Moss v. United States Secret Service
711 F.3d 941
9th Cir.2013Background
- Protesters opposing President Bush gathered two blocks from his Jacksonville Inn appearance in Jacksonville, Oregon (2004).
- Secret Service directed local police to move anti-Bush demonstrators farther from the President while pro-Bush demonstrators remained closer to the motorcade route.
- Protesters allege the security rationale was pretextual and aimed at suppressing anti-Bush speech in violation of the First Amendment.
- The district court denied motions to dismiss and denied qualified immunity; Moss I affirms that pleading standards require more than conclusory allegations.
- The Second Amended Complaint (SAC) adds detailed factual claims of viewpoint discrimination and related conduct by agents Wood and Savage.
- Panel holds First Amendment claims plausible and denies qualified immunity; Fourth Amendment excessive force claims against police supervisors Ruecker and Rodriguez are not adequately pleaded and are remanded for dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a PLAUSIBLE First Amendment viewpoint-discrimination claim? | Moss alleges deliberate, contextual moving of anti-Bush protestors to suppress speech. | Actions were neutral security perimeter decisions, not viewpoint-based discrimination. | Yes, plausible First Amendment claim against agents. |
| Was the right to freedom from viewpoint discrimination clearly established for qualified immunity purposes in this context? | Existing precedent warned against viewpoint discrimination in public forums and pretextual security rationales. | No closely on-point case; qualified immunity should apply absent clearly established law in this precise fact pattern. | No; panel erred by treating the right too generally; right to be free from viewpoint discrimination was clearly established in context. |
| Are the police supervisors liable for Fourth Amendment excessive-force claims? | Ruecker and Rodriguez supervised the force and training that led to pepper spray and shoving. | Supervisors were not personally involved; allegations are conclusory and insufficient to show direct causation. | Yes as to denial of dismissal for excessive force against supervisors remanded for dismissal; current pleadings insufficient. |
Key Cases Cited
- Hill v. Colorado, 530 U.S. 703 (2000) (upheld neutral buffer zones; neutrality requirement emphasized)
- United States v. Grace, 461 U.S. 171 (1983) (no right to protest in all places at all times; context matters)
- Mahoney v. Babbitt, 105 F.3d 1452 (D.C. Cir. 1997) (pattern and practice in denial of permits; viewpoint discrimination context)
- Saucier v. Katz, 533 U.S. 194 (2001) (two-step qualified immunity framework; contours must be clearly established)
- Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (limits general, high-level right-clarity analysis; requires more particularized understanding)
- Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002) (separate constitutional and clearly established-right inquiries in qualified immunity)
- Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002) (pepper spray and force against peaceful protestors analyzed for reasonableness)
- P.B. v. Koch, 96 F.3d 1298 (9th Cir. 1996) (excessive-force standards; evaluation of force against non-resisting demonstrators)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint neutrality in public forums; disfavor of certain viewpoints prohibited)