The Supreme Court agreed Monday to decide whether a Colorado man who touched and berated then-Vice President Dick Cheney in 2006 can sue the Secret Service agents who arrested him.
An appeals court said Steven Howards of Golden, Colo., could proceed with his lawsuit arguing that the arrest violated his free-speech rights. The incident occurred during a chance encounter with Cheney at a Beaver Creek, Colo., shopping center.
Howards told Cheney that the administration’s policies in Iraq were “disgusting,” to which Cheney said, “Thank you.” Howards then touched Cheney’s shoulder with his open hand, which he later denied when Secret Service agent Virgil “Gus” Reichle confronted him.
Reichle and fellow agent Dan Doyle said the arrest was warranted because Doyle had overheard Howards on his cellphone saying that he intended to ask Cheney “how many kids he’s killed today” and because he had lied about touching Cheney. Howards was handcuffed and charged with harassment, but the charges were dropped.
A three-judge panel of the U.S. Court of Appeals for the 10th Circuit said that the agents did not violate Howards’s right against unreasonable seizure, but that his suit alleging a violation of his First Amendment rights could go forward.
The agents told the Supreme Court that they must be protected from such suits to vigilantly protect public officials.
Allowing the ruling to stand would “interfere with the split-second decisions of Secret Service agents that can mean the difference between the life and death of the president and vice president,” attorneys for Reichle and Doyle told the justices in a brief.
Sean Gallagher, who represents the agents, said the ruling is especially important because many of those who cause the Secret Service concern “are also engaging in some form of free speech” against the president and vice president.
The Justice Department agreed that agents and other law enforcement officials should receive immunity from lawsuits when they have good reasons to act. Agents “should not err always on the side of caution because they fear being sued,” wrote Solicitor General Donald B. Verrilli Jr.
Although Howards won at the appeals court, his attorney said in a letter to the Supreme Court that the issue was important enough that the justices should hear it.
The incident arose from happenstance. Howards was taking his son to a piano recital at the shopping center when he saw Cheney leaving a grocery store and talking with shoppers. 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 like a pat or a shove, but agents did not move to arrest him.
Reichle later tried to interview Howards about the incident. Howards told Reichle 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” when he shared his opinion on the Iraq war. When other agents confirmed that Howards had touched Cheney, Reichle arrested Howards. He was charged under Colorado law with harassment, but the charges were dropped. No federal charges were filed.
Howards then filed suit against the agents. The appeals court dismissed Howards’s claim that his arrest was a violation of his Fourth Amendment rights against unreasonable seizure, saying that lying about touching Cheney gave the agents reasonable cause for arrest.
But the panel ruled 2 to 1 that Howards could pursue his allegations that the arrest was retaliation for what he said about Cheney, in violation of the First Amendment.
The Supreme Court has ruled that there cannot be suits for retaliatory prosecutions when there was probable cause to bring charges. But the lower courts are split on whether such a rule should apply to arrests.
Justice Elena Kagan took no part in the court’s decision to accept the case, most likely because she worked on it in her previous job as solicitor general.
The case is Reichle v. Howards .