Government officials generally have immunity from civil lawsuits unless they violate rights that are “clearly established,” so that an official understands that “what he is doing violates that right,” Justice Clarence Thomas wrote for the court.
“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 Elena Kagan did not take part in the case because she had worked on the case while solicitor general in the Obama administration.
The quirky facts of the case may have limited the court’s appetite for a broad ruling.
It arises from a chance encounter between Howards, who was taking his son to a piano recital at the mall, and Cheney, who happened to be at that shopping center in Beaver Creek on June 16, 2006.
According to court records, Doyle heard Howards on a cellphone telling someone, “I’m going to ask him how many kids he’s killed today.”
Howards waited his turn to address Cheney and then told him that his “policies in Iraq are disgusting.” He then touched Cheney’s right shoulder; there’s a dispute about whether it was more of a pat or a shove, but agents did not arrest him.
When Reichle later saw Howards — he was looking for his son — he interviewed Howards about the incident. Howards told the agent that “if you don’t want other people sharing their opinions, you should have him [Cheney] avoid public places.” Howards denied touching Cheney.
Howards said Reichle, who had not witnessed the confrontation, became “visibly angry” in the interview when he shared his opinion on the Iraq war. When other agents confirmed that Howards had touched Cheney, Reichle arrested Howards. Howards was charged under Colorado law with harassment, but the charges were dropped.
While an appeals court said the agents had reason to arrest Howards for the false statements about touching Cheney, it also said Howards could pursue his allegations that the arrest was retaliation for what he had said about Cheney, in violation of the First Amendment.
Justice Ruth Bader Ginsburg, in a concurring opinion joined by Justice Stephen G. Breyer, indicated that she considered the Secret Service’s job to be different from other law enforcement.
“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,” she wrote. “Retaliatory animus cannot be inferred from the assessment they made in that regard.”
The case is Reichle v. Howards.
In a separate action Monday, the court declined to hear an appeal from former Alabama governor Don Siegelman. Siegelman was convicted of accepting a bribe when he appointed a campaign donor to a seat on a hospital regulatory board in 1999.