The U.S. Department of Justice and attorneys general of 21 states joined U.S. Secret Service agents Virgil “Gus” Reichle and Daniel Doyle in asking the U.S. Supreme Court to reverse the decision by the U.S. Court of Appeals for the Tenth Circuit that allowed claims brought under the First Amendment to proceed against the agents.
The Tenth Circuit ruled that despite the fact that an arresting officer has probable cause for an arrest, the arrestee may still assert a First Amendment claim for retaliatory arrest.
This lawsuit arises out of the decision by the agents to arrest Steven Howards following an encounter he had with Vice President Richard Cheney in Beaver Creek, Colo., in 2006. The appellate court held that law enforcement immunity does not automatically extend to claims alleging retaliation against free speech.
The U.S. government told the court that the case “concerns an issue of exceptional importance, threatening to impose unwarranted personal liability on Secret Service agents for performing their critical protective duties and to chill federal, state, and local law-enforcement activities more generally.” Indeed, the government argues, “the court of appeals’ decision gives suspects the perverse incentive to make statements designed to anger officers in the hope that fear of constitutional-tort liability will deter arrest.”
“States have a vital interest in ensuring that their law enforcement personnel can make arrests based on probable cause without the fear that they will be forced to defend alleged subjective motives in court,” state attorneys general wrote in their petition.
Sean R. Gallagher of Polsinelli Shughart, who represents Reichle and Doyle, issued the following statement:
“We are gratified that the federal government and 21 states have asked the Supreme Court to reverse this decision. Left unchecked, the decision by the Court of Appeals puts law enforcement officials in the untenable position of having to balance protecting the public against the threat of having an unfounded lawsuit brought against them.”
Agents Reichle and Doyle are represented by:
Sean R. Gallagher
Polsinelli Shughart PC
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