Monday, June 4, 2012

Secret Service Agents Have Qualified Immunity: SCOTUS, In Howards

Here is a pdf of the full opinion (just handed down), but I will quote from Ginsberg's concurring opinion -- as it will be useful in any future such cases:

. . .Thus, the “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’sown injurious action, but between the retaliatory animusof one person and the action of another.” Hartman, 547 U. S., at 262. This “distinct problem of causation” justified the absence-of-probable-cause requirement we recognized in Hartman. Id., at 263 (Proof of an absence of probable cause to prosecute is needed “to bridge the gap between the non prosecuting government agent’s motive and the prosecutor’s action.”). See also id., at 259 (“[T]he need toprove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, . . . provides the strongest justification for the no-probable-cause requirement.” (emphasis added)).

A similar causation problem will not arise in the typical retaliatory-arrest case. Unlike prosecutors, arresting officers are not wholly immune from suit. As a result, a plaintiff can sue the arresting officer directly and need only show that the officer (not some other official) acted with a retaliatory motive. Because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action, Hartman’s no-probable-cause requirement is inapplicable.

Nevertheless, I concur in the Court’s judgment. Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. . . .

Disappointing -- but not unexpected -- after hearing the tenacity of the questioning, in favor of the agents, by the majority of the SCOTUS, and hinting that there was -- at the time of the incident (2006) no "clearly established right" of which the Secret Service agents should have been aware. . . all of which was seen as likely to doom Mr. Howards' claim.

This may be the last entry -- the likely end of this particular blog.

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