(CN) - A man who touched Dick Cheney's arm and told the former vice president that his Iraq War policies were "disgusting" can sue two Secret Service agents that arrested him for assault, the 10th Circuit ruled.
Steven Howards encountered Cheney at a mall two hours west of Denver in Beaver Creek, Colo., in 2006.
Howards argued that Cheney's four-agent security detail violated his First and Fourth Amendment rights by suppressing his right to free speech and conducting an illegal search and seizure in the arrest.
A federal judge had ruled that the agents were not entitled to immunity, but the Denver-based federal appeals court partly reversed that decision on March 14. The judges nullified Howards' Fourth Amendment argument and granted two of the four agents named in his case immunity.
Cheney's security began monitoring Howards after Special Agent Dan Doyle was "disturbed" by Howards' cell phone conversation. "I'm going to ask him [the vice president] how many kids he's killed today," Howards said, according to Doyle's testimony.
Assuming that Howards was talking about the war in Iraq, he said he considered it "[un]healthy" and "[not] quite right" to make such a statement to the vice president, the ruling states.
Howards, who was at the mall to attend his son's piano recital, then approached Cheney "and informed him that his 'policies in Iraq are disgusting,'" the ruling states.
As Cheney responded, "Thank you," and tried to leave, Howards touched the vice president's right shoulder with his open hand.
Though Doyle and two other agents, Adam Daniels and Daniel McLaughlin, witnessed the touch, none of them were close enough to hear Howards' statements to Cheney, the ruling states.
Neither Daniels nor McLaughlin believed the touch warranted an arrest, but Virgil D. "Gus" Reichle Jr., the detail's lead, didn't agree.
After Howards had left the mall to locate his son, Reichle confronted him. Reichle, dressed in civilian clothes, asked Howards if he had assaulted Cheney.
"Howards pointed his finger at Agent Reichle, denied assaulting the vice president, and informed the agent that 'if you don't want other people sharing their opinions, you should have him [the vice president] avoid public places,'" the ruling states.
Reichle became "visibly angry," then arrested Howards based on "premeditation, the conversation on the cell phone, the fact that Mr. Howards would not talk to [him], the fact that he's walking around with a bag in his hand in an unmagged [no metal detector] area, and the fact that [Doyle told him] that he had unsolicited contact," the ruling states.
A local prosecutor dropped what was eventually a harassment charge against Howards, and no federal charges were ever filed.
Writing for the appellate court's three-judge panel, Judge Stephanie Seymour said Howards can sue Reichle and Doyle on First Amendment grounds only, and that McLaughlin and Daniels have immunity.
Howards' attorney, David Lane, reportedly plans to depose Cheney, telling the Associated Press that the former vice president is "the best eyewitness to the case."