11-262 US Reichle v Howards (cert amicus) (1)

8/4/2019 11-262 US Reichle v Howards (cert amicus) (1)

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QUESTION PRESENTED

Whether petitioners, Secret Service agents on the Vice Presidents protective detail, may be personallyliable for money damages underBivensv.Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), on a claim of retaliatory arrest in violation ofthe First Amendment, when the arrest was supportedby probable cause.

(I)


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STATEMENT OF COMPLIANCE WITHSUPREME COURT RULE 37.2(a)

Counsel of record received timely notice of the Uni-ted States intent to file this amicus curiae brief ten days

before the due date. Pursuant to Rule 37.4, the consentof the parties is not required for the United States to filethis brief.

(II)


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TABLE OF CONTENTS

Page

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The court of appeals erred in permittingrespondents retaliatory-arrest claim to proceed

despite the presence of probable cause . . . . . . . . . . . . . 7

B. The court of appeals decision conflicts with the

holdings of other circuits . . . . . . . . . . . . . . . . . . . . . . . . 16

C. The petition presents a question of recurring

importance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TABLE OF AUTHORITIES

Cases:

Ashcroftv. al-Kidd, 131 S. Ct. 2074 (2011) . . . . . . . . . . . 7, 19

Beckv. City of Upland, 527 F.3d 853 (9th Cir. 2008) . . . . 18

Bivensv.Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) . . . . . . . . 1, 4, 9

Brinegarv. United States, 338 U.S. 160 (1949) . . . . . . . . . . 8

Camretav. Greene, 131 S. Ct. 2020 (2011) . . . . . . . . . . . . . 15

Chicagov.Morales, 527 U.S. 41 (1999) . . . . . . . . . . . . . . . . 12

Crawford-Elv.Britton, 523 U.S. 574 (1998) . . . . . . . . . . . 20

Curley v. Village of Suffern, 268 F.3d 65 (2d Cir.

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Dahlv.Holley, 312 F.3d 1228 (11th Cir. 2002) . . . . . . . . . 16

Devenpeckv.Alford, 543 U.S. 146 (2004) . . . . . . . . . . . . . . . 7

Dietrich v.John Ascuagas Nugget, 548 F.3d 892 (9th

Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hartman v.Moore, 547 U.S. 250 (2006) . . . . . . . . . . passim

(III)


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IV

CasesContinued: Page

Hunterv.Bryant, 502 U.S. 224 (1991) . . . . . . . . . . 11, 15, 21

Maryland v.Pringle, 540 U.S. 366 (2003) . . . . . . . . . . . 8, 14McCabe v.Parker, 608 F.3d 1068 (8th Cir. 2010) . . . . 17, 18

Ornelas v. United States, 517 U.S. 690 (1996) . . . . . . . . . . . 8

Phillips v.Irvin, 222 Fed. Appx. 928 (11th Cir. 2007) . . . 17

Pickeringv.Board of Educ., 391 U.S. 563 (1968) . . . . . . . 13

Reddv. City of Enter., 140 F.3d 1378 (11th Cir. 1998) . . . 17

Saucierv.Katz, 533 U.S. 194 (2001), overruled in part

on other grounds byPearsonv. Callahan, 555 U.S.

223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21

Singerv.Fulton County Sheriff, 63 F.3d 110 (2d Cir.

1995), cert. denied, 517 U.S. 1189 (1996) . . . . . . . . . . . . 17

Skoog v. County of Clackamas, 469 F.3d 1221 (9th

Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Town of Castle Rockv. Gonzales, 545 U.S. 748 (2005) . . . 12

Watts v. United States, 394 U.S. 705 (1969) . . . . . . . . . . . . 14

Waytev. United States, 470 U.S. 598 (1985) . . . . . . . . 11, 12

Whren v. United States, 517 U.S. 806 (1996) . . . . . . . . . . . . 7

Williamsv. City of Carl Junction, 480 F.3d 871

(8th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Zurcherv.Stanford Daily, 436 U.S. 547 (1978) . . . . . . . . . . 8

Constitution and statutes:

U.S. Const.:

Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 12, 15, 16

Amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8

18 U.S.C. 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

18 U.S.C. 1751(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5


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V

StatutesContinued: Page

18 U.S.C. 3056(a) (2006 & Supp. II 2008) . . . . . . . . . . . . . . . 1

18 U.S.C. 3056(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 2118 U.S.C. 3056(a)(5)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

18 U.S.C. 3056(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

18 U.S.C. 3056(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

18 U.S.C. 3056(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Miscellaneous:

Federal Bureau of Investigation, Crime in the United

States, 2009, http://www2.fbi.gov/ucr/cius2009/

data/table_29.html (Sept. 2010) . . . . . . . . . . . . . . . . . . . . 20


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In the Supreme Court of the United States

No. 11-262

VIRGIL D.GUSREICHLE,JR., ET AL., PETITIONERS

v.

STEVEN HOWARDS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The court of appeals held in this case that two SecretService agents on the Vice Presidents protective detailmay be liable under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), for retaliatory arrest in violation of the FirstAmendment, when the arrest was supported by probablecause. The United States has a substantial interest inthe proper resolution of that issue. The United States

Secret Service is a federal agency required by statute toprotect the President and Vice President (and, if appli-cable, the President-elect and Vice President-elect)and authorized by statute to protect other listed per-sons, including certain political candidates and for-eign dignitaries. 18 U.S.C. 3056(a) (2006 & Supp. II2008). The court of appeals decision imposes potential

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constitutional-tort liability on agents performing thosevital duties. The decision also more generally affects thestandards applicable to other law-enforcement agents

carrying out arrests for federal crimes.STATEMENT

1. This case arises out of a June 16, 2006 visit bythen-Vice President Richard Cheney to a mall in BeaverCreek, Colorado. Pet. App. 3. Petitioners are SecretService agentsProtective Intelligence CoordinatorGus Reichle and Special Agent Dan Doylewho wereassigned to the Vice Presidents protective detail duringthat visit. Ibid.

Respondent, who was also at the mall that day, wasarrested by the Secret Service following a physical en-counter with the Vice President. Pet. App. 3-9. Respon-dent first came to the attention of the Vice PresidentsSecret Service detail when Agent Doyle overheard himsay into his cell phone, Im going to ask [the Vice Presi-dent] how many kids hes killed today. Id. at 4. Re-spondent was carrying a bag, and there were no metaldetectors in the area. Id. at 8; Appellants C.A. App.112, 126.

Respondent waited to meet the Vice President, ap-proached the Vice President, and told the Vice President

that his policies in Iraq are disgusting. Pet. App. 4-5.As respondent departed, he brought his hand into con-tact with the Vice Presidents shoulder. Id. at 5. Re-spondent characterizes the contact as an open-handedpat, id. at 5 n.2, but that characterization is disputed.Other witnesses described the contact as a push[] offthe Vice Presidents shoulder, a get-your-attention-type touch, a slap, a forceful touch, and a strikethat caused the Vice Presidents shoulder to dip.


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incident. Id. at 8. Agent Doyle confirmed that he hadwitnessed it and performed a demonstration (the accu-racy of which is disputed) of petitioners physical contact

with the Vice President. Id. at 8 & n.3.Based upon respondents premeditation, the conver-sation on the cell phone, the fact that [respondent]would not talk to him, the fact that hes walking aroundwith a bag in his hand in an unmagged [no metal detec-tor] area, and the fact that Doyle told him that [respon-dent] had unsolicited contact, Agent Reichle decided toarrest respondent for assaulting the Vice President.Pet. App. 8 (brackets omitted). Agent Doyle and otheragents assisted in restraining respondent during thearrest. Ibid. Respondent was turned over to local law

enforcement and detained for several hours. Ibid. Hewas charged with state-law harassment, but the chargeswere later dismissed. Id. at 8-9.

2. Respondent filed a suit against petitioners andother Secret Service agents under Bivens v. Six Un-known Named Agents of Federal Bureau of Narcotics,403 U.S. 388 (1971), alleging that he had been arrestedunlawfully and seeking money damages. Pet. App. 9.He claimed that his arrest violated the Fourth Amend-ment, because the agents lacked probable cause to be-lieve that he had committed a crime. Ibid. He also

claimed that the arrest violated the First Amendment,because the agents were retaliating against him for pro-tected speech. Ibid. Petitioners and the other defen-dants moved for summary judgment, which the districtcourt denied. Ibid.; see id. at 48-57.

3. The court of appeals reversed in part and af-firmed in part. Pet. App. 1-43. The court concluded thatrespondents Fourth Amendment claim should havebeen dismissed because, even [r]eviewing the facts


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through [respondents] lens, there was probable cause toarrest him for a suspected violation of 18 U.S.C. 1001,which prohibits making a materially false statement to

a federal officer in a matter that falls within the jurisdic-tion of the federal government. Pet. App. 17. The courtobserved that respondent himself had conceded duringhis deposition that he had lied to Agent Reichle aboutwhether he had touched the Vice President. Id. at 18-19.Because the court found that there was probable causeto arrest respondent for violating Section 1001, the courtdid not reach the question whether there was probablecause to arrest him for other offenses, such as assault onthe Vice President (18 U.S.C. 1751(e)). Pet. App. 17 n.7.

The court of appeals concluded, however, that respon-

dents First Amendment retaliatory-arrest claim againstpetitioners could proceed to trial. Pet. App. 22-36. Thecourt believed that respondent had made out a First Amendment claim against petitioners because (1) re-spondent had engaged in protected speech; (2) arrest isan injury that would tend to chill speech; and (3) thefacts, taken in the light most favorable to respondent,suggest[ed] that petitioners (although not the otherdefendants) may have been substantially motivated by[respondents] speech when [respondent] was arrested.

Id. at 23-26; see id. at 36-39 (concluding that the remain-

ing defendants were entitled to qualified immunity onrespondents First Amendment claim).

The court rejected petitioners argument that theexistence of probable cause defeated respondentsretaliatory-arrest claim. The court of appeals recog-nized that, under this Courts decision in Hartman v.

Moore, 547 U.S. 250 (2006), a plaintiff must plead andprove the absence of probable cause in order to maintaina First Amendmentclaim seeking damages for retalia-


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toryprosecution. Pet. App. 29-31. It additionally recog-nized that several courts of appeals, both before andafterHartman, applied a similar rule in the context of

a First Amendment claim seeking damages for retalia-tory arrest. Id. at 29, 31-32. The court of appeals dis-agreed with those decisions and declined to apply

Hartman in the context of retaliatory arrests, reasoningthat retaliatory-arrest claims meaningfully differ fromretaliatory-prosecution claims. Id. at 31-33. The courtadditionally refused to grant petitioners qualified immu-nity against respondents retaliatory-arrest claim, id. at35-36, concluding that the law on this issue was clearlyestablished by pre-Hartman circuit precedent, id. at 34n.14.

Judge Kelly concurred in part and dissented in part.Pet. App. 40-43. He would have held that petitionersenjoyed qualified immunity from the retaliatory-arrestclaim, because, when the arrest in this case occurred,the law simply was not clearly established (nor is it now)that Hartman only applied to retaliatory prosecutionsand not retaliatory arrests. Id. at 41. He stated thatthere is a strong argument that Hartmans absence-of-probable-cause requirement applies in both contextsand emphasized the existence of a circuit conflict on theissue. Ibid.

4. The court of appeals denied rehearing en banc.Pet. App. 62-63.

DISCUSSION

This Court should grant certiorari to review thecourt of appeals decision. The decision is incorrect andfails to take proper account of this Courts decision in

Hartman v.Moore, 547 U.S. 250 (2006). It directly con-flicts with decisions in the Second, Eighth, and Eleventh


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Circuits, none of which would expose law-enforcementofficers to liability in these circumstances. And it con-cerns an issue of exceptional importance, threatening to

impose unwarranted personal liability on Secret Serviceagents for performing their critical protective duties andto chill federal, state, and local law-enforcement activi-ties more generally.

A. The Court Of Appeals Erred In Permitting Respondents

Retaliatory-Arrest Claim To Proceed Despite The Pres-

ence Of Probable Cause

The court of appeals correctly determined (Pet. App.17) that probable cause supported petitioners arrest ofrespondent. The arrest was therefore lawful under the

Fourth Amendment, regardless of petitioners subjec-tive motivations. Ibid.; see, e.g.,Ashcroftv. al-Kidd, 131S. Ct. 2074, 2080-2081 (2011); Devenpeckv.Alford, 543U.S. 146, 153 (2004); Whren v. United States, 517 U.S.806, 813 (1996) (Subjective intentions play no role inordinary, probable-cause Fourth Amendment analy-sis.). As this Court has recognized, the Fourth Amend-ments focus on objective circumstances, rather thansubjective intent, promotes evenhanded, uniform en-forcement of the law. al-Kidd, 131 S. Ct. at 2080.

The court of appeals concluded, however, that re-

spondent could sidestep the Fourth Amendments objec-tive focus on probable cause by challenging his arrestunder the First Amendment. That conclusion, whichwould potentially permit a constitutional claim any timethe circumstances of an otherwise-lawful arrest happento implicate expressive activity, was incorrect.

1. As this Court has recognized, the particularizedrequirements of the Fourth Amendment already providesignificant protections in circumstances involving First


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Amendment interests. InZurcherv. Stanford Daily,436 U.S. 547 (1978), the Court rejected the argumentthat First Amendment concerns require the application

of special procedures, above and beyond the FourthAmendments protections, when police seek to search anewspapers offices. Id. at 563-567. The Court statedthat, [p]roperly administered, the preconditions for awarrantprobable cause, specificity with respect to theplace to be searched and the things to be seized, andoverall reasonablenessshould afford sufficient protec-tion against the harms that are assertedly threatened bywarrants for searching newspaper offices. Id. at 565.

AlthoughZurcherfocused on warrants, it is similarlytrue that the Fourth Amendments requirement of prob-

able cause as a prerequisite to an arrest imposes a sig-nificant limitation on any use of the arrest power to sup-press expressive activity. An officer cannot simply ar-rest anyone whose speech displeases him; rather, hemay lawfully arrest a suspect only when the circum-stances, viewed from the standpoint of an objectivelyreasonable police officer, amount to probable cause tobelieve the suspect has committed a crime. Marylandv.Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v.United States, 517 U.S. 690, 696 (1996)). That standardprotects citizens from rash and unreasonable interfer-

ences with privacy and from unfounded charges ofcrime, while giving fair leeway for enforcing the law inthe communitys protection. Id. at 370 (quotingBrine-

garv. United States, 338 U.S. 160, 176 (1949)).This Court has recognized that the existence of prob-

able cause supporting a law-enforcement action substan-tially addresses concerns about a motivation to suppressprotected expression. InHartmanv.Moore, supra, theCourt addressed the requirements for a plaintiff to re-


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cover damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), based on a claim that criminal investigators had

violated his First Amendment rights by inducing a crim-inal prosecution in retaliation for his protected speech.The Court noted that in such retaliatory-prosecutioncases, there will always be a distinct body of highly valuable circumstantial evidence available and apt toprove or disprove retaliatory causation, namely evidenceshowing whether there was or was not probable cause tobring the criminal charge. Hartman, 547 U.S. at 261.Demonstrating that there was no probable cause forthe underlying criminal charge, the Court explained,will tend to reinforce the retaliation evidence and show

that retaliation was the but-for basis for instigating theprosecution. Ibid. Conversely, establishing the exis-tence of probable cause will suggest that prosecutionwould have occurred even without a retaliatory motive.Ibid.

The Court held that a plaintiff asserting aconstitutional-tort claim for retaliatory prosecutionmust both plead and prove the absence of probablecause. Hartman, 547 U.S. at 252. The Court noted that,while retaliatory actions * * * for speaking out areconstitutionally forbidden as a general matter, id. at

256, recovery is appropriate only where retaliation is thebut-for cause of the officials action. Id. at 256, 260;see id. at 260 (It may be dishonorable to act with anunconstitutional motive and perhaps in some instancesbe unlawful, but action colored by some degree of badmotive does not amount to a constitutional tort if thataction would have been taken anyway.). The Court ex-plained that the need to prove a chain of causation fromanimus to injury, with details specific to retaliatory-


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prosecution cases, * * * provides the strongest justifi-cation for [a] no-probable-cause requirement in thecontext of a constitutional-tort claim alleging retaliatory

prosecution. Id. at 259.The Court identified two primary features ofretaliatory-prosecution cases that distinguish them fromstandard retaliation cases,Hartman, 547 U.S. at 260,and that support a requirement to prove an absence ofprobable cause. First, litigating probable cause will behighly likely in any retaliatory-prosecution case, owingto its powerful evidentiary significance on the issue ofcausation. Id. at 261. The Court reasoned that [t]heissue is so likely to be raised by some party at somepoint that treating it as important enough to be an ele-

ment will be a way to address the issue of causationwithout adding to time or expense. Id. at 265.

Second, the requisite causation between the defen-dants retaliatory animus and the plaintiffs injury in aretaliatory-prosecution case is usually more complexthan it is in other retaliation cases. Hartman, 547 U.S.at 261. ABivens (or 1983) action for retaliatory pros-ecution, the Court observed, will not be broughtagainst the prosecutor, who is absolutely immune, butinstead against a non-prosecutor official who may haveinfluenced the prosecutorial decision but did not himself

make it. Id. at 261-262. Thus, the Court explained,the causal connection required [in such a suit] is notmerely between the retaliatory animus of one personand that persons own injurious action, but between theretaliatory animus of one person [the investigator] andthe action of another [the prosecutor]. Ibid. Proof ofthe absence of probable cause would provide an eviden-tiary link to bridge [that] gap. Ibid.


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2. The court of appeals erred in deemingHartmaninapplicable to this case. Assuming thatBivens autho-rizes a private damages claim alleging that a law-

enforcement officer arrested a suspect for retaliatoryreasons, Hartmans no-probable-cause requirementwould apply to such a claim. Retaliatory-arrest cases,like retaliatory-prosecution cases, are materially distinctfrom standard retaliation cases. Hartman, 547 U.S.at 260. Retaliatory-arrest cases likewise will presenta distinct body of highly valuable circumstantialprobable-cause evidence that is apt to prove or dis-prove retaliatory causation. Id. at 261. Thus, as inretaliatory-prosecution cases, the issue of probablecause is likely to be raised by some party at some

point in a retaliatory-arrest case, and a showing of itsabsence can be made mandatory with little or no addedcost. Id. at 265.

In addition, in retaliatory-arrest cases, as inretaliatory-prosecution cases, the retaliation inquiry isusually much more complex than it is in other retaliationcases, therefore support[ing] a requirement that noprobable cause be alleged and proven. Hartman, 547U.S. at 261. A plaintiffs burden to show a causal con-nection between a defendants retaliatory animus andsubsequent injury, id. at 259, raises particular compli-

cations in the retaliatory-arrest context because speechcan be an entirely legitimate consideration in deciding whether to make an arrest. For starters, expressiveactivity may provide evidence of a crime and thus bedirectly relevant to the probable-cause determination.See, e.g.,Hunterv.Bryant, 502 U.S. 224, 228 (1991) (percuriam) (considering suspects statements in addressingprobable cause to arrest him for threatening the Presi-dent); Wayte v. United States, 470 U.S. 598, 612-613


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(1985) (noting that protest letters written to the Selec-tive Service provided strong, perhaps conclusive evi-dence of an element of the criminal offense of failing to

register for the draft).Additionally, expressive activity is often relevant toan officers decision about whether an arrest wouldmake sense under the circumstances. Officers do notand could notarrest every person as to whom probablecause exists, and there is accordingly a well establishedtradition of police discretion in deciding whether a cus-todial arrest is warranted. Town of Castle Rockv. Gon-zales, 545 U.S. 748, 760 (2005); see also Chicagov.Mo-rales, 527 U.S. 41, 62 n.32 (1999) (observing that it iscommon sense that all police officers must use some

discretion in deciding when and where to enforce cityordinances). The Court has never held that officers areforbidden from considering a suspects speech in makingthat discretionary decision, nor would such a rule makesense. In deciding whether to arrest someone for tres-passing on government property, for example, an officershould be able to consider that a suspect who belliger-ently states, the government has no right to own prop-erty, is less likely to leave promptly of his own accordthan a suspect who immediately apologizes for a mis-taken intrusion. Cf. Wayte, 470 U.S. at 614 (rejecting

interpretation of the First Amendment that would al-low any criminal to obtain immunity from prosecutionsimply by reporting himself and claiming that he did soin order to protest the law).

At least in cases where the suspects expressive ac-tivity is relevant to the arrest decision, the difficulty ofdetermining whether legitimate or potentially illegiti-mate speech-related considerations caused the arrestmeans that the retaliation inquiry will usually [be]


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more complex than it is in other retaliation cases.Hartman, 547 U.S. at 261; cf., e.g.,Pickeringv. Boardof Educ., 391 U.S. 563, 572-573 (1968) (noting that cer-

tain potentially legitimate reasons for consideringspeech in firing public employee were neither shownnor can be presumed). As inHartman, the complexityshould be addressed specifically in defining the ele-ments of the tort, 547 U.S. at 261, because the jury (andthe district court, when it addresses a dispositive mo-tion) will otherwise lack any consistent, objective crite-ria for distinguishing tortious from non-tortious govern-ment action. And as inHartman, [b]ecause showing anabsence of probable cause will have high probative force,and can be made mandatory with little or no added cost,

it makes sense to require such a showing as an elementof a plaintiffs case. Id. at 265-266.*

3. In light of the likelihood that significant complex-ity will exist, the potential difficulty of deciding whetheran individual case happens to lack such complexity, andthe low probability that there will ever be conclusiveevidence of retaliation, a requirement to plead and provethe absence of probable cause is fully justified inretaliatory-arrest cases. SeeHartman, 547 U.S. at 261,264 & n.10 (applying a blanket no-probable-cause re-quirement in retaliatory-prosecution cases based on sim-

* In addition to the complexity of distinguishing legitimate from po-tentially illegitmate speech-related considerations, retaliatory-arrestcases can also involve the same complexity that was present inHartman: a lack of identity between the defendant alleged to have aretaliatory motive and the official who decided to take the challengedaction. See 547 U.S. at 262. Respondents suit against Agent Doyle isan example. Agent Reichle made the decision to arrest respondent,Pet. App. 8, and the claim against Agent Doyle appears to be premisedon the theory that Agent Doyle encouraged that decision.


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ilar considerations). Unlike standard retaliationcaseswhich may involve questions of, for example,public employmentretaliatory-arrest cases by nature

implicate public safety. That context supports condi-tioning liability on demonstrating a lack of probablecause, a standard that strikes the appropriate balancebetween the interest in protecting individuals from un-reasonable law-enforcement interference and the inter-est in enabling officers to preserve the public safety.

E.g.,Pringle, 540 U.S. at 370.A no-probable-cause requirement is particularly war-

ranted in the circumstances of this case. Petitionerswere tasked with the critically important job of guardingthe Vice Presidents safety. 18 U.S.C. 3056(a)(1); cf.

Watts v. United States, 394 U.S. 705, 707 (1969) (percuriam) (The Nation undoubtedly has a valid, even anoverwhelming, interest in protecting the safety of itsChief Executive.). This Court has recognized thatwhen a person presents a potential threat to the VicePresident, an officer guarding the Vice President is re-quired to recognize the necessity to protect the VicePresident by securing [the person] and restoring orderto the scene. Saucierv.Katz, 533 U.S. 194, 208 (2001),overruled in part on other grounds by Pearson v.Callahan, 555 U.S. 223 (2009); see 533 U.S. at 197-198.

It was not merely legitimate, but prudent, for petition-ers to take account of respondents vocal criticism of theVice President as part of the totality of circumstances inassessing whether respondent presented a threat andshould be arrested and removed from the area. The Se-cret Service can reasonably conclude that someonewhose disagreement with the Vice President has alreadyled to unsolicited physical contact presents more of asecurity risk than someone who, for example, bumped


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into the Vice President accidentally. See Pet. App. 8(Agent Reichles testimony that he arrested respondentbased upon his premeditation, the conversation on the

cell phone, the fact that [respondent] would not talk tohim, the fact that hes walking around with a bag in hishand in an [area without a metal detector], and the factthat [Agent Doyle said] he had unsolicited contact withthe Vice President) (brackets omitted). The court ofappeals erred in subjecting petitioners to potential dam-ages liability for exercising their professional judgmentabout the need for an arrest to ensure the Vice Presi-dents safety.

The court of appeals compounded its error by deny-ing petitioners qualified immunity from respondents

claims. [T]o ensure that fear of liability will not undulyinhibit officials in the discharge of their duties, thequalified-immunity doctrine provides that so long asthey have not violated a clearly established right, offi-cials are shielded from personal liability. Camretav.Greene, 131 S. Ct. 2020, 2030-2031 (2011) (citations omit-ted). This Court has never held that an arrest sup-ported by probable cause can nonetheless violate theFirst Amendment, and, as discussed below, the circuitsare divided on that question. To the extent that thecourt of appeals believed the issue to have been settled

by its pre-Hartman precedent, see Pet. App. 34 n.14, anofficer could reasonably conclude thatHartman alteredthe legal landscape. The qualified-immunity doctrinethus should protect petitioners from respondents suit.Cf.Hunter, 502 U.S. at 229 (observing that qualified im-munitys accommodation for reasonable error is no-where more important than when the specter of Presi-dential assassination is raised).


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B. The Court Of Appeals Decision Conflicts With The

Holdings Of Other Circuits

As the court of appeals itself recognized (Pet. App.

29, 31-32), its conclusion in this case conflicts with thedecisions of several other circuits. Three circuits cate-gorically foreclose a First Amendment damages claimfor retaliatory arrest against an officer whose actionsare supported by probable cause. Among the courts thathave squarely addressed the question, only the court ofappeals hereand possibly, in some circumstances, theNinth Circuitwould allow such a claim to proceed.

1. Even beforeHartman, both the Second and Elev-enth Circuits had held that an officer who has probablecause to arrest a suspect may not be found liable under

the First Amendment for retaliatory arrest. In Curleyv. Village of Suffern, 268 F.3d 65 (2001), the Second Cir-cuit rejected a former political candidates claim that hisarrest was in retaliation for his criticism of the policecommissioner and police chief, reasoning that becausedefendants had probable cause to arrest plaintiff, an in-quiry into the underlying motive for the arrest need notbe undertaken. Id. at 73. Similarly, the Eleventh Cir-cuit in Dahl v. Holley, 312 F.3d 1228 (2002), held thatthe existence of probable cause to arrest Dahl defeat-[ed] her claim that she was arrested in retaliation forher constitutionally protected speech against the policedepartments recruitment and use of confidential infor-mants. Id. at 1236.

Indeed, under both circuits precedent, a law-enforcement officer would likely receive qualified immu-nity from First Amendment retaliatory-arrest liabilityin any case where there is arguable probable cause.The Eleventh Circuit has squarely held, and the SecondCircuit has suggested, that qualified immunity is appro-


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priate in any case where an officer in the defendantsposition could reasonably believe that probable causesupported the arrest, even if such a belief would be mis-

taken. See Reddv. City of Enterprise, 140 F.3d 1378,1383 (11th Cir. 1998) (Because we hold that the officershad arguable probable cause to arrest Anderson for dis-orderly conduct, we must hold that the officers are alsoentitled to qualified immunity from the plaintiffs FirstAmendment claims.);Singerv.Fulton County Sheriff,63 F.3d 110, 120 (2d Cir. 1995) ([I]f the officer eitherhad probable cause or was qualifiedly immune from sub-sequent suit (due to an objectively reasonable belief thathe had probable cause), then we will not examine theofficers underlying motive in arresting and charging the

plaintiff.), cert. denied, 517 U.S. 1189 (1996); see alsoPhillips v. Irvin, 222 Fed. Appx. 928, 929 (11th Cir.2007) (post-Hartman decision relying on Redd for theproposition that to receive qualified immunity froma First Amendment retaliatory-arrest claim, the defen-dant only needed to establish arguable probablecause).

Following Hartman, the Eighth Circuit reached asimilar conclusion. The Eighth Circuits decision in

McCabe v. Parker, 608 F.3d 1068 (2010), like the courtof appeals decision here, involved an arrest initiated by

Secret Service agents in their protective capacityinthat case, at a political rally where then-PresidentGeorge W. Bush was scheduled to speak. Id. at 1070-1073. The court held inMcCabe that the plaintiffs First Amendment retaliatory-arrest claim failed because[t]he totality of the circumstances present in this casesupport[ed] a finding of arguable probable cause tobelieve that the plaintiffs had violated 18 U.S.C. 3056(d),which prohibits resisting federal law-enforcement offi-


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cers in the performance of their statutorily authorizedprotective functions. 608 F.3d at 1078-1079; see also id.at 1075 (citing Williams v. City of Carl Junction, 480

F.3d 871, 876 (8th Cir. 2007), for the proposition thatHartman applies to retaliatory-arrest claims). Thus,under the Eighth Circuits rule, as well as the similarrules in the Second and Eleventh Circuits, petitioners inthis case would not be facing constitutional liability fora retaliatory arrest.

2. The court of appeals purported (Pet. App. 32) tofind support for its contrary conclusion in the Ninth Cir-cuits decision in Skoog v. County of Clackamas, 469F.3d 1221 (2006). The Ninth Circuit in that case found

Hartmans no-probable-cause requirement inapplicable

to a plaintiffs claim that a police officer had obtainedand executed a warrant in retaliation for filing a lawsuit.

Id. at 1231-1235. Subsequent Ninth Circuit decisions,however, have sometimes treated the absence of proba-ble cause as an element of a First Amendmentretaliatory-arrest claim. CompareBeckv. City of Up-land, 527 F.3d 853, 863-864, 866, 869 (2008) (treating theabsence of probable cause as an element of the plaintiffsretaliatory-arrest claim), with Dietrich v. John Ascu-agas Nugget, 548 F.3d 892, 900-901 (2008) (concludingthat the absence of probable cause was not an element

of the plaintiff s retaliatory-arrest claim). Although theNinth Circuit appears to believe that its precedents onthis issue are consistent, see id. at 901 n.5 (citingSkoogandBeck), the precise set of circumstances in which theNinth Circuit will apply a no-probable-cause require-ment is not entirely clear.

In any event, regardless whether the Ninth Circuitwould agree with the decision of the court of appealshere, the conflict between that decision and the deci-


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sions of the Second, Eighth, and Eleventh Circuits war-rants this Courts review. There is little chance that thecourt of appeals, which denied en banc review in this

case despite its awareness of a circuit conflict, see Pet. App. 29, 31-32, 62-63, will resolve that conflict on itsown. And the facts of this case highlight the difficultythat the conflict presents for federal law-enforcementofficers. Secret Service agents may be called upon toperform their protective duties in any jurisdiction in theUnited States, and their training is intended to applynationwide. It is untenable for an agent on a travelingprotective detail to feel comfortable arresting suspectsbased on probable cause in some locations, but in otherlocations to have to worry about a lawsuit, a trial, and

potential monetary liability. Cf. al-Kidd, 131 S. Ct. at2087 (Kennedy, J., concurring) (If national officehold-ers were subject to personal liability whenever they con-fronted disagreement among appellate courts, thoseofficers would be deterred from full use of their legalauthority.). Other federal law-enforcement agents whomust act across jurisdictional linesincluding, for ex-ample, agents of the Federal Bureau of Investigation,the Drug Enforcement Administration, or the InternalRevenue Servicewould face similar concerns. ThisCourts intervention is necessary to ensure that federal

law-enforcement officers can carry out their duties con-sistently and without concern about unwarrantedBivenssuits.

C. The Petition Presents A Question Of Recurring Impor-

tance

The question presented in this case is of broad signif-icance to law-enforcement officers in general and theSecret Service in particular. The Court granted certio-


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rari inHartman to address a similar circuit conflict con-cerning the requirements to plead and prove a FirstAmendment retaliatory-prosecution claim. 547 U.S. at

255-256. The analogous issue in the context of allegedlyretaliatory arrests potentially has far greater impor-tance. In the most recent year for which final data areavailable, state and local law-enforcement agenciesalone made more than 13.5 million arrests. Federal Bu-reau of Investigation, Crime in the United States, 2009,http:// www2.fbi.gov/ucr/cius2009/data/table_29.html(Sept. 2010). Furthermore, in the common scenario where there is both an arrest and a prosecution, thecourt of appeals decision enables a plaintiff to avoid

Hartmans no-probable-cause requirement simply by

reframing his claim as one for retaliatory arrest ratherthan retaliatory prosecution.

The impact of the court of appeals decision is notlimited to cases in which a law-enforcement officer actu-ally acts with a retaliatory motive, but instead extendsto any case in which a plaintiff might plausibly claimthat the officer has done so. Under the court of appealsdecision, if a suspects comments form part of the back-drop against which the arrest takes place, and disturb orappear to anger the arresting officer, a trial is war-ranted. Pet. App. 25-26. On that view, practically any-

one arrested for violating a valid time, place, or mannerrestriction, or any arrestee who directs a slur at officersbefore his arrest, could potentially proceed all the wayto trial on a retaliatory-arrest claim. And [b]ecause anofficials state of mind is easy to allege and hard to dis-prove, insubstantial claims that turn on improper intentmay be less amenable to summary disposition than othertypes of claims against government officials.Crawford-El v. Britton, 523 U.S. 574, 584-585 (1998)


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CONCLUSION

Thepetitionforawritofcertiorarishouldbegranted.

Respectfully submitted.

DONALD B.VERRILLI,JR.Solicitor General

TONYWESTAssistant Attorney General

SRI SRINIVASANDeputy Solicitor General

BETH S.BRINKMANNDeputy Assistant Attorney

General

ERIC J.FEIGINAssistant to the Solicitor

General

BARBARAL.HERWIGTEAL LUTHYMILLER

Attorneys

SEPTEMBER 2011

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11-262 US Reichle v Howards (cert amicus) (1)

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