Law officers accused of First Amendment violation in Bush visit
An appeals court on Tuesday effectively quashed a First Amendment lawsuit filed by citizens protesting Iraq War policies during a visit by then-President George W. Bush to the village of Los Ranchos in August 2007.
The protesters filed a lawsuit alleging they were unconstitutionally discriminated against based on their viewpoint – opposition to Bush’s policies – while Bush supporters got favorable treatment by being allowed to remain on prime, private property for their demonstration.
The District Court in 2011 had refused to dismiss the case against three law enforcement agents: U.S. Secret Service Special Agent Kerry Sheehan, Bernalillo County sheriff’s Lt. Matt Thomas and sheriff’s Sgt. Edward Mims. Sheehan was the site agent in charge of the president’s visit to the home of Los Ranchos Mayor Larry Abraham, who was hosting an event for Sen. Pete Domenici. The Sheriff’s Office was in charge of the outer perimeter security during the visit, with Thomas responsible for directing personnel and deciding where protesters would stand.
Senior U.S. District Judge C. LeRoy Hansen in 2011 denied qualified immunity to the officers, saying there were disputed issues of fact that should be decided by a jury.
“The subordinate officers’ … execution of the order in a manner that treated anti-Bush protestors differently from pro-Bush supporters, resulting in their anti-war and anti-Bush message not being able to be seen by the Presidential motorcade, suggests that the supervisors in charge of issuing and approving that order, including Special Agent Sheehan, intended the differential treatment of protestors and supporters that occurred,” Hansen’s opinion said.
The officers filed a pretrial appeal, and the 10th Circuit sent the case back with orders to dismiss charges against Sheehan, Thomas and Mims.
ACLU New Mexico Director Peter Simonson expressed disappointment, saying protesters represented by the ACLU “offered concrete evidence” that the three “were responsible for discriminating against our clients because of their viewpoints. … The appeals court ruled that today’s decision was a First Amendment ‘perfect storm’ in which no one in particular was responsible for the poor treatment our clients received because there were multiple law enforcement agencies on the ground.
But the First Amendment does not let law enforcement agents off the hook so easily. If (it) stands for anything, it is that the government cannot discriminate against people because of their views.”
Anti-Bush demonstrators were made to stand 150 yards south of the mayor’s driveway on Rio Grande Boulevard, the opinion observed, while a second group of Bush supporters was allowed to stand directly across from the driveway, 6 to 15 feet from the road.
“Location, location, location,” 10th Circuit Judge Jerome Holmes wrote in his introduction to the 60-page ruling. “It is cherished by property owners and political demonstrators alike. Both groups, it turns out, are at the heart of this case.”
Officers acting in their official capacity are presumed to have immunity from suit. To get past that, plaintiffs must show that a public official violated a constitutional right under clearly established law, the opinion said.
Hansen’s determinations that “law enforcement” harbored a discriminatory motive and that (protesters’) free speech rights were violated “do not suffice to show personal involvement in viewpoint discrimination and cannot, of themselves, overcome defendants’ qualified immunity,” the opinion says.