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March 21, 2012 6:48 AM   Subscribe

Arrested for speaking out! When does an "open-palm pat on the shoulder" become assault? When it's the Vice President's shoulder, that's when. The Supreme Court of the United States (previously) will today hear arguments in the matter of Reichle v. Howards.

The brief facts are these: at a public event in 2006, Steven Howards tells then-Vice President Cheney that his policies are "disgusting", and touches the Vice President's shoulder with his open palm. Ten minutes later, the Vice President's Secret Services detail then arrests Howards for assault.

Charges are dropped, but Howards sues the arresting agent and other members of the security detail for violating his civil rights under the First and Fourth Amendments to the U.S. Constitution. On hearing the Defendants' Motion for Summary Judgment, The Trial Court found that there were factual disputes which precluded the application of the qualified immunity defense, and that the defendants were not entitled to summary judgment as a matter of law.

The defendants appealed the Trial Court's motion, and the appellate court reversed the lower Court's decision in part (with respect to the Fourth Amendment claims, and to the claims against certain defendants) and affirmed it in part (with respect to the first amendment claims against Defendant Virgil Reichl Jr., the arresting agent of the security detail.) This decision was itself appealed to the Supreme Court of the United States, which will hear arguments on it today.
posted by gauche (40 comments total) 5 users marked this as a favorite

 
The question being considered by the Supreme Court is not whether Howard's acts constituted assault, but rather:
(1) Whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) whether the court below erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.
posted by monju_bosatsu at 6:52 AM on March 21, 2012 [4 favorites]


(Not intended as a criticism of the very fine post, btw. Just wanted try and avoid the derail into the assault question, when the real issue is probably cause/retaliation/immunity).
posted by monju_bosatsu at 6:53 AM on March 21, 2012


Essentially the argument as I understand it boils down to 'We should give immunity from wrongful arrest lawsuits to the Secret Service because the last thing we want is them hesitating while performing their duties.'
posted by shakespeherian at 6:55 AM on March 21, 2012


...and touches the Vice President's shoulder with his open palm. Ten minutes later, the Vice President's Secret Services detail then arrests Howards for assault.

He should consider himself lucky considering what usually happens after direct physical contact with Dick Cheney.
posted by griphus at 7:01 AM on March 21, 2012 [13 favorites]


Essentially the argument as I understand it boils down to 'We should give immunity from wrongful arrest lawsuits to the Secret Service because the last thing we want is them hesitating while performing their duties.'

Well, not blanket immunity, just immunity where probable cause exists and the Fourth Amendment is otherwise complied with (and presumably also in furtherance of their duties). They aren't arguing that the Secret Service should have carte blanche to arrest whomever, wherever, whenever.

It's a tricky question because there's nothing magic about the Secret Service. They aren't created by the Constitution, nor have they even always been around, so there isn't some long tradition of special treatment to fall back on. If immunity applies to the Secret Service then it's hard to see why it couldn't be extended to the FBI, the TSA, etc. "But the President is special" is not a very persuasive argument to me, but I don't know how the Court would see it.
posted by jedicus at 7:03 AM on March 21, 2012 [4 favorites]


I understand the argument, but make the wrongful arrest immunity only apply during those split-second decisions and not a significant time later, which is what seems to have happened here.
posted by ouchitburns at 7:03 AM on March 21, 2012 [9 favorites]


...and touches the Vice President's shoulder with his open palm. Ten minutes later, the Vice President's Secret Services detail then arrests Howards for assault.

That ten-minute gap is the part that concerns me in this case. I mean...If the SS really believed Howards was assaulting the VP, shouldn't they have immediately intervened as soon as his hand touched Cheney?

That ten-minute lag between the act and the arrest seems a bit more "how dare he touch my royal countenance" rather than "OMG, he's attacking the VP!!!"
posted by Thorzdad at 7:05 AM on March 21, 2012 [24 favorites]


I touched Newt once, or rather he placed a hand on my sweaty lower back. I have a photo to prove it. I guess he should be arrested, though not for assault, but because he placed an evil witchdoctor curse on me with his wrinkled old paw.
posted by item at 7:07 AM on March 21, 2012 [2 favorites]


Thorzad, I heard an interview on NPR this morning where Howards makes that exact point. If the Secret Service had deemed him to be a threat to Cheney, he would have ended up on the ground immediately, not ten minutes later.
posted by emelenjr at 7:08 AM on March 21, 2012


I guess he should be arrested, though not for assault, but because he placed an evil witchdoctor curse on me with his wrinkled old paw.

Dummmmbbbberrrrr...
posted by griphus at 7:09 AM on March 21, 2012


>We should give immunity from wrongful arrest lawsuits to the Secret Service because the last thing we want is them hesitating while performing their duties.

The problem with that argument is that they didn't hesitate while performing their duties. The Agents on the scene during the encounter correctly realized that Howards represented no threat and took no action.

He was arrested later, when the Vice President was nowhere in sight, after apparently saying things that annoyed the arresting agent.

Notably, the agents have contradicted each other in testimony, with the agents on the scene saying they saw no threat, the arresting agent claiming they sent him after Howard and are now throwing him under the bus, and the on-scene agents claiming that the arresting agent asked them to change their reports to match his story.

That's why, while I understand the need for the Secret Service to be able to act in the moment without fearing being sued if they make the wrong call, there's also a limit beyond which you've clearly entered the realm of obnoxious overuse of your authority, and that clearly shouldn't be protected.
posted by Naberius at 7:11 AM on March 21, 2012 [8 favorites]


I remember reading about this a long time ago. What's funny about this is the fact the two most intriguing aspects of the case aren't what has since perpetuated.

1) The Secret Service agent in the deposition referred to the area and immediate vicinity as "safe" because it had been "swept". When asked to clarify what "swept" meant, there was a hesitancy to explain.

2) Not long after, Dick Cheney pushed to have all testimony barred from being released publicly.

For lulz, check out the deposition, specifically the part where they're talking to the VP's photographer. If I recall, the question went something like this:

Lawyer: "You mean to tell me you spend almost all of your time on the job, within feet of the Vice President, expected to capture all events historical, and when the Vice President was supposedly 'assaulted' during an exchange that lasted a few moments, you took no photographs whatsoever?"
posted by Bathtub Bobsled at 7:11 AM on March 21, 2012 [5 favorites]


I am frankly surprised that the eldritch horror known to humans as "Dick Cheney" can even be captured in images of any kind, be they traditional film or digital.
posted by elizardbits at 7:13 AM on March 21, 2012 [12 favorites]


'We should give immunity from wrongful arrest lawsuits to the Secret Service because the last thing we want is them hesitating while performing their duties.'

So people who claim to be willing to take a bullet won't accept the risk of being held personally accountable for violating the law?
posted by ROU_Xenophobe at 7:26 AM on March 21, 2012 [4 favorites]


I am frankly surprised that the eldritch horror known to humans as "Dick Cheney" can even be captured in images of any kind, be they traditional film or digital.

You have to use Tri-X Pan, with a 30μm lead filter. To develope, you use one part of a virgin's blood to 10 parts of D76 developer and 10 parts water; and fix with 10 parts hypo, 10 parts 10% acetic acid in water, and 3 parts bile from a politician -- but that doesn't add much to the cost at all.

I find a final rinse in the tears of the innocent tones the print nicely.
posted by eriko at 7:32 AM on March 21, 2012 [19 favorites]


So people who claim to be willing to take a bullet won't accept the risk of being held personally accountable for violating the law?
So your suggestion is that Secret Service agents shouldn't actually concern themselves with whether they are following the law, but they should be held personally liable after the fact? That seems silly.
posted by planet at 7:33 AM on March 21, 2012


So people who claim to be willing to take a bullet won't accept the risk of being held personally accountable for violating the law?


You've got to consider the relative rates of occurance between getting shot and making an illegal arrest.
posted by Mitheral at 7:35 AM on March 21, 2012


There are fates worse than arrest.
posted by Meatbomb at 7:39 AM on March 21, 2012


The secret service has other duties that have nothing to do with protecting the persons of the President and VP. Investigating counterfeiters for one.

Even if they only had the role of protecting dignitaries, you don't want any police force immune from the constitution. Ever.
posted by clarknova at 7:41 AM on March 21, 2012 [1 favorite]


The President is not above the law, but the Secret Service guys protecting the President are?
posted by Capt. Renault at 7:46 AM on March 21, 2012 [1 favorite]


That ten-minute lag between the act and the arrest seems a bit more "how dare he touch my royal countenance" rather than "OMG, he's attacking the VP!!!"

It's not like this sort of thing is not without precedent.
posted by Kid Charlemagne at 7:47 AM on March 21, 2012


FWIW, the above description (assuming that the officers had probable cause to arrest him) is because when confronted by the agent "He asked me first . . . Did you assault the Vice President? That's the question I remember. . . . At which point I said, No. And then he asked me another question, which may have been, Did you touch the Vice President?" To which he replied no. But he had touched the VP, and the agent knew that. Even if the touch itself wasn't a crime, the appellate court held that his denial of the touch could plausibly be interpreted as violating the law against lying to a federal agent. The feds didn't charge him with that, but they state it was enough to constitute probable cause for an arrest.

So there you go, when you answer questions and misremember something small they arrest you.
posted by a robot made out of meat at 7:55 AM on March 21, 2012 [1 favorite]


when you answer questions and misremember something small they arrest you.

Don't Talk to Cops.
posted by gauche at 7:57 AM on March 21, 2012 [5 favorites]


I touched Newt once, or rather he placed a hand on my sweaty lower back ... he placed an evil witchdoctor curse on me with his wrinkled old paw.

Lucky you weren't turned into a Newt.
posted by octobersurprise at 8:00 AM on March 21, 2012 [1 favorite]


Even if they only had the role of protecting dignitaries, you don't want any police force immune from the constitution.

But again, that's not the argument. I'm totally on Howards' side here, but it's not helpful to distort the case. The above post here lays it more plainly, and fairly.
posted by spaltavian at 8:01 AM on March 21, 2012 [1 favorite]


Wonky.
posted by mrgrimm at 8:09 AM on March 21, 2012


You people are sickening. Unwanted physical contact is assault, end of story. Anyone who engages in that sort of activity should be prosecuted to the fullest possible extent.

/hamburger
posted by jsturgill at 8:35 AM on March 21, 2012


Unwanted physical contact is assault, end of story.

I know you were being sarcastic, but a friend of mine made exactly that comment to me a short time ago in apparent sincerity. Here's what I said:

I know that by strict definition. In practice, people are unwantedly touched all the damn time -- sometimes even in direct view of law enforcement -- and neither criminal nor civil charges are brought.

I think I might argue, too, that a politician at a public event (and I'm surmising here that this was a sort of rope-line hands-shaking scenario) impliedly consents to being patted on the shoulder along with shaking hands &c. even by those who disagree with them on policy. I'm not sure I'd win this one, but I might argue it.
posted by gauche at 8:48 AM on March 21, 2012 [2 favorites]


gauche: "Don't Talk to Cops."
Interesting lecture, thanks.
posted by brokkr at 8:53 AM on March 21, 2012 [1 favorite]


The President is not above the law, but the Secret Service guys protecting the President are?

The President has all sorts of immunities as well.

I'll admit to being an uber-cynic in this regard, but somehow I'm thinking it went like this:

Cheney: "That guy pissed me off. Go make an example of him."
Agent: "That's not really our role Mr. Vice President."
Cheney: "You're new, aren't you. I'm the Vice President of the United States. I have more power than the President, and if you ever want to work anywhere ever again in your entire life you will go arrest that guy."
Agent: "Righto. One arrest coming right up."
posted by Tell Me No Lies at 9:48 AM on March 21, 2012 [1 favorite]


Regarding the "lying about touching the VP": I've learned in a fairly long life that lying to officials is bad. What works for me is looking stupid and saying, "Errrrr, I'm not sure." People in law enforcement meet a lot more really stupid people than most people do, and this just always seems to work.
posted by lupus_yonderboy at 10:43 AM on March 21, 2012 [2 favorites]


I patted a student on his shoulder with my open palm a couple of years ago, and got accused of "hitting" him. Being accused of assault was pretty shattering. Luckily, the principal had my back, and the dean, who had known me for twenty years, said I was the least likely teacher on the planet to hit a child. The mom didn't get any points for her telephone behavior, and the case was dropped before it became a case, thank God.
posted by kozad at 12:04 PM on March 21, 2012


Is it fair to split hairs on the concept of "arrest' then, or would that just be me being obtuse again?

I mean, I'm perfectly fine with the Secret Service arresting and/or detaining suspects for a short period of time, provided that the suspect is given a hearing or some sort of trial process. Of course, this brings about the necessity of a fair trial (or even just a justice system that could provide as much) and the concept of the SS (ironic, isn't it?) being able to abuse such powers.

Again, if they're more than likely just gonna hold onto the guy for a couple of hours so they can get the pres/vp/whomever into a safe position, and then let him go... then really, let's give the SS that bit of leeway. It's not like we're calling on the SS to run security for gay pride parades or abortion clinic parking lots.

Your local cops, on the other hand... should be held a bit more accountable for the people they detain.
posted by Blue_Villain at 1:11 PM on March 21, 2012


Again, if they're more than likely just gonna hold onto the guy for a couple of hours so they can get the pres/vp/whomever into a safe position, and then let him go... then really, let's give the SS that bit of leeway. It's not like we're calling on the SS to run security for gay pride parades or abortion clinic parking lots.

What if the secret service decides to detain a group of peaceful protesters only for "a couple hours" so that the president/vp/wharever can "safely" attend a public event without having to face detractors?
posted by RonButNotStupid at 1:27 PM on March 21, 2012


Follow-up: transcript of today's oral argument is available. Also this recap, which contains the following troubling sentence:
By the time a federal government lawyer had come to the lectern, the course of the hearing on the agents’ side was very clear, but that lawyer nevertheless felt obliged to make an argument that the Court should not just insulate Secret Service agents from being sued for retaliatory arrests, but it should do so “across the board,” for police at any level — at least when they are confronting a situation where someone speaks out in a way that an officer can interpret as threatening some act of violence.
(See counsel's argument beginning on Page 16 of the transcript.)
posted by gauche at 1:30 PM on March 21, 2012


What if the secret service decides to detain a group of peaceful protesters

Yeah, I thought of that, and I don't have an answer. But it seems to me that the SS is small enough, and has enough of a single goal, that I'd be okay with it. The military, police, neighborhood watch, etc. are a bit larger and are exponentially more nebulous about their goals, so they get a more oversight in return.

I do realize that this is just a jaundiced personal opinion though.
posted by Blue_Villain at 1:34 PM on March 21, 2012


From the NPR story in the post:
But two other agents who actually witnessed the encounter between Howards and Cheney did not support Reichle's account of threatening behavior, and they said Reichle had asked them to change their reports to comport with Reichle's version of events. Reichle has since been transferred to Guam. [emphasis mine]
That sounds like the biggest implicit admission ever that the guy who made the arrest fucked up. cf Lester Freamon: "We could still go to jail. And if not, I'd expect to be back in the pawn shop unit and you, my brother, are gonna ride the boat."
posted by Len at 1:38 PM on March 21, 2012


Unwanted physical contact is assault, end of story.

It's more likely to be battery.
posted by coolguymichael at 2:38 PM on March 21, 2012


The fact that physical contact is "unwanted" does not mean that it constitutes assault or battery. Under common law, only "hostile" touching can constitute battery; and by implication only the fear of hostile touching can constitute an assault.
... consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684).
Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.
Collins v Wilcock [1984] 1 WLR 1172, 1178 (PDF)
posted by Joe in Australia at 3:15 PM on March 21, 2012 [3 favorites]


fear of hostile touching

Incidentally, this is my favorite unreleased Public Enemy album.
posted by eddydamascene at 8:29 PM on March 21, 2012 [2 favorites]


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