The Supreme Court ruled Tuesday that a lawsuit alleging that Secret Service agents treated critics of President George W. Bush differently than his supporters could not go forward.
The court ruled unanimously that the agents were immune from a lawsuit because they had good reason to move the protesters farther away when the president decided to dine on a patio after a 2004 campaign event in Jacksonville, Ore.
There is no precedent that says agents engaged in crowd control have a First Amendment obligation to ensure that crowds with different viewpoints be kept at comparable distances, Justice Ruth Bader Ginsburg wrote for the court.
“Nor would the maintenance of equal access make sense in the situation the agents confronted,” Ginsburg wrote.
The agents’ job was complicated by an impromptu decision Bush made to dine alfresco in October 2004. Two groups were assembled by the Jacksonville Inn. Between 200 and 300 people who were unhappy with the president gathered in their assigned spot on the street and sidewalks immediately adjacent, while a group of Bush supporters collected a block away.
About 15 minutes after the president was seated and a noisy protest began, the anti-Bush crowd was moved farther away, while the supporters were left where they were. When the motorcade departed, Bush drove past the supporters, but the protesters were not on the route.
Seven protesters sued Secret Service agents Tim Wood and Rob Savage, saying the unequal treatment violated free speech rights. Represented by the American Civil Liberties Union, the protesters allege that it was one of more than a dozen instances in which demonstrators were treated differently based on whether they supported or opposed Bush.
But Ginsburg said it was clear from maps and diagrams of the incident that the pro-Bush supporters could not have endangered the president from their vantage point.
The protesters, on the other hand, “were within weapons range, and had a largely unobstructed view, of the president’s location.”
A panel of the U.S. Court of Appeals for the 9th Circuit ruled in 2012 that the lawsuit could go forward.
The judges said the protesters deserved the chance to prove their allegations that it was a regular practice of Secret Service agents to put the president’s critics farther away than his supporters. In addition, they expressed concern about a “presidential advance manual” that told White House staff members to work with agents to set up protest areas that were “preferably not in view of the event site or motorcade route.”
The full appellate court declined to reconsider the decision, but seven judges signed on to a blistering dissent from Circuit Judge Diarmuid O’Scannlain that said the decision would turn the Secret Service into “concern ushers” who had to ensure everyone got an equal seat at the show.
The ACLU called the court’s decision Tuesday unfortunate.
“No one disputes that the Secret Service has an overriding interest in protecting the president, but that does not include the right to shield the president from criticism,” said the group’s legal director, Steven R. Shapiro.
The case is Wood v. Moss .
The court was also unanimous in holding that West Memphis, Ark., police officers had not acted unreasonably in shooting and killing a man who had led police on a wild, high-speed chase in two states.
The justices were reviewing a lawsuit brought on behalf of the daughter of Donald Rickard against six police officers. They had pursued Rickard and passenger Kelly Allen in 2004 after Rickard took off when police had stopped him for a nonworking headlight.
A chaotic chase, captured on video cameras in the police cars, ended with 15 shots from police, 12 of which came as Rickard began driving away when police had surrounded his vehicle. Both Rickard and Allen were killed.
Rickard’s lawyer had received tough questioning from the justices when the case was argued in April, and some mentioned having watched the video.
Justice Samuel A. Alito Jr., writing for the court, said it was “beyond serious dispute that Rickard’s flight posed a grave public safety risk.” He said police “acted reasonably in using deadly force to end that risk.”
Alito said the court was not passing judgment on whether Allen’s family might be able to bring a claim.
The case is Plumhoff v. Rickard .