By Kimberly Atkins
The Daily Record Newswire
The U.S. Supreme Court has declined to clearly answer the question of whether plaintiffs can bring First Amendment-based retaliatory arrest claims despite the existence of probable cause.
The continued uncertainty has disappointed legal experts and advocates on both sides of the issue.
“Before the decision it was an open legal question whether police and other government officials can be held liable for retaliatory arrest in violation of the First Amendment where there is an independent basis for the arrest. And it remains an open question,” said Michael C. Dorf, professor at Cornell University Law School in Ithaca, N.Y. and author of the blog Dorf on Law.
The decision in Reichle v. Howards stemmed from a 2006 altercation involving then Vice President Dick Cheney, a Secret Service agent and Steven Howards. It started when the agent, who accompanied Cheney during a public appearance at a Colorado shopping mall, overheard Howards say in a cell phone conversation: “I’m going to ask [the Vice President] how many kids he’s killed today.”
Howards then approached Cheney, told him that his “policies in Iraq are disgusting,” and touched his shoulder before walking away. Howards left the mall, but returned later.
The agent claimed Howards looked anxious and erratic and was holding an opaque bag, so he approached him.
Howards accused the agent of singling him out because of his antiwar views. He was arrested and charged with harassment in violation of state law.
After the charges against him were dropped, Howards sued the agent for, among other things, violating his First Amendment rights by arresting him in retaliation for the views he expressed to Cheney.
A U.S. District Court denied the agent’s claim of qualified immunity and found that the existence of probable cause for the arrest did not bar a First Amendment retaliation claim. The 10th Circuit affirmed.
The Supreme Court granted certiorari to decide whether the retaliatory arrest claim could be brought, and whether such a rule was clearly established law at the time of Howards’ arrest.
In a unanimous judgment, the justices reversed the lower court, holding that such a rule was not clearly established and therefore the agent was shielded by qualified immunity.
As a result, it was unnecessary to address the First Amendment issue.
“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 established at the time of [this] arrest,” Justice Clarence Thomas wrote for the Court.
But by not addressing the merits of the case, the Court missed an opportunity to clear up a murky area of the law, legal observers say.
“We were hoping for two things: to get a win, and to get clarity,” said Lisa Soronen, executive director of the State and Local Legal Center in Washington, which filed an amicus brief in the case in support of the Secret Service agent. “What was disappointing about the decision is that, while it was somewhat of a win, it’s not as big of a win because no clarity was given on the underlying issue.”
Although this case involved a federal agent, the majority of cases litigated on the First Amendment retaliation issue have involved local and state police, Soronen said.
Getting a definitive answer on the issue “is critical for any police officer that doesn’t want to be held liable for retaliatory arrest,” she said.
While the Court will sometimes avoid ruling on an issue to give it a chance to percolate longer in the state courts and circuits before taking it up again later, some attorneys believe that is less likely to happen now on the retaliatory arrest issue.
That’s because the Court’s qualified immunity ruling “will give judges an excuse to just dismiss cases on qualified immunity, so there will be no new guidance,” said Stephen Bergstein, a partner in the Chester, N.Y.-based firm Bergstein & Ullrich and author of the blog Wait a Second!, which tracks 2nd Circuit civil rights opinions.
Making the issue even more unclear is the fact that the Supreme Court has not definitively established what precedent governs in determining whether a rule is “clearly established.”
“I always thought it was settled law that you look to Supreme Court precedent,” Bergstein said. But after seeing the Court in Reichle consult 10th Circuit decisions, he did some research and discovered that the Supreme Court has never ruled on the issue, leaving state and federal courts to look to local precedent and possibly come to different conclusions depending on the jurisdiction.
While this case involved the peculiar situation of an anti-war citizen confronting the vice president, other more common situations, such as a protest against a public official who has the power to direct police to selectively make arrests, could give rise to claims of First Amendment-based retaliation claims even where probable cause existed.
“I would want [the Supreme Court] to settle it in a way that makes it clear if there is liability in these circumstances even when there is probably cause, because the First Amendment and the Fourth Amendment protect different interests,” Dorf said.
Soronen speculated that the Court may have avoided a ruling on the merits in order to preserve unanimity in the judgment.
Though the justices agreed on the outcome in Reichle (Justice Elena Kagan did not participate), Justice Ruth Bader Ginsburg wrote a concurrence joined by Justice Stephen G. Breyer which began: “Were defendants ordinary law enforcement officers, I would hold that Hartman v. Moore, 547 U. S. 250 (2006), does not support their entitlement to qualified immunity.”
In Hartman, the Court held that plaintiffs claiming retaliatory prosecution must show an absence of probable cause for the underlying criminal charge.
Since at least two justices were not ready to extend that reasoning to all retaliatory arrest claims, the justices could have decided to come together on a judgment they could all agree on.
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