The Supreme Court seemed inclined to agree that Secret Service agents protecting the nation’s top officials deserve special protection from lawsuits charging them with being overzealous when they arrest people whom they believe — even wrongly — might be a threat.
The justices on Wednesday were considering whether a lawsuit by Steven Howards of Golden, Colo., could go forward. Howards is suing two Secret Service agents who he clams violated his First Amendment rights when they arrested him after he criticized then-Vice President Dick Cheney, touched his shoulder and then lied about his actions.
Sean Gallagher, an attorney for agents Virgil D. “Gus” Reichle Jr. and Dan Doyle, told the court that the men should not have to face lawsuits for doing their jobs.
“The issue before the court today is whether Secret Service agents who are prepared to take a bullet for the vice president must also be prepared to take a retaliatory arrest lawsuit, even when they have probable cause to make an arrest,” Gallagher said.
But David A. Lane of Denver, representing Howards, said free-speech rights deserved protection, too.
“And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important,” Lane said.
The case arises from a chance encounter between Howards, who was taking his son to a piano recital at the mall, and Cheney, who happened to be at that Beaver Creek, Colo., shopping center on June 16, 2006.
According to court records, Doyle heard Howards on a cellphone telling someone, “I’m going to ask him how many kids he’s killed today.”
Howards waited his turn to address Cheney and then told him that his “policies in Iraq are disgusting.” He then touched Cheney’s right shoulder; there’s a dispute about whether it was more of a pat or a shove, but agents did not arrest him.
Reichle later interviewed Howards about the incident. Howards told the agent that “if you don’t want other people sharing their opinions, you should have him [Cheney] avoid public places.” Howards denied touching Cheney.
Howards said Reichle, who had not witnessed the confrontation, became “visibly angry” in the interview when he shared his opinion on the Iraq war. When other agents confirmed that Howards had touched Cheney, Reichle arrested Howards. Howards was charged under Colorado law with harassment, but the charges were dropped.
While an appeals court said the agents had reason to arrest Howards for the false statements about touching Cheney, it also said Howards could pursue his allegations that the arrest was retaliation for what he said about Cheney, in violation of the First Amendment.
Justices seemed to agree that Secret Service agents protecting the nation’s leaders had special pressures that deserved leeway.
Chief Justice John G. Roberts Jr. said he didn’t want an agent to hesitate to take action because of a thought that “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.”
Justice Samuel A. Alito Jr. asked Lane: “Would you acknowledge that the Secret Service faces a different situation from ordinary police officers in conducting their daily activities?”
Other justices also wondered how broad the protection should be.
“How do we in a principled way deal with the unique needs of the Secret Service?” wondered Justice Sonia Sotomayor.
Lane said there was no reason for special treatment. “The Secret Service has . . . done their jobs beautifully for over a century. ”
Said Scalia: “Well, we’ve lost a couple of presidents.”
The case is Reichle v. Howards .