Nahmod Law

The First Amendment Retaliatory Arrest Question

Suppose a police officer arrests a person with objective probable cause to arrest but with the subjective motivation to arrest him because of something he said, in violation of the First Amendment? Does the Fourth Amendment probable cause determination have any bearing on the section 1983 First Amendment claim for damages?

One would think that the answer should be “no” because these are separate constitutional violations. After all, if the police officer had instead subjectively arrested the plaintiff because of his race, wouldn’t there still be an equal protection violation and therefore a section 1983 equal protection damages claim?

The Supreme Court’s decision in Hartman v. Moore, a Retaliatory Prosecution Case

However, the answer to the First Amendment retaliatory arrest question may not be so simple after Hartman v. Moore, 547 U.S. 250 (2006), discussed in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:THE LAW OF SECTION 1983 (4th ed. 2011), at section 3:13. In this section 1983 case, the Court held that a plaintiff, who sued law enforcement officers contending that he was prosecuted because of his protected speech, had to allege and prove the absence of probable cause as part of his claim.

The Court reached this conclusion because, unlike in ordinary retaliation cases that involved a relatively clear causal connection between the impermissible motivation and resulting injury to the plaintiff, the causal link was far more attenuated in retaliatory prosecution cases: the plaintiff had to show that the impermissible motivation of the law enforcement officer caused the prosecutor to prosecute, a decision that was entitled to a “presumption of regularity.” Thus, according to the Court, it made sense in retaliatory prosecution cases to impose on plaintiffs this additional burden of pleading and proving the absence of probable cause. (Recall that prosecutors are absolutely immune from damages liability for their decisions to prosecute).

Certiorari Granted in Reichle v. Howards

Does Hartman‘s rationale apply equally to retaliatory arrest cases? Or is Hartman very different because of difficulty that retaliatory prosecution plaintiffs typically have in showing the causal link between the law enforcement officer’s impermissible motivation and the prosecutor’s decision to prosecute?

This is the issue now before the Court in Reichle v. Howards, No. 11-262, a case arising out of the Tenth Circuit. On Dec.5, 2011, the Supreme Court granted certiorari in Reichle to deal with the important question of whether there should be a Fourth Amendment probable cause defense to a Bivens First Amendment claim that federal  law enforcement officers arrested the plaintiff because of their disagreement with his speech.The Tenth Circuit, in Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting part, held that there was no such defense, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him.

Question Presented

The more important of the two questions presented (PDF) (the second relates to clearly settled law) is the first:

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 [citation omitted].

Comments

1. Reichle involves a Bivens claim but there is little doubt that whatever the Court rules will also apply to section 1983 claims.

2. If the Court were to rule that probable cause is indeed a defense to First Amendment retaliatory arrests, it would have to be a section 1983 statutory interpretation ruling and not a First Amendment ruling, as was true for Hartman.  In other words, the Court would not be changing First Amendment doctrine as such, although it would be making it considerably more difficult for such section 1983 (and Bivens) plaintiffs to recover damages.

3. The fact that the defendants are two Secret Service Agents protecting the Vice President may be a factor that encourages the Court to rule for them. The agents were on protective detail for Vice President Cheney when they arrested the plaintiff after an encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”

4. A decision fully applying Hartman to First Amendment retaliatory arrests would be a significant game-changer.