(CN) - Secret Service agents may want to "carry tape measures" out West, 9th Circuit judges warned Tuesday, calling for an en banc rehearing of their immunity claims.
The dissent takes issue with an April 2012 decision that denied qualified immunity to agents Tim Wood and Rob Savage amid claims that they discriminated against protesters in Oregon during the 2004 presidential campaign.
"As of today, shall Secret Service agents carry tape measures when they engage in crowd control to ensure that groups with different viewpoints are at comparable locations at all times?" Judge Diarmuid O'Scannlain wrote. "If they don't, they will now risk being subject to First Amendment lawsuits in nine Western states."
Chief Judge Alex Kozinski joined the objection with Judges Jay Bybee, Sandra Ikuta, Carlos Bea, Ronald Gould, Richard Tallman and Consuelo Callahan.
Agents Wood and Savage had allegedly ordered a group protesting President George W. Bush to move two blocks away from the president's hotel and undergo security screening, but let Bush supporters get closer to the hotel without screening.
Seven named plaintiffs and the Jackson County Pacific Green Party sued the Secret Service and state and local law-enforcement officials in 2006.
Senior U.S. District Judge Owen Panner had denied Medford the agents qualified immunity, and a three-judge panel affirmed in April.
O'Scannlain and his colleagues insisted that the case should have gone before the full court.
"Before this decision, no law appeared to require Secret Service agents to ensure that groups of differing viewpoints were positioned in locations exactly equidistant from the President at all times," O'Scannlain wrote. "But again, in this case, our court invents such a requirement and determines that it was long since 'clearly established' in our First Amendment jurisprudence."
To address the issues raised in the dissent, the majority amended the April ruling.
"No 'tape measure' is required, to appreciate that demonstrators separated by more than a full square block, and two roadways, from the public official to whom and about whom they wish to direct a political message will be comparatively disadvantaged in expressing their views," the amendment states. "Nor does one need a noisedosimeter to know that the president will be able to hear the cheers of the group left alongside his travel route but unable to hear the group restricted to an area about two square blocks away."
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