Letter To Cheney (And Bush) Must Be Read. Today.

I’ll simply note that the mistakes that led to these lessons ought not be consigned to the dustin of history.

They were avoidable — and most of all, they were foreseeable.

I am sorry so many had to die to make them plain.

I am sorry Mr. Cheney failed us all. Now go read the letter, in full — but here’s a bit:

. . . .I would not be writing this letter if I had been wounded fighting in Afghanistan against those forces that carried out the attacks of 9/11. Had I been wounded there I would still be miserable because of my physical deterioration and imminent death, but I would at least have the comfort of knowing that my injuries were a consequence of my own decision to defend the country I love.

I would not have to lie in my bed, my body filled with painkillers, my life ebbing away, and deal with the fact that hundreds of thousands of human beings, including children, including myself, were sacrificed by you for little more than the greed of oil companies, for your alliance with the oil sheiks in Saudi Arabia, and your insane visions of empire. . . . .

On the other hand, perhaps we failed one another, by re-electing him.

Here endeth the sermon.

Secret Service Agents Have Qualified Immunity: SCOTUS, In Howards

Here is a pdf of the full opinion (just handed down), but I will quote from Ginsberg’s concurring opinion — as it will be useful in any future such cases:

. . .Thus, the “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’sown injurious action, but between the retaliatory animusof one person and the action of another.” Hartman, 547 U. S., at 262. This “distinct problem of causation” justified the absence-of-probable-cause requirement we recognized in Hartman. Id., at 263 (Proof of an absence of probable cause to prosecute is needed “to bridge the gap between the non prosecuting government agent’s motive and the prosecutor’s action.”). See also id., at 259 (“[T]he need toprove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, . . . provides the strongest justification for the no-probable-cause requirement.” (emphasis added)).

A similar causation problem will not arise in the typical retaliatory-arrest case. Unlike prosecutors, arresting officers are not wholly immune from suit. As a result, a plaintiff can sue the arresting officer directly and need only show that the officer (not some other official) acted with a retaliatory motive. Because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action, Hartman’s no-probable-cause requirement is inapplicable.

Nevertheless, I concur in the Court’s judgment. Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. . . .

Disappointing — but not unexpected — after hearing the tenacity of the questioning, in favor of the agents, by the majority of the SCOTUS, and hinting that there was — at the time of the incident (2006) no “clearly established right” of which the Secret Service agents should have been aware. . . all of which was seen as likely to doom Mr. Howards’ claim.

This may be the last entry — the likely end of this particular blog.

What If Dick Cheney Received Trayvon Martin’s Heart?

Following up on my thoughts immediately below — I wonder whether Mr. Cheney would feel/experience anything, differently, at some visceral level — a level he couldn’t really put into words — if it were to turn out that his new heart came from an entirely innocent, unarmed and harmless teenager, one who happened to be black in the wrong neighborhood. [Would he be kinder. . . gentler, to the African American nurses doubtlessly tending to him -- compassionately, and selflessly -- right now?]

In short, what if Mr. Cheney’s new heart. . . came from young Trayvon Martin’s body?

What a novel that would make. Truly, though, recipients not all that infrequently report craving the some of the same foods, and even thinking similar thoughts, to those their donors were reported to have/hold. What a world that would be, now?

Mr. Cheney’s “Change” Of Heart — Insert Your Own Joke Here

Actually. . . please don’t.

First — I won’t joke about this one (and here is how I have genuinely, and consistently, felt about it, in the past). I do wish him continued health. I do want him to see the longer shadows of his legacy — and read, within that Roman light — how history (with more temperance) will ultimately mark him down. I don’t expect it will be gentle — but I do expect he should have to know it, before he goes.

And even so, I cannot help but wonder whether — as many such transplant patients self-report — Mr. Cheney will now begin to feel the echo of his donor’s emotions (and the sort of emotions many transplant patients report feeling), simply for having the DNA and thus the stored chemical memories of another’s emotional experiences, coursing through his blood-stream, and reaching his brain-stem, synapses, and cerebral cortex, some 87,000 times a day, every day, for the rest of his existence here.

Will those chemicals change his perspective at all? That is an interesting, if somewhat unscientific question. We will look for evidence of it, and we hope anyone granted the right to interview him would plumb him for reactions along these lines — it would be a fascinating human interest story.

In any event, unfortunately, from the New York Times article, this morning — even with this very intensive intervention, the longer-term survival statistics, for people over 55 (Mr. Cheney will be 72 this year) undergoing a heart transplant, are not particularly encouraging:

. . .A 2008 study in The Annals of Thoracic Surgery found that outcomes were significantly worse for older patients. For patients over 55, the study found, 63 percent were still alive five years after their transplant, 48 percent survived a decade and 35 percent were living 15 years later. . . .

[And, as to his legacy -- in what reads as the Times' foretelling of how it will deliver his eventual obituary:]

. . .In a government career with few parallels, Mr. Cheney, who was vice president for all eight years of Mr. Bush’s presidency, has been chief of staff to President Gerald R. Ford, represented Wyoming in Congress and served as defense secretary under the first President George Bush. He is widely considered to have been among the most powerful vice presidents in American history. . . advocating an aggressive assertion of presidential power.

He was a lightning rod for critics of the Bush administration, and his influence as vice president during Mr. Bush’s second term was considerably diminished. . . .

We will genuinely wish for his full recovery — but we have been down this very same path with older patients, and know that his odds are lower than 50-50, for a full recovery.

He may well live long enough, however, to read — from a hospital bed, somewhere in Virginia — that his long-time hunting buddy, Justice Scalia, has penned an opinion freeing him from the possibilty of a deposition in the 2006 Beaver Creek, Colorado retaliatory arrest for protected free expression case, captioned as Howards. My bet is that the Supreme Court’s opinion on that matter will be handed down before the end of June 2012. I wonder whether he’ll feel any empathy for Mr. Howards, with his new heart (from an ordinary donor — a part of the 99% — like Mr. Howards), when that day comes. We shall see.
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The Best Of David Lane — Mr. Howards’ Lawyer — Sparring With Chief Justice Roberts

The dialogue runs thus, toward the end of the argument, before the Supreme Court — perhaps Mr. Lane’s strongest exchange “the governement here presents us a solution, in search of a problem. . .”:

. . .Mr. Lane: –Well, what I say about that is that — and again, I know this is not an answer that you are probably going to like, because this means a trial is involved, but this is what juries do on a daily basis throughout this country, in every criminal case.

What is the subjective intent of the defendant?

In every civil case, is this an intentional act, a knowing act, a reckless act, a negligent act?

That’s what juries do.

And if there is enough evidence to get this case to trial — and I — I would posit it that in this case, where you have agent after agent after agent who saw the encounter up close and personal with the Vice President and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards, all of whom let Mr. Howards walk away from the scene, that’s good evidence that–

Chief Justice John G. Roberts: One reason that I in fact don’t like the answer is be — because what the agent is now going to have to factor, in addition to the hostility of the — the views, the touching of the Vice President, the lying about it, the wandering around with the bag — is in the back of his mind — you know, if I’m wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the Vice President.

Mr. Lane: –Well, I mean, theoretically yes, that — that could be a problem.

And — and I am quite certain that certain civil litigants, just as in criminal cases, people are wrongly accused of things that they didn’t do, they end up in a trial, and sometimes juries get the wrong results and an injustice occurs.

We can’t fix all those problems when it’s not really a significant problem.

There are no run on the courtrooms around the land of these kinds of cases arising.

We don’t need to have any rules that specifically pertain to the Secret Service when to my knowledge, this Court has had one Secret Service case in its entire history, and there are 15 appellate-reported Federal decisions regarding retaliatory arrests, period. . .

Now we wait for an opinion. Sadly, I think it comes out 6 to 2 (Justice Kagan recused; prior involvement in the case as a government lawyer) that there is no cognizable claim here, under the first amendment, even with Mr. Lane’s skillful advocacy.

Listen To Howards’ Supreme Court Oral Argument, Now — as an .mp3 Stream

Here is the argument transcript page, and the downloadable mp3 audio-stream, itself, from Chicago-Kent College of Law. This is nearly a month earlier than the Court’s usual website releases, itself. [Cite this stream as: The Oyez Project at IIT Chicago-Kent College of Law. 23 March 2012.]

Sadly for Mr. Howards, my personal take is that there aren’t five votes to send the case to trial on the merits. Which means there likely aren’t five votes to depose Mr. Cheney about his orders, and whether he felt threatened by Mr. Howards that day in 2006 in Pitkin County, Colorado.

There are probably five votes saying we should not force Secret Service agents to make instant decisions as to whether Mr. Cheney’s orders were intended to protect the office, or punish a speaker for his point of view. I am not sure that five votes feel that probable cause allowed everything that followed — as the government’s lawyers urged.

Suprem Court Oral Argument Is Wednesday, March 21, 2012

Here is the relevant portion of the just released hearings scheduling order:

. . .No. 11–262. Virgil D. “Gus” Reichle, Jr., et al. v. Steven Howards.
Certiorari to the C. A. 10th Circuit.

For petitioner: Sean R. Gallagher, Denver, Colo.; and Sri Srinivasan, Principal Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)

For respondent: David A. Lane, Denver, Colo.
(One hour for argument.). . . .

Soon we will know whether Mr. Cheney’s orders were unconstitutional, insofar as they attempted to punish — with retaliatory arrest/detention — otherwise protected political speech (speech which did not advocate violence, or the overthrow of the government), speech uttered to an elected political official, during the official’s public appearance, in a public place.

Supremes To Decide Whether Cheney’s Orders In A 2006 Vail “Retaliatory” Arrest Violated First Amendment

Per the consummate SCOTUS watcher, Lyle Denniston, and the authoritative SCOTUS Blog — a bit:

. . . .Taking on a case that grew out of a citizen’s arrest after he made an anti-war remark and jostled then-Vice President Richard Cheney, the Supreme Court agreed Monday to sort out when an arrest is invalid because it may have been carried out in retaliation for the exercise of free-speech rights. Two Secret Service agents, seeking to head off a civil rights lawsuit against them, argue that they had a valid reason for arresting a Colorado man in 2006, so he has no First Amendment claim. . . .

The Secret Service case will be decided by an eight-member Court, since Justice Elena Kagan took herself out of the case, presumably because she had had some contact with it in her former position as Solicitor General. The case is likely to be set for argument in the March or April sittings. At issue is a ruling by the Tenth Circuit Court, based in Denver, that denied legal immunity to the agents because, it said, the law was clear that law enforcement officers may not arrest an individual who has exercised First Amendment rights. The fact that the agents had “probable cause” to make the arrest did not overcome the individual’s free-speech rights, the Circuit Court ruled.

The case will require the Court to sort out the impact on the case of its own ruling in 2006, in the case of Hartman v. Moore. In that case, the Court said that, if there is probable cause sufficient to justify filing charges, then that neutralizes a claim that the prosecution was started in retaliation for criticizing a public official or agency. In the new Secret Service agents’ case, the Tenth Circuit said that precedent only dealt with retaliatory prosecution, not retaliatory arrest. The federal Circuit Courts are split on that last point, and that division is apparently what led the Supreme Court to step in. . . .

We will keep you posted, come March 2012 — linking the oral argument .mp3 files (I love how easy this has all become, in the ensuing years — since I started covering this case, in early 2006!). Here is the order (a 2 page PDF file) directing the Colorado District Court to send the trial records up to the Supremes, for review.

May 18, 2011 — Next Cheney Colorado Court Date

We will keep an eye on this — as this will ultimately lead to a ruling ordering Dick Cheney, now a retiree, with plenty of free time on his hands, to sit for a deposition, under oath, about his actions on that March day in 2006, in Beaver Creek — during which Mr. Howards was arrested, and held for 24 hours, for simply expressing his views on the war in Iraq.

See below — from the United States District Court, in Denver:

MINUTE ORDER
ORDER ENTERED BY
MAGISTRATE JUDGE CRAIG B. SHAFFER

. . .In light of the March 14, 2011 judgment of the United States Court of Appeals for the Tenth Circuit (doc # 214) partially remanding this action, IT IS HEREBY ORDERED that the court shall hold a Status Conference in this matter on May 18, 2011 at 9:15 a.m. (Mountain Time) in Courtroom A-402, Fourth Floor, of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. . .

DATED: March 30, 2011

Do stay tuned, right here.

Dick Cheney’s Epilogue: Yet ANOTHER Step Closer To Being Deposed In Colorado First Amendment Case

Here’s a belated St. Patrick’s Day present — if Dick Cheney lives long enough to be deposed. This opinion was handed down on March 14, 2011 (a 42 page PDF file — 136 kbs).

And so, the day when Dick Cheney will be deposed, and asked under oath, what he did that day in 2006, in Beaver Creek, Colorado, to have Steven Howards arrested for his simple, and first amendment protected act of “petitioning his government, for the redress of his greivances“, draws nearer.

The interlocotory appeal, seeking a summary dismissal of Mr. Howards’ case, has been denied — his first amendment claim may go forward; thus he may depose Dick Cheney.

. . . .Steven Howards brought the present action alleging, inter alia, that defendants Secret Service Agents unlawfully arrested him in violation of his First and Fourth Amendment rights. Defendants moved for summary judgment on the basis that they were immune from suit. Following a hearing on the merits, the district court concluded fact issues precluded the grant of qualified immunity as well as summary judgment. The case is now before us on defendants’
interlocutory appeal from the district court’s denial of their motion for qualified
immunity. . . .

Prior to Hartman, the law on retaliatory arrests was clear in the Tenth Circuit. See DeLoach, 922 F.2d at 620; see also Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (relying on DeLoach and explaining “the existence of probable cause is not determinative of the constitutional question if. . . the plaintiff was arrested in retaliation for his having engaged in constitutionally protected speech”). Hartman did nothing to disturb this law. The fact that some of our sister circuits disagree with us on this issue does not bind us, nor does it force us to find the law was no longer clearly established in this circuit. See Garcia, 817 F.2d at 658.

It is well established that an act which is lawful under the Fourth Amendment may still violate other provisions of the Constitution. For example, in Whren v. United States, 517 U.S. 806, 809 (1996), the Court considered whether a traffic stop that was supported by probable cause could violate the Fourth Amendment when the reason for the stop was pretextual. The two black male defendants were arrested for possessing illegal drugs after their car was stopped by vice officers in a “high drug area.” Id. at 808. The defendants conceded the police had probable cause to believe that they had violated local traffic laws, but argued the traffic stop nonetheless should be held unreasonable under the Fourth Amendment, because the stop was pretextual and no reasonable officer would have stopped them for those traffic violations. . . .

Based on the record here, and in the absence of any argument from Agents Reichle and Doyle that Mr. Howards failed to present evidence to establish a First Amendment violation, see Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009), we conclude the district court correctly denied these Agents’ motion for qualified immunity on Mr. Howards’ First Amendment claim for retaliatory arrest. . . .

Indeed. Now Mr. Howards will be able to seek answers from Mr. Cheney about his role in ordering Howards’ arrest. Perfect. Do stay tuned.