- Should Secret Service agents receive qualified immunity from claims that they violated the First Amendment rights of anti-Bush demonstrators, where the agents moved anti-Bush, but not pro-Bush demonstrators, to protect the President?
- Did anti-Bush demonstrators who were moved away from the President, adequately plead viewpoint discrimination if Secret Service agents had security reasons to move them?
In 2004, President Bush made an unannounced campaign stop at the Jacksonville Inn in Jacksonville, Oregon. Expecting the President to appear only at the nearby Honeymoon Cottage, pro-Bush and anti-Bush demonstrators arranged lawful demonstrations in the area. When the President changed his plans, Secret Service agents ordered local law enforcement to clear the area where the anti-Bush protestors were demonstrating. The anti-Bush demonstrators sued for viewpoint discrimination under the First Amendment. Secret Service agents Wood and Savage argue that the Ninth Circuit’s generalization of the protestors’ constitutional rights incorrectly deprived them of qualified immunity. Wood and Savage also argue that protestors failed to adequately plead a plausible claim because the complaint shows that the agents had a permissible security motive. Respondent Moss argues that the Ninth Circuit properly denied Wood and Savage qualified immunity because the agents moved the protesters because of the content of their speech. Moss also argues that he adequately pleaded viewpoint discrimination by laying out facts that plausibly establish the agents’ discriminatory motive. This case will determine whether law enforcement agents are able to account for demonstrators’ viewpoints when protecting public officials and the general public during political events. Additionally, this case will help define the parameters of the Court’s previous Iqbal ruling.
Questions as Framed for the Court by the Parties
- Whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.
- Whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.
During his 2004 presidential campaign, President Bush made an unannounced stop at the Jacksonville Inn in Jacksonville, Oregon. See Moss v. U.S. Secret Service, 711 F.3d 941, 948 (9th Cir. 2012). The President was scheduled to appear at the nearby Honeymoon Cottage, so both pro-Bush and anti-Bush groups were prepared to demonstrate in the area. See id. Approximately 200 to 300 anti-Bush protestors gathered at the pre-approved demonstration route and stopped in front of the Jacksonville Inn, which is two blocks from the Honeymoon Cottage. See id. A similar-sized group of Bush supporters also gathered in the area. See id.
Before the President approached the Jacksonville Inn, the Secret Service ordered state and local police to clear the area where the anti-Bush protestors were standing. See id. The parties dispute the purpose for moving the protesters. Petitioner Tim Wood, in his capacity as a Secret Service, alleges that it was to prevent a dangerous person from getting too close to the President. Respondent Michael Moss, one of the anti-Bush protestors, alleges that the Secret Service tried to suppress their anti-Bush message. See id.
Police officers in riot gear faced the anti-Bush protestors with their backs to the pro-Bush demonstrators. See id. They announced that the protest was unlawful and ordered the anti-Bush protestors to move. See id. The protestors allege that, although many of them could not hear the announcements, the officers proceeded to violently shove, strike with clubs, and fire pepper spray bullets at the protestors without giving them time to move of their own accord. See id.As the police moved the protestors back, the police divided them into two groups, which prevented some from leaving. See id. Although defendant police supervisors Ron Ruecker and Eric Rodriguez were not at the scene, the demonstrators allege that they directed the police action and failed to adequately train the officers that were present. See id.
Moss brought a Bivens action against Secret Service agents Tim Wood and Rob Savage, who were assigned to protect the President. See id. Moss alleged that the agents engaged in viewpoint discrimination in violation of their First Amendment rights. The district court dismissed Moss’s first amended complaint for failure to plead a plausible claim. See id. at 956. After Moss filed a second amended complaint, the Secret Service agents argued that it should be dismissed for failure to plead a plausible claim, or alternatively, because they were entitled to qualified immunity. See id. The court denied their motion and denied them qualified immunity. See id.
The Ninth Circuit affirmed, holding that the protestors alleged a plausible First Amendment claim and that agents Wood and Savage are not entitled to qualified immunity. See id. at 969. Wood and Savage petitioned for a writ of certiorari, which the Supreme Court granted on November 26, 2013.
In this case, the Supreme Court will address the pleading standard for viewpoint discrimination claims against law enforcement officials. The Court will also determine whether Secret Service agents tasked with protecting the President are entitled to qualified immunity for treating anti-President demonstrators differently than pro-President demonstrators. In addressing these questions, the Court will examine law enforcement’s need to consider the political persuasion of individuals and groups when determining whether they are a security risk.
ACCESS TO COURTS TO LITIGATE CIVIL RIGHTS CLAIMS
The demonstrators’ supporters argue that the Secret Service agents’ reading of the plausibility standard in Iqbal and Twombly would inappropriately introduce a higher pleading standard, reinterpreting plausibility as probability. See Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Respondents at 4. According to amici, requiring a showing that discriminatory intent was probable rather than plausible would prevent many civil rights discrimination cases from surviving past the pleading stage. See id.at 5. In their view, this hurdle can be attributed to the information-asymmetry problem in most civil rights cases. See id. Specifically, the NAACP Legal Defense Fund contends that imposing a probability standard before discovery would prevent plaintiffs from using the Federal Rules of Civil Procedure to uncover evidence of discriminatory intent that remained exclusively in the defendant’s control. See id.The NAACP warns that such a high standard would create an unintentional safe harbor for discriminatory conduct where there is no direct evidence of discriminatory intent. See id.at 13. Under this theory, as long as defendants could provide a plausible alternative motivation for their conduct, plaintiffs would never be allowed to use discovery tools to prove discriminatory intent. See id.
Conversely, supporters of Tim Wood and Rob Savage, the petitioners, assert that summary judgment in favor of the petitioner is consistent with the relatively new Iqbal standard and does not create a more expansive rule. See Brief of Amicus Curiae the National Conference of State Legislatures et al. at 16. The National Conference of State Legislatures (NCSL) argues that whether a complaint is well-pled under Iqbal depends largely on whether there is an obvious alternative explanation of the conduct in question that would render the conduct permissible under the Constitution. See id. at 14. Here, the NCSL contends, such an obvious alternative explanation exists: the agents acted in a viewpoint-neutral manner when deciding to move certain groups of protestors, which is permissible under the Constitution. See id. Furthermore, according to the NCSL, a ruling in favor of the agents would be consistent with courts’ recent trend of using Iqbal to spare government actors from unnecessary litigation. See id. at 16. According to the NCSL, this trend is important because it helps law enforcement protect the public without the threat of litigation. See id. at 17. In their view, political events involve uncertainty and can quickly escalate due to misunderstandings; law enforcement officers should thus be able to respond appropriately without fear of lawsuits. See id.
CONSIDERATION OF VIEWPOINTS WHEN ASSESSING THREATS
Supporters of the Secret Service agents argue that regardless of pleading standards, law enforcement should be permitted to consider the content of demonstrators’ speech when assessing potential security threats. See Brief of Amicus Curiae the National Conference of State Legislatures et al. at 18. The National Conference of State Legislatures (NCSL) and various law enforcement groups argue that, because demonstrators’ speech may alert officers to assassination and other security threats, law enforcement must be able to consider speech when tasked with protecting the public and high profile persons. See id. Wood’s supporters agree that the First Amendment protects certain types of speech, but argue that protected speech can become actionable when agents are confronted with public safety threats, and particularly, threats to the President. See id.at 21. Here, the NCSL points out that, although the anti-Bush and pro-Bush demonstrators were similarly situated, a Secret Service agent would rightfully assess them differently. See id. at 22. In their view, the anti-Bush protestors’ viewpoints inherently pose a greater threat to the President, and to pretend otherwise would be foolish. See id.
The demonstrators’ supporters counter that even if the agents’ viewpoint discrimination was legally justifiable at the protest, the Court should not make such a determination at the pleading stage. See Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, inc. at 31. In the NAACP’s view, whether the agents acted constitutionally is a complex question that requires more analysis and discovery than is offered at the pleading stage. See id. at 33. Additionally, the NAACP notes, in Iqbal, the Court allowed law enforcement officials to act in a way that produced a disparate impact on Arab Muslims. See id. at 32. There, the NAACP contends, the impact was incidental because law enforcement’s ultimate goal was to find those responsible for the September 11 terrorist attacks. See id. Here, the NAACP argues, the situation is fundamentally different because the Secret Service agents targeted anti-Bush protestors because they thought the protestors were more likely to commit a crime. See id. In the NAACP’s view, this reasoning, which allows intentional discrimination is frighteningly similar to the Court’s infamous rationale in Korematsu v. United States that constitutionally validated the Japanese internment camps during World War II. See id. Summary judgment in favor of the agents, they argue, would allow for blatant differential treatment of the anti-Bush demonstrators and would create a dangerous precedent. See id.
In this case, the Supreme Court will decide whether qualified immunity for federal agents should be based on a general or fact-specific evaluation of whether Secret Service agents violated a constitutional right. If the Court decides that qualified immunity should not be granted here, the Court must decide whether the respondents adequately pled viewpoint discrimination in their complaint. Respondents brought a First Amendment lawsuit against federal agents, usually referred to as a “Bivens action,” named after the case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. See 403 U.S. 388 (1971); Brief of Respondents at 20. However, a Bivens claim is only proper where the federal agents involved are not protected by qualified immunity. See Brief of Respondents at 20. Under Ortiz v. Jordan, qualified immunity shields government officials from litigation if their conduct “did not violate clearly established . . . constitutional rights of which a reasonable person should have known.” Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011) (brackets omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Furthermore, any complaint filed must satisfy the “plausibility” requirement announced in Twombly and Iqbal. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Brief of Petitioners at 15.
Petitioners Wood and Savage argue that Secret Service agents are protected by qualified immunity because it is not reasonable to assume that they should have known that creating a security perimeter for the President would violate the First Amendment. See Brief of Petitioners at 15. Respondents argue that Secret Service agents are not exempt from the First Amendment and that the generalization of the right to free speech used by the Ninth Circuit was appropriate to determine whether a violation had occurred. See Brief of Respondents at 33, 37. Wood and Savage further argue that even if qualified immunity does not protect them, respondents have failed to adequately plead their claims because they cannot plausibly allege that there was a discriminatory motive for moving the protesters. See Brief of Petitioners at 38. Moss argues that the complaint sets forth sufficient facts and evidence to show that agents moved the protesters solely because of their message, not for security reasons, and thus that his complaint is plausible, satisfying the pleading standards established in Twombly and Iqbal. See Brief of Respondents at 15.
ARE THE SECRET SERVICE AGENTS ENTITLED TO QUALIFIED IMMUNITY?
Petitioners Wood and Savage argue that the protesters did not have a clear constitutional right to remain within a certain distance of the president, and that the Ninth Circuit improperly disqualified them from qualified immunity by evaluating the constitutional rights of the protesters at too high a level of generality. See Brief of Petitioners at 22. Wood and Savage argue that constitutional rights must be defined with specificity. See id. at 25. They maintain that prior to the Ninth Circuit’s ruling, no court had required Secret Service agents to precisely determine the respective distances of differently minded groups when considering security issues. See id. at 26. Wood and Savage emphasize that there must be controlling authority to alert a government authority that his conduct might be in violation of the Constitution. See id.Furthermore, Wood and Savage indicate that the anti- and pro-Bush groups were at marginally different distances from the President. Even more, they argue, the respondents have found no case law to support their position. See id. at 28. Wood and Savage maintain that Secret Service agents’ actions in crowd-control situations may disparately impact individuals’ locations without raising First Amendment issues. See id. at 29. Wood and Savage also argue that officers may consider the type of speech directed at an official in determining whether a threat exists, and that it is reasonable to conclude that anti-Bush protesters could attempt to harm the President. See id. at 34.
Respondent Moss argues that the Ninth Circuit did not overgeneralize their constitutional rights. Instead, he argues, the Ninth Circuit based its reasoning on the disputed fact that the protestors were treated differently based on the content of their speech. See Brief of Respondents at 31. Moss contends that the viewpoint neutrality requirement is undisputed and well-established by case law. Thus, he argues that any reasonable government official should have known that moving protesters because of their speech would be unconstitutional. See id. at 32. Moss further argues that Secret Service agents are not exempt from this type of violation simply because they protect the President or other high-ranking officials. To the contrary, they cannot shield the President or others from peaceful dissent at public events. See id. at 34, 35. Moss also argues that the real issue is not whether moving the protesters violated their constitutional rights, but whether or not the protesters were moved because of their speech. See id. at 38. In support of this position, he alleges that the Secret Service agents moved them after they had already secured a perimeter. See id. at 39. Moss argues that even though no court has ruled that groups with differing viewpoints must be positioned equidistant from each other, here, the protesters were moved because of their speech, so no precedent is necessary. See id. at 39–40. Moss emphasizes that by ruling in the protestors’ favor the Court would not be second-guessing the security determination by the Secret Service; rather, the Court would be acknowledging that the Secret Service made a decision based on the content of the speech of the protesters, which is unconstitutional. See id. at 42.
DID RESPONDENTS ADEQUATELY PLEAD VIEWPOINT DISCRIMINATION?
Wood and Savage argue that the respondents did not adequately plead that the Secret Service agents discriminated based on the respondents’ viewpoint. See Brief of Petitioners at 38. Wood and Savage argue that under Twombly, a complaint must do more than “plead facts that are ‘merely consistent with’ a defendant’s liability.” See id. at 39 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). They allege that the respondents’ complaint show that Wood and Savage ordered “all persons” to be moved from the area where the protesters were standing so that they would not be within “handgun or explosive range of the President.” See Brief of Petitioners at 40. Wood and Savage contend that viewpoint discrimination cannot be plausibly inferred from any of respondents’ claims because the protesters were in handgun and explosive range and because it is reasonable to conclude that the Secret Service did not see the diners in the Inn as a security threat because, unlike the protesters, they had no knowledge that the President would be stopping there. See id. at 43, 44, 48. Wood and Savage argue that the other incidents alleged by respondents do not involve them and were unrelated to their security-motivated actions, and thus those incidents should not be compared to respondents’ claims against the Secret Service agents. See id. at 49.
Moss and the protestors argue that their complaint is more than plausible because they were not moved for security reasons, but because of their viewpoint. See Brief of Respondents at 15. Moss argues that the complaint had enough factual detail and context to show that the anti-Bush protesters were treated differently than the pro-Bush demonstrators, and that the differential treatment was due to viewpoint discrimination. See id. at 16. Respondents further argue that they described the agents’ actions removing dissenters at numerous other Presidential events, which is a strategy expressed in the Presidential Advance Manual. See id. at 11, 17. Moss argues that this pattern of behavior shows that the Secret Service agents here acted pursuant to an actual policy and practice of suppressing viewpoints contrary to the President. See id. at 19. Respondents also argue that they were treated differently from the pro-Bush demonstrators because they were moved so far away that they could not be seen or heard by the President, while the pro-Bush demonstrators were not moved out of the President’s earshot. See Brief of Respondents at 22. Moss argues that Wood and Savage’s treatment of the diners at the Inn where the President ate demonstrate that there was no true security interest in moving the protesters. See Brief of Respondents at 27. The individuals at the Inn were not forced to move, Moss contends, and the fact that these diners were within handgun and explosive range of the President undermines the purported security rationale for moving the anti-Bush demonstrators. See Brief of Respondents at 30.
In this case, the Supreme Court will consider whether, to receive qualified immunity, Secret Service agents must ensure that the relocation of protestors does not violate the protesters’ First Amendment Rights. If the Court decides that the agents should not receive qualified immunity in this case, it must determine whether respondents have properly pled that Secret Service agents engaged in viewpoint discrimination in violation of the protesters’ First Amendment rights. Wood and Savage argue that they should receive qualified immunity because a reasonable Secret Service agent could not have known that relocating the protesters was a violation of their First Amendment rights and because the position of the protesters presented serious security concerns. Moss argues that the agents’ actions violated clearly established constitutional rights and that there was no security issue present, as evidenced by the lack of screening of the diners in the restaurant where President Bush was eating. This case thus presents the Court with an opportunity to more clearly define the scope of qualified immunity for Secret Service agents and may impact the pleading standards for Bivens claims.
- Robert Barnes, Washington Post Supreme Court to Review Whether Agents Violated Rights of Bush Protestors, (Nov. 26, 2013).
- Greg Stohr, Bloomberg.com, Secret Service Case Gets Top Court Review in Speech Clash, Bloomberg Politics, (Nov. 26, 2013).
- FedAgent.com, The Supreme Court Will Decide Whether Secret Service Agents Have Immunity When Protecting the President from Demonstrators (Non-supporters of the President) by Keeping Them Farther Away From the President than the Supporters, (Dec. 13, 2013).