Whether the First Amendment affords a right to be free from a retaliatory use-of-force that is otherwise objectively reasonable under the circumstances and whether, at the time of Respondent Fred Watson's ("Watson") stop, clearly established law so held?

In so deciding, the Eighth Circuit defined the "clearly established right" too broadly, using the exact general statement of law the Supreme Court expressly rejected by the Court in Reichle v. Howards, 566 U.S. 658 (2012). The Eighth Circuit rejected qualified immunity for Officer Boyd on the grounds that "[i]t was clearly established at the time of the event that 'the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out." Apx. 35a (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). Following the clear guidance set forth in Reichle, "the right in question is not the general right to be free from retaliation for one's speech, but the more specific right" to be free from a retaliatory use-of-force that is otherwise reasonable under the circumstances. Reichle, 566 U.S. at 664-65. The Supreme Court has never held that such a specific right exists. If it did, then an objectively reasonable use of force sufficient to defeat a Fourth Amendment unreasonable use of force claim could nonetheless support a First Amendment retaliation claim. The Tenth Circuit recently recognized that there is no such clearly established right in Hoskins v. Withers, 92 F.4th 1279 (10th Cir. 2024), wherein it affirmed an officer was entitled to qualified immunity for a First Amendment retaliatory use-of-force claim where the officer pointed his gun at the plaintiff for approximately eight seconds during a stop. Jd. at 1284, 1294. The Tenth Circuit found that a First Amendment claim for retaliatory use-of-force was not clearly established and further that a reasonable officer could have concluded that his conduct was not a violation of the First Amendment. Id. at 1294; see also Phelps v. Holliman, CIV-23-755-F, 2025 WL 310686, at *15 (W.D. Okla. Jan. 27, 2025) (applying Hoskins holding). Had the Eighth Circuit conducted the proper analysis mandated by this Court, it would have found that the "clearly established" standard has not been satisfied, that Officer Boyd is entitled to qualified immunity on Watson's First Amendment retaliatory use-of-force claim, and that the District Court properly dismissed the Monell claim against the City.

The Panel Opinion also conflicts with the Supreme Court's decision in Nieves v. Bartlett, 587 U.S. 391 (2019), wherein the Court held that before a court may analyze whether an arrest is retaliatory (as before analyzing whether a prosecution is retaliatory), it must first make a threshold determination that the conduct at issue was objectively unreasonable under the circumstances. Id. at 400, 402

Whether the First Amendment prohibits a government official from using objectively reasonable force in retaliation for an individual's exercise of free speech rights, and whether such a right was clearly established at the time of the alleged violation