- Associated Press - Monday, December 5, 2011

The Supreme Court said Monday it will hear an appeal from Secret Service agents who say they should be shielded from a lawsuit over their arrest of a Colorado man who confronted then-Vice President Dick Cheney.

The justices will review a lower court decision to allow Steven Howards of Golden, Colo., to pursue his claim that the arrest violated his free-speech rights. Mr. Howards was detained by Mr. Cheney’s security detail in 2006 after he told Mr. Cheney of his opposition to the war in Iraq.

Mr. Howards also touched Mr. Cheney on the shoulder, then denied doing so under questioning. Appellate judges in Denver said the inconsistency gave the agents reason to arrest Mr. Howards.

Even so, the appeals court said Mr. Howards could sue the agents for violating his rights - an unusual twist that the agents and the Obama administration said conflicts with other appeals court decisions and previous high court rulings in similar cases.

Mr. Howards’ lawsuit grew out of a chance encounter with Mr. Cheney at a shopping center in the mountain resort of Beaver Creek.

The environmental consultant, now 59, was taking his older son to a piano recital when he saw Mr. Cheney emerge from a grocery store and begin talking to people and shaking hands. Mr. Howards came to the attention of Mr. Cheney’s security detail when an agent heard him say into his cellphone that he was going to ask Mr. Cheney “How many kids he killed today?”

While the son continued to the recital, Mr. Howards waited to meet the vice president. When it was his turn, Mr. Howards told Mr. Cheney his “policies in Iraq are disgusting,” according to court papers. Then, as he departed, Mr. Howards touched Mr. Cheney’s right shoulder with his open hand. Agents who witnessed the contact did not think it was serious enough to justify an arrest.

Still, agent Virgil D. “Gus” Reichle Jr. was asked to interview Mr. Howards because of the confrontation and the overheard cellphone conversation. Mr. Reichle testified that Mr. Howards at first refused to talk to him, then denied that he assaulted Mr. Cheney or even touched him.

According to Mr. Howards, the agent also became “visibly angry” when Mr. Howards again expressed his views about the war. The situation was made worse, he said, by the presence of his younger son, then 8. He witnessed his father get handcuffed and taken away. Mr. Howards asked what would happen to his son.

“He told me, ‘We’ll contact social services,’ ” Mr. Howards said.

Mr. Howards filed his civil rights suit soon after.

The legal issue in the case is whether agents, and other law enforcement officers, should be shielded from rights lawsuits when they have a good reason, or probable cause, to make an arrest.

The administration says that officers responsible for protecting the president and vice president have to make quick decisions about potential threats and often work in politically charged environments.

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.

Sean Gallagher, the agent’s Denver-based attorney, said that “the court should be very careful that it doesn’t develop a rule that inhibits the ability of the Secret Service to protect the president.”

The Supreme Court has previously 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.

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