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Moss v. U.S. Secret Service

Court of Appeals for the Ninth Circuit
2009 WL 2052985, 572 F.3d 962, 2009 U.S. App. LEXIS 15694 (2009)
ELI5:

Rule of Law:

To survive a motion to dismiss, a complaint alleging unconstitutional motive must contain sufficient non-conclusory factual allegations that, taken as true, state a claim for relief that is plausible on its face, not merely possible.


Facts:

  • On October 14, 2004, President George W. Bush was dining at the Jacksonville Inn in Oregon.
  • Plaintiffs, a group of approximately 200 anti-Bush demonstrators, assembled peacefully on the sidewalk in front of the Inn.
  • A separate group of pro-Bush demonstrators assembled one block west of the Plaintiffs' location.
  • The anti-Bush protestors' chants were audible from the patio where the President was dining.
  • Dozens of unscreened hotel guests and diners were permitted to remain inside the Inn near the President.
  • Secret Service Agents Tim Wood and Rob Savage directed local police to clear the street where the Plaintiffs were demonstrating, citing the need to keep people outside of handgun or explosive range of the President.
  • The pro-Bush demonstration was allowed to continue without interruption.

Procedural Posture:

  • Plaintiffs sued Secret Service Agents Wood and Savage, among others, in the U.S. District Court, alleging violations of their First Amendment rights.
  • The Agents filed a motion to dismiss based on qualified immunity or, alternatively, for summary judgment.
  • The district court stayed discovery at the Agents' request pending a ruling on the motion to dismiss.
  • A magistrate judge recommended denying the Agents' motion to dismiss on the First Amendment claim.
  • The district court adopted the magistrate's recommendation, denying the Agents' motion to dismiss on qualified immunity grounds.
  • The Agents (Defendants-Appellants) filed an interlocutory appeal of the denial of their motion to dismiss to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does a complaint state a plausible First Amendment viewpoint discrimination claim when it alleges that Secret Service agents ordered the relocation of anti-government protestors while leaving pro-government protestors undisturbed, but fails to plead specific facts making the inference of discriminatory motive more plausible than a neutral security-based explanation?


Opinions:

Majority - Tashima, Circuit Judge

No. A complaint does not state a plausible First Amendment claim under the standards of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal where its factual allegations are merely consistent with a defendant's liability but do not cross the line from possibility to plausibility. The court determined that bald allegations of impermissible motive are legal conclusions not entitled to an assumption of truth. The remaining factual allegations—that pro-Bush protestors were not moved and that diners were not screened—did not make the claim of viewpoint discrimination plausible. The court found that the diners were not similarly situated to protestors engaged in expressive activity. Furthermore, the relocation of the anti-Bush protestors created a consistent security perimeter at a distance comparable to the location of the pro-Bush group, making a security-based motive a more obvious and plausible explanation than a discriminatory one. Therefore, the complaint failed to allege facts sufficient to support a reasonable inference that the Agents acted because of the protestors' anti-Bush message.



Analysis:

This case illustrates the significant impact of the Twombly/Iqbal plausibility pleading standard on civil rights litigation, particularly in cases where a government official's motive is a central element of the claim. By requiring plaintiffs to plead specific facts that make an unconstitutional motive plausible—not just possible—the decision raises the barrier to entry for litigation. This standard makes it more difficult for plaintiffs to proceed to discovery, where they might obtain the very evidence needed to prove discriminatory intent, thereby strengthening qualified immunity defenses at the earliest stage of a lawsuit.

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