Nahmod Law

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012

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. As noted there, 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.

(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)

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.

The Tenth Circuit Decision

The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his 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.”

The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they 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. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.

The Supreme Court Decision

The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “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 settled at the time of Howards’ arrest.”

Justice Thomas began by emphasizing that constitutional rights must be clearly established in a “particularized” sense. For that reason, the Court’s comment in Whren v. United States, 517 U.S. 806 (1996), that the Equal Protection Clause would prohibit an officer from selectively enforcing traffic laws based on race, did not establish with any particularity that a retaliatory arrest supported by probable cause violates the First Amendment.

Justice Thomas then went on to determine that despite the Tenth Circuit’s own reading of its precedents in light of Hartman v. Moore, those precedents did not clearly establish that a retaliatory arrest supported by probable cause violated the First Amendment. For one thing, Hartman’s impact on retaliatory arrest precedent was “far from clear.” For another, when Hartman was decided, some circuits made no distinction between retaliatory arrests and retaliatory prosecutions. Indeed, after Hartman other circuits had applied it to retaliatory arrests. Thus, a reasonable official could have interpreted Hartman to apply to retaliatory arrests despite the Court’s language in Hartman that emphasized the unique causation problems with retaliatory prosecution claims.

Justice Thomas concluded by pointing out that the Court’s qualified immunity reasoning in Reichle did not necessarily indicate that Hartman should be applied to retaliatory arrests. “To be sure, we do not suggest that that Hartman’s rule in fact extends to arrests.”


Justice Ginsburg, joined by Justice Breyer, concurred in the judgment. They maintained that if the defendants here had been ordinary law enforcement officers, they would not be protected by qualified immunity because Hartman was so clearly distinguishable in its emphasis on the unique causation problems with retaliatory prosecution claims. However, this case dealt with officers assigned to protect public officials who made split-second decisions regarding threats, and those decisions had to take account of words spoken.


 1. Reichle involved a Bivens claim but there is little doubt that the Court’s qualified immunity decision also applies to § 1983 retaliatory arrest claims.

2. Had the Court ruled broadly that probable cause was indeed a defense to § 1983 First Amendment retaliatory arrest claims, that would have been a § 1983 statutory interpretation ruling and not a First Amendment ruling, as was true for Hartman itself.  In other words, the Court would not have changed First Amendment doctrine as such, at least for § 1983 claims  (query for Bivens claims?), although having a probable cause defense would have made it considerably more difficult for such § 1983 (and Bivens) plaintiffs to recover damages for retaliatory arrests.

3. For the time being, there is no probable cause defense to First Amendment retaliatory arrest claims at the national level; its availability depends on the law of the circuit in which the lawsuit is filed.

Written by snahmod

June 13, 2012 at 9:33 am

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