A lawsuit filed almost seven years ago by demonstrators alleging their civil rights were violated during a protest against President George W. Bush during his 2004 campaign visit to Jacksonville continues to wind through federal courts.
The anti-Bush protesters say Secret Service agents sought to suppress political speech undertaken on a public street based on the viewpoint of that speech. Their claim, filed in July 2006, strikes at the core of the First Amendment, said Portland lawyer Steven Wilker.
Wilker, representing the plaintiffs in the case, said legal wrangling over whether specific officers and agents related to the case can be sued by his clients has had both sides battling state and federal issues in various appellant courts for years. But there are still "live claims" against Jacksonville police, the Jackson County Sheriff's Department, and Oregon State Police, said Wilker.
"Everything has been on hold while we deal with the appellant issues," Wilker said. "But (the First Amendment claim) is still alive."
On Oct. 14, 2004, Bush gave a speech at The Expo in Central Point and came to Jacksonville to spend the night. Between 200 and 300 pro-Bush and anti-Bush demonstrators lined California Street between Third and Fourth streets that late afternoon and early evening.
Bush joined diners at the Jacksonville Inn before heading to the inn's honeymoon cottage. At about 7:30 p.m., Secret Service agents directed state and local police to clear the streets.
According to facts laid out in the decision, agents asserted they told the police the reason for this request was to "prevent anyone from being within handgun or explosive range of the president."
Protesters alleged that the agents' security rationale was false, because neither the pro-Bush demonstrators nor anyone staying at or visiting the inn were required to move or undergo security screening. The protesters alleged the real motive for the agents' actions was to suppress protestors' anti-Bush viewpoint.
The lawsuit claims that when Secret Service agents ordered police in riot gear to clear the streets, the agents discriminated against anti-Bush demonstrators, in some instances pushing, clubbing and using pepper spray to force them to move, and then detaining them. Pro-Bush demonstrators were allowed to stand a couple of blocks away unmolested.
"The First Amendment doesn't allow police to chose between speakers based on their viewpoints," Wilker said.
American Civil Liberties Union lawyers representing the plaintiffs contend the agents caused the police assault on the crowd. They also allege it wasn't a one-time incident, but rather the habit and practice of the Secret Service.
Suits against officials are allowed if the case can be made that they violated a clearly established statutory or constitutional right.
A federal appeals court has ruled demonstrators may proceed with their case against Secret Service agents who were guarding the president. The 9th U.S. Circuit Court of Appeals in San Francisco ruled on April 9, 2012, that there was enough evidence that agents Tim Wood and Rob Savage may have violated protesters' First Amendment rights.
However, the court also ruled that two high-ranking Oregon State Police officials cannot be held liable for violating the protestors' Fourth Amendment rights, Wilkers said.
While the "protesters' allegations are sufficient to support a claim of excessive force and to deny qualified immunity to those who might be liable for the use of that force, they have pleaded no facts that would allow us to make a plausible inference that (Ron Rueker, superintendent of OSP, and Eric Rodriquez, former captain of the Southwest Regional Headquarters of OSP) were in any way involved in the use of excessive force such that they may be held liable for it," wrote Judge Marsha S. Berzon in the 34-page decision.
Wilkers said that while he and the other ACLU attorneys had argued the two OSP officers had failed to properly train and supervise their staff, the court ruled the men had not been tied directly to the 2004 event, based on "given standards" at the time.
"That claim is presently not live," Wilkers said. "But we may get a chance to plead it again."
Reach reporter Sanne Specht at 541-776-4497 or firstname.lastname@example.org.