Secret Service Entitled To Qualified Immunity

Reichle v. Howards, 132 S.Ct. 2088 (June 2012)

The Supreme Court decided whether two federal law enforcement agents are immune from suit for allegedly arresting a suspect in retaliation for his political speech, when the agents had probable cause to arrest the suspect for committing a federal crime. On June 16, 2006, Vice President Dick Cheney visited a shopping mall in Beaver Creek, Colo. A secret service protective detail accompanied the Vice President. Defendants Reichle and Doyle were members of that detail. Doyle overhead the plaintiff, Howards, say, “I’m going to ask [the Vice President] how many kids he’s killed today.” When the plaintiff approached the Vice President, he told him that the “policies in Iraq are disgusting.” The Vice President simply thanked the plaintiff and moved along, but the plaintiff touched the Vice President’s shoulder as the Vice President departed.

Agent Reichle approached Howards, presented his badge and identified himself, and asked to speak with him. The plaintiff refused and attempted to walk away. At that point, Agent Reichle stepped in front of the plaintiff and asked if he had assaulted the Vice President. After confirming that Agent Doyle had indeed seen the plaintiff touch the Vice President, Reichle arrested the plaintiff.

The court held that qualified immunity applied. The court concluded that at the time of the plaintiff’s arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. The plaintiff argued that it was settled law that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory acts for his speech. The court held that the right in question was 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 probable cause. The court held that when plaintiff was arrested, it was not clearly established that an arrest supported by probable cause could qualify as a First Amendment violation. Thus, the court held that Reichle and Doyle were entitled to qualified immunity.