NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–115
_________________
TIM WOOD and ROB SAVAGE, PETITIONERS v.
MICHAEL MOSS et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[May 27, 2014]
Justice Ginsburg
delivered the opinion of the Court.
This case concerns a
charge that two Secret Service agents, in carrying out their
responsibility to protect the President, engaged in
unconstitutional viewpoint-based discrimination. The episode in
suit occurred in Jacksonville, Oregon, on the evening of October
14, 2004. President George W. Bush, campaigning in the area for a
second term, was scheduled to spend the evening at a cottage in
Jacksonville. With permission from local law enforcement officials,
two groups assembled on opposite sides of the street on which the
President’s motorcade was to travel to reach the cottage. One group
supported the President, the other opposed him.
The President made a
last-minute decision to stop in town for dinner before completing
the drive to the cottage. His motorcade therefore turned from the
planned route and proceeded to the outdoor patio dining area of the
Jacksonville Inn’s restaurant. Learning of the route change, the
protesters moved down the sidewalk to the area in front of the Inn.
The President’s supporters remained across the street and about a
half block away from the Inn. At the direction of the Secret
Service agents, state and local police cleared the block on which
the Inn was located and moved the protesters some two blocks away
to a street beyond handgun or explosive reach of the President. The
move placed the protesters a block farther away from the Inn than
the supporters.
Officials are sheltered
from suit, under a doctrine known as qualified immunity, when their
conduct “does not violate clearly established . . .
constitutional rights” a reasonable official, similarly situated,
would have comprehended. Harlow v. Fitzgerald, 457 U. S. 800,
818 (1982) . The First Amendment, our precedent makes plain,
disfavors viewpoint-based discrimination. See Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995) . But
safeguarding the President is also of overwhelming importance in
our constitutional system. See Watts v. United States, 394
U. S. 705, 707 (1969) (per curiam). Faced with the President’s
sudden decision to stop for dinner, the Secret Service agents had
to cope with a security situation not earlier anticipated. No
decision of this Court so much as hinted that their on-the-spot
action was unlawful because they failed to keep the protesters and
supporters, throughout the episode, equidistant from the
President.
The United States Court
of Appeals for the Ninth Circuit ruled otherwise. It found
dispositive of the agents’ motion to dismiss “the considerable
disparity in the distance each group was allowed to stand from the
Presiden[t].” Moss v. United States Secret Serv., 711 F. 3d
941, 946 (2013). Because no “clearly established law” so controlled
the agents’ response to the motorcade’s detour, we reverse the
Ninth Circuit’s judgment.
I
A
On October 14, 2004,
after a nearby campaign appear-ance, President George W. Bush was
scheduled to spend the night at a cottage in Jacksonville, Oregon.
Anticipating the visit, a group of individuals, including
respondents (the protesters), organized a demonstration to express
their opposition to the President and his policies. At around 6:00
p.m. on the evening the President’s motorcade was expected to pass
through the town, between 200 and 300 protesters gathered in
Jacksonville, on California Street between Third and Fourth
Streets. See infra, at 4 (map depicting the relevant area in
Jacksonville). The gathering had been precleared with local law
enforcement authorities. On the opposite side of Third Street, a
similarly sized group of individuals (the supporters) assembled to
show their support for the President. If, as planned, the motorcade
had traveled down Third Street to reach the cottage, with no stops
along the way, the protesters and supporters would have had equal
access to the President throughout in delivering their respective
messages.
This situation was
unsettled when President Bush made a spur-of-the-moment decision to
stop for dinner at the Jacksonville Inn before proceeding to the
cottage. The Inn stands on the north side of California Street, on
the block where the protesters had assembled. Learning of the
President’s change in plans, the protesters moved along the block
to face the Inn. The respective positions of the protesters and
supporters at the time the President arrived at the Inn are shown
on the following map, which the protesters attached as an exhibit
to their complaint:[
1]
As the map indicates,
the protesters massed on the sidewalk directly in front of the Inn,
while the supporters remained assembled on the block west of Third
Street, some distance from the Inn. The map also shows an alley
running along the east side of the Inn (the California Street
alley) leading to an outdoor patio used by the Inn’s restaurant as
a dining area. A six-foot high wooden fence surrounded the patio.
At the location where the President’s supporters gathered, a large
two-story building, the U. S. Hotel, extended north around the
corner of California and Third Streets. That structure blocked
sight of, and weapons access to, the patio from points on
California Street west of the Inn.
Petitioners are two
Secret Service agents (the agents) responsible for the President’s
security during the Jacksonville visit. Shortly after 7:00 p.m. on
the evening in question, the agents enlisted the aid of local
police officers to secure the area for the President’s unexpected
stop at the Inn. Following the agents’ instructions, the local
officers first cleared the alley running from Third Street to the
patio (the Third Street alley), which the President’s motorcade
would use to access the Inn. The officers then cleared Third Street
north of California Street, as well as the California Street
alley.
At around 7:15 p.m.,
the President arrived at the Inn. As the motorcade entered the
Third Street alley, both sets of demonstrators were equally within
the President’s sight and hearing. When the President reached the
outdoor patio dining area, the protesters stood on the sidewalk
directly in front of the California Street alley, exhibiting signs
and chanting slogans critical of the President and his policies. In
view of the short distance between California Street and the patio,
the protesters no longer contest that they were then within weapons
range of the President. See Tr. of Oral Arg. 3–4, 35, 39–40; Brief
for Petitioners 44.
Approximately 15
minutes later, the agents directed the officers to clear the
protesters from the block in front of the Inn and move them to the
east side of Fourth Street. From their new location, the protesters
were roughly the same distance from the President as the
supporters. But unlike the supporters, whose sight and access were
obstructed by the U. S. Hotel, only a parking lot separated the
protesters from the patio. The protesters thus remained within
weapons range of, and had a direct line of sight to, the
President’s location. This sight line is illustrated by the broken
arrow marked on the map below.[
2]
After another 15
minutes passed, the agents directed the officers again to move the
protesters, this time one block farther away from the Inn, to the
east side of Fifth Street. The relocation was necessary, the agents
told the local officers, to ensure that no demonstrator would be
“within handgun or explosive range of the President.” App. to Pet.
for Cert. 177a. The agents, however, did not require the guests
already inside the Inn to leave, stay clear of the patio, or go
through any security screening. The supporters at all times
retained their original location on the west side of Third
Street.
After the President
dined, the motorcade left the Inn by traveling south on Third
Street toward the cottage. On its way, the motorcade passed the
President’s supporters. The protesters remained on Fifth Street,
two blocks away from the motorcade’s route, thus beyond the
President’s sight and hearing.
B
The protesters sued
the agents for damages in the U. S. District Court for the
District of Oregon. The agents’ actions, the complaint asserted,
violated the protesters’ First Amendment rights by the manner in
which the agents established a security perimeter around the
President during his unscheduled stop for dinner. See Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)
(recognizing claim for damages against federal agents for
violations of plaintiff’s Fourth Amendment rights).[
3] Specifically, the protesters alleged that
the agents engaged in viewpoint discrimination when they moved the
protesters away from the Inn, while allowing the supporters to
remain in their original location.
The agents moved to
dismiss the complaint on the ground that the protesters’
allegations were insufficient to state a claim for violation of the
First Amendment. The agents further maintained that they were
sheltered by qualified immunity because the constitutional right
alleged by the protesters was not clearly established.
The District Court
denied the motion, see Moss v. United States Secret Serv., 2007 WL
2915608, *1, 20 (D Ore., Oct. 7, 2007), but on interlocutory
appeal,[
4] the U. S. Court of
Appeals for the Ninth Circuit reversed. See Moss v. United States
Secret Serv., 572 F. 3d 962 (2009). The facts alleged in the
complaint, the Court of Appeals held, were insufficient to state a
First Amendment claim under the pleading standards prescribed in
Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007) , and
Ashcroft v. Iqbal, 556 U. S. 662 (2009) . 572 F. 3d, at
974–975.[
5] Because Twombly and
Iqbal were decided after the protesters filed their complaint,
however, the Ninth Circuit instructed the District Court to grant
the protesters leave to amend. 572 F. 3d, at 972.
On remand, the
protesters supplemented their complaint with allegations that the
agents acted pursuant to an “actual but unwritten” Secret Service
policy of “work[ing] with the White House under President Bush to
eliminate dissent and protest from presidential appearances.” App.
to Pet. for Cert. 184a. Relying on published media reports, the
protesters’ amended complaint cited several instances in which
other Secret Service agents allegedly engaged in conduct designed
to suppress expression critical of President Bush at his public
appearances. The amended complaint also included an excerpt from a
White House manual instructing 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.” Id., at 219a. See also id., at 183a.
The agents renewed
their motion to dismiss the suit for failure to state a claim and
on qualified immunity grounds. The District Court denied the
motion, holding that the complaint adequately alleged a violation
of the First Amendment, and that the constitutional right asserted
was clearly established. Moss v. United States Secret Serv., 750 F.
Supp. 2d 1197, 1216–1228 (Ore. 2010). The agents again sought an
interlocutory appeal.
This time, the Ninth
Circuit affirmed, 711 F. 3d 941, satisfied that the amended
pleading plausibly alleged that the agents “sought to suppress [the
protesters’] political speech” based on the viewpoint they
expressed, id., at 958. Viewpoint-driven conduct, the Court of
Appeals maintained, could be inferred from the absence of a
legitimate security rationale for “the differential treatment”
accorded the two groups of demonstrators. See id., at 946. The
Court of Appeals further held that the agents were not entitled to
qualified immunity because this Court’s precedent “make[s] clear .
. . ‘that the government may not regulate speech based on its
substantive content or the message it conveys.’ ” Id., at 963
(quoting Rosenberger, 515 U. S., at 828).
The agents petitioned
for rehearing and rehearing en banc, urging that the panel erred in
finding the alleged constitutional violation clearly established.
Over the dissent of eight judges, the Ninth Circuit denied the en
banc petition. See 711 F. 3d, at 947 (O’Scannlain, J., dissenting
from denial of rehearing en banc). We granted certiorari. 571 U. S.
___ (2013).
II
A
It is uncontested and
uncontestable that 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 those persons express. See, e.g., Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 96 (1972) . It is equally plain that the
fundamental right to speak secured by the First Amendment does not
leave people at liberty to pub-licize their views “ ‘whenever
and however and wher-ever they please.’ ” United States v.
Grace, 461 U. S. 171 –178 (1983) (quoting Adderly v. Florida,
385 U. S.39, 48 (1966)). Our decision in this case starts from
those premises.
The particular question
before us is whether the protesters have alleged violation of a
clearly established First Amendment right based on the agents’
decision to order the protesters moved from their original location
in front of the Inn, first to the block just east of the Inn, and
then another block farther. We note, initially, an antecedent
issue: Does the First Amendment give rise to an implied right of
action for damages against federal officers who violate that
Amendment’s guarantees? In Bivens, cited supra, at 8, we recognized
an implied right of action against federal officers for violations
of the Fourth Amendment. Thereafter, we have several times assumed
without deciding that Bivens extends to First Amendment claims.
See, e.g., Iqbal, 556 U. S., at 675. We do so again in this
case. See Tr. of Oral Arg. 10–11 (counsel for petitioners observed
that the implication of a right to sue derived from the First
Amendment itself was an issue “not preserved below” and therefore
“not presented” in this Court).
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. ___, ___ (2011) (slip
op., at 3). And under the governing pleading standard, the
“complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Iqbal, 556 U. S., at 678 (internal quotation marks omitted).
Requiring the alleged violation of law to be “clearly established”
“balances . . . the need to hold public officials
accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson v. Callahan, 555
U. S. 223, 231 (2009) . The “dispositive inquiry,” we have
said, “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 (2001) .
At the time of the
Jacksonville incident, this Court had addressed a constitutional
challenge to Secret Service actions on only one occasion.[
6] In Hunter v. Bryant, 502 U. S.
224 (1991) (per curiam), the plaintiff sued two Secret Service
agents alleging that they arrested him without probable cause for
writing and delivering to two Univer-sity of Southern California
offices a letter referring to a plot to assassinate President
Ronald Reagan. We held that qualified immunity shielded the agents
from claims that the arrest violated the plaintiff’s rights under
the Fourth, Fifth, Sixth, and Fourteenth Amendments. “[N]owhere,”
we stated, is “accommodation for reasonable error . . .
more important than when the specter of Presidential assassination
is raised.” Id., at 229.
In other contexts, we
have similarly recognized the Nation’s “valid, even . . .
overwhelming, interest in protecting the safety of its Chief
Executive.” Watts, 394 U. S., at 707. See also Rubin v. United
States, 525 U. S. 990 –991 (1998) (Breyer, J., dissenting from
denial of certio-rari) (“The physical security of the President of
the United States has a special legal role to play in our
constitutional system.”). Mindful that “[o]fficers assigned to
protect public officials must make singularly swift, on the spot,
decisions whether the safety of the person they are guarding is in
jeopardy,” Reichle v. Howards, 566 U. S. ___, ___ (2012)
(Ginsburg, J., concurring in judgment) (slip op., at 2), we address
the key question: Should it have been clear to the agents that the
security perimeter they established violated the First
Amendment?
B
The protesters assert
that it violated clearly established First Amendment law to deny
them “equal access to the President,” App. Pet. for Cert. 175a,
during his dinner at the Inn and subsequent drive to the cottage,
id., at 185a.[
7] The Court of
Appeals agreed, holding that the agents violated clearly
established law by moving the protesters to a location that “was in
relevant ways not comparable to the place where the pro-Bush group
was allowed to remain.” 711 F. 3d, at 946 (internal quotation marks
and ellipsis omitted). The Ninth Circuit did not deny that security
concerns justified “mov[ing] the anti-Bush pro-testers somewhere.”
Ibid. But, the court determined, no reason was shown for “the
considerable disparity in the distance each group was allowed to
stand from the Presidential party.” Ibid. The agents thus offended
the First Amendment, in the Court of Appeals’ view, because their
directions to the local officers placed the protesters at a
“comparativ[e] disadvantag[e] in expressing their views” to the
President. Ibid.
No decision of which we
are aware, however, would alert Secret Service agents engaged in
crowd control that they bear a First Amendment obligation “to
ensure that groups with different viewpoints are at comparable
locations at all times.” Id., at 952 (O’Scannlain, J., dissenting
from denial of rehearing en banc). Nor would the maintenance of
equal access make sense in the situation the agents confronted.
Recall that at the
protesters’ location on the north side of California Street, see
supra, at 4, they faced an alley giving them a direct line of sight
to the outdoor patio where the President stopped to dine. The first
move, to the corner of Fourth and California Streets, proved no
solution, for there, only a parking lot stood between the
protesters and the patio. True, at both locations, a six-foot
wooden fence and an unspecified number of local police officers
impeded access to the President. Even so, 200 to 300 protesters
were within weapons range, and had a largely unobstructed view, of
the President’s location. See Tr. of Oral Arg. 41 (counsel for
respondents acknowledged that “in hindsight, you could
. . . conclude” that “proximity [of the protesters to the
President] alone . . . is enough to create a security
[risk]”). See also Eggen & Fletcher, FBI: Grenade Was a Threat
to Bush, Washington Post, May 19, 2005, p. A1 (reporting that a
live grenade thrown at President Bush in 2005, had it detonated,
could have injured him from 100 feet away).
The protesters suggest
that the agents could have moved the President’s supporters further
to the west so that they would not be in range of the President
when the motorcade drove from the Inn to the cottage where the
President would stay overnight. See App. Pet. for Cert. 178a. As
earlier explained, however, see supra, at 4–5, there would have
been no security rationale for such a move. In contrast to the open
alley and parking lot on the east side of the Inn, to the west of
the Inn where the supporters stood, a large, two-story building
blocked sight of, or weapons access to, the patio the agents
endeavored to secure.[
8] No
clearly established law, we agree, required the Secret Service “to
interfere with even more speech than security concerns would
require in an attempt to keep opposing groups at roughly equal
distances from the President.” Brief for Petitioners 32. And surely
no such law required the agents to attempt to maintain equal
dis-tances by “prevail[ing] upon the President not to dine at the
Inn.” Oral Arg. Audio in No. 10–36152 (CA9) 42:22 to 43:36
(argument by protesters’ counsel), available at
http://www.ca9.uscourts.gov/media/view.php?pk_id=0000008129.(as
visited May 19, 2014, and in Clerk of Court’s case file) (argument
tendered by protesters’ counsel).
III
The protesters allege
that, when the agents directed their displacement, the agents acted
not to ensure the President’s safety from handguns or explosive
devices. Instead, the protesters urge, the agents had them moved
solely to insulate the President from their message, thereby giving
the President’s supporters greater visibility and audibility. See
Tr. of Oral Arg. 35–36. The Ninth Circuit found sufficient the
protesters’ allegations that the agents “acted with the sole intent
to discriminate against [the protesters] because of their
viewpoint”. 711 F. 3d, at 964. Accordingly, the Court of Appeals
“allow[ed] the protestors’ claim of viewpoint discrimination to
proceed.” Id., at 962.
It may be, the agents
acknowledged, that clearly established law proscribed the Secret
Service from disadvantaging one group of speakers in comparison to
another if the agents had “no objectively reasonable security
rationale” for their conduct, but acted solely to inhibit the
expression of disfavored views. See Tr. of Oral Arg. 28–29; Brief
for Petitioners 52 (entitlement to relief might have been
established if, for example, “the pro-Bush group had
. . . been allowed to move into the nearer location that
the anti-Bush had vacated”). We agree with the agents, however,
that the map itself, reproduced supra, at 4, undermines the
protesters’ allegations of viewpoint discrimination as the sole
reason for the agents’ directions. The map corroborates that,
because of their location, the protesters posed a potential
security risk to the President, while the supporters, because of
their location, did not.
The protesters make
three arguments to shore up their charge that the agents’ asserted
security concerns are disingenuous. First, the protesters urge
that, had the agents’ professed interest in the President’s safety
been sincere, the agents would have directed all persons pres-ent
at the Inn to be screened or removed from the prem-ises. See Brief
for Respondents 27. But staff, other diners, and Inn guests were
there even before the agents themselves knew that the President
would dine at the Inn. See Brief for Petitioners 47. Those already
at the Inn “could not have had any expectation that they would see
the President that evening or any opportunity to premeditate a plan
to cause him harm.” Reply Brief 16. The Secret Service, moreover,
could take measures to ensure that the relatively small number of
people already inside the Inn were kept under close watch; no
similar surveillance would have been possible for 200 to 300 people
congregating in front of the Inn. See ibid.
The protesters also
point to a White House manual, which states that the President’s
advance team should “work with the Secret Service . . .
to designate a protest area . . . preferably not in view
of the event site or motorcade route.” App. to Pet. for Cert. 219a.
This manual guides the conduct of the President’s political advance
team. See id., at 220a (distinguishing between the political role
of the advance team and the security mission of the Secret
Service).[
9] As the complaint
acknowledges, the Secret Service has its own “written guidelines,
directives, instructions and rules.” Id., at 184a. Those guides
explicitly “prohibit Secret Service agents from discriminating
between anti-government and pro-government demonstrators.”
Ibid.
The protesters maintain
that the Secret Service does not adhere to its own written guides.
They recite several instances in which Secret Service agents
allegedly engaged in viewpoint discrimination. See id., at
189a–194a. Even accepting as true the submission that Secret
Service agents, at times, have assisted in shielding the President
from political speech, this case is scarcely one in which the
agents acted “without a valid security reason.” Brief for
Respondents 40. We emphasize, again, that the protesters were at
least as close to the President as were the supporters when the
motorcade arrived at the Jacksonville Inn. See supra, at 5. And as
the map attached to the complaint shows, see supra, at 4, when the
President reached the patio to dine, the protesters, but not the
supporters, were within weapons range of his location. See supra,
at 14. Given that situation, the protesters cannot plausibly urge
that the agents “had no valid security reason to request or order
the[ir] eviction.” App. to Pet. for Cert. 186a.
We note, moreover, that
individual government officials “cannot be held liable” in a Bivens
suit “unless they themselves acted [unconstitutionally].” Iqbal,
556 U. S., at 683. We therefore decline to infer from alleged
instances of misconduct on the part of particular agents an
unwritten policy of the Secret Service to suppress disfavored
expression, and then to attribute that supposed policy to all
field-level operatives. See Reply Brief 20.
* * *
This case comes to us
on the agents’ petition to review the Ninth Circuit’s denial of
their qualified immunity defense. See Tr. of Oral Arg. 10
(petitioners’ briefing on appeal trained on the issue of qualified
immunity). Limiting our decision to that question, we hold, for the
reasons stated, that the agents are entitled to qualified immunity.
Accordingly, we reverse the judgment of the Court of Appeals.
It is so ordered.
