I posted on Reichle when the Supreme Court issued its opinion in June It was hoped that the court would use that case to answer the question; does probable cause bar a First Amendment retaliatory arrest claim? Instead it avoided the issue by finding the defendants entitled to qualified immunity stating; “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.” In my post I commented on the confusing Ninth Circuit case law on this issue. That confusion may now have cleared.
Yesterday the Ninth Circuit issued its opinion in Acosta V. City Of Costa Mesa, which addressed the constitutionality of a city ordinance governing public conduct at council meetings. It found the ordinance overly broad but upheld the ordinance by striking the offending language.
Acosta also may have cleared up the confusion addressed in my earlier post when it found that the arresting officers entitled to qualified immunity. In doing so it cited to Reichle for the proposition that there was no clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.
One caution. The Acosta court viewed this arrest as being supported by strong probable cause. Because existing Ninth Circuit case law denied qualified immunity only where the probable cause was weak, it could be argued that the Acosta decision broke no new ground.
My prior post can be accessed here.