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.
