from The Rutherford Institute:

For Immediate Release: February 27, 2012

Rutherford Institute Asks U.S. Supreme Court to Affirm Right of Americans to Sue Law Enforcement Over Free Speech Violations, Retaliatory Arrests

WASHINGTON, DC — The Rutherford Institute has filed an amicus curiae brief with the U.S. Supreme Court in Reichle v. Howards in defense of the right of Americans to sue law enforcement officials over arrests made in retaliation for unpopular or critical speech. At issue in the case is whether law enforcement officers can be held liable under the First Amendment for retaliating against individuals engaging in unpopular or critical speech by arresting them, even when those arrests are made under the pretext that the officers had probable cause to believe the individual had committed an offense—no matter how minor.

The Rutherford Institute’s amicus brief in Reichle v. Howards is available at www.rutherford.org.

“This case will affect the right of Americans to petition the government for a redress of grievances—whether that petitioning takes the form of a shouted statement to the President or a sign that is critical of Congress,” said John W. Whitehead, president of The Rutherford Institute. “If Americans are not able to challenge law enforcement officials over retaliatory arrests under the First Amendment, few, if any, checks will remain to deter government officials from employing intimidating tactics designed to chill the exercise of unpopular or critical political speech.”

In June 2006, Steven Howards was at a Colorado shopping mall with his son when he learned that then-Vice President Dick Cheney and his Secret Service security detail were at the mall greeting the public. Howards, having decided to approach Cheney and express his opposition to the war in Iraq, made a telephone call in which he was heard to say that he was going to ask Cheney “how many kids he’s killed today.” The Secret Service agent who overheard Howards’ conversation alerted other agents on the detail to monitor Howards. Howards eventually approached Cheney and shared his view that Cheney’s policies in Iraq “are disgusting.” When Cheney turned and began to walk away, Howards lightly touched the Vice President’s shoulder with his open hand. After witnessing this exchange, the Secret Service agents conferred and determined to question Howards further. Agent Gus Reichle confronted Howards, who initially refused to speak with the agent, but Reichle persisted in questioning Howards. When Reichle asked if Howards had assaulted or touched the Vice President, Howards denied doing so. Reichle and other agents then arrested Howards for assaulting the Vice President and had him transported to a local jail.

Although the assault charges were soon dropped, Howards sued the agents alleging they had violated his rights under the First Amendment by arresting him in retaliation for his remarks to Cheney. The agents defended the arrest, insisting that because Howards had denied touching the Vice President, they had probable cause to arrest him under a federal statute making it an offense to make a false statement to a federal official. Although the trial court ruled in favor of the Secret Service agents, the U.S. Court of Appeals for the Tenth Circuit reversed the lower court’s ruling, reinstating Howards’ First Amendment claim. Finding a split among the appellate courts on this issue, the U.S. Supreme Court agreed to hear the case. In asking the Court to affirm the Tenth Circuit’s ruling, attorneys for The Rutherford Institute point out that, as a practical matter, the prospect of a civil action (lawsuit) for retaliatory arrest is the only deterrent against law enforcement officers who desire to chill expression and intimidate individuals who engage in critical or unpopular speech.