CA10: Plaintiff loses on Fourth Amendment claim but succeeds on First Amendment retaliatory arrest claim involving former VP Cheney

Secret service agents had probable cause for the arrest of the plaintiff for lying to them about touching Vice President Cheney when he wanted to ask Cheney “How many kids have you killed today?” referring to the War in Iraq which offended a Secret Service agent protecting Cheney. Plaintiff, however, wins on his First Amendment retaliatory arrest claim. Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011)*:

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. See John Koerner, Note, Between Healthy and Hartman: 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. Accordingly, our prior precedent permits Mr. Howards to proceed with his First Amendment retaliation claim notwithstanding probable cause existed for his arrest. See DeLoach, 922 F.2d at 620.