Under the U.S. Supreme Court: Lesson learned -- don't touch a politician

By MICHAEL KIRKLAND  |  June 17, 2012 at 3:30 AM
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WASHINGTON, June 17 (UPI) -- The U.S. Supreme Court disposed of the Dick Cheney "touching" case earlier this month, but its unsettling lessons will linger for some time.

Many Americans may share the fantasy of walking up to a powerful official and telling him exactly what they think of him, or asking, "What the hell do you think you're doing?"

But though theoretically Americans have a First Amendment right to speak their mind, the Secret Service has no apparent sense of humor, and though they can perform heroically, some agents have no apparent regard for the finer points of constitutional protections.

A case in point occurred Charleston, W.Va, in the lead-up to the 2004 election. 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, but 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 staff members working 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 as an excuse said the Secret Service had instructed police 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 had been 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."

The Cheney "touching" case took place in a much smaller arena.

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. Then a series of events led to Howards' arrest. Court records suggest his main offense was being rude.

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.

Howards waited for his turn to speak to Cheney, approached the vice president and told him his "policies in Iraq are disgusting," court records said. Cheney responded by saying, "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 took the responsibility. However, Reichle had neither overheard the cellphone call nor observed the interaction between Howards and Cheney, though Doyle briefed him on both.

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

The dry court account of the confrontation doesn't quite hide its comic quality.

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

When the surrounding agents told him 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 ever were filed.

Then Howards filed suit against Reichle, Doyle, Daniels and McLaughlin 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, the panel majority said, Howards could pursue his First Amendment claim.

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.

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 pointed out 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 and the Obama administration filed friend-of-the-court briefs in support of the Secret Service agents.

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 administration argued the appeals court panel's decision might prevent Secret Service agents and other federal officials honestly trying to do their jobs with the threat of lawsuits.

When the Supreme Court heard the case last March, Sean Gallagher, the attorney for the agents, told the justices: "U.S. Secret Service agents acting in their protective capacity should be entitled to a qualified immunity when they make an arrest with probable cause. Indeed, to view it any other way would be to subject Secret Service agents to the potential of retaliatory arrest claims based upon a mere allegation of retaliatory animus, something this [Supreme] Court has steadfastly refused to do, and for good reason: Because retaliatory animus is easy to allege and hard to disprove."

Much of the argument dealt with whether there was probable cause to detain Howards in the first place.

David Lane, Howards' attorney, told the high court, "Mr. Howards by all accounts walked over to the Vice President, looked at him and said: 'I just want you to know I think your policies in Iraq are disgusting.' There is a dispute at that point whether he gently patted him on the arm -- not a crime -- or tapped him on the shoulder -- again, not a crime."

From the bench Justice Antonin Scalia repeatedly insisted the "touch" was an assault. "I mean, just don't tell me that it's ... not a crime. It ... is an assault if it's an unwanted touching," Scalia said.

Lane responded that Howards wasn't charged with assault. "Under Colorado law," he said, "he was charged with harassment."

The Supreme Court ruled in the case earlier this month. The decision was a slam dunk for the Secret Service agents.

Writing for a united court, Justice Clarence Thomas said, "This case requires us to decide whether two federal law enforcement agents are immune from suit for allegedly arresting a suspect in retaliation for his political speech, when the agents had probable cause to arrest the suspect for committing a federal crime," the touch and the lie about it.

Thomas said the agents had immunity, though he took a serpentine path to arrive at that conclusion.

The agents "are entitled to qualified immunity because, at the time of Howards' arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation." Like the petition, Thomas cited Hartman.

"The 'clearly established' standard is not satisfied here," the opinion said. "This [Supreme] Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards' arrest."

At the time, "Hartman's impact on the [Denver-based U.S. Appeals Court for the] 10th Circuit's precedent was far from clear. Although Hartman's facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests."

Thomas acknowledged that Hartman "was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly" and "a reasonable official could have interpreted Hartman's rationale to apply to retaliatory arrests."

But "decisions from other circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards' arrest that Hartman extended to retaliatory arrests."

The decision reversed the appeals court and sent the case back down for a rehearing and new appeals court ruling in line with the Supreme Court opinion.

Justice Elena Kagan, who was solicitor general during part of the case, did not participate at the Supreme Court level.

Justice Ruth Bader Ginsburg, joined by fellow liberal Justice Stephen Breyer, wrote separately to concur in the judgment -- with some reservations. The Secret Service agents deserved more leeway that other law enforcement officers. The agents, she said, "must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy."

She pointed out that all this was pretty serious stuff. Knowingly and willfully resisting federal law enforcement agents engaged in protective function is punishable by a fine up to $1,000 and imprisonment up to one year; assaulting the president or vice president is a crime punishable by fine and imprisonment up to 10 years.

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