WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court ruled June 4 that a Colorado man may not pursue his First Amendment claim against two Secret Service agents because they are entitled to qualified immunity (Virgil D. "Gus" Reichle, Jr., et al. v. Steven Howards, No. 11-262, U.S. Sup.).
(Opinion. Document #73-120608-016Z.)
Gus Reichle and Dan Doyle were members of a Secret Service detail on June 16, 2006, when then-Vice President Richard Cheney visited a shopping mall in Beaver Creek, Colo. Steven Howards also was at the mall that day. Doyle overheard Howards engaging in a conversation on his cell phone in which Howards stated, "I'm going to ask [the vice president] how many kids he's killed today." Doyle told two other agents what he had heard, and the three began monitoring Howards more closely.
Howards got in line to greet Cheney. When he approached the vice president, Howards told him that his "policies in Iraq are disgusting." The vice president thanked Howards and moved along. Howards touched the vice president's shoulder as Cheney walked away. Howards then walked away, too. The agents determined that Reichle, who coordinated the protective intelligence team responsible for interviewing individuals suspected of violating the law, should question Howards.
Reichle approached Howards, presented his badge and identified himself and asked to speak with Howards. Howards refused and attempted to walk away. At that point, Reichle stepped in front of him and asked if he had assaulted the vice president. Pointing his finger at Reichle, Howards denied assaulting Cheney. He told Reichle "if you don't want other people sharing their opinions you should have him [the Vice President] avoid public places." When Reichle asked Howards if he had touched Cheney, Howards denied doing so. After confirming that Howards had indeed touched Cheney, Reichle arrested Howards.
Howards was transferred to the custody of the local sheriff's department ,where he was charged by local officials with harassment in violation of state law. The charge was eventually dismissed.
Howards then sued a number of Secret Service agents, including Reichle and Doyle, in the U.S. District Court for the District of Colorado. Howards claimed that he was arrested and searched without probable cause in violation of the Fourth Amendment to the U.S. Constitution. He also alleged that he was arrested in retaliation for criticizing the vice president, in violation of his First Amendment rights.
Reichle and Doyle moved for summary judgment on the ground that they were entitled to qualified immunity. The District Court denied the motion. On interlocutory appeal, a divided panel of the 10th Circuit U.S. Court of Appeals affirmed in part and reversed in part. The majority held that Reichle and Doyle enjoyed qualified immunity with respect to Howards' Fourth Amendment claim but denied them qualified immunity from Howards' First Amendment claim. Reichle and Doyle then petitioned the U.S. Supreme Court.
Reversing the appellate panel's ruling, the Supreme Court opined that Reichle and Doyle are entitled to qualified immunity when it comes to both of Howards' claims because "it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation."
Writing for the court, Justice Clarence Thomas opined, "Shortly before Howards' arrest, the Sixth Circuit held that Hartman [v. Moore (547 U.S. 250 )] required a plaintiff alleging a retaliatory arrest to show that the defendant officer lacked probable cause. . . . That court's treatment of Hartman confirms that the inapplicability of Hartman to arrests would not have been clear to a reasonable officer when Howards was arrested. Moreover, since Howards' arrest, additional Courts of Appeals have concluded that Hartman's no-probable-cause requirement extends to retaliatory arrests. . . . As we have previously observed, '[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.' Wilson v. Layne, 526 U.S. 603, 618 (1999)."
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Samuel Anthony Alito Jr. and Sonia Sotomayor joined in the opinion.
Justice Ruth Bader Ginsburg filed a concurring opinion in judgment in which Justice Stephen G. Breyer joined. She opined that Hartman's no-probable-cause requirement is inapplicable but still concurred in the Supreme Court's judgment. "Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration's policies in Iraq, they 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. Retaliatory animus cannot be inferred from the assessment they made in that regard. If rational, that assessment should not expose them to claims for civil damages," she wrote.
Justice Elena Kagan took no part in the consideration or decision of the case.
Sean R. Gallagher of Polsinelli Shughart in Denver represents Reichle and Doyle. David A. Lane of Killmer, Lane & Newman in Denver represents Howards.
J. Brett Busby of Bracewell & Giuliani in Houston filed an amicus brief on behalf of FBI Agents Association and the Federal Law Enforcement Officers Association. Colorado Solicitor General Daniel D. Domenico in Denver filed an amicus brief on behalf of Colorado and 20 other states. Christopher A. Hansen of the American Civil Liberties Union Foundation in New York filed an amicus brief on behalf of the ACLU and ACLU of Colorado. Paul M. Pohl of Jones Day in Pittsburgh filed an amicus brief on behalf of William G. Moore Jr. Lisa E. Soronen of State and Local Legal Center in Washington, D.C., filed an amicus brief on behalf of International City/County Management Association, International Municipal Lawyers Association, National Association of Counties, National Governors Association, National League of Cities and United States Conference of Mayors. Solicitor General Donald B. Verrilli Jr. in Washington filed an amicus brief on behalf of the United States. John W. Whitehead of The Rutherford Institute in Charlottesville, Va., filed an amicus brief on behalf of The Rutherford Institute.
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