Sparing two Secret Service agents the legal chore of defending themselves at a civil trial, the Supreme Court on Monday chose to leave unanswered the power of police or federal agents to arrest a political protester whose views the officers find objectionable.  Instead, the Court ruled only that these two agents were legally immune because they had no warning in 2006 that they might face a lawsuit if they retaliated by arresting an individual who approached then-Vice President Dick Cheney and complained about the war in Iraq.

It has been clear, since a Supreme Court ruling in 2006, that officers who had a good reason to prosecute an individual can go ahead with the case even if that would appear to be in retaliation for speaking out against a public official or agency.  The fact that the officers perceived that a crime had been committed was enough to justify such a prosecution, the Court declared.

Since then, lower courts have split on whether that same rule of law applies when the officers make an arrest, instead of pursuing charges in a prosecution, that seems to be a response to comments an individual had made on a public issue.  That was one of the issues the Justices had agreed in December to decide in the case of Secret Service agents Virgil D. “Gus” Reichle and Dan Doyle (Reichle, et al., v. Howards, docket 11-262).

But, rather than decide that question, the Court — in an opinion by Justice Clarence Thomas — chose to focus only on what the average police officer (or federal agent) would have understood the law to be at the time Reichle and Doyle were guarding the Vice President during a vacation visit to a shopping mall in Beaver Creek, Colo., five years ago.   It was not clearly established in the law at that time, the Court concluded, that officers would act illegally if their arrest of an individual was based on their belief that they had “probable cause” to believe a crime had been committed, whether or not they also were reacting to a statement that person made on a public policy question.

The case involved a Golden, Colo., man, Steven Howards, who had gone to the Beaver Creek mall for his son’s piano recital.  He saw Cheney greeting people outside a grocery store.  Talking on a cellphone at the time, Howards said, “I’m going to ask him how many kids he’s killed today.”  An agent overheard the remark, leading several agents to focus on Howards’ movements.  Howards approached Cheney, and told him that his “policies in Iraq were disgusting.”  Cheney thanked the man and, as the two parted, Howards apparently touched the Vice President in some way; the details are in dispute.

The agents then decided to question Howards, who insisted that he had not touched Cheney.  He was then arrested, and local officials charged him with harassment — a charge that was later dismissed.  Howards then sued several agents, claiming that his arrest was in retaliation for his remarks to Cheney about the war in Iraq.   The Tenth Circuit Court ultimately agreed, clearing the way for trial of his claim on the theory that it was clearly established that police may not punish an individual for the use of First Amendment rights.  That part of the ruling applied only to agents Reichle and Doyle.

Under prior Supreme Court precedents, officers generally are entitled to immunity to a damages lawsuit if the legal claim against them was not “clearly established” at the time of the incident leading to a lawsuit against them.  The Court, Justice Thomas wrote, “has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.” Moreover, Thomas added, there was no other legal basis for establishing such a right at that time.

“Here, the right in question is not the general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause,” Thomas wrote.  Without the clear existence of that specific right, Reichle and Doyle were immune to Howards’ claim, the opinion found.  But it explicitly said that it was only deciding the immunity issue, and doing so independently of what the answer might ultimately be on whether such a right now exists under the First Amendment.

Whether the Court’s 2006 decision in Hartman v. Moore, in which the Court held that a finding of probable cause for pursuing criminal charges barred a claim for retaliatory prosecution, should be understood to apply also to a retaliatory arrest that was based on probable cause, was left to be decided at some point in the future.

While the outcome in the case, conferring immunity on the two agents, was unanimous, two members of the Court — Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer — agreed only with the specific result.  If this case had not involved Secret Service agents, but only regular police officers, Ginsburg wrote, she would not have found a right to qualified immunity.

But, she added, this was a case involving agents assigned to protect public officials, who have to take into account, in that duty, words that an individual makes to or near to the official they are guarding.  In this instance, Ginsburg concluded, the officers were “duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security.”

Justice Elena Kagan took no part in the case, apparently because of her prior role as U.S. Solicitor General.

Plain English summary:

Police officers (and federal agents, too) cannot be sued for violating someone’s rights, if the right that was supposedly violated was not formally recognized to exist at the time the officers acted.  If the Court finds that no such right existed at that time (whether or not it might be recognized later), then the claim cannot go to court in a trial.   In this case, the private individual who approached Vice President Cheney in 2006 claimed that he could not be arrested for anti-war remarks he made to Cheney.  The Court, without deciding whether the man would now have a right to make those remarks without being arrested, found that he would not have a clear right to do so as of 2006.  That was enough to reject Howards’ lawsuit.

Posted in Reichle v. Howards, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Opinion recap: Narrow ruling on arrests, SCOTUSblog (Jun. 4, 2012, 12:55 PM), http://www.scotusblog.com/2012/06/opinion-recap-narrow-ruling-on-arrests/