Supreme Court Rejects Cheney Critic's Lawsuit

WASHINGTON—The Supreme Court on Monday unanimously dismissed a lawsuit filed by a man who said Secret Service agents arrested him in retaliation for criticizing former Vice President Dick Cheney to his face.

Steven Howards had touched Mr. Cheney on the shoulder during the 2006 encounter in a Colorado shopping mall, then denied doing so when questioned by a Secret Service agent, Virgil D. "Gus" Reichle.

In an opinion by Justice Clarence Thomas, the court held that the agents couldn't be sued because they had probable cause to arrest Mr. Howards for lying to a federal agent. It was unclear whether the arrest violated Mr. Howards's right to free speech, the court said.

The court chose not to answer the underlying question of whether retaliatory arrests in such circumstances actually do violate the First Amendment, deciding only that the state of the law remains uncertain, and therefore law-enforcement officers can't be sued.

The vote was 8-0. Justice Elena Kagan, who was solicitor general during earlier stages of the case, recused herself.

Under Supreme Court precedent, federal officials can be sued in some circumstances for violating an individual's rights. But the justices haven't made it easy, granting "qualified immunity" to officials unless prior case law "clearly established" that they would be liable for their contested acts.

"This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards' arrest," Justice Thomas wrote.

Even if an officer held "animus" toward a suspect's speech, there still could be legitimate reason to arrest him, the court said. The suspect's remarks could provide "evidence of a crime or [suggest] a potential threat," Justice Thomas wrote.

The qualified-immunity principle "protects the balance between vindication of constitutional rights and government officials' performance of their duties by ensuring" that authorities don't hold back from fear of lawsuits, he continued.

Justices Ruth Bader Ginsburg and Stephen Breyer agreed with the result for narrower reasons, citing the "on the spot" decisions Secret Service officers must make.

In a different context, the qualified immunity doctrine has shielded several Bush administration officials from lawsuits over what plaintiffs contend were abuses of authority after the Sept. 11, 2001, terrorist attacks.

Last month a federal appeals court in San Francisco dismissed a lawsuit filed by inmate Jose Padilla—once classified as an enemy combatant and held in a military brig—against former Justice Department lawyer John Yoo. The suit alleged that Mr. Yoo told officials to violate Mr. Padilla's rights through coercive interrogation methods and harsh conditions of confinement. Mr. Yoo has said he stands by his opinion and has done nothing wrong.

Monday's case began in June 2006, when Mr. Howards was talking on his cellphone in a mall near Vail, Colo., and saw Mr. Cheney greeting shoppers.

"Mr. Howards stated into his cellphone, 'I'm going to ask him [Mr. Cheney] how many kids he's killed today,'" according to a lower-court account. A Secret Service agent heard the remark, and agents watched Mr. Howards approach the vice president and call his Iraq policy "disgusting."
"Thank you," Mr. Cheney replied.

"As he departed, Mr. Howards touched the vice president's right shoulder with his open hand," the court said, noting some dispute over whether it was an "open-handed pat" or a "slap." When questioned later by agents, Mr. Howards denied having touched the vice president, something he later admitted was untrue.

Mr. Howards was held for several hours by the local sheriff and charged with harassment. The case was later dropped.

The court also refused to review the bribery convictions of former HealthSouth Corp. Chairman Richard Scrushy and ex-Alabama Gov. Don Siegelman after their second appeal.

The defendants were convicted in 2006 based on allegations that Mr. Scrushy gave $500,000 in contributions to a campaign for a state lottery that Mr. Siegelman favored in exchange for a seat on a state health-care board. Mr. Scrushy contended that the case raised First Amendment concerns because he was convicted based on his financial contributions to a campaign.

[WSJ, Tuesday, A4, 6-5-2012]