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Free speech and the Veep

Taking on a case that grew out of a citizen’s arrest after he made an anti-war remark and jostled then-Vice President Richard Cheney, the Supreme Court agreed Monday to sort out when an arrest is invalid because it may have been carried out in retaliation for the exercise of free-speech rights.   Two Secret Service agents, seeking to head off a civil rights lawsuit against them, argue that they had a valid reason for arresting a Colorado man in 2006, so he has no First Amendment claim.  The case is Reichle, et al., v. Howards (docket 11-262). This was the only new case granted on Monday.  The Court did not send any cases to the Solicitor General for the government’s reaction.

The Secret Service case will be decided by an eight-member Court, since Justice Elena Kagan took herself out of the case, presumably because she had had some contact with it in her former position as Solicitor General.  The case is likely to be set for argument in the March or April sittings.  At issue is a ruling by the Tenth Circuit Court, based in Denver, that denied legal immunity to the agents because, it said, the law was clear that law enforcement officers may not arrest an individual who has exercised First Amendment rights.   The fact that the agents had “probable cause” to make the arrest did not overcome the individual’s free-speech rights, the Circuit Court ruled.

The case will require the Court to sort out the impact on the case of its own ruling in 2006, in the case of Hartman v. Moore.  In that case, the Court said that, if there is probable cause sufficient to justify filing charges, then that neutralizes a claim that the prosecution was started in retaliation for criticizing a public official or agency.   In the new Secret Service agents’ case, the Tenth Circuit said that precedent only dealt with retaliatory prosecution, not retaliatory arrest.   The federal Circuit Courts are split on that last point, and that division is apparently what led the Supreme Court to step in.

Besides accepting that case for review, the Court on Monday refused to be drawn back into the ongoing controversy over religious organizations’ plea to use government buildings, such as public schools, for the site of worship services.  The Court turned down an appeal by a small evangelical church in New York City — the Bronx Household of Faith — that has been in a running feud since 1994 with city officials over its desire to use a public school for religious worship.  It temporarily had permission to do so, but that was barred by the most recent ruling by the Second Circuit Court.  The case is Bronx Household of Faith v. New York City Board of Education (11-386).  Justice Sonia Sotomayor took no part in Monday’s order, presumably because she had some involvement with the case when she was a judge on the Second Circuit Court.

In another order, the Court refused to spell out when a claim for payment by the federal government is false and thus is illegal under an 1863 law, the False Claims Act.  A Springfield, Mass., company that makes surgical devices, Blackstone Medical,Inc., urged the Justices to clear up the kind of proof that citizens must produce for their claim of false claims against the government.  The Act allows private citizens to stand in for the federal government, and to pursue recovery of funds that had been paid out in response to false claims.  The Blackstone case (Blackstone Medical v. U.S. ex rel. Hutcheson, 11-269) involves a woman’s claim that the company paid kickbacks to doctors across the country so they would use company products in certain surgeries of the spine.   Federal government lawyers supported that claim in lower courts.

Neither Justice Antonin Scalia nor the full Court took any action this morning on three separate cases seeking to block a lower federal court’s interim plans for conducting elections in 2012 for members of Texas’s delegation in the U.S. House of Representatives and for seats in the state legislature’s two chambers.   Additional filings are expected today in the congressional redistricting dispute.

The Secret Service agents’ case that the Justices will be reviewing goes back to June 2006, when Vice President Cheney was visiting a mall in Beaver Creek, Colo.  As Cheney left a grocery store in the mall, he encountered Steven Howards of Golden, Colo.  Another agent had overheard Howards say on his cell phone that he was going to confront Cheney and ask him “how many kids he killed today,” apparently in reference to the war in Iraq.

As Cheney greeted people outside the store, Howards approached, and told Cheney that his policies in Iraq “were disgusting.”  Cheney simply thanked the man, but, as Howards moved away, he touched Cheney on the shoulder — there is a dispute about how vigorous or aggressive the touch was.  Howards said it was merely a pat; some of the agents said it amounted to a shove.    Shortly afterward, the agents questioned Howards, who denied touching Cheney at all.  He was then arrested on a charge of assaulting the Vice President.

That charge was never prosecuted, nor was a separate state charge of harassment.   Later, Howards sued a number of Secret Service agents, contending that they had violated his First Amendment rights, among other rights.  Ultimately, the case came down to two agents, Virgil D. “Gus” Reichle and Dan Doyle.   They argued that they had qualified immunity to Howards’ lawsuit, because they had probable cause to arrest Howards for having made a false statement to a federal agent.  That charge was not prosecuted.

The agents took their case on to the Supreme Court, with the support of the Justice Department.  Howards refused to respond to the appeal, but his lawyer told the Court that Howards did not oppose Supreme Court review.  The lawyer’s letter commented that “Mr. Howards believes that the First Amendment to the Constitution needs to be vindicated nationally in this matter,” and, since lower courts were split, “the only final vindication” could come from the Justices.

Recommended Citation: Lyle Denniston, Free speech and the Veep, SCOTUSblog (Dec. 5, 2011, 10:14 AM),