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Secret Service Takes Bid for Immunity to Justices

WASHINGTON (CN) - Two Secret Service agents accused of violating the rights of protesters at a 2004 campaign stop for President George W. Bush can fight for immunity in the Supreme Court, the justices said.

The incident occurred in the historic mining town of Jacksonville, 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.

Anti-Bush protesters had notified the police in advance about their plans for a "multigenerational" and peaceful protest. About two hours after they began to gather, however, 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.

They complained that pro-Bush demonstrators and other guests at the inn were meanwhile not forced to move or to undergo security screening.

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.

A three-judge panel of the 9th Circuit initially 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 appellate panel denied qualified immunity to agents Tim Wood and Rob Savage in April 2012.

The Supreme Court granted Wood and Savage's petition for certiorari late Tuesday without comment, as is its custom.

Wood and Savage want the court to resolve two questions. The first asks "whether the Court of Appeals erred in denying qualified immunity to Secret Service agents protecting the president by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro-and anti-Bush demonstrators needed to be positioned an equal distance from the president while he was dining on the outdoor patio and then while he was travelling by motorcade."

The second question asks "whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group."

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