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In deciding whether to make an arrest, “these agents should not err always on the side of caution because they fear being sued,” Solicitor General Donald Verrilli Jr. said in court papers.

The Supreme Court previously has ruled out damages claims for retaliatory prosecutions when there was probable cause to bring criminal charges in the first place. Some appeals courts already have extended that rule to retaliatory arrests.

In a telephone interview, Mr. Howards said the government is trying to make it easier for law enforcement to arrest people. “I’d prefer if the Justice Department would simply acknowledge that it’s not OK to arrest people simply for disagreeing with government policies,” Mr. Howards said.

Separately, David Lane, Mr. Howards‘ lawyer, has made clear that he wants to question Mr. Cheney under oath as the person best able to recount what happened. Courts have so far not allowed it.

The case will be argued in the spring.

The case is Reichle and Doyle v. Howards, 11-262.