High court protects Secret Service agents

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By MARK SHERMAN, Associated Press

WASHINGTON (AP) — The Supreme Court ruled Monday that two Secret Service agents are shielded from a lawsuit filed by a man they arrested after a confrontation with then-Vice President Dick Cheney.

The 8-0 decision comes in a case that began with the arrest of Steven Howards following a chance encounter with Cheney at a shopping center in Colorado in 2006. Howards claimed he was arrested because he expressed his anti-war views.

The agents and the Obama administration asked the court for broad protection against claims of retaliatory arrests. The justices did not grant that wish.

But Justice Clarence Thomas said in his opinion for the court that the agents could not be sued in this instance because of uncertainty about the state of the law concerning such arrests.

The decision reversed a ruling by the 10th U.S. Circuit Court of Appeals in Denver to allow Howards' lawsuit to go forward.

Howards, of Golden, Colo., was detained by Cheney's security detail after he told Cheney of his opposition to the war in Iraq. Howards also touched Cheney on the shoulder, then denied doing so under questioning. The appeals court said the inconsistency gave the agents reason to arrest Howards.

Even so, the appeals court said Howards could sue the agents for violating his rights.

The main legal issue in the case was whether agents, and other law enforcement officers, should be shielded from rights lawsuits when they have a good reason, or probable cause, to make an arrest. The high court, in Hartman v. Moore, had previously ruled out damages claims for retaliatory prosecutions when there was probable cause to bring criminal charges in the first place. Unlike the Denver court, some appeals courts already have extended that rule to retaliatory arrests.

But the justices did not resolve that conflict Monday. "To be sure, we do not suggest that Hartman's rule in fact extends to arrests," Thomas said.

Instead, Thomas said the divergent rulings themselves are evidence that the law in this area is not settled. As a result, the agents cannot be held responsible for violating Howards' rights, even if the arrest had been made in retaliation for what he said.

David Lane, Howards' attorney, criticized the justices for failing to settle the issue. "It's shockingly unusual to see a case to carry absolutely not one shred of precedential value. This is that case. They broke absolutely no legal ground while managing to duck every significant issue in the case," Lane said.

Sean Gallagher, the lawyer for agents Virgil D. "Gus" Reichle Jr. and Dan Doyle, said it appears that officers might face liability only in the most egregious cases. "This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest," Gallagher said.

Justice Elena Kagan did not take part in the case.

The case is Reichle v. Howards, 10-262.

Associated Press writer P. Solomon Banda contributed to this report from Denver.

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