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Justices to hear dispute over free speech at Cheney event

By Bill Mears, CNN Supreme Court Producer
updated 1:05 PM EST, Mon December 5, 2011
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STORY HIGHLIGHTS
  • A war opponent wants to sue Secret Service agents who detained him
  • He was held after confronting Vice President Dick Cheney in a public area
  • A lower court said there was reason to arrest him, but his First Amendment rights were violated
  • The Justice Department says agents must be able to make fast decision without fear of lawsuits

Washington (CNN) -- The Supreme Court will debate the balance between free speech and security concerns of top government officials in a case involving a war opponent's chance encounter with then-Vice President Dick Cheney.

The justices on Monday accepted review of an appeal from U.S. Secret Service agents, who want to be shielded from a lawsuit filed by Steven Howards of Golden, Colorado. The man was arrested after confronting Cheney in a public area in 2006 -- making physical contact with the vice president-- and announcing his opposition to the Iraqi war.

The issue will be argued next spring with a ruling expected by June.

At issue is whether the agents deserve immunity as government employees. Believing they had probable cause, they detained the 59-year-old environmental consultant.

Howards claims his detention was in retaliation for his political views.

The incident occurred at Beaver Creek Mall in the Colorado mountain resort town of the same name. Howards was taking his 8-year-old son to a piano recital when he noticed Cheney coming out of a grocery store, accompanied by his security detail.

Howards used his cell phone to note the vice president was shaking hands with passers-by, and stated -- according to court records -- "I'm going to ask him (Cheney) how many kids he's killed today," an apparent reference to casualties in the Iraq conflict.

That remark was overheard by one of the agents. Howards let his son continue walking to the recital while he waited to speak with the vice president. The protester eventually told Cheney the administration's "policies in Iraq are disgusting," and then placed his open hand on Cheney's shoulder.

There is much dispute over whether that contact represented a "pat" as Howards later claimed, or a "shove" as some agents interpreted it. The touching alone did not lead to the man's immediate arrest, but he was later taken aside and questioned.

Howards at first refused to talk, then strongly denied touching Cheney. He also repeated his views on the war. "If you don't want other people sharing their opinions, you should have him (Cheney) avoid public places," he said, according to court records.

Agent Virgil "Gus" Reichle, who had been dispatched to do the questioning, became "visibly angry" at those remarks. He admitted later he had not overheard the cell phone conversation and not witnessed the shoulder contact, but had been briefed by fellow agents. Reichle was the detail's intelligence coordinator, and was dressed in plainclothes.

Howards was then arrested for assaulting the vice president, but he was never prosecuted for that or for a separate charge of harassment. Reichle and another agent were then sued for alleged civil rights violations, and a federal appeals court in Denver allowed the case to proceed.

The three-judge panel said Howard's initial denial of the touching was sufficient reason -- or "probable cause" -- for agents to arrest him, but also concluded, on balance, the man's First Amendment rights were violated in the process.

The Justice Department urged the high court to step in, saying protective details must often make lightning-fast judgments of life and death for top government officials. Those agents, said the Obama administration, should not err on the side of caution when handling potential threats for fear of being sued later.

The justices five years ago ruled in a separate appeal that an individual claiming to have been prosecuted in retaliation for exercising his rights must show that the officers did not have probable cause for their action. The issue here is whether that rule now applies to retaliatory arrests.

Justice Elena Kagan will not participate in this case, since she apparently worked on the government's legal strategy while serving as the Justice Department's solicitor general, before being nominated to the court in May 2010.

The case is Reichle v. Howards (11-262). It will be argued next spring with a ruling expected by June.

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