Moss v. United States Secret Service
675 F.3d 1213
| 9th Cir. | 2012Background
- During the 2004 presidential campaign, anti-Bush protesters demonstrated in Jacksonville, Oregon near the President’s dining location under police supervision.
- Secret Service agents Wood and Savage directed police to move protesters to maintain distance from the President, allegedly suppressing their anti-Bush speech.
- Police supervisors Ruecker and Rodriguez allegedly supervised the officers and actions taken, but were not present on scene.
- Protesters allege the actions were motivated by viewpoint discrimination, not legitimate security concerns.
- The SAC alleges a broader pattern and practice of suppressing dissent, including references to the Presidential Advance Manual.
- District court denied qualified immunity to the Secret Service agents on the First Amendment claim and to the police supervisors on the Fourth Amendment claim; the appeals court reverses in part and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether protesters plausibly pleaded First Amendment violation | Moss alleges viewpoint discrimination. | Agents did not discriminate based on viewpoint. | Plausible First Amendment claim against agents. |
| Whether the right was clearly established; qualified immunity for agents | Discrimination based on anti-Bush viewpoint violated clearly established law. | No clearly established precedent in exact facts. | Not entitled to qualified immunity at this stage on the First Amendment claim. |
| Whether supervisors Ruecker and Rodriguez pleaded sufficient excessive-force allegations | Supervisors directed or approved conduct causing excessive force. | Allegations were conclusory and insufficient. | Excessive-force claim against supervisors dismissed and remanded for possible amendment. |
Key Cases Cited
- Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (traditional public forum; core First Amendment protection in public streets)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995) (viewpoint discrimination unconstitutional in public forums)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (U.S. 1992) (content- and viewpoint-based regulation barred)
- Mosley v. City of Chicago, 408 U.S. 92 (U.S. 1972) (content neutrality; government cannot restrict speech based on message)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (government neutrality in regulating expressive activity)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-prong qualified immunity analysis)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (modifies sequencing of qualified immunity prongs)
- al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (supervisory liability framework under §1983)
- Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (earlier dismissal standards under Twombly/Iqbal; pleading sufficiency)