While protecting the Vice President during a public visit, officers overheard the defendant state “‘I’m going to ask [the Vice President] how many kids he’s killed today.” They monitored the defendant’s actions more closely as he entered the line meet the Vice President. The defendant told the Vice President his “policies in Iraq are disgusting,” who thanked him and moved along. The defendant touched the Vice President’s shoulder as he departed. Shortly afterwards, an officer asked the defendant if he had assaulted the Vice President, which the defendant denied. The defendant also denied touching the Vice President. Confirming probable cause of the assault with another officer, the officer arrested for assault. These criminal charges were eventually dismissed but he defendant sued the officers for violating his Fourth Amendment right. He alleged that his arrest was motived by the exercise of his First Amendment rights.
Whether it was clearly established that an arrest supported by probable cause could violate the First Amendment?
No. The officers were entitled to rely on qualified immunity because it was not clear that an arrest based on probable cause could violate the First Amendment.
The Court had to consider a line of cases in which lower courts established the unlawfulness of arrests if done in retaliation of a First Amendment right. “In this Court’s view, the presence of probable cause, while not a ‘guarantee’ that retaliatory motive did not cause the prosecution, still precluded any prima facie inference that retaliatory motive was the but-for cause of the plaintiff’s injury.” Given that the officers had probable cause for the arrest, the Court was satisfied that they could rely on qualified immunity as a defense. “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.” “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.”
566 U.S. ___, 132 S. Ct. 2088 (2012)