The Supreme Court is pretty much done with lawyer David Lane, but Lane is not done with the Supreme Court.
Lane, a longtime civil rights lawyer with the Denver firm of Killmer, Lane & Newman, says he will return to the Court – if not in connection with the case he lost June 4, Reichle v. Howards, then in another controversial case of his. Lane’s top candidate: the continuing appeal by fired professor Ward Churchill to be reinstated to the faculty of the University of Colorado.
Beginning as a public defender in New York more than 30 years ago, Lane says “my entire career has revolved around the Bill of Rights.” His clients have included a fair number of unpopular underdogs, symbolized by Churchill, who was forced out of the university after calling 9/11 victims “little Eichmanns.” The Denver Post wrote of Lane, “Plenty of people hate him. Lane doesn’t care.”
But none of the more than 150 jury trials and appeals he handled led to a U.S. Supreme Court case – until he got a phone call from Steven Howards. The Secret Service had arrested Howards in 2006 after he made verbal – and physical – contact with then-Vice President Dick Cheney during a chance encounter at a Beaver Creek, Colo. shopping mall. Charges were dropped, but Howards wanted to sue the agents who arrested him, claiming that had violated his First Amendment rights by arresting him for anti-war comments he made to Cheney.
Others might have thought twice before representing Howards, but Lane told him, “I’m your man.” Lane won a partial victory before the U.S. Court of Appeals for the Tenth Circuit, which ruled that while the arrest did not violate the Fourth Amendment, the agents were not immune from being sued on First Amendment grounds.
The agents appealed to the Supreme Court, and Lane was on his way to his first Supreme Court argument. When the Court granted review last December, Lane said he was inundated with offers from other advocates to “help” – or take over – the argument before the high court. “The vultures came out of the woodwork,” Lane said, but he turned them all down. “I’m not a novice as an appellate advocate.”
Arguing at the Supreme Court was different from his other appeals, he acknowledged. Like other first-timers, he was struck by how close he was to the justices as he stood before them. But he was not intimidated.
At one point, Chief Justice John Roberts Jr. asked whether anyone stopped for speeding could sue police on First Amendment grounds by sporting an “I hate police” bumper sticker and claiming retaliation. Lane replied, “Well, let me give the flip side of that and say if the police officer did stop him because of the bumper sticker, he should go to trial.”
Lane lost the case unanimously, in a way that was particularly disappointing. In an opinion written by Justice Clarence Thomas, the Court ruled that the agents deserved immunity from being sued by Howards, because at the time of the arrest, it was not clearly established that a retaliatory arrest could give rise to a First Amendment violation. But the justices specifically said they did not want to decide whether the arrest actually violated the First Amendment.
“Justice Thomas said ‘the law is muddled and unclear, but we’re going to keep it that way,’” said Lane. “They ducked every single First Amendment issue in the case.”
“The right side of the Court,” Lane added, “wanted complete immunity for the Secret Service. And the left side simply punted.”
He wasn’t really surprised, though. The Court usually upholds “the right of government and corporate America at the expense of the rights of individual Americans,” Lane said.
“I have witnessed the demise of civil liberties over the last 32 years,” said Lane, 58. “I can only hope the Supreme Court gets some new personnel who will have some respect for the First Amendment.”
And that change in personnel needs to come soon, in Lane’s view. The losing side in the Ward Churchill case now before the Colorado Supreme Court will almost certainly appeal to the U.S. Supreme Court.
Tony Mauro can be contacted at email@example.com.