Supreme Court holds Secret Service agents have immunity in arrest of Cheney critic

The Supreme Court ruled on Monday that a Colorado man who claimed he was retaliated against for expressing his political opposition toward then Vice President Dick Cheney cannot sue U.S. Secret Service agents who believed they had probable cause to arrest him.

In 2006, Steven Howards was arrested after telling Cheney, who was interacting with the public in a shopping mall while on vacation in Beaver Creek, Colo., that his “policies in Iraq are disgusting.” Howards then allegedly touched Cheney’s shoulder, walked away from the crowd and, moments later, was arrested by two Secret Service agents.

Howards, who denied touching the vice president, was charged with harassment, which was dropped. He then sued agents Gus Reichle and Dan Doyle, arguing that he was arrested in retaliation for criticizing the vice president, in violation of his First Amendment rights.

“If you can retaliate against someone for exercising their First Amendment rights … people are going to be afraid of to walk up to their politicians,” said John W. Whitehead, the founder and president of The Rutherford Institute, a Virginia-based civil liberties organization that filed a friend-of-the-court brief supporting Howards.

The court ruled that the Secret Service agents cannot be sued for a potential violation of Howards’ right to free speech because even if the arrest appeared to be in retaliation for his disparaging comments made toward Cheney, his false statement to the agents about touching Cheney provided probable cause to believe a crime had been committed.

“This Court has never recognized a First Amendment right to be free from retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest,” wrote Justice Clarence Thomas in the court’s majority opinion.

Focusing on the law as it existed at the time of Howards’ arrest, the court determined that in 2006, reasonable law enforcement officers would not have known that they could be sued for a First Amendment violation based on an arrest supported by probable cause.

Thus, the court said the federal agents had qualified immunity, which “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,” according to Thomas' opinion.

“It doesn’t matter, in my opinion, whether they had known they could be legally sued or not. [Law enforcement agents] took an oath to uphold the Constitution and part of that is the First Amendment,” said Whitehead. “All of those judges on the Supreme Court are protected by the Secret Service. They live in sort of a bubble and they don’t understand that there are people who are frustrated and want to say something to Dick Cheney. And [those people] have a right to do that.”

Sean R. Gallagher, the Secret Service agents’ attorney, said he and his clients are "happy" with the results.