Michael Moss; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, FKA Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees,
United States Secret Service, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2-20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Muncipal Does, the public bodies employing defendants John Does 2-20; Mark Sullivan, Director of the United States Secret Service, in his official capacity, Defendants, and Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants-Appellants. Michael Moss; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, FKA Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees,
United States Secret Service, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2-20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Municipal Does, the public bodies employing defendants John Does 2-20; Mark Sullivan, Director of the United States Secret Service, in his official capacity; Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants, and Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants-Appellants.
Argued and Submitted October 11, 2011 —Portland, Oregon
Amended February 26, 2013
Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding D.C. No. 1:06-cv-03045-CL
Cecil Reniche-Smith (argued), Office of the Oregon Attorney General, Salem, Oregon; Denise Gale Fjordbeck, Office of the Oregon Attorney General, Salem, Oregon, for Defendants-Appellants Ron Ruecker and Eric Rodriguez.
Edward Himmelfarb (argued), Jeremy Scott Brumbelow, Barbara L. Herwig, Mary Hampton Mason, Department of Justice, Washington, D.C.; Kelly A. Zusman, Office of the U.S. Attorney, Portland, Oregon, for Defendants-Appellants Rob Savage and Tim Wood.
Steven Wilker (argued), Paul W. Conable, Tonkon Torp, LLP, Portland, Oregon; Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland, Oregon; Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, Washington D.C., for Plaintiffs-Appellees.
Before: David M. Ebel [*] , Marsha S. Berzon, and N. Randy Smith, Circuit Judges.
The panel amended its prior opinion, reported at 675 F.3d 1213 (9th Cir. 2012), and denied the petition for rehearing and rehearing en banc in this action in which plaintiffs, demonstrators against President Bush during the 2004 Presidential campaign, asserted that Secret Service agents engaged in unconstitutional viewpoint discrimination in violation of the First Amendment by requiring them to demonstrate at a distance from the President because they were protesting – rather than supporting – his policies.
In the amended opinion, the panel responded to the dissent from the denial of the rehearing en banc, and stated that because this case arose on a motion to dismiss, any explanation for the agents' differential treatment of the pro-and anti-Bush demonstrators would have to be so obviously applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The panel stated that its opinion made clear that there was simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators and not the anti-Bush protestors, to remain along the President's after-dinner motorcade route, and the dissent suggested none.
Dissenting from the denial of rehearing en banc, Judge O'Scannlain, joined by Judges Kozinski, Gould, Tallman, Bybee, Callahan, Bea and Ikuta, stated that the panel afforded unwarranted deference to legal conclusions in the protestors' complaint. Judge O'Scannlain further stated that the panel collapsed the two-pronged qualified immunity inquiry; defined the right at issue too broadly; and failed to give sufficient latitude to those charged with protecting the life of the President.
ORDER AND AMENDED OPINION
ORDER The opinion filed on April 9, 2012, and appearing at 675 F.3d 1213, is amended as follows:
At slip opinion page 3846, 675 F.3d at 1229, immediately before the heading "C. Fourth Amendment, " add the following text:
As this case arises on a motion to dismiss, any explanation for the agents' differential treatment of the pro- and anti-Bush demonstrators would have to be so obviously applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The Dissent from the Denial of Rehearing En Banc ("En Banc Dissent") maintains otherwise, so we briefly respond to its analysis:
Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain along the President's after-dinner motorcade route, see Op. at 1225, 1228; the En Banc Dissent suggests none. And the explanation proffered in the En Banc Dissent for the agents' actions in moving the anti-Bush demonstrators in the first place — namely that the pro-Bush demonstrators were not moved because they were ostensibly further than the protestors from the patio where President Bush was dining, see En Banc Dissent at 14 — is not a basis for granting the agents qualified immunity at the pleadings stage, for several reasons:
First, the En Banc Dissent's speculative explanation is non-responsive to the protestors' viewpoint discrimination claim. The question is not why the agents moved the anti-Bush protestors somewhere, but rather why the agents moved the protestors a considerable distance, to a location that, as we have explained, was in "relevant ways . . . not comparable" to the place where the pro-Bush group was allowed to remain. See Op. at 1228. No "tape measure" is required, see En Banc Dissent at 12, to appreciate that demonstrators separated by more than a full square block, and two roadways, from the public official to whom and about whom they wish to direct a political message will be comparatively disadvantaged in expressing their views. Nor does one need a noise dosimeter to know that the President will be able to hear the cheers of the group left alongside his travel route but unable to hear the group restricted to an area about two square blocks away.
Perhaps there was a reason for the considerable disparity in the distance each group was allowed to stand from the Presidential party — for example, traffic, or an obstruction on the square block adjacent to the Inn, requiring that the anti-Bush demonstrators be moved more than a block further away. But, as matters now stand, nothing in the En Banc Dissent's entirely hypothetical "explanation is so convincing" as to render "implausible" the plaintiffs' claim of viewpoint discrimination. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). It is therefore premature at this stage to credit the En Banc Dissent's theory instead of the protestors'. See id. For the same reason, the En Banc Dissent's assertion, see En Banc Dissent at 12, that the panel has "second guess[ed]" the Secret Service agents' judgment about how best to protect the President fails to account for the fact that at this stage of the case, the record is devoid of any explanation for the substantial difference in where the two groups of demonstrators were allowed to stand relative to the President's locations.
Finally, the En Banc Dissent's invocation of the case law upholding certain buffer zones, see id. at 22, actually illustrates well why the complaint does establish a plausible claim of a violation of clearly established law regarding impermissible viewpoint discrimination in a public forum. Such buffers have been upheld only, and expressly, on the understanding that the restrictions are content and viewpoint neutral. For example, in Hill v. Colorado, 530 U.S. 703 (2000), the Supreme Court upheld the buffer zone ordinance there at issue only after emphasizing that it applied "to all 'protest, ' to all 'counseling, ' and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision. That is the level of neutrality that the Constitution demands." Id. at 725. Had the ordinance in Hill established a one-hundred foot buffer zone for pro-abortion demonstrators and a three-hundred foot buffer zone for anti-abortion protestors, there is no doubt such a viewpoint discriminatory ordinance would have been summarily invalidated.
The protestors here plausibly allege just such a significant difference in the buffer zone in a public forum. And Hill was, of course, decided before the events in this case. The protestors therefore allege a plausible case of impermissible viewpoint discrimination as of the time this case arose.
An amended opinion is filed concurrently with this order.
With this amendment, the panel has unanimously voted to deny appellants' petition for rehearing. Judge Berzon and Judge N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Ebel so recommended.
The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R. App. P. 35(f).
The petition for rehearing and the petition for rehearing en banc are DENIED.
Judge O'Scannlain's dissent from the denial of en banc rehearing is filed concurrently herewith.
No further petitions shall be entertained.
O'SCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief Judge, and GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:
To quote from the Government's brief, "[t]he panel's decision in this case is a textbook case-study of judicial second-guessing of the on-the-spot judgment that Secret Service agents assigned to protect the President have made about security needs." In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the President to their newly created duty to act like concert ushers—ensuring with tape-measure accuracy that everyone who wants to demonstrate near the President has an equally good view of the show. This cannot be the law. With respect, I must therefore dissent from our unfortunate failure to rehear this case en banc.
This is a Bivens action brought by Michael Moss and numerous others (the "protesters" or "anti-Bush demonstrators") against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. The protestors' second amended complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them to create a security perimeter around the President. To clarify the allegations pertinent to this claim, one must focus on the relevant facts as set forth in the protesters' operative complaint.
Anticipating the President's appearance at an event in Jacksonville, Oregon, both pro-Bush and anti-Bush demonstrators gathered approximately two blocks from the President's hotel there and conducted demonstrations with chants, slogans, and signs. Spread out along California Street, the pro-Bush demonstrators were located just west of Third Street, and the anti-Bush demonstrators were located between Third and Fourth Streets.
While en route to the event, the President decided to eat dinner at the Jacksonville Inn, a restaurant on California Street between Third and Fourth Streets. He arrived in his motorcade via Third Street, and both the pro-Bush and anti- Bush demonstrators "had equal access" to him; the anti-Bush demonstrators were not moved from the President's motorcade route prior to his arrival at the Inn even though a Secret Service agent was already on site and could have ordered the police to do so.
Upon his arrival, the President entered the back patio of the Inn and was seated in the outdoor patio dining area. Shortly thereafter, the Secret Service directed local police to move "all persons between Third and Fourth streets"—immediately in front of the Inn—two blocks east to the east side of Fifth Street because "they did not want anyone within handgun or explosive range of the President." As it happened, these "persons" were the anti-Bush demonstrators. The pro-Bush demonstrators were not moved because they were already located one block west of the outdoor patio where the President was dining.
Alleging that the Secret Service agents' security rationale for moving them was "false" and that the agents were, in actuality, "tak[ing] action to stifle and suppress" their protest, the anti-Bush demonstrators brought this action, claiming that the Secret Service agents violated their First Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Their claim boils down to two grievances. First, after the security perimeter around the President was established, they were forced to demonstrate from an area approximately one block farther from the President than the pro-Bush demonstrators. And second, they were farther from the President's motorcade route than the pro-Bush demonstrators when he left the Inn because they were not returned to their original location before the President left.
The protestors' first amended complaint, alleging substantially similar facts, was dismissed for failure to plead a plausible claim. See Moss v. U.S. Secret Serv. (Moss I), 572 F.3d 962 (9th Cir. 2009). After the anti-Bush demonstrators filed their (now operative) second amended complaint, the Secret Service agents again moved to dismiss, arguing that the demonstrators still failed to plead a plausible claim or, alternatively, that they were entitled to qualified immunity. Moss v. U.S. Secret Serv. (Moss II), 675 F.3d 1213, 1221–22 (9th Cir. 2012). The district court denied their motion. Id. at 1219, 1222. The panel now affirms that denial, problematically holding that it is "clearly established" in a broad sense that "government officials may not disadvantage speakers based on their viewpoint" and denying the agents qualified immunity. Id. at 1228. It is in reaching this conclusion that the panel regrettably errs.
The panel's qualified immunity analysis in this case is wrong—doubly wrong. First, the panel fails to separate the factual allegations that it must credit from the legal conclusions that it may not. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Second, the panel defines the right at issue at an impermissibly high level of generality, asking whether it is "clearly established" in a broad sense that "the government" may not engage in "viewpoint discrimination" and concluding that it is. See Moss II, 675 F.3d at 1228. Having started with the wrong assumptions and asked the wrong question, it is no surprise that the panel arrives at the wrong answer.
Beginning with the assumption that it must "tak[e] the protestors' allegation of discriminatory motive [on the part of the Secret Service agents] as true, " the panel quickly reaches the conclusion that it is "'beyond debate' that, particularly in a public forum, government officials may not disadvantage speakers based on their viewpoint." Id. By using the protestors' allegations about the agents' discriminatory motive as a starting point, however, the panel turns Iqbal on its head and places its analysis on shaky ground from the start.
As the panel notes, the protestors' complaint did indeed allege that the Secret Service agents engaged in viewpoint discrimination—reciting specifically that "[v]iewpoint discrimination by the Secret Service in connection with President Bush was the official policy of the White House." But, contrary to the panel's view, this allegation, which amounts to a legal conclusion about the agents' viewpoint-discriminatory motives, should not have been afforded a presumption of truth. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Here, the allegation of a discriminatory motive contained in the protestors' complaint is almost identical to the "legal conclusion" to which the Supreme Court refused to afford a presumption of truthfulness in Iqbal. Id. at 680–81 (rejecting the allegation that government officials "knew of, condoned, and wilfully and maliciously agreed to subject [Iqbal] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest" as a legal conclusion (internal quotation marks omitted) (second alteration in original)). Like in Iqbal, the bare allegation of a discriminatory motive contained in the protestors' complaint is "disentitle[d] to the presumption of truth." Id. at 681; cf. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). The panel should not have accorded it any weight in its qualified immunity analysis.
Setting aside such a bald assertion, only two factual allegations remain to support the protesters' claims about the Secret Service agents' discriminatory motives, neither of which is sufficient to establish plausibly that the agents harbored a subjective animus towards their viewpoint. The first—the protestors' description of purportedly similar Secret Service "actions against anti-government expressive activity"—does not tend to make plausible their claim that the named Secret Service agents sued in this case acted with the subjective purpose to suppress their message; none involve these same agents or the same circumstances, and the allegations do not show a pattern pervasive enough to establish an unspoken policy of discrimination, especially in light of the explicit Secret Service policy prohibiting such conduct. Cf. Iqbal, 556 U.S. at 682–83; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) ("Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.").
The second—an out-of-context statement taken from the Presidential Advance Team Manual—both lacks the nefarious meaning that the anti-Bush demonstrators, and the panel, would ascribe to it, and is irrelevant. For one, when viewed in context, the statement appears in a section of the manual entitled "Crowd Raising and Ticket Distribution" and clearly refers to ticketed presidential events, from which demonstrators can be excluded without violating the First Amendment. See Weise v. Casper, 593 F.3d 1163, 1168 (10th Cir. 2010). But more importantly, the protestors never allege that the Secret Service agents were bound to follow this instruction, which is found in the Advance Team Manual—a guide written for the Presidential Advance Team and not the Secret Service. Indeed, the demonstrators have admitted that written Secret Service guidelines, which do apply to Secret Service agents, expressly "prohibit Secret Service agents from discriminating between anti-government and pro-government demonstrators." The manual, therefore, not only lacks a nefarious meaning but also fails to have any bearing whatsoever on the motives of the Secret Service agents at issue in this case.
Given the lack of factual allegations to support the anti-Bush demonstrators' claim of subjective viewpoint animus, the panel should not have afforded this animus allegation a presumption of truth. The panel's subsequent failure to define properly the right at issue for purposes of qualified immunity further compounds this misstep.
Taking into account the absence of allegations plausibly demonstrating subjective viewpoint animus, the panel's opinion should have proceeded to determine separately whether the facts as pleaded showed (1) a constitutional violation and (2) a violation of clearly established law. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009); Estate of Ford, 301 F.3d at 1049 ("Saucier's key point is that the qualified immunity inquiry is separate from the constitutional inquiry."). Instead, the panel erroneously collapses these two inquiries into one. Concluding that the objective factual events alleged in the complaint established a plausible claim of viewpoint discrimination, it eviscerates the clearly established prong—of course, the panel concludes, it is clearly established that officials may not engage in viewpoint discrimination. See Moss II, 675 F.3d at 1223–28.
Contrast the panel's approach with the leading qualified immunity cases. One easily could say, for example, in a Fourth Amendment case in which the facts alleged showed that officers used excessive force, that the use of excessive force violates clearly established Fourth Amendment principles. Or in an Eighth Amendment case in which the facts alleged showed deliberate indifference, one could say that deliberate indifference violates clearly established Eighth Amendment principles. But both those statements would be fatally insufficient. See Saucier, 533 U.S. at 201–03; Estate of Ford, 301 F.3d at 1050–51. It is equally fatal merely to say that if the protestors have alleged sufficient facts to make a plausible claim of viewpoint discrimination, they have also shown a violation of clearly established law, because viewpoint discrimination is clearly prohibited. See Weise, 593 F.3d at 1167 (citing Anderson v. Creighton, 483 U.S. 635, 639–41 (1987)). Put another way, "when it comes to qualified immunity, merely stating that the government cannot engage in viewpoint discrimination is just about as general as stating that the government cannot engage in unreasonable searches ...