NLC Files Brief with Supreme Court to Limit Retaliatory Arrest Claims

by Lars Etzkorn

Last week, NLC signed onto an amicus curiae brief filed by the State and Local Legal Center (SLLC) in which the U.S. Supreme Court will decide if a First Amendment retaliatory arrest claim can be brought against a police officer, even though the officer had probable cause to make an arrest. 

In 2006, two Secret Service agents arrested Steven Howards at a mall in Beaver Creek, Colo., after he approached Vice President Dick Cheney and said the Administration's "policies in Iraq are disgusting." 

Howards then touched Cheney on the shoulder in a gesture variously described as an open-handed pat, a slap and a strike that caused the vice president's shoulder to dip. 

Confronted by the Secret Service, Howards denied touching Mr. Cheney and said, "If you don't want other people sharing their opinions, you should have him avoid public places." Agents arrested Howards for assault and turned him over to local authorities. 

Howards sued the Secret Service agents, saying his arrest was unlawful. He said the agents had violated the Fourth Amendment, which bars unreasonable searches and seizures, by arresting him without probable cause. He added that the arrest had violated his First Amendment rights because, he said, it was made in retaliation for exercising his right to free speech. 

A federal district court judge in Denver allowed the case to proceed. 

On appeal, the Tenth Circuit determined the agents had probable cause to arrest Howards for touching Cheney's shoulder and lying to the agents about it in violation of a federal statute. The Tenth Circuit held that Howards could sue the agents for First Amendment retaliatory arrest even though the agents had probable cause to arrest him. 

The Tenth Circuit also denied qualified immunity to the agents, subjecting them to a lawsuit for money damages. 

The SLLC's brief urges the Supreme Court to bar First Amendment retaliatory arrest claims supported by probable cause because retaliatory arrest claims are easy for a citizen to allege and difficult for a police officer to disprove. If such claims aren't barred, police officers may be disinclined to make lawful arrests when a citizen expresses speech protected by the First Amendment, which happens in virtually every arrest. 

The brief also argues that the agents in this case should be granted qualified immunity because the Supreme Court has held previously that retaliatory prosecutions claims are barred if probable cause supports the prosecution. 

The SLLC's brief was also signed onto by the International City/County Management Association, the International Municipal Lawyers Association, the National Association of Counties, the National Governors Association and the U.S. Conference of Mayors.