Bush Protesters Can Keep Fighting Secret Service

(CN) - Two Secret Service agents must face claims that they violated the First Amendment rights of protesters at a 2004 campaign stop for President George W. Bush, the 9th Circuit ruled Monday.

The federal appeals court in Portland, Ore., denied qualified immunity to agents Tim Wood and Rob Savage, finding that they may have engaged in viewpoint discrimination when they ordered anti-Bush demonstrators to move two blocks away from the president's hotel and undergo security screening. Bush supporters, meanwhile, were allowed to get closer to the hotel without screening.

But the two Oregon State Police supervisors who were charge of riot police will not have to face excessive-force claims related to the beating and pepper spray allegedly suffered by members of the anti-Bush group.

While "it was clearly established at the time of the protest that the use of pepper spray on an individual who is already under control constitutes excessive force in violation of the Fourth Amendment," the claim failed because the supervisors were not present at the scene, according to the 34-page decision.

The incident occurred in the historic mining town of Jacksonville, Ore., a small community in southern Oregon not far from Medford. On the evening of Oct. 14, 2004, rival groups of demonstrators, both several-hundred-persons strong, had gathered near the Jacksonville Inn Honeymoon Cottage, where Bush was said to be staying.

The anti-Bush protesters had notified the police in advance about their plans for a "multigenerational" and peaceful protest, according to the court. Nonetheless, about two hours after protesters began to gather, the Secret Service, purportedly in the interest of security, ordered state and local police to clear the street of anti-Bush protesters and move the gathering two blocks away.

At the same time, "neither the pro-Bush demonstrators nor anyone staying at or visiting the inn was required to move or to undergo security screening," according to the court's summary of the complaint.

In the new location far from the president's cottage, police allegedly divided the anti-Bush group and encircled its members, preventing them from leaving. Protesters say the police eventually pushed, clubbed and shot pepper spray at them.

With the help of the Oregon ACLU, seven named plaintiffs and the Jackson County Pacific Green Party sued the Secret Service and state and local law enforcement officials in 2006. The Secret Service agents moved to dismiss based on qualified immunity, which Senior U.S. District Judge Owen Panner denied from Medford.

The agents' appeal for dismissal brought the case on its first trip to the 9th Circuit, where a three-judge panel reversed, finding that the protesters had not shown enough evidence to prove viewpoint discrimination.

In the years since, however, two cases changed the landscape on viewpoint discrimination. In light of Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), the appeals court allowed the protesters to amend their complaint.

With more detailed claims the second time around, the appellate panel denied qualified immunity.

"Now, in the SAC the protesters allege that the agents did indeed direct that the anti-Bush demonstration be moved farther from the Inn than the pro-Bush demonstration," Judge Marsha Berzon wrote for the unanimous panel, abbreviating second amended complaint. "The SAC avers that the Secret Service agents not only directed the police to move the anti-Bush protesters 'to the east side of Fourth Street," but that the agents 'subsequently' directed that the protesters be moved 'to the east side of Fifth Street.' The pro-Bush demonstrators were left in place on the west side of Third Street. As a result, the anti-Bush protesters were more than a block farther from where the President was dining than the pro-Bush demonstrators, and, one can infer, were therefore less able to communicate effectively with the President, media, or anyone else inside or near the inn."

"In sum, we hold that the protesters have alleged a plausible First Amendment claim and that Agents Wood and Savage are not, at this time at least, entitled to qualified immunity," Berzon added.

The protesters' attorney said Monday morning that he is reviewing the group's next move, which could involve renewed excessive-force claims and a resumption of other claims that have been on hold pending appeal.

"Once the post-decision process is concluded and the case is back in the District Court, our intention is to proceed with our claims against at least the federal, county and city defendants," Steven Wilker with Tonkon Torp in Portland told Courthouse News in an email.

"Our claims against the county and city have been on hold during the appeals by the federal and state defendants. We will also evaluate our information to determine whether to seek to amend against the state defendants as provided for in the 9th Circuit's opinion."

"We are also pleased that the court concluded that we had sufficiently pled the use of excessive force here, even if we had not sufficiently tied it to inadequate supervision and training by the two named state defendants," Wilker added.

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