Nahmod Law

I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards,  a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.

That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.

On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.

I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).

Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.

Fourth Circuit

In Tobey v. Jones, 706 F.3d 379 (4^th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause.  Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.

Seventh Circuit

The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7^th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.

Ninth Circuit

In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9^th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9^th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.

Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.

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