Argument preview: Crowd control — or message control?
At 10 a.m. next Wednesday, the Supreme Court will hold one hour of oral argument on pleas by two Secret Service agents for immunity from a lawsuit claiming that they had put demonstrators protesting presidential policies at a disadvantage because of their political views. Arguing for the agents in Wood v. Moss will be Deputy U.S. Solicitor General Ian H. Gershengorn. Representing the demonstrators will be Steven M. Wilker of Tonkon Torp LLP in Portland, Oregon.
With not very many exceptions, most government officials can be held personally to blame and accountable for violating someone’s constitutional rights. But to win a civil rights case like that against an official, there must be proof that the official’s action did involve a right that actually existed, and proof that it was clearly in existence and recognized by the courts at the time of the incident. If either is lacking, a lawsuit cannot even go to trial; it will be dismissed.
What is at stake in such cases is what judges and lawyers call “qualified immunity.” It is not total immunity, in the sense that no lawsuit at all could even be filed. But it is a very valuable legal shield that can stop a case before it goes very far. The scope of that immunity comes up frequently in the Supreme Court, and will do so again next week in a case involving two Secret Service agents who were on the protective detail that traveled with President George W. Bush ab0ut ten years ago.
Usually, Secret Service agents assigned to protect a president have very wide discretion to decide the best way to do their job. Courts often have noted that the agents must sometimes take action in a split second or else fail, so they do not face a great deal of second-guessing. But they do not have total immunity from being sued, if there is a legal basis for denying it.
That is the situation that agents Tim Wood and Rob Savage are currently facing. In mid-October 2004, they were with President Bush while he was campaigning for reelection in Oregon. He was scheduled to stay overnight at a hotel in Jacksonville. Knowing that, a group of demonstrators unhappy with some of his administration’s policies planned to protest as he moved about the area. Another group, favorable to the president, planned to come out to support him.
After the groups had gathered on opposite sides of the street, near where the president would be staying, Bush changed his mind and decided to go out to dinner at an outdoor patio of the hotel’s restaurant. Hearing of that unscheduled plan, both groups moved closer. What happened next led to the lawsuit against the agents, and what happened still remains in dispute.
The anti-Bush demonstrators would claim in their lawsuit that Secret Service agents told local police to move that group further away from the restaurant. That, they claimed, put them further from the president — and thus less likely to be heard — than the pro-Bush demonstrators were at the time. They also claimed that the agents ordered that they be put farther away from the path of the route the president’s motorcade would take to the hotel.
Although the lawsuit was aimed at several agents as well as state and local police officers, the only federal officers remaining in the case are agents Wood and Savage, and the claims against others are on hold temporarily. wound up as a claim against agents Wood and Savage Their actions, the demonstrators argued, were designed to squelch the protest against Bush policies, and thus were a form of discrimination based on the content of the message — a claimed violation of First Amendment free-speech rights.
The Secret Service, then and still, has contended that the anti-Bush group was closer to the president than the other demonstrators, so there were security reasons for moving them back. There simply was no basis, the agents have argued, for concluding that their actions were based upon discrimination because of the views of the anti-Bush crowd.
Ultimately, the U.S. Court of Appeals for the Ninth Circuit ruled that the lawsuit could go forward against Wood and Savage, finding a sufficient basis for trial on the claim that the anti-Bush demonstrators were singled out for less favorable treatment than those supporting the president. The appeals court credited the demonstrators’ claim that they posed no security threat to the president, so their removal further from the scene was unnecessary from that perspective.
The appeals court said it was clearly established at that time that government officials may not discriminate against individuals based upon the views they hold or express. The scene near President Bush, that court concluded, was a “public forum,” so differing points of view had to have equal access.
Although the appeals court refused to reconsider the case before the full en banc court, eight judges dissented, arguing that the decision had created a new First Amendment right of equal access to public officials for the purpose of protesting official policies.
Petition for certiorari
Agents Wood and Savage, represented by Justice Department lawyers, took their case to the Supreme Court last July. They raised two questions: whether the appeals court was wrong in finding a right of anti-Bush demonstrators to have equal access to the president, and whether the demonstrators lacked any factual basis for claiming a discriminatory motive for actions that were based upon security concerns.
The Ninth Circuit, the petition contended, was so far off the mark legally that the Court should consider swiftly overturning the decision without further written briefs or oral argument.
The demonstrators, represented by lawyers with the American Civil Liberties Union, urged the Court to bypass the case. They contended that the Ninth Circuit had not created a new or novel right, and that the lower court had faithfully applied existing law on when the claims made in a lawsuit are sufficiently plausible to enable the case to go forward to a trial.
Briefs on the merits
The agents’ brief on the merits makes an opening thrust by questioning whether there is or has ever been any right to sue federal government officials personally for constitutional violations based on the First Amendment. That depends at least to a degree upon the Court accepting the view that the Ninth Circuit in this case did create a new right under that amendment, and that is a basic question.
But the agents’ brief noted that the Supreme Court has been cautious in recognizing new constitutional rights as the basis for lawsuits against federal officials. The Court in 1971 first created an opportunity for individuals to sue federal officials for violating constitutional rights — that is, a lawsuit based directly on the Constitution, not on any civil rights law as such.
That ruling came in the case of Bivens v. Six Unknown Agents, and although that decision had promise at the time of opening a wide new field for suing federal officials, the Court has subsequently seldom recognized new constitutional claims as it fleshed out the concept of officials’ legal immunity.
If that thrust does not work for the agents, their brief then focused heavily upon several points keyed to whether the demonstrators had produced enough facts to justify letting their case go forward on the discriminatory motive premise. The result, the filing contended, is that the Ninth Circuit imagined the existence of a right at “an abstract or general level.”
The lower court denied immunity to the agents, the brief said, “based on the broad general proposition that viewpoint discrimination is unlawful.” The agents thus had no notice, as they sought to “establish a security perimeter” around the president, that their actions would violate the First Amendment, the brief asserted.
The brief did concede, at least partly, that the agents may have taken the steps they did toward the demonstrators partly because they were opposed to President Bush’s policies — in other words, partly because of their political viewpoint. Nothing in Supreme Court precedents, the filing said, requires a Secret Service agent to disregard what someone says when they come close to a president.
Addressing the demonstrators’ claim that the agents were acting out of bias against their political point of view, the agents’ brief said what they did is far more consistent with a security rationale than with discriminatory motive. “Someone in the group of 200 to 500 demonstrators, or someone with illicit designs using the demonstrations as cover, could easily have thrown an explosive device within range of the President,” the agents claimed.
The claims, it concluded, simply do not cross the line from “conceivable” to “plausible,” as the brief said they must do to keep their case alive for further preparation and for a trial.
The demonstrators’ brief on the merits has a two-fold approach: a procedural argument, saying that the agents were asking the Court to accept their view of the facts rather than that of the demonstrators when the weighing was being done on the question of dismissing the case at the outset, and a substantive argument, saying that the demonstrators’ lawsuit clearly showed that the Secret Service — at least during President Bush’s administrations — had an actual policy, repeated at least a dozen times, of suppressing the activities of anti-Bush protesters at presidential events.
This brief, too, sought to draw the Court into an exploration of the right way to weigh the contents of a complaint that opens a lawsuit — that is, the “pleading standards.” The government, the demonstrators’ filing said, had sought to bring into the case new facts that were not a part of the record, to contest the facts that the demonstrators had clearly asserted in their lawsuit.
The lower courts did as they were required to do, the brief said, and accepted for purposes of keeping the case alive “all facts and reasonable inferences” in a way most favorable to those who sued. “It is inappropriate,” the filing argued, for the agents “to attempt to rewrite or recharacterize” the facts as claimed by the demonstrators, or to argue that the evidence will support the government when a trial actually began.
The demonstrators also made a simple constitutional argument, saying that it has long been clear that government officials may not suppress viewpoints with which they disagree, and that “there is no Secret Service exception to the First Amendment.”
The case has not drawn a heavy outpouring of amicus briefs, with one on the agents’ side, two on the demonstrators’ side, and one straddling the two sides. Much of the content of the amici‘s arguments focuses on how the Court should continue to develop the “pleading standards” that determine when a lawsuit makes claims that are sufficiently strong to be allowed to move ahead toward trial.
If the Court granted review in this case to focus on the conduct of Secret Service agents as they provide security for the president, the agents’ chances of winning will have risen significantly. Just two terms ago, the Court — in a case involving a protester who accosted Vice President Dick Cheney — ruled clearly for the agents, and warned against questioning too closely the means they choose to protect high government officials (Reichle v. Howards).
And the agents also would seem to have a distinct advantage if the Court were to perceive the demonstrators as seeking — and the Ninth Circuit as creating — a new constitutional right, under the Bivens right-to-sue rationale. The Court has routinely denied just such requests in recent years. And that, of course, is why the demonstrators, in their arguments to the Court, have gone to such lengths to try to show that their claim of viewpoint discrimination has a very long history and a noble pedigree, and why the agents have gone to such lengths to treat it as entirely new and novel.
If, however, the Court were to see this case as a significant new test of pleading standards — that is, what constitutes a “plausible” set of claims in a lawsuit and how lower courts are to determine that — then the case may be more of a toss-up for the Court.
That might well lead the Justices to give a very concentrated look at just what the demonstrators alleged in their complaint, and that could be to the demonstrators’ advantage. That is where they marshaled the argument that the Secret Service has repeatedly sought to suppress dissenting expressions around presidents, giving an added patina of “plausibility” to their claim of viewpoint discrimination.
The amicus briefs, though few in number, are notably helpful to the Court in taking on a sequel case on the strength of legal complaints.
Again, though, the Court’s interest in focusing upon that may well depend upon how willing it is to look beyond the Secret Service’s protective mission.