WASHINGTON (CN) – Immunity shields Secret Service members who allegedly arrested a man for rebuking Vice President Dick Cheney at a Colorado shopping mall, the Supreme Court ruled Monday.
Gus Reichle and Dan Doyle were members of Cheney’s protective detail when he visited a shopping mal in Beaver Creek, Colo., on June 16, 2006. Also at the mall was Respondent Steven Howards, who was speaking on his cellphone when he noticed the vice president greeting members of the public.
According to briefs filed by the agents, Doyle overheard Howards say, “I’m going to ask [the Vice President] how many kids he’s killed today.” Doyle said he told two other agents what he heard and the three began monitoring Howards more closely.
Doyle watched as Howards entered the line to meet the vice president, and when Cheney reached him, Howards allegedly told him his “policies in Iraq are disgusting.” The vice president moved on, apparently unfazed, but as he did so, Howards touched his shoulder.
Cheney departed, but the agents decided their colleague, Gus Reichle, the agent charged with interviewing individuals suspected of violating the law, should interview Howards.
Reichle approached Howards, presented his badge and identified himself, and asked to speak to the man. Howards refused and attempted to walk away. At that point, Reichle stepped in from of Howards and asked if he had assaulted the president. Howards denied assaulting Cheney, and told the agent “if you don’t want other people sharing their opinions, you should have him [the Vice President] avoid public places.”
Reichle then asked Howards if he had touched Cheney. Howards denied that he had, but Doyle said he’d seem him do so. With that, Howards was arrested and transferred to the custody of the local sheriff’s department.
Although Howards was initially charged with harassment under state law, the charges against him were eventually dropped.
Howards filed suit against the agents in federal court, charging that they arrested and searched him without probable cause, in violation of the Fourth Amendment, and that he was arrested in retaliation for criticizing the vice president, in violation of the First Amendment.
The agents moved for summary judgment, but the motion was denied. On interlocutory appeal, a divided 10th Circuit held the agents enjoyed qualified immunity with respect to Howards’ Fourth Amendment claim because in denying he had touched Cheney, he had made a false statement to a federal official.
However, the court denied the agents petition for qualified immunity on the First Amendment claim.
The question before the high court was whether a First Amendment retaliatory arrest claim may lie despite the presence of probably cause to support the arrest, and whether clearly established law at the time of Howards’ arrest held that to be so.
Writing for the court, Justice Clarence Thomas said “We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment.”
As a result, the court said it was reversing the denial of qualified immunity to the agents.
Thomas wrote, “Howard contends that our cases have ‘settled’ the rule that, ‘as a general matter[,] the First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for his speech. But we have previously explained that the right allegedly violated must be established, ‘not as a broad general proposition,’ but in a ‘particularized’ sense so that the ‘contours’ of the right are clear to a reasonable official.”
“Here, the right in question is not the 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 probably cause. This court has never held that there is such a right,” Thomas wrote.