In a case involving then-Vice President Dick Cheney's Secret Service detail, the Supreme Court ruled Monday that agents accused of a politically motivated arrest are immune from suit. But the court's unanimous ruling did little more than resolve this particular case.
The decision stems from an incident in 2006 in the Colorado resort town of Beaver Creek, where Cheney was shaking hands at a shopping mall. Steven Howards got in line and when his turn came, he told the vice president that the Bush administration's Iraq policies were "disgusting."
Accounts differ as to what happened next. Howards and some Secret Service agents say he lightly patted Cheney on the shoulder. But other agents say the pat was more in the nature of a "forceful push."
Nonetheless, when agents first approached Howards and asked him if he had touched the vice president, he said "no." On the basis of that denial, he was arrested for lying to federal agents and assaulting the vice president. The matter was quickly resolved after the charges were dropped and Howards conceded that, upon reflection, he had in fact patted Cheney on the shoulder, meaning "no harm."
Howards, however, did not let the incident die. He filed a lawsuit contending that the Secret Service had arrested him in retaliation for the expression of his political views, and that the whole business of his alleged lie was an after-the-fact justification. The 10th U.S. Circuit Court of Appeals ruled that even if the arrest was arguably valid, Howards' First Amendment claim of retaliation should be decided by a jury.
The agents appealed to the U.S. Supreme Court. They argued that they were entitled to a "qualified immunity" that shields government agents from lawsuits when the right they are accused of violating had not been "clearly established" at the time of the alleged violation.
The agents claimed that, even if they had violated Howards' First Amendment rights by arresting him — which they vigorously denied — that right had not been clearly articulated by the Supreme Court. As a result, they should be immune from suit.
The court, in an 8-0 vote, agreed. Justice Elena Kagan did not take part in the ruling.
In a narrow opinion, Justice Clarence Thomas wrote that the law on retaliatory arrest was too vague to hold the Secret Service agents liable. "This Court has never recognized a First Amendment right to be free from a retaliatory arrest" in circumstances like these, where arguably the arrest for lying to a federal agent was valid, wrote Thomas.
Although the court's decision rested on the lack of clarity around the law on retaliatory arrests, the justices did nothing to settle that question. The court instead relied on the existing confusion to say that, whatever the law is — and they're not telling — it wasn't sufficiently unclear to the Secret Service agents at the time of Howards' arrest. As a result, the agents are entitled to qualified immunity from suit.
Whether future law enforcement officials may be held accountable for allegedly politically motivated arrests remains unclear and unresolved.