By Bob Hunter
and Sam Wheeler
The U.S. Supreme Court ruled Tuesday in favor of two Secret Service agents who were accused of violating the civil rights of protesters during a 2004 campaign visit by President George W. Bush.
The high court ruling overturned a 2012 ruling by the 9th U.S. Circuit Court of Appeals that agents Tim Wood and Rob Savage did not have immunity when they forced protesters to move two blocks from where the president was eating dinner, while allowing supporters to remain closer.
In the unanimous ruling, the court said "... this case is scarcely one in which the agents acted without a valid security reason.' "
An American Civil Liberties Union lawyer representing the plaintiffs said the ruling gives too much protection to the president's bodyguards.
"The practical effect of the decision is that it would be very difficult if not impossible to sue Secret Service agents for violating the First Amendment rights of demonstrators, because there will almost always be some security rationale," said David Fidanque, ACLU of Oregon executive director.
Representing the plaintiffs in the case, the ACLU alleged that the Secret Service officers engaged in discrimination when they moved the protesters but did not move nearby supporters.
The plaintiffs also maintained the Secret Service had an unwritten policy of working with the Bush administration to inhibit opposing viewpoints during presidential appearances.
But the court ruled that the agents had "qualified immunity," because there was no clear evidence that the officers acted unreasonably in trying to protect the president.
"This Court has recognized the overwhelming importance of protecting the President in other contexts as well," the ruling said.
In an opinion written by Justice Ruth Bader Ginsburg, the court also noted that protesters "were within weapons range of his (Bush's) location" when they were required to move.
The case involved some 200 to 300 protesters who on Oct. 14, 2004 gathered around the Jacksonville Inn, where the president and the first lady were planning to spend the night. When the president made a last-minute change and decided to eat dinner at the inn's restaurant, the Secret Service agents ordered local law enforcement to establish a new perimeter around the first couple.
Police were accused of pushing, clubbing and using pepper spray to move the crowd of protesters back. The plaintiffs allege that the Secret Service officers were acting with political motives when they moved the protesters but did not do the same to supporters of the president.
The justices, however, noted that there was a building between the supporters and the president, while the opponents were separated from the Bushes only by a parking lot.
Fidanque said he felt the court overlooked some facts of the case relating to the height of fences and buildings separating protesters from where the president and his wife were eating, and by doing so exaggerated the vulnerability of the first couple.
The case was filed on behalf of Michael Moss, who said he was struck seven times in the back by plastic-coated pepper balls that were fired by police.
Saying that the Secret Service had reason to move the protesters back, the court noted "individual government officials 'cannot be held liable' ... 'unless they themselves acted (unconstitutionally).
Ginsburg also wrote that the accusation that the Secret Service had a practice of discrimination against presidential opponents had not been proven.
"We therefore decline to infer from the alleged instances of misconduct on the part of the particular agents an unwritten policy of the Secret Service to suppress disfavored expression ...," she wrote.
Ginsburg wrote that the ruling did not suggest that free speech may be limited for political reasons. "It is uncontested and uncontestable that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express."
However, she added, "It is equally plain that the fundamental right to speak secured by the First Amendment does not leave people at liberty to publicize their views whenever and however and wherever they please.'"
At least, Fidanque said, "the court did reaffirm that no public official can engage in action against demonstrators merely because of their political views."
The ruling does not end the legal issues associated with the incident. Fidanque said a lawsuit filed in U.S. District Court in Medford against Jacksonville police, the Jackson County Sheriff's Department and the Oregon State Police will be able to move forward now that this case is closed.
"The case against the state and local police officers who were involved in the excessive use of force is still alive and we'll be reviewing the Supreme Court decision and be doing some more legal research," Fidanque said.