The Supreme Court heard arguments on whether U.S. Secret Service agents protecting then-Vice President Dick Cheney deserve protection against a lawsuit from a Colorado man who said they arrested him for criticizing Cheney about the Iraq war.
During an hourlong back-and-forth today, Chief Justice John Roberts and Justice Antonin Scalia suggested that, if law enforcement officers have probable cause to suspect a crime was committed, they should be shielded from claims that someone was detained in retaliation for speech protected by the First Amendment.
Justices Stephen Breyer and Sonia Sotomayor questioned whether such legal protection should be limited to Secret Service agents, U.S. marshals or other officers on protective duty.
The court was hearing an appeal by two Secret Service agents who were sued after arresting a man who walked up to Cheney at a shopping mall in Beaver Creek, Colorado in 2006. The man, Steven Howards, criticized the Iraq war and touched the vice president’s shoulder with his open hand.
A federal appeals court in Denver refused to throw out the case. In their high court appeal, the agents said they must make split-second decisions about whether someone presents a threat, and therefore should be protected from retaliatory arrest suits if they had valid reasons to suspect a criminal violation.
David Lane, a Denver lawyer for Howards, said the legal rule suggested by the agents would let officers trample an individual’s rights. Even a petty violation could be used as an excuse to arrest someone.
Lane asked during the argument: “Does a litterbug lose their right” to free speech?
Scalia said that “as long as there is good reason for an arrest,” a law enforcement officer’s point of view toward someone’s political statements doesn’t matter.
Breyer said across-the-board immunity against retaliatory arrest lawsuits involving any law enforcement officer “sounds very far-reaching,” saying the special nature of a Secret Service agent’s duty to protect the president may warrant special consideration.
During the argument, after Lane said the Secret Service has managed to do its job well without special legal safeguards, Scalia interjected that the agency has “lost a couple of presidents.”
The justices will make a decision in the case by June.
The case is Reichle v. Howards, 11-262.
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