The U.S. Supreme Court, ruling in a case balancing free-speech interests against the safety of government officials, said two Secret Service agents can’t be sued by a man who was arrested after confronting then-Vice President Dick Cheney.
The justices unanimously took a narrow approach in the case, saying Secret Service agents were immune from suit. The justices didn’t decide whether the man’s First Amendment rights were violated.
Steven Howards claimed in his lawsuit that he was arrested for expressing his opposition to the Iraq war when he encountered Cheney during the vice president’s 2006 visit to an outdoor mall in Beaver Creek, Colorado. Howards sued five Secret Service agents, two of whom were still involved in the case by the time it reached the Supreme Court.
The decision comes as the Secret Service grapples with the fallout from allegations that agents paid prostitutes for their services while in Colombia in April preparing for President Barack Obama’s arrival.
In today’s case, Secret Service agents Virgil D. Reichle Jr. and Dan Doyle contended they couldn’t be sued for retaliatory arrest because they had “probable cause” to apprehend Howards. The agents said they had reason to believe that Howards violated the law by lying to them about touching Cheney.
Justice Clarence Thomas wrote for the court that the two agents were entitled to “qualified immunity,” which insulates government officials from lawsuits for damages unless they violate a “clearly established” constitutional right.
Thomas said it wasn’t clearly established that law enforcement officials could be sued for violating the First Amendment when they have probable cause to make an arrest.
In 2006, the court ruled that government officials were shielded from claims of retaliatory prosecution if the charges were supported by probable cause. The latest case tested whether a similar rule applied to allegations of retaliatory arrest.
The 2006 ruling “injected uncertainty into the law governing retaliatory arrest,” Thomas wrote.
The Obama administration backed the agents in the case, urging the court to provide a legal shield for the Secret Service.
A Denver-based federal appeals court let Howards’s free- speech claims go forward. Other lower courts had said that law enforcement officials are immune from that type of lawsuit if they had probable cause to make an arrest.
Howards was taking his son to a piano recital in the mall when he saw Cheney shaking hands and having his picture taken with the public. According to court documents, agents overheard Howards saying on his mobile phone that he was going to ask Cheney “how many kids he’s killed today” in the Iraq war.
Howards then approached Cheney and told him that his Iraq policies were “disgusting.” After Cheney responded, “Thank you,” Howards touched the vice president’s shoulder with his open hand.
Howards left the area and later returned. Reichle confronted Howards and asked him about the encounter with Cheney. Howards denied touching Cheney, an assertion disputed at the time by Doyle and two other agents. Howards later admitted under oath that he had touched Cheney.
Reichle arrested Howards for assault on the vice president, though prosecutors never pursued charges. Howards was charged with harassment under Colorado law and the case was dropped.
The case is Reichle v. Howards, 11-262.
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