Supreme Court to Consider the Arrest of a Cheney Critic

Washington – The Supreme Court on Monday agreed to decide whether Secret Service agents protecting Vice President Dick Cheney may be sued for violating the free speech rights of a member of the public who made critical remarks about the Bush administration’s war policies.

The case arose from an episode in 2006 at a mall in Beaver Creek, Colo. A Secret Service agent said he heard Steven Howards say into a cellphone that he planned to ask Mr. Cheney “how many kids he’s killed today.” Mr. Howards later approached Mr. Cheney and said the administration’s “policies in Iraq are disgusting.” Mr. Howards then touched Mr. Cheney on the shoulder in a gesture variously described as an open-handed pat, a slap and a strike that caused the vice president’s shoulder to dip.

Confronted by the Secret Service, Mr. Howards denied touching Mr. Cheney and said, “If you don’t want other people sharing their opinions, you should have him avoid public places.” Agents arrested Mr. Howards for assault and turned him over to local authorities. He was charged with harassment under state law, but those charges were later dropped.

Mr. Howards sued several Secret Service agents, saying his arrest was unlawful. He said the agents had violated the Fourth Amendment, which bars unreasonable searches and seizures, by arresting him without probable cause. He added that the arrest had violated his First Amendment rights because, he said, it was made in retaliation for exercising his right to free speech.

A federal district court judge in Denver allowed the case to proceed. A divided three-judge panel of the United States Court of Appeals for the 10th Circuit, also in Denver, reversed a part of that ruling.

The appeals court said the arrest was lawful and so did not violate the Fourth Amendment. Mr. Howards lied about not touching Mr. Cheney, a point he has since conceded, and that was reason enough to arrest him, the appeals court said.

But the court nonetheless allowed Mr. Howards’s claim for retaliatory arrest to proceed to trial, saying his First Amendment rights may have been violated, since the agents could have been “substantially motivated” to take action against him based on his remarks.

In urging the Supreme Court to hear the case, lawyers for the agents said the 10th Circuit’s decision “could impact the safety of the president and vice president.”

“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,” the brief said, “concerns over personal liability for making a probable cause arrest should not weigh into agents’ decisions in the field.”

The lower courts are divided over whether retaliatory arrest claims based on the First Amendment are permissible when there are otherwise sufficient grounds for the arrest.

The case, Reichle v. Howards, No. 11-262, will be heard by an eight-member court. Justice Elena Kagan indicated that she would not participate, presumably because she worked on the case as United States solicitor general.