WASHINGTON – The Supreme Court heard arguments Wednesday about whether it would let a man sue two Secret Service agents for arresting him after he spoke to Vice President Richard Cheney and touched him.
The man,Steven Howards,says the arrest was retaliation for expressing his First Amendment rights.
Some of the justices said that if Secret Service agents have to worry about being personally liable for making arrests it might distract them from protecting the president and vice president.
The case began June 16,2006,when a Secret Service agent arrested Howards for assaulting Cheney in a Beaver Creek,Colo.,mall.
A Secret Service agent overheard Howards saying into his cell phone that he planned to ask Cheney how many kids he killed today. Howards did tell Cheney that his “policies in Iraq are disgusting” and touched Cheney’s shoulder.
Howards left the area and came back carrying a bag. He declined to talk to Secret Service agent Virgil Reichle about whether he touched Cheney,and Reichle arrested him.
All of the charges were later dismissed. Howards filed a lawsuit against Reichle and Dan Doyle,another agent.
The two main issues for the court are whether Howards was arrested in retaliation for expressing his First Amendment rights. If an arrest was made only for that reason,Howards argues,the officers lacked probable cause.
The second issue is whether Secret Service agents should be granted immunity from lawsuits for making arrests in similar situations.
“The issue before the court today is whether Secret Service agents who are prepared to take a bullet for the vice president must also be prepared to take a retaliatory arrest lawsuit,even when they have probable cause to make an arrest,” Sean Gallagher,who represented the agents,said.
Gallagher said agents deserve qualified immunity from lawsuits when they make arrests and that case law about a similar issue – retaliatory prosecution – wasn’t “clearly established” when the incident occurred.
Justice Stephen G. Breyer was among the justices who said that if immunity is extended to every police officer,it could raise the likelihood of unjustified arrests.
Breyer said there are all sorts of things that officers don’t arrest people for,including jaywalking.
“You might – or I’m sure you didn’t,but I might sometimes have driven 60 miles an hour in a 55-mile zone,” Breyer said. “And I shouldn’t even admit this. I hope I get away with it.”
Sri Srinivasan,principal deputy solicitor general,who arguing for the federal government and the agents,said he would broaden the rule beyond Secret Service agents.
“I think what happens in a lot of these contexts is that it’s natural for these individuals to encounter First Amendment activity by the public,and it’s legitimate for them to react to First Amendment activity in deciding whether the circumstances warrant an arrest,” he said.
David Lane,arguing for Howards,said Secret Service agents don’t need this type of protection.
“We don’t need to have any rules that specifically pertain to the Secret Service when,to my knowledge,this court has had one Secret Service case in its entire history,and there are 15 appellate-reported federal decisions regarding retaliatory arrests,” he said.
Lane said his client needs to find out what the agents were thinking about at the time of the arrest.
The agents told lawyers that they arrested Howards because of his demeanor when he approached Cheney. The agents thought an assault might have occurred when Howards touched Cheney,Lane said.
Chief Justice John G. Roberts said Lane’s perspective on what went on in the agent’s mind seems very clear-cut.
“One thing about your analysis that concerns me is that you seem to have a very black and white view of what is going on in the officer’s mind: did you stop – did you arrest him because of retaliation,or was it legitimate security?” he said. “And I suspect that the people engaged in this type of thing have intuition.”
Some justices were concerned that if the case is allowed to continue that everyone who is arrested could say that the person who arrested them did so in retaliation.
The case is Reichle v. Howards. Justice Elena Kagan did not take part in the case. The court is likely to rule by June.
The court issued rulings in three cases.
Two dealt with whether defendants have the right to effective counsel when prosecutors offer plea bargains. In one case a defendant rejected a plea deal on his lawyer’s advice,and in the other the defendant was never told of a deal. Both plea bargains offered relatively low sentences. The court ruled in Lafler v. Cooper and Missouri v. Frye that the defendants’ rights to effective counsel were violated.
In Sackett v. EPA,the court ruled unanimously that an Idaho couple may sue the Environmental Protection Agency,which said the lot where they want to build a house is a wetland. Previously,there had been no appeal to an EPA ruling.