Thomas Rudd and John Towery, employees of the U.S. Army Force Protection Division at Fort Lewis, appealed from an order in the Western District of Washington denying motions to dismiss First and Fourth Amendment claims brought against them by Olympia area activists. The activists allege that Towery and Rudd violated the First and Fourth Amendments when Rudd directed Towery to infiltrate the activist groups, in order to collect information, which Rudd used in threat assessments disseminated to local law enforcement, with the intent of neutralizing protester actions aimed at shipments of military vehicles through the Ports of Olympia, Tacoma and Aberdeen. The activists allege that in November 2007 information collected by Towery in his undercover capacity was given to local police and used to preemptively arrest demonstrators as they protested on a street outside the Port of Olympia. The protesters were arrested for “attempted disorderly conduct” when they were standing, singing and chanting on a street in front of a port entrance that officers has already blocked to traffic after Towery passed on “intel” that they planned to sit in the street and block traffic. Rudd and Towery raised several arguments in favor of dismissal. Their briefs raised questions about what facts are, or would be, sufficient to demonstrate standing in a claim challenging allegedly unlawful government surveillance, questions that have been litigated by the ACLU and others in cases challenging national surveillance programs, including NSA wiretapping.
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