21 March 2012
The rights and rules of confronting our leaders
Reichle v. Howards was argued before the Supreme Court today. The justices have a choice between establishing a degree of legal immunity for Secret Service agents and clarifying citizens' right to confront and criticize their political representatives. Steven Howards sued Secret Service agents who arrested him in 2006 after he confronted and castigated then-Vice President Cheney, berating him over the Iraq war, during a personal appearance by Cheney. He claims that the agents, by arresting him, violated his free speech rights. His case is complicated by the fact that Howards crossed a common-sense line by putting his hand on Cheney's shoulder. While it appears unreasonable for Reichle, the Secret Service man, to claim that this gesture constituted an "assault" on the Vice President, people should know better than to make a move that could be construed by agents trained for hair-trigger vigilance as something more than a violation of an official's personal space. I wouldn't blame an agent for moving Howards away for doing that, but Howards claims that his arrest was really driven by the agents' disapproval of his remarks about Iraq. The Obama administration, represented by the deputy Solicitor General, seeks immunity from retaliatory lawsuits for the Secret Service because the government doesn't want its bodyguards deterred from snap-judgment, hair-triggered, life-saving decisions due to fear of being sued. The problem with that argument in this particular case is that no hair-trigger judgment was made. The agents let Howards walk away after confronting Cheney, and only arrested him sometime later that day. Reportedly, or so Howards' lawyer argues, some agents still question whether Howards did anything to deserve arrest. It seems likely that the arresting agent jumped to a conclusion regarding the potential threat Howards posed to Cheney. The real question may have less to do with the snap action an agent takes on the assumption that his charge is in immediate danger than it does with the steps he takes after inferring a threat from confrontational conduct. It may be wise to grant agents immunity in the first instance, in which case Howards would only have himself to blame for being dumb enough to lay a hand on the Vice President. In the latter case, which describes Howards' actual circumstance, immunity may not be justified. Remember the name of this case; the decision ought to be interesting, to say the least.