PORTLAND, Ore. (CN) - Officers used pepper-spray bullets and clubs to quell a protest against President George W. Bush before his re-election because of an official Secret Service policy to discriminate against dissenters, attorneys told a panel of 9th Circuit judges.
The initial lawsuit stems from an incident in October 2004 where a group of protesters organized a demonstration against Bush about two blocks away from the Jacksonville, Ore., hotel where the president was staying.
Protesters say there was a "similarly sized group of pro-Bush demonstrators" adjacent to the protesters, and that "interactions between the anti-Bush demonstrators and the pro-Bush demonstrators were courteous and even jovial."
Both groups moved once they learned Bush planned to eat dinner at the Jacksonville Inn, and, shortly thereafter, the Secret Service cracked down on the protest.
At the service's direction, only the anti-Bush protesters were moved by local police, using clubs, pepper spray bullets and forceful shoving, according to the plaintiffs' second amended complaint.
"Viewpoint discrimination by the Secret Service in connection with President Bush was the official policy of the White House," the complaint says.
The federal defendants moved to dismiss, arguing that the amended complaint failed to cure deficiencies found in the original. An Oregon federal judge upheld some claims, however, finding the plaintiffs stated a plausible claim for viewpoint discrimination.
Attorneys for both sides argued before a three-judge circuit panel on Tuesday.
Justice Department lawyer David Himmelfarb said the protesters had failed to argue that Bush could not hear their chanting once police moved them to a new location.
Himmelfarb said the group lacked a plausible claim for viewpoint discrimination since police moved them just half a block away.
Judge Marsha Berzon grilled Himmelfarb on this point since the pro-Bush demonstrators were much closer to the president when he left the hotel's restaurant. That argument, the judge said, is used to show that there was a pretext in moving the anti-Bush protesters.
"If you were trying to protect the president from people you thought might shoot him, you wouldn't let anybody be that close to him when he was driving away," the judge said.
Himmelfarb countered qualified immunity would protect the Secret Service agents even if the protesters had a plausible claim.
"They're entitled to make reasonable mistakes of judgment," Himmelfarb said. "This should never get to a jury."
An attorney for the Oregon police said the protesters did not explain why Oregon Police Superintendent Ron Ruecker or Captain Eric Rodriquez should be held personally responsible for the alleged violations.
"For purposes of pleading supervisory liability, nothing goes without saying," Oregon Assistant Attorney General Cecil Reniche-Smith said. "You have to say more than just 'this happened to me, therefore it must be the supervisor's fault.'"
But the protesters' lawyer say his clients should get their day in court.
"The federal defendants are seeking to prevent us from even getting past 'go,'" attorney Steven Wilker said. Though seven years have passed since the protest, "we're still not past the pleading stage."
Judge Berzon asked: "What about their insistence that you haven't pled that the president couldn't hear you? Does that matter?"
Wilker said it was a "reasonable inference" that the protesters were moved so that the president could not hear them while he was dining, which supports their claim that the anti-Bush protesters were treated differently from the Bush supporters.
The panel asked Wilker what sort of damages he was seeking in this case, especially against the Secret Service.
"It would probably be a form of nominal damages against the federal defendants," Wilker said. "It's not as if someone had their head beaten in."
Judge David Ebel asked: "Is it for the attorneys' fees, then?"
Wilken responded: "It's to establish the principle and to establish law that Secret Service agents cannot make these kinds of decisions based on the viewpoints of the speakers in the groups they seek to move."
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