By James Vicini
WASHINGTON (Reuters) - The Supreme Court said on Monday it will decide whether a man arrested after touching then-Vice President Dick Cheney and criticizing his Iraq war policies can sue two Secret Service agents.
The justices agreed to hear an Obama administration-backed appeal by agents Virgil Reichle and Dan Doyle, who argue that they cannot be held personally liable for damages because their arrest of Steven Howards was supported by sufficient cause.
Howards claimed the agents retaliated against him for exercising his constitutionally protected free-speech rights. He claimed his arrest violated his rights because the agents lacked probable cause to believe he had committed a crime.
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 Reichle. The agent said Howards falsely denied touching Cheney. Doyle confirmed that he witnessed the incident and demonstrated how Howards had contact with Cheney.
The agents decided to arrest Howards, who was turned over to local law authorities and charged with harassment under state law. The charges were later dismissed.
Howards, of Colorado, then sued, claiming he had been arrested unlawfully and seeking financial damages. A federal judge ruled the lawsuit could proceed and that decision was later upheld by a federal court of appeals.
The Obama administration and attorneys for the agents warned of the consequences if such lawsuits were allowed, saying agents must be free to protect the president, vice president, presidential candidates and other political figures without unnecessary fear or threat of lawsuits.
"Secret Service agents on protective detail must make split-second decisions that could have life-or-death - and historic - consequences. It is vitally important, therefore, that Secret Service agents act without hesitation," attorneys for the agents said in their appeal to the Supreme Court.
David Lane, an attorney for Howards, said in a letter to the Supreme Court that he does not oppose high court review because appeals courts are divided and the "Constitution needs to be vindicated nationally in this matter."
The Supreme Court is expected to hear arguments in the case in the spring, with a ruling due by the end of June. Justice Elena Kagan did not take part in considering the case, presumably because she had a role in reviewing the lawsuit in her previous job as solicitor general.
The Supreme Court case is Reichle v. Howards, No. 11-262.
(Reporting by James Vicini, Editing by Kevin Drawbaugh and Paul Simao)