explaining that Supreme Court’s decision in Ziglar abrogated the Third Circuit's prior decisions recognizing an implied right to sue federal officials for damages for First Amendment violations, which included Milhouse v. Carlson, 652 F.2d 371 , 373—74 (3d Cir. 1981), which had “impl[ied] a Bivens remedy under the First Amendment for the denial of a prisoner's right of access to courts”
How later courts described this case
- explaining that Supreme Court’s decision in Ziglar abrogated the Third Circuit's prior decisions recognizing an implied right to sue federal officials for damages for First Amendment violations, which included Milhouse v. Carlson, 652 F.2d 371 , 373—74 (3d Cir. 1981), which had “impl[ied] a Bivens remedy under the First Amendment for the denial of a prisoner's right of access to courts”
- explaining that a court “may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all” to avoid deciding constitutional questions unnecessarily
- holding that alleged First Amendment right to be free from retaliatory arrest when arrest is otherwise supported by probable cause not clearly established at time of plaintiff’s arrest, even when precedential decision in Circuit whose law governed could be read to suggest otherwise
- explaining that “the right allegedly violated must be established not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official[.]” (internal quotation marks and citations omitted)
Written by the judges who cited it.
The opinion
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 *671 the prosecutor who made the decision to pursue charges. See ante, at 667-668; 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 667-668. 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 details specific to retaliatory-prosecution cases,... provides the strongest justification for the no-probable-cause requirement.” (emphasis added)).
A similar causation problem will not arise in the typical 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 government official’s animus and a second government official’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 Service Agents *672 Reichle and Doyle on the administration’s policies in Iraq, they were dutybóund to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’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) (knowingly 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 punishable by fine and imprisonment up to ten years).