A Colorado man has lost his bid to sue two Secret Service agents who allegedly had him arrested in retaliation for critical comments he made to then-Vice President Dick Cheney during a public meet and greet event at a local shopping mall.
The man, Steven Howards, filed a lawsuit against the agents, claiming the retaliatory arrest violated his First Amendment free speech right to express an opinion in public without facing punishment from government officials.
The US Supreme Court ruled 8 to 0 on Monday that the two agents are entitled to the protection of qualified immunity from such a lawsuit.
Writing for the court, Justice Clarence Thomas said that the agents who arranged for Howards’s arrest had probable cause to believe a crime had been committed because Howards made a false statement to one of the agents.
Justice Thomas said that given the presence of probable cause to conduct an arrest, any subsequent claim that the arrest was motivated by retaliation based on speech must fail.
“This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest,” Thomas wrote in a 12-page decision.
He added: “Here, the right in question is not a 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. This Court has never held that there is such a right.”
The decision is consistent with a trend at the high court in recent years granting government officials broad immunity from civil lawsuits charging that officials used their government power to violate constitutional rights.
The decision comes several weeks after the Secret Service was rocked by scandal over agents hiring prostitutes in Colombia while assigned to protect President Obama during an official visit there. The scandal slammed the credibility of the elite protective service at a time when the Cheney “assault” case was pending before the justices.
The high court chose not to decide the broader issue of whether Secret Service agents acting with probable cause are always immune from civil lawsuits claiming they retaliated against a person for making comments the agents considered politically offensive.
Instead, the justices decided only that the law in this area is not clearly established. The Supreme Court said that given the unsettled state of the law the agents were not given fair warning that they might face a civil lawsuit for violating someone’s free speech rights.
In his lawsuit, Howards charged that Secret Service agents falsely accused him of “assaulting” then-Vice President Cheney during a 2006 public appearance. He said the agents made the assault accusation as a pretext to punish him for expressing his opposition to the Bush administration’s decision to wage war in Iraq.
Federal agents arrested Howards and turned him over to local police for prosecution. The charges were later dropped.
After Howards filed his lawsuit, depositions taken of agents who had been on the scene during Howards’s encounter with Cheney varied widely concerning what actually took place. The Secret Service agent at the center of the encounter, Virgil Reichle, was subsequently transferred to Guam.
The issue in the case, Reichle v. Howards (11-262), was whether Mr. Reichle and a second agent, Dan Doyle, were immune from First Amendment lawsuits as part of their job protecting the president and top government officials.
In a concurring opinion, Justices Ruth Bader Ginsburg and Stephen Breyer said they would not extend immunity to an ordinary law enforcement officer under the circumstances of the Howards case.
But Justice Ginsburg wrote that those in the protective services should receive broader immunity.
“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,” she said. “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.”
She added: “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,” she said.
The June 2006 encounter took place at a shopping mall in Beaver Creek, Colo. As Howards arrived at the mall for an unrelated event, he noticed Cheney greeting voters.
A Secret Service agent overheard Howards tell someone on his cellphone that he was going to ask Cheney how many kids he had killed that day, referring to the war in Iraq.
Howards then stood in line for an opportunity to meet Cheney. When his moment arrived, Howards reportedly told Cheney that his policies in Iraq were “disgusting.” Cheney thanked him for his comment. Howards then reached out and touched the vice president’s shoulder with his open hand.
Howards later characterized the contact as an open-handed pat. Federal agents saw it as something more serious. Various agents described the contact as a push-off, a slap, a forceful touch, or a “strike that caused the vice president’s shoulder to dip.”
No action was taken against Howards at that moment. He walked away and attended a family event elsewhere in the mall.
Later, on his way back to his car, his young son wandered off. As he searched for the boy, he again entered the area where Cheney was still greeting voters.
That is when he was approached by Agent Reichle. The agent displayed his badge and asked to speak with Howards. Howards refused. The agent stepped in front of Howards, and accused him of having “assaulted” Cheney.
Howards denied assaulting the vice president. He pointed his finger at the agent and said: “If you don’t want other people sharing their opinions, you should have [Cheney] avoid public places.”
According to Howards, Reichle became visibly angry when Howards expressed his opinion about the war in Iraq.
After Howards denied assaulting Cheney, the agent asked Howards if he had “touched” the vice president. Howards said no.
Reichle then asked Agent Doyle, if there had been physical contact with Cheney. The agent verified that there had been.
It is this statement that provided the agents the probable cause to believe a crime had been committed by Howards. The crime: making a false statement to a federal official.
Howards was taken into custody.
Howards’s lawyer maintained that if the Secret Service agents’ motive had been to protect Cheney, they could have searched Howards for weapons and continued to monitor his movements. The lawsuit claims the arrest was made in retaliation for Howards’s comments to Cheney and the agents.
A federal judge allowed the lawsuit to move forward, rejecting claims that the agents enjoyed immunity from such lawsuits. A panel of the Tenth US Circuit Court of Appeals agreed, allowing the lawsuit to proceed to a trial.
In reversing those decisions, the high court said: “When Howards was arrested it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Petitioners Reichle and Doyle are thus entitled to qualified immunity.”
Justice Elena Kagan took no part in the case.