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Wednesday, February 27, 2013


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Ninth Circuit Denies En Banc Review in Case Involving Anti-Bush Protesters

Appeals Court, With Eight Judges Dissenting, Allows Suit Against Secret Service Agents to Proceed


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday denied en banc review of a ruling that allows a group of demonstrators who protested a campaign appearance by then-President George W. Bush to sue two Secret Service agents for violation of their free speech rights.

Several individuals and the Pacific Green Party claim that agents violated the First Amendment by forcing them to remain two blocks away from Bush during a 2004 campaign stop in Oregon, while allowing the president’s supporters to demonstrate from a closer distance.

A three-judge panel ruled in April of last year that the defendants were not entitled to qualified immunity at the pleading stage because the plaintiffs had pled facts that, if proven, would establish that they were discriminated against based on their viewpoint.

Eight judges yesterday joined in a dissenting opinion, arguing that the court was second-guessing the agency and interfering in its internal decision-making over how best to protect the chief executive. That opinion drew an unusual response from the original panel.

Second Opinion

Last year’s panel opinion was actually the second in the case. The court ruled in 2009 that the plaintiffs 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.

The 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. 

Judge Marsha Berzon wrote last year that the more-detailed allegations of the amended complaint were sufficient to allege viewpoint discrimination against two agents, the only federal defendants left in the case. 

The plaintiffs allege that on Oct. 14, 2004, 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.

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 allowed 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.

Government Argument

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. 

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

Judge Diarmuid F. O’Scannlain wrote yesterday in dissent:

“The panel’s qualified immunity analysis in this case is wrong—doubly wrong.  First, the panel fails to separate the factual allegations that it must credit from the legal conclusions that it may not….Second, the panel defines the right at issue at an impermissibly high level of generality, asking whether it is ‘clearly established’ in a broad sense that ‘the government’ may not engage in ‘viewpoint discrimination’ and concluding that it is….Having started with the wrong assumptions and asked the wrong question, it is no surprise that the panel arrives at the wrong answer.”

The agents, he argued, are entitled to qualified immunity because it was not clearly established either that “moving one group to a location one block farther from the President than another…constituted a violation of that group’s First Amendment rights” or that the agents “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).”

O’Scannlain was joined by Chief Judge Alex Kozinski and Judges Ronald Gould, Richard Tallman, Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta.

Berzon, in an amendment to the panel opinion, responded:

“Our opinion makes clear that there is 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.”

The previous opinion in the case, Moss v. United States Secret Service, was reported at 675 F. F.3d 1213.


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