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.
