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III. A reasonable officer could believe that
the use of force alleged in this case was lawful
in light of clearly established law.

One common characteristic of all excessive force claims is that they are almost always very fact specific. Each use of force is slightly different from the other except for the absolute of deadly force. Similarly, each arrestee will differ from the next, as will the circumstances surrounding the arrest. Therefore, determining the legality of a particular use of force "requires careful attention to the facts and circumstances of each particular case . . . ." Graham v. Connor, 490 U. S. 386, 396 (1989). This leads to a very idiosyncratic body of law, with each case turning on its own particular set of facts.

Fortunately, qualified immunity does not turn on finding a case on point. "This is not to say that an official action is protected by qualified immunity unless the action in question has previously been held unlawful, [citation]; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U. S. 635, 640 (1987). Looking to cases involving similar uses of force in comparable situations, the illegality of Private Saucier's actions was not apparent in light of the law as it stood on September 24, 1994.

The reasonableness of Private Saucier's legal conclusions is derived from two facets of the encounter. First, the amount of force involved is rather small. Katz merely alleges that Saucier and another officer grabbed him, tore the sign from his hands, gave a type of "bum's rush" and then " 'violently threw' him inside" the van. Katz v. United States, 194 F. 3d 962, 965 (CA9 1999). Although Katz claims that it took considerable effort to keep himself from being seriously hurt when he was thrown into the van, see id., at 965-966, the fact remains that he suffered no real harm and that the authorities used little real force against him. Two circuits routinely grant qualified immunity in cases of "de minimis" force and little, if any, actual injury. See Curd v. City Court of Judsonia, Arkansas, 141 F. 3d 839, 841 (CA8 1998); Nolin v. Isbell, 207 F. 3d 1253, 1255-1257 (CA11 2000). If an officer can make an arrest, then he or she has the right to use at least some force. "Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, supra, 490 U. S., at 396. " 'Not every push or shove, even if it may later seem unnecessary in the peace of the judge's chambers,' [citation], violates the Fourth Amendment." Ibid.

While a lack of substantial injury may not be dispositive, see Wilks v. Reyes, 5 F. 3d 412, 416 (CA9 1993), it is highly relevant to the reasonableness of the use of force. See Meyer v. Robinson, 992 F. 2d 734, 739 (CA7 1993) ("no injury gives weight to the assertion of no excessive force"). The fact that there was no actual harm, when coupled with the minimal force involved, strongly favors the reasonableness of the use of force.

A second factor supporting qualified immunity is the need to protect the Vice President. Sadly, experience teaches us that highly visible public officials are subject to a real risk of harm during public appearances. Although the President is the most obvious target, other prominent figures can face real danger at public events. See, e.g., People v. Sirhan, 7 Cal. 3d 710, 718, 497 P. 2d 1121, 1125-1126 (1972) (assassination of Senator Kennedy), overruled on other grounds, Hawkins v. Superior Court, 22 Cal. 3d 584, 593, 586 P. 2d 916, 922 (1978).

Those who protect our highest officials must be allowed to react quickly to any potential threat. Presidents Reagan and Ford both narrowly averted assassination because of the rapid reaction to the threats by security officials. See E. Magnuson, Six Shots at a Nation's Heart, Time, April 13, 1981, at 26-29 (Reagan); The Girl Who Almost Killed Ford, Time, Sept. 15, 1975, at 10-11 (Ford). Therefore, while the interest in protecting the President is paramount, see Hunter v. Bryant, 502 U. S. 224, 229 (1991) (per curiam), officers should have similar freedom to protect the nation's second highest constitutional officer through crowd control.

Even though Katz alleges that he clearly posed no direct threat to the Vice President, it is still necessary to view Private Saucier's actions in light of very real security concerns. Maintaining crowd control is an essential element of protecting public speakers like the Vice President. Although the demonstrators themselves may not intend to harm the speaker, certain types of public demonstrations can divert the attention of security officials from greater threats.⁽³⁾ Private Saucier was given a valid order that demonstrators would not be allowed on the Presidio,⁽⁴⁾ and that he should diffuse such situations without drawing more attention than necessary. Katz, supra, 194 F. 3d, at 965. Katz started moving towards the barrier, just as the Vice President started to speak. While Katz only removed a banner from his jacket, ibid., Saucier necessarily had little time to react. Private Saucier must be allowed to use some force to quickly remove such a disruption from the scene before something far more threatening could have developed.

The Ninth Circuit concluded that "[f]rom all that appears at this stage of the case, he [Katz] did not pose an immediate threat to the safety of the officers or anyone else." Id., at 970. This is the type of judicial second-guessing of an officer in the field that Graham forbids. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Graham, supra, 490 U. S., at 396-397. Private Saucier cannot consult the federal reports or Professor LaFave's treatise before making up his mind.

The Ninth Circuit itself recognizes that some force is necessary to disperse illegal demonstrators. In Forrester v. City of San Diego, 25 F. 3d 804, 805-806 (CA9 1994), San Diego police used "pain compliance techniques" to disperse anti-abortion protesters who refused to stop blocking access to medical clinics. The Court upheld a jury's finding of reasonable force. It first noted that the force used here "was less significant than most claims of force. The police did not threaten or use deadly force and did not deliver physical blows or cuts." Id., at 807. Instead, they inflicted pain through "physical pressure administered on demonstrators' limbs in increasing degrees . . . ." Ibid. Given the legitimate government interest in maintaining order and protecting public safety, this use of force was reasonable. Ibid. The fact that dragging and carrying protesters may have been more reasonable was irrelevant. See id., at 807-808.

While not identical to this case, Forrester illustrates the reasonableness of what Private Saucier did. The present case does involve fewer protesters, but much less force is involved in this case than in Forrester. Furthermore, this case involves the special security concerns surrounding the Vice President. Forrester may not make Private Saucier's legal conclusions correct, but it makes them more reasonable.

The two cases cited by the Ninth Circuit to support its conclusion that Private Saucier acted unreasonably, see Katz, supra, 194 F. 3d, at 970, are readily distinguishable. Sheth v. Webster, 145 F. 3d 1231 (CA11 1998) involved a dispute between the plaintiff, a landlord, and officer Webster over whether Sheth should return some money to one of her tenants. See id., at 1234. After being contradicted by Sheth, Webster committed an unprovoked assault against her. This included repeatedly pushing her to the point that "plaintiff cried to Webster that he was hurting her. According to one witness, he kneed the plaintiff in the stomach. Sheth fell back against a Coke machine five to twelve feet from where she stood." Ibid. After that, Officer Webster handcuffed her by one arm and dragged her to his car, eventually shoving her inside. Ibid. At one point, "[p]eople around began to shout at Webster to stop, that he was hurting her." Ibid. This is a far cry from the minimal, injury-free force used to help maintain crowd control around the Vice President.

Alexis v. McDonald's Restaurants of Massachusetts, Inc., 67 F. 3d 341 (CA1 1995) is similarly distinguishable. In that case, the plaintiff, who was asked to leave a McDonald's after a dispute with the management, was "pulled from the booth, and across the table, with sufficient force to bruise her legs, then handcuffed with her hands behind her back and dragged and carried into a police cruiser and pushed inside." Id., at 353 (emphasis added). Once again, the force is greater, and the threat smaller than in this case.

It is not necessary that Private Saucier's actions were clearly legal at that time. Instead they must merely be not clearly illegal. The force employed by Private Saucier allowed a speedy removal of Katz from the Vice President's presence. Given the minimal force employed, the lack of harm to Katz, and the heightened security interests, a reasonable officer could conclude that Private Saucier acted lawfully. He should not be hamstrung by judicial second-guessing.

IV. If the Court does adopt the Ninth Circuit's
two-part test, adjustments are necessary to maintain
the current level of qualified immunity protection.

As noted earlier, this Court's immunity cases to date do not establish the two-part analysis set forth in the Court of Appeals' opinion. Cf. Katz v. United States, 194 F. 3d 962, 967 (CA9 1999); see supra, at 17-18. However, a few words about the proper formulation of such a test are in order, in case this Court should adopt such an analysis in the present case.

A two-part analysis would bear considerable resemblance to the habeas analysis under 28 U. S. C. §2254(d)(1) explained last term in Terry Williams v. Taylor, 529 U. S. __, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). The first step, identification of the "clearly established" governing rule, would be the same. See id., at 429-430, 120 S. Ct., at 1523. The second step, however, would be broader, i.e., providing more latitude to public officials faced with personal liability than is allowed for a challenge to an arguably wrong criminal judgment.

Williams disapproved the "reasonable jurist" standard in the habeas context. See id., at 428, 120 S. Ct., at 1522. For immunity, though, the protection for officials must be at least that broad. If a reasonable judge could believe that a particular use of force under given circumstances was legal, it necessarily follows a reasonable police officer could reach the same conclusion. See supra, at 19.

Where the rule of law involves a "reasonableness" element, the second step may involve a second-stage "reasonableness" inquiry. For example, the prejudice element of ineffective assistance in Williams did not turn on the original question of "reasonable probability" of a different result from Strickland v. Washington, 466 U. S. 668, 694 (1984). Instead, the question was whether the state court's application of this standard to the facts of the case was reasonable. See Williams, supra, 146 L. Ed. 2d, at 431, 120 S. Ct., at 1524 (opinion of O'Connor, J.). Mere disagreement on the original "reasonable probability" assessment would not have been enough. See id., at 428-429, 120 S. Ct., at 1522.

Similarly, applying the general rule of "reasonable force" to the facts of particular cases very often leaves room for reasonable disagreement over whether the line has been crossed. The policies underlying qualified immunity require that such disagreements be resolved in favor of the officer, and that the defense be available on summary judgment. See Harlow, supra, 457 U. S., at 815-816 (rejecting subjective inquiries as incompatible with the goal of resolving immunity claims on summary judgment).

A change to a two-part analysis would soften the requirement that the "clearly established" right be "particularized." See supra, at 13; Anderson v. Creighton, 483 U. S. 635, 640 (1987). The protection formerly provided in the particularization requirement would be moved into the second, "unreasonable application" step. If the Court does decide to make this change, amicus suggests that it be quite explicit that this is a change in form but that no reduction in the degree of protection is intended. Language in earlier cases based on the single-part, particularized right analysis would have to be reexamined. For example, Harlow, supra, 457 U. S., at 818-819, states, "If the law was clearly established, the immunity defense ordinarily should fail . . . ." That would no longer be true under the two-part analysis. A clearly established but general rule of law would not defeat the defense, but merely move the analysis to the second step.

In the present case, either analysis brings us to the same result. We begin with the premise that Parker and Saucier's decision to arrest Katz was either legal or within the perimeter of qualified immunity. See supra, at 2. There is no particularized rule which necessarily precluded the amount of force used to effectuate this arrest, and hence Saucier prevails under the traditional one-step Harlow/Anderson approach. See part III, supra. Under a two-part approach, properly applied, the question would be whether an officer could reasonably believe that the amount of force used was on the legal side of the Graham v. Connor line. This is a very different question from whether it actually was on the right side of the line. Cf. Williams v. Taylor, supra, 146 L. Ed. 2d, at 428-429, 120 S. Ct., at 1522. For the same reasons discussed in part III, supra, Private Saucier comes within the perimeter of qualified immunity.

CONCLUSION

The decision of the Ninth Circuit Court of Appeals should be reversed.

December, 2001

Respectfully submitted,

Charles L. Hobson

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3. Amicus does not imply that security officials are given carte blanche when dealing with such demonstrations. Protecting public demonstrations comes under the First Amendment, and Private Saucier was granted qualified immunity on the First Amendment claims. See supra, at 2.

4. Cf. Greer v. Spock, 424 U. S. 828, 838 (1976) ("no generalized constitutional right to make political speeches or distribute leaflets" on a military base).