Metropolitan News-Enterprise


Tuesday, April 10, 2012


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Ninth Circuit Panel Revives First Amendment Claims of Anti-Bush Protestors




A group of demonstrators who claim the Secret Service forced them to remain two blocks away from then-President George W. Bush during a 2004 campaign stop in Oregon—while allowing the president’s supporters to demonstrate from a closer distance—can sue for violation of their First Amendment rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court ruled in 2009 that the plaintiffs—several individuals and the Pacific Green Party—alleged insufficient facts to show that the defendants isolated them because of their political views, and not, as the government insisted, in order to protect the safety of the president.

That panel, however, sent the case back to the district judge, who had denied the agents’ motion for qualified immunity, so that the plaintiffs could amend their complaint. Senior District Judge Owen Panner of the District of Oregon later ruled that the plaintiffs met the higher pleading standards established by the U.S. Supreme Court after the suit was filed, and declined to dismiss the case. 

Viewpoint Discrimination

Judge Marsha Berzon, writing yesterday for the court, said the more-detailed allegations of the amended complaint were sufficient to allege viewpoint discrimination against two Secret Service agents, the only federal defendants left in the case. 

Berzon also concluded that if the plaintiffs can prove their allegations, the agents would be shown to have acted unreasonably and in violation of a clearly established constitutional right, and thus to lack qualified immunity. The panel, however, reversed Panner’s ruling allowing the plaintiffs to sue two Oregon State Police supervisors for violation of their Fourth Amendment right to be free from excessive force.

The plaintiffs allege that on Oct. 14, between 200 and 300 opponents of the presidents’ policies gathered in Griffin Park in Jacksonville, Ore. for a peaceful demonstration.  That evening was chosen for the event because the president was scheduled to dine in the city and spend the night, and the local police and sheriff were notified of the demonstrators’ plans and approved of the route they were planning to take.

A pro-Bush group gathered as well, across Third Street from the protestors.

Dinner Stop

After the two groups had formed, the amended complaint alleged, the president and his aides decided to stop for dinner at the Jacksonville Inn, across from the demonstrators and about two blocks from his hotel. Shortly before the president arrived, the plaintiffs claimed, the Secret Service asked state and local police to clear the area.

Police, in turn, cleared nearby alleys and blocked Third Street, north of California Street, to all demonstrators, both pro- and anti-Bush. According to a map attached to the Ninth Circuit opinion as an appendix, the Jacksonville Inn sits just north of California Street, with Third Street to the west and Fourth Street to the east.

The president’s hotel was south of California, and the president’s party traveled to and from it along Third Street.

The Secret Service, the plaintiffs alleged, insisted that the anti-Bush demonstrators be moved all the way to the east of Fifth Street, while the pro-Bush group was aloud to gather on the west side of Third Street. This enabled the pro-Bush group to cheer the president as his motorcade returned to the hotel, while the protestors had to remain two blocks away, according to the complaint.

New Pleading Requirements

The government argued that the plaintiffs failed to plead a violation of their civil rights as required by Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Iqbal provides that a tort claim for the misconduct of federal government operatives requires allegations that are “plausibly suggestive” the plaintiff is entitled to relief.

It also alleged that the measures taken by the Secret Service were viewpoint-neutral, and designed to keep the president out of range of persons who might attempt to harm him, possibly with a handgun or an explosive.

Berzon, however, said the facts alleged in the complaint laid out the clear possibility that the agents were acting on the basis of a political, rather than a security, motive, particularly when they allowed a pro-Bush demonstration along the motorcade route, while forcing the anti-Bush demonstrators to remain two blocks away. 

The jurist also cited published reports suggesting that while the campaign was going on, the Secret Service routinely required anti-Bush demonstrators to remain further away from the president than supporters. Berzon noted as well that a Bush campaign document called the “President’s Advance Manual”—a redacted copy of which was attached to the complaint—instructed the advance team to “work with the Secret Service” to have protestors assigned to a designated area, “preferably not in view of the event site or motorcade route.”

The judge summarized:

“The protestors’ allegations that the agents’ conduct in this case accords with viewpoint discriminatory practices instituted in other, similar, circumstances and encouraged by the President’s Advance Manual support the plausibility of the inference that, in this case, the Secret Service agents directed that the anti-Bush protestors be moved because of their viewpoint.”

With respect to the state police defendants, Berzon agreed that the plaintiffs’ claims—that they were, without warning, violently shoved, struck with clubs, and shot at with pepper spray bullets by officers trying to move them from their original location—were sufficient to allege a Fourth Amendment violation. But their allegations that the police supervisors, who were not at the scene, caused the violation by failing to adequately supervise or train their subordinates were conclusory and do not meet the pleading standards for a 42 U.S.C. Sec. 1983 claim, the judge said.

Berzon was joined by Judge N. Randy Smith and by Senior Circuit Judge David M. Ebel of the Tenth Circuit, sitting by designation.

The case is Moss v. United States Secret Service, 10-36152.


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