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Circuit Precedent and "Clearly Established" Law

There are several doctrines related to criminal law in which the decision turns not on a federal court's opinion on a point of law as such but rather how clearly that point was established at the time someone else had to make a "judgment call."  Among these are the retroactivity rule of Teague v. Lane, the qualified immunity rule for civil suits against law enforcement officers, and the so-called deference rule for federal habeas review of points decided on the merits in state court, 28 U.S.C. §2254(d).

Do you need Supreme Court precedent to establish a rule with sufficient clarity, or will on-point circuit precedent do?  For §2254(d) there is no doubt.  Congress explicitly said Supreme Court precedent.  For the other two judge-made rules, however, the issue remains unresolved.

In Reichle v. Howards, the Supreme Court today decided one subsidiary question.  Howards claimed that an arrest by Secret Service agents was actionable, despite probable cause, because it was in retaliation for his exercise of First Amendment rights.  He had on-point precedent of the Tenth Circuit (the circuit the case was in) for that proposition.  Easy case, right?
Not so fast.  The Tenth Circuit precedents on this point allowed such a First Amendment claim for both retaliatory arrest and retaliatory prosecution, and the Supreme Court had subsequently decided the other way as to retaliatory prosecutions in Hartman v. Moore.  Did that later Supreme Court decision also overturn the arrest precedent?

Today's opinion of the Court (by Justice Thomas, joined by 5 others) begins by "Assuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly established law in the circumstances of this case...."  So even that basic point is still unsettled for qualified immunity cases.

It was sufficient for this case to decide that "Hartman injected uncertainty into the law governing retaliatory arrests...."  The Court also noted that other circuits had decided the question the other way post-Hartman.  All it takes is the fact that "it was at least arguable that Hartman's rule extended to retaliatory arrests" to render an on-point circuit precedent no longer clearly established law.

There is no dissent on the judgment.  Justices Ginsburg and Breyer would distinguish officers whose duty is to protect government officials from "ordinary law enforcement officers."  The Secret Service agents "must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy."

Swift, yes.  Singularly?  "Ordinary law enforcement officers" have to make swift decisions, too.  The people protected may be ordinary folks, but the decision is no less swift.

There is, though, a distinction between state and federal officers when it comes to circuit precedent.  State officers need only be aware of the decisions of their own state's courts, the one circuit the state is in, and the Supreme Court.  Federal officers, especially Secret Service agents, must operate across circuit lines, so circuit splits on what is allowed would be especially problematic for them.  Neither opinion today turned on that distinction, however, so there likely is no difference between Bivens suits against federal officers and §1983 suits against state officers for the purpose of today's decision.

Update:  Lyle Denniston at SCOTUSblog considers this a "narrow" decision because it was decided on qualified immunity rather than resolving the First Amendment question.  I disagree.  The question of what is "clearly established" law is a broad and important one.

I will always remember the day Teague v. Lane was decided.  The major papers and the wire services all reported briefly that the Supreme Court had ducked the racial issue and decided on procedural grounds.  Only the Orlando Sentinel knew that a blockbuster case with a powerful effect on capital cases had been decided.  We knew at CJLF, of course, but we were not good at getting our views out to the press in those days.


To a certain extent, this is a bit of a results-oriented decision. At the end of the day, it seems to me, that the government cannot base decisions about whom to arrest on what viewpoints a person has. (Think about it--could someone being a member of the Democratic party be a but-for cause of arrest? The answer has to be no.) But the problem is that the messiness of figuring out the motive behind an arrest is simply too great a cost to bear, notwithstanding the fact that abuses do occur.

Although Justice Thomas began with "[a]ssuming arguendo that controlling Court of Appeals' authority could be a dispositive source of clearly established law in the circumstances of this case...," the Supreme Court appears to have cleared up any misunderstanding that this may have created in Parker v. Matthews (http://www.supremecourt.gov/opinions/11pdf/11-845.pdf):

The Sixth Circuit also erred by consulting its own precedents, rather than those of this Court, in assessing the reasonableness of the Kentucky Supreme Court’s decision. . . . As we explained in correcting an identical error by the Sixth Circuit two Terms ago, see Renico, 559 U. S., at ___ (slip op., at 11–12), circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court,” 28 U. S. C. §2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA.

Parker, slip op. at 12.

There is indeed no doubt for 2254(d) cases. The more difficult question is for 1983/Bivens cases.

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