Suit Nixed Over Protester Corral at Bush Rally

     DENVER (CN) - Officials who corralled a group of protestors hundreds of yards away from the motorcade of then-President George W. Bush, but allowed supporters to get close, have qualified immunity against discrimination claims, the 10th Circuit ruled.
     Anti-war activists in New Mexico sued the city of Albuquerque; two of its police officers, Lt. Matthew Thomas and Sgt. Edward Mims; and Secret Service agent Kerry Sheehan in 2008 for viewpoint discrimination in violation of the First Amendment.
     The demonstrators claimed that the officials forced them to stand 300 yards away from the former president's planned route and blocked their view with horses. Meanwhile, Bush supporters were allegedly allowed to gather on private property adjacent to the route.
     Such "disparate, viewpoint-based treatment" violated the speech and equal-protection rights of protestors, according to the complaint.
     The defendants argued that the placement of the protestors was unrelated to their political views, explaining that security concerns and agency protocol were the most important factors in their decisions.
     A federal judge found otherwise, however, deciding that "a reasonable jury could ... conclude, based on the actions of law enforcement officers, that law enforcement harbored a discriminatory motive to target the anti-Bush demonstrators because of their message."
     The District Court believed that the protestors could just as easily have been moved to public property opposite the private land where the Bush supporters were staged.
     In denying the officials' motions for summary judgment, the court found enough evidence to suggest "personal involvement in the alleged viewpoint discrimination," thus rendering them ineligible for qualified immunity.
     A three-judge panel of the 10th Circuit, however, after finding that the protestors' plight amounted to an unfortunate matter of circumstance, not willful discrimination.
     The opinion describes what happened when local police and Secret Service policies overlapped to form "the perfect First Amendment storm."
     "Significantly, there were two sets of decisionmakers and two sets of policies in play on the day in question," Judge Jerome Holmes wrote for the panel. "The first decisionmaker was Special Agent Sheehan. As the site agent, he was responsible for establishing the security plan for the President's visit. The plan included an inner perimeter and outer perimeter, as well as the southern checkpoint. On the day of the President's visit, Special Agent Sheehan's primary responsibility was the security of the inner perimeter. Outer-perimeter responsibilities were assigned to BCSD. As he was carrying out his duties, Special Agent Sheehan was approached by a property owner who requested permission to engage in a political demonstration from his private property. Secret Service policy strives to honor speech on private property. Consistent with that policy, Special Agent Sheehan acceded to the request.
     "The second set of decisionmakers consisted of Lt. Thomas and Sgt. Mims. They assisted Special Agent Sheehan in establishing the security plan at the visit site, and their primary responsibility on the day in question was outer-perimeter security, including operation of the southern checkpoint. For events of this type, BCSD policy favors directing demonstrators to a single location and keeping them in one group. According to the district court, this policy was in place because it 'helps keep order, prevents interference with the motorcade, and helps ensure the safety of the President.' ... Consistent with that policy, Sgt. Mims told his deputies at the morning briefing to direct demonstrators to the southern checkpoint, and Lt. Thomas gave similar orders to his subordinates. The move-south directive applied to all demonstrators - but not residents - whether or not they wished to stand on public or private property.
     "Two sets of decisionmakers, two different policies. But they came together that morning to create the perfect First Amendment storm. As Lt. Thomas and Sgt. Mims carried out the move-south policy-forcing all demonstrators to the south and declining to draw a public-private property distinction - Special Agent Sheehan decided to allow one group of demonstrators to remain north on private property. The move-south policy affected only Bush protesters. Special Agent Sheehan's decision affected only Bush supporters. The upshot was disparate treatment of two different viewpoints. But was it viewpoint discrimination?"
     The protestors failed to show conclusively that each official "harbored a discriminatory purpose" against them, according to the ruling.
     "Purposeful discrimination requires more than . . . intent as awareness of consequences," Holmes wrote. "It follows, under this standard, that if the evidence shows only that a defendant is aware of disparate treatment of two similarly situated groups - but nothing more - then a § 1983 or Bivens claim for viewpoint discrimination must fail as a matter of law. ... Put differently, a reasonable jury cannot infer discriminatory purpose from evidence showing awareness of consequences alone. For a plaintiff to succeed, there must be additional evidence - direct or circumstantial - that the defendant acted 'for the purpose of discriminating on account of' viewpoint."
     Knowing that a disparity exists between groups does not "impose upon public officials an affirmative duty to ensure a balanced presentation of competing viewpoints," the court found.
     Though Thomas, Mims and Sheehan were directly responsible for developing and enforcing the security plan that resulted in the disparate treatment, they can't be held liable for implementing "viewpoint-neutral policies," the decision states.
     "Where, as here, the government policies are themselves viewpoint-neutral but in tandem create a disparate impact, plaintiffs must show that the policies were brought together for the purpose of discriminating against or in favor of a particular viewpoint," Holmes wrote.
     Again, the Denver-based appeals court found no evidence to suggest that the officials conspired to limit the protestors' speech.
     Among the plaintiffs were the Albuquerque chapter of CodePink Women for Peace, a nonprofit, and Stop the War Machine, a grassroots anti-war organization based in California.
     They were represented by ACLU attorney George Bach.