(Slip Opinion)
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` OCTOBER TERM, 2011
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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`
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
`
` Syllabus
`
` REICHLE ET AL. v. HOWARDS
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE TENTH CIRCUIT
` No. 11–262. Argued March 21, 2012—Decided June 4, 2012
`
`Petitioners Reichle and Doyle were members of a Secret Service detail
`protecting Vice President Richard Cheney while he greeted members
`of the public at a shopping mall. Agent Doyle overheard respondent
`Howards, who was speaking into his cell phone, state that he “was
`going to ask [the Vice President] how many kids he’s killed today.”
`Doyle and other agents observed Howards enter the line to meet the
`Vice President, tell the Vice President that his “policies in Iraq are
`
` disgusting,” and touch the Vice President’s shoulder as the Vice Pres-
`ident was leaving. After being briefed by Doyle, Agent Reichle inter-
`viewed and then arrested Howards, who was charged with harass-
`ment. After that charge was dismissed, Howards brought an action
`against petitioners and others under 42 U. S. C. §1983 and Bivens v.
`
`Six Unknown Fed. Narcotics Agents, 403 U. S. 388. Howards claimed
`that he was arrested and searched without probable cause, in viola-
`tion of the Fourth Amendment, and that the arrest violated the First
`Amendment because it was made in retaliation for Howards’ criti-
`cism of the Vice President. Petitioners moved for summary judgment
`on the ground that they were entitled to qualified immunity, but the
`Federal District Court denied the motion. On appeal, the Tenth Cir-
`cuit reversed the immunity ruling with respect to the Fourth
`Amendment claim because petitioners had probable cause to arrest
`Howards, but the court affirmed with regard to the First Amendment
`claim. In doing so, the court rejected petitioners’ argument that, un-
`der Hartman v. Moore, 547 U. S. 250, probable cause to arrest defeats
`a First Amendment retaliatory arrest claim. It concluded instead
`that Hartman applied only to retaliatory prosecution claims and thus
`did not upset prior Tenth Circuit precedent holding that a retaliatory
`arrest violates the First Amendment even if supported by probable
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`2
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` REICHLE v. HOWARDS
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`
`Syllabus
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`cause.
`Held: Petitioners are entitled to qualified immunity because, at the
`
`
`time of Howards’ arrest, it was not clearly established that an arrest
`supported by probable cause could give rise to a First Amendment vi-
`
`olation. Pp. 5−12.
`(a) Courts may grant qualified immunity on the ground that a pur-
`
`ported right was not “clearly established” by prior case law. Pearson
`
`v. Callahan, 555 U. S. 223, 236. To be clearly established, a right
`must be sufficiently clear “that every ‘reasonable official would [have
`understood] that what he is doing violates that right.’ ” Ashcroft v. al-
`
`
`
`Kidd, 563 U. S. ___, ___. Pp. 5−6.
`
`(b) The “clearly established” standard is not satisfied here. This
`
`
`Court has never recognized a First Amendment right to be free from
`
`
`a retaliatory arrest that is supported by probable cause; nor was such
`a right otherwise clearly established at the time of Howards’ arrest.
`P. 6.
`
`(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent
`was far from clear. Although Hartman’s facts involved only a retalia-
`tory prosecution, reasonable law enforcement officers could have
`
`
`questioned whether its rule also applied to arrests. First, Hartman
`was decided against a legal backdrop that treated retaliatory arrest
`claims and retaliatory prosecution claims similarly. It resolved a
`
`Circuit split concerning the impact of probable cause on retaliatory
`prosecution claims, but some of the conflicting cases involved both re-
`taliatory prosecution and retaliatory arrest claims and made no dis-
`tinction between the two when considering the relevance of probable
`cause. Second, a reasonable official could have interpreted Hart-
`man’s rationale to apply to retaliatory arrests. Like in retaliatory
`prosecution cases, evidence of the presence or absence of probable
`cause for the arrest will be available in virtually all retaliatory arrest
`cases, and the causal link between the defendant’s alleged retaliatory
`
`animus and the plaintiff’s injury may be tenuous. Finally, decisions
`from other Circuits in the wake of Hartman support the conclusion
`
`that, for qualified immunity purposes, it was at least arguable at the
`time of Howards’ arrest that Hartman extended to retaliatory ar-
`rests. Pp. 7−12.
`634 F. 3d 1131, reversed and remanded.
`THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
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`C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. GINS-
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`BURG, J., filed an opinion concurring in the judgment, in which BREYER,
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`J., joined. KAGAN, J., took no part in the consideration or decision of the
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`case.
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`

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` Cite as: 566 U. S. ____ (2012)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 11–262
`_________________
`VIRGIL D. “GUS” REICHLE, JR., ET AL., PETITIONERS
`v. STEVEN HOWARDS
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE TENTH CIRCUIT
`
`[June 4, 2012]
`
` JUSTICE THOMAS delivered the opinion of the Court.
`
`This case requires us to decide whether two federal law
`enforcement agents are immune from suit for allegedly ar-
`
`resting a suspect in retaliation for his political speech, when
`the agents had probable cause to arrest the suspect for
`committing a federal crime.
`
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`
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`
`
`I
`
`On June 16, 2006, Vice President Richard Cheney vis-
`ited a shopping mall in Beaver Creek, Colorado. A Secret
`Service protective detail accompanied the Vice President.
`Petitioners Gus Reichle and Dan Doyle were members of
`that detail.
`
`
`Respondent Steven Howards was also at the mall. He
`was engaged in a cell phone conversation when he noticed
`the Vice President greeting members of the public. Agent
`Doyle overheard Howards say, during this conversation,
`“‘I’m going to ask [the Vice President] how many kids he’s
`
`killed today.’” Brief for Petitioners 4. Agent Doyle told
`
`two other agents what he had heard, and the three of
`them began monitoring Howards more closely.
`Agent Doyle watched Howards enter the line to meet
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`

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`REICHLE v. HOWARDS
`
`Opinion of the Court
`the Vice President. When Howards approached the Vice
`President, he told him that his “‘policies in Iraq are dis-
`gusting.’” Ibid. The Vice President simply thanked How-
`ards and moved along, but Howards touched the Vice
`President’s shoulder as the Vice President departed.1
`Howards then walked away.
`
`Several agents observed Howards’ encounter with the
`
`Vice President. The agents determined that Agent Reichle,
`who coordinated the protective intelligence team respon-
`sible for interviewing individuals suspected of violat-
`ing the law, should question Howards. Agent Reichle had
`not personally heard Howards’ comments or seen his con-
`tact with the Vice President, but Agent Doyle briefed
`
`Agent Reichle on what had happened.
`Agent Reichle approached Howards, presented his
`
`badge and identified himself, and asked to speak with
`him. Howards refused and attempted to walk away. At
`that point, Agent Reichle stepped in front of Howards and
`asked if he had assaulted the Vice President. Pointing his
`finger at Agent Reichle, Howards denied assaulting the
`Vice President and told Agent Reichle, “if you don’t want
`other people sharing their opinions, you should have him
`[the Vice President] avoid public places.” Howards v.
`
`
`McLaughlin, 634 F. 3d 1131, 1137 (CA10 2011) (internal
`quotation marks omitted). During this exchange, Agent
`Reichle also asked Howards whether he had touched the
`Vice President. Howards falsely denied doing so. After
`confirming that Agent Doyle had indeed seen Howards
`
`touch the Vice President, Reichle arrested Howards.
`
`The Secret Service transferred Howards to the custody
`
`of the local sheriff ’s department. Howards was charged by
`local officials with harassment in violation of state law.
`——————
`1The 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.
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`2
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`

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`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`The charge was eventually dismissed.
`II
`
`Howards brought this action in the United States Dis-
`
`trict Court for the District of Colorado under Rev. Stat.
`§1979, 42 U. S. C. §1983, and Bivens v. Six Unknown Fed.
`Narcotics Agents, 403 U. S. 388 (1971).2 Howards alleged
`that he was arrested and searched without probable cause,
`in violation of the Fourth Amendment. Howards also al-
`leged that he was arrested in retaliation for criticizing
`the Vice President, in violation of the First Amendment.
`
`Petitioners Reichle and Doyle moved for summary
`judgment on the ground that they were entitled to quali-
`fied immunity. The District Court denied the motion. See
`App. to Pet. for Cert. 46–61. On interlocutory appeal, a
`divided panel of the United States Court of Appeals for the
`Tenth Circuit affirmed in part and reversed in part. 634
`F. 3d 1131.
`
`The Court of Appeals held that petitioners enjoyed
`qualified immunity with respect to Howards’ Fourth
`Amendment claim. The court concluded that petitioners
`had probable cause to arrest Howards for making a mate-
`rially false statement to a federal official in violation of 18
`U. S. C. §1001 because he falsely denied touching the Vice
`President. 634 F. 3d, at 1142. Thus, the court concluded
`that neither Howards’ arrest nor search incident to the
`Id., at 1142–
`
`arrest violated the Fourth Amendment.3
`1143.
`
`However, the Court of Appeals denied petitioners quali-
`
`fied immunity from Howards’ First Amendment claim.
`——————
`2Howards 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.
`3Howards does not challenge the Court of Appeals’ probable-cause
`
` determination.
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`3
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`4
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`
` REICHLE v. HOWARDS
`
`Opinion of the Court
`The court first determined that Howards had established
`a material factual dispute regarding whether petitioners
`were substantially motivated by Howards’ speech when
`they arrested him. Id., at 1144–1145. The court then
`rejected petitioners’ argument that, under this Court’s
`decision in Hartman v. Moore, 547 U. S. 250 (2006), prob-
`able cause to arrest defeats a First Amendment claim of
`retaliatory arrest. The court concluded that Hartman
`established such a rule only for retaliatory prosecution
`claims and, therefore, did not upset prior Tenth Circuit
`precedent clearly establishing that a retaliatory arrest
`violates the First Amendment even if supported by proba-
`ble cause. 634 F. 3d, at 1148.
`
`
`Judge Paul Kelly dissented from the court’s denial of
`qualified immunity. He would have held that when How-
`ards was arrested, it was not clearly established that an
`arrest supported by probable cause could violate the First
`Amendment. In Judge Kelly’s view, Hartman called into
`serious question the Tenth Circuit’s prior precedent on
`retaliatory arrests. 634 F. 3d, at 1151. He noted that
`other Circuits had applied Hartman to retaliatory arrests
`and that there was a “strong argument” in favor of doing
`so. 634 F. 3d, at 1151–1152.
`
`We granted certiorari on two questions: whether a First
`Amendment retaliatory arrest claim may lie despite the
`presence of probable cause to support the arrest, and
`whether clearly established law at the time of Howards’
`arrest so held. See 565 U. S. ___ (2011). If the answer
`to either question is “no,” then the agents are entitled to
`qualified immunity. We elect to address only the second
`question. We conclude that, at the time of Howards’ ar-
`rest, it was not clearly established that an arrest support-
`ed by probable cause could violate the First Amendment.
`We, therefore, reverse the judgment of the Court of Ap-
`
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`

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`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
` peals denying petitioners qualified immunity.4
`
`
`III
`
`Qualified immunity shields government officials from
`civil damages liability unless the official violated a statu-
`tory or constitutional right that was clearly established at
`the time of the challenged conduct. See Ashcroft v. al-
`
`Kidd, 563 U. S. ___, ___ (2011) (slip op., at 3). In Pearson
`
`v. Callahan, 555 U. S. 223, 236 (2009), we held that courts
`
`may grant qualified immunity on the ground that a pur-
`
`ported right was not “clearly established” by prior case
`law, without resolving the often more difficult question
`
`whether the purported right exists at all. Id., at 227. This
`
`approach comports with our usual reluctance to decide
`constitutional questions unnecessarily. Id., at 241; see
`also Camreta v. Greene, 563 U. S. ___, ___ – ___ (2011)
`(slip op., at 9–10); al-Kidd, 563 U. S., at ___ (slip op., at 3).
`
`To be clearly established, a right must be sufficiently
`clear “that every ‘reasonable official would [have under-
`
`stood] that what he is doing violates that right.’ ” Id., at
`___ (slip op., at 9) (quoting Anderson v. Creighton, 483
`U. S. 635, 640 (1987)). In other words, “existing precedent
`must have placed the statutory or constitutional question
`beyond debate.” 563 U. S., at ___ (slip op., at 9). This
`“clearly established” standard protects the balance be-
`tween vindication of constitutional rights and government
`officials’ effective performance of their duties by ensuring
`——————
`4This 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
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`

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`REICHLE v. HOWARDS
`
`Opinion of the Court
`that officials can “‘reasonably . . . anticipate when their
`conduct may give rise to liability for damages.’” Anderson,
`
`supra, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195
`(1984)).
`
`The “clearly established” standard is not satisfied here.
`This Court has never recognized a First Amendment right
`
`to be free from a retaliatory arrest that is supported by
`probable cause; nor was such a right otherwise clearly
`established at the time of Howards’ arrest.
`A
`Howards contends that our cases have “settled” the rule
`
`
`that, “‘as a general matter[,] the First Amendment prohib-
`its government officials from subjecting an individual to
`retaliatory actions’” for his speech. See Brief for Respond-
`ent 39 (quoting Hartman, supra, at 256). But we have
`
`previously explained that the right allegedly violated must
`be established, “‘not as a broad general proposition,’”
`Brosseau v. Haugen, 543 U. S. 194, 198
`(2004)
`(per curiam), but in a “particularized” sense so that the
`“contours” of the right are clear to a reasonable official,
`Anderson, supra, at 640. Here, the right in question is not
`the general right to be free from retaliation for one’s
`speech, but the more specific right to be free from a retali-
`atory arrest that is otherwise supported by probable
`cause. This Court has never held that there is such a
`
`right.5
`——————
`5The Court of Appeals’ reliance on Whren v. United States, 517 U. S.
`806 (1996), was misplaced. There, we held that a traffic stop supported
`by probable cause did not violate the Fourth Amendment regardless
`of the officer’s actual motivations, but we explained that the Equal
`Protection Clause would prohibit an officer from selectively enforcing
`
` the traffic laws based on race. Id., at 813. Citing Whren, the Court of
`Appeals noted that “[i]t is well established that an act which is lawful
`under the Fourth Amendment may still violate other provisions of the
`
`
`
` Constitution.” Howards v. McLaughlin, 634 F. 3d 1131, 1149, n. 15
`
` (CA10 2011). But, again, we do not define clearly established law at
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`6
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`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`B
`
`We next consider Tenth Circuit precedent. Assuming ar-
`guendo that controlling Court of Appeals’ authority could
`be a dispositive source of clearly established law in the
`circumstances of this case, the Tenth Circuit’s cases do not
`satisfy the “clearly established” standard here.
` Relying on DeLoach v. Bevers, 922 F. 2d 618 (1990), and
`Poole v. County of Otero, 271 F. 3d 955 (2001), the Court of
`Appeals concluded that, at the time of Howards’ arrest, its
`precedent had clearly established the unlawfulness of an
`arrest in retaliation for the exercise of First Amendment
`rights, irrespective of probable cause. In DeLoach, a case
`involving both a retaliatory arrest and a retaliatory prose-
`cution, the court held that “[a]n act taken in retaliation for
`the exercise of a constitutionally protected right is action-
`able under §1983 even if the act, when taken for a differ-
`ent reason, would have been proper.” 922 F. 2d, at
`620 (internal quotation marks omitted). In Poole, a sub-
`
`sequent retaliatory prosecution case, the court relied on
`DeLoach for the proposition that a plaintiff ’s illegal con-
`
`duct is “not relevant to his First Amendment claim.” 271
`F. 3d, at 961.
`
`The Court of Appeals acknowledged that Poole was
`abrogated by this Court’s subsequent decision in Hartman
`v. Moore, 547 U. S. 250, which held that a plaintiff cannot
`state a claim of retaliatory prosecution in violation of the
`First Amendment if the charges were supported by proba-
`ble cause. But the Court of Appeals determined that
`Hartman’s no-probable-cause requirement did not extend
`to claims of retaliatory arrest and therefore did not disturb
`
`
`
`
`
`——————
`
`such a “high level of generality.” Ashcroft v. al-Kidd, 563 U. S. ___, ___
`
`(2011) (slip op., at 10). Whren’s discussion of the Fourteenth Amend-
`ment does not indicate, much less “clearly establish,” that an arrest
`
`supported by probable cause could nonetheless violate the First
`
`Amendment.
`
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`
`7
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`

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` REICHLE v. HOWARDS
`
`Opinion of the Court
`its prior precedent in DeLoach. Accordingly, the court
`concluded, “when Mr. Howards was arrested it was clearly
`established that an arrest made in retaliation of an indi-
`vidual’s First Amendment rights is unlawful, even if the
`arrest is supported by probable cause.” 634 F. 3d, at 1148.
`We disagree. At the time of Howards’ arrest, Hartman’s
`
`impact on the Tenth Circuit’s precedent governing retal-
`iatory arrests was far from clear. Although the facts of
`Hartman involved only a retaliatory prosecution, reason-
`able officers could have questioned whether the rule of
`Hartman also applied to arrests.
` Hartman was decided against a legal backdrop that
`
`treated retaliatory arrest and prosecution claims similarly.
`Hartman resolved a split among the Courts of Appeals
`
`about the relevance of probable cause in retaliatory prose-
`cution suits, but some of the conflicting court of appeals
`
` cases involved both an arrest and a prosecution that were
`alleged to be retaliation for the exercise of First Amend-
`ment rights. See 547 U. S., at 255–256, 259, n. 6 (citing
`Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Singer v.
`Fulton Cty. Sheriff, 63 F. 3d 110 (CA2 1995); Keenan v.
`Tejeda, 290 F. 3d 252 (CA5 2002); Wood v. Kesler, 323
`F. 3d 872 (CA11 2003)). Those cases made no distinction
`between claims of retaliatory arrest and claims of retalia-
`tory prosecution when considering the relevance of prob-
`able cause. See Mozzochi, supra, at 1179–1180; Singer,
`
`supra, at 120; Keenan, supra, at 260; Wood, supra, at 883.
`Indeed, the close relationship between retaliatory arrest
`and prosecution claims is well demonstrated by the Tenth
`Circuit’s own decision in DeLoach. DeLoach, too, involved
`
`allegations of both retaliatory arrest and retaliatory pros-
`
`ecution, and the Tenth Circuit analyzed the two claims as
`one. 922 F. 2d, at 620–621.
`
`A reasonable official also could have interpreted Hart-
`man’s rationale to apply to retaliatory arrests. Hartman
`
`
`first observed that, in retaliatory prosecution cases, evi-
`
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`8
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`

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` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`dence showing whether there was probable cause for the
`charges would always be “available and apt to prove or
`
`disprove retaliatory causation.” 547 U. S., at 261. In this
`Court’s view, the presence of probable cause, while not
`a “guarantee” that retaliatory motive did not cause the
`prosecution, still precluded any prima facie inference that
`retaliatory motive was the but-for cause of the plaintiff ’s
`injury. Id., at 265. This was especially true because, as
`Hartman next emphasized, retaliatory prosecution claims
`
`involve particularly attenuated causation between the de-
`
`fendant’s alleged retaliatory animus and the plaintiff ’s
`injury. Id., at 259–261. In a retaliatory prosecution case,
`the key defendant is typically not the prosecutor who
`made the charging decision that injured the plaintiff,
`because prosecutors enjoy absolute immunity for their
`
`decisions to prosecute. Rather, the key defendant is the
`person who allegedly prompted the prosecutor’s decision.
`Thus, the intervening decision of the third-party prosecu-
`tor widens the causal gap between the defendant’s animus
`and the plaintiff ’s injury. Id., at 261–263.
`
`Like retaliatory prosecution cases, evidence of the pres-
`ence or absence of probable cause for the arrest will be
`available in virtually every retaliatory arrest case. Such
`evidence could be thought similarly fatal to a plaintiff ’s
`claim that animus caused his arrest, given that retaliatory
`arrest cases also present a tenuous causal connection
`between the defendant’s alleged animus and the plaintiff ’s
`injury. An officer might bear animus toward the content
`of a suspect’s speech. But the officer may decide to arrest
`the suspect because his speech provides evidence of a
`crime or suggests a potential threat. See, e.g., Wayte v.
`United States, 470 U. S. 598, 612–613 (1985) (noting that
`letters of protest written to the Selective Service, in which
`the author expressed disagreement with the draft, “pro-
`vided strong, perhaps conclusive evidence” of the nonregis-
`trant’s intent not to comply—one of the elements of the
`
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`9
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`

`
`10
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`REICHLE v. HOWARDS
`
`Opinion of the Court
`offense” of willful failure to register for the draft). Like
`retaliatory prosecution cases, then, the connection be-
`tween alleged animus and injury may be weakened in the
`arrest context by a police officer’s wholly legitimate con-
`sideration of speech.
`
`To be sure, we do not suggest that Hartman’s rule in
`
`fact extends to arrests. Nor do we suggest that every as-
`
`pect of Hartman’s rationale could apply to retaliatory
`
`arrests. Hartman concluded that the causal connection in
`retaliatory prosecution cases is attenuated because those
`cases necessarily involve the animus of one person and
`the injurious action of another, 547 U. S., at 262, but in
`many retaliatory arrest cases, it is the officer bearing the al-
`leged animus who makes the injurious arrest. Moreover,
`Hartman noted that, in retaliatory prosecution cases, the
`
`causal connection between the defendant’s animus and the
`prosecutor’s decision is further weakened by the “pre-
`sumption of regularity accorded to prosecutorial deci-
`sionmaking.”
`Id., at 263. That presumption does not
`apply here. Nonetheless, the fact remains that, for quali-
`fied immunity purposes, at the time of Howards’ arrest it
`was at least arguable that Hartman’s rule extended to
`
`retaliatory arrests.6
`Decisions from other Federal Courts of Appeals in the
`
`wake of Hartman support this assessment. Shortly before
`
`——————
`6Howards 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.
`
`
`
`
`
`
`

`
`
`
`
`
`
`11
`
`
`Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`Howards’ arrest, the Sixth Circuit held that Hartman
`
`required a plaintiff alleging a retaliatory arrest to show
`that the defendant officer lacked probable cause. See
`Barnes v. Wright, 449 F. 3d 709, 720 (2006) (reasoning
`
`
`that the Hartman “rule sweeps broadly”). That court’s
`
`treatment of Hartman confirms that the inapplicability of
`Hartman to arrests would not have been clear to a reason-
`able officer when Howards was arrested. Moreover, since
`Howards’ arrest, additional Courts of Appeals have con-
`
`cluded that Hartman’s no-probable-cause requirement
`
`
`
`extends to retaliatory arrests. See, e.g., McCabe v. Parker,
`608 F. 3d 1068, 1075 (CA8 2010); Phillips v. Irvin, 222
`Fed. Appx. 928, 929 (CA11 2007) (per curiam). As we have
`previously observed, “[i]f judges thus disagree on a consti-
`tutional question, it is unfair to subject police to money
`
`damages for picking the losing side of the controversy.”
`
`Wilson v. Layne, 526 U. S. 603, 618 (1999).7
`
`
`
`*
`*
`*
`Hartman injected uncertainty into the law governing
`
`retaliatory arrests, particularly in light of Hartman’s
`rationale and the close relationship between retaliatory
`arrest and prosecution claims. This uncertainty was only
`confirmed by subsequent appellate decisions that disa-
`greed over whether the reasoning in Hartman applied
`similarly to retaliatory arrests. Accordingly, when How-
`ards was arrested it was not clearly established that an
`arrest supported by probable cause could give rise to a
`First Amendment violation. Petitioners Reichle and Doyle
`are thus entitled to qualified immunity.
`The judgment of the Court of Appeals is reversed, and
`
`
`——————
` 7Indeed, the Tenth Circuit itself has applied Hartman outside the
`
`
`
` context of retaliatory prosecution. See McBeth v. Himes, 598 F. 3d 708,
`719 (2010) (requiring the absence of probable cause in the context of a
`claim alleging that government officials suspended a business license in
`retaliation for the exercise of First Amendment rights).
`
`
`
`
`
`
`
`
`
`
`
`

`
`12
`
`
`
`
` REICHLE v. HOWARDS
`
`Opinion of the Court
`the case is remanded for further proceedings consistent
`
` with this opinion.
`
`
`
`
`
`It is so ordered.
`
`
`
` JUSTICE KAGAN took no part in the consideration or
`
`decision of this case.
`
`
`

`
`
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`GINSBURG, J., concurring in judgment
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`_________________
`
` No. 11–262
`_________________
`VIRGIL D. “GUS” REICHLE, JR., ET AL., PETITIONERS
`v. STEVEN HOWARDS
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE TENTH CIRCUIT
`
`
`[June 4, 2012]
`
` JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
`concurring in the judgment.
`
`Were defendants ordinary law enforcement officers, I
`would hold that Hartman v. Moore, 547 U. S. 250 (2006),
`does not support their entitlement to qualified immunity.
`Hartman involved a charge of retaliatory prosecution. As
`the Court explains, the defendant in such a case cannot
`
`be the prosecutor who made the decision to pursue charges.
`See ante, at 9; Hartman, 547 U. S., at 262 (noting
`that prosecutors are “absolutely immune from liability for
`the decision to prosecute”). Rather, the defendant will be
`another government official who, motivated by retaliatory
`animus, convinced the prosecutor to act. See ibid.; ante, at
`9. Thus, the “causal connection [a plaintiff must establish
`in a retaliatory-prosecution case] is not merely between
`the retaliatory animus of one person and that person’s
`own injurious action, but between the retaliatory animus
`of one person and the action of another.” Hartman, 547
`U. S., at 262. This “distinct problem of causation” justified
`the absence-of-probable-cause requirement we recognized
`in Hartman. Id., at 263 (Proof of an absence of probable
`cause to prosecute is needed “to bridge the gap between
`the nonprosecuting government agent’s motive and the
`prosecutor’s action.”). See also id., at 259 (“[T]he need to
`prove a chain of causation from animus to injury, with
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` REICHLE v. HOWARDS
`
`GINSBURG, J., concurring in judgment
`
`details specific to retaliatory-prosecution cases, . . . pro-
`vides the strongest justification for the no-probable-cause
`requirement.” (emphasis added)).
`
`A similar causation problem will not arise in the typi-
`cal retaliatory-arrest case. Unlike prosecutors, arresting
`officers are not wholly immune from suit. As a result, a
`plaintiff can sue the arresting officer directly and need
`only show that the officer (not some other official) acted
`with a retaliatory motive. Because, in the usual retaliatory-
`arrest case, there is no gap to bridge between one gov-
`ernment official’s animus and a second government offi-
`cial’s action, Hartman’s no-probable-cause requirement is
`inapplicable.
`
`Nevertheless, I concur in the Court’s judgment. Officers
`assigned to protect public officials must make singularly
`swift, on the spot, decisions whether the safety of the
`person they are guarding is in jeopardy. In performing
`that protective function, they rightly take into account
`words spoken to, or in the proximity of, the person whose
`safety is their charge. Whatever the views of Secret Ser-
`vice Agents Reichle and Doyle on the administration’s
`
`policies in Iraq, they were duty bound to take the con-
`tent of Howards’ statements into account in determining
`whether he posed an immediate threat to the Vice Presi-
`dent’s physical security. Retaliatory animus cannot be
`inferred from the assessment they made in that regard. If
`rational, that assessment should not expose them to
`claims for civil damages. Cf. 18 U. S. C. §3056(d) (know-
`ingly and willfully resisting federal law enforcement agent
`engaged in protective function is punishable by fine (up to
`$1,000) and imprisonment (up to one year)); §1751(e)
`(assaulting President or Vice President is a crime punish-
`able by fine and imprisonment up to ten years).
`
`
`
`
`
`
`
`
`
`2