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The Honorable Court at Officer Resource

US Supreme Court Reichle v. Howards 11-262

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by , 06-05-12 at 11:45 PM (843 Views)
Decision here.

This decision deals primarily with intricate questions of legal precedent, and in order to simplify the question the court didn't resolve the issue which would have had the most lasting significance. If you decide to skip this post, I understand. If you decide to wade through it, don't say I didn't warn you.

In 2006, Vice President Cheney put in an appearance at a mall in Colorado. Howards was there, and a secret service agent overheard him saying that he was going to ask Cheney how many kids he had killed today. So the secret service decided to keep an eye on Howards. When he did get his chance to talk to the VP, he softened his message a little bit and just told him that his policies in Iraq were disgusting. Cheney thanked him, and walked away. As he was leaving, Howards touched Cheney's shoulder (later, Howards would testify that this was a light pat on the shoulder. Several secret service agents would testify that it was a forceful shove).

It was decided that Reichle (a secret service agent) should have a discussion with Howards. Reichle hadn't heard Howards "how many kids" comment, and also hadn't witnessed the shove (or friendly pat on the shoulder, if you prefer), but he was briefed by officers who had. Reichle met with Howards, and asked him if he had touched the VP. Howards tried to walk away from the stop, and also said that he had not touched Cheney, and Reichle arrested him. Howards was turned over to local law enforcement and charged with harassment, but the charge was dismissed. Howards sued the secret service, alleging that he was arrested and searched in violation of the Fourth Amendment, and that his arrest was made in retaliation for exercising his First Amendment right.

Now for some legal background. The courts have previously held that an arrest which does not violate the Fourth Amendment (because there is probable cause) can still violate the constitution if it violates a different amendment (this is from Whren v. US. In that case, a traffic stop was supported by probable cause but allegedly motivated by racism. The court held that the traffic stop was reasonable under the Fourth Amendment, but that it could still be a violation of the equal protection clause of the Fourteenth Amendment). Although an officer's subjective intent when making an arrest is irrelevant to Fourth Amendment analysis, it isn't necessarily irrelevant to First or Fourteenth Amendment analysis. The Supreme Court recently (2006) ruled that in cases where a suspect is prosecuted in retaliation for exercising his First Amendment rights, but the actual charges are supported by probable cause, the suspect can't sue for retaliatory prosecution (that was from Hartman v. Moore, and I have no idea what the facts of that case were).

Here is where the courts really start splitting hairs. The secret service agents moved to dismiss the lawsuit, claiming qualified immunity. The trial court denied the motion, and they appealed. The Tenth Circuit held that Hartman only applied to retaliatory prosecution, and not retaliatory arrest, and so they held that the officers were entitled to qualified immunity on Howards' Fourth Amendment claim (the supposedly unreasonable arrest and search), but that they would have to stand trial on his First Amendment claim (the arrest in retaliation for protected speech). The agents appealed again.

As with all qualified immunity cases, there are two questions to be answered: first, did the police violate a constitutional right? Second, was that right clearly established (so that a reasonable officer would understand the contours of the right)? If the answer to either question is "no," then the officers are entitled to qualified immunity and the case has to be dismissed. If the answer to both questions is "yes," then the officers have to stand trial (where they could still win or lose. Losing qualified immunity isn't the same as being found guilty, it just means that the lawsuit can move forward).

The US Supreme Court held that the decision in Hartman v. Moore had sufficiently muddied the waters so that it was not clearly established whether or not the secret service agents had violated Hartman's constitutional rights. Therefore, the agents are entitled to qualified immunity and the case is dismissed. Since addressing this one question was enough to resolve the case, the court didn't bother to decide whether or not a retaliatory arrest which is supported by probable cause violates any constitutional rights. I suppose that as long as we don't make retaliatory arrests, the question is mostly moot.

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