STEVE INSKEEP, HOST:
The caseload at the U.S. Supreme Court is digging into some of the bigger political controversies of recent years. President Obama's health care law comes before the court in a few days. And today comes a case involving former Vice President, Dick Cheney.
Back in 2006, a Colorado man told Cheney that the Bush administration's policies in Iraq were, quote, "disgusting." Environmental consultant Steven Howards was arrested and is now he is suing the Secret Service. He contends his arrest violated his First Amendment right to freedom of expression. Here's NPR legal affairs correspondent, Nina Totenberg.
NINA TOTENBERG, BYLINE: What makes this case doubly fascinating is the fact that even the Secret Service agents involved in the arrest do not agree on what happened. The agents who actually saw the encounter testified they saw no threatening action. The agent who made the arrest accused the others of covering up, and some of his fellow agents have testified that the arresting agent asked them to change their reports to match his.
Most of what happened that day is no longer in dispute. Steven Howards had just dropped off his eight year old son at a piano lesson in Beaver Creek, Colorado, when he saw Vice President Cheney standing in the open shopping area near the ski lift shaking hands.
STEVEN HOWARDS: I walked up to him and I told him that I thought his policies in Iraq were disgusting, and I walked away, and then I left and picked up my child at piano camp.
TOTENBERG: About ten minutes later, Howards was back in the area, but had become separated from his son. The agents said they saw him looking anxious and didn't know at the time that he had lost track of his son.
Agent Virgil Reichle of the Denver office went over to Howards and asked him if he would answer a few questions about his conversation with Cheney. Howards said no, that if the agent didn't want people accosting Cheney to talk to him, he should keep Cheney out of public places.
HOWARDS: The secret service agent got furious. A few minutes later I found myself with my hands handcuffed behind my back and I was being charged with felony assault of the vice president.
TOTENBERG: Though Howards initially told agent Reichle that he had not touched the vice president, after reflecting on the encounter, he now concedes that he was wrong. He says he patted the vice president on the shoulder, meaning, no harm.
The Secret Service has since variously described Howards as having patted Cheney with an open palm, or hit him on the shoulder with an open palm, to which Howards responds:
HOWARDS: If there was some threat to the vice president, I would have been head down in the pavement when the interaction occurred, not arrested ten minutes later.
TOTENBERG: In any event, Howards was taken to the Eagle County jail in handcuffs and held there until his wife bailed him out. A week later the local DA dropped the charges. But Howards wasn't dropping the matter.
HOWARDS: The more I thought about it, the madder I got. My picture was in the paper. I was depicted as a criminal, my name was tarnished. The issue is that this is retaliation for what I said to the vice president. It wasn't based upon any threat or any other impropriety.
TOTENBERG: So he sued the Secret Service agents, contending he was engaged in his constitutionally protected right to express himself to an elected official, and that the arrest was retaliation. The Denver-based federal appeals court ruled that the agents had sufficient grounds for taking Howards into custody, but the court also ruled that there was sufficient evidence to allow Howards to continue with his claim of retaliation.
Indeed, in depositions, the Secret Service agents directly contradicted each other, with arresting agent Reichle contending that the other agents had given him a bum steer and were now covering their tracks. And other agents, who had actually witnessed the encounter with Cheney, testifying that there had been no threatening behavior and that Reichle had asked them to change their reports to support his account of what happened.
Nationwide, the courts are divided on whether law enforcement officers can be sued for retaliatory arrest when they arguably had grounds for arrest in the first place. In this case, the agents, backed by the Obama administration, are contending that in cases involving protection of the president and vice president in particular, law enforcement officers must make split second decisions, and that their protective actions would be chilled if they could be sued for making the wrong call. They want immunity from lawsuits.
Howards counters that the essence of a the American democracy is the ability of its citizens to express their opinions to elected officials, and that if police officers cannot be held accountable for retaliatory arrests, the rights of citizens will be greatly inhibited.
Nina Totenberg, NPR News, Washington.
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