affirming 17 dismissal of §1983 against supervisors because the protestors “allege[d] no facts whatsoever about 18 the officers’ training or supervision, nor d[id] they specify in what way any such training was 19 deficient.”
How later courts described this case
- affirming 17 dismissal of §1983 against supervisors because the protestors “allege[d] no facts whatsoever about 18 the officers’ training or supervision, nor d[id] they specify in what way any such training was 19 deficient.”
- listing the circumstances in which supervisors may be held liable under 42 U.S.C. § 1983
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MOSS; LESLEY ADAMS; No. 10-36152
BETH WILCOX ; RICHARD ROYER ;
LEE FRANCES TORELLE; MISCHELLE D.C. No.
ELKOVICH ; ANNA VINE , FKA Anna 1:06-cv-03045-
Boyd, individually and on behalf of CL
a class of persons similarly situated;
JACKSON COUNTY PACIFIC GREEN
PARTY ,
Plaintiffs-Appellees,
v.
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
2 MOSS V . U.S. SECRET SERVICE
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
MOSS V . U.S. SECRET SERVICE 3
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; No. 10-36172
BETH WILCOX ; RICHARD ROYER ;
LEE FRANCES TORELLE; MISCHELLE D.C. No.
ELKOVICH ; ANNA VINE , FKA Anna 1:06-cv-03045-
Boyd, individually and on behalf of CL
a class of persons similarly situated;
JACKSON COUNTY PACIFIC GREEN ORDER AND
PARTY , AMENDED
Plaintiffs-Appellees, OPINION
v.
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
4 MOSS V . U.S. SECRET SERVICE
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;
MOSS V . U.S. SECRET SERVICE 5
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.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
October 11, 2011—Portland, Oregon
Filed April 9, 2012
Amended February 26, 2013
6 MOSS V . U.S. SECRET SERVICE
Before: David M. Ebel*, Marsha S. Berzon,
and N. Randy Smith, Circuit Judges.
Order;
Dissent to Order by Judge O’Scannlain;
Opinion by Judge Berzon
SUMMARY**
Civil Rights
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
*
T he H onorable David M. Ebel, Senior Circuit Judge for the Tenth
Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MOSS V . U.S. SECRET SERVICE 7
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.
COUNSEL
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.
8 MOSS V . U.S. SECRET SERVICE
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.
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
MOSS V . U.S. SECRET SERVICE 9
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
10 MOSS V . U.S. SECRET SERVICE
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
MOSS V . U.S. SECRET SERVICE 11
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.
12 MOSS V . U.S. SECRET SERVICE
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
MOSS V . U.S. SECRET SERVICE 13
be the law. With respect, I must therefore dissent from our
unfortunate failure to rehear this case en banc.
I
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.1 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-
1
The panel opinion resolves claims against other officers under
28 U.S.C. § 1983 which are not at issue here.
14 MOSS V . U.S. SECRET SERVICE
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.
MOSS V . U.S. SECRET SERVICE 15
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.
II
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.
16 MOSS V . U.S. SECRET SERVICE
A
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.
1
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
MOSS V . U.S. SECRET SERVICE 17
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.
2
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.”).
18 MOSS V . U.S. SECRET SERVICE
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.”2 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.
2
An “advance man” is “[o]ne who arranges for publicity, protocol,
transportation, speaking schedules, conferences with local government
officials, and minute details of a visit, smoothing the way for a political
figure.” W illiam Safire, Safire’s Political Dictionary 8 (5th ed. 2008). By
contrast, the Secret Service agents work for the Department of Homeland
Security under the direction of the Secretary of Homeland Security, and
are tasked with protecting the President. See 18 U.S.C. § 3056, amended
by Pub. L. No. 112-257, 126 Stat. 2413 (2013). Given the very different
roles of the advance team and the Secret Service— the former to “smooth[]
the way” for a candidate and the latter to ensure his security— it is no
wonder that their manuals contain different guidelines regarding
demonstrators.
MOSS V . U.S. SECRET SERVICE 19
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.
B
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.
1
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
20 MOSS V . U.S. SECRET SERVICE
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 and seizures—an approach that is too
general for the qualified immunity analysis where a plaintiff
has the burden of demonstrating not only a constitutional
violation, but also a violation of clearly established law.”
Weise, 593 F.3d at 1168 n.1 (citing Anderson, 483 U.S. at
639–41).
To avoid this analytical pitfall, the Supreme Court has
mandated that, in qualified immunity cases, the contours of
the right must be clearly established in “a more
particularized, and hence more relevant, sense,” meaning that
it must be “clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S.
at 202. Contrary to this Supreme Court precedent, the panel
in this case simply fails to perform that analysis. It fails to
consider whether, in a more particularized sense, the alleged
conduct of the Secret Service agents violated clearly
established law. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2084 (2011). In so doing, it commits an error all too common
to this circuit—one we have been specifically warned not to
MOSS V . U.S. SECRET SERVICE 21
commit again. See id.; see also Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (per curiam); Saucier, 533 U.S. at
200.
It is clear that had the panel properly applied Iqbal and al-
Kidd, it would have upheld qualified immunity. Absent the
assumption that the Secret Service agents were purposefully
engaging in viewpoint discrimination—which the panel
should not have made in conducting the clearly established
inquiry—the agents’ actions did not violate “clearly
established” law. See Estate of Ford, 301 F.3d at 1050 (“We
do not assume that [the officers] acted with deliberate
indifference, as that would assume the answer.”).
2
Once properly framed in light of the factual allegations in
the complaint, two questions of clearly established law are
raised in this case: First, was it clearly established that
moving one group to a location one block farther from the
President than another when creating a Presidential security
perimeter constituted a violation of that group’s First
Amendment rights? And second, was it clearly established
that Secret Service agents, who moved a group to maintain a
consistent security perimeter around the President, had to
move the group back to their original location before the
President could leave in his motorcade (or at least had to alter
the motorcade route so that all involved got an equal chance
to see the President)? The answer to these qualified
immunity questions—the questions that the panel should have
asked—is a clear “no.”
22 MOSS V . U.S. SECRET SERVICE
a
In response to the first question, it should be noted that
before this decision neither our precedent nor Supreme Court
case law prevented Secret Service agents from establishing a
security perimeter around the President. Indeed, prior
Supreme Court precedent had upheld analogous buffer zones
to protect vulnerable patients attempting to enter healthcare
facilities and to prevent targeted protests of an abortion
doctor’s home. See, e.g., Colorado v. Hill, 530 U.S. 703,
719–30 (2000); Frisby v. Shultz, 487 U.S. 474, 479–88
(1988). Certainly, one would think, securing the safety of the
President ranked as an interest at least on par with preventing
harassment of patients and doctors. Cf. Hunter v. Bryant,
502 U.S. 224, 229 (1991) (per curiam) (noting that proper
application of the qualified immunity standard is “nowhere
more important than when the specter of Presidential
assassination is raised”). Yet in denying the Secret Service
agents qualified immunity in this case, our court holds today
that it is not—and, even more egregiously, it was clearly
established law that it was not, at least as early as 2004.
Moreover, before this decision, no law appeared to
require Secret Service agents to ensure that groups of
differing viewpoints were positioned in locations exactly
equidistant from the President at all times. But again, in this
case, our court invents such a requirement and determines
that it was long since “clearly established” in our First
Amendment jurisprudence. As the Government correctly
points out, such a rule will be troublesome in application. As
of today, shall Secret Service agents carry tape measures
when they engage in crowd control to ensure that groups with
different viewpoints are at comparable locations at all times?
MOSS V . U.S. SECRET SERVICE 23
If they don’t, they will now risk being subject to First
Amendment lawsuits in nine Western states.
b
Turning to the second question—whether it was clearly
established law that Secret Service agents had to return a
group of demonstrators to their original location before the
President could leave in his motorcade—one is again at a loss
to identify any First Amendment principle that clearly
demands such an action. Cf. United States v. Grace, 461 U.S.
171, 177–78 (1983) (“We have regularly rejected the
assertion that people who wish to propagandize protests or
views have a constitutional right to do so whenever and
however and wherever they please.” (internal quotation marks
omitted)); Menotti v. City of Seattle, 409 F.3d 1113, 1139
n.49 (9th Cir. 2005) (“[W]e hold that there is no
constitutional requirement that protestors be allowed to reach
their designated audience in the precise manner of their
choosing . . . .”). Indeed, the assertion that some First
Amendment doctrine would so require seems absurd. But the
panel’s holding today bizarrely assures us that this, too, is a
“clearly established” ground for bringing a suit alleging
infringement of one’s First Amendment freedoms. It is hard
to imagine how, in light of today’s decision, Secret Service
agents will navigate the treacherous path between the Scylla
of our court’s holdings in this case and the Charybdis of their
duty to protect the President.
24 MOSS V . U.S. SECRET SERVICE
c
One final note: The operative complaint’s lack of
plausible allegations showing that the Secret Service agents
in this case explicitly acted with a subjective intent to
suppress the protestors’ message differentiates this case from
the one on which the panel relies in their qualified immunity
analysis. See Mahoney v. Babbitt, 105 F.3d 1452, 1458–59
(D.C. Cir. 1997) (“The government has conceded that if
appellants were carrying no signs or, indeed, if they were
carrying signs favorable to the administration whose second
Inaugural was being celebrated, their ‘physical intrusion’
would be welcomed. It is only the ‘purpose of injecting
[their] own convictions or beliefs’ that causes the government
to exclude them.”). In light of the allegations in Mahoney,
which expressly showed a subjective discriminatory purpose
on the part of the National Park Service in denying a permit
to a group of demonstrators, it is no wonder that the courts
were able to find qualified immunity inapplicable and to
conclude that the officials there violated clearly established
law prohibiting viewpoint discrimination. See id. But in this
case, where the anti-Bush demonstrators admit that the Secret
Service agents offered a neutral security rationale for their
actions, the panel should have assessed their objective
conduct as alleged in the complaint to determine whether it
plausibly demonstrated a violation of clearly established law.
See Estate of Ford, 301 F.3d at 1050. Sadly, it did not do so;
instead, it misstates the law and, ultimately, reaches the
wrong result.
“[I]n light of the specific context of this case” the Secret
Service agents did not violate any “clearly established” law.
See Saucier, 533 U.S. at 201. As such, they were entitled to
MOSS V . U.S. SECRET SERVICE 25
qualified immunity, and the panel erred in denying it to them.
Id.
III
Our court’s track record in deciding qualified immunity
cases is far from exemplary, and with this decision, I am
concerned that our storied losing streak will continue.3
Although we may not have been able to rectify our past
mistakes by rehearing this case en banc, we certainly should
have used this opportunity to avoid repeating them. Alas, the
panel here once again commits many familiar qualified
immunity errors. It affords unwarranted deference to legal
conclusions in the protestors’ complaint. It collapses the two-
pronged qualified immunity inquiry. It defines the right at
issue too broadly. And it fails to give sufficient latitude to
those charged with protecting the life of the President. This
decision renders the protections of qualified immunity
toothless. But even more devastating, this decision
hamstrings Secret Service agents, who must now choose
between ensuring the safety of the President and subjecting
themselves to First Amendment liability.
I respectfully dissent from our failure to rehear this case
en banc.
3
See, e.g., al-Kidd, 131 S. Ct. at 2084 (reversing the Ninth Circuit)
(warning “the Ninth Circuit in particular” to avoid “defin[ing] clearly
established law at a high level of generality”); Brosseau, 543 U.S. at 199
(same); Saucier, 533 U.S. at 200 (same); Hunter, 502 U.S. at 227–29
(same).
26 MOSS V . U.S. SECRET SERVICE
OPINION
BERZON, Circuit Judge:
During the 2004 presidential campaign, Plaintiff-
Appellees, Michael Moss and others who opposed President
Bush (“protestors” or “anti-Bush protestors”), organized a
demonstration at a campaign stop in Jacksonville, Oregon.
They contend that Secret Service agents, Defendant-
Appellants Tim Wood and Rob Savage (“agents” or “Secret
Service agents”), engaged in unconstitutional viewpoint
discrimination in violation of the First Amendment, by
requiring the protestors to demonstrate at a distance from the
President because they were protesting – rather than
supporting – his policies. In addition, the protestors maintain
that the police officers who carried out the Secret Service
agents’ directions, supervised by Defendant-Appellants Ron
Ruecker, Superintendent of the Oregon State Police, and Eric
Rodriguez, Captain of the Southwest Regional Headquarters
of the Oregon State Police (“police supervisors”), used
excessive force in violation of the Fourth Amendment. They
seek to hold Ruecker and Rodriguez liable for the use of this
force.
We hold that the protestors have stated a claim against the
Secret Service agents for violation of the First Amendment.
The protestors have not, however, pleaded sufficient facts to
sustain their Fourth Amendment claim against the police
supervisors. We therefore hold that the excessive force claim
should be dismissed.
MOSS V . U.S. SECRET SERVICE 27
I. Factual and Procedural Background
A. Facts
During the 2004 presidential campaign, President George
W. Bush was scheduled to spend the evening of October 14,
2004 in Jacksonville, Oregon at the Jacksonville Inn
Honeymoon Cottage.1 A group of people opposed to
President Bush organized a demonstration to protest his
policies. They discussed their plans with the Chief of the
Jacksonville Police and with the Jackson County Sheriff,
informing both law enforcement officials that the planned
demonstration was to be multigenerational, peaceful, and
law-abiding. The Jackson County Sheriff agreed to the
proposed protest route and stated that officers in riot gear
would not be deployed unless necessary. The Jacksonville
Police Chief similarly stated that he did not plan to use riot-
gear-clad police.
At about 5:00 p.m. on October 14, 2004, between two and
three hundred anti-Bush protestors gathered in Griffin Park in
Jacksonville. An hour later, the protestors, in accordance
with the demonstration route they had pre-cleared with local
law enforcement, left the park and proceeded to California
Street between Third and Fourth Streets. They stood in front
of the main building of the Jacksonville Inn, approximately
two blocks south of the Inn’s Honeymoon Cottage where the
1
Because this is an appeal from an order denying Defendants’ motion
to dismiss, the facts described are taken from Plaintiffs’ complaint and are
assumed to be true.
28 MOSS V . U.S. SECRET SERVICE
President planned to stay.2 A similarly-sized group of pro-
Bush demonstrators gathered across Third Street from the
anti-Bush protestors.
After the two groups had gathered, the President decided
to stop for dinner at the restaurant at the Jacksonville Inn,
located in the main building. Neither group was aware that
the President would not proceed directly to the Honeymoon
Cottage until approximately 7:00 p.m., an hour after the
demonstrations in front of the Inn began. After learning the
President would be stopping at the restaurant, both pro- and
anti-Bush demonstrators clustered on the side of the street on
which the Inn’s main building is located. The anti-Bush
demonstrators allege that at that point, “[b]oth sets of
demonstrators had equal access to the President during his
arrival at the Jacksonville Inn.”
Shortly before the President was to arrive at the
restaurant, the Secret Service agents on the scene requested
that state and local police officers clear the alley from Third
Street to the patio dining area behind the Inn, as well as the
California Street alley running alongside the Inn. Police
officers, dressed in riot gear, cleared these alleys. They also
blocked Third Street, north of California Street, and began
preventing demonstrators (both pro- and anti-Bush) from
crossing the street at the intersection of Third and California
Streets.
President Bush arrived at the Jacksonville Inn at
approximately 7:15 p.m. and ate dinner on the Inn’s outdoor
patio, which was enclosed by a 6-foot-high wooden fence.
2
A map of the area of Jacksonville in which the relevant events occurred
is attached as an appendix to this opinion.
MOSS V . U.S. SECRET SERVICE 29
This fence, along with the buildings along California Street,
made it impossible for the anti-Bush protestors to see the
President. In addition, these obstacles, as well as police
officers stationed around the perimeter of the Inn, prevented
anyone from walking from the demonstration site to the
President’s location on the patio.
There were several other diners on the patio in addition to
the President’s party. In addition, upstairs from the restaurant
was a group of approximately thirty people at a medical
conference, some of whom ventured downstairs and, finding
an unguarded door to the patio, were able to observe the
President from a distance of approximately fifteen feet.
At about 7:30 p.m., the Secret Service agents directed
state and local police to clear California Street between Third
and Fourth Streets, where the anti-Bush protestors had been
standing. They first directed the police to move the protestors
to the east side of Fourth Street. Subsequently, the agents
asked that the protestors be moved to the east side of Fifth
Street. The agents assert that they told the police that the
reason for these requests was to prevent anyone from being
within handgun or explosive range of the President. The
protestors allege that any security rationale provided by the
agents to the police was false. Neither the pro-Bush
demonstrators nor anyone staying at or visiting the Inn was
required to move or to undergo security screening. The
protestors maintain that, in fact, the real motive for the
agents’ action was the suppression of the protestors’ anti-
Bush viewpoint – that is, that the agents sought to prevent the
President or the media from seeing or hearing the protestors’
message.
30 MOSS V . U.S. SECRET SERVICE
In accordance with the Secret Service directive, police
officers in riot gear formed a line across California Street,
facing the anti-Bush demonstrators and with their backs to the
pro-Bush demonstrators. The officers made amplified
announcements, unintelligible to many of the protestors,
stating that the protestors’ assembly was now unlawful, and
ordering them to move. The protestors allege that the police
failed to ascertain whether the protestors had heard and
understood the direction to move, let alone give them time to
move of their own accord. Instead, officers forcibly moved
the protestors, in some cases violently shoving them, striking
them with clubs, and firing pepper spray bullets.
Once the anti-Bush protestors had been moved to the east
side of Fifth Street, the police officers divided them into two
groups and encircled the groups, preventing some protestors
from leaving the area and separating some families. The
defendant police supervisors Ruecker and Rodriguez were not
present at the protest, but the protestors allege that the two
supervisors nevertheless supervised and directed the police
action and that they were responsible for the training, or lack
thereof, that led to the force used against the protestors.
B. Procedural History
At issue in this appeal is the protestors’ second amended
complaint (“SAC”). Their first amended complaint (“FAC”)
contained several claims for relief arising out of the facts
detailed above. Only two of these claims remain at issue
here: (1) a claim for damages under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), against Secret Service
Agents Wood and Savage in their individual capacities for
viewpoint discrimination in violation of the First
Amendment; and (2) a claim for damages under 42 U.S.C.
MOSS V . U.S. SECRET SERVICE 31
§ 1983 against police supervisors Ruecker and Rodriguez in
their personal capacities for excessive force in violation of the
Fourth Amendment.
After the protestors filed the FAC, the Secret Service
agents moved to dismiss. The district court denied their
motion and also denied them qualified immunity. The agents
appealed to this court. See Moss v. U.S. Secret Service,
572 F.3d 962 (9th Cir. 2009) (“Moss I”). We held that
although the facts the protestors pleaded in the FAC did “not
rule out the possibility of viewpoint discrimination,” they
were insufficient to allege such a claim with the degree of
precision required by Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009), both of which had been decided after the protestors
filed the FAC. Id. at 971–72.
In particular, we held in Moss I that the protestors’
unsupported allegations of “impermissible motive on the
Agents’ part,” a “sub rosa Secret Service policy of
suppressing speech critical of the President,” and “systematic
viewpoint discrimination at the highest levels of the Secret
Service” were, under the post-Iqbal pleading standards,
“conclusory and . . . therefore not entitled to an assumption of
truth.” Moss I, 572 F.3d at 970. We further determined that
the protestors’ allegation that the agents directed the police to
move the protestors to the east side of Fourth Street was
insufficient to support a claim of viewpoint discrimination.
We explained that the Fourth Street location was
“comparable” to the location of the pro-Bush demonstrators
in terms of its proximity to the President when he was dining
at the Inn’s restaurant. Id. at 971. Finally, Moss I held that
the protestors’ allegations concerning the guests and diners at
the Inn who were within close range of the President but not
32 MOSS V . U.S. SECRET SERVICE
subject to screening or required to move “offer[ed] little if
any support for” the protestors’ viewpoint discrimination
claim, because these guests and diners were not seeking to
communicate their views and therefore were not similarly
situated to the protestors. Id. For these reasons, we
concluded that the protestors had “fail[ed] to plead facts
plausibly suggesting a colorable Bivens claim against the
Agents.” Id. Recognizing, however, that the FAC had been
filed before the Supreme Court decided Twombly and Iqbal,
and that it was possible the complaint could be amended to
meet the standards articulated in those cases, we granted the
protestors leave to amend. Id. at 972.
Accordingly, the protestors amended their complaint.
The SAC, the complaint at issue here, raises the same claims
as the FAC but supports these claims with more – and more
detailed – factual allegations.
After the protestors filed the SAC, the Secret Service
agents again sought to dismiss the First Amendment claim.
Reviewing the agents’ motion to dismiss, the magistrate
judge to whom the case was referred concluded that the
allegations in the FAC, held by Moss I to be conclusory, were
in the SAC “supported by factual allegations and . . . thus
entitled to an assumption of truth” and that “[v]iewing all the
factual allegations entitled to assumption of truth in the
SAC,” the protestors had “pled a plausible claim.” The state
police supervisors also filed a motion to dismiss. The
magistrate recommended that this motion also be denied,
explaining that under the framework set forth by this court in
al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), overruled
on other grounds by Ashcroft v. al-Kidd, 131 S. Ct. 2074
(2011), the protestors had pled a plausible § 1983 Fourth
Amendment claim against the supervisors. The magistrate
MOSS V . U.S. SECRET SERVICE 33
determined that neither the Secret Service agents on the First
Amendment claim nor the police supervisors on the Fourth
Amendment claim are entitled to qualified immunity at this
stage.
The district court adopted the magistrate’s report and
recommendation in full. Before us now are the Secret
Service agents’ and police supervisors’ appeals of the district
court’s denial of qualified immunity.
We begin by briefly discussing the framework for
evaluating whether qualified immunity is appropriate, as that
framework is pertinent to both of the claims at issue. We
then address the First Amendment and Fourth Amendment
claims in turn.
II. Discussion
A. Qualified Immunity Framework
“[Q]ualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
purpose of such immunity is to ensure that public officials
may be held “accountable when they exercise power
irresponsibly,” while “shield[ing]” them “from harassment,
distraction, and liability when they perform their duties
reasonably.” Id.
To determine whether a government official is entitled to
qualified immunity, we conduct a two-prong analysis. See,
34 MOSS V . U.S. SECRET SERVICE
e.g., Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).
Government officials are denied qualified immunity only if
(1) “the facts that a plaintiff has alleged . . . make out a
violation of a constitutional right”; and (2) “the right at issue
was clearly established at the time of [the] defendant’s
alleged misconduct.” Pearson, 555 U.S. at 232 (internal
quotation marks omitted); see Mattos, 661 F.3d at 440. These
prongs need not be addressed in order; rather courts may
“exercise their sound discretion in deciding which of the two
prongs . . . should be addressed first in light of the
circumstances in the particular case at hand.” Pearson,
555 U.S. at 236.
The first prong assesses whether the wrong a plaintiff
alleges is, in fact, a constitutional violation. The second
prong assesses the objective reasonableness of the official’s
conduct in light of the decisional law at the time: A right is
clearly established for purposes of qualified immunity only
where the contours of the right are “sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Dunn v. Castro, 621 F.3d 1196, 1200
(9th Cir. 2010) (internal quotation marks omitted). “Because
qualified immunity is an immunity from suit rather than a
mere defense to liability, courts have also evaluated the
sufficiency of the allegations of the defendant’s personal
involvement in the deprivation of the right at the second stage
of the qualified immunity analysis.” al-Kidd v. Ashcroft,
580 F.3d at 964 (internal citation, quotation marks, and
emphasis omitted); see Iqbal, 129 S. Ct. at 1946.
In analyzing the protestors’ First Amendment claim
against the Secret Service agents, we begin by addressing the
first prong of the qualified immunity framework – whether
the facts the protestors have alleged make out a constitutional
MOSS V . U.S. SECRET SERVICE 35
violation – and then move to the next prong – whether the
right the protestors allege was violated was clearly
established at the time of the protest. We proceed in this
order because, in this instance, one cannot sensibly determine
the reasonableness of the agents’ actions without carefully
identifying the right they are alleged to have violated and the
conduct by which they are alleged to have done so.
With respect to the excessive force claim, we ultimately
hold that the protestors have alleged insufficient facts to state
a claim against the defendant police supervisors in particular.
We nevertheless conduct both prongs of the qualified
immunity analysis to clarify which parts of the SAC are
sufficient and in what respects it must be amended to state a
claim.
B. First Amendment
1.
The anti-Bush protestors claim that the Secret Service
agents sought to suppress political speech undertaken on a
public street based on the viewpoint of that speech. This
claim strikes at the core of the First Amendment.
Public streets are “the archetype of a traditional public
forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988), as they
have “immemorially been held in trust for the use of the
public,” id. at 481 (quoting Hague v. CIO, 307 U.S. 496, 515
(1939)). In such “traditional public fora, the government’s
ability to permissibly restrict expressive conduct is very
limited. . . . First Amendment protections are strongest, and
regulation is most suspect.” Long Beach Area Peace Network
v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009)
36 MOSS V . U.S. SECRET SERVICE
(internal quotation marks and citations omitted). Moreover,
“[p]olitical speech is core First Amendment speech, critical
to the functioning of our democratic system.” Id. at 1021.
“Traditional public fora,” such as the public streets upon
which the anti-Bush protestors sought to demonstrate “gain
even more importance when they are host to core First
Amendment speech.” Id. at 1022.
As the Supreme Court has repeatedly reiterated,
government regulation of political speech in a public forum
based on its content is presumptively unconstitutional. See
United States v. Playboy Entm’t Group, 529 U.S. 803, 817
(2000); Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819, 828 (1995); R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992). “When the government targets not subject
matter, but particular views taken by speakers on a subject,
the violation of the First Amendment is all the more blatant.”
Rosenberger, 515 U.S. at 829. “Viewpoint discrimination is
thus an egregious form of content discrimination,” one from
which “[t]he government must abstain.” Id. The government
may not regulate speech based on “the specific motivating
ideology or the opinion or perspective of the speaker,” id.;
nor may it “favor some viewpoints or ideas at the expense of
others,” Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 804 (1984). We recently summarized these
longstanding principles as instructing that “government may
not favor speakers on one side of a public debate.” Hoye v.
City of Oakland, 653 F.3d 835, 849 (9th. Cir. 2011).3
3
Hoye was, of course, decided after the incident giving rise to this case.
W e cite it only for its succinct précis of many years of precedents on
viewpoint discrimination.
MOSS V . U.S. SECRET SERVICE 37
A restriction on speech is viewpoint-based if (1) on its
face, it distinguishes between types of speech or speakers
based on the viewpoint expressed; or (2) though neutral on its
face, the regulation is motivated by the desire to suppress a
particular viewpoint. See Berger v. City of Seattle, 569 F.3d
1029, 1051 (9th Cir. 2009) (en banc) (citing Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642–43 (1994)); ACLU v.
City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006) (citing
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
The anti-Bush protestors allege both that the agents’ actions
were facially viewpoint discriminatory – that is, that the
agents explicitly treated pro- and anti-Bush demonstrators
differently – and that their actions, even if facially neutral,
were motivated by an impermissible purpose to discriminate
against the anti-Bush viewpoint the protestors expressed.
a.
In the FAC, the anti-Bush protestors alleged that the
Secret Service directed police to move them to the east side
of Fourth Street, approximately the same distance from where
the President was dining as the pro-Bush demonstrators.
Moss I, 572 F.3d at 971. Moss I held this allegation
insufficient to support a plausible claim of viewpoint
discrimination, explaining:
If the Agents’ motive in moving Plaintiffs
away from the Inn was . . . suppression of
Plaintiffs’ anti-Bush message, then
presumably, they would have ensured that
demonstrators were moved to an area where
the President could not hear their
demonstration, or at least to an area farther
from the Inn then [sic] the position that the
38 MOSS V . U.S. SECRET SERVICE
pro-Bush demonstrators occupied. Instead,
according to the complaint, the Agents simply
instructed state and local police to move the
anti-Bush protestors to a location situated a
comparable distance from the Inn as the other
demonstrators, thereby establishing a
consistent perimeter around the President.
Id.
Now, in the SAC, the protestors allege that the agents did
indeed direct that the anti-Bush demonstration be moved
farther from the Inn than the pro-Bush demonstration. The
SAC avers that the Secret Service agents not only directed the
police to move the anti-Bush protestors “to the east side of
Fourth Street,” but that the agents “subsequently” directed
that the protestors be moved “to the east side of Fifth Street.”
The pro-Bush demonstrators were left in place on the west
side of Third Street. As a result, the anti-Bush protestors
were more than a block farther from where the President was
dining than the pro-Bush demonstrators, and, one can infer,
were therefore less able to communicate effectively with the
President, media, or anyone else inside or near the Inn.
The agents object to the protestors’ failure to plead
specifically that the President could no longer hear their
protests once they were moved. While such an allegation
would strengthen the protestors’ complaint, its absence does
not make their claim implausible. Regardless of whether the
President and those near him could actually hear the
protestors after they had been moved, it is a plausible
inference from the facts alleged that the protestors’ chants
would be less intelligible from two blocks away.
MOSS V . U.S. SECRET SERVICE 39
In addition, and critically, if allowed to remain in their
initial locations, members of both the pro- and anti-Bush
groups would have been standing along the motorcade route
by which the President left the restaurant. However, once the
Secret Service agents moved them, the anti-Bush protestors
were two blocks away from the motorcade route, while the
pro-Bush demonstrators remained along it, and, according to
the SAC, could “cheer for President Bush as he traveled to
the Honeymoon Cottage.”
In their brief, the agents insist that the President’s
motorcade route between the restaurant and the Honeymoon
Cottage is “irrelevant,” because the “armored limousine” in
which the President was traveling had far greater security
than the open-air patio where the President dined. This
argument is unavailing for two reasons: First, it rests on facts
outside of the complaint and is therefore not properly
cognizable at this stage. Second, the assertion of a viewpoint-
neutral rationale cannot transform a facially discriminatory
policy – allowing one group of demonstrators access to the
President while moving protestors with the opposing view
further away – into a valid one. See ACLU, 466 F.3d at 793.
In sum, the anti-Bush protestors have alleged that, at the
direction of the Secret Service agents, they were moved to a
location where they had less opportunity than the pro-Bush
demonstrators to communicate their message to the President
and those around him, both while the President was dining at
the Inn and while he was en route to the Honeymoon Cottage.
These allegations support a plausible claim of viewpoint
discrimination.
40 MOSS V . U.S. SECRET SERVICE
b.
In addition to these allegations of facial viewpoint
discrimination, the anti-Bush protestors also allege in the
SAC that the Secret Service agents acted with an
impermissible motive of shielding the President from those
expressing disapproval of him or his policies. As the
Supreme Court has explained,
[t]he principal inquiry in determining content
[or viewpoint] neutrality . . . is whether the
government has adopted a regulation of
speech because of disagreement with the
message it conveys. . . . The government’s
purpose is the controlling consideration.
Ward, 491 U.S. at 791 (emphasis added) (internal citations
omitted). Thus, if true, the motive allegation would be
sufficient in and of itself to support a claim of viewpoint
discrimination in violation of the First Amendment. That is,
it would be adequate to establish a First Amendment violation
even if there had been no pro-Bush demonstrators and
therefore no differential treatment.
As noted, the Secret Service agents ostensibly told the
police on the scene that their reason for moving the anti-Bush
protestors was to ensure that nobody was within handgun or
explosive range of the President. The protestors allege that
even if the agents did give the police such an explanation, it
was merely a pretext and that the agents were in actuality
motivated by the determination to suppress the protestors’
anti-Bush message. “[A] restriction on expressive activity is”
only content- or viewpoint-neutral if it is “based on a
non-pretextual reason divorced from the content of the
MOSS V . U.S. SECRET SERVICE 41
message attempted to be conveyed.” United States v.
Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000). At this stage,
the protestors need only plead facts that make plausible their
claim that they were moved because of their viewpoint – that
the security rationale, if indeed offered by the agents at all,
was pretextual. The protestors, in the SAC, have met this
burden.
First, the SAC states that it would have been impossible
from where the protestors were initially located – and
certainly from the east side of Fourth Street, where the Secret
Service agents initially directed they be moved – for anyone
to reach the President with a handgun or an explosive. The
police cleared the alley between where the protestors were
demonstrating and the Inn where the President dined, and
officers, clad in riot gear, blocked any access to that alley. In
addition, there were buildings and a six-foot high fence
blocking any contact between the anti-Bush protestors and the
President. None of the protestors attempted to surmount
these obstacles to get access to the President. The protestors
therefore assert they posed no threat to the President, and
there was thus no reason for them to be moved from their
initial location, and certainly no reason for them to be pushed
beyond the east side of Fourth Street to the east side of Fifth
Street. Moreover, according to the SAC, the obstacles
between the anti-Bush protestors and the President were
similar to those faced by the pro-Bush demonstrators. If the
location of the anti-Bush protestors had been a significant
security risk, they reason, so too would have been that of the
pro-Bush demonstrators.
Second, the Secret Service agents allowed the pro-Bush
demonstrators to gather along the motorcade route, well
within handgun or explosive “range of the President as he
42 MOSS V . U.S. SECRET SERVICE
traveled from the Inn to the Honeymoon Cottage where he
was staying,” As noted, the Secret Service agents argue that
this distinction does not indicate that their security rationale
was pretextual, because the “armored limousine” in which the
President traveled “provide[d] a substantially higher degree
of protection from potential external threats” than did the
open-air patio where he ate dinner. But one could view this
explanation as further evidence of an impermissible motive:
Even where there admittedly was no security threat, the anti-
Bush demonstrators were forcibly located farther away from
the President than the pro-Bush demonstrators, such that the
pro-Bush demonstrators were within sight and hearing range
of the President while the anti-Bush protestors were two
blocks away.
Finally, the SAC elaborates in much more detail a
conclusory allegation in the FAC that the Secret Service
maintains “an officially authorized pattern and practice” of
shielding the President from dissent. Moss I held that the
pattern and practice allegation in the FAC, “without any
factual content to bolster it, is just the sort of conclusory
allegation that the Iqbal Court deemed inadequate.” Moss I,
572 F.3d at 970. The SAC provides this additional factual
content.
The SAC provides twelve detailed allegations, relying on
published reports, of similar instances of viewpoint
discrimination against protestors expressing negative views
of the President. For example, during a speech given by
President Bush, those expressing critical views of the
President were sequestered approximately “one-third of a
MOSS V . U.S. SECRET SERVICE 43
mile away from where [he] was speaking,” while those
supporting the President were permitted “to stand alongside
the motorcade route right up to where the President” was
located.
In addition, the SAC alleges that a policy and practice of
suppressing criticism of the President is set forth in the
Presidential Advance Manual, a redacted copy of which was
attached to the complaint. The Advance Manual directs the
President’s advance team to “work with the Secret Service
and have them ask the local police department to designate a
protest area where demonstrators can be placed, preferably
not in view of the event site or motorcade route.”4 (emphasis
added). Removal of protestors opposed to the President, is,
of course, precisely what the anti-Bush protestors allege
happened to them. While the Advance Manual is designed to
guide the President’s political advance team, not the Secret
Service, it itself suggests that the Secret Service may play a
part in ensuring that protestors are contained to an area away
from the President. Furthermore, the protestors allege that, in
this instance, because of the sudden change in the President’s
plans, the advance team had insufficient time to “suppress the
protest. Instead,” they “relied on the Secret Service to do so.”
The protestors’ allegations that the agents’ conduct in this
case accords with viewpoint discriminatory practices
instituted in other, similar, circumstances and encouraged by
4
It is clear from the context that the manual is referring only to
demonstrators opposed to the President. The following paragraph, for
example, suggests that while demonstrators ought to be moved to a protest
area out of view of the event or motorcade route, “rally squads” of
supporters “countering” the protestors’ message ought to be strategically
placed in view of the media.
44 MOSS V . U.S. SECRET SERVICE
the President’s Advance Manual support the plausibility of
the inference that, in this case, the Secret Service agents
directed that the anti-Bush protestors be moved because of
their viewpoint.
In sum, the anti-Bush protestors have pleaded
nonconclusory factual allegations that they were treated
differently than the pro-Bush demonstrators; that any
security-based explanation for this differential treatment
offered by the Secret Service agents was pretextual; and that
the agents’ directives in this case accord with a pattern of
Secret Service action suppressing the speech of those opposed
to the President.5 These allegations, taken together, are
sufficient to allow the protestors’ claim of viewpoint
discrimination to proceed.
2.
Even if they acted unconstitutionally, the Secret Service
agents are entitled to qualified immunity unless the
“contours” of the First Amendment right they violated were
“sufficiently clear that a reasonable official would understand
5
The SAC also contains allegations that there were bystanders at the Inn
where the President ate who were neither screened for weapons nor
required to move farther from the President. The presence of these
unscreened bystanders, the protestors argue, is further evidence that the
security rationale offered by the Secret Service agents was pretextual. The
agents argue that we are foreclosed, on law of the case grounds, by our
previous decision in Moss I from considering the way in which the agents
treated bystanders at the Inn. W hether this is so is a difficult question.
Because we hold that the protestors other allegations are sufficient to
support a plausible claim of viewpoint discrimination, we do not decide
at this juncture whether Moss I prevents us from considering the
protestors’ bystander allegations.
MOSS V . U.S. SECRET SERVICE 45
that what he is doing violates that right.” Saucier v. Katz,
533 U.S. 194, 202 (2001) (internal quotations and citations
omitted). The Secret Service agents contend that even if the
protestors have established a plausible claim of viewpoint
discrimination, they have failed to demonstrate “that the right
they claim was infringed was clearly established in the
specific context at issue here.” They characterize the
qualified immunity question as whether
every reasonable officer . . . would have
understood that moving the [anti-Bush
protestors] only a half block farther from the
President than his supporters were located
constituted viewpoint discrimination in
violation of the First Amendment.
This statement inaccurately characterizes both the protestors’
allegations and the governing law.
First, as a factual matter, the parties contest the relevant
distances. The protestors allege that they were moved over
a block farther from the Inn than the pro-Bush demonstrators.
Further, although the agents repeatedly characterize the
locations of the pro- and anti-Bush protestors as
“comparable,” we have already noted that based on the facts
alleged, there are relevant ways in which the distances were
not comparable.
In addition, the Secret Service agents focus solely on the
distance between the protestors and the President while he
was dining. They do not address the allegation that the pro-
Bush demonstrators were permitted to remain along the
President’s motorcade route, while the anti-Bush protestors
were kept away. This additional discrepancy is quite relevant
46 MOSS V . U.S. SECRET SERVICE
in assessing whether a reasonable agent could have believed
the direction to relocate the anti-Bush protestors was
consistent with the First Amendment.
More fundamentally, the protestors’ claim is not simply
that they were moved, but that they were relocated because
they criticized the President. The protestors allege that if the
agents asserted a security rationale for moving the protestors,
that rationale was false. That is, they allege that the agents’
action was both facially discriminatory and driven by an
improper motive. We must “accept all factual allegations in
the complaint as true and construe the pleadings in the light
most favorable to the nonmoving party.” Knievel v. ESPN,
393 F.3d 1068, 1072 (9th Cir. 2005). Therefore, taking the
protestors’ allegation of discriminatory motive as true, it is
clear that no reasonable agent would think that it was
permissible under the First Amendment to direct the police to
move protestors farther from the President because of the
critical viewpoint they sought to express.
The agents suggest that because there are no cases with
similar fact patterns, a reasonable agent could not have
known that their conduct was unconstitutional. But the denial
of qualified immunity does “not require a case directly on
point.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).
Rather, it requires that “existing precedent must have placed
the statutory or constitutional question beyond debate.” Id.
It is “beyond debate” that, particularly in a public forum,
government officials may not disadvantage speakers based on
their viewpoint.
MOSS V . U.S. SECRET SERVICE 47
As decades of Supreme Court doctrine make clear, “[i]t
is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.”
Rosenberger, 515 U.S. at 828 ; see, e.g., R.A.V., 505 U.S. at
391-92; Police Dep't of Chicago v. Mosley, 408 U.S. 92,
95–96 (1972); see also Metro Display Adver. v. City of
Victorville, 143 F.3d 1191, 1195 (9th Cir. 1998). The
“government may not grant the use of a forum to people
whose views it finds acceptable, but deny use to those
wishing to express less favored or more controversial views,”
for “above all else, the First Amendment means that
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.” Mosley,
408 U.S. at 95–96. Indeed, in a case closely on point, the
D.C. Circuit held in Mahoney v. Babbitt that the government
could not grant permits to demonstrate along the Inaugural
Parade route to those supportive of the President and refuse
permits to those opposed. 105 F.3d 1452, 1459 (D.C. Cir.
1997).
The anti-Bush protestors have plausibly alleged that the
Secret Service agents acted with the sole intent to
discriminate against them because of their viewpoint; this
intent can never be objectively reasonable. After discovery
or trial, the evidence could demonstrate that the agents did
not, in fact, act with viewpoint discriminatory intent or that,
notwithstanding some discriminatory motivation, they acted
with the primary intent to protect the President and therefore
would have taken the same actions absent any discriminatory
motive. In that case, they are, of course, free to renew their
qualified immunity motion. See Behrens v. Pelletier,
516 U.S. 299, 306 (1996); Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). However, the agents are not entitled to qualified
immunity at this stage.
48 MOSS V . U.S. SECRET SERVICE
* * *
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
MOSS V . U.S. SECRET SERVICE 49
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
50 MOSS V . U.S. SECRET SERVICE
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.
C. Fourth Amendment
To succeed on their Fourth Amendment claim, the
protestors must allege facts from which we could plausibly
infer: (1) that excessive force was used against them; (2) that
the law at the time of the protest clearly established that the
force used was unconstitutionally excessive; and (3) that even
though they were not present at the demonstration,
Superintendent Ruecker and Captain Rodriguez played a
sufficient role in the use of excessive force that they may be
held liable for it. While the protestors’ allegations are
sufficient to support a claim of excessive force and to deny
qualified immunity to those who might be liable for the use
MOSS V . U.S. SECRET SERVICE 51
of that force, they have pleaded no facts that would allow us
to make a plausible inference that Ruecker and Rodriguez
were in any way involved in the use of excessive force such
that they may be held liable for it.
1.
Fourth Amendment claims of excessive force are
evaluated according to the framework established by Graham
v. Connor, 490 U.S. 386 (1989). See Davis v. City of Las
Vegas, 478 F.3d 1048, 1053-54 (9th Cir. 2007). Under
Graham,
[d]etermining whether the force used to effect
a particular seizure is reasonable under the
Fourth Amendment requires a careful
balancing of the nature and quality of the
intrusion on the individual’s Fourth
Amendment interests against the
countervailing governmental interests at stake.
Graham, 490 U.S. at 396 (internal quotation marks and
citations omitted). Graham cautioned that reasonableness is
to be judged not “with the 20/20 vision of hindsight,” but
“from the perspective of a reasonable officer on the scene.”
Id.
We first “assess the quantum of force used” and then
“measure the governmental interests at stake by evaluating a
range of factors,” including: (1) “the severity of the crime at
issue”; (2) the extent to which “the suspect poses an
immediate threat to the safety of the officers or others”; (3)
and “whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.” Davis, 478 F.3d at 1054
52 MOSS V . U.S. SECRET SERVICE
(internal quotation marks and citations omitted). In
considering whether, from the perspective of an officer on the
scene, “the totality of the circumstances justifie[d]” the force
used, additional factors may also be relevant. Forrester v.
City of San Diego, 25 F.3d 804, 806 n.2 (9th Cir. 1994). For
example, we may look to the alternatives available to the
officer at the time. See Davis, 478 F.3d at 1054.
There is little doubt that under this framework, the force
alleged here was excessive. The protestors allege that without
ensuring that they heard the police warning that instructed
them to move, and without giving them time to move of their
own accord, the police, “including officers clad in riot gear,
forced the anti-Bush demonstrators to move . . . , in some
cases by violently shoving” them, “striking them with clubs
and firing pepper spray bullets at them.” Once on the east
side of Fifth Street, the police “divided the [anti-Bush
protestors] into two groups, encircling each group,” and
“separat[ing]” families, “including children, some of whom
were lost, frightened and traumatized.” Although some
protestors attempted to leave the area, they were prevented
from doing so.
To be sure, the government interest at stake – the
protection of the President – is of the highest significance.
See, e.g., Hunter v. Bryant, 502 U.S. 224, 229 (1991).
However, an examination of the Graham factors indicates
that the force used was excessive even to protect this interest.
“[T]he most important single element” of the Graham
framework is “whether the suspect poses an immediate threat
to the safety of the officers or others.” Chew v. Gates,
27 F.3d 1432, 1441 (9th Cir. 1994). There is no indication
that the anti-Bush protestors posed such a threat to the
MOSS V . U.S. SECRET SERVICE 53
President, the police officers, or anyone else. The SAC
alleges that the protestors were not close enough to the
President to harm him and that their protest was entirely
peaceful.
The other two Graham factors also favor the protestors.
They were not committing, and had not committed, any
crime. Instead, they were engaging in a peaceful
demonstration, the location and timing of which had
previously been approved by local police. Nor is there any
indication that they were disobeying the commands of the
officers or resisting in any way.
Furthermore, it is a plausible inference from the facts
alleged that there were less harmful alternatives available that
a reasonable officer on the scene should have considered.
According to the SAC, the police did not attempt to contact
the protest’s organizers, whose contact information they had,
nor did they give the group sufficient notice or time to move
on their own before being forcibly moved.
The protestors allege that the police used violent physical
force and pepper spray on a group of obedient, peaceful
protestors. As compared to similar cases, the force used was
at least as violent, with no greater justification. For example,
we held in Headwaters Forest Defense v. County of
Humboldt, 276 F.3d 1125, 1131 (2002), that the use of pepper
spray against peaceful protestors, even when those protestors
linked themselves together and refused to release the locks,
was unreasonable. In P.B. v. Koch, 96 F.3d 1298, 1304 (9th
Cir. 1996), we held that “slapping, punching, and choking”
students when there was no reason to use force was
excessive. Under these precedents, the protestors’ allegations
indubitably support a plausible claim of excessive force.
54 MOSS V . U.S. SECRET SERVICE
As the cases just discussed indicate, the unreasonableness
of this use of force was clearly established at the time of the
protest. That conclusion is inescapable even if we focus only
on one aspect of the force used. The protestors allege that the
police officers used pepper spray bullets, even though the
demonstrators were peaceful and cooperative. It was clearly
established at the time of the protest that the use of pepper
spray on an individual who is already under control
constitutes excessive force in violation of the Fourth
Amendment. See Headwaters Forest Def., 276 F.3d at 1130;
LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir.
2000).
2.
The protestors have not, however, provided sufficient
allegations to establish a plausible claim against Ruecker and
Rodriguez, in particular, for the use of the excessive force.
Ruecker and Rodriguez were not on the scene at the time of
the demonstration, but they were the supervisors of the
officers who were on the scene. Supervisors may not be held
liable under § 1983 for the unconstitutional actions of their
subordinates based solely on a theory of respondeat superior.
Iqbal, 129 S. Ct. at 1948.
We recently summarized the circumstances under which
supervisors may be held liable under § 1983 as follows:
(1) for setting in motion a series of acts by
others, or knowingly refusing to terminate a
series of acts by others, which they knew or
reasonably should have known would cause
others to inflict constitutional injury; (2) for
culpable action or inaction in training,
MOSS V . U.S. SECRET SERVICE 55
supervision, or control of subordinates; (3) for
acquiescence in the constitutional deprivation
by subordinates; or (4) for conduct that shows
a “reckless or callous indifference to the rights
of others.”
al-Kidd, 580 F.3d at 965 (quoting Larez v. City of L.A.,
946 F.2d 630, 646 (9th Cir. 1991)).6 The SAC is inadequate
to establish that any of these circumstances apply here. The
allegations regarding Ruecker and Rodriguez’s role in the use
of excessive force are conclusory; none is supported by
sufficient – or, for that matter, any – factual content that
would allow it to meet the pleading standard articulated in
Iqbal.
First, the protestors allege that Ruecker, as
“Superintendent of the Oregon State Police” was “responsible
for directing the operations of the Oregon State Police and
supervising the law enforcement officers and agents acting
under his authority.” Similarly, they allege that Rodriguez,
as Captain of the Southwest Regional Headquarters of the
Oregon State Police, was “responsible for directing the
operations of said Headquarters and supervising the law
enforcement officers and agents acting under his authority.”
These allegations are merely recitations of the organizational
role of these supervisors. The protestors make no allegation
6
Al-Kidd was decided after Iqbal. The extent to which its supervisory
liability framework is consistent with that decision and remains good law
has been debated. See, e.g., Al-Kidd, 598 F.3d at 1141 (O’Scannlain, J.,
dissenting from denial of rehearing en banc); see also Bayer v. Monroe
Cnty. Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir. 2009);
Maldonado v. Fontanes, 568 F.3d 263, 274 n.7 (1st Cir. 2009). Because
the protestors do not allege sufficient facts to meet the standard set forth
in al-Kidd, we need not consider that debate.
56 MOSS V . U.S. SECRET SERVICE
that the supervisors took any specific action resulting in the
use of excessive force by police officers on the scene of the
anti-Bush demonstration.
We have “never required a plaintiff to allege that a
supervisor was physically present when the injury occurred.”
Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). But
§ 1983 plaintiffs nevertheless must allege some “culpable
action or inaction” for which a supervisor may be held liable.
Larez, 946 F.2d at 645. In an effort to meet this requirement,
the protestors allege that Rodriguez “and other individual
State and Local Police Defendants,” including, we assume for
present purposes, Ruecker, “personally directed and
approved of the actions of the police.” But they do not
specify which actions Ruecker or Rodriguez directed and
approved. In particular, they do not allege that the
supervisors directed or approved the tactics – the shoving, use
of clubs, and shooting of pepper spray bullets – employed by
the officers in moving the protestors.
Finally, the protestors claim that “the use of
overwhelming and constitutionally excessive force against
them” was “the result of inadequate and improper training,
supervision, instruction and discipline . . . under the personal
direction . . . of the State and Local Police Defendants.”
However, this allegation is also conclusory. The protestors
allege no facts whatsoever about the officers’ training or
supervision, nor do they specify in what way any such
training was deficient.
The protestors’ reliance on Connick v. Thompson, 131
S. Ct. 1350 (2011), is misplaced. Connick reaffirmed the
possibility – left open in Canton v. Harris, 489 U.S. 378
(1989) – that there are circumstances in which a need for
MOSS V . U.S. SECRET SERVICE 57
training is so obvious that a city that fails to provide it may be
held to have been deliberately indifferent even without a
pattern of constitutional violations by city employees. Id. at
1361 (citing Canton, 489 U.S. at 390 n.10). This concept is
inapposite here. There is no debate in this case about the
need for training police officers on the constitutional use of
force. The questions here are whether any such training they
received was deficient, and, if so, whether the defendant
police supervisors were responsible for that deficiency. The
protestors have alleged no facts that would demonstrate
either.
We hold that the protestors have not pleaded sufficient
allegations to support a claim of excessive force against
Ruecker and Rodriguez. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. It is
possible, however, that the complaint could be saved by
amendment. Because the district court held that the SAC was
sufficient to state a claim against the police supervisors, it did
not, of course, consider whether the protestors ought to be
given leave to amend to cure any deficiencies. For us to
decide that question, ordinarily addressed to the district
court’s sound discretion, see, e.g., Mir v. Fosburg, 646 F.2d
342, 347 (9th Cir. 1980), would be to usurp the district
court’s authority. Cf. Iqbal v. Ashcroft, 574 F.3d 820, 821
(2d Cir. 2009). We therefore remand to the district court for
dismissal of the protestors’ excessive force claim and for a
determination in the first instance of whether the protestors
ought to be given leave to amend their complaint.
58 MOSS V . U.S. SECRET SERVICE
III. Conclusion
In sum, we hold that the protestors have alleged a
plausible First Amendment claim and that Agents Wood and
Savage are not, at this time at least, entitled to qualified
immunity. We therefore AFFIRM the district court’s ruling,
denying the Secret Service agents’ motion to dismiss that
claim. However, we hold that the protestors have not alleged
sufficient facts to support a plausible Fourth Amendment
claim against police supervisors Ruecker and Rodriguez.
Therefore, we REVERSE the district court’s denial of the
supervisors’ motion to dismiss and REMAND to that court
with instructions to dismiss protestors’ Fourth Amendment
claim and to determine whether the protestors ought to be
given leave to amend.
MOSS V . U.S. SECRET SERVICE 59
Appendix