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February 27, 2014 Articles

Supreme Court to Revisit Qualified Immunity and Pleading Standards

The Supreme Court should adopt an approach to inferences that recognizes the primary role of district courts in deciding which inferences may be sufficient to support a claim.

By Simona Grossi and Allan Ides – February 27, 2014

On March 26, 2014, the U.S. Supreme Court will hear oral arguments in Wood v. Moss, No. 13-115, a case involving a claim of viewpoint discrimination lodged against two Secret Service agents who were tasked with protecting President George W. Bush.

In October 2004, two groups of demonstrators assembled near the Jacksonville Inn in Jacksonville, Oregon, where President George W. Bush was scheduled to dine. One group was pro-Bush and the other was anti-Bush. When President Bush arrived at the inn, both groups were in identical proximity to the president, each on a sidewalk near or adjacent to the inn. Shortly after the president’s arrival, Secret Service agents ordered the anti-Bush group to move to a place where they were less visible and less audible to the president. The pro-Bush group was not required to move. Members of the anti-Bush group sued the Secret Service agents claiming a violation of their First Amendment rights.

After an initial round of motions, including an appeal to the Ninth Circuit, see Moss v. United States Secret Service, 572 F.3d 962, 971–72 (9th Cir. 2009), the plaintiffs filed a second amended complaint (SAC). The agents again filed a motion to dismiss, challenging the pleading adequacy of the SAC and asserting an entitlement to qualified immunity. The district court denied the motion. It held that the complaint adequately alleged a claim of viewpoint discrimination under the pleading standards established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court also held that the law of viewpoint discrimination was clearly established at the time of the incident and, accordingly, that the agents were not entitled to qualified immunity. The Ninth Circuit affirmed on both grounds. Moss v. United States Secret Service, 675 F.3d 1213 (9th Cir. 2012), rehearing en banc denied, 711 F.3d 941 (9th Cir. 2013).

The agents sought review in the Supreme Court on the pleading and immunity issues. The Court granted certiorari on both grounds.


As to qualified immunity, the essential question presented in Wood v. Moss is whether the right asserted by the plaintiffs—viewpoint discrimination—was clearly established at the time of the incident. The government argues that the lower courts approached that question at a level of abstraction that did not afford the Secret Service agents adequate notice of their potential liability. In the government’s view, a court must consider the specific context in which the claim arises to determine if that claim, so contextualized, has been clearly established. Thus, the government asserts that the agents are entitled to qualified immunity because no previous cases have applied viewpoint discrimination in the specific context of Secret Service crowd-control measures.

The idea that a court must consider the specific context in which a claim arises, as described by the government, is correct and finds support in a number of Supreme Court opinions. Brosseau v. Haugen, 543 U.S. 194, 199, 201 (2004) (per curiam)Saucier v. Katz, 533 U.S. 194, 200 (2001)Wilson v. Layne, 526 U.S. 603, 615 (1999)Anderson v. Creighton, 483 U.S. 635, 639 (1987). However, these cases tend to arise in contexts where a general standard, such as “reasonableness,” must be applied to a unique set of facts. Here, the difficulty from the perspective of the government actor is notice as to whether the officer’s contemplated conduct would violate the general standard. In contrast, intentional viewpoint discrimination imposes a relatively specific standard that asks whether the government actor intentionally treated a party less favorably because of the party’s expressed viewpoint. It’s difficult to see how a government actor aware of this standard would need further notice that any particular act of intentional viewpoint discrimination would violate the First Amendment.

The government’s qualified-immunity argument is partly premised on an interpretation of the facts in which there was no viewpoint discrimination, i.e., on the idea that the agents were motivated by something other than the demonstrator’s viewpoint. Thus, the government asserts that “respondents identify no cases finding a First Amendment violation when stated security considerations merely caused two groups with different views to end up at marginally different distances from a public official.” Brief for Petitioners at 28. Of course, if there is no viewpoint discrimination, there is no claim, clearly established or otherwise.

The respondents’ brief challenges the government’s qualified-immunity argument on two grounds. First, the government’s argument is premised on a factual dispute over whether the Secret Service agents engaged in viewpoint discrimination. Such factual disputes, the respondents assert, cannot be resolved on a motion to dismiss. Brief for Respondents, at 31; see Scott v. Harris, 550 U.S. 372, 378–80 (2007). Second, the respondents argue that the standard for asserting a claim of viewpoint discrimination was clearly established well before the incident at issue in this case. In fact, “[t]he proposition that treating speakers in a public forum unequally because of their views—intentionally disadvantaging those whose views are critical of government while advantaging those whose views are favorable to government—violates the First Amendment ‘should be and is obvious to everyone.’” Brief of Respondents, at 33, citing Metro Display Adver., Inc. v. City of Victorville, 143 F.3d 1191, 1196 (9th Cir. 1998). Further, “[d]iscrimination against speech because of its message is presumed to be unconstitutional.” Brief for Respondent, at 32, citing Rosenberg v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). Thus, the respondents claim that no reasonable Secret Service agent could have believed that it was constitutionally permissible to engage in intentional viewpoint discrimination between what were otherwise equally situated groups of demonstrators.


The pleading issue requires an application of the standards developed by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Those standards focus on the elements of the claim and on the non-conclusory, factual matter alleged in the complaint. Under Twombly and Iqbal, the sufficiency of a complaint must be established by reference to the alleged facts and the reasonable inferences that may be drawn therefrom. The question is whether those allegations and inferences plausibly suggest a claim upon which relief can be granted.

“[A] claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls v. Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013). Hence, to survive a Rule 12(b)(6) motion to dismiss, the respondents’ complaint must contain sufficient non-conclusory factual matter to support a reasonable inference that the Secret Service agents acted with a viewpoint-discriminatory purpose.

The government argues that the respondents’ complaint is deficient from a pleading point of view in that any “conceivable” inferences of unlawful intent that may be drawn from the factual allegations cannot withstand a “more likely” neutral explanation for the agents’ behavior, specifically a lawful motivation to protect the president from harm. The respondents assert, on the other hand, that the specific allegations of differential treatment between the similarly situated pro-Bush and anti-Bush demonstrators, coupled with specific allegations of a pattern of similar acts of viewpoint discrimination by the Secret Service, provides ample support for an inference of discriminatory purpose.


We have written an amicus brief on the pleading issue in which we argue that the Court should adopt an approach to inferences that recognizes the primary role of district courts in making what is essentially a practical and commonsense judgment as to which inferences may be sufficient to support a claim. Certainly, a mechanical formula intended to instruct courts on how to identify a reasonable inference would serve neither the ends of justice nor principles of sound case management. Moreover, we argue that conflicting reasonable inferences should not be resolved in a Rule 12(b)(6) motion, where the plaintiffs’ factual allegations, and all reasonable inferences taken therefrom, are presumed to be true. Such conflicting interpretations of the facts should await discovery, summary judgment, and if necessary, trial.

In the discipline of logic, an inference can be established in two ways, deductively or inductively. A deductive inference is a product of the classic syllogism and flows ineluctably from its major and minor premises. (All humans are mortal; Socrates is a human; Socrates is mortal.) If the premises are true, then the logical deduction provides absolute proof of its conclusion. An inductive inference, on the other hand, is one for which the premise—a set of facts thought to be true—makes it only probable that a particular conclusion is itself true. (Most adult humans are taller than two feet; Bob is an adult human; Bob is most likely taller than two feet.) As the Court explained in Twombly and Iqbal, notice pleading requires neither proof nor probability of truth. Thus, an inference drawn from the facts alleged in a pleading—which facts must be assumed to be true—does not need to be deductively proven or inductively probable. Rather, such an inference need only be reasonable, and reasonableness permits a range of alternative inferences, that is, inferences on which reasonable minds may differ. Thus, under Rules 8(a)(2) and 12(b)(6), an inference drawn from the factual material in a pleading does not need to be the exclusive or even the most probable inference. Rather, it only needs to be an inference among the range of reasonable alternatives. Discovery and trial will then reveal which of these competing and factually supported inferences is, in fact, true.

Keywords: civil rights litigation, qualified immunity, clearly established, viewpoint discrimination, pleadings, inferences, Iqbal, Twombly, SCOTUS


Simona Grossi is an associate professor of law and Allan Ides is a professor of law at Loyola Law School in Los Angeles, California.

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