Howards v. McLaughlin

FILED
United States Court of Appeals
Tenth Circuit

March 14, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN HOWARDS,

Plaintiff-Appellee,

v. No. 09-1201

DANIEL McLAUGHLIN, in his individual and
official capacity; ADAM DANIELS, in his
individual and official capacity,

Defendants-Appellants,

VIRGIL D. “GUS” REICHLE, JR., in his
individual and official capacity; DAN DOYLE, in
his individual and official capacity,

Defendants.

-----------------------------

UNITED STATES OF AMERICA,

Amicus Cuiae.

STEVEN HOWARDS,

Plaintiff-Appellee,
No. 09-1202
v.

VIRGIL D. “GUS” REICHLE, JR., in his
individual and official capacity; DAN DOYLE, in
 his individual and official capacity.

Defendants-Appellants,

DANIEL McLAUGHLIN, in his individual and
official capacity; ADAM DANIELS, in his
individual and official capacity,

Defendants.
-----------------------------

UNITED STATES OF AMERICA,

Amicus Cuiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:06-CV-01964-CMA-CBS)

Sean R. Gallagher (Dugan Bliss with him on the briefs) of Hogan & Hartson LLP,
Denver, Colorado, for Defendants Reichle and Doyle.

Richard Westfall (Aaron Solomon with him on the briefs) of Hale Friesen, LLP,
Denver, Colorado, for Defendants Daniels and McLaughlin.

David A. Lane (Althea S. Licht with him on the brief), of Killmer, Lane &
Newman, LLP, Denver, Colorado, for Plaintiff.

Tony West, Assistant Attorney General, Washington, D.C.; David M. Gaouette,
Acting United States Attorney, District of Colorado, Denver, Colorado; and
Barbara L. Herwig and Teal Luthy Miller, Attorneys, Appellate Staff, Civil
Division, Washington, D.C., filed a brief for Amicus Curiae.

Before KELLY, SEYMOUR, and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

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 Steven Howards brought the present action alleging, inter alia, that

defendants Secret Service Agents unlawfully arrested him in violation of his First

and Fourth Amendment rights. Defendants moved for summary judgment on the

basis that they were immune from suit. Following a hearing on the merits, the

district court concluded fact issues precluded the grant of qualified immunity as

well as summary judgment. The case is now before us on defendants’

interlocutory appeal from the district court’s denial of their motion for qualified

immunity. For the reasons below, we REVERSE in part and AFFIRM in part.

I.

The present dispute arises out of a series of events occurring at the Beaver

Creek Mall, an outdoor shopping center in Beaver Creek, Colorado. 1 On June 16,

2006, Mr. Howards accompanied his older son to a piano recital at the Beaver

Creek Mall. That same day, Vice President Cheney also visited the Mall, along

with his security detail, which included defendants Secret Service Protective

Intelligence Coordinator Gus Reichle, and Secret Service Special Agents Dan

Doyle, Adam Daniels, and Daniel McLaughlin (collectively the “Agents”). As

the Protective Intelligence Coordinator, Agent Reichle’s duties included

1
For purposes of this appeal, we consider the facts in a light most favorable
to Mr. Howards. See, e.g., Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253,
1256 n.1 (10th Cir. 1998).

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interviewing individuals who were suspected of violating the law. Agents Daniels

and McLaughlin were partnered together in the Counter Surveillance Unit, Vice

Presidential Protective Division. They were in an undercover role that day, and

they did not carry radios.

While en route to the recital hall, Mr. Howards made a call on his cellular

phone. During this call, he observed the Vice President exit a grocery store and

begin to speak with members of the public. Upon seeing the Vice President, Mr.

Howards stated into his cell phone, “I’m going to ask him [the Vice President]

how many kids he’s killed today.” Aplt. App. at 532.

Agent Doyle overheard Mr. Howards’ cell phone conversation. He

assumed that Mr. Howards was referring to the war in Iraq, and he considered it

“[un]healthy” and “[not] quite right” for a person to make such a statement to the

Vice President. Id. He has admitted the comment “disturbed” him. Id. He

informed Agent McLaughlin about Mr. Howards’ statement, advising him that

they “should pay particular attention to a white male subject [Mr. Howards]

wearing a green T-shirt . . . [because] he [had] overheard the subject state while

speaking on the phone ‘something to the effect of “I want to ask Cheney how

many kids he had killed.”’” Id. at 508. Agent McLaughlin replied, “Okay,”

because he believed it was “within [Mr. Howards’] bounds to do that.” Id. at 425.

Agent McLaughlin in turn relayed the information to Agent Daniels and informed

him that “we need to keep an eye on . . . Mr. Howards.” Id. at 413. All three

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agents began to monitor Mr. Howards.

Mr. Howards’ son continued on to the recital; Mr. Howards remained

behind to visit with the Vice President. As Mr. Howards waited for his turn, he

observed the Vice President interacting with the gathering crowd, greeting

patrons, shaking hands, and posing for photographs with onlookers. He then

approached the Vice President and informed him that his “policies in Iraq are

disgusting.” Id. at 491. The Vice President responded, “Thank you.” Id. As he

departed, Mr. Howards touched the Vice President’s right shoulder with his open

hand. 2 Although Agents Daniels, McLaughlin, and Doyle continued to monitor

Mr. Howards and witnessed the touch, none of them were close enough to hear

Mr. Howards’ statements to the Vice President. Neither Agent Daniels nor Agent

McLaughlin believed Mr. Howards’ touch of the Vice President provided

probable cause for arrest. See id. at 418, 428.

Special Agent Mike Lee, who was standing near the Vice President and in

charge of the protective detail, overheard the verbal exchange. As Mr. Howards

2
The manner in which Mr. Howards touched the Vice President is disputed
by the parties. Mr. Howards described the touch as an open-handed pat on the
shoulder. Others, however, including the Agents, have described the touch as
“push[ing] off” the Vice President’s shoulder, Aplt. App. at 390, “a get-your-
attention-type touch,” id. at 395, a “slap,” id. at 418, “a forceful touch,” id. at
432, and a strike that caused “the Vice President’s shoulder [to] dip[],” id. at 435.
Because our review requires us to consider the evidence in the light most
favorable to Mr. Howards, see, e.g., Armijo, 159 F.3d at 1256 n.1, we will
assume, without deciding, that his characterization is accurate.

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walked away, Special Agent Andrew Wurst, who was approximately fifteen yards

from the Vice President when the touch occurred, approached Agent Lee. Agents

Lee and Wurst agreed that a protective intelligence team should be sent to speak

with Mr. Howards. Agent Wurst then asked Special Agent Oscar Rosales to send

the protective intelligence team to speak with Mr. Howards. After Agents Wurst

and Rosales separated, Agent McLaughlin approached Agent Rosales to inquire

whether a protective intelligence team was going to interview Mr. Howards.

Thereafter, Agent Gus Reichle, the intelligence coordinator, was dispatched

to interview Mr. Howards as a person of interest in “an incident involving Vice

President Cheney.” Id. at 369. Although Agent Reichle had neither overheard

the cell phone statement nor observed the actual interaction between Mr. Howards

and the Vice President, Agent Doyle debriefed him as he approached Mr.

Howards. Agent Doyle identified Mr. Howards as the person of interest and

provided “a quick thumbnail sketch that he had overheard the subject on a cellular

telephone whom [sic] stated, ‘I’m going to ask him how many kids he’s killed

today.’” Id. at 371. Agent Reichle assumed that Mr. Howards’ reference was to

Vice President Cheney. Id.

Mr. Howards then left the vicinity and proceeded to join his family at the

recital hall. Upon his arrival, Mr. Howards’ wife asked him to accompany his

younger son back to their condo. Mr. Howards and his son left the recital hall

and began to walk towards the mall exit. On their way out, Mr. Howards and his

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son again entered the area where the Vice President was conducting his meet and

greet. Before they reached the mall exit, his son wandered off, and Mr. Howards

began to look for him.

During the search for his son, Mr. Howards was approached by Agent

Reichle, who was dressed in civilian clothes. Special Agents Daniels, Doyle, and

McLaughlin remained nearby in a counter-surveillance role. Agent Reichle

presented his Secret Service badge, identified himself, and requested to speak

with Mr. Howards. Mr. Howards refused to speak with the agent and attempted to

resume the search for his son. Agent Reichle stepped in front of Mr. Howards to

prevent his departure and asked Mr. Howards if he had assaulted the Vice

President. Mr. Howards pointed his finger at Agent Reichle, denied assaulting

the Vice President, and informed the agent that “if you don’t want other people

sharing their opinions, you should have him [the Vice President] avoid public

places.” Id. at 494. Agent Reichle became “visibly angry” when Mr. Howards

shared his opinion on the Iraq war. Mr. Howards again attempted to resume his

search for his son.

In his deposition, Mr. Howards articulated the events that followed:

A. At some point [Agent Reichle] said to me – I believe there
actually – he also asked me if I touched the Vice President.
Q. How did you respond to that?
A. I believe I said I hadn’t.
Q. Okay. And that wasn’t truthful, was it?
A. That wasn’t accurate.
Q. Do you recall him asking you any additional questions?

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 A. No. That’s what I recall.

Id. at 495. Agent Reichle asked the nearby agents whether anyone had witnessed

the physical encounter between Mr. Howards and the Vice President. Agent

Doyle stepped forward and confirmed that he had witnessed the physical contact,

and he performed a demonstration of the touch. Agents Daniels and McLaughlin

confirmed that Agent Doyle’s demonstration was an accurate recreation of the

exchange. 3

Based upon Mr. Howards’ “premeditation, the conversation on the cell

phone, the fact that Mr. Howards would not talk to [him], the fact that he’s

walking around with a bag in his hand in an unmagged [no metal detector] area,

and the fact that [Doyle told him] that he had unsolicited contact,” id. at 280,

Agent Reichle decided to arrest Mr. Howards for assault on the Vice President.

Agents Doyle, Daniels, and McLaughlin assisted in restraining Mr. Howards

during the arrest.

Mr. Howards was turned over to the Eagle County Sheriffs Department and

detained for several hours. Ultimately he was charged with harassment in

violation of Colorado state law. The state prosecutor subsequently dismissed the

charges, however, and no federal charges were ever filed.

3
Just as the parties dispute the nature of Mr. Howards’ touch, there is
disagreement as to whether Agent Doyle’s recreation of the touch was accurate.
This dispute is not relevant to our disposition of the appeal.

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 Mr. Howards brought the present action pursuant to 42 U.S.C. § 1983 or,

alternatively, under Bivens v. Six Unknown Drug Agents, 403 U.S. 388 (1971),

against Agents Reichle, Doyle, Daniels, and McLaughlin in both their official and

individual capacities. 4 He alleges that the Agents violated his Fourth Amendment

rights by an unlawful search and seizure, and his First Amendment rights by

retaliating against him for engaging in constitutionally protected speech. At the

close of discovery, all four defendants moved for summary judgment, arguing that

qualified immunity shielded them from the present suit. Following a hearing on

the merits, the district court determined that fact issues as to the availability of

the qualified immunity defense precluded judgment as a matter of law to

defendants. This interlocutory appeal followed.

II.

Our jurisdiction over the present appeal is governed by 28 U.S.C. § 1291,

which provides general jurisdiction over appeals from final decisions of lower

courts. Since Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the

Supreme Court has construed § 1291’s jurisdictional grant to extend to a class of

4
Although Mr. Howards initially named only Gus Reichle as defendant, he
subsequently amended his complaint to add defendants Secret Service Agents
Kristopher Mischloney, Daniel McLaughlin, Dan Doyle, and Adam Daniels, in
both their individual and official capacities. See 2d Am. Compl. at 1. The court
later granted the parties’ joint motion to dismiss defendant Mischloney. See
Order of June 5, 2008, at 1.

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collateral rulings that may be appealable as “final decisions,” notwithstanding the

absence of a final decision terminating litigation. See Mitchell v. Forsyth, 472

U.S. 511, 530 (1985).

To be eligible for interlocutory appeal under Mitchell’s collateral order

doctrine, the decision must be conclusive on the question it decides, must resolve

important questions separate from the merits, and must be effectively

unreviewable if not addressed through an interlocutory appeal. Mohawk Indus.,

Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009). “Because a plea of qualified

immunity can spare an official not only from liability but from trial, . . . [w]hen

summary judgment is denied to a defendant who urges that qualified immunity

shelters her from suit, the court’s order ‘finally and conclusively [disposes of] the

defendant’s claim of right not to stand trial.’” Ortiz v. Jordan, 131 S. Ct. 884,

891 (2011) (quoting Mitchell, 472 U.S. at 527) (alteration in original). As a

result, a district court’s denial of a qualified immunity claim is eligible for appeal

under the collateral order doctrine insofar as it turns on an issue of law. Mitchell,

472 U.S. at 530; see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996)

(“[S]ummary judgment determinations are appealable when they resolve a dispute

concerning an ‘abstract issu[e] of law’ relating to qualified immunity–typically,

the issue whether the federal right allegedly infringed was ‘clearly established.’”

(second alteration in original) (citations omitted)). We may not review a denial

of summary judgment, however, which “determines only a question of ‘evidence

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sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”

Johnson v. Jones, 515 U.S. 304, 313 (1995).

In this case, the district court found disputes of material facts as to the

defendants’ entitlement to qualified immunity and, accordingly, denied their

motions for summary judgment. On appeal, Mr. Howards contends we lack

jurisdiction to consider the appeal because “appellate review of the District

Court’s denial of qualified immunity would necessarily involve questioning the

District Court’s determinations of evidence sufficiency and genuine disputed

material facts . . . .” Aple. Br. at 12. On the other hand, the Agents and the

United States, as amicus, argue this appeal turns on pure questions of law that

may be properly brought on interlocutory appeal.

We conclude we have jurisdiction to review this appeal, but only to the

extent that the “defendant[s’] appeal of the denial of a motion for summary

judgment is based on the argument that, even under the plaintiff’s version of the

facts, the defendant[s] did not violate clearly established law.” Johnson v.

Martin, 195 F.3d 1208, 1214 (10th Cir. 1999). Although as a general matter we

review the district court’s denial of summary judgment de novo, see Martinez v.

Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009), our review in the qualified

immunity context deviates from the standard applicable to other summary

judgment decisions. Id. In considering the legal issues,

[W]e review whether, under [the plaintiff’s] version of the facts,

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 [defendants] violated clearly established law. In making this
determination, we must scrupulously avoid second-guessing the
district court’s determinations regarding whether [plaintiff] has
presented evidence sufficient to survive summary judgment. Rather,
we review only whether [defendants’] conduct, as alleged by
[plaintiff], violated clearly established law.

Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997).

III.

The district court held that Mr. Howards stated a claim under 42 U.S.C.

§ 1983. 5 Section 1983 provides a federal cause of action against any person who,

acting under color of state law, deprives another of his federal rights. Id.

Although § 1983 “create[d] a species of tort liability that on its face admits of no

immunities,” Imbler v. Pachtman, 424 U.S. 409, 417 (1976), the Supreme Court

“has recognized that government officials are entitled to some form of immunity

from suits for civil damages.” Nixon v. Fitzgerald, 457 U.S. 731, 744 (1982).

“State government officials performing discretionary functions enjoy qualified

immunity from liability under 42 U.S.C. § 1983.” Clanton, 129 F.3d at 1153.

“Such immunity is qualified in that it does not obtain when otherwise immune

officials violate clearly established statutory or constitutional rights of which a

5
Given our jurisdictional restraints, see, e.g., Fogarty, 523 F.3d at 1154;
Armijo, 159 F.3d at 1259, we decline to review the district court’s determination
that Mr. Howards raised an issue of material fact as to whether the Agents
participated in joint activity with state officials sufficient to render Mr. Howards’
claim eligible for § 1983 relief.

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reasonable person would have known.” Armijo, 159 F.3d at 1620 (quoting

Clanton, 129 F.3d at 1153) (internal quotation marks omitted).

In this case, the Agents claim the doctrine of qualified immunity shields

them from liability for the discretionary functions they performed “under color”

of state law. See Clanton, 129 F.3d at 1153. “To act ‘under color’ of state law

does not require that the accused be an officer of the State. It is enough that he is

a willful participant in joint activity with the State or its agents.” United States v.

Price, 383 U.S. 787, 794 (1966). 6

As we have noted, Mr. Howards claimed he was entitled alternatively to

bring this action under Bivens. Because the “constitutional injuries made

actionable by § 1983 are of no greater magnitude than those for which federal

6
The Agents also contend they are entitled to absolute immunity from Mr.
Howards’ claims. Although “some officials perform ‘special functions’ which,
because of their similarity to functions that would have been immune when
Congress enacted § 1983, deserve absolute protection from damages liability,” the
Supreme Court has been “‘quite sparing’ in recognizing absolute immunity for
state actors in this context.” Buckley v. Fitzsimmons, 509 U.S. 259, 268-69
(1993) (citations omitted). For executive officials generally, “qualified immunity
represents the norm.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1983). “[T]he
official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Buckley, 509 U.S. at 269
(alteration in original) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991))
(internal quotation marks omitted). The Agents have failed to demonstrate a
common law tradition, a Congressional purpose, or a decision from the Supreme
Court or our circuit affording absolute immunity to law enforcement officers
protecting executive officials, and we decline to extend such immunity here. Cf.
Hunter v. Bryant, 502 U.S. 224, 227-28 (1991) (per curiam) (granting qualified
immunity to Secret Service Agents sued for violating the Fourth Amendment).

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officials may be responsible,” federal officials are accorded the same immunity

for suits brought under Bivens as that which “is accorded state officials when sued

for the identical violation under § 1983.” Butz v. Economou, 438 U.S. 478, 500

(1978). The Supreme Court has explained that “it would be ‘untenable to draw a

distinction for purposes of immunity law between suits brought against state

officials under § 1983 and suits brought directly under the Constitution against

federal officials.’” Harlow v. Fitzgerald, 457 U.S. 800, 818 n.30 (1983) (quoting

Butz, 438 U.S. at 504); see also Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006)

(“Though more limited in some respects not relevant here, a Bivens action is the

federal analog to suits brought against state officials under [§ 1983].”). As a

result, it is irrelevant for our qualified immunity analysis whether Mr. Howards’

suit proceeds under Bivens or § 1983.

In qualified immunity cases at the summary judgment stage, the “plaintiff

must demonstrate on the facts alleged (1) that the defendant[s] violated his

constitutional or statutory rights, and (2) that the constitutional right was clearly

established at the time of the alleged unlawful activity.” Swanson v. Town of

Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009) (citing Pearson v.

Callahan, 129 S. Ct. 808, 815-16 (2009)). We have “the discretion to decide

‘which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand.’” Id. (quoting

Pearson, 129 S. Ct. at 817-18).

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 “In showing that the law was clearly established, the plaintiff does not have

to show that the specific action at issue had been held unlawful, but the alleged

unlawfulness of the defendant’s conduct must be apparent in light of preexisting

law.” Armijo, 159 F.3d at 1260. In other words, “[t]he contours of the right must

be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Id. (quoting Clanton, 129 F.3d at 1154) (internal

quotation marks omitted). A plaintiff may meet his or her burden by pointing to

“a Supreme Court or Tenth Circuit opinion on point, or [by showing] that his or

her proposition is supported by the weight of authority from other courts.

However, we do not require plaintiffs to produce a factually identical case, but

allow some degree of generality in factual correspondence.” Id. (citation

omitted).

A. Fourth Amendment Claim

The Agents urge us to reverse the district court’s order denying them

immunity from Mr. Howards’ Fourth Amendment retaliatory arrest claim. They

argue that even under Mr. Howards’ version of the facts, they possessed probable

cause to believe he had violated 18 U.S.C. § 1001 by lying to them. Section 1001

prohibits the knowing and willful making of “any materially false, fictitious, or

fraudulent statement or representation.” A violation of § 1001 occurs where “(1)

the defendant made a statement; (2) that was false and the defendant knew it was

false; (3) the statement was made knowingly and willfully; (4) the statement was

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made within the jurisdiction of a federal department or agency; and (5) the

statement was material.” United States v. Finn, 375 F.3d 1033, 1037 (10th Cir.

2004) (citing United States v. Kingston, 971 F.2d 481, 486 (10th Cir. 1992)).

“When a warrantless arrest is the subject of a § 1983 action, the arresting

officer is entitled to qualified immunity if a reasonable officer could have

believed that probable cause existed to make the arrest.” Robertson v. Las

Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007). Whether the

Agents had probable cause to arrest Mr. Howard is a legal question we review de

novo, asking whether the “facts and circumstances within the arresting officer’s

knowledge and of which he or she has reasonably trustworthy information are

sufficient to lead a prudent person to believe that the arrestee has committed or is

committing an offense.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)

(quoting Jones v. City & Cnty. of Denver, 854 F.2d 1206, 1210 (10th Cir. 1988))

(internal quotation marks omitted). “Our determination on this score is an

independent and objective one. Thus an officer’s own subjective reason for the

arrest is irrelevant, and it does not matter whether the arrestee was later charged

with a crime.” Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008).

Reviewing the facts through Mr. Howards’ lens, there was probable cause

to arrest him for a suspected violation of § 1001. 7 The Agents testified, and Mr.

7
In district court, the Agents proffered additional offenses for which they
(continued...)

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Howards does not dispute, that Agent Reichle was directed to interview a

protective intelligence subject, Mr. Howards. Agent Reichle received information

from three different Secret Service Agents that Mr. Howards had made

unsolicited physical contact with the Vice President. During the course of Agent

Reichle’s investigation into the nature and circumstances of that physical contact,

he attempted to interview Mr. Howards, who was not cooperative. As Mr.

Howards conceded in his deposition, he made factually inaccurate statements

during his exchange with Agent Reichle. Specifically:

A. At some point . . . [Agent Recihle] also asked me if I
touched the Vice President.
Q. How did you respond to that?
A. I believe I said I hadn’t.
Q. Okay. And that wasn’t truthful, was it?
A. That wasn’t accurate.

Aplt. App. at 495. Given this progression of events, there is no doubt that Agent

Reichle possessed probable cause to arrest Mr. Howards for lying to a federal

agent in violation of 18 U.S.C. § 1001.

Mr. Howards attempts to impeach his own deposition by arguing his “own

testimony . . . indisputably casts doubt on whether Mr. Howards even made the

[false] statement.” Aple. Br. at 28. No part of the record supports this reading of

7
(...continued)
claimed probable cause to arrest Mr. Howards. Because we hold the Agents had
probable cause to arrest Mr. Howards for violating 18 U.S.C. § 1001, we need not
consider whether probable cause existed for any other offenses.

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his testimony, however. During the deposition, Mr. Howards explained this

conversation with Agent Reichle further:

Q. You testified earlier that you denied putting your hands on Mr.
Cheney at some point when Agent Reichle made inquiry of you, and
you indicated that was inaccurate. Why did you deny to Agent
Reichle that you had put your hands on the Vice President?
A. Because it was so nonchalant and unconscious that it just didn’t
register at the time.

Aplt. App. at 498. Later in the deposition, Mr. Howards described the

conversation again: “He asked me first . . . Did you assault the Vice President?

That’s the question I remember. . . . At which point I said, No. And then he

asked me another question, which may have been, Did you touch the Vice

President?” Id. at 499-500. If Mr. Howards had misspoken, he had ample

opportunity to explain this during the deposition. He did not.

Mr. Howards tries to bolster his Fourth Amendment claim by suggesting

that the 18 U.S.C. § 1001 violation was an “after-the-fact justification.” This

argument is misguided. Under the Fourth Amendment, the “constitutionality of

an arrest does not depend on the arresting officer’s state of mind.” Apodaca v.

City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir. 2006). The “‘subjective

reason for making the arrest need not be the criminal offense as to which the

known facts provide probable cause.’ An arrest is not invalid under the Fourth

Amendment simply because the police officer subjectively intended to base the

arrest on an offense for which probable cause is lacking, so long as ‘the

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circumstances, viewed objectively, justify’ the arrest.” Id. (citations omitted)

(quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)); cf. United States v.

Santana-Garcia, 264 F.3d 1188, 1192 (10th Cir. 2001) (“That an officer did not

believe probable cause existed to detain a suspect does not preclude the

Government from justifying the suspect’s detention by establishing probable

cause.”).

The constitutionality of Mr. Howards’ arrest is not undermined simply

because the justification used to support the lawfulness of the arrest was not in

the Agents’ mind at the time the arrest was made. Despite Mr. Howards’

contention, probable cause in this case is not established by an after-acquired fact.

At the time of the arrest, Mr. Howards had already claimed, falsely, that he did

not touch the Vice President. The facts, as they were known to the Agents at the

time, objectively justified the arrest under § 1001. This remains true despite the

fact that, at the time of the arrest, Agent Reichle intended to base the arrest on

other charges.

“[W]hen an officer has probable cause to believe a person committed even

a minor crime in his presence, the balancing of public and private interests is not

in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553 U.S.

164, 171 (2008); see also Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (“If an

officer has probable cause to believe that an individual has committed even a very

minor criminal offense in his presence, he may, without violating the Fourth

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Amendment, arrest the offender.”). Similarly, because the arrest was supported

by probable cause, the search of Mr. Howards incidental to the arrest was also

lawful. See, e.g., Beck v. Ohio, 379 U.S. 89, 90 (1964) (“There are limits to the

permissible scope of a warrantless search incident to a lawful arrest, but . . . if the

arrest itself was lawful, those limits were not exceeded here.”); United States v.

Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (“[O]fficers may conduct a

warrantless search of a person when it is incident to a lawful arrest of that

person.”).

Because the arrest and search were not in violation of the Fourth

Amendment, Mr. Howards is unable to satisfy the first prong of our qualified

immunity analysis. See Pearson, 129 S. Ct. at 815-16; Swanson, 577 F.3d at

1199. The presence of probable cause for Mr. Howards’ arrest entitles the Agents

to qualified immunity from the Fourth Amendment claims against them.

Accordingly, we reverse the district court’s denial of the Agents’ assertions of

qualified immunity on this claim.

B. First Amendment Claim

Even if an official’s action would be “unexceptionable if taken on other

grounds,” when retaliation against Constitutionally-protected speech is the but-for

cause of that action, this retaliation is actionable and “subject to recovery.”

Hartman v. Moore, 547 U.S. 250, 256 (2006) (citing Crawford-El v. Britton, 523

U.S. 574, 593 (1998); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-

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84 (1977)); see also DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (“An

act taken in retaliation for the exercise of a constitutionally protected right is

actionable under § 1983 even if the act, when taken for a different reason, would

have been proper.” (internal quotation marks omitted)); cf. Whren v. United

States, 517 U.S. 806, 813 (1996) (explaining that although the constitutionality of

a seizure under the Fourth Amendment does not depend on the motivations of the

officers involved, “selective enforcement of the law based on considerations such

as race” violates the Equal Protection Clause). “Official reprisal for protected

speech ‘offends the Constitution [because] it threatens to inhibit exercise of the

protected right.’” Hartman, 547 U.S. at 256 (quoting Crawford-El, 523 U.S. at

588 n.10) (alteration in original). Moreover, “the law is settled that as a general

matter the First Amendment prohibits government officials from subjecting an

individual to retaliatory actions, including criminal prosecutions, for speaking

out.” Id.; see also Perry v. Sindermann, 408 U.S. 593, 597 (1972) (noting

government may not punish a person or deprive him of a benefit due to his

“constitutionally protected speech”).

“To establish a First Amendment retaliation claim, a plaintiff must show

that (1) he was engaged in constitutionally protected activity, (2) the

government’s actions caused him injury that would chill a person of ordinary

firmness from continuing to engage in that activity, and (3) the government’s

actions were substantially motivated as a response to his constitutionally

-21-
protected conduct.” Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165

(10th Cir. 2009) (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)).

The district court denied qualified immunity from Mr. Howards’ First

Amendment claim on the basis that “numerous issue [sic] of material fact exist

that must be determined by a jury.” Dist. Ct. Order at 76, Aplt. App. at 716

(hereinafter “Order”).

The district court expressed its belief that its decision was “based on the

facts,” and thus “there is [no] basis for an interlocutory appeal.” Id. at 77.

However, it did not “identify the particular charged conduct that it deemed

adequately supported by the evidence.” See Armijo, 159 F.3d at 1259 (quoting

Behrens v. Pelletier, 516 U.S. 299, 313 (1996)) (internal quotation marks

omitted). Given the different roles of each agent in Mr. Howards’ arrest, we will

first address the arguments of Agents Reichle and Doyle as to why they are

entitled to qualified immunity on the First Amendment claim, and then turn to

those of Agents Daniels and McLaughlin.

1. Agents Reichle and Doyle

We agree with the district court that Mr. Howards has presented evidence

sufficient to deprive Agents Reichle and Doyle of qualified immunity on the First

Amendment claim at this stage. Although we reach this conclusion using a

different analytical path than the district court, “we may affirm on any grounds

that are sufficiently supported by the record to allow for a conclusion as a matter

-22-
of law.” Nielander, 582 F.3d at 1166.

a. Mr. Howards has sufficiently articulated a First Amendment
violation.

Mr. Howards argues, and Agents Reichle and Doyle do not contest, that Mr.

Howards has satisfied the three elements of a First Amendment violation

articulated in Nielander. Indeed, because their briefs on this issue focus solely on

their probable cause argument which we discuss below, they do not address the

Nielander factors at all.

Viewing the record in the light most favorable to Mr. Howards, we agree

that he has satisfied the elements of a First Amendment retaliation claim. First,

his speech leading up to his arrest fell within the “broad command” of the First

Amendment. 8 See, e.g., Spence v. Washington, 418 U.S. 405, 410 (1974)

(recognizing that “pointed expression[s] of anguish . . . about the then-current

domestic and foreign affairs of [the] government” are protected by the First

Amendment). Second, there can be no question that an arrest in retaliation for the

exercise of protected speech constitutes an injury cognizable under our First

8
Although Mr. Howards’ brief focuses on his statement that he was “going
to ask [the Vice President] how many kids he’s killed today,” see Aple. Br. at 45-
46, he makes passing reference to other statements that conceivably motivated his
arrest. Specifically, Mr. Howards declined Agent Reichle’s initial invitation to
speak out about his encounter with the Vice President. Id. at 7. Thereafter, he
did explain the encounter with the Vice President and informed Agent Reichle
that if “you [Agent Reichle] don’t want other people sharing their opinions, you
should have him avoid public places.” Id.

-23-
Amendment jurisprudence. See Worrell, 219 F.3d at 1212 (“[A]ny form of

official retaliation for exercising one’s freedom of speech, including prosecution,

threatened prosecution, bad faith investigation, and legal harassment, constitutes

an infringement of that freedom.” (internal quotation marks omitted)).

Third, Mr. Howards has provided facts which suggest Agents Doyle and

Reichle may have been substantially motivated by Mr. Howards’ speech when he

was arrested. Agent Doyle overheard Mr. Howards say into his cell phone, “I’m

going to ask him how many kids he’s killed today.” Aplt. App. at 532. He

admitted the comment “disturbed” him. Id. He believed it was not “healthy” and

was “[not] quite right” for someone to make such a comment to the Vice

President. Id. Similarly, Agent Reichle was told by Agent Doyle about Mr.

Howards’ cell phone conversation. Id. at 371. Mr. Howards testified that when

he told Agent Reichle “about the way [he] felt about the war in Iraq, Mr. Reichle

became visibly angry . . . .” Id. at 500. Agent Reichle also admitted he

considered this cell phone conversation when deciding to arrest Mr. Howards. Id.

at 280. Agents Doyle and Reichle do not dispute the district court’s

determination that “there is a question of fact on this element [of retaliation] . . . .

[because] there are conflicting accounts regarding which defendant knew what

about plaintiff’s cell phone conversation, when defendants knew it, and whether

the conversation should be used to support probable cause.” Order at 75.

b. The presence of probable cause is not fatal to Mr. Howards’

-24-
 First Amendment retaliation claim.

Instead, Agents Reichle and Doyle rely on the Supreme Court’s decision in

Hartman v. Moore, 547 U.S. 250 (2006), to contend they are entitled to qualified

immunity on the First Amendment claim because “in a case such as this, an

absence of probable cause for the arrest ‘must be pleaded and proven’ as an

element of the plaintiff’s case.” Reichle/Doyle Br. at 14. They assert that “[i]f

an officer had probable cause to arrest a plaintiff for any crime, it is irrelevant

that a plaintiff may have engaged in protected speech prior to or during the

arrest.” Id. at 15 (citing Redd v. City of Enterprise, 140 F.3d 1379 (11th Cir.

1998) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978))); cf. Hartman,

547 U.S. at 259-60 (holding that to prevail on a retaliatory prosecution claim, a

plaintiff must plead and prove the absence of probable cause). 9 The Agents’

reliance on Hartman is misplaced. 10

9
In a footnote in their reply brief on appeal, Agents Reichle and Doyle
contend Mr. Howards waived any response to this argument by failing to address
it in the district court. See Reichle/Doyle Reply Br. at 10 n.3. But they
themselves did not raise Hartman there until their reply brief. Their delay in
raising Hartman was “manifestly unfair” to Mr. Howards “who, under [court]
rules, ha[d] no opportunity for a written response” and, moreover, worked an
unfairness to the district court itself, which did not have the benefit of a written
response from Mr. Howards in regard to the Agents’ “late-blooming argument”.
See Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007) (quoting Headrick v.
Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10th Cir.1994)) (internal quotation
marks and ellipses omitted). Therefore, we address the applicability of Hartman
as presented to us by both parties on appeal.
10
The Agents’ citations to Zurcher v. Stanford Daily, 436 U.S. 547, 565
(continued...)

-25-
 Prior to Hartman, a plaintiff bringing a First Amendment retaliation claim

in this circuit was not required to show that the defendants lacked probable cause

for their actions. See, e.g., DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir.

1990) (retaliatory arrest); Poole v. Cnty. of Otero, 271 F.3d 955 (10th Cir. 2001)

(retaliatory prosecution), abrogated by Hartman, 547 U.S. 250. We recognized in

the context of an arrest that “[a]n act taken in retaliation for the exercise of a

constitutionally protected right is actionable under § 1983 even if the act, when

taken for a different reason, would have been proper.” DeLoach, 922 F.2d at 620

(internal quotation marks omitted); see also Gehl Group v. Koby, 63 F.3d 1528,

1534 (10th Cir. 1995) (“[G]overnment actors cannot intentionally suppress

constitutionally protected expression because of its content and avoid First

Amendment scrutiny simply by claiming that they were acting pursuant to an

10
(...continued)
(1978), for the proposition that “complying with the Fourth Amendment for an
arrest can overcome any issues that arise with the First Amendment,” see
Reichle/Doyle Br. at 14, similarly miss the mark. Zurcher involved a search
pursuant to a warrant. “The Fourth Amendment demonstrates a strong preference
for searches conducted pursuant to a warrant, and the police are more likely to
use the warrant process if the scrutiny applied to a magistrate’s probable-cause
determination to issue a warrant is less than that for warrantless searches.”
Ornelas v. United States, 517 U.S. 690, 699 (1996) (citation and internal
quotation marks omitted). As such, searches and seizures pursuant to a warrant
are given deference by reviewing courts, whereas we review the constitutionality
of warrantless searches and seizures de novo. Id. at 698-99. Given the
substantive differences between the search of a newsroom pursuant to a warrant at
issue in Zurcher and the warrantless arrest in a public space at issue here, we find
Zurcher inapposite.

-26-
otherwise valid criminal law.”), abrogated on other grounds by Crawford-El v.

Britton, 523 U.S. 574 (1998).

This approach is consistent with the Supreme Court’s general approach to

retaliation claims under Mt. Healthy City School District Board of Education v.

Doyle, 429 U.S. 274 (1977), which requires a plaintiff to show that the

defendant’s conduct was substantially motivated by the plaintiff’s exercise of his

or her First Amendment rights, but then shifts the burden to the defendant to

prove that the same decision would have been reached “even in the absence of the

protected conduct.” Id. at 287. Nonetheless, other circuits were split on their

approaches prior to Hartman. Some circuits, like ours, permitted plaintiffs to

successfully bring retaliatory arrest and prosecution claims, despite the presence

of probable cause for the arrest. See, e.g., Greene v. Barber, 310 F.3d 889, 895

(6th Cir. 2002); Haynesworth v. Miller, 820 F.2d 1245, 1256-57 (D.C. Cir. 1987).

Other circuits required plaintiffs to show an absence of probable cause. See, e.g.,

Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002); Smithson v. Aldrich, 235

F.3d 1058, 1063 (8th Cir. 2000); Merkle v. Upper Dublin Sch. Dist., 211 F.3d

782, 794-96 (3d Cir. 2000); Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th

Cir. 1998); Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995).

Hartman resolved the split with regard to retaliatory prosecution cases.

There, the Court addressed a plaintiff’s claim for malicious prosecution based on

an allegation that Postal Service inspectors and a prosecutor “engineered his

-27-
criminal prosecution in retaliation for [his] criticism of the Postal Service,” in

violation of his First Amendment rights. Hartman, 547 U.S. at 254. 11 In holding

that the absence of probable cause is a necessary element of a retaliatory

prosecution case, the Court was careful to distinguish between the “complex”

causation relationship inherent in a retaliatory prosecution versus that of

“ordinary retaliation claims, where the government agent allegedly harboring the

animus is also the individual allegedly taking the adverse action.” Id. at 259.

The Court explained:

When the claimed retaliation for protected conduct is a
criminal charge, however, a constitutional tort action will differ from
this standard case in two ways. . . . What is different about a
prosecution case, . . . is that there will always be a distinct body of
highly valuable circumstantial evidence available and apt to prove or
disprove retaliatory causation, namely evidence showing whether
there was or was not probable cause to bring the criminal charge. . . .
The second respect in which a retaliatory-prosecution case is
different also goes to . . . causation . . . ; the difference is that the
requisite causation between the defendant’s retaliatory animus and
the plaintiff’s injury is usually more complex than it is in other
retaliation cases, and the need to show this more complex connection
supports a requirement that no probable cause be alleged and proven.

Id. at 260-61. The complexity inheres because the “the causal connection

required is not merely between the retaliatory animus of one person [there, the

postal inspector] and that person’s own injurious action, but between the

retaliatory animus of one person and the action of another [the prosecutor].” Id.

11
The district court dismissed the claim against the prosecutor based on
absolute prosecutorial immunity. Hartman, 547 U.S. at 254-55.

-28-
at 262. Indeed, as the Court made clear, “[i]t is . . . the need to prove a chain of

causation from animus to injury, with details specific to retaliatory-prosecution

cases, that provides the strongest justification for the no-probable-cause

requirement espoused by the inspectors.” Id. at 259.

Before concluding, the Court noted one additional difference in the

retaliatory prosecution context: the “added legal obstacle in the longstanding

presumption of regularity accorded to prosecutorial decisionmaking.” Id. at 263.

“[T]his presumption that a prosecutor has legitimate grounds for the action he

takes is one we do not lightly discard . . . .” Id.

In the wake of Hartman, our sister circuits continue to be split over whether

Hartman applies to retaliatory arrests, that is, whether a plaintiff in that retaliation

context must show that the defendants lacked probable cause for the arrest. See

Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1231 & n.31 (9th Cir. 2006)

(recognizing split among circuits). Compare McCabe v. Parker, 608 F.3d 1068,

1075 (8th Cir. 2010), Phillips v. Irvin, 222 F. App’x 928, 929 (11th Cir. 2007),

and Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (requiring plaintiffs to

show lack of probable cause for arrest), with Skoog, 469 F.3d at 1231 (allowing

plaintiffs to bring First Amendment retaliation claims even when probable cause

existed for arrest). 12

12
Although Skoog held that in an “ordinary” retaliation case, the plaintiff
(continued...)

-29-
 We decline to extend Hartman’s “no-probable-cause” requirement to this

retaliatory arrest case. Unlike the plaintiff in Hartman, Mr. Howards does not

attack prosecutorial discretion based on the bad motive of a third person. Instead,

he contends Agents Reichle and Doyle arrested him with their own retaliatory

motives, because of the exercise of his First Amendment rights. Such is the

quintessential “ordinary retaliation claim” as outlined in Hartman – a claim in

which the agent allegedly harboring the unconstitutional animus is the same

individual who carries out the adverse action. Hartman, 547 U.S. at 259-60. And

unlike prosecutors, Secret Service Agents enjoy no presumption of regularity

regarding their decisionmaking. As a result, this factor counts against extending

Hartman to the circumstances here.

In light of the care the Supreme Court took to distinguish between complex

and ordinary retaliation claims, we are not persuaded Hartman applies to the

circumstances here. 13 See John Koerner, Note, Between Healthy and Hartman:

12
(...continued)
need not plead the absence of probable cause in order to state a claim, it also
determined that the constitutional violation was not clearly established when Mr.
Skoog’s arrest occurred. 469 F.3d at 1235. Skoog explained that even prior to
Hartman it was “an open question” in the Ninth Circuit whether “a plaintiff must
plead the absence of probable cause in order to . . . state a claim for retaliation
. . . .” Id. at 1232; see also id. at 1232 n.30. Unlike the Ninth Circuit, our circuit
has prior binding precedent that a plaintiff need not plead the absence of probable
cause to bring a retaliatory arrest claim. See DeLoach, 922 F.2d at 620.
13
We have applied Hartman in another context, but that was a situation
involving complex causation, not an ordinary retaliation claim like the one in this
(continued...)

-30-
Probable Cause in Retaliatory Arrest Cases, 109 Colum. L. Rev. 755, 771 (2009)

(“[T]he Court did not signal that it was rejecting [the Mt. Healthy] standard in

general. Instead, the Court stressed three factors that supported a heightened

pleading standard in retaliatory prosecution cases: complex causation, evidentiary

concerns, and the presumption of prosecutorial regularity.”). The alternative

approach, extending the “no-probable-cause” requirement to this ordinary

retaliatory arrest case and dismissing Mr. Howards’ suit, would result in the

Court’s limited exception devouring the rule. Because we hold Hartman did not

disturb our earlier precedent on ordinary retaliation cases, when Mr. Howards was

arrested it was clearly established that an arrest made in retaliation of an

individual’s First Amendment rights is unlawful, even if the arrest is supported by

probable cause. 14 Accordingly, our prior precedent permits Mr. Howards to

13
(...continued)
case. In McBeth v. Himes, 598 F.3d 708, 719 (10th Cir. 2010), we applied
Hartman to require proof of the absence of probable cause in a claim alleging that
defendants induced the Department of Human Services to suspend plaintiff’s
daycare license. This application of Hartman was justified because that claim
“present[ed] the same difficulties in tracing the chain of causation as Hartman
did.” Id. We expressly “[did] not hold that the Hartman rule is applicable to
‘ordinary’ retaliation claims.” Id. at 720.
14
Notably, no party asserts on appeal that the law on retaliatory arrests was
not “clearly established” in this circuit either before or after Hartman.
Nevertheless, the dissenting opinion points to the split among the circuits to argue
the law on retaliatory arrests was not “clearly established” after Hartman. In
qualified immunity cases, we may look to other courts when there is no Supreme
Court or Tenth Circuit precedent on point to determine if a right is “clearly
established.” See, e.g., York v. City of Las Cruces, 523 F.3d 1205, 1211-12 (10th
(continued...)

-31-
proceed with his First Amendment retaliation claim notwithstanding probable

cause existed for his arrest. 15 See DeLoach, 922 F.2d at 620.

14
(...continued)
Cir. 2008). Although a conflict among the circuits “is relevant” to our
determination of whether a right is clearly established, it is “not controlling.”
Garcia by Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987). “[T]he fact that a
single judge, or even a group of judges, disagrees about the contours of a right
does not automatically render the law unclear if we have been clear.” Safford
Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2644 (2009). Prior to
Hartman, the law on retaliatory arrests was clear in the Tenth Circuit. See
DeLoach, 922 F.2d at 620; see also Greene v. Barber, 310 F.3d 889, 895 (6th Cir.
2002) (relying on DeLoach and explaining “the existence of probable cause is not
determinative of the constitutional question if . . . the plaintiff was arrested in
retaliation for his having engaged in constitutionally protected speech”).
Hartman did nothing to disturb this law. The fact that some of our sister circuits
disagree with us on this issue does not bind us, nor does it force us to find the law
was no longer clearly established in this circuit. See Garcia, 817 F.2d at 658.
15
It is well established that an act which is lawful under the Fourth
Amendment may still violate other provisions of the Constitution. For example,
in Whren v. United States, 517 U.S. 806, 809 (1996), the Court considered
whether a traffic stop that was supported by probable cause could violate the
Fourth Amendment when the reason for the stop was pretextual. The two black
male defendants were arrested for possessing illegal drugs after their car was
stopped by vice officers in a “high drug area.” Id. at 808. The defendants
conceded the police had probable cause to believe that they had violated local
traffic laws, but argued the traffic stop nonetheless should be held unreasonable
under the Fourth Amendment, because the stop was pretextual and no reasonable
officer would have stopped them for those traffic violations. Id. at 810. The
Court held “[s]ubjective intentions [of police] play no role in ordinary, probable-
cause Fourth Amendment analysis,” therefore the traffic stop did not violate the
Fourth Amendment. The Court nevertheless pointed out that “the Constitution
prohibits selective enforcement of the law based on considerations such as race.”
Id. at 813. As a result, “the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause, not the Fourth
Amendment.” Id. A reasonable search and seizure is thus not inoculated against
all constitutional scrutiny. Significantly, Hartman did not overrule Whren, nor
did it undermine this important principle.

-32-
 Based on the record here, and in the absence of any argument from Agents

Reichle and Doyle that Mr. Howards failed to present evidence to establish a First

Amendment violation, see Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155,

1165 (10th Cir. 2009), we conclude the district court correctly denied these

Agents’ motion for qualified immunity on Mr. Howards’ First Amendment claim

for retaliatory arrest.

2. Agents Daniels and McLaughlin

Significantly, Mr. Howards has not identified anything in the record that

might support a retaliatory motive on the part of Agents Daniels or McLaughlin.

To survive summary judgment, Mr. Howards must show that defendants violated

his constitutional rights. Given the nature of his First Amendment retaliation

claim, he must offer evidence indicating a retaliatory motive on the part of these

defendants in response to the exercise of his First Amendment rights. See

Nielander, 582 F.3d at 1165.

Mr. Howards has neither offered evidence nor articulated facts showing that

Agents Daniels or McLaughlin’s conduct was in any way influenced by a

retaliatory motive. Mr. Howards argues that because both Agents “Daniels and

McLaughlin included [the cell phone] statement in their incident reports” but

excluded other facts, there is “circumstantial evidence that Agents Daniels and

McLaughlin were not motivated to arrest Mr. Howards because of his conduct, but

were, in fact, motivated to arrest him because of the content of his speech.” Aple.

-33-
Br. at 47. In the context of this case, this evidence alone is inadequate to satisfy

the third element of a First Amendment claim.

Mr. Howards has provided no evidence that Agents Daniels and McLaughlin

did anything but follow the directions of fellow Secret Service Agents. They

began monitoring Mr. Howards’ movements when asked to by Agent Doyle.

Agent McLaughlin indicated he believed it was “within [Mr. Howards’] bounds”

to make a critical statement to the Vice President. Aplt. App. at 425. Although

Agent Doyle told them about Mr. Howards’ cell phone call, Agents Daniels and

McLaughlin were unaware of what Mr. Howards actually said to the Vice

President. Similarly, Mr. Howards offered no evidence that either Agent Daniels

or Agent McLaughlin participated in the decision to arrest him. They had no

contact with Mr. Howards until after Agent Reichle ordered the arrest. There is no

suggestion in the record that Agents Daniels and McLaughlin did anything but

assist their fellow agents. Without such evidence, Mr. Howards has not shown

that Agents Daniels and McLaughlin violated his constitutional rights, as required

in qualified immunity cases. See, e.g., Pearson, 129 S. Ct. at 815-16; Swanson,

577 F.3d at 1199.

Significantly, Agents Daniels and McLaughlin were entitled to rely on

Agent Reichle’s determination that there was probable cause to arrest Mr.

Howards. Just as with police work, a Secret Service Agent’s role requires reliance

“on the observations, statements, and conclusions” of fellow agents. See Baptiste

-34-
v. J.C. Penney Co., 147 F.3d 1252, 1260 (10th Cir. 1998). “When one officer

requests that another officer assist in executing an arrest, the assisting officer is

not required to second-guess the requesting officer’s probable cause determination,

nor is he required to independently determine that probable cause exists.” Stearns

v. Clarkson, 615 F.3d 1278, 1286 (10th Cir. 2000). “Police officers are entitled to

rely upon information relayed to them by other officers in determining whether

there is reasonable suspicion to justify an investigative detention or probable cause

to arrest.” Oliver v. Woods, 209 F.3d 1179, 1190 (10th Cir. 2000). “[A] police

officer who acts in reliance on what proves to be the flawed conclusions of a

fellow police officer may nonetheless be entitled to qualified immunity as long as

the officer’s reliance was objectively reasonable.” Baptiste, 147 F.3d at 1260

(internal quotation marks omitted). As a result, absent evidence that Agents

Daniels and McLaughlin were motivated to arrest Mr. Howards because of his

speech, they are entitled to qualified immunity for assisting in the arrest, so long

as their reliance on Agent Reichle was objectively reasonable.

Under the circumstances, it was objectively reasonable for Agents Daniels

and McLaughlin to rely on Agent Reichle’s probable cause determination. The

two agents knew they had access to incomplete information regarding Mr.

Howards’ conduct. Because they were operating in undercover counter-

surveillance roles, they did not carry radios and therefore did not have any

information about Mr. Howards that might have been transmitted by radio. Agent

-35-
Reichle, on the other hand, carried a radio and had interviewed Mr. Howards.

Although Mr. Howards emphasizes that Agents Daniels and McLaughlin

both believed, based on what they had seen, there was not probable cause to arrest

Mr. Howard for his touch of the Vice President, this is not dispositive. Agents

Daniels and McLaughlin’s personal knowledge is irrelevant unless it in some way

suggests that their reliance on Agent Reichle’s probable cause determination was

unreasonable. See Stearns, 615 F.3d at 1286. Given the compartmentalized roles

of the agents, and the potential information to which Agents Daniels and

McLaughlin lacked access, their own observations did not undermine the objective

reasonableness of their reliance on Agent Reichle. Accordingly, the district court

erred in denying Agents Daniels and McLaughlin’s motion for qualified immunity

and for judgment as a matter of law on Mr. Howards’ First Amendment claim.

IV.

For the foregoing reasons, we REVERSE the district court’s denial of

qualified immunity to all defendants on Mr. Howards’ Fourth Amendment claim;

we REVERSE the district court’s denial of qualified immunity to Agents Daniels

and McLaughlin on Mr. Howards’ First Amendment claim; and we AFFIRM the

district court’s denial of qualified immunity to Agents Reichle and Doyle on Mr.

Howards’ First Amendment claim and REMAND for further proceedings

consistent with this opinion.

-36-
No. 09-1201, 09-1202, Howards v. McLaughlin

KELLY, Circuit Judge, concurring in part and dissenting in part.

In my view, all of the agents should receive qualified immunity. Thus, I

concur insofar as Agents Daniels and McLaughlin receive it, and dissent as to the

denial of qualified immunity to Agents Reichle and Doyle.

The Fourth Amendment issue in this case is plainly controlled by

Devenpeck v. Alford, 543 U.S. 146, 153 (2004), holding that as long as an officer

is aware of facts suggesting probable cause, the offense that furnishes the basis for

probable cause need not be related to what is charged. In the qualified immunity

context, all that is required is arguable probable cause, and in this case agents had

arguable probable cause to believe that Mr. Howards made a false statement. See

Cortez v. McCauley, 478 F.3d 1108, 1121 (10th Cir. 2007) (en banc) (arguable

probable cause).

There is a strong argument that Hartman v. Moore, 547 U.S. 250 (April 26,

2006), applies not only to retaliatory prosecutions, but also to retaliatory arrests.

The prosecutor will generally receive absolute immunity for decisions to

prosecute, while the agents and investigators will claim qualified immunity for

steps leading to prosecution (investigation and arrest) and prosecution. Probable

cause evidence will be readily available and relevant in most retaliatory arrest

cases; the fact that causation may not be as complex should not preclude

consideration of this as an element. Several cases hold or imply that Hartman
applies to arrest as well as prosecution. See McCabe v. Parker, 608 F.3d 1068,

1079 (8th Cir. 2010); Beck v. City of Upland, 527 F.3d 853, 863-64 (9th Cir.

2008) (suggesting that Hartman applies to a retaliatory arrest or prosecution

claim); Leonard v. Robinson, 477 F.3d 347, 355-56 (6th Cir. 2007); Barnes v.

Wright, 449 F.3d 709, 720 (6th Cir. 2006). The court adopts a minority view

based upon the rationale of Skoog v. City of Clackamas, 469 F.3d 1221, 1233-35

(9th Cir. 2006).

Given a qualified immunity defense, Plaintiff had the burden to prove not

only a constitutional violation but also clearly established law. Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 815-816 (2009). In DeLoach v. Bevers,

922 F.2d 618, 620 (10th Cir. 1990), this court held that a claim for retaliatory

arrest and prosecution (leading to a suspect being bound over for trial), was

actionable, even if another reason would have supported the action.

On June 16, 2006, when the arrest in this case occurred, the law simply was

not clearly established (nor is it now) that Hartman only applied to retaliatory

prosecutions and not retaliatory arrests. The Tenth Circuit has been willing to

apply Hartman in other contexts, albeit where there are multiple decisionmakers.

McBeth v. Himes, 598 F.3d 708, 718-20 (10th Cir. 2010). Given that the officers

are deemed to have probable cause, no objectively reasonable officer on June 16,

2006 would be on notice that probable cause was insufficient to overcome claims

of First Amendment retaliation. There are two reasons for this. First, DeLoach is

-2-
a retaliatory arrest and prosecution (not solely a retaliatory arrest) case—the

significance of this may not have been apparent earlier, but it certainly is after

Hartman. Second, in Hartman the Supreme Court rejected the Tenth Circuit’s

approach to retaliatory prosecution cases, 547 U.S. at 256, and the court today

acknowledges that “our sister circuits continue to be split over whether Hartman

applies to retaliatory arrests.” Ct. Op. at 29.

If anything, the weight of DeLoach when applied solely to a retaliatory

arrest case was far from clear after Hartman. The court reminds us that a conflict

among the circuits is merely relevant to whether a right is clearly established, not

controlling, and also relies upon the Supreme Court’s statement that “the fact that

a single judge, or even a group of judges, disagrees about the contours of a right

does not automatically render the law unclear if we have been clear.” Safford

Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2644 (2009) (emphasis

added). Of course, the “we” pertains to the Supreme Court. This court’s

conclusion after Hartman—that Hartman did nothing to disturb this circuit’s law

on retaliatory arrests—is by no means a preordained conclusion as evidenced by

this court’s acknowledgment that courts are split about whether it applies to

retaliatory arrests, and the analysis rejecting Hartman in this context. The law the

court announces was hardly apparent and would not put officials on fair notice that

such conduct was unlawful. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). This

is particularly true given how solicitous the court has been when it comes to

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protecting the Vice President. See Saucier v. Katz, 533 U.S. 194, 208-09 (2001).

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