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Free speech and 'touching' Dick Cheney

By MICHAEL KIRKLAND   |   Dec. 11, 2011 at 3:30 AM   |   Comments

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WASHINGTON, Dec. 11 (UPI) -- The U.S. Supreme Court says it will explore the twilight zone of the First Amendment in a case involving a man arrested after "touching" then Vice President Richard Cheney -- though court records suggest his main offense was being rude to a powerful official while expressing an opinion.

At the core of the case are two competing interests: the right of Americans to say what they damn well please about politics and war, pitted against the need for Secret Service agents to protect public figures in a crowd, often having to make snap judgments.

The case began June 16, 2006, when Steven Howards took his two young sons to hear a piano recital at the Beaver Creek Mall in Beaver Creek, Colo.

Cheney was also visiting the mall, along with Secret Service Protective Intelligence Coordinator Gus Reichle, and Secret Service Special Agents Dan Doyle, Adam Daniels and Daniel McLaughlin.

Reichle's duties included interviewing people suspected of violating the law. The security detail was working undercover that day, and did not carry radios.

After spotting Cheney coming out of a grocery store and talking to members of the public, Howards made a call on his cellphone, telling someone, "I'm going to ask him [Cheney] how many kids he's killed today," court records said.

Doyle overheard the remark and assumed Howards was referring to the Iraq war. The agent later said he thought it was not "healthy" and not "quite right" for someone to say that to the vice president, and admitted the comment "disturbed" him.

The agents then began to monitor Howards.

While a son continued to the piano recital, Howards waited for his turn to speak to Cheney. Howards approached the vice president and told him his "policies in Iraq are disgusting," court records said.

Cheney responded, "Thank you."

"As he departed, Mr. Howards touched the vice president's right shoulder with his open hand," an appeals court opinion said. "Although Agents Daniels, McLaughlin and Doyle continued to monitor Mr. Howards and witnessed the touch, none of them were close enough to hear Mr. Howards' statements to the vice president. Neither Agent Daniels nor Agent McLaughlin believed Mr. Howards' touch of the vice president provided probable cause for arrest."

After conferring, the Secret Service agents agreed someone had to talk with Howards, and as intelligence coordinator, Reichle was it.

The problem was, Reichle had neither overheard the cellphone call nor observed the interaction between Howards and Cheney, though Dolye briefed him on both.

Meanwhile, Howards and his son attended the piano recital. Howards' wife then asked him to take their younger son back to their condo.

Before they left the mall, the younger son "wandered off," and while Howards was looking for the boy, Reichle confronted Howards.

Reichle was "dressed in civilian clothes. Special Agents Daniels, Doyle and McLaughlin remained nearby in a counter-surveillance role," the appeals court said. "Agent Reichle presented his Secret Service badge, identified himself, and requested to speak with Mr. Howards. Mr. Howards refused to speak with the agent and attempted to resume the search for his son. Agent Reichle stepped in front of Mr. Howards to prevent his departure and asked Mr. Howards if he had assaulted the vice president. Mr. Howards pointed his finger at Agent Reichle, denied assaulting the vice president and informed the agent that 'If you don't want other people sharing their opinions, you should have him [Cheney] avoid public places.' ... Agent Reichle became 'visibly angry' when Mr. Howards shared his opinion on the Iraq war. Mr. Howards again attempted to resume his search for his son."

But the tenacious Reichle asked Howards whether he had "touched" Cheney, and Howards conceded he lied by responding he hadn't.

When the surrounding agents said Howards had indeed touched Cheney, "Agent Reichle decided to arrest Mr. Howards for assault on the vice president. Agents Doyle, Daniels and McLaughlin assisted in restraining Mr. Howards during the arrest."

Howards was turned over to the Eagle County Sheriff's Department and detained for hours, finally being charged with harassment in violation of state law. However, the state prosecutor dropped the charge and no federal charges were ever filed.

Then the inevitable -- Howards filed suit against Reichle, Doyle, Daniels and McLaughlin, who by this time were probably wishing they hadn't been such hard-asses.

The suit targeted the agents in both their official and individual capacities, alleging they violated his Fourth Amendment rights by an unlawful search and seizure, and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech.

Before the trial could begin, the agents asked for summary judgment, saying they were protected by qualified immunity. After a hearing, a federal judge said no. The agents filed an "interlocutory" appeal -- an appeal before a final judgment -- to the federal appeals court in Denver.

An appeals court panel ruled 2-1 that Howards could not pursue his Fourth Amendment claim because his lie about touching Cheney gave the agents probable cause to make an arrest.

However, Howards could pursue his First Amendment claim, the panel majority said.

Citing U.S. Supreme Court precedent, the majority said even if an official's action would be routine under other circumstances, "when retaliation against constitutionally protected speech is the but-for cause of that action, this retaliation is actionable and 'subject to recovery.'"

Reichle and Doyle asked the Supreme Court for review of the case, which was granted last week.

In their petition to the high court, lawyers for the two agents asked the justices to decide whether "the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether ... probable cause bars such a claim, including under [the Supreme Court's 2006 decision in] Hartman vs. Moore." The petition points out that a number of U.S. appeals courts have ruled such claims are barred under Hartman, even if the panel in the Howards case ruled otherwise.

The petition also asked the justices to decide whether 2006's "Hartman does not apply to First Amendment retaliatory arrest claims, and [whether] the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the president and vice president."

A handful of states filed friend-of-the-court briefs in support of the Secret Service agents. So has the Obama administration.

The administration brief filed by the U.S. Solicitor General's Office said: "The United States Secret Service is a federal agency required by statute to protect the president and vice president (and, if applicable, the president-elect and vice president-elect) and authorized by statute to protect other listed persons, including certain political candidates and foreign dignitaries. ... The [appeals court panel's] decision imposes potential constitutional-tort liability on agents performing those vital duties. The decision also more generally affects the standards applicable to other law-enforcement agents carrying out arrests for federal crimes."

In other words, the panel's decision burdens Secret Service agents and other federal officials honestly trying to do their jobs with the threat of lawsuits.

The panel's decision "creates especially difficult problems for Secret Service agents, who frequently operate in politically charged environments," the administration petition said.

Besides protecting officeholders, agents "sometimes provide security at 'special events of national significance,' ... which can include political activities like major-party presidential nominating conventions. In all of these situations, there is a high likelihood that the circumstances surrounding a potential arrest will involve expressive activity."

Agents "should not err always on the side of caution because they fear being sued," the petition said.

The Supreme Court will hear the case later this term, with a decision to follow. Justice Elena Kagan, who at one point in the case was U.S. solicitor general, has withdrawn from the case.

The Cheney-Colorado incident in 2006 may ring some bells for people who remember an incident in Charleston, W.Va, in 2004

President George W. Bush was giving a Fourth of July speech at the state Capitol.

A Texas couple, Jeff and Nicole Rank, were registered Republicans who had moved to West Virginia and were visiting in Charleston. They decided to hear the speech. They weren't Bush fans.

Both wore homemade T-shirts with wording that criticized the president and refused to cover the wording for the cameras. Two staffers for U.S. Rep. Shelley Moore Capito approached the couple and told them they'd have to take off the T-shirts or leave, The Charleston Gazette reported. Both refused.

Though they had passes for the event -- attendees were supposed to be carefully controlled -- the Ranks were handcuffed, arrested by city police for "trespassing" and led from the event to the strains of "America the Beautiful."

Later, Nicole Rank was suspended from her federal job.

The city eventually dropped the charges, apologized and said the Secret Service had instructed officers to make the arrests.

The Ranks filed suit against a White House advance official and the Secret Service with the help of the American Civil Liberties Union, saying their First Amendment rights were violated. Eventually, the Ranks settled the suit for $80,000 from the federal government.

"We have thoroughly not enjoyed our 15 minutes [of fame]. It's cost us personally and professionally," Jeff Rank later told the Gazette. "The thing that we're fighting for, the Constitution, the Bill of Rights, is just too important to this country to lay down on something like this."

© 2011 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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