By Mike Dorf
Today's unanimous SCOTUS ruling in Reichle v. Howards only addresses a question of qualified immunity: Was it clearly established by SCOTUS or Sixth Circuit precedent in 2006 that a police officer (or as in this case, a Secret Service agent) who arrests someone in retaliation for the arrestee's protected freedom of speech, has violated the arrestee's First Amendment rights, even if there was an independent basis for probable cause to arrest, such that the arrest did not violate the Fourth Amendment? The Supremes (per Justice Thomas) said no, it was not clearly established, and thus the defendant agents had qualified immunity against the arrestee-turned-plaintiff. Although the Court had the discretion to address the underlying merits of the case, it chose not to do so. In the course of recording a few observations about the qualified immunity issue the Court did decide, I'll take a crack at the merits question it chose to leave for a later day.
The plaintiff was arrested after he made anti-war statements about and to then-Vice President Cheney at a public event in 2006. During the course of the latter, he also touched the Vice President. The defendant Secret Service agents arrested the plaintiff after they questioned him. The lower courts found--and the SCOTUS accepted for purposes of deciding the case--that there was probable cause for the arrest because the plaintiff falsely denied having touched the VP. That false denial gave rise to probable cause to arrest for the crime of making a materially false statement to a federal official in violation of 18 U. S. C. §1001 (even though he was never charged under that law). The plaintiff was transferred to the custody of state officials but eventually all charges were dropped, and he later filed suit against the Secret Service agents.
Under longstanding precedent, in order for the plaintiff to win in a civil rights suit he must not only show that the defendants violated his civil rights but that they violated "clearly established" rights. The defendants argued that it was not clearly established that a free speech retaliation claim exists where there was probable cause to arrest. The SCOTUS agreed. Part of what the Court said is deeply troubling, albeit consistent with what the Court has said before.
The plaintiff pointed to both logic and precedent for the proposition that an arrest can comply with the Fourth Amendment yet still violate the First Amendment. Consider logic first. Suppose that two groups of a hundred people each are holding competing rallies after the midnight curfew in some public park. One group is rallying in favor of government austerity measures and the other is rallying against those same measures. The police arrive and order both groups to disperse. None do. The police follow up by arresting all of the anti-austerity protesters and none of the pro-austerity protesters. The arrests comply with the Fourth Amendment--because there was probable cause to believe they had stayed in the park past curfew and failed to obey a lawful order from the police--but they also pretty clearly violate the First Amendment--because the arrests are based on the content of the protesters' message.
That's the logical argument on the merits and it seems pretty darn good. But in addition, the plaintiff had a good precedent-based argument. He pointed to Whren v. United States, a 1996 case in which the SCOTUS said that an arrest for which there is probable cause does not violate the Fourth Amendment in virtue of the fact that the arresting officer has a subjective motive to arrest for some other offense for which he lacks probable cause. In the course of announcing this rule that pretextual arrests do not violate the Fourth Amendment, however, the Court cautioned lower-court judges and police officers not to over-read the decision. If the arrestee could show that the pretext for an arrest hid an invidious motive, that would leave open an equal protection claim. Accordingly, the appeals court in Reichle v. Howards concluded: "It is well established that an act which is lawful under the Fourth Amendment may still violate other provisions of the Constitution."
In rejecting that view, the SCOTUS said that the appeals court characterized Whren at too high a level of generality. "Whren’s discussion of the Fourteenth Amendment does not indicate, much less 'clearly establish,'" Justice Thomas wrote for the Court, "that an arrest supported by probable cause could nonetheless violate the First Amendment."
With due respect, this is hooey. The whole point of the discussion of equal protection in Whren was to make clear that the Court was only rejecting an argument that the Fourth Amendment itself blocks pretextual arrests. Anybody with an ounce of legal training or even common sense will read the disclaimer in Whren in exactly the way the appeals court did: It leaves open the possibility that an arrest that comports with the Fourth Amendment can nonetheless violate some other provision of the Constitution, including, in appropriate circumstances, the First Amendment.
Nonetheless, as hinted above, I acknowledge that the Supreme Court has said this sort of thing before. In order to "clearly establish" a right for qualified immunity purposes, the Court has (usually) required that there be some case almost precisely on point. Yet that strikes me as too generous to civil rights defendants. Accordingly, given Whren, I would have been inclined to say that the prior cases went close enough to establishing the right that plaintiff Howards sought to vindicate.
But the Court had a second, and better, precedent-based reason for upholding qualified immunity. Whren is not the only case relevant to the qualified immunity determination. Less than two months before the incident between the plaintiff and VP Cheney, the SCOTUS decided Hartman v. Moore, holding that a claim of prosecution in retaliation for the exercise of free speech rights will fail where there was probable cause for the prosecution. Accordingly, even if Whren could have been said to clearly establish a right to relief for Howards in his lawsuit against the Secret Service agents, Hartman could be said to have dis-established the clarity of that right. Thus, I agree with the Court's conclusion in Reichle v. Howards: At the time of the events in question, a reasonable officer could have thought, based on Hartman, that he was not violating the First Amendment by arresting Howards, in virtue of the fact that there was probable cause to arrest.
What about the merits question the Court did not decide: Did the Secret Service agents violate the free speech rights of Howards? I think the right answer here is yes. Hartman was a peculiar case because it was a lawsuit alleging retaliatory prosecution but the defendant was not the prosecutor. Under another branch of Supreme Court case law, prosecutors have absolute civil immunity for acts taken within their prosecutorial role. Hence, the plaintiff in Hartman was suing investigators who instigated a retaliatory prosecution. Given their distance from the decision to bring the prosecution, it made sense for the Court to announce a rule that turned on the wholly objective factor of whether the prosecution was supported by probable cause, rather than on the subjective question about the motive of the prosecutors who weren't even parties.
That peculiarity of Hartman does not apply in a case like Reichle, where the issue is whether the defendants themselves were retaliating against Howards because of the content of his anti-war statements. It's true that motive can always be hard to prove, and so one might think that even in a case like Reichle, plaintiffs should not be able to sue government officials for illicit censorial motive. But if one thinks that, then much free speech doctrine--which is pervasively concerned with the motive of government--would have to change. Accordingly, on the merits, I think it would be appropriate for plaintiffs like Howards to win in the future.
So why didn't the Court address the merits? One strong possibility is that while the Court was able to reach agreement (of all eight participating Justices, with Justice Kagan recused) on qualified immunity, there was no consensus on the merits. Still, to my mind this was a missed opportunity to clearly establish that government officials may not arrest people in retaliation for the exercise of their free speech rights, even if there may be some other ground on which an arrest might be based. Given the prolixity of our legal codes, there will nearly always be some ground on which almost anyone can be arrested. The First Amendment should be interpreted to provide protection beyond what the Fourth Amendment provides.