REICHLE v. HOWARDS

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, Washington, 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

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No. 11–262

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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 arresting 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 visited 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 the Vice President. When Howards approached the Vice President, he told him that his “ ‘policies in Iraq are disgusting.’ ” Ibid. The Vice President simply thanked Howards 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 responsible for interviewing individuals suspected of violating the law, should question Howards. Agent Reichle had not personally heard Howards’ comments or seen his contact 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. The charge was eventually dismissed.

II

Howards brought this action in the United States District 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 alleged 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 qualified 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 materially 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 qualified immunity from Howards’ First Amendment claim. 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) , probable 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 probable cause. 634 F. 3d, at 1148.

Judge Paul Kelly dissented from the court’s denial of qualified immunity. He would have held that when Howards 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’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. We, therefore, reverse the judgment of the Court of Appeals denying petitioners qualified immunity. 4

III

Qualified immunity shields government officials from civil damages liability unless the official violated a statutory 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 purported 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 understood] 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 between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring 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 prohibits government officials from subjecting an individual to retaliatory actions’ ” for his speech. See Brief for Respondent 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 retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right. 5

B

We next consider Tenth Circuit precedent. Assuming arguendo 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 prosecution, the court held that “[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under §1983 even if the act, when taken for a different reason, would have been proper.” 922 F. 2d, at 620 (internal quotation marks omitted). In Poole, a subsequent retaliatory prosecution case, the court relied on DeLoach for the proposition that a plaintiff’s illegal conduct 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 probable 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 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 individual’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 retaliatory arrests was far from clear. Although the facts of Hartman involved only a retaliatory prosecution, reasonable 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 prosecution 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 Amendment 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 retaliatory prosecution when considering the relevance of probable 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 prosecution, and the Tenth Circuit analyzed the two claims as one. 922 F. 2d, at 620–621.

A reasonable official also could have interpreted Hartman’s rationale to apply to retaliatory arrests. Hartman first observed that, in retaliatory prosecution cases, evidence 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 defendant’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 prosecutor 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 presence 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 –613 (1985) (noting that letters of protest written to the Selective Service, in which the author expressed disagreement with the draft, “provided strong, perhaps conclusive evidence” of the nonregistrant’s intent not to comply—one of the elements of the offense” of willful failure to register for the draft). Like retaliatory prosecution cases, then, the connection between alleged animus and injury may be weakened in the arrest context by a police officer’s wholly legitimate consideration of speech.

To be sure, we do not suggest that Hartman’s rule in fact extends to arrests. Nor do we suggest that every aspect 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 alleged 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 “presumption of regularity accorded to prosecutorial decisionmaking.” Id., at 263. That presumption does not apply here. Nonetheless, the fact remains that, for qualified 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 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 reasonable officer when Howards was arrested. Moreover, since Howards’ arrest, additional Courts of Appeals have concluded 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 constitutional 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 disagreed over whether the reasoning in Hartman applied similarly to retaliatory arrests. Accordingly, when Howards 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 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.

__________________________________

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.

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  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.

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 regardlessof 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 such a “high level of generality.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 10). Whren’s discussion of the Fourteenth Amendment does not indicate, much less “clearly establish,” that an arrest supported by probable cause could nonetheless violate the First Amendment.

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.

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).

SUPREME COURT OF THE UNITED STATES

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No. 11–262

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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 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 retaliatoryarrest 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 Reichle and Doyle on the administration’s policies in Iraq, they were duty bound 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).

Print this transcript Transcript: 

ORAL ARGUMENT OF SEAN R. GALLAGHER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in case 11-262, Reichle v. Howards.

Mr. Gallagher.

Mr. Gallagher: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether Secret Service agents who are prepared to take a bullet for the Vice President must also be prepared to take a retaliatory arrest lawsuit, even when they have probable cause to make an arrest.

Respondent in this case seeks personal money damages against two U.S. Secret Service agents who arrested him, allegedly with a retaliatory motive, after he lied to them about whether he touched Vice President Cheney.

Justice Anthony Kennedy: There is just a little bit of noise in the courtroom and I am having a little bit of difficulty hearing your very opening statement.

Mr. Gallagher: Sure.

The Respondent in this case seeks personal money damages against three -- against two U.S. Secret Service agents who arrested him, allegedly with a retaliatory motive, after he lied to them about whether he touched Vice President Cheney.

There are three reasons why these agents should not be held personally liable.

First, the absence of probable cause should be a required element of a retaliatory arrest claim.

Thus this Court is called upon to answer the question that it left open in Hartman against Moore.

Second, U.S. Secret Service agents acting in their protective capacity should be entitled to a qualified immunity when they make an arrest with probable cause.

Indeed, to view it any other way would be to subject Secret Service agents to the potential of retaliatory arrest claims based upon a mere allegation of retaliatory animus, something this Court has steadfastly refused to do, and for good reason: Because retaliatory animus is easy to allege and hard to disprove.

And third, regardless of whether this Court decides to extend the Hartman rule, the law in 2006, at the time of the arrest was not clearly established, thus entitling the agents to qualified immunity.

Justice Ruth Bader Ginsburg: Well, what was the--

Chief Justice John G. Roberts: I don't understand--

Justice Ruth Bader Ginsburg: --What was the probable cause?

What was the probable cause for the arrest?

Mr. Gallagher: Justice Ginsburg, the Tenth Circuit found that the probable cause that underlied this opinion was a 1001 -- a 1001 violation, lying to a Federal agent.

Justice Ruth Bader Ginsburg: Explain that to me.

That's a false statement to a government officer.

But that's not the reason -- 1001 wasn't the reason that these officers had to arrest.

There was a question of assaulting the Vice President, and I think that the charge that eventually was made in the State court was harassment.

So, there is no indication that these officers had 1001 anywhere in their minds.

Mr. Gallagher: Well, two points, Justice Ginsburg.

First of all, under Devenpeck officers are not required to give all of the reasons behind an arrest.

But second, and I think perhaps more importantly in this case, when Agent Reichle contacted Mr. Howards and made the arrest, Mr. Howards had lied to him.

That was relevant to a Secret Service agent's assessment of the risk of the situation.

Justice Antonin Scalia: Do they have to give -- at least when you stop a car, the test is whether there was probable cause, not whether that was the reason that the officer stopped the car.

Mr. Gallagher: That's correct, Justice Scalia.

Justice Antonin Scalia: There was a broken tail light, there existed probably cause, whether that was the basis on which he acted or not.

Now -- is it any different when--

Mr. Gallagher: I don't think it is--

Justice Antonin Scalia: --with respect to an arrest?

Mr. Gallagher: --Yes, with respect to an arrest.

This is -- this is--

Justice Antonin Scalia: So long as they have good reason for an arrest, it doesn't matter.

Mr. Gallagher: --Absolutely.

That's an objective--

Justice Stephen G. Breyer: We have never held that in respect to a claim that the real reason the police arrested was retaliation against, for example, a picket sign having an unpopular point of view or a statement having an unpopular point of view.

That is, this Court has never held that it overcomes an arrest where there's a claim of retaliatory First Amendment action; is that right?

Mr. Gallagher: --That's right.

Justice Stephen G. Breyer: All right.

And what you are saying is your first reason is that we should say that, and the -- the question I wanted to ask you there is, you make a very strong case where the President and Vice President are involved, the need to protect them, but the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected from a Bivens action.

So it sounds as if your first claim -- the remedy sweeps well beyond the need that you sketch.

And so I'd like your response to that.

Mr. Gallagher: Justice Breyer, I think it has to do with the -- the determination in the -- in the Tenth Circuit and the fact that the -- the Tenth Circuit's decision to extend Devenpeck to these facts was not the subject of a cross-appeal.

So the issue that you -- you posit is not an issue that is before the Court.

Justice Stephen G. Breyer: I understand that.

I'm just saying if I agree with you on your first that if there is a probable cause for an arrest, then wouldn't I have to say there is no retaliatory First Amendment claim when a border officer chases into Arizona a person with whom he politically disagrees, and there are 14 bishops who will say he cared about nothing but his political disagreement?

And there is nothing to the contrary, and he says: Oh, I happened to notice, at trial, that when he left he reached out and snatched a five dollar bill that was in the till and so I had probable cause to arrest him.

End of case.

Now, that sounds very far-reaching and I don't know that I'm prepared to do that.

So therefore, is there another way you might win your case, or should I do that.

Mr. Gallagher: Well, let me answer -- answer both of those questions.

What you have outlined is essentially footnote 10 from the Hartman case.

That's the footnote that says: What do you do if the -- if the person that initiated the prosecution says, I did it for a -- a retaliatory reason?

And the Court side-stepped that issue.

Justice Stephen G. Breyer: Yes.

Mr. Gallagher: Yes.

Justice Stephen G. Breyer: And of course, Hartman dealt with prosecutions.

But people all the time don't arrest others.

Policemen frequently don't arrest people for everything they might arrest them for.

I mean jaywalking, to take an example.

There are all kinds of things where they just normally don't arrest somebody.

You might -- or I'm sure you didn't, but I might sometimes have driven 60 miles an hour in a 55-mile zone.

And I shouldn't even admit this.

I hope I get away with it.

[Laughter]

But -- but -- but you see, it's different arrests and prosecutions.

Mr. Gallagher: Well, I -- certainly, it's different, but the Devenpeck standard--

Justice Antonin Scalia: Is it different?

You -- you acknowledge that prosecutors always prosecute, that they never exercise discretion and say, oh, what the heck, you know?

Mr. Gallagher: --Certainly, Your Honor.

Justice Antonin Scalia: All the time, all the time.

I don't know that it's any less frequent than -- than an officer deciding not to arrest.

Mr. Gallagher: And Justice -- Justice Breyer, I think that the difficulty with your -- your hypothetical is, especially with regards to Secret Service agents, who perform, when they are engaging in their protective functions, they're essentially--

Justice Sonia Sotomayor: Counsel, that -- that's exactly what Justice Breyer is saying.

Okay?

Which is, as I understand it, there is some literature that talks about should we be treating misdemeanor arrests different than felony arrests, because there is less discretion that an officer would have with respect to arresting someone for a felony than for misdemeanors or criminal fines, because like jaywalking, policemen don't arrest you for jaywalking unless they are either on a ticket binge or because there's something about you that they don't like.

Mr. Gallagher: --Sure.

Justice Sonia Sotomayor: So if that something about you they don't like is that you are wearing an antiwar armband, are we going to let that plaintiff not recover, because somehow we need to protect police officers so much, in the discretionary use of this vast power they have to arrest that we are going to permit them to trample the First Amendment, essentially?

Or are we going to say, in the normal situation there is a First Amendment claim, even with probable cause, if you can prove that it's the motivating factor for the arrest; but we treat Secret Service differently?

And I think that was the point Justice Breyer's getting to, and the one I'm most interested in.

Mr. Gallagher: Okay.

Justice Elena Kagan: If we don't extend Hartman, how do we in a principled way deal with the unique needs of the Secret Service?

Mr. Gallagher: Let me -- let me briefly address the first half of the question and then I will address the second half.

The first half, when -- when, Justice Sotomayor, when you suggest that police officers could trample on the First Amendment, it's important to remember we still have probable cause as the -- as the principal--

Justice Sonia Sotomayor: If you are jaywalking, there is probable cause.

Mr. Gallagher: --But probable cause is the Fourth Amendment standard specified by the framers of the Constitution.

Justice Sonia Sotomayor: But -- but -- what does it have to do with violating the First Amendment, meaning if police officers have discretion and they would not otherwise arrest you except for their dislike of your speech, that's a violation of your right to free speech, isn't it?

Mr. Gallagher: Well, I'm -- I'm not sure that that is exactly the case.

Again it gets back to this footnote 10 in Hartman, which -- which, there -- Hartman can be read two different ways.

It can be read as -- as saying that the elements of the constitutional tort itself require the absence of probable cause, or it can be read as saying the elements of the cause of action.

But let me -- let me address the second question.

Justice Sonia Sotomayor: We can go to that question later.

Mr. Gallagher: Yes.

And the second question had to do with Secret Service agents, because Secret Service agents, unlike police officers providing law enforcement functions, when Secret Service are acting in a protective capacity, they are protecting our Nation's leaders and they are doing so in a very public way, and they are also doing so in a way that is essentially a free speech zone.

Virtually everyone that a Secret Service agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech.

So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.

And because of that, Secret Service agents have a similar sort of complexity of causation to the -- the -- the situation addressed in the Hartman case.

Now, in Hartman clearly it was a one -- it was a -- a two-individual causation situation, but -- but with -- with regard to Secret Service agents, the causation is similarly complex, because Secret Service agents can legitimately take into account what someone is saying in order to determine a threat level.

Regardless of whether the Court decides to extend the Hartman case, it's -- it's absolutely clear that the law in 2006, in June of 2006 when the agents made this arrest, was not clearly established.

The Hartman case was handed down in early 2006.

It had only been on the books about 3 months when the arrest was made.

For that reason, Secret Service agents should be entitled to a qualified immunity in this case because the law was not clearly established.

With regard to the -- the -- the formulation of qualified immunity that we are asking for, we believe that it is important for Secret Service agents acting in this protective capacity to have the requisite breathing room in order to make decisions in life-or-death or imminent-threat situations.

In fact, the qualified immunity that we are advocating is particularly important at the margins, particularly important in situations where it's not clear what a Secret Service agent can do or should do, where a Secret Service agent has to make a snap decision in order to determine whether someone's a threat and then act appropriately.

The Court in the Atwater case noted that the object of -- of the Court's cases has been to draw standards sufficiently clear and simple to be applied with the fair prospect of surviving judicial second-guessing months and even years after the -- the arrests are made.

Justice Ruth Bader Ginsburg: You are not suggesting absolute immunity?

Mr. Gallagher: No, we are suggesting a qualified immunity.

Justice Ruth Bader Ginsburg: But it's a different kind of qualified immunity?

Mr. Gallagher: It's certainly different from the Harlow type of qualified immunity.

It is an immunity that is contingent upon having -- contingent upon the Secret Service agent being -- acting in a protective capacity and having probable cause to make the arrest.

But certainly, once the immunity attaches, it would be, it would be full immunity from a claim.

The Court noted earlier this term in Ridner v. Hub case, that judges should be cautious about second-guessing a police officer's assessment made on the scene of the danger presented by a particular situation.

We think that this case aptly demonstrates the situation in which Secret Service agents made very -- very difficult decisions on the spot, and they should not be second-guessed by the Court.

Finally, with regard to the -- whether qualified immunity is -- was clearly established in June of 2006, the Ninth Circuit, the primary case relied upon by the Tenth Circuit was the Skoog case.

The Skoog case was the case that the Tenth Circuit relied upon in holding that Hartman should not be extended.

It's important, though, when you review the Skoog case to -- to read the entire case, because the Skoog court after concluding that -- that Hartman should not be extended, still proceeded with the qualified immunity analysis to determine whether the law was clearly established at the time of the incident.

And what the Skoog case concluded was, it looked at -- it looked at the nature of the right.

And, you know, we know from the Anderson v. Creighton case that this Court has said it's important when focusing on constitutional rights not to look at the 30,000-foot level, not to look at the high level, but to look at the contours of the right.

And that's what the Skoog case did.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Gallagher: All right.

Thank you.

Chief Justice John G. Roberts: Mr. Srinivasan.

ORAL ARGUMENT OF SRI SRINIVASAN, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONERS

Mr. Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:

I would like to start off addressing the Secret Service in particular because that's the principal focus, although I take the point that there are questions about applying the rule in a broader context.

But I think understanding why the rule makes sense in the context of Secret Service agents and law enforcement officers who are performing similar protective functions would help inform why it makes sense to broaden the rule as well.

What the Secret Service--

I will pick up on the point that Petitioner's counsel was making, which is that it's legitimate in this context for Secret Service agents to take into account expressive activity in determining whether the circumstances warrant a discretionary exercise of the power to arrest.

Chief Justice John G. Roberts: I assume you would include U.S. marshals?

Mr. Srinivasan: Yes.

Chief Justice John G. Roberts: F.B.I. agents?

So you are talking about protective details.

Mr. Srinivasan: That's correct.

And that's why I wouldn't limit it to the Secret Service in particular.

I think what happens in a lot of these contexts is that it's natural for these individuals to encounter First Amendment activity by the public, and it's legitimate for them to react to First Amendment activity in deciding whether the circumstances warrant an arrest.

And the problem arises because it's very difficult to distinguish between on one hand a legitimate consideration of expressive activity as evidencing the sort of threat that warrants a response from an illegitimate consideration of expressive activity borne of a motive to suppress it--

Justice Anthony Kennedy: Does your rule apply regardless of the degree of animus that the agent is alleged to have had as to the particular view being expressed?

Mr. Srinivasan: --I think it would, Justice Kennedy, because we would have an across-the-board, no-probable-cause requirement of the kind that the Court applied in the retaliatory prosecution context in Hartman.

Now, I think your -- the question of the degree of animus asserted by the agent on the scene is exactly why these are complicated factual questions.

Those kinds of allegations can be made, and then you are going to have a trial where the agent is on the stand, and the jury is going to have a very difficult time, and the agent is going to have a difficult time explaining why it is that he acted legitimately based on expressive activity because he felt that there was a threat to the person he was trying to protect, as opposed to explaining that he didn't act in order to suppress the viewpoint that was being asserted.

These kinds of allegations can often be made.

And in fact they can even be manufactured at the scene by an intelligent person who is going to be the subject of an arrest.

And I think that complicated question of causation is exactly why it makes sense to apply in this context the same objective screening in the form of a no-probable-cause requirement in Hartman to this context of retaliatory arrest.

Justice Antonin Scalia: Why is there any difference if -- when ordinary policemen are policing an authorized demonstration--

Mr. Srinivasan: Yes.

Justice Antonin Scalia: --in front of this Court or anywhere for that matter?

The people making the demonstration have -- have the same motivation and can make the same assertion of: Oh, the only reason you arrested me was because you didn't like what I was talking about.

So why should that situation be different?

Mr. Srinivasan: That's correct, Justice Scalia, and that was going to be my next point.

Once we understand why it is that it makes sense to apply this rule in the context of officers who engage in this sort of critical public -- protective function of the Secret Service, I think we understand why it also makes sense to apply it in other situations, because law enforcement can legitimately take into account expressive activity when they are engaged in functions such as crowd control.

And in those contexts as well, it's going to be difficult to disaggregate the legitimate consideration of expressive activity as evidencing a threat from an illegitimate desire to suppress a viewpoint.

Justice Stephen G. Breyer: Illegitimate -- look, you just used the word "crowd control".

I take it in saying the word "crowd control" you are making a distinction.

Mr. Srinivasan: I--

Justice Stephen G. Breyer: Do you want the same rule of automatic, you know, immunity -- it's sort of automatic immunity -- when crowd control isn't at issue, where there is a history of persecution of an individual by a particular officer, da, da, da.

I mean, you know, you can make up cases.

Mr. Srinivasan: --I think--

Justice Stephen G. Breyer: Did you want it absolutely across the board, or are you going to start making distinctions?

Mr. Srinivasan: --I -- I would not draw a distinction, Justice Breyer.

Of course, there's going to be factual situations--

Justice Stephen G. Breyer: I mean, I agree with you about the crowd control.

I see that.

I see that problem.

I see the problem of protecting people in public life; I see the problem in protecting the president.

Mr. Srinivasan: --Well, I think--

Justice Stephen G. Breyer: Now how far--

Now given that that's a particular problem where views are likely to be evidentiary, unpopular views actually are, unfortunately.

But how far do you extend it?

You say extend it to everything.

To jaywalking, to persecutions, to, you know, that's what's making me a little nervous.

Mr. Srinivasan: --Right, and I can understand the basis for the nervousness.

I guess the question for the Court is whether the benefits of having an administrable across-the-board rule outweigh the costs of trying to forge some sort exceptions to deal with extreme hypotheticals.

Justice Sonia Sotomayor: Do you have a sense of how many of these First Amendment retaliatory claims in those jurisdictions that permit them -- I know they are more limited -- how many of these cases arise?

Mr. Srinivasan: We do.

We have done an unscientific search, but to use the same time frame of reference that the Court used in Hartman, which is looking back 25 years, if you look a do a sort of standard Lex Law search, what you'll see is there is roughly 100 Court of appeals cases and 450 or so district court cases.

Justice Sonia Sotomayor: And how many arrests are there a year?

Mr. Srinivasan: I don't know.

Justice Sonia Sotomayor: I'm sure it's in the millions.

Mr. Srinivasan: I'm sure there are scores and scores of arrests.

That's correct.

And, of course, all we are talking about is the cases that get to the point where you have an opinion that can be, that can be found.

And there is the obvious point that depending on what the Court does here, you may see a proliferation of those claims.

And we certainly hope that wouldn't be the case.

But I think -- on the question of whether it makes sense to have an across-the-board rule, I guess I would echo what Petitioners' counsel was suggesting, which is, you can have the same set of considerations in the retaliatory prosecution context because prosecutors do act with, by hypothesis, with illicit motives in some situations.

And the Court considered whether the benefits of having an across-the-board rule outweigh the costs of forging an exception to deal with extreme circumstances.

And what the Court said was: We want to have a rule that is designed to deal with a mine run of cases; we don't want to have a rule that has an exceptional-circumstances exception because in that -- at that point there will be a great deal of litigation concerning what cases fit within of the exception and what cases don't.

And what the Court said was that's rather like designing a retirement plan to deal with the possibility that someone might win the lottery.

That's in footnote 10 of Hartman.

And I think similar considerations Would weigh -- counsel in favor of applying an across-the-board objective, no-probable-cause screening in this context as well.

And I think it's important to understand that--

Justice Ruth Bader Ginsburg: Even though -- I think in Hartman, Justice Souter gave two specific reasons, neither of which apply in this context.

If the prosecutor institutes the charges, but the suit is not against the prosecutor, he would be absolutely immune.

So that is not in this picture.

Here we have one officer.

So it would certainly be an extension of Hartman because the reason that Hartman gave for the rule was tied to -- very much tied to prosecution rather than arrest.

Mr. Srinivasan: --Well, I -- with respect, Justice Ginsburg, I think this case is of a piece with Hartman in two relevant respects.

Your Honor is quite correct that Justice Souter's opinion focused on the fact that you have two individuals in play.

You can have that situation here but we don't base it on that.

What the opinion was getting to was that that creates complex issues of causation in the prosecution context.

And I think it was the complex causation that really drove the need to have an objective across-the-board rule.

You have the same kind of complex causation problem here, for the reasons that I've explained, which is that it's extremely difficult to disentangle a legitimate desire to act to get -- to suppress danger, of which speech is evidence, from an illegitimate desire to suppress a viewpoint.

Justice Anthony Kennedy: You might apply the same immunity for selective enforcement based on race?

Mr. Srinivasan: The same immunity?

Justice Anthony Kennedy: Yes.

Mr. Srinivasan: No.

The -- they -- I think the Court's decision in Whren, for example, supposed that even though you have probable cause, you can have an equal protection claim if the proof could be made -- and this is very important.

In the equal protection context, including for race, there is a different objective screen in place and it's a stringent objective screen that this Court announced in Armstrong, which is that--

Justice Anthony Kennedy: Well, I'm -- I'm aware of the reservation in Whren.

Why should there be a difference in the Fourteenth Amendment equal protection and First Amendment speech?

Mr. Srinivasan: --Well, I think part -- part of the reason is this, that with the First Amendment expressive activity can legitimately be taken into account, precisely because it can manifest a danger, whereas with race in the ordinary case I think the reason why we have these principles in the race context is it's ordinarily not a relevant consideration.

And the Armstrong rule is designed to distinguish between circumstances in race -- in which race was the motivation and in which race wasn't the motivation.

And it serves that purpose well.

But it doesn't work so well in this context, because here First Amendment activity can legitimately be taken into account.

When, as in this case, a Secret Service agent overhears an individual say that he's going to ask the Vice President how many babies he's killed, it makes all the sense in the world for the Secret Service to focus their attention on that person.

Justice Antonin Scalia: What -- what about for crowd control?

You want to extend it to crowd control as well.

What difference does the First Amendment make there?

Mr. Srinivasan: Well, I think it's the -- the nature, intensity and vehemence with which the First Amendment activity is being engaged in can inform an officer on whether the circumstances present the kind of danger that warrants a law enforcement response.

So that a -- and -- and when a law enforcement officer does that, he's going to be subject to potential liability if an individual says: Look, you weren't reacting against me because of the way I was expressing my views; you were acting -- reacting against me because you disagreed with my views and you wanted to suppress them.

And that's a very hard thing to disentangle.

And it not only has that problem at the back end, but it results in the problem at the front end as well, because what happens at the front end is that officers at the very outer margins might have in the back of their mind a concern that if they acted based on their best intuitions about what kind of law enforcement response is warranted, they might be later be subject to suit based on a mistaken assumption and potentially an ability to convince a jury that they were acting based on an illegitimate desire to suppress a viewpoint rather than on a legitimate desire--

Justice Stephen G. Breyer: How -- how many cases -- you might know this; you might have information on how many cases over 5 years or whatever period there actually have been against Federal protective officials of retaliatory First Amendment activity.

Mr. Srinivasan: --I -- I don't know.

Justice Stephen G. Breyer: It would be in the Department, wouldn't it?

They'd keep track?

Mr. Srinivasan: It's potentially there, but I -- I just don't have the answer at my disposal, Justice Breyer.

Justice Stephen G. Breyer: Do we know that this is not unique, the one before us?

Mr. Srinivasan: Well, these -- certainly, we know that these kinds of interactions arise with some frequency.

I think there was some publicity surrounding the--

Justice Stephen G. Breyer: Well, when you looked up your research for this, did you find any other case in which anyone had ever asserted a First Amendment claim of retaliation for arrest--

Mr. Srinivasan: --In--

Justice Stephen G. Breyer: --against a Federal protective official?

Mr. Srinivasan: --Candidly, I didn't -- we didn't conduct a search with that object in mind.

So I -- I can't give you an answer one way -- one way or the other.

I did want to make one additional point, Justice Ginsburg, in response to the question you posed about the applicability of Hartman, which is that at one level it applies, the rule should apply, because the same concern with complex causation is at issue here at well -- as well.

But the other way to think about the applicability of Hartman is to -- is to put these cases on a spectrum.

On one end, you have what the Court in Hartman identified as a standard retaliation case, of which the Court identified public employment as the archetypal example.

And on the other end, you have retaliatory prosecution, where the courts thought that there were sufficient concerns about complicated causation that it made sense to have an across-the-board objective rule.

Now, the question could be where does retaliatory arrest fit within that spectrum?

Is it on the retaliatory prosecution side or is it on the public employment side?

And for a couple of reasons, I think it fits decidedly within the retaliatory prosecution side.

One is the one I've given, which is that speech can legitimately be taken into account and so it creates complex causation.

But the other one is in some sense the flip side of that, which is that in -- in the public employment context, the standard fact pattern is going to involve a long-term relationship between an employer and an employee, during which time there's been no adverse action, the employee then engages in some sort of expressive activity, in the aftermath of which the employer undertakes some adverse action such as a termination.

Now, in that context it makes sense to infer that there may well be an illegitimate speech -- speech-suppressive motivation at work, because you have in some sense a control period in the interactions between the employer and the employee that predated the expressive activity.

That's not the case when we're dealing with law enforcement.

In the law enforcement context in the main, this is a one-time interaction between an officer and a suspect, the arrestee.

You don't have the prior relationship that acts as a control.

And so you have to ask the question whether, based on that one-time relationship, is there a basis for inferring that a speech-suppressing motivation was at work.

And here, because it can be legitimate for an officer to take into account speech in deciding whether this situation was the kind of one in which a law enforcement response is warranted, it makes sense, unlike in the public employment context, to apply the same objective across-the-board screening in the form of a no-probable-cause requirement that we have in prosecutions.

Justice Ruth Bader Ginsburg: May I go back to the probable cause, the question I asked before.

It's not like the taillight.

1001 came up in court.

This -- this situation may well have warranted probable cause for assault, probable cause for harassment.

But where did -- the 1001 was not the -- was in no one's mind.

It does seem quite strange.

Mr. Srinivasan: It was not, Your Honor.

Of course, that's exactly what happens in the Fourth Amendment context.

That's -- that was the issue before the Court in Devenpeck.

And the Court explained in Devenpeck why it makes sense to have an objective probable cause inquiry rather than a subjective one--

Justice Ruth Bader Ginsburg: But doesn't it matter that it's something that comes up only in court; it's not something that -- why -- why wasn't the natural one would expect probable cause to arrest because it was an assault or harassment, the actual charges that were made?

Mr. Srinivasan: --I don't know the reason that a -- I don't know the -- the precise contours of the harassment charges in State court that were made.

I think that they mapped on in some measure to the assault, the assault that was suspected by the -- by Officer Reichle, who effected the arrest.

I think the concern with importing some sort of subjective probable cause dimension into the inquiry -- if you asked, you know, what offense did the officer in fact have in mind, it's the same concerns that drove the Court to apply an objective rule in Devenpeck, including, for example, that you would have dis-uniformity, in that similarly situated individuals would be treated differently based purely on what happens to have been in an officer's mind.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Lane.

ORAL ARGUMENT OF DAVID A. LANE ON BEHALF OF THE RESPONDENT

Mr. Lane: Thank you, Mr. Chief Justice, and may it please the Court:

I think what we have here is a solution being offered by the government, and now we have to go find the problem.

And I think that's what Justice Breyer's question was directed at here.

I have done, not a scientific search, but I can take credit for a little bit of science involved in determining how many such cases arise.

And at page 13 of our brief, we cite in footnote 8 that a search with no time limitations whatsoever going back in LEXIS with the words 1983> ["], 15 reported Federal appellate cases, with no time limitations whatsoever.

So we had a solution, but we really don't have a problem.

The only Secret Service case that this Court has ever heard that I'm aware of involving anything remotely like this is Hunter v. Bryant.

So this is not a significant problem.

This also factually is probably not the best case for them to be making their argument that we need some sort of special rules that apply to the Secret Service, given the facts of this case, where Mr. Howards by all accounts walked over to the Vice President, looked at him and said:

"I just want you to know I think your policies in Iraq are disgusting. "

There is a dispute at that point whether he gently patted him on the arm -- not a crime -- or tapped him on the shoulder -- again, not a crime -- or--

Justice Antonin Scalia: That's an assault, isn't it?

Mr. Lane: --I'm sorry?

Justice Antonin Scalia: All it takes for an assault is -- is an unwanted touching.

Mr. Lane: Well, incidental contact is not an assault, and everyone under law--

Justice Antonin Scalia: It's not incidental.

If you reach out and touch somebody on the shoulder or the arm.

Mr. Lane: --Well, the problem is that the Vice President was on the mall having contact with numerous people, shaking their hands, letting them pat him on the back, telling him what a great job he's doing.

Justice Antonin Scalia: That's fine and he doubtless didn't consider those contacts hostile.

But when somebody tells you

"I think your policies are disgusting-- "

Mr. Lane: And then--

Justice Antonin Scalia: --I mean, just don't tell me that it's -- it's not a crime.

It -- it is an assault if it's an unwanted touching.

Mr. Lane: --Well, under Colorado law, he was charged with harassment, and--

Chief Justice John G. Roberts: Well, what you've described is not when the person was arrested, right?

Mr. Lane: --That's correct.

Chief Justice John G. Roberts: He was arrested later, when approached by the Secret Service agent, lied about whether he touched the Vice President; at that time, in a non-protected area, was carrying a bag, right?

Mr. Lane: Correct.

Chief Justice John G. Roberts: And wandering around.

Turns out that he was looking for his son.

But if you're the Secret Service agent, you see somebody who said your policies are disgusting, that person touches the Vice President, he comes -- he lies to you.

He comes back, he's carrying a bag and he's wondering -- wandering around, do you think it's reasonable at that -- well, I guess you don't--

[Laughter]

To arrest the person?

Mr. Lane: That's a multi-faceted question.

I'll try my best to cut right to it.

Chief Justice John G. Roberts: The reason it's multi-faceted is because I'm trying to capture what might have been going through the Secret Service agent's mind at the time.

Mr. Lane: Well, that is part of the point I have to make here, all right.

In this Court's jurisprudence on Fourth Amendment issues, what is going on in the agent's mind is irrelevant.

The issue is--

Chief Justice John G. Roberts: Well, what was going in a reasonable Secret Service's agent's mind at the time.

Mr. Lane: --Right.

First level of inquiry, was there a Fourth Amendment violation, no, according to the Tenth Circuit.

We then have got to shift gears if we are going to do a First Amendment analysis.

And is this a retaliatory arrest or not?

We have got to look into the subjective mind of the agent.

That's where Justice Ginsburg's questions I think take on great import for this discussion.

Because as she correctly pointed out, the agents on scene never said in deposition, they have never claimed anywhere that they arrested Mr. Howards on a 1001 violation.

The agents on scene in deposition said we arrested him because of the way he approached the Vice President -- not a crime -- and his demeanor.

We thought it might be an assault.

That later morphed into a state charge of harassment.

Nobody ever said 1001 formed any basis whatsoever.

Justice Stephen G. Breyer: They didn't say -- and also you left out that one of the agents overheard him say he was going to ask the Vice President how many babies he killed that day.

Mr. Lane: Right.

Justice Stephen G. Breyer: Okay.

So their job is to protect the Vice President.

Mr. Lane: Absolutely.

Justice Stephen G. Breyer: That's their job.

And it's a very emotional subject.

Mr. Lane: Absolutely.

Justice Stephen G. Breyer: And if something happens to the President, nobody's going to say, oh, you know, what were you doing?

And the whole country is in mourning.

Mr. Lane: Correct.

Justice Stephen G. Breyer: We understand that.

And therefore it's a matter of concern that if you have a rule of law that says to the agents, when you hear someone who says, how many babies are you -- have you killed that day, I'm going to ask the Vice President, I'm going to touch him, I am going to then tell them a lie when they ask me if I touched him -- that's cause for concern.

Mr. Lane: Absolutely.

Justice Stephen G. Breyer: Okay.

Now if there's a lawsuit, the agency will say we just can't do it.

We can't do it.

We can't use that as a basis for stopping that individual.

All that poses a problem.

Mr. Lane: Well that--

Justice Stephen G. Breyer: And I -- I think -- I recognize that it's a problem.

I'm not saying I have the solution.

Mr. Lane: --Well, I think you hit on the solution as part of the problem you just expressed, and that is can they stop this individual.

And the answer is absolutely yes.

They have every arrow in their quiver, under Terry v. Ohio.

They can stop him if they perceive a threat.

They can force him to open up his opaque bag, they can force him to show them what's in the box inside the opaque bag.

They can pat him down, they can wand him with a metal detecting wand.

They can assure themselves--

Justice Antonin Scalia: And it wouldn't be a violation of the First Amendment if they only did that because they didn't like the ideas he was expressing?

Mr. Lane: --They are allowed--

Justice Antonin Scalia: Wouldn't that be a violation of the First Amendment?

Mr. Lane: --They are allowed to take reasonable steps under Terry, under every conceivable case that this Court's ever decided--

Justice Antonin Scalia: Even though they're doing it for -- they do it for a racial reason, would that be okay?

Mr. Lane: --No.

No.

What I'm saying--

Justice Antonin Scalia: Of course not.

I don't see how your First Amendment exception doesn't apply to those things for the arrest--

Mr. Lane: --It would.

It would.

If he could prove that they did a Terry stop on him in retaliation for his free speech and it was motivated -- and I know this -- Your Honor's feelings about intent -- intent motivated constitutional torts.

But if he could prove that the Terry stop was motivated by -- in an effort to punish him for his free speech, yes, that would be a cause of action as well.

Chief Justice John G. Roberts: So what you have under your theory, a person should put on his car a bumper sticker that says "I hate the police" and every time they are pulled over they will have certainly a plausible case is you violated my First Amendment rights.

It's not because I was going 60 miles an hour, it's because of my bumper sticker.

And the police officer at that point says, you know, I can't give a ticket to this guy without being hauled into court on personal liability because he's got a credible case that was for First Amendment grounds.

Mr. Lane: Well, I think we can look at the -- as I said the arrows in the quiver of the court, to weed out those kinds of cases.

Chief Justice John G. Roberts: No, no.

You already got the officer in court.

I mean you get a speeding ticket and most times they don't show up because they have got other things to do.

Now he's got to show up in district court, in state court to defend against this.

Mr. Lane: Well, I mean, litigious plaintiffs are a consistent problem across the board under many contexts.

And there is really -- there is almost nothing that can be done.

This Court has taken steps to cut back prison litigation that is frivolous, and things of that nature.

But, yes, if the heightened pleading standard this Court enunciated in Iqbal.

You can't just come up with conclusory allegations, you have to have facts in support that that's why they stopped me, because of my bumper sticker.

Chief Justice John G. Roberts: Is that a case that you could state.

He pulled me over, he gave me a speeding ticket, but the only reason he picked me out is because I had a bumper sticker saying "I hate the police".

Mr. Lane: Well--

Chief Justice John G. Roberts: Does that go to trial?

Mr. Lane: --No, that doesn't necessarily go to trial.

That's a conclusion, first of all--

Chief Justice John G. Roberts: Why doesn't it go to trial?

I mean, what, does it go -- do you have to depose the police officer, why did you stop him?

Did you stop anybody else for going 65 miles per hour that day?

Mr. Lane: --Well, I mean, these evidentiary questions have to be first of all supported in a pleading with heightened scrutiny under Iqbal.

Conclusions are not simply enough.

Justice Antonin Scalia: --It's not a conclusion.

I mean, if -- if he didn't have the bumper sticker and you asserted in the pleading he stopped me because he knows I hate the police, that's a conclusion.

But if you have the bumper sticker, he says, you know, I had the bumper sticker, and that's why he stopped me.

Mr. Lane: Well, let me give the flip side of that and say if the police officer did stop him because of the bumper stick he should go to trial.

He should be held accountable for that--

Chief Justice John G. Roberts: So the only way you could find out is you put in the evidence, here's the bumper sticker and you put the police officer on the stand and you say why did you do it.

And all of a sudden, I don't know why everybody doesn't have a bumper sticker.

Mr. Lane: --Theoretically every single person who has ever been arrested for any crime could raise a first amendment retaliation lawsuit.

Every convicted murderer doing time throughout this country could do that.

They don't however.

There is not a rush to the courthouse of retaliatory arrest claims because the pleading requirements are heightened, qualified immunity for over 100 years has protected the Secret Service.

They have been protecting the executive branch--

Justice Stephen G. Breyer: But in the case of the President, if what you are hearing, as you well know, that the combination of disparate political views and risk is unlike other situations.

And I don't know if they can prove it or you could prove the contrary, but that's -- that's a claim.

And I can't say there's nothing to it.

So let me suggest to you another arrow which -- and ask you what do you think of this arrow and the answer's going to be not much, but I'm interested in hearing your reason.

Mr. Lane: --I'm ready.

Justice Stephen G. Breyer: In Hartman, Justice Ginsburg and I dissent.

Mr. Lane: Yes.

Justice Stephen G. Breyer: And we referred to a D.C. circuit case.

And in the D.C. circuit it said -- it talked about rare cases where strong motive evidence combined with weak probable cause to support a finding that the prosecution would not have occurred but for the animus.

So far you think, fine.

But suppose you were to say because of the factors that have just been mentioned where the President's at stake, the courts -- where his life is at stake, the President's -- the courts will not infer once probable cause exists that it's weak.

And the courts will not infer from the simple presence of political disagreement that the motive or retaliation is strong, which in fact would produce a very limited extension of Hartman to the case of protecting the President of the United States.

And now I know you are not going to agree with that, and I'm trying it out and I'm not saying that I agree with it, but I want to see how you react.

Mr. Lane: Well, let's take a look at the facts of this case.

The Tenth Circuit found there was probable cause for a 1001 violation.

But was there probable cause -- is there a great body of circumstantial evidence surrounding this case that would point to probable cause which should be considered in deciding how this case proceeds?

We have the agent in charge of the protective detail, Agent Lee, standing eight inches away from Vice President Cheney when this entire encounter occurs.

Agent Lee testified he saw no crime committed.

We had numerous agents--

Justice Sonia Sotomayor: Excuse me.

Let's go past this for a second.

What was it that the arresting agent said or did that showed the animus -- meaning that because that another officer actually saw it and understood himself what he thought, doesn't mean that this agent who was told that there had been a touching had that information.

Mr. Lane: --The evidence?

Justice Sonia Sotomayor: So I know collective knowledge is a theory in a lot of cases, but let's deal with the facts of this case.

What's -- what's the animus?

Mr. Lane: Well, there were discreet First Amendment episodes that occurred in the context of this case.

One was testified to by Mr. Howards in his deposition, that when he first of all was approached by Agent Reichle, Agent Reichle said,

"I want to talk to you. "

and flashed his badge, and Mr. Howards declined the invitation to talk to Agent Reichle.

That, according to Mr. Howards, angered Agent Reichle.

That is a First Amendment significant event in and of itself.

Steve Howards testified that he then was asked by Agent Reichle we want to talk to you about assaulting the Vice President, and his response was I didn't assault the Vice President; I merely criticized his policies in Iraq, and if you don't want him criticized publicly he should stay in his undisclosed location, or words to that effect.

Again, Mr. Howards testified that angered Agent Reichle.

At that point, the cuffs went on.

And I think that is circumstantial evidence in support of the animus for what -- what was going on.

Agent Reichle was on notice as to what Howards had said to the Vice President--

Justice Sonia Sotomayor: How does all of that prove your point of animus in light of the undisputed fact that he lied about touching the Vice President?

Mr. Lane: --Well, again--

Justice Sonia Sotomayor: And that's the--

Mr. Lane: --lying to the Vice President is what we look at on a Fourth Amendment analysis, because what's in Reichle's actual mind under Devenpeck is irrelevant.

So yes, there was probable cause, but was Reichle himself directing his animus at Mr. Howards and arrested him?

We have to look into what was actually in his mind, and that was not in his mind.

A 1001 violation was not in his mind.

We looked -- what was in his mind, and we've -- we have already said what was in his mind is he approached the Vice President, he criticized him publicly--

Justice Sonia Sotomayor: --You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.

Mr. Lane: --Absolutely.

Justice Sonia Sotomayor: How do we draw a line outside of the one that you proposed by your adversaries, that probable cause is the line.

Mr. Lane: Well, that line--

Justice Sonia Sotomayor: That doesn't enmesh the police in a constant barrage of claims that just because they angered a police officer, that's why they were arrested.

Mr. Lane: --Well, first of all there has not been this constant barrage.

Hartman has only applied until -- I mean, this Court decided Hartman in 2006 for retaliatory prosecutions.

There has not been a run on the courthouse on retaliatory arrests.

Either before Hartman or after--

Justice Samuel Alito: Would you acknowledge that the Secret Service faces a different situation from ordinary police officers in conducting their daily activities, in that Secret Service agents may legitimately take into account First Amendment activity by someone who is in the vicinity of the President or the Vice President in assessing the degree of danger the person presents?

Mr. Lane: --This may not help my case, but I will go further than that and I'll say any police officer has an absolute right to listen to what any protester is saying and consider what is being said in terms of assessing the level of threat that that protester poses.

But as I said in this case, they had every right to stop Mr. Howards, to do a Terry stop on him, because they were concerned about him.

And reasonable cause for concern under Terry is the standard.

You don't need probable cause to pat someone down under Terry.

It's simply if a reasonable officer would be concerned.

Justice Antonin Scalia: Again, I -- I don't understand why you -- why you say that they are immune from the charge of First Amendment retaliation for that, but not immune from the charge of First Amendment -- I mean if you say they are doing it on First Amendment grounds for the one, they are doing it on the First Amendment grounds for the other.

Why is either one okay?

Mr. Lane: I'm not saying that they are immune on a Terry patdown if it is done in retaliation for free speech.

I'm simply saying that would make it a much more difficult case for any protester to go to a -- to go to court and say the only reason he patted me down was in retaliation for free speech.

Justice Stephen G. Breyer: Okay.

So then putting it in their point of view, I just what he actually said.

He was very angry, your client.

I mean, judging what he said, there were a lot of swear words and so forth, he was pretty angry at this whole situation.

So you are a Secret Service agent, and you hear him say -- speak like this, he has every right to speak like that, I mean people do, I understand that -- but now he's also thinking that -- that I'm nervous about this.

The -- the President is here, the Vice President, whatever--

Mr. Lane: Sure.

Justice Stephen G. Breyer: --the same thing, and -- and I've got to do my job.

So -- so -- and nobody's going to say, oh, oh, whatever it is, First, whatever if is, if somebody is hurt.

Mr. Lane: I agree with that.

Justice Stephen G. Breyer: And he also lied about whether he touched the President.

Mr. Lane: So--

Justice Stephen G. Breyer: And he has also been talking about the President killing people--

Mr. Lane: --First order of business--

Justice Stephen G. Breyer: --killing babies and so forth.

Mr. Lane: --let's see if he's a threat.

Justice Stephen G. Breyer: All right.

So what is he supposed to do?

Mr. Lane: He's supposed to -- if he -- if he has reasonable cause to believe Steve Howards is a threat--

Justice Stephen G. Breyer: Well, it isn't this situation -- but this situation, I--

Mr. Lane: --Okay.

Right.

Then he pats him down, he opens the bag--

Justice Stephen G. Breyer: --Nothing there.

Mr. Lane: --nothing there.

Justice Stephen G. Breyer: He says, okay.

Mr. Lane: Then they monitor him and they watch him, and -- and that's all.

Justice Stephen G. Breyer: There's a lot of people in that place.

Mr. Lane: There is no probable cause to believe he has committed a crime at that point.

Justice Stephen G. Breyer: Well, he lied.

Mr. Lane: But they didn't know that.

That was not in their minds.

That's -- we are doing a First Amendment analysis and not the Fourth Amendment analysis at this point.

First Amendment analysis--

Chief Justice John G. Roberts: They didn't arrest him until after he lied, right?

Mr. Lane: --But it was never in their minds.

They've testified.

That didn't have anything to do.

That is the Tenth Circuit's post hoc rationale under Devenpeck which -- Devenpeck -- which says if you -- there's any objective probable cause that the Tenth Circuit or this Court or any other court can concoct, post hoc, even though it wasn't in the officer's mind, that's good enough to arrest somebody.

That's -- that probable cause.

All right?

But in First Amendment analysis it can't be an objective standard.

You -- there -- objective standards are clean, they are nice, they -- they create bright lines.

But when we are looking at a First Amendment violation, we have to got to be able to get into subjective intent of the officer at -- on the scene.

Justice Samuel Alito: When you say that that means that almost all of these cases have to go to trial--

Mr. Lane: No, they don't.

Justice Samuel Alito: --if front of a jury.

Well, how are -- how can they be stopped before they go to trial?

Mr. Lane: Because if, first of all, as I've said, Iqbal requires heightened pleading, not just conclusions.

We have the summary judgment standard.

Justice Samuel Alito: I engaged in First Amendment -- I engaged in First Amendment activity.

Mr. Lane: We have a summary judgment standard, where -- and in fact in Butz, this Court held that a firm application of rules of civil procedure will always prevent frivolous claims and meritless litigation from occurring in situations exactly like this.

And that's true.

A firm application of the rules of civil procedure, a summary judgment standard which is--

Chief Justice John G. Roberts: Well, summary judgment, that's -- you're already been in court a long time when you are talking about summary judgment.

Mr. Lane: --There is no easy way out of this, unfortunately.

Frequently, when you're talking about--

Chief Justice John G. Roberts: Well, there is an easy way out of it.

We could agree with the--

[Laughter]

Mr. Lane: --Well, that unfortunately is an easy way out of the First Amendment as well.

I mean this Court has decided some incredibly difficulty cases.

Snyder v. Phelps, authored by Your Honor, very difficult case.

Could it be side-stepped, by -- you know, somebody steps off a curb and is thereby jaywalking walking.

Are we limiting--

Chief Justice John G. Roberts: One thing about your analysis that concerns me is that you seem to have a very black and white view of what is going on in the officer's mind: did you stop -- did you arrest him because of retaliation or was it legitimate security?

And I suspect that the people engaged in this type of thing have intuition.

I mean, they don't sit there and say, well, let's see; is it because he says he didn't like the war in Iraq, or is because he is wandering around, looks like he is looking for something with a -- with a bag?

I mean I assume they sort have experience and they calculate all this in and say I've got to do something.

And how do you parse those different motivations.

Mr. Lane: --Well, what I say about that is that -- and again, I know this is not an answer that you are probably going to like, because this means a trial is involved, but this is what juries do on a daily basis throughout this country, in every criminal case.

What is the subjective intent of the defendant?

In every civil case, is this an intentional act, a knowing act, a reckless act, a negligent act?

That's what juries do.

And if there is enough evidence to get this case to trial -- and I -- I would posit it that in this case, where you have agent after agent after agent who saw the encounter up close and personal with the Vice President and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards, all of whom let Mr. Howards walk away from the scene, that's good evidence that--

Chief Justice John G. Roberts: One reason that I in fact don't like the answer is be -- because what the agent is now going to have to factor, in addition to the hostility of the -- the views, the touching of the Vice President, the lying about it, the wandering around with the bag -- is in the back of his mind -- you know, if I'm wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the Vice President.

Mr. Lane: --Well, I mean, theoretically yes, that -- that could be a problem.

And -- and I am quite certain that certain civil litigants, just as in criminal cases, people are wrongly accused of things that they didn't do, they end up in a trial, and sometimes juries get the wrong results and an injustice occurs.

We can't fix all those problems when it's not really a significant problem.

There are no run on the courtrooms around the land of these kinds of cases arising.

We don't need to have any rules that specifically pertain to the Secret Service when to my knowledge, this Court has had one Secret Service case in its entire history, and there are 15 appellate-reported Federal decisions regarding retaliatory arrests, period--

Justice Samuel Alito: Which -- is there a record of retaliatory arrests by Secret Service agents against people who say things that are critical of the President and the Vice President?

Mr. Lane: --The -- the only way I know to look for that is on Westlaw or LEXIS.

And -- And Mr. Srinivasan indicated that they found 100 or 400 cases.

We did a search like that, we came up with the same number.

We dug down into those cases.

And in terms of actual litigated retaliatory arrest cases, we found 15 total.

That's not scientific, but that's the best I've got for you at this point.

And I don't know if there's a repository of -- of where we can find that or not.

But this -- and I started this argument by saying

"this is a solution in search of a problem. "

The Secret Service has adequately done their jobs beautifully over -- for over a century.

And -- and there is no reason to put some different rule down on the Secret Service.

Justice Antonin Scalia: Well, we've lost a couple of Presidents.

[Laughter]

Mr. Lane: Well, they're doing the best they can.

I mean, that's -- I understand that.

But it is -- it is a serious, serious issue to curtail the First Amendment.

Consider the -- the situation where you actually do -- and I believe this is that case -- you have Secret Service agents who deserve to be taken to a trial, because they have gone out of their way to punish someone for their free speech.

What do you do about those guys?

Justice Ruth Bader Ginsburg: But it's ambivalent.

Suppose it turns out you have this trial, we know what words were spoken.

Get to the trial, it turns out Reichle is a strong opponent of the war in Vietnam.

Then, end of trial, right?

Mr. Lane: You know, that would be a fact to be considered by the jury.

I could lose this trial when we go back.

If we get a trial.

That's what jury trials are all about, Justice Ginsburg.

And I'm -- I'm not saying that -- I have to show evidence to this Court that I'm going to win the trial before I win this case.

The issue simply is can we sacrifice the First Amendment.

You know, does a litterbug lose their right to have First Amendment free speech?

Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense?

And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.

100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug.

I -- I just don't see that as the solution to this problem.

And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.

The status quo is not healthy.

It has worked for decades and it should continue to work.

And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important.

And I don't denigrate the -- the job of law enforcement or -- or these agents in any way.

I'm simply saying that when the First Amendment is at stake, I think -- and the law has been working just fine throughout decades to extend the no probable cause in Hartman to on-street encounters where there is no complex causation chain -- where the main actor in Hartman was immune completely from lawsuit, the prosecutor in Hartman could not be sued under any circumstances, nor could the prosecutor in Hartman be questioned in deposition under our traditions.

We don't question prosecutors in depositions about why they made decisions to go ahead and prosecute.

So this Court stepped back in Hartman and said, that's a different story.

But on-street encounters -- if you extend the no-probable-cause requirement to on-street encounters, any road the police officer or Secret Service agent who wants to can -- can ostensibly enforce any number of legal violations -- 1 mile an hour over the speed limit; you're going to jail, allegedly for going 1 mile an hour over the speed limit.

Or under Atwater, for not wearing a seat belt -- when the real reason is your bumper sticker.

If you can prove that, they should go to trial.

Absent any further questions, I'll sit down.

Thank you very much.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Thomas has our opinion this morning in case 11-262, Reichle versus Howards.

Justice Clarence Thomas: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

It presents the question whether two Secret Service agents are immune from suit for allegedly arresting a suspect in retaliation for his speech when the agents had probable cause to arrest the suspect for committing a crime.

Secret Service agents, Gus Reichle and Dan Doyle were part of Vice President Cheney's protective detail when he visited a Colorado shopping mall in 2006.

While the Vice President greeted members of the public, Agent Doyle overheard Steven Howards say into his cellphone that he was going to ask the Vice President, “How many kids he had killed that day?”

Howards then approached the Vice President and told him that his policies in Iraq were disgusting.

As the Vice President turned to leave, Howards touched his shoulder.

Howards later claimed that the touch was merely a friendly pat.

Several -- Secret Service agents described it as a hostile push.

After this encounter, Agent Reichle attempted to question Howards about his behavior.

Howards told Reichle to keep the Vice President out of public places if Reichle did not want people to share their opinions.

Howards also falsely denied having touched the Vice President.

Reichle arrested Howards who was charged with harassment.

That charged was later dropped.

Howards subsequently brought this suit against Reichle and Doyle.

Howards claimed that his arrest violated the Fourth Amendment because the agents lacked probable cause.

Howards also claimed that his arrest violated the First Amendment because it was retaliation for his criticism of the Vice President.

The agents moved for summary judgment on the ground that they were entitled to qualified immunity, but the District Court denied the motion.

On appeal, the Tenth Circuit held that the agents enjoyed immunity from Howards' Fourth Amendment claim because they had probable cause to arrest Howards for lying to a federal officer.

As to Howards' First Amendment claim, however, the Court held that agents were not immune because Tenth Circuit precedent clearly held that a retaliatory arrest may violate the First Amendment, even if the arrest is supported by probable cause.

In an opinion filed with the clerk today, we reversed the Tenth Circuit's judgment denying the agents' immunity from Howards' First Amendment claim.

Qualified immunity shields government officials from civil damage -- damages liability unless the officials violated a constitutional right that has been clearly established.

This Court has -- this Court has never held that there is a First Amendment right to be free from a retaliatory arrest that is independently supported by probable cause.

The Tenth Circuit concluded that its own cases had clearly established such a right, but when Howards was arrested the continued viability of the Tenth Circuit precedent was not clear in light of this Court's decision in Hartman versus Moore.

Hartman held that the existence of probable cause defeats a First Amendment claim of retaliatory prosecution and reasonable officers could have concluded that Howards' -- Hartman's rule applied equally to retaliatory arrest.

First, many of the conflicting Court of Appeals or Courts of Appeals' decisions that prompted our review in Hartman involved both retaliatory arrest and prosecution claims and made no distinction between the two when considering the relevance of probable cause.

Second, several features of retaliatory prosecution claims that are central to Harman's rationale are present in retaliatory arrest cases as well.

Finally, various Courts of Appeals have concluded that Hartman's no probable cause requirement extends to retaliatory arrest claims.

In light of the foregoing, we cannot conclude that Howards has a -- had a clearly established First Amendment right to be free of a retaliatory arrest that was otherwise supported by probable cause.

Thus, agents Reichle and Doyle are entitled to qualified immunity.

Justice Ginsburg has filed an opinion concurring in the judgment in which Justice Breyer joins.

Justice Kagan took no part in the consideration or decision of this case.