Pahls v. Thomas, 718 F.3d 1210

Background

Private property owners and protestors gathered on opposite sides of a President Bush visit in Los Ranchos; a southern checkpoint segregated demonstrators from a closer view.
Secret Service (Sheehan) set inner security perimeter; Bernalillo County Sheriff’s deputies (Thomas, Mims) controlled the outer perimeter and enforced a move-south policy.
Bush supporters stood on private property north of the checkpoint; protesters were directed to stay at the southern checkpoint or on public shoulders facing away from the motorcade.
Plaintiffs alleged viewpoint discrimination under §1983 and Bivens, asserting their anti-Bush speech was treated less favorably than pro-Bush speech.
District court denied qualified immunity to all three officials; it found potential facts suggesting discriminatory motive and personal involvement.
On appeal, the court held that, despite two agencies’ policies, no defendant acted with a discriminatory purpose; qualified immunity was warranted for all three.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs proved personal involvement for §1983/Bivens liability	Plaintiffs assert defendants directed or implemented viewpoint-discriminatory policies.	Defendants contend liability requires their own direct actions showing discriminatory purpose.	District court error; individual liability requires specific actions; reversal warranted for qualified immunity.
Whether the district court correctly analyzed a potential First Amendment viewpoint-discrimination violation	Disparate treatment shows viewpoint discrimination against anti-Bush speech.	Policies were viewpoint-neutral; any effect was incidental, not purposeful discrimination.	No clearly established violation; no proof of discriminatory purpose by each defendant.
Whether two sovereigns’ policies can be treated collectively to find a constitutional violation	Joint operation of federal and local policies created viewpoint discrimination.	Each defendant operated under independent, agency-specific policies; cannot aggregate.	Disparate impact alone insufficient; requires individualized discriminatory purpose.
Whether the Secretary/SC policy and BCSD policy were applied with discriminatory purpose	Move-south policy targeted anti-Bush demonstrators; Sheehan allowed property-based exception for supporters.	Decision aligns with neutral security and property-right policies; no intentional bias shown.	Insufficient evidence of purpose to discriminate; qualified immunity entitles Sheehan, Thomas, Mims.

Key Cases Cited

Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral vs. content-based scrutiny framework)
Iqbal v. Ashcroft, 556 U.S. 662 (2009) (requires proof of discriminatory purpose for §1983/Bivens claims)
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (motive-proof standards for targeted conduct; focus on purpose)
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (how specific sequence of events informs purposes behind decisions)
Dodds v. Richardson, 614 F.3d 1185 (2010) (supervisory liability requires showing policy-driven conduct with purpose)
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (1998) (need for a defendant-specific, action-by-action showing of liability)
Feeney, 442 U.S. 256 (1979) (distinction between knowledge of consequences and discriminatory purpose)
Gilleo v. City of Ladue, 512 U.S. 43 (1994) (neutral speech regulations can be undermined by selective enforcement)
Taxpayers for Vincent, 466 U.S. 792 (1984) (private-property speech considerations and exemptions)
Moss v. U.S. Secret Service (Moss I), 572 F.3d 962 (2009) (requires proof of discriminatory purpose; not just disparate impact)
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination as targeted suppression of particular views)
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content- and viewpoint-based restrictions are presumptively invalid)