ICMA signed onto an amicus curiae brief filed by State and Local Legal Center (SLLC) in a U.S. Supreme Court case that could affect the legal liability of state and local police officers when making arrests. The issue in Reichle v. Howards is whether a First Amendment retaliatory arrest claim can be brought against a law enforcement officer even though the officer had probable cause to make the arrest.
Two Secret Service agents do not dispute they arrested Mr. Howards because of his First Amendment protected speech: telling Vice President Dick Cheney that his “policies in Iraq are disgusting.” The Tenth Circuit determined the agents had probable cause to arrest Howards for touching the vice president’s shoulder and then denying it when questioned by agents, a violation of a federal statute. The Tenth Circuit held that Howards could sue the agents for First Amendment retaliatory arrest even though the agents had probable cause to arrest him. The Tenth Circuit also denied qualified immunity to the agents, subjecting them to a lawsuit for money damages.
The SLLC’s brief argues to the Supreme Court that it should bar First Amendment retaliatory arrest claims supported by probable cause because retaliatory arrest claims are easy for a citizen to allege and difficult for a police officer to disprove. If such claims aren’t barred, state and local police officers may be disinclined to make lawful arrests when a citizen expresses speech protected by the First Amendment, which happens in virtually every arrest. The brief also argues that the agents in this case should be granted qualified immunity because the Supreme Court held in Hartman v. Moore, 547 U.S. 250 (2006), that retaliatoryprosecutions claims are barred if probable cause supports the prosecution. Until this case, it was unclear whether the Tenth Circuit would apply Hartman to retaliatory arrest claims.
The SLLC’s brief was also signed onto by the International Municipal Lawyers Association, the National Association of Counties, the National Governors Association, the National League of Cities, and the United States Conference of Mayors.
You can download a copy of the brief at the SLLC’s website.