Tuesday, February 28, 2012

2011-2012 Supreme Court Term: Reichle v. Howards, No. 11-362 (First Amendment)

On June 16, 2006, Stephen Howards was arrested by the Secret Service after he said something to Vice-President Richard Cheney and touched or pushed his shoulder, and then lied to them about whether he had done that.  As a result Howards sued several of the Secret Service agents for violating his rights under the First and Fourth Amendments.

The Tenth Circuit in Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011) dismissed Howards’ Fourth Amendment claim because the arrest was based on probable cause since Howards lied about not having touched the President.  However, the Circuit Court reinstated his First Amendment claim, reasoning that the officers may have acted upon a pretext and arrested Howards because of their anger over what he had said, rather than what he had done.

I predict that the Supreme Court will rule against Mr. Howards on the ground that Howards did not produce enough evidence to show that his arrest was in violation of the First Amendment.  The Court may, for example, find that where there is probable cause for an arrest a plaintiff must offer proof of a pattern of misconduct before the court will allow a jury to decide that the arrest was pretextual.  

Here are the facts surrounding the confrontation and arrest according to the Tenth Circuit Court of Appeals:

While en route to the recital hall, Mr. Howards made a call on his cellular phone. During this call, he observed the Vice President exit a grocery store and begin to speak with members of the public. Upon seeing the Vice President, Mr. Howards stated into his cell phone, “I'm going to ask him [the Vice President] how many kids he's killed today.” Aplt. App. at 532.

Agent Doyle overheard Mr. Howards' cell phone conversation. He assumed that Mr. Howards was referring to the war in Iraq, and he considered it “[un]healthy” and “[not] quite right” for a person to make such a statement to the Vice President. Id. He has admitted the comment “disturbed” him. Id. He informed Agent McLaughlin about Mr. Howards' statement, advising him that they “should pay particular attention to a white male subject [Mr. Howards] wearing a green T-shirt ... [because] he [had] overheard the subject state while speaking on the phone ‘something to the effect of “I want to ask Cheney how many kids he had killed.” ’ ” Id. at 508. Agent McLaughlin replied, “Okay,” because he believed it was “within [Mr. Howards'] bounds to do that.” Id. at 425. Agent McLaughlin in turn relayed the information to Agent Daniels and informed him that “we need to keep an eye on ... Mr. Howards.” Id. at 413. All three agents began to monitor Mr. Howards.

Mr. Howards' son continued on to the recital; Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his “policies in Iraq are disgusting.” Id. at 491. The Vice President responded, “Thank you.” Id. As he departed, Mr. Howards touched the Vice President's right shoulder with his open hand.FN2 Although Agents Daniels, McLaughlin, and Doyle continued to monitor Mr. Howards and witnessed the touch, none of them were close enough to hear Mr. Howards' statements to the Vice President. Neither Agent Daniels nor Agent McLaughlin believed Mr. Howards' touch of the Vice President provided probable cause for arrest. See id. at 418, 428.

[Fn. 2] The manner in which Mr. Howards touched the Vice President is disputed by the parties. Mr. Howards described the touch as an open-handed pat on the shoulder. Others, however, including the Agents, have described the touch as “push[ing] off” the Vice President's shoulder, Aplt. App. at 390, “a get-your-attention-type touch,” id. at 395, a “slap,” id. at 418, “a forceful touch,” id. at 432, and a strike that caused “the Vice President's shoulder [to] dip[ ],” id. at 435. Because our review requires us to consider the evidence in the light most favorable to Mr. Howards, we will assume, without deciding, that his characterization is accurate.

Special Agent Mike Lee, who was standing near the Vice President and in charge of the protective detail, overheard the verbal exchange. As Mr. Howards walked away, Special Agent Andrew Wurst, who was approximately fifteen yards from the Vice President when the touch occurred, approached Agent Lee. Agents Lee and Wurst agreed that a protective intelligence team should be sent to speak with Mr. Howards. Agent Wurst then asked Special Agent Oscar Rosales to send the protective intelligence team to speak with Mr. Howards. After Agents Wurst and Rosales separated, Agent McLaughlin approached Agent Rosales to inquire whether a protective intelligence team was going to interview Mr. Howards.

Thereafter, Agent Gus Reichle, the intelligence coordinator, was dispatched to interview Mr. Howards as a person of interest in “an incident involving Vice President Cheney.” Id. at 369. Although Agent Reichle had neither overheard the cell phone statement nor observed the actual interaction between Mr. Howards and the Vice President, Agent Doyle debriefed him as he approached Mr. Howards. Agent Doyle identified Mr. Howards as the person of interest and provided “a quick thumbnail sketch that he had overheard the subject on a cellular telephone whom [sic] stated, ‘I'm going to ask him how many kids he's killed today.’ ” Id. at 371. Agent Reichle assumed that Mr. Howards' reference was to Vice President Cheney. Id.

Mr. Howards then left the vicinity and proceeded to join his family at the recital hall. Upon his arrival, Mr. Howards' wife asked him to accompany his younger son back to their condo. Mr. Howards and his son left the recital hall and began to walk towards the mall exit. On their way out, Mr. Howards and his son again entered the area where the Vice President was conducting his meet and greet. Before they reached the mall exit, his son wandered off, and Mr. Howards began to look for him.

During the search for his son, Mr. Howards was approached by Agent Reichle, who was dressed in civilian clothes. Special Agents Daniels, Doyle, and McLaughlin remained nearby in a counter-surveillance role. Agent Reichle presented his Secret Service badge, identified himself, and requested to speak with Mr. Howards. Mr. Howards refused to speak with the agent and attempted to resume the search for his son. Agent Reichle stepped in front of Mr. Howards to prevent his departure and asked Mr. Howards if he had assaulted the Vice President. Mr. Howards pointed his finger at Agent Reichle, denied assaulting the Vice President, and informed the agent that “if you don't want other people sharing their opinions, you should have him [the Vice President] avoid public places.” Id. at 494. Agent Reichle became “visibly angry” when Mr. Howards shared his opinion on the Iraq war. Mr. Howards again attempted to resume his search for his son.

In his deposition, Mr. Howards articulated the events that followed:

A. At some point [Agent Reichle] said to me—I believe there actually—he also asked me if I touched the Vice President.

Q. How did you respond to that?

A. I believe I said I hadn't.

Q. Okay. And that wasn't truthful, was it?

A. That wasn't accurate.

Q. Do you recall him asking you any additional questions?

A. No. That's what I recall.

Id. at 495. Agent Reichle asked the nearby agents whether anyone had witnessed the physical encounter between Mr. Howards and the Vice President. Agent Doyle stepped forward and confirmed that he had witnessed the physical contact, and he performed a demonstration of the touch. Agents Daniels and McLaughlin confirmed that Agent Doyle's demonstration was an accurate recreation of the exchange.FN3
[Fn. 3] Just as the parties dispute the nature of Mr. Howards' touch, there is disagreement as to whether Agent Doyle's recreation of the touch was accurate. This dispute is not relevant to our disposition of the appeal.
Based upon Mr. Howards' “premeditation, the conversation on the cell phone, the fact that Mr. Howards would not talk to [him], the fact that he's walking around with a bag in his hand in an unmagged [no metal detector] area, and the fact that [Doyle told him] that he had unsolicited contact,” id. at 280, Agent Reichle decided to arrest Mr. Howards for assault on the Vice President. Agents Doyle, Daniels, and McLaughlin assisted in restraining Mr. Howards during the arrest.
            This case is scheduled for oral argument on March 21, 2012.  As indicated above, I believe  that the Supreme Court will reverse the decision of the Circuit Court and dismiss Howards’ First Amendment claim, but we will have a better sense of that after oral argument.

Wilson Huhn teaches Constitutional Law at the University of Akron.  

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