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Wed March 26, 2014
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Protesters Want To Sue Secret Service: Do They Have The Right?

Originally published on Wed March 26, 2014 7:24 pm

On a day when three of President Obama's Secret Service agents were put on leave for "disciplinary reasons," the agency came under scrutiny in the U.S. Supreme Court for a separate incident.

The court heard arguments in a case testing whether Secret Service agents can be sued for moving a group of protesters out of earshot of President George W. Bush in 2004.

During the 2004 presidential campaign, anti-Bush protesters got permission from the local police to demonstrate when the president visited the small town of Jacksonville, Ore.

When Bush made a last-minute decision to eat dinner outside on the patio at an inn close to where the demonstrators had been given permission to protest, the anti-Bush group shouted loud enough that the server waiting on the president and Laura Bush reportedly had to lean in to hear their order.

After 15 minutes, two Secret Service agents ordered local police to move the anti-Bush group farther away, but a competing group of pro-Bush demonstrators was allowed to stay on the opposite street corner, significantly closer to the president.

The anti-Bush demonstrators contend they were discriminated against based on their viewpoint, in violation of their First Amendment free speech rights. They sued the Secret Service agents, and a federal appeals court in California allowed their suit to go forward, saying it could see no apparent reason for treating the two groups differently.

At arguments in the Supreme Court Wednesday, however, Deputy Solicitor General Ian Gershengorn told the justices there was ample reason for the different treatment, because it would have been easier to shoot at the president or throw a grenade from where the anti-Bush protesters were than from the position of the pro-Bush group.

Justice Antonin Scalia questioned why there should be any court case at all.

"It doesn't matter whether there was intent to suppress anti-Bush demonstrations," he said. "We don't consult subjective intent. If a policeman stops somebody ... we'd say, 'Did you have a broken tail light or not?' ... We do not inquire into the subjective intent of the officer."

Justice Anthony Kennedy had another question for the government's lawyer: "You say that any time there is an objective basis for the Secret Service ... to move a protester," the fact that the real reason was the viewpoint of the protester, that's "irrelevant?"

"That is our position," Gershengorn replied.

Justice Samuel Alito asked if the court should establish some rules for such situations. "I imagine whenever the president is out in public, there is some degree of risk. You want no risk? ... Keep him in a bunker."

Lawyer Gershengorn responded that there is "likely to be" a legitimate security rationale "in every case." The physical security of the president "occupies a special place in our constitutional structure," he said. "And the Secret Service has a special role to play."

Prodded by Justice Elena Kagan, Gershengorn said that if an agent moved people to avoid annoying the president, that is "the hardest case for us." But to impose rules, he said, would mean that agents would hesitate when they have a real security concern.

Justice Stephen Breyer chimed in. "Everyone understands the importance of guarding the president in this country. ... At the same time, no one wants a Praetorian Guard that is above the law."

The practicalities, however, continued to dominate the argument when Steven Wilker, lawyer for the protesters, rose to make his argument.

Chief Justice John Roberts interrupted with a hypothetical question: "You're the head of the Secret Service detail. You've got to evacuate the president right away. Do you go through the anti-Bush crowd or through the pro-Bush crowd?"

Wilker paused.

"It's too late," said the chief justice. "You've taken too long to decide."

Justice Kagan asked Wilker if he would concede in hindsight that there was in fact an objective reason to move the protesters out of the way.

Wilker agreed there might have been a concern, but said if there was in fact a need to move the protesters, the solution "would simply be to move people slightly."

Lawyer Wilker argued there is ample evidence to allow the case to proceed to the next stage. Once that happens, lawyers for the protesters would have the opportunity to take sworn testimony from the agents and ask the agency whether there are reports of the events that evening confirming or denying what happened.

"If I were drafting interrogatories," Chief Justice Roberts said, the first thing he'd want to know is "what is your policy with respect to moving demonstrators at a presidential event? ... And I can see the Secret Service saying ... that's kind of a bad thing to make it public because there are people out there who want to kill the president ... [and] that gives people a guideline for how to break through the security arrangements."

In rebuttal, the government's lawyer said that's why allowing such suits would be a Secret Service "nightmare." The court's decision is expected by summer.

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