The Secret Service agents on the vice president's detail at the time said they had probable cause to arrest Steven Howards, who had an encounter with Cheney at a local mall during a public appearance. Howards approached Cheney to say that his policies in Iraq are disgusting and then touched the vice president's right shoulder.
Howards, who agents said lied during questioning after his encounter with Cheney, sued a group of Secret Service agents over his arrest, arguing that it was retaliation for voicing protected speech.
The Tenth Circuit Court of Appeals in Denver said Howards could sue two of the Secret Service agents involved in the arrest -- Virgil D. Gus Reichle Jr. and Dan Doyle -- for violating his First Amendment rights.
Not only will the decision... have a severe chilling effect on law enforcement generally, but could impact the safety of the president and vice president, the Supreme Court petition from two Secret Service agents said. Concerns over personal liability for making a probable cause arrest should not weigh into agents' decisions in the field.
Case: Does Probable Cause Bar Retaliatory Prosecution?
The Supreme Court's decision to take the case is related to a 2006 decision saying probable cause bars retaliatory prosecution claims, leaving open the question of retaliatory arrest claims. That decision has been interpreted differently in appeals courts around the country, with some extending the ruling to cover retaliatory arrest claims.
Howards encountered Cheney at a Beaver Creek, Colo., shopping center where he was taking his son to a piano recital. Cheney was shaking hands and taking pictures with members of the public. Instead of continuing to the recital, Howards waited behind to meet with Cheney.
Doyle, one of the agents, said he heard Howards remark during a cell phone conversation that he wanted to ask the vice president how many kids he's killed today. After Howards' encounter with Cheney, Doyle told Reichle to question the man about the comment he made while talking on his cell phone.
According to the agents, Howards was arrested after refusing to cooperate during questioning and lying about touching Cheney on his shoulder.
The Obama administration is backing the Secret Service agents, arguing that the Tenth Circuit wrongly denied them immunity from retaliation claims.
The court of appeals erred in subjecting [Reichle and Doyle] to potential damages liability for exercising their professional judgment about the need for an arrest to ensure the Vice President's safety, Solicitor General Donald Verrilli wrote in a friend-of-the-court brief.
Howards, in an interview with The Associated Press, said he wants the Justice Deparment to simply acknowledge that it's not OK to arrest people simply for disagreeing with government policies.