June 4, 2012

Today, June 4, 2012, a unanimous Supreme Court of United States held in Reichle v. Howards that two U.S. Secret Service agents who were sued for money damages could not be liable because the law of First Amendment retaliatory arrest was not clearly established on the date of the incident.

On March 21 the Supreme Court of the United States heard oral arguments in Reichle et al v. Howards, a case brought to review a decision by the United States Court of Appeals for the Tenth Circuit. The decision allowed claims for First Amendment retaliatory arrest claims to proceed against two Secret Service agents. The lawsuit arose out of the decision by the agents to arrest Steven Howards after he lied to them about touching Vice President Richard Cheney in Beaver Creek, Colorado in 2006. The agents, Virgil “Gus” Reichle and Daniel Doyle, asked the Supreme Court to reverse the decision by the Tenth Circuit that allowed the lawsuit seeking personal money damages to proceed despite the fact that the agents had probable cause to arrest Howards for making a false statement to a federal officer.

Today, the United States Supreme Court held that agents Reichle and Doyle cannot be liable for money damages claims for retaliatory arrest because the law was not clearly established on that point in June 2006, the date on which the assault on Vice President Cheney occurred. The Court noted that various lower federal courts could not agree on whether having probable cause to make an arrest conferred an immunity from damages claims, and that “if judges disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”

Sean Gallagher, counsel for agents Reichle and Doyle, was very pleased at the news of the decision. “This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.”

On March 14, 2011 the U.S. Tenth Circuit Court of Appeals held that four of the Secret Service agents sued in the case were immune from the lawsuit to the extent that they were alleged to have violated the Fourth Amendment to the U.S. Constitution, which prohibits arrests without probable cause. But, the panel declined to dismiss claims under the First Amendment, holding that law enforcement immunity does not automatically extend to claims alleging retaliation against free speech.

Sean R. Gallagher
Polsinelli Shughart

Matt Yemma

Amanda Kiely

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