The vice-president shoots a man in the face, and walks. A man touches the vice-president’s shoulder, and is arrested by Secret Service.
If this sounds in any way unfair to you, then you’ll be delighted to learn that the Supreme Court granted a writ of certiorari this morning in Reichle v. Howards, a qualified immunity case out of the Tenth Circuit Court of Appeals.
In 2006, Respondent Steven Howards spotted then-Vice President Dick Cheney at the Beaver Creek Mall in Beaver Creek, Colo. Howards, who was talking on his mobile phone at the time, told the person on the phone, "I'm going to ask him [the Vice President] how many kids he's killed today."
A Secret Service agent on Vice President Cheney's security detail overheard the comment, found it disturbing, and told other agents to be on the lookout for a man matching Howards' description.
Howards approached Vice President Cheney and informed him that his "policies in Iraq are disgusting." Cheney thanked Howards for his comment. As Cheney departed, Howards touched Cheney's right shoulder with his open hand. Two agents who were near Cheney at that time the touch occurred decided that a protective intelligence team should be sent to speak with Howards.
Agent Gus Reichle eventually approached Howards for questioning. Howards, who was searching for his son in the mall, refused to speak with the agent and attempted to resume the search. Agent Reichle stepped in front of Howards to prevent his departure and asked if Howards had assaulted the Vice President. 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 [the Vice President] avoid public places."
Based on Howards' "premeditation, the conversation on the cell phone, the fact that Mr. Howards would not talk to [him], the fact that he's walking around with a bag in his hand in an unmagged [no metal detector] area, and the fact that ... [Howards] had unsolicited contact [with Cheney], Agent Reichle decided to arrest Howards for assault on the Vice President. Three other agents, Dan Doyle, Adam Daniels, and Daniel McLaughlin assisted in restraining Howards during the arrest.
Howards was never prosecuted, and he sued the Secret Services agents for violating his First and Fourth Amendment rights. The agents asserted qualified immunity, but the Tenth Circuit Court of Appeals refused to apply qualified immunity to Howards' First Amendment claim.
Now the Supreme Court will decide if the Secret Service agents receive more protection for bad decisions than standard law enforcement officers. The government claimed in its appeal to the Court that "Secret Service agents on protective detail must make split-second decisions that could have life-or-death - and historic - consequences. It is vitally important, therefore, that Secret Service agents act without hesitation," reports Thomson Reuters News & Insight.
What do you think? Will SCOTUS side with Howards and the Tenth Circuit Court of Appeals or the Secret Service?
- Howards v. McLaughlin (FindLaw's CaseLaw)
- Supreme Court Orders, December 5, 2011 (Supreme Court)
- Looking Ahead: Supreme Court December Oral Arguments (FindLaw's Supreme Court blog)