On June 4, 2012, the U.S. Supreme Court decided Reichle v. Howards (No. 11-262), holding that two Secret Service agents were entitled to qualified immunity because, at the time they made an arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.
In 2006, Secret Service Agents Gus Reichle and Dan Doyle were protecting Vice President Richard Cheney as he greeted members of the public in a shopping mall in Beaver Creek, Colorado. Agent Doyle overheard respondent Steven Howards say, during a cell phone conversation, "I'm going to ask [the vice president] how many kids he's killed today." Howards approached the vice president and told him that his "policies in Iraq are disgusting." After the vice president thanked Howards and moved along, Howards touched the vice president's shoulder as the vice president left.
Agent Reichle then approached and questioned Howards. Howards told Agent Reichle, "if you don't want other people sharing their opinions, you should have him [the vice president] avoid public places." During this exchange, Howards falsely denied having touched the vice president. After confirming that Agent Doyle had seen Howards touch the vice president, Reichle arrested Howards. Charges against Howards for harassment were eventually dismissed. Howards then brought a civil rights action against the Secret Service agents under 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). He alleged that he was arrested and searched without probable cause in violation of the Fourth Amendment and that he was arrested in retaliation for criticizing the vice president in violation of the First Amendment.
Agents Reichle and Doyle moved for summary judgment, arguing that they were entitled to qualified immunity. The District Court denied their motion, and a divided Tenth Circuit Court of Appeals ruled that they were entitled to qualified immunity only on the Fourth Amendment claim, not the First Amendment claim. The U.S. Supreme Court granted certiorari on the First Amendment claim only and ruled that the agents were entitled to qualified immunity because there was not clearly established law at the time of Howards' arrest holding that a retaliatory arrest claim may lie despite the presence of probable cause to support the arrest.
In its analysis, the Court noted that qualified immunity shields government officials from civil damages liability "unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." In this case, the Court found that the "clearly established" standard had not been satisfied because there was not settled case law at the time of Howards' arrest clearly recognizing a First Amendment right that is separate from a retaliatory arrest supported by probable cause. The Court relied on its prior decision in Hartman v. Moore, 547 U.S. 250, which held that a plaintiff cannot state a claim of retaliatory prosecution in violation of the First Amendment if the charges were supported by probable cause. Because of Hartman, the Court determined that at the time of Howards' arrest, it was "at least arguable that Hartman's rule extended to retaliatory arrests." In other words, "Hartman injected uncertainty into the law governing retaliatory arrests, particularly in light of Hartman's rationale and the close relationship between retaliatory arrest and prosecution claims." Therefore, the Court concluded that when Howards was arrested it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation, and consequently the agents were entitled to qualified immunity. The Court declined to address the substantive issue of whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest.
Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor joined. Justice Ginsburg filed an opinion concurring in the judgment in which Justice Breyer joined. Justice Kagan took no part in the consideration or decision of the case.