SECRET SERVICE AGENTS ARE ENTITLED TO QUALIFIED IMMUNITY FOR RELOCATING PROTESTERS A GREATER DISTANCE FROM THE PRESIDENT THAN SUPPORTERS AFTER UNPLANNED STOP OF MOTORCADE CREATED SECURITY RISK ONLY FROM PROTESTERS.
On May 27, 2014, the United States Supreme Court held, in the case of Wood v. Moss, that Secret Service agents were entitled to qualified immunity from civil liability in a suit alleging they violated the First Amendment rights of persons protesting President Bush and his motorcade. The protesters alleged that, by requiring protesters to move to a location two blocks from where the President was having dinner without requiring supporters to move to a similar distance, the Secret Service violated their First Amendment rights based on the content of their speech. In reversing the Ninth Circuit, the Court held that it was not clearly established at the time that the disparate distance that the protestors and supporters were required to maintain from the President violated the First Amendment.
Facts
In October 2004, President Bush traveled by motorcade through Jacksonville, Oregon. Protestors and supporters were assigned areas where they could exercise their First Amendment right to speech along the motorcade route.
However, the motorcade made a last minute detour to a restaurant along the route that placed the President within weapons range of where the protesters had congregated, while the supporters’ area remained separated from the president by a large two-story building. Secret Service agents ordered local police to relocate the protesters two blocks away from where the president was dining. However, the Secret Service allowed the supporters to remain in their original location, which was much closer to the President’s dining area.
Several protesters filed suit against the Secret Service agents, alleging the agents’ conduct violated their First Amendment rights “by the manner in which the agents established a security perimeter around the President during his unscheduled stop for dinner.” The agents filed a motion to dismiss the case, asserting they were entitled to qualified immunity. The Ninth Circuit affirmed the District Court’s denial of the agents’ motion to dismiss, holding that “the agents were not entitled to qualified immunity because this Court’s precedent makes clear that the government may not regulate speech based on its substantive content or the message it conveys.”
Discussion
The Court observed that the doctrine of qualified immunity protects government officials from civil liability unless the plaintiff shows that the official violated a clearly established constitutional or statutory right at the time of the challenged conduct. If the law is not clearly established when the challenged action occurs, the government official is afforded the protection of qualified immunity.
While the Ninth Circuit held that the right to be free from content-based regulations was clearly established when the Secret Service agents relocated the protesters, the Supreme Court framed the question differently. Rather, the Court asked whether it should have been clear to the agents that the security perimeter they established violated the First Amendment. In rejecting the Ninth Circuit’s ruling, the Supreme Court held that no court decision would have alerted the agents engaged in crowd control that they had a First Amendment obligation “to ensure that groups with different viewpoints are at comparable locations at all times.”
The Court noted that it had only addressed a constitutional challenge to Secret Service actions once before in the case of Hunter v. Bryant, 502 U.S. 224 (1991). Hunter involved an allegation of an illegal arrest in violation of the Fourth Amendment and the application of qualified immunity in that context. In Hunter, the Court held that qualified immunity shielded the agents, in part, because “nowhere…is accommodation for reasonable error more important that when the specter of Presidential assassination is raised.” The Court also noted that “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.”
The Court reasoned that in light of the security risk posed by the proximity of the protesters’ location to the President’s, a concern not present with the supporters’ location, the agents’ actions in relocating the protesters could not be for the sole purpose of discriminating against them based upon their speech that was critical of the President. This factor, combined with the absence of a court decision requiring that agents ensure that groups with different viewpoints be located similar distances away from public officials, supported the Court’s reasoning that the Secret Service agents were shielded from liability by qualified immunity.
HOW THIS AFFECTS YOUR AGENCY
Even though much of the Court’s reasoning in Wood was tailored to the context of Secret Service agents protecting public officials, the same principles likely apply when local law enforcement is called upon to respond to public demonstrations. Legitimate security concerns may justify relocating one group of demonstrators to a greater distance away from a speaker or dignitary than another group. However, care should be taken that security concerns are not used as a pretext for discriminating against demonstrators based upon the content of their speech.
As with all legal issues, it is imperative to confer with your agency’s designated attorney for advice and guidance. However, if you wish to discuss this case in greater detail, please feel free to contact either one of us at (714) 446 – 1400 or via email at jrt@jones-mayer.com andkfc@jones-mayer.com.
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