US Supreme Court Holds Qualified Immunity for Secret Service Agents in 1st Amendment Protest Case

On May 27th, 2014, the United States Supreme Court unanimously held in an opinion by Justice Ginsburg that Secret Service agents are entitled to qualified immunity after protestors alleged that the agents violated their 1st Amendment free speech rights by moving the protestors out of "weapons range" while President George W. Bush was having an outdoor meal.

In Wood v Moss, Docket No. 13-115, the Supreme Court addressed an appeal in a civil case that sought damages against Secret Service agents for their actions in allegedly violating protestors' free speech rights.

From the opinion's syllabus:

"While campaigning for a second term, President George W. Bush was scheduled to spend the night at a Jacksonville, Oregon, cottage. Local law enforcement officials permitted a group of Bush supporters and a group of protesters to assemble on opposite sides of a street along the President’s motorcade route. When the President made a last-minute decision to have dinner at the outdoor patio area of the Jacksonville Inn’s restaurant before resuming the drive to the cottage, the protesters moved to an area in front of the Inn, which placed them within weapons range of the President. The supporters remained in their original location, where a two-story building blocked sight of, and weapons access to, the patio. At the direction of two Secret Service agents responsible for the President’s security, petitioners here (the agents), local police cleared the area where the protesters had gathered, eventually moving them two blocks away to a street beyond weapons reach of the President. The agents did not require the guests already inside the Inn to leave, stay clear of the patio, or go through a security screening. After the President dined, his motorcade passed the supporters, but the protesters, now two blocks from the motorcade’s route, were beyond his sight and hearing. 

The protesters sued the agents for damages, alleging that the agents engaged in viewpoint discrimination in violation of the First Amendment when they moved the protesters away from the Inn but allowed the supporters to remain in their original location. The District Court denied the agents’ motion to dismiss the suit for failure to state a claim and on qualified immunity grounds, but on interlocutory appeal, the Ninth Circuit reversed. The court held that the protesters had failed to state a First Amendment claim under the pleadng standards of Bell Atlantic Corp. v. Twombly, 550 U. S. 544, and Ashcroft v. Iqbal, 556 U. S. 662. Because those decisions were rendered after the protesters commenced suit, the Court of Appeals granted leave to amend the complaint. On remand, the protesters supplemented the complaint with allegations that the agents acted pursuant to an unwritten Secret Service policy of working with the Bush White House to inhibit the expression of disfavored views at presidential appearances. The District Court denied the agents’ renewed motion to dismiss. This time, the Ninth Circuit affirmed, concluding that viewpoint-driven conduct on the agents’ part could be inferred from the absence of a legitimate security rationale for the different treatment accorded the two groups of demonstrators. The Court of Appeals further held that the agents were not entitled to qualified immunity because this Court’s precedent made clear that the Government may not regulate speech based on its content. 

Held: The agents are entitled to qualified immunity. Pp. 11–18.

(a) Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96. The fundamental right to speak, however, does not leave people at liberty to publicize their views ['] ‘whenever and however and wherever they please.’ ['] United States v. Grace, 461 U. S. 171, 177. In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, which involved alleged Fourth Amendment violations, extends to First Amendment claims, see, e.g., Iqbal, 556 U. S., at 675.

The doctrine of qualified immunity protects government officials from liability for civil damages [']unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.['] Ashcroft v. al-Kidd, 563 U. S. ___, ___. The [']dispositive inquiry . . . is whether it would [have been] clear to a reasonable officer['] in the agents’ position [']that [their] conduct was unlawful in the situation [they] confronted.['] Saucier v. Katz, 533 U. S. 194, 202. At the time of the Jacksonville incident, this Court had addressed a constitutional challenge to Secret Service actions only once. In Hunter v. Bryant, 502 U. S. 224, the plaintiff challenged the lawfulness of his arrest by two Secret Service agents for writing and delivering a letter about a plot to assassinate President Reagan. Holding that the agents were shielded by qualified immunity, the Court stat- ed that [']accommodation for reasonable error . . . is nowhere more important than when the specter of Presidential assassination is raised.['] Id., at 229. This Court has recognized the overwhelming importance of safeguarding the President in other contexts as well. See Watts v. United States, 394 U. S. 705, 707. Mindful that officers may be faced with unanticipated security situations, the key question addressed is whether it should have been clear to the agents that the security perimeter they established violated the First Amendment. Pp. 11–13. 

(b) The protesters assert, and the Ninth Circuit agreed, that the agents violated clearly established federal law by denying them [']equal access to the President.['] No decision of which the Court is aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation to make sure that groups with conflicting views are at all times in equivalent positions. Nor would the maintenance of equal access make sense in the situation the agents here confronted, where only the protesters, not the supporters, had a direct line of sight to the patio where the President was dining. The protesters suggest that the agents could have moved the supporters out of the motorcade’s range as well, but there would have been no security rationale for such a move. Pp. 13–15. 

(c) The protesters allege that, in directing their displacement, the agents acted not to ensure the President’s safety, but to insulate the President from their message. These allegations are undermined by a map of the area, which shows that, because of the protesters’ location, they posed a potential security risk to the President, while the supporters, because of their location, did not. The protesters’ counterarguments are unavailing. They urge that, had the agents’ professed interest in the President’s safety been sincere, the agents would have screened or removed from the premises persons already at the Inn when the President arrived. But staff, other diners, and Inn guests were on the premises before the agents knew of the President’s plans, and thus could not have anticipated seeing the President, no less causing harm to him. The agents also could keep a close watch on the relatively small number of people already inside the Inn, surveillance that would have been impossible for the hundreds of people outside the Inn. A White House manual directs the President’s advance team to [']work with the Secret Service . . . to designate a protest area . . . preferably not in view of the event site or motorcade route.['] The manual guides the conduct of the political advance team, not the Secret Service, whose own written guides explicitly prohibit [']agents from discriminating between anti-government and pro-government demonstrators.['] Even assuming, as the protesters maintain, that other agents, at other times and places, have assisted in shielding the President from political speech, this case is scarcely one in which the agents lacked a valid security reason for their actions. Moreover, because individual government officials [']cannot be held liable['] in a Bivens suit [']unless they themselves acted [unconstitutionally],['] Iqbal, 556 U. S., at 683, this Court declines to infer from alleged instances of misconduct on the part of particular agents an unwritten Secret Service policy to suppress disfavored expression, and then attribute that supposed policy to all field-level operatives. Pp. 15–18."