Reichle v. Howards

When a government official retaliates against a person for exercising a First Amendment right, that person has a federal cause of action under 42 U.S.C. § 1983. All retaliatory action claims require a showing that an official had a retaliatory motive that substantially caused the plaintiff’s harm. See Hartman v. Moore, 547 U.S. 250, 260 (2006). A plaintiff who brings a retaliatory prosecution claim must demonstrate that the prosecutor did not have probable cause for pursuing the prosecution; however, the Supreme Court has not resolved whether the same requirement applies to retaliatory arrest claims. See id. at 262, 265–66. Four of the six circuit courts that have addressed this issue have determined that the no-probable-cause requirement applies to both types of retaliation claims. SeeBrief for Petitioners, Virgil D. “Gus” Reichle, Jr., and Dan Doyle at 17.

Here, Petitioners Virgil “Gus” Reichle, Jr. and Dan Doyle (collectively “Reichle”) argue that the no-probable-cause requirement advances the purpose of qualified immunity, and Secret Service Agents must have broad discretion because of the importance of protecting government officials. See Brief for Petitioners at 22–23, 29–30. Respondent Steven Howards maintains that retaliatory prosecution claims have a no-probable-cause requirement due to certain difficulties that do not arise in retaliatory arrest cases. SeeBrief for Respondent, Steven Howards at 8–9. He warns that extending the requirement to retaliatory arrests would give police unbridled discretion to the detriment of First Amendment rights. See id.at21–22.

Impact on Government Officials’ Discretion

Reichle argues that an officer who had probable cause for an arrest should be shielded by qualified immunity from a future retaliatory arrest claim. See Brief for Petitioners at 22–23. Qualified immunity protects government officials from claims for money damages unless the plaintiff can show that the official violated clearly established federal law. See id. at 23. Reichle argues that the no-probable-cause requirement would advance the purpose of the doctrine—to allow government officials to exercise broad discretion without fear that every decision will be scrutinized in court. See id. at 24. Reichle argues that, with this requirement in place, officers could protect the public more effectively because they would experience less hesitation caused by the threat of litigation. See id. at 26. Reichle maintains that his proposed rule would also provide an objective measure for determining whether a government official’s retaliatory motive caused the plaintiff’s harm. See id. at 25. Consistent with the purpose of qualified immunity, this objective measure would protect government officials from costly lawsuits by allowing courts to dispose of some claims at the earliest possible stage, before discovery and motions for summary judgment. See id. at 25–26.

Howards responds that retaliatory arrest claims do not raise the same difficulties as retaliatory prosecution claims in determining whether the government official harbored an unconstitutional animus that caused the plaintiff’s harm. SeeBrief for Respondent at 8–9, 11–12. According to Howards, retaliatory arrest cases typically involve one government agent who both caused the plaintiff’s harm and harbored the unconstitutional motive. See id. In contrast, retaliatory prosecution cases involve a complex decision chain with multiple actors harboring different motives. See id. According to Howards, the historical approach to First Amendment retaliatory arrest claims—which requires a plaintiff to show that his or her protected speech substantially motivated the defendant’s decision to arrest—has functioned adequately over the years, and the Court should not create additional obstacles for plaintiffs. See id. at 13. Howards, moreover, argues that retaliatory arrest cases almost always arise when an officer has probable cause, usually insubstantial, to make an arrest while simultaneously harboring an unconstitutional intention. See id. at 14. Thus, Howard contends that adopting the no-probable-cause requirement could denigrate First Amendment rights and deprive citizens of an effective deterrent against retaliatory arrests; the requirement could enable an officer to wait for the targeted citizen to give the officer minimal probable cause to arrest for even the most petty offense. See id. at 15–16.

Police officers, Howards contends, generally have broad but not unlimited discretion in determining who to arrest. See Brief for Respondent at 24–25. For example, the Fourteenth Amendment prohibits selective enforcement, even where an officer has probable cause, based on considerations such as race. See id. at 25–26. Just as officers cannot violate the Equal Protection Clause, Howards argues that officers should not have discretion to enforce laws based on a citizen’s exercise of First Amendment rights, even when they have probable cause for an arrest. See id. at 26–27.

Relation to the Unique Role of Secret Service Agents

Reichle argues that qualified immunity has added importance for Secret Service Agents acting as bodyguards to important government officials. See Brief for Petitioners at 29. Given the importance of protecting against threats to an official’s physical safety, Reichle contends that the Secret Service must have wide latitude when making split-second security decisions. See id. at 30–31. Reichle notes that the Secret Service trains officers to act instinctively, and forcing those officers to engage in prolonged deliberation before acting could have grave consequences for their wards, and consequently, for the country as well. See id. While Reichle concedes that Agents would never deliberately neglect their protective duties to avoid legal consequences, he argues that the absence of qualified immunity could affect decisions at the margin, where an Agent may be uncertain about the threat but apprehensive about the consequences of an arrest. See id. at 31. According to Reichle, the Secret Service should be encouraged to err on the side of caution, especially when defending the life of the President or Vice President. See id. at 33.

Howards, however, argues that qualified immunity already provides sufficient protection for Secret Service Agents. See Brief for Respondent at 34–35. According to Howards, it is important to set limits on qualified immunity to ensure that the law has sufficient deterrent effect. See id. at 34. For this reason, Howards maintains that Secret Service Agents should not have greater protection than typical law enforcement officers and should certainly not have absolute immunity. See id. at 36, 43–44. Furthermore, Howards notes that Secret Service agents enjoy added protection against suits as the Department of Homeland Security indemnifies Agents for judgments against them when they acted within the scope of their employment and when doing so advances the country’s interests. See id. at 35.

Reichle argues that decisions of Secret Service agents should be entitled to a presumption that their conduct did not violate the law. See Brief for Petitioners at 35. Just like decisions to prosecute, which have a so-called presumption of regularity, decisions of Secret Service agents are inappropriate for judicial review. See id. at 35–36. According to Reichle, courts simply lack the training and experience to evaluate the role of Secret Service Agents as effective bodyguards. See id.

Howards also contends that the nature of Secret Service work does not justify a presumption of regularity. See Brief for Respondent at 43. According to Howards, the Supreme Court has limited the presumption, based on common law tradition, to a small class of government officials, which does not include Secret Service Agents. See id. at 44, 46.

The Existence of Clearly Established Federal Law

Even if plaintiffs need not show lack of probable cause, Reichle argues that the unsettled nature of the law post-Hartman demonstrates that the Agents in this case did not violate clearly established law and should thus be protected by qualified immunity. See Brief for Petitioners at 40–41. According to Reichle, the circuit split caused by Hartman demonstrates that the law was unsettled at the time of the alleged offense. See id. Furthermore, Reichle points out that some circuits have even conferred Secret Service Agents with absolute immunity. See id. at 43–44. Reichle concludes that, because Secret Service Agents must provide personal security throughout the United States, they should not be required to alter their conduct depending on location. See id. at 42.

However, Howards asserts, in response, that the law regarding retaliatory arrests was clearly established, even post-Hartman. See Brief for Respondent at 37. He notes that the Hartman Court did not absolve the prosecutor in the case of a First Amendment violation, but simply determined that a prosecutor who had probable cause would not be subject to damages for unlawful conduct. See id. at 38. The test established for qualified immunity, argues Howards, asks whether an official had notice that an action violated the law, not whether the official could be held liable in court. See id.. Howards claims that the Agents here were clearly aware that a retaliatory arrest would violate the First Amendment, notwithstanding their understanding that a violation would lead to legal liability. See id. at 39.