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.

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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.

Guardian, On CableGate Documents: In The NYT, And The Guardian


I think Simon Jenkins has it just right, tonight, for The Guardian — do go read it all, but here is a bit:

. . .America’s foreign policy is revealed as a slave to rightwing drift, terrified of a bomb exploding abroad or of a pro-Israeli congressman at home. If the cables tell of the progress to war over Iran or Pakistan or Gaza or Yemen, their revelation might help debate the inanity of policies which, as Patterson says, seem to be leading in just that direction. Perhaps we can now see how catastrophe unfolds when there is time to avert it, rather than having to await a Chilcot report after the event. If that is not in the public’s interest, I fail to see what is.

Clearly, it is for governments, not journalists, to protect public secrets. Were there some overriding national jeopardy in revealing them, greater restraint might be in order. There is no such overriding jeopardy, except from the policies themselves as revealed. Where it is doing the right thing, a great power should be robust against embarrassment. . .

Indeed.

now two years on, dick cheney looks very frail. . .


I am simply astonished by how
frail, and decrepit Dick Cheney looks. Compare
2010 edition — with 2006 editions:

That is all.

Be excellent to one another; for if you
don’t — one day, this may be your fate.

92,000 Pages — And Counting — As “The Truth” Outs, On Mr. Cheney’s Miscues


In the coming hours, days and weeks, many other writers will, no doubt, do a better job than this of connecting the WikiLeaks trove to misleading statements by Dick Cheney, and George W. Bush. But in a bit of flash analysis, I found these passages from one of The New York Timesstories tonight worthy of highlight:



. . .The Central Intelligence Agency has expanded paramilitary operations inside Afghanistan. The units launch ambushes, order airstrikes and conduct night raids. From 2001 to 2008, the C.I.A. paid the budget of Afghanistan’s spy agency and ran it as a virtual subsidiary.

Over all, the documents do not contradict official accounts of the war. But in some cases the documents show that the American military made misleading public statements — attributing the downing of a helicopter to conventional weapons instead of heat-seeking missiles or giving Afghans credit for missions carried out by Special Operations commandos. . .

Mr. Cheney, I think you will find that these documents — as much as, or more than any others yet released — paint your wilful refusal to engage in Afganistan as one of the 21st Century’s greatest military miscalculations. One that has cost tens of thousands of lives (civilian and military), and nearly a trillion dollars.

I do pray theat your LVAS keeps working — and working well. You need to read the papers, here, in Germany and in the United Kingdom, for the next few weeks and months. Only then will you have the beginnings of an accurate sense of how history is actually going to capture your endless hubris, and highly-lethal ineptitude.