Associated Press//December 5, 2011
//December 5, 2011
WASHINGTON — The Supreme Court said Monday it will hear an appeal from Secret Service agents who say they should be shielded from a lawsuit over their arrest of a Colorado man who confronted Vice President Dick Cheney.
The justices will review a federal appeals court decision to allow Steven Howards of Golden, Colo., to pursue his claim that the arrest violated his free speech rights. Howards was detained by Cheney’s security detail in 2006 after he told Cheney of his opposition to the war in Iraq.
Howards also touched Cheney on the shoulder, then denied doing so under questioning. Appellate judges in Denver said the inconsistency gave the agents reason to arrest Howards.
Even so, the appeals court said Howards could sue the agents for violating his rights — an unusual twist that the agents and the Obama administration said conflicts with other appeals court decisions and previous high court rulings in similar cases.
Justice Elena Kagan is not taking part in the case, probably because she worked on it while serving in the Justice Department.
A touch of the shoulder
Howards’ lawsuit grew out of a chance encounter with Cheney at a shopping center in the mountain resort of Beaver Creek.
The environmental consultant, now 59, was taking his older son to a piano recital when he saw Cheney emerge from a grocery store and begin talking to people and shaking hands. Howards came to the attention of Cheney’s security detail when an agent heard him say into his cell phone that he was going to ask Cheney “how many kids he killed today.”
While the son continued to the recital, Howards waited to meet the vice president. When it was his turn, Howards told Cheney his “policies in Iraq are disgusting,” according to court papers. Then, as he departed, Howards touched Cheney’s right shoulder with his open hand. Agents who witnessed the contact did not think it was serious enough to justify an arrest.
Still, Agent Virgil D. “Gus” Reichle Jr. was asked to interview Howards because of the confrontation and the overheard cell phone conversation. Reichle testified that Howards at first refused to talk to him, then denied that he assaulted Cheney or even touched him.
According to Howards, the agent also became “visibly angry” when Howards again expressed his views about the war. Reichle said that the overheard cell phone conversation, the confrontation with Cheney, Howards’ initial refusal to talk and other factors led him to arrest Howards for assault. He later was charged with harassment, but that charge was dismissed. The other agent, Dan Doyle, overheard Howards’ cell phone comment.
Howards filed his civil rights suit soon after.
The situation was made worse, he said, by the presence of his younger son, then 8. He witnessed his father get handcuffed and taken away. Howards asked what would happen to his son.
“He told me, ‘We’ll contact social services,’” Howards said. “I wasn’t in a position to go ballistic, but I can still hear him saying that in my head.”
The legal issue in the case is whether agents, and other law enforcement officers, should be shielded from rights lawsuits when they have a good reason, or probable cause, to make an arrest.
The administration says that officers responsible for protecting the president and vice president have to make quick decisions about potential threats and often work in politically charged environments.
In deciding whether to make an arrest, “these agents should not err always on the side of caution because they fear being sued,” Solicitor General Donald Verrilli Jr. said in court papers.
Sean Gallagher, the agent’s Denver-based lawyer, said “the court should be very careful that it doesn’t’ develop a rule that inhibits the ability of the Secret Service to protect the president.”
The Supreme Court has previously ruled out damages claims for retaliatory prosecutions when there was probable cause to bring criminal charges in the first place. Some appeals courts already have extended that rule to retaliatory arrests.
In a telephone interview, Howards said the government is trying to make it easier for law enforcement to arrest people. “I’d prefer if the Justice Department would simply acknowledge that it’s not OK to arrest people simply for disagreeing with government policies,” Howards said.
Separately, David Lane, Howards’ lawyer, has made clear that he wants to question Cheney under oath as the person best able to recount what happened. Courts have so far not allowed it.
Lane called on the high court “to vindicate free speech in America and to stop abusive law enforcement from retaliating against people when they speak out.”
The case will be argued in the spring.
The case is Reichle and Doyle v. Howards, 11-262.
Associated Press writer Dan Elliott in Denver contributed to this report.e