

Instead of dealing with this alleged insubordination in city council meetings or via an internal investigation, the mayor had Sylvia Gonzalez arrested. The Fifth Circuit (at least the majority) saw nothing wrong with this, even though it was clear Gonzalez was being punished for her anti-city manager speech, rather than the temporary disappearance of a signed petition. Again, the Nieves case factored into the Supreme Court’s reversal as Gonzalez presented evidence showing no one had ever been arrested for this crime in Texas, making it clear this was extremely selective enforcement. The Fifth talked itself in circles justifying the arrest and decided the legal standard was “any arrests in exactly these same circumstances” rather than recognizing the lack of any arrests for this crime under any circumstances.

So, it’s two in a row for the Nieves factor, both handled by the Institute for Justice. Courts far too often find any probable cause for an arrest undercuts First Amendment retaliation claims. And, far too often, those rulings stick. But when it’s an arrest for minor violations cops rarely, if ever, choose to arrest people for, probable cause is no longer the sole issue. Instead, it becomes only one factor that must be weighed against claims of retaliatory arrests. And, as the Supreme Court has now made clear more than once, failure to properly weigh this factor will encourage the thing the courts are supposed to be guarding against: the punishing of speech any government employee doesn’t like.