Dick Cheney and his Secret Service Agents left the City of Evansville high and dry defending against a civil rights lawsuit brought by protestor, John Blair who was carrying a sign saying “Cheney: 19th Century Energy Man”, as result of the security measures insisted upon by Cheney’s Secret Service Agents when Cheney attended a fund raiser for Rep. John Hostettler (R-Ind).
Judge McKinney found that the City of Evansville violated Mr. Blair’s 1st and 4th Amendment rights. Monetary damages have yet to be determined. The Evansville City Attorney David Jones complained bitterly:
Jones faulted the Secret Service, who devised the security plan for Cheney but failed to help Jones defend the city in a lawsuit brought after environmental activist John Blair was arrested for violating the Secret Service’s no-protest zone. Jones said the Secret Service refused to provide evidence, testimony and witnesses he needed to make the city’s case. Jones also said the Secret Service “used” city police to provide costly security and then abandoned the city when problems arose. “This is not fair,” said Jones. “We’ve been used like a pair of work gloves and when we were no longer handy, we were just discarded.”
Jones noted he’d asked the Secret Service to allow him to question the agent who instructed city police on the details of the no-protest zone. The agent told police that protesters had to be kept at least 500 feet away from the entrance to The Centre, where Cheney was appearing at a Republican fund-raiser for Rep. John Hostettler. But that agent apparently no longer works for the Secret Service; Jones said the agent’s supervisors told him that the agent couldn’t be located.
(emphasis mine). The Secret Service can’t locate a former agent? Nice Homeland Security. Some details follow.
John Blair, an Evansville photographer and writer, was arrested after entering a large “no-protest” zone surrounding “the Centre”, the site of a February 6, 2002 Cheney visit to Evansville where Cheney was attending a fundraiser for Rep. John Hostettler (R-Ind.). The large “no-protest” zone was set up by the Evansville City Police at the direction of Cheney’s Secret Service detail. Blair was carrying a sign that said, .
Blair had intended to meet people near the Centre, however, when they did not show up by 4:15 p.m., he walked toward the venue. Id. at 14-17. Blair did not see any area designated for protest and did not see any person in the designated protest area as he walked by. Id. at 17. Therefore, he walked to an area where people attending the event could see his sign.
Blair stood silently with his sign on the sidewalk at a spot about 100 feet from the entrance where people could easily get around him.
[Evansville Officer] Welcher indicated that there was a designated area for protesters that Blair had to go to if he wished to engage in protest. Blair objected and noted that the Civic Center of the community should be an appropriate place to engage in protest. Nevertheless, Welcher indicated that Mr. Blair had to move on. Blair asked on whose authority this order was being made. Welcher indicated that he had created a Public Safety Order requiring him to move on. . . . Blair and Welcher talked for about two to three minutes. At some point Welcher stated that if Blair did not move he would be arrested. . . . Blair did not want to walk to the end of the street to the location pointed out by Welcher because this area was so far away that no one attending the event, including the Vice President,
would be able to see his sign. . . . After a few minutes, Blair began to move away from the Centre towards the protest zone. . . . However, at least one time Blair stopped to direct more inquiries to Welcher. When Mr. Blair was about ten to twelve feet away from where he had originally been on the sidewalk, he turned and asked Welcher if he could stand in the parking lot on the other side of Ninth Street where people were parking. Welcher refused this request. Welcher then gave the order to arrest Blair.
Blair was incarcerated for two hours before bonding out. The charges were dropped about 2 weeks later.
The court found that the no-protest zone in this case and the creation of a designated protest zone was not a reasonable restriction on Blair’s freedom of speech. The Court found that a designated protest zone 500 feet from the only entrance to the venue was excessive and that the Defendants’ purported concern over Cheney’s safety was belied by the fact that Cheney’s motorcade would pass a sidewalk away fromt he protest zone.
[T]he Court also conclude[d] that the protest zone was not an adequate alternative channel for communication by protestors. Although an adequate alternative channel for communication need not be the speaker’s first or best choice, it must be more than merely theoretically available. It must be realistic as well. Furthermore, an adequate alternative cannot totally foreclose a speaker’s ability to reach one audience even if it allows the speaker to reach other groups. In the case at bar, the protest zone was 500 feet from the entrance for attendees, and well over 500 feet from the parking lot where the majority of attendees would park for the event. This limitation significantly curtailed Blair’s ability to convey his message to one of his major targets: the event patrons.
With regard to Blair’s Fourth Amendment claim, the Court rejected the Defendants’ claims that Blair could reasonably have been believed to be engaging in disorderly conduct or resisting law enforcement.
The City of Evansville and the individual officers were found to have violated Blair’s First and Fourth Amendment rights. (The individual officers are not liable to Blair on the First Amendment issue because, prior to this case, the law surrounding this type of First Amendment case was not sufficiently clear to make a reasonable officer aware that he was violating a Constitutional Right. The individual officers are, therefore, entitled to qualified immunity on the First Amendment claim. There is no similar immunity available for the City of Evansville. And there is no qualified immunity available on the Fourth Amendment claims. Presumably, now that this case has issued, the First Amendment law is sufficiently clear (at least in the Southern District of Indiana) to put officers on notice and, therefore, subject them to liability.)
The only issue remaining in the case is the extent of Blair’s damages and how much the City and the Officers will be required to pay Blair.
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