Moss v. U.S. Secret Service

Under the First Amendment, officers or agents are not entitled to qualified immunity when there is facial viewpoint discrimination or prevention of demonstration of opposing views. Under the Fourth Amendment, the plaintiff must establish a plausible claim specifically against an individual in order for the claim to move forward.

A group of anti-Bush protestors were forcibly moved to a comparable distance than a group of pro-Bush demonstrators while the President was in Jacksonville, Oregon. The protestors sued the United States Secret Service on the base of violating their First Amendment rights, claiming that they were forcibly moved to a farther distance than a pro-bush group, therefore discriminating them based on their viewpoint. They also claim that even if it was not a viewpoint discriminatory action, they were moved far enough from the President so that he could not hear the anti-Bush ideas. The second claim is against Superintended Ruecker and Captain Rodriguez for excessive forced used. The U.S. Secret Service, Ruecker and Rodriguez filed a motion to dismiss based on qualified immunity. In regards to the First Amendment, the Court held that the U.S. Secret Service agents were not entitled to dismissal based on qualified immunity because the protestors had presented a plausible claim that they had their freedom of speech had been restricted by discriminating them based on their viewpoint and by suppressing them from expressing their particular viewpoint. The Court further explained that because the protestors were moved two blocks farther than the pro-Bush demonstrators, they were being discriminating based on their viewpoint. Also, that they were being preventing from expressing their ideas by being moved far enough for the President not to be able to hear them. The U.S. Secret Service contended that they were protecting the President from people coming within handgun and explosive range. The protestors responded by showing that the pro-Bush demonstrators were allowed to gather around the place where the President was staying. Under the Fourth Amendment, the Court held that the protestors had not established a plausible claim because they did not have sufficient facts supporting that Ruecker and Rodriguez were responsible for the excessive force used. They were not present at the moment the incident happened. The court held that they were entitled to dismissal based on qualified immunity. AFFIRMED IN PART, REVERSE IN PART AND REMANDED.