Moss v. United States Secret Service

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:

An amended opinion is filed concurrently with this order.

With this amendment, the panel has unanimously voted to deny appellants’ petition for rehearing. Judge Berzon and Judge N.R. Smith have voted to deny the petition for rehearing en banc, and Judge Ebel so recommended.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R.App. P. 35(f).

The petition for rehearing and the petition for rehearing en banc are DENIED. Judge O’Scannlain’s dissent from the denial of en banc rehearing is filed concurrently herewith.

No further petitions shall be entertained.

joined by KOZINSKI, Chief Judge, and GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

To quote from the Government’s brief, “[t]he panel’s decision in this case is a textbook case-study of judicial second-guessing of the on-the-spot judgment that Secret Service agents assigned to protect the President have made about security needs.” In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the President to their newly created duty to act like concert ushers — ensuring with tape-measure accuracy that everyone who wants to demonstrate near the Presi *948 dent has an equally good view of the show. This cannot be the law. With respect, I must therefore dissent from our unfortunate failure to rehear this case en banc.

I

This is a Bivens action brought by Michael Moss and numerous others (the “protesters” or “anti-Bush demonstrators”) against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. 1 The protestors’ second amended complaint alleges that the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL MOSS; LESLEY ADAMS; No. 10-36152

BETH WILCOX ; RICHARD ROYER ;

LEE FRANCES TORELLE; MISCHELLE D.C. No. ELKOVICH ; ANNA VINE , FKA Anna 1:06-cv-03045- Boyd, individually and on behalf of CL 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 MOSS V . U.S. SECRET SERVICE

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…