Reichle v. Howards

Decision Date04 June 2012
Docket NumberNo. 11–262.,11–262.
Citation132 S.Ct. 2088,566 U.S. 658,182 L.Ed.2d 985
Parties Virgil D. "Gus" REICHLE, Jr., et al., Petitioners v. Steven HOWARDS.
CourtU.S. Supreme Court

Sean R. Gallagher, Denver, CO, for Petitioners.

Sri Srinivasan, for the United States, as amicus curiae, by special leave of the Court, supporting the Petitioners.

David A. Lane, Denver, CO, for Respondent.

Sean R. Gallagher, Counsel of Record, Bennett L. Cohen, William E. Quirk, Polsinelli Shughart PC, Denver, CO, H. Christopher Bartolomucci, Viet D. Dinh, Brian J. Field, Bancroft PLLC, Washington, DC, for Petitioners.

David A. Lane, Counsel of Record, Lauren L. Fontana, Sarah M. Morris, Killmer, Lane & Newman, LLP, Denver, CO, for Respondent.

Justice THOMAS delivered the opinion of the Court.

This case requires us to decide whether two federal law enforcement agents are immune from suit for allegedly arresting a suspect in retaliation for his political speech, when the agents had probable cause to arrest the suspect for committing a federal crime.


On June 16, 2006, Vice President Richard Cheney visited a shopping mall in Beaver Creek, Colorado. A Secret Service protective detail accompanied the Vice President. Petitioners Gus Reichle and Dan Doyle were members of that detail.

Respondent Steven Howards was also at the mall. He was engaged in a cell phone conversation when he noticed the Vice President greeting members of the public. Agent Doyle overheard Howards say, during this conversation, " ‘I'm going to ask [the Vice President] how many kids he's killed today.’ " Brief for Petitioners 4. Agent Doyle told two other agents what he had heard, and the three of them began monitoring Howards more closely.

Agent Doyle watched Howards enter the line to meet the Vice President. When Howards approached the Vice President, he told him that his " ‘policies in Iraq are disgusting.’ " Ibid. The Vice President simply thanked Howards and moved along, but Howards touched the Vice President's shoulder as the Vice President departed.1 Howards then walked away.

Several agents observed Howards' encounter with the Vice President. The agents determined that Agent Reichle, who coordinated the protective intelligence team responsible for interviewing individuals suspected of violating the law, should question Howards. Agent Reichle had not personally heard Howards' comments or seen his contact with the Vice President, but Agent Doyle briefed Agent Reichle on what had happened.

Agent Reichle approached Howards, presented his badge and identified himself, and asked to speak with him. Howards refused and attempted to walk away. At that point, Agent Reichle stepped in front of Howards and asked if he had assaulted the Vice President. Pointing his finger at Agent Reichle, Howards denied assaulting the Vice President and told Agent Reichle, "if you don't want other people sharing their opinions, you should have him [the Vice President] avoid public places." Howards v. McLaughlin, 634 F.3d 1131, 1137 (C.A.10 2011) (internal quotation marks omitted). During this exchange, Agent Reichle also asked Howards whether he had touched the Vice President. Howards falsely denied doing so. After confirming that Agent Doyle had indeed seen Howards touch the Vice President, Reichle arrested Howards.

The Secret Service transferred Howards to the custody of the local sheriff's department. Howards was charged by local officials with harassment in violation of state law. The charge was eventually dismissed.


Howards brought this action in the United States District Court for the District of Colorado under Rev. Stat. § 1979, 42 U.S.C. § 1983, and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).2 Howards alleged that he was arrested and searched without probable cause, in violation of the Fourth Amendment. Howards also alleged that he was arrested in retaliation for criticizing the Vice President, in violation of the First Amendment.

Petitioners Reichle and Doyle moved for summary judgment on the ground that they were entitled to qualified immunity. The District Court denied the motion. See App. to Pet. for Cert. 46–61. On interlocutory appeal, a divided panel of the United States Court of Appeals for the Tenth Circuit affirmed in part and reversed in part. 634 F.3d 1131.

The Court of Appeals held that petitioners enjoyed qualified immunity with respect to Howards' Fourth Amendment claim. The court concluded that petitioners had probable cause to arrest Howards for making a materially false statement to a federal official in violation of 18 U.S.C. § 1001 because he falsely denied touching the Vice President. 634 F.3d, at 1142. Thus, the court concluded that neither Howards' arrest nor search incident to the arrest violated the Fourth Amendment.3 Id., at 1142–1143.

However, the Court of Appeals denied petitioners qualified immunity from Howards' First Amendment claim. The court first determined that Howards had established a material factual dispute regarding whether petitioners were substantially motivated by Howards' speech when they arrested him. Id., at 1144–1145. The court then rejected petitioners' argument that, under this Court's decision in Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), probable cause to arrest defeats a First Amendment claim of retaliatory arrest. The court concluded that Hartman established such a rule only for retaliatory prosecution claims and, therefore, did not upset prior Tenth Circuit precedent clearly establishing that a retaliatory arrest violates the First Amendment even if supported by probable cause. 634 F.3d, at 1148.

Judge Paul Kelly dissented from the court's denial of qualified immunity. He would have held that when Howards was arrested, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. In Judge Kelly's view, Hartman called into serious question the Tenth Circuit's prior precedent on retaliatory arrests. 634 F.3d, at 1151. He noted that other Circuits had applied Hartman to retaliatory arrests and that there was a "strong argument" in favor of doing so. 634 F.3d, at 1151–1152.

We granted certiorari on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards' arrest so held. See 565 U.S. ––––, 132 S.Ct. 815, 181 L.Ed.2d 525 (2011). If the answer to either question is "no," then the agents are entitled to qualified immunity. We elect to address only the second question. We conclude that, at the time of Howards' arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. We, therefore, reverse the judgment of the Court of Appeals denying petitioners qualified immunity.4


Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. ––––, ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). In Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), we held that courts may grant qualified immunity on the ground that a purported right was not "clearly established" by prior case law, without resolving the often more difficult question whether the purported right exists at all. Id., at 227, 129 S.Ct. 808. This approach comports with our usual reluctance to decide constitutional questions unnecessarily. Id., at 241, 129 S.Ct. 808; see also Camreta v. Greene, 563 U.S. ––––, –––– – ––––, 131 S.Ct. 2020, 2030–2031, 179 L.Ed.2d 1118 (2011) ; al-Kidd, 563 U.S., at ––––, 131 S.Ct., at 2080.

To be clearly established, a right must be sufficiently clear "that every ‘reasonable official would [have understood] that what he is doing violates that right.’ " Id., at ––––, 131 S.Ct., at 2078 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). In other words, "existing precedent must have placed the statutory or constitutional question beyond debate." 563 U.S., at ––––, 131 S.Ct., at 2083. This "clearly established" standard protects the balance between vindication of constitutional rights and government officials' effective performance of their duties by ensuring that officials can " ‘reasonably ... anticipate when their conduct may give rise to liability for damages.’ " Anderson, supra, at 639, 107 S.Ct. 3034 (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ).

The "clearly established" standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards' arrest.


Howards contends that our cases have "settled" the rule that, " ‘as a general matter[,] the First Amendment prohibits government officials from subjecting an individual to retaliatory actions' " for his speech. See Brief for Respondent 39 (quoting Hartman, supra, at 256, 126 S.Ct. 1695). But we have previously explained that the right allegedly violated must be established, " ‘not as a broad general proposition,’ " Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)(per curiam), but in a "particularized" sense so that the "contours" of the right are clear to a reasonable official, Anderson, supra, at 640, 107 S.Ct. 3034. Here, the right in question is not the general right to be free from retaliation for one's speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right.5


We next consider Tenth Circuit precedent. Assuming arguendo that controlling Court of Appeals' authority could be a...

To continue reading

Request your trial
2127 cases
  • Berry v. Tex. Woman's Univ.
    • United States
    • U.S. District Court — Eastern District of Texas
    • March 25, 2021
    ...violates that right.’ " Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). Whether a right is clearly established "must be undertaken in light of the specific context of the case, ......
  • Price v. City of Phila.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • March 7, 2017
    ...arrest was provoked by [retaliation]"). Thus, Hartman does not itself bar Plaintiff's claim. Further, in Reichle v. Howards , 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012), the Supreme Court explicitly declined to extend Hartman 's probable cause rule to retaliatory arrests, as oppos......
  • Gordon v. Maesaka-Hirata, SCWC-14-0000914
    • United States
    • Hawaii Supreme Court
    • November 2, 2018
    ...constitutional question beyond debate."26 al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (emphasis added); accord Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). The United States Supreme Court has said that "[q]ualified immunity gives government officials breathing room......
  • Pinson v. U.S. Dep't of Justice
    • United States
    • U.S. District Court — District of Columbia
    • March 30, 2017
    ...assume, without deciding, that respondent's First Amendment claim is actionable under Bivens ."); cf. Reichle v. Howards , 566 U.S. 658, 132 S.Ct. 2088, 2093 n.4, 182 L.Ed.2d 985 (2012) ("We have never held that Bivens extends to First Amendment claims."). Indeed, in Hartman v. Moore , the ......
  • Request a trial to view additional results
18 books & journal articles
    • United States
    • Notre Dame Law Review Vol. 93 No. 5, May 2018
    • May 1, 2018
    ...& County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015); Wood v. Moss, 134 S. Ct. 2056, 2068 (2014); Reichle v. Howards, 566 U.S. 658, 663 (2012); Messerschmidt v. Millender, 565 U.S. 535, 556 The qualified immunity analysis is viewed as two-pronged, with the first prong focu......
    • United States
    • Journal of Criminal Law and Criminology Vol. 112 No. 1, January 2022
    • January 1, 2022
    ...debates over official immunity goes beyond the scope of this Article. (135) Anderson, 483 U.S. at 645; see also Reichle v. Howards, 566 U.S. 658, 664 (2012) (acknowledging that the clearly established test is designed to "protectf] the balance between vindication of constitutional rights an......
  • Prisoners' Rights
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...qualif‌ied immunity when fatally shooting f‌leeing motorist because conduct was not clearly unlawful excessive force); Reichle v. Howards, 566 U.S. 658, 670 (2012) (agents entitled to qualif‌ied immunity because reasonable agent could have interpreted Supreme Court retaliatory prosecution c......
  • Qualified Immunity and Federalism
    • United States
    • Georgetown Law Journal No. 109-2, December 2020
    • December 1, 2020
    ...distances from the President because such action was not a clearly established violation of the First Amendment); Reichle v. Howards, 566 U.S. 658, 663 (2012) (holding that a Secret Service agent was entitled to qualif‌ied immunity when the arrest of a protester was supported by probable ca......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT