No answer and Yes. Justice Clarence Thomas delivered the opinion of the court, reversing the 10th Circuit and remanding. The Supreme Court held that the agents have qualified immunity from Howards’ First Amendment claim because there is no clearly established right to protection from retaliatory arrest when there is probable cause for that arrest. For a right to be clearly established, every reasonable officer must understand that he or she is violating that right. The Court has never acknowledged the proposed right in this case, and 10th Circuit precedent is unclear. The Court did not decide whether there is, in fact, a right to protection from retaliatory arrests where there is otherwise probable cause for the arrest.

Justice Ruth Bader Ginsburg concurred, writing that she would not grant qualified immunity if the agents had been ordinary law enforcement officers. She would apply a different standard for officers charged with protecting public officials because they must make quick and decisive decisions to protect the safety of those officials. The agents’ actions in this case were rational and should not expose them to civil damages. Justice Stephen H. Breyer joined in the concurrence. Justice Elena Kagan did not participate in the decision.

cited https://www.oyez.org/cases/2011/11-262

SUPREME COURT OF THE UNITED STATES

Syllabus

REICHLE et al. v. HOWARDS

certiorari to the united states court of appeals for the tenth circuit

No. 11–262. Argued March 21, 2012—Decided June 4, 2012

Petitioners Reichle and Doyle were members of a Secret Service detail protecting Vice President Richard Cheney while he greeted members of the public at a shopping mall. Agent Doyle overheard respondent Howards, who was speaking into his cell phone, state that he “was going to ask [the Vice President] how many kids he’s killed today.” Doyle and other agents observed Howards enter the line to meet the Vice President, tell the Vice President that his “policies in Iraq are disgusting,” and touch the Vice President’s shoulder as the Vice President was leaving. After being briefed by Doyle, Agent Reichle interviewed and then arrested Howards, who was charged with harassment. After that charge was dismissed, Howards brought an action against petitioners and others under 42 U. S. C. §1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. Howards claimed that he was arrested and searched without probable cause, in violation of the Fourth Amendment, and that the arrest violated the First Amendment because it was made in retaliation for Howards’ criticism of the Vice President. Petitioners moved for summary judgment on the ground that they were entitled to qualified immunity, but the Federal District Court denied the motion. On appeal, the Tenth Circuit reversed the immunity ruling with respect to the Fourth Amendment claim because petitioners had probable cause to arrest Howards, but the court affirmed with regard to the First Amendment claim. In doing so, the court rejected petitioners’ argument that, under Hartman v. Moore, 547 U.S. 250, probable cause to arrest defeats a First Amendment retaliatory arrest claim. It concluded instead that Hartman applied only to retaliatory prosecution claims and thus did not upset prior Tenth Circuit precedent holding that a retaliatory arrest violates the First Amendment even if supported by probable cause.

Held: Petitioners are entitled to qualified immunity because, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Pp. 5−12.

(a) Courts may grant qualified immunity on the ground that a purported right was not “clearly established” by prior case law. Pearson v. Callahan, 555 U.S. 223, 236. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, 563 U. S. ___, ___. Pp. 5−6.

(b) The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. P. 6.

(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent was far from clear. Although Hartman’s facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests. First, Hartman was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly. Itresolved a Circuit split concerning the impact of probable cause on retaliatory prosecution claims, but some of the conflicting cases involved both retaliatory prosecution and retaliatory arrest claims and made no distinction between the two when considering the relevance of probable cause. Second, a reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests. Like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually all retaliatory arrest cases, and the causal link between the defendant’s alleged retaliatory animus and the plaintiff’s injury may be tenuous. Finally, decisions from other Circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards’ arrest that Hartman extended to retaliatory arrests. Pp. 7−12.

634 F.3d 1131, reversed and remanded.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Alito, and Sotomayor, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Kagan, J., took no part in the consideration or decision of the case. cited https://supreme.justia.com/cases/federal/us/566/658/