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Argument recap: New power for Secret Service

With almost all of the Supreme Court Justices fretting openly about not fettering the Secret Service as it protects the President and Vice President, the government’s key protective agency appeared Wednesday on its way toward a new shield against being sued when it arrests someone it deems to be a threat.   The only question that seemed to be open in the one-hour argument was whether such a curb on lawsuits would be extended widely to police everywhere, when they are trying to keep control of a situation where people — in a crowd or alone — are saying controversial things that may seem threatening.

The technical issue before the Court was whether the Justices will allow a citizen to file a lawsuit claiming that a Secret Service agent arrested that individual in retaliation for speaking out against government policy, if they had some other reason to make the arrest anyway.  But the hearing quickly centered on the protective work that the Secret Service does for the government’s top officials, and the Justices began expressing concern about forcing those officers to think about whether they might face a damages lawsuit depending upon how they carry out that task.

Although the Court would be told, later in the argument, that this concern was misplaced, because there have not been very many claims in court of “retaliatory arrests” for exercising First Amendment rights, that did not seem to divert the Court from worrying over getting in the way of the White House security detail.  Justice Stephen G. Breyer repeatedly expressed anguish over the risks that confront high officials (himself the recent target of a house invasion by a robber), and told the Secret Service agents early in the argument that “you make a strong case” for legal immunity for agents when they make arrests of protesting individuals.

By the time a federal government lawyer had come to the lectern, the course of the hearing on the agents’ side was very clear, but that lawyer nevertheless felt obliged to make an argument that the Court should not just insulate Secret Service agents from being sued for retaliatory arrests, but it should do so “across the board,” for police at any level — at least when they are confronting a situation where someone speaks out in a way that an officer can interpret as threatening some act of violence.   The two Secret Service agents who appealed a case to try to stop a lawsuit against them did not need the Court to go that far in order for them to win, and it was not apparent that most of the Justices thought they had to do so to reach a decision in the specific case of Reichle, et al., v. Howards (docket 11-262).

The incident that gave rise to this case occurred nearly six years ago in Beaver Creek, Colo., when a man from Golden, Colo., approached a visiting Vice President Cheney, told him that the U.S. policy in the war against Iraq was “disgusting,” and touched the Vice President before walking away.  The man, Steven Howards, was arrested by an agent who had accosted him about “assaulting” Cheney.  A state charge of harassment was later dismissed, but the individual turned around and sued several agents for allegedly arresting him to punish him for his anti-war remark.

Although Justice Ruth Bader Ginsburg, in the first question, sought to test whether the arrest was based on the agents’ perception of a threat or a criminal violation, the agents’ motive for the arrest soon appeared to be of little concern to most of the Justices.  Indeed, several of them took turns at conjuring up reasons why the agents might have acted as they did, all of which seemed designed to say that the agents were on solid ground legally for taking action.  While Breyer, and later Justice Sonia Sotomayor, openly expressed worry about extending immunity too far, to police arrests in general, both of them dropped strong hints that they thought a different rule of immunity might be entirely appropriate for the Secret Service.

The two agents who remain in this particular case were represented by a Denver lawyer, Sean R. Gallagher, who — for obvious reasons — was focused on protecting his particular clients.   He thus fashioned a multi-layered argument around that outcome, and he was tested by the Justices only as they explored how much further immunity might be extended beyond his clients.

But when Principal Deputy U.S. Solicitor General Sri Srinivasan took his turn, he went all-out.  When any enforcement officer encounters a situation in which there will be “First Amendment activity”– that is, people speaking out — it would be “legitimate” for them to take what people say into account in deciding whether to make an arrest, the government lawyer suggested.  When Justice Anthony M. Kennedy quickly asked whether that approach would apply regardless of whether the officer might be hostile to the content of what a person said, Srinivasan said it would, “across the board.”  It is too easy, he argued, for someone to claim that the officer is making an arrest only to retaliate for exercising free-speech rights; such a claim, he added, can be “manufactured at the scene.”  Later in court, he went on, the challenged officer would have a difficult time defending against the claim that the content of the remark caused the arrest.

A moment later, Srinivasan told a sympathetic Justice Antonin Scalia that the officers should be immune for lawsuits claiming retaliation when the police were engaging in “crowd control,” but, as the exchanges went on, the argument seemed to grow more expansive, to take in a far wider array of factual situations.   Justice Breyer asked Srinivasan if he was advocating “automatic immunity” for police “absolutely across the board.”  The government lawyer said he was, that he would not “draw a distinction.”

The Court, though, evidently was far more interested in the Secret Service aspect of the case.   When David A. Lane, the Denver lawyer for the arrested individual, began with an argument that the government was proposing a solution to a problem that was non-existent, he soon found that the few cases that had arisen in this context were not troubling to the Court.  Soon, Chief Justice John G. Roberts, Jr., was ticking off a list of reasons why Lane’s client ought to have been arrested by the agents, and Justice Breyer began talking about how the entry country would be “in mourning” if something happened to the President or Vice President.

Lane listed a number of actions Secret Service agents can take when they perceive a citizen to be a potential threat, and said he had no trouble with those gestures — including stopping such a person, inspecting anything he was carrying, patting him down, and so on.   But Justice Scalia countered that any time an agent did any of those things, the individual involved could make a claim that this was done in retaliation for speaking out, so the legal problem for the agent would be the same.

And, before long, Justice Breyer was back in the center of the argument, saying that the case really involved the safety of the President, out in public in circumstances where risk was coupled with the expression of “disputed political views.”   Breyer then said simply: “The President’s life is at stake.”

At one point, after Lane had said that the Secret Service had done “beautifully” for more than a century in protecting high officials, Justice Scalia sarcastically commented: “They have lost a couple of Presidents.”  The remark drew a laughter in the audience, but it wasn’t clear whether it was an appreciative or a nervous laugh.

Through the remainder of the argument, with Lane asserting that, though such cases were rare, “this is the case” in which Secret Service agents should have to go to trial for retaliating against a citizen, it was not apparent that he was getting through to the Justices.



Recommended Citation: Lyle Denniston, Argument recap: New power for Secret Service, SCOTUSblog (Mar. 21, 2012, 1:48 PM),