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The U.S. Supreme Court on Monday agreed to review claims by two Secret Service agents that they should be immune from a lawsuit by a man they arrested after he confronted Vice President Dick Cheney in a Colorado mall in 2006. The case — Reichle v. Howards — is another in a series of cases this term in which the justices are sorting out the boundaries of qualified and absolute immunity. The Reichle case stems from a visit by Cheney to a shopping mall in Beaver Creek, Colo., where the former vice president was greeting mall visitors. Steven Howards was taking his eight-year-old son to a piano lesson in the mall when a Secret Service agent overheard Howards say on his cell phone, “I’m going to ask [the Vice Presi¬dent] how many kids he’s killed today.” After waiting his turn to meet Cheney, Howards approached Cheney and told him that his “policies in Iraq are disgusting.” He then touched Cheney’s shoulder — descriptions of which varied considerably — and left. An agent was sent to question Howards who lied about touching Cheney. The agent arrested Howards for assaulting the vice president. He was handcuffed and turned over to local law enforcement. Howards was charged with state-law harassment, but the charges were later dismissed. Howards filed a lawsuit claiming his arrest violated the Fourth Amendment because the agents lacked probable cause that he had committed a crime. The arrest also violated the First Amendment, he charged, because the agents were retaliating against him for protected speech. The U.S. Court of Appeals for the 10th Circuit found no Fourth Amendment violation because there was probable cause to arrest Howards for making a materially false statement to a federal officer. But the appellate court held that Howards’ First Amendment retaliatory arrest claim could proceed to trial and refused to grant qualified immunity to the agents. In their petition, the two agents ask the justices to resolve whether probable cause bars a First Amendment retaliatory arrest claim. That question, they say, was left open in the justices’ 2006 decision in Hartman v. Moore, which held that the existence of probable cause bars a retaliatory prosecution brought under the First Amendment. Six circuits are split on the retaliatory arrest question after Hartman, they add. The 10th Circuit also erred, they argue, by denying them qualified and absolute immunity. “The 10th Circuit’s rule, which is also the law of the 9th Circuit, threatens to interfere with the split-second decisions of Secret Service agents that can mean the difference between the life and death of the president and vice president,” the petition states. The agents, represented by Sean Gallagher of Denver’s Polsinelli Shughart, drew amicus support from the solicitor general of the United States as well as from Colorado and 20 other states. Marcia Coyle can be contacted at [email protected].

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