we'll hear argument this morning case thirteen eleven five versus moss mr gerson mr chief justice and may it please the court the ninth circuit held that individual secret service agents could be held personally liable for their on the spot decision to reposition a group of about two hundred to three hundred demonstrators who within weapons range of president bush as he made an unscheduled as he made an unscheduled stop for dinner at an outdoor restaurant patio may i ask a question  so were the pro bush administrations in fact the pro bush demonstrators were across the street pretty much at the diagonal to the president and they were permitted to remain there the entire time he had they had that owing to stance of the bomb or shooting distances well so your honor the progress demonstrators were differently situated from the anti bush demonstrators in several fundamental respects with respect to the weapons range there was there was a two story building between the probe protesters and the where the president was dining it's in stark contrast to the open alley that led down to it precisely to the six foot wooden fence behind which the president was dining which is where the anti bush protesters were that was having a second move not to know your honor at the first move when the president arrived for dinner the the the progress protesters on the north the anti bush protesters were on the north side of california street between third and fourth and the alley that led right down to the restaurant patio was right there the they were at the head of the alley so they were very differently situated from the progress protesters i don't understand  the government to be making the argument understand why it isn't making the argument that it doesn't matter whether there was any intent to suppress anti bush demonstration that in this area as in traffic stops we don't consult subjective entails if if if a policeman stops somebody show you stop me only because i was coming back from a day at the bush demonstration we wouldn't we wouldn't listen to that argument we'd say did you have a broken tail light or not if you had a broken tail light we do not inquire into the subjective inten officer why is it any different here your honor i don't believe we are avoiding the argument that your honor i think your honor with respect that we have our position is that it is not clearly established law that if there were an objective lee reasonable you don't even have to get into that you don't have to get into clearly established law it's a very simple case if you say was there objectively a reason to move these people if there was if you had an ulterior motive that was unconstitutional we don't inquire into your honor we agree with that we just have framed it is terms of in terms of clearly established law that if we think along the lines of what this court said in reichl with respect to retaliate story were arrest if there is an objective really reasonable basis for the room for the move for the repositioning such as a valid security rationale it's not clearly established that the presence of animus would be enough to take it would raise  because you have these hypothetical in the last page of the brief where you say that a complaint could survive and to dismiss if the secret service members had you know announced had admitted that they had an intention to discriminate or if they had told the local police that so i took what you were saying there to say if there is evidence of a very clear nature that it was all a animists and it was nothing about security then the complaint would survive so your honor i think that the way we reconcile the two positions in is the following if there is no objective legitimate security rationale and it is amiss we agree that it would be clearly established law that the officers could not have taken the agents could not have taken responsibility could not have taken the actions however if on the record there is an objective lea reasonable security basis and we don't think it's clearly established that even if the individual officer didn't take the action for that reason and took it for animists it's not clearly established that that would still do applied biased by answering justice scalia's question for good clearly establish what do you think the law is or  the only motive for the officers action for the secret service action is one based on viewpoint discrimination but that nonetheless there was an objective reason that could have justified the action what should the outcome be there as a matter of law or get clearly established we don't think they've stated a constitutional violation that context however what the court d don't what does that answer me that means there is no constitutional violation so you say so you say but a and any time there is an objective basis for the secret service to act to move a protester the fact that this wasn't the motive at all but that it was viewpoint discrimination is irrelevant so your honor i want to is that your position or is it that is our position but i don't think that's what we need to win this case i know that but the reason the reason i think these questions are being asked my impression is exactly what justice school leo said in respect to a fourth amendment case against a police stop but my impression also is that where you have a first amendment case and it's not against the policeman against secret service this court has not said that and my right about that you can the reason that your position if i am right is relevant is because i think maybe we shouldn't say that for the first time in a case where the government hasn't even argued so your honor i have no what is the answer to what i said am i right on part one and am i right on part two your honor you are right on part one the court has never held that what the court the closest the court has come is in rifle where what the court said was in the case of retaliatory arrest it was not clearly established the court didn't reach the constitutional question the court said it was not clearly established that where there was objective proper probable cause for arrest retaliatory animists was not relevant we think a number of the same factors that motivated the court in reichl could motivate the court here as well were they to reach that ordinary policemen it is another thing to talk about first amendment matters where we are engaged with a kind of special protect you force your certain residence is there that may resonances that may make a person hesitate to extend into that area and so what is the government's view so your honor i've been asked the government's you know a couple things i want to be very clear the question of what is our position is the position articulated by justice scalia the question of what we need to win it's qualified immunity the question of whether the court should reach the constitutional question i think our answer would be no that the parties have been breached it as your honor said that the normal course would be to do what the court said in reichl and say that it's not clearly  but i can understand why you didn't brief it in that case i cannot understand why you didn't brief it and talking about things that we haven't haven't held in the past we haven't even filled in the past that there that there is a difference cause of action for a first no private right of action for you certain constitutional violation if we do believe your honor that it is it is it the court would have jurisdiction to reach it because it's a logically antecedent question and that it would be something that the court could consider it's not i don't mean what the court consider i want to know whether or not well the simple question simple can you only can you not violate the constitution if there is no right of action against you or do you look and say well whether there's a right of action or not it's still violates the constitution you because it wasn't preserved below but we do think the very same factors that should mode that would give the court pause about recognizing a begins actions are the ones that would cause the court to reverse the ninth circuit on the merits of the case if you were called to brief the secret service  what would you say in response to this question do we have any duties under the first amendment when we are protecting the president with respect to crowds and and people that are close to do we have any first amendment duty your honor we would first of all as a the policy i know you i was asked if i just wanted a clear there's a policy that that would generally prohibit the secret service from doing that an internal policy with respect to talk about a law they say we want to know what the law is where law enforcement often will you please tell us what the law is i would say your honor that the law is not clearly established this court has never held that these and that's why we've invited you to lunch so that you will time again with dad and i and and we  that's not that's a different issue so the question here is is this a mixed mode of case or not you're out of that the other side i think is saying it's not that there was no valid security reason no object if security reason for the small and i think the our response to that your honor is we would agree that's clearly established if there were no if no reasonable officer could believe there was a security rationale and it was only on the basis of animus that it would be clearly established when why do you accept the description of that as a mixed i don't think that's i don't think just it's only read with my hypothetical the point is it doesn't matter what the officers motive was it does not matter if there's an objective basis for a traffic stop even if it was so motive was discriminatory the stop is none the less valid you're honestly not it makes motive issue i took justice sotomayor to be asking me a different question if there is no objective different which is that whether there is a sort of mt healthy but for causation and i would say just would be very clear what our position is here i know i'm being asked on the merits but just to get out the position i'm qualified immunity it is not clearly established that taking you point discrimination into account in a security situation violates the constitution it is not clearly established that if there is objective security rationale even if you act then in and of this that that would violate the constitution scalia's question and in the fourth amendment context where it is purely the inquiry is purely objective we have case law on what is reasonable suspicion what is probable cause if you apply that to a first amendment case where there are where it's asserted that there is a security there may or may not be security concern would it not be necessary for us to identify  a a degree of suspicion or probable cause that the secret service would have to have before making before moving people for security reasons i mean i imagine whenever the president is out in public there is some degree of risk you want no risk you know keep him in a bunker so at some point that you see what i'm saying then we are the secret service has to make a decision about how much information they need before they can they move people or change your route or something like that so the courts would then have to set that standard your honor i think it would have to be a very deferential standard and it would and i think that that is proper under this court's case law if i could take a tack that in sort of two ways the way the court addressed this issue in reichl we think is quite parallel to how it would address it in this first amendment context what the court said in reichl was first the existence of probable cause in that case is likely to be an issue in every in virtually every case and we think in this situation the existence of a legitimate objective security rationale in part because that's what the agents do and in part because of statute that requires the agency to protect the president a legitimate security rationale is likely to be in every case and second what the court said in reichl was that it's very difficult to distinguish animists from the proper use of reliance on protected speech because because the court has recognized that it is valid at times to take into account the nature of one speech in making arrests and other security decisions and the same would be true here and we think there's a third factor here which is important which is this court has recognized that the physical security of the president occupies a special place in our constitutional structure as justice prior put it is ruben descent and that the secret service has a special role to play would you say that under your view of the case that there is a first amendment interest that protesters have but that is virtually unenforceable in the context of crowd control no your honor we would not say that we think they're a card seems to me that if this complaint doesn't survive nothing will so your honor i'd like to address that in a couple of different ways first of all there's a very big difference between whether there is a bit of ins action stated and whether there are other ways to enforce constitutional rights so that it is possible and there have been suits that have  declaratory relief before things like inaugurations political conventions even just regular presidential visits those would be unaffected second there are cut there are situations in which plaintiffs and there are pending challenges now have challenge secret service policies for example a secret service policy that no there are certain supports for signs from the parade that's being challenged now in the court and then if there are bivins claims we think there are allegations that would survive but we do recognize that this would that a ruling on qualified immunity here would cut back on damages claims against individual agents but we think that's appropriate in light of the difficulties they face  don't understand what the government's doing it seems to me you want to win this case but not too big in iraq and if it didn't light of the arguments waved below and the arguments not made here you want  s to fine for you but when the number was possible ground i would think it is in the interest of the united states and the secret service to say there are new evidence first amendment actions but you make that argument didn't make it below don't make it here likewise it would be in their interest to say oh this is just like a traffic stop it doesn't matter whether we had a a bad motive so long as there was an objective reason that's the it but you don't make that argument here either i really can't understand what the government's trying to established law we have taken is sufficient for this court to decide the claim although as i've tried to say we agree with both of the propositions that your honor has said and in a properly preserved case we would mr jones and follows that we change the facts here and that both the pro bush demonstrators and the anti bush demonstrators were in the same place and they were at the foot of the alleyway so that there was an objective security rationale but that the secret service members and they were in  all respects the same except that they had different signs some signs say the president is great and some sign saying the president is terrible and the secret service members had only removed the ones with the signs that said the president is terrible so what would your analysis of that be both under the clearly established but also i want you to get to what you think the law is there so under under clearly established your honor i think we do think that that would hypothetical i put them both at the foot of the alleyway because that meant that both have a straight shot you know that they can throw a grenade into the patio which is i take it what the nature of your objective security consideration is so that's true of both of them but you only move the ones that say the president is terrible so we would say your honor first and clearly establish that is not clearly established that the agency couldn't do that but we recognize that the court is is is is concerned about that situation where an agent an agent has a legitimate objective security rationale but acts only on the basis of an honest i think it would support that kind of inference but i would urge the court to think as it thinks about it about the government's position is if we haven't briefed it in this case the government's position would be the one articulated by justice scalia but we recognize that is not something that the court has yet held and i don't think that's responsive and justice prophetical there is an objective reason for stopping the car it's violating traffic regulations which is the broken tail light i understood my colleagues question to be there is no objective security rationale i'm sorry i had understood it differently did you believe i thought you were saying there was an object throw a grenade into the patio area but in fact you only remove the people who have the anti president sign so i took now that standing that the security consideration applies to both equally so i took that to be that there is an objective security rationale and i think in that situation we would say that the it's not clearly established but that we believe that the better answer is the one from just because there's an objective security no i thought the question was  emergency situation you've got two options go to the anti bush crowd or go through the pro bush crowd and you got to do it right away is it a justified security rationale to say that we think it's more likely that will be problematic if you evacuate the president from the anti bush crowd into the pro bush crowd we do not think that would be unconstitutional your honor but so in other words the viewpoint itself constitutes a security consideration that's what this court said in light of that there are times endeavor that your answer to justice kagan is that it would be proper if you have only fifteen minutes when we did amount of time to move the people with the with the adverse with the science to criticize the president no i thought what the chief was going to say there's no differential reason to move one or the other let's assume you have an amount of time you can get everybody moot and you just are choosing to move to push anti push demonstrators your honor i understand that this is an unattractive hypothetical for the government's position and if i could explain why nonetheless i think it's the right answer because the flip side is if you have an agent who has a legitimate security rationale and is going to move against somebody who's hostile who's showing the message as hostile to the president you don't want that agent to hesitate that's what this court said in hunter the court said in hunter there are times when we don't want a reasonable official to hesitate before he acts and nowhere is that more important than when the specter of presidential assassination is in order but i want to be crystal clear that we don't need that i think i've said that before but i just make sure that we don't need that to win it just has to be clearly us and he said i may add to my hypothetical and i say the secret service goes to the local police and says you know that's doesn't talk about grenades at all and really just says we have got to get these anti president people at a fair because they're annoying the president let's do it right now and that's what they do i think your honor that at some point you would cross over into a position where you would say there there is a real question about whether there's an objective security rationale and when there is a situation i mean there is one in a sense of as we look back we can see that there's an alleyway in that somebody could have grenade but there's evidence that that's not at all what was in the heads of the secret service member your honor i real i recognize that that is as i said i think that is a that is the the the hardest case for us and i recognize that's why you're on opposed it but i urge your honor to think about the from the flip side which is if you adopted the rule that honest question would priest not not attribute to you but might might lead one to to adopt that the result is an agent who has a legitimate security rationale but is operating against people who are expressing a viewpoint must hesitate and i think it's important in this context to remember that what we have are secret service agents who are making on the spot judgments while protecting high level of understand g and i think that that's the problem and i think you're being sort of picked out for this reason in my mind and i don't know if you have an answer to this no everyone understands the importance of guarding the president in this country everyone understands the danger you can't run a risk at the same time no one wants a private torreon guard that is above the law and we have examples of history of what happens when you do that so everyone looking for some kind of line that permits the protection but denies the pride tory in office and if you have anything to say the were immersed in details about how to get to that general objective i would love to hear it from the honor very briefly that i'd like to reserve i think the simplest way to reserve it is actually to resolve this is to hold that it's not clearly established that it's a mixed motive case it is not clearly established that the situation justice scalia posed would be unconstitutional and that under it paul that the plaintiffs have not alleged what they would need to lead under stablish law that was the sole motive for their actions and there was no objective lee reasonable security rationale i'd like to i think that would be a more difficult case for us to prevail because we wouldn't have one of the prongs on which we rely which is the disparate treatment as one of the factors we rely on to establish the inference  to the pad well i think as a practical matter we put probably we would likely not have as tenable a case as we did if in fact the only reason for the move was the officers intent to move the anti bush demonstrators further from where they were so that they could be heard less well that would in our view state a claim for relief it would be a more difficult claim because we're trying to establish intent and we're trying to establish intent from the inferences from the various facts that occurred that acknowledge that that the issue here is whether the law was clearly established as is it you agree with it i think the i think we believe the law was have never held that there is a bit ivins cause of action for a first amendment violation if there were ill that can you possibly say that the violation here is clearly established i think i think you can just not extended that to first amendment violations up to up to now and that argument was not made below nor presumably cardless of whether it was made below it certainly goes to the to the argument that was made below and here the violation here was not clearly established well i think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established the violation was clearly established whether or not there was a remedy for that violation and e different question is there welker let's say something happens back in the patio area where you you're the head of the secret service detail you've got to evacuate the president right away do you go through the anti bush crowd or through the probe crowd g right now quickly i'm serious you make a split second decision which way do you go i think whichever way provides the clearest you press down on them both the same and for that was one of your propositions that there's no way to distinguish there it's too late you've taken too long to decide but it's a serious point that is where i buy crack but that's not the position though that's not the position the agents were in on october no i know that's intertwined to decide whether viewpoint can ever be a security justification we have to consider all the possible situations so again if you have to side right now you go to the anti bush crowd where the problems crowd guns are going off motions which way to go i truly don't know the answer to your question because most if you don't know how we suppose to know because that's not the issue that's presented to this court for decision today where this is not a case in which the secret service made a split second judgement as to which evacuation route to take with the president well but with respect  is that we do have to adopt a general principle and if we say viewpoint can never be a consideration then you have to say when there's an emergency going on what it's just as likely they'll be a problem if we go through the pro bush demonstrators or the anti ones which seems to me to be on its face implausible well in the context of an emergency there may be a different rule than there would be in the context of a considered decision to take you point into account in making a decision which is what we have alleged here so then you think there well at there may be situations in which viewpoint alone may be a security consideration there may be and i think if there were if there were individuals directly in proximity to the president not you know they'd eighty feet away but directly could be secret service take into account i think that's what this court said and right right is that the court can take into account word said in the proximity of the president when that case the vice pres mr walker do you concede that looking back on this just  in hindsight kind of way that there is an objective security rationale here that they're standing at the foot of the alleyway that you could throw a grenade into the patio area you can see that just looking at the situation and not thinking not taking into account any evidence of what with this in their heads that they're in fact is an objective security rationale for moving people from this area i think if you're if the concern was the mouth of the al and  riot police guarding the mouth of the alley were not sufficient to prevent to protect the alley and protect against that kind of incursion the more simple solution in this case would have simply be to move people slightly to the east or west where they were had buildings between them in the president questions what is there are so many different theories floating in this case that i've had a hard time trying to figure out what you need to decide on what theory is your allegation that the secret service agents were motivated in part by security reasons and in part by bad with you would say bad viewpoint reasons for is your theory the secret service was motivated only by viewpoint and zero by security or it's the latter it's the lot ok so then if it is the latter i think you're hearing the government saying yes that is clearly established that they could not in fact be motivated only by bad viewpoint reasons and zero have to decide is it the case that if the secret secure if the secret service was motivated not at all by security and one hundred percent by viewpoint does that state a claim now would run into leaving all that out of it the next question would be which i haven't heard argued yet which is why i raised this what more do you have to do then state a claim five years ago i would have thought nothing  if you have an absurd claim i'm not saying it's absurd but if it were absurd a district court would deal with they would deal with it by five minutes of discovery and then saying or but it plausibility is not probability in the way we establish intent is way really through the admission to a local law enforcement or to someone else that the agent acted for an impermissible reason  what we do to establish intent is plead facts from which intent can be inferred we believe we have pled pleaded facts from which intent can be inferred both with respect to the disparate treatment with respect to the time that  lapsed from that from the president's decision to dine from the time he set down and then fifteen more minutes until the decision was made to move the demonstrators what you call says a little bit more than that not that you just have to  allege facts in a biologist quoting here from page six eighty one the court goes on to consider the factual allegations in the complaint to determine if they possibly suggested in parliament and they go on to say but given more likely explanations they do not plausibly establish this purpose so based on just your complaint we have to determine whether there are more likely explanations and we have in your complaint the idea that you're at the front of the alleyway it's a six foot wouldn't wo fence what can we certainly can look at those in deciding not simply whether you've pled the cause of action but whether it's more plausible than those other justifications i think  once we meet a certain threshold of plausibility unless the competing inference is so compelling to make our claim implausible that it involves at the pleading stage such a great burden that no pla e that a reasonable officer even if not these officers these officers might have had a terrible motivation but that a reasonable officer could look at this map and say look at the distance between the alley and the outdoor patio you can throw an explosive in there that seems really bad let's get these people out of the way could a reasonable officer have said that could a reasonable officer have said that given the proximity certainly that's a possible conclusion i can't say that that's an impossible conclusion but the answer to that it doesn't because the answer to that is to take a measured response consistent with the secret service is own guidelines which is not to take viewpoint into account  to be respectful of those first amendment rights of people who are demonstrating on the public streets in the center of town this if you are conceded that there would be a security interest in the hypothetical  could there be a security interest yes there could hypothetically be one was there one with say there was not for the reasons articulated in our briefs and for the constellation of facts that we feel we have alleged in our complaint i'm not sure i understand that because it seems to me there is a there is or isn't a valid security interest now whether they acted because of that ballot security interest is of course a different question and you might say well there was a ballot security interest but that's not why they acted but as to the first question i mean there either is one or there isn't one now and we look at we say what it would do what would a reasonable police officer search think of the security interest here what would a reasonable police officer do would he clear this area or not the question is whether proximity alone of a peaceful group of protesters is enough to create a security and in hindsight you could look at that and you could conclude that i respectfully disagree that means there was one on the evening in question that's a fact direction was that they did not want anyone within handgun or explosive range of the present to the extent the agents in fact made such an assertion the assertion was false and the defendant toe and police defendant knew or should have known that it was false so you think it's false they think it's true that's called dispute the fact and the normal circumstances that the judge has various weapons at his disposal legal weapons if you try to prevent you trying to prevent courts time being wasted officers time being wasted and others time being wasted on factual allegations that are likely to be true that was true before it ball as well as after that's your position yes and no i'm i think unlikely a baby of the wrong word in this  with said it doesn't matter whether the case it's not a question of whether the case is likely to be proven true the question is have you played it now clearly that preceded it but it didn't proport to change that calculus of direct intent in any direct evidence and tap on the part of the officers but you have two groups one's pro one's anti and the officers put one group one place one group the other place now the distance from the president to the two groups is not the same one is somewhat closer on is somewhat farther away the things that are in between the group and the president are different maybe in the group that's further away you might think the things  they might one might think that there's there are fewer obstructions maybe there are more obstructions on the other side so you plead that the the placement of the anti group was less favorable than the placement of the pro group based just on the disparate impact would you be in violation of rule i don't i don't think we'd be in violation of rule eleven i don't know that under it all that that would be enough i think prior to that would have been  more would you need i think you need other evidence from which you can use for an intent we've played the other other one is the time that elapsed from the time the decision was made which lessens the which suggests and supports the inference supports the inference that it wasn't a security based determination but in fact was based on viewpoint animists when would you just to make sure we're talking about fifteen minutes but we're talking about between when and when because we're talking about the time the president made the decision and the initial security arrangements were made approximate at seven o'clock right the then the president sat down at approximately seven fifteen and then another fifteen minutes elapse before the decision is made to to move the  first they first cleared the alley right yes and then the movement that you're concerned about right now not now doesn't it make sense just hypothetically if you're the secret service agent you suddenly have this challenge to drop in your lap at the last minute you say ok here's the thing first thing we've got to do is clear the out right because that's right up against where he's standing so you take care that you clear the alley then after you have more time to fix a sense assess the situation you say ok now we've got to get these people who are at the foot of the alley we act not an emergency situation but reasonably quickly and they did it step by step and we understand that's the competing inference that the government has offered here we respectfully disagree that on the facts that we've alleged that that's so compelling that it enters our allegation impost but he knows where we get back to it by it doesn't have to be so compelling it simply has to be more please here's the quote from bol on six eighty one and it has to be an obvious alternative explanation and that's enough no matter what you value alleged but we rely on the language and where elsewhere in a ball which we think has to be read together which is true as ability doesn't mean probability and so if the if the contention is that if there's a more likely explanation ours is then then they were being held to a probability standard that this court said we weren't being held to want to pleading standard and which we would suggest to the court is not consistent with rule eight with a shortened plain statement of the claim again we haven't had an opportunity to develop a factual record or how how do you do that because i want to follow up on just what the chief justice said imagine that what he just said is the real case you have a client imagine  who's quite sincere absolutely sincere and really feels he was very badly treated and you can sign a rule eleven statement but suppose that the facts are just what he said then suppose that all were not the law forget to call for the moment now you've got my hypothetical think so what weapons does the district judge have which i have so blithely been assuming to prevent a waste of time by the secret service a demoralization of the service leaning in the direction of being overly careful and therefore risking the president what procedural weapons does the present law absent paul give him to dispose of a case quickly without disturbance if the true facts are what the chief justice said well i think there has to be some opportunity to develop a factual record and the trial courts have ample authority to control discovery under the rules of civil procedure so discovery is your answer of course it is you've got allegations are going to trial the first thing you're going to do is file  refile requests for admission you're going to file discovery request to the secret service and the district court's going to have to allow some of that is and if he's allowed your allegations to go forward i think the i think the court would have to permit us to engage in some discovery of the agents regarding are the reports of the events of the evening or do they admit certain facts or deny them well should we have an opportunity to take brief depositions of the agents and i think those are appropriate steps that's not full and i'm bridle attorneys would be what is your policy with respect to moving demonstrators at a presidential event what do you do and i can see the secret service saying well that's kind of a bad thing to make it public because there are people out there who want to kill the president and if you go through your discovery said this is how we look at that situation this is what we do that gives people a guideline for how to break through the security arrangements where the court the trial courts the district courts have also have ample authority to enter protect so there's been no assertion that the in the information that would be required here and we don't know because we haven't gotten to that stage and i think it's premature to get to that stage whether any claims of secrecy that would limit what we could or could not do in the context of discovery but those are matters that can be best addressed by the district court in the first instance and can be addressed by the the normal when appropriate means that district courts use all the time to address sensitive information when it's presented as part of a lawsuit in federal court well then what happens when if a district court does allow discovery of things that the secret service thinks is our confidential under circle far should the demonstrators be away from the president how high i must offense be before we think that it lawsuit that's not it's not an answer to say that simply because there might be some information that the secret service would rather not share that that should stop us in our tracks to begin with the kinds of determinations that a district court men right we have not taken that position we have not asserted that they had that there was an obligation to to have heard the president in position so that the demonstrators could be moved back to their former position our position is they shouldn't have been moved in the first place because there wasn't a valid security reason and that the reason they were moved was soley because of the viewpoint they were expressed and the fact that that's not a separate claim that they weren't feedback but it is an indication that they were removed from where the president would be passing in our view that supports the inference of viewpoints there on the question of mixed motives or improper motive if we can get back to that or just a man assume that the law and this is the wren case is as follows if there is improper motive for an arrest but that there was an objective basis that would have made the arrest and that did make the arrest reasonable there is no violation of the constitution assume that's the law and forget clearly established forget it will assume that's the law it seems to me that for you to prevail you have to say we should make a first amen exception because the first amendment excell is so important or that there has to be in another context an amendment for racial profiling so that the rule that i have just stated has to be qualified in some way it seems to me you almost have to say that in order to prevail in this case i would suggest to you that rand is the exception that ran in the fourth amendment context that says if there's objective in do if there's an objective basis i think that's reflected in  but as the court it all noted in the first and fifth amendment context at least in the context of state actors the court has held that invidious intent is is a basis for liability intent to violate those constitutional rights as  so i'm not sure if you stop a car because you think the participants in it were coming back from a protest against president bush is not a fourth amendment case or a first amendment case if that's your allegation the only reason the car was stopped was because of the viewpoint that these people in the fourth amendment case or that would be a first amendment case you know would think so and you think that so long as you make that first amendment allegation  doesn't matter if you have a broken taillight i think for the terms of the first amendment claim it would it wouldn't matter if the circumstances demonstrated and created a basis for that inference of intent just out of curiosity was there anything to prevent  someone from leaving one of these groups and going over to the other group there was after the president made the decision the allegations in the complaint stated that the law enforcement restricted movements between the two groups after the security perimeter was established somebody other than of just walked away and taken a circuitous route and gone to the other group i would have been the police with the stop them from doing that is it theoretically possible that they could have taken a large enough circle around there i think that is a theoretical possibility but the police did in fact stop movement across the street one of the factors that we haven't addressed today is the is the secret service the actual policy in practice that we've alleged in our complaint and that it's plausibly and convincingly supports the inference of intent here we've alleged not less than twelve other incidents during the first four years of the bush administration which secret service agents were involved in viewpoint suppression activities now we haven't proven them but we're going we're at the complaint stage that allegation along with the official policy of the bush white house to suppress dissent at presidential appearances also supports the inference that these officers were acting for a viewpoint suppressive reason i suppose you would then seek discovery with respect to those twelve other episodes because you're saying those are viewpoint discrimination how can you decide to you know the facts of those we would seek certain limited discovery with respect to those incidents to see if they bear out that the allegations that we've the same range of things we talked about earlier into raga tori's request for production  discovery and with respect not just your case but of the twelve others to the extent that secret service denies that those allegations are that these officers deny those allegations and in answer which we haven't yet seen we wouldn't seek limited discovery you would seek unlimited discovery you might get only limited discovery but i'm not sure i would seek unlimited discovery because that i might be overburdened with material that would have no relevance to the case what we would seek is information sufficient to draw conclusions about those events and whether they are sufficiently similar to support the inference we would seek to establish in this case that these officers these agents acted with the intent we've alleged hypothetical the concession that in hindsight there may have been a valid security rationale ends this case because if it was true in hindsight it was certainly true at the time in the kind of rapid judge in the kind of rapid decision making that was called or as the chief justice alluded to i think at that point the case is over in our favor second the kinds of discovery that my friend on the could as ice clarify a factual matter there are two alley ways there was one on third street that the president went into and then there is one by the patio dining room what access was there between court street and the patio because i thought that the alley was on california street the entrance to the alley was not california the entry to the alley is on california street that's the one with the anti bush demonstrators where the alley that the motorcade went through which is on third street which is neither neither group of protesters to get to because the police had back blocked off traffic north of california street so so that no one no protest no demonstrators could get there at all i could return on the discovery point the discovery that i colleague has suggested he would seek is exactly the nightmare scenario that the secret service fears it's exactly what qualified immunity is designed to prevent when there is a legitimate security rationale discovery into what the agents were thinking what the secret services policies for is exactly what there shouldn't be it's exactly what the court said in hunter that it didn't want which is agents hesitating before they did their job t the question would depend on whether there was a valid security rationale i think in the context of a memo more likely that the people who are the president will be competent one more people will fall in your honor i think that would be a much more difficult case in the context of a motorcade where the security of the president is much different than when the president is on an outdoor patio separated only by a small fence and i do think that that is one of the major differences between where the treatment of the pro bush protesters the anti bush protesters here is that the allegation that could be based on differential treatment because the probe protesters were in position to see the motorcade when it left and therefore that as the complaint alleges in paragraph fifty five that that somehow undermines the agent's security rationale for moving the anti bush protesters during the meal it just doesn't wash and if i could turn just very quickly justice prior to your suggestion that the district court could could control discovery that's exactly what the court rejected in exactly what the court rejected it paul as a practical matter once that door is opened the agents lose the security and peace of mind that they need and they're subjected to the very burdens they shouldn't be subjected to and then if i could just close with a quick point on the it paul we don't think under the allegations here as the chief justice pointed to the key passage in it paul that these allegations are any more than consistent with the obvious alternative explanation they have addressed the pro bush to protesters the diners are very differently situated for a security perspective because they had no into suppression of seeing the president and the secret service could screen additional folks coming in it's very different from a crowd outside an alleyway the advanced manual that the other side points to supports us not them what it said is you can finish it and what it says your honor is that security concerns are for the secret service if it's a political concern that's for the advance team thank you counsel the case is submitted