Monthly Archives: February 2013

From the Archives — At the U.S. Supreme Court:

Originally reported June 2012.


The Supreme Court issued a decision in Reichle v. Howards this week, a case involving a confrontation between then Vice-President Richard Cheney and a member of the public, Steven Howards.

Howards was arrested by members of the Secret Service, agents Reichle and Doyle, after he interacted with the Vice President at a mall in Colorado.  Howards was critical of the Vice President, asking him “how many kids he killed that day,” and he also touched the Vice President on the shoulder.  When Howards lied about touching the Vice President during subsequent questioning by the Secret Service, he was arrested.

Charges against Howards were dropped, but Howards sued the Secret Service agents, Reichle and Doyle, petitioners in the Supreme Court, claiming his constitutional right to free speech was infringed by the arrest, which he saw as a retaliatory act, resulting from the expression of his political views.

The legal issue of the case at a preliminary stage was the immunity from liability that Secret Service agents should be accorded in the conduct of their official duties.   The court accepted certiorari on two related issues concerning such liability.

First, should the agents receive qualified immunity because there was not clearly-established law at the time of the incident — regarding liability for infringement of first amendment rights in the course of an arrest? Qualified immunity shields government officials from civil damages liability, unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.

Secondly, should the agents receive absolute immunity because there was probable cause for the arrest?  The Supreme Court has held that there is absolute immunity from First Amendment claims in the context of retaliatory prosecutions if probable cause existed.  Some federal jurisdictions have also held that if there is probable cause for making an arrest, then this is a complete defense to a claim of First Amendment violation by retaliatory arrest.

Both of my earlier podcasts on this case, at the certiorari stage and again at the oral argument stage, focused primarily on the question of whether the legitimate grounds for arrest (probable cause) provided a basis for absolute immunity.  As it turns out, the Supreme Court decided not to decide this issue, despite a split of authority in the Circuit Courts of Appeal on this point.

Instead, the Court, with Justice Clarence Thomas writing, in an opinion joined by five justices, held that the law — whether retaliatory arrest could be a basis for liability — was not clearly established at the time of the incident.   This, in itself, provided the qualified immunity that would protect the Secret Service agents from suit in this case.

The High Court reversed the 3rd Circuit Court of Appeals, which had held that the law was clearly established, and that probable cause did not automatically defeat a First Amendment retaliatory arrest claim.   Thomas noted that his approach “comports with our usual reluctance to decide constitutional questions unnecessarily.”

In an opinion marked by subtle distinctions, Thomas explained that “courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.”

Thomas explained the court’s reasoning: “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.”

Thomas also noted that the Supreme Court’s position on retaliatory prosecution in Hartman v. Moore – a case finding qualified immunity existed in the context of retaliatory prosecution — “injected uncertainty into the law in the tenth as well as other circuits because of the similarity between retaliatory prosecution – for which Hartman held probable cause was a basis for immunity — and retaliatory arrest for which Hartman did not make a determination.

Thomas was careful not to suggest that the instant case decided the issue of absolute immunity either.  Instead, he said only that clearly-established law governing liability did not exist at the time of the incident.

Justice Ginsburg, in a concurrence joined by Justice Breyer, agreed that Secret Service agents such as petitioners Reichle and Doyle, were entitled to qualified immunity, saying that their responsibilities protecting officials necessitated immunity so long as their decisions were rational, but Ginsburg would not recognize qualified immunity based on lack of clearly-established law for ordinary law-enforcement officers.  Ginsburg distinguished Hartman because retaliatory prosecution was different than what ordinary law enforcement officers consider in terms of arrests.  Hartman was inapplicable and thus did not add any confusion to the law as it concerned ordinary law enforcement officers.

The majority found that the clearly-established law standard was not satisfied in the context of First Amendment liability for retaliatory-arrest claims.  Uncertainty existed where the Supreme Court had never recognized a First Amendment right to free speech in the face of probable cause for arrest, and there was a split of authority in the circuits on the issue.

Thomas also considered whether there might be clearly-established law within a federal circuit despite conflicting decisions in other circuits, but found, “assuming arguendo that controlling court of appeals authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit’s cases do not satisfy the clearly established standard here.”

Justice Kagan did not participate in this case.

At the U.S. Supreme Court:

Bond vs. The United States

The US Supreme Court accepted certiorari this week in the case Bond vs. The United States.  In 2011 the high court decided, as a preliminary issue in the same case, that petitioner Carole Bond of Pennsylvania had standing to challenge her prosecution under federal law.  Bond had been prosecuted in federal court under the Chemical Weapons Convention Implementation Act, which criminalized the use of chemicals as chemical weapons under American law in conjunction with the adoption and implementation under international treaty of the Chemical Weapons Convention.

The facts, which led to Bond’s prosecution, concern her attempt to injure or kill a former friend after the woman was discovered to have had an affair with and to have had a child with Bond’s husband.  Bond was a microbiologist and when she decided to harm her former friend, she relied on her professional expertise to employ toxic chemical compounds in her assault.  Over a period of three months Bond repeatedly applied two different chemical compounds on the victim’s house and car door handles and mailbox.  The victim observed and avoided the chemicals on several occasions.  She alerted the local police but the police did not identify the chemicals or find evidence that linked them to Bond.  At one point the victim did receive a minor burn on her thumb from contact with the chemicals.  A federal investigation by the postal service determined that the substances were toxic chemicals 10-chlorophenoxarsine and potassium dichromate and traced the evidence to Bond.  Bond was arrested and prosecuted by federal authorities and eventually pled guilty to violations of the chemical weapons implementation act and was sentenced to six years in prison, although she reserved her right to appeal.

After the Supreme Court decided that Bond had standing to challenge her federal prosecution, her case was remanded to the Third Circuit Court of Appeals.  There Bond argued that her case was essentially a local criminal matter appropriately subject to state criminal law relating to assault.  Her constitutional claim was that the federal government did not have power to step into the area of state criminal law and to prosecute her under the Chemical Weapons Act.

Bond is not disputing that there are federal crimes, such as an attack on a federal official.  But Bond argues that the government must derive its authority in federal criminal law from the substantive federal issue involved.  Here the only federal issue was that there was an international treaty and the substantive federal legislation had been enacted to implement the treaty.

Bond argued that the Chemical Weapons legislation was meant to prohibit the use of chemicals in warfare.  This would be a legitimate federal purpose as the federal government has authority through the constitutional roles of the executive and congress related to warfare.  However, in applying the Chemical Weapons law outside of the context of war in an area of criminal law where the states had traditional authority, Bond argued the prosecution violated the 10th Amendment protection of state authority from encroachment by the federal government.

The Chemical Weapons Act law does not only regulate the type of chemical that are so dangerous that they are only found in military stockpiles.  It applies broadly to any chemical that “through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”

However, the Act is limited by an exclusion of chemicals that are used for any “peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity.

Bond claimed that her prosecution under federal law violated the constitution because the facts of her case should not be seen as presenting use of a chemical weapon.  Since the government did prosecute her under that theory, Bond argued the federal chemical weapons statute intruded on state authority in its application to her.

The Court of Appeals rejected Bond’s challenge to her prosecution.  The Third Circuit found that the fact that Congress had enacted the Chemical Weapons Implementation Act in order to meet the government’s obligations under the treaty was sufficient to confer federal authority.  Congress has the authority to enact legislation to implement a valid treaty under the Constitution’s Necessary and Proper Clause.  The Third Circuit did not consider there to be limits on that authority once conferred.  The third circuit decision raised the question of whether it made sense for such an expansion of federal authority based upon a treaty negotiated with another country, and this was expressly contained in a concurrence, but the Court believed it was bound by an earlier Supreme Court case, Missouri v. Holland from 1920, which stated in dictum that “if [a] treaty is valid there can be no dispute about the validity of the statue [implementing that treaty] under Art 1, Section 8, as a necessary and proper means to execute the powers of the Government.” The Third Circuit concluded that principles of federalism “will ordinarily impose no limitation on Congress’s ability to write laws supporting treaties.”

Dictum is language in an opinion or decision by a court that is not fundamental to the holding of the case.  Dictum is not given the weight of precedent, but where the dictum is from a Supreme Court decision lower courts look to the language of the high court for the Court’s reasoning and interpretation.

In fact, there is a split of authorities in the circuit courts of appeal as to whether a valid treaty can expand the federal governments constitutional authority beyond enumerated powers.  The Ninth Circuit considered a closely related question of the effect of a treaty’s impact and concluded, that “treaty provisions which create domestic law and have the same effect as legislation must be subject to the same substantive limitations as any other legislation.”  The 2nd and 11th circuits have followed Holland, while other circuits not.  In addition, Holland was decided in 1920 and more recent judicial trends towards federalism and states rights call in to question the applicability of the language contained in Holland.

The Supreme Court will hear argument on Bond v. the United States later this term.