634 F.3d 1131 (10th Cir. 2011), 09-1201, Howards v. McLaughlin

Docket Nº:09-1201, 09-1202.
Citation:634 F.3d 1131
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:Steven HOWARDS, Plaintiff-Appellee, v. Daniel McLAUGHLIN, in his individual and official capacity; Adam Daniels, in his individual and official capacity, Defendants-Appellants, Virgil D.
Attorney:Sean R. Gallagher (Dugan Bliss with him on the briefs) of Hogan & Hartson LLP, Denver, CO, for Defendants Reichle and Doyle. Richard Westfall (Aaron Solomon with him on the briefs) of Hale Friesen, LLP, Denver, CO, for Defendants Daniels and McLaughlin. David A. Lane (Althea S. Licht with him on ...
Judge Panel:Before KELLY, SEYMOUR, and LUCERO, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:March 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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634 F.3d 1131 (10th Cir. 2011)

Steven HOWARDS, Plaintiff-Appellee,

v.

Daniel McLAUGHLIN, in his individual and official capacity; Adam Daniels, in his individual and official capacity, Defendants-Appellants,

Virgil D. " Gus" Reichle, Jr., in his individual and official capacity; Dan Doyle, in his individual and official capacity, Defendants.

United States of America, Amicus Curiae.

Steven Howards, Plaintiff-Appellee,

v.

Virgil D. " Gus" Reichle, Jr., in his individual and official capacity; Dan Doyle, in his individual and official capacity, Defendants-Appellants,

Daniel McLaughlin, in his individual and official capacity; Adam Daniels, in his individual and official capacity, Defendants.

United States of America, Amicus Curiae.

Nos. 09-1201, 09-1202.

United States Court of Appeals, Tenth Circuit.

March 14, 2011

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Sean R. Gallagher (Dugan Bliss with him on the briefs) of Hogan & Hartson LLP, Denver, CO, for Defendants Reichle and Doyle.

Richard Westfall (Aaron Solomon with him on the briefs) of Hale Friesen, LLP, Denver, CO, for Defendants Daniels and McLaughlin.

David A. Lane (Althea S. Licht with him on the brief), of Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiff.

Tony West, Assistant Attorney General, Washington, D.C.; David M. Gaouette, Acting United States Attorney, District of Colorado, Denver, CO; and Barbara L. Herwig and Teal Luthy Miller, Attorneys, Appellate Staff, Civil Division, Washington, D.C., filed a brief for Amicus Curiae.

Before KELLY, SEYMOUR, and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

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. For the reasons below, we REVERSE in part and AFFIRM in part.

I.

The present dispute arises out of a series of events occurring at the Beaver Creek Mall, an outdoor shopping center in Beaver Creek, Colorado.1 On June 16, 2006, Mr. Howards accompanied his older son to a piano recital at the Beaver Creek Mall. That same day, Vice President Cheney also visited the Mall, along with his security detail, which included defendants Secret Service Protective Intelligence Coordinator Gus Reichle, and Secret Service Special Agents Dan Doyle, Adam Daniels, and Daniel McLaughlin (collectively the " Agents" ). As the Protective Intelligence Coordinator, Agent Reichle's duties included interviewing individuals who were suspected of violating the law. Agents Daniels and McLaughlin were partnered together in the Counter Surveillance Unit, Vice Presidential Protective Division. They were in an undercover role that day, and they did not carry radios.

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While en route to the recital hall, Mr. Howards made a call on his cellular phone. During this call, he observed the Vice President exit a grocery store and begin to speak with members of the public. Upon seeing the Vice President, Mr. Howards stated into his cell phone, " I'm going to ask him [the Vice President] how many kids he's killed today." Aplt. App. at 532.

Agent Doyle overheard Mr. Howards' cell phone conversation. He assumed that Mr. Howards was referring to the war in Iraq, and he considered it " [un]healthy" and " [not] quite right" for a person to make such a statement to the Vice President. Id. He has admitted the comment " disturbed" him. Id. He informed Agent McLaughlin about Mr. Howards' statement, advising him that they " should pay particular attention to a white male subject [Mr. Howards] wearing a green T-shirt ... [because] he [had] overheard the subject state while speaking on the phone ‘ something to the effect of " I want to ask Cheney how many kids he had killed." ’ " Id. at 508. Agent McLaughlin replied, " Okay," because he believed it was " within [Mr. Howards'] bounds to do that." Id. at 425. Agent McLaughlin in turn relayed the information to Agent Daniels and informed him that " we need to keep an eye on ... Mr. Howards." Id. at 413. All three agents began to monitor Mr. Howards.

Mr. Howards' son continued on to the recital; Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his " policies in Iraq are disgusting." Id. at 491. The Vice President responded, " Thank you." Id. As he departed, Mr. Howards touched the Vice President's right shoulder with his open hand.2 Although Agents Daniels, McLaughlin, and Doyle continued to monitor Mr. Howards and witnessed the touch, none of them were close enough to hear Mr. Howards' statements to the Vice President. Neither Agent Daniels nor Agent McLaughlin believed Mr. Howards' touch of the Vice President provided probable cause for arrest. See id. at 418, 428.

Special Agent Mike Lee, who was standing near the Vice President and in charge of the protective detail, overheard the verbal exchange. As Mr. Howards walked away, Special Agent Andrew Wurst, who was approximately fifteen yards from the Vice President when the touch occurred, approached Agent Lee. Agents Lee and Wurst agreed that a protective intelligence team should be sent to speak with Mr. Howards. Agent Wurst then asked Special Agent Oscar Rosales to send the protective intelligence team to speak with Mr. Howards. After Agents Wurst and Rosales separated, Agent McLaughlin approached Agent Rosales to inquire whether a protective intelligence team was going to interview Mr. Howards.

Thereafter, Agent Gus Reichle, the intelligence coordinator, was dispatched to interview Mr. Howards as a person of interest in " an incident involving Vice

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President Cheney." Id. at 369. Although Agent Reichle had neither overheard the cell phone statement nor observed the actual interaction between Mr. Howards and the Vice President, Agent Doyle debriefed him as he approached Mr. Howards. Agent Doyle identified Mr. Howards as the person of interest and provided " a quick thumbnail sketch that he had overheard the subject on a cellular telephone whom [sic] stated, ‘ I'm going to ask him how many kids he's killed today.’ " Id. at 371. Agent Reichle assumed that Mr. Howards' reference was to Vice President Cheney. Id.

Mr. Howards then left the vicinity and proceeded to join his family at the recital hall. Upon his arrival, Mr. Howards' wife asked him to accompany his younger son back to their condo. Mr. Howards and his son left the recital hall and began to walk towards the mall exit. On their way out, Mr. Howards and his son again entered the area where the Vice President was conducting his meet and greet. Before they reached the mall exit, his son wandered off, and Mr. Howards began to look for him.

During the search for his son, Mr. Howards was approached by Agent Reichle, who was dressed in civilian clothes. Special Agents Daniels, Doyle, and McLaughlin remained nearby in a counter-surveillance role. Agent Reichle presented his Secret Service badge, identified himself, and requested to speak with Mr. Howards. Mr. Howards refused to speak with the agent and attempted to resume the search for his son. Agent Reichle stepped in front of Mr. Howards to prevent his departure and asked Mr. Howards if he had assaulted the Vice President. Mr. 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." Id. at 494. Agent Reichle became " visibly angry" when Mr. Howards shared his opinion on the Iraq war. Mr. Howards again attempted to resume his search for his son.

In his deposition, Mr. Howards articulated the events that followed:

A. At some point [Agent Reichle] said to me— I believe there actually— he also asked me if I touched the Vice President.

Q. How did you respond to that?

A. I believe I said I hadn't.

Q. Okay. And that wasn't truthful, was it?

A. That wasn't accurate.

Q. Do you recall him asking you any additional questions?

A. No. That's what I recall.

Id. at 495. Agent Reichle asked the nearby agents whether anyone had witnessed the physical encounter between Mr. Howards and the Vice President. Agent Doyle stepped forward and confirmed that he had witnessed the physical contact, and he performed a demonstration of the touch. Agents Daniels and McLaughlin confirmed that Agent Doyle's demonstration was an accurate recreation of the exchange.3

Based upon Mr. Howards' " 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," id. at 280, Agent Reichle decided

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to arrest Mr. Howards for assault on the Vice President. Agents Doyle, Daniels, and McLaughlin assisted in restraining Mr. Howards during the arrest.

Mr. Howards was turned over to the Eagle County Sheriffs Department and detained for several hours. Ultimately he was charged with harassment in violation of Colorado state law. The state prosecutor subsequently dismissed the charges, however, and no federal charges were ever filed.

Mr. Howards...

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