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:


. . .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. . .