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SCOTUS Signals Howards End in Qualified Immunity Appeal

By Robyn Hagan Cain on June 04, 2012 4:07 PM

Steven Howards can't sue the Secret Service agents who arrested him after he expressed his disapproval for the war in Iraq to then-Vice President Dick Cheney.

The Supreme Court overruled the Tenth Circuit Court of Appeals prior decision in the case on Monday, holding that the agents were entitled to qualified immunity because -- at the time Howards was arrested -- it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.

In 2006, Steven Howards saw 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.

It sounds like Howards technically committed battery when he touched Cheney's right shoulder, but there were probably hundreds of well-wishers at the mall that day who did the same thing in an attempt to shake hands with the veep. Howards, however, was arrested because Secret Service agents overheard him say that he disagreed with the administration's policies, (which is, by the way, protected speech).

The Tenth Circuit Court of Appeals ruled in 2011 that the agents were not entitled to qualified immunity for executing a retaliatory arrest based on Howards' comments. The Supreme Court disagreed.

In a unanimous opinion, the Court noted that it "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."

Which court got this one right? The Nine or the Tenth?

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