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Argument preview: A protester’s arrest (UPDATED)

UPDATED Thursday 5:05 p.m.   The introductory paragraph of this post has been updated with the names of the attorneys arguing the case, announced by the Court Thursday afternoon.

At 11 a.m. next Wednesday, March 21, the Supreme Court will hold one hour of oral argument on an appeal by two Secret Service agents seeking to head off a federal court lawsuit accusing them of arresting an anti-war protester in retaliation for speaking out.  The case is Reichle, et al., v. Howards (11-262).   Sean R. Gallagher of the Denver firm of Polsinelli Shughart PC will argue for the agents, with 15 minutes of time, and Principal Deputy U.S. Solicitor General Sri Srinivasan for the U.S. as amicus, also with 15 minutes.  David A. Lane, of the Denver firm of Killmer, Lane & Newman LLP, will argue for the arrested individual.  The case will be heard by eight Justices, since Justice Elena Kagan is recused.


This case has gained visibility in the press because it involves a citizen who encountered Vice President Cheney at a shopping mall, touched him briefly and made an anti-war remark to him, and as a result found himself arrested by Secret Service agents, facing a criminal charge, and spending hours in a local jail.  The case, though, does raise a basic constitutional issue about when a citizen may sue a federal officer for allegedly retaliating against that individual for speaking out.  There is no longer any charge pending against the individual, and so the dispute is now focused directly on whether a damages lawsuit against the agents can go to trial.

The Supreme Court in this case will be examining whether to extend a 2006 precedent, in the case of Hartman v. Moore.  That decision barred trial of a lawsuit for actual prosecution claimed to be in retaliation for lobbying the U.S. Postal Service.  Since that ruling, lower federal courts are split on whether a claim of retaliatory arrest, with no subsequent prosecution, is similarly barred.  In Hartman, the prosecution was allowed because the Supreme Court concluded that there was a valid basis (probable cause) for the prosecution.  The existence of probable cause, the Justices found, suggested that the prosecutor would have gone ahead anyway, even without a retaliatory motive.

The new case tests whether an arrest would have occurred anyway, even without the alleged retaliatory motive, if the arrest itself was based upon probable cause.  If so, then the First Amendment claim cannot proceed.

Awaiting the outcome is Steven Howards of Golden, Colo., who went to a shopping mall in Beaver Creek, Colo., on June 16, 2006, to meet his family after a piano recital in which their son was appearing.  As it happened, Vice President Cheney also was visiting the mall that day.  As Howards made his way to the recital hall, he made a call on his cellphone, commenting that the Vice President was coming out of a grocery store.  Howards then remarked on the phone: “I’m going to ask him how many kids he’s killed today.”  One agent in Cheney’s protective detail overheard the remark, and told other agents that Howards might bear watching, but no other action was taken at that point.

Spectators gathered around the Vice President, shaking hands and exchanging remarks.  Howards waited a bit, then approached Cheney and commented that his “policies in Iraq were disgusting.” Cheney merely thanked him in reply.  As Howards prepared to walk away, he apparently touched Cheney briefly.  The parties in the case dispute whether this was a simple tap, or something more aggressive, like a slap.  But no agent in the detail moved in to take any action.  Later, one agent approached Howards after he had left the recital hall, and asked if he had assaulted Cheney.  Howards replied that he should not be questioned for having offered his comment to the Vice President.  The agent then reportedly grew angry, and asked if Howards had touched the Vice President.  He denied doing so.

The agent, Virgil D. “Gus” Reichle, Jr., then arrested Howards for assault, based mainly upon making “unsolicited contact” with the Vice President.  Howards was turned over to Eagle County sheriffs, was detained by them for several hours, and was ticketed for harassment, under Colorado law.  A local prosecutor later dismissed that charge.  No claim of assault or violation of any other federal law was ever made, and, so far as is known, the Secret Service took no further action of any kind toward Howards.

Howards later sued several of the Secret Service agents, including Reichle and agent Dan Doyle, claiming violations of his First and Fourth Amendment rights.  Only the First Amendment claim, based on an allegation of retaliation for his anti-war comment to Cheney, survived review in the Tenth Circuit Court.   The Fourth Amendment claim of an unlawful seizure was turned aside because the Circuit Court concluded that the agents had probable cause to arrest Howards for having falsely denied that he had touched the Vice President — a denial that could have violated the federal law against giving false statements in an investigation.  That part of the ruling granted qualified legal immunity to the agents.

On the First Amendment claim, applying only to agents Reichle and Doyle, the Circuit Court denied immunity, ruling that it was clearly established that government officials may not take retaliatory action against an individual for the exercise of their free-speech rights.  It rejected the agents’ argument that, because they had probable cause to make an arrest, the retaliatory arrest prosecution was barred.  That was based on the agents’ interpretation of the Supreme Court’s Hartman precedent, but the Circuit Court noted that the precedent dealt only with retaliatory prosecution, not retaliatory arrest, and it declined to extend Hartman to that situation.  It did note, however, that there was disagreement among federal appeals courts on that issue.  The Circuit Court ruling is on hold while the Supreme Court appeal proceeds.

Petition for Certiorari

Agents Reichle and Doyle took the case on to the Supreme Court, raising two issues: the core question of whether the existence of probable clause barred the lawsuit for retaliatory arrest in violation of the First Amendment, and the question of whether the agents were entitled to legal immunity in a situation where they had probable cause to arrest, where the arrest did not violate the Fourth Amendment, where it was not clearly established that Hartman applied to retaliatory arrests, and when the lack of immunity “threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.”

Aside from relying upon the split among the Circuit Courts on the probable cause issue, the petition sought to emphasize the threat it perceived to the work of Secret Service agents from “burdensome litigation and potential personal liability each time they confront a potential threat” to high government officials.  On that point, the filing moved to escalate the security issues in the background of the case, arguing that nearly every confrontation between a member of the public and the President or Vice President would include “expressive activity,” and that rejection of their claim of immunity would undermine their ability to “react quickly and instinctively in the face of potential threats that could have national and historic consequences.”

The petition also made an argument for qualified immunity, based upon the finding of probable cause to make the arrest, and it put in a plea for absolute immunity for Secret Service agents when they are engaging in their duty, laid out in federal law, to protect the President or Vice President.   That separate law, 18 U.S.C. 3056, was not at issue in the Circuit Court, since that court had found probable cause to justify the arrest only for a potential violation of the federal false statement statute (18 U.S.C. 1001).  Because the Circuit Court had found probable cause to arrest Howards for not truthfully answering the agent’s question about whether he had touched Cheney, it did not deal with whether there was probable cause under any other federal law.  The Circuit Court rejected a claim of absolute immunity in a footnote.

The Justice Department entered the case early in the Supreme Court, supporting the claim of agents Reichle and Doyle and putting heavy emphasis upon the perceived threat to the protective services that agents provide.  The Circuit Court decision, the Solicitor General contended, had threatened “to impose unwarranted personal liability on Secret Service agents for performing their critical protective duties and to chill federal, state, and local law enforcement activities more generally.”   On the merits of the probable cause issue, the Solicitor General argued that the protections afforded under the Fourth Amendment ban on unreasonable searches and seizures “provide significant protections in circumstances involving First Amendment interests.”

If probable cause to make an arrest, or to proceed with a prosecution, is established, the government filing contended, that is “a significant limitation on any use of the arrest power to suppress expressive activity.”  An officer, the brief asserted, cannot simply arrest someone for saying something that displeases the officer; there must be a reason to believe that the suspect has committed a crime.  Citizens thus are protected by the probable cause requirement from “rash and unreasonable interference with privacy,” the government asserted.

The petition also had the support of 21 states, primarily relying upon the split among lower courts on an issue they said was of “great national importance.”  If probable cause is sufficient to bar a retaliatory prosecution claim based on the First Amendment, so, too, should it be sufficient for a retaliatory arrest, the states asserted.

The Court, with Justice Elena Kagan not taking part, granted review on December 5.

Briefs on the Merits

The agents’ case has undergone something of a transformation with the filing of the merits briefs.  Instead of relying, as the petition for certiorari did, upon a finding of probable cause to arrest for violating the federal false statements law, the brief on the merits focuses entirely upon the federal law mandating Secret Service protection for the highest government officials.  Although once again arguing that probable cause to arrest should be sufficient to bar a retaliatory arrest claim, the brief turned the issue toward 18 U.S.C. 3056.  Among other arguments, the brief suggested that agents should not be held potentially liable in the situation here because no court had yet addressed the scope of a Secret Service agent’s duties under that statute “to arrest a suspect who refuses to cooperate with the agent’s investigation to determine whether the suspect does indeed pose a threat to the Vice President’s safety.”  (In a footnote close to the end of the brief, it did note that the Circuit Court had not dealt with the question of probable cause under the protective detail law, but it mentioned that only in the course of urging the Court to find probable cause in this case based on Section 3056, not 1001.)

Also, in discussing the Circuit Courts’ split, the brief once again channeled that to a discussion of the agents’ protective duties.  “A Secret Service agent,” the brief argued, “cannot and should not have to worry about which side of a circuit split a given circuit will join when making a decision whether to arrest a suspect to protect the Vice President’s immediate physical safety.  Probable cause should be enough.”

Moreover, the agents’ lawyers aimed an implied accusation of parochialism at the Circuit Court, chastising it for basing its view on retaliatory arrest claims as that court had dealt with them over a period of time, and noting that “Secret Service agents work across the nation and are trained to a national standard.”  Further, that part of the brief complained that it takes seven pages in a court reporting service to spell out the law of retaliatory arrest as it exists in the Tenth Circuit.

That switch in argument by the agents is not challenged in Steven Howards’ brief on the merits (although it is challenged in an amicus brief filed by the American Civil Liberties Union, urging the Court to dismiss the case because it is no longer keyed to the probable cause finding made by the Circuit Court).  The Howards brief, in the later pages, does challenge the agents’ claim to absolute immunity, but does not take on the question of whether probable cause did exist in this case for the failure to cooperate with a Secret Service investigation.

The Howards brief has as a major point of emphasis its claim that the agents, in this case, had “grossly abused the extraordinary powers granted to them as Secret Service agents.”  The agents, it argued, arrested Howards for speaking out in protest of the war in Iraq, an “issue of national concern,” and did so under circumstances that “involved no dire emergencies, no split-second decision making and no threat to the Vice President.”   The brief attempted to bolster those claims of misconduct by relying upon an investigative story in The New York Times in 2008, looking into the incident in Beaver Creek involving Cheney.   That article, the brief said, showed that agents Reichle and Doyle “engaged in a cover-up and ended up accusing each other and their colleagues of having committed multiple federal crimes in conjunction with this case.”

On the merits of the probable cause issue, Howards’ brief contended that a citizen should be able to file a First Amendment retaliatory arrest lawsuit “regardless of whether the arresting officer possessed probable cause to make an arrest when that officer was actually motivated by personal animus toward the protected speech.” That was the situation in this case, the brief argued, so there is no basis for either qualified or absolute immunity for the agents involved.

Once again, at the merits briefing stage, the U.S. Solicitor General entered the case on the side of the agents, bringing in a new argument: that Howards should never have been allowed to pursue his retaliatory arrest claim, because that is based upon an alleged direct constitutional violation by the agents.   The Supreme Court’s 1971 ruling in the case of Bivens v. Six Unknown Narcotics Agents, allowing some lawsuits for certain constitutional violations by federal officials when there is no other legal remedy available, has never been interpreted to allow a retaliatory arrest claim, the government brief asserted.

“As a threshold matter, the Court should decline to authorize judicially-crafted damages claims under Bivens against individual federal officers by plaintiffs alleging that they were arrested in retaliation for expressive conduct.  For over 30 years, this Court has repeatedly declined to extend the scope of Bivens actions beyond the circumstances of the original trio of cases in which such actions were first recognized,” the brief noted.  It said that there are “multiple potential remedies” already available for one who believes he has been arrested unlawfully by a federal officer.  The individual can mount a defense if charged with crime, and can bring a Fourth Amendment lawsuit, and potentially could file a lawsuit claiming that he had been singled out for discriminatory treatment, the brief suggested.

The government brief also relied upon the protective role of the Secret Service in arguing that Howards’ claim should not be allowed to proceed under the Bivens precedent.   Even if the Court were to allow retaliatory arrest claims in some circumstances, the brief asserted, it should not do so when claims are made against “Secret Service agents engaged in their vital protective duties.”

On the merits, the Solicitor General embraced the agents’ argument that, in a retaliatory arrest case as in one for retaliatory prosecution, the suing individual should not be allowed to proceed unless there is first proof that there was no probable cause for the arrest.   Just as the agents in their merits brief had sought to enlist Section 3056 in support of their claim of probable cause to arrest Howards, the government’s brief attempted to rely upon another federal law — 18 U.S.C. 1751(e), making it a separate crime to assault the Vice President.

Aside from the federal government, the agents also are supported as amici by the FBI Agents Association, the Federal Law Enforcement Officers Association, and various associations of officials at the state, county and city levels.  Howards draws the support as amici, in addition to the ACLU, of the conservative advocacy group, the Rutherford Institute.

There is also an unusual amicus brief, supporting neither side and taking no issue on the retaliatory arrest issue.  It was filed by William C. Moore, Jr., who was personally involved in the Court’s 2006 decision in Hartman v. Moore, and who told the Court he is still involved in his litigation against U.S. Postal Service inspectors who he claims instigated the criminal prosecution of him over his lobbying efforts.  His interest in the agents’ case, Moore said, is that the precedent in his case not be understood as a grant of immunity to federal officers who instigate law enforcement efforts against a citizen.


In the wake of the merits briefing, the case has become something of a legal tangle.  It began as a simple test of whether probable cause must be shown before a retaliatory arrest lawsuit could proceed under the First Amendment.  That was based upon a Circuit Court finding that there was probable cause — to arrest for lying to a federal agent — but a conclusion that this finding made no difference to the right to sue.  All the Court seemed to be confronting, when the case was in that posture, was whether the Hartman v. Moore precedent should be extended.   That was an issue that did not require the Court to spend any time examining the special role of the Secret Service in protecting high officials; the issue did not depend upon the agency identification of the officers involved.

But now, as the case heads for oral argument, it is unclear whether the Court will even address that merits question, in view of the Solicitor General’s plea to deny any right to sue, with or without probable cause, for a retaliatory arrest by a federal law enforcement officer (and especially such an arrest by a Secret Service agent on protective detail).  That argument, if accepted by the Court, would be enough to scuttle the case altogether, because the Court in recent years had refused regularly to extend Bivens liability for federal officers.

And, if that complication were not enough, the case has grown deeply confused about just what statute would allow the Secret Service to have had probable cause to arrest Steven Howards after his encounter with Vice President Cheney.   The agents have switched their probable cause claim to a federal statute that the Tenth Circuit did not even discuss, and the federal government has done the same, seeking to turn the Court’s inquiry to an examination of probable cause under the federal statute protecting the Vice President from assault.  Both the agents and the government obviously made those thrusts in order to make the case more vividly turn on the protective duties of the Secret Service, which obviously carries considerable emotional weight — particularly among Justices who, now and then at least, have to worry about their own personal security.

Counsel, of course, are free to make any argument that can be found to bear upon the questions presented to the Court in the initial appeal, but such a dramatic shift in emphasis and legal authority can lead the Court to wonder just what is actually before it.  Thus, the ACLU’s amicus brief was not extravagant in suggesting that, as the case has changed, the Court should simply refuse to decide it.   That would be a significant loss to the Secret Service, and to other law enforcement officers, because this lawsuit would then go forward in a District Court trial.   The agents might ultimately win there, but they would have had to go through the expense of a trial and the threat of personal liability.   With the split in the Circuit Courts on the core issue in the case, it might well return in another case later.








Recommended Citation: Lyle Denniston, Argument preview: A protester’s arrest (UPDATED), SCOTUSblog (Mar. 13, 2012, 5:19 PM),