718 F.3d 1210 (10th Cir. 2013), 11-2055, Pahls v. Thomas

Docket Nº:11-2055, 11-2059.
Citation:718 F.3d 1210
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Jeanne PAHLS; Rebecca Wilson; Alma Rosa Silva Banuelos; Carter Bundy; Jason Call; Mary Lou
Attorney:Henry F. Narvaez of Narvaez Law Firm, P.A., Albuquerque, NM, for Defendants-Appellants Thomas and Mims. Edward Himmelfarb, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General; Kenneth J. Gonzales, United States Attorney; Ho...
Judge Panel:Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.
Case Date:June 04, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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718 F.3d 1210 (10th Cir. 2013)

Jeanne PAHLS; Rebecca Wilson; Alma Rosa Silva Banuelos; Carter Bundy; Jason Call; Mary Lou " Mitzi" Kraft; Merimee Moffitt; Laura Lawrence; Stuart T. " Terry" Riley; Codepink Women for Peace, Albuquerque Chapter; Stop the War Machine, Plaintiffs-Appellees,

v.

Matthew THOMAS; Edward Mims, in their individual capacities, Defendants-Appellants,

and

City of Albuquerque; Albuquerque Police Department; Kerry Sheehan, Leslie Brown, Joshua McDonald, in their individual capacities, Defendants.

Jeanne Pahls; Rebecca Wilson; Alma Rosa Silva Banuelos; Carter Bundy; Jason Call; Mary Lou " Mitzi" Kraft; Merimee Moffitt; Laura Lawrence; Stuart T. " Terry" Riley; Codepink Women for Peace, Albuquerque Chapter; Stop the War Machine, Plaintiffs-Appellees,

v.

Kerry Sheehan, Defendant-Appellant,

and

City of Albuquerque; Albuquerque Police Department; Matthew Thomas, Edward Mims, Leslie Brown, Joshua McDonald, in their individual capacities, Defendants.

Nos. 11-2055, 11-2059.

United States Court of Appeals, Tenth Circuit.

June 4, 2013

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Henry F. Narvaez of Narvaez Law Firm, P.A., Albuquerque, NM, for Defendants-Appellants Thomas and Mims.

Edward Himmelfarb, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General; Kenneth J. Gonzales, United States Attorney; Howard R. Thomas, Assistant United States Attorney, Albuquerque, NM; Barbara L. Herwig, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., with him on the briefs), for Defendant-Appellant Sheehan.

Christopher A. Hansen of American Civil Liberties Union, New York City, N.Y. (Catherine Crump of American Civil Liberties Union, New York City, NY; Laura Schauer Ives of American Civil Liberties Union; Philip B. Davis, Albuquerque, NM, with him on the brief), for Plaintiffs-Appellees.

Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.

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HOLMES, Circuit Judge.

Location, location, location. It is cherished by property owners and political demonstrators alike. Both groups, it turns out, are at the heart of this case. Plaintiffs-Appellees brought this action after law enforcement officials forced them to move to an unfavorable location to engage in protest activities but allowed a group espousing the opposite viewpoint to remain in place on private property— property that happened to be prime real estate for the political demonstration in question. They identified Defendants-Appellants Kerry Sheehan, Matthew Thomas, and Edward Mims as responsible for the decisions leading to this disparate treatment, and they claim each defendant is liable for viewpoint discrimination in violation of the First Amendment. The district court denied Defendants-Appellants' motions for summary judgment based on qualified immunity, and this interlocutory appeal followed. For the reasons set forth below, we reverse the judgment of the district court.

I

Our story begins in Los Ranchos de Albuquerque (hereinafter " Los Ranchos" ), a semi-rural village in Bernalillo County, New Mexico, that neighbors the much larger city of Albuquerque. One of its main thoroughfares is a north-south route known as Rio Grande Boulevard, which lies just east of, and parallels, the Rio Grande River. The river forms the western border of Los Ranchos.

On August 27, 2007, President George W. Bush attended a fundraiser for former Senator Pete Domenici at the home of Los Ranchos's mayor, Larry Abraham. The mayor's home is located to the west of Rio Grande Boulevard, between the road and the river. A long driveway runs west from Rio Grande Boulevard to the mayor's home. When President Bush arrived, his motorcade approached from the north, moving down Rio Grande Boulevard in a southerly direction, and made a right-hand turn into the mayor's driveway. This particular mode of entry gave rise to this lawsuit.

There were two groups of demonstrators awaiting the President's arrival that day. One group— which we shall call " protesters" or " Bush protesters," for their opposition to the President and his policies— was made to stand 150 yards south of the mayor's driveway on Rio Grande Boulevard, at a location called the southern checkpoint. A second group— which we shall call " supporters" or " Bush supporters," for their support of the President and his policies— was allowed to stand directly across from the mayor's driveway, on private property to the east of Rio Grande Boulevard, some six to fifteen feet from the roadway. The supporters were much closer to, and directly in view of, the President's motorcade as it entered the mayor's driveway. The protesters, by contrast, were much farther away, and their view of the motorcade— and, likewise, the President's view of them— was obstructed by police cars and horse-mounted officers situated at the southern checkpoint.1

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Among the protesters that day were Plaintiffs-Appellees. (Henceforth, we call them simply " plaintiffs." ) They later sued various government officials and entities pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), claiming a violation of their First and Fourteenth Amendment rights. They alleged that they were subjected to unconstitutional viewpoint discrimination when local police officers and agents of the United States Secret Service forced them to remain at the southern checkpoint and simultaneously allowed Bush supporters to stand on private property north of the checkpoint in closer proximity to the President's motorcade.

After discovery, Defendant-Appellant Kerry Sheehan, a Special Agent with the United States Secret Service, moved for summary judgment on grounds of qualified immunity. Defendants-Appellants Lieutenant Matthew Thomas and Sergeant Edward Mims, officers with the Bernalillo County Sheriff's Department (" BCSD" ), also filed summary-judgment motions asserting qualified immunity. 2 The district court denied summary judgment as to all of the officials, finding that they were not entitled to qualified immunity because there were " question[s] of fact" concerning both whether plaintiffs were subjected to viewpoint discrimination and whether each official personally participated in the alleged constitutional violation. Sheehan App. at 216, 219-22 (Mem. Op. & Order, filed Feb. 22, 2011).3 Lt. Thomas and Sgt. Mims (jointly), followed by Special Agent Sheehan, filed separate notices of appeal from the district court's order. We have consolidated the two appeals for our review.

In ruling on the summary-judgment motions, the district court set forth in detail the factual background of this case. Generally, when a district court has denied qualified immunity at the summary-judgment stage, we must accept " as true" the district court's determination " that a reasonable jury could find certain specified facts in favor of the plaintiff," Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.2010), and our appellate jurisdiction is limited to the " ‘ abstract’ legal question[ ]" whether the facts as presented amount to a violation of a clearly established right, id. (emphasis omitted) (quoting Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). Mindful of these limitations, we set forth in detail the events giving rise to this case. See generally Sheehan App. at 191-210.

A

We begin with some relevant background. The Secret Service has the statutory— and we may add, solemn— responsibility

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of protecting the President of the United States. See 18 U.S.C. § 3056. Whenever the President travels, the Secret Service is in charge of security, and it works with other federal agencies, as well as state and local entities, to design and implement security measures.

Before the President travels to a place, a Secret Service " advance team" visits the location to evaluate necessary security measures and develop a site-specific security plan. The plan typically includes attack-prevention and emergency-response strategies, such as establishing a secure perimeter around the visit site and controlling vehicle access thereto. Vehicle access is of particular concern to the Secret Service because it heightens the risk of attack by vehicle-borne explosives. Security plans thus often incorporate portions of nearby roadways. Pedestrian and vehicle movements along these roadways are controlled to ensure both the President's security and rapid, unobstructed access by emergency vehicles.

The advance team typically coordinates security efforts with local law enforcement and other public-safety officials. Secret Service agents have no legal jurisdiction over local officials, and vice-versa, but all recognize that security is a team effort. Local officers often defer to the Secret Service on issues of security, and the Secret Service, in turn, often defers to local law enforcement on questions implicating local codes and ordinances, such as where demonstrators are legally allowed to stand. The Secret Service may nonetheless override law enforcement for safety reasons and may, for example, reposition demonstrators.

It is the general policy of the Secret Service to allow members of the public to walk along the shoulder of a vehicle-access route if they are legally allowed to be there, if they do not interfere with the President's motorcade, and if they do not pose a safety risk. If an individual is standing on private property near the visit site, the Secret Service will avoid infringing his...

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