Earlier this year, NLC signed onto an amicus curiae brief filed by the State and Local Legal Center (SLLC) in the U.S. Supreme Court which argued that police officers should be immune from First Amendment retaliatory arrest lawsuits. In a unanimous decision handed down on June 4 in Reichle v. Howards, the Supreme Court did grant qualified immunity to the officers, who, as Secret Service agents, had allegedly arrested a suspect for his political speech, but had probable cause to arrest the suspect for committing a federal crime.
In this case, Steven Howards told then-Vice President Dick Cheney that his "policies in Iraq are disgusting" and then touched him. When questioned by Secret Service agents Howards denied assaulting or touching the Vice President and was arrested. Making a materially false statement to a federal official violates a federal statute.
The Supreme Court was asked to decide whether it is possible for an arrestee to bring a First Amendment retaliatory arrest claim where probable cause supports the arrest and whether the agents in this case were entitled to qualified immunity. The Court only answered the qualified immunity question; it granted qualified immunity to the agents. Government officials are immune from lawsuits claiming they have violated someone's constitutional or statutory rights if the law violated wasn't "clearly established." According to the Court it was not "clearly established" at the time of the arrest that an arrest supported by probable cause could violate the First Amendment. Justice Thomas, writing for the Court, noted that the Supreme Court has never held that a person has a First Amendment right to be free from a retaliatory arrest supported by probable cause. Also the Court noted that it held in 2006 in Hartman v. Moore that probable cause bars retaliatory prosecutions cases. A reasonable government official could have interpreted Hartman's rationale to apply to retaliatory arrest claims.
The International City/County Management Association, the International Municipal Lawyers Association, the National Association of Counties, the National Conference of State Legislatures, and the United States Conference of Mayors joined NLC in signing onto the SLLC's brief.
The SLLC files amicus curiae briefs in support of states and local governments in the U.S. Supreme Court, conducts moot courts for attorneys arguing before the Supreme Court, and provides other assistance to states and local governments in connection with Supreme Court litigation. NLC serves as a SLLC trustee.