The Supreme Court will decide the issue in Reichle v. Howards of whether a First Amendment retaliatory arrest civil claim is barred where two Secret Service agents on protective detail arrested respondent following an encounter with Vice President Cheney. The agents had probable cause to arrest respondent, who in violation of 18 U.S.C. § 1001 falsely denied making unsolicited physical contact with the Vice President.
Respondent thereafter brought a First Amendment retaliatory arrest claim against petitioners. The Supreme Court granted certiorari to decide the question "whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim," in addition to whether the agents had qualified or absolute immunity.
In this case, on June 16, 2006, Vice President Cheney visited a Colorado mall, along with his security detail, Secret Service agents. The Petitioner, Howards, made a call on his cellular phone. During this call, he observed the Vice President exit a grocery store and began to speak with members of the public. Upon seeing the Vice President, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today." One of the agents overheard Mr. Howards' cell phone conversation. He assumed that Howards was referring to the war in Iraq, and he considered it "[un]healthy" and "[not] quite right" for a person to make such a statement to the Vice President. The agents began to monitor Howards.
Howards waited in line to speak with Cheney and then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Howards touched the Vice President's right shoulder with his open hand. Although Agents Daniels, McLaughlin, and Doyle continued to monitor Howards and witnessed the touch, none of them were close enough to hear Howards' statements to the Vice President. Neither Agent Daniels nor Agent McLaughlin believed Howards' touch of the Vice President provided probable cause for arrest. Special Agent Mike Lee, who was standing near the Vice President and in charge of the protective detail, overheard the verbal exchange. As Howards walked away, Special Agent Andrew Wurst, who was approximately fifteen yards from the Vice President when the touch occurred, approached Agent Lee. Agents Lee and Wurst agreed that a protective intelligence team should be sent to speak with Howards. Agent Wurst then asked Special Agent Oscar Rosales to send the protective intelligence team to speak with Howards.
Agent Reichle, who was dressed in civilian clothes, approached Howards, presented his Secret Service badge, identified himself, and requested to speak with him. Special Agents Daniels, Doyle, and McLaughlin remained nearby in a counter-surveillance role. Howards refused to speak with the agent. Agent Reichle stepped in front of Mr. Howards to prevent his departure and asked him if he had assaulted the Vice President. Howards pointed his finger at Agent Reichle, denied assaulting the Vice President, and informed the agent that "if you don't want other people sharing their opinions, you should have him [the Vice President] avoid public places." Agent Reichle became "visibly angry" when Howards shared his opinion on the Iraq war. When asked if he had physical contact with the Vice President, Howards falsely denied making unsolicited physical contact with the Vice President.
Based upon Howards' "premeditation, the conversation on the cell phone, the fact that Mr. Howards would not talk to [him], the fact that he's walking around with a bag in his hand in an unmagged [no metal detector] area, and the fact that [Doyle told him] that he had unsolicited contact," Agent Reichle decided to arrest Howards for assault on the Vice President. Agents Doyle, Daniels, and McLaughlin assisted in restraining Howards during the arrest.
Howards was detained for several hours at the county sheriff's department and ultimately charged with harassment in violation of Colorado state law. The state prosecutor subsequently dismissed the charges and no federal charges were ever filed.
Howards then brought the present action pursuant to 42 U.S.C. § 1983 or, alternatively, under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against Agents Reichle, Doyle, Daniels, and McLaughlin in both their official and individual capacities. Howard alleged that the Agents violated his Fourth Amendment rights by an unlawful search and seizure, and violated his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. At the close of discovery, all four defendants moved for summary judgment, arguing that qualified immunity shielded them from the present suit.
The district court determined that fact issues as to the availability of the qualified immunity defense precluded judgment as a matter of law to defendants. The agents brought an interlocutory appeal from the district court's denial of their motion for qualified immunity to the U.S. Court of Appeals for the Tenth Circuit.
The Tenth Circuit reversed the district court ruling in part and affirmed in part, holding that Howards could move forward with his lawsuit. The agents then petitioned for criteria at the Supreme Court.
A decision is expected next year. The case is Reichle v. Howards, No. 11-262.
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