Pahls v. Thomas

FILED
United States Court of Appeals
Tenth Circuit
June 4, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JEANNE PAHLS; REBECCA WILSON;
ALMA ROSA SILVA BANUELOS;
CARTER BUNDY; JASON CALL;
MARY LOU “MITZI” KRAFT;
MERIMEE MOFFITT; LAURA
LAWRENCE; STUART T. “TERRY”
RILEY; CODEPINK WOMEN FOR
PEACE, Albuquerque Chapter; STOP
THE WAR MACHINE,
Plaintiffs - Appellees,
v. No. 11-2055
MATTHEW THOMAS; EDWARD
MIMS, in their individual capacities,
Defendants-Appellants,
and
CITY OF ALBUQUERQUE;
ALBUQUERQUE POLICE
DEPARTMENT; KERRY SHEEHAN,
LESLIE BROWN, JOSHUA
MCDONALD, in their individual
capacities,
Defendants.
__________________________________
JEANNE PAHLS; REBECCA WILSON;
ALMA ROSA SILVA BANUELOS;
CARTER BUNDY; JASON CALL;
MARY LOU “MITZI” KRAFT;
MERIMEE MOFFITT; LAURA
LAWRENCE; STUART T. “TERRY”
RILEY; CODEPINK WOMEN FOR
PEACE, Albuquerque Chapter; STOP
THE WAR MACHINE,
Plaintiffs - Appellees,
v. No. 11-2059
KERRY SHEEHAN,
Defendant-Appellant,
and
CITY OF ALBUQUERQUE;
ALBUQUERQUE POLICE
DEPARTMENT; MATTHEW THOMAS,
EDWARD MIMS, LESLIE BROWN,
JOSHUA MCDONALD, in their
individual capacities,
Defendants.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:08-CV-00053-LH-ACT)
Henry F. Narvaez of Narvaez Law Firm, P.A., Albuquerque, New Mexico, for
Defendants-Appellants Thomas and Mims.
Edward Himmelfarb, Appellate Staff, Civil Division, United States Department of
Justice, Washington, D.C. (Tony West, Assistant Attorney General; Kenneth J. Gonzales,
United States Attorney, Albuquerque, New Mexico; Howard R. Thomas, Assistant United
States Attorney, Albuquerque, New Mexico; Barbara L. Herwig, Appellate Staff, Civil
Division, United States Department of Justice, Washington, D.C., with him on the briefs),
for Defendant-Appellant Sheehan.
Christopher A. Hansen of American Civil Liberties Union, New York City, New York
(Catherine Crump of American Civil Liberties Union, New York City, New York; Laura
Schauer Ives of American Civil Liberties Union, Albuquerque, New Mexico; Philip B.
2
Davis, Albuquerque, New Mexico, with him on the brief), for Plaintiffs-Appellees.
Before TYMKOVICH, MCKAY, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Location, location, location. It is cherished by property owners and political
demonstrators alike. Both groups, it turns out, are at the heart of this case. Plaintiffs-
Appellees brought this action after law enforcement officials forced them to move to an
unfavorable location to engage in protest activities but allowed a group espousing the
opposite viewpoint to remain in place on private property—property that happened to be
prime real estate for the political demonstration in question. They identified Defendants-
Appellants Kerry Sheehan, Matthew Thomas, and Edward Mims as responsible for the
decisions leading to this disparate treatment, and they claim each defendant is liable for
viewpoint discrimination in violation of the First Amendment. The district court denied
Defendants-Appellants’ motions for summary judgment based on qualified immunity, and
this interlocutory appeal followed. For the reasons set forth below, we reverse the
judgment of the district court.
I
Our story begins in Los Ranchos de Albuquerque (hereinafter “Los Ranchos”), a
semi-rural village in Bernalillo County, New Mexico, that neighbors the much larger city
of Albuquerque. One of its main thoroughfares is a north-south route known as Rio
3
Grande Boulevard, which lies just east of, and parallels, the Rio Grande River. The river
forms the western border of Los Ranchos.
On August 27, 2007, President George W. Bush attended a fundraiser for former
Senator Pete Domenici at the home of Los Ranchos’s mayor, Larry Abraham. The
mayor’s home is located to the west of Rio Grande Boulevard, between the road and the
river. A long driveway runs west from Rio Grande Boulevard to the mayor’s home.
When President Bush arrived, his motorcade approached from the north, moving down
Rio Grande Boulevard in a southerly direction, and made a right-hand turn into the
mayor’s driveway. This particular mode of entry gave rise to this lawsuit.
There were two groups of demonstrators awaiting the President’s arrival that day.
One group—which we shall call “protesters” or “Bush protesters,” for their opposition to
the President and his policies—was made to stand 150 yards south of the mayor’s
driveway on Rio Grande Boulevard, at a location called the southern checkpoint. A
second group—which we shall call “supporters” or “Bush supporters,” for their support
of the President and his policies—was allowed to stand directly across from the mayor’s
driveway, on private property to the east of Rio Grande Boulevard, some six to fifteen
feet from the roadway. The supporters were much closer to, and directly in view of, the
President’s motorcade as it entered the mayor’s driveway. The protesters, by contrast,
were much farther away, and their view of the motorcade—and, likewise, the President’s
view of them—was obstructed by police cars and horse-mounted officers situated at the
4
southern checkpoint.1
Among the protesters that day were Plaintiffs-Appellees. (Henceforth, we call
them simply “plaintiffs.”) They later sued various government officials and entities
pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), claiming a violation of their First and
Fourteenth Amendment rights. They alleged that they were subjected to unconstitutional
viewpoint discrimination when local police officers and agents of the United States Secret
Service forced them to remain at the southern checkpoint and simultaneously allowed
Bush supporters to stand on private property north of the checkpoint in closer proximity
to the President’s motorcade.
After discovery, Defendant-Appellant Kerry Sheehan, a Special Agent with the
1
An appendix to our opinion contains a helpful map of the site. The parties
unfortunately did not provide us a map. However, based on the undisputed location of
the President’s visit, “[w]e take judicial notice of a Google map and satellite image as a
‘source[] whose accuracy cannot reasonably be questioned’” for purposes of this case.
United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (second alteration in
original) (quoting Fed. R. Evid. 201(b)); see Citizens for Peace in Space v. City of Colo.
Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007) (taking judicial notice of an online
distance calculation that relied on Google Maps data); United States v. Piggie, 622 F.2d
486, 488 (10th Cir. 1980) (“Geography has long been peculiarly susceptible to judicial
notice for the obvious reason that geographic locations are facts which are not generally
controversial . . . .”); see also David J. Dansky, The Google Knows Many Things: Judicial
Notice in the Internet Era, 39 Colo. Law. 19, 24 (2010) (“Most courts are willing to take
judicial notice of geographical facts and distances from private commercial websites such
as MapQuest, Google Maps, and Google Earth.”). We do this here only to determine the
“general location” of relevant events. Perea-Rey, 680 F.3d at 1182 n.1. The map in the
appendix identifies the approximate location of the southern checkpoint—150 yards south
of the mayor’s driveway—based on Google Maps’s “Distance Measurement Tool.” Cf.
Citizens for Peace in Space, 477 F.3d at 1218 n.2.
5
United States Secret Service, moved for summary judgment on grounds of qualified
immunity. Defendants-Appellants Lieutenant Matthew Thomas and Sergeant Edward
Mims, officers with the Bernalillo County Sheriff’s Department (“BCSD”), also filed
summary-judgment motions asserting qualified immunity.2 The district court denied
summary judgment as to all of the officials, finding that they were not entitled to qualified
immunity because there were “question[s] of fact” concerning both whether plaintiffs
were subjected to viewpoint discrimination and whether each official personally
participated in the alleged constitutional violation. Sheehan App. at 216, 219–22 (Mem.
Op. & Order, filed Feb. 22, 2011).3 Lt. Thomas and Sgt. Mims (jointly), followed by
Special Agent Sheehan, filed separate notices of appeal from the district court’s order.
We have consolidated the two appeals for our review.
In ruling on the summary-judgment motions, the district court set forth in detail the
factual background of this case. Generally, when a district court has denied qualified
immunity at the summary-judgment stage, we must accept “as true” the district court’s
determination “that a reasonable jury could find certain specified facts in favor of the
plaintiff,” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010), and our appellate
jurisdiction is limited to the “‘abstract’ legal question[]” whether the facts as presented
amount to a violation of a clearly established right, id. (emphasis omitted) (quoting
2
We are told that Lt. Thomas and Sgt. Mims have since been promoted to the
ranks of captain and lieutenant, respectively. See Thomas/Mims Opening Br. at 8.
3
Throughout this opinion, we refer to the appendix filed by Special Agent
Sheehan as “Sheehan App.”
-6-
Johnson v. Jones, 515 U.S. 304, 317 (1995)). Mindful of these limitations, we set forth in
detail the events giving rise to this case. See generally Sheehan App. at 191–210.
A
We begin with some relevant background. The Secret Service has the
statutory—and we may add, solemn—responsibility of protecting the President of the
United States. See 18 U.S.C. § 3056. Whenever the President travels, the Secret Service
is in charge of security, and it works with other federal agencies, as well as state and local
entities, to design and implement security measures.
Before the President travels to a place, a Secret Service “advance team” visits the
location to evaluate necessary security measures and develop a site-specific security plan.
The plan typically includes attack-prevention and emergency-response strategies, such as
establishing a secure perimeter around the visit site and controlling vehicle access thereto.
Vehicle access is of particular concern to the Secret Service because it heightens the risk
of attack by vehicle-borne explosives. Security plans thus often incorporate portions of
nearby roadways. Pedestrian and vehicle movements along these roadways are controlled
to ensure both the President’s security and rapid, unobstructed access by emergency
vehicles.
The advance team typically coordinates security efforts with local law enforcement
and other public-safety officials. Secret Service agents have no legal jurisdiction over
local officials, and vice-versa, but all recognize that security is a team effort. Local
officers often defer to the Secret Service on issues of security, and the Secret Service, in
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turn, often defers to local law enforcement on questions implicating local codes and
ordinances, such as where demonstrators are legally allowed to stand. The Secret Service
may nonetheless override law enforcement for safety reasons and may, for example,
reposition demonstrators.
It is the general policy of the Secret Service to allow members of the public to
walk along the shoulder of a vehicle-access route if they are legally allowed to be there, if
they do not interfere with the President’s motorcade, and if they do not pose a safety risk.
If an individual is standing on private property near the visit site, the Secret Service will
avoid infringing his or her property rights if possible. If that individual presents a
security risk, however, the Secret Service has the authority to move him or her, property
rights notwithstanding.
When President Bush visited Los Ranchos in August 2007, the Secret Service was
in charge of overall security, and Special Agent Sheehan, as the “site agent,” was tasked
with designing and implementing the site security plan. Several days before the event,
the Secret Service advance team met with local law enforcement and public-safety
officials. Present at this meeting were, among others, Special Agent Sheehan, other
Secret Service agents, and representatives from BCSD and the Albuquerque Police
Department (“APD”). The purpose of the meeting, which was conducted by the Secret
Service, was to coordinate the efforts of federal and local authorities in preparation for the
President’s visit.
The security plan that Special Agent Sheehan formulated established an inner
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perimeter and an outer perimeter around the site of the President’s visit. The inner
perimeter—i.e., the “security perimeter”—encompassed the mayor’s residence and
adjacent property, including his driveway. Rio Grande Boulevard, lying to the east of the
mayor’s property, fell outside of the inner perimeter. The Secret Service was responsible
for inner-perimeter security. Special Agent Sheehan supervised and monitored security
operations within the inner perimeter.
The outer perimeter consisted of points along Rio Grande Boulevard north and
south of the mayor’s driveway. Because the boulevard was identified as a vehicle-access
route, the security plan established checkpoints along the outer perimeter to restrict
vehicle and pedestrian access to portions of the roadway near the mayor’s driveway. One
such checkpoint was the southern checkpoint, located on Rio Grande Boulevard
approximately 150 yards south of the mayor’s driveway. This particular location was
selected because it was far enough away from the driveway to mitigate the impact of
vehicle-borne explosives and because nearby areas were wide and flat enough to allow
for emergency-vehicle parking.
BCSD was responsible for outer-perimeter security during the President’s visit.
Personnel from BCSD and APD were stationed along the outer perimeter, including at the
southern checkpoint, and they regulated vehicle and pedestrian access to portions of Rio
Grande Boulevard lying within the outer perimeter’s boundaries.
Lt. Thomas was in charge of BCSD personnel for the event. Among other tasks,
he was responsible for making decisions regarding the treatment of demonstrators,
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including where they would be permitted to stand. He was not required to consult with
the Secret Service on every decision. Sgt. Mims’s primary responsibility was security of
the outer perimeter. He also had authority to decide whether to allow demonstrators
beyond the southern checkpoint. If he had questions, he was to consult with his ranking
officer, Lt. Thomas.
For events of this type, BCSD had in place a general policy of directing
demonstrators to a designated protest zone. See Sheehan App. at 196 (“BCSD personnel
were trained to direct demonstrators in such events to a designated protest zone because
keeping them in one spot helps keep order, prevents interference with the motorcade, and
helps ensure the safety of the President.”). Pursuant to their responsibilities, Lt. Thomas
and Sgt. Mims decided that all demonstrators who attended the event should be directed
to gather at the southern checkpoint.
B
Early in the morning on August 27, 2007—the day of the President’s visit—Sgt.
Mims conducted a briefing for his deputies. He assigned certain deputies to positions
along the outer perimeter, including at the southern checkpoint, and told them not to
allow demonstrators to venture beyond the outer perimeter. He also instructed officers at
the briefing to direct demonstrators to gather at the southern checkpoint. At least one
officer left the briefing with the understanding that demonstrators would not be allowed
to move north of the southern checkpoint even if they had been invited onto private
property north of the checkpoint. Lt. Thomas also ordered officers under his command to
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keep all demonstrators to the south.4 Residents were not subject to this requirement and
were permitted to stay inside the perimeter.
As the morning progressed, many people, including plaintiffs, began arriving at the
site to protest. By picket signs, peace symbols, and apparel, their purpose was to express
opposition to the President’s policies, particularly the Iraq War. They gathered on public
property along Rio Grande Boulevard at both the northern and southern ends. Law
enforcement personnel had no reason to believe the protesters posed any threat to the
President or the public.
1
Throughout the morning, various plaintiffs were subjected to the requirement to
gather at the southern perimeter. The district court highlighted three such incidents.
Plaintiff Jeanne Pahls arrived at the event site between 8:00 and 8:30 a.m., and she
began walking along Rio Grande Boulevard north of the southern checkpoint. Near the
point where the mayor’s driveway meets Rio Grande Boulevard, Ms. Pahls moved back
and forth across the street several times, looking for a place to stand and protest. It is
worth pausing here and describing this area in greater detail because it becomes important
4
Lt. Thomas told his officers to allow demonstrators to go where they
pleased but to keep all demonstrators in one group. Once his subordinates, led by Sgt.
Mims, concluded that the group of demonstrators should be kept to the south, the
evidence would allow a reasonable jury to conclude that Lt. Thomas acceded in that
determination. See Sheehan App. at 218. Indeed, at least one officer interpreted Lt.
Thomas’s keep-the-demonstrators-together directive to mean that all demonstrators were
to be kept to the south. See id. at 199–200, 218.
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later.
Rio Grande Boulevard is a two-lane road with wide shoulders on either side. (Sgt.
Mims estimated the shoulders’ width at ten to fifteen feet.) A narrow part of each
shoulder is tarmac and the rest gravel. Directly across from the mayor’s driveway, lying
to the east of Rio Grande Boulevard, is an open field. The field extends several yards
north of the point where the mayor’s driveway meets the boulevard, and extends eastward
from the road to a bank of trees, behind which a private residence is nestled. The gravel
shoulder of Rio Grande Boulevard meets the grassy western edge of the field in such a
way as to suggest a demarcation of public property (the road and shoulder) from private
property (the field). This demarcation line, of course, parallels Rio Grande Boulevard on
its eastern side. See generally Appendix, infra.
As Ms. Pahls was crisscrossing Rio Grande Boulevard in this vicinity, a BCSD
officer observed her, approached, and instructed her that demonstrators would be allowed
to gather on the shoulder of Rio Grand Boulevard either north or south of the mayor’s
residence. Ms. Pahls decided to move north. She situated herself on the eastern shoulder
of Rio Grande Boulevard, just north of the open field, near a line of trees marking the
field’s northern boundary. Plaintiffs Mary Lou Kraft and Laura Lawrence, as well as Ms.
Lawrence’s daughter, stood with Ms. Pahls at this location.
Later, a BCSD officer approached Ms. Pahls and her companions and told them
that they could not stand there. Ms. Pahls protested, saying that another officer had given
her permission to stand there. Several minutes later, more BCSD officers arrived and
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instructed the women to move south. They complied and relocated to the southern
perimeter.
Plaintiff Merimee Moffitt arrived at the site between 9:30 and 10:00 a.m. along
with twelve to fifteen members of plaintiff CODEPINK. Initially, they stood on the
shoulder of Rio Grande Boulevard at the southern perimeter, where most other
demonstrators had gathered. At one point, Ms. Moffitt began walking north of the
perimeter along the roadway to determine whether she could stand closer to the mayor’s
driveway. She encountered a group of protesters walking south along Rio Grande
Boulevard. They informed her that she should turn back because no one was permitted to
stand north of the southern perimeter.
After Ms. Moffitt rejoined the group to the south, she observed a white van drive
past her location and back into a private driveway off of Rio Grande Boulevard. A
woman in the van announced that she was there to ferry individuals north on Rio Grande
Boulevard to a location on private property where they would have a better view of the
motorcade. As protesters began to climb into the van, an unidentified BCSD officer
approached and told the woman in the van that she could not park there. The woman
explained that she was not parking and was only picking people up to take them to a
friend’s private property to the north. The officer responded that none of the other
protesters could go up north and that no one, save the woman’s daughter, could go with
her. Those who had already entered the van got out, and the woman left.
When plaintiff Carter Bundy arrived at the site, he asked BCSD officers how close
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to the mayor’s driveway he and other protesters would be allowed to stand. BCSD
officers told him that protesters could gather at the cross street south of the mayor’s
residence, some 300 yards from the mayor’s driveway.
2
At some point prior to President Bush’s arrival, an individual approached Special
Agent Sheehan and identified himself as the owner of the property, including the open
field, directly opposite the mayor’s driveway, east of Rio Grande Boulevard. The
landowner asked Special Agent Sheehan if he would be allowed to stand on the portion of
his property adjacent to Rio Grande Boulevard in order to watch the President’s
motorcade as it passed. This area was beyond the inner security perimeter that was
Special Agent Sheehan’s principal responsibility that day. After satisfying himself that
the landowner was not a security risk, Special Agent Sheehan told him that security
officials would not interfere with his property rights so long as he did not interfere with
the motorcade route or make any overt actions while the motorcade passed.
Soon after, a small group of supporters gathered in the open field across from the
mayor’s driveway. They stood either on the shoulder of Rio Grande Boulevard or on the
grass near the shoulder, some six to fifteen feet from the roadway. The group hoisted
American flags and a banner that read, “God Bless George Bush! We pray for you!”
A Secret Service agent—it is not clear who—informed Lt. Thomas and Sgt. Mims
that a few individuals would be standing on private property across from the mayor’s
driveway. Lt. Thomas responded, “Fine.” Sheehan App. at 204. He believed that a
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citizen had a right to be on his or her private property. Although he never actually saw
the supporters and did not know how far from the roadway they were standing, he relied
on the agent’s statement that they were on private property.
When Sgt. Mims was informed about the presence of the supporters, he was not in
their vicinity. He did, however, speak with the supporters on more than one occasion that
morning. He told them that as long as they remained on their own property, they would
be permitted to stay. Sgt. Mims also believed that protesters, too, would have been
allowed to stand on private property if they had been given permission to do so by the
property owner or resident.
At some unknown time prior to the President’s arrival, two Secret Service agents
in a golf cart approached APD personnel stationed at the southern checkpoint and
instructed them not to allow protesters to move farther north. These two Secret Service
agents were not identified. Although Special Agent Sheehan was using a golf cart that
morning, he never operated a checkpoint or directed the movement of pedestrians along
Rio Grande Boulevard, and the district court concluded that “the evidence does not show
that Special Agent Sheehan was one of the Secret Service agents personally telling APD
officers at the southern checkpoint to stop pedestrians from walking north.” Id. at 200
n.3.
3
Approximately thirty minutes prior to the President’s arrival, according to standard
protocol, law enforcement “harden[ed]” the outer perimeter—that is, they “no longer
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allowed vehicular or pedestrian traffic through the checkpoints and other barricades.” Id.
at 198 n.2. At or near the southern checkpoint, personnel from APD blocked Rio Grande
Boulevard with marked vehicles, and officers on horseback took up positions across the
roadway. Officers told the protesters there (numbering at least seventy at that point) to
form a line behind and parallel to the barricade, and not to step north of the line. Due to
the size of the horses bearing the mounted officers, the protesters’ view of the mayor’s
driveway was blocked. At the same time, additional law enforcement officers took up
positions in front of the supporters standing north of the checkpoint.
Around noon, President Bush’s motorcade approached Mayor Abraham’s
residence along Rio Grande Boulevard from the north and entered the driveway. The
motorcade never passed by the protesters at the southern perimeter, and the President’s
view of these protesters was obstructed by distance and the police barricade. The
supporters in the open field,5 by contrast, were up close and easily visible to the
5
There is some dispute about where precisely the supporters were standing
as the presidential motorcade drove by. Special Agent Sheehan, Lt. Thomas, and Sgt.
Mims all believed that the supporters were standing sufficiently far from the road to be on
private property. A declaration by Ms. Pahls and a later submission by plaintiffs’ expert
suggested that the supporters were sufficiently close to the road to be on public property.
The district court found this dispute immaterial, stating that “[o]fficers need not know the
exact survey lines along an entire motorcade route in order to make distinctions between
private and public property along that route” and that “[o]fficers are not expected to have
expert knowledge in surveying” or “to have measuring tapes at their ready disposal to
make sure protestors stay within private or public property bounds.” Sheehan App. at 214
n.9. We concur in this reasoning. Qualified immunity protects on-the-spot judgment
calls, even if they later turn out to be mistaken or ill-advised. See Phillips v. James, 422
F.3d 1075, 1080 (10th Cir. 2005) (“Qualified immunity protects all but the plainly
(continued...)
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motorcade as it passed.
Following the President’s arrival, the majority of protesters lingered for about
fifteen minutes before dispersing. During the morning’s demonstration, various media
outlets had passed by the protesters. An article describing the protest appeared the next
day in the Albuquerque Journal.
C
Plaintiffs filed a complaint in January 2008, asserting claims pursuant to § 1983
and Bivens and alleging viewpoint discrimination by various government entities and five
unnamed officials. Plaintiffs claimed that they received disparate treatment vis-à-vis the
Bush supporters in violation of their First and Fourteenth Amendment rights. After
extensive discovery, they moved to amend their complaint to include, among others,
Special Agent Sheehan, Lt. Thomas, and Sgt. Mims as defendants in their individual
capacities. The district court granted the motion. In September 2010, Special Agent
Sheehan moved for summary judgment, invoking qualified immunity. Lt. Thomas and
Sgt. Mims did the same in November 2010.
The district court denied summary judgment to all three officials. The court began
by noting that it was “clearly established” that “disparate treatment of protesters based on
5
(...continued)
incompetent or those who knowingly violate the law.” (quoting Gross v. Pirtle, 245 F.3d
1151, 1155 (10th Cir. 2001)) (internal quotation marks omitted)). Plaintiffs do not
suggest that defendants are prevaricating or that their belief concerning the supporters’
location was unreasonable. Accordingly, we, like the district court, proceed on the
premise that the supporters were standing on private property.
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their viewpoint [i]s unlawful.” Id. at 212. The court went on to consider whether
plaintiffs had presented evidence sufficient to raise issues of fact concerning disparate,
viewpoint-based treatment. At this point, the court did not analyze the personal actions or
personal liability of each defendant; it focused instead on “law enforcement” in the
aggregate:
The evidence construed in Plaintiffs’ favor shows that law enforcement
at the event interfered with the protestors’ rights to demonstrate on the
public shoulder across from and to the north of the Mayor’s driveway
and to go to private property north of the Mayor’s driveway. In
contrast, law enforcement did not interfere with the pro-Bush
supporters’ demonstration across from the Mayor’s driveway, in view
of the President’s motorcade.
Id. at 213.
Defendants urged that their actions were based on both security concerns and
respect for private-property rights, not the viewpoints of the assembled citizenry. With
respect to the first rationale, they asserted that keeping demonstrators in one group
enhanced security and ensured that limited manpower resources were effectively utilized.
They further stated that the southern perimeter was selected as the gathering point
because most of the protesters had already assembled there. With respect to the second
rationale, defendants argued that some demonstrators were allowed to stand closer to the
mayor’s driveway because they were situated on private property, not because they were
supporters of President Bush.
The court nonetheless found the evidence sufficient to suggest that these reasons
were “pre-textual.” Id. at 214. First, the court said, “[m]any of the protestors initially
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‘gathered’ at the southern perimeter because law enforcement indicated to them that the
southern perimeter was the only location permitted for demonstrating.” Id. Furthermore,
given that some demonstrators (the supporters) were allowed to stand north of the
southern checkpoint, albeit on private property, the court was unpersuaded that security
concerns justified barring other demonstrators (such as protesters like Ms. Pahls and her
companions) from doing the same. In the court’s view, protesters could easily have stood
nearby on public property, such as on the eastern shoulder of Rio Grande Boulevard.
That location, like the private property where the supporters stood, was outside the inner
security perimeter that the Secret Service established and maintained. And even Special
Agent Sheehan had admitted that, from a security standpoint, there was no reason to
prevent demonstrators from walking along the eastern side of Rio Grand Boulevard north
of the southern checkpoint. Regarding an argument of defendants related to depletion of
manpower, the court noted that a separate group of officers had been stationed in front of
the supporters, and there was evidence suggesting that additional manpower was present
at the event but went unused.
The district court therefore concluded that “[a] reasonable jury could . . . conclude,
based on the actions of law enforcement officers, that law enforcement harbored a
discriminatory motive to target the anti-Bush demonstrators because of their message.”
Id. at 215. Again, however, the court did not specifically identify which members of law
enforcement could be found to harbor this motive.
Having found that there was “a question of fact as to whether Plaintiffs’ First
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Amendment rights were violated,” id. at 216, the court went on to consider each
defendant’s personal involvement in the alleged viewpoint discrimination. The court
noted that plaintiffs were required to show that their rights were violated because of each
official’s “own individual actions,” id. at 217, and further, that those actions were taken
“because of[,] not merely in spite of, the demonstration’s anti-Bush message,” id.
(alteration in original) (quoting Moss v. U.S. Secret Service (Moss I), 572 F.3d 962, 970
(9th Cir. 2009)) (internal quotation marks omitted).
The court began with Lt. Thomas. Highlighting his supervisory role over local
officers and his assistance in developing the site security plan, the court wrote, “There is
. . . evidence that [Lt. Thomas] ordered the officers under his command to keep
demonstrators in one group south of the southern perimeter, yet he knowingly acquiesced
in the decision not to interfere with the pro-Bush supporters who remained on or near
their private property during the event.” Id. at 218. That Lt. Thomas “may have deferred
to Special Agent Sheehan’s instruction that the pro-Bush supporters could remain on their
private property” did not “absolve” Lt. Thomas of liability, the court said. Id. at 219.
There is evidence that Defendant Thomas issued orders that caused his
subordinate officers to not allow Plaintiffs to stand on public shoulders
near the entrance to the Mayor’s driveway or to protest on private
property to the north of the Mayor’s driveway, areas outside the
security perimeter where they had a right to demonstrate. It is that
disparate treatment, over which Defendant Thomas had direct control,
that is the basis of his potential liability.
Id.
The court then turned to Sgt. Mims. It began by noting his supervisory role and
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his authority to allow or not allow demonstrators through the southern checkpoint. The
court also pointed out that Sgt. Mims “gave the briefing during which officers were
instructed to move all protestors to the southern perimeter.” Id. at 220. At the same time,
Sgt. Mims “knew of and did not interfere with the pro-Bush supporters’ demonstration
across from the Mayor’s driveway.” Id. The court concluded that, given Sgt. Mims’s
active involvement in ordering the placement of demonstrators at the event, as well as the
manner in which subordinate officers carried out his instructions, a jury could justifiably
infer that he had engaged in viewpoint discrimination.
Finally, the court addressed Special Agent Sheehan. It highlighted his role as site
agent in establishing the inner security perimeter around the mayor’s residence and,
together with local law enforcement, establishing checkpoints along the outer perimeter to
restrict access to Rio Grande Boulevard. There was, however, “no evidence that Special
Agent Sheehan specifically ordered local law enforcement to forbid protestors from
moving north to private property or to force protestors south from the public shoulder
across from the Mayor’s driveway.” Id. at 220. The district court nevertheless denied
him qualified immunity. It explained that Special Agent Sheehan “participated in the
briefing where Sgt. Mims instructed law enforcement officers to keep demonstrators to
the south of the Mayor’s residence,” id., and because of that participation, the evidence
suggested both that Special Agent Sheehan “possessed responsibility for the continued
operation” of a viewpoint-discriminatory policy and that he intended the disparate
treatment of protesters and supporters, id. at 221–22.
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Lt. Thomas and Sgt. Mims filed a timely notice of appeal from the district court’s
order. Later, Special Agent Sheehan filed a separate, timely notice of appeal. We have
consolidated the two appeals for our review.
II
Each official contends that the district court erred in denying him qualified
immunity. We begin in this Part II by setting forth the relevant legal standards that will
govern our decision; that includes the prerequisites for § 1983 and Bivens liability, for
overcoming defendants’ assertions of qualified immunity, and for establishing a First
Amendment viewpoint-discrimination claim. In Part III, infra, we analyze the district
court’s decision, ultimately concluding that all three defendants are entitled to qualified
immunity.
A
Sometimes, in the course of performing their duties, public officials inflict injury.
When they do, and when the injury is of constitutional dimension, officials may be liable
in their individual capacities for damages. Injured plaintiffs have a number of avenues
for recovery. One is 42 U.S.C. § 1983, which provides a cause of action against state
officials who violate constitutional or other federally protected rights. See Filiarsky v.
Delia, 132 S. Ct. 1657, 1660 (2012). A second avenue is a Bivens action—the federal
analog to a § 1983 suit—which provides a “private action for damages against federal
officers” who violate certain constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)) (internal
-22-
quotation marks omitted).
The elements necessary to establish a § 1983 or Bivens violation “will vary with
the constitutional provision at issue.” Id. at 676; see Dodds v. Richardson, 614 F.3d
1185, 1198 (10th Cir. 2010); id. at 1209 n.2 (Tymkovich, J., concurring); see also Starr v.
Baca, 652 F.3d 1202, 1206–07 (9th Cir. 2011). But common to all § 1983 and Bivens
claims is the requirement that liability be predicated on a violation traceable to a
defendant-official’s “own individual actions.” Iqbal, 556 U.S. at 676. As relevant here,
“[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Id.
This personal-involvement requirement does not mean, however, that direct
participation is necessary. As we recently recognized in Dodds, government officials
may be held responsible for constitutional violations under a theory of supervisory
liability. See 614 F.3d at 1199. “A plaintiff may therefore succeed in a § 1983
suit”—and, we may add, a Bivens action—“against a defendant-supervisor by
demonstrating: (1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.” Id.
Because § 1983 and Bivens are vehicles for imposing personal liability on
government officials, we have stressed the need for careful attention to particulars,
especially in lawsuits involving multiple defendants. “[I]t is particularly important” that
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plaintiffs “make clear exactly who is alleged to have done what to whom, . . . as
distinguished from collective allegations.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1215 (10th Cir. 2011) (alteration in original) (quoting Robbins v. Okla. ex rel.
Dep’t of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008)) (internal quotation marks
omitted). When various officials have taken different actions with respect to a plaintiff,
the plaintiff’s facile, passive-voice showing that his rights “were violated” will not
suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated
contention that “defendants” infringed his rights. See Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 532–33 (10th Cir. 1998); see also Brown v. Montoya, 662 F.3d 1152, 1165
(10th Cir. 2011) (“The Complaint refers to actions of ‘Defendants,’ but that is not
sufficient to show how Secretary Williams ‘might be individually liable for deprivations
of [Mr. Brown’s] constitutional rights.’” (alteration in original) (quoting Robbins, 519
F.3d at 1250)). Rather, it is incumbent upon a plaintiff to “identify specific actions taken
by particular defendants” in order to make out a viable § 1983 or Bivens claim.
Tonkovich, 159 F.3d at 532 (emphases added); see Lewis, 604 F.3d at 1230 (“The record
before us lacks any evidence suggesting Dr. Tripp’s involvement in any of these . . .
unlawful activities.”).
The same particularized approach applies with full force when a plaintiff proceeds
under a theory of supervisory liability. Various officials often have “different powers and
duties.” Tonkovich, 159 F.3d at 532. A plaintiff must therefore identify the specific
policies over which particular defendants possessed responsibility and that led to the
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alleged constitutional violation. See Dodds, 614 F.3d at 1203–04 (holding that the
evidence showed Defendant “may have deliberately enforced or actively maintained the
[unconstitutional] policies” and “Plaintiff has thereby presented facts that establish
personal involvement by Defendant in the alleged constitutional violation sufficient to
satisfy § 1983”); see also Brown, 662 F.3d at 1165–66 (ruling that complaint failed to
state supervisory-liability claim under § 1983 because it failed to connect defendant to the
allegedly unconstitutional policy).
Of course, in all cases, a plaintiff must show that each defendant acted with the
requisite state of mind. See Dodds, 614 F.3d at 1200 (noting that Iqbal (which concerned
Bivens liability) and § 1983 require plaintiffs to prove that “each defendant took some act
with the constitutionally applicable state of mind that caused the alleged constitutional
violation”).6
6
We pause here to note a critical distinction between Bivens and § 1983.
The latter is a statutorily conferred cause of action. The former is a cause of action
implied directly under the Constitution. The Supreme Court “has been reluctant to extend
Bivens liability to any new context or new category of defendants.” Iqbal, 556 U.S. at
675 (quoting Corr. Servs. Corp., 534 U.S. at 68) (internal quotation marks omitted); see
Minneci v. Pollard, 132 S. Ct. 617, 622 (2012) (noting that since 1980 “the Court has had
to decide in several different instances whether to imply a Bivens action” and that “in
each instance it has decided against the existence of such an action”). And the Court has
never held that a Bivens action is available against federal officials for a claim based upon
the First Amendment. See Iqbal, 556 U.S. at 675 (“[W]e have declined to extend Bivens
to a claim sounding in the First Amendment.” (citing Bush v. Lucas, 462 U.S. 367(1983))); see also Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (“We have never
held that Bivens extends to First Amendment claims.”). No argument was presented to us
on the availability of a Bivens action for a First Amendment viewpoint-discrimination
claim against a Secret Service officer actively engaged in protecting the President. We
(continued...)
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B
Damages actions against public officials under § 1983 and Bivens impose
“substantial social costs.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). They
threaten potentially significant personal liability for actions that arise out of the
performance of official duties, and they can subject officials to burdensome and
distracting litigation. This could lead to undesirable ex ante effects: reticence of officials
in carrying out important public functions and, perhaps worse, a general disaffection with
public service, rooted in the calculation that its costs simply outweigh its benefits. See
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
To avoid these and other evils, the Supreme Court has recognized that public
officials enjoy qualified immunity in civil actions that are brought against them in their
individual capacities and that arise out of the performance of their duties. See Anderson,
483 U.S. at 638. “Qualified immunity is an immunity from suit rather than a mere
defense to liability.” Lewis, 604 F.3d at 1225 (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)) (internal quotation marks omitted). And because it is “the norm” in private
actions against public officials, officials enjoy a presumption of immunity when the
defense of qualified immunity is raised. Id. (quoting Harlow, 457 U.S. at 807) (internal
quotation marks omitted); see Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011)
6
(...continued)
therefore need not and do not decide whether Bivens is available in these circumstances.
We assume, for purposes of this case only, that it is. See Reichle, 132 S. Ct. at 2093 n.4.
-26-
(“Law enforcement officers are, of course, entitled to a presumption that they are immune
from lawsuits seeking damages for conduct they undertook in the course of performing
their jobs.”). A plaintiff seeking to overcome that presumption must make a two-part
showing: first, that a public official violated the plaintiff’s constitutional (or, in the case
of a § 1983 action, more generally, federally protected) rights; and second, that these
rights were clearly established at the time of the alleged violation. See Lewis, 604 F.3d at
1225; Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). This standard,
by design, “gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085
(2011).
Often, § 1983/Bivens liability and the defense of qualified immunity travel hand-
in-hand, and when they do, we consider their substantive components together. See
Dodds, 614 F.3d at 1193–94 (“Because a plaintiff can neither recover under § 1983 from
a government official nor overcome the official’s assertion of qualified immunity without
demonstrating that [the] official violated his constitutional or statutory rights, the legal
analysis required to surmount these separate obstacles is often related, if not identical.”).
Thus, although the requirement of personal participation, including the question of
supervisory liability, is a component of liability under § 1983 and Bivens, we also
incorporate it into our qualified-immunity analysis, where we ask whether a clearly
established constitutional right has been violated. See id.; see also al-Kidd v. Ashcroft,
580 F.3d 949, 964–65 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074 (2011).
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Justice Thomas’s dissent in Hope v. Pelzer articulates the principle well:
In conducting qualified immunity analysis, . . . courts do not merely ask
whether, taking the plaintiff’s allegations as true, the plaintiff’s clearly
established rights were violated. Rather, courts must consider as well
whether each defendant’s alleged conduct violated the plaintiff’s
clearly established rights. For instance, an allegation that Defendant A
violated a plaintiff’s clearly established rights does nothing to
overcome Defendant B’s assertion of qualified immunity, absent some
allegation that Defendant B was responsible for Defendant A’s conduct.
536 U.S. 730, 751 n.9 (2002) (Thomas, J., dissenting); see also Dodds, 614 F.3d at 1194
(quoting with approval this language from Justice Thomas’s dissent in Hope).
In sum, building on our earlier discussion: To make out viable § 1983 and Bivens
claims and to overcome defendants’ assertions of qualified immunity, plaintiffs here must
establish that each defendant—whether by direct participation or by virtue of a policy
over which he possessed supervisory responsibility—caused a violation of plaintiffs’
clearly established constitutional rights, and that each defendant acted with the
constitutionally requisite state of mind. Plaintiffs must do more than show that their
rights “were violated” or that “defendants,” as a collective and undifferentiated whole,
were responsible for those violations. See Dodds, 614 F.3d at 1194 (quoting Hope, 536
U.S. at 751 n.9 (Thomas, J., dissenting)) (internal quotation marks omitted); Tonkovich,
159 F.3d at 532–33. They must identify specific actions taken by particular defendants,
or specific policies over which particular defendants possessed supervisory
responsibility, that violated their clearly established constitutional rights. See Tonkovich,
159 F.3d at 532–33. Failure to make this showing both dooms plaintiffs’ § 1983 and
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Bivens claims and entitles defendants to qualified immunity.
The district court here denied qualified immunity to defendants at the summary-
judgment stage, necessitating a few words on the scope of our appellate jurisdiction.
Although typically a denial of summary judgment is not an appealable final order, we
possess interlocutory jurisdiction when the district court denies qualified immunity at
summary judgment. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir.
2008). This is a limited jurisdiction, however, and we may review the denial only to the
extent that it “turns on an issue of law.” Mitchell, 472 U.S. at 530.
At this juncture, we generally “are not at liberty to review a district court’s factual
conclusions, such as the existence of a genuine issue of material fact for a jury to decide,
or that a plaintiff’s evidence is sufficient to support a particular factual inference.”
Fogarty, 523 F.3d at 1154 (citing Johnson, 515 U.S. at 316). That, instead, is “the district
court’s exclusive job.” Lewis, 604 F.3d at 1225. Our task is restricted to reviewing legal
questions—in particular, whether the district court’s factual determinations, taken as true,
“suffice to show a violation of law” and, further, “whether that law was clearly
established at the time of the alleged violation.” Id.7
7
The rule of Johnson, 515 U.S. 304, is not absolute and admits of exceptions.
See Lewis, 604 F.3d at 1225 (identifying “at least three”). One of these exceptions grows
out of Scott v. Harris, 550 U.S. 372, 380–81 (2007), which permits us to disregard a
district court’s factual determinations when they are “utterly discredited by the record.”
Special Agent Sheehan points out in his reply brief that the district court denied him
qualified immunity based upon the mistaken premise that he was present at Sgt. Mims’s
morning briefing on August 27. See Sheehan Reply Br. at 26 n.4. This contention has
(continued...)
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C
As noted earlier, the elements necessary to establish a § 1983 or Bivens violation
“will vary with the constitutional provision at issue.” Iqbal, 556 U.S. at 676. Plaintiffs in
this case have alleged viewpoint discrimination in violation of the First Amendment. At
the core of the First Amendment is the idea that “government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.” Police
Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). In traditional public forums, such as
sidewalks and streets, a content-based regulation of speech must meet strict scrutiny. A
content-neutral regulation, by contrast, must meet intermediate scrutiny. See Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989).
A content-based regulation is one that is “based upon either the content or the
subject matter of the speech.” Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of
N.Y., 447 U.S. 530, 536 (1980); see also Ward, 491 U.S. at 791 (asking “whether the
7
(...continued)
some force. Our review of the summary-judgment record has uncovered no evidentiary
basis for the district court’s belief that Special Agent Sheehan attended the briefing. And
astute readers will note that we did not include this fact (if it is a fact) in our description
of events, supra, because the district court itself, in the “Factual Background” section of
its own opinion, did not mention it. Furthermore, even plaintiffs did not contend in their
pleadings before the district court that Special Agent Sheehan was at the briefing. But cf.
Aplee. Br. at 14, 16, 44 (now so contending). Nevertheless, we need not decide whether
this situation comes within the Scott exception. Cf. Cooper v. Martin, 634 F.3d 477,
480–81 (8th Cir. 2011); Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009).
Special Agent Sheehan has stipulated to the district court’s determination, mistaken
though it may be, for purposes of this appeal. See Sheehan Reply Br. at 26 n.4. We
therefore take it as true that he was at Sgt. Mims’s morning briefing on August 27.
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government has adopted a regulation of speech because of disagreement with the message
it conveys”). A content-neutral regulation is one that is “justified without reference to the
content of the regulated speech.” Ward, 491 U.S. at 791 (emphasis omitted) (quoting
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)) (internal quotation
marks omitted); see Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 43 n.15 (10th Cir.
2013) (“A policy is content neutral if its restrictions do not hinge on either the viewpoint
or the subject ma[tter] of the speech.”). In distinguishing between the two, “[t]he
government’s purpose is the controlling consideration.” Ward, 491 U.S. at 791.
Viewpoint discrimination is a subset—and a particularly “egregious form”—of
content discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995); see Taylor, 713 F.3d at 43 n.15 (“Subject matter regulation is ‘not as
obnoxious as viewpoint-based regulation,’ but either form of content regulation raises
constitutional concerns.” (quoting Hill v. Colorado, 530 U.S. 703, 723 (2000)));
Ognibene v. Parks, 671 F.3d 174, 192 (2d Cir. 2012) (“Viewpoint discrimination is a
subset of content discrimination . . . .”). It occurs “[w]hen the government targets not
subject matter, but particular views taken by speakers on a subject.” Rosenberger, 515
U.S. at 829. “The government must abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the speaker is the rationale for the
restriction.” Id. Both content- and viewpoint-based speech restrictions are presumptively
invalid. See Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009); Rosenberger, 515
U.S. at 830–31; R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); see also Hill, 530
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U.S. at 769 (Kennedy, J., dissenting) (“The Court time and again has held content-based
or viewpoint-based regulations to be presumptively invalid.”).
In § 1983 and Bivens actions, a claim of viewpoint discrimination in contravention
of the First Amendment requires a plaintiff to show that the defendant acted with a
viewpoint-discriminatory purpose. See Iqbal, 556 U.S. at 676 (“Where the claim is
invidious discrimination in contravention of the First and Fifth Amendments, our
decisions make clear that the plaintiff must plead and prove that the defendant acted with
discriminatory purpose.”); Ward, 491 U.S. at 791 (“[I]n determining content neutrality,
. . . [t]he government’s purpose is the controlling consideration.”); see also Collegians for
a Constructive Tomorrow-Madison v. Regents of Univ. of Wisc. Sys., 820 F. Supp. 2d
932, 951 n.20 (W.D. Wis. 2011) (“[A] viewpoint-discrimination claim is a discrimination
claim under the First Amendment, and so Iqbal’s requirement of actual discriminatory
purpose applies.”). When government officials target speech because of “particular
views taken by speakers on a subject,” viewpoint discrimination is afoot. Rosenberger,
515 U.S. at 829.
The purpose requirement is demanding, though. It “requires more than intent as
volition or intent as awareness of consequences.” Iqbal, 556 U.S. at 676 (quoting Pers.
Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)) (internal quotation marks omitted).
“It instead involves a decisionmaker’s undertaking a course of action because of, not
merely in spite of, the action’s adverse effects upon an identifiable group.” Id. at 676–77
(alteration omitted) (quoting Feeney, 442 U.S. at 279) (internal quotation marks
-32-
omitted).8
In this case, for plaintiffs to prevail as to each defendant, they must show that the
defendant’s individual actions caused viewpoint discrimination to occur, and that those
actions were taken “because of[,] not merely in spite of, [plaintiffs’] anti-Bush message.”
Moss I, 572 F.3d at 970. Under plaintiffs’ supervisory-liability theory, they must show
that each defendant adopted and implemented the security policies at issue, not for
8
In Iqbal, when it held that a claim of discrimination rooted in the First
Amendment requires proof “that the defendant acted with discriminatory purpose,” 556
U.S. at 676, the Supreme Court relied upon its earlier decision in Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540–41 (1993). The Iqbal Court cited
a portion of Lukumi—Part II.A.2—that commanded the views of only two Justices:
Justice Kennedy (Iqbal’s author) and Justice Stevens. See Lukumi, 508 U.S. at 540–42.
Justice Scalia, joined by Chief Justice Rehnquist, wrote separately in Lukumi, specifically
declining to join Part II.A.2 of the opinion because it departed from a “focus on the object
of the laws at issue to consider the subjective motivation of the lawmakers.” Id. at 558
(Scalia, J., concurring in part and concurring in the judgment). In Justice Scalia’s view,
“it is virtually impossible to determine the singular ‘motive’ of a collective legislative
body,” and “[t]he First Amendment does not refer to the purposes for which legislators
enact laws, but to the effects of the laws enacted.” Id.
We do not read Iqbal as establishing that Part II.A.2 of the Lukumi opinion as such
now represents the view of a majority of the Justices. Rather, we read Iqbal as saying
that in the Bivens and § 1983 context, where liability is to be imposed upon an individual
defendant for discrimination in violation of the First Amendment, a plaintiff must prove a
discriminatory purpose, supported by evidence of the defendant’s subjective motivations.
Outside the Bivens and § 1983 individual-liability context, however, we believe that what
we said in Colorado Christian University v. Weaver remains good law: “Under Lukumi, it
is unnecessary to identify an invidious intent in enacting a law—only Justices Kennedy
and Stevens attached significance to evidence of the lawmakers’ subjective motivation.”
534 F.3d 1245, 1260 n.7 (10th Cir. 2008) (quoting Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1234 n.16 (11th Cir. 2004)) (internal quotation marks omitted);
see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1131–33 (9th Cir. 2009); Tenafly Eruv
Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 168 n.30 (3d Cir. 2002); Grossbaum v.
Indianapolis-Marion Cnty. Bldg. Auth., 100 F.3d 1287, 1292 & n.3 (7th Cir. 1996).
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viewpoint-neutral reasons, “but for the purpose of discriminating on account of” the
particular message plaintiffs wished to convey. Iqbal, 556 U.S. at 677; see also Moss v.
U.S. Secret Serv. (Moss II), 675 F.3d 1213, 1225 (9th Cir. 2012) (holding that plaintiffs
sufficiently stated a First Amendment viewpoint-discrimination claim when they alleged
in their complaint that Secret Service agents relocated protesters with the “impermissible
motive of shielding the President from those expressing disapproval of him or his
policies”), amended on other grounds by 711 F.3d 941 (9th Cir. 2013).
III
In light of the principles we have articulated above, we must decide whether the
district court properly denied qualified immunity to Special Agent Sheehan, Lt. Thomas,
and Sgt. Mims on plaintiffs’ viewpoint-discrimination claim. We hold that the district
court erred and that defendants are entitled to qualified immunity. More specifically, we
hold that the evidence does not demonstrate that any of the defendants violated plaintiffs’
constitutional rights. See Lewis, 604 F.3d at 1225.
In Part III.A, infra, we assess the first half of the district court’s legal discussion,
where it analyzed the presence in the abstract of a constitutional violation. We conclude
that this analysis, because it analyzes defendants’ liability as a collective whole, does not
comport with the requirements for imposing personal liability on government officials
under § 1983 and Bivens.
The district court did go on to analyze each defendant’s personal involvement in
the alleged viewpoint-discriminatory practices, and we review that portion of the district
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court’s decision in Part III.B, infra. We determine that the evidence, at most, shows that
each defendant was aware of the disparate treatment to which plaintiffs were subjected.
This evidence is insufficient as a matter of law to show that any defendant promulgated
the policies at issue or acted for a discriminatory purpose. Each defendant is therefore
entitled to qualified immunity.
A
We begin with the district court’s opening discussion of whether plaintiffs had
adequately shown a constitutional violation. In the first half of its legal analysis, the
district court determined that a reasonable jury could conclude that “law enforcement”
had subjected plaintiffs to disparate treatment, Sheehan App. at 213, and that “law
enforcement harbored a discriminatory motive to target the anti-Bush demonstrators
because of their message,” id. at 215. The court therefore concluded that the evidence
construed in plaintiffs’ favor showed that “Plaintiffs’ First Amendment rights were
violated.” Id. at 216.
The district court’s mode of analysis, however, runs clearly afoul of the standards
that must be met if plaintiffs are to make out viable § 1983 and Bivens claims and
overcome defendants’ assertions of qualified immunity. Liability under § 1983 and
Bivens requires personal involvement. Iqbal, 556 U.S. at 676. Plaintiffs must establish
that each defendant caused plaintiffs to be subjected to viewpoint discrimination and
acted with a viewpoint-discriminatory purpose. The district court must conduct a
differentiated analysis. At the summary-judgment stage, it must identify in the record
-35-
evidence the specific actions or policies for which each defendant is allegedly responsible
and the evidence bearing on each defendant’s state of mind, and then determine (as to
each defendant) whether the evidence is sufficient to go to a jury. See Dodds, 614 F.3d at
1200, 1203–04; see also Tonkovich, 159 F.3d at 532–33.
The district court failed to do this here. The court’s determinations that “law
enforcement” subjected plaintiffs to disparate treatment, Sheehan App. at 213, that “law
enforcement harbored a discriminatory motive” against plaintiffs, id. at 215, and that
plaintiffs’ First Amendment rights “were violated,” id. at 216, do not suffice to show
personal involvement by any individual defendant in viewpoint discrimination and
cannot, of themselves, overcome defendants’ qualified immunity. See Dodds, 614 F.3d at
1194 (“In conducting qualified immunity analysis . . . , courts do not merely ask whether,
taking the plaintiff’s allegations as true, the plaintiff’s clearly established rights were
violated. Rather, courts must consider as well whether each defendant’s alleged conduct
violated the plaintiff’s clearly established rights.” (emphasis added) (quoting Hope, 536
U.S. at 751 n.9 (Thomas, J., dissenting)) (internal quotation marks omitted)).
Plaintiffs insist, on the authority of our decision in Fogarty, that we are “not at
liberty to review” these factual determinations by the district court. Aplee. Br. at 26
(quoting Fogarty, 523 F.3d at 1154) (internal quotation marks omitted). They argue, for
example, that we must accept the district court’s conclusions as to “pretext” and its
consequent determination that a reasonable jury could infer that defendants acted with a
viewpoint-discriminatory purpose. We disagree for two reasons.
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First, while our limited interlocutory jurisdiction requires that we ordinarily accept
as true the district court’s factual determinations, we may review the district court’s
denial of qualified immunity “to the extent that [it] turn[s] on an issue of law.” Dodds,
614 F.3d at 1191 (quoting Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152
(10th Cir. 2010)) (internal quotation marks omitted). It follows that if the district court
commits legal error en route to a factual determination, that determination is thereby
deprived of any special solicitude it might otherwise be owed on appeal. In such an
instance, the factual determination is predicated on an erroneous legal conclusion, and
because we may review the latter, we need not accept the former as true. Cf. Bose Corp.
v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984) (“Rule 52(a) does not inhibit
an appellate court’s power to correct errors of law, including those that may infect a
so-called mixed finding of law and fact, or a finding of fact that is predicated on a
misunderstanding of the governing rule of law.”); Aguinaga v. United Food &
Commercial Workers Int’l Union, 993 F.2d 1463, 1477 (10th Cir. 1993) (“Although we
review the court’s factual determination of the amount of damages under the clearly
erroneous standard, ‘[w]e are not so constrained . . . when the trial court’s computation of
damages is predicated on a misconception of the governing rule of law.’” (alteration in
original) (quoting Chapparal Res., Inc. v. Monsanto Co., 849 F.2d 1286, 1289 (10th Cir.
1988))).
Second, plaintiffs’ argument misses the point. Our job in this appeal is to consider
the legal question whether the facts that a reasonable jury could find suffice to show a
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constitutional violation. Lewis, 604 F.3d at 1225. But even if we accept that “law
enforcement” was responsible for plaintiffs’ disparate treatment and that “law
enforcement” acted with a viewpoint-discriminatory purpose, those facts would not
suffice as a matter of law to show that any individual defendant violated the First
Amendment. See id. at 1226–27 (“The problem with th[e district court’s] discussion is
that it doesn’t tell us what [the defendant] did or where, when, or why he took any action
that might have violated [the plaintiff’s] Fourth Amendment rights.”); Tonkovich, 159
F.3d at 532 (“[T]he district court’s conclusion is infirm because it lumps all of ‘these
defendants’ together despite the fact that each of the defendants had different powers and
duties and took different actions with respect to [the plaintiff].”); see also Bishop v.
Hackel, 636 F.3d 757, 769 (6th Cir. 2011) (“The district court was simply incorrect in its
conclusion that [the plaintiff’s] testimony about complaints to unidentified corrections
officers created a genuine issue of material fact as to whether [the plaintiff] reported
abuse to the defendants in this case. . . . Determining whether a defendant is entitled to
qualified immunity requires an individual assessment of the knowledge of that
defendant.” (emphasis added)).
Liability under § 1983 and Bivens, and defendants’ entitlement to qualified
immunity, turn on an individual assessment of each defendant’s conduct and culpability.
It is that inquiry that we must now undertake.
B
Significantly, there were two sets of decisionmakers and two sets of policies in
-38-
play on the day in question. The first decisionmaker was Special Agent Sheehan. As the
site agent, he was responsible for establishing the security plan for the President’s visit.
The plan included an inner perimeter and outer perimeter, as well as the southern
checkpoint. On the day of the President’s visit, Special Agent Sheehan’s primary
responsibility was the security of the inner perimeter. Outer-perimeter responsibilities
were assigned to BCSD. As he was carrying out his duties, Special Agent Sheehan was
approached by a property owner who requested permission to engage in a political
demonstration from his private property. Secret Service policy strives to honor speech on
private property. Consistent with that policy, Special Agent Sheehan acceded to the
request.
The second set of decisionmakers consisted of Lt. Thomas and Sgt. Mims. They
assisted Special Agent Sheehan in establishing the security plan at the visit site, and their
primary responsibility on the day in question was outer-perimeter security, including
operation of the southern checkpoint. For events of this type, BCSD policy favors
directing demonstrators to a single location and keeping them in one group. According to
the district court, this policy was in place because it “helps keep order, prevents
interference with the motorcade, and helps ensure the safety of the President.” Sheehan
App. at 196. Consistent with that policy, Sgt. Mims told his deputies at the morning
briefing to direct demonstrators to the southern checkpoint, and Lt. Thomas gave similar
orders to his subordinates. The move-south directive applied to all demonstrators—but
not residents—whether or not they wished to stand on public or private property.
-39-
Two sets of decisionmakers, two different policies. But they came together that
morning to create the perfect First Amendment storm. As Lt. Thomas and Sgt. Mims
carried out the move-south policy—forcing all demonstrators to the south and declining
to draw a public-private property distinction—Special Agent Sheehan decided to allow
one group of demonstrators to remain north on private property. The move-south policy
affected only Bush protesters. Special Agent Sheehan’s decision affected only Bush
supporters. The upshot was disparate treatment of two different viewpoints. But was it
viewpoint discrimination?
1
We begin by noting that neither the Secret Service’s general policy of avoiding
interference with speech on private property nor BCSD’s general policy of keeping
demonstrators in a single group is itself a content- or viewpoint-based restriction on
speech. See Menotti v. City of Seattle, 409 F.3d 1113, 1128–29 (9th Cir. 2005)
(reviewing the content-neutrality of a speech regulation as a question of law). The Secret
Service’s policy is content- and viewpoint-neutral on its face. It draws no distinctions
based upon the content of the speech or the viewpoint of the speaker, and there is no
reason to think that, in application, it would tend to “favor some viewpoints or ideas at the
expense of others.” City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).
After all, expressions of protest are just as likely to emanate from private property as are
expressions of support. See, e.g., Jones v. Parmley, 465 F.3d 46, 52 (2d Cir. 2006)
(Sotomayor, J.). Furthermore, because “First Amendment protections . . . are especially
-40-
strong where an individual engages in speech activity from his or her own private
property,” id. at 56, the Secret Service’s policy manages in a single stroke to honor two of
our nation’s best traditions: freedom of speech and property rights. See City of Ladue v.
Gilleo, 512 U.S. 43, 58 (1994) (“A special respect for individual liberty in the home has
long been part of our culture and our law; that principle has special resonance when the
government seeks to constrain a person’s ability to speak there.” (citation omitted));
Taxpayers for Vincent, 466 U.S. at 811 (concluding that a city’s ban on speech on public
property, which did not extend to speech on private property, did not raise First
Amendment concerns because “[t]he private citizen’s interest in controlling the use of his
own property justifies the disparate treatment”); Warner v. City of Boca Raton, 64 F.
Supp. 2d 1272, 1291 (S.D. Fla. 1999) (“[T]he government has broader power to regulate
expression on public property [than on private property].” (citing Gilleo, 512 U.S. at 58));
see also Messiah Baptist Church v. Cnty. of Jefferson, 859 F.2d 820, 829 n.3 (10th Cir.
1988) (McKay, J., dissenting) (“[T]he Government interest in controlling public property
is greater than its interest in controlling private property. At stake in the instance of
private property is the individual’s interest in speech, assembly, free exercise, property,
and the uses to which their own land may be put.”).
BCSD’s policy, too, is content- and viewpoint-neutral on its face. Requiring
political demonstrators to remain in one group when the President comes to town does not
favor any one group or message over another. The same is true of a total ban on
demonstration activities within a defined geographic area, even if that area includes both
-41-
public and private property. See Citizens for Peace in Space, 477 F.3d at 1220
(recognizing that establishment of security zone for NATO conference was content-
neutral because it “drew [no] distinction based on the content of speech” and
“implemented a total ban on public expression within the security zone, regardless of the
identity of the speaker or the subject of the message”); Menotti, 409 F.3d at 1129
(evincing that establishment of a security zone for an international trade conference was
content-neutral because “persons could not protest—in support of or against—any topic
within the restricted zone”). Also, the fact that the move-south policy permitted residents,
but not demonstrators, to remain within the area encompassed by the outer perimeter does
call into question the content or viewpoint neutrality of BCSD’s policy. See Citizens for
Peace in Space, 477 F.3d at 1218 (noting that security zone was content-neutral even
though “delivery and repair persons servicing the private residences were allowed to enter
and leave the security zone, as well as social guests of the residents living in the
twenty-two homes, all of them passing through security at Checkpoint 1”).
The rub of this case is that these two viewpoint-neutral policies came together and
were implemented in such a way as to produce a viewpoint-discriminatory effect. And
plaintiffs contend not only that this effect is traceable to each defendant’s actions and
decisions, but also that each defendant intended the ultimate, disparate result—in other
words, that each defendant is liable for viewpoint discrimination.
Further complicating matters is the fact that the government officials responsible
for these policies hail from different government agencies—indeed, from different
-42-
government sovereigns. This has consequences for our First Amendment analysis in
general. Cf. Lukumi, 508 U.S. at 535 (holding that three different ordinances passed by a
single government actor, “when considered together,” were a clear “attempt to target
petitioners and their religious practices”). It also matters to our analysis under Bivens and
§ 1983.
As we have said, under § 1983 and Bivens, a public official is liable only for his
own misconduct. Iqbal, 556 U.S. at 676; Dodds, 614 F.3d at 1200. And his liability in a
supervisory capacity can be predicated only on a policy over which he possessed
“superintendent responsibilities.” Iqbal, 556 U.S. at 667. This requires our attentiveness
to the “different powers and duties” of different government officials, Tonkovich, 159
F.3d at 532, especially when their authority derives from different sources and, as here,
different sovereigns. See Kline v. N. Tex. State Univ., 782 F.2d 1229, 1235 (5th Cir.
1986) (emphasizing officials’ differing lines of authority within university and granting
them qualified immunity because no official was in a supervisory position over the
individual who harassed plaintiff).
Here, it is plain that neither Lt. Thomas nor Sgt. Mims was Special Agent
Sheehan’s supervisor; nor were they his subordinates. These two sets of officials were
coequals on the day in question, and neither was in the other’s de jure or de facto chain of
command. See Sheehan App. at 193 (“[T]he Secret Service does not have jurisdiction
over a local police officer . . . .”). See generally Printz v. United States, 521 U.S. 898,
918–22 (1997) (discussing our nation’s system of “dual sovereignty” and the distinctions
-43-
between the federal government and state officers (quoting Gregory v. Ashcroft, 501 U.S.
452, 457 (1991)) (internal quotation marks omitted)). Equally plain is that, although all
officials were cooperating in a joint effort to secure the President’s safety, there were
different government policies in play, and each official’s actions were consistent with his
own agency’s policy.
Our fact pattern, then, is a unique one: Two different but coequal sets of
government actors, each acting consistently with different agency policies in the course of
implementing a single, overall security plan, produced a disparate impact on plaintiffs’
speech. For this kind of situation, we must address what is required of plaintiffs to show
viewpoint discrimination.
Beyond doubt, disparate impact alone is not enough to render a speech restriction
content- or viewpoint-based. See Ward, 491 U.S. at 791 (“A regulation that serves
purposes unrelated to the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.”); see also Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that the injunction
covered people with a particular viewpoint does not itself render the injunction content or
viewpoint based.”); Boy Scouts of Am. v. Wyman, 335 F.3d 80, 93–94 (2d Cir. 2003)
(“[V]iewpoint disparity, standing alone, does not constitute proof of viewpoint
discrimination.”).
The Supreme Court has made clear that, for a discrimination claim rooted in the
First Amendment, a plaintiff must show that a government official “acted with
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discriminatory purpose.” Iqbal, 556 U.S. at 676 (citing Lukumi, 508 U.S. at 540–41));
see Ward, 491 U.S. at 791 (asking “whether the government has adopted a regulation of
speech because of disagreement with the message it conveys”); McGuire v. Reilly, 386
F.3d 45, 63 (1st Cir. 2004) (“Unless government actors were to intentionally enforce the
statute unequally, then any evidence of inequality that plaintiffs were to show would
merely indicate a disproportionate burden that would not signify viewpoint
discrimination.” (alterations omitted) (quoting McGuire v. Reilly, 260 F.3d 36, 44 (1st
Cir. 2001)) (internal quotation marks omitted)); Wyman, 335 F.3d at 94 (“Where a law is
on its face viewpoint neutral . . . but has a differential impact among viewpoints, the
inquiry into whether the law is in fact viewpoint discriminatory turns on the law’s
purpose.”).
Where, as here, the government policies are themselves viewpoint-neutral but in
tandem create a disparate impact, plaintiffs must show that the policies were brought
together for the purpose of discriminating against or in favor of a particular viewpoint.
See Hoye v. City of Oakland, 653 F.3d 835, 854 (9th Cir. 2011) (“Courts must be willing
to entertain the possibility that content-neutral enactments are enforced in a
content-discriminatory manner.”); McGuire, 386 F.3d at 61 (describing plaintiffs’ as-
applied challenge as contending “that the law itself is neutral and constitutional . . . , but
that it has been enforced selectively in a viewpoint discriminatory way”); Oney v. Okla.
City, 120 F.2d 861, 865–66 (10th Cir. 1941) (“But an ordinance apparently valid on its
face may be construed and applied in such a manner as to bring it within the prohibitions
-45-
of the Fourteenth Amendment.” (citing Yick Wo v. Hopkins, 118 U.S. 356, 373, 374
(1886))). Plaintiffs might show, for example, that different officials agreed to work
collaboratively to execute their respective policies or to take certain actions—each
viewpoint-neutral in isolation—with the intent of disadvantaging some message or
speaker. See Brooks v. Gaenzle, 614 F.3d 1213, 1227–28 (10th Cir. 2010) (stating that, to
establish a conspiracy under § 1983, plaintiffs must show “a combination of two or more
persons acting in concert and . . . a meeting of the minds, an agreement among the
defendants, or a general conspiratorial objective,” but cautioning that “[p]arallel
action—or inaction . . . —does not necessarily indicate an agreement to act in concert”
(quoting Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004)) (internal
quotation marks omitted)).
Furthermore, because this case arises in the Bivens and § 1983 context, plaintiffs
must show that “each defendant” harbored a discriminatory purpose. See Dodds, 614
F.3d at 1200. Thus, even if it is reasonable to infer that one public official acted with
discriminatory intent, it does not necessarily follow that another official did so as well.
See Iqbal, 556 U.S. at 677 (“In the context of determining whether there is a violation of
clearly established right to overcome qualified immunity, purpose rather than knowledge
is required to impose Bivens liability on the subordinate for unconstitutional
discrimination; the same holds true for an official charged with violations arising from his
or her superintendent responsibilities.”); Dodds, 614 F.3d at 1194 (“[A]n allegation that
Defendant A violated a plaintiff’s clearly established rights does nothing to overcome
-46-
Defendant B’s assertion of qualified immunity, absent some allegation that Defendant B
was responsible for Defendant A’s conduct.” (quoting Hope, 536 U.S. at 751 n.9
(Thomas, J., dissenting)) (internal quotation marks omitted)). Nor can the inference of
discriminatory intent be drawn by aggregating one or more officials’ actions and simply
pointing to the discriminatory effect thereof. See Tonkovich, 159 F.3d at 532. This is
especially true when officials are employed by different government sovereigns and each
acts consistently with his or her own agency’s viewpoint-neutral policy. Cf. United States
v. Uribe-Rios, 558 F.3d 347, 356 (4th Cir. 2009) (“[F]undamental principles of dual
sovereignty do not allow us to impute the knowledge of state officials to federal
officials.”).
It is this discriminatory-purpose requirement that dooms plaintiffs’ case against
Special Agent Sheehan, Lt. Thomas, and Sgt. Mims. Even taking all of the district
court’s (legally well-grounded) factual determinations as true and granting plaintiffs all
reasonable inferences in their favor, they do not demonstrate a constitutional
violation—i.e., that any defendant acted, or implemented his agency’s policy, for the
purpose of discriminating against plaintiffs’ anti-Bush message or in favor of the
supporters’ pro-Bush message.9
9
For purposes of this entire discussion, we use the terms “purpose,” “intent,”
and “motive” interchangeably to describe the subjective motivations of defendants in this
case. We recognize that there may be subtle distinctions between these terms in some
contexts. In the First Amendment viewpoint-discrimination context, however, they are
materially identical. See, e.g., Iqbal, 556 U.S. at 676–77 (using the terms “purpose” and
(continued...)
-47-
2
We start with Special Agent Sheehan. The district court found no evidence that
Special Agent Sheehan was personally involved in implementing BCSD’s move-south
policy. In particular, there is “no evidence that [he] specifically ordered local law
enforcement to forbid protestors from moving north to private property or to force
protestors south from the public shoulder across from the Mayor’s driveway.” Sheehan
App. at 220. Nor is there any evidence that, in the days leading up to the President’s visit,
Special Agent Sheehan participated in establishing BCSD’s move-south policy. Rather,
the decision to direct demonstrators to the southern checkpoint was Lt. Thomas’s and Sgt.
Mims’s alone. See Lukumi, 508 U.S. at 540 (stating that “the specific series of events
leading to the enactment or official policy in question . . . bear[s] on the question of
discriminatory object”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 267 (1977) (“The specific sequence of events leading up the challenged decision also
may shed some light on the decisionmaker’s purposes.”).
The only connection between Special Agent Sheehan and BCSD’s move-south
policy was his attendance at Sgt. Mims’s morning briefing, where Sgt. Mims instructed
local officers to push demonstrators south. The district court thought, and plaintiffs
contend, that this is enough to permit a reasonable inference that Special Agent Sheehan
acted for a viewpoint-discriminatory purpose—specifically, that he later allowed Bush
9
(...continued)
“intent” interchangeably); see also Grossbaum, 100 F.3d at 1292 n.3.
-48-
supporters to remain on private property north of the southern checkpoint because he
favored their message and disfavored that of plaintiffs. We disagree.
“[P]urposeful discrimination requires more than . . . intent as awareness of
consequences.” Iqbal, 556 U.S. at 676 (quoting Feeney, 442 U.S. at 279) (internal
quotation marks omitted). It follows, under this standard, that if the evidence shows only
that a defendant is aware of disparate treatment of two similarly situated groups—but
nothing more—then a § 1983 or Bivens claim for viewpoint discrimination must fail as a
matter of law. See Feeney, 442 U.S. at 278–80 (ruling that plaintiff failed to prove
discriminatory purpose, even though legislature was aware that the challenged law would
have a disparate impact); SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012); see
also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717–18 (2010)
(distinguishing between “knowledge” and “intent” in the context of a First Amendment
challenge to a criminal statute); Giles v. California, 554 U.S. 353, 368 (2008) (“[T]hat
knowledge is sufficient to show intent is emphatically not the modern view.”); Erwin
Chemerinsky, Constitutional Law: Principles and Policies 731 (4th ed. 2011) (“[Feeney
held that] it is not enough to prove that the government took an action with knowledge
that it would have discriminatory consequences” and “essentially . . . adopted a criminal
law definition of intent meaning the desire to cause those results.”). Put differently, a
reasonable jury cannot infer discriminatory purpose from evidence showing awareness of
consequences alone. For a plaintiff to succeed, there must be additional evidence—direct
or circumstantial—that the defendant acted “for the purpose of discriminating on account
-49-
of” viewpoint. Iqbal, 556 U.S. at 677.
That standard has not been met with respect to Special Agent Sheehan. All that his
attendance at Sgt. Mims’s morning briefing shows is that he was aware that BCSD
officers would be enforcing the move-south policy and that this policy did not draw a
distinction between public and private property. The most that we or a reasonable jury
could say, then, is that when Special Agent Sheehan allowed supporters to remain on
private property north of the southern checkpoint, he was aware that a disparate impact
would result from his decision. That is not enough to vault plaintiffs over the hurdle of
Special Agent Sheehan’s qualified immunity.
We think any inference of viewpoint discrimination is further weakened by the fact
that Special Agent Sheehan’s decision was consistent with his own agency’s facially
viewpoint-neutral policy. When a law or policy, though facially legitimate, is selectively
enforced or subject to exceptions, it may suggest that content or viewpoint discrimination
is afoot. See Gilleo, 512 U.S. at 52 (noting that “[e]xemptions from an otherwise
legitimate regulation of a medium of speech” increase the “risks of viewpoint and content
discrimination” and “may diminish the credibility of the government’s rationale for
restricting speech”); Taxpayers for Vincent, 466 U.S. at 816 (“To create an exception for
appellees’ political speech and not these other types of speech might create a risk of
engaging in constitutionally forbidden content discrimination.”).
Indeed, an inference of viewpoint discrimination might be stronger here if Special
Agent Sheehan’s decision allowing supporters to remain on private property represented a
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deviation from Secret Service policy. See Arlington Heights, 429 U.S. at 267
(“Departures from the normal procedural sequence . . . might afford evidence that
improper purposes are playing a role.”); Buck v. City of Albuquerque, 549 F.3d 1269,
1280 (10th Cir. 2008) (ruling that evidence was sufficient to show APD official’s
personal, direct involvement in unconstitutional arrests in part because he “deviated from
the APD’s general policy”); cf. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1138
n.11 (10th Cir. 2008) (noting that “disturbing procedural irregularities, including
deviations from normal company procedure, provide support for a plaintiff’s assertion”
that an employer acted with discriminatory intent (quoting Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1219–20 (10th Cir. 2002)) (internal quotation marks omitted));
United States v. Martinez, 983 F.2d 968, 972 (10th Cir. 1992) (“[T]o show pretext [in the
Fourth Amendment context], the law enforcement officer must deviate from his usual
practice.” (quoting United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990))
(internal quotation marks omitted)). The inference would be stronger, too, if there were a
“pattern of unlawful favoritism.” Thomas v. Chi. Park Dist., 534 U.S. 316, 325 (2002).
None of these circumstances suggestive of a discriminatory motive are present in this
case. Indeed, to the contrary, because Special Agent Sheehan’s decision was in line with
Secret Service policy, and because that policy was itself legitimate, this tempers any
inference of a discriminatory motive. See Feeney, 442 U.S. at 279 n.25.10
10
Another strong case for discriminatory intent might have been made if in
fact Special Agent Sheehan had some opportunity that morning to accord equal treatment
(continued...)
-51-
The district court thought an inference of discriminatory intent could be drawn
because “Defendants” (a term that included Special Agent Sheehan) “ha[d] proffered no
legitimate reason as to why the anti-Bush protestors could not stand near the pro-Bush
supporters on the adjacent public shoulder.” Sheehan App. at 214. But no inference of
discriminatory intent can be made on that basis.
The First Amendment does not impose upon public officials an affirmative duty to
ensure a balanced presentation of competing viewpoints. See Husain v. Springer, 494
F.3d 108, 130 (2d Cir. 2007). To the contrary, freedom of speech is a negative liberty.
The First Amendment is a restriction on the government’s power to “abridg[e]” speech,
U.S. Const. amend. I, not a source of government power—much less a mandate—to
orchestrate public discussion. See Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S.
Ct. 2277, 2288 (2012) (“The government may not prohibit the dissemination of ideas that
it disfavors, nor compel the endorsement of ideas that it approves. And the ability of like-
minded individuals to associate for the purpose of expressing commonly held views may
10
(...continued)
to both protesters and supporters and then failed to do so. See Hays Cnty. Guardian v.
Supple, 969 F.2d 111, 122 (5th Cir. 1992) (rejecting First Amendment challenge to
university regulation that gave university official discretion to designate certain areas of
campus for placement of newsstands because “[o]nce such areas have been designated,
. . . any newspaper could place its stand in the area without further approval” and the
“regulation provides no opportunity to discriminate among different publications”);
Bronze Shields, Inc. v. N.J. Dep’t of Civil Serv., 667 F.2d 1074, 1087 (3d Cir. 1981) (“To
prove intentional discrimination, the opportunity to discriminate must be shown to have
been exploited.” (emphasis added)). But Special Agent Sheehan never had any such
opportunity. Indeed, the evidence does not show any contact whatsoever between him
and protesters that morning.
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not be curtailed.” (citations omitted)); United States v. Stevens, 130 S. Ct. 1577, 1584
(2010) (“[A]s a general matter, the First Amendment means that government has no
power to restrict expression . . . .” (alteration in original) (quoting Ashcroft v. ACLU, 535
U.S. 564, 573 (2002)) (internal quotation marks omitted)); Cohen v. California, 403 U.S.
15, 24 (1971) (“[The First Amendment] is designed and intended to remove governmental
restraints from the arena of public discussion, putting the decision as to what views shall
be voiced largely into the hands of each of us . . . .”); Toledo Area AFL-CIO Council v.
Pizza, 154 F.3d 307, 319 (6th Cir. 1998) (“[T]he First Amendment only protects
individuals’ ‘negative’ rights to be free from government action and does not create
‘positive’ rights—requirements that the government act.” (quoting Bradley A. Smith,
Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 Geo. L.J. 45, 67
(1997)) (internal quotation marks omitted)). Special Agent Sheehan’s decision to allow
Bush supporters to remain on nearby private property did not impose upon him a
corresponding duty to relocate Bush protesters to a more favorable location.
Accordingly, his failure to do what the First Amendment does not require of him cannot
give rise to an inference of viewpoint discrimination.
The most that the evidence shows with respect to Special Agent Sheehan is that he
knew his actions, though consistent with Secret Service policy, would, in conjunction
with the independent actions of BCSD officials, result in disparate treatment of supporters
and protesters. This is legally insufficient to establish viewpoint discrimination, and we
must reverse the district court’s denial of qualified immunity to Special Agent Sheehan.
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3
We turn next to Lt. Thomas. Sometime during the course of enforcing the move-
south policy that morning, he learned of Special Agent Sheehan’s decision with respect to
the Bush supporters. His response was “Fine.” Sheehan App. at 204. He did not alter the
move-south policy in response to Special Agent Sheehan’s actions. The district court
thought a reasonable jury could infer that Lt. Thomas harbored a discriminatory purpose
because he possessed responsibility for the move-south policy but “knowingly acquiesced
in the decision not to interfere with the pro-Bush supporters who remained on or near
their private property during the event.” Id. at 218. We must disagree with the district
court.
There is no evidence that Lt. Thomas had any hand in Special Agent Sheehan’s
decision to allow supporters to remain north of the southern checkpoint on private
property. The only activity that connects Lt. Thomas to that decision is his knowledge of
and acquiescence in it. That, however, is plainly insufficient to allow a reasonable jury to
infer a discriminatory purpose. The most that the evidence shows with respect to Lt.
Thomas is that he became aware that the actions of a different official—one who was not
in his chain of command and, indeed, worked for a separate sovereign—would, in
conjunction with his own policy, result in disparate treatment of the Bush protesters. But
Lt. Thomas’s “awareness of consequences,” as a matter of law, does not suffice to show
that he promulgated or implemented the move-south policy for a discriminatory purpose.
Iqbal, 556 U.S. at 676 (quoting Feeney, 442 U.S. at 279) (internal quotation marks
-54-
omitted).
Furthermore, as with Special Agent Sheehan, any inference that Lt. Thomas acted
for a discriminatory purpose is made weaker by the consistency between his actions and
BCSD policy. See Bloedorn v. Grube, 631 F.3d 1218, 1237 (11th Cir. 2011); Wells v.
City & Cnty. of Denver, 257 F.3d 1132, 1151 (10th Cir. 2001); Hawkins v. City & Cnty.
of Denver, 170 F.3d 1281, 1288–89 (10th Cir. 1999). Indeed, the reasonableness of such
an inference nears the vanishing point when one considers that Lt. Thomas had
promulgated and was implementing the move-south policy before Special Agent
Sheehan’s decision regarding the Bush supporters and continued to implement the policy
thereafter.
The district court thought that a jury could infer Lt. Thomas’s discriminatory
motives because he could have allowed protesters to “stand near the pro-Bush supporters
on the adjacent public shoulder.” Sheehan App. at 214. In essence, the district court
reasoned that, to foreclose an inference of viewpoint discrimination, public officials must
permit exceptions to their otherwise viewpoint-neutral policies to avoid a disparate
impact. We think that turns traditional First Amendment principles on their head.
Traditionally, it is the exceptions to otherwise legitimate policies that raise content-
and viewpoint-neutrality problems, not the other way around. See Gilleo, 512 U.S. at 52;
Taxpayers for Vincent, 466 U.S. at 816; Corales v. Bennett, 567 F.3d 554, 567 (9th Cir.
2009) (“[G]ranting Plaintiffs an exemption to the otherwise generally applicable rule
would cast suspicion on the Constitutionality of the rule itself, because it would no longer
-55-
be content-neutral in application.” (citing Carey v. Brown, 447 U.S. 455 (1980))); see
also United States v. Albertini, 472 U.S. 675, 688 (1985) (“The First Amendment does
not bar application of a neutral regulation that incidentally burdens speech merely
because a party contends that allowing an exception in the particular case will not
threaten important government interests.”). The First Amendment did not require Lt.
Thomas to make an exception to the move-south policy in response to Special Agent
Sheehan’s (independent) decision. Furthermore, as we discussed in connection with
Special Agent Sheehan, the First Amendment does not impose upon public officials an
affirmative duty to ensure a balanced presentation of competing viewpoints. See Husain,
494 F.3d at 130. Accordingly, we would be hard-pressed to infer discriminatory motive
from Lt. Thomas’s failure to permit the Bush protestors to stand on the adjacent public
shoulder near the Bush supporters, in contravention of BCSD’s move-south policy.
Of course, it is true that, once Special Agent Sheehan allowed the Bush supporters
to remain north of the southern checkpoint, Lt. Thomas did not apply the move-south
policy to them. But that consequence flowed from Special Agent Sheehan’s decision
(and in turn from Secret Service policy) and did not derive from a policy over which Lt.
Thomas had supervisory control. See Tonkovich, 159 F.3d at 532 (noting the need for
attention to defendants’ “different powers and duties” in the § 1983 context). Special
Agent Sheehan was not Lt. Thomas’s subordinate or vice-versa, and nothing in law or in
fact imposed responsibility upon Lt. Thomas for Special Agent Sheehan’s actions. Cf.
Dodds, 614 F.3d at 1203 (“Oklahoma law made Defendant responsible for the policies
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that operated and were enforced by his subordinates at the jail.”).
Even more importantly, we can perceive no basis, in the First Amendment or
otherwise, for requiring Lt. Thomas to override Special Agent Sheehan’s decision. We
will not require local law enforcement officers to go head to head with Secret Service
agents in order to avoid § 1983 liability, especially when all are engaged in a joint effort
to protect the President. See Watts v. United States, 394 U.S. 705, 707 (1969) (“The
Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of
its Chief Executive.”); see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“[The
qualified immunity standard’s] accommodation for reasonable error exists because
officials should not err always on the side of caution because they fear being sued. Our
national experience has taught that this principle is nowhere more important than when
the specter of Presidential assassination is raised.” (quoting Davis v. Scherer, 468 U.S.
183, 196 (1984)) (internal quotation marks omitted)); see also Reichle, 132 S. Ct. at 2097
(Ginsburg, J., concurring in the judgment) (“Officers 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.”).
Nor do we attach any legal significance to the fact that Lt. Thomas subsequently
stationed several law enforcement officers in front of the group of supporters after Special
Agent Sheehan permitted them to stay. The district court thought that this action
undercut the security and manpower rationales advanced for the move-south policy and
suggested pretext. See Sheehan App. at 214, 216. We disagree. See Weaver v. Chavez,
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458 F.3d 1096, 1101 (10th Cir. 2006) (“[T]he ‘rule of independent review’ assigns to
th[is] court the job of evaluating the ultimate constitutional significance of the facts.”
(quoting Bose, 466 U.S. at 501) (internal quotation marks omitted)). The move-south
policy was established by BCSD before the day’s events unfolded. The fact that BCSD
staffing levels could accommodate an exception to the policy—that was made
independently by an official of a separate agency, working for a separate sovereign—does
not undercut the policy’s basic purposes or content neutrality. See Citizens for Peace in
Space, 477 F.3d at 1219, 1220 (recognizing the content neutrality of restricted-zone
speech ban, even though the evidence showed staffing levels adequate to permit
exceptions for plaintiffs’ and others’ demonstrations); see also Albertini, 472 U.S. at 688.
Accordingly, in our view, these facts do not implicate Lt. Thomas in viewpoint
discrimination. If anything, his stationing of officers in front of supporters reinforces his
proffered security concerns, and also tended to equalize treatment of supporters and
protesters; recall, the latter were compelled to stand behind a barricade, comprised in part
of horse-mounted officers.
The most that the evidence shows with respect to Lt. Thomas is that he knew his
continued enforcement of the move-south policy would, in conjunction with the
independent decision of Special Agent Sheehan, result in disparate treatment of
supporters and protesters. This is legally insufficient to establish viewpoint
discrimination; accordingly, we must reverse the district court’s denial of qualified
immunity to Lt. Thomas.
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4
The facts with respect to Sgt. Mims are identical in all material respects to the facts
with respect to Lt. Thomas. As with Lt. Thomas, the district court predicated Sgt. Mims’s
personal liability for viewpoint discrimination on the fact that he possessed responsibility
for the move-south policy and that he “knew of and did not interfere with the pro-Bush
supporters’ demonstration across from the Mayor’s driveway.” Sheehan App. at 220.
But Sgt. Mims did not personally participate in Special Agent Sheehan’s decision and
was not responsible for it in a supervisory capacity. His mere knowledge of and
acquiescence in that decision are insufficient as a matter of law to amount to a viewpoint-
discriminatory purpose. See Iqbal, 556 U.S. at 676–77; Feeney, 442 U.S. at 278–80.
And because the First Amendment neither required Sgt. Mims to make an exception to
the move-south policy in response to Special Agent Sheehan’s decision nor required him
to override that decision, Sgt. Mims’s inaction in the face of the disparate treatment of
plaintiffs cannot give rise to an inference of discriminatory intent. We therefore reverse
the district court’s denial of qualified immunity to Sgt. Mims.
IV
The district court’s judgment is REVERSED. The case is REMANDED with
instructions to the district court to enter summary judgment on the grounds of qualified
immunity in favor of Special Agent Sheehan, Lt. Thomas, and Sgt. Mims.
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Appendix
Satellite image of the presidential visit site
Los Ranchos de Albuquerque, New Mexico
President Bush’s
motorcade route
Mayor’s driveway
Approximate location
of supporters
Approximate location
of southern checkpoint
and protesters
Underlying imagery and map data © 2012 Google
Labels and lines in red added by the Court