By James Vicini
WASHINGTON (Reuters) - The Supreme Court ruled on Monday that Secret Service agents have immunity from a lawsuit by a Colorado man arrested after he confronted then-Vice President Dick Cheney and criticized his Iraq war policies.
The high court unanimously handed a victory to the Obama administration and the two agents, ruling they could not be held personally liable for damages in the suit alleging they arrested the man in retaliation for his political speech. The agents had sufficient cause to arrest him, the court said.
The administration and the attorney for the agents had argued that allowing such lawsuits would cause agents to be hesitant in making split-second decisions in life-or-death situations while protecting the president or vice president.
The Colorado man, Steven Howards, claimed in his lawsuit that agents Virgil Reichle and Dan Doyle retaliated against him for exercising his constitutionally protected free-speech rights under the First Amendment.
Howards was arrested after he approached Cheney during a June 16, 2006 visit to a mall in Beaver Creek, Colorado. When Howards learned Cheney was at the mall, a Secret Service agent said he overheard Howards say into his cell phone, "I'm going to ask him (Cheney) how many kids he's killed today."
Howards waited to meet with Cheney, who was greeting people, shaking hands and posing for photographs. He then confronted Cheney and told him his "policies in Iraq are disgusting."
As Howards departed, he touched Cheney's right shoulder with his open hand.
Howards denied assaulting Cheney when questioned by one of the agents. The other agent confirmed he had witnessed the incident and demonstrated how Howards had contact with Cheney.
The two agents decided to arrest Howards, who was turned over to local law enforcement authorities and charged with harassment under state law. The charges were later dismissed.
Howards then sued, claiming he had been arrested unlawfully and seeking money damages from the two agents.
The Supreme Court in an opinion by Justice Clarence Thomas overturned a ruling by a U.S. appeals court that allowed the lawsuit to proceed on the grounds that the remarks by Howards could have motivated the agents to take action against him.
Thomas wrote in the opinion that government officials generally are shielded from damages and civil liability unless they violated a clearly established legal or constitutional right.
He said the court has never recognized a First Amendment right to be free from a retaliatory arrest when the arrest is supported by sufficient or probable cause. "Nor was such a right otherwise clearly established at the time of Howards' arrest," Thomas wrote.
Justices Ruth Bader Ginsburg, joined by Justice Stephen Breyer, issued a separate opinion agreeing with the judgment.
If the defendants had been ordinary law enforcement officers, Ginsburg said she would hold they were not entitled to immunity. But officers assigned to protect public officials must make swift decisions on whether the safety of the person was in jeopardy, she said.
"Whatever the views of Secret Service agents Reichle and Doyle on the administration's policies in Iraq, they were duty bound to take the content of Howards' statements into account in determining whether he posed an immediate threat to the vice president's physical security," she wrote.
The Supreme Court agreed to decide the case after appeals courts had issued conflicting rulings on the issue.
The case was decided by eight of the nine Supreme Court members. Justice Elena Kagan did not participate apparently because she worked on the case in her previous job as U.S. Solicitor General.
The Supreme Court case is Reichle v. Howards, No. 11-262.
(Editing by Eric Walsh)