Caseflicks

Supreme Court of the United States • 2012

Reichle v. Howards

132 S. Ct. 2088 | 182 L. Ed. 2d 985 | 2012 U.S. LEXIS 4132 | 566 U.S. 658

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case held that officers had qualified immunity because, in 2006, the law did not clearly establish that probable cause could not defeat a First Amendment retaliatory-arrest claim.

Background

During Vice President Richard Cheney’s 2006 visit to a Colorado shopping mall, Secret Service Agent Dan Doyle heard Steven Howards say by phone that he intended to ask the Vice President “how many kids he’s killed today.” Howards later told Cheney that his Iraq policies were “disgusting” and touched Cheney’s shoulder as Cheney walked away. After Doyle briefed Agent Gus Reichle, Reichle questioned Howards. Howards denied touching the Vice President, although Doyle had seen the contact. Reichle arrested him, and local officials charged him with harassment; the charge was later dismissed.

Howards sued the agents under §1983 and Bivens, alleging a Fourth Amendment arrest and search without probable cause and a First Amendment arrest in retaliation for his criticism of the Vice President. The District Court denied qualified immunity. On interlocutory appeal, the Tenth Circuit held that probable cause existed to arrest Howards for making a materially false statement to a federal official, so the agents were immune on the Fourth Amendment claim. But it denied immunity on the First Amendment claim, reasoning that its precedent clearly established that a retaliatory arrest was unconstitutional even when supported by probable cause.

Issues

Issue #1

Whether the Court had to decide whether a retaliatory arrest supported by probable cause violates the First Amendment before resolving qualified immunity.

Holding

No. The Court declined to decide the underlying First Amendment question because the right asserted was not clearly established when Howards was arrested.

Reasoning

Qualified immunity protects officials from damages unless they violated a statutory or constitutional right that was clearly established at the time of their conduct. Under Pearson v. Callahan, a court may resolve the clearly-established prong first and need not decide whether the Constitution actually recognizes the asserted right.

The Court therefore left open both whether probable cause defeats a First Amendment retaliatory-arrest claim and whether Bivens supplies a damages action for such a First Amendment claim against federal officers. Its decision rested solely on the absence of clearly established law.

Issue #2

Whether Secret Service Agents Reichle and Doyle were entitled to qualified immunity on Howards’s First Amendment retaliatory-arrest claim despite probable cause for the arrest.

Holding

Yes. At the time of the arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment because of an officer’s retaliatory motive.

Reasoning

A right is clearly established only when existing precedent makes the unlawfulness of the official’s particular conduct beyond debate. The relevant right could not be stated broadly as a general right to be free from government retaliation for speech. It had to be framed specifically: a right to be free from a retaliatory arrest that is otherwise supported by probable cause.

The Supreme Court had never recognized that specific right. The Tenth Circuit’s reliance on the general principle that an action may violate one constitutional provision even if lawful under another did not establish that probable cause could coexist with a First Amendment retaliatory-arrest violation.

The Tenth Circuit’s earlier cases, DeLoach v. Bevers and Poole v. County of Otero, did not clearly settle the matter after Hartman v. Moore. Those cases treated retaliatory arrest and retaliatory prosecution claims together and had indicated that otherwise lawful conduct could still be retaliatory. But Hartman subsequently required a plaintiff alleging retaliatory prosecution to plead and prove an absence of probable cause.

A reasonable officer could have understood Hartman to extend beyond prosecutions to arrests. Retaliatory-prosecution and retaliatory-arrest claims had often been analyzed together, and probable-cause evidence is ordinarily available in both contexts. An officer also may legitimately consider speech not because of disagreement with its message, but because the words provide evidence of a crime or suggest a security threat.

Hartman’s rationale did not necessarily control retaliatory arrests: unlike a retaliatory-prosecution claim, an arrest claim often involves the same officer’s alleged animus and the arrest itself, without an intervening prosecutor protected by absolute immunity. Still, qualified immunity turns on whether the law was clear, and it was at least arguable that Hartman applied to arrests.

Appellate decisions reinforced that uncertainty. Before Howards’s arrest, the Sixth Circuit had applied Hartman’s no-probable-cause requirement to retaliatory arrests, and later decisions from other circuits did the same. When judges reasonably disagreed over the constitutional rule, officers could not be subjected to damages for choosing one side of that unsettled question.

Concurrences

Justice Ginsburg

Reasoning

Justice Ginsburg agreed that these Secret Service agents were entitled to qualified immunity, but she rejected the majority’s suggestion that Hartman plausibly extended to the ordinary retaliatory-arrest context. In Hartman, the allegedly retaliatory official was not the prosecutor who made the charging decision, because prosecutors have absolute immunity. The absence-of-probable-cause requirement addressed the resulting causal gap between one official’s animus and another official’s prosecution decision.

That distinctive causation problem normally does not exist in a retaliatory-arrest case. An arrestee may sue the arresting officer directly and need show only that the same officer acted with retaliatory motive. In Justice Ginsburg’s view, Hartman therefore did not justify qualified immunity for ordinary police officers accused of retaliatory arrest.

She nonetheless concurred because these agents were protecting the Vice President and had to make rapid, on-the-spot security judgments. In that setting, they were duty bound to consider Howards’s statements and conduct in assessing whether he posed a threat. A rational protective assessment based on those statements cannot itself support an inference of unconstitutional retaliatory animus.