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Supreme Court Sides With Secret Service Agents Over Cheney Confrontation Arrest

June 4, 2012 at 12:00 AM EDT
In a unanimous decision Monday, the Supreme Court ruled to shield two Secret Service agents from being sued on First Amendment grounds by a Colorado man arrested after he confronted Vice President Dick Cheney in 2006. Margaret Warner and The National Law Journal's Marcia Coyle discuss the outcome of the case.

GWEN IFILL: Now, The Supreme Court rules in a case involving free speech, security and a former vice president.

Margaret Warner has the story.

MARGARET WARNER: The court ruled unanimously today to shield two Secret Service agents from being sued on First Amendment grounds by a Colorado man arrested after he confronted then Vice President Dick Cheney in 2006.

The man argued he’d been arrested because of critical remarks he made about the Iraq war. State harassment charges against him were ultimately dropped. In an 8-0 decision, the high court overturned an appeals court ruling that had allowed the lawsuit to go forward.

To help us sort through this, we’re joined by Marcia Coyle of The National Law Journal.

Marcia, welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Margaret.

MARGARET WARNER: So, what happened in this encounter between Vice President Cheney and this man involved?

MARCIA COYLE: Three Secret Service agents with Mr. Cheney at the mall began watching Mr. Howards because one of them had overheard a cell phone conversation in which Mr. Howards said he was going to ask the vice president, how many kids did you kill today?

Mr. Howards eventually did get to Mr. Cheney. And, instead, he just told him that he thought the administration’s policies in Iraq were disgusting. The vice president thanked him. As the vice president turned to leave, Mr. Howards touched him on the shoulder.

There’s a dispute whether it was just an open handed pat, as Mr. Howards claims, or a push, as the Secret Service agents claim. The Secret Service agent, one of the three, then went and spoke with Mr. Howards, asked him, did you assault Mr. Cheney? He denied that. Asked him if he had touched Mr. Cheney. He — Mr. Howards falsely denied that.

MARGARET WARNER: So, the man, Mr. Howards, argue that he was arrested instead because of his views?


His claim, after the charges were dropped, was that he was arrested in retaliation for exercising his First Amendment speech rights.

MARGARET WARNER: And the — and law enforcement, the Secret Service, said?

MARCIA COYLE: They said that they had what is known as probable cause, more than a good reason, to arrest him. He had lied to federal officials.

MARGARET WARNER: So what was — Justice Clarence Thomas, writing for the majority, what was his ruling on why he agreed with the agents or to what degree he agreed with the agents?

MARCIA COYLE: First of all, he said, we’re not talking about a general First Amendment to be free from retaliation for one’s speech. He said what’s at issue here is a very specific First Amendment right, to be free from retaliatory arrest, an arrest that is otherwise supported by a good probable cause reason.

He said that, at the time this incident took effect, the Supreme Court had never recognized that kind of a right, and it also wasn’t clearly established throughout the land that such a right existed. And because the law was unclear, you could not hold the Secret Service agents responsible or make them go through a trial in which they faced monetary damages.

MARGARET WARNER: So, what is the practical effect of this ruling and how broadly does it apply? If, say, when — whether it’s Mitt Romney or President Obama or any other public officials out there, the Secret Service is not only involved in protecting him or her, but a lot of local law enforcement and state law enforcement gets drawn in.

Does this case change how they need to operate, what they can take into account?

MARCIA COYLE: Well, I think probably, first of all, it’s a very good decision for these two agents.

But there was a lot of unhappiness among state and local law enforcement officials, because they wanted a bright-line rule from the court. They wanted the court to say, this type of right doesn’t exist. Law enforcement. . .

MARGARET WARNER: A right to sue.

MARCIA COYLE: Right, for First Amendment retaliatory arrests, so that law enforcement officers would know, you know, when they would cross the line and this wasn’t a line that they could cross.

So the law is still unclear. The Supreme Court hasn’t recognized a right. All we know is that, in 2006, the right wasn’t clearly established.

MARGARET WARNER: So, Marcia, before we go, this is June, traditionally, the last day of the court. Fair to say we’re still awaiting some really big rulings.


We have about three weeks left in the month or almost four weeks left in the month. Everybody is watching obviously for the health care ruling, the challenge to the new federal health care law. There’s also a lot of interest in Arizona’s very tough immigration law and what that might mean for other states with similar laws.

But there are also a number of very important decisions. For example, there are two cases involving the constitutionality of imposing life without parole on juveniles under age 14 who commit murders. There’s a major challenge to the Federal Election Commission’s regulation of indecency on television, and also a First Amendment challenge involving the federal law known as the Stolen Valor Act.

MARGARET WARNER: And I understand that there’s also a case that would give the court an opportunity, perhaps, to touch on Citizens United?

MARCIA COYLE: The court on June 14 is going to take its first look at an appeal, a petition that’s been filed by three corporations who are challenging the Montana Supreme Court’s decision that its law banning corporate independent expenditures survives, despite the Supreme Court’s ruling in Citizens United. It’s going to be very interesting to watch how that plays out.

MARGARET WARNER: Especially in an election year.

MARCIA COYLE: Absolutely.

MARGARET WARNER: Marcia Coyle, thanks so much.

MARCIA COYLE: My pleasure.