noting that "the precedent in this Circuit clearly established in 1988 ... the contours of the First Amendment’ right to be free from retaliatory prosecution”
How later courts described this case
- noting that "the precedent in this Circuit clearly established in 1988 ... the contours of the First Amendment’ right to be free from retaliatory prosecution”
Written by the judges who cited it.
The opinion
KAVANAUGH, Circuit Judge,
dissenting:
In its recent decision in Reichle v. Howards, — U.S. -, 132 S.Ct. 2088 , 182 L.Ed.2d 985 (2012), the Supreme Court indicated that it is not clear whether the absence-of-probable-cause requirement identified in Hartman v. Moore, 547 U.S. 250, 252 , 126 S.Ct. 1695 , 164 L.Ed.2d 441 (2006), is “best read as defining the scope of the First Amendment right or as simply establishing a prerequisite for recovery.” Reichle, 132 S.Ct. at 2096 n. 6. Because the First Amendment law on this point is not clear, the defendants in this case cannot be said to have violated “clearly established” First Amendment law. Therefore, the defendants are entitled to qualified immunity, and the suit may not proceed. I respectfully dissent.