The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in Reichle v. Howards [docket; cert. petition, PDF], a case dealing with qualified immunity [Cornell LII backgrounder]. The petitioners are two Secret Service agents who arrested the respondent, Steven Howards, following an encounter with then-US vice president Dick Cheney. Petitioners had probable cause to arrest Howards, who in violation of 18 USC § 1001 [text] falsely denied making unsolicited physical contact with the vice president. Howards later brought a First Amendment [text] retaliatory arrest claim against petitioners. The issues before the court are (1) whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) whether arresting officers are entitled to qualified and absolute immunity where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment [text], it was not (and is not) clearly established that Hartman v. Moore [opinion] does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the decisions of Secret Service agents protecting the president and vice president. The US Court of Appeals for the Tenth Circuit ruled that the First Amendment claim is not barred and that petitioners are not entitled to qualified immunity on the First Amendment claim.
In 2006, the Supreme Court ruled [JURIST report] in Hartman v. Moore that "a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges." William Moore was tried and acquitted on charges that he and his company improperly influenced the search for a new Postmaster General, and he subsequently sued a group of postal inspectors, arguing that they had encouraged his prosecution in retaliation for his earlier lobbying efforts to win US Postal Service contracts. In the 5-2 ruling, the court reversed a US Court of Appeals for the District of Columbia Circuit decision [text, PDF] rejecting the inspectors' motion for summary judgment because the criminal charges against Moore were supported by probable cause.