In June 2006 a man was detained for several hours after an encounter with then Vice President Dick Cheney in which he voiced his sharp disapproval of the war in Iraq and touched the vice president with his open hand.
After charges against him were dropped, he filed suit against the Secret Service, alleging that he was arrested because of what he had said to the vice president and because of the opinions he expressed to agents.
On Wednesday, the US Supreme Court heard oral argument in an appeal that is asking the justices to enact a special rule exempting US Secret Service agents – and potentially all law enforcement officials – from civil liability for arresting someone allegedly in retaliation for the offensive content of their speech.
The case poses a potential major test of the court’s free speech jurisprudence, and is being heard at a time when First Amendment principles are reportedly hindering efforts of federal agents assigned to protect top American leaders from assassination and other attacks.
During an hour-long oral argument, the eight justices hearing the case appeared sharply divided on the issue, with Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor most skeptical of the proposed rule.
Justice Elena Kagan is not participating in the case.
At issue in Reichle v. Howards (11-262) is whether two Secret Service agents should be put on trial for money damages for allegedly arresting the Colorado man, Steven Howards, after his encounter with Mr. Cheney.
The agents arrested Mr. Howards for allegedly assaulting the vice president. He was taken to a local sheriff’s office and held for several hours before being released on bond. A local prosecutor charged him with harassment, but the charge was later dropped.
Howards filed a lawsuit against the Secret Service agents claiming that they used their authority to retaliate against him because of what he said.
Howards reportedly told Cheney that his policies in Iraq were “disgusting.” He then reached out and touched the vice president with his open hand.
Howards later characterized the contact as an open-handed pat. Federal agents put a more sinister cast on the encounter. According to the government’s brief, the contact was a push-off, a slap, a forceful touch, or a “strike that caused the vice president’s shoulder to dip.”
The agents moved to dismiss Howards’ lawsuit, but a federal judge and a federal appeals court have allowed it to move forward.
On Wednesday, a lawyer for the agents and a lawyer for the Obama administration both urged the Supreme Court to create a broad exemption from First Amendment liability for federal agents.
Under the new rule, federal agents would be immune from a civil lawsuit charging that they had engaged in a retaliatory arrest related to the content of the arrestee’s speech. The immunity would apply whenever the agent could show he or she acted with probable cause to believe a crime had been committed prior to the arrest.
“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,” Sean Gallagher, a Denver, Col., lawyer for the agents, told the court.
Mr. Gallagher said that protective agents must use the speech of surrounding individuals to gauge potential threats. He said if agents knew they were potentially liable for money damages in First Amendment lawsuits, it might make them hesitate at a critical moment.
Deputy Solicitor General Sri Srinivasan told the justices that the rule was necessary because it is difficult to “disentangle a legitimate desire to suppress danger – of which speech is evidence, from an illegitimate desire to suppress a viewpoint.”
“When a Secret Service agent overhears an individual say that he’s going to ask the vice president how many babies he’s killed, it makes all the sense in the world for the Secret Service to focus their attention on that person,” Mr. Srinivasan said.
Howards’ lawyer, David Lane of Denver, urged the high court to reject the special rule and allow the case to proceed to a jury trial. “This is not a significant problem,” he said of a suggested flood of future retaliatory arrest lawsuits tied to free speech claims.
Mr. Lane said the agents in the Howards case had all the power necessary to protect the vice president. If their motive was purely to protect Cheney from a potential threat, they could have immediately searched Howards’ belongings and frisked him to verify that he was not armed. Beyond that they could have continued to monitor his movements.
Instead, he was confronted, accused of assaulting the vice president, and taken into custody.
Lane says there is disagreement among the agents present during the 2006 encounter about whether Howards’ contact with the vice president was threatening.
“You have agent after agent after agent who saw the encounter up close and personal with the vice president and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards,” Lane said.
Lane stressed that a special rule was not necessary. “The Secret Service has adequately done their jobs beautifully for over a century and there is no reason to put some different rule down,” he said.
“Well, we’ve lost a couple of presidents,” Justice Scalia noted. The comment drew laughter in the courtroom.
Lane urged the justices not to sacrifice one hundred years of what he called courageous First Amendment jurisprudence for a problem that he said doesn’t exist.
The brief encounter between Howards and Cheney took place on June 15, 2006.
Howards was on his way to a family event and talking on his cell phone when he noticed that the vice president was greeting members of the public at the shopping mall in Beaver Creek, Colorado.
Howards, an opponent of the war in Iraq, commented into his cell phone: “I’m going to ask [the vice president] how many kids he’s killed today.” The remark was overheard by a member of the vice president’s Secret Service detail.
There were no medal detectors being used in the area and Howards was carrying a shopping bag.
Howards waited in line to meet Cheney. When his turn arrived he told Cheney that his “policies in Iraq are disgusting.”
Cheney thanked him for his comment. As Howards was leaving he brought his open hand in contact with the vice president’s shoulder.
After the encounter, Howards went to the family event, and later returned to the general area of Cheney’s visit. At that point, his young son wandered off. Howards began to look for the boy.
As he searched, Howards was approached by Secret Service Agent Gus Reichle, who displayed his badge and asked to speak with Howards. Howards refused. The agent then stepped in front of Howards, and accused him of having “assaulted” Vice President Cheney.
Howards pointed his finger at the agent and said: “If you don’t want other people sharing their opinions, you should have [Cheney] avoid public places.”
According to Howards, Reichle became visibly angry when Howards expressed his opinion about the war in Iraq.
After accusing Howards of assault, the agent asked Howards if he had “touched” the vice president. Howards said no.
Reichle then asked another agent if there had been physical contact with Cheney. The agent verified that there had been.
Howards was arrested for allegedly assaulting the vice president.
Howards maintains in his suit that he has a First Amendment right to express political opinions, and that the agents have no authority to arrest him in retaliation for expressing those opinions.
A decision in the case is expected by June.