Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

9th Circuit judges split over anti-Bush protest

Over an impassioned dissent signed by eight judges, the U.S. Court of Appeals for the Ninth Circuit on Tuesday rejected the Obama Administration's request that the court reconsider a ruling favoring demonstrators who sued the Secret Service for allegedly interfering with a protest against President George W. Bush in Oregon in 2004.

In April 2012, a three-judge 9th Circuit panel ruled unanimously that the suit—claiming that anti-Bush protesters on public streets were kept further from the president than Bush supporters—could proceed.

The appeals court announced Tuesday that it had rejected the Justice Department's request that the case be reheard by a larger, 11-judge en banc panel of the 9th Circuit. The case failed to get a majority of the 28 active judges needed to support a rehearing.

However, eight judges who favored rehearing the case complained that the court's ruling amounted to improper micro-management of the Secret Service by the judicial branch.

"The panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the President to their newly created duty to act like concert ushers—ensuring with tape-measure accuracy that everyone who wants to demonstrate near the President has an equally good view of the show," Judge Diarmuid O'Scannlain wrote in an opinion joined by the other seven dissenters. He said the anti-Bush protesters were moved one block further away from Bush than the pro-Bush crowd.

"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?" asked O'Scannlain, a Reagan appointee. "The allegations do not show a pattern pervasive enough to establish an unspoken policy of discrimination, especially in light of the explicit Secret Service policy prohibiting such conduct."

O'Scannlain also said the three-judge panel unfairly used a presidential advance manual suggesting protesters be kept away from the president as evidence that the Secret Service takes such actions.

Writing for the original panel, Judge Marsha Berzon said the dissenters' critique was off the mark.

"The question is not why the agents moved the anti-Bush protestors somewhere, but rather why the agents moved the protestors a considerable distance, to a location that, as we have explained, was in “relevant ways . . . not comparable' to the place where the pro-Bush group was allowed to remain," wrote Berzon, a Clinton appointee. "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. Nor does one need a noise dosimeter 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."

The full exchange is posted here.

The case did not break clearly along partisan lines. Of the original three judges on the panel, two are Republican appointees.

Six of the eight dissenters on the en banc decision were Republican appointees. Two were appointed by Clinton, but one, Richard Tallman, is a Republican Clinton nominated in order to get other favored nominees on the bench.

The Justice Department had no immediate comment on the ruling or whether it will appeal the case to the Supreme Court.