For Section 1983 junkies only

The Supreme Court the other day held that an anti-war plaintiff cannot sue Secret Service agents under the First Amendment for a retaliatory arrest if there was probable cause to arrest him on something else, harassment. The case arose when the plaintiff made a smart-mouth comment to then-Vice President Cheney about the Iraq war. As I wrote here, the Court did not say that the Secret Service agents did not violate the free speech clause. Instead, the Court said that the law relevant to his case was not "clearly established" at the time of the alleged speech violation for plaintiff to be able to sue the agents.

The case is Reichle v. Howards, decided on June 4. Apart from the fact that the Court rules against the free speech plaintiff, there is an interesting side note to this case for those of you who litigate Section 1983 cases. Public employees, including police officers, are entitled to qualified immunity from suit if the law was not clearly established. If the state of the law was murky at the time of the events giving rise to the case, then the defendant cannot be sued for money damages. This is because courts deem it unfair for these defendants to pay damages when the case law was in a state of flux at the time. So, while the First Amendment says what it says about the right to free speech, for the plaintiff to overcome a qualified immunity challenge, he must find a case that says that what specifically happened to him was illegal. He does not have to find a case on all fours to repel qualified immunity; he must only find cases that would make it apparent that the defendant broke the law.

In this case, the Supreme Court noted that the case arose in the Tenth Circuit, which had ruled in plaintiff's favor. The Supreme Court reviewed whether Tenth Circuit case law had clearly established that plaintiff could sue the Secret Service for a retaliatory arrest in violation of the First Amendment where there was probable cause to arrest for something else. Justice Thomas writes:

We next consider Tenth Circuit precedent. Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit's cases do not satisfy the "clearly established" standard here. 

See the "assuming arguendo" language? It piqued my interest. Most, if not all Circuit courts -- including the Second Circuit -- look to Supreme Court and Court of Appeals precedent in determining whether the law was clearly established. But the Supreme Court has never approved or disapproved of that approach. The Court has never said which body of case law governs whether the law was clearly established. In Harlow v. Fitzgerald, 457 U.S. 800, 819 n. 32 (1982), the Supremes said, "we need not define here the circumstances under which 'the state of the law' should be 'evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court.'"

The Court has never returned to this issue of which body of case law governs the "clearly established" inquiry. This is an important issue. The Supreme Court hears far fewer cases than any of the Courts of Appeal. If Supreme Court authority is the only basis to find that the law was clearly established, fewer plaintiffs might be able to recover damages. On the other hand, there are hundreds if not thousands of cases decided by each Court of Appeals on a given issue, giving plaintiffs a larger pool of cases to draw from in arguing that the law was clearly established at the time of the alleged constitutional violation. One of these days, the Supreme Court will take up that issue. For now in the Supreme Court, the law of "clearly established" law is not clearly established.