MOSS v. U.S. SECRET SERVICE

Nos. 10-36152, 10-36172.

711 F.3d 941 (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; Muncipal 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.

United States Court of Appeals, Ninth Circuit.

Filed April 9, 2012.

Amended February 26, 2013.


Attorney(s) appearing for the Case

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 , Department of Justice, 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 Plaintiffs-Appellees.

Dissent to Order by Judge O'SCANNLAIN; Opinion by Judge BERZON.


ORDER

The opinion filed on April 9, 2012, and appearing at 675 F.3d 1213, is amended as follows:

At slip opinion page 3846, 675 F.3d at 1229, immediately before the heading "C. Fourth Amendment," add the following text:

<* * * As this case arises on a motion to dismiss, any explanation for the agents' differential treatment of the pro- and anti-Bush demonstrators would have to be so obviously applicable...

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