The standard for bringing civil rights claims against police officers is well-settled: As a general matter, police engage in a false arrest when they do not have probable cause, and use excessive force when their force is unreasonable. Almost equally well-settled is the standard for First Amendment retaliation claims: As a general proposition, government officials may not take adverse, retaliatory action against individuals because they spoke out on a matter of public concern. But what happens when a plaintiff claims she was arrested in retaliation for protected speech, but the arrest was also supported by probable cause?

‘Reichle v. Howards’

The Supreme Court recently faced this question in Reichle v. Howards, 132 S.Ct. 2088 (2012). The case involved a visit in 2006 by then-Vice President Dick Cheney to a shopping mall in Beaver Creek, Colo. A Secret Service protective detail, including agents Gus Reichle and Dan Doyle, accompanied the vice president. The plaintiff, Steven Howards, was also at the mall having a cell phone conversation while Cheney greeted members of the public. During this conversation, Agent Doyle allegedly overheard Howards say, “I’m going to ask [the vice president] how many kids he’s killed today.” Doyle informed the two other agents, and the three of them began monitoring Howards more closely.

Howards then entered the line to meet Cheney. When Howards approached, he told the vice president that his “policies in Iraq are disgusting.” Cheney thanked Howards and moved along, but Howards either patted or pushed Cheney’s shoulder as Cheney departed.

Agent Reichle then approached Howards, presented his badge, and asked to speak with him. Howards refused. Reichle stepped in front of Howards and asked if he had assaulted the vice president. Howards denied assaulting Cheney and told Reichle, “if you don’t want other people sharing their opinions, you should have him [the vice president] avoid public places.” Reichle also asked Howards whether he had touched Cheney; Howards responded, falsely, that he had not. Reichle arrested Howards, who was ultimately charged with harassment in violation of state law. The charge was eventually dismissed.

Howards brought a civil rights action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which permits plaintiffs to bring damages actions under federal common law against federal officials who violate certain constitutional rights. Howards alleged that he was (1) arrested without probable cause, in violation of the Fourth Amendment, and (2) arrested in retaliation for criticizing the vice president, in violation of the First Amendment.

The U.S. Court of Appeals for the 10th Circuit held that defendants had probable cause to arrest Howards, because, by falsely denying touching the vice president, he made a materially false statement to a federal official in violation of 18 U.S.C. §1001. On appeal before the Supreme Court, Howards did not challenge the probable cause determination, but did continue to press his First Amendment retaliation claim.

If There Is Probable Cause

May an arrestee assert a First Amendment retaliation claim where there is probable cause to arrest? On its face, the answer would seem straightforward: The First and Fourth amendments are separate sources of rights, and create separate Bivens causes of action involving entirely separate legal elements. Lack of probable cause is an element of a Fourth Amendment false arrest claim, but First Amendment retaliation claims focus on whether the defendant intended to, and did, take action against a person on the basis of protected speech.

This analysis finds support in Whren v. United States, 517 U.S. 806, 813 (1996). There, the Supreme Court held that the Equal Protection Clause prohibits an officer from selectively enforcing traffic laws based on race, even where an arrest is supported by probable cause. The court noted that Fourth Amendment claims are analyzed based on an objective reasonableness test, irrespective of the officer’s motivations, i.e., is there probable cause to arrest or not?

In contrast, Equal Protection claims focus on the intent of the government actor, irrespective of whether there is objective probable cause, e.g., were the police officer’s actions motivated by race? Because the Equal Protection Clause serves different values and creates different rights than the Fourth Amendment, it simply does not matter whether the arrest was supported by probable cause. Even if the Fourth Amendment permits police to stop all drivers who fail to turn on a blinker, the Equal Protection Clause prohibits police from stopping only black drivers who fail to turn on a blinker.

‘Hartman v. Moore’

The Supreme Court’s decision in Hartman v. Moore, 547 U.S. 250 (2006), however, clouds the analysis. There, the court 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. The court first noted that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” The court then focused on “the need to prove a chain of causation from animus to injury, with details specific to retaliatory prosecution cases,” observing: “What is different about a prosecution case…is that there will always be a distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge. Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive.”1

In a sleight of law, the court then converted this evidentiary observation into a required element of a prosecution-related First Amendment claim. The court cited two reasons. First, the proper defendant in the malicious prosecution action is never the prosecutor, who is absolutely immune, but rather another government official who, motivated by retaliatory animus, convinced the prosecutor to act. The “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another.”2

Second, “there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking.”3 To address and overcome these two evidentiary challenges in First Amendment cases arising from alleged retaliatory prosecutions, the court grafted a lack of probable cause element into the First Amendment claim itself. The absence of probable cause, the court reasoned, is sufficient to overcome the presumption of regularity, and also provides sufficient evidence of a causal nexus between the alleged animus of the official who induced the prosecution and the prosecution itself.

Qualified Immunity

Now back to Reichle and the arrest context. Plainly the two hurdles to prove causation in the prosecution context do not apply. As the dissent in Reichle noted, “A similar causation problem will not arise in the typical retaliatory-arrest case. Unlike prosecutors, arresting officers are not wholly immune from suit. As a result, a plaintiff can sue the arresting officer directly and need only show that the officer (not some other official) acted with a retaliatory motive. Because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action, Hartman’s no-probable-cause requirement is inapplicable.”4 In addition, the “longstanding presumption of regularity accorded to prosecutorial decisionmaking” does not apply. False arrest claims are generally brought against police and do not involve prosecutors or prosecutions at all.

Do we, then, ignore probable cause, and apply the regular elements of First Amendment retaliation claims, much as the Supreme Court cited the regular elements of an Equal Protection claim in Whren?

Faced with this direct question in Reichle, the Supreme Court did not answer. Instead, the court held that the law of First Amendment retaliation in the arrest context was not clearly established and dismissed the claim on qualified immunity grounds. Qualified immunity, of course, is the right of government officials performing discretionary functions to be shielded from liability for civil damages, even if they violate the law, as long as they do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

If the law was not clearly established, “an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” But if the law was clearly established, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”5

Since at least 1998, the Supreme Court held that courts should “determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.”6 The court reaffirmed twice in 1999 that courts “must” first determine whether the plaintiff has alleged the deprivation of a legal right, “and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.”7

And in 2001, the Supreme Court held that courts “must” first decide whether “the officer’s conduct violated a constitutional right[.] This must be the initial inquiry.” The court explained: “This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.”8

In Pearson v. Callahan, 555 U.S. 223 (2009), however, the court reversed course, holding that courts may grant qualified immunity without resolving whether the purported right exists at all, in order to avoid deciding constitutional questions unnecessarily. Reichle followed this approach, holding that in light of Hartman and Whren, it was not sufficiently clear whether police officers could arrest citizens in retaliation for the exercise of protected speech, if the officer had probable cause.

So, if 100 drivers fail to use blinkers, and 10 of those drivers have a bumper sticker stating “I hate cops!,” may police officers target and stop just those 10 drivers because of the bumper sticker? Would that be unconstitutional? We don’t know. And we may not know in the foreseeable future. For anytime such a plaintiff brings a damages suit, a court, following Reichle, will dismiss the claim on qualified immunity grounds. If the plaintiff seeks injunctive relief, where qualified immunity does not apply, she will likely not have standing.9 And absent proof of a policy or practice of such retaliatory stops, a plaintiff will likely not be able to prove a Monell10claim against the municipality, where again qualified immunity would not apply.

Conclusion

What began as a story about retaliatory arrests ends up as another story about qualified immunity, and the way it postpones, perhaps ad infinitum, the orderly resolution of constitutional disputes. As a result of Reichle, citizens do not know the potential consequences of putting up that bumper sticker. What’s the moral here? If you decide to put a controversial sticker on your bumper, be sure to use your blinkers, and make a full stop at every stop sign, at least until some court decides to decide what is and is not protected by the First Amendment.

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady, which specializes in civil rights and commercial litigation.

Endnotes:

1. Id. at 261.

2. Id. at 262.

3. Id. at 263.

4. Reichle, 132 S.Ct. at 2097.

5. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).

6. County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).

7. Conn v. Gabbert, 526 U.S. 286, 290 (1999); Wilson v. Layne, 526 U.S. 603, 609 (1999).

8. Saucier v. Katz, 533 U.S. 194, 201 (2001).

9. See Los Angeles v. Lyons, 461 U.S. 95 (1983).

10. Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978).