Michael Moss, et al v. Tim Wood, et al

Court Description:

Civil Rights. The panel amended its prior opinion, reported at 675 F.3d 1213 (9th Cir. 2012), and denied the petition for rehearing and rehearing en banc in this action in which plaintiffs, demonstrators against President Bush during the 2004 Presidential campaign, asserted that Secret Service agents engaged in unconstitutional viewpoint discrimination in violation of the First Amendment by requiring them to demonstrate at a distance from the President because they were protesting – rather than supporting – his policies. In the amended opinion, the panel responded to the dissent from the denial of the rehearing en banc, and stated that because this case arose on a motion to dismiss, any explanation for the agents’ differential treatment of the pro- and anti-Bush demonstrators would have to be so obviously applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The panel stated that its opinion made clear that there was simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators and not the anti-Bush protestors, to remain along the President’s after-dinner motorcade route, and the dissent suggested none. Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Kozinski, Gould, Tallman, Bybee, Callahan, Bea and Ikuta, stated that the panel afforded unwarranted deference to legal conclusions in the protestors’ complaint. Judge O’Scannlain further stated that the panel collapsed the two-pronged qualified immunity inquiry; defined the right at issue too broadly; and failed to give sufficient latitude to those charged with protecting the life of the President.

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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 No. 10-36152 D.C. No. 1:06-cv-03045CL 2 MOSS V . U.S. SECRET SERVICE Service, but unknown at this time to Plaintiffs; 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; MUNCIPAL 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 MOSS V . U.S. SECRET SERVICE Headquarters of the Oregon State Police, in his official and individual capacities; 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, 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 No. 10-36172 D.C. No. 1:06-cv-03045CL ORDER AND AMENDED OPINION 3 4 MOSS V . U.S. SECRET SERVICE Defendant Secret Service, but unknown at this time to Plaintiffs; 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; TIM F. MCCLAIN , Superintendent of the Oregon State Police, in his official capacity; MOSS V . U.S. SECRET SERVICE RANDIE MARTZ, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants, and 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, 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, 2011âPortland, Oregon Filed April 9, 2012 Amended February 26, 2013 5 6 MOSS V . U.S. SECRET SERVICE Before: David M. Ebel*, Marsha S. Berzon, and N. Randy Smith, Circuit Judges. Order; Dissent to Order by Judge OâScannlain; Opinion by Judge Berzon SUMMARY** Civil Rights The panel amended its prior opinion, reported at 675 F.3d 1213 (9th Cir. 2012), and denied the petition for rehearing and rehearing en banc in this action in which plaintiffs, demonstrators against President Bush during the 2004 Presidential campaign, asserted that Secret Service agents engaged in unconstitutional viewpoint discrimination in violation of the First Amendment by requiring them to demonstrate at a distance from the President because they were protesting â rather than supporting â his policies. In the amended opinion, the panel responded to the dissent from the denial of the rehearing en banc, and stated that because this case arose on a motion to dismiss, any explanation for the agentsâ differential treatment of the proand anti-Bush demonstrators would have to be so obviously * T he H onorable David M. Ebel, Senior Circuit Judge for the Tenth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MOSS V . U.S. SECRET SERVICE 7 applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The panel stated that its opinion made clear that there was simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators and not the anti-Bush protestors, to remain along the Presidentâs after-dinner motorcade route, and the dissent suggested none. Dissenting from the denial of rehearing en banc, Judge OâScannlain, joined by Judges Kozinski, Gould, Tallman, Bybee, Callahan, Bea and Ikuta, stated that the panel afforded unwarranted deference to legal conclusions in the protestorsâ complaint. Judge OâScannlain further stated that the panel collapsed the two-pronged qualified immunity inquiry; defined the right at issue too broadly; and failed to give sufficient latitude to those charged with protecting the life of the President. COUNSEL Cecil Reniche-Smith (argued), Office of the Oregon Attorney General, Salem, Oregon; Denise Gale Fjordbeck, Office of the Oregon Attorney General, Salem, Oregon, for Defendants-Appellants Ron Ruecker and Eric Rodriguez. Edward Himmelfarb (argued), Jeremy Scott Brumbelow, Barbara L. Herwig, Mary Hampton Mason, Department of Justice, Washington, D.C.; Kelly A. Zusman, Office of the U.S. Attorney, Portland, Oregon, for Defendants-Appellants Rob Savage and Tim Wood. 8 MOSS V . U.S. SECRET SERVICE Steven Wilker (argued), 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 Plaintiffs-Appellees. ORDER The opinion filed on April 9, 2012, and appearing at 675 F.3d 1213, is amended as follows: At slip opinion page 3846, 675 F.3d at 1229, immediately before the heading âC. Fourth Amendment,â add the following text: < * * * As this case arises on a motion to dismiss, any explanation for the agentsâ differential treatment of the pro- and anti-Bush demonstrators would have to be so obviously applicable as to render the assertion of unconstitutional viewpoint discrimination implausible. The Dissent from the Denial of Rehearing En Banc (âEn Banc Dissentâ) maintains otherwise, so we briefly respond to its analysis: Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the proBush demonstrators, and not the anti-Bush protestors, to remain along the Presidentâs MOSS V . U.S. SECRET SERVICE after-dinner motorcade route, see Op. at 1225, 1228; the En Banc Dissent suggests none. And the explanation proffered in the En Banc Dissent for the agentsâ actions in moving the anti-Bush demonstrators in the first place â namely that the pro-Bush demonstrators were not moved because they were ostensibly further than the protestors from the patio where President Bush was dining, see En Banc Dissent at 14 â is not a basis for granting the agents qualified immunity at the pleadings stage, for several reasons: First, the En Banc Dissentâs speculative explanation is non-responsive to the protestorsâ viewpoint discrimination claim. The question is not why the agents moved the anti-Bush protestors somewhere, but rather why the agents moved the protestors a considerable distance, to a location that, as we have explained, was in ârelevant ways . . . not comparableâ to the place where the pro-Bush group was allowed to remain. See Op. at 1228. No âtape[] measureâ is required, see En Banc Dissent at 12, to appreciate that demonstrators separated by more than a full square block, and two roadways, from the public official to whom and about whom they wish to direct a political message will be comparatively disadvantaged in expressing their views. Nor does one need a noise dosimeter to know that the President will be able to hear the cheers of the group left alongside his travel route but unable to hear 9 10 MOSS V . U.S. SECRET SERVICE the group restricted to an area about two square blocks away. Perhaps there was a reason for the considerable disparity in the distance each group was allowed to stand from the Presidential party â for example, traffic, or an obstruction on the square block adjacent to the Inn, requiring that the anti-Bush demonstrators be moved more than a block further away. But, as matters now stand, nothing in the En Banc Dissentâs entirely hypothetical âexplanation is so convincingâ as to render âimplausibleâ the plaintiffsâ claim of viewpoint discrimination. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012). It is therefore premature at this stage to credit the En Banc Dissentâs theory instead of the protestorsâ. See id. For the same reason, the En Banc Dissentâs assertion, see En Banc Dissent at 12, that the panel has âsecond[] guess[ed]â the Secret Service agentsâ judgment about how best to protect the President fails to account for the fact that at this stage of the case, the record is devoid of any explanation for the substantial difference in where the two groups of demonstrators were allowed to stand relative to the Presidentâs locations. Finally, the En Banc Dissentâs invocation of the case law upholding certain buffer zones, see id. at 22, actually illustrates well why the complaint does establish a plausible MOSS V . U.S. SECRET SERVICE 11 claim of a violation of clearly established law regarding impermissible viewpoint discrimination in a public forum. Such buffers have been upheld only, and expressly, on the understanding that the restrictions are content and viewpoint neutral. For example, in Hill v. Colorado, 530 U.S. 703 (2000), the Supreme Court upheld the buffer zone ordinance there at issue only after emphasizing that it applied âto all âprotest,â to all âcounseling,â and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision. That is the level of neutrality that the Constitution demands.â Id. at 725. Had the ordinance in Hill established a onehundred foot buffer zone for pro-abortion demonstrators and a three-hundred foot buffer zone for anti-abortion protestors, there is no doubt such a viewpoint discriminatory ordinance would have been summarily invalidated. The protestors here plausibly allege just such a significant difference in the buffer zone in a public forum. And Hill was, of course, decided before the events in this case. The protestors therefore allege a plausible case of impermissible viewpoint discrimination as of the time this case arose.> An amended opinion is filed concurrently with this order. 12 MOSS V . U.S. SECRET SERVICE With this amendment, the panel has unanimously voted to deny appellantsâ petition for rehearing. Judge Berzon and Judge N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Ebel so recommended. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R. App. P. 35(f). The petition for rehearing and the petition for rehearing en banc are DENIED. Judge OâScannlainâs dissent from the denial of en banc rehearing is filed concurrently herewith. No further petitions shall be entertained. OâSCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief Judge, and GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc: To quote from the Governmentâs brief, â[t]he panelâs decision in this case is a textbook case-study of judicial second-guessing of the on-the-spot judgment that Secret Service agents assigned to protect the President have made about security needs.â In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the President to their newly created duty to act like concert ushersâensuring with tape-measure accuracy that everyone who wants to demonstrate near the President has an equally good view of the show. This cannot MOSS V . U.S. SECRET SERVICE 13 be the law. With respect, I must therefore dissent from our unfortunate failure to rehear this case en banc. I This is a Bivens action brought by Michael Moss and numerous others (the âprotestersâ or âanti-Bush demonstratorsâ) against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon.1 The protestorsâ second amended complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them to create a security perimeter around the President. To clarify the allegations pertinent to this claim, one must focus on the relevant facts as set forth in the protestersâ operative complaint. Anticipating the Presidentâs appearance at an event in Jacksonville, Oregon, both pro-Bush and anti-Bush demonstrators gathered approximately two blocks from the Presidentâs hotel there and conducted demonstrations with chants, slogans, and signs. Spread out along California Street, the pro-Bush demonstrators were located just west of Third Street, and the anti-Bush demonstrators were located between Third and Fourth Streets. While en route to the event, the President decided to eat dinner at the Jacksonville Inn, a restaurant on California Street between Third and Fourth Streets. He arrived in his motorcade via Third Street, and both the pro-Bush and anti1 The panel opinion resolves claims against other officers under 28 U.S.C. § 1983 which are not at issue here. 14 MOSS V . U.S. SECRET SERVICE Bush demonstrators âhad equal accessâ to him; the anti-Bush demonstrators were not moved from the Presidentâs motorcade route prior to his arrival at the Inn even though a Secret Service agent was already on site and could have ordered the police to do so. Upon his arrival, the President entered the back patio of the Inn and was seated in the outdoor patio dining area. Shortly thereafter, the Secret Service directed local police to move âall persons between Third and Fourth streetsââimmediately in front of the Innâtwo blocks east to the east side of Fifth Street because âthey did not want anyone within handgun or explosive range of the President.â As it happened, these âpersonsâ were the anti-Bush demonstrators. The pro-Bush demonstrators were not moved because they were already located one block west of the outdoor patio where the President was dining. Alleging that the Secret Service agentsâ security rationale for moving them was âfalseâ and that the agents were, in actuality, âtak[ing] action to stifle and suppressâ their protest, the anti-Bush demonstrators brought this action, claiming that the Secret Service agents violated their First Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Their claim boils down to two grievances. First, after the security perimeter around the President was established, they were forced to demonstrate from an area approximately one block farther from the President than the pro-Bush demonstrators. And second, they were farther from the Presidentâs motorcade route than the pro-Bush demonstrators when he left the Inn because they were not returned to their original location before the President left. MOSS V . U.S. SECRET SERVICE 15 The protestorsâ first amended complaint, alleging substantially similar facts, was dismissed for failure to plead a plausible claim. See Moss v. U.S. Secret Serv. (Moss I), 572 F.3d 962 (9th Cir. 2009). After the anti-Bush demonstrators filed their (now operative) second amended complaint, the Secret Service agents again moved to dismiss, arguing that the demonstrators still failed to plead a plausible claim or, alternatively, that they were entitled to qualified immunity. Moss v. U.S. Secret Serv. (Moss II), 675 F.3d 1213, 1221â22 (9th Cir. 2012). The district court denied their motion. Id. at 1219, 1222. The panel now affirms that denial, problematically holding that it is âclearly establishedâ in a broad sense that âgovernment officials may not disadvantage speakers based on their viewpointâ and denying the agents qualified immunity. Id. at 1228. It is in reaching this conclusion that the panel regrettably errs. II The panelâs qualified immunity analysis in this case is wrongâdoubly wrong. First, the panel fails to separate the factual allegations that it must credit from the legal conclusions that it may not. See Ashcroft v. Iqbal, 556 U.S. 662, 678â79 (2009). Second, the panel defines the right at issue at an impermissibly high level of generality, asking whether it is âclearly establishedâ in a broad sense that âthe governmentâ may not engage in âviewpoint discriminationâ and concluding that it is. See Moss II, 675 F.3d at 1228. Having started with the wrong assumptions and asked the wrong question, it is no surprise that the panel arrives at the wrong answer. 16 MOSS V . U.S. SECRET SERVICE A Beginning with the assumption that it must âtak[e] the protestorsâ allegation of discriminatory motive [on the part of the Secret Service agents] as true,â the panel quickly reaches the conclusion that it is ââbeyond debateâ that, particularly in a public forum, government officials may not disadvantage speakers based on their viewpoint.â Id. By using the protestorsâ allegations about the agentsâ discriminatory motive as a starting point, however, the panel turns Iqbal on its head and places its analysis on shaky ground from the start. 1 As the panel notes, the protestorsâ complaint did indeed allege that the Secret Service agents engaged in viewpoint discriminationâreciting specifically that â[v]iewpoint discrimination by the Secret Service in connection with President Bush was the official policy of the White House.â But, contrary to the panelâs view, this allegation, which amounts to a legal conclusion about the agentsâ viewpointdiscriminatory motives, should not have been afforded a presumption of truth. â[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.â Iqbal, 556 U.S. at 678. Here, the allegation of a discriminatory motive contained in the protestorsâ complaint is almost identical to the âlegal conclusionâ to which the Supreme Court refused to afford a presumption of truthfulness in Iqbal. Id. at 680â81 (rejecting the allegation that government officials âknew of, condoned, and wilfully and maliciously agreed to subject [Iqbal] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and MOSS V . U.S. SECRET SERVICE 17 for no legitimate penological interestâ as a legal conclusion (internal quotation marks omitted) (second alteration in original)). Like in Iqbal, the bare allegation of a discriminatory motive contained in the protestorsâ complaint is âdisentitle[d] to the presumption of truth.â Id. at 681; cf. Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). The panel should not have accorded it any weight in its qualified immunity analysis. 2 Setting aside such a bald assertion, only two factual allegations remain to support the protestersâ claims about the Secret Service agentsâ discriminatory motives, neither of which is sufficient to establish plausibly that the agents harbored a subjective animus towards their viewpoint. The firstâthe protestorsâ description of purportedly similar Secret Service âactions against anti-government expressive activityââdoes not tend to make plausible their claim that the named Secret Service agents sued in this case acted with the subjective purpose to suppress their message; none involve these same agents or the same circumstances, and the allegations do not show a pattern pervasive enough to establish an unspoken policy of discrimination, especially in light of the explicit Secret Service policy prohibiting such conduct. Cf. Iqbal, 556 U.S. at 682â83; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (âLiability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.â). 18 MOSS V . U.S. SECRET SERVICE The secondâan out-of-context statement taken from the Presidential Advance Team Manualâboth lacks the nefarious meaning that the anti-Bush demonstrators, and the panel, would ascribe to it, and is irrelevant. For one, when viewed in context, the statement appears in a section of the manual entitled âCrowd Raising and Ticket Distributionâ and clearly refers to ticketed presidential events, from which demonstrators can be excluded without violating the First Amendment. See Weise v. Casper, 593 F.3d 1163, 1168 (10th Cir. 2010). But more importantly, the protestors never allege that the Secret Service agents were bound to follow this instruction, which is found in the Advance Team Manualâa guide written for the Presidential Advance Team and not the Secret Service. Indeed, the demonstrators have admitted that written Secret Service guidelines, which do apply to Secret Service agents, expressly âprohibit Secret Service agents from discriminating between anti-government and pro-government demonstrators.â2 The manual, therefore, not only lacks a nefarious meaning but also fails to have any bearing whatsoever on the motives of the Secret Service agents at issue in this case. 2 An âadvance manâ is â[o]ne who arranges for publicity, protocol, transportation, speaking schedules, conferences with local government officials, and minute details of a visit, smoothing the way for a political figure.â W illiam Safire, Safireâs Political Dictionary 8 (5th ed. 2008). By contrast, the Secret Service agents work for the Department of Homeland Security under the direction of the Secretary of Homeland Security, and are tasked with protecting the President. See 18 U.S.C. § 3056, amended by Pub. L. No. 112-257, 126 Stat. 2413 (2013). Given the very different roles of the advance team and the Secret Serviceâ the former to âsmooth[] the wayâ for a candidate and the latter to ensure his securityâ it is no wonder that their manuals contain different guidelines regarding demonstrators. MOSS V . U.S. SECRET SERVICE 19 Given the lack of factual allegations to support the antiBush demonstratorsâ claim of subjective viewpoint animus, the panel should not have afforded this animus allegation a presumption of truth. The panelâs subsequent failure to define properly the right at issue for purposes of qualified immunity further compounds this misstep. B Taking into account the absence of allegations plausibly demonstrating subjective viewpoint animus, the panelâs opinion should have proceeded to determine separately whether the facts as pleaded showed (1) a constitutional violation and (2) a violation of clearly established law. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009); Estate of Ford, 301 F.3d at 1049 (âSaucierâs key point is that the qualified immunity inquiry is separate from the constitutional inquiry.â). Instead, the panel erroneously collapses these two inquiries into one. Concluding that the objective factual events alleged in the complaint established a plausible claim of viewpoint discrimination, it eviscerates the clearly established prongâof course, the panel concludes, it is clearly established that officials may not engage in viewpoint discrimination. See Moss II, 675 F.3d at 1223â28. 1 Contrast the panelâs approach with the leading qualified immunity cases. One easily could say, for example, in a Fourth Amendment case in which the facts alleged showed that officers used excessive force, that the use of excessive force violates clearly established Fourth Amendment principles. Or in an Eighth Amendment case in which the 20 MOSS V . U.S. SECRET SERVICE facts alleged showed deliberate indifference, one could say that deliberate indifference violates clearly established Eighth Amendment principles. But both those statements would be fatally insufficient. See Saucier, 533 U.S. at 201â03; Estate of Ford, 301 F.3d at 1050â51. It is equally fatal merely to say that if the protestors have alleged sufficient facts to make a plausible claim of viewpoint discrimination, they have also shown a violation of clearly established law, because viewpoint discrimination is clearly prohibited. See Weise, 593 F.3d at 1167 (citing Anderson v. Creighton, 483 U.S. 635, 639â41 (1987)). Put another way, âwhen it comes to qualified immunity, merely stating that the government cannot engage in viewpoint discrimination is just about as general as stating that the government cannot engage in unreasonable searches and seizuresâan approach that is too general for the qualified immunity analysis where a plaintiff has the burden of demonstrating not only a constitutional violation, but also a violation of clearly established law.â Weise, 593 F.3d at 1168 n.1 (citing Anderson, 483 U.S. at 639â41). To avoid this analytical pitfall, the Supreme Court has mandated that, in qualified immunity cases, the contours of the right must be clearly established in âa more particularized, and hence more relevant, sense,â meaning that it must be âclear to a reasonable officer that his conduct was unlawful in the situation he confronted.â Saucier, 533 U.S. at 202. Contrary to this Supreme Court precedent, the panel in this case simply fails to perform that analysis. It fails to consider whether, in a more particularized sense, the alleged conduct of the Secret Service agents violated clearly established law. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). In so doing, it commits an error all too common to this circuitâone we have been specifically warned not to MOSS V . U.S. SECRET SERVICE 21 commit again. See id.; see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); Saucier, 533 U.S. at 200. It is clear that had the panel properly applied Iqbal and alKidd, it would have upheld qualified immunity. Absent the assumption that the Secret Service agents were purposefully engaging in viewpoint discriminationâwhich the panel should not have made in conducting the clearly established inquiryâthe agentsâ actions did not violate âclearly establishedâ law. See Estate of Ford, 301 F.3d at 1050 (âWe do not assume that [the officers] acted with deliberate indifference, as that would assume the answer.â). 2 Once properly framed in light of the factual allegations in the complaint, two questions of clearly established law are raised in this case: First, was it clearly established that moving one group to a location one block farther from the President than another when creating a Presidential security perimeter constituted a violation of that groupâs First Amendment rights? And second, was it clearly established that Secret Service agents, who moved a group to maintain a consistent security perimeter around the President, had to move the group back to their original location before the President could leave in his motorcade (or at least had to alter the motorcade route so that all involved got an equal chance to see the President)? The answer to these qualified immunity questionsâthe questions that the panel should have askedâis a clear âno.â 22 MOSS V . U.S. SECRET SERVICE a In response to the first question, it should be noted that before this decision neither our precedent nor Supreme Court case law prevented Secret Service agents from establishing a security perimeter around the President. Indeed, prior Supreme Court precedent had upheld analogous buffer zones to protect vulnerable patients attempting to enter healthcare facilities and to prevent targeted protests of an abortion doctorâs home. See, e.g., Colorado v. Hill, 530 U.S. 703, 719â30 (2000); Frisby v. Shultz, 487 U.S. 474, 479â88 (1988). Certainly, one would think, securing the safety of the President ranked as an interest at least on par with preventing harassment of patients and doctors. Cf. Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (noting that proper application of the qualified immunity standard is ânowhere more important than when the specter of Presidential assassination is raisedâ). Yet in denying the Secret Service agents qualified immunity in this case, our court holds today that it is notâand, even more egregiously, it was clearly established law that it was not, at least as early as 2004. Moreover, before this decision, no law appeared to require Secret Service agents to ensure that groups of differing viewpoints were positioned in locations exactly equidistant from the President at all times. But again, in this case, our court invents such a requirement and determines that it was long since âclearly establishedâ in our First Amendment jurisprudence. As the Government correctly points out, such a rule will be troublesome in application. As of today, shall Secret Service agents carry tape measures when they engage in crowd control to ensure that groups with different viewpoints are at comparable locations at all times? MOSS V . U.S. SECRET SERVICE 23 If they donât, they will now risk being subject to First Amendment lawsuits in nine Western states. b Turning to the second questionâwhether it was clearly established law that Secret Service agents had to return a group of demonstrators to their original location before the President could leave in his motorcadeâone is again at a loss to identify any First Amendment principle that clearly demands such an action. Cf. United States v. Grace, 461 U.S. 171, 177â78 (1983) (âWe have regularly rejected the assertion that people who wish to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.â (internal quotation marks omitted)); Menotti v. City of Seattle, 409 F.3d 1113, 1139 n.49 (9th Cir. 2005) (â[W]e hold that there is no constitutional requirement that protestors be allowed to reach their designated audience in the precise manner of their choosing . . . .â). Indeed, the assertion that some First Amendment doctrine would so require seems absurd. But the panelâs holding today bizarrely assures us that this, too, is a âclearly establishedâ ground for bringing a suit alleging infringement of oneâs First Amendment freedoms. It is hard to imagine how, in light of todayâs decision, Secret Service agents will navigate the treacherous path between the Scylla of our courtâs holdings in this case and the Charybdis of their duty to protect the President. 24 MOSS V . U.S. SECRET SERVICE c One final note: The operative complaintâs lack of plausible allegations showing that the Secret Service agents in this case explicitly acted with a subjective intent to suppress the protestorsâ message differentiates this case from the one on which the panel relies in their qualified immunity analysis. See Mahoney v. Babbitt, 105 F.3d 1452, 1458â59 (D.C. Cir. 1997) (âThe government has conceded that if appellants were carrying no signs or, indeed, if they were carrying signs favorable to the administration whose second Inaugural was being celebrated, their âphysical intrusionâ would be welcomed. It is only the âpurpose of injecting [their] own convictions or beliefsâ that causes the government to exclude them.â). In light of the allegations in Mahoney, which expressly showed a subjective discriminatory purpose on the part of the National Park Service in denying a permit to a group of demonstrators, it is no wonder that the courts were able to find qualified immunity inapplicable and to conclude that the officials there violated clearly established law prohibiting viewpoint discrimination. See id. But in this case, where the anti-Bush demonstrators admit that the Secret Service agents offered a neutral security rationale for their actions, the panel should have assessed their objective conduct as alleged in the complaint to determine whether it plausibly demonstrated a violation of clearly established law. See Estate of Ford, 301 F.3d at 1050. Sadly, it did not do so; instead, it misstates the law and, ultimately, reaches the wrong result. â[I]n light of the specific context of this caseâ the Secret Service agents did not violate any âclearly establishedâ law. See Saucier, 533 U.S. at 201. As such, they were entitled to MOSS V . U.S. SECRET SERVICE 25 qualified immunity, and the panel erred in denying it to them. Id. III Our courtâs track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.3 Although we may not have been able to rectify our past mistakes by rehearing this case en banc, we certainly should have used this opportunity to avoid repeating them. Alas, the panel here once again commits many familiar qualified immunity errors. It affords unwarranted deference to legal conclusions in the protestorsâ complaint. It collapses the twopronged qualified immunity inquiry. It defines the right at issue too broadly. And it fails to give sufficient latitude to those charged with protecting the life of the President. This decision renders the protections of qualified immunity toothless. But even more devastating, this decision hamstrings Secret Service agents, who must now choose between ensuring the safety of the President and subjecting themselves to First Amendment liability. I respectfully dissent from our failure to rehear this case en banc. 3 See, e.g., al-Kidd, 131 S. Ct. at 2084 (reversing the Ninth Circuit) (warning âthe Ninth Circuit in particularâ to avoid âdefin[ing] clearly established law at a high level of generalityâ); Brosseau, 543 U.S. at 199 (same); Saucier, 533 U.S. at 200 (same); Hunter, 502 U.S. at 227â29 (same). 26 MOSS V . U.S. SECRET SERVICE OPINION BERZON, Circuit Judge: During the 2004 presidential campaign, PlaintiffAppellees, Michael Moss and others who opposed President Bush (âprotestorsâ or âanti-Bush protestorsâ), organized a demonstration at a campaign stop in Jacksonville, Oregon. They contend that Secret Service agents, DefendantAppellants Tim Wood and Rob Savage (âagentsâ or âSecret Service agentsâ), engaged in unconstitutional viewpoint discrimination in violation of the First Amendment, by requiring the protestors to demonstrate at a distance from the President because they were protesting â rather than supporting â his policies. In addition, the protestors maintain that the police officers who carried out the Secret Service agentsâ 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 (âpolice supervisorsâ), used excessive force in violation of the Fourth Amendment. They seek to hold Ruecker and Rodriguez 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. MOSS V . U.S. SECRET SERVICE 27 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 Honeymoon Cottage.1 A group of people opposed to President Bush organized a demonstration to protest his policies. They discussed 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 necessary. The Jacksonville Police Chief similarly stated that he did not plan to use riotgear-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 between Third and Fourth Streets. They stood in front of the main building of the Jacksonville Inn, approximately two blocks south of the Innâs Honeymoon Cottage where the 1 Because this is an appeal from an order denying Defendantsâ motion to dismiss, the facts described are taken from Plaintiffsâ complaint and are assumed to be true. 28 MOSS V . U.S. SECRET SERVICE President planned to stay.2 A similarly-sized group of proBush 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 Cottage until approximately 7:00 p.m., an hour after the demonstrations 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 Innâs main building is located. The anti-Bush demonstrators allege that at that point, â[b]oth sets of demonstrators had equal access to the President during his arrival at the Jacksonville Inn.â 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 demonstrators (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 approximately 7:15 p.m. and ate dinner on the Innâs outdoor patio, which was enclosed by a 6-foot-high wooden fence. 2 A map of the area of Jacksonville in which the relevant events occurred is attached as an appendix to this opinion. MOSS V . U.S. SECRET SERVICE 29 This fence, along with the buildings along California Street, made it impossible for the anti-Bush protestors to see the President. In addition, these obstacles, as well as police officers stationed around the perimeter of the Inn, prevented anyone from walking from the demonstration site to the Presidentâs location on the patio. There were several other diners on the patio in addition to the Presidentâs party. In addition, upstairs from the restaurant was a group of approximately thirty people at a medical conference, some of whom ventured downstairs and, finding an unguarded door to the patio, were able to observe the President 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 standing. 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 agentsâ action was the suppression of the protestorsâ antiBush viewpoint â that is, that the agents sought to prevent the President or the media from seeing or hearing the protestorsâ message. 30 MOSS V . U.S. SECRET SERVICE In accordance with the Secret Service directive, police officers 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 announcements, unintelligible to many of the protestors, stating that the protestorsâ 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 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 protestorsâ second amended complaint (âSACâ). Their first amended complaint (âFACâ) 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. MOSS V . U.S. SECRET SERVICE 31 § 1983 against police supervisors Ruecker and Rodriguez in their personal capacities 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) (âMoss Iâ). We held that although the facts the protestors pleaded in the FAC did ânot rule out the possibility of viewpoint discrimination,â they were insufficient to allege such a claim with the degree of precision required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), both of which had been decided after the protestors filed the FAC. Id. at 971â72. In particular, we held in Moss I that the protestorsâ unsupported allegations of âimpermissible motive on the Agentsâ part,â a âsub rosa Secret Service policy of suppressing speech critical of the President,â and âsystematic viewpoint discrimination at the highest levels of the Secret Serviceâ were, under the post-Iqbal pleading standards, âconclusory and . . . therefore not entitled to an assumption of truth.â Moss I, 572 F.3d at 970. We further determined that the protestorsâ 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 âcomparableâ to the location of the pro-Bush demonstrators in terms of its proximity to the President when he was dining at the Innâs restaurant. Id. at 971. Finally, Moss I held that the protestorsâ allegations concerning the guests and diners at the Inn who were within close range of the President but not 32 MOSS V . U.S. SECRET SERVICE subject to screening or required to move âoffer[ed] little if any support forâ the protestorsâ viewpoint discrimination claim, because these guests and diners were not seeking to communicate their views and therefore were not similarly situated to the protestors. Id. For these reasons, we concluded that the protestors had âfail[ed] to plead facts plausibly suggesting a colorable Bivens claim against the Agents.â 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 â and more detailed â factual allegations. After the protestors filed the SAC, the Secret Service agents again sought to dismiss the First Amendment claim. Reviewing the agentsâ 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 âsupported by factual allegations and . . . thus entitled to an assumption of truthâ and that â[v]iewing all the factual allegations entitled to assumption of truth in the SAC,â the protestors had âpled a plausible claim.â The state police supervisors also filed a motion to dismiss. The magistrate recommended that this motion also be denied, explaining that under the framework set forth by this court in al-Kidd v. Ashcroft, 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 MOSS V . U.S. SECRET SERVICE 33 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 magistrateâs report and recommendation in full. Before us now are the Secret Service agentsâ and police supervisorsâ appeals of the district courtâs denial of qualified immunity. We begin by briefly discussing the framework for evaluating whether qualified immunity is appropriate, as that framework 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 â[Q]ualified immunity protects government officials âfrom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.ââ 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 âaccountable when they exercise power irresponsibly,â while âshield[ing]â them âfrom harassment, distraction, and liability when they perform their duties reasonably.â Id. To determine whether a government official is entitled to qualified immunity, we conduct a two-prong analysis. See, 34 MOSS V . U.S. SECRET SERVICE e.g., Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011). Government officials are denied qualified immunity only if (1) âthe facts that a plaintiff has alleged . . . make out a violation of a constitutional rightâ; and (2) âthe right at issue was clearly established at the time of [the] defendantâs alleged misconduct.â 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 âexercise 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.â 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 officialâs 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 âsufficiently clear that a reasonable official would understand that what he is doing violates that right.â Dunn v. Castro, 621 F.3d 1196, 1200 (9th Cir. 2010) (internal quotation marks omitted). âBecause qualified immunity is an immunity from suit rather than a mere defense to liability, courts have also evaluated the sufficiency of the allegations of the defendantâs personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis.â al-Kidd v. Ashcroft, 580 F.3d at 964 (internal citation, quotation marks, and emphasis omitted); see Iqbal, 129 S. Ct. at 1946. In analyzing the protestorsâ First Amendment claim against the Secret Service agents, we begin by addressing the first prong of the qualified immunity framework â whether the facts the protestors have alleged make out a constitutional MOSS V . U.S. SECRET SERVICE 35 violation â and then move to the next prong â 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 reasonableness of the agentsâ 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 immunity 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. 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. Public streets are âthe archetype of a traditional public forum.â Frisby v. Schultz, 487 U.S. 474, 480 (1988), as they have âimmemorially been held in trust for the use of the public,â id. at 481 (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). In such âtraditional public fora, the governmentâs ability to permissibly restrict expressive conduct is very limited. . . . First Amendment protections are strongest, and regulation is most suspect.â Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009) 36 MOSS V . U.S. SECRET SERVICE (internal quotation marks and citations omitted). Moreover, â[p]olitical speech is core First Amendment speech, critical to the functioning of our democratic system.â Id. at 1021. âTraditional public fora,â such as the public streets upon which the anti-Bush protestors sought to demonstrate âgain even more importance when they are host to core First Amendment speech.â Id. at 1022. As the Supreme Court has repeatedly reiterated, government regulation of political speech in a public forum based on its content is presumptively unconstitutional. See United States v. Playboy Entmât 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). âWhen 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.â Rosenberger, 515 U.S. at 829. âViewpoint discrimination is thus an egregious form of content discrimination,â one from which â[t]he government must abstain.â Id. The government may not regulate speech based on âthe specific motivating ideology or the opinion or perspective of the speaker,â id.; nor may it âfavor some viewpoints or ideas at the expense of others,â Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). We recently summarized these longstanding principles as instructing that âgovernment may not favor speakers on one side of a public debate.â Hoye v. City of Oakland, 653 F.3d 835, 849 (9th. Cir. 2011).3 3 Hoye was, of course, decided after the incident giving rise to this case. W e cite it only for its succinct précis of many years of precedents on viewpoint discrimination. MOSS V . U.S. SECRET SERVICE 37 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. Sys., Inc. v. FCC, 512 U.S. 622, 642â43 (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 agentsâ actions were facially viewpoint discriminatory â that is, that the agents explicitly treated pro- and anti-Bush demonstrators differently â and that their actions, even if facially neutral, were motivated 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 Agentsâ motive in moving Plaintiffs away from the Inn was . . . suppression of Plaintiffsâ anti-Bush message, then presumably, they would have ensured that demonstrators were moved to an area where the President could not hear their demonstration, or at least to an area farther from the Inn then [sic] the position that the 38 MOSS V . U.S. SECRET SERVICE 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 demonstrators, thereby establishing a consistent perimeter around the President. Id. Now, in the SAC, the protestors allege that the agents did indeed direct that the anti-Bush demonstration be moved 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 âto the east side of Fourth Street,â but that the agents âsubsequentlyâ directed that the protestors be moved âto the east side of Fifth Street.â 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 dining than the pro-Bush demonstrators, and, one can infer, were therefore less able to communicate effectively with the President, media, or anyone else inside or near the Inn. The agents object to the protestorsâ failure to plead specifically that the President could no longer hear their protests once they were moved. While such an allegation would strengthen the protestorsâ complaint, its absence does not make their claim implausible. Regardless of whether the President 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 protestorsâ chants would be less intelligible from two blocks away. MOSS V . U.S. SECRET SERVICE 39 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 âcheer for President Bush as he traveled to the Honeymoon Cottage.â In their brief, the agents insist that the Presidentâs motorcade route between the restaurant and the Honeymoon Cottage is âirrelevant,â because the âarmored limousineâ 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 the complaint and is therefore not properly cognizable at this stage. Second, the assertion of a viewpointneutral rationale cannot transform a facially discriminatory policy â allowing one group of demonstrators access to the President while moving protestors with the opposing view further away â into a valid one. See ACLU, 466 F.3d at 793. 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 viewpoint discrimination. 40 MOSS V . U.S. SECRET SERVICE b. In addition to these allegations of facial viewpoint discrimination, 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 disapproval 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 disagreement with the message it conveys. . . . The governmentâs purpose is the controlling consideration. Ward, 491 U.S. at 791 (emphasis added) (internal citations omitted). Thus, if true, the motive allegation would be sufficient in and of itself to support a claim of viewpoint discrimination 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. 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 protestorsâ anti-Bush message. â[A] restriction on expressive activity isâ only content- or viewpoint-neutral if it is âbased on a non-pretextual reason divorced from the content of the MOSS V . U.S. SECRET SERVICE 41 message attempted to be conveyed.â United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000