ninth circuit allows port militarization resistance lawsuit against infiltrator to proceed

Army employee John Towery infiltrated an antiwar group known as Port Militarization Resistance beginning in the spring of 2007. The group tried to disrupt shipments of military equipment in Olympia, Tacoma, and nearby public ports in Western Washington. Towery obtained access to activists’ names and email addresses before a public records request unintentionally clarified his identity in July of 2009.

U.S. courts are in agreement that the government may use undercover agents to investigate suspected illegal activity. Yet there are limits, which specifically disallow investigations for the purpose of abridging First Amendment freedoms. According to an August 2009 New York Times article about Towery,

Stephen Dycus, a professor at Vermont Law School who focuses on national security issues, said the Army was prohibited from conducting law enforcement among civilians except in very rare circumstances, none of which immediately appeared to be relevant to the Fort Lewis case. Mr. Dycus said several statutes and rules also prohibited the Army from conducting covert surveillance of civilian groups for intelligence purposes.

After learning that Towery was an infiltrator, activists with Port Militarization Resistance sued him and other government employees for violating their rights. The government responded by asking the district court to dismiss the lawsuit. Today the Ninth Circuit Court of Appeals affirmed the district court’s opinion in the activists’ favor, deciding that their lawsuit pled plausible violations of their clearly established rights under the First and Fourth Amendments.