Who Would Know? Who Would Care?

The story was simple and without dispute:


A conservative activist, Steven Howards, approach Joe Biden on a receiving line at a mall and asked him “how many children starved to death last night because their parents have no job because of you.”  Biden responded “thank you,” and walked away, and Howards touched Biden on the shoulder as he left. 

A Secret Service agent immediately approach Howards and asked to speak with him. Howards refused. The agent asked Howards if he assaulted Biden, and he denied doing so. The agent then confirmed with another agent that Howards had touched Biden’s shoulder, and arrested him and hustled him away.  Howards was turned over to the local police, who charged him with harassment.
Outrage ensued.  Conservative pundits, bloggers and activists were appalled at how the Secret Service under the Obama administration arrested an American citizen for the exercise of First Amendment rights by expressing his opinion, however unpleasant, to the Vice President of the United States.

There could be no clearer, more outrageous, affront to the Constitution, Michelle Malkin complained.  Rush Limbaugh was apoplectic, thought to whisper, “I picked a bad day to give up sniffing oxycontin.” Ann Coulter questioned whether this would change her sexual preference.

Howards’ criminal prosecution case was dismissed.  He then brought a Bivens action against the Secret Service agents for violating his First and Fourth Amendment rights in an arrest in retaliation for the exercise of his First Amendment rights.

The District Court denied summary judgment, holding that the agents were not entitled to qualified immunity. The 10th Circuit reversed, holding that there was probable cause to arrest based upon Howards’ making a materially false statement to federal agents when he denied touching Biden’s shoulder, but upheld his First Amendment retaliatory arrest claim.

The Supreme Court took the case to decide whether a retaliatory arrest claim could lie if there was probable cause for arrest. It ruled in  Reichle v. Howards that the Secret Service agents enjoyed qualified immunity because there was no clearly established right not to arrested in retaliation for the exercise of constitutionally protected speech, and therefore the agents could not know that their actions were wrong. 



To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’ ” Id., at ___ (slip op., at 9) (quoting Anderson v. Creighton, 483 U. S. 635, 640 (1987)). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” 563 U. S., at ___ (slip op., at 9). This “clearly established” standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can “‘reasonably . . . anticipate when their conduct may give rise to liability for damages.’” Anderson, supra, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195 (1984)).


The “clearly established” standard is not satisfied here.This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.


While other courts, the 10th Circuit in particular, had held that retaliatory arrest for the exercise of a constitutional right, the Supreme Court had no reach such a conclusion under the specifics of this case, where probable cause to arrest was established by the false statement, even though this was mere post hoc pretext for the agents’ actual purpose of teaching Howards that he didn’t talk to the Vice President that way.


Here, the right in question is not the general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right.5

Footnote 5 cites to Whren v. United States, 517 U. S. 806 (1996), which the court stated does not provide a backdoor holding where it concluded that pretext automobile stops would violated the Equal Protection Clause if used to selective target people based on race.



Whren’s discussion of the Fourteenth Amendment does not indicate, much less “clearly establish,” that an arrest supported by probable cause could nonetheless violate the First Amendment.

And so, the Court held that the agents enjoyed qualified immunity from civil liability in the absence of a clearly established right not to be arrested in retaliation for the exercise of free speech, when the arrest was otherwise based on probable cause, even though pretextual.  Howards was left with nothing, and uproar from Fox News was deafening.

Correction:  Apparently, this didn’t involve Joe Biden, but Dick Cheney, and the question was “how many kids did you kill today.”  Nothing whatsoever was said about the decision by conservatives. Not a word.

3 comments on “Who Would Know? Who Would Care?

  1. Onlooker

    Ha! You got me there, nicely done. I thought I’d misremembered the details of this thing.

    This ruling makes my head hurt.

    Can’t be touching the royalty, don’tcha know?

  2. SHG

    In an effort to economize, I’m trying to use posts to make secondary and terciery points when possible. The speech/politics conflict of the Bret Kimberlin/Aaron Walker situation continues to disturb me greatly, and my concern is that the support of free speech also enables political abuse.

  3. Frank

    Pretty much. Lese Majesty is a crime in the USA, de facto iff not de jure, and the SS enforces it. The nine black-robed prostitutes have given their seal of approval.

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