WASHINGTON -- Secret Service agents who arrested a man after he disparaged and then touched Dick Cheney cannot be sued for violating the man's free speech rights, the Supreme Court ruled on Monday morning.
When then-Vice President Cheney visited a Colorado mall in 2006, Secret Service agent Dan Doyle overheard Steven Howards say that he was "going to ask [the vice president] how many kids he's killed today." Howards then got in line to meet Cheney and, when he reached the vice president, told him that his "policies in Iraq are disgusting." As Cheney moved along, Howards touched him on the shoulder, prompting the supervising Secret Service agent, Gus Reichle, to accost and arrest Howards for assault.
After the charges were dismissed, Howards sued the agents, claiming they arrested him in retaliation for exercising his First Amendment right to criticize Cheney. The U.S. Court of Appeals for the 10th Circuit ruled in Howards' favor.
The Supreme Court unanimously reversed the appeals court on Monday. Justice Clarence Thomas, writing for the court, rejected Howards' argument that the "general right to be free from retaliation for one's speech" put the Secret Service officers on notice that their behavior was unconstitutional, thereby opening them up to liability. The justices instead held that the Secret Service agents were entitled to immunity because no federal court had clearly established the "specific right to be free from a retaliatory arrest that is otherwise supported by probable cause."
If government officials are to be sued for violating the Constitution in doing their jobs, Thomas wrote, "[W]e have previously explained that the right allegedly violated must be established 'not as a broad general proposition' ... but in a 'particularized' sense so that the 'contours' of the right are clear to a reasonable official."
Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, issued a concurring opinion. "Were defendant ordinary law enforcement officers," Ginsburg wrote, she would have allowed Howards' suit to move forward. But because Agents Reichle and Doyle were Secret Service agents required to "make singularly swift, on the spot, decisions whether the safety of the person they are protecting is in jeopardy," Ginsburg held that the men "were duty bound to take the content of Howards' statement into account in determining whether he posed an immediate threat to the Vice President's physical security."
The case was Reichle v. Howards.