source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    YARBOROUGH, WARDEN, et al. v. GENTRY
    No. 02-1597.
    Decided October 20, 2003
   Per Curiam.

I

Respondent Lionel Gentry was convicted in California state court of assault with a deadly weapon for stabbing his girlfriend, Tanaysha Handy. Gentry claimed he stabbed her accidentally during a dispute with a drug dealer.

Handy testified for the prosecution. She stated that she recalled being stabbed but could not remember the details of the incident. The prosecution then confronted Handy with her testimony from a preliminary hearing that Gentry had placed his hand around her throat before stabbing her twice.

Albert Williams, a security guard in a neighboring building, testified that he saw Gentry, Handy, and another man from his third-floor window. According to Williams, Gentry swung his hand into Handy’s left side with some object, causing her to lean forward and scream. Williams was inconsistent about the quality of light at the time, stating variously that it was “pretty dark” or “getting dark,” that “it wasn’t that dark,” and that the area of the stabbing was “lighted up.” See Gentry v. Roe, 320 F. 3d 891, 896-897 (CA9 2003).

Gentry testified in his own defense that he had stabbed Handy accidentally while pushing her out of the way. When asked about prior convictions, he falsely stated that he had been convicted only once; evidence showed he had been separately convicted of burglary, grand theft, battery on a peace officer, and being a felon in possession of a firearm. He attributed his error to confusion about whether a plea bargain counted as a conviction.

In her closing argument, the prosecutor expressed sympathy for Handy’s plight as a pregnant, drug-addicted mother of three and highlighted her damaging preliminary hearing testimony. She accused Gentry of telling the jury a “pack of lies.” See id., at 897-898. Defense counsel responded with the following closing argument:

“ ‘I don’t have a lot. to say today. Just once I’d like to find a prosecutor that doesn’t know exactly what happened. Just once I’d like to find a D. A. that wasn’t there and that can tell and they can stand up here and be honest and say I don’t know who is lying and who is not ’cause she wasn’t there, ladies and gentlemen. [I] wasn’t there. None of the 12 of you were there. None of the other people in this courtroom were there except those two people and that one guy who saw parts of it, or saw it all. Pretty dark. Dark. It was light. Those are the three versions of his testimony with regard to what he saw and what he saw. I don’t know what happened. I can’t tell you. And if I sit here and try to tell you what happened, I’m lying to you. I don’t know. I wasn’t there. I don’t have to judge. I don’t have to decide. You heard the testimony come from the truth chair. You heard people testify. You heard good things that made you feel good. You heard bad things that made you feel bad.
T don’t care that Tanaysha is pregnant. I don’t care that shé has three children. I don’t know why that had to be brought out in closing. What does that have to do with this case? She was stabbed.
“ ‘The question is, did he intend to stab her? He said he did it by accident. If he’s lying and you think he’s lying then you have to convict him. If you don’t think he’s lying, bad person, lousy drug addict, stinking thief, jail bird, all that to the contrary, he’s not guilty. It’s as simple as that. I don’t care if he’s been in prison. And for the sake of this thing you ought not care because that doesn’t have anything to do with what happened on April 30th, 1994.
Didn’t understand the term conviction. That is not inconsistent with this whole thing of being spoken and doing all this other crime stuff as opposed to going to school. I don’t know. I can’t judge the man. The reason that they bring 12 jurors from all different walks of life, let them sit here and listen to people testify, and the reason that the court will give you instructions with regard to not having your life experience, leaving it at the door, is because you can’t just assume that because a guy has done a bunch of bad things that he’s now done this thing.
“ T don’t know if thievery your are all in the same pot. I don’t know if just because of the fact that you stole some things in the past that means you must have stabbed your girlfriend. That sounds like a jump to me, but that’s just [me], I’m not one of the 12 over there.
“‘All I ask you to do is to look at the evidence and listen to everything you’ve heard and then make a decision. Good decision or bad decision, it’s still a decision. I would like all 12 of you to agree; but if you don’t, I can’t do anything about that either.
“ ‘You heard everything just like all of us have heard it. I don’t know who’s lying. I don't know if anybody is lying. And for someone to stand here and tell you that they think someone is lying and that they know that lying goes on, ladies and gentlemen, if that person was on the witness stand I’d be objecting that they don’t have foundation because they weren’t there. And that’s true. The defense attorney and the prosecutor, no different than 12 of you.
“ ‘So I’d ask you to listen to what you’ve heard when you go back, ask you to take some time to think about it, and be sure that’s what you want to do, then come out and do it.
“‘Thank you.’” Id., at 898-899 (one paragraph break omitted).

After deliberating for about six hours, the jury convicted.

On direct appeal, Gentry argued that his trial counsel’s closing argument deprived him of his right to effective assistance of counsel. The California Court of Appeal rejected that contention, and the California Supreme Court denied review. Gentry’s petition for federal habeas relief was denied by the District Court, but the Court of Appeals for the Ninth Circuit reversed. We grant the State’s petition for a writ of certiorari and the motion for leave to proceed informa pauperis and reverse.

II

The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when a defense attorney’s performance falls below an objective standard of reasonableness and thereby prejudices the defense. Wiggins v. Smith, 539 U. S. 510, 521 (2003); Strickland v. Washington, 466 U. S. 668, 687 (1984). If a state court has already rejected an ineffective-assistance claim, a federal court may grant habeas relief if the decision was “contrary to, or involved an unreasonable application of, clearly established Federal-law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). Where, as here, the state court’s application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable. Wiggins, supra, at 520-521; Woodford v. Visciotti, 537 U. S. 19, 24-25 (2002) (per curiam); Williams v. Taylor, 529 U. S. 362, 409 (2000).

The right to effective assistance extends to closing arguments. See Bell v. Cone, 535 U. S. 685, 701-702 (2002); Herring v. New York, 422 U. S. 853, 865 (1975). Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should “sharpen and clarify the issues for resolution by the trier of fact,” id., at 862, but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. See Bell, supra, at 701-702. Judicial review of a defense attorney’s summation is therefore highly deferential — and doubly deferential when it is conducted through the lens of federal habeas.

In light of these principles, the Ninth Circuit erred in finding the California Court of Appeal’s decision objectively unreasonable. The California court’s opinion cited state case law setting forth the correct federal standard for evaluating ineffective-assistance claims and concluded that counsel’s performance was not ineffective. That conclusion was supported by the record. The summation for the defense made several key points: that Williams’s testimony about the quality of light was inconsistent; that Handy’s personal circumstances were irrelevant to Gentry’s guilt; that the case turned on whether the stabbing was accidental, and the jury had to acquit if it believed Gentry’s version of events; that Gentry’s criminal history was irrelevant to his guilt, particularly given the seriousness of the charge compared to his prior theft offenses; and that Gentry’s misstatement of the number of times he had been convicted could be explained by his lack of education. Woven through these issues was a unifying theme — that the jury, like the prosecutor and defense counsel himself, were not at the scene of the crime and so could only speculate about what had happened and who was lying.

The Ninth Circuit rejected the state court’s conclusion in large part because counsel did not highlight various other potentially exculpatory pieces of evidence: that Handy had used drugs on the day of the stabbing and during the early morning hours of the day of her preliminary hearing; that Williams’s inability to see the stabbing clearly was relevant to the issue of intent; that Gentry’s testimony was consistent with Williams’s in some respects; that the government did not call as a witness Williams’s co-worker, who also saw the stabbing; that the stab wound was only one inch deep, suggesting it may have been accidental; that Handy testified she had been stabbed twice, but only had one wound; and that Gentry, after being confronted by Williams, did not try to retrieve his weapon but instead moved toward Handy while repeating, “she’s my girlfriend.” See 320 F. 3d, at 900-901.

These other potential arguments do not establish that the state court’s decision was unreasonable. Some of the omitted items, such as Gentry’s reaction to Williams, are thoroughly ambiguous. Some of the others might well have backfired. For example, although Handy claimed at trial she had used drugs before the preliminary hearing, she testified at the hearing that she was not under the influence and could remember exactly what had happened the day of the stabbing. And, although Handy’s wound was only one inch deep, it still lacerated her stomach and diaphragm, spilling the stomach’s contents into her chest cavity and requiring almost two hours of surgery. These are facts that the prosecutor could have exploited to great advantage in her rebuttal.

Even if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. Focusing on a small number of key points may be more persuasive than a shotgun approach. As one expert advises: “The number of issues introduced should definitely be restricted. Research suggests that there is an upper limit to the number of issues or arguments an attorney can present and still have persuasive effect.” R. Matlon, Opening Statements/Closing Arguments 60 (1993) (citing Calder, Insko, & Yandell, The Relation of Cognitive and Memorial Process to Persuasion in a Simulated Jury Trial, 4 J. Applied Social Psychology 62 (1974)). Another authority says: “The advocate is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in a case. A decision not to address an issue, an opponent’s theory, or a particular fact should be based on an analysis of the importance of that subject and the ability of the advocate and the opponent to explain persuasively the position to the fact finder.” R. Haydock & J. Sonsteng, Advocacy: Opening and Closing §3.10, p. 70 (1994). In short, judicious selection of arguments for summation is a core exercise of defense counsel’s discretion.

When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland, 466 U. S., at 690 (counsel is “strongly presumed” to make decisions in the exercise of professional judgment). That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.” Massaro v. United States, 538 U. S. 500, 505 (2003). Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell, 535 U. S., at 702; Kimmelman v. Morrison, 477 U. S. 365, 382 (1986); Strickland, supra, at 689; United States v. Cronic, 466 U. S. 648, 656 (1984). To recall the words of Justice (and former Solicitor General) Jackson: “I made three arguments of every case. First came the one that I planned — as I thought, logical, coherent, complete. Second was the one actually presented — interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.” Advocacy Before the Supreme Court, 37 A. B. A. J. 801, 803 (1951). Based on the record in this case, a state court could reasonably conclude that Gentry had failed to rebut the presumption of adequate assistance. Counsel plainly put to the jury the centerpiece of his case: that the only testimony regarding what had happened that the jury heard “come from the truth chair” was conflicting; that none of his client’s testimony was demonstrably a lie; and that the testimony contradicting his client came in “three versions.” See 320 F. 3d, at 898. The issues counsel omitted were not so clearly more persuasive than those he discussed that their omission can only be attributed to a professional error of constitutional magnitude.

The Ninth Circuit found other flaws in counsel’s presentation. It criticized him for mentioning “a host of details that hurt his client’s position, none of which mattered as a matter of law.” Id., at 900. Of course the reason counsel mentioned those details was precisely to remind the jury that they were legally irrelevant. That was not an unreasonable tactic. See F. Bailey & H. Rothblatt, Successful Techniques for Criminal Trials § 19:23, p. 461 (2d ed. 1985) (“Face up to [the defendant’s] defects ... [and] call upon the jury to disregard everything not connected to the crime with which he is charged”). The Ninth Circuit singled out for censure counsel’s argument that the jury must acquit if Gentry was telling the truth, even though he was a “bad person, lousy drug addict, stinking thief, jail bird.” See 320 F. 3d, at 900. It apparently viewed the remark as a gratuitous swipe at Gentry’s character. While confessing a client’s shortcomings might remind the jury of facts they otherwise would have forgotten, it might also convince them to put aside facts they would have remembered in any event. This is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion. By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case. See J. Stein, Closing Argument §204, p. 10 (1992-1996) (“[I]f you make certain concessions showing that you are earnestly in search of the truth, then your comments on matters that are in dispute will be received without the usual apprehension surrounding the remarks of an advocate”). As Judge Kleinfeld pointed out in dissenting from denial of rehearing en banc, the court’s criticism applies just as well to Clarence Darrow’s closing argument in the Leopold and Loeb case: “ ‘I do not know how much salvage there is in these two boys.... [Y]our Honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.’ ” 320 F. 3d, at 895 (quoting Famous American Jury Speeches 1086 (F. Hicks ed. 1925) (reprint 1990)).

The Ninth Circuit rebuked counsel for making only a passive request that the jury reach some verdict, rather than an express demand for acquittal. But given a patronizing and overconfident summation by a prosecutor, a low-key strategy that stresses the jury’s autonomy is not unreasonable. One treatise recommends just such a technique: “Avoid challenging the jury to find for your client, or phrasing your argument in terms suggesting what their finding must be. . . . [Scientific research indicates that jurors will react against a lawyer who they think is blatantly trying to limit their freedom of thought.” Stein, supra, §206, at 15.

The Ninth Circuit faulted counsel for not arguing explicitly that the government had failed to prove guilt beyond a reasonable doubt. Counsel’s entire presentation, however, made just that point. He repeatedly stressed that no one— not the prosecutor, the jury, nor even himself — could be sure who was telling the truth. This is the very essence of a reasonable-doubt argument. To be sure, he did not insist that the existence of a reasonable doubt would require the jury to acquit — but he could count on the judge’s charge to remind them of that requirement, and by doing so he would preserve his strategy of appearing as the friend of jury autonomy.

Finally, the Ninth Circuit criticized counsel’s approach on the ground that, by confessing that he too could not be sure of the truth, counsel “implied that even he did not believe Gentry’s testimony.” 320 F. 3d, at 900. But there is nothing wrong with a rhetorical device that personalizes the doubts anyone but an eyewitness must necessarily have. Winning over an audience by empathy is a technique that dates back to Aristotle. See P. Lagarias, Effective Closing Argument §§2.05-2.06, pp. 99-101 (1989) (citing Aristotle’s Rhetoric for the point that “[a] speech should indicate to the audience that the speaker shares the attitudes of the listener, so that, in turn, the listener will respond positively to the views of the speaker”); id., §3.03, at 112 (deriving from this principle the advice that “counsel may couch his arguments in terms of ‘we,’ rather than ‘you, the jury’ ”).

To be sure, Gentry’s lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit’s conclusion — not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable — gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials.

* * *

The judgment of the Ninth Circuit is reversed.

Iiis. so ordered.


text:
    MITCHELL, WARDEN v. ESPARZA
    No. 02-1369.
    Decided November 3, 2003
   Per Curiam.

The Court of Appeals for the Sixth Circuit affirmed the grant of habeas relief to respondent Gregory Esparza after concluding that, because the Eighth Amendment requires the State to narrow the class of death eligible defendants, the Ohio Court of Appeals had improperly subjected respondent’s claims to harmless-error review. 310 F. 3d 414 (2002). This decision ignores the limits imposed on federal habeas review by 28 U. S. C. § 2254(d), and we therefore grant the petition for certiorari and reverse.

In February 1983, respondent Esparza entered a store in Toledo, Ohio, and approached two employees, Melanie Ger-schultz and James Barailloux. No one else was in the store. At gunpoint, he ordered Gerschultz to open the cash register. Barailloux meanwhile fled the store through a rear door, entering the attached home of the storeowner, Evelyn Krieger. As Barailloux was alerting Krieger to the robbery, he heard a gunshot. Barailloux and Krieger returned to the store and found Gerschultz lying on the floor, fatally wounded by a single gunshot to her neck. The cash register was open and approximately $110 was missing.

Respondent was charged with aggravated murder during the commission of an aggravated robbery, Ohio Rev. Code Ann. §2903.01 (Anderson 2002), and aggravated robbery, §2911.01. He was convicted on both counts, and the trial judge accepted the jury’s recommendation that he be sentenced to death for the murder conviction. The trial judge additionally sentenced respondent to 7 to 25 years’ imprisonment for aggravated robbery, plus 3 years for the firearm specification. The Ohio Supreme Court affirmed the convictions and the sentences. State v. Esparza, 39 Ohio St. 3d 8, 529 N. E. 2d 192 (1988), cert. denied, 490 U. S. 1012 (1989).

On state postconviction review, respondent argued, for the first time, that he had not been convicted of an offense for which a death sentence could be imposed under Ohio law. Although the indictment charged him with aggravated murder in the course of committing aggravated robbery, it did not charge him as a “principal offender.” The Ohio Court of Appeals rejected his claim, holding that literal compliance with the statute was not required: “[W]here only one defendant is named in an indictment alleging felony murder, it would be redundant to state that the defendant is being charged as a principal offender. Only where more than one defendant is named need the indictment specify the allegation ‘principal offender.’” State v. Esparza, No. L-90-235, 1992 WL 113827, *9 (May 29, 1992), cause dism’d, 65 Ohio St. 3d 1453, 602 N. E. 2d 250 (1992).

Respondent then filed a second petition for state postcon-viction relief alleging, inter alia, ineffective assistance of appellate counsel because his attorney did not argue that the State’s failure to comply with its sentencing procedures violated the Eighth Amendment. The Ohio Court of Appeals in a conclusory opinion denied his claim, referring back to its previous decision. State v. Esparza, No. L-84-225, 1994 WL 395114, *5 (July 27, 1994), cause dism’d, 70 Ohio St. 3d 1473, 640 N. E. 2d 846 (1994). The import of the court’s decision was clear: Respondent failed to prove he was prejudiced because any error committed by counsel was harmless. In respondent’s words, “The state court . . . determined that since [respondent] was the only individual charged, the jury must have determined that [respondent] was the principal offender.” Brief in Opposition 2.

Having exhausted his avenues for relief under state law, respondent filed a habeas petition in the District Court for the Northern District of Ohio. The District Court concluded that the Ohio Court of Appeals’ decision was an unreasonable application of clearly established federal law because it was contrary to our opinions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Sullivan v. Louisiana, 508 U. S. 275 (1993). In light of this error, as well as others not relevant to this opinion, the court granted respondent’s petition in part and issued a writ of habeas corpus as to the death sentence. Esparza v. Anderson, No. 3:96-CV-7434 (Oct. 13, 2000), App. to Pet. for Cert. 41a-240a. The Court of Appeals affirmed the District Court, holding that the Eighth Amendment precluded respondent’s death sentence and that harmless-error review was inappropriate. The State of Ohio petitioned for a writ of certiorari, which we now grant, along with respondent’s motion for leave to proceed in forma pauperis.

A federal court may grant a state habeas petitioner relief for a claim that was adjudicated on the merits in state court only if that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). The Court of Appeals, however, failed to cite, much less apply, this section.

A state court’s decision is “contrary to” our clearly established law if it “applies a rule that contradicts the governing law set forth in our cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor, 529 U. S. 362, 405-406 (2000); see also Price v. Vincent, 538 U. S. 634, 640 (2003); Early v. Packer, 537 U. S. 3, 7-8 (2002) (per curiam). A state court’s decision is not “contrary to . . . clearly established Federal law” simply because the court did not cite our opinions. Id., at 8. We have held that a state court need not even be aware of our precedents, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Ibid.

According to the Sixth Circuit, Ohio’s failure to charge in the indictment that respondent was a “principal” was the functional equivalent of “dispensing with the. reasonable doubt requirement.” 310 F. 3d, at 421 (citing Sullivan v. Louisiana, supra, at 280). Our precedents, however, do not support its conclusion. In noncapital cases, we have often held that the trial court’s failure to instruct a jury on all of the statutory elements of an offense is subject to harmless-error analysis. E. g., Neder v. United States, 527 U. S. 1, 19 (1999); California v. Roy, 519 U. S. 2 (1996) (per curiam); Carella v. California, 491 U. S. 263, 266 (1989) (per curiam); Pope v. Illinois, 481 U. S. 497 (1987). In Neder, for example, we held that such an error “differs markedly from the constitutional violations we have found to defy harmless-error review.” 527 U. S., at 8. In so holding, we explicitly distinguished Sullivan because the error in Sullivan — the failure to instruct the jury that the State must prove the elements of an offense beyond a reasonable doubt — “ ‘vitiat[ed] all the jury’s findings,’” 527 U. S., at 11, whereas the trial court’s failure to instruct the jury on one element of an offense did not, see id., at 13-15. Where the jury was precluded from determining only one element of an offense, we held that harmless-error review is feasible. Ibid.

We cannot say that because the violation occurred in the context of a capital sentencing proceeding that our precedent requires the opposite result. Indeed, a number of our harmless-error cases have involved capital defendants, Arizona v. Fulminante, 499 U. S. 279, 310 (1991) (unconstitutional admission of coerced confession at guilt stage); Clemons v. Mississippi, 494 U. S. 738 (1990) (unconstitutionally broad jury instructions at sentencing stage); Satterwhite v. Texas, 486 U. S. 249 (1988) (unconstitutional admission of evidence at sentencing stage), and we left, a question similar to the one presented here open in another capital case, Ring v. Arizona, 536 U. S. 584, 609, n. 7 (2002) (“We do not reach the State’s assertion that any error was harmless because a pecuniary gain finding was implicit in the jury’s guilty verdict”).

In relying on the absence of precedent to distinguish our noncapital cases, and to hold that harmless-error review is not available for this type of Eighth Amendment claim, the Sixth Circuit exceeded its authority under § 2254(d)(1). A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous. As the Ohio Court of Appeals’ decision does not conflict with the reasoning or the holdings of our precedent, it is not “contrary to . . . clearly established Federal law.”

The question then becomes whether the Ohio Court of Appeals’ determination is an “unreasonable application of clearly established Federal Jaw.” §2254(d)(1) (emphasis added; punctuation omitted). A constitutional error is harmless when “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Neder, supra, at 15 (quoting Chapman v. California, 386 U. S. 18, 24 (1967)); see also Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). We may not grant respondent’s habeas petition, however, if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas relief is appropriate only if the Ohio Court of Appeals applied harmless-error review in an “objectively unreasonable” manner. Lockyer v. Andrade, 538 U. S. 63, 75-77 (2003); see also Woodford v. Visciotti, 537 U. S. 19, 25 (2002) (per curiam); Williams, supra, at 410 (An “unreasonable application of federal law is different from an incorrect application of federal law”).

The Ohio Court of Appeals’ conclusion was hardly objectively unreasonable. The Ohio Supreme Court has defined a “‘principal offender’” as ‘“the actual killer,”’ State v. Chinn, 85 Ohio St. 3d 548, 559, 709 N. E. 2d 1166, 1177 (1999), and in this case, the jury was instructed on the elements of aggravated murder, “ ‘defined as purposely causing the death of another while committing Aggravated Robbery,’” 310 F. 3d, at 432 (Suhrheinrich, J., dissenting). The trial judge further instructed the jury that it must determine “ ‘whether the State has proved beyond a reasonable doubt that the offense of Aggravated Murder was committed while the Defendant was committing Aggravated Robbery.’ ” Ibid. In light of these instructions, the jury verdict would surely have been the same had it been instructed to find as well that the respondent was a “principal” in the offense. After all, he was the only defendant charged in the indictment. There was no evidence presented that anyone other than respondent was involved in the crime or present at the store. Cf. Neder, 527 U. S., at 19 (“[W]here a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee”). Under these circumstances, we cannot say that the state court’s conclusion that respondent was convicted of a capital offense was objectively unreasonable. That being the case, we may not set aside its decision on habeas review.

The judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Ohio Rev. Code Ann. § 2929.04(A) (Anderson 2002) provides, in relevant part:
      “Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment.. . and proved beyond a reasonable doubt:
      “(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit... aggravated robbery,... and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design."

       The Sixth Circuit cited Presnell v. Georgia, 439 U. S. 14 (1978) (per curiam), a due process case, noting that rather than remand for a harmless-error analysis, we simply reversed. In Presnell, we held that the Georgia Supreme Court violated due process when it sustained a death sentence because the sentence was supported by the evidence, even though the defendant was unaware of the charge and the issue was never submitted to a jury. Presnell, however, relied on the defendant’s lack of notice and his inability to defend himself, not a faulty indictment or an incomplete jury instruction.

       The Court of Appeals noted evidence brought to light for the first time in the habeas proceeding in the District Court that suggested there might have been another participant in the crime, Joe Jasso. The jury, however, was not presented with this evidence at trial, and thus it has no bearing on the correctness of the Ohio Court of Appeals’ decision that the State need not charge a defendant as a principal offender if the failure to so charge is harmless error.

       Our decision, like the Court of Appeals’, is limited to the issue presented here. We express no view whether habeas relief would be available to respondent on other grounds.


author: Justice Scalia

text:
    BARNHART, COMMISSIONER OF SOCIAL SECURITY v. THOMAS
    No. 02-763.
    Argued October 14, 2003
    Decided November 12, 2003

      Scaua, J., delivered the opinion for a unanimous Court.

      Jeffrey A. Lamken argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Kneedler, William Kanter, Wendy M. Keats, and Barbara L. Spivak.

      Abraham S. Alter argued the cause and filed a brief for respondent.
   Justice Scalia

delivered the opinion of the Court.

Under the Social Security Act, the Social Security Administration (SSA) is authorized to pay disability insurance benefits and Supplemental Security Income to persons who have a “disability.” A person qualifies as disabled, and thereby eligible for such benefits, “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U. S. C. §§423(d)(2)(A), 1382c(a)(3)(B). The issue we must decide is whether the SSA may determine that a claimant is not disabled because she remains physically and mentally able to do her previous work, without investigating whether that previous work exists in significant numbers in the national economy.

I

Pauline Thomas worked as an elevator operator for six years until her job was eliminated in August 1995. In June 1996, at age 53, Thomas applied for disability insurance benefits under Title II and Supplemental Security Income under Title XVI of the Social Security Act. See 49 Stat. 622, as amended, 42 U. S. C. § 401 et seq. (Title II); as added, 86 Stat. 1465, and as amended, § 1381 et seq. (Title XVI). She claimed that she suffered from, and was disabled by, heart disease and cervical and lumbar radiculopathy.

After the SSA denied Thomas’s application initially and on reconsideration, she requested a hearing before an Administrative Law Judge (ALJ). The ALJ found that Thomas had “hypertension, cardiac arrythmia, [and] cervical and lumbar strain/sprain.” Decision of ALJ 5, Record 15. He concluded, however, that Thomas was not under a “disability” because her “impairments do not prevent [her] from performing her past relevant work as an elevator operator.” Id,., at 6, Record 16. He rejected Thomas’s argument that she is unable to do her previous work because that work no longer exists in significant numbers in the national economy. The SSA’s Appeals Council denied Thomas’s request for review.

Thomas then challenged the ALJ’s ruling in the United States District Court for the District of New Jersey, renewing her argument that she is unable to do her previous work due to its scarcity. The District Court affirmed the ALJ, concluding that whether Thomas’s old job exists is irrelevant under the SSA’s regulations. Thomas v. Apfel, Civ. No. 99-2234 (Aug. 17, 2000). The Court of Appeals for the Third Circuit, sitting en banc, reversed and remanded. Over the dissent of three of its members, it held that the statute unambiguously provides that the ability to perform prior work disqualifies from benefits only if it is “substantial gainful work which exists in the national economy.” 294 F. 3d 568, 572 (2002). That holding conflicts with the decisions of four other Courts of Appeals. See Quang Van Han v. Bowen, 882 F. 2d 1453, 1457 (CA9 1989); Garcia v. Secretary of Health and Human Services, 46 F. 3d 552, 558 (CA6 1995); Pass v. Chater, 65 F. 3d 1200, 1206-1207 (CA4 1995); Rater v. Chater, 73 F. 3d 796, 799 (CA8 1996). We granted the SSA’s petition for certiorari. 537 U. S. 1187 (2003).

II.

As relevant to the present ease, Title II of the Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U. S. C. § 423(d)(1)(A). That definition is qualified, however, as follows;

“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. ...” § 423(d)(2)(A) (emphases added).

“[W]ork which exists in the national economy” is defined to mean “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Ibid. Title XVI of the Act, which governs Supplemental Security Income for disabled indigent persons, employs the same definition of “disability” used in Title II, including a qualification that is verbatim the same as § 423(d)(2)(A). See 42 U. S. C. § 1382c(a)(3)(B). For simplicity’s sake, we will refer only to the Title II provisions, but our analysis applies equally to Title XVI.

Section 423(d)(2)(A) establishes two requirements for disability. First, an individual’s physical or mental impairment must render him “unable to do his previous work.” Second, the impairment must also preclude him from “engaging] in any other kind of substantial gainful work.” The parties agree that the latter requirement is qualified by the clause that immediately follows it — “which exists in the national economy.” The issue in this case is whether that clause also qualifies “previous work.”

The SSA has answered this question in the negative. Acting pursuant to its statutory rulemaking authority, 42 U. S. C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 2Ó CFR §404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called “vocational factors” (the claimant’s age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(e).

As the above description shows, step four can result in a determination of no disability without inquiry into whether the claimant’s previous work exists in the national economy; the regulations explicitly reserve inquiry into the national economy for step five. Thus, the SSA has made it perfectly clear that it does not interpret the clause “which exists in the national economy” in § 423(d)(2)(A) as applying to “previous work.” The issue presented is whether this agency interpretation must be accorded deference.

As we held in Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984), when a statute speaks clearly to the issue at hand we “must give effect to the unambiguously expressed intent of Congress,” but when the statute “is silent or ambiguous” we must defer to a reasonable construction by the agency charged with its implementation. The Third Circuit held that, by referring first to “previous work” and then to “any other kind of substantial gainful work which exists in the national economy,” 42 U. S. C. § 423(d)(2)(A) (emphasis added), the statute unambiguously indicates that the former is a species of the latter. “When,” it said, “a sentence sets out one or more specific items followed by ‘any other’ and a description, the specific items must fall within the description.” 294 F. 3d, at 572. We disagree. For the reasons discussed below, the interpretation adopted by SSA is at least a reasonable construction of the text and must therefore be given effect.

The Third Circuit’s reading disregards — indeed, is precisely contrary to — the grammatical “rule of the last antecedent,” according to which a limiting clause or phrase (here, the relative clause “which exists in the national economy”) should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, “any other kind of substantial gainful work”). See 2A N. Singer, Sutherland on Statutory Construction §47.33, p. 369 (6th rev. ed. 2000) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent”). While this rule is not an absolute and can assuredly be overcome by other indicia of meaning, we have said that construing a statute in accord with the rule is “quite sensible as a matter of grammar.” Nobelman v. American Savings Bank, 508 U. S. 324, 330 (1993). In FTC v. Mandel Brothers, Inc., 359 U. S. 385 (1959), this Court employed the rule to interpret a statute strikingly similar in structure to § 423(d)(2)(A) — a provision of the Fur Products Labeling Act, 15 U. S. C. § 69, which defined “ 'invoice’ ” as “ 'a written account, memorandum, list, or catalog... transported or delivered to a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs.”’ 359 U. S., at 386 (quoting 15 U. S. C. § 69(f)) (emphasis added). Like the Third Circuit here, the Court of Appeals in Mandel Brothers had interpreted the phrase “'any other’” as rendering the relative clause (“ 'who is engaged in dealing commercially’ ”) applicable to all the specifically listed categories. 359 U. S., at 389. This Court unanimously reversed, concluding that the “limiting clause is to be applied only to the last antecedent.” Id., at 389, and n. 4 (citing 2 J. Sutherland, Statutory Construction § 4921 (3d ed. 1943)).

An example will illustrate the error of the Third Circuit’s perception that the specifically enumerated “previous work” “must” be treated the same as the more general reference to “any other kind of substantial gainful work.” 294 F. 3d, at 572. Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, “You will be punished if you throw a party or engage in any other activity that damages the house.” If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house — for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact “damaged” the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity — hosting a party — that was most likely to cause damage and most likely to occur.

The Third. Circuit suggested that interpreting the statute as does the SSA would lead to “absurd results.” Ibid. See also Kolman v. Sullivan, 925 F. 2d 212, 213 (CA7 1991) (the fact that a claimant could perform a past job that no longer exists would not be “a rational ground for denying benefits”). The court could conceive of “no plausible reason why Congress might have wanted to deny benefits to an otherwise qualified person simply because that person, although unable to perform any job that actually exists in the national economy, could perform a previous job that no longer exists.” 294 F. 3d, at 572-573. But on the very next page the Third Circuit conceived of just such a plausible reason, namely, that “in the vast majority of cases, a claimant who is found to have the capacity to perform her past work also will have the capacity to perform other types of work.” Id., at 574, n. 5. The conclusion which follows is that Congress could have determined that an analysis of a claimant’s physical and mental capacity to do his previous work would “in the vast majority of cases” serve as an effective and efficient administrative proxy for the claimant’s ability to do some work that does exist in the national economy. Such a proxy is üseful because the step-five inquiry into whether the claimant’s cumulative impairments preclude him from finding “other” work is very difficult, requiring consideration of “each of th[e] [vocational] factors and ... an individual assessment of each claimant’s abilities and limitations,” Heckler v. Campbell, 461 U.S. 458, 460-461, n. 1 (1983) (citing 20 CFR §§404.1545-404.1565 (1982)). There is good reason to use a workable proxy that avoids the more expansive and individualized step-five analysis. As we have observed, “[t]he Social Security hearing system is ‘probably the largest adjudicative agency in the western world.’ . . . The need for efficiency is self-evident.” 461 U. S., at 461, n. 2 (citation omitted).

The Third Circuit rejected this proxy rationale because it would produce results that “may not always be true, and ... may not be true in this case.” 294 F. 3d, at 576. That logic would invalidate a vast number of the procedures employed by the administrative state. To generalize is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances. Cf. Bowen v. Yuckert, 482 U. S. 137, 157 (1987) (O’CONNOR, J., concurring) (“To be sure the Secretary faces an administrative task of staggering proportions in applying the disability benefits provisions of the Social Security Act. Perfection in processing millions of such claims annually is impossible”). It is true that, under the SSA’s interpretation, a worker with severely limited capacity who has managed to find easy work in a declining industry could be penalized for his troubles if the job later disappears. It is also true, however, that under the Third Circuit’s interpretation, impaired workers in declining or marginal industries who cannot do “other” work could simply refuse to return to their jobs — even though the jobs remain open and available — and nonetheless draw disability benefits. The proper Chevron inquiry is not whether the agency construction can give rise to undesirable results in some instances (as here both constructions can), but rather whether, in light of the alternatives, the agency construction is reasonable. In the present ease, the SSA’s authoritative interpretation certainly satisfies thát test.

We have considered respondent’s other arguments and find them to be without merit.

* * *

We need not decide today whether § 423(d)(2)(A) compels the interpretation given it by the SSA. It suffices to conclude, as we do, that § 423(d)(2)(A) does not unambiguously require a different interpretation, and that the SSA’s regulation is an entirely reasonable interpretation of the text. The judgment of the Court of Appeals is reversed.

It is so ordered.

       The step-four instructions to the claimant read as follows: “If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairments), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.” 20 CFR §§ 404.1520(e), 416.920(e) (2003).

       In regulations that became effective on September 25, 2003, the SSA amended certain aspects of the five-step process in ways not material to this opinion. The provisions referred to as subsections (e) and (f) in this opinion are now subsections (f) and (g).

       This interpretation was embodied in the regulations that first established the five-step process in 1978, see 43 Fed. Reg. 55349 (codified, as amended, at 20 CFR §§404.1520 and 416.920 (1982)). Even before enactment of § 423(d)(2)(A) as part of the Social Security Amendments of 1967, the SSA disallowed disability benefits when the inability to work was caused by “technological changes in the industry in which [the claimant] has worked.” 20 CFR § 404.1502(b) (1961).


author: Justice Souter

text:
    UNITED STATES v. BANKS
    No. 02-473.
    Argued October 15, 2003
    Decided December 2, 2003

      SOUTER, J., delivered the opinion for a unanimous Court.

      David B. Salmons argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and John A. Drennan.

      Randall J. Roske, by appointment of the Court, 538 U. S. 943, argued the cause and filed a brief for respondent.

        Timothy A Baughman filed a brief for Wayne County, Michigan, as amicus curiae urging reversal.
      A brief of amici curiae was filed for Americans for Effective Law Enforcement, Inc., et al. by Richard Weintraub, Bernard J. Farber, Wayne W Schmidt, and James P. Manah.

   Justice Souter

delivered the opinion of the Court.

Officers executing a warrant to search for cocaine in respondent Banks’s apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U. S. C. §3109. We hold that it did.

I

With information that Banks was selling cocaine at home, North Las Vegas Police Department officers and Federal Bureau of Investigation agents got a warrant to search his two-bedroom apartment. As soon as they arrived there, about 2 o’clock on a Wednesday afternoon, officers posted in front called out “police search warrant” and rapped hard enough on the door to be heard by officers at the back door. Brief for United States 3 (internal quotation marks omitted). There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Banks was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing.

In response to drug and firearms charges, Banks moved to suppress evidence, arguing that the officers executing the search warrant waited an unreasonably short time before forcing entry, and so violated both the Fourth Amendment and 18 U. S. C. § 3109. The District Court denied the motion, and Banks pleaded guilty, reserving his right to challenge the search on appeal.

A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. 282 F. 3d 699 (2002). In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of “factors that an officer reasonably should consider” in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment:

“(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect's guilt; (g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary.” Id., at 704.

The majority also defined four categories of intrusion after knock and announcement, saying that the classification “aids in the resolution of the essential question whether the entry made herein was reasonable under the circumstances”:

“(1) entries in which exigent circumstances exist and non-forcible entry is possible, permitting entry to be made simultaneously with or shortly after announcement; (2) entries in which exigent circumstances exist and forced entry by destruction of property is required, necessitating more specific inferences of exigency; (3) entries in which no exigent circumstances exist and non-forcible entry is possible, requiring an explicit refusal of admittance or a lapse of a significant amount of time; and (4) entries in which no exigent circumstances exist and forced entry by destruction of property is required, mandating an explicit refusal of admittance or a lapse of an even more substantial amount of time.” Ibid.

The panel majority put the action of the officers here in the last category, on the understanding that they destroyed the door without hearing anything to suggest a refusal to admit even though sound traveled easily through the small apartment. The majority held the 15-to-20-second delay after knocking and announcing to be “[insufficient ... to satisfy the constitutional safeguards.” Id., at 705.

Judge Fisher dissented, saying that the majority ought to come out the other way based on the very grounds it stressed: Banks’s small apartment, the loud knock and announcement, the suspected offense of dealing in cocaine, and the time of the day. Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a reasonable inference that admittance had been constructively denied. Id., at 710.

We granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. 537 U. S. 1187 (2003). We now reverse.

II.

There has never been a dispute that these officers were obliged to knock and announce their intentions when executing the search warrant, an obligation they concededly honored. Despite this agreement, we start with a word about standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking.

The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be “secure . . . against unreasonable searches and seizures.” Although the notion of reasonable execution must therefore be fleshed out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones. See, e. g., Ohio v. Robinette, 519 U. S. 33, 39 (1996) (“[W]e have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry”); Ker v. California, 374 U. S. 23, 33 (1963) (reasonableness not susceptible to Procrustean application); Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 (1931) (no formula for determining reasonableness; each case on its own facts and circumstances). We have, however, pointed out factual considerations of unusual, albeit not dispositive, significance.

In Wilson v. Arkansas, 514 U. S. 927 (1995), we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,” Richards v. Wisconsin, 520 U. S. 385, 394 (1997). When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a “no-knock” entry. And even when executing a warrant silent about that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in. Id,., at 394, 396, n. 7.

Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the. suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United States v. Ramirez, 523 U. S. 65, 70-71 (1998). Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances.

Ill

Like Ramirez, this case turns on the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay. Whereas the Ramirez Magistrate Judge found in advance that the customary warning would raise an immediate risk that a wanted felon would elude capture or pose a threat to the officers, see id., at 68, here the Government claims that a risk of losing. . evidence arose shortly after knocking and announcing. Although the police concededly arrived at Banks’s door without reasonable suspicion of facts justifying a no-knock entry, they argue that announcing their presence started the clock running toward the moment of apprehension that Banks would flush away the easily disposable cocaine, prompted by knowing the police would soon be coming in. While it was held reasonable for the police in Ramirez tó enter forcibly upon arrival, the Government argues it was equally reasonable for the officers to go in with force here as soon as the danger of disposal had ripened.

Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way. Though we agree with Judge Fisher’s dissenting opinion that this call is a close one, 282 F. 3d, at 707, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer. Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence (and some courts have found even shorter ones to be reasonable enough).

A look at Banks’s counterarguments shows why these courts reached sensible results, for each of his reasons for saying that 15 to 20 seconds was too brief rests on a mistake about the relevant enquiry: the fact that he was actually in the shower and did not hear the officers is not to the point, and the same is true of the claim that it might have taken him longer than 20 seconds if he had heard the knock and headed straight for the door. As for the shower, it is enough to say that the facts known to the police are what count in judging reasonable waiting time, cf., e. g., Graham v. Connor, 490 U. S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”), and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate.

And the argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks’s failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant has had time to get to the door, a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.

Once thé exigency had matured, of course, the officers were not bound to learn anything more or wait any longer before going in, even though their entry entailed some harm to the building. Ramirez held that the exigent need of law enforcement trumps a resident’s interest in avoiding all property damage, see 523 U. S., at 70-71, and there is no reason to treat a post-knock exigency differently from the no-knock counterpart in Ramirez itself.

IV

Our emphasis on totality analysis necessarily rejects positions taken on each side of this case. Ramirez, for example, cannot be read with the breadth the Government espouses, as “reflectfing] a general principle that the need to damage property in order to effectuate an entry to execute a search warrant should not be part of the analysis of whether the entry itself was reasonable.” Brief for United States 18; Reply Brief for United States 4. At common law, the knock-and-announce rule was traditionally “justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue.’” Wilson, 514 U. S., at 935-936 (quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1603)). One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. It is hard to be more definite than that, without turning the notion of a reasonable time under all the . circumstances into a set of sub-rules as the Ninth Circuit has been inclined to do. Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram.

On the other side, we disapprove of the Court of Appeals’s four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the Ninth Circuit), we rejected an attempt to subdivide felony-cases by accepting “mild exigency” for entry without property damage, but requiring “more specific inferences of exigency” before damage would be reasonable. 523 U. S., at 69-71 (internal quotation marks omitted). The Court of Appeals did not cite Ramirez.

Nor did the appeals court cite United States v. Arvizu, 534 U. S. 266 (2002) (again, from the Ninth Circuit). There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as “troubling . . . uncertainty” in reasonableness analysis, by “describing] and clearly delimiting]” an officer’s consideration of certain factors. Id., at 272, 275 (internal quotation marks omitted). Here, as in Arvizu, the Court of Appeals’s overlay of a categorical scheme on the general reasonableness analysis threatens to distort the “totality of the circumstances” principle, by replacing a stress on revealing facts with resort to pigeonholes. Id., at 274 (internal quotation marks omitted). Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like “significant amount of time,” and “an even more substantial amount of time,” 282 F. 3d, at 704, tell very little.

V

Last, there is Banks’s claim that the entry violated 18 U. S. C. § 3109. Ramirez held that the result should be the same under the Fourth Amendment and §3109, permitting an officer to enter by force “if, after notice of his authority and purpose, he is refused admittance.” We explained the statute’s “‘requirement of prior notice . . . before forcing entry . . . [as] codiffying] a tradition embedded in Anglo-American law,’ ” 523 U. S., at 72 (quoting Miller v. United States, 357 U. S. 301, 313 (1958)); see also Sabbath v. United States, 391 U. S. 585, 591, n. 8 (1968), and we held that § 3109 implicates the exceptions to the common law knock-and-announce requirement that inform the Fourth Amendment itself, 523 U. S., at 73. The upshot is that § 3109 is subject to an exigent circumstances exception, ibid., which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place. Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied § 3109 as well as the Fourth Amendment, even without refusal of admittance.

The judgment of the Court of Appeals is reversed.

So ordered.

       The statute provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

       Some States give magistrate judges the authority to issue “no-knock” warrants, and some do not. See, e. g., Richards v. Wisconsin, 520 U. S. 385, 396, n. 7 (1997) (collecting state statutes and cases).

       The standard for a no-knock entry stated in Richards applies on reasonable suspicion of exigency or futility. Because the facts here go to exigency, not futility, we speak of that alone.

        Ramirez and Richards v. Wisconsin, 520 U.S. 385 (1997), our cases addressing the role of exigency in assessing the reasonableness' of a no-knock entry, involved searches by warrant for evidence of a felony, as does this case. In a different context governed by the Fourth Amendment, we have held that the risk of losing evidence of a minor offense is insufficient to make it reasonable to enter a dwelling to make a warrantless arrest. See Welsh v. Wisconsin, 466 U. S. 740 (1984). Courts of Appeals have applied Welsh to warrantless entries simply to search for evidence, considering the gravity of the offense in determining whether exigent circumstances exist. See, e. g., United States v. Aquino, 836 F. 2d 1268, 1271-1273 (CA10 1988); United States v. Clement, 854 F. 2d 1116, 1120 (CA8 1988) (per curiam). We intimate nothing here about such warrantless entry cases. Nor do we express a view on the significance of the existence of a warrant in evaluating whether exigency justifies action in knock-and-armounce cases when the reason for the search is a minor offense.

       Several Courts of Appeals have explicitly taken into account the risk of disposal of drug evidence as a factor in evaluating the reasonableness of waiting time. See, e. g., United States v. Goodson, 165 F. 3d 610, 612, 614 (CA8 1999) (holding a 20-second wait after a loud announcement at a one-story ranch reasonable); United States v. Spikes, 158 F. 3d 913, 925-927 (CA6 1998) (holding a 15-to-30-second wait in midmorning after a loud announcement reasonable); United States v. Spriggs, 996 F. 2d 320, 322-323 (CADC 1993) (holding a 15-second wait after a reasonably audible announcement at 7:45 a.m. on a weekday reasonable); United States v. Garcia, 983 F. 2d 1160, 1168 (CA1 1993) (holding a 10-second wait after a loud announcement reasonable); United States v. Jones, 133 F. 3d 358, 361-362 (CA5 1998) (per curiam,) (relying specifically on the concept of exigency, holding a 15-to-20-second wait reasonable). See also United States v. Chavez-Miranda, 306 F. 3d 973, 981-982, n. 7 (CA9 2002) (“Banks appears to be a departure from our prior decisions. . . . [W]e have found a 10 to 20 second wait to be reasonable in similar circumstances, albeit when the police heard sounds after the knock and announcement”); United States v. Jenkins, 175 F 3d 1208, 1215 (CA10 1999) (holding a 14-to-20-second wait at 10 am. reasonable); United States v. Markling, 7 F. 3d 1309, 1318-1319 (CA7 1993) (holding a 7-second wait at a small motel room reasonable when officers acted on a specific tip that the suspect was likely to dispose of the drugs).

       It is probably unrealistic even on its own terms. The apartment was “small,” 282 F. 3d 699, 704 (CA9 2002), and a man may walk the length of today’s small apartment in 15 seconds.


author: Justice Thomas

text:
    RAYTHEON CO. v. HERNANDEZ
    No. 02-749.
    Argued October 8, 2003
    Decided December 2, 2003

      Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Souter, J.,.who took no part in the decision of the case, and Breyer, J., who took no part in the consideration or decision of the case.

      Carter G. Phillips argued the cause for petitioner. With him on the briefs were Alan Charles Raul, Paul Grossman, Paul W. Cane, Jr., Neal D. Mollen, Jay B. Stephens, and Ronald Stolkin.

      Deputy Solicitor General Clement argued the cause for the United States as amicus curia# urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, John P. Elwood, David K. Flynn, and Sarah E. Harrington.

      Stephen G. Montoya argued the cause and filed a brief for respondent.

        Ann Elizabeth Reesman, Stephen A. Bokat, Robin S. Conrad, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the Betty Ford Center et al. by David T Goldberg and Daniel N. Abrahamson; and for the National Employment Lawyers Association et al. by Claudia Center, Brian East, Terisa E. Chaw, and Arlene Mayerson.

   Justice Thomas

delivered the opinion of the Court.

The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U. S. C. § 12101 et seq., makes it unlawful for an employer, with respect to hiring, to “discriminate against a qualified individual with a disability because of the disability of such individual.” § 12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer’s unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U. S. 1187 (2003).

J — I

Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years. On July 11, 1991, respondent’s appearance and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent’s behavior violated petitioner’s workplace conduct rules, respondent was forced to resign. Respondent’s “Employee Separation Summary” indicated as the reason for separation: “discharge for personal conduct (quit in lieu of discharge).” App. 12a.

More than two years later, on January 24,1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a “faithful and active member” of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a~15a.

Joanne Bockmiller, an employee in the company’s Labor Relations Department, reviewed respondent’s application. Bockmiller testified in her deposition that since respondent’s application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent’s application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent’s application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a “record of” addiction. Id., at 63a-64a.

Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent’s charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA.

Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote:

“The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. • Contrary' to Complainant’s unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant’s application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation.
“The Company maintains it’s [sic] right to deny reemployment to employees terminated for violation of Company rules and regulations. . . . Complainant has provided no evidence to alter the Company’s position that Complainant’s conduct while employed by [petitioner] makes him ineligible for rehire.” Id., at 19a-20a.

This response, together with evidence that the letters submitted with respondent’s employment application may have alerted Bockmiller to the reason for respondent’s prior termination, led the EEOC to conclude that petitioner may have “rejected [respondent’s] application based on his record of past alcohol and drug use.” Id., at 94a (EEOC Determination Letter, Nov. 20, 1997). The EEOC thus found that there was “reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability.” Id., at 95a. The EEOC issued a right-to-sue letter, and respondent subsequently filed this action alleging a violation of the ADA.

Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U. S. C. §§ 12102(2)(B)-(C). In response to petitioner’s motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner’s motion for summary judgment with respect to respondent’s disparate-treatment claim. However, the District Court refused to consider respondent’s disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner.

The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F. 3d 1030, 1037, n. 20 (CA9 2002). In addressing respondent’s disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Cory. v. Green, 411 U. S. 792 (1973). First, the Ninth Circuit found that with respect to respondent’s prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner’s refusal to rehire him was his past record of drug addiction. 298 F. 3d, at 1034-1035. The Court of Appeals thus held that with respect to respondent’s prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Id.,' at 1035. Because petitioner does not challenge this aspect of the Ninth Circuit’s decision, we do not address it here.

The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U. S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner’s no-rehire rule was lawful on its face, held the policy to be unlawful “as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.” 298 F. 3d, at 1036. The Court of Appeals concluded that petitioner’s application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent’s application:

“Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the ‘disability and thus of the fact that she is committing an unlawful act. . . . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA.” Id., at 1036-1037.

In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent’s prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA. And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that “petitioner’s stated reason for respondent’s rejection was in fact pretext.” McDonnell Douglas, supra, at 804.

II.

This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that “ ‘[djisparate treatment’ ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic].” Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U. S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case “depends on whether the protected trait . . . actually motivated the employer’s decision.” Id., at 610. By contrast, disparate-impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, “a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case.” Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, § 105, 105 Stat. 1074-1075, 42 U. S. C. §2000e-2(k) (1994 ed.).

Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U. S. C. § 12112(b) (defining “discriminate” to include “utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability” and “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability”). Because “the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes,” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent’s case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent’s record of a disability. 298 F, 3d, at 1037, n. 20.

Petitioner’s proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiseriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent’s status as disabled despite petitioner’s proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination. The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner’s policy “screens out persons with a record of addiction,” and further noted that the company had not raised a business necessity defense, 298 F. 3d, at 1036-1087, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e. g., Grano v. Department of Development of Columbus, 637 F. 2d 1073, 1081 (CA6 1980) (“In a disparate impact situation . . . the issue is whether a neutral selection device ... screens out disproportionate numbers of [the protected class]”). By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner’s no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent’s application, petitioner’s decision not to rehire respondent can, in no way, be said to have been motivated by respondent’s disability.

The Court of Appeals rejected petitioner’s legitimate, nondiscriminatory reason for refusing to rehire respondent because it “serves to bar the re-employment of a drug addict despite his successful rehabilitation.” 298 F. 3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent’s disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter took no part in the decision of this case. Justice Breyer took no part in the consideration or decision of this case.

       Hughes has since been acquired by petitioner, Raytheon Company. For the sake of clarity, we refer to Hughes and Raytheon collectively as petitioner or the company.

         The ADA defines the term “disability” as:

        “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;'
      “(B) a record of such an impairment; or
      “(C) being regarded as having such an impairment.” 42 U. S. C. § 12102(2).

       The Court in McDonnell Douglas set forth a burden-shifting scheme for discriminatory-treatment cases. Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action^ 411 U. S., at 802. If the employer meets this burden, the presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer’s explanation is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000). The Courts of Appeals have consistently utilized this burden-shifting approach when reviewing motions for summary judgment in disparate-treatment cases. See, e. g., Pugh v. Attica, 259 F. 3d 619, 626 (CA7 2001) (applying burden-shifting approach to an ADA disparate-treatment claim).

       The Court of Appeals noted that “it is possible that a drug user may not be ‘disabled’ under the ADA if his drug use does not rise to the level of an addiction which substantially limits one or more of his major life activities.” 298 F. 3d, at 1033-1034, n. 9. The parties do not dispute that respondent was “disabled” at the time he quit in lieu of discharge and thus a record of the disability exists. We therefore need not decide in this case whether respondent’s employment record constitutes a “record of addiction,” which triggers the protections of the ADA.
      The parties are also not disputing in this Court whether respondent was qualified for the position for which he applied.

       This would not, of course, resolve the dispute over whether petitioner did in fact apply such a policy in this case. Indeed, the Court of Appeals expressed some confusion on this point, as the court first held that respondent “raise[d] a genuine issue of material fact as to whether he was denied re-employment because of his past record of drug addiction,” id,., at 1034, but then later stated that there was “no question that [petitioner] applied this [no-rehire] policy in rejecting [respondent’s] application,” id., at 1036, n. 17.

       The Court of Appeals characterized respondent’s workplace misconduct as merely “testing positive because of [his] addiction.” 298 F. 3d, at 1036. To the extent that the court suggested that, because respondent’s workplace misconduct is related to his disability, petitioner’s refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 611 (1993).

       Indeed, despite the fact that the Nation’s antidiscrimination laws are undoubtedly aimed at “the problem of inaccurate and stigmatizing stereotypes,” ibid., the Court of Appeals held that the unfortunate result of petitioner’s application of its neutral policy was that Bockmiller may have made the employment decision in this case “remaining unaware of [respondent’s] ‘disability.’” 298 F. 3d, at 1036. The Court of Appeals did not explain, however, how it could be said that Bockmiller was motivated to reject respondent’s application because of his disability if Bockmiller was entirely unaware that such a disability existed. If Bockmiller were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent’s disability. And, if no part of the hiring decision turned on respondent’s status as disabled, he cannot, ipso facto, have been subject to disparate treatment.