BRYAN V. HUNTER, ET AL., PETITIONERS V. JAMES V.BRYANT No. 90-1440 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of Brian V. Hunter and Jeffrey Jordan, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, Jeffrey Jordan was a defendant and appellant in this case. TABLE OF CONTENTS Question Presented Parties To The Proceeding Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The decision of the court of appeals (App., infra, 1a-34a) is reported at 903 F.2d 717. The decision of the district court (App., infra, 35a-39a) is not reported. JURISDICTION The judgment of the court of appeals was entered on May 18, 1990. A petition for rehearing was denied on November 5, 1990. On January 24, 1991, Justice O'Connor extended the time for filing a petition for a writ of certiorari for 30 days to March 5, 1991. On February 22, 1991, Justice O'Connor further extended the time for filing a petition for a writ of certiorari to and including March 12, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 18 U.S.C. 871 provides, in relevant part: Section 871. Threats against President and successors to the Presidency (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both. QUESTION PRESENTED Respondent was arrested by petitioners for threatening the life of the President of the United States in violation of 18 U.S.C. 871. He then brought this Bivens action against petitioners, claiming that the arrest was without probable cause and therefore violated the Fourth Amendment. Petitioners submitted affidavits setting forth in detail the undisputed facts surrounding the arrest and moved for summary judgment on grounds of qualified immunity. The question presented is: Whether the court of appeals departed from the requirements of this Court's decisions when it denied petitioners' claim of qualified immunity on the ground that its own, after-the-fact interpretation of events was "more reasonable" than that of petitioners. STATEMENT 1. On May 3, 1985, respondent James V. Bryant delivered copies of a rambling, incoherent, 13-page letter (App., infra, 16a-24a) to two offices at the University of Southern California (USC). In several places, the letter referred to past and future plots by a "Mr. Image" -- asserted to be "Communist white men within the 'National Council of Churchs(')" (id. at 16a) -- to assassinate then-President Reagan. The letter states that "Mr Image wants to murder President Reagan on his up and coming trip to Germany." Id. at 20a. The letter added that "Mr Image has conspired with a large number of U.S. officials in the plot to murder President Reagan." Id. at 22a. Later, the letter asserted that "Mr Image (NCC) still plans on murdering the President on his trip to German in May, 1985." Id. at 24a; see also id. at 22a. The letter stated that the writer has "expos(ed) the conspiracy" (id. at 24a) and claimed that the writer was strongly opposed to "Mr Image"" and his various plans. 2. A USC police sergeant telephoned the Secret Service to inform it of the letter. /1/ Petitioner Bryan Hunter, a Secret Service agent assigned to the protective intelligence squad -- the squad designated to investigate threats upon the President and other individuals protected by the Secret Service (see 18 U.S.C. 3056(a)) -- received the call. As detailed in undisputed portions of his affidavit, Agent Hunter responded to the call the same day, obtaining copies of the letter from the USC police sergeant. /2/ App., infra, 42a. After reading the letter, Agent Hunter interviewed the two USC employees who had received copies of the letter. App., infra, 43a. One of them told Hunter that the man who had given her the letter "made statements about 'bloody coups' and 'assassination,'" and "said something about 'across the throat,' while simultaneously moving his hand horizontally across his throat to simulate a cutting action." Id. at 43a. The other employee said that the man who delivered the letter had identified himself as James V. Bryant and "told her that '(h)e should have been assassinated in Bonn.'" Id. at 43a. At the time, the President was traveling in Germany. Hunter decided to investigate further, in light of the then-present concerns about Libyan "hit squads" (mentioned in the letter, see App., infra, 22a), as well as the facts that the author of the letter was apparently familiar with the President's movements and that the President himself frequently visited the Los Angeles area and maintained a home in Santa Barbara. Id. at 43a-45a. Hunter obtained the assistance of another agent, petitioner Jeffrey Jordan, and visited one of the addresses listed on the letter. App., infra, 45a, 50a. Respondent Bryant came to the door and gave the agents permission to come in. Id. at 45a, 51a. In responde to the agents' questions, Bryant said that he was alone and had no weapons, and Bryant gave Agent Hunter permission to make a "protective sweep" of the apartment to determine if anyone was present. No weapons or other people were found. Id. at 45a-46a, 51a-52a. In response to questions from Agent Hunter, Bryant admitted writing the letter and delivering the two copies at the USC campus. However, he responded to questions about "Mr. Image" "in a rambling and confused manner (and) refus(ed) to identify Mr. Image." App., infra, 46a, 52a. Bryant then gave Agent Hunter permission to search the apartment and, in the course of the search, Agent Hunter found the original of the letter. Id. at 46a. Meanwhile in response to Agent Jordan's questions, Bryant "refused to answer any questions concerning his attitudes and feelings towards the President, and refused to state whether he intended to harm the President." Id. at at 53a. When Hunter completed his search, Jordan advised Bryant of his rights, and Bryant consented to continue speaking to Jordan and Hunter. Bryant again responded in "the same rambling and confused fashion" to further questions concerning the existence and identity of Mr. Image and to questions concerning Libyan hit squads and a planned attempt to assassinate the President. Id. at 46a-47a, 53a. Agents Hunter and Jordan then arrested Bryant. They advised an Assistant United States Attorney of the arrest, and were informed that they should bring Bryant before a magistrate on Monday, May 6, 1985, for his arraignment on a criminal complaint. App., infra, 48a, 55a. Bryant was held in custody pending the arraignment. On May 6, 1985, Bryant was arraigned for threatening the life of the President, in violation of 18 U.S.C. 871. App., infra, 48a-49a, 55a. Bryant was held without bond until May 17, 1985, when the criminal complaint was dismissed on the government's motion and he was freed. Id. at 4a. 3. On May 15, 1986, Bryant instituted this action and on January 27, 1987, he filed an amended complaint, naming agents Hunter and Jordan, the United States Department of the Treasury, and the Director of the Secret Service as defendants. The amended complaint sought recovery under the Federal Tort Claims Act (FTCA) and on the theory that petitioners' conduct had violated the Fourth, Fifth, Sixth, and Fourteenth Amendments. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court dismissed the FTCA causes of action for lack of jurisdiction, dismissed all defendants other than petitioners, and dismissed Bryant's claims under the Fifth, Sixth, and Fourteenth Amendments. App., infra, 39a. But the district court denied motions by petitioners Hunter and Jordan for summary judgment on qualified immunity grounds as to Bryant's remaining Fourth Amendment claims for arrest without probable cause and without a warrant. The court held further fact-finding was necessary before it could determine whether petitioners were entitled to qualified immunity with respect to those claims. App., infra, 38a-39a. 4. Petitioners took an interlocutory appeal to the Ninth Circuit. See Mitchell v. Forsyth, 472 U.S. 511 (1985). A divided panel of the court of appeals affirmed in part and reversed in part. a. In a portion of its opinion discussing general legal principles, the court noted that the issue in this case is "whether a secret service officer, in light of clearly established law at the time of Bryant's arrest * * *, reasonably could have believed that the information possessed by the arresting agents constituted probable cause to support an arrest under 18 U.S.C. 871 for threatening the life of the President." App., infra, 5a. /3/ Acknowledging that "it is essential that qualified immunity claims be resolved at the earliest possible stage of litigation" (App., infra, 9a), the court nonetheless held that "it was proper for the (district) court to require further development of the facts to determine whether the secret service reasonably could have interpreted (Bryant's) letter as violating Section 871." App., infra, 9a-10a. The court observed that violation of Section 871 "turns not on whether the individual actually intended to harm the president, but whether a reasonable person would interpret the words used as a threat." App., infra, 10a. b. Turning to the facts of this case, the court stated that petitioners' argument for qualified immunity rests on their allegations that Bryant admittedly wrote and delivered a letter containing references to an assassination attempt on President Reagan, that President Reagan frequently visited the Los Angeles area, and that "based on their training and experience as Secret Service agents, they believed 'Mr. Image' could be a pseudonym for Bryant." App. infra, 11a. The court, however rejected the agents' conclusion, holding instead that: A more reasonable interpretation of the letter might be that Bryant was trying to convince people of the danger Mr. Image and the conspiracy posed rather than that Bryant was speaking through Mr. Image. Id. at 11a (emphasis added). The court supported this conclusion by noting that (1) the letter purported to be about the threat posed by "Mr. Image," a person of whom the writer of the letter appears to disapprove, and (2), at least in the court's view, "there was absolutely nothing in the surrounding circumstances to suggest a different reading of the letter." Ibid. c. Noting that discovery might be limited to issues relevant to the qualified immunity issue, the court observed that "(i)f further development of the record occurs prior to trial, it is possible that renewal of defendants' motion for summary judgment at a later date might be appropriate." App., infra, 12a. As examples of facts that might establish qualified immunity, the court referred to information "about what knowledge Secret Service officers possess as a result of their professional training about communications by thought disordered persons as well as any information they may have possessed about Bryant." Ibid. d. Finally, in a portion of the opinion in which the panel was unanimous, the court rejected Bryant's claim that under clearly established law a warrantless arrest inside his residence violated the Fourth Amendment's warrant requirement, even where -- as here -- he had consented to the agents' entry into his house. App., infra, 13a-15a; 34a (Trott, J., dissenting in part). The court found that, to the contrary, the case law suggests that the officers could "have believed that their warrantless arrest was lawful so long as they had probable cause and consent to enter the residence." Id. at 14a. e. Judge Trott dissented. He argued that whereas the majority "measur(ed) what confronted Hunter and Jordan in the field by rational standards", in his view it was precisely the threat posed by unbalanced individuals who do not exhibit rational thought processes -- John Hinckley, for example -- that the Secret Service should be most concerned about. App., infra, 25a. Judge Trott pointed out that the probable cause standard is a "pragmatic" one (App., infra 28a-29a), and urged that, in the context of Section 871, this standard requires consideration of the crucial importance of the Secret Service's mission. Citing a previous case of an individual with multiple personalities and alter egos who had committed multiple murders (see App., infra, 31a-32a), he argued that reasonable people could differ about whether Bryant -- or at least some aspect of his personality -- had threatened the President. Judge Trott pointed out that there was no case law concerning "the contours of probable cause to make an arrest for a violation of section 871" and that consequently there was no "clearly established" law that the agents had violated. App., infra, 32a-33a. He also noted that a magistrate had agreed with the agents that they had probable cause, and had ordered plaintiff held for 14 days. Id. at 33a. He observed that there was no evidence that the agents were acting in bad faith. Ibid. Indeed, in Judge Trott's view, the agents had probable cause to arrest Bryant. Ibid. A fortiori, they were entitled to qualified immunity. REASONS FOR GRANTING THE PETITION Petitioners are entitled to summary judgment on qualified immunity grounds if "a reasonable officer could have believed (Bryant's arrest) to be lawful, in light of clearly established law and the information the (arresting) officers possessed." Anderson v. Creighton, 483 U.S. 635, 641 (1987). In turn, Bryant's arrest was lawful if "the facts and circumstances * * * were sufficient to warrant a prudent man in believing that (Bryant) had (violated 18 U.S.C. 871)." Beck v. Ohio 379 U.S. 89, 91 (1964). Although portions of the Ninth Circuit's opinion correctly set out these general legal principles, the operative portion of the court's opinion applied a dramatically different standard. Rather than determining whether a reasonable agent in petitioners' position could have interpreted the facts and circumstances as they did, the court posited its own interpretation of events and then found that, under this "more reasonable interpretation," Bryant had not violated Section 871. App., infra, 11a. The error of this approach is manifest. There is simply no place in a qualified immunity analysis for a court to determine whether its interpretation of events is "more reasonable" than that adopted by the officers being sued. Had the court undertaken to determine whether petitioner's interpretation was itself reasonable, the court would have realized that the undisputed facts of this case establish petitioners' right to qualified immunity. The Ninth Circuit's analysis directly contravenes decisions of this Court, and is supported by no other appellate decision. Moreover, the court's decision threatens to chill enforcement of 18 U.S.C. 871, a vital tool in protecting the President and others in line of succession. Thus, the decision below is one of exceptional importance. But the error in the court's rationale, and in its result, is so plain that we have some doubt that plenary review would be warranted. We therefore urge that the decision of the Ninth Circuit be summarily reversed. 1. Federal officials sued for damages in their personal capacity in a Bivens action are entitled to assert the defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Malley v. Briggs, 475 U.S. 335 (1986); Pierson v. Ray, 386 U.S. 547, 557 (1967). Under that standard, which provides the "best attainable accommodation of competing values" (Harlow, 457 U.S. at 814), petitioners are not immune "(i)f, on an objective basis, it is obvious that no reasonably competent officer would have concluded that (there was probable cause for Bryant's arrest); but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley v. Briggs, 475 U.S. at 341. An essential feature of the qualified immunity standard is that it does not permit a damages action against a public official to proceed simply because a plaintiff has claimed that an after-the-fact judicial inquiry would disclose that his constitutional rights had been violated. Such a result could lead to unduly timid law enforcement; the official forced to defend a suit and faced with the possibility of a substantial money judgment would be given a very powerful incentive to "err always on the side of caution." Davis v. Scherer, 468 U.S. 183, 196 (1984). "(T)he danger of being sued (would) 'dampen the ardor of all but the most resolute, or the most irresponsible (public officials), in the unflinching discharge of their duties.'" Harlow, 457 U.S. at 814. Accordingly, "the qualified immunity defense * * * provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341. /4/ Thus, this case does not raise the issue of whether petitioners were mistaken in their interpretation of events. Its resolution did not require the court of appeals to determine whether the court -- in hindsight -- believed Bryant's arrest to be wise, prudent, or necessary, and the court of appeals erred in deciding the issue on that basis. 2. The nature of the probable cause standard that governs the legality of Bryant's arrest reinforces the conclusion that the Ninth Circuit erred in substituting its judgment for that of petitioners. For the probable cause standard is itself responsive to the same considerations as the qualified immunity standard: the need to safeguard the ability of law enforcement officers "to take effective action" to "protect() the public interest by enforcing the law." Brinegar v. United States, 338 U.S. 160, 174 (1949). Thus, this Court has recognized that, because "many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part." Brinegar v. United States, 338 U.S. at 176. So long as "the mistakes (are) those of reasonable men" (ibid.), such mistakes will not render unconstitutional an otherwise proper arrest. In determining probable cause, law enforcement agents are authorized to base arrests on "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 175. In a time-honored formulation, the existence of probable cause depends on an assessment of "whether at (the moment the arrest was made) the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that (the person arrested) had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). /5/ Accord Carroll v. United States, 267 U.S. 132, 162 (1925). 3. As Judge Trott noted (App., infra, 32a-33a), the lack of case law applying the probable cause standard in the context of Section 871 counsels in favor of petitioners' claim that they reasonably could have thought they had probable cause in this case. Moreover, case law involving the enforcement of Section 871 confirms that Bryant's conduct could reasonably be thought to come within the statute's proscriptions. In the most frequently quoted formulation (relied upon by the court of appeals, see App., infra, 10a), Section 871 is said to require only that the defendant intentionally make a statement * * * in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, and that the statement not be the result of mistake, duress, or coercion. Roy v. United States, 416 F.2d 874, 877-878 (9th Cir. 1969) (emphasis added); United States v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984) (citing cases), cert. denied, 469 U.S. 1165 (1985); United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983) ("apparent determination to carry out the threat"), cert. denied, 467 U.S. 1228 (1984); Ragansky v. United States, 253 F. 643 (7th Cir. 1918) (same). /6/ In accord with this formulation, every circuit but one to consider the question has held that the statute "does not require that the defendant actually intend to carry out the threat." Roy v. United States, 416 F.2d at 878; United States v. Callahan, 702 F.2d 964 (11th Cir.), cert. denied, 464 U.S. 840 (1983); United States v. Vincent, 681 F.2d 462, 464 (6th Cir. 1982); United States v. Smith, 670 F.2d 921, 922-923 (10th Cir. 1982) (threat defined as "avowed present determination or intent to injure"; key word is "avowed"); United States v. Kelner, 534 F.2d 1020, 1025 n.6 (2d Cir.), cert. denied, 429 U.S. 1022 (1976); United States v. Hart, 457 F.2d 1087 (10th Cir.), cert. denied, 409 U.S. 861 (1972). /7/ Those holdings follow directly from the dual purposes of Section 871: "to prevent assaults upon the President" and to avoid "the detrimental effect upon Presidential activity and movement that may result simply from a threat upon the President's life." Roy, 416 F.2d at 877. The mere existence of a threat can limit the President's freedom of action, even if the threat is later determined to be groundless. Because an individual may be capable of making such a threat even if he suffers from severe mental disturbance, the fact that an individual is mentally disturbed does not preclude prosecution under the statute. In fact, such prosecutions are frequent, and the details of the threats that are prosecuted are often bizarre. E.g., United States v. Mitchell, 812 F.2d 1250, 1252 (9th Cir. 1987) (defendant claimed he was Mahatma Gandhi and son of Nehru and had guerilla army in Philippines); United States v. Crews, 781 F.2d 826, 829 (10th Cir. 1986) (patient in hospital psychiatric ward). Indeed, a threat made by an individual who is mentally unstable may impair the President's ability to carry out his functions as much as a threat made by one who is sane. Moreover, our nation's sad experience with assassinations suggests that mentally unstable individuals may be all too likely to act on their threats. See pp. 22-23, infra. 4. Both the facts surrounding Bryant's conduct and the nature of petitioners' investigation of that conduct establish that, although alternative explanations of Bryant's statements were no doubt possible, petitioners acted reasonably in determining that there was sufficient cause to believe he had violated the statute. Petitioners consequently were entitled to qualified immunity as a matter of law. a. Bryant himself admitted to writing and delivering the letter, which not only discussed threats to the President's life but also indicated an awareness of the President's movements. App., infra, 46a, 52a. When petitioners interviewed Bryant, he "refused to state whether he intended to harm the President." Id. at 53a. Petitioner Hunter had been told by the individuals who received the letter that Bryant had moved his finger across his throat while delivering the letter and asked whether "he" had been assassinated yet; both the gesture and the use of "he" could be reasonably taken to refer to the President. Id. at 43a, 47a-48a. To be sure, Bryant asserted in the letter that someone else -- "Mr. Image" -- had threatened the President; had "Mr. Image" been a real person, perhaps the argument could have been made that petitioners should at least have investigated "Mr. Image" before determining that the threat in reality came from Bryant. But "Mr. Image" was not a real person, and petitioners reasonably concluded that "Mr. Image" was present only in Bryant's mind, as an aspect of his personality. Id. at 48a-54a. Thus, petitioners acted reasonably in concluding that they had probable cause to believe that Bryant, while attributing the threat to a fictional person, had himself made a threat against the President. b. The facts and circumstances surrounding petitioners' investigation -- which were ignored by the court of appeals -- further reinforce the reasonableness of petitioners' conclusion that Bryant could be seen to have threatened the President. First, Agent Hunter read the letter. App., infra, 42a. Then, he investigated the facts surrounding the delivery of the letter. Id. at 43a. Having found that both the letter and the conduct of the person who delivered it could be interpreted as threatening, Agent Hunter determined that further investigation was necessary. With the assistance of Agent Jordan, he proceeded to interview Bryant and to search his residence. After the interview, petitioners analyzed their information in light of "the factual and practical considerations of everyday life on which reasonable and prudent men * * * act" (Brinegar, 338 U.S. at 175), and concluded that there was sufficient cause to believe that Bryant had threatened the President in violation of the statute. The deliberate, careful sequence of response, investigation, interview, and decision buttresses the conclusion that petitioners acted within the bounds of reason in making their probable cause determination. As Judge Trott stated, "not a scintilla of evidence exists that either agent was acting in bad faith." App., infra, 33a. 5. Although the general discussion in the court of appeals' opinion alluded to correct formulations of the legal standard governing qualified immunity, the standard that the court actually, and explicitly, applied was dramatically different. The following passage is the operative portion of the court's opinion: (T)he letter read in its entirety does not appear to make a threat against the president. Most of the letter does not even talk about President Reagan. A more reasonable interpretation of the letter might be that Bryant was trying to convince people of the danger Mr. Image and the conspiracy posed rather than that Bryant was speaking through Mr. Image. The fact that Mr. Image appears to be someone of whom Mr. Bryant disapproves appears to cut against the alter ego theory. Rather, Mr. Image is part of the evil forces that are keeping black men, including Bryant oppressed. Additionally, there was absolutely nothing in the surrounding circumstances to suggest a different reading of the letter. Rather, a man making vague and disjointed statements and odd gestures was wandering around the USC campus handing out a weird letter (or tract) addressed to no one in particular, which he wanted delivered to university officials. App., infra, 11a (emphasis added). In this passage, the court first posited its alternative interpretation of Bryant's letter -- that the letter was attempting to warn the President of a conspiracy by an entirely fictional "Mr. Image." The court then analyzed the evidence to determine whether it "cut against" petitioners' interpretation and in favor of the court's alternative. Finally, the court advanced an alternative explanation of "the surrounding circumstances" under which Bryant's letter." Nowhere in this passage or elsewhere did the court consider whether petitioners' interpretation of events was one that could be adopted by a reasonable person; instead, the court confined its analysis to the question whether its alternative explanation of the letter and surrounding circumstances was preferable to that on which petitioners had acted. Although the court may have been correct that its reading of the letter and the surrounding circumstances -- in hindsight and with the luxury of time to consider the situation -- was itself reasonable, that fact is entirely irrelevant to the analysis that the court should have conducted. Under settled legal doctrine, a court may not deny qualified immunity on the ground that an appellate court or finder of fact -- operating in hindsight and with full benefit of briefing, argument, and ample time for consideration -- could reasonably arrive at a different interpretation of events from the one on which petitioners acted. The only proper question was whether petitioners themselves acted outside the bounds of reason or competence in assessing the facts. And that question was neither asked nor answered in the opinion of the court of appeals. 6. Despite the Ninth Circuit's plain departure from settled legal principles governing qualified immunity determinations, we have some doubt that plenary review of this case is warranted. Although, as discussed above, the standard applied in the Ninth Circuit's opinion is manifestly incorrect, some of the general discussion in the court's opinion did correctly set forth the law governing qualified immunity. In addition, the court did not purport to rely on any decision of any other court in articulating or applying its incorrect standard, nor are we aware of any decision supporting the court's analysis. We do believe, however, that summary reversal of the judgment is warranted. /8/ This Court has frequently remarked that a "Bivens remedy, in addition to compensating victims, serves a deterrent purpose." Carlson v. Green, 446 U.S. 14, 21 & n.7 (1980). See Bush v. Lucas, 462 U.S. 367, 389 (1983); Harlow, 457 U.S. at 819 ("Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate."); Mitchell v. Forsyth, 472 U.S. at 524 (referring to purpose of providing officials with "incentives to abide by clearly established law"). /9/ Because of that deterrent effect, the Ninth Circuit's decision, if permitted to stand, could have an adverse impact on the enforcement of 18 U.S.C. 871. In light of the crucial role played by Section 871 in assisting the Secret Service to protect the President (as well as the others in the line of succession), correction of the court of appeals' error is essential. a. Section 871 has long been recognized as a vital tool for the Secret Service to use in carrying out its statutory protective responsibilities. /10/ As a former Assistant Secretary of the Treasury for Enforcement has testified, Section 871 "provides a clear avenue for responding to (a) threat as a Federal criminal offense for which arrest and possibly prosecution are available." Prohibition of Threats Against the Presidential Candidates and Other Persons Not Covered by the Presidential Threat Statute: Hearing Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 97th Cong., 2d Sess. (1982). When an individual has threatened the President, Section 871 provides Secret Service agents investigating the threat with the authority to arrest the individual involved, rather than requiring them to wait to determine whether the threat will be carried out. In these instances, then, the President need not be faced with the alternative of either exposing himself to individuals who may do him harm or curtailing his activities to avoid any possible exposure. b. Although security concerns preclude the Secret Service from releasing detailed information on its protective function, the Service's policy is that "(t)hreats against any individual being protected by the Secret Service receive a thorough and timely response by that agency and are a matter of the highest priority until the threat is neutralized." 1982 Hearing at 5-6. (In this case, for example, the report of Bryant's threat received a thorough investigation on the very day it was reported.) Although the number of threats is quite high, /11/ each of those threats must be individually investigated and an on-the-spot determination made as to whether an arrest is necessary. Many of the threats investigated by the Secret Service come from mentally unbalanced individuals. Of the 41 Presidents of the United States, ten have been the subject of attempted or actual assassinations. /12/ A Presidential Commission concluded in a 1969 study of presidential assassinations that "no presidential assassination, with the exception of an abortive attempt on the life of President Truman, has been demonstrated to have sprung from a decision of an organized group whose goal was to change the policy or the structure of the United States government." National Comm'n on the Causes and Prevention of Violence, To Establish Justic, To Insure Domestic Tranquility 122 (1969). Instead, "(d)eranged, self-appointed saviors have been the murderers of American Presidents" and have produced "many of the assassinations of other national leaders and public officials." Id. at 125. Events since 1969 have confirmed those conclusions; the 1975 attempts on the life of President Ford by Sarah Jean Moore and Lynette Fromme, as well as John Hinckley's attempted assassination of President Reagan, were the works of mentally unstable individuals, not organized groups attempting to further a political objective. 8. In this unique context, the concerns that "fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties" (Anderson v. Creighton, 483 U.S. at 638), /13/ take on particular significance. Agents must (and do) perform their protective function with due regard for the constitutional rights of our citizens. But they cannot adequately enforce Section 871 and protect the President if they face the threat of years of litigation and a very substantial damage judgment for taking enforcement actions that they reasonably believed to be -- and that in fact were -- fully legal at the time. /14/ Moreover, the deterrent effect of a Bivens action is a general one; the effects of the court of appeals' decision can be expected to be taken into account by all Secret Service agents assigned to protective intelligence cases. And the cost of failing to enforce Section 871 is not merely that a criminal may escape punishment; in Judge Trott's words, "(w)e expect the Secret Service to prevent these crimes, not just attend funerals when they occur." /15/ App., infra, 30a. 9. Finally, the fact that the court of appeals' judgement is interlocutory does not counsel against summary disposition. A public official's qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This Court's immunity cases have thus emphasized that the qualified immunity issue "should be resolved at the earliest possible stage of litigation." Anderson, 483 U.S. at 646 n.6. Accord Malley, 475 U.S. at 341; Cleavinger v. Saxner, 474 U.S. 193, 208 (1985); Mitchell, 472 U.S. at 526; Harlow, 457 U.S. at 818. Accordingly, this case should not be allowed to return to the district court for further litigation and, perhaps, a trial. That course would needlessly prolong the uncertainty facing petitioners and would permit the court of appeals' erroneous decision to continue to chill enforcement of Section 871. Because the court of appeals' error threatens a unique federal interest, it warrants correction now by this Court. CONCLUSION The petition for a writ of certiorari should be granted and the Court should summarily reverse on the ground that undisputed facts establish that petitioners were entitled to qualified immunity. Alternatively, the court should reverse and remand to the court of appeals, with instructions to apply the appropriate legal standard to petitioners' qualified immunity claim. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General JEANNE S. ARCHIBALD General Counsel DENNIS I. FOREMAN Deputy General Counsel Department of the Treasury JOHN J. KELLEHER Chief Counsel United States Secret Service MARCH 1991 /1/ Since 1901, shortly after the assassination of President McKinley, the Secret Service has been responsible for protecting the President. W. Bowen & H. Neal, The United States Secret Service 126 (1960). In 1913, Congress first enacted legislation giving statutory sanction to the Secret Service's protective function. 38 Stat. 23. That authority is currently codified at 18 U.S.C. 3056(a). /2/ Although Bryant disputed the interpretation Agents Hunter and Jordan placed on his letter, he did not submit an affidavit or other matter disputing the facts concerning the actions taken by Hunter and Jordan prior to arresting him. According, under Fed. R. Civ. P. 56(e), those facts must be taken as true for purposes of petitioners' summary judgment motion. /3/ The court recognized that it was unclear whether the district court had required factual development to resolve the issue of whether there was in fact probable cause for the arrest or to determine "if the officers reasonably could have believed they had probable cause." App., infra, 6a n.3. The court characterized the former inquiry as "improper" and the latter inquiry as "the proper standard." Ibid. /4/ Accord Anderson, 483 U.S. at 641 (it is "inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present"); Scheuer v. Rhodes, 416 U.S. 232, 242 (1974) ("Implicit in the idea that officials have some immunity -- absolute or qualified -- for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all."). /5/ There is no dispute in this case that all of the facts and circumstances on which petitioners based the arrest either were within their knowledge or -- in the case of the reports as to Bryant's conduct while delivering the letters -- appropriately characterized as "reasonably trustworthy information." /6/ Words uttered in jest or as political hyperbole do not violate Section 871. See Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam); United States v. Frederickson, 601 F.2d 1358, 1364 (8th Cir. 1979). /7/ Only the Fourth Circuit has taken a different view. See United States v. Patillo, 438 F.2d 13 (1971) (en banc) (statute requires "present intention to do injury to the President"). /8/ Cf. Freeport-McMoRan Inc. v. K N Energy, Inc., 111 S. Ct. 858 (1991). /9/ See also Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978) (Section 1983 action); Carey v. Piphus, 435 U.S. 247, 256 (1978) (same). /10/ In amending 18 U.S.C. 871 and adding a companion statue, 18 U.S.C. 879, in 1982, Congress recognized that the threat statutes provide the Secret Service with an inportant means to carry out its protective function. See H.R. Rep. No. 725, 97th Cong., 2d Sess. 3; id. at 12 (enacting 18 U.S.C. 879 to extend 18 U.S.C. 871 threat statute to new protectees "would beneficially affect their security"). See also H.R. Rep. No. 578, 84th Cong., 1st Sess. 2 (May 10, 1955) ("It has been the experience of the Secret Service that (18 U.S.C. 871) has been a great aid in the investigation of threats against the President, in that it permits prompt Federal action to be taken in the matter regardless of the manner in which the threats are communicated."). /11/ During 1989, the 1,916 Secret Service agents -- many of them assigned to tasks other than protective intelligence, see 18 U.S.C. 3056(b) -- opened 7,894 protective research cases, most of which involved threats to protected officials. Treasury, Postal Service, and General Government Appropriations for Fiscl Year 1991: Hearings Before Subcomm. on the Treasury, Postal Service, and General Government Appropriations of the House Comm. on Appropriations, 101st Cong., 2d Sess. 588 (1990). In testimony before Congress in 1983, a Secret Service official estimated that the Service receives 20 to 25 calls per day concerning potential threats. The United States Secret Service and Its Use of the National Crime Information Center: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 98th Cong., 1st Sess. 26 (1983). /12/ Presidents Jackson, Theodore Roosevelt, Franklin Roosevelt, Truman, Ford, and Reagan were the targets of assassination attempts. Presidents Lincoln, Garfield, McKinley, and Kennedy were assassinated while in office. /13/ See also Davis v. Scherer, 468 U.S. at 196 ("officials should not err always on the side of caution"); Scheuer v. Rhodes, 416 U.S. 232, 240 (1974) (recognizing "the danger that the threat of * * * liability would deter (an officer's) willingness to execute his office with the decisiveness and the judgment required by the public good"). /14/ Petitioners in this case, for example, have been defendants in this lawsuit for 5 years, subject to the uncertainties of litigation and the potential risk of a substantial damages judgment at its ultimate termination. The amended complaint sought general damages of $1,000,000 and punitive damags of $5,000,000 against each of petitioners. /15/ See generally Review of Secret Service Protective Measures: Hearings Before a Subcomm. of the Senate Comm. on Appropriations, 94th Cong., 1st Sess. (1975) (hearings concerning Secret Service procedures for investigating threats, focusing on the Service's interview of Sara Jean Moore the day before she attempted to assassinate President Ford). APPENDIX