Petition for Writ of Certiorari — Joseph M. Hoskins, Petitioner v. Jared Withers, et al.

No.

In the Supreme Court of the United States

JOSEPH M. HOSKINS, PETITIONER,

v.

JARED WITHERS; JESSE ANDERSON.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KARRA J. PORTER

ANNA P. CHRISTIANSEN

CHRISTENSEN & JENSEN

257 East 200 South

Suite 1100

Salt Lake City, UT 84111

(801) 323-5000

ANDREW T. TUTT

Counsel of Record

KATIE WENG

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

NICOLE MASIELLO

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

QUESTION PRESENTED

This case concerns the application of qualified

immunity in constitutional retaliation cases. The courts of

appeals are deeply fractured about how to apply qualified

immunity in such cases.

Constitutional retaliation cases always involve two

things: (1) a constitutional right and (2) retaliation for

exercising that right. Courts are radically torn over how

qualified immunity applies to those elements. Some courts

hold that qualified immunity is overcome if the right itself

is clearly established. Others hold that qualified immunity

bars the claim unless this specific right has been

retaliated against in this specific way before. Here, the

Tenth Circuit panel took the latter tack, deepening the

longstanding confusion on this issue.

A law enforcement officer pointed a loaded gun at the

plaintiff (petitioner here) in retaliation for petitioner

cursing at him. No one disputes that the First

Amendment right here is clearly established. But the

panel below granted the officer qualified immunity

because the Tenth Circuit had, at the time of the incident,

“no precedents finding a First Amendment violation when

an officer points a gun at a suspect to retaliate for

protected speech.”

The questions presented are:

1. Whether qualified immunity shields government

officials from liability even in cases where they retaliate

against a person for exercising a clearly established

constitutional right.

2. Whether, even assuming a plaintiff must show that

retaliatory conduct is clearly unlawful, qualified immunity

should have been denied because the retaliatory conduct

here was clearly unlawful.

(i)

RELATED PROCEEDINGS

United States District Court (D. Utah):

Hoskins v. Withers, No. 2:20-CV-00749, 2022 WL

3576276 (D. Utah, Aug. 18, 2022) (order granting

motion to dismiss)

United States Court of Appeals (10th Cir.):

Hoskins v. Withers, No. 22-4081, 92 F.4th 1279 (10th

Cir. 2024) (affirming dismissal), rehearing denied

(June 3, 2024)

(ii)

TABLE OF CONTENTS

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory and Constitutional Provisions

Involved ................................................................................. 1

Statement of the Case.......................................................... 1

A. Legal Background .................................................. 3

B. Factual and Procedural Background ................... 5

Reasons for Granting the Petition ..................................... 9

I. The Application of Qualified Immunity in

Retaliation Cases Is the Subject of Nationwide

Confusion ....................................................................... 9

II. The Questions Presented Are Important and

Warrant Review in this Case ..................................... 23

Conclusion ........................................................................... 26

Appendix A: Tenth Circuit Court of Appeals Opinion

(Feb. 20, 2024)............................................. 1a

Appendix B: District Court Memorandum Decision and

Order (Aug. 18, 2022) ............................... 33a

Appendix C: Tenth Circuit Court of Appeals Order

Denying Petition for Rehearing and

Rehearing En Banc (June 3, 2024) ......... 59a

Appendix D: 42 U.S.C. § 1983 ........................................ 60a

Appendix E: Plaintiff’s Revised Amended Complaint

(Mar. 19, 2021) .......................................... 61a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Barton v. Clancy,

632 F.3d 9 (1st Cir. 2011) .......................................... 13, 14

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) ................................. 21, 22

Berge v. School Committee of Gloucester,

107 F.4th 33 (1st Cir. 2024) ............................................ 13

Bloch v. Ribar,

156 F.3d 673 (6th Cir. 1998) ................................. 4, 16, 17

Booker v. South Carolina Dep’t of Corrs.,

855 F.3d 533 (4th Cir. 2017) ........................................... 15

Brandy v. City of St. Louis,

75 F.4th 908 (8th Cir. 2023) ............................................ 19

Campbell v. Mack,

777 F. App’x 122 (6th Cir. 2019) .............................. 16, 17

Capp v. County of San Diego,

940 F.3d 1046 (9th Cir. 2019) ................................... 20, 21

Chavez v. Martinez,

538 U.S. 760 (2003) ............................................................ 5

Connell v. Signoracci,

153 F.3d 74 (2d Cir. 1998) ................................................. 4

Crawford-El v. Britton,

523 U.S. 574 (1998) ........................................................ 3, 4

DeLoach v. Bevers,

922 F.2d 618 (10th Cir. 1990) ................... 2, 10, 11, 16, 17

District of Columbia v. Wesby,

583 U.S. 48 (2018) ................................................ 2, 4, 5, 23

Echols v. Lawton,

913 F.3d 1313 (11th Cir. 2019) ....................................... 22

Eichenlaub v. Township of Indiana,

385 F.3d 274 (3d Cir. 2004) ............................................... 4

(iv)

v

Cases—Continued

Page(s)

Gericke v. Begin,

753 F.3d 1 (1st Cir. 2014) ................................................ 13

Golodner v. Berliner,

770 F.3d 196 (2d Cir. 2014) ............................................. 14

Hobgood v. Ill. Gaming Bd.,

731 F.3d 635 (7th Cir. 2013) ........................................... 18

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) .................................. 11, 25

J.T.H. v. Missouri Dep’t of Social Services

Children’s Division,

39 F.4th 489 (8th Cir. 2022) ............................................ 20

Josephson v. Ganzel,

115 F.4th 771 (6th Cir. 2024) .......................................... 17

Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002) ............................................. 4

Kristofek v. Village of Orland Hills,

832 F.3d 785 (7th Cir. 2016) ........................................... 18

Lynch v. Ackley,

811 F.3d 569 (2d Cir. 2016) ............................................. 14

MacIntosh v. Clous,

69 F.4th 309 (6th Cir. 2023) ................................ 16, 17, 18

Martin v. Duffy,

858 F.3d 239 (4th Cir. 2017) ........................................... 15

Mirabella v. Villard,

853 F.3d 641 (3d Cir. 2017) ............................................. 15

Moore v. Garnand,

83 F.4th 743 (9th Cir. 2023) ............................................ 21

Naucke v. City of Park Hills,

284 F.3d 923 (8th Cir. 2002) ............................................. 4

Nieves v. Bartlett,

587 U.S. 391 (2019) ........................................................ 7, 8

vi

Cases—Continued

Page(s)

Outlaw v. City of Hartford,

884 F.3d 351 (2d Cir. 2018) ............................................. 24

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................................... 24

Rasho v. Elyea,

856 F.3d 469 (7th Cir. 2017) ........................................... 18

Riley’s American Heritage Farms v.

Elsasser,

32 F.4th 707 (9th Cir. 2022) ............................................ 21

Robbins v. Wilkie,

433 F.3d 755 (10th Cir. 2006) ......................................... 11

Sharpe v. Winterville Police Department,

59 F.4th 674 (4th Cir. 2023) ...................................... 15, 16

Siddique v. Laliberte,

972 F.3d 898 (7th Cir. 2020) ........................................... 18

Solomon v. Petray,

795 F.3d 777 (8th Cir. 2015) ........................................... 19

Starnes v. Butler County Court of

Common Pleas,

971 F.3d 416 (3d Cir. 2020) ....................................... 14, 15

Taylor v. Riojas,

592 U.S. 7 (2020) ................................................................ 5

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir. 1999) ........................................... 16

Van Deelen v. Johnson,

497 F.3d 1151 (10th Cir. 2007) ............................. 4, 11, 25

Volkman v. Ryker,

736 F.3d 1084 (7th Cir. 2013) ......................................... 18

Watson v. Boyd,

No. 22-3233, 2024 WL 4531400

(8th Cir. Oct. 21, 2024) .......................................... 3, 19, 20

vii

Cases—Continued

Page(s)

Wilkie v. Robbins,

551 U.S. 537 (2007) ............................................................ 3

Worrell v. Henry,

219 F.3d 1197 (10th Cir. 2000) ................................... 4, 11

Constitutional Provisions and Statutes

Amend. I ........... 7, 8, 12, 13, 14, 16, 17, 18, 19, 21, 22, 24, 25

Amend. IV ......................................................................... 5, 7

Amend. V ......................................................................... 5, 11

Amend. VIII ......................................................................... 5

28 U.S.C. § 1254(1) ............................................................... 1

42 U.S.C. § 1983 ............................................ 1, 4, 7, 9, 22, 25

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-32a)

is reported at 92 F.4th 1279 (10th Cir. 2024). The opinion

of the district court (Pet. App. 33a-58a) is unreported but

available at 2022 WL 3576276 (D. Utah Aug. 18, 2022). The

order of the court of appeals denying rehearing en banc

(Pet. App. 59a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 20, 2024. Pet. App. 1a. The court of appeals

denied a timely petition for rehearing en banc on June 3,

2024. Pet. App. 59a. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

The relevant statutory provision, 42 U.S.C. § 1983, is

reproduced in the petition appendix, Pet. App. 60a.

STATEMENT OF THE CASE

This case presents an important and recurring

question over which the courts of appeals are deeply

divided: Whether it is enough to overcome qualified

immunity to show that a state official retaliated against a

person for exercising a clearly established constitutional

right.

No court of appeals consistently uses any one

approach to the application of qualified immunity in

constitutional retaliation cases. The rule should be clear

and obvious under this Court’s precedents: once a plaintiff

establishes that he was exercising a clearly established

constitutional right, qualified immunity should have no

role to play. That is what this Court’s cases say: an official

(1)

2

who retaliates against a person for exercising a clearly

established constitutional right knows by definition that

“what he is doing is unlawful.” District of Columbia v.

Wesby, 583 U.S. 48, 63 (2018) (cleaned up). But rather

than apply that straightforward rule, courts are all over

the map, some applying rules that look to whether the

particular form of retaliation has been held to be unlawful

before, and some focusing even more granularly on

whether the specific constitutional right at issue has ever

been retaliated against in the same specific way. Those

tests, although divorced from this Court’s qualified

immunity precedents, are rampant in the lower courts.

The decision below illustrates the nationwide

confusion. For decades, the Tenth Circuit held that a

plaintiff alleging retaliation needs only to establish the

right he exercised was clearly established. That rule

followed from the plain fact that, so long as an underlying

constitutional right is clearly established, every

reasonable government official knows that retaliating

against a person for its exercise is unlawful. DeLoach v.

Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (“The unlawful

intent inherent in . . . retaliatory action places it beyond

the scope of a police officer’s qualified immunity if the

right retaliated against was clearly established.”). But, in

this case, the Tenth Circuit panel found it insufficient that

the right was clearly established: petitioner needed to also

show that the particular retaliatory action had been used

to retaliate against a person for the exercise of the same

right in a previous case.

This case satisfies all the criteria for granting review.

This question recurs hundreds of times in constitutional

retaliation cases nationwide every year, often resulting in

erroneous grants of qualified immunity in important

cases. Courts are all over the map on the question,

applying qualified immunity differently from panel to

panel and case to case. The doctrine in this area is so

3

splintered it is not even possible to define a circuit conflict

on the issue—the situation in the courts of appeals is

worse than a mere circuit conflict. As this case

exemplifies, not only is the law being administered in the

lower courts lacking in uniformity, but it is incoherent.

The effect is to transform constitutional retaliation cases

into a kind of judicial lottery in which the particular judge

(and later appellate panel) dictates whether qualified

immunity applies. See, e.g., Watson v. Boyd, No. 22-3233,

-- F.4th --, 2024 WL 4531400, at *13-14 (8th Cir. Oct. 21,

2024) (denying qualified immunity in a case factually

indistinguishable from petitioner’s).

Further percolation is futile: courts that have been

squarely presented with these issues (like the Tenth

Circuit below) have failed to grapple with them.

Meanwhile, the arguments are fully developed, the

confusion is entrenched, and there is no genuine likelihood

that the fractured circuits will coalesce on the same

standard. The question presented affects thousands of

civil rights plaintiffs and would-be civil rights plaintiffs

each year. The state of confusion in the lower courts is so

pronounced, so pervasive, and so longstanding that it

cannot possibly resolve without this Court’s intervention.

Because this case presents an ideal vehicle for resolving a

deeply important question, this petition should be

granted.

A.

Legal Background

1. This Court has long recognized that a

constitutional right can be violated not only by directly

infringing the right but also by retaliating against a

person for its exercise. See Wilkie v. Robbins, 551 U.S.

537, 555-56 (2007) (collecting cases for the “longstanding

recognition that the Government may not retaliate for

exercising” rights “of constitutional rank”). Such

retaliatory action “offends the Constitution [because] it

4

threatens to inhibit exercise of the protected right.”

Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998).

This Court has not clarified the precise elements

necessary to establish a retaliation claim, but the courts

of appeals have settled on a consensus framework for

when a plaintiff alleges constitutional retaliation.1 Under

that framework, a litigant makes out a retaliation claim by

establishing (1) that they exercised a constitutional right;

(2) that a government official took a retaliatory action to

punish that person for exercising that right; and (3) that

the retaliatory action was sufficiently serious to chill a

person of ordinary firmness from exercising the right.

See, e.g., Van Deelen v. Johnson, 497 F.3d 1151, 1155 (10th

Cir. 2007) (Gorsuch, J.).

Retaliation cases often arise in constitutional tort

suits under 42 U.S.C. § 1983 where qualified immunity

operates as an overlay. Thus, courts often must decide

whether a defendant against whom retaliation is alleged

is entitled to qualified immunity. Under this Court’s

qualified immunity precedents, an officer is shielded from

liability for violating a constitutional right unless they are

incompetent or malevolent. District of Columbia v.

Wesby, 583 U.S. 48, 63 (2018). A plaintiff can only defeat a

defendant’s invocation of a qualified immunity defense by

establishing that (1) the officer violated a federal

statutory or constitutional right, and (2) the right at issue

See, e,g,, Worrell v. Henry, 219 F.3d 1197, 1212-13 (10th Cir.

2000); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); Connell v.

Signoracci, 153 F.3d 74, 79 (2d Cir. 1998); Naucke v. City of Park

Hills, 284 F.3d 923, 927-28 (8th Cir. 2002); Keenan v. Tejeda, 290

F.3d 252, 258 (5th Cir. 2002); Eichenlaub v. Township of Indiana,

385 F.3d 274, 282 (3d Cir. 2004).

1

5

was clearly established such that every reasonable officer

would know violating that right was unlawful. Id. at 62-63.

The application of qualified immunity to cases

involving allegations of the direct violation of a person’s

constitutional rights—for instance, engaging in an

unlawful seizure, subjecting her to cruel and unusual

punishment, denying her access to counsel—is relatively

straightforward notwithstanding some difficulty at the

margins. This Court has issued dozens of opinions

clarifying the application of qualified immunity in cases

involving allegations of the direct infringement of

constitutional rights. See, e.g., Taylor v. Riojas, 592 U.S.

7, 8-9 (2020) (alleging violation of Eighth Amendment’s

prohibition on cruel and unusual punishment); Wesby, 583

U.S. at 62-63 (false arrest in violation of Fourth

Amendment); Chavez v. Martinez, 538 U.S. 760, 773

(2003) (Fifth Amendment right to be free from selfincrimination). This Court has applied this same uniform

framework to each of these cases, regardless of the right

at issue. The Court has never stated that any specific type

of claim is subject to a different framework.

But this Court has never meaningfully grappled with

how to apply qualified immunity to retaliation cases. This

Court has no cases where the question of what, exactly,

must be clearly established in a retaliation case has been

squarely presented and resolved. And as explained below,

infra Section I, the courts of appeals are in exceptional

disarray over what must be clearly established for a

plaintiff to overcome qualified immunity in a retaliation

case.

B. Factual and Procedural Background

1. In 2018, during highway patrol, respondent Officer

Jared Withers stopped petitioner Joseph M. Hoskins

6

because of a minor “equipment violation”: petitioner’s

car’s license plate frame partially obscured the issuing

state. Pet. App. 34a, 62a-63a. Petitioner cooperated with

respondent, proving he was unarmed and even sitting in

the patrol vehicle while respondent wrote a citation for

equipment violation. Pet. App. 34a-35a.

The traffic stop escalated when, instead of simply

issuing the citation, respondent continued to detain

petitioner. Pet. App. 35a-36a. He led a trained narcotics

dog in a search of the exterior of petitioner’s car, where

the dog repeatedly jumped on petitioner’s vehicle.

Pet. App. 4a-5a, 77a. The dog’s conduct began to unsettle

petitioner, who was understandably worried about

damage to his car. Pet. App. 77a, 79a. Respondent then

decided to conduct a search of the interior of the car.

Pet. App. 5a, 35a. He instructed petitioner to exit the

patrol car, put his cell phone on the hood, and stand

nearby.

Pet. App. 35a-36a.

Petitioner

complied.

Pet. App. 5a, 79a-80a. Respondent then saw petitioner

using another cell phone; the officer grabbed it and

physically pushed petitioner. Pet. App. 36a.

Frustrated by the prolonged traffic stop and the

dog’s damage to his car during the search, petitioner

cursed at respondent, including a heated exclamation of

“fuck your mom!” Pet. App. 81a. In retaliation,

respondent drew his gun and pointed it directly at

petitioner. Pet. App. 36a. Body camera footage captured

respondent later telling a fellow officer that he “[did not]

like” petitioner after what he said about respondent’s

mom, feeling that comment was particularly “below the

belt.” Pet. App. 36a.

With his gun drawn and aimed at petitioner,

respondent told petitioner to take his hands out of his

7

pockets and place them on the back of his head. Petitioner,

shocked and frightened, replied: “I don’t have anything.

My hands are out of my pockets.” Pet. App. 82a.

Petitioner complied with respondent’s orders.

Pet. App. 36a. Petitioner was then handcuffed and

detained in a patrol vehicle while respondent and backup

officers searched his car. Pet. App. 36a-37a. No criminal

charges were ever brought against petitioner.

Pet. App. 37a-38a.

2.a. In 2020, petitioner filed a case under 42 U.S.C.

§ 1983 against respondent in his individual capacity,

alleging two constitutional violations surrounding the

traffic stop: Fourth Amendment unreasonable search and

seizure, and First Amendment retaliation. Pet. App. 63a,

91a-94a. The First Amendment retaliation claim alleged

that respondent used “unreasonable force” in retaliation

for petitioner’s protected speech. Pet. App. 93a. The

unreasonable force “[took] the form of” respondent

“drawing his gun” and aiming it at petitioner after

petitioner did nothing more than speak his mind and

express his frustration. Pet. App. 93a. Respondent moved

to dismiss the two constitutional claims on the basis of

qualified immunity. Pet. App. 23a, 39a.

b. The district court granted the motion to dismiss,

holding that petitioner failed to state a First Amendment

retaliation claim. Pet. App. 23a, 54a-55a. The holding

rested on the court’s application—or rather, extension—

of Nieves v. Bartlett, 587 U.S. 391 (2019). Pet. App. 54a55a. In Nieves, this Court announced: “If an official takes

adverse action against someone based on that forbidden

[retaliatory] motive, and non-retaliatory grounds are in

fact insufficient to provoke the adverse consequences,”

the plaintiff generally states a First Amendment

8

retaliation claim. 587 U.S. at 398. Applying the “same

rule” from Nieves even though it “involved an arrest

rather than the use of force,” the district court concluded

that respondent had “non-retaliatory grounds” for

drawing his gun on petitioner. Pet. App. 55a.

c. A panel of the Tenth Circuit affirmed the dismissal

on a different basis—namely, on the basis of qualified

immunity. Pet. App. 23a. The court held that respondent

had qualified immunity on the First Amendment claim

because he had not violated a “clearly established

protection against a retaliatory use of force.”

Pet. App. 24a-25a. The panel assumed that petitioner had

engaged in constitutionally “protected speech,” and that

respondent’s action was a “retaliatory use of force”

against that speech. Pet. App. 23a-24a.

After assuming petitioner stated a plausible First

Amendment claim, the panel then turned to whether

respondent’s particular actions had been clearly

established as a violation of the First Amendment.

Pet. App. 24a. To the panel, the question on appeal was:

Did respondent “violate a clearly established

constitutional right by pointing a gun at [petitioner] to

retaliate for protected speech?” Pet. App. 3a. The panel

“answer[ed] no,” Pet. App. 3a, reasoning that it “had no

precedents finding a First Amendment violation when an

officer points a gun at a suspect to retaliate for protected

speech,” Pet. App. 24a.

d. Petitioner filed a timely petition for a rehearing en

banc on April 4, 2024, and the court denied the petition on

June 3, 2024. Pet. App. 59a.

9

REASONS FOR GRANTING THE PETITION

This Court’s intervention is necessary to bring

uniformity to federal law on a critically important and

recurrent issue. Lower courts are in utter disarray over

how to apply qualified immunity in constitutional

retaliation cases. This issue is critically important, arising

(at least) hundreds of times each year in civil rights cases

across the United States. Qualified immunity is

frequently the outcome-determinative legal issue in

constitutional retaliation cases brought under 42 U.S.C.

§ 1983. The legal framework governing how qualified

immunity applies in such cases should be clear and

uniform.

I.

THE APPLICATION OF QUALIFIED IMMUNITY IN

RETALIATION CASES IS THE SUBJECT OF

NATIONWIDE CONFUSION

The federal courts of appeals are in complete chaos

over how to apply qualified immunity to constitutional

retaliation claims.

Sometimes, courts look only to whether the plaintiff

was engaged in the exercise of a clearly established

constitutional right. If so, that is the end of the inquiry,

and qualified immunity provides no defense. Other times,

courts look to whether the particular retaliatory conduct

used has ever been found to be retaliatory in the past (that

is, that it is “clearly established” to be retaliatory). If so,

and assuming the constitutional right is also clearly

established, they will hold that qualified immunity is

overcome. And still other times, as in this case, courts look

to whether the specific right alleged to have been

retaliated against has been retaliated against in the same

specific way it was retaliated against in the case at bar.

Only if the plaintiff can show that a prior retaliation case

10

matches his fact pattern exactly can the plaintiff

overcome the qualified immunity bar.

The disarray in the courts of appeals is damaging to

civil rights plaintiffs and civil rights enforcement

nationwide. It leads to wildly divergent qualified

immunity analyses, and wildly divergent outcomes, in

cases presenting identical facts. It transforms efforts to

hold officials accountable for retaliating against the

exercise of clearly established constitutional rights into a

guessing game. This Court’s review of this question is

desperately warranted.

A. Tenth Circuit. The confusion (and divergent

outcomes) in the Tenth Circuit exemplifies the confusion

nationwide over how to apply qualified immunity in

retaliation cases.

For decades, the Tenth Circuit has required

retaliation plaintiffs to show that their constitutional

rights were “clearly establish[ed]” in order to withstand a

qualified immunity defense, as set forth in DeLoach v.

Bevers, 922 F.2d 618 (10th Cir. 1990).

In DeLoach, the plaintiff retained counsel during a

criminal investigation into the death of an infant who died

while in the plaintiff’s care. Id. at 619. The plaintiff alleged

that in retaliation for the plaintiff retaining counsel during

the investigation, a police detective filed a false affidavit

that led to the plaintiff’s arrest on murder charges. Id.

The Tenth Circuit held that qualified immunity was no

defense to the plaintiff’s retaliation suit because the

plaintiff’s ”right to retain and consult with an attorney”

was “clearly established.” Id. at 619-20. There was no

need for the plaintiff to establish that the right to counsel

had been retaliated against in precisely that way before:

the “unlawful intent inherent in … a retaliatory action

places it beyond the scope of a police officer’s qualified

11

immunity if the right retaliated against was clearly

established.” Id. at 620 (emphasis added).

Over the years, the Tenth Circuit has sporadically

applied DeLoach. For example, the court reaffirmed the

DeLoach standard in Worrell v. Henry, 219 F.3d 1197

(10th Cir. 2000), holding that once the defendant’s

retaliatory intent is shown “[u]nder [the DeLoach]

framework,” then the qualified immunity analysis rests on

whether “the right retaliated against was clearly

established.” Id. at 1215-16. The Tenth Circuit also

applied DeLoach in Robbins v. Wilkie, a case alleging

retaliation for the exercise of Fifth Amendment rights,

stating the qualified immunity analysis “requires only

that the right retaliated against be clearly established.”

433 F.3d 755, 767 (10th Cir. 2006) (emphasis added).

The Tenth Circuit also used this framework (albeit

without citation) in its seminal decision in Van Deelen v.

Johnson, 497 F.3d 1151, 1154 (10th Cir. 2007) (Gorsuch,

J.). In Van Deelen, government officials allegedly

intimidated and threatened to shoot the plaintiff in

retaliation for filing tax assessment challenges. 497 F.3d

at 1154. The panel concluded that qualified immunity was

overcome by looking solely at whether the right at issue

was clearly established. See id. at 1158 (explaining “the

right at issue—to petition the government for the redress

of tax grievances—has been with us and clearly

established since the Sons of Liberty visited Griffin's

Wharf in Boston”).

More recently, in Irizarry v. Yehia, 38 F.4th 1282

(10th Cir. 2022), the Tenth Circuit denied qualified

immunity to a police officer who retaliated against a

plaintiff for filming a traffic stop by shining a flashlight

into the camera and using his body to obstruct the view.

Id. at 1297 (“Because filming police conduct in public is a

12

clearly established First Amendment right, it would be

obvious to a reasonable officer that blocking Mr. Irizarry's

filming, shining a flashlight into the camera lens, and

driving a police car at him in response to that filming

would infringe First Amendment protected activity and

chill its exercise.”).

The qualified immunity analysis used by the Tenth

Circuit below is irreconcilable with the analysis in those

cases. The panel stated that it could “assume for the sake

of argument that the cursing and complaints constituted

protected speech.” Pet. App. 23a-24a. But “[e]ven with

this assumption, however, we had no precedents finding a

First Amendment violation when an officer points a gun

at a suspect to retaliate for protected speech.”

Pet. App. 24a. According to the panel, “[e]ven if Trooper

Withers had scoured the case law, he might reasonably

have concluded that the First Amendment wouldn't

prevent him from pointing his gun at Mr. Hoskins in the

face of his cursing and complaints.” Pet. App. 24a. As of

the date of the incident, “a retaliatory use of force hadn’t

been clearly established as a First Amendment violation”

in the Tenth Circuit. Pet. App. 24a & n.12. Thus, qualified

immunity barred petitioner’s claim. Pet. App. 23a-25a.2

B. Other Circuits. The other circuits are similarly all

over the map in their approaches to qualified immunity in

constitutional retaliation cases. Virtually every circuit has

cases that use contradictory approaches to qualified

immunity analysis—with some panels holding that only

the right needs to be clearly established, and others

holding both that the right must be clearly established

Petitioner raised the intra-circuit conflict in a petition for

rehearing but the panel denied rehearing and the full Tenth Circuit

denied rehearing en banc. Pet. App. 59a.

2

13

and that the method of retaliation must be previously held

to be unlawful.

First Circuit. In Berge v. School Committee of

Gloucester, 107 F.4th 33, 35 (1st Cir. 2024), the First

Circuit denied qualified immunity to a public official that

threatened a citizen-journalist with legal action if he did

not remove a video from Facebook. Id. at 35. The court

denied qualified immunity because the “complaint

plausibly alleges that the threat constituted First

Amendment retaliation in violation of his clearly

established right.” Id. at 44 (emphasis added). The

plaintiff had “pled a violation of a clearly established right

to publish on a topic of public interest,” and the

defendants threatened him with legal action after he

exercised that right. Id. That was sufficient to overcome

qualified immunity.

The First Circuit used a similar approach in Gericke

v. Begin, 753 F.3d 1 (1st Cir. 2014), in reaching the

conclusion that a police officer retaliating against a person

for having attempted to film a law enforcement encounter

by charging her with illegal wiretapping was clearly

unlawful because the right to film police was already

clearly established in the First Circuit. Id. at 6-10.

In stark contrast, in Barton v. Clancy, 632 F.3d 9 (1st

Cir. 2011), the First Circuit granted qualified immunity

because “it was not clearly established that the loss of an

unpaid volunteer position could form the basis of a First

Amendment retaliation claim.” Id. at 26-27. While the

Court found that “retaliatory actions may tend to chill

individuals’ exercise of constitutional rights” and that “as

a general matter, the government may not deprive an

individual of a ‘valuable government benefit[]’ in

retaliation for his or her exercise of First Amendment

rights,” the Court found that even as to retaliatory

14

harassment, the defendant “lacked ‘fair warning that his

particular conduct was unconstitutional.’” Id. at 23, 30

(citations omitted).

Second Circuit. In Golodner v. Berliner, 770 F.3d

196 (2d Cir. 2014), the Second Circuit denied qualified

immunity to city officials that allegedly retaliated against

the plaintiff by discontinuing a city contract with the

plaintiff because the plaintiff filed a lawsuit alleging the

city had an unconstitutional arrest policy. See id. at 199,

206. The Second Circuit denied qualified immunity

because “‘the First Amendment right of public employees

to be free from retaliation for speech on matters of public

concern’ is beyond debate.” Id. at 206 (citation omitted).

In direct conflict, in Lynch v. Ackley, 811 F.3d 569 (2d

Cir. 2016), the Second Circuit granted qualified immunity

to a police chief that allegedly retaliated against an officer

by (among other things) encouraging an investigative

reporter to seek out and publish derogatory information

about the officer because the officer engaged in speech

critical of the police chief’s performance. Id. at 573, 580.

In granting qualified immunity the Second Circuit

explained that “there was no clear law as to whether [the

police chief’s] alleged retaliatory actions constituted

prohibited retaliation.” Id. at 579; see also id. at 579-83.

Third Circuit. In Starnes v. Butler County Court of

Common Pleas, 971 F.3d 416 (3d Cir. 2020), the Third

Circuit denied qualified immunity where the defendant

allegedly denied the plaintiff employment perks because

she had denied his romantic advances and filed an EEOC

complaint against him. Id. at 423. In denying immunity,

the court looked solely to whether the right was clearly

established and held that it was; it thus followed

automatically that the retaliation was unlawful. See id. at

427-29. The court did not assess whether precedent

15

established that retaliation in that precise manner was

already clearly established as unconstitutional. See id.

In sharp contrast, in Mirabella v. Villard, 853 F.3d

641 (3d Cir. 2017), the court granted qualified immunity

to a defendant that retaliated against the plaintiffs by

barring them from contact with city officials. Id. at 65051. The Third Circuit specifically held that it was granting

qualified immunity because it was not “clearly established

that the defendant’s act was retaliatory.” Id. at 653.

Finding no case on point that had previously established

a “right to be free from a retaliatory restriction on

communication with one’s government, when the plaintiff

has threatened or engaged in litigation against the

government” the Third Circuit granted the defendant

qualified immunity. Id.

Fourth Circuit. In Booker v. South Carolina

Department of Corrections, 855 F.3d 533 (4th Cir. 2017),

the Fourth Circuit denied qualified immunity to a prison

official who had retaliated against the plaintiff for filing a

prison grievance. Id. at 535-36. The court denied qualified

immunity because it found that inmates possess a clearly

established right “to be free from retaliation in response

to filing a prison grievance.” Id. at 540-41, 544. The court

made absolutely no inquiry into the method by which the

retaliation was effectuated. See also Martin v. Duffy, 858

F.3d 239, 251 (4th Cir. 2017) (same for retaliatory act of

placing the plaintiff in administrative segregation).

In direct conflict, in Sharpe v. Winterville Police

Department, 59 F.4th 674 (4th Cir. 2023), the Fourth

Circuit granted qualified immunity to a police officer who

retaliated against a vehicle passenger for livestreaming

him during a routine traffic stop. Id. at 678-79. Despite

holding that the right to film police is clearly protected,

the Fourth Circuit found qualified immunity barred the

16

claim because the plaintiff could not “show that a

reasonable official in [the officer’s] shoes would

understand that his [retaliatory] actions”—physically

grabbing the plaintiff’s seatbelt and threatening him with

future arrest—“violated the First Amendment.” Id. at

684.

Sixth Circuit. The Sixth Circuit (like the Tenth) has

an announced rule for adjudicating qualified immunity in

constitutional retaliation cases: plaintiffs alleging

unconstitutional retaliation in the Sixth Circuit overcome

qualified immunity “if the right retaliated against was

clearly established.” Bloch v. Ribar, 156 F.3d 673, 682 (6th

Cir. 1998) (quoting DeLoach, 922 F.2d at 620).

The Sixth Circuit has numerous cases applying that

rule. Recognizing that “government actions, which

standing alone do not violate the Constitution, may

nonetheless be[come] constitutional torts if motivated in

substantial part … to punish an individual for exercise of

a constitutional right,” MacIntosh v. Clous, 69 F.4th 309,

316 (6th Cir. 2023) (quoting Thaddeus-X v. Blatter, 175

F.3d 378, 386 (6th Cir. 1999)), the Sixth Circuit will deny

qualified immunity so long as there is a showing of

retaliatory intent by the defendant, see Campbell v. Mack,

777 F. App’x 122, 136 (6th Cir. 2019).

In Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), for

example, the Sixth Circuit denied qualified immunity to a

sheriff that allegedly retaliated against a rape victim for

criticizing the sheriff's lack of diligence in investigating

the crime by holding a press conference to release the

confidential and highly personal details of the victim’s

rape by an unknown assailant. Id. at 676. The court denied

qualified immunity because the “right to criticize public

officials is clearly established” so “if the [plaintiffs] can

prove that the [sheriff acted] in order to retaliate against

17

their criticism, a reasonable officer should have known

that the action violated the [plaintiffs’] rights and

therefore cannot benefit from the doctrine of qualified

immunity.” Id. at 683; see also Campbell, 777 F. App’x at

135-36 (denying qualified immunity for tightening

plaintiff’s handcuffs after plaintiff protested during a

traffic stop); Josephson v. Ganzel, 115 F.4th 771, 789-90

(6th Cir. 2024) (denying qualified immunity to university

employees alleged to have decided not to renew a

colleague’s contract after he expressed unpopular

opinions on a panel).

But judges on the Sixth Circuit have questioned the

Circuit’s approach. In MacIntosh v. Clous, 69 F.4th 309

(6th Cir. 2023), a concerned citizen urged the Grand

Traverse County Commissioners to speak out against the

Proud Boys’ violent behavior, and one commissioner

responded by producing a high-powered rifle and

displaying it on the video call. Id. at 312-13. The court

affirmed the denial of qualified immunity because the

“law’s proscription of ‘adverse action’ plainly

encompasses threatening a speaker” with a weapon. Id. at

320. Thus, “it was clearly established that [the] conduct

violated [the plaintiff’s] First Amendment rights.” Id. at

321 (emphasis added). In a footnote, the panel insisted

that its “qualified immunity analysis historically focused

on whether a defendant intended to retaliate against a

plaintiff for clearly established First Amendmentprotected activity.” Id. at 320 n.3 (citing Bloch, 156 F.3d

at 682, and DeLoach, 922 F.2d at 620) (emphasis added).

Chief Judge Sutton dissented. Id. at 321-26. Wrote

Judge Sutton: “The question . . . is not whether MacIntosh

had a clearly established right to be free from retaliation

for exercising her First Amendment rights; it is whether

she had a clearly established right to be free from the

18

display of a rifle (or equivalent actions) during a virtual

Board of Commissioners meeting.” Id. at 324 (Sutton,

C.J., dissenting).

Seventh Circuit. In Kristofek v. Village of Orland

Hills, 832 F.3d 785 (7th Cir. 2016), the Seventh Circuit

denied qualified immunity to a police chief who allegedly

retaliated against a police officer by firing him for raising

concerns with other officers and the FBI that the police

chief and local politicians may have engaged in

misconduct. Id. at 790. The Seventh Circuit denied

qualified immunity without any analysis of whether the

specific retaliatory conduct was clearly established to be

retaliatory—all that mattered was that the Seventh

Circuit had “long recognized that an employer may not

retaliate against an employee for expressing his views

about matters of public concern.” Id. at 798 (citation

omitted); see also Rasho v. Elyea, 856 F.3d 469, 479 (7th

Cir. 2017) (finding qualified immunity overcome without

inquiry into whether method of retaliation had previously

been held unlawful); Hobgood v. Ill. Gaming Bd., 731 F.3d

635, 648 (7th Cir. 2013) (same).

In stark contrast, in Siddique v. Laliberte, 972 F.3d

898 (7th Cir. 2020), the Seventh Circuit granted qualified

immunity to university officials that retaliated against a

student by denying him a student-government position

because he took critical stances against members of the

University administration who worked with the student

government and who were involved with the application

process. Id. at 900. The Seventh Circuit held that the

plaintiff had “not met his burden in coming forward with

clearly established federal law” showing that retaliating

against a student for his speech by denying him a studentgovernment position violates the First Amendment. Id. at

903-05; see also, e.g., Volkman v. Ryker, 736 F.3d 1084,

19

1090 (7th Cir. 2013) (finding it insufficient to overcome

qualified immunity to show that “that the First

Amendment right against retaliation, writ large, is clearly

established”).

Eighth Circuit. In Solomon v. Petray, 795 F.3d 777

(8th Cir. 2015), the Eighth Circuit denied qualified

immunity to federal officials that allegedly threatened

and struck a prisoner, in retaliation for the prisoner

writing a derogatory letter to a judge. Id. at 783-84. In

holding that the officers could not claim qualified

immunity the Eighth Circuit held that the officers

violated the prisoner’s “right to be free from retaliation

for exercising his right to expression.” Id. at 787-88; see

also id. at 788-89. The Eighth Circuit held that “[t]his

right is clearly established as it is well-settled that as a

general matter, the First Amendment prohibits

government officials from subjecting an individual to

retaliatory actions on the basis of his constitutionally

protected speech.” Id. at 787-88 (cleaned up). The Eighth

Circuit made no inquiry at all into whether the specific

manner of threatening a prisoner or striking him

employed by the defendants had been clearly established

as retaliatory in a prior case. See id. at 787-89; see also

Brandy v. City of St. Louis, 75 F.4th 908, 914 (8th Cir.

2023) (applying a similar analysis in holding that there is

a “right to exercise First Amendment rights without

facing retaliation from government officials”).3

Recently, the Eighth Circuit decided a case alleging facts

indistinguishable from those at issue here and declined to grant

qualified immunity at summary judgment—in direct conflict with

the holding in this case. The plaintiff alleged that he asked a police

officer for his name and badge number during a traffic stop, and, in

retaliation for that speech, the police officer pulled out his gun,

pointed it at the plaintiff, and told the plaintiff he could “shoot [him]

3

20

In direct conflict, in J.T.H. v. Missouri Department

of Social Services Children’s Division, 39 F.4th 489 (8th

Cir. 2022), two parents sued a child-welfare investigator

for allegedly retaliating against them by initiating an

investigation against them for threatening to sue a law

enforcement official who sexually abused their child. Id.

at 490-91. In granting the defendant investigator qualified

immunity the Eighth Circuit explained that the fact that

the method of retaliation was not clearly established as

unlawful meant that qualified immunity was required:

“even if there is a general right to be free of retaliation,

the law is not clearly established enough to cover the

specific context of the case: retaliatory investigation.” Id.

at 493 (cleaned up).

Ninth Circuit. In Capp v. County of San Diego, 940

F.3d 1046 (9th Cir. 2019), the Ninth Circuit denied

qualified immunity to a social worker that allegedly

retaliated against the plaintiff for questioning the abuse

allegations against him and the legal basis for the social

worker’s interviews by coercing the plaintiff’s ex-wife to

apply to take custody of their children and by placing the

plaintiff on the Child Abuse Central Index. Id. at 1050-52.

The Ninth Circuit denied the defendant social worker

qualified immunity because “it was clear at the time [the

defendant] acted that a government actor could not take

action that would be expected to chill protected speech out

right here and nobody will give a s**t.” Watson v. Boyd, No. 223233, -- F.4th --, 2024 WL 4531400, at *13-14 (8th Cir. Oct. 21, 2024)

(cleaned up). The events in Watson preceded the events in this case

by half a decade, but the Eighth Circuit nonetheless held that it was,

by that time, already clearly established as unlawful for an officer

to retaliate by “pull[ing] his gun and point[ing] it at” a person. Id. at

*5, *14. This Court should, at least, grant the second question

presented to resolve the conflict between Watson and this case.

21

of retaliatory animus for such speech.” Id. at 1059. “A

reasonable official would have known that taking the

serious step of threatening to terminate a parent’s

custody of his children, when the official would not have

taken this step absent her retaliatory intent, violates the

First Amendment.” Id. “Because Plaintiffs have alleged

that retaliatory animus was the but-for cause of [the

defendant’s] conduct, [he] is not entitled to qualified

immunity.” Id.

In stark contrast, in Riley’s American Heritage

Farms v. Elsasser, 32 F.4th 707 (9th Cir. 2022), the Ninth

Circuit granted qualified immunity in a case where the

plaintiffs claimed that a school retaliated against them for

their social media posts by canceling the business

relationship between the school and the plaintiffs. Id. at

729-30. In granting qualified immunity, the Ninth Circuit

focused on the nature of the retaliatory conduct, asking

“whether in September 2018, when these events occurred,

it was clearly established that a school district could not

cease patronizing a company providing historical

reenactments and other events for students because the

company's principal shareholder had posted controversial

tweets that led to parental complaints.” Id.; see also

Moore v. Garnand, 83 F.4th 743, 752 (9th Cir. 2023)

(granting qualified immunity, finding that there was “no

caselaw that clearly established that a retaliatory

investigation per se violates the First Amendment”).

Eleventh Circuit. In Bennett v. Hendrix, 423 F.3d

1247 (11th Cir. 2005), the Eleventh Circuit denied

qualified immunity to a sheriff and his deputies who

allegedly retaliated against the plaintiffs by carrying out

a campaign of police harassment and retaliation after

plaintiffs supported a county referendum opposed by the

sheriff. Id. at 1248. In denying qualified immunity the

22

Eleventh Circuit explained “that the law was clearly

established at the time of the defendants’ alleged actions

that retaliation against private citizens for exercising

their First Amendment rights was actionable.” Id. 125556. “Because this Court has held since at least 1988 that it

is ‘settled law’ that the government may not retaliate

against citizens for the exercise of First Amendment

rights . . . we hold that the defendants were on notice and

had ‘fair warning’ that retaliating against the plaintiffs for

their support of the 1998 referendum would violate the

plaintiffs' constitutional rights and, if the plaintiffs'

allegations are true, would lead to liability under § 1983.”

Id. (citation omitted).

In direct conflict, in Echols v. Lawton, 913 F.3d 1313

(11th Cir. 2019), the Eleventh Circuit granted qualified

immunity to a district attorney that allegedly retaliated

against a former prisoner by defaming him in retaliation

for the former prisoner seeking legislative compensation

for his wrongful convictions. Id. at 1317-18. In granting

the prosecutor qualified immunity against the claim, the

Eleventh Circuit explained that “no controlling precedent

. . . would have provided [the prosecutor] fair notice that

his conduct would violate the First Amendment.” Id. at

1324.

*****

There are nearly as many governing standards for

when officials are entitled to qualified immunity in

constitutional retaliation cases as there are panels

adjudicating cases. There is no clear law, only confusion.

Such disparate treatment among similarly situated

plaintiffs based on nothing except the panel or judge that

hears a case is intolerable. Only this Court’s intervention

23

can provide clarity and uniformity to federal law on this

critically important issue.

II.

THE QUESTIONS PRESENTED ARE IMPORTANT AND

WARRANT REVIEW IN THIS CASE

The question of the proper standard for assessing

qualified immunity in retaliation cases is exceedingly

important and warrants this Court’s review. The question

of the proper scope of qualified immunity in retaliation

cases has the potential to arise every time a public official

interacts with the public. The first question presented is

recurring, and the confusion in the lower courts is

pervasive. The second question presented reveals a direct

circuit split, wherein different circuits have come to

different outcomes on materially identical facts. There are

no obstacles to this Court’s review. The approaches in the

circuits will remain fractured and unpredictable without

this Court’s intervention.

A. The qualified immunity analysis employed by the

Tenth Circuit below contravenes this Court’s precedents.

This Court’s cases establishes that where a person

exercises a clearly established constitutional right, any

retaliation for the exercise of that right is automatically

unlawful and thus not shielded by qualified immunity. See

Wesby, 583 U.S. at 63-64. After all, a person who

knowingly takes an action to punish a person for

exercising a clearly established constitutional right has,

by the very act of intentionally retaliating, violated that

clearly established right. The method by which the

retaliation is carried out should have no role to play in that

qualified immunity analysis. Retaliation cases allege that

the official knew that a person was engaging in

constitutionally protected conduct but nevertheless

purposely punished them for it. The officials in these cases

24

are already on notice that their conduct is unlawful by

virtue of the fact that they are acting to intentionally

thwart the exercise of a constitutional right.

The approach to qualified immunity employed below

is also inconsistent with the fundamental purposes of

qualified immunity. This Court has recognized that

“[q]ualified immunity balances two important interests—

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). Immunizing police

officers who penalize the exercise of clearly established

constitutional rights simply because there is no existing

case law establishing that specific act constitutes

unconstitutional retaliation tips the scales too far from

accountability and threatens fundamental rights. This

case is the paradigm example. The reason there are “no

precedents finding a First Amendment violation when an

officer points a gun at a suspect to retaliate for protected

speech,” Pet. App. 24a, is that such outrageous conduct is

unthinkable to most officers. See, e.g., Outlaw v. City of

Hartford, 884 F.3d 351, 367 (2d Cir. 2018) (“[T]he easiest

cases don’t even arise” because “[t]he unconstitutionality

of outrageous conduct obviously will be unconstitutional.”

(citation omitted)).

The approach used by the Tenth Circuit below also

makes it easy for officials to avoid accountability by

simply coming up with novel ways to retaliate against the

exercise of clearly established constitutional rights. An

officer may know he cannot point a loaded gun at an angry

motorist, so he may opt to point a taser instead. A

detective may know she cannot have officers surveil a

former suspect who spoke badly about her online, so she

25

could choose to place the former suspect’s picture in new

suspect photo lineups instead. A mayor can learn that the

law prohibits him from deploying tear gas against

reporters camped outside city hall, so he could instead

turn off all street lights to prevent filming. A high school

principal could know she cannot fire a teacher for lawfully

carrying a concealed handgun during school hours, so she

could instead have school resource officers repeatedly

search his classroom. The possibilities are endless.

B. The correct analysis of qualified immunity in

retaliation cases is an issue of critical nationwide

importance. Retaliation for the exercise of core

constitutional rights is common, ranging from issues of

the highest constitutional importance to minor disputes

between citizens and local government officials. See, e.g.,

Irizarry, 38 F.4th 1282; Van Deelen, 497 F.3d 1151.

Hundreds of civil rights actions are brought in federal

court every year alleging constitutional retaliation.4

Qualified immunity is often a dispositive question in those

suits. Few issues could be more critical to civil rights

enforcement nationwide than clarity regarding the

correct analysis of qualified immunity in the context of

constitutional retaliation claims.

C. This case is an ideal vehicle to address the question

presented. It was decided on a motion to dismiss below,

and the question presented was dispositive. The panel

correctly recognized that the officer’s use of force was

retaliatory and that petitioner’s speech was protected by

the First Amendment. Pet. App. 23a-24a. As a result, the

question here turns only on whether respondent was

For example, a Westlaw search for § 1983 cases alleging

retaliation returned 1,036 decisions in federal district and circuit

cases in 2023.

4

26

entitled to qualified immunity when he retaliated against

the exercise of a clearly established right in a way that had

not previously been recognized as unconstitutionally

retaliatory. There are no factual or procedural obstacles

to resolving the questions presented; the relevant facts

are undisputed and directly implicate the circuit conflict

and circuit confusion. Petitioner would have prevailed in

the Eighth Circuit, and may have prevailed in front of a

different panel in the Tenth Circuit or nearly any other

circuit. This clean presentation is the perfect case to

decide this exceedingly important, frequently recurring

question.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

KARRA J. PORTER

ANNA P. CHRISTIANSEN

CHRISTENSEN & JENSEN

257 East 200 South

Suite 1100

Salt Lake City, UT 84111

(801) 323-5000

ANDREW T. TUTT

Counsel of Record

KATIE WENG

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

NICOLE MASIELLO

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

OCTOBER 2024