Denver Three aren’t quite done yet

August 2, 2005

Last week we learned that the Secret Service, after a couple of months of investigating, had wrapped up its criminal probe in the controversy surrounding the Denver Three and decided not to press charges. What did the Secret Service find during the investigation? We don’t know; they won’t say. Why did the conduct fall short of the legal threshold for formal charges? We don’t know; they won’t say. Who was responsible for his fiasco? The Secret Service knows, but won’t tell anyone.

What’s more, Denver’s acting U.S. attorney, William Leone, who had expressed interest in possibly filing criminal charges in this case, said he was satisfied with the Secret Service’s effort. “Criminal law is not an appropriate tool to resolve this dispute,” he said. “The normal give and take of the political system is the appropriate venue for a resolution.”

In other words, this is a political problem, so let the politicians fix it. Or not. It’s up to them.

The reality, of course, is that the politicians who created a policy in which law-abiding, ticket-holding Americans can be removed from public events because of an anti-war bumper sticker aren’t prepared to change a thing. The Bush White House has worked hard to create Bubble-Boy policies, and if there isn’t a criminal problem, then there’s no incentive for change.

Does this mean the Denver Three are out of options? Not exactly.

Dan Recht, an attorney for Karen Bauer, Leslie Weise and Alex Young, said his clients would pursue a civil lawsuit against the person, accusing him of violating their free-speech rights and assaulting them.

“We don’t know who it was, but we’ll find out who it was and we’ll sue him,” Recht said. “I’m disappointed but not surprised charges won’t be filed, but it remains to be seen whether the Secret Service did a thorough investigation.”

I’m not entirely clear on how (or when) they’ll sue a man they haven’t identified, but rest assured, the Denver Three haven’t given up. The next step: Recht will attempt to obtain the Secret Service’s report through a Freedom of Information Act request.

And for what it’s worth, the Denver Three’s allies in Washington remain concerned.

“Frankly, if the Secret Service and White House have nothing to hide, and if no law was broken, don’t the American people have a right to know the results of the investigation and who was responsible for (the ejections)?” [Rep. Mark] Udall said in a statement.

Sounds reasonable to me.

How to sue someone who’s name you don’t know: you file a lawsuit against “John Doe” with a certain description of who that person is. Then after the lawsuit is filed a subpoena is used to find out their name.

  • I’m not entirely clear on how (or when) they’ll sue a man they haven’t identified

    There might need to be a second lawsuit to force the Secret Service to divulge the names. That would be sweet.

  • What did the Secret Service find during the investigation? We don’t know; they won’t say. Why did the conduct fall short of the legal threshold for formal charges? We don’t know; they won’t say. Who was responsible for his fiasco?

    CB – You ask some really good questions here, but one things keeps bothering me. What if it was a Secret Service agent not a private citizen who was responsible for this. Is it possible that the Secret Service has been corrupted along with every other government agency? If there is a criminal problem here the White House doesn’t have any incentive to change.

  • A civil suit, with discovery by the plaintiffs instead of a crim investigation directed by Republican appointees, could bear more fruit anyway. Key question: was he acting within the scope of his employment when he did it.

  • What if it was a Secret Service agent not a private citizen who was responsible for this.

    Mark, you raise a good point. From the outset, the Secret Service said it had looked into the incident and found that it was not one of their agents who forcibly removed the Denver Three from the event. I’ve accepted this, but it requires one to believe that the Service is telling the truth. Were they? I don’t know.

    Eric, Matt, and John, meanwhile, raise excellent points about how to proceed. Thanks to all.

  • In all states and at the federal level, merely filing a “Summons and Complaint” at the courthouse is generally not sufficient to proceed to depositions or other forms of discovery. One must obtain “jurisdiction” over the defendant(s); that is, the court’s “legal authority or power” (think of a rope) over the defendant(s) must be “secured” in some way (think of a horse being lassoed with that rope). This is usually done by personal delivery of the Summons and Complaint to each defendant or a designated representative (as specified by the local court rules or statute), or delivery may be accomplished by some form of what is called “substituted service” basis, such as mailing, delivery to regulatory authorities, delivery to an authorized representative of an un-identified defendant, posting on the premises, publication in newspapers of general circulation, and other methods too.

    Also, once the paperwork is filed at the Courthouse, there is a court rule- or stautorily-limited period of time (typically 90 days) during which the Court’s Summons to the defendant(s) must be delivered to those persons. If a defendant — even a “John Doe” defendant — is unknown, how can one obtain “jurisdiction” for the Court over that person? What happens when the 90 days runs out (or any extended period permitted by the court’s rules) without learning the identity of the true defendant? Usually, the Complaint must be dismissed, and the plaintiff has to start all over.

    Unfortunately, while plaintiffs wishing to remain anonymous for court-authorized reasons may generally do so, the same is much more difficult to do with UNKOWN defendants (as compared with KNOWN defendants whose identity for court-authorized reasons must remain CONCEALED from the public in the court papers). This course of proceeding seems at best problematic to me.

    A more constructive course is to sue the govenment of the United States as an entity unto itself; the President in his individual as well as his governmental capacity; the Secret Service, as they have the information and refuse to part with it (and, as “Mark” above suggests, the culprit may indeed be a member of the Secret Service); and local (Denver) persons who were responsible for staging the event’s logistics, including ticketing, staffing, and coordination with the White House.

    In addition, and most importantly, I would name a “John Doe” as a defendant. Here is the important part: since “John Doe” was a member of the White House staff and under its direct or de facto control and supervision (i.e., a “respondeat superior” or “master-servant” or “employer-employee” relationship), I suspect that “jurisdiction” over that person could be accomplished on what I call the “substituted service” basis — that is, the White House’s Chief of Staff or some other person is designated to receive all official and legal communications on behalf of the White House and its staff. It should work, although court rules provide mechanisms for putative defendants to challenge the court’s authority over that person, including whether the “delivery” to that person is “legally cognizable” (i.e., sufficiently acceptable).

    Once jurisdiction is achieved using this (or other successful) scenario, then yes, the Denver 3 can become “Paula Jones” times three and go after the President of the United States and all of his cronies. I wish them much success! Rock on…

  • Thanks for a great analysis AL; hope the D3 lawyers are reading.

    From the outset, the Secret Service said it had looked into the incident and found that it was not one of their agents who forcibly removed the Denver Three from the event. I’ve accepted this, but it requires one to believe that the Service is telling the truth. Were they? I don’t know.

    Cb-

    Sure, we have to assume the SS is telling the truth. But to take that logic a step back, if the SS was willing to lie, wouldn’t they be better off saying it WAS a SS agent? This whole issue (well, a good part of the legal issue, anyway) is about the fact that someone impersonated a SS agent, which is a federal crime. Of all the federal agencies, the SS has the most obvious reason to protect the president, and by extension the administration (it’s their job, after all). The SS knew the story before they responded; as I see it, either they lie and say it was them, or they tell the truth that it was them. No reason to lie that it wasn’t them.

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