Reichle v. Howards

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REICHLE ET AL. v. HOWARDS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 11–262. Argued March 21, 2012—Decided June 4, 2012
Petitioners Reichle and Doyle were members of a Secret Service detail
protecting Vice President Richard Cheney while he greeted members
of the public at a shopping mall. Agent Doyle overheard respondent
Howards, who was speaking into his cell phone, state that he “was
going to ask [the Vice President] how many kids he’s killed today.”
Doyle and other agents observed Howards enter the line to meet the
Vice President, tell the Vice President that his “policies in Iraq are
disgusting,” and touch the Vice President’s shoulder as the Vice Pres-
ident was leaving. After being briefed by Doyle, Agent Reichle inter-
viewed and then arrested Howards, who was charged with harass-
ment. After that charge was dismissed, Howards brought an action
against petitioners and others under 42 U. S. C. §1983 and Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388. Howards claimed
that he was arrested and searched without probable cause, in viola-
tion of the Fourth Amendment, and that the arrest violated the First
Amendment because it was made in retaliation for Howards’ criti-
cism of the Vice President. Petitioners moved for summary judgment
on the ground that they were entitled to qualified immunity, but the
Federal District Court denied the motion. On appeal, the Tenth Cir-
cuit reversed the immunity ruling with respect to the Fourth
Amendment claim because petitioners had probable cause to arrest
Howards, but the court affirmed with regard to the First Amendment
claim. In doing so, the court rejected petitioners’ argument that, un-
der Hartman v. Moore, 547 U. S. 250, probable cause to arrest defeats
a First Amendment retaliatory arrest claim. It concluded instead
that Hartman applied only to retaliatory prosecution claims and thus
did not upset prior Tenth Circuit precedent holding that a retaliatory
arrest violates the First Amendment even if supported by probable
2 REICHLE v. HOWARDS
Syllabus
cause.
Held: Petitioners are entitled to qualified immunity because, at the
time of Howards’ arrest, it was not clearly established that an arrest
supported by probable cause could give rise to a First Amendment vi-
olation. Pp. 5−12.
(a) Courts may grant qualified immunity on the ground that a pur-
ported right was not “clearly established” by prior case law. Pearson
v. Callahan, 555 U. S. 223, 236. To be clearly established, a right
must be sufficiently clear “that every ‘reasonable official would [have
understood] that what he is doing violates that right.’ ” Ashcroft v. al-
Kidd, 563 U. S. ___, ___. Pp. 5−6.
(b) The “clearly established” standard is not satisfied here. This
Court has never recognized a First Amendment right to be free from
a retaliatory arrest that is supported by probable cause; nor was such
a right otherwise clearly established at the time of Howards’ arrest.
P. 6.
(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent
was far from clear. Although Hartman’s facts involved only a retalia-
tory prosecution, reasonable law enforcement officers could have
questioned whether its rule also applied to arrests. First, Hartman
was decided against a legal backdrop that treated retaliatory arrest
claims and retaliatory prosecution claims similarly. It resolved a
Circuit split concerning the impact of probable cause on retaliatory
prosecution claims, but some of the conflicting cases involved both re-
taliatory prosecution and retaliatory arrest claims and made no dis-
tinction between the two when considering the relevance of probable
cause. Second, a reasonable official could have interpreted Hart-
man’s rationale to apply to retaliatory arrests. Like in retaliatory
prosecution cases, evidence of the presence or absence of probable
cause for the arrest will be available in virtually all retaliatory arrest
cases, and the causal link between the defendant’s alleged retaliatory
animus and the plaintiff’s injury may be tenuous. Finally, decisions
from other Circuits in the wake of Hartman support the conclusion
that, for qualified immunity purposes, it was at least arguable at the
time of Howards’ arrest that Hartman extended to retaliatory ar-
rests. Pp. 7−12.
634 F. 3d 1131, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. GINS-
BURG, J., filed an opinion concurring in the judgment, in which BREYER,
J., joined. KAGAN, J., took no part in the consideration or decision of the
case.
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
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preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–262
_________________
VIRGIL D. “GUS” REICHLE, JR., ET AL., PETITIONERS
v. STEVEN HOWARDS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 4, 2012]
JUSTICE THOMAS delivered the opinion of the Court.
This case requires us to decide whether two federal law
enforcement agents are immune from suit for allegedly ar-
resting a suspect in retaliation for his political speech, when
the agents had probable cause to arrest the suspect for
committing a federal crime.
I
On June 16, 2006, Vice President Richard Cheney vis-
ited a shopping mall in Beaver Creek, Colorado. A Secret
Service protective detail accompanied the Vice President.
Petitioners Gus Reichle and Dan Doyle were members of
that detail.
Respondent Steven Howards was also at the mall. He
was engaged in a cell phone conversation when he noticed
the Vice President greeting members of the public. Agent
Doyle overheard Howards say, during this conversation,
“ ‘I’m going to ask [the Vice President] how many kids he’s
killed today.’ ” Brief for Petitioners 4. Agent Doyle told
two other agents what he had heard, and the three of
them began monitoring Howards more closely.
Agent Doyle watched Howards enter the line to meet
2 REICHLE v. HOWARDS
Opinion of the Court
the Vice President. When Howards approached the Vice
President, he told him that his “ ‘policies in Iraq are dis-
gusting.’ ” Ibid. The Vice President simply thanked How-
ards and moved along, but Howards touched the Vice
President’s shoulder as the Vice President departed.1
Howards then walked away.
Several agents observed Howards’ encounter with the
Vice President. The agents determined that Agent Reichle,
who coordinated the protective intelligence team respon-
sible for interviewing individuals suspected of violat-
ing the law, should question Howards. Agent Reichle had
not personally heard Howards’ comments or seen his con-
tact with the Vice President, but Agent Doyle briefed
Agent Reichle on what had happened.
Agent Reichle approached Howards, presented his
badge and identified himself, and asked to speak with
him. Howards refused and attempted to walk away. At
that point, Agent Reichle stepped in front of Howards and
asked if he had assaulted the Vice President. Pointing his
finger at Agent Reichle, Howards denied assaulting the
Vice President and told Agent Reichle, “if you don’t want
other people sharing their opinions, you should have him
[the Vice President] avoid public places.” Howards v.
McLaughlin, 634 F. 3d 1131, 1137 (CA10 2011) (internal
quotation marks omitted). During this exchange, Agent
Reichle also asked Howards whether he had touched the
Vice President. Howards falsely denied doing so. After
confirming that Agent Doyle had indeed seen Howards
touch the Vice President, Reichle arrested Howards.
The Secret Service transferred Howards to the custody
of the local sheriff ’s department. Howards was charged by
local officials with harassment in violation of state law.
——————
1 The parties dispute the manner of the touch. Howards described it
as an open-handed pat, while several Secret Service agents described it
as a forceful push. This dispute does not affect our analysis.
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
The charge was eventually dismissed.
II
Howards brought this action in the United States Dis-
trict Court for the District of Colorado under Rev. Stat.
§1979, 42 U. S. C. §1983, and Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971).2 Howards alleged
that he was arrested and searched without probable cause,
in violation of the Fourth Amendment. Howards also al-
leged that he was arrested in retaliation for criticizing
the Vice President, in violation of the First Amendment.
Petitioners Reichle and Doyle moved for summary
judgment on the ground that they were entitled to quali-
fied immunity. The District Court denied the motion. See
App. to Pet. for Cert. 46–61. On interlocutory appeal, a
divided panel of the United States Court of Appeals for the
Tenth Circuit affirmed in part and reversed in part. 634
F. 3d 1131.
The Court of Appeals held that petitioners enjoyed
qualified immunity with respect to Howards’ Fourth
Amendment claim. The court concluded that petitioners
had probable cause to arrest Howards for making a mate-
rially false statement to a federal official in violation of 18
U. S. C. §1001 because he falsely denied touching the Vice
President. 634 F. 3d, at 1142. Thus, the court concluded
that neither Howards’ arrest nor search incident to the
arrest violated the Fourth Amendment.3 Id., at 1142–
1143.
However, the Court of Appeals denied petitioners quali-
fied immunity from Howards’ First Amendment claim.
——————
2 Howards named several Secret Service agents as defendants, but
only Agents Reichle and Doyle are petitioners here. We address only
those parts of the lower courts’ decisions that involve petitioners
Reichle and Doyle.
3 Howards does not challenge the Court of Appeals’ probable-cause
determination.
4 REICHLE v. HOWARDS
Opinion of the Court
The court first determined that Howards had established
a material factual dispute regarding whether petitioners
were substantially motivated by Howards’ speech when
they arrested him. Id., at 1144–1145. The court then
rejected petitioners’ argument that, under this Court’s
decision in Hartman v. Moore, 547 U. S. 250 (2006), prob-
able cause to arrest defeats a First Amendment claim of
retaliatory arrest. The court concluded that Hartman
established such a rule only for retaliatory prosecution
claims and, therefore, did not upset prior Tenth Circuit
precedent clearly establishing that a retaliatory arrest
violates the First Amendment even if supported by proba-
ble cause. 634 F. 3d, at 1148.
Judge Paul Kelly dissented from the court’s denial of
qualified immunity. He would have held that when How-
ards was arrested, it was not clearly established that an
arrest supported by probable cause could violate the First
Amendment. In Judge Kelly’s view, Hartman called into
serious question the Tenth Circuit’s prior precedent on
retaliatory arrests. 634 F. 3d, at 1151. He noted that
other Circuits had applied Hartman to retaliatory arrests
and that there was a “strong argument” in favor of doing
so. 634 F. 3d, at 1151–1152.
We granted certiorari on two questions: whether a First
Amendment retaliatory arrest claim may lie despite the
presence of probable cause to support the arrest, and
whether clearly established law at the time of Howards’
arrest so held. See 565 U. S. ___ (2011). If the answer
to either question is “no,” then the agents are entitled to
qualified immunity. We elect to address only the second
question. We conclude that, at the time of Howards’ ar-
rest, it was not clearly established that an arrest support-
ed by probable cause could violate the First Amendment.
We, therefore, reverse the judgment of the Court of Ap-
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
peals denying petitioners qualified immunity.4
III
Qualified immunity shields government officials from
civil damages liability unless the official violated a statu-
tory or constitutional right that was clearly established at
the time of the challenged conduct. See Ashcroft v. al-
Kidd, 563 U. S. ___, ___ (2011) (slip op., at 3). In Pearson
v. Callahan, 555 U. S. 223, 236 (2009), we held that courts
may grant qualified immunity on the ground that a pur-
ported right was not “clearly established” by prior case
law, without resolving the often more difficult question
whether the purported right exists at all. Id., at 227. This
approach comports with our usual reluctance to decide
constitutional questions unnecessarily. Id., at 241; see
also Camreta v. Greene, 563 U. S. ___, ___ – ___ (2011)
(slip op., at 9–10); al-Kidd, 563 U. S., at ___ (slip op., at 3).
To be clearly established, a right must be sufficiently
clear “that every ‘reasonable official would [have under-
stood] that what he is doing violates that right.’ ” Id., at
___ (slip op., at 9) (quoting Anderson v. Creighton, 483
U. S. 635, 640 (1987)). In other words, “existing precedent
must have placed the statutory or constitutional question
beyond debate.” 563 U. S., at ___ (slip op., at 9). This
“clearly established” standard protects the balance be-
tween vindication of constitutional rights and government
officials’ effective performance of their duties by ensuring
——————
4 This Court has recognized an implied cause of action for damages
against federal officials for Fourth Amendment violations. See Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). We have
never held that Bivens extends to First Amendment claims. See
Ashcroft v. Iqbal, 556 U. S. 662, 675 (2009) (assuming without deciding
that a First Amendment free exercise claim is actionable under Bivens);
Bush v. Lucas, 462 U. S. 367, 368 (1983) (refusing to extend Bivens to a
First Amendment speech claim involving federal employment). We
need not (and do not) decide here whether Bivens extends to First
Amendment retaliatory arrest claims.
6 REICHLE v. HOWARDS
Opinion of the Court
that officials can “ ‘reasonably . . . anticipate when their
conduct may give rise to liability for damages.’ ” Anderson,
supra, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195
(1984)).
The “clearly established” standard is not satisfied here.
This Court has never recognized a First Amendment right
to be free from a retaliatory arrest that is supported by
probable cause; nor was such a right otherwise clearly
established at the time of Howards’ arrest.
A
Howards contends that our cases have “settled” the rule
that, “ ‘as a general matter[,] the First Amendment prohib-
its government officials from subjecting an individual to
retaliatory actions’ ” for his speech. See Brief for Respond-
ent 39 (quoting Hartman, supra, at 256). But we have
previously explained that the right allegedly violated must
be established, “ ‘not as a broad general proposition,’ ”
Brosseau v. Haugen, 543 U. S. 194, 198 (2004)
(per curiam), but in a “particularized” sense so that the
“contours” of the right are clear to a reasonable official,
Anderson, supra, at 640. Here, the right in question is not
the general right to be free from retaliation for one’s
speech, but the more specific right to be free from a retali-
atory arrest that is otherwise supported by probable
cause. This Court has never held that there is such a
right.5
——————
5 The Court of Appeals’ reliance on Whren v. United States, 517 U. S.
806 (1996), was misplaced. There, we held that a traffic stop supported
by probable cause did not violate the Fourth Amendment regardless
of the officer’s actual motivations, but we explained that the Equal
Protection Clause would prohibit an officer from selectively enforcing
the traffic laws based on race. Id., at 813. Citing Whren, the Court of
Appeals noted that “[i]t is well established that an act which is lawful
under the Fourth Amendment may still violate other provisions of the
Constitution.” Howards v. McLaughlin, 634 F. 3d 1131, 1149, n. 15
(CA10 2011). But, again, we do not define clearly established law at
Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court
B
We next consider Tenth Circuit precedent. Assuming ar-
guendo that controlling Court of Appeals’ authority could
be a dispositive source of clearly established law in the
circumstances of this case, the Tenth Circuit’s cases do not
satisfy the “clearly established” standard here.
Relying on DeLoach v. Bevers, 922 F. 2d 618 (1990), and
Poole v. County of Otero, 271 F. 3d 955 (2001), the Court of
Appeals concluded that, at the time of Howards’ arrest, its
precedent had clearly established the unlawfulness of an
arrest in retaliation for the exercise of First Amendment
rights, irrespective of probable cause. In DeLoach, a case
involving both a retaliatory arrest and a retaliatory prose-
cution, the court held that “[a]n act taken in retaliation for
the exercise of a constitutionally protected right is action-
able under §1983 even if the act, when taken for a differ-
ent reason, would have been proper.” 922 F. 2d, at
620 (internal quotation marks omitted). In Poole, a sub-
sequent retaliatory prosecution case, the court relied on
DeLoach for the proposition that a plaintiff ’s illegal con-
duct is “not relevant to his First Amendment claim.” 271
F. 3d, at 961.
The Court of Appeals acknowledged that Poole was
abrogated by this Court’s subsequent decision in Hartman
v. Moore, 547 U. S. 250, which held that a plaintiff cannot
state a claim of retaliatory prosecution in violation of the
First Amendment if the charges were supported by proba-
ble cause. But the Court of Appeals determined that
Hartman’s no-probable-cause requirement did not extend
to claims of retaliatory arrest and therefore did not disturb
——————
such a “high level of generality.” Ashcroft v. al-Kidd, 563 U. S. ___, ___
(2011) (slip op., at 10). Whren’s discussion of the Fourteenth Amend-
ment does not indicate, much less “clearly establish,” that an arrest
supported by probable cause could nonetheless violate the First
Amendment.
8 REICHLE v. HOWARDS
Opinion of the Court
its prior precedent in DeLoach. Accordingly, the court
concluded, “when Mr. Howards was arrested it was clearly
established that an arrest made in retaliation of an indi-
vidual’s First Amendment rights is unlawful, even if the
arrest is supported by probable cause.” 634 F. 3d, at 1148.
We disagree. At the time of Howards’ arrest, Hartman’s
impact on the Tenth Circuit’s precedent governing retal-
iatory arrests was far from clear. Although the facts of
Hartman involved only a retaliatory prosecution, reason-
able officers could have questioned whether the rule of
Hartman also applied to arrests.
Hartman was decided against a legal backdrop that
treated retaliatory arrest and prosecution claims similarly.
Hartman resolved a split among the Courts of Appeals
about the relevance of probable cause in retaliatory prose-
cution suits, but some of the conflicting court of appeals
cases involved both an arrest and a prosecution that were
alleged to be retaliation for the exercise of First Amend-
ment rights. See 547 U. S., at 255–256, 259, n. 6 (citing
Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Singer v.
Fulton Cty. Sheriff, 63 F. 3d 110 (CA2 1995); Keenan v.
Tejeda, 290 F. 3d 252 (CA5 2002); Wood v. Kesler, 323
F. 3d 872 (CA11 2003)). Those cases made no distinction
between claims of retaliatory arrest and claims of retalia-
tory prosecution when considering the relevance of prob-
able cause. See Mozzochi, supra, at 1179–1180; Singer,
supra, at 120; Keenan, supra, at 260; Wood, supra, at 883.
Indeed, the close relationship between retaliatory arrest
and prosecution claims is well demonstrated by the Tenth
Circuit’s own decision in DeLoach. DeLoach, too, involved
allegations of both retaliatory arrest and retaliatory pros-
ecution, and the Tenth Circuit analyzed the two claims as
one. 922 F. 2d, at 620–621.
A reasonable official also could have interpreted Hart-
man’s rationale to apply to retaliatory arrests. Hartman
first observed that, in retaliatory prosecution cases, evi-
Cite as: 566 U. S. ____ (2012) 9
Opinion of the Court
dence showing whether there was probable cause for the
charges would always be “available and apt to prove or
disprove retaliatory causation.” 547 U. S., at 261. In this
Court’s view, the presence of probable cause, while not
a “guarantee” that retaliatory motive did not cause the
prosecution, still precluded any prima facie inference that
retaliatory motive was the but-for cause of the plaintiff ’s
injury. Id., at 265. This was especially true because, as
Hartman next emphasized, retaliatory prosecution claims
involve particularly attenuated causation between the de-
fendant’s alleged retaliatory animus and the plaintiff ’s
injury. Id., at 259–261. In a retaliatory prosecution case,
the key defendant is typically not the prosecutor who
made the charging decision that injured the plaintiff,
because prosecutors enjoy absolute immunity for their
decisions to prosecute. Rather, the key defendant is the
person who allegedly prompted the prosecutor’s decision.
Thus, the intervening decision of the third-party prosecu-
tor widens the causal gap between the defendant’s animus
and the plaintiff ’s injury. Id., at 261–263.
Like retaliatory prosecution cases, evidence of the pres-
ence or absence of probable cause for the arrest will be
available in virtually every retaliatory arrest case. Such
evidence could be thought similarly fatal to a plaintiff ’s
claim that animus caused his arrest, given that retaliatory
arrest cases also present a tenuous causal connection
between the defendant’s alleged animus and the plaintiff ’s
injury. An officer might bear animus toward the content
of a suspect’s speech. But the officer may decide to arrest
the suspect because his speech provides evidence of a
crime or suggests a potential threat. See, e.g., Wayte v.
United States, 470 U. S. 598, 612–613 (1985) (noting that
letters of protest written to the Selective Service, in which
the author expressed disagreement with the draft, “pro-
vided strong, perhaps conclusive evidence” of the nonregis-
trant’s intent not to comply—one of the elements of the
10 REICHLE v. HOWARDS
Opinion of the Court
offense” of willful failure to register for the draft). Like
retaliatory prosecution cases, then, the connection be-
tween alleged animus and injury may be weakened in the
arrest context by a police officer’s wholly legitimate con-
sideration of speech.
To be sure, we do not suggest that Hartman’s rule in
fact extends to arrests. Nor do we suggest that every as-
pect of Hartman’s rationale could apply to retaliatory
arrests. Hartman concluded that the causal connection in
retaliatory prosecution cases is attenuated because those
cases necessarily involve the animus of one person and
the injurious action of another, 547 U. S., at 262, but in
many retaliatory arrest cases, it is the officer bearing the al-
leged animus who makes the injurious arrest. Moreover,
Hartman noted that, in retaliatory prosecution cases, the
causal connection between the defendant’s animus and the
prosecutor’s decision is further weakened by the “pre-
sumption of regularity accorded to prosecutorial deci-
sionmaking.” Id., at 263. That presumption does not
apply here. Nonetheless, the fact remains that, for quali-
fied immunity purposes, at the time of Howards’ arrest it
was at least arguable that Hartman’s rule extended to
retaliatory arrests.6
Decisions from other Federal Courts of Appeals in the
wake of Hartman support this assessment. Shortly before
——————
6 Howards argues that petitioners violated his clearly established
First Amendment right even if Hartman’s rule applies equally to
retaliatory arrests. According to Howards, Hartman did not hold that a
prosecution violates the First Amendment only when it is unsupported
by probable cause. Rather, Howards argues, Hartman made probable
cause relevant only to a plaintiff ’s ability to recover damages for a First
Amendment violation. See Brief for Respondent 37–41. We need not
resolve whether Hartman is best read as defining the scope of the First
Amendment right or as simply establishing a prerequisite for recovery.
Nor need we decide whether that distinction matters. It suffices, for
qualified immunity purposes, that the answer would not have been
clear to a reasonable official when Howards was arrested.
Cite as: 566 U. S. ____ (2012) 11
Opinion of the Court
Howards’ arrest, the Sixth Circuit held that Hartman
required a plaintiff alleging a retaliatory arrest to show
that the defendant officer lacked probable cause. See
Barnes v. Wright, 449 F. 3d 709, 720 (2006) (reasoning
that the Hartman “rule sweeps broadly”). That court’s
treatment of Hartman confirms that the inapplicability of
Hartman to arrests would not have been clear to a reason-
able officer when Howards was arrested. Moreover, since
Howards’ arrest, additional Courts of Appeals have con-
cluded that Hartman’s no-probable-cause requirement
extends to retaliatory arrests. See, e.g., McCabe v. Parker,
608 F. 3d 1068, 1075 (CA8 2010); Phillips v. Irvin, 222
Fed. Appx. 928, 929 (CA11 2007) (per curiam). As we have
previously observed, “[i]f judges thus disagree on a consti-
tutional question, it is unfair to subject police to money
damages for picking the losing side of the controversy.”
Wilson v. Layne, 526 U. S. 603, 618 (1999).7
* * *
Hartman injected uncertainty into the law governing
retaliatory arrests, particularly in light of Hartman’s
rationale and the close relationship between retaliatory
arrest and prosecution claims. This uncertainty was only
confirmed by subsequent appellate decisions that disa-
greed over whether the reasoning in Hartman applied
similarly to retaliatory arrests. Accordingly, when How-
ards was arrested it was not clearly established that an
arrest supported by probable cause could give rise to a
First Amendment violation. Petitioners Reichle and Doyle
are thus entitled to qualified immunity.
The judgment of the Court of Appeals is reversed, and
——————
7 Indeed, the Tenth Circuit itself has applied Hartman outside the
context of retaliatory prosecution. See McBeth v. Himes, 598 F. 3d 708,
719 (2010) (requiring the absence of probable cause in the context of a
claim alleging that government officials suspended a business license in
retaliation for the exercise of First Amendment rights).
12 REICHLE v. HOWARDS
Opinion of the Court
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 566 U. S. ____ (2012) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–262
_________________
VIRGIL D. “GUS” REICHLE, JR., ET AL., PETITIONERS
v. STEVEN HOWARDS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 4, 2012]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
concurring in the judgment.
Were defendants ordinary law enforcement officers, I
would hold that Hartman v. Moore, 547 U. S. 250 (2006),
does not support their entitlement to qualified immunity.
Hartman involved a charge of retaliatory prosecution. As
the Court explains, the defendant in such a case cannot
be the prosecutor who made the decision to pursue charges.
See ante, at 9; Hartman, 547 U. S., at 262 (noting
that prosecutors are “absolutely immune from liability for
the decision to prosecute”). Rather, the defendant will be
another government official who, motivated by retaliatory
animus, convinced the prosecutor to act. See ibid.; ante, at
9. 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’s
own injurious action, but between the retaliatory animus
of 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 nonprosecuting government agent’s motive and the
prosecutor’s action.”). See also id., at 259 (“[T]he need to
prove a chain of causation from animus to injury, with
2 REICHLE v. HOWARDS
GINSBURG, J., concurring in judgment
details specific to retaliatory-prosecution cases, . . . pro-
vides the strongest justification for the no-probable-cause
requirement.” (emphasis added)).
A similar causation problem will not arise in the typi-
cal 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 gov-
ernment official’s animus and a second government offi-
cial’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. In performing
that protective function, they rightly take into account
words spoken to, or in the proximity of, the person whose
safety is their charge. Whatever the views of Secret Ser-
vice Agents Reichle and Doyle on the administration’s
policies in Iraq, they were duty bound to take the con-
tent of Howards’ statements into account in determining
whether he posed an immediate threat to the Vice Presi-
dent’s physical security. Retaliatory animus cannot be
inferred from the assessment they made in that regard. If
rational, that assessment should not expose them to
claims for civil damages. Cf. 18 U. S. C. §3056(d) (know-
ingly and willfully resisting federal law enforcement agent
engaged in protective function is punishable by fine (up to
$1,000) and imprisonment (up to one year)); §1751(e)
(assaulting President or Vice President is a crime punish-
able by fine and imprisonment up to ten years).