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Secret Service Gets Qualified Immunity for Retaliatory Arrest

By Robyn Hagan Cain on June 04, 2012 | Last updated on March 21, 2019

The Supreme Court ruled on Monday that Secret Service agents were entitled to qualified immunity for arresting a man who expressed his disdain for Bush-era war policies to Vice President Dick Cheney.

The Court, in a unanimous opinion, concluded that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation at the time the man was arrested.

In 2006, Steven Howards spotted then-Vice President Dick Cheney at the Beaver Creek Mall in Beaver Creek, Colo. Howards, who was talking on his mobile phone at the time, told the person on the phone, "I'm going to ask him [the Vice President] how many kids he's killed today." A Secret Service agent on Vice President Cheney's security detail overheard the comment, found it disturbing, and told other agents to be on the lookout for a man matching Howards' description.

Howards approached Vice President Cheney and informed him that his "policies in Iraq are disgusting." Cheney thanked Howards for his comment. As Cheney departed, Howards touched Cheney's right shoulder with his open hand. Two agents who were near Cheney decided that a protective intelligence team should be sent to speak with Howards.

Agent Gus Reichle eventually approached Howards, and asked if he had assaulted the Vice President. Howards pointed his finger at Agent Reichle, denied assaulting the Vice President, and informed the agent that "if you don't want other people sharing their opinions, you should have him [the Vice President] avoid public places." Agent Reichle decided to arrest Howards for assault on the Vice President. Three other agents, Dan Doyle, Adam Daniels, and Daniel McLaughlin assisted in restraining Howards during the arrest.

Howards was never prosecuted, and he sued the Secret Services agents for violating his First and Fourth Amendment rights. Last year, the Tenth Circuit Court of Appeals ruled that the agents were not entitled to qualified immunity for executing a retaliatory arrest. The Supreme Court reversed that decision.

Writing for the Court, Justice Clarence Thomas explained that qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. Justice Thomas noted, "The 'clearly established' standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards' arrest."

Justices Ruth Bader Ginsburg, joined by Justice Stephen Breyer, issued a concurring opinion in which she wrote that the agents were "duty bound to take the content of Howards' statements into account in determining whether he posed an immediate threat," reports Reuters. Justice Ginsburg, however, clarified that if the agents had been "ordinary law enforcement officers," Hartman v. Moore would preclude qualified immunity.

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