Reichle v. Howards
March 21, 2012
Case #: 11-262
Court Below: 634 F.3d 1131 (10th Cir. 2011)
Full Text Opinion: http://www.ca10.uscourts.gov/opinions/09/09-1201.pdf
Criminal Procedure: (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 while protecting the Vice President or the President.
Petitioners serve as Secret Service Agents and provided coverage during a vice presidential event. Petitioners overheard Respondent say into his cellphone that he was going to stand in line to meet the Vice President (VP), ask the VP how many kids he killed today, say he thought VP’s policies in Iraq were terrible and touch VP on the arm. Petitioners determined they had probable cause to arrest Respondent based on this information and because 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 VP. Local charges were later dismissed and no federal cause of action was pursued.
Respondent filed a 1983 action, or in the alternative a Bivens action, against the agents involved in his arrest, claiming the agents violated his First and Fourth Amendment rights. The Court of Appeals found the agents had probable cause to arrest Petitioner and did not violate the Fourth Amendment due to qualified immunity. 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 allow immunity if the motivation for arrested arises from protected speech.
Petitioner argues that probable cause should allow qualified immunity to attach to claims for retaliatory arrest. Petitioner states that the absence of a probable cause bar to such claims causes agents to second-guess decisions made in the course of duty for fear of liability. Petitioner further argues that qualified immunity is necessary to allow agents to make split-second decisions to further the protection of our national officers. The absence of such immunity will endanger those the agents protect. Respondent argues that the lack of probable cause should not become an element of a First Amendment retaliatory arrest claim when the motivation behind the officer's arrest is a personal bias towards protected speech.