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.
Like Kent, I was interested in the Court’s suggestion that circuit precedents alone may not be enough to “clearly establish” the law for qualified immunity purposes. I haven’t followed this issue closely in some time, but here is what I wrote on it back in 2007 in the cert petition I drafted for Pearson v. Callahan:
Granting certiorari would also permit the Court to address the three-way division among the Courts of Appeals on whether and how decisions outside the home circuit create “clearly established” law. The problem is an important one: When applying the qualified immunity test, to what extent should the state of the law be informed by decisions other than those of the Supreme Court and the home circuit? Should the law of other circuits, state supreme courts, federal district courts, and lower state courts factor into whether the law is “clearly established?” Or are these decisions irrelevant? . . .
Although the Supreme Court has provided occasional guidance on how to determine clearly established law, the circuits have divided on the meaning of that guidance and have adopted a wide range of different legal tests in response to it. For example, the Tenth Circuit below recognized the Circuit’s usual rule that “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007) (cited in Callahan, 494 F.3d at 899).
The Seventh Circuit and the Ninth Circuit take a roughly similar approach. In those circuits, courts can consider all relevant caselaw whether from another circuit, a state court, or a district court. See, e.g., Tekle ex rel. Tekle v. United States, 457 F.3d 1088, 1096 (9th Cir. 2006) (“In the absence of binding precedent, we look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of state courts, other circuits, and district courts.”); Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000) (Courts “broaden our survey to include all relevant caselaw in order to determine whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.”)
In the Eleventh Circuit, by contrast, the only source of law that is relevant beyond the Supreme Court and the home circuit is the state Supreme Court in the state where the event occurred. Courts looking for “clearly established” law do not consider the law of other circuits or other state courts. See Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc) (“When case law is needed to ‘clearly establish’ the law applicable to the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state…. Each jurisdiction has its own body of law, and splits between jurisdictions on matters of law are not uncommon. We do not expect public officials to sort out the law of every jurisdiction in the country.”) See also Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003).
The Second Circuit takes yet another approach. In the Second Circuit, the only sources that can create “clearly established” law are the U.S. Supreme *Court and the Second Circuit. Decisions by other circuits, state courts, and federal district courts are irrelevant to whether the law is “clearly established.” See Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (“When neither the Supreme Court nor this court has recognized a right, the law of our sister circuits and the holdings of district courts cannot act to render that right clearly established within the Second Circuit.”). See also Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003); Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).
The Court ended up granting cert and reversing on immunity grounds 9-0, although the decision didn’t need to address that particular circuit split identified in the petition.
UPDATE: A reader points out that the caution in the majority opinion may be a result of the unusual facts of the case, rather than a reflection of broader uncertainty in the law. The case involved actions by Secret Service officers who protect the Vice-President wherever he travels, and who therefore are less likely to be working in a single jurisdiction. As the SG’s brief argued:
The court of appeals’ unilateral declaration of clarity was especially inappropriate in light of the protective function that petitioners were performing when they arrested respondent. The protective duties of the Secret Service are not confined to a particular geographic locale, but instead follow the protected individuals wherever they may be. It is unreasonable, undesirable, and unrealistic to expect agents to modify their performance of their duties based on the law of the local court of appeals, or to “abide by the most stringent standard adopted anywhere in the United States.” al-Kidd, 131 S. Ct. at 2087 (Kennedy, J., concurring). As this Court has recognized, the qualified-immunity doctrine’s “accommodation for reasonable error” is “nowhere more important than when the specter of Presidential assassination is raised.” Hunter, 502 U.S. at 229.