With permission from local law enforcement officials, a group of supporters and a group of protesters assembled on opposite sides of the street on which the President’s motorcade was to travel. At the last minute, the President decided to make an unscheduled stop at a restaurant for dinner. As a result, the President’s motorcade deviated from the planned route and proceeded to the outdoor dining area of the restaurant. After learning of the route change, the protestors moved down the sidewalk to the area in front of the restaurant, while the President’s supporters remained at their original location. At their new location, the protesters had a direct line of sight to the outdoor patio where the President was located. At the direction of Secret Service agents, state and local police officers cleared the block on which the restaurant was located and moved the protesters two blocks away to a street beyond handgun or explosive reach of the President. The move placed the protesters one block farther away from the restaurant than the supporters. After the President dined, the motorcade left the restaurant and passed the President’s supporters who had remained in their original location. The protesters remained two blocks away, beyond the President’s sight.
The protestors sued the Secret Service agents, claiming the agents engaged in viewpoint discrimination, in violation of the First Amendment. Specifically, the protesters claimed the agents denied the protesters equal access to the President when the agents moved the protesters away from the restaurant while allowing the supporters to remain in their original location.
Whether the appellate court improperly denied qualified immunity to the Secret Service agents when it concluded that pro and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was traveling by motorcade?
Yes. The agents were entitled to qualified immunity.
Qualified immunity protects government officials from liability for civil damages unless the plaintiff can establish the official violated a statutory or constitutional right, and that the right was clearly established at the time of the incident.
First, the court stated it has never held a violation of a right guaranteed by the First Amendment gives rise to an implied cause of action for damages against federal officers. However, without deciding the issue, the court assumed an individual could sue a federal official for a First Amendment violation.
Next, the court held no clearly established law required Secret Service agents engaged in crowd control to ensure that groups with differing viewpoints are at comparable locations or maintain equal distances from the President. The court noted when the 200 to 300 protesters moved from their original location to the area closer to the restaurant, they were within weapons range and had a largely unobstructed view of the President on the restaurant’s patio. Consequently, because of their location the protesters posed a potential security risk to the President. In contrast, the supporters, who remained in their original location, did not pose a security risk because a large two-story building blocked their line of sight and weapons access to the patio where the President dined.
572 U.S. ___, 134 S. Ct. 2056 (2014)