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Steven Howards and his son were at a Colorado mall where then-VP Cheney was appearing; Secret Service agents arrested Howards after he laid a hand on the VP and after they’d heard him talk smack about the VP. Court supported the Secret Service. Thomas wrote that the question was not one of First Amendment retaliation, but rather the right to be free from a retaliatory arrest that is otherwise supported by probable cause —and there is no such right. Ginsburg, concurring, added that the agents were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security

Reichle v. Howards (2012) –
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

By John R. Vile

In Reichle v. Howards, 566 U.S. 658 (2012), the U.S. Supreme Court held that two Secret Service agents, Gus Reichle and Dan Doyle, were entitled to immunity for actions that they had taken in arresting Steven Howards, whom they had probable cause to detain under the Fourth Amendment even though there were allegations that they had made the arrest in retaliation for statements that might be protected by the First Amendment.

The Supreme Court ruled that qualified immunity applied to Secret Service agents who had arrested a man after he challenged Vice President Dick Cheney in a Colorado mall about his Iraq policies, touching his shoulder in the process. The man had sued, claiming that he was arrested in retaliation for exercising his First Amendment rights. Justice Thomas wrote “[t]his Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause..." (Photo of Secret Service agents in New Orleans by Chuck Patch in Wikimedia Commons, CC BY-SA 2.0)
The Supreme Court ruled that qualified immunity applied to Secret Service agents who had arrested a man after he challenged Vice President Dick Cheney in a Colorado mall about his Iraq policies, touching his shoulder in the process. The man had sued, claiming that he was arrested in retaliation for exercising his First Amendment rights. Justice Thomas wrote “[t]his Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause…” (Photo of Secret Service agents in New Orleans by Chuck Patch in Wikimedia Commons, CC BY-SA 2.0)

A federal district court  had entered summary judgment for the agents, but the Tenth U.S. Circuit Court of Appeals, while rejecting the Fourth Amendment claims, had allowed the case to proceed on the First Amendment claims. 

Justice Clarence Thomas wrote the majority opinion for six justices, while Justice Ruth Bader Ginsburg filed a concurring opinion that Justice Stephen Breyer joined. Justice Elena Kagan took no part in the case.

Howards alleged he had been arrested in retaliation for exercising First Amendment rights

The case arose at a mall in Beaver Creek, Colorado, where agents heard Howards saying he was going to ask Vice President Dick Cheney “How many kids he’s killed today.”  He subsequently told Cheney that his “policies in Iraq are disgusting,” and touched his shoulder in the process.

After Howard falsely denied touching the vice president, he was charged with harassment, although this charge was later dismissed. He alleged that he had been arrested and searched without probable cause in violation of the Fourth Amendment and that he had been arrested in retaliation for exercising his First Amendment rights.

Qualified immunity protects officials unless constitutional rights clearly established and violated

Thomas identified two central issues: “whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held,” but decided only to address the second. 

In so doing, Thomas argued that “[q]ualified immunity shields governmental officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”  This required that a reasonable official would understand that his or her behavior violates a right. However, Howards did not establish that threshold here because “[t]his 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 Howard’s arrest.”

Earlier Court case said individuals could not sue for retaliatory prosecution when there was probable cause

Although there were some opinions from circuit courts establishing the unlawfulness of arrests in retaliation for exercising First Amendment rights, in Hartman v. Moore (2006), the U.S. Supreme Court had held that an individual could not sue for retaliatory prosecution in violation of the First Amendment when the charges were supported by probable cause. And, at the time of Howards’ arrest, “Hartman’s impact on the Tenth Circuit’s precedent governing retaliatory arrests was far from clear.” 

Indeed, at the time, retaliatory arrests and retaliatory prosecutions were treated similarly, and a “reasonable official” might have done the same. The decision in Wayte v. United States (1985) gives further support to this view.

Thomas said agents should not be liable for uncertainty in retaliatory arrest law

Thomas specified that he was not saying that Hartman’s rule, or all of its rationale, would apply to retaliatory arrests but that the ruling “injected uncertainty into the law”, for which the agents should not be held liable.

In her concurring opinion Ginsburg stressed that the agents in question were not “ordinary law enforcement officers,” but that they had a big responsibility in guarding the vice president, which often required swift decision-making.  She did not think that one could infer “retaliatory animus” on the basis of their actions in arresting Howards.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

cited https://www.mtsu.edu/first-amendment/article/1473/reichle-v-howards


 

Facts of the case

On June 16, 2006, Steven Howards saw Vice President Dick Cheney while strolling through Beaver Creek Mall. Howards decided to approach the Vice President to protest the President’s polices regarding the Iraq War.

On that day, Gus Reichle and Dan Doyle were part of the Secret Service detail protecting the Vice President. Doyle heard Howards state into his cell phone “I’m going to ask him how many kids he’s killed today.” Howards approached the Vice President and told the Vice President that he disapproved of his policies in Iraq. When the Vice President turned to leave, Howards made unsolicited physical contact with the Vice President by touching the Vice President’s right shoulder with his open hand.

Agent Reichle approached Howards, identified himself as a Secret Service agent, and asked to speak with Howards. After briefly questioning Howards, Reichle arrested him. Howards was initially charged with harassment under state law, but those charges were dismissed. No federal charges were filed.

Howards sued agents Reichle and Doyle under 42 U.S.C. 1983, alleging that the agents had violated his Fourth Amendment right with an unlawful search and seizure and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. The agents moved for summary judgment on immunity grounds. The district court denied their motion, ruling that fact issues regarding the agents’ immunity defense precluded summary judgment. The agents took an interlocutory appeal to the U.S. Court of Appeals for the Tenth Circuit. They argued that they were entitled to qualified immunity because they had probable cause to arrest Howards and also asserted that they were entitled to heightened immunity by virtue of their status as Secret Service agents protecting the Vice President. The appellate court affirmed in part and reversed in part. The panel unanimously rejected Howards’ Fourth Amendment claim on the grounds that the agents objectively had probable cause to arrest Howards. However, the panel held that probable cause was not a bar to Howards’ First Amendment retaliation claim and that Howards could proceed with his First Amendment retaliation claim notwithstanding the fact that the agents had probable cause for his arrest.

Question

1. Does probable cause to make an arrest bar a First Amendment retaliatory arrest claim?

2. Do Secret Service agents have qualified immunity in the matter of an arrest for which there was probable cause consistent with the Fourth Amendment?

Conclusion

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 Agents403 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. Moore547 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. Callahan555 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/

 

 


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