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2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

by Professor Will Huhn on April 7, 2012

in Constitutional Law,Freedom of Speech,Wilson Huhn

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service – or the police generally - carte blanche to arrest protesters for pretextual reasons.

The Supreme Court heard oral argument in Reichle v. Howards on March 21. The facts of the case are set forth in this earlier post. Essentially, Mr. Howards made some rude remarks about the Iraq War to Vice-President Dick Cheney in a public mall and touched him or pushed him on the shoulder. Later when confronted by the Secret Service Howards lied and denied that he had touched Mr. Cheney. Howards was promptly arrested. Howards sued the agents on the theory that they had arrested him not because they had probable cause (which they clearly did) but rather because they disagreed with what he had said to the Vice-President. The Tenth Circuit Court of Appeals ruled that Howards had the right to bring this lawsuit.

On the one hand, this seems like an easy case. The Secret Service has an important and difficult job to do. They have to protect our nation's leaders and we don't want them worrying about being sued by every protester who is properly arrested for harassment. On the other hand, do we really want to give the police immunity when they arrest someone for trespassing, littering, jaywalking, or driving with a broken taillight just because they don't like what the person has to say?

What makes this case more difficult is the fact that we don't allow the police or even the Secret Service to arrest people because of their race. The courts are not about to graft an exception onto the Equal Protection Clause for law enforcement officers even when they have responsibility for protecting the President of the United States. So how can we and why should we create such an exception to the First Amendment?

My impression from oral argument is that the justices are inclined to reverse the Tenth Circuit and rule in favor of the Secret Service agents by dismissing the lawsuit. A clue as to how the Court might do this was apparent from a question that Justice Stephen Breyer asked Sean Gallagher, the attorney representing the Secret Service agents:

And the — the question I wanted to ask you there is, you make a very strong case where the President and Vice President are involved, the need to protect them, but the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected from a Bivens action.
So, it sounds as if your first claim — the remedy sweeps well beyond the need that you sketch. And so, I'd like your response to that. (p. 6)

In other words, the Court might adopt a rule granting immunity from First Amendment retaliation claims only to those law enforcement officers who are performing protective services. Furthermore, that immunity would apply only in situations where the police otherwise had probable cause to arrest the protester. I believe that this is how the Court is likely to rule.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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