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

NOTICE: This opinion is subject to formal revision before publication in the

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).