SEATTLE (CN) – An anti-war group asked the Ninth Circuit on Friday to revive allegations that two U.S. Army civilian employees spied on its members, among other civil rights claims.
Members of Port Militarization Resistance, a group protesting the use of sea ports in western Washington state for the shipment of military supplies to Iraq and Afghanistan, first filed their civil rights lawsuit in 2010.
The group claims John Towery and Thomas Rudd, civilian employees of the Force Protection Division of the U.S. Army I Corps in Ft. Lewis, spied on their meetings and passed the information on to military officials to prevent peaceful protests.
Towery, under Rudd’s supervision, infiltrated the group by befriending members and pretending to support the group’s cause, according to court documents.
The cities of Tacoma and Olympia also wrongfully arrested members and used excessive force, the group claims.
U.S. District Judge Ronald Leighton in the Western District of Washington dismissed all claims in July 2014.
“There is no evidence to show that Rudd and Towery’s actions chilled First Amendment rights, nor is there evidence to show that they intended to chill First Amendment rights. Their stated objective was to avoid a blockade of troops and equipment and ensure the safety of all involved in these transfers, and there is no evidence establishing a contrary intent,” Leighton wrote in a 14-page order.
Port Militarization Resistance attorneys argued before a three-judge panel at the Ninth Circuit that Leighton abused his discretion and should have allowed a jury to hear the case.
Towery and Rudd violated the Posse Comitatus Act, which prohibits the use of the military in civilian law enforcement, the group’s attorney Lawrence Hildes claimed.
“The military is being used for civilian law enforcement and domestic surveillance,” Hildes said.
He added that group members were denied their First Amendment rights because they were arrested before they had even begun protesting.
Hildes said law enforcement took action just because “maybe they will commit illegal acts in the future.”
But when U.S. Circuit Judge William Fletcher asked Hildes for the “strongest example” of a civil rights violation in the case, the attorney seemed stumped.
After sifting through what he referred to as “so many” violations, he settled on the labeling of group members as “terrorists” as the worst offense.
“Are you saying all of these demonstrations were peaceful demonstrations?” U.S. District Judge Frederic Block, sitting by designation on the panel, asked.
“Yes,” Hildes immediately replied. “There were no acts of violence.”
Hildes also criticized the military for blocking roads as a way to deal with protesters practicing civil disobedience.
Tom Brennan, representing Towery, countered that the protesters were planning to damage military equipment and run wire across roads to block military vehicles.
Fletcher admitted that his problem with the case was that Tower and Rudd’s actions “run up against the Posse Comitatus Act.”
John Justice, representing the city of Olympia, said the lower court found Olympia and Tacoma did not violate the protesters’ civil rights and Olympia “was not even aware” of Towery’s information gathering.
Justice urged the panel to uphold the lower court’s dismissal, while Hildes contended that the panel should send the case back for trial.
“You do not want the military determining the people are the enemy,” he said.