Moss v. U.S. Secret Serv.

711 F.3d 941

Michael MOSS; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, fka Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs–Appellees,

v.UNITED STATES SECRET SERVICE, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2–20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Municipal Does, the public bodies employing defendants John Does 2–20; Mark Sullivan, Director of the United States Secret Service, in his official capacity, Defendants,andRon Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants–Appellants.

Michael Moss; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, fka Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs–Appellees,

v.United States Secret Service, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2–20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Municipal Does, the public bodies employing defendants John Does 2–20; Mark Sullivan, Director of the United States Secret Service, in his official capacity; Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants,andTim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants–Appellants.

Nos. 10–36152, 10–36172.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 2011.

Filed April 9, 2012.

Amended Feb. 26, 2013.

Cecil Reniche–Smith (argued), Denise Gale Fjordbeck, Office of the Oregon Attorney General, Salem, OR, for Defendants–Appellants Ron Ruecker and Eric Rodriguez.

Edward Himmelfarb (argued), Jeremy Scott Brumbelow, Barbara L. Herwig, Mary Hampton Mason, Department of Justice, Washington, D.C.; Kelly A. Zusman, Office of the U.S. Attorney, Portland, OR, for Defendants–Appellants Rob Savage and Tim Wood.

Steven Wilker (argued), Paul W. Conable, Tonkon Torp, LLP, Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland, OR; Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, Washington D.C., for Plaintiffs–Appellees.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, Presiding. D.C. No. 1:06–cv–03045–CL.

Before: DAVID M. EBEL^*, MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges.

Dissent to Order by Judge O'SCANNLAIN; Opinion by Judge BERZON.

ORDER

The opinion filed on April 9, 2012, and appearing at 675 F.3d 1213, is amended as follows:

At slip opinion page 3846, 675 F.3d at 1229, immediately before the heading “C. Fourth Amendment,” add the following text:

As this case arises on a motion to dismiss, any explanation for the agents' differential treatment of the pro- and anti-Bush demonstrators would have to be so obviously applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The Dissent from the Denial of Rehearing En Banc (“En Banc Dissent”) maintains otherwise, so we briefly respond to its analysis:

Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain along the President's after-dinner motorcade route, see Op. at 1225, 1228; the En Banc Dissent suggests none. And the explanation proffered in the En Banc Dissent for the agents' actions in moving the anti-Bush demonstrators in the first place—namely that the pro-Bush demonstrators were not moved because they were ostensibly further than the protestors from the patio where President Bush was dining, see En Banc Dissent at 14—is not a basis for granting the agents qualified immunity at the pleadings stage, for several reasons:

First, the En Banc Dissent's speculative explanation is non-responsive to the protestors' viewpoint discrimination claim. The question is not why the agents moved the anti-Bush protestors somewhere, but rather why the agents moved the protestors a considerable distance, to a location that, as we have explained, was in “relevant ways ... not comparable” to the place where the pro-Bush group was allowed to remain. See Op. at 1228. No “tape[ ] measure” is required, see En Banc Dissent at 12, to appreciate that demonstrators separated by more than a full square block, and two roadways, from the public official to whom and about whom they wish to direct a political message will be comparatively disadvantaged in expressing their views. Nor does one need a noise dosimeter to know that the President will be able to hear the cheers of the group left alongside his travel route but unable to hear the group restricted to an area about two square blocks away.

Perhaps there was a reason for the considerable disparity in the distance each group was allowed to stand from the Presidential party—for example, traffic, or an obstruction on the square block adjacent to the Inn, requiring that the anti-Bush demonstrators be moved more than a block further away. But, as matters now stand, nothing in the En Banc Dissent's entirely hypothetical “explanation is so convincing” as to render “ implausible” the plaintiffs' claim of viewpoint discrimination. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 882 (2012). It is therefore premature at this stage to credit the En Banc Dissent's theory instead of the protestors'. See id. For the same reason, the En Banc Dissent's assertion, see En Banc Dissent at 12, that the panel has “second[ ] guess[ed]” the Secret Service agents' judgment about how best to protect the President fails to account for the fact that at this stage of the case, the record is devoid of any explanation for the substantial difference in where the two groups of demonstrators were allowed to stand relative to the President's locations.

Finally, the En Banc Dissent's invocation of the case law upholding certain buffer zones, see id. at 22, actually illustrates well why the complaint does establish a plausible claim of a violation of clearly established law regarding impermissible viewpoint discrimination in a public forum. Such buffers have been upheld only, and expressly, on the understanding that the restrictions are content and viewpoint neutral. For example, in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Supreme Court upheld the buffer zone ordinance there at issue only after emphasizing that it applied “to all ‘protest,’ to all ‘counseling,’ and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision. That is the level of neutrality that the Constitution demands.” Id. at 725, 120 S.Ct. 2480. Had the ordinance in Hill established a one-hundred foot buffer zone for pro-abortion demonstrators and a three-hundred foot buffer zone for anti-abortion protestors, there is no doubt such a viewpoint discriminatory ordinance would have been summarily invalidated.

The protestors here plausibly allege just such a significant difference in the buffer zone in a public forum. And Hill was, of course, decided before the events in this case. The protestors therefore allege a plausible case of impermissible...