FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MOSS; LESLEY ADAMS;
BETH WILCOX; RICHARD ROYER;
LEE FRANCES TORELLE; MISCHELLE
ELKOVICH; ANNA VINE, FKA Anna
Boyd, individually and on behalf
of a class of persons similarly
situated; JACKSON COUNTY PACIFIC
GREEN PARTY,
Plaintiffs-Appellees,
v.
UNITED STATES SECRET SERVICE, of
the Department of Homeland
Security; RALPH BASHAM, Former
Director of the United States
Secret Service, in his individual
capacity; TIM WOOD, United States
Secret Service Agent, in his
official and individual capacities;
ROB SAVAGE, United States Secret
Service Agent, in his official and
individual capacities; JOHN DOE, 1,
United States Secret Service
Agent, in his official and
individual capacities, participating
in these actions and known to the
Defendant Secret Service, but
unknown at this time to Plaintiffs;
DAVID TOWE, Chief of Police of
Jacksonville, Oregon, in his
official and individual capacities;
3817
3818 MOSS v. U.S. SECRET SERVICE
CITY OF JACKSONVILLE, a municipal
corporation of the State of
Oregon; MIKE WINTERS, Sheriff of
Jackson County, in his official and
individual capacities; JACKSON
COUNTY, a municipal corporation
of the State of Oregon; JOHN DOES,
2-20 that is, the commanding
officers if other law enforcement
agencies of public bodies
participating in these actions, in
their official and individual
capacities, known to the identified
Defendants, but unknown at this
time to Plaintiffs; MUNICIPAL DOES,
the public bodies employing
defendants John Does 2-20; MARK
SULLIVAN, Director of the United
States Secret Service, in his
official capacity,
Defendants,
and
RON RUECKER, Superintendent of
the Oregon State Police, in his
official and individual capacities;
ERIC RODRIQUEZ, former Captain of
the Southwest Regional
Headquarters of the Oregon State
Police, in his official and
individual capacities;
MOSS v. U.S. SECRET SERVICE 3819
TIM F. MCCLAIN, Superintendent
of the Oregon State Police, in his
official capacity; RANDIE MARTZ, No. 10-36152
Captain of the Southwest Regional D.C. No.
Headquarters of the Oregon State 1:06-cv-03045-CL
Police, in his official capacity,
Defendants-Appellants.
MICHAEL MOSS; LESLEY ADAMS;
BETH WILCOX; RICHARD ROYER;
LEE FRANCES TORELLE; MISCHELLE
ELKOVICH; ANNA VINE, FKA Anna
Boyd, individually and on behalf
of a class of persons similarly
situated; JACKSON COUNTY PACIFIC
GREEN PARTY,
Plaintiffs-Appellees,
v.
UNITED STATES SECRET SERVICE, of
the Department of Homeland
Security; RALPH BASHAM, Former
Director of the United States
Secret Service, in his individual
capacity; JOHN DOE, 1, United
States Secret Service Agent, in his
official and individual capacities,
participating in these actions and
known to the Defendant Secret
Service, but unknown at this time
to Plaintiffs;
3820 MOSS v. U.S. SECRET SERVICE
DAVID TOWE, Chief of Police of
Jacksonville, Oregon, in his
official and individual capacities;
CITY OF JACKSONVILLE, a municipal
corporation of the State of
Oregon; MIKE WINTERS, Sheriff of
Jackson County, in his official and
individual capacities; JACKSON
COUNTY, a municipal corporation
of the State of Oregon; JOHN DOES,
2-20 that is, the commanding
officers if other law enforcement
agencies of public bodies
participating in these actions, in
their official and individual
capacities, known to the identified
Defendants, but unknown at this
time to Plaintiffs; MUNICIPAL DOES,
the public bodies employing
defendants John Does 2-20; MARK
SULLIVAN, Director of the United
States Secret Service, in his
official capacity; RON RUECKER,
Superintendent of the Oregon
State Police, in his official and
individual capacities; ERIC
RODRIQUEZ, former Captain of the
Southwest Regional Headquarters
of the Oregon State Police, in his
official and individual capacities;
MOSS v. U.S. SECRET SERVICE 3821
TIM F. MCCLAIN, Superintendent
of the Oregon State Police, in his
official capacity; RANDIE MARTZ,
Captain of the Southwest Regional
Headquarters of the Oregon State
Police, in his official capacity,
No. 10-36172
Defendants,
and D.C. No.
1:06-cv-03045-CL
TIM WOOD, United States Secret
OPINION
Service Agent, in his official and
individual capacities; ROB SAVAGE,
United States Secret Service
Agent, in his official and
individual capacities,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
October 11, 2011—Portland, Oregon
Filed April 9, 2012
Before: David M. Ebel*, Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Berzon
*The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Cir-
cuit, sitting by designation.
3826 MOSS v. U.S. SECRET SERVICE
COUNSEL
Cecil Reniche-Smith (argued), Office of the Oregon Attorney
General, Salem, Oregon, Denise Gale Fjordbeck, Office of the
MOSS v. U.S. SECRET SERVICE 3827
Oregon Attorney General, Salem, Oregon, for defendants-
appellants Ron Ruecker and Eric Rodriguez.
Edward Himmelfarb (argued), DOJ, Washington, D.C., Jer-
emy Scott Brumbelow, DOJ, Washington, D.C., Barbara L.
Herwig, DOJ, Washington D.C., Mary Hampton Mason, DOJ,
Washington, D.C., Kelly A. Zusman, Office of the U.S. Attor-
ney, Portland, Oregon, for defendants-appellants Rob Savage
and Tim Wood.
Steven Wilker (argued), Tonkon Torp, LLP, Portland, Ore-
gon, Paul W. Conable, Tonkon Torp LLP, Portland, Oregon,
Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland,
Oregon, Arthur B. Spitzer, American Civil Liberties Union of
the National Capital Area, Washington D.C., for the
plaintiffs-appellees.
OPINION
BERZON, Circuit Judge:
During the 2004 presidential campaign, Plaintiff-Appellees,
Michael Moss and others who opposed President Bush
(“protestors” or “anti-Bush protestors”), organized a demon-
stration at a campaign stop in Jacksonville, Oregon. They
contend that Secret Service agents, Defendant-Appellants Tim
Wood and Rob Savage (“agents” or “Secret Service agents”),
engaged in unconstitutional viewpoint discrimination in viola-
tion of the First Amendment, by requiring the protestors to
demonstrate at a distance from the President because they
were protesting — rather than supporting — his policies. In
addition, the protestors maintain that the police officers who
carried out the Secret Service agents’ directions, supervised
by Defendant-Appellants Ron Ruecker, Superintendent of the
Oregon State Police, and Eric Rodriguez, Captain of the
Southwest Regional Headquarters of the Oregon State Police
3828 MOSS v. U.S. SECRET SERVICE
(“police supervisors”), used excessive force in violation of the
Fourth Amendment. They seek to hold Ruecker and Rodri-
guez liable for the use of this force.
We hold that the protestors have stated a claim against the
Secret Service agents for violation of the First Amendment.
The protestors have not, however, pleaded sufficient facts to
sustain their Fourth Amendment claim against the police
supervisors. We therefore hold that the excessive force claim
should be dismissed.
I. Factual and Procedural Background
A. Facts
During the 2004 presidential campaign, President George
W. Bush was scheduled to spend the evening of October 14,
2004 in Jacksonville, Oregon at the Jacksonville Inn Honey-
moon Cottage.1 A group of people opposed to President Bush
organized a demonstration to protest his policies. They dis-
cussed their plans with the Chief of the Jacksonville Police
and with the Jackson County Sheriff, informing both law
enforcement officials that the planned demonstration was to
be multigenerational, peaceful, and law-abiding. The Jackson
County Sheriff agreed to the proposed protest route and stated
that officers in riot gear would not be deployed unless neces-
sary. The Jacksonville Police Chief similarly stated that he did
not plan to use riot-gear-clad police.
At about 5:00 p.m. on October 14, 2004, between two and
three hundred anti-Bush protestors gathered in Griffin Park in
Jacksonville. An hour later, the protestors, in accordance with
the demonstration route they had pre-cleared with local law
enforcement, left the park and proceeded to California Street
1
Because this is an appeal from an order denying Defendants’ motion
to dismiss, the facts described are taken from Plaintiffs’ complaint and are
assumed to be true.
MOSS v. U.S. SECRET SERVICE 3829
between Third and Fourth Streets. They stood in front of the
main building of the Jacksonville Inn, approximately two
blocks south of the Inn’s Honeymoon Cottage where the Pres-
ident planned to stay.2 A similarly-sized group of pro-Bush
demonstrators gathered across Third Street from the anti-Bush
protestors.
After the two groups had gathered, the President decided to
stop for dinner at the restaurant at the Jacksonville Inn,
located in the main building. Neither group was aware that the
President would not proceed directly to the Honeymoon Cot-
tage until approximately 7:00 p.m., an hour after the demon-
strations in front of the Inn began. After learning the President
would be stopping at the restaurant, both pro- and anti-Bush
demonstrators clustered on the side of the street on which the
Inn’s main building is located. The anti-Bush demonstrators
allege that at that point, “[b]oth sets of demonstrators had
equal access to the President during his arrival at the Jackson-
ville Inn.”
Shortly before the President was to arrive at the restaurant,
the Secret Service agents on the scene requested that state and
local police officers clear the alley from Third Street to the
patio dining area behind the Inn, as well as the California
Street alley running alongside the Inn. Police officers, dressed
in riot gear, cleared these alleys. They also blocked Third
Street, north of California Street, and began preventing dem-
onstrators (both pro- and anti-Bush) from crossing the street
at the intersection of Third and California Streets.
President Bush arrived at the Jacksonville Inn at approxi-
mately 7:15 p.m. and ate dinner on the Inn’s outdoor patio,
which was enclosed by a 6-foot-high wooden fence. This
fence, along with the buildings along California Street, made
it impossible for the anti-Bush protestors to see the President.
2
A map of the area of Jacksonville in which the relevant events occurred
is attached as an appendix to this opinion.
3830 MOSS v. U.S. SECRET SERVICE
In addition, these obstacles, as well as police officers sta-
tioned around the perimeter of the Inn, prevented anyone from
walking from the demonstration site to the President’s loca-
tion on the patio.
There were several other diners on the patio in addition to
the President’s party. In addition, upstairs from the restaurant
was a group of approximately thirty people at a medical con-
ference, some of whom ventured downstairs and, finding an
unguarded door to the patio, were able to observe the Presi-
dent from a distance of approximately fifteen feet.
At about 7:30 p.m., the Secret Service agents directed state
and local police to clear California Street between Third and
Fourth Streets, where the anti-Bush protestors had been stand-
ing. They first directed the police to move the protestors to the
east side of Fourth Street. Subsequently, the agents asked that
the protestors be moved to the east side of Fifth Street. The
agents assert that they told the police that the reason for these
requests was to prevent anyone from being within handgun or
explosive range of the President. The protestors allege that
any security rationale provided by the agents to the police was
false. Neither the pro-Bush demonstrators nor anyone staying
at or visiting the Inn was required to move or to undergo
security screening. The protestors maintain that, in fact, the
real motive for the agents’ action was the suppression of the
protestors’ anti-Bush viewpoint—that is, that the agents
sought to prevent the President or the media from seeing or
hearing the protestors’ message.
In accordance with the Secret Service directive, police offi-
cers in riot gear formed a line across California Street, facing
the anti-Bush demonstrators and with their backs to the pro-
Bush demonstrators. The officers made amplified announce-
ments, unintelligible to many of the protestors, stating that the
protestors’ assembly was now unlawful, and ordering them to
move. The protestors allege that the police failed to ascertain
whether the protestors had heard and understood the direction
MOSS v. U.S. SECRET SERVICE 3831
to move, let alone give them time to move of their own
accord. Instead, officers forcibly moved the protestors, in
some cases violently shoving them, striking them with clubs,
and firing pepper spray bullets.
Once the anti-Bush protestors had been moved to the east
side of Fifth Street, the police officers divided them into two
groups and encircled the groups, preventing some protestors
from leaving the area and separating some families. The
defendant police supervisors Ruecker and Rodriguez were not
present at the protest, but the protestors allege that the two
supervisors nevertheless supervised and directed the police
action and that they were responsible for the training, or lack
thereof, that led to the force used against the protestors.
B. Procedural History
At issue in this appeal is the protestors’ second amended
complaint (“SAC”). Their first amended complaint (“FAC”)
contained several claims for relief arising out of the facts
detailed above. Only two of these claims remain at issue here:
(1) a claim for damages under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), against Secret Service Agents
Wood and Savage in their individual capacities for viewpoint
discrimination in violation of the First Amendment; and (2) a
claim for damages under 42 U.S.C. § 1983 against police
supervisors Ruecker and Rodriguez in their personal capaci-
ties for excessive force in violation of the Fourth Amendment.
After the protestors filed the FAC, the Secret Service
agents moved to dismiss. The district court denied their
motion and also denied them qualified immunity. The agents
appealed to this court. See Moss v. U.S. Secret Service, 572
F.3d 962 (9th Cir. 2009) (“Moss I”). We held that although
the facts the protestors pleaded in the FAC did “not rule out
the possibility of viewpoint discrimination,” they were insuf-
ficient to allege such a claim with the degree of precision
required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544
3832 MOSS v. U.S. SECRET SERVICE
(2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), both of
which had been decided after the protestors filed the FAC. Id.
at 971-72.
In particular, we held in Moss I that the protestors’ unsup-
ported allegations of “impermissible motive on the Agents’
part,” a “sub rosa Secret Service policy of suppressing speech
critical of the President,” and “systematic viewpoint discrimi-
nation at the highest levels of the Secret Service” were, under
the post-Iqbal pleading standards, “conclusory and . . . there-
fore not entitled to an assumption of truth.” Moss I, 572 F.3d
at 970. We further determined that the protestors’ allegation
that the agents directed the police to move the protestors to
the east side of Fourth Street was insufficient to support a
claim of viewpoint discrimination. We explained that the
Fourth Street location was “comparable” to the location of the
pro-Bush demonstrators in terms of its proximity to the Presi-
dent when he was dining at the Inn’s restaurant. Id. at 971.
Finally, Moss I held that the protestors’ allegations concern-
ing the guests and diners at the Inn who were within close
range of the President but not subject to screening or required
to move “offer[ed] little if any support for” the protestors’
viewpoint discrimination claim, because these guests and din-
ers were not seeking to communicate their views and there-
fore were not similarly situated to the protestors. Id. For these
reasons, we concluded that the protestors had “fail[ed] to
plead facts plausibly suggesting a colorable Bivens claim
against the Agents.” Id. Recognizing, however, that the FAC
had been filed before the Supreme Court decided Twombly
and Iqbal, and that it was possible the complaint could be
amended to meet the standards articulated in those cases, we
granted the protestors leave to amend. Id. at 972.
Accordingly, the protestors amended their complaint. The
SAC, the complaint at issue here, raises the same claims as
the FAC but supports these claims with more — and more
detailed — factual allegations.
MOSS v. U.S. SECRET SERVICE 3833
After the protestors filed the SAC, the Secret Service
agents again sought to dismiss the First Amendment claim.
Reviewing the agents’ motion to dismiss, the magistrate judge
to whom the case was referred concluded that the allegations
in the FAC, held by Moss I to be conclusory, were in the SAC
“supported by factual allegations and . . . thus entitled to an
assumption of truth“ and that “[v]iewing all the factual allega-
tions entitled to assumption of truth in the SAC,” the prote-
stors had “pled a plausible claim.” The state police
supervisors also filed a motion to dismiss. The magistrate rec-
ommended that this motion also be denied, explaining that
under the framework set forth by this court in al-Kidd v. Ash-
croft, 580 F.3d 949 (9th Cir. 2009), overruled on other
grounds by Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), the
protestors had pled a plausible § 1983 Fourth Amendment
claim against the supervisors. The magistrate determined that
neither the Secret Service agents on the First Amendment
claim nor the police supervisors on the Fourth Amendment
claim are entitled to qualified immunity at this stage.
The district court adopted the magistrate’s report and rec-
ommendation in full. Before us now are the Secret Service
agents’ and police supervisors’ appeals of the district court’s
denial of qualified immunity.
We begin by briefly discussing the framework for evaluat-
ing whether qualified immunity is appropriate, as that frame-
work is pertinent to both of the claims at issue. We then
address the First Amendment and Fourth Amendment claims
in turn.
II. Discussion
A. Qualified Immunity Framework
[1] “[Q]ualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
3834 MOSS v. U.S. SECRET SERVICE
of which a reasonable person would have known.’ ” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of such
immunity is to ensure that public officials may be held “ac-
countable when they exercise power irresponsibly,” while
“shield[ing]” them “from harassment, distraction, and liability
when they perform their duties reasonably.” Id.
[2] To determine whether a government official is entitled
to qualified immunity, we conduct a two-prong analysis. See,
e.g., Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011).
Government officials are denied qualified immunity only if
(1) “the facts that a plaintiff has alleged . . . make out a viola-
tion of a constitutional right”; and (2) “the right at issue was
clearly established at the time of [the] defendant’s alleged
misconduct.” Pearson, 555 U.S. at 232 (internal quotation
marks omitted); see Mattos, 661 F.3d at 440. These prongs
need not be addressed in order; rather courts may “exercise
their sound discretion in deciding which of the two prongs . . .
should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236.
The first prong assesses whether the wrong a plaintiff
alleges is, in fact, a constitutional violation. The second prong
assesses the objective reasonableness of the official’s conduct
in light of the decisional law at the time: A right is clearly
established for purposes of qualified immunity only where the
contours of the right are “sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Dunn v. Castro, 621 F.3d 1196, 1200 (9th Cir. 2010)
(internal quotation marks omitted). “Because qualified immu-
nity is an immunity from suit rather than a mere defense to
liability, courts have also evaluated the sufficiency of the alle-
gations of the defendant’s personal involvement in the depri-
vation of the right at the second stage of the qualified
immunity analysis.” al-Kidd v. Ashcroft, 580 F.3d at 964
(internal citation, quotation marks, and emphasis omitted); see
Iqbal, 129 S. Ct. at 1946.
MOSS v. U.S. SECRET SERVICE 3835
In analyzing the protestors’ First Amendment claim against
the Secret Service agents, we begin by addressing the first
prong of the qualified immunity framework — whether the
facts the protestors have alleged make out a constitutional
violation — and then move to the next prong — whether the
right the protestors allege was violated was clearly established
at the time of the protest. We proceed in this order because,
in this instance, one cannot sensibly determine the reasonable-
ness of the agents’ actions without carefully identifying the
right they are alleged to have violated and the conduct by
which they are alleged to have done so.
With respect to the excessive force claim, we ultimately
hold that the protestors have alleged insufficient facts to state
a claim against the defendant police supervisors in particular.
We nevertheless conduct both prongs of the qualified immu-
nity analysis to clarify which parts of the SAC are sufficient
and in what respects it must be amended to state a claim.
B. First Amendment
1.
[3] The anti-Bush protestors claim that the Secret Service
agents sought to suppress political speech undertaken on a
public street based on the viewpoint of that speech. This claim
strikes at the core of the First Amendment.
[4] Public streets are “the archetype of a traditional public
forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988), as they
have “immemorially been held in trust for the use of the pub-
lic,” id. at 481 (quoting Hague v. CIO, 307 U.S. 496, 515
(1939)). In such “traditional public fora, the government’s
ability to permissibly restrict expressive conduct is very lim-
ited. . . . First Amendment protections are strongest, and regu-
lation is most suspect.” Long Beach Area Peace Network v.
City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009)
(internal quotation marks and citations omitted). Moreover,
3836 MOSS v. U.S. SECRET SERVICE
“[p]olitical speech is core First Amendment speech, critical to
the functioning of our democratic system.” Id. at 1021. “Tra-
ditional public fora,” such as the public streets upon which the
anti-Bush protestors sought to demonstrate “gain even more
importance when they are host to core First Amendment
speech.” Id. at 1022.
[5] As the Supreme Court has repeatedly reiterated, gov-
ernment regulation of political speech in a public forum based
on its content is presumptively unconstitutional. See United
States v. Playboy Entm’t Group, 529 U.S. 803, 817 (2000);
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.
819, 828 (1995); R.A.V. v. City of St. Paul, 505 U.S. 377, 382
(1992). “When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation
of the First Amendment is all the more blatant.” Rosenberger,
515 U.S. at 829. “Viewpoint discrimination is thus an egre-
gious form of content discrimination,” one from which “[t]he
government must abstain.” Id. The government may not regu-
late speech based on “the specific motivating ideology or the
opinion or perspective of the speaker,” id.; nor may it “favor
some viewpoints or ideas at the expense of others,” Members
of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804
(1984). We recently summarized these longstanding princi-
ples as instructing that “government may not favor speakers
on one side of a public debate.” Hoye v. City of Oakland, 653
F.3d 835, 849 (9th. Cir. 2011).3
[6] A restriction on speech is viewpoint-based if (1) on its
face, it distinguishes between types of speech or speakers
based on the viewpoint expressed; or (2) though neutral on its
face, the regulation is motivated by the desire to suppress a
particular viewpoint. See Berger v. City of Seattle, 569 F.3d
1029, 1051 (9th Cir. 2009) (en banc) (citing Turner Broad.
3
Hoye was, of course, decided after the incident giving rise to this case.
We cite it only for its succinct précis of many years of precedents on view-
point discrimination.
MOSS v. U.S. SECRET SERVICE 3837
Sys., Inc. v. FCC, 512 U.S. 622, 642-43 (1994)); ACLU v.
City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006) (citing
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). The
anti-Bush protestors allege both that the agents’ actions were
facially viewpoint discriminatory — that is, that the agents
explicitly treated pro- and anti-Bush demonstrators differently
— and that their actions, even if facially neutral, were moti-
vated by an impermissible purpose to discriminate against the
anti-Bush viewpoint the protestors expressed.
a.
In the FAC, the anti-Bush protestors alleged that the Secret
Service directed police to move them to the east side of
Fourth Street, approximately the same distance from where
the President was dining as the pro-Bush demonstrators. Moss
I, 572 F.3d at 971. Moss I held this allegation insufficient to
support a plausible claim of viewpoint discrimination,
explaining:
If the Agents’ motive in moving Plaintiffs away
from the Inn was . . . suppression of Plaintiffs’ anti-
Bush message, then presumably, they would have
ensured that demonstrators were moved to an area
where the President could not hear their demonstra-
tion, or at least to an area farther from the Inn then
[sic] the position that the pro-Bush demonstrators
occupied. Instead, according to the complaint, the
Agents simply instructed state and local police to
move the anti-Bush protestors to a location situated
a comparable distance from the Inn as the other dem-
onstrators, thereby establishing a consistent perime-
ter around the President.
Id.
[7] Now, in the SAC, the protestors allege that the agents
did indeed direct that the anti-Bush demonstration be moved
3838 MOSS v. U.S. SECRET SERVICE
farther from the Inn than the pro-Bush demonstration. The
SAC avers that the Secret Service agents not only directed the
police to move the anti-Bush protestors “to the east side of
Fourth Street,” but that the agents “subsequently” directed
that the protestors be moved “to the east side of Fifth Street.”
The pro-Bush demonstrators were left in place on the west
side of Third Street. As a result, the anti-Bush protestors were
more than a block farther from where the President was din-
ing than the pro-Bush demonstrators, and, one can infer, were
therefore less able to communicate effectively with the Presi-
dent, media, or anyone else inside or near the Inn.
The agents object to the protestors’ failure to plead specifi-
cally that the President could no longer hear their protests
once they were moved. While such an allegation would
strengthen the protestors’ complaint, its absence does not
make their claim implausible. Regardless of whether the Pres-
ident and those near him could actually hear the protestors
after they had been moved, it is a plausible inference from the
facts alleged that the protestors’ chants would be less intelligi-
ble from two blocks away.
[8] In addition, and critically, if allowed to remain in their
initial locations, members of both the pro- and anti-Bush
groups would have been standing along the motorcade route
by which the President left the restaurant. However, once the
Secret Service agents moved them, the anti-Bush protestors
were two blocks away from the motorcade route, while the
pro-Bush demonstrators remained along it, and, according to
the SAC, could “cheer for President Bush as he traveled to the
Honeymoon Cottage.”
In their brief, the agents insist that the President’s motor-
cade route between the restaurant and the Honeymoon Cot-
tage is “irrelevant,” because the “armored limousine” in
which the President was traveling had far greater security than
the open-air patio where the President dined. This argument
is unavailing for two reasons: First, it rests on facts outside of
MOSS v. U.S. SECRET SERVICE 3839
the complaint and is therefore not properly cognizable at this
stage. Second, the assertion of a viewpoint-neutral rationale
cannot transform a facially discriminatory policy — allowing
one group of demonstrators access to the President while
moving protestors with the opposing view further away —
into a valid one. See ACLU, 466 F.3d at 793.
[9] In sum, the anti-Bush protestors have alleged that, at
the direction of the Secret Service agents, they were moved
to a location where they had less opportunity than the pro-
Bush demonstrators to communicate their message to the
President and those around him, both while the President was
dining at the Inn and while he was en route to the Honeymoon
Cottage. These allegations support a plausible claim of view-
point discrimination.
b.
[10] In addition to these allegations of facial viewpoint dis-
crimination, the anti-Bush protestors also allege in the SAC
that the Secret Service agents acted with an impermissible
motive of shielding the President from those expressing disap-
proval of him or his policies. As the Supreme Court has
explained,
[t]he principal inquiry in determining content [or
viewpoint] neutrality . . . is whether the government
has adopted a regulation of speech because of dis-
agreement with the message it conveys. . . . The gov-
ernment’s purpose is the controlling consideration.
Ward, 491 U.S. at 791 (emphasis added) (internal citations
omitted). Thus, if true, the motive allegation would be suffi-
cient in and of itself to support a claim of viewpoint discrimi-
nation in violation of the First Amendment. That is, it would
be adequate to establish a First Amendment violation even if
there had been no pro-Bush demonstrators and therefore no
differential treatment.
3840 MOSS v. U.S. SECRET SERVICE
[11] As noted, the Secret Service agents ostensibly told the
police on the scene that their reason for moving the anti-Bush
protestors was to ensure that nobody was within handgun or
explosive range of the President. The protestors allege that
even if the agents did give the police such an explanation, it
was merely a pretext and that the agents were in actuality
motivated by the determination to suppress the protestors’
anti-Bush message. “[A] restriction on expressive activity is”
only content- or viewpoint-neutral if it is “based on a non-
pretextual reason divorced from the content of the message
attempted to be conveyed.” United States v. Griefen, 200 F.3d
1256, 1260 (9th Cir. 2000). At this stage, the protestors need
only plead facts that make plausible their claim that they were
moved because of their viewpoint — that the security ratio-
nale, if indeed offered by the agents at all, was pretextual. The
protestors, in the SAC, have met this burden.
[12] First, the SAC states that it would have been impossi-
ble from where the protestors were initially located — and
certainly from the east side of Fourth Street, where the Secret
Service agents initially directed they be moved — for anyone
to reach the President with a handgun or an explosive. The
police cleared the alley between where the protestors were
demonstrating and the Inn where the President dined, and
officers, clad in riot gear, blocked any access to that alley. In
addition, there were buildings and a six-foot high fence block-
ing any contact between the anti-Bush protestors and the Pres-
ident. None of the protestors attempted to surmount these
obstacles to get access to the President. The protestors there-
fore assert they posed no threat to the President, and there was
thus no reason for them to be moved from their initial loca-
tion, and certainly no reason for them to be pushed beyond the
east side of Fourth Street to the east side of Fifth Street.
Moreover, according to the SAC, the obstacles between the
anti-Bush protestors and the President were similar to those
faced by the pro-Bush demonstrators. If the location of the
anti-Bush protestors had been a significant security risk, they
MOSS v. U.S. SECRET SERVICE 3841
reason, so too would have been that of the pro-Bush demon-
strators.
[13] Second, the Secret Service agents allowed the pro-
Bush demonstrators to gather along the motorcade route, well
within handgun or explosive “range of the President as he
traveled from the Inn to the Honeymoon Cottage where he
was staying,” As noted, the Secret Service agents argue that
this distinction does not indicate that their security rationale
was pretextual, because the “armored limousine” in which the
President traveled “provide[d] a substantially higher degree of
protection from potential external threats” than did the open-
air patio where he ate dinner. But one could view this expla-
nation as further evidence of an impermissible motive: Even
where there admittedly was no security threat, the anti-Bush
demonstrators were forcibly located farther away from the
President than the pro-Bush demonstrators, such that the pro-
Bush demonstrators were within sight and hearing range of
the President while the anti-Bush protestors were two blocks
away.
Finally, the SAC elaborates in much more detail a conclu-
sory allegation in the FAC that the Secret Service maintains
“an officially authorized pattern and practice” of shielding the
President from dissent. Moss I held that the pattern and prac-
tice allegation in the FAC, “without any factual content to
bolster it, is just the sort of conclusory allegation that the
Iqbal Court deemed inadequate.” Moss I, 572 F.3d at 970.
The SAC provides this additional factual content.
[14] The SAC provides twelve detailed allegations, relying
on published reports, of similar instances of viewpoint dis-
crimination against protestors expressing negative views of
the President. For example, during a speech given by Presi-
dent Bush, those expressing critical views of the President
were sequestered approximately “one-third of a mile away
from where [he] was speaking,” while those supporting the
3842 MOSS v. U.S. SECRET SERVICE
President were permitted “to stand alongside the motorcade
route right up to where the President” was located.
[15] In addition, the SAC alleges that a policy and practice
of suppressing criticism of the President is set forth in the
Presidential Advance Manual, a redacted copy of which was
attached to the complaint. The Advance Manual directs the
President’s advance team to “work with the Secret Service
and have them ask the local police department to designate a
protest area where demonstrators can be placed, preferably
not in view of the event site or motorcade route.”4 (emphasis
added). Removal of protestors opposed to the President, is, of
course, precisely what the anti-Bush protestors allege hap-
pened to them. While the Advance Manual is designed to
guide the President’s political advance team, not the Secret
Service, it itself suggests that the Secret Service may play a
part in ensuring that protestors are contained to an area away
from the President. Furthermore, the protestors allege that, in
this instance, because of the sudden change in the President’s
plans, the advance team had insufficient time to “suppress the
protest. Instead,” they “relied on the Secret Service to do so.”
The protestors’ allegations that the agents’ conduct in this
case accords with viewpoint discriminatory practices insti-
tuted in other, similar, circumstances and encouraged by the
President’s Advance Manual support the plausibility of the
inference that, in this case, the Secret Service agents directed
that the anti-Bush protestors be moved because of their view-
point.
[16] In sum, the anti-Bush protestors have pleaded noncon-
4
It is clear from the context that the manual is referring only to demon-
strators opposed to the President. The following paragraph, for example,
suggests that while demonstrators ought to be moved to a protest area out
of view of the event or motorcade route, “rally squads” of supporters
“countering” the protestors’ message ought to be strategically placed in
view of the media.
MOSS v. U.S. SECRET SERVICE 3843
clusory factual allegations that they were treated differently
than the pro-Bush demonstrators; that any security-based
explanation for this differential treatment offered by the
Secret Service agents was pretextual; and that the agents’
directives in this case accord with a pattern of Secret Service
action suppressing the speech of those opposed to the President.5
These allegations, taken together, are sufficient to allow the
protestors’ claim of viewpoint discrimination to proceed.
2.
Even if they acted unconstitutionally, the Secret Service
agents are entitled to qualified immunity unless the “con-
tours” of the First Amendment right they violated were “suffi-
ciently clear that a reasonable official would understand that
what he is doing violates that right.” Saucier v. Katz, 533 U.S.
194, 202 (2001) (internal quotations and citations omitted).
The Secret Service agents contend that even if the protestors
have established a plausible claim of viewpoint discrimina-
tion, they have failed to demonstrate “that the right they claim
was infringed was clearly established in the specific context
at issue here.” They characterize the qualified immunity ques-
tion as whether
every reasonable officer . . . would have understood
that moving the [anti-Bush protestors] only a half
5
The SAC also contains allegations that there were bystanders at the Inn
where the President ate who were neither screened for weapons nor
required to move farther from the President. The presence of these
unscreened bystanders, the protestors argue, is further evidence that the
security rationale offered by the Secret Service agents was pretextual. The
agents argue that we are foreclosed, on law of the case grounds, by our
previous decision in Moss I from considering the way in which the agents
treated bystanders at the Inn. Whether this is so is a difficult question.
Because we hold that the protestors other allegations are sufficient to sup-
port a plausible claim of viewpoint discrimination, we do not decide at this
juncture whether Moss I prevents us from considering the protestors’
bystander allegations.
3844 MOSS v. U.S. SECRET SERVICE
block farther from the President than his supporters
were located constituted viewpoint discrimination in
violation of the First Amendment.
This statement inaccurately characterizes both the protestors’
allegations and the governing law.
First, as a factual matter, the parties contest the relevant
distances. The protestors allege that they were moved over a
block farther from the Inn than the pro-Bush demonstrators.
Further, although the agents repeatedly characterize the loca-
tions of the pro- and anti-Bush protestors as “comparable,” we
have already noted that based on the facts alleged, there are
relevant ways in which the distances were not comparable.
In addition, the Secret Service agents focus solely on the
distance between the protestors and the President while he
was dining. They do not address the allegation that the pro-
Bush demonstrators were permitted to remain along the Presi-
dent’s motorcade route, while the anti-Bush protestors were
kept away. This additional discrepancy is quite relevant in
assessing whether a reasonable agent could have believed the
direction to relocate the anti-Bush protestors was consistent
with the First Amendment.
[17] More fundamentally, the protestors’ claim is not sim-
ply that they were moved, but that they were relocated
because they criticized the President. The protestors allege
that if the agents asserted a security rationale for moving the
protestors, that rationale was false. That is, they allege that the
agents’ action was both facially discriminatory and driven by
an improper motive. We must “accept all factual allegations
in the complaint as true and construe the pleadings in the light
most favorable to the nonmoving party.” Knievel v. ESPN,
393 F.3d 1068, 1072 (9th Cir. 2005). Therefore, taking the
protestors’ allegation of discriminatory motive as true, it is
clear that no reasonable agent would think that it was permis-
sible under the First Amendment to direct the police to move
MOSS v. U.S. SECRET SERVICE 3845
protestors farther from the President because of the critical
viewpoint they sought to express.
The agents suggest that because there are no cases with
similar fact patterns, a reasonable agent could not have known
that their conduct was unconstitutional. But the denial of qual-
ified immunity does “not require a case directly on point.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Rather, it
requires that “existing precedent must have placed the statu-
tory or constitutional question beyond debate.” Id. It is “be-
yond debate” that, particularly in a public forum, government
officials may not disadvantage speakers based on their view-
point.
As decades of Supreme Court doctrine make clear, “[i]t is
axiomatic that the government may not regulate speech based
on its substantive content or the message it conveys.” Rosen-
berger, 515 U.S. at 828 ; see, e.g., R.A.V., 505 U.S. at 391-92;
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95-96
(1972); see also Metro Display Adver. v. City of Victorville,
143 F.3d 1191, 1195 (9th Cir. 1998). The “government may
not grant the use of a forum to people whose views it finds
acceptable, but deny use to those wishing to express less
favored or more controversial views,” for “above all else, the
First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject
matter, or its content.” Mosley, 408 U.S. at 95-96. Indeed, in
a case closely on point, the D.C. Circuit held in Mahoney v.
Babbitt that the government could not grant permits to dem-
onstrate along the Inaugural Parade route to those supportive
of the President and refuse permits to those opposed. 105 F.3d
1452, 1459 (D.C. Cir. 1997).
[18] The anti-Bush protestors have plausibly alleged that
the Secret Service agents acted with the sole intent to discrim-
inate against them because of their viewpoint; this intent can
never be objectively reasonable. After discovery or trial, the
evidence could demonstrate that the agents did not, in fact, act
3846 MOSS v. U.S. SECRET SERVICE
with viewpoint discriminatory intent or that, notwithstanding
some discriminatory motivation, they acted with the primary
intent to protect the President and therefore would have taken
the same actions absent any discriminatory motive. In that
case, they are, of course, free to renew their qualified immu-
nity motion. See Behrens v. Pelletier, 516 U.S. 299, 306
(1996); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). How-
ever, the agents are not entitled to qualified immunity at this
stage.
C. Fourth Amendment
[19] To succeed on their Fourth Amendment claim, the
protestors must allege facts from which we could plausibly
infer: (1) that excessive force was used against them; (2) that
the law at the time of the protest clearly established that the
force used was unconstitutionally excessive; and (3) that even
though they were not present at the demonstration, Superin-
tendent Ruecker and Captain Rodriguez played a sufficient
role in the use of excessive force that they may be held liable
for it. While the protestors’ allegations are sufficient to sup-
port a claim of excessive force and to deny qualified immu-
nity to those who might be liable for the use of that force, they
have pleaded no facts that would allow us to make a plausible
inference that Ruecker and Rodriguez were in any way
involved in the use of excessive force such that they may be
held liable for it.
1.
Fourth Amendment claims of excessive force are evaluated
according to the framework established by Graham v. Con-
nor, 490 U.S. 386 (1989). See Davis v. City of Las Vegas, 478
F.3d 1048, 1053-54 (9th Cir. 2007). Under Graham,
[d]etermining whether the force used to effect a par-
ticular seizure is reasonable under the Fourth
Amendment requires a careful balancing of the
MOSS v. U.S. SECRET SERVICE 3847
nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervail-
ing governmental interests at stake.
Graham, 490 U.S. at 396 (internal quotation marks and cita-
tions omitted). Graham cautioned that reasonableness is to be
judged not “with the 20/20 vision of hindsight,” but “from the
perspective of a reasonable officer on the scene.” Id.
We first “assess the quantum of force used” and then “mea-
sure the governmental interests at stake by evaluating a range
of factors,” including: (1) “the severity of the crime at issue”;
(2) the extent to which “the suspect poses an immediate threat
to the safety of the officers or others”; (3) and “whether [the
suspect] is actively resisting arrest or attempting to evade
arrest by flight.” Davis, 478 F.3d at 1054 (internal quotation
marks and citations omitted). In considering whether, from
the perspective of an officer on the scene, “the totality of the
circumstances justifie[d]” the force used, additional factors
may also be relevant. Forrester v. City of San Diego, 25 F.3d
804, 806 n.2 (9th Cir. 1994). For example, we may look to the
alternatives available to the officer at the time. See Davis, 478
F.3d at 1054.
[20] There is little doubt that under this framework, the
force alleged here was excessive. The protestors allege that
without ensuring that they heard the police warning that
instructed them to move, and without giving them time to
move of their own accord, the police, “including officers clad
in riot gear, forced the anti-Bush demonstrators to move . . . ,
in some cases by violently shoving” them, “striking them with
clubs and firing pepper spray bullets at them.” Once on the
east side of Fifth Street, the police “divided the [anti-Bush
protestors] into two groups, encircling each group,” and “se-
parat[ing]” families, “including children, some of whom were
lost, frightened and traumatized.” Although some protestors
attempted to leave the area, they were prevented from doing
so.
3848 MOSS v. U.S. SECRET SERVICE
To be sure, the government interest at stake — the protec-
tion of the President — is of the highest significance. See,
e.g., Hunter v. Bryant, 502 U.S. 224, 229 (1991). However,
an examination of the Graham factors indicates that the force
used was excessive even to protect this interest.
“[T]he most important single element” of the Graham
framework is “whether the suspect poses an immediate threat
to the safety of the officers or others.” Chew v. Gates, 27 F.3d
1432, 1441 (9th Cir. 1994). There is no indication that the
anti-Bush protestors posed such a threat to the President, the
police officers, or anyone else. The SAC alleges that the
protestors were not close enough to the President to harm him
and that their protest was entirely peaceful.
The other two Graham factors also favor the protestors.
They were not committing, and had not committed, any
crime. Instead, they were engaging in a peaceful demonstra-
tion, the location and timing of which had previously been
approved by local police. Nor is there any indication that they
were disobeying the commands of the officers or resisting in
any way.
Furthermore, it is a plausible inference from the facts
alleged that there were less harmful alternatives available that
a reasonable officer on the scene should have considered.
According to the SAC, the police did not attempt to contact
the protest’s organizers, whose contact information they had,
nor did they give the group sufficient notice or time to move
on their own before being forcibly moved.
The protestors allege that the police used violent physical
force and pepper spray on a group of obedient, peaceful prote-
stors. As compared to similar cases, the force used was at
least as violent, with no greater justification. For example, we
held in Headwaters Forest Defense v. County of Humboldt,
276 F.3d 1125, 1131 (2002), that the use of pepper spray
against peaceful protestors, even when those protestors linked
MOSS v. U.S. SECRET SERVICE 3849
themselves together and refused to release the locks, was
unreasonable. In P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir.
1996), we held that “slapping, punching, and choking” stu-
dents when there was no reason to use force was excessive.
Under these precedents, the protestors’ allegations indubitably
support a plausible claim of excessive force.
[21] As the cases just discussed indicate, the unreasonable-
ness of this use of force was clearly established at the time of
the protest. That conclusion is inescapable even if we focus
only on one aspect of the force used. The protestors allege
that the police officers used pepper spray bullets, even though
the demonstrators were peaceful and cooperative. It was
clearly established at the time of the protest that the use of
pepper spray on an individual who is already under control
constitutes excessive force in violation of the Fourth Amend-
ment. See Headwaters Forest Def., 276 F.3d at 1130;
LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir.
2000).
2.
[22] The protestors have not, however, provided sufficient
allegations to establish a plausible claim against Ruecker and
Rodriguez, in particular, for the use of the excessive force.
Ruecker and Rodriguez were not on the scene at the time of
the demonstration, but they were the supervisors of the offi-
cers who were on the scene. Supervisors may not be held lia-
ble under § 1983 for the unconstitutional actions of their
subordinates based solely on a theory of respondeat superior.
Iqbal, 129 S. Ct. at 1948.
[23] We recently summarized the circumstances under
which supervisors may be held liable under § 1983 as follows:
(1) for setting in motion a series of acts by others, or
knowingly refusing to terminate a series of acts by
others, which they knew or reasonably should have
3850 MOSS v. U.S. SECRET SERVICE
known would cause others to inflict constitutional
injury; (2) for culpable action or inaction in training,
supervision, or control of subordinates; (3) for acqui-
escence in the constitutional deprivation by subordi-
nates; or (4) for conduct that shows a “reckless or
callous indifference to the rights of others.”
al-Kidd, 580 F.3d at 965 (quoting Larez v. City of L.A., 946
F.2d 630, 646 (9th Cir. 1991)).6 The SAC is inadequate to
establish that any of these circumstances apply here. The alle-
gations regarding Ruecker and Rodriguez’s role in the use of
excessive force are conclusory; none is supported by suffi-
cient — or, for that matter, any — factual content that would
allow it to meet the pleading standard articulated in Iqbal.
First, the protestors allege that Ruecker, as “Superintendent
of the Oregon State Police” was “responsible for directing the
operations of the Oregon State Police and supervising the law
enforcement officers and agents acting under his authority.”
Similarly, they allege that Rodriguez, as Captain of the South-
west Regional Headquarters of the Oregon State Police, was
“responsible for directing the operations of said Headquarters
and supervising the law enforcement officers and agents act-
ing under his authority.” These allegations are merely recita-
tions of the organizational role of these supervisors. The
protestors make no allegation that the supervisors took any
specific action resulting in the use of excessive force by
police officers on the scene of the anti-Bush demonstration.
6
Al-Kidd was decided after Iqbal. The extent to which its supervisory
liability framework is consistent with that decision and remains good law
has been debated. See, e.g., Al-Kidd, 598 F.3d at 1141 (O’Scannlain, J.,
dissenting from denial of rehearing en banc); see also Bayer v. Monroe
Cnty. Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir. 2009); Mal-
donado v. Fontanes, 568 F.3d 263, 274 n.7 (1st Cir. 2009). Because the
protestors do not allege sufficient facts to meet the standard set forth in al-
Kidd, we need not consider that debate.
MOSS v. U.S. SECRET SERVICE 3851
We have “never required a plaintiff to allege that a supervi-
sor was physically present when the injury occurred.” Starr v.
Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). But § 1983 plain-
tiffs nevertheless must allege some “culpable action or inac-
tion” for which a supervisor may be held liable. Larez, 946
F.2d at 645. In an effort to meet this requirement, the prote-
stors allege that Rodriguez “and other individual State and
Local Police Defendants,” including, we assume for present
purposes, Ruecker, “personally directed and approved of the
actions of the police.” But they do not specify which actions
Ruecker or Rodriguez directed and approved. In particular,
they do not allege that the supervisors directed or approved
the tactics — the shoving, use of clubs, and shooting of pep-
per spray bullets — employed by the officers in moving the
protestors.
Finally, the protestors claim that “the use of overwhelming
and constitutionally excessive force against them” was “the
result of inadequate and improper training, supervision,
instruction and discipline . . . under the personal direction . . .
of the State and Local Police Defendants.” However, this alle-
gation is also conclusory. The protestors allege no facts what-
soever about the officers’ training or supervision, nor do they
specify in what way any such training was deficient.
The protestors’ reliance on Connick v. Thompson, 131 S.
Ct. 1350 (2011), is misplaced. Connick reaffirmed the possi-
bility — left open in Canton v. Harris, 489 U.S. 378 (1989)
— that there are circumstances in which a need for training
is so obvious that a city that fails to provide it may be held
to have been deliberately indifferent even without a pattern of
constitutional violations by city employees. Id. at 1361 (citing
Canton, 489 U.S. at 390 n.10). This concept is inapposite
here. There is no debate in this case about the need for train-
ing police officers on the constitutional use of force. The
questions here are whether any such training they received
was deficient, and, if so, whether the defendant police super-
3852 MOSS v. U.S. SECRET SERVICE
visors were responsible for that deficiency. The protestors
have alleged no facts that would demonstrate either.
[24] We hold that the protestors have not pleaded suffi-
cient allegations to support a claim of excessive force against
Ruecker and Rodriguez. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory state-
ments, do not suffice.” Iqbal, 129 S. Ct. at 1949. It is possible,
however, that the complaint could be saved by amendment.
Because the district court held that the SAC was sufficient to
state a claim against the police supervisors, it did not, of
course, consider whether the protestors ought to be given
leave to amend to cure any deficiencies. For us to decide that
question, ordinarily addressed to the district court’s sound dis-
cretion, see, e.g., Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir.
1980), would be to usurp the district court’s authority. Cf.
Iqbal v. Ashcroft, 574 F.3d 820, 821 (2d Cir. 2009). We there-
fore remand to the district court for dismissal of the prote-
stors’ excessive force claim and for a determination in the
first instance of whether the protestors ought to be given leave
to amend their complaint.
III. Conclusion
In sum, we hold that the protestors have alleged a plausible
First Amendment claim and that Agents Wood and Savage
are not, at this time at least, entitled to qualified immunity.
We therefore AFFIRM the district court’s ruling, denying the
Secret Service agents’ motion to dismiss that claim. However,
we hold that the protestors have not alleged sufficient facts to
support a plausible Fourth Amendment claim against police
supervisors Ruecker and Rodriguez. Therefore, we
REVERSE the district court’s denial of the supervisors’
motion to dismiss and REMAND to that court with instruc-
tions to dismiss protestors’ Fourth Amendment claim and to
determine whether the protestors ought to be given leave to
amend.
MOSS v. U.S. SECRET SERVICE 3853
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
3854 MOSS v. U.S. SECRET SERVICE
Appendix