Thre Best Of David Lane -- Mr. Howards' Layer -- Sparring With Chief Justice Roberts

The dialogue runs thus, toward the end of the argument, before the Supreme Court -- perhaps Mr. Lane's strongest exchange "the governement here presents us a solution, in search of a problem. . .":

. . .Mr. Lane: -- Well, what I say about that is that -- and again, I know this is not an answer that you are probably going to like, because this means a trial is involved, but this is what juries do on a daily basis throughout this country, in every criminal case.

What is the subjective intent of the defendant?

In every civil case, is this an intentional act, a knowing act, a reckless act, a negligent act?

That's what juries do.

And if there is enough evidence to get this case to trial -- and I -- I would posit it that in this case, where you have agent after agent after agent who saw the encounter up close and personal with the Vice President and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards, all of whom let Mr. Howards walk away from the scene, that's good evidence that--

Chief Justice John G. Roberts: One reason that I in fact don't like the answer is be -- because what the agent is now going to have to factor, in addition to the hostility of the -- the views, the touching of the Vice President, the lying about it, the wandering around with the bag -- is in the back of his mind -- you know, if I'm wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the Vice President.

Mr. Lane: Well, I mean, theoretically yes, that -- that could be a problem.

And -- and I am quite certain that certain civil litigants, just as in criminal cases, people are wrongly accused of things that they didn't do, they end up in a trial, and sometimes juries get the wrong results and an injustice occurs.

We can't fix all those problems when it's not really a significant problem.

There are no run on the courtrooms around the land of these kinds of cases arising.

We don't need to have any rules that specifically pertain to the Secret Service when to my knowledge, this Court has had one Secret Service case in its entire history, and there are 15 appellate-reported Federal decisions regarding retaliatory arrests, period. . .

Now we wait for an opinion. Sadly, I think it 6 to 2 [Justice Kagan recused -- prior involvement in the case, as a government lawyer] that there is no cognizable claim here, under the first amendment, even with Mr. Lane's skillful advocacy.

Supremes To Decide Whether Cheney's Orders In A 2006 Vail "Retaliatory" Arrest Violated First Amendment

Per the consummate SCOTUS watcher, Lyle Denniston, and the authoritative SCOTUS Blog -- a bit:

. . . .Taking on a case that grew out of a citizen’s arrest after he made an anti-war remark and jostled then-Vice President Richard Cheney, the Supreme Court agreed Monday to sort out when an arrest is invalid because it may have been carried out in retaliation for the exercise of free-speech rights. Two Secret Service agents, seeking to head off a civil rights lawsuit against them, argue that they had a valid reason for arresting a Colorado man in 2006, so he has no First Amendment claim. . . .

The Secret Service case will be decided by an eight-member Court, since Justice Elena Kagan took herself out of the case, presumably because she had had some contact with it in her former position as Solicitor General. The case is likely to be set for argument in the March or April sittings. At issue is a ruling by the Tenth Circuit Court, based in Denver, that denied legal immunity to the agents because, it said, the law was clear that law enforcement officers may not arrest an individual who has exercised First Amendment rights. The fact that the agents had “probable cause” to make the arrest did not overcome the individual’s free-speech rights, the Circuit Court ruled.

The case will require the Court to sort out the impact on the case of its own ruling in 2006, in the case of Hartman v. Moore. In that case, the Court said that, if there is probable cause sufficient to justify filing charges, then that neutralizes a claim that the prosecution was started in retaliation for criticizing a public official or agency. In the new Secret Service agents’ case, the Tenth Circuit said that precedent only dealt with retaliatory prosecution, not retaliatory arrest. The federal Circuit Courts are split on that last point, and that division is apparently what led the Supreme Court to step in. . . .

We will keep you posted, come March 2012 -- linking the oral argument .mp3 files (I love how easy this has all become, in the ensuing years -- since I started covering this case, in early 2006!). Here is the order (a 2 page PDF file) directing the Colorado District Court to send the trial records up to the Supremes, for review.