Policing the Police: Protecting Civil Remedies in Cases of Retaliatory Arrest
23 Pages Posted: 4 May 2013
Date Written: September 5, 2012
In Howards v. McLaughlin, the Tenth Circuit provided a definitive statement of its treatment of probable cause in retaliatory arrest cases. Part I of this Comment will examine the genesis of Constitutional tort law, the evolution of retaliatory case law, and the current split among the federal circuits as to whether the absence of probable cause is a requirement in retaliation cases. Part II summarizes the facts, procedural history, and opinions of Howards v. McLaughlin. Part III argues that the Tenth Circuit was correct in its holding that existence of probable cause should not be a bar to retaliatory arrest claims, by demonstrating that probable cause does not preclude retaliatory causation. Part III also addresses the current circuit split by distinguishing Howards from the Supreme Court’s holding in Hartman. Lastly, Part IV analyzes the arguments put forth by the petition for certiorari, and gives insight into how the Supreme Court should and will and rule on this issue.
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