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Column: Shielding Police who Arrest Protesters in Retaliation for their Speech (New York Law Journal)

By Christopher Dunn

Though the constitutionality of the health are law has consumed most of the Supreme Court’s attention recently, the Court of course continues to grapple with other weighty matters. One of the most important of those was argued on March 21, when the Court took up the issue of constitutional liability when law-enforcement officers arrest people in retaliation for the exercise of their First Amendment rights.

That issue is presented by Reichle v. Howards, a case that arose out of a 2006 incident in which a man whom Secret Service agents overheard making a comment critical of former Vice President Dick Cheney arrested the man after he touched Mr. Cheney. The question presented by the case is whether the existence of probable cause bars a First Amendment retaliatory-arrest claim, even when the arrest in fact is made for retaliatory reasons. If decided the wrong way, this case could eviscerate the First Amendment by allowing officers to target protesters so long as the officers can conjure up some colorable basis for asserting even a minor violation of the law.

Mixed-Motive First Amendment Cases

As in many other areas of the law, many First Amendment cases turn on factual disputes about the motives of defendants. It is common, for instance, for a government employee to claim that he or she was disciplined or fired for having engaged in expressive activity while the government employer asserts that in fact it acted as it did for reasons wholly unrelated to the employee’s claimed speech (for instance, because the employee was habitually late for work).

The Supreme Court long ago developed a framework for addressing these types of claims. As most clearly set out in Mount Healthy City Board of Educ. v. Doyle from 1977, the Court has adopted a burden-shifting regime that first requires a plaintiff to establish that his or her speech in fact played some role in the action being challenged. If the plaintiff can make that showing, the burden shifts to the government to demonstrate that it would have taken the same action notwithstanding the fact that protected speech played some role in its actions. Under this scheme, the fact that the government might have had some sufficient, non-speech reason for its actions does not immunize it from liability under the First Amendment. Rather, the existence of such a reason is simply a factor that a jury considers in determining what actually prompted the action.

An Exception for Retaliatory Prosecutions

Six years ago the Supreme Court created a significant exception to the Mt. Healthy approach for cases asserting retaliatory prosecutions. At issue in Hartman v. Moore was a federal prosecution of a company chief executive – William Moore – who had sought to obtain a contract from the United States Postal Service. In doing so, Moore had engaged in extensive advocacy and lobbying that was critical of the Postal Service but that he believed would support his securing the contract. After the Postal Service awarded the contract to another company, postal inspectors pressured the U.S. Attorney’s office to bring criminal charges against Moore. After six weeks of trial, the District Court found a “complete lack of direct evidence” of any criminality and granted Moore’s motion for judgment of acquittal.

He then sued the postal inspectors and the federal prosecutor for violating his First Amendment rights by having pursued the prosecution in retaliation for his advocacy critical of the Post Office. After the claims against the prosecutor were dismissed on absolute immunity grounds and after years of proceedings that the Supreme Court likened to Dickens’s Jarndyce v. Jarndyce from Bleak House, the D.C. Circuit ruled that the existence of probable cause for the prosecution did not bar First Amendment claims against the postal inspectors alleging that they had prompted the prosecution in retaliation for Moore’s First Amendment activity.

The Supreme Court took the case and, in an opinion by Justice Souter, reversed. Framing the issue before it as “whether a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges,” the Court noted that the Circuits were split, with the Second Circuit being amongst those Circuits identified as having held that the existence of probable cause barred a retaliatory-arrest claim.

At the outset of its analysis, the Court confronted the contention one might think would concern it the most: that allowing retaliatory-prosecution cases to proceed even if probable cause existed would open the courthouse doors to a flood of litigation. Somewhat surprisingly, the Court rejected this concern:

Nor is there much leverage in the fear that without a filter to screen out claims federal prosecutors and federal courts will be unduly put upon by the volume of litigation. The basic concern is fair enough, but the slate is not blank. Over the past 25 years fewer than two dozen damages actions for retaliatory prosecution . . . have come squarely before the Federal Courts of Appeals, and there is no disproportion of those cases in Circuits that do not require showing an absence of probable cause.

Nonetheless, the Court held that the existence of probable cause was a complete bar to retaliatory-prosecutions claims, relying on two justifications. First, it argued that the existence or absence of probable cause would be central to any evidentiary presentation about actual motive and thus would be at the heart of the case.

More significantly, the Court relied on the unique situation presented by retaliatory-prosecution cases. Specifically, because prosecutors are absolutely immune from constitutional torts arising out of their prosecutorial acts, the only available defendants in such cases are people (like arresting officers) who are not the ones engaging in the allegedly retaliatory actions (the prosecutors). Thus, to prevail on the retaliatory-prosecution claim, the plaintiff bears the burden of showing that the prosecution in fact was prompted by the retaliatory animus of someone else. In the view of the Supreme Court, this two-step approach to liability was simply too much when probable cause actually existed for the prosecution:

Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector’s animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor’s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal.

Some sort of allegation, then, is needed both to bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause.

With this, the Court closed the door to retaliatory-prosecution cases where probable cause exists.

Retaliatory Arrests

Unlike retaliatory-prosecution claims, retaliatory-arrest claims do not involve allegations that the actions of one government actor were prompted by the retaliatory motives of another. Rather, they involve claims that the plaintiff’s arrest was prompted by the retaliatory animus of the very person who made the arrest. Whether this difference warrants a different rule for retaliatory-arrest cases is the issue argued two weeks ago before the Supreme Court in Reichle v. Howards.

The plaintiff in Reichle is one Steven Howards, a resident of Beaver Creek, Colorado with a low regard of former Vice President Dick Cheney. Cheney’s and Howards’ paths crossed in June 2006 at the Beaver Creek Mall, where Cheney was holding a meet-and-greet event and Howards was taking his son to a piano recital. On his way to the recital, Howards learned of Cheney’s event and during the course of a call on his cell phone said, “I’m going to ask him how many kids he killed today,” a reference to the Iraq War.

Afterwards, Howards’ son continued on to the recital while Howards stopped at the Cheney event. He approached the Vice President and informed him that his “policies in Iraq are disgusting.” Ever the diplomat, the Vice President responded, “Thank you.” As he departed, Howards, in the words of the Tenth Circuit, “touched the Vice President’s right shoulder with his open hand.”

This precipitated a sequence of events that culminated in Howards’ arrest by Secret Service agent Gus Reichle. As it turned out, another Secret Service agent had overheard the comment Howards had made on his cell phone about asking Mr. Cheney about how many kids he had killed. After prosecutors declined to pursue the case, Howards sued the Secret Service agents, alleging they had arrested him in retaliation for his comments critical of the Vice President and thus violated his First Amendment rights.

On appeal, the Tenth Circuit held that probable cause existed for Howards’ arrest and thus affirmed dismissal of his Fourth Amendment claims. The Secret Service agents in turn argued that the First Amendment retaliatory-arrest claims were barred just as the Supreme Court had held in Hartman v. Moore that retaliatory-prosecution claims are barred by the existence of probable cause.

Though noting a split in the Circuits on this issue, the Court of Appeals rejected this contention. In doing so, the Tenth Circuit relied on the differences between retaliatory-arrest cases and the unusual feature of retaliatory-prosecution cases as set out by the Supreme Court in Hartman:

We decline to extend Hartman’s “no-probable-cause” requirement to this retaliatory arrest case. Unlike the plaintiff in Hartman, Mr. Howards does not attack prosecutorial discretion based on the bad motive of a third person. Instead, he contends Agents Reichle and Doyle arrested him with their own retaliatory motives, because of the exercise of his First Amendment rights. Such is the quintessential “ordinary retaliation claim” as outlined in Hartman—a claim in which the agent allegedly harboring the unconstitutional animus is the same individual who carries out the adverse action. And unlike prosecutors, Secret Service Agents enjoy no presumption of regularity regarding their decisionmaking. As a result, this factor counts against extending Hartman to the circumstances here.

Turning to the Supreme Court

The Supreme Court’s decision to accept Reichle for review is neither surprising nor alarming in light of the split amongst some circuits about the role of probable cause in retaliatory-arrest cases. And given the unusual aspects of retaliatory prosecution claims, the Tenth Circuit’s ruling in Reichle is entirely consistent with Hartman.

Nonetheless, the Justices’ comments during oral argument suggest that the Court may be prepared to extend the Hartman rule to at least some retaliatory-arrest claims. This bears very close watching, as it could be disastrous if the Court were to open the door to allowing police officers to make retaliatory arrests so long as they could come up with some colorable offense with which to charge a speaker. To immunize such police action would violate a core principal of our constitutional society and pose a grave threat to the right to dissent.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.