You can’t sue Secret Service agents if they arrest you for lying to them about antagonistically touching a public official, the Supreme Court held this week in a unanimous decision.
Vice President Dick Cheney was at a shopping mall in 2006, when Secret Service agents overheard Steven Howards tell someone on his cell phone that he’d ask Cheney how many kids Cheney had killed that day. Howards insulted Cheney, who responded by bidding him a good day and walking away. Howards put his hand on Cheney’s shoulder, and according to one account pushed the VP.
Secret Service Agent Reichle approached Howards, flashing his badge and asking Howards if he had just laid hands on the vice president of the United States. Howards denied it, and told the Secret Service not to let Cheney out in public if they don’t want to hear opposition to him. When other agents confirmed the physical contact, Reichle arrested Howards on suspicion of committing a crime. The charge was dismissed, and Howards was released.
Howards then sued the Secret Service agents involved, seeking monetary damages. One of his claims was that the arrest was in retaliation for Howards’ political speech in violation of his First Amendment rights.
The federal district court in Colorado declined to dismiss the lawsuit, rejecting the argument that Reichle and other agents were immune from lawsuits for money. Then the 10th Circuit federal appeals court concluded the agents had probable cause to arrest Howards for making material false statements to a federal officer. It’s a crime to lie to a federal agent when they are formally questioning you about facts regarding unlawful activity.
The Supreme Court took the case to decide two issues. First, when there is probable cause to make an arrest, whether the arrested person can argue that the arrest violates the First Amendment because it was retaliation for the arrested person’s speech. Second, whether the Secret Service agents are entitled to qualified immunity because clearly-established law did not make reasonably clear to the agents that arresting Howards under these circumstances would violate his rights.
The Court declined to answer the First Amendment question, holding that qualified immunity applies here regardless. Writing for six justices, Justice Clarence Thomas began, “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”
Even if a citizen’s rights were violated, agents are still protected against claims for monetary damages if the right was not clearly established. A clearly established right, precedent dictates, “must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right. In other words, existing precedent must have placed the … question beyond debate.”
This is a difficult area of law, because you always want to protect citizens’ rights against government intrusions. As Thomas explained, “This ‘clearly established’ standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can reasonably anticipate when their conduct gives rise to liability for damages.”
No Supreme Court case gave clear direction on this issue of allegedly arresting someone in retaliation for their political speech, and the lower federal courts have split on the issue. So Thomas cited an earlier case where the Supreme Court held, “If judges thus disagree on the constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” In other words, if federal judges can’t agree on the law, don’t blame cops for not getting it right.
So Thomas announced, “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.”
Justice Ruth Bader Ginsburg disagreed with the majority’s reasoning, but concurred in the Court’s judgment. Joined by Justice Stephen Breyer, Ginsburg wrote, “Officers assigned to protect public officials must make … swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy.” If a Secret Service agent hears someone saying something hostile, then the person touches the VP, then lies about it, they can’t sue the agent for detaining them.
This 8–0 decision (Justice Elena Kagan was recused from this case) reversed the Tenth Circuit and added one more note of certainty in this murky area of law. While it will take some time before these issues are “clearly established,” the justices unanimously agreed that they had found a balance in this case. And no doubt Secret Service agents are breathing easier about being able to err on the side of caution when protecting the leaders we elect to high office.