Supreme Court Will Decide Whether Probable Cause Bars a First Amendment Claim in Reichle v. Howards

When you think of “probable cause,” you tend to think of dramatic scenarios. Such as a police officer doing a vehicle search for weapons or drugs. Or a police officer obtaining a warrant to search a house for suspicious content. Probable cause is written into the Fourth Amendment of the Constitution, which states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The general definition of probable cause is “a reasonable belief that a person has committed a crime.” It is the backbone of the criminal legal system, preventing (in theory) police officers from searching or arresting based on a whim.

However, you don’t usually think of probable cause — or the Fourth Amendment — clashing with the First Amendment. Yet that appears to be the case in Reichle v. Howards, which the U.S. Supreme Court recently agreed to hear.

In 2006, Steven Howards visited a shopping center at Beaver Creek Mall in Colorado. His visit coincided with that of Vice President Cheney, who brought along a massive security detail, including several Secret Service agents. While talking to a friend on his cell phone, Howards saw Cheney leave a grocery store and stated: “I’m going to ask him how many kids he’s killed today.” One Secret Service agent decided that it was “unhealthy” and “not quite right” for someone to make this statement (presumably about the Iraq War). He and the other Secret Service agents monitored Howards while Howards waited his turn to speak to the vice president. When Howards reached Cheney, he told him that his “policies in Iraq were disgusting” and touched his right shoulder. The Secret Service agents had seen enough: they believed that they had probable cause for arrest. Howards was later arrested for assaulting Vice President Cheney.

After Howards was detained at the local sheriff’s department and the charges against him dropped, he filed suit against the Secret Service agents for violating his both Fourth Amendment rights through an unlawful search and seizure, and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. The issues that the Supreme Court will consider are whether probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the court below erred by denying qualified and absolute immunity to the Secret Service agents.

There are a few places in Texas where one might see Secret Service agents, but Sierra Blanca isn’t one of them. Moreover, along the U.S.-Mexico border, free speech issues don’t often come up in search and seizure situations. But this case does illustrate how murky “probable cause” can be, and how easily federal and state agents can claim to have it when the situation requires. How many people have performed acts that could be misconstrued as threatening by someone determined to think the worst of them? Fortunately in this case, the county sheriff decided not to pursue harassment charges. In many other cases, though, it is up to a federal criminal defense attorney to stand up for the suspect’s rights.

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