A federal appeals court dismissed a lawsuit brought by demonstrators claiming they were discriminated against for their political views by U.S. Secret Service agents guarding President Bush during a Southern Oregon campaign stop in 2004.
But the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday gave the American Civil Liberties Union lawyers representing demonstrators a chance to amend their complaint to include facts that would strengthen their claims.
The ruling excused the Secret Service from having to give up information about their actions during the protests in Jacksonville, until the protesters' claims meet a higher legal threshold — one that makes their allegations not merely possible, but plausible.
Dave Fidanque, executive director of the American Civil Liberties Union of Oregon, said Friday they would file a new complaint.
Fidanque added that a U.S. Supreme Court ruling earlier this year in a case involving a Pakistani Muslim man claiming he was arrested after Sept. 11, 2001 because of his race and religion, cited by the appeals court, has made it more difficult to sue the government because of the plausibility standard.
“It basically puts plaintiffs in a Catch-22 situation,” Fidanque said. “It clearly applies to situations like the Jacksonville case, where we genuinely believe that the motivation on the part of government officials was political. But without the ability to require the government to turn over documents to have individuals involved in decision-making that day submit to depositions and other types of discovery, it's going to make it much more difficult to move forward with a case like this.”
The Secret Service did not immediately respond to a telephone call for comment.
Bush had given a speech at the Jackson County Expo in Central Point and was spending the night in Jacksonville, an historic gold mining town.
The lawsuit claims that when Secret Service agents ordered police to clear the streets around a patio where the president was having dinner, the agents discriminated against anti-Bush demonstrators, while leaving alone pro-Bush demonstrators standing a couple of blocks away.
“The facts do not rule out the possibility of viewpoint discrimination, and thus at some level they are consistent with a viable First Amendment claim, but mere possibility is not enough,” Judge A. Wallace Tashima wrote for the three-judge panel.
“Without any allegation tying the agents to the actions of the local police, we may not assume that either did anything beyond ordering Plaintiffs moved to the east side of Fourth Street.”
The panel added that claims that other people dining at the Jacksonville Inn were not searched or moved away did not make the claim of discrimination any more plausible.