The U.S. Supreme Court heard arguments on whether Secret Service agents guarding then-Vice President Dick Cheney deserve protection against a lawsuit from a Colorado man who said they arrested him for criticizing Cheney over the Iraq war.
During an hourlong back-and-forth today, comments by the justices suggested the main question may be whether to create a legal shield against “retaliatory arrest” lawsuits only for agents protecting top officials, or whether to extend it to all law enforcement officers.
“The issue before the court today is whether Secret Service agents who are prepared to take a bullet for the vice president must also be prepared to take a retaliatory arrest lawsuit, even when they have probable cause to make an arrest,” said Denver lawyer Sean Gallagher, representing the agents at the high court.
In the case, Steven Howards is seeking damages from Secret Service agents who arrested him in 2006 at a shopping mall in Beaver Creek, Colorado, where Cheney was greeting shoppers. Howards approached the vice president, criticized the Iraq War, touched the vice president’s shoulder and walked away, according to court filings. An agent later spotted Howards, questioned him and, after the man denied touching Cheney, arrested him.
Howards sued, saying he was arrested because agents disapproved of his comments, in violation of his First Amendment free-speech rights. Howards was initially charged with harassment under Colorado law, though prosecutors later dropped the case. A Denver federal appeals court said the lawsuit could proceed.
Gallagher urged the justices to rule that, if a law enforcement officer has probable cause to suspect that a crime has been committed, they should be immune from lawsuits claiming that the true reason for an arrest was to punish someone for voicing an opinion. The Obama administration backed that position.
Chief Justice John Roberts said allowing such claims may cause an agent “in the back of his mind” to worry that he “may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the vice president.”
Law Enforcement Immunity
Justice Stephen Breyer said across-the-board immunity for any law enforcement officer “sounds very far-reaching.” Breyer and Justices Sonia Sotomayor and Samuel Alito all suggested that a Secret Service agent’s responsibility to safeguard the president, or similar protective duties by U.S. marshals and some other officers, may warrant special consideration.
“How do we, in a principled way, deal with the unique needs of the Secret Service?” Sotomayor asked.
David Lane, a Denver lawyer for Howards, said the legal rule suggested by the agents would let officers trample an individual’s rights by finding a petty violation as an excuse for detaining political dissenters.
“Does a litterbug lose their right to have First Amendment free speech?” Lane asked. “You’ll have officers ostensibly enforcing litter laws and jaywalking laws and blocking-the-sidewalk laws, and the First Amendment is essentially evaded.”
Alito asked whether Secret Service agents face “a different situation from ordinary police officers,” because the statements they overhear may play a legitimate role “in assessing the degree of danger the person presents?”
Lane described the lawsuit immunity sought by the agents as a solution in search of problem. Retaliatory arrest lawsuits are rare, he said, and the “Secret Service has adequately done their jobs beautifully for over a century” without special legal protection.
“Well, we’ve lost a couple of presidents,” Justice Antonin Scalia interjected.
The case is Reichle v. Howards, 11-262.