1. Whether one may make a First Amendment retaliatory arrest claim against one’s arresting officers if there was probable cause for one’s arrest.
2. Whether the court below erred by denying qualified and absolute immunity to Secret Service agents when the arrest they performed did not violate the Fourth Amendment.
Respondent Steven Howards criticized and touched Vice President Cheney while the Vice President was on a meet-and-greet at a local shopping center. Petitioners Virgil Reichle and Dan Doyle, two Secret Service Agents, confronted Howards, and subsequently arrested him for assault. However, the state prosecutor dropped the charges against Howards, who then brought a First Amendment retaliatory arrest claim against the Agents. The district court denied the Agents’ motion for summary judgment, ruling that the Agents could not benefit from qualified immunity under the circumstances. The Tenth Circuit affirmed. The Supreme Court must now resolve whether one may raise a First Amendment retaliatory arrest claim when there was probable cause for one’s arrest. A decision for Howards may deter law enforcement officers from making arrests for fear of retaliatory arrest claims, while a decision for the Agents may enable officers to more easily target and punish speech which they oppose.
Questions as Framed for the Court by the Parties
1. Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 U.S. 250 (2006).
2. Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.
In 2006, Respondent Steven Howards visited the Beaver Creek Mall in Beaver Creek, Colorado to bring his older son to a piano recital. See Howards v. McLaughlin, 634 F.3d 1131, 1135 (10th Cir. 2011). Both Petitioners—Secret Service Protective Intelligence Coordinator Virgil “Gus” Reichle and Special Agent Dan Doyle—were also present at the mall, serving in an undercover capacity and, along with other Agents, accompanying then-Vice President Dick Cheney, who was there for a meet-and-greet. See id. As Howards made his way to the recital hall, he stated on his cell phone that he was going to approach the Vice President and ask how many children he had killed that day—a statement that Doyle overheard. See id. at 1136. Doyle informed another Agent about this statement and from then on, the agents began monitoring Howards closely. See id.
After his son left for the recital, Howards waited to meet with the Vice President; when his turn came around, he criticized the Vice President for his policies in Iraq. See Howards, 634 F.3d at 1136. Howards also touched the Vice President on the shoulder as he left; Doyle noticed this action, but did not believe he had probable cause for an arrest. See id. Other agents, however, discussed the confrontation and agreed that their protective intelligence team should speak to Howards. See id. They decided to send Reichle to speak with Howards due to Reichle’s position as Intelligence Coordinator. See id. As they walked toward Howards, Doyle debriefed Reichle on what had occurred because Reichle had neither heard Howards’s statement nor seen him touch the Vice President. See id. at 1137.
At this point, Howards had already met his family at the recital and had begun to make his way back with his son toward the area where the Vice President was located. See Howards, 634 F.3d at 1137. Howards and his son were separated before they could exit the mall, however, and Howards began searching for him. See id. It was at this moment that Reichle approached Howards, identified himself, and asked to speak with him, but Howards refused to cooperate. See id. Reichle nonetheless continued to question Howards, who denied touching or assaulting the Vice President. See id. Eventually, after receiving a demonstration of what had occurred during Howards’s interaction with the Vice President, Reichle decided to arrest Howards for assault. See id. The other Agents, including Doyle, assisted in the arrest. See id. at 1138. Howards was later charged with harassment, but the Colorado state prosecutor dropped the charges. See id.
Howards then brought claims against Agents Reichle, Doyle and two others, claiming that he was unlawfully searched in violation of the Fourth Amendment and that he was arrested in retaliation for his speech in violation of the First Amendment. See Howards, 634 F.3d at 1138. Although the Agents submitted a motion for summary judgment—arguing that the doctrine of qualified immunity shielded them from suit—the district court held that the qualified immunity defense was precluded under the circumstances. See id. The Agents filed an interlocutory appeal to the United States Court of Appeals for the Tenth Circuit, but the court affirmed the district court’s ruling on Reichle and Doyle, finding that they could not receive qualified or absolute immunity against Howards’s First Amendment claim. See id. at 1151.
When a government official retaliates against a person for exercising a First Amendment right, that person has a federal cause of action under 42 U.S.C. § 1983. All retaliatory action claims require a showing that an official had a retaliatory motive that substantially caused the plaintiff’s harm. See Hartman v. Moore, 547 U.S. 250, 260 (2006). A plaintiff who brings a retaliatory prosecution claim must demonstrate that the prosecutor did not have probable cause for pursuing the prosecution; however, the Supreme Court has not resolved whether the same requirement applies to retaliatory arrest claims. See id. at 262, 265–66. Four of the six circuit courts that have addressed this issue have determined that the no-probable-cause requirement applies to both types of retaliation claims. See Brief for Petitioners, Virgil D. “Gus” Reichle, Jr., and Dan Doyle at 17.
Here, Petitioners Virgil “Gus” Reichle, Jr. and Dan Doyle (collectively “Reichle”) argue that the no-probable-cause requirement advances the purpose of qualified immunity, and Secret Service Agents must have broad discretion because of the importance of protecting government officials. See Brief for Petitioners at 22–23, 29–30. Respondent Steven Howards maintains that retaliatory prosecution claims have a no-probable-cause requirement due to certain difficulties that do not arise in retaliatory arrest cases. See Brief for Respondent, Steven Howards at 8–9. He warns that extending the requirement to retaliatory arrests would give police unbridled discretion to the detriment of First Amendment rights. See id. at 21–22.
Impact on Government Officials’ Discretion
Reichle argues that an officer who had probable cause for an arrest should be shielded by qualified immunity from a future retaliatory arrest claim. See Brief for Petitioners at 22–23. Qualified immunity protects government officials from claims for money damages unless the plaintiff can show that the official violated clearly established federal law. See id. at 23. Reichle argues that the no-probable-cause requirement would advance the purpose of the doctrine—to allow government officials to exercise broad discretion without fear that every decision will be scrutinized in court. See id. at 24. Reichle argues that, with this requirement in place, officers could protect the public more effectively because they would experience less hesitation caused by the threat of litigation. See id. at 26. Reichle maintains that his proposed rule would also provide an objective measure for determining whether a government official’s retaliatory motive caused the plaintiff’s harm. See id. at 25. Consistent with the purpose of qualified immunity, this objective measure would protect government officials from costly lawsuits by allowing courts to dispose of some claims at the earliest possible stage, before discovery and motions for summary judgment. See id. at 25–26.
Howards responds that retaliatory arrest claims do not raise the same difficulties as retaliatory prosecution claims in determining whether the government official harbored an unconstitutional animus that caused the plaintiff’s harm. See Brief for Respondent at 8–9, 11–12. According to Howards, retaliatory arrest cases typically involve one government agent who both caused the plaintiff’s harm and harbored the unconstitutional motive. See id. In contrast, retaliatory prosecution cases involve a complex decision chain with multiple actors harboring different motives. See id. According to Howards, the historical approach to First Amendment retaliatory arrest claims—which requires a plaintiff to show that his or her protected speech substantially motivated the defendant’s decision to arrest—has functioned adequately over the years, and the Court should not create additional obstacles for plaintiffs. See id. at 13. Howards, moreover, argues that retaliatory arrest cases almost always arise when an officer has probable cause, usually insubstantial, to make an arrest while simultaneously harboring an unconstitutional intention. See id. at 14. Thus, Howard contends that adopting the no-probable-cause requirement could denigrate First Amendment rights and deprive citizens of an effective deterrent against retaliatory arrests; the requirement could enable an officer to wait for the targeted citizen to give the officer minimal probable cause to arrest for even the most petty offense. See id. at 15–16.
Police officers, Howards contends, generally have broad but not unlimited discretion in determining who to arrest. See Brief for Respondent at 24–25. For example, the Fourteenth Amendment prohibits selective enforcement, even where an officer has probable cause, based on considerations such as race. See id. at 25–26. Just as officers cannot violate the Equal Protection Clause, Howards argues that officers should not have discretion to enforce laws based on a citizen’s exercise of First Amendment rights, even when they have probable cause for an arrest. See id. at 26–27.
Relation to the Unique Role of Secret Service Agents
Reichle argues that qualified immunity has added importance for Secret Service Agents acting as bodyguards to important government officials. See Brief for Petitioners at 29. Given the importance of protecting against threats to an official’s physical safety, Reichle contends that the Secret Service must have wide latitude when making split-second security decisions. See id. at 30–31. Reichle notes that the Secret Service trains officers to act instinctively, and forcing those officers to engage in prolonged deliberation before acting could have grave consequences for their wards, and consequently, for the country as well. See id. While Reichle concedes that Agents would never deliberately neglect their protective duties to avoid legal consequences, he argues that the absence of qualified immunity could affect decisions at the margin, where an Agent may be uncertain about the threat but apprehensive about the consequences of an arrest. See id. at 31. According to Reichle, the Secret Service should be encouraged to err on the side of caution, especially when defending the life of the President or Vice President. See id. at 33.
Howards, however, argues that qualified immunity already provides sufficient protection for Secret Service Agents. See Brief for Respondent at 34–35. According to Howards, it is important to set limits on qualified immunity to ensure that the law has sufficient deterrent effect. See id. at 34. For this reason, Howards maintains that Secret Service Agents should not have greater protection than typical law enforcement officers and should certainly not have absolute immunity. See id. at 36, 43–44. Furthermore, Howards notes that Secret Service agents enjoy added protection against suits as the Department of Homeland Security indemnifies Agents for judgments against them when they acted within the scope of their employment and when doing so advances the country’s interests. See id. at 35.
Reichle argues that decisions of Secret Service agents should be entitled to a presumption that their conduct did not violate the law. See Brief for Petitioners at 35. Just like decisions to prosecute, which have a so-called presumption of regularity, decisions of Secret Service agents are inappropriate for judicial review. See id. at 35–36. According to Reichle, courts simply lack the training and experience to evaluate the role of Secret Service Agents as effective bodyguards. See id.
Howards also contends that the nature of Secret Service work does not justify a presumption of regularity. See Brief for Respondent at 43. According to Howards, the Supreme Court has limited the presumption, based on common law tradition, to a small class of government officials, which does not include Secret Service Agents. See id. at 44, 46.
The Existence of Clearly Established Federal Law
Even if plaintiffs need not show lack of probable cause, Reichle argues that the unsettled nature of the law post-Hartman demonstrates that the Agents in this case did not violate clearly established law and should thus be protected by qualified immunity. See Brief for Petitioners at 40–41. According to Reichle, the circuit split caused by Hartman demonstrates that the law was unsettled at the time of the alleged offense. See id. Furthermore, Reichle points out that some circuits have even conferred Secret Service Agents with absolute immunity. See id. at 43–44. Reichle concludes that, because Secret Service Agents must provide personal security throughout the United States, they should not be required to alter their conduct depending on location. See id. at 42.
However, Howards asserts, in response, that the law regarding retaliatory arrests was clearly established, even post-Hartman. See Brief for Respondent at 37. He notes that the Hartman Court did not absolve the prosecutor in the case of a First Amendment violation, but simply determined that a prosecutor who had probable cause would not be subject to damages for unlawful conduct. See id. at 38. The test established for qualified immunity, argues Howards, asks whether an official had notice that an action violated the law, not whether the official could be held liable in court. See id.. Howards claims that the Agents here were clearly aware that a retaliatory arrest would violate the First Amendment, notwithstanding their understanding that a violation would lead to legal liability. See id. at 39.
Petitioners Virgil Reichle and Dan Doyle (collectively “Reichle”) argue that when an arrest is based on probable cause, the arrestee should not be able to raise a First Amendment retaliatory arrest claim. See Brief for Petitioners, Virgil D. “Gus” Reichle, Jr., and Dan Doyle at 24–26. Reichle asserts that such a rule would give Secret Service Agents a clear standard of conduct, and prevent courts from second-guessing the important, split-second decisions that Agents must make when protecting political leaders. See id. Respondent Steven Howards asserts that courts should not bar a First Amendment retaliatory arrest claim even when there was probable cause for the arrest. See Brief for Respondent, Steven Howards at 15–16. According to Howards, because it is long settled that qualified immunity does not protect government officers from conducting actions that they know to be unlawful—such as arresting an individual based on the exercise of First Amendment free speech—Reichle here should be denied qualified immunity. See id. at 38–39.
Impact on Law Enforcement Officers Acting in Official Capacity
Reichle emphasizes that Secret Service Agents are different from normal law enforcement officers—they do not perform ordinary police functions, but rather serve as personal bodyguards to high-profile political figures. See Brief for Petitioners at 29. Reichle argues that due to the unique and important challenges of their role, all Secret Service Agents should be able to rely on a clear, no-probable-cause standard when making an arrest, especially because agents often have to make significant security decisions instantaneously or in a brief window of time. See id.
The International City/County Management Association and other organizations supporting local governments (“the Organizations”) contend that if individuals were allowed to bring First Amendment retaliatory arrest claims when the arrests themselves were supported by probable cause, this would hinder law enforcement officers acting in their official capacity. See Brief of Amicus Curiae The International City/County Management Association, et al. in Support of Petitioners at 5. The Organizations observe that almost all speech that law enforcement officers come into contact with—including profane or hostile speech—is protected under the First Amendment, even when the offensive language is directed at the officers. See id. at 8. Therefore, the Organizations reason, any arrest could potentially be framed as a First Amendment retaliatory arrest, unless the arrestee does not speak before and during the arrest, or unless the arrestee is not wearing any expressive message on his or her clothing. See id. Furthermore, the Organizations note that once a retaliatory motive has been alleged, it is extremely difficult for a law enforcement officer to prove that the arrest was based solely on the probable cause. See id. at 10–11. Hence, the Organizations believe that the absence of a no-probable-cause standard would ultimately deter officers from making arrests. See id. at 12–13.
Howards, however, does not believe that the availability of First Amendment retaliatory arrest claims will impede law enforcement efforts in any significant way. See Brief for Respondent at 19–20, 23–24. Howards notes that, currently, law enforcement officers enjoy broad discretion in their decision to arrest after any probable cause has been established. See id. In Howards’s view, however, such extensive discretion is dangerous, as it enables officers to prejudicially enforce minor offenses against citizens who are exercising their legitimate First Amendment free speech rights. See id. at 20–21. For instance, he argues that certain officers may selectively penalize individuals who express views objectionable to the officers by charging the individuals with petty offenses. See id. The threat to free speech is particularly acute, according to Howards, in light of the historical tendency of law enforcement officers to retaliate against those with minority or unpopular views. See id. Moreover, Howards contends that, under the standard suggested by the Agents, individuals punished for expressing their views would not have any remedies to pursue in case of retaliatory arrests. See id. at 21–22. Freedom of speech, Howards stresses, is an essential right in a civilized and free state, and hinging the availability of First Amendment claims on the existence or absence of probable cause puts this fundamental right at risk of frequent violation. See id. at 22.
In this case, the Supreme Court will determine whether the no-probable-cause requirement established for retaliatory prosecution claims also applies to retaliatory arrest claims. Reichle argues that the no-probable-cause requirement would advance the purpose of qualified immunity by giving law enforcement officers a clear rule to follow in the field. For Reichle, Secret Service Agents, in particular, must enjoy broad discretion in view of their important role in protecting the President and other government officials. Howards responds that retaliatory prosecutions differ significantly from retaliatory arrests, necessitating different treatments. By extending the no-probable-cause requirement, Howards argues that the Supreme Court would give police officers unchecked discretion to suppress the legitimate exercise of First Amendment rights. A decision in favor of Reichle would allow courts to dispose of more retaliatory arrest claims at early stages of litigation and could encourage officers to be more protective of the public knowing that an arrest supported by probable cause would not give rise to a viable claim. On the other hand, such a decision could also eliminate an effective deterrent against retaliatory action by allowing officers to simply wait for a targeted citizen to raise probable cause for an arrest on a petty offense.
New York Times: Supreme Court to Consider the Arrest of a Cheney Critic (Dec. 5, 2011)
Boston.com: High Court to Hear Suit over Cheney Event Arrest (Dec. 5, 2011)
FindLaw.com: SCOTUS Grants Secret Service Qualified Immunity Review (Dec. 5, 2011)