June 14, 2012
On June 4, 2012, the Supreme Court announced its decision in Reichle v. Howards. This case concerns an incident that occurred when a citizen briefly touched Vice President Cheney during a public appearance, made an anti-war remark to him, and was arrested some time later by Secret Service agents but was not ultimately prosecuted. The question in this case was twofold: (1) whether, if probable cause to make the arrest did exist, the citizen may nevertheless sue the agents for retaliatory conduct in violation of the First Amendment; and (2) whether the agents were entitled to immunity from such a lawsuit under federal law.
In an opinion delivered by Justice Thomas and joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Sotomayor, the Court held by a vote of 8-0 that the agents were legally immune from suit because it was not clearly established at the time of the incident that an arrest supported by probable cause could give rise to a First Amendment violation. Justice Ginsburg, joined by Justice Breyer, filed an opinion concurring in the judgment. Justice Kagan took no part in the consideration or decision of the case.
To discuss the case, we have Scott Broyles, who is an Assistant Professor at Charlotte School of Law.