Reichle v. Howards
December 5, 2011
Case #: 11-262
634 F.3d 1131 (10th Cir. 2011)
Full Text Opinion: http://www.bloomberglaw.com/public/document/Howards_v_McLaughlin_634_F3d_1131_10th_Cir_2011_Court_Opinion
Constitutional Law: ((1): Whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2): Whether Secret Service agents should receive qualified and absolute immunity when making split second decisions when protecting the Vice President or the President).
Vice President Cheney held a meet and greet in a mall. Secret Service agents overheard Respondent say into his cellphone that he was going to ask Cheney how many kids he killed today, stand in line to meet Cheney, say he thought Cheney's policies in Iraq were terrible, and touch the Vice President on the arm. The agents determined that they had probable cause to arrest Respondent based on this information along with the facts that Respondent was carrying an opaque bag in an area that did not require metal detectors and Respondent lied to the officers claiming he did not touch the Vice President. Respondent was later transferred to local police, who filed an assault charge, which was later dismissed. No federal cause of action was pursued.
Respondent filed a 1983 action, or an alternative Bivens action, against the agents involved in his arrest claiming the agents violated his First and Fourth Amendment rights. The agents claimed qualified immunity at the summary judgement phase. The Colorado district court held that judgement as a matter of law was inappropriate at that stage due to questions of fact regarding the availability of qualified immunity to the agents. On interlocutory appeal the agents argued that qualified immunity protected them from the claims because they were performing discretionary functions color of federal law.
The court of appeals found that the agents had probable cause to arrest Petitioner and therefore were not in violation of the Fourth Amendment. The court stated that because probable cause existed at the time of the arrest, the agents were entitled to qualified immunity on Respondent's Fourth Amendment claim. The court upheld Respondent's First Amendment claim as to two of the agents, finding that those agents relied on Respondent's protected speech as a cause to suspect Respondent and that probable cause does not alter the outcome if the motivation is based on protected speech. As to the remaining agents, the court found that the Respondent offered no evidence evincing retaliation or reliance on protected speech as a cause of the arrest. The court held that the first agents did not receive qualified immunity but the remaining agents would.