Joseph M. Hoskins v. Jared Withers, et al.

This case concerns the application of qualified immunity in constitutional retaliation cases. The courts of appeals are deeply fractured about how to apply qualified immunity in such cases. Constitutional retaliation cases always involve two things: (1) a constitutional right and (2) retaliation for exercising that right. Courts are radically torn over how qualified immunity applies to those elements. Some courts hold that qualified immunity is overcome if the right itself is clearly established. Others hold that qualified immunity bars the claim unless this specific right has been retaliated against in this specific way before. Here, the Tenth Circuit panel took the latter tack, deepening the longstanding confusion on this issue. A law enforcement officer pointed a loaded gun at the plaintiff (petitioner here) in retaliation for petitioner cursing at him. No one disputes that the First Amendment right here is clearly established. But the panel below granted the officer qualified immunity because the Tenth Circuit had, at the time of the incident, “no precedents finding a First Amendment violation when an officer points a gun at a suspect to retaliate for protected speech.” The questions presented are:

1. Whether qualified immunity shields government officials from liability even in cases where they retaliate against a person for exercising a clearly established constitutional right.

2. Whether, even assuming a plaintiff must show that retaliatory conduct is clearly unlawful, qualified immunity should have been denied because the retaliatory conduct here was clearly unlawful. (i)