REICHLE v. HOWARDS

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Case Basics
Docket No. 
11-262
Petitioner 
Virgil D. "Gus" Reichle, Jr., et al.
Respondent 
Steven Howards
Decided By 
Advocates
(for the petitioner)
(Principal Deputy Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioner)
(for the respondent)
Term:
Facts of the Case 

On June 16, 2006, Steven Howards saw Vice President Dick Cheney while strolling through Beaver Creek Mall. Howards decided to approach the Vice President to protest the President’s polices regarding the Iraq War.

On that day, Gus Reichle and Dan Doyle were part of the Secret Service detail protecting the Vice President. Doyle heard Howards state into his cell phone “I’m going to ask him how many kids he’s killed today." Howards approached the Vice President and told the Vice President that the he disapproved of his policies in Iraq. When the Vice President turned to leave, Howards made unsolicited physical contact with the Vice President by touching the Vice President’s right shoulder with his open hand.

Agent Reichle approached Howards, identified himself as a Secret Service agent, and asked to speak with Howards. After briefly questioning Howards, Reichle arrested him. Howards was initially charged with harassment under state law, but those charges were dismissed. No federal charges were filed.

Howards sued agents Reichle and Doyle under 42 U.S.C. 1983, alleging that the agents had violated his Fourth Amendment right with an unlawful search and seizure and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. The agents moved for summary judgment on immunity grounds. The district court denied their motion, ruling that fact issues regarding the agents’ immunity defense precluded summary judgment. The agents took an interlocutory appeal to the U.S. Court of Appeals for the Tenth Circuit. They argued that they were entitled to qualified immunity because they had probable cause to arrest Howards and also asserted that they were entitled to heightened immunity by virtue of their status as Secret Service agents protecting the Vice President. The appellate court affirmed in part and reversed in part. The panel unanimously rejected Howards’ Fourth Amendment claim on the grounds that the agents objectively had probable cause to arrest Howards. However, the panel held that probable cause was not a bar to Howards’ First Amendment retaliation claim and that Howards could proceed with his First Amendment retaliation claim notwithstanding the fact that the agents had probable cause for his arrest.

Question 

1. Does probable cause to make an arrest bar a First Amendment retaliatory arrest claim?

2. Do Secret Service agents have qualified immunity in the matter of an arrest for which there was probable cause consistent with the Fourth Amendment?

Conclusion 
Decision: 8 votes for Howards, 0 vote(s) against
Legal provision: First Amendment

No answer and Yes. Justice Clarence Thomas delivered the opinion of the court, reversing the 10th Circuit and remanding. The Supreme Court held that the agents have qualified immunity from Howards’ First Amendment claim because there is no clearly established right to protection from retaliatory arrest when there is probable cause for that arrest. For a right to be clearly established, every reasonable officer must understand that he or she is violating that right. The Court has never acknowledged the proposed right in this case, and 10th Circuit precedent is unclear. The Court did not decide whether there is, in fact, a right to protection from retaliatory arrests where there is otherwise probable cause for the arrest.

Justice Ruth Bader Ginsburg concurred, writing that she would not grant qualified immunity if the agents had been ordinary law enforcement officers. She would apply a different standard for officers charged with protecting public officials because they must make quick and decisive decisions to protect the safety of those officials. The agents’ actions in this case were rational and should not expose them to civil damages. Justice Stephen H. Breyer joined in the concurrence. Justice Elena Kagan did not participate in the decision.

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REICHLE v. HOWARDS. The Oyez Project at IIT Chicago-Kent College of Law. 22 October 2014. <http://www.oyez.org/cases/2010-2019/2011/2011_11_262>.
REICHLE v. HOWARDS, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2011/2011_11_262 (last visited October 22, 2014).
"REICHLE v. HOWARDS," The Oyez Project at IIT Chicago-Kent College of Law, accessed October 22, 2014, http://www.oyez.org/cases/2010-2019/2011/2011_11_262.