As we noted in our earlier post, Secret Service agents Virgil Reichle and Dan Doyle reportedly were keeping an eye on the veep as he shook hands and spoke to people at an outdoor mall in Beaver Creek. Howards was present, too, and one agent reportedly overheard him tell someone via cell phone that he planned to ask the visiting politician "how many kids he's killed today." He then approached Cheney and told him his "policies in Iraq are disgusting," touching his shoulder in the process.
Afterward, Reichie quizzed Howards, who denied touching Cheney -- but Doyle had seen him do so and placed him under arrestWhen agent Reichle questioned him about the incident, Howards said he had not touched Cheney -- but after agent Doyle disagreed based on observing what took place, the agents arrested Howards. He was accused under Colorado state law, but the charges were later dismissed.
Afterward, Howards sued the agents, claiming that they'd infringed on his right to free speech, and while the 10th Circuit Court eventually ruled that the pair had justification to take him into custody, his lawsuit was allowed to go forward. This conclusion worked in Howards's favor, yet it contradicted decisions in other courts, as David Lane, Howards's attorney, explained to us.
"Hypothetically, a guy could make an anti-police speech to a crowd and then throw down a cigarette butt, and they could arrest him for littering when everyone knows the real reason he was being arrested was because they didn't like his speech," Lane said. "And various circuit courts have held that you don't get to go to court on a First Amendment claim if they had probable cause to arrest you for something else -- and they can always come up with something to arrest you for, completely ignoring the fact that the subjective intent of the police officer was to punish you for free speech.
"In this context, they claim Steve Howards made a false statement to the Secret Service -- that he denied touching Dick Cheney. We disputed that. But the 10th Circuit said that even though they could have arrested him for the false statement, he could go to trial on the First Amendment suit. And that's a split in the circuits. Only two circuits in the country have decided it that way, and four circuits have decided it the other way."This disagreement helps explain why the Supreme Court took the case. But Lane knew from the jump that victory wouldn't be easy. Justice Elena Kagan recused herself from considering the matter, meaning the best outcome, given the court's conservative slant, would likely be a four-four split, which would result in the lawsuit going to trial.
The Washington Post obviously sees this as a long shot, as indicated by its headline about yesterday's hearing: "Supreme Court appears to side with Secret Service agents who protected Cheney." The paper quotes Chief Justice John Roberts as saying he didn't want an agent to hesitate to take action because of a thought that "if I'm wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the vice president."
Justice Samuel Alito also seemed unpersuaded based on this question to Lane, who spoke for Howards in court: "Would you acknowledge that the Secret Service faces a different situation from ordinary police officers in conducting their daily activities?"
For more information about the case, including an account of what happened from Howards himself, listen to an NPR preview using the player here.
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More from our Shmuck of the Week archive: "Dick Cheney lawsuit: Are these Secret Service agents shmucks or are they just doing their job?"
