Secret Service hopes for immunity in Cheney protest arrest

Tuesday, December 6, 2011

WASHINGTON — The fate of a lawsuit filed by a Colorado man who claims his First Amendment rights were violated after an encounter with Vice President Dick Cheney in 2006 will be decided by the Supreme Court.

The Court yesterday agreed to hear Reichle v. Howards, which stemmed from the arrest of Steven Howards by Secret Service agents at a Colorado shopping mall. The arrest came after Howard criticized Cheney to his face and briefly touched him during Cheney’s visit to the mall. He told Cheney that Iraq war policies were “disgusting,” and touched Cheney on the shoulder with his hand.

Howards sued the agents in their official and personal capacities, claiming the arrest was in retaliation for his exercise of First Amendment rights. But the agents claim they have absolute immunity from being sued, in that they had probable cause to arrest him. Howards was arrested for lying to federal officers, because when the agents questioned him after the encounter, Howards denied touching Cheney. Ultimately, neither federal nor state officials prosecuted Howards on the charge.

The 10th U.S. Court of Appeals ruled that Howards’ First Amendment retaliation suit could proceed nonetheless, but agents Virgil Reichle Jr. and Dan Doyle went to the Supreme Court to argue that their absolute immunity bars the lawsuit from going forward.

Adding a national-security aspect to their case, the agents also assert that by exposing them to personal liability, the lawsuit “threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.” The agents’ petition adds, “While Secret Service agents will never allow concerns over potential legal liability to compromise their solemn and critical duty to protect the President, Vice President and presidential candidates, concerns over personal liability for making a probable cause arrest should not weigh into agents’ decisions in the field.”

They also argue that in arrests aimed at guarding the safety of public officials, expressive activity is often involved, making the issue important to resolve in favor of the agents.

In a brief supporting the agents, Solicitor General Donald Verrilli Jr. underscored that point, stating that the case “concerns an issue of exceptional importance, threatening to impose unwarranted personal liability on Secret Service agents for performing their critical protective duties and to chill federal, state, and local law-enforcement activities more generally.”

Advocates for the agents cite a 2006 Supreme Court precedent, Hartman v. Moore. In that case, the Court acknowledged that public officials generally cannot retaliate against individuals for speaking out. But it said that if the alleged retaliation takes the form of a prosecution on criminal charges, the person challenging the retaliation must prove there was no probable cause for the prosecution. The 10th Circuit said the precedent did not apply, because Howards is claiming a retaliatory arrest, not a prosecution. Federal circuit courts are divided on this point.

Lawyers for Howards have not filed a brief responding to the agents’ petition, but now that the case has been granted review, they and other groups that advocate for free speech rights are expected to participate.

Justice Elena Kagan did not participate in the Court’s action on the case, most likely because she was involved in the litigation in her prior position as solicitor general.

The case will be argued next spring.

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