The US Supreme Court agreed on Monday to examine whether two Secret Service agents can be sued for arresting a Colorado man who criticized US policy in Iraq during a public appearance by Vice President Dick Cheney at a shopping center in 2006.
Secret Service agents arrested the man, Steven Howards, in part because they did not like what he said to Mr. Cheney. They later justified the arrest by claiming Mr. Howards lied to them about whether he “touched” the vice president during the brief encounter.
At issue in Reichle v. Howards is whether the two agents must face a civil trial – and a Colorado jury – over allegations that they conducted a false arrest and violated Howards’s First Amendment right to express his political opinion in public to an elected official.
The agents claim the actions they took against Howards were part of their job protecting the vice president. They say they are immune from Howards’s civil lawsuit and that it should be dismissed.
A federal judge and a federal appeals court panel disagreed, ruling that Howards’s lawsuit against the two agents could move forward. The Supreme Court is being asked to reverse those decisions.
In recent years, the high court has made it significantly easier for government officials to defend themselves from allegations that they violated someone’s constitutional rights. Many of the cases have arisen in the context of the war on terror and threats to national security.
Lawyers for the two agents argue that lawsuits like the one filed by Howards could make it harder to prevent an assassination attempt.
“The denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President,” the agents’ lawyer, Sean Gallagher, wrote in his brief urging the court to take up the case.
Specifically at issue is whether Howards’s lawsuit must be thrown out of court because the agents had probable cause justifying his arrest.
A panel of the Tenth Circuit Court of Appeals in Denver dismissed a Fourth Amendment charge in Howards’s suit alleging that he was the victim of an unreasonable arrest. The appeals court said that because Howards lied to the agents about whether he touched Cheney, the agents had probable cause to arrest him.
Lying to a US law enforcement official is a federal crime punishable by five years in prison.
But the appeals court refused to dismiss the First Amendment claim, noting that it is beyond debate whether federal officials are entitled to retaliate against a citizen who expresses an opinion with which the officials disagree.
“When Mr. Howards was arrested it was clearly established that an arrest made in retaliation of an individual’s First Amendment rights is unlawful, even if the arrest is supported by probable cause,” the appeals court said.
Federal appeals courts are split on this issue. The Tenth and Ninth circuits agree that First Amendment retaliation suits may proceed despite the presence of probable cause. In contrast, the Second, Eighth, and Eleventh circuits have ruled that such lawsuits must be dismissed.
The case stems from an incident that took place on June 16, 2006, at a shopping center in Beaver Creek, Colo.
Howards was at the shopping center with his older son to attend a piano recital. On the way to the event, Howards noticed Cheney engaged in a meet-and-greet with shoppers. Howards was on his cellphone and made the comment: “I’m going to ask him [Vice President Cheney] how many kids he’s killed today.” It was an apparent reference to US policy in Iraq.
A Secret Service agent overheard the comment and reported it to another agent. Agents were told to pay close attention to a white male in a green T-shirt (Howards).
Howards then waited in line as Cheney greeted shoppers, shook hands, and posed for photographs. When his turn came, Howards told the vice president that his “policies in Iraq are disgusting.”
Cheney replied: “Thank you.”
As he was leaving, Howards then touched Cheney’s right shoulder with his open hand. The character of this physical contact is in dispute. Howards says it was an open-handed pat on the shoulder. Agents called it a “forceful touch,” a “push off,” or a “slap.”
Howards left the area to attend the piano recital, but he later passed near the vice president on his way out of the mall. At some point, Howards’s younger son wandered off. Secret Service agents approached Howards as he was looking for his son.
Agent Virgil Reichle flashed his badge and asked to speak with Howards. Howards refused and attempted to resume the search for his son.
The agent stepped in front of Howards and accused him of assaulting the vice president.
Howards pointed his finger at Agent Reichle and said: “If you don’t want other people sharing their opinions, you should have him [Cheney] avoid public places.”
According to the appeals court: “Agent Reichle became ‘visibly angry’ when Mr. Howards shared his opinion on the Iraq war.”
The agent asked Howards if he “assaulted” the vice president. Howards denied assaulting the vice president.
The agent next asked whether Howards “touched” the vice president. Howards, again, denied the agent’s accusation.
Howards was taken into federal custody for assaulting Cheney. According to the appeals court, four agents “assisted in restraining Mr. Howards during his arrest.”
He was turned over to local police and detained for several hours. He was charged by a state prosecutor with harassment, but the charge was later dropped. No federal charges were ever filed.
Howards filed a civil lawsuit against Secret Service agents Reichle and Dan Doyle, claiming they violated his First Amendment rights by using their power as federal officials to retaliate against him for expressing views with which they disagreed.
The agents argue that they were justified in making the arrest and should thus be protected by immunity from Howards’s lawsuit.
But it isn’t the kind of alleged physical contact between Howards and Cheney that justifies their immunity, their lawyers argue. It is Howards’s false statement that he did not physically touch Cheney, they say.
This false statement concerning touching the vice president is the federal crime that agents say should immunize them from charges that they attempted to punish Howard for his political views.
Later, in a deposition, Howards admitted that his response to whether he touched Cheney was not accurate.
Reichle v. Howards (11-262) will be set for oral argument next year, and a decision is expected by June.