It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.
The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.
The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.
Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘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.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.