Justice Elena Kagan is not participating in the case.
At issue in Reichle v. Howards (11-262) is whether two Secret Service agents should be put on trial for money damages for allegedly arresting the Colorado man, Steven Howards, after his encounter with Mr. Cheney.
The agents arrested Mr. Howards for allegedly assaulting the vice president. He was taken to a local sheriff’s office and held for several hours before being released on bond. A local prosecutor charged him with harassment, but the charge was later dropped.
Howards filed a lawsuit against the Secret Service agents claiming that they used their authority to retaliate against him because of what he said.
Howards reportedly told Cheney that his policies in Iraq were “disgusting.” He then reached out and touched the vice president with his open hand.
Howards later characterized the contact as an open-handed pat. Federal agents put a more sinister cast on the encounter. According to the government’s brief, the contact was a push-off, a slap, a forceful touch, or a “strike that caused the vice president’s shoulder to dip.”
The agents moved to dismiss Howards’ lawsuit, but a federal judge and a federal appeals court have allowed it to move forward.
On Wednesday, a lawyer for the agents and a lawyer for the Obama administration both urged the Supreme Court to create a broad exemption from First Amendment liability for federal agents.