US Supreme Court: Agents immune from retaliatory arrest suit

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Secret Service agents are protected by qualified immunity from being sued for retaliatory arrest where it was not clearly established that an arrest supported by probable cause could violate the First Amendment, the U.S. Supreme Court has ruled.

The case involves a man who approached then Vice President Dick Cheney in a Colorado shopping mall, touched the vice president’s shoulder and called his war policies “disgusting.”

The man left the mall, but when he returned a member of Cheney’s Secret Service detail recognized him from the earlier encounter. The agent claimed the man looked anxious and erratic, and was holding an opaque bag.

The man accused the agent of singling him out because of his antiwar views. The agent arrested the man for assaulting Cheney.

After the charges against him were dropped, the man sued the agent for, among other things, violating his First Amendment rights by arresting him in retaliation for the views he expressed to Cheney.

A U.S. District Court denied the agents’ claim of qualified immunity and found that the existence of probable cause did not bar the First Amendment retaliation claim.

The 10th Circuit affirmed and the Supreme Court granted certiorari and heard arguments in the case in March.
In a unanimous ruling (Justice Elena Kagan did not take part), the Supreme Court reversed.

In an opinion authored by Justice Clarence Thomas, the court held that federal agents are protected by qualified immunity from civil liability unless “the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.”

“This court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of [this] arrest,” Thomas wrote.

U.S. Supreme Court. Reichle v. Howards, No. 11-262.