Wood v. Moss , 134 S. Ct. 2056 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WOOD ET AL. v. MOSS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–115. Argued March 26, 2014—Decided May 27, 2014
While campaigning for a second term, President George W. Bush was
scheduled to spend the night at a Jacksonville, Oregon, cottage. Lo-
cal 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 cot-
tage, 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, pe-
titioners 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 hear-
ing.
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 Dis-
trict Court denied the agents’ motion to dismiss the suit for failure to
state a claim and on qualified immunity grounds, but on interlocuto-
ry appeal, the Ninth Circuit reversed. The court held that the pro-
testers had failed to state a First Amendment claim under the plead-
2 WOOD v. MOSS
Syllabus
ing standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, and
Ashcroft v. Iqbal, 556 U.S. 662. Because those decisions were ren-
dered 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’ re-
newed motion to dismiss. This time, the Ninth Circuit affirmed, con-
cluding that viewpoint-driven conduct on the agents’ part could be in-
ferred 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 per-
sons engaged in peaceful expressive activity solely because the gov-
ernment actor fears, dislikes, or disagrees with the views expressed.
See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96. The fun-
damental 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 show-
ing (1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the chal-
lenged conduct.” Ashcroft v. al-Kidd, 563 U. S. ___, ___. The “dispos-
itive 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 lawful-
ness of his arrest by two Secret Service agents for writing and deliv-
ering 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 im-
portant than when the specter of Presidential assassination is
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Syllabus
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 posi-
tions. 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 Presi-
dent 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’ loca-
tion, they posed a potential security risk to the President, while the
supporters, because of their location, did not. The protesters’ coun-
terarguments are unavailing. They urge that, had the agents’ pro-
fessed 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 Presi-
dent’s plans, and thus could not have anticipated seeing the Presi-
dent, 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 Presi-
dent’s advance team to “work with the Secret Service . . . to designate
a protest area . . . preferably not in view of the event site or motor-
cade 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 ac-
4 WOOD v. MOSS
Syllabus
tions. Moreover, because individual government officials “cannot be
held liable” in a Bivens suit “unless they themselves acted [unconsti-
tutionally],” 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.
711 F.3d 941, reversed.
GINSBURG, J., delivered the opinion for a unanimous Court.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
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, Wash-
ington, 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 Jackson-
ville, Oregon, on the evening of October 14, 2004. Presi-
dent George W. Bush, campaigning in the area for a sec-
ond term, was scheduled to spend the evening at a cottage
in Jacksonville. With permission from local law enforce-
ment 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 re-
mained across the street and about a half block away from
2 WOOD v. MOSS
Opinion of the Court
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 compre-
hended. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The First Amendment, our precedent makes plain, disfa-
vors 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 over-
whelming 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 Cir-
cuit ruled otherwise. It found dispositive of the agents’
motion to dismiss “the considerable disparity in the dis-
tance each group was allowed to stand from the Presi-
den[t].” Moss v. United States Secret Serv., 711 F.3d 941,
946 (2013). Because no “clearly established law” so con-
trolled 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-
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Opinion of the Court
ance, President George W. Bush was scheduled to spend
the night at a cottage in Jacksonville, Oregon. Anticipat-
ing 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 simi-
larly 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 ar-
rived at the Inn are shown on the following map, which
the protesters attached as an exhibit to their complaint:1
——————
1 App. to Brief for Petitioners (Diagram A).
4 WOOD v. MOSS
Opinion of the Court
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,
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Opinion of the Court
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 Presi-
dent’s supporters gathered, a large two-story building, the
U. S. Hotel, extended north around the corner of Califor-
nia 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 Jack-
sonville 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 Cali-
fornia Street and the patio, the protesters no longer con-
test 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.
6 WOOD v. MOSS
Opinion of the Court
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 ob-
structed by the U. S. Hotel, only a parking lot separated
the protesters from the patio. The protesters thus re-
mained within weapons range of, and had a direct line of
sight to, the President’s location. This sight line is illus-
trated by the broken arrow marked on the map below.2
——————
2 This map appears as an appendix to the agents’ opening brief. See
App. to Brief for Petitioners (Diagram B). Except for the arrow, Dia-
gram B is identical to the map included in the protesters’ complaint.
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
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
8 WOOD v. MOSS
Opinion of the Court
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 Presi-
dent 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 Spe-
cifically, the protesters alleged that the agents engaged in
viewpoint discrimination when they moved the protesters
away from the Inn, while allowing the supporters to re-
main in their original location.
The agents moved to dismiss the complaint on the
ground that the protesters’ allegations were insufficient to
——————
3 The protesters’ complaint also asserted claims against local police
officers for using excessive force in violation of the Fourth Amendment.
Those claims were dismissed for failure to state a claim, see Moss v.
United States Secret Serv., 711 F.3d 941, 954 (CA9 2013), and are not
at issue here.
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
state a claim for violation of the First Amendment. The
agents further maintained that they were sheltered by
qualified immunity because the constitutional right al-
leged 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 insuffi-
cient 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 com-
plaint, 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 com-
plaint 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 appear-
ances.” 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 expres-
sion critical of President Bush at his public appearances.
——————
4 We have repeatedly “stressed the importance of resolving immunity
questions at the earliest possible stage [of the] litigation,” Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam).
5 In ruling on a motion to dismiss, we have instructed, courts “must
take all of the factual allegations in the complaint as true,” but “are not
bound to accept as true a legal conclusion couched as a factual allega-
tion.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted).
10 WOOD v. MOSS
Opinion of the Court
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 as-
serted 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 main-
tained, 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 prece-
dent “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).
Cite as: 572 U. S. ____ (2014) 11
Opinion of the Court
II
A
It is uncontested and uncontestable that government
officials may not exclude from public places persons en-
gaged 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,
177–178 (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 pro-
testers 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 peti-
tioners 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
12 WOOD v. MOSS
Opinion of the Court
pleads facts showing (1) that the official violated a statu-
tory 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 “com-
plaint 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 omit-
ted). 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 “dis-
positive 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 . . .
——————
6 Subsequent to the incident at issue here, we held in Reichle v. How-
ards, 566 U. S. ___, ___ (2012) (slip op., at 1), that two Secret Service
agents were “immune from suit for allegedly arresting a suspect in
retaliation for [negative comments he made about Vice President
Cheney], when the agents had probable cause to arrest the suspect for
committing a federal crime.”
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Opinion of the Court
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 protect-
ing the safety of its Chief Executive.” Watts, 394 U.S., at
707. See also Rubin v. United States, 525 U.S. 990, 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 guard-
ing 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 re-
main.” 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-
——————
7 The protesters, however, do not maintain that “the First Amend-
ment entitled them to be returned to their original location after the
President’s dinner and before his motorcade departed.” Brief for
Respondents 39–40, n. 7. They urge only that “it was constitutionally
improper to move them in the first place.” Id., at 40, n. 7; see Tr. of
Oral Arg. 50 (same).
14 WOOD v. MOSS
Opinion of the Court
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 Presi-
dential 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 Presi-
dent Bush in 2005, had it detonated, could have injured
him from 100 feet away).
The protesters suggest that the agents could have
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
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 sup-
porters 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 Pres-
ident.” 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.
——————
8 Neither side contends that the presence of demonstrators along the
President’s motorcade route posed an unmanageable security risk, or
that there would have been a legitimate security rationale for removing
the protesters, but not the supporters, from the motorcade route. The
President’s detour for dinner, however, set the two groups apart. “[T]he
security concerns arising from the presence of a large group of people
near the open-air patio where the President was dining were plainly
different from those associated with permitting a group . . . to remain
along Third Street while the President’s [armored limousine] traveled
by.” Brief for Petitioners 46.
16 WOOD v. MOSS
Opinion of the Court
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 protes-
tors’ claim of viewpoint discrimination to proceed.” Id., at
962.
It may be, the agents acknowledged, that clearly estab-
lished law proscribed the Secret Service from disadvantag-
ing 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, how-
ever, that the map itself, reproduced supra, at 4, under-
mines the protesters’ allegations of viewpoint discrimina-
tion 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 din-
ers, 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
Cite as: 572 U. S. ____ (2014) 17
Opinion of the Court
“could not have had any expectation that they would see
the President that evening or any opportunity to premedi-
tate 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 surveil-
lance 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 motor-
cade 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 politi-
cal 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 explic-
itly “prohibit Secret Service agents from discriminating
between anti-government and pro-government demonstra-
tors.” 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 en-
gaged 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
——————
9 “An ‘advance man’ is ‘[o]ne who arranges for publicity, protocol,
transportation, speaking schedules, conferences with local government
officials, and minute details of a visit, smoothing the way for a political
figure.’ ” See 711 F.3d, at 950, n. 2 (O’Scannlain, J., dissenting from
denial of rehearing en banc) (quoting W. Safire, Safire’s Political
Dictionary 8 (5th ed. 2008)).
18 WOOD v. MOSS
Opinion of the Court
Respondents 40. We emphasize, again, that the protesters
were at least as close to the President as were the sup-
porters 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 sup-
porters, 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 them-
selves 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 expres-
sion, 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). Limit-
ing 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.