Moss v. Secret Service
ACLU Lawsuit Challenges Secret Service, Local Police Case Tied to 2004 Anti-Bush Demonstration
April 11, 2012 - In 2004, local police in Jacksonville, Oregon, at the direction of the U.S. Secret Service, violently broke up an anti-Bush picket line of about 300 peaceful demonstrators. At the same time the police allowed a group of pro-Bush demonstrators to remain in the same area undisturbed. As a result, the ACLU of Oregon filed a federal class-action lawsuit against the Secret Service and local police agencies, seeking damages and an injunction against such governmental abuse in the future.
The government has been trying to have the case thrown out for several years, even before we can get to the merits of what happened that day. The latest attempt to have our clients’ claims dismissed is the subject of the second ruling by the 9th Circuit Court of Appeals in this case.
On Monday, the court found that we have stated a claim against the Secret Service for violating our clients’ First Amendment rights by treating them differently than the pro-Bush demonstrators and that the Secret Service can be sued for their actions because they should have known their actions were unlawful.
Our complaint also alleges that two Oregon State Police officials should be held responsible for the excessive force used by police under OSP direction. Peaceful protestors were pushed, clubbed and pepper sprayed by law enforcement to break up the anti-Bush demonstration. On this claim the court held that though "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.” The appeals court left it to the trial court to decide whether we should be given an opportunity to amend our complaint to show why the supervisors should be held responsible for the constitutional violations. The ACLU will continue to pursue claims on behalf of our clients and we look forward to our eventual day in court.
Thanks to Steven Wilker of Tonkon Torp who argued the case, his colleague Paul Conable, and Art Spitzer of the ACLU of the National Capital Area for all of their hard work.
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Previous Reports:
On August 4, 2010, U.S. Magistrate Judge Mark Clarke issued his Report and Recommendations in Moss et al. v. U.S. Secret Service et al. In this class action suit the ACLU represents individuals and groups that protested outside the Jacksonville Inn on Oct. 14, 2004, while President Bush was dining at the inn.
The lawsuit, filed in federal court in 2006, alleges the U.S. Secret Service and state and local law enforcement unconstitutionally chose to move only demonstrators who were critical of the President away from the inn. Magistrate Clarke heard oral argument on defendants’ motions to dismiss on May 12, 2010, and now recommends that several of our key First and Fourth Amendment claims against federal, state and local law enforcement should proceed.
U.S. District Judge Owen Panner has yet to adopt the recommendations but is expected to issue his order within the next few weeks.
This case is shaping up as one of the first key tests of the impact of the U.S. Supreme Court’s decision in Ashcroft v. Iqbal that erected new barriers to claims of unconstitutional conduct by the federal government. Prior to Iqbal, an individual who alleged harm by the government could file suit and be assured she or he could demand documents from the government that are relevant to the case. The Supreme Court has now said such cases should be dismissed at the outset unless the plaintiff has alleged facts that are “plausibly suggestive” the plaintiff is entitled to relief.
Our fear has been that this new standard could make it virtually impossible ever to successfully sue the government. That is why it is significant that Magistrate Clark concluded that ACLU has met this higher burden in Moss. Not surprisingly, the Department of Justice disagrees.No matter how Judge Panner rules, the case is almost certainly headed to the Ninth Circuit U.S. Court of Appeals—for the second time.The only question is when.
The cooperating attorneys are Steven Wilker, Paul Conable, James Hein, Tonkon Torp LLP, and Ralph Temple and Art Spitzer, past and present legal directors of the ACLU of the National Capitol Area, respectively.
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In July 2006, the Oregon ACLU filed a federal class-action lawsuit against the Secret Service and local police, seeking damages and an injunction against such governmental abuse in the future.
In June 2009, the US Supreme Court, in the case of Ashcroft v. Iqbal,129 S. Ct.. 1937 (2009), changed the rule for filing a lawsuit in federal court that had prevailed for over half a century. Prior to the Iqbal decision, the rule had been that a plaintiff need allege only enough facts which, if proven true, would entitle him/her to the legal remedy sought. In Iqbar, the court’s right-wing, 5-4 majority replaced that standard with a new rule requiring the plaintiff to file a complaint which contained enough detail to make the allegations “plausible.”
In July 2009, the U.S. Court of Appeals for the 9th Circuit ruled that our lawsuit must be dismissed under the new standards of the Iqbal decision.
The court ruled that because the Iqbal standards were new, we should have a chance to file a Second Amended Complaint with enough detail to make it
“plausible.”
Here is the Second Amended Complaint, filed by ACLU of Oregon volunteer attorneys on October 15, 2009. We've provided a Table of Contents designed to guide readers to sections that are most relevant to community concerns.
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October 2006 - This summer, the ACLU of Oregon filed a class-action lawsuit against the U.S. Secret Service, the Oregon State Police, the Jackson County Sheriff and the Jacksonville Police Department for their use of force against peaceful anti-Bush demonstrators during the President’s visit to Jacksonville in Southern Oregon.
On October 14, 2004, President George W. Bush made a campaign appearance in Central Point, Oregon. He was scheduled to spend the evening at the Jacksonville Inn. The plaintiffs in our case organized a demonstration for that afternoon. They first gathered in Griffin Park, a few blocks from the Inn. They then marched to the Inn alongside the sidewalks. Prior to the protest, the organizers contacted the local police chief and sheriff to inform them of the route, the expectation that there would be parents and young children participating and that this was organized as a peaceful event.
By late afternoon about 200 anti-Bush protesters had gathered at the park. In accordance with the plan, around 6 p.m., the demonstrators set off along the pre-designated route. They assembled on the sidewalks in front of the Jacksonville Inn, chanted and waved signs. At all times they remained peaceful, and traffic continued to move easily along the streets. Nearby, pro-Bush demonstrators also gathered, chanting and displaying signs. The two groups remained courteous.
Just before the President’s arrival at the Inn, police in riot gear cleared the alley behind the Inn. Officers also began restricting the movement of the anti-Bush demonstrators, dividing the group and not allowing them to cross streets or leave sidewalks. When the President arrived he entered the Inn through the back door, joining other diners already eating on the patio.
The anti-Bush protesters continued to peacefully chant slogans, which could be heard in the patio area where the President was dining. The Secret Service then requested local police to clear the streets in front of the Inn. In riot gear, with an armored personnel carrier behind them, the police made amplified but garbled announcements that the group was now unlawful and must move from the sidewalks. At no time did police contact the organizers who had earlier offered to act as liaisons with the police. Without allowing any time for the protesters to respond, police forced them down the street, striking participants with clubs and firing pepper-spray bullets. Police then divided the demonstrators into two groups, encircling each and preventing them from leaving the area. Several were trying to leave, including those with young children. Several families were separated, including parents from their young children. Eventually, the demonstrators were allowed to leave.
During this entire time, the police took no action against the pro-Bush demonstrators or the unscreened guests dining at the Inn.
As a result, ACLU brought this action in U.S. District Court. ACLU sees this event as part of an ongoing nationwide pattern by the Secret Service of keeping anti-Administration demonstrators further away from the President than pro-Administration demonstrators or even the general public.
In addition to seeking damages for the individuals injured by the police action, ACLU also seeks an injunction to prevent similar constitutional violations from occurring in the future. In particular, we seek to prevent the defendants from excluding or removing a lawful assembly of people from areas where other unscreened members of the public are allowed to congregate or be present, and excluding or removing anti-government demonstrators from areas where pro-government demonstrators are allowed. We also ask the court to prohibit federal, state and local agencies from using riot-geared police, excessive force, less-than-lethal force or chemical agents against nonviolent demonstrators.
ACLU filed this action in the U.S. District Court in Medford. We named seven individuals to represent the class of almost 200 demonstrators, as well as the Jackson County Pacific Green Party. The ACLU has been represented by cooperating attorney Martha Walters of Walters Chanti & Zennache. In addition, our other volunteer attorneys include Thane Tienson of Landye Bennett Blumstein, Heather Van Meter, Williams, Kastner & Gibbs, Ralph Temple, former Legal Director of the ACLU of the National Capital Area and now an Ashland resident, and Art Spitzer, the current Legal Director of the ACLU of the National Capital Area.
