Secret Service agents on duty (photo: Jcs27)

A man who confronted then-Vice President Dick Cheney over the Iraq War and was arrested by Secret Service agents for “assaulting” Cheney had his appeal to the Supreme Court unanimously rejected. The man, Steve Howards, had filed a lawsuit asserting the agents had violated his First Amendment right to free speech by arresting him for his political views on the war.

The lawsuit brought by Howards centered on an incident that occurred on June 16. Fatalities in the Iraq War had just reached 2,500. He was taking his kids to piano camp in Beaver Creek, Colorado. And, according to Matthew Rothschild of The Progressive, who interviewed Howards about the incident, he could not in “good conscience” let an opportunity to confront Cheney pass by. He approached Cheney and said, “Your policies in Iraq are reprehensible.” After that, he turned around and walked away.

Moments later, he was walking through the mall with his son when a Secret Service agent appeared to ask if he had just assaulted the Vice President. Howards says he told the agent, “No, but I did tell Mr. Cheney the way I felt about the war in Iraq, and if Mr. Cheney wants to be shielded from public criticism, he should avoid public places. If exercising my constitutional rights to free speech is against the law, then you should arrest me.” Secret Service agent Virgil D. “Gus” Reichle Jr., who Howards specifically sued, proceeded to grab him and cuff his hands. He was told he would be charged with felony assault of the president (a charge that was later dropped).

Howards filed a suit alleging his First and Fourth Amendment rights were violated. A Court of Appeals found the agents enjoyed “qualified immunity” with respect to the claim of violating his Fourth Amendment rights, as he had “falsely denied touching the Vice President.” The Court did not, however, grant the agents “immunity” with respect to his First Amendment claim. The case was allowed to move onward to the Supreme Court.

Justice Clarence Thomas wrote the decision in Reichle v. Howards, which concluded:

…Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy.  In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge.  Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.  If rational, that assessment should not expose them to claims for civil damages. Cf. 18 U. S. C. §3056(d) (knowingly and willfully resisting federal law enforcement agent engaged in protective function is punishable by fine (up to $1,000) and imprisonment (up to one year)); §1751(e) (assaulting President or Vice President is a crime punishable by fine and imprisonment up to ten years). [emphasis added]

At issue here is whether confronting a government figure like then-Vice President Cheney should ever be considered a threat. In society, shouldn’t people be able to meet face-to-face with their leaders and criticize their agenda or policies if they want? Justice Ginsburg, who wrote a separate concurring decision, wrote that the agents were “duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security.”

On top of that, the facts of what happened were at issue in the lawsuit. Various officials disputed whether Howards touched Cheney. A Los Angeles Times report in February 2008 included a statement from a White House photographer who said “he saw Howards slap Cheney on the back.” However, Cheney’s personal aide remembered “Howards placing his hand on Cheney’s arm and shaking his hand.” And the Secret Service agents that arrested Howards for “assault” claimed” he had “lightly clapped Cheney on the shoulder; one demonstrated it as a shove; a fourth said Howards reached over several small children and struck Cheney.” (This all led Howards to suggest that Cheney should have testified.)

NPR further reported in March of this year that depositions from Secret Service agents “directly contradicted each other.” The agent, who made the arrest, Reichle, did not witness the confrontation. He testified that fellow agents had watched Howards make “unsolicited physical contact that was perceived in an aggressive and threatening nature. But two other agents who actually witnessed the encounter between Howards and Cheney did not support Reichle’s account of threatening behavior, and they said Reichle had asked them to change their reports to comport with Reichle’s version of events.” Also, “Daniel McLaughlin, one of the agents witnessed the encounter, said he did see Howards touch the vice president, but that there was no threatening or aggressive behavior. He testified that Reichle, in order to justify the arrest, had called him hours after the incident because he wanted McLaughlin to say there had been an assault. But McLaughlin refused to change his original report.”

That said, it may be good that the decision issued by the Supreme Court essentially carried “no precedential value,” according to Howards’ lawyer, David Lane: “It’s shockingly unusual to see a case to carry absolutely not one shred of precedential value. This is that case. They broke absolutely no legal ground while managing to duck every significant issue in the case, It did not set any real precedent on First Amendment law.”

It did, however, show that the Supreme Court is extremely hesitant to hold Secret Service agents accountable for civil liberties violations. Justice Ginsburg said if it had been only police officers who were involved and not Secret Service agents her decision might have been different.

Language in the decision, particularly the following section, showed how Secret Service agents were given cover:

An officer might bear animus toward the content of a suspect’s speech. But the officer may decide to arrest the suspect because his speech provides evidence of a crime or suggests a potential threat. See,  e.g., Wayte  v. United States, 470 U. S. 598, 612–613 (1985) (noting that letters of protest written to the Selective Service, in which the author expressed disagreement with the draft, “provided strong, perhaps conclusive evidence” of the nonregistrant’s intent not to comply—one of the elements of the offense” of willful failure to register for the draft). Like retaliatory prosecution cases, then, the connection between alleged animus and injury may be weakened in the arrest context by a police officer’s wholly legitimate consideration of speech. [emphasis added]

Given that the draft is no longer in force in the United States, it seems a bit off to cite an instance of protest against the draft as a case that supports granting Secret Service agents immunity. It also should be emphasized that Howards only said, “Your policies in Iraq are reprehensible.” If agents could get away with making that out to be threatening or even possibly threatening, there isn’t much in the way of politics that an agent could not argue seemed threatening if an agent wanted.

The decision fit in with the authoritarian trend in society to essentially criminalize protest. Months ago, activists in the Occupy movement were worried about HR 347, which the ACLU says made it “easier for the Secret Service to overuse or misuse the statute to arrest lawful protesters.” It gave law enforcement more discretion to enforce the law by “lowering the intent requirement.”

…Most crimes require the government to prove a certain state of mind. Under the original language of the law, you had to act “willfully and knowingly” when committing the crime. In short, you had to know your conduct was illegal. Under HR 347, you will simply need to act “knowingly,” which here would mean that you know you’re in a restricted area, but not necessarily that you’re committing a crime…

Notice, however, nothing about Howards’ intent comes up in the decision. The Supreme Court did not really care whether Howards intended to threaten Cheney. His presence, action and words, if interpreted by agents to be threatening, could be considered threatening and subject him to arrest and suppression of his First Amendment rights.

If this decision matters, it indicates the risk an average citizen takes when he or she is out and happens to notice a high-ranking government official is in town campaigning or meeting with residents of a city and then decides to take a moment to give that person a piece of his or her mind. It suggests what might happen if a single person from a protest group, like an Occupy group, plans to separate from the group and individually confront a public official, who has Secret Service protection. During that confrontation, if the agents wanted, he or she could easily be placed under arrest and would likely have no recourse for having his or her rights violated. All agents would have to do is keep their story straight and one could be jailed, fined and possibly even convicted of a crime.