WASHINGTON - The Supreme Court has agreed to 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 Vice President Dick Cheney.
The justices said Monday they will review a federal appeals court decision to allow Steven Howards of Golden, Colo., to pursue his claim that the arrest violated his free speech rights.
A chance encounter with Cheney at a shopping center in Colorado allowed Howards to express his disgust with the Iraq war.
Howards also touched Cheney on the shoulder, then denied doing so under questioning.
Appellate judges in Denver said the inconsistency gave the agents reason to arrest Howards. But the judges also said Howards still could sue the agents for violating his rights.
Agents Virgil D. "Gus" Reichle Jr. and Dan Doyle have the support of the Obama administration in arguing they should be shielded from such suits when they have a good reason, or probable cause, to make an arrest.
The administration says that officers responsible for the 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.
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.
Howards, a 59-year-old environmental consultant, does not oppose high court review of the issue because courts are divided, his lawyer, David Lane, said in a letter to the court.
In a telephone interview, 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," Howards said.
Separately, Lane has made clear that he wants to question Cheney under oath as the person best able to recount what happened. Courts have so far not allowed it.
The arrest occurred in June 2006. A local prosecutor dropped state charges and Howards never faced federal charges.
He was taking his son to a piano recital when he saw Cheney emerge from a grocery store and begin talking to people and shaking hands at an outdoor shopping center. Howards, who lives in Golden, Colo., came to the attention of Cheney's security detail when Doyle heard him say into his cell phone that he was going to ask Cheney "how many kids he killed today."
While the son continued to the recital, Howards waited to meet the vice president. When it was his turn, Howards told Cheney his "policies in Iraq are disgusting," according to court papers. Then, as he departed, Howards touched 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, Reichle was asked to interview Howards because of the confrontation and the overheard cell phone conversation. Reichle testified that Howards at first refused to talk to him, then denied that he assaulted Cheney or even touched him.
According to Howards, the agent also became "visibly angry" when Howards again expressed his views about the war. Reichle said that the overheard cell phone conversation, the confrontation with Cheney, Howards' initial refusal to talk and other factors led him to arrest Howards for assault. He later was charged with harassment, but that charge was dismissed.
Howards filed his civil rights suit soon after.
The situation was made worse, he said, by the presence of his son, then 8. He witnessed his father get handcuffed and taken away. Howards asked what would happen to his son.
"He told me, `We'll contact social services,"' Howards said. "I wasn't in a position to go ballistic, but I can still hear him saying that in my head."