675 F.3d 1213 (9th Cir. 2012), 10-36152, Moss v. United States Secret Service

Docket Nº:10-36152, 10-36172.
Citation:675 F.3d 1213
Opinion Judge:BERZON, Circuit Judge:
Party Name:Michael MOSS; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, fka Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees, v. UNITED STATES SECRET SERVICE, of the Department of Homeland Security; Ralph Basham, Former Direct
Attorney:Cecil Reniche-Smith (argued), Denise Gale Fjordbeck, Office of the Oregon Attorney General, Salem, OR, for defendants-appellants Ron Ruecker and Eric Rodriguez. Edward Himmelfarb (argued), Jeremy Scott Brumbelow, Barbara L. Herwig, Mary Hampton Mason, DOJ, Washington, D.C., Kelly A. Zusman, Offic...
Judge Panel:Before: DAVID M. EBEL[*], MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges.
Case Date:April 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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675 F.3d 1213 (9th Cir. 2012)

Michael MOSS; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, fka Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees,

v.

UNITED STATES SECRET SERVICE, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2-20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Municipal Does, the public bodies employing defendants John Does 2-20; Mark Sullivan, Director of the United States Secret Service, in his official capacity, Defendants,

and

Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants-Appellants.

Michael Moss; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Vine, fka Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees,

v.

United States Secret Service, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity; John Doe, 1, United States Secret Service Agent, in his official and individual capacities, participating in these actions and known to the Defendant Secret Service, but unknown at this time to Plaintiffs; David Towe, Chief of Police of Jacksonville, Oregon, in his official and individual capacities; City of Jacksonville, a municipal corporation of the State of Oregon; Mike Winters, Sheriff of Jackson County, in his official and individual capacities; Jackson County, a municipal corporation of the State of Oregon; John Does, 2-20 that is, the commanding officers if other law enforcement agencies of public bodies participating in these actions, in their official and individual capacities, known to the identified Defendants, but unknown at this time to Plaintiffs; Municipal Does, the public bodies employing defendants John Does 2-20; Mark Sullivan, Director of the United States Secret Service, in his official capacity; Ron Ruecker, Superintendent of the Oregon State Police, in his official and individual capacities; Eric Rodriquez, former Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official and individual capacities; Tim F. McClain, Superintendent of the Oregon State Police, in his official capacity; Randie Martz, Captain of the Southwest Regional Headquarters of the Oregon State Police, in his official capacity, Defendants,

and

Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants-Appellants.

Nos. 10-36152, 10-36172.

United States Court of Appeals, Ninth Circuit.

April 9, 2012

Argued and Submitted Oct. 11, 2011.

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Cecil Reniche-Smith (argued), Denise Gale Fjordbeck, Office of the Oregon Attorney General, Salem, OR, for defendants-appellants Ron Ruecker and Eric Rodriguez.

Edward Himmelfarb (argued), Jeremy Scott Brumbelow, Barbara L. Herwig, Mary Hampton Mason, DOJ, Washington, D.C., Kelly A. Zusman, Office of the U.S. Attorney, Portland, OR, for defendants-appellants Rob Savage and Tim Wood.

Steven Wilker (argued), Paul W. Conable, Tonkon Torp LLP, Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland, OR, Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, Washington D.C., for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, Presiding. D.C. No. 1:06-cv-03045-CL.

Before: DAVID M. EBEL[*], MARSHA S. BERZON, and N. RANDY SMITH, Circuit Judges.

OPINION

BERZON, Circuit Judge:

During the 2004 presidential campaign, Plaintiff-Appellees, Michael Moss and others who opposed President Bush (" protestors" or " anti-Bush protestors" ), organized a demonstration at a campaign stop in Jacksonville, Oregon. They contend that Secret Service agents, Defendant-Appellants Tim Wood and Rob Savage (" agents" or " Secret Service agents" ), engaged in unconstitutional viewpoint discrimination in violation of the First Amendment, by requiring the protestors to demonstrate at

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a distance from the President because they were protesting— rather than supporting— his policies. In addition, the protestors maintain that the police officers who carried out the Secret Service agents' directions, supervised by Defendant-Appellants Ron Ruecker, Superintendent of the Oregon State Police, and Eric Rodriguez, Captain of the Southwest Regional Headquarters of the Oregon State Police (" police supervisors" ), used excessive force in violation of the Fourth Amendment. They seek to hold Ruecker and Rodriguez liable for the use of this force.

We hold that the protestors have stated a claim against the Secret Service agents for violation of the First Amendment. The protestors have not, however, pleaded sufficient facts to sustain their Fourth Amendment claim against the police supervisors. We therefore hold that the excessive force claim should be dismissed.

I. Factual and Procedural Background

A. Facts

During the 2004 presidential campaign, President George W. Bush was scheduled to spend the evening of October 14, 2004 in Jacksonville, Oregon at the Jacksonville Inn Honeymoon Cottage.1 A group of people opposed to President Bush organized a demonstration to protest his policies. They discussed their plans with the Chief of the Jacksonville Police and with the Jackson County Sheriff, informing both law enforcement officials that the planned demonstration was to be multigenerational, peaceful, and law-abiding. The Jackson County Sheriff agreed to the proposed protest route and stated that officers in riot gear would not be deployed unless necessary. The Jacksonville Police Chief similarly stated that he did not plan to use riot-gear-clad police.

At about 5:00 p.m. on October 14, 2004, between two and three hundred anti-Bush protestors gathered in Griffin Park in Jacksonville. An hour later, the protestors, in accordance with the demonstration route they had pre-cleared with local law enforcement, left the park and proceeded to California Street between Third and Fourth Streets. They stood in front of the main building of the Jacksonville Inn, approximately two blocks south of the Inn's Honeymoon Cottage where the President planned to stay.2 A similarly-sized group of pro-Bush demonstrators gathered across Third Street from the anti-Bush protestors.

After the two groups had gathered, the President decided to stop for dinner at the restaurant at the Jacksonville Inn, located in the main building. Neither group was aware that the President would not proceed directly to the Honeymoon Cottage until approximately 7:00 p.m., an hour after the demonstrations in front of the Inn began. After learning the President would be stopping at the restaurant, both pro- and anti-Bush demonstrators clustered on the side of the street on which the Inn's main building is located. The anti-Bush demonstrators allege that at that point, " [b]oth sets of demonstrators had equal access to the President during his arrival at the Jacksonville Inn."

Shortly before the President was to arrive at the restaurant, the Secret Service agents on the scene requested that state and local police officers clear the alley from Third Street to the patio dining area behind the Inn, as well as the California Street alley running alongside the Inn.

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Police officers, dressed in riot gear, cleared these alleys. They also blocked Third Street, north of California Street, and began preventing demonstrators (both pro- and anti-Bush) from crossing the street at the intersection of Third and California Streets.

President Bush arrived at the Jacksonville Inn at approximately 7:15 p.m. and ate dinner on the Inn's outdoor patio, which was enclosed by a 6-foot-high wooden fence. This fence, along with the buildings along California Street, made it impossible for the anti-Bush protestors to see the President. In addition, these obstacles, as well as police officers stationed around the perimeter of the Inn, prevented anyone from walking from the demonstration site to the...

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