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Full-text: October 27 2003

United States District Court
for the Eastern District of Pennsylvania


No filed date-stamp on the Court’s electronic PDF file copy. CJHjr




C.A. No. 03-4312


 )
ACORN, USAction, United)
for Peace and Justice, and)
The National Organization,)
for Women,)
Plaintiffs,)
 )
v.)
 )
The City of Philadelphia,)
The Police Department of)
the City of Philadelphia, and)
The United States Secret)
Service of the Department,)
of Homeland Security,)
Defendants.)
 )

Defendant United States Secret Service’s
Motion to Dismiss

Pursuant to Rule 12(b)(1), defendant United States Secret Service hereby moves to dismiss this action for lack of subject matter jurisdiction for the reason that plaintiffs lack standing to seek the relief requested in the Amended Complaint. For a full statement of the grounds for this motion, defendant respectfully refers the Court to the attached Memorandum.

Respectfully submitted,

Peter D. Keisler
Assistant Attorney General

Patrick L. Meehan
United States Attorney

Joan Garner
Assistant U.S. Attorney

Vincent M. Garvey
Deputy Branch Director

Thomas Millet {p.2}
Attorney, Civil Division
Department of Justice
20 Massachusetts Ave., NW
P.O. Box 883
Washington, D.C. 20044
Tel: (202) 514-3313
Fax: (202) 616-8460

Attorneys for United States
Secret Service

Certificate of Service

I hereby certify that the foregoing motion and attached memorandum and exhibits have been filed electronically and are available for viewing and downloading from the Court’s ECF system. Parties to this action will receive notice of this filing through the ECF system.

/s/ {No signature on the PDF copy}

Thomas Millet

______________________

Memorandum in Support of
United States Secret Service’s Motion to Dismiss

Introduction

Plaintiffs, a collection of public interest organizations, allege that the United States Secret Service conducts its mission of protecting the President and Vice President in a manner which discriminates against political demonstrators based on the content of the demonstrators’ speech. Pointing to incidents of alleged discrimination in the past (only some of which are alleged to have involved plaintiff organizations or any of their members), plaintiffs allege that they intend to participate in future, unspecified demonstrations where the Secret Service may provide its protective services to senior federal officials and where plaintiffs fear that they or their unnamed and unknown members may suffer discrimination by the Secret Service based on the messages plaintiffs seek to convey. {p.2}

Plaintiffs’ claimed future harms rest on a multitude of contingencies and unknowns. Particularly in cases involving feared misconduct by law enforcement officials, the courts have routinely held that vague and contingent feared future harms lack sufficient immediacy to satisfy the injury in fact component of Article III’s standing requirement. And where the occurrence of that contingent future harm would violate the general policies of the law enforcement agency involved, courts will not presume that those policies will be violated in the future. Application of those principles here compels the conclusion that plaintiffs lack standing.

Accordingly, this case is not justiciable and should be dismissed.

Statement of the Case

1. Plaintiff USAction alleges that its members and affiliates participated at a demonstration against President Bush’s tax policies during a presidential visit to Philadelphia on December 12, 2002. It alleges that its members were confined to locations not visible to the Presidential motorcade, while persons expressing views is support of the Administration were allowed closer access. Amended Complaint, ¶¶ 28-37. Plaintiff USAction alleges that city police officers took these actions at the direction of the Secret Service. Id., ¶ 32.

Plaintiff ACORN alleges that it sought to participate in a {p.3} demonstration at the appearance of President Bush in Philadelphia on July 24, 2003. It alleges that, under orders of Secret Service agents, ACORN protestors, who wished to convey a message in opposition to the President’s tax policies, were placed at a location further away from the President’s path than other persons present who were “sympathetic” to the President. Amended Complaint, ¶ 46. See also id., ¶¶ 38-46. 1 

Plaintiffs also generally allege that similar incidents have occurred at other Presidential and Vice Presidential appearances. Amended Complaint, ¶¶ 50-51. They allege that they and their members or affiliates were “involved in many of the incidents” cited in the Amended Complaint. Id., ¶ 52. They further allege that they intend to participate in future demonstrations “when senior federal officials protected by the Secret Service come to their area.” Id., ¶ 53.

2. The Secret Service Manual instructs agents that demonstrators are to be treated the same as members of the general public, unless they pose a security threat to a Secret Service protectee:

In the absence of knowledge of specific facts or observable actions which would indicate that a demonstration group or individuals participating in a demonstration pose a security threat to a protectee, such {p.4} demonstrators are to be treated as members of the general public. Secret Service personnel shall not initiate any action to segregate such demonstration groups or demonstrators from public areas.

Exhibit 1.

This policy was recently reiterated in a Memorandum from Secret Service Headquarters to all Secret Service personnel:

In the absence of specific fact or observable actions which would indicate a demonstration may pose a risk to a Secret Service protectee..., demonstrators are to be treated as members of the general public. Secret Service personnel should not initiate any action to segregate demonstration activity from public areas.

Exhibit 2.

The Memorandum further underscored to all employees that protective personnel may not take action based on the content of the message which any demonstrator seeks to convey. Rather, the Secret Service’s sole interest is the safety of its protectees. Thus, the Memorandum states that the sole concern of the Secret Service with signs carried by demonstrators is whether they could be used as weapons, not their contents:

The Secret Service does not prohibit the presence of signs based on their content. The only exception pertains to signs containing messages that threaten the life of our protectees in violation of 18 U.S.C. §§ 871 and 879. Agents and officers can exercise discretion and exclude signs made of or supported by materials which could be used in a threatening or injurious manner. As an example, such signs could include those made of metal or wood that could be thrown at a protectee or signs made from large pieces of plywood that could be used to ram passages through crowds precipitating disturbances and panic. Most frequently, the Secret Service will reject signs supported by sticks, poles or other supporting items that may be used as a weapon. Upon removal of the {p.5} stick or other supporting item, the signs will be admitted. Each decision to admit or reject such sticks or supporting material is a discretionary decision based upon the judgment and experience of the Secret Service personnel responsible for entry point security. That decision, however, is not based on the content of the sign or other item attached to the stick, pole, or other supporting device.

Exhibit 2.

Argument

Plaintiffs Lack Standing for the Relief Sought

Pointing to two past demonstrations in this district at appearances by President Bush, where plaintiffs and/or their members were allegedly treated differently than members of the general public or persons who expressed support for the President, as well as vague allegations of similar incidents at Presidential or Vice Presidential events elsewhere which may or may not have included plaintiffs or their members, plaintiffs argue that the Secret Service has engaged in practices which violate the First Amendment’s guarantee of free speech. Plaintiffs, however, do not seek redress for these alleged improprieties. 2  Instead, they ask for prospective injunctive and declaratory relief to preclude their reoccurrence with respect to some future, unspecified events. Plaintiffs’ Amended Complaint fails to allege injury sufficient to {p.6} permit relief of that type and should be dismissed.

“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy.” ¶

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). One of the “landmarks” which differentiates a constitutional case or controversy from more abstract disputes “is the doctrine of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). And, the first requirement of standing is that “the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560.

Where, as here, a party seeks prospective equitable relief, the complaint must contain “allegations of future injury [that are] particular and concrete.” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 109 (1998). While allegations of past injury might support a remedy at law, prospective equitable relief requires a claim of imminent future harm. Lyons, 461 U.S. at 105. See also United Presbyterian Church v. Reagan, 738 F. 2d 1375, 1381 (D.C. Cir. 1984) (past harm suffered by plaintiff does not support declaratory and injunctive relief). As the Supreme Court held in Whitmore v. Arkansas, 495 U.S. 149 (1990):

Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be {p.7} “certainly impending” to constitute injury in fact. 495 U.S. at 158, quoting Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979). 3 

The Supreme Court underscored this divide in Lyons, where a plaintiff alleged that law enforcement officers engaged in police brutality in arresting him with a chokehold, a practice alleged to be “regularly and routinely” used by police in that area. 461 U.S. at 98. Finding that the allegations of past conduct were sufficient to show injury for a damages claim, the Supreme Court nevertheless held the allegations that the police “regularly and routinely” used chokeholds were insufficient to show that future harm was imminent. Rather, to support a claim for prospective equitable relief, the Supreme Court held that the plaintiff “would have not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen ... or (2) that the City ordered or authorized police officers to act in such manner.” 461 U.S. at 106 (emphasis original). Absent a claim that the plaintiff “is realistically threatened by a {p.8} repetition of his experience ..., then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.” 461 U.S. at 109. Accord, O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974); Rizzo v. Goode, 423 U.S. 362, 372 (1976).

The Supreme Court reaffirmed that claims of future harms for prospective injunctive relief must be specific, not vague or indefinite, in Lujan. In that case, the Supreme Court held that claims of environmental injury in a foreign country, based on vague plans to visit the affected areas at some future, unspecified date were insufficient to establish an injury sufficiently imminent to support a claim for future equitable relief. Allegations of “an injury at some indefinite future time” are insufficient. Lujan, 504 U.S. at 565 n.2. As the Supreme Court stated, “[s]uch ‘some day’ intentions — without any description of concrete plans, or even any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury that our cases require.” 504 U.S. at 564 (emphasis original).

Viewed under these standards, plaintiffs’ Amended Complaint here fails to allege any injury sufficient to support their claims to prospective equitable relief. The Amended Complaint contains specific allegations of harm concerning two demonstrations by certain plaintiffs and their members at locations in this district {p.9} visited by President Bush. Amended Complaint, ¶¶ 28-49. It further claims past violations at demonstrations elsewhere, Id., ¶¶ 50-51, and claims that plaintiffs and their members “were involved in many of the incidents” in those paragraphs, Id., ¶ 52, thus indicating that plaintiffs and their members were not present at all of the events listed in those paragraphs. As in Lyons, these allegations concerning past conduct alone will not support the type of prospective relief sought in the Amended Complaint.

Further, the allegations of the Amended Complaint concerning future harms are simply too speculative and indefinite to meet the level of specificity required for the claimed future injuries to be sufficiently imminent to allow the exercise of federal judicial power. The sole allegation of the Amended Complaint regarding future harm is that plaintiffs and their members “intend” to engage in demonstrations “when senior federal officials protected by the Secret Service come to their area.” Amended Complaint, ¶ 53. 4  The Amended Complaint’s allegations of future injury are thus contingent, not imminent. The feared harms depend on the appearance of an unnamed “senior federal official” attending an unidentified event in an unspecified area where plaintiffs’ {p.10} unidentified members “intend” to demonstrate. Id. 5  Those members must be willing and able to appear at the unspecified event attended by the unnamed senior federal official, factors which may be affected by a variety of considerations, from the state of national or world affairs at any given time to the time of day of the event and weather conditions at the site. The unspecified event attended by the unknown official at a location to be determined must also be located at a facility to which public access exists and not, for example, at a military installation.

Plaintiffs’ claims of future harm are even less definite than the “some day” allegations held insufficient in Lujan, where the persons alleging environmental injury could at least specify the locations involved, if not when they would visit the locations and suffer aesthetic harm. Plaintiffs here essentially allege that “some day” some “senior federal official” will visit some location where some of plaintiffs or their members are located, that some of them will choose to demonstrate, with some chance that some unidentified Secret Service personnel will treat plaintiffs’ {p.11} members differently than some other members of the public because of the message they espouse. 6 

Plaintiffs’ task of alleging imminent future harm is made even more difficult by the Secret Service’s express policy of not treating demonstrators differently than members of the general public, in the absence of any indication that the demonstrators pose a physical threat to a protectee. The Secret Service Manual specifically states:

In the absence of knowledge of specific facts or observable actions which would indicate that a demonstration group or individuals participating in a demonstration pose a security threat to a protectee, such demonstrators are to be treated as members of the general public. Secret Service personnel shall not initiate any action to segregate such demonstration groups or demonstrators from public areas.

Exhibit 1 (emphasis added). Only when a group poses a security threat are Secret Service personnel to participate in discussions with the demonstrators and local authorities about segregating the demonstrators. Any such segregation is to be done in accordance with local law and enforced by local authorities, not the Secret Service. Id.

These directives were reinforced in a memorandum to all Secret Service employees on November 18, 2002. This memorandum reiterates that, ¶

“[i]n the absence of specific fact or observable actions {p.12} which would indicate a demonstration may pose a risk to a Secret Service protectee, protected facility, foreign mission, or to public safety, demonstrators are to be treated as members of the general public. Secret Service personnel should not initiate any action to segregate demonstration activity from public areas.” ¶

Exhibit 2 (emphasis added). The memorandum also instructs that ¶

“[t]he Secret Service does not prohibit the presence of signs based on their content,” ¶

although signs which could be used as weapons or which contain threats on the life of a protectee can be excluded. Id. 7 

The existence of these guidelines and policies are significant for purposes of standing because they directly relate to the possibility of plaintiffs’ feared future injury. In Lyons, as noted above, the Supreme Court held that a complaint based on alleged future harms by law enforcement personnel would be sufficiently imminent if the complaint alleged that police officers always engaged in illegal conduct or if the city’s policies {p.13} “ordered or authorized police officers to act in such a manner.” 461 U.S. at 106. See also Kerr v. City of West Palm Beach, 875 F.2d 1546, 1554 (11th Cir. 1989); Falter v. Veterans Administration, 632 F. Supp. 196, 201 (D.N.J. 1986). Here, the Amended Complaint does not allege that they are discriminated against at every demonstration. 8  And, the guidelines and policies of the Secret Service unequivocally state that the Secret Service’s official policy is, absent a security issue, to treat demonstrators the same as any members of the general public and not to discriminate against any demonstrator based on the content of his message. The probability of plaintiffs’ feared injuries occurring thus becomes even more remote when, in addition to the contingencies noted above, the occurrence of those injuries further depending on Secret Service personnel choosing to violate their agency’s express instructions. Once these contingencies are piled upon each other, it is readily apparent that plaintiffs’ claims of future harm are simply too remote to give them standing to seek prospective relief.

Conclusion

For the foregoing reasons, the Secret Service’s motion to dismiss should be granted. {p.14}

Respectfully submitted,

Peter D. Keisler
Assistant Attorney General

Patrick L. Meehan
United States Attorney

Joan Garner
Assistant U.S. Attorney

Vincent M. Garvey
Deputy Branch Director

{No signature on the PDF copy}

Thomas Millet
Attorneys {sic: plural}, Civil Division
Department of Justice
20 Massachusetts Ave., NW
P.O. Box 883
Washington, D.C. 20044
Tel: (202) 514-3313
Fax: (202) 616-8460

Attorneys for United States
Secret Service

{No separate Certificate of Service}

______________________

{Exhibit-1, p.1/4; Manual cover}

Exhibit 1

Excerpt of USSS Investigative Manual

Investigative Manual
Department of the Treasury
United States Secret Service
Volume III

{Exhibit-1, p.2/4; Manual, Section INT-10, p.7}

Manual: Investigative Section: INT-10

RO: INT Date: 10/15/86

Public Demonstrations

The Attorney General of the United States has issued guidelines {revised May 30 2002: TOC html, 207 kb pdf, context} to the FBI pertaining to the investigation of public demonstrations. The Department of the Treasury has authorized modifications to these guidelines which permit the Secret Service to initiate investigations of public demonstrations targeting protectees without prior departmental approval, to use certain investigative techniques not otherwise authorized, and to develop information outside the original scope of the guidelines. SAICs {Special Agents in Charge} are authorized to initiate investigations of public demonstrations targeting protectees. These investigations, however are limited to the scope and techniques described below.

Field offices receiving information concerning demonstrations not targeting a protectee but possibly falling within the Attorney General’s or Treasury Department guidelines should forward the information to the Intelligence Division for referral to the Department of the Treasury.

The following are the Secret Service guidelines regarding the investigation of public demonstrations:

1. Information a) relating to demonstration activities likely to require public health and safety measures from the Federal Government or b) acquired incidentally by the U.S. Secret Service in the course of carrying out its responsibilities, shall be reported to the Assistant Secretary of the Treasury for Enforcement through the Intelligence Division.

2. The U.S. Secret Service may undertake such investigations at the specific request of the Assistant Secretary (Enforcement).

3. The U.S, Secret Service may conduct investigations of public demonstrations that either target or occur in the vicinity of a Secret Service protectee, protected facility, or foreign mission without prior authorization from the Assistant Secretary (Enforcement) or consultation with the Department of Justice.

Information collected shall be limited to the following:

1. The date, time, place, and type of activities planned;

2. The number of persons expected to participate;

3. The intended mode of transportation to the intended site or sites and the intended routes of travel;

4. The date of arrival in the vicinity of the intended site and housing plans, if pertinent;

5. Similar information necessary to provide an adequate Federal response to ensure public health and safety and the protection of First Amendment rights. (This is intended to include such facts affecting the Federal responsibility as unusual health needs of the participants, counterdemonstrations planned which may increase safety needs, or possible inability of participants to arrange return transportation.)

6. Only in the case of investigations undertaken pursuant to the provisions of paragraph 3 in the previously listed guidelines is the U.S. Secret Service also authorized to determine the purpose and tenor of the public demonstration (to the extent necessary to assess its impact on the Service’s protective responsibilities).

Investigations undertaken to collect information regarding public demonstrations shall be limited to the following methods of acquisition:

1. Review of Federal, State, and local records and contact with Federal, State, and local officials;

2. Review of public records and other public sources of information;

3. Contact with persons involved in the planning of demonstrations, provided that those contacted are advised of our authority to make the inquiry and the purpose for which it is being made; {Exhibit-1, p.3/4; Manual, p.8}

4. Only in the case of investigations undertaken pursuant to the provisions of paragraph 3 of the previously listed guidelines is the U.S. Secret Service also authorized to:

a. Physically monitor and observe, as necessary, public demonstrations in progress so as to constantly update the assessment of danger;

b. Passively receive information from voluntary informants;

c. Contact other sources from which information, as defined under types of information, may be lawfully obtained.

5. No photographs of any demonstration or the preparation thereof should be taken in the course of any such investigation.

In addition to the above policies, this Service has set forth the following specific guidelines concerning contacts with demonstration groups. Any questions regarding the guidelines should be directed to the Intelligence Division.

1. In the absense of knowledge of specific facts or observable actions which would indicate that a demonstration group or individuals participating in a demonstration pose a security threat to a protectee, such demonstrators are to be treated as members of the general public. Secret Service personnel shall not initiate any action to segregate such demonstration groups or demonstrators from public areas.

2. Only in cases where personnel of the Service can identify and articulate specific facts that would lead a prudent person to conclude that a demonstration group poses a potential security threat or a threat to the public safety, should Secret Service personnel initiate and participate in discussions with the demonstration group or suggest that the demonstration group be segregated from the general public area.

3. Any meeting with demonstration leaders initiated pursuant to the aforementioned paragraph shall be with the concurrence and participation of local law enforcement authorities.

4. Any agreement reached with demonstration organizers shall comply with acceptable State and Federal laws. In the event that the demonstration organizers agree to a segregated site, such agreement shall not be enforceable by agents of the Secret Service. Enforcement of the terms of any such agreement shall be the responsibility of the leaders of the demonstration group and, when applicable, the local law enforcement authorities.

Retention of Information

Information acquired or collected regarding public demonstrations may not be indexed in a manner that permits identification of an individual with a particular demonstration, of retrieval of information by reference to a specific individual, unless the individual is the subject of an authorized law enforcement investigation. Investigations will be conducted for protective purposes only. No investigation will be undertaken to determine, for nonprotective purposes, the political, religious, or personal beliefs of any individual, group, or organization.

The foregoing in no way restricts any otherwise authorized investigation of an alleged violation of the U.S. criminal code wherein an individual or organization under investigation is incidentally involved in either a public disorder or public demonstration. For example, surveillance reports covering the activities of a suspected counterfeiter may include observations of his participation in a picket line.

Civil Disorders

The Attorney General of the United States has also issued guidelines to the FBI pertaining to the investigation of civil disorders. The Secret Service will adhere to these guidelines as they stand, and {Exhibit-1, p.4/4; Manual, p.9} requests to initiate investigations of this type should be forwarded to the Intelligence Division for consideration by Headquarters and the Assistant Secretary of the Treasury for Enforcement and Operations. This type of investigation would normally involve monitoring the investigation of other agencies. The following are the Attorney General’s guidelines to the FBI with respect to the investigations of civil disorders:

1. Information relating to actual or threatened civil disorders acquired by the FBI from public officials or other public sources or in the course of its other investigations, shall be reported to the Department of Justice.

2. The FBI shall not undertake investigations to collect information relating to actual or threatened civil disorders except upon specific request of the Attorney General or his designee. Investigations will be authorized only for a period of 30 days but the authorization may be renewed, in writing, for subsequent periods of 30 days.

3. Information shall be collected and reported pursuant to paragraphs one and two for the limited purpose of assisting the President in determining whether federal troops are required and determining how a decision to commit troops shall be Implemented. The information shall be based on such factors as:

a. The size of the actual or threatened disorder — both in number of people involved or affected and in geographical area;

b. The potential for violence;

c. The potential for expansion of the disorder in light of community conditions and underlying causes of the disorders:

d. The relationship of the actual or threatened disorder to the enforcement of federal laws or court orders and the likelihood that State or local authorities will assist in enforcing those laws or orders;

e. The extent of Stale or local resources available to handle the disorder.

4. Investigations undertaken, at the request of the Attorney General or his designee, to collect information relating to actual or threatened civil disorders shall be limited to inquiries of:

a. FBI files and indices:

b. Public records and other public sources of information;

c. Federal. State or local records and officials:

d. Established informants or other established sources of information.

Interviews of individuals other than those listed above, and physical or photographic surveillance shall not be undertaken as part of such an investigation except when expressly authorized by the Attorney General or his designee.

5. Information relating to civil disorders, described in paragraph three, shall be reported to the Department of Justice and may also be reported to Federal, State, or local officials at the location of the actual or threatened disorder who have a need for the information in order to carry out their official responsibilities in connection with such a disorder.

6. Information acquired or collected pursuant to paragraphs one through four may be retained by the FBI tor a period of (an undetermined number of) years but may not be indexed in a manner which permits retrieval of information by reference to a specific individual unless the individual himself is the subject of an authorized law enforcement investigation.

Reporting Format – Demonstrations

Reports regarding demonstrations or civil disorders may be reported via teletype or SSF 1588. The following is the format for these reports.

{End of Exhibit-1}

______________________

{Exhibit-2, p.1/2}

Exhibit 2

From: opo @ officialmail.usss.treas.gov
Sent: Monday, November 18, 2002 11:48 AM
Subject: Review of Secret Service Policy Regarding
 Demonstration Activity

From: opo @ officialmail.usss.treas.gov
To: USA @ officialmail.usss.treas.gov
Subject: Review of Secret Service Policy Regarding
 Demonstration Activity

File: 673.000

//ROUTINE//

Fm: Headquarters (AD-Protective Operations)
 Headquarters (AD-Investigations)
To: All Employees
Info: Director {then Brian L. Stafford, 98 kb pdf}
 Deputy Director {C. Danny Spriggs, 98 kb pdf}
Subject: Review of Secret Service Policy Regarding
 Demonstration Activity

The Secret Service’s longstanding policy regarding demonstration or protest activity has not changed despite the events of the past fourteen months.

It is incumbent upon all agents and officers to be familiar with Secret Service policy concerning demonstration activities. Secret Service guidelines regarding the investigations of public demonstrations, including the type of information that may be collected, the methods of acquisition, under what circumstances contacts with demonstration groups may be made, and what information may be retained, are described in the Protective Research Manual, INT-10 and IDAM-25.

We recognize that investigations of protest groups and the establishment of designated demonstration areas are often carried out by state or local law enforcement based on their own policies or authorities.

The following is a summary of the Secret Service policy concerning demonstrations:

In the absence of specific fact or observable actions which would indicate a demonstration may pose a risk to a Secret Service protectee, protected facility, foreign mission or to public safety, demonstrators are to be treated as members of the general public. Secret Service personnel should not initiate any action to segregate demonstration activity from public areas. Only in cases when the Secret Service has information that a demonstration poses a potential risk to a Secret Service protectee, protected facility, foreign missions or to the public safety, should Secret Service personnel initiate and participate in discussions with the demonstration group, or suggest that the group be segregated from the general public area. Any meeting or contact with the demonstration organizers should include local law enforcement authorities.

Any agreement reached with demonstration organizers should comply with local, state, and federal laws. In the event the organizers agree to a segregated site, it will be the responsibility of the organizers and local law enforcement authorities to enforce the terms of the agreement.

The Secret Service does not prohibit the presence of signs based on their content. The only exception pertains to signs containing messages that threaten the life of our protectees in violation of 18 U.S.C. §§ 871 and 879. Agents and officers can exercise discretion and exclude signs made of or supported by materials which could be used in a threatening or injurious manner. As an example, such signs could include those made of metal or wood that could be thrown at a protectee or signs made from large pieces of plywood that could be {Exhibit-2, p.2/2} used to ram passages through crowds precipitating disturbances and panic. Most frequently, the Secret Service will reject signs supported by sticks, poles or other supporting items that may be used as a weapon. Upon removal of the stick or other supporting item, the signs will be admitted. Each decision to admit or reject such sticks or supporting material is a discretionary decision based on the judgment and experience of the Secret Service personnel responsible for entry point security. That decision, however, is not based on the content of the sign or other item attached to the stick, pole or other supporting device.

Personnel should continue to be diligent in identifying demonstration activity that may pose a risk to the Secret Service protective mission and its facilities.

All SAIC’s {Special Agents in Charge} are requested to review this policy with all personnel.

Headquarters (AD-Protective Operations) Flynn
{Donald A. Flynn, Assistant Director, Office of Protective Operations}

Headquarters (AD-Investigations) Rogers
{George Rogers, Assistant Director, Office of Investigations}

{End of Exhibit-2}

Footnotes

{Each footnote appears entirely on the same page with its text reference.}

1  The Amended Complaint does not allege that the persons “sympathetic to the administration” were engaged in any demonstrative activities or were guests attending the event at which President Bush appeared.

2  Because the specific demonstrations referred to in the Amended Complaint have ended, any claims for equitable relief involving them are moot as no meaningful relief is possible. Jersey Cent. Power & Light Co. v. State of New Jersey, 772 F. 2d 35, 39 (3d Cir. 1985).

3  That plaintiffs have included a prayer for declaratory relief does not change the result here. “[A] party seeking a declaratory judgment has the burden of establishing the existence of an actual case or controversy.” Cardinal Chemical Co. v. Morton International. Inc., 508 U.S. 83, 95 (1993). See also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 106 (1998); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1932); St. Thomas-St. John Hotel v. Government of the U.S. Virgin Islands {47 kb txt}, 218 F.3d 232, 240 (3d Cir. 2000).

4  While the factual allegations of a complaint are generally accepted as true in ruling on a motion to dismiss, a court must distinguish between allegations of fact, which must be accepted as true, from allegations that are predictions, which are not binding. United Transportation Union v. I.C.C., 891 F.2d 908, 912 (D.C. Cir. 1989), cert. denied, 497 U.S. 1024 (1990).

5  Although the Amended Complaint refers generally to events attended by the President and Vice President, Amended Complaint, ¶¶ 28, 38, 50, 51, its claims of future injury refer more generally to “senior federal officials.” The Secret Service provides protective services to a number of persons, including the President, the Vice President, their families, former Presidents, their spouses and minor children, major presidential candidates, foreign heads of state, and designated federal officials traveling abroad. 18 U.S.C. § 3056. Thus, it is unclear which federal officials’ visits plaintiffs intend to protest.

6  The lack of any imminent harm also shows that plaintiffs’ claim for prospective injunctive relief is not ripe. See Presbytery of New Jersey of Orthodox Church v. Florio {71 kb txt, 76 kb doc}, 40 F. 3d 1454, 1462 (3d Cir. 1994) (noting that standing and ripeness are closely related)

7  While the thrust of the Amended Complaint is that members of the general public who voice their support of the administration are given preferential treatment by the Secret Service, it is not clear from the Amended Complaint’s allegations that this conclusion is supported by the factual allegations. For example, the Amended Complaint alleges that persons “sympathetic to the administration” received greater access to President Bush at the July 24, 2003 event than plaintiff ACORN. Amended Complaint, ¶ 46. It is unclear from the Amended Complaint whether those persons were demonstrators or invited guests at the event attended by President Bush who obviously were permitted greater access based on that status.

8  See, e.g., Amended Complaint, ¶ 26 (“discriminatory practices ... have occurred more frequently in the past two years.”).

 

Source: https://ecf.paed.uscourts.gov/cgi-bin/show_case_doc? 16,155542,,, {27 + 62 kb pdf} (WebPACER: ‘Public Access to Court Electronic Records,’ U.S. District Court for the Eastern District of Pennsylvania, Philadelphia). Exhibits: https://ecf.paed. uscourts.gov/cgi-bin/show_case_doc?16,155542,2,, {511 kb pdf}. The papers in this case are available on the internet from the Court with a PACER account ($0.07 per page), and a photocopy can be purchased from the Court Clerk for $0.50 per page.

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

This case: ACORN v. City of Philadelphia (E.D. Pa., 03-CV-4312 {50 kb}, filed July 24 2003).

Previous: Plaintiffs’ Amended Complaint (Sept. 23 2003).

Next: Defendant City of Philadelphia Motion to Dismiss (Nov. 20 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page for United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175 kb html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, verdict expected January 6 2004, 2 p.m.). Brett Bursey

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Nov. 16 2003. Updated Jan. 1 2004

http://homepage.ntlworld.com/jksonc/docs/acorn-edpa-d16.html