Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 1 of 19
OPTCON,STAY−CASE,STD
U.S. District Court DISTRICT OF ARIZONA (Tucson Division) CIVIL DOCKET FOR CASE #: 4:14−cv−02485−BGM

Jacobson et al v. United States Department of Homeland Security et al Assigned to: Magistrate Judge Bruce G Macdonald Case in other court: 9th CCA, 16−17199 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/20/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Leesa Jacobson

represented by Christina E Dashe Covington & Burling LLP − San Diego, CA 9191 Towne Centre Dr., Ste. 600 San Diego, CA 92122 858−678−1800 Fax: 858−678−1600 Email: cdashe@cov.com TERMINATED: 05/26/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: dpochoda@acluaz.org TERMINATED: 04/04/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan Forrest Covington & Burling LLP − San Francisco, CA 1 Front St., Ste. 35 San Francisco, CA 94111 415−591−6000 Fax: 415−591−6091 Email: eforrest@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Duff Lyall ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: jlyall@acluaz.org TERMINATED: 08/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joel Edman ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−773−6018 Email: jedman@acluaz.org

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TERMINATED: 10/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Loy ACLU − San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138−7131 619−223−2121 Fax: 619−232−0036 Email: davidloy@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitra Ebadolahi ACLU − San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138−7131 619−398−4187 Fax: 619−232−0036 Email: mebadolahi@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Guerrero Covington & Burling LLP − San Francisco, CA 1 Front St., Ste. 35 San Francisco, CA 94111 415−591−6000 7017 Fax: 415−591−6091 Email: sguerrero@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah D Thompson ACLU Foundation of San Diego & Imperial Counties P.O. Box 87131 P.O. Box 87131 San Diego, CA 92138−7131 619−232−2121 Email: sthompson@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracy Ebanks Covington & Burling LLP − San Francisco, CA 1 Front St., Ste. 35 San Francisco, CA 94111 415−591−6000 Fax: 415−591−6091 Email: tebanks@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Lopez ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−773−6011 Email: vlopez@acluaz.org TERMINATED: 05/25/2016 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Winslow B Taub Covington & Burling LLP − San Francisco, CA 1 Front St., Ste. 35 San Francisco, CA 94111 415−591−6000 Fax: 415−591−6091 Email: wtaub@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brenda Munoz Furnish ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Email: bmfurnish@acluaz.org ATTORNEY TO BE NOTICED

Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org ATTORNEY TO BE NOTICED

Neha Jaganathan Covington & Burling LLP − San Francisco, CA 1 Front St., Ste. 35 San Francisco, CA 94111 415−591−6000 Fax: 415−591−6091 Email: njaganathan@cov.com ATTORNEY TO BE NOTICED

William Bradford Peard ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 520−256−5387 Email: bpeard@acluaz.org ATTORNEY TO BE NOTICED

Plaintiff Peter Ragan

represented by Christina E Dashe (See above for address) TERMINATED: 05/26/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda (See above for address) TERMINATED: 04/04/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ethan Forrest (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
James Duff Lyall (See above for address) TERMINATED: 08/12/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joel Edman (See above for address) TERMINATED: 10/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitra Ebadolahi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah D Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracy Ebanks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) TERMINATED: 05/25/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winslow B Taub (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Munoz Furnish (See above for address) ATTORNEY TO BE NOTICED
Kathleen E Brody (See above for address) ATTORNEY TO BE NOTICED
Neha Jaganathan (See above for address) ATTORNEY TO BE NOTICED
William Bradford Peard (See above for address) ATTORNEY TO BE NOTICED
V.
Defendant

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United States Department of Homeland Security

represented by Eric B Beckenhauer US Deptt of Justice 20 Massachusetts Ave. NW Washington, DC 20530 202−514−3338 Email: eric.beckenhauer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton US Dept of Justice 20 Massachusetts Ave. NW Washington, DC 20001 202−305−8356 Email: emily.s.newton@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Customs and Border Protection

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Office of Border Patrol

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeh Johnson Secretary, United States Department of Homeland Security, in his official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
R Gil Kerlikowske Commissioner, United States Customs & Border Protection, in his official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael J Fisher Chief of the United States Border Patrol, in his official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Jeffrey Self Commander, Arizona Joint Field Command, in his official capacity
Defendant Manuel Padilla, Jr. Chief Patrol Agent−Tucson Sector, in his official capacity
Defendant Roger San−Martin Agent in Charge−Tucson Border Patrol Station, in his official capacity
Defendant Lloyd Easterling Assistant Agent in Charge−Tucson Border Patrol Station, in his official capacity
Defendant J Joyner Border Patrol Agent, in his official capacity
Defendant Rosalinda Huey Border Patrol Agent, in her official capacity

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
N Ballistrea Border Patrol Agent, in her official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
S Spencer Border Patrol Agent, in his official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Defendant
K Riden Border Patrol Agent, in her official capacity

represented by Eric B Beckenhauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Sue Newton (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/20/2014
11/20/2014 11/20/2014
11/20/2014
11/20/2014

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−11084747 filed by Peter Ragan, Leesa Jacobson. (Lyall, James) (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(DLC) (Entered: 11/20/2014)
2 SUMMONS Submitted by Leesa Jacobson, Peter Ragan. (Lyall, James) (Attachments: # 1 Summons, # 2 Summons)(DLC) (Entered: 11/20/2014)
3 Filing fee paid, receipt number 0970−11084747. This case has been assigned to the Honorable Bruce G. Macdonald. All future pleadings or documents should bear the correct case number: 4:14−CV−02485−TUC−BGM. Magistrate Election form attached. (DLC) (Entered: 11/20/2014)
4 Summons Issued as to United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Summons, # 2 Summons)(DLC). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/20/2014)
5 SUMMONS Submitted by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Summons Rosalinda Huey, # 2 Summons Roger San−Martin, # 3 Summons R. Gil Kerlikowske, # 4 Summons N. Ballistrea, # 5 Summons Michael J. Fisher, # 6 Summons Manuel Padilla, Jr., # 7 Summons Lloyd Easterling, # 8 Summons K. Riden, # 9 Summons Jeh Johnson, # 10 Summons Jeffrey Self, # 11 Summons J. Joyner)(Lyall, James) (Entered: 11/20/2014)

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11/21/2014
11/24/2014
12/04/2014 12/04/2014 12/04/2014 12/04/2014 12/04/2014
12/04/2014 12/09/2014 12/09/2014 12/09/2014
12/15/2014 12/17/2014 12/17/2014 12/17/2014

6 Summons Issued as to N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, Roger San−Martin, Jeffrey Self. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(EGP). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/21/2014)
7 Summons Issued as to Lloyd Easterling, S Spencer. (Attachments: # 1 Summons) ***These two summons were not issued in prior batch submitted on 11/20/2014***(KEP). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 11/24/2014)
8 MOTION for Admission Pro Hac Vice as to attorney Winslow B Taub on behalf of plaintiffs Leesa Jacobson and Peter Ragan. (BAS) (Entered: 12/04/2014)
9 MOTION for Admission Pro Hac Vice as to attorney Tracy Ebanks on behalf of plaintiffs Leesa Jacobson and Peter Ragan. (BAS) (Entered: 12/04/2014)
10 MOTION for Admission Pro Hac Vice as to attorney Ethan Forrest on behalf of plaintiffs Leesa Jacobson and Peter Ragan. (BAS) (Entered: 12/04/2014)
PRO HAC VICE FEE PAID. $ 105, receipt number PHX153010 as to Winslow B Taub, Tracy Ebanks, Ethan Forrest. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/04/2014)
11 ORDER pursuant to General Order 09−08 granting 8 Motion for Admission Pro Hac Vice; granting 9 Motion for Admission Pro Hac Vice; granting 10 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/04/2014)
12 Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SGG) (Entered: 12/08/2014)
13 MOTION for Admission Pro Hac Vice as to attorney Christina E Dashe on behalf of plaintiffs Leesa Jacobson, and Peter Ragan. (BAS) (Entered: 12/09/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX153217 as to Christina E Dashe. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/09/2014)
14 ORDER pursuant to General Order 09−08 granting 13 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/09/2014)
15 MOTION for Admission Pro Hac Vice as to attorney Mitra Ebadolahi by Leesa Jacobson. (Ebadolahi, Mitra) (Entered: 12/15/2014)
16 MOTION for Admission Pro Hac Vice as to attorney John David Loy on behalf of plaintiffs Leesa Jacobson, and Peter Ragan. (BAS) (Entered: 12/17/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX153494 as to John David Loy. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/17/2014)
17 ORDER pursuant to General Order 09−08 granting 16 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration

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12/18/2014 12/18/2014 12/18/2014 12/18/2014 12/18/2014 12/18/2014 12/18/2014 12/19/2014 12/19/2014
12/23/2014 12/23/2014
01/06/2015
01/06/2015

to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/17/2014)
18 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Process re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon US Department of Homeland Security c/o United States Attorney John S. Leonardo on November 26, 2014. (Lyall, James) (Entered: 12/18/2014)
19 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Service re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon Jeffrey Self on December 4, 2014. (Lyall, James) (Entered: 12/18/2014)
20 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Service re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon Manuel Padilla, Jr. on December 4, 2014. (Lyall, James) (Entered: 12/18/2014)
21 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Process re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon N. Ballistrea on December 4, 2014. (Lyall, James) (Entered: 12/18/2014)
22 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Service re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon Roger San−Martin on December 4, 2014. (Lyall, James) (Entered: 12/18/2014)
23 SERVICE EXECUTED filed by Leesa Jacobson, Peter Ragan: Affidavit of Process re: Summons, Complaint, Civil Cover Sheet and Consent Form re Magistrate Order upon Rosalinda Huey on December 4, 2014. (Lyall, James) (Entered: 12/18/2014)
24 Service Returned Unexecuted by Leesa Jacobson, Peter Ragan : Summons, Complaint, Consent Form re Magistrate Order as to LLoyd Easterling. (Lyall, James) (Entered: 12/18/2014)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX153556 as to Mitra Ebadolahi. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/19/2014)
25 ORDER pursuant to General Order 09−08 granting 15 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/19/2014)
26 MOTION for Leave to File Excess Pages for Motion for Preliminary Injunction and Supporting Memorandum of Law by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Lyall, James) (Entered: 12/23/2014)
27 FILED at (Doc. 29 )− LODGED Proposed Plaintiffs' Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Attached. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Affidavit Declaration of Tracy Ebanks, # 2 Affidavit Declaration of Peter Ragan, # 3 Affidavit Declaration of Steve McLain, # 4 Text of Proposed Order)(Lyall, James) Modified on 1/6/2015 (ALS). (Entered: 12/23/2014)
28 ORDER that Plaintiffs' 26 Unopposed Motion for Leave to File Brief in Excess of Page Limit is GRANTED. The Clerk of the Court shall file Plaintiffs' 27 Lodged Proposed Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support. Signed by Magistrate Judge Bruce G Macdonald on 1/6/2015.(ALS) (Entered: 01/06/2015)
29 MOTION for Preliminary Injunction and Memorandum of Points and Authorities in Support by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Tracy Ebanks, # 2 Declaration of Peter Ragan, # 3 Declaration of Stephen W. McLain, # 4 Text of Proposed Order)(ALS) (Entered: 01/06/2015)

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01/07/2015 01/09/2015 01/22/2015 01/30/2015 01/30/2015
02/12/2015 02/12/2015 02/27/2015 02/27/2015

30 Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Preliminary Injunction by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 01/07/2015)
31 ORDER denying as Moot 30 Government's Consent Motion for Extension of Time to Respond to Plaintiffs Motion for Preliminary Injunction. Signed by Magistrate Judge Bruce G Macdonald on 1/9/2015. (ALS) (Entered: 01/09/2015)
32 Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Preliminary Injunction , Consent MOTION for Extension of Time to File Answer by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 01/22/2015)
33 *Consent MOTION for Leave to File Excess Pages for Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) *Modified motion type on 2/2/2015 (ALS). (Entered: 01/30/2015)
34 FILED at (Doc. 38 )− LODGED Proposed Proposed Defendants' Opposition to 29 Plaintiffs' Motion for Preliminary Injunction re: 33 Consent MOTION for Leave to File Excess Pages for Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Exhibit Index, # 2 Ex. A − Traffic Control Plan, # 3 Ex. B − Traffic Checkpoint Policy, # 4 Ex. C (part 1 of 3) − San Martin Declaration, # 5 Ex. C (part 2 of 3) − San Martin Declaration, # 6 Ex. C (part 3 of 3) − San Martin Declaration, # 7 Ex. D − Spencer Declaration, # 8 Ex. E − Huey Declaration)(Beckenhauer, Eric) Modified on 2/27/2015 (ALS). (Entered: 01/30/2015)
35 Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SGG) (Entered: 02/12/2015)
36 Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge Macdonald conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post−judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SGG) (Entered: 02/12/2015)
37 ORDER that both of the Government's motions (Doc. 32 & 33 ) are GRANTED. The Clerk of the Court shall file the Government's Lodged: Proposed Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction (Doc. 34) and it is deemed timely filed. IT IS FURTHER ORDERED that oral argument shall be heard in this matter at 10:00 a.m. on Tuesday, April 21, 2015 before the Honorable Bruce G. Macdonald, Courtroom 5C, Evo A. DeConcini U.S. Courthouse, 405 W. Congress Street, Tucson, Arizona. Signed by Magistrate Judge Bruce G Macdonald on 2/27/2015. (ALS) (Entered: 02/27/2015)
38 RESPONSE in Opposition re: 29 MOTION for Preliminary Injunction filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of

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03/09/2015 03/09/2015
03/10/2015 03/11/2015 03/11/2015 03/26/2015
03/31/2015 04/21/2015 05/15/2015 05/18/2015 05/22/2015
05/26/2015

Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Exhibit Index, # 2 Ex. A − Traffic Control Plan, # 3 Ex. B − Traffic Checkpoint Policy, # 4 Ex. C (part 1 of 3) − San Martin Declaration, # 5 Ex. C (part 2 of 3) − San Martin Declaration, # 6 Ex. C (part 3 of 3) − San Martin Declaration, # 7 Ex. D − Spencer Declaration, # 8 Ex. E − Huey Declaration)(ALS) (Entered: 02/27/2015)
39 MOTION for Leave to File Excess Pages for Reply Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Taub, Winslow) (Entered: 03/09/2015)
40 FILED at (Doc. 43 )− LODGED Proposed Reply Brief In Support of Plaintiffs' Motion for Preliminary Injunction re: 39 MOTION for Leave to File Excess Pages for Reply Brief in Support of Plaintiffs' Motion for Preliminary Injunction . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Peter Ragan In Support of Plaintiffs' Reply Brief, # 2 Exhibit 1 (Part 1) to Declaration of Peter Ragan, # 3 Exhibit 1 (Part 2) to Declaration of Peter Ragan)(Taub, Winslow) Modified on 3/11/2015 (ALS). (Entered: 03/09/2015)
41 ORDER that oral argument currently set for 10:00 a.m. on Tuesday, April 21, 2015 before the Honorable Bruce G. Macdonald, shall be held in Courtroom 3C, Evo A. DeConcini U.S. Courthouse, 405 W. Congress Street, Tucson, Arizona. Signed by Magistrate Judge Bruce G Macdonald on 3/10/2015. (ALS) (Entered: 03/10/2015)
42 ORDER granting Plaintiff's 39 Motion. The Clerk of the Court shall file Plaintiffs' Lodged: Proposed Reply Brief in Support of Plaintiffs' Motion for Preliminary Injunction (Doc. 40). FURTHER ORDERED if Plaintiffs have not done so already, they shall submit a courtesy copy to chambers. Signed by Magistrate Judge Bruce G Macdonald on 3/11/2015.(ALS) (Entered: 03/11/2015)
43 REPLY Brief In Support of Plaintiffs' 29 Motion for Preliminary Injunction filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Peter Ragan In Support of Plaintiffs' Reply Brief,, # 2 Exhibit (Part 1) to Declaration of Peter Ragan, # 3 Exhibit (Part 2) to Declaration of Peter Ragan)(ALS) (Entered: 03/11/2015)
44 Consent MOTION for Extension of Time to File Answer by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 03/26/2015)
45 ORDER granting 44 Motion for Extension of Time to Answer. The Government shall answer or otherwise respond to the complaint on or before May 26, 2015. Signed by Magistrate Judge Bruce G Macdonald on 3/30/2015.(ALS) (Entered: 03/31/2015)
46 MINUTE ENTRY for proceedings held before Magistrate Judge Bruce G Macdonald: Oral Argument Hearing held on 4/21/2015. Motions Taken Under Advisement: 29 MOTION for Preliminary Injunction. (Recorded by COURTSMART.) Hearing held 9:57 AM to 11:35 AM. (KAH) (Entered: 04/24/2015)
47 MOTION to Withdraw as Attorney by Leesa Jacobson. (Dashe, Christina) (Entered: 05/15/2015)
48 NOTICE re: of Supplemental Authority by Leesa Jacobson, Peter Ragan re: 29 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit A to Notice of Supplemental Authority)(Taub, Winslow) (Entered: 05/18/2015)
49 Consent MOTION for Extension of Time to File Answer by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 05/22/2015)
50 ORDER granting 47 Motion to Withdraw as Attorney as to attorney Christina E. Dashe. Signed by Magistrate Judge Bruce G Macdonald on 5/26/15. (KAH) (Entered: 05/26/2015)

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 12 of 19

05/29/2015 06/16/2015 07/30/2015 09/09/2015 09/14/2015 10/02/2015 10/13/2015
10/20/2015 10/23/2015
10/23/2015
11/02/2015 11/02/2015 11/13/2015 11/19/2015

51 ORDER granting 49 Motion for Extension of Time to Answer. The Government shall answer or otherwise respond to the complaint within 30 days of this Court's ruling on Plaintiffs' Motion for Preliminary Injunction (Doc. 29 ). Signed by Magistrate Judge Bruce G Macdonald on 5/29/15. (KAH) (Entered: 05/29/2015)
52 NOTICE re: Notice of Name Change by Leesa Jacobson, Peter Ragan . (Ebanks, Tracy) (Entered: 06/16/2015)
NOTICE of request for e−notices by Emily Sue Newton. (Newton, Emily) (Entered: 07/30/2015)
53 MOTION to Withdraw as Attorney Joel Edman by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Lopez, Victoria) (Entered: 09/09/2015)
54 ORDER denying 29 Motion for Preliminary Injunction. Signed by Magistrate Judge Bruce G Macdonald on 9/14/15. (See attached PDF for complete information.) (KAH) (Entered: 09/14/2015)
55 ORDER granting 53 Motion to Withdraw as Attorney. Attorney Joel Edman is relieved of any further duties and responsibilities for the legal representation of Plaintiffs Leesa Jacobson and Peter Ragan in this action. Signed by Magistrate Judge Bruce G Macdonald on 10/2/15. (KAH) (Entered: 10/02/2015)
56 Consent MOTION for Extension of Time to File Answer by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 10/13/2015)
57 ORDER granting 56 Motion for Extension of Time to Answer. The Government shall answer or otherwise respond to the complaint on or before October 23, 2015. Signed by Magistrate Judge Bruce G Macdonald on 10/23/15. (KAH) (Entered: 10/20/2015)
58 Consent MOTION for Leave to File Excess Pages for Motion to Dismiss or, in the alternative, for Summary Judgment by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 10/23/2015)
59 Document filed at doc. 61 . Lodged Proposed Motion to Dismiss or, in the alternative, for Summary Judgment. Document to be filed by Clerk if 58 Motion or Stipulation for Leave to File or Amend is granted. Filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Exhibit Index, # 2 Statement of Facts)(Beckenhauer, Eric) *Modified to link to motion on 10/26/2015 (BAC). Modified on 11/2/2015 (BAC). (Entered: 10/23/2015)
60 ORDER GRANTING 58 Motion for Leave to File Excess Pages. The Clerk of the Court shall file the Government's Lodged, Proposed Defendants' 59 Motion to Dismiss or, in the Alternative, for Summary Judgment and Supporting Memorandum. Signed by Magistrate Judge Bruce G Macdonald on 10/30/15.(BAC) (Entered: 11/02/2015)
61 Defendants' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT and SUPPORTING MEMORANDUM by defendants. (Attachments: # 1 Exhibit Index, # 2 Statement of Facts)(BAC) (Entered: 11/02/2015)
62 Consent MOTION for Extension of Time to File Response/Reply −− Plaintiffs' Consent Motion for Extension of Time to File Opposition Brief, by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Forrest, Ethan) (Entered: 11/13/2015)
63 ORDER GRANTING 62 Motion for Extension of Time to File Response/Reply re: 61 MOTION to Dismiss Case MOTION for Summary Judgment. IT IS ORDERED

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 13 of 19

12/11/2015 12/16/2015 12/16/2015 12/16/2015
12/23/2015 01/04/2016 01/04/2016
01/05/2016 02/05/2016 02/05/2016 02/05/2016 02/05/2016

Plaintiffs shall file their Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment on or before 12/16/15. Signed by Magistrate Judge Bruce G Macdonald on 11/19/15.(BAC) (Entered: 11/19/2015)
64 Consent MOTION for Extension of Time to File Response/Reply Plaintiffs' Consent Motion for Extension of Time to File Opposition Brief (Second Request) by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Forrest, Ethan) (Entered: 12/11/2015)
65 MOTION for Admission Pro Hac Vice as to attorney Neha Jaganathan on behalf of Leesa Jacobson and Peter Ragan. (BAS) (Entered: 12/16/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX166362 as to Neha Jaganathan. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/16/2015)
66 ORDER pursuant to General Order 09−08 granting 65 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e−mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/16/2015)
67 ORDER GRANTING Plaintiffs 64 Motion for Extension of Time to File Opposition Brief as to 61 MOTION to Dismiss or, in the Alternative, for Summary Judgment. Plaintiffs shall file their Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment on or before 1/4/16. Signed by Magistrate Judge Bruce G Macdonald on 12/23/15.(BAC) (Entered: 12/23/2015)
68 MOTION for Leave to File Excess Pages for Opposition to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Taub, Winslow) (Entered: 01/04/2016)
69 *Documents filed at docs 72 and 73 , pursuant to Order 74 . LODGED Proposed Plaintiffs' Opposition to Defendants' Motion to Dismiss or, in the Alternative for Summary Judgment re: 68 MOTION for Leave to File Excess Pages for Opposition to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Plaintiffs' Controverting Statement of Facts, # 2 Declaration of Winslow Taub, # 3 Declaration of Peter Ragan, # 4 Text of Proposed Order)(Taub, Winslow) Modified on 2/5/2016 (BAC). (Entered: 01/04/2016)
70 Additional Attachments to Main Document re: 69 Lodged Proposed Document Certificate of Service by Plaintiffs Leesa Jacobson, Peter Ragan. (Taub, Winslow) (Entered: 01/05/2016)
71 ORDER GRANTING Plaintiffs' 68 Motion for Leave to File Excess Pages. The Clerk of the Court shall file the Plaintiffs' 61 Lodged: Proposed Plaintiffs' Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment and Supporting Memorandum. Signed by Magistrate Judge Bruce G Macdonald on 2/4/16.(BAC) (Entered: 02/05/2016)
72 Plaintiffs' Opposition to Defendants' 68 Motion to Dismiss or, in the Alternative for Summary Judgment filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Winslow Taub, # 2 Declaration of Peter Ragan, # 3 Text of Proposed Order)(BAC) (Entered: 02/05/2016)
73 STATEMENT OF FACTS re: 72 Plaintiffs' Response in Opposition to Motion, Response to Motion for Summary Judgment by Plaintiffs Leesa Jacobson, Peter Ragan. (BAC) (Entered: 02/05/2016)
74 AMENDED ORDER (Amended as to document number to be filed only): IT IS ORDERED that the Plaintiffs' 68 MOTION is GRANTED. The Clerk of the Court shall file the Plaintiffs' 69 Lodged, Proposed Plaintiffs' Opposition to Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment and Supporting Memorandum. Signed by Magistrate Judge Bruce G Macdonald on 2/4/16.(BAC)

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 14 of 19

02/22/2016 03/07/2016 03/22/2016 03/22/2016
03/24/2016
04/07/2016 04/11/2016 04/11/2016 04/27/2016 05/23/2016

(Entered: 02/05/2016)
75 Consent MOTION for Extension of Time to File Response/Reply in Support of 61 Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 02/22/2016)
76 ORDER granting 75 Motion for Extension of Time to File Response/Reply re: 61 MOTION to Dismiss Case MOTION for Summary Judgment. Defendants shall file their Reply in Support of Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment on or before March 22, 2016. Signed by Magistrate Judge Bruce G Macdonald on 3/7/16. (KAH) (Entered: 03/07/2016)
77 Consent MOTION for Leave to File Excess Pages in Reply to Plaintiffs' opposition to Defendants' motion to dismiss, or, in the alternative, for summary judgment by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Newton, Emily) (Entered: 03/22/2016)
78 REPLY to Response to Motion re: 61 MOTION to Dismiss Case MOTION for Summary Judgment filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Defs.' Resp. to Pls.' Rule 56(d) Decl., # 2 Attach. 1 to Defs.' Resp. to Pls.' Rule 56(d) Decl., # 3 Attach. 2 to Defs.' Resp. to Pls.' Rule 56(d) Decl.)(Newton, Emily) (Entered: 03/22/2016)
79 REPLY to Response to Motion re: 61 MOTION to Dismiss Case MOTION for Summary Judgment Corrected filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Defs.' Resp. to Pls.' Rule 56(d) Decl., # 2 Attach. 1 to Defs.' Resp. to Pls.' Rule 56(d) Decl., # 3 Attach. 2 to Defs.' Resp. to Pls.' Rule 56(d) Decl.)(Newton, Emily) (Entered: 03/24/2016)
80 Consent MOTION for Leave to File Reply to Defendants' Response to Plaintiffs' Rule 56(d) Declaration by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Taub, Winslow) (Entered: 04/07/2016)
81 ORDER granting 77 Motion for Leave to File Excess Pages in Reply to Plaintiffs' opposition to Defendants' motion to dismiss, or, in the alternative, for summary judgment. Defendants Corrected Reply in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. 79 ) is deemed properly filed. Signed by Magistrate Judge Bruce G Macdonald on 4/8/16. (KAH) (Entered: 04/11/2016)
82 ORDER granting 80 Motion for Leave to File Reply to Defendants' Response to Plaintiffs' Rule 56(d) Declaration. Plaintiffs shall file their Reply regarding their Rule 56(d) Declaration on or before April 27, 2016. Signed by Magistrate Judge Bruce G Macdonald on 4/8/16. (KAH) (Entered: 04/11/2016)
83 REPLY re: 78 Reply to Response to Motion Plaintiffs' Reply to Defendants' Response to Plaintiffs' Rule 56(D) Declaration by Plaintiffs Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Winslow Taub)(Taub, Winslow) (Entered: 04/27/2016)
84 MOTION to Withdraw as Attorney Victoria Lopez by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Pochoda, Daniel) (Entered: 05/23/2016)

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 15 of 19

05/25/2016 07/19/2016 08/04/2016 08/09/2016 08/12/2016
09/02/2016 09/21/2016
09/22/2016 09/30/2016
09/30/2016 11/29/2016 11/30/2016 11/30/2016 12/29/2016 01/12/2017

85 ORDER granting 84 Motion to Withdraw as Attorney Victoria Lopez. Victoria Lopez is relieved of any further duties and responsibilities for the legal representation of Plaintiffs Leesa Jacobson and Peter Ragan in this action. Signed by Magistrate Judge Bruce G Macdonald on 5/25/2016.(KEP) (Entered: 05/25/2016)
86 MOTION to Withdraw as Attorney James Duff Lyall by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Pochoda, Daniel) (Entered: 07/19/2016)
87 NOTICE of Appearance by Kathleen E Brody on behalf of Leesa Jacobson, Peter Ragan. (Brody, Kathleen) (Entered: 08/04/2016)
88 NOTICE of Appearance by Brenda Munoz Furnish on behalf of Leesa Jacobson, Peter Ragan. (Furnish, Brenda) (Entered: 08/09/2016)
89 ORDER granting 86 Plaintiff's Motion to Withdraw as Attorney. James Duff Lyall formerly of the ACLU Foundation of Arizona is relieved of any further duties and responsibilities for the legal representation of Plaintiffs in this action and is removed as counsel of record for the Plaintiffs. Signed by Magistrate Judge Bruce G Macdonald on 8/11/2016. (KEP) (Entered: 08/12/2016)
90 ORDER: IT IS ORDERED that oral argument shall be held at 1:00 p.m. on 9/22/16 before the Judge Bruce G. Macdonald, re: 61 Motion to Dismiss or, in the Alternative, for Summary Judgment. Signed by Magistrate Judge Bruce G Macdonald on 9/2/16.(BAC) (Entered: 09/02/2016)
91 ORDER: Oral argument on Defendants' 61 Motion to Dismiss or, in the Alternative, for Summary Judgment is currently set for 1:00 p.m. on 9/22/16 before Judge Bruce G. Macdonald. IT IS ORDERED that the hearing shall be RESET AS TO LOCATION ONLY, argument shall be heard in Courtroom 6B, Evo A. DeConcini US Courthouse, 405 West Congress Street, Tucson, Arizona. Signed by Magistrate Judge Bruce G Macdonald on 9/21/16.(BAC) (Entered: 09/21/2016)
92 MINUTE ENTRY: Oral argument is heard regarding Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. 61 ). The Court takes the matter UNDER ADVISEMENT. (Court Reporter Aaron LaDuke.) Hearing held 1:00 PM to 2:30 PM.(DLC) (Entered: 10/03/2016)
93 ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 61 ) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 9/30/2016.(DLC) (Entered: 10/03/2016)
94 CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that, pursuant to the Court's Order filed September 30, 2016, which granted the Motion for Summary Judgment, file is closed in this matter. (DLC) (Entered: 10/03/2016)
95 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 93 Order, 94 Clerk's Judgment by Leesa Jacobson, Peter Ragan. Filing fee received: $ 505.00, receipt number 0970−13655409. (Taub, Winslow) (Entered: 11/29/2016)
96 USCA Case Number re: 95 Notice of Appeal. Case number 16−17199, 9th CCA. (BAC) (Entered: 12/05/2016)
97 TIME SCHEDULE ORDER of USCA re: 95 Notice of Appeal filed by Leesa Jacobson, Peter Ragan. (BAC) (Entered: 12/05/2016)
98 TRANSCRIPT REQUEST by Leesa Jacobson, Peter Ragan for proceedings held on 4/21/2015 and 9/22/2016, Magistrate Judge Bruce G Macdonald hearing judge(s) re: 95 Notice of Appeal. (Forrest, Ethan) (Entered: 12/29/2016)
99 TRANSCRIPT of MOTION FOR PRELIMINARY INJUNCTION for date of 04/21/2015 before Judge BRUCE G. MACDONALD re: 95 Notice of Appeal. Transcriber Aaron H. LaDuke. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/2/2017. Redacted Transcript Deadline set for 2/13/2017. Release of Transcript Restriction set for

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 16 of 19

01/12/2017
04/04/2017 04/09/2018 04/09/2018 06/05/2018 06/27/2018 06/29/2018
07/20/2018 07/26/2018
08/01/2018 08/07/2018 08/07/2018 08/07/2018

4/12/2017. (CSL) (Entered: 01/12/2017)
100 TRANSCRIPT OF MOTION HEARING for date of 09/22/2016 before Judge BRUCE G. MACDONALD re: 95 Notice of Appeal. Court Reporter Aaron H. LaDuke. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/2/2017. Redacted Transcript Deadline set for 2/13/2017. Release of Transcript Restriction set for 4/12/2017. (CSL) (Entered: 01/12/2017)
101 NOTICE of Attorney Withdrawal Daniel J. Pochoda filed by Kathleen E Brody. (Brody, Kathleen) (Entered: 04/04/2017)
102 MANDATE of USCA re: 95 Notice of Appeal filed by Leesa Jacobson, Peter Ragan. VACATED and REMANDED. (Attachments: # 1 Opinion, # 2 NDA)(BAC) (Entered: 04/09/2018)
103 NOTICE of Appearance by William Bradford Peard on behalf of Leesa Jacobson, Peter Ragan. (Peard, William) (Entered: 04/09/2018)
104 ORDER: This matter having been REMANDED by the Ninth Circuit Court of Appeals (Doc. 102), IT IS ORDERED that a status conference is set for 2:30 p.m. on 6/27/18 before Judge Bruce G. Macdonald. If counsel wish to appear telephonically, please contact chambers. Signed by Magistrate Judge Bruce G Macdonald on 6/4/18.(BAC) (Entered: 06/05/2018)
105 MINUTE ENTRY for proceedings held before Magistrate Judge Bruce G Macdonald: Status Conference held on 6/27/2018. IT IS ORDERED that Defendants shall file their Answer on or before 7/27/18. A formal order setting the Rule 16, Federal Rules of Civil Procedure, scheduling conference shall be filed separately. (Recorded by COURTSMART.) Hearing held 2:30 PM to 2:43 PM.(BAC) (Entered: 06/29/2018)
106 AMENDED by doc. 107 as to caption only. ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE: A Case Management Conference is set for 8/14/18, at 10:00 a.m., before Judge Bruce G. Macdonald. If out−of−state counsel wish to appear telephonically, please contact chambers on or before 8/10/18. IT IS FURTHER ORDERED that Counsel shall file with the court, on or before 8/7/18, a Joint Report reflecting the results of their meeting and outlining the discovery plan. (See attached PDF for complete information). Signed by Magistrate Judge Bruce G Macdonald on 6/27/18.(BAC) Modified on 7/20/2018 (BAC). (Entered: 06/29/2018)
107 AMENDED ORDER SETTING RULE 16 CASE MANAGEMENT CONFERENCE (Amended as to caption only). (See attached PDF for complete information). Signed by Magistrate Judge Bruce G Macdonald on 7/18/18.(BAC) (Entered: 07/20/2018)
108 Consent MOTION for Extension of Time to File Answer by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 07/26/2018)
109 ANSWER to 1 Complaint by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol.(Beckenhauer, Eric) (Entered: 08/01/2018)
110 REPORT of Rule 26(f) Planning Meeting by Leesa Jacobson, Peter Ragan. (Taub, Winslow) (Entered: 08/07/2018)
111 NOTICE re: Service of Plaintiffs' Rule 26 Initial Disclosures by Leesa Jacobson, Peter Ragan . (Taub, Winslow) (Entered: 08/07/2018)
112 NOTICE re: Service of Defendants' Initial Disclosures by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer,

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 17 of 19

08/09/2018 08/14/2018
08/17/2018 08/20/2018 08/21/2018 08/23/2018
09/06/2018 09/13/2018 09/14/2018
11/30/2018 12/12/2018 12/13/2018

United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol . (Beckenhauer, Eric) (Entered: 08/07/2018)
113 ORDER granting 108 Government's Consent Motion for Extension of Time to Answer. IT IS FURTHER ORDERED that the Government's Answer (Doc. 109 ) filed on August 1, 2018 is deemed timely. Signed by Magistrate Judge Bruce G Macdonald on 8/8/2018. (KEP) (Entered: 08/09/2018)
114 MINUTE ENTRY for proceedings held before Magistrate Judge Bruce G Macdonald: Scheduling Conference held on 8/14/2018. The Court will incorporate the Parties' stipulations regarding electronically stored information into its Order. IT IS ORDERED that the scope of discovery shall be consonant with the Plaintiffs' claims and Defendants' affirmative defenses in this matter. Written discovery requests shall be governed by the Federal Rules of Civil Procedure. A formal written order will follow. (Recorded by COURTSMART.) Hearing held 10:00 AM to 10:41 AM.(BAC) (Entered: 08/17/2018)
115 (AMENDED BY ORDER 117 ) SCHEDULING ORDER: Discovery due 2/11/2019; Dispositive motions due 5/13/2019; Joint Proposed Pretrial Order due 6/12/2019; Joint Settlement Status Report due 12/1/2018, and every 90 days thereafter. (See attached PDF for complete information). Signed by Magistrate Judge Bruce G Macdonald on 8/16/18.(BAC) Modified on 8/21/2018 (KEP). (Entered: 08/17/2018)
116 TRANSCRIPT REQUEST by Leesa Jacobson, Peter Ragan for proceedings held on August 14, 2018, Magistrate Judge Bruce G Macdonald hearing judge(s). (Forrest, Ethan) (Entered: 08/20/2018)
117 AMENDED SCHEDULING ORDER (Amended as to Discovery Deadline Only): Discovery due by 4/12/2019. This order contemplates that each party will conduct discovery in such a manner as to complete, within the deadline, any and all discovery. Signed by Magistrate Judge Bruce G Macdonald on 8/20/2018. (See attached Order for details) (KEP) (Entered: 08/21/2018)
118 TRANSCRIPT of SCHEDULING CONFERENCE held on 08/14/2018, before Judge BRUCE G. MACDONALD. Transcriber Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/13/2018. Redacted Transcript Deadline set for 9/24/2018. Release of Transcript Restriction set for 11/21/2018. (CSM) (Entered: 08/23/2018)
119 Joint MOTION for Entry of Fed. R. Evid. 502(d) Order by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order)(Taub, Winslow) (Entered: 09/06/2018)
NOTICE of request for e−notices by Michael A. Ambri. (Ambri, Michael) (Entered: 09/13/2018)
120 ORDER granting 119 Parties' Joint Motion for Entry of Fed. R. Evid. 502(d) Order. NO WAIVER BY DISCLOSURE. The production of a document, or part of a document, shall not constitute a waiver of any privilege or protection as to any portion of that document, or as to any undisclosed privileged or protected communications or information concerning the same subject matter, in this or in any other proceeding. Signed by Magistrate Judge Bruce G Macdonald on 9/13/2018. (See attached Order for details) (KEP) (Entered: 09/14/2018)
121 STATUS REPORT −− Joint Settlement Status Report by Leesa Jacobson. (Taub, Winslow) (Entered: 11/30/2018)
122 ORDER that a telephonic Status Conference shall be held on Thursday, 12/13/2018 at 02:00 PM before Magistrate Judge Bruce G Macdonald (see attached Order for complete details). Signed by Magistrate Judge Bruce G Macdonald on 12/12/2018. (MFR) (Entered: 12/12/2018)
124 MINUTE ENTRY for proceedings held before Magistrate Judge Bruce G Macdonald: Telephone Conference held on 12/13/2018. The parties agree to continue to work

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 18 of 19

12/19/2018 12/28/2018 01/04/2019
01/07/2019 01/11/2019
01/17/2019 01/29/2019 01/30/2019 02/13/2019 02/15/2019 02/25/2019
02/28/2019

toward agreement on the protective order. The parties agree to submit a stipulation to extend the current scheduling deadlines. The parties begin to discuss the relevant time period for discovery requests; however, the Court acknowledges that this matter, including issues related to it, should be briefed. (Recorded by COURTSMART.) Hearing held 2:05 PM to 3:15 PM.(KEP) (Entered: 12/21/2018)
123 STIPULATION for Entry of Protective Order by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Text of Proposed Order −− [Proposed] Protective Order)(Forrest, Ethan) (Entered: 12/19/2018)
125 PROTECTIVE ORDER granting 123 parties' Stipulation. Signed by Magistrate Judge Bruce G Macdonald on 12/28/2018. (see Order for complete details) (SIB) (Entered: 12/28/2018)
126 Consent MOTION to Stay Proceedings in Light of Lapse in Appropriations by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 01/04/2019)
127 TRANSCRIPT REQUEST by Leesa Jacobson, Peter Ragan for proceedings held on 12/13/2018, Magistrate Judge Bruce G Macdonald hearing judge(s). (Forrest, Ethan) (Entered: 01/07/2019)
128 TRANSCRIPT of TELEPHONIC STATUS CONFERENCE held on 12/13/2018, before Judge BRUCE G. MACDONALD. Transcriber Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/1/2019. Redacted Transcript Deadline set for 2/11/2019. Release of Transcript Restriction set for 4/11/2019. (CSM) (Entered: 01/11/2019)
129 ORDER granting 126 Motion to Stay of Proceedings in Light of Lapse of Appropriations. Further ordered that counsel for the Government shall file a Notice of Resumed Government Activity within 5 business days of the United States Department of Justice being funded and counsel's returning to work. Signed by Magistrate Judge Bruce G Macdonald on 1/16/2019. (BAR) (Entered: 01/17/2019)
Remark: Pro Hac Vice Motion granted for Sarah Thompson on behalf of Plaintiffs Leesa Jacobson and Peter Ragan. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MSA) (Entered: 01/29/2019)
130 NOTICE re: Restoration of Appropriations by United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol . (Newton, Emily) (Entered: 01/30/2019)
Remark: Pro hac vice motion granted for Sarah Guerrero on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/13/2019)
131 Joint MOTION for Extension of Time to file Joint Proposed Schedule by United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Newton, Emily) (Entered: 02/15/2019)
132 Joint MOTION for Extension of Time to file Joint Proposed Schedule by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Text of Proposed Order)(Beckenhauer, Eric) (Entered: 02/25/2019)
133 STATUS REPORT −− Joint Settlement Status Report by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland

Case: 4:14-cv-02485-BGM As of: 04/15/2019 07:28 AM MST 19 of 19

03/01/2019 03/01/2019
03/01/2019 03/15/2019 03/22/2019 04/03/2019

Security, United States Office of Border Patrol. (Beckenhauer, Eric) (Entered: 02/28/2019)
134 ORDER granting 131 Motion for Extension of Time Deadline ; granting 132 Motion for Extension of Time Deadline. IT IS FURTHER ORDERED that the joint proposed schedule for the remainder of the litigation in this case is due on March 1, 2019. Signed by Magistrate Judge Bruce G Macdonald on 2/28/2019. (KEP) (Entered: 03/01/2019)
135 First MOTION to Compel Discovery by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Affidavit Declaration of W. Taub ISO Motion to Compel, # 2 Exhibit Ex. A to Taub Decl., # 3 Exhibit Ex. B to Taub Decl., # 4 Exhibit Ex. C to Taub Decl., # 5 Exhibit Ex. D to Taub Decl., # 6 Exhibit Ex. E to Taub Decl., # 7 Exhibit Ex. F to Taub Decl., # 8 Exhibit Ex. G to Taub Decl., # 9 Exhibit Ex. H to Taub Decl., # 10 Exhibit Ex. I to Taub Decl., # 11 Exhibit Ex. J to Taub Decl., # 12 Exhibit Ex. K to Taub Decl., # 13 Exhibit Ex. L to Taub Decl., # 14 Rule 37.1 Statement ISO Plaintiffs' Motion to Compel, # 15 Proposed Order)(Forrest, Ethan) (Entered: 03/01/2019)
136 STATUS REPORT and Proposed Schedules by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Plaintiffs' Proposed Order, # 2 Defendants' Proposed Order)(Forrest, Ethan) (Entered: 03/01/2019)
137 RESPONSE in Opposition re: 135 First MOTION to Compel Discovery filed by N Ballistrea, Lloyd Easterling, Michael J Fisher, Rosalinda Huey, Jeh Johnson, J Joyner, R Gil Kerlikowske, Manuel Padilla, Jr, K Riden, Roger San−Martin, Jeffrey Self, S Spencer, United States Customs and Border Protection, United States Department of Homeland Security, United States Office of Border Patrol. (Attachments: # 1 Ex. A − Dismuke Decl., # 2 Ex B, # 3 Ex. C)(Beckenhauer, Eric) (Entered: 03/15/2019)
138 REPLY to Response to Motion re: 135 First MOTION to Compel Discovery filed by Leesa Jacobson, Peter Ragan. (Attachments: # 1 Declaration of Sarah Guerrero in Support of Reply ISO Plaintiffs' Motion to Compel)(Taub, Winslow) (Entered: 03/22/2019)
139 ORDER Dispositive motions due by 11/13/2019. Joint Proposed Pretrial Order due by 12/12/2019. Signed by Magistrate Judge Bruce G Macdonald on 4/3/2019. (See attached Order for details) (KEP) (Entered: 04/03/2019)

 
 Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 1 of 25

1 Daniel J. Pochoda (Bar No. 021979) James Duff Lyall (Bar No. 330045)**
2 Victoria Lopez (Bar No. 330042) Joel Edman (Bar No. 031324)
3 ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235
4 Phoenix, AZ 85014 T: (602) 650-1854
5 F: (602) 650-1376 dpochoda@acluaz.org
6 jlyall@acluaz.org vlopez@acluaz.org
7 jedman@acluaz.org

David Loy* Mitra Ebadolahi* ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 T: (619) 232-2121 F: (619) 232-0036 davidloy@aclusandiego.org mebadolahi@aclusandiego.org

8 * Pro hac vice motions forthcoming **Admitted pursuant to Ariz. Sup. Ct. R.
9 38(f)

10 Attorneys for Plaintiffs

11 (Additional Counsel On Subsequent Pages)
12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15 16 17 18 19 20 21

LEESA JACOBSON; PETER RAGAN,
Plaintiffs v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS & BORDER PROTECTION; UNITED STATES OFFICE OF BORDER PATROL; JEH JOHNSON, Secretary, United States Department of Homeland Security, in his official capacity; R. GIL KERLIKOWSKE, Commissioner, United States Customs & Border Protection, in his official

) )

CASE NO.:

) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF PLAINTIFFS’ FIRST AMENDMENT RIGHTS

)

)

22 23 24

capacity; MICHAEL J. FISHER, Chief of the

)

United States Border Patrol, in his official capacity; JEFFREY SELF, Commander, Arizona Joint Field Command, in his official capacity; MANUEL PADILLA, JR., Chief Patrol Agent-Tucson Sector,

) ) )

in his official capacity; ROGER SAN-MARTIN, )

25 26

Agent in Charge-Tucson Border Patrol Station, in his official capacity; LLOYD EASTERLING, Assistant Agent in Charge-Tucson Border Patrol Station, in his official capacity; BORDER PATROL

) ) )

27

AGENT J. JOYNER, in his official capacity; BORDER PATROL AGENT ROSALINDA

) )

28 HUEY, in her official capacity; BORDER

SF: 204613-4

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 2 of 25

1 PATROL AGENT N. BALLISTREA, in her official capacity; BORDER PATROL AGENT S.
2 SPENCER, in his official capacity; BORDER PATROL AGENT K. RIDEN, in her official

) ) )

3 capacity

)

4

Defendants.

) )

5

)

)

6

)

7

)

8 Winslow Taub* Tracy Ebanks*
9 Ethan Forrest* Covington & Burling LLP
10 1 Front Street San Francisco, CA 94111-5356
11 T: (415) 591-6000 F: (415) 591-6091
12 wtaub@cov.com tebanks@cov.com
13 eforrest@cov.com

14 Christina E. Dashe* Covington & Burling LLP
15 9191 Towne Centre Drive, 6th Floor San Diego CA 92122
16 T: (858) 678-1800 F: (858) 678-1600
17 cdashe@cov.com

18 * Pro hac vice motions forthcoming 19

20

21

22

23

24

25

26

27

28

ii

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 3 of 25

1

1. This action is brought to vindicate Plaintiffs’ First Amendment right to

2 engage in political speech in a public forum—specifically, to protest, observe, and record

3 law enforcement activity in their community.

4

2. In February 2014, Plaintiffs, along with other members of the Arivaca

5 community organization People Helping People, initiated a “checkpoint monitoring

6 campaign” to protest the U.S. Border Patrol checkpoint on Arivaca Road in Amado,

7 Arizona, and to observe, photograph, and video record the actions of Border Patrol agents

8 at the checkpoint from a public right-of-way adjacent to the checkpoint. The campaign is

9 the culmination of local residents’ growing concern about Border Patrol activities in their

10 community, including harassment and civil rights violations by federal agents at the

11 checkpoint.

12

3. In response to the Arivaca residents’ campaign, Border Patrol agents

13 unconstitutionally interfered with Plaintiffs’ speech and retaliated against them by: barring

14 Plaintiffs from the public right-of-way adjacent to the checkpoint; requiring them and

15 others monitoring the checkpoint with them to remain at an unreasonably great distance

16 from the checkpoint; obstructing Plaintiffs’ view by parking vehicles directly in the way;

17 leaving parked vehicles running next to the checkpoint monitors for hours at a time so that

18 the monitors would suffer from noxious fumes emissions; and threatening Plaintiffs with

19 arrest, while allowing individuals who supported Defendants the same access to the public

20 right-of-way that Defendants denied to Plaintiffs and other PHP monitors.

21

4. In continuing these actions, Defendants are violating Plaintiffs’ First

22 Amendment rights and chilling their present and future exercise of these rights. Judicial

23 intervention is required to end the Defendants’ ongoing interference with Plaintiffs’

24 freedom of speech and retaliation against Plaintiffs for exercising their First Amendment

25 rights, and to prevent the ongoing irreparable harms to Plaintiffs resulting from these First

26 Amendment violations.

27

JURISDICTION AND VENUE

28

5. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

1

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 4 of 25

1

6. The Court may grant declaratory and injunctive relief for the constitutional

2 violations alleged here under 5 U.S.C. § 702, 28 U.S.C. §§ 2201(a) and 2202, and/or

3 Federal Rules of Civil Procedure 57 and 65.

4

7. The United States and/or its officers or employees acting in their official

5 capacities have waived sovereign immunity against actions seeking relief other than

6 money damages. 5 U.S.C. § 702.

7

8. Venue is proper in the District of Arizona under 28 U.S.C. §§1391(b) and

8 (e), because the events that give rise to this action occurred within this district, and

9 because one or more plaintiffs reside in this district.

10

PARTIES

11

9. Plaintiff Leesa Jacobson is a resident of Arivaca, Arizona and a member of

12 People Helping People (“PHP”). Ms. Jacobson has volunteered as a PHP checkpoint

13 monitor on multiple occasions since the initiation of PHP’s checkpoint monitoring

14 campaign, and continues to volunteer in that capacity.

15

10. Plaintiff Peter Ragan is a resident of Arivaca, Arizona and a member of

16 PHP. Mr. Ragan has volunteered as a PHP checkpoint monitor on multiple occasions

17 since the initiation of PHP’s checkpoint monitoring campaign, and continues to volunteer

18 in that capacity.

19

11. Defendant Department of Homeland Security (“DHS”) is a Cabinet-level

20 department that is responsible for the coordination and unification of national security

21 efforts. Defendant DHS has authority over policies, procedures, and practices relating to

22 the operation of U.S. Border Patrol interior vehicle checkpoints.

23

12. Defendant United States Customs & Border Protection (“CBP”) is an

24 agency within DHS. Defendant CBP has authority over policies, procedures, and practices

25 relating to the operation of Border Patrol interior vehicle checkpoints.

26

13. Defendant Office of Border Patrol (“Border Patrol”) is a sub-agency within

27 CBP. Border Patrol is a federal law enforcement agency responsible for the enforcement

28 of the laws and regulations governing the admission of foreign-born persons to the United

2

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 5 of 25

1 States. Border Patrol has responsibility for and oversight over policies, procedures, and

2 practices relating to the operation of Border Patrol interior vehicle checkpoints.

3

14. Defendant Jeh Johnson is the Secretary of Homeland Security, vested with

4 all functions of all officers, employees, and organizational units of DHS. Defendant

5 Johnson has authority over all DHS policies, procedures, and practices relating to Border

6 Patrol interior checkpoint operations. Defendant Johnson is sued in his official capacity.

7

15. Defendant R. Gil Kerlikowske is Commissioner of CBP. In that capacity,

8 Defendant Kerlikowske has authority over all CBP policies, procedures, and practices

9 relating to Border Patrol interior checkpoint operations. Defendant Kerlikowske is sued in

10 his official capacity.

11

16. Defendant Michael J. Fisher is Chief of the Border Patrol. In that capacity,

12 Defendant Fisher has direct responsibility for and oversight over Border Patrol policies,

13 procedures, and practices relating to Border Patrol interior checkpoint operations.

14 Defendant Fisher is sued in his official capacity.

15

17. Defendant Jeffrey Self is Commander of the Arizona Joint Field Command.

16 In that capacity, Defendant Self has direct responsibility for and oversight over Tucson

17 Sector Border Patrol policies, procedures, and practices relating to Border Patrol interior

18 checkpoint operations in Tucson Sector. Defendant Self is sued in his official capacity

19

18. Defendant Manuel Padilla, Jr. is the Chief Patrol Agent for the Tucson

20 Sector of the Border Patrol. In that capacity, Defendant Padilla has direct responsibility

21 for and oversight over Tucson Sector Border Patrol policies, procedures, and practices

22 relating to Border Patrol interior checkpoint operations in Tucson Sector. Defendant

23 Padilla is sued in his official capacity.

24

19. Defendant Roger San-Martin is Agent in Charge of Tucson Border Patrol

25 Station. In that capacity, Defendant San-Martin has direct responsibility for and oversight

26 over Border Patrol policies, procedures, and practices relating to Border Patrol interior

27 checkpoint operations in Tucson Sector. Defendant San-Martin is sued in his official

28 capacity.

3

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 6 of 25

1

20. Defendant Lloyd Easterling is Assistant Agent in Charge of Tucson Border

2 Patrol Station. In that capacity, Defendant Easterling has direct responsibility for and

3 oversight over Border Patrol policies, procedures, and practices relating to Border Patrol

4 interior checkpoint operations in Tucson Sector. Defendant Easterling is sued in his

5 official capacity.

6

21. Defendant Border Patrol Agent J. Joyner is a Border Patrol Agent stationed

7 in Tucson Sector. Defendant Joyner is sued in his official capacity.

8

22. Defendant Border Patrol Agent Rosalinda Huey is a Border Patrol Agent

9 stationed in Tucson Sector. Defendant Huey is sued in her official capacity.

10

23. Defendant Border Patrol Agent N. Ballistrea is a Border Patrol Agent

11 stationed in Tucson Sector. Defendant Ballistrea is sued in her official capacity.

12

24. Defendant Border Patrol Agent S. Spencer is a Border Patrol Agent

13 stationed in Tucson Sector. Defendant Spencer is sued in his official capacity.

14

25. Defendant Border Patrol Agent K. Riden is a Border Patrol Agent stationed

15 in Tucson Sector. Defendant Riden is sued in her official capacity.

16

FACTS

17

26. Border Patrol operates an interior checkpoint on Arivaca Road in Amado,

18 Arizona (“Arivaca Road checkpoint”).

19

27. Arivaca Road is a paved two-lane county road that runs from Arivaca,

20 Arizona, a town of 700 people, approximately twenty miles east to Amado, Arizona, a

21 town of 300 people.

22

28. The Arivaca Road checkpoint is located in a rural area surrounded by

23 farmland and private residences, approximately one mile west of Amado and twenty-five

24 miles north of the U.S.-Mexico border. The roadside of Arivaca Road is unpaved and

25 designated as a public right-of-way.

26

29. The Arivaca Road checkpoint consists of a small temporary shelter on the

27 south side of the road, from which agents conduct checkpoint inspections, as well as an

28 approximately 100-foot-long “secondary inspection” area, also on the south side of the

4

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 7 of 25

1 road, running east from and immediately adjacent to the shelter. Beginning several

2 thousand feet to the east and west of the checkpoint, a series of road signs direct motorists

3 to slow to a stop at the checkpoint, where they are questioned by the Border Patrol agent

4 or agents on duty. Motorists may be directed to the secondary inspection area for further

5 questioning.

6

30. Arivaca Road is located in a rural area where traffic is minimal. Generally,

7 no more than one or two vehicles arrive at the Arivaca Road checkpoint at any given time,

8 and of all vehicles arriving at the checkpoint, only a small fraction are referred for

9 secondary inspections.

10

31. Despite being designated a temporary or “tactical” checkpoint, the Arivaca

11 Road checkpoint has been in operation for approximately seven years, and is one of four

12 interior Border Patrol checkpoints located within thirty miles of Arivaca. Arivaca

13 residents must drive through a checkpoint in order to leave the area by automobile in any

14 east, west, or northbound direction. Many residents must pass through the Arivaca Road

15 checkpoint regularly, to go to school, to go to work, and to perform routine errands.

16

People Helping People Campaign Protesting the Arivaca Road Checkpoint

17

32. In or around July 2013, the community organization People Helping People

18 (“PHP”) launched a campaign to protest the Arivaca Road checkpoint.

19

33. PHP is an all-volunteer organization, founded by residents of Arivaca,

20 Arizona to provide humanitarian aid along the U.S.-Mexico border. The organization

21 sponsors an Abuse Documentation Clinic; co-sponsors the Arivaca Humanitarian Aid

22 Office, in Arivaca, Arizona; and hosts public events such as community forums and

23 educational workshops, including “Know Your Rights” and medical trainings, and

24 presentations on border-related topics.

25

34. Beginning in or around October 2013, PHP drafted and circulated a petition

26 calling on Border Patrol to remove the Arivaca Road checkpoint, citing civil rights

27 violations by agents at the checkpoint, along with harm to property values, tourism, and

28 quality of life resulting from checkpoint operations. The petition also stated residents’

5

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 8 of 25

1 objection to the checkpoint for its role in contributing to migrant deaths and the

2 militarization of the border region. More than 230 Arivaca residents and ten local business

3 owners have signed the petition calling for the removal of the Arivaca Road checkpoint.

4

35. PHP’s petition drive followed the launch, in September 2013, of PHP’s

5 “Abuse Documentation Clinic,” through which PHP invited local residents to document

6 their experiences with Border Patrol in the community. PHP subsequently published a

7 selection of residents’ accounts to its website (http://phparivaca.org/). Several of those

8 accounts described abuses by Border Patrol agents at the checkpoint, including prolonged

9 interrogation and detention, invasive searches, false canine alerts, racial profiling, verbal

10 harassment, and physical assault.

11

36. On December 8, 2013, members of PHP and a group of more than 100

12 supporters delivered a copy of the petition to Border Patrol at the Arivaca Road

13 checkpoint. There, PHP and its supporters staged a rally, with local residents carrying

14 banners and signs and speaking out in opposition to the checkpoint.

15

37. On January 15, 2014, the ACLU submitted an administrative complaint to

16 DHS as well as Defendants Johnson and Padilla, on behalf of fifteen individuals alleging

17 rights abuses at Border Patrol checkpoints in southern Arizona, almost half of which

18 involved local residents at the Arivaca Road checkpoint.1 To date, Defendants have not

19 provided any information regarding whether any of those complaints have been

20 investigated or resolved. Neither have Defendants responded to the alleged abuses of

21 Arivaca residents documented on PHP’s website, which are also incorporated into the

22 ACLU’s January 15 complaint.

23

38. On or around January 16, 2014, Defendant Padilla sent a letter to PHP,

24 stating that Border Patrol would not remove the checkpoint. Defendant Padilla noted,

25

26

27

1 See ACLU OF ARIZ., COMPLAINT AND REQUEST FOR INVESTIGATION OF ABUSES AT U.S. BORDER PATROL INTERIOR CHECKPOINTS IN SOUTHERN ARIZONA, INCLUDING UNLAWFUL

28 SEARCH AND SEIZURE, EXCESSIVE FORCE, AND RACIAL PROFILING (Jan. 15, 2014), attached

as Exhibit A.

6

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 9 of 25

1 “You are welcome to bring to our attention specific incidents or issues regarding local

2 residents at the checkpoint.”

3

39. On or around January 23, 2014, Congressman Raul Grijalva sent a letter to

4 Border Patrol in support of the Arivaca residents’ petition.

5

Monitoring the Arivaca Road Checkpoint and Border Patrol Response

6

40. On January 22, 2014, PHP and its supporters staged a rally and press

7 conference outside of Border Patrol’s Tucson Sector headquarters to announce the start of

8 a “community based effort” to monitor the Arivaca Road checkpoint and called for public

9 hearings on the negative impacts of Border Patrol checkpoints.

10

41. Before initiating these monitoring activities, Plaintiffs and other members of

11 PHP drafted protocol and data collection materials for observing agents’ interactions with

12 motorists at the Arivaca Road checkpoint and for recording those observations. These

13 materials included a “Checkpoint Vehicle Stop Report” and a “Checkpoint Monitoring

14 Shift Report,” which direct monitors to record checkpoint-related information based on

15 their observations, including the names and agent numbers of any agents or other law

16 enforcement present at the checkpoint; the duration of any checkpoint interrogations; the

17 number of motorists searched, required to show identification, or referred for secondary

18 inspection; the number of apprehensions and seizures; the incidence of canine searches

19 and alerts; descriptions of every vehicle stopped at the checkpoint; the gender, apparent

20 ethnicity, and approximate age of each vehicle’s occupant(s); and other observations.

21

42. PHP members initiated checkpoint monitoring activities on February 26,

22 2014 when, at approximately 11:00 a.m., a group of six designated PHP checkpoint

23 monitors, including Plaintiff Ragan, arrived in the vicinity of the Arivaca Road

24 checkpoint.

25

43. The monitors wore fluorescent yellow traffic vests marked “Checkpoint

26 Monitor” and carried a sign reading “Monitoring to Deter Abuse + Collect Data.”

27 Monitors were supplied with video cameras, notepads, and PHP materials, including the

28 “Checkpoint Vehicle Stop Report” and a “Checkpoint Monitoring Shift Report.” Using

7

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 10 of 25

1 these materials, Plaintiff Ragan and the other PHP monitors sought to observe all

2 interactions between agents and motorists during the period monitoring occurred, and to

3 record relevant information based on those observations.

4

44. The monitors were accompanied by roughly two dozen additional protesters

5 and PHP members, including Plaintiff Jacobson, several of whom carried signs and

6 banners protesting the checkpoint with slogans such as, “Checkpoints Can’t Divide Us!,”

7 “Arivaca Is Not At War! Demilitarize Now!,” “Revitalize Not Militarize Border

8 Communities,” and “We R Watching.”

9

45. The group approached the checkpoint area from the east, walking on the

10 public right-of-way on the south shoulder of the county road and remaining out of the path

11 of traffic.

12

46. When Plaintiff Ragan and the other PHP monitors were approximately 100

13 feet east of the checkpoint at the eastern terminus of the secondary inspection area, they

14 were approached by Defendants Joyner and Riden. Defendant Joyner informed the

15 monitors that they would have to “move back” past a cattle guard in the roadway, which

16 was approximately 100 feet behind them and roughly 200 feet east of the checkpoint.

17 Defendant Joyner also stated that the Border Patrol had a permit demarcating the

18 boundaries of the checkpoint and promised to retrieve it.

19

47. Plaintiff Ragan and the other PHP monitors remained in place and began to

20 monitor and record interactions between agents and passing motorists, using a video

21 camera and taking notes.

22

48. Approximately twenty minutes later, Defendants Joyner and Riden returned.

23 They told Plaintiff Ragan and the other PHP monitors that Border Patrol had a permit on

24 site; Border Patrol would not provide a copy of the permit to the monitors; and that the

25 monitors could instead “look it up.”2 Defendants Joyner and Riden repeated that Plaintiff

26

27 2 Plaintiffs are aware of one “Permit to Use County Right of Way” obtained by the U.S. Border Patrol for the Arivaca Road checkpoint on February 26, 2004. That permit, a copy
28 of which is attached as Exhibit B, however, does not demarcate the boundaries of the checkpoint, nor does it limit public access to the public-right-of-way. Upon information 8

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 11 of 25

1 Ragan and the other monitors needed to move and directed them to “back up to the cattle

2 guard” and out of the Border Patrol’s “enforcement area.” Defendants Joyner and Riden

3 then returned to the checkpoint.

4

49. A short time later, Pima County Sherriff’s Deputies arrived on the scene.

5 After conferring with Border Patrol for approximately fifteen minutes, Deputy Judd,

6 accompanied by Agents Joyner and Spencer, approached Plaintiff Ragan and the other

7 monitors. Deputy Judd asked Plaintiff Ragan and the other monitors to cross the street to

8 the north side of Arivaca Road. Deputy Judd pointed to an area directly across from where

9 the monitors were stationed, at the end of a line of Border Patrol vehicles. Plaintiff Ragan

10 and the other monitors agreed to go to the area indicated by Deputy Judd.

11

50.

In that area, however, the monitors’ line of vision to the checkpoint

12 and the activities they sought to observe and record were obstructed by several Border

13 Patrol vehicles that were parked along the north side of the road. When some of the

14 monitors attempted to move closer to better observe the checkpoint, they were turned back

15 by agents, including Defendants Spencer, Ballistrea, Joyner, and Riden. Defendants

16 claimed the monitors were intruding on Border Patrol’s “enforcement area.” Those

17 monitors retreated to the area indicated by Deputy Judd, where Plaintiff Ragan had

18 remained.

19

51. At approximately 1:30 p.m., Defendant Easterling approached and asked

20 Plaintiff Ragan and the other monitors to “move back” again, this time to an area

21 approximately fifty feet from where they were stationed and 150 feet east of the

22 checkpoint. Defendant Easterling said that he had seen a permit granting Border Patrol an

23

24 and belief, U.S. Border Patrol has no other permits related to its Arivaca Road checkpoint.

25

Additionally, Pima County Code of Ordinances Title X, Chapter 10.50.050, “Nonexclusive Use,” which governs public right-of-ways, provides, “Nothing in this

26 chapter shall be construed to grant any user an exclusive right to use the public right-of-

27

way. Any user’s facilities shall be erected, adjusted, installed, replaced, removed, relocated and maintained in a manner that will not interfere with the reasonable use of the

28 public right-of-way, drainage ways, alleys, or easements by the public, by county, or by

any other user, or the rights and conveniences of adjacent property owners.”

9

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 12 of 25

1 “enforcement zone” that extended 800 feet to the west of the checkpoint. Defendant

2 Easterling said that he did not remember how far to the east the enforcement zone

3 extended, but said that he was demarcating it as running to “the end of the pylons” and

4 that the monitors had to move beyond that limit.

5

52. Plaintiff Ragan and the other monitors communicated to Defendant

6 Easterling that Pima County Sheriff’s Deputies had directed them to stand in their present

7 location. Defendant Easterling then summoned a different Pima County Sheriff, Sergeant

8 Lapelini. Sergeant Lapelini did not say that the monitors were required to move. The

9 monitors remained in place.

10

53. Defendant Spencer and a second Border Patrol agent then proceeded to

11 string yellow tape marked “U.S. Border Patrol Incident Scene” across the north and south

12 shoulders of the road, approximately 150 feet east of the checkpoint. On both sides of the

13 road, Border Patrol agents strung the tape from a private fence adjacent to the public right-

14 of-way to a traffic barrier by the roadside, blocking off pedestrian access to the public

15 right-of-way on both the north and south sides of Arivaca Road.

16

54. Shortly after the Sheriff’s Deputies left the scene, Defendant Easterling

17 approached Plaintiff Ragan and the other monitors. Agent Easterling stated that if the

18 monitors did not move, the agents would move them forcibly. Agent Easterling stated that

19 this was “an order,” and that if monitors resisted, they would be arrested.

20

55. Under threat of arrest, Plaintiff Ragan and the other monitors relocated by

21 moving east to an area behind the newly-installed boundary. From that distance, Plaintiff

22 Ragan and the other monitors were unable to observe and record much of the checkpoint-

23 related information they sought, including information regarding agents’ identities,

24 vehicle and motorist descriptions, and the nature and description of agents’ interactions

25 with motorists at the checkpoint.

26 Additional Border Patrol Restrictions on Public Access to the Public Right-of-Way

27

56. At some point prior to March 1, 2014, Border Patrol modified the barriers

28 on both sides of Arivaca Road, replacing the yellow incident tape with rope cordons

10

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 13 of 25

1 running from the private fence adjacent to the public right-of-way to a traffic barrier in the

2 middle of the public right-of-way, and from there to another traffic barrier by the roadside.

3

57. On each side of the road, Border Patrol also posted a sign: “Border Patrol

4 Enforcement Zone — No Pedestrians Beyond This Point.”

5

58. Pedestrians passing by the checkpoint from either direction on the north or

6 south right-of-ways could not pass without stepping under the rope cordons or into the

7 roadway. The barriers have since been modified but remain in place and prevent observers

8 from coming within about 150 feet of the checkpoint.

9

59. On March 1, 2014, at approximately 10:30 a.m., a group of six PHP

10 monitors returned to the north side of the Arivaca Road checkpoint. The monitors again

11 carried video cameras, notepads, and PHP materials, including the “Checkpoint Vehicle

12 Stop Report” and a “Checkpoint Monitoring Shift Report” in order to observe agents’

13 interactions with motorists and record relevant information.

14

60. The monitors stopped approximately 100 feet from the checkpoint, in

15 roughly the same location they had agreed to use at the request of Deputy Judd on

16 February 26.

17

61. The monitors were approached by Defendant Huey and several unidentified

18 agents. Defendant Huey informed the monitors that they were within Border Patrol’s

19 “zone of operation” and needed to stand behind the boundary. The monitors responded

20 that they had returned to the same location to which they had been directed by Pima

21 County Sheriff’s Deputies on February 26. Defendant Huey stated that if the monitors did

22 not move, Border Patrol would call the Pima County Sheriff’s Office. The monitors

23 objected and remained in place.

24

62. After approximately one hour, Defendant Huey returned, again

25 accompanied by several unidentified agents. Defendant Huey then stated, “There is

26 nothing to discuss, there is nothing to decide. Either you move or we will arrest you.”

27 Another agent stated to Defendant Huey, “Just arrest them.” Defendant Huey and another

28

11

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 14 of 25

1 agent produced handcuffs and began advancing on the monitors. Under threat of arrest,

2 the monitors moved.

3

63. One of the monitors asked the agents for their names. In response,

4 Defendant Huey stated, “You have to move or we will place you under arrest. If you want

5 our names you will have to move behind the barrier.” Agents followed the monitors to the

6 barrier, approximately 150 feet from the checkpoint. The agents then walked away

7 without allowing the monitors to obtain the agents’ names or agent numbers.

8

64. An unidentified Border Patrol agent parked a vehicle directly in front of the

9 monitors, on the west side of the barrier, blocking their line of vision. Another vehicle was

10 parked in the same location on the south side of the road, just west of the barrier. At that

11 time, there was ample space inside the “enforcement zone” for the Border Patrol vehicles

12 to park without obstructing the monitors’ view, including most of the north side of

13 Arivaca Road adjacent to the checkpoint.

14

65. Despite the existence of ample alternative parking locations, Border Patrol

15 parked its vehicles immediately adjacent to the barriers and knowingly impeded the

16 monitors’ line of sight to the checkpoint.

17

66. As before, agents denied monitors access to the vacant, unused space in the

18 public right-of-way within 150 feet of the checkpoint. As a result, monitors were again

19 unable to observe and record much of the checkpoint-related information they sought.

20

Border Patrol Interference With, and Retaliation Against, Plaintiffs and Other

21

Checkpoint Monitors

22

67. Members of PHP, including Plaintiffs Jacobson and Ragan, have continued

23 to attempt to protest and observe Arivaca Road checkpoint operations to the best of their

24 ability from behind Defendant Border Patrol’s barriers. PHP monitors, including

25 Plaintiffs, seek to observe interactions between agents and motorists, and to record

26 relevant information based on those observations. These activities, however, continue to

27 be greatly restricted by the barriers and the conduct of agents.

28

12

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 15 of 25

1

68. For example, because they are restricted to observing from approximately

2 150 feet away, Plaintiffs and other PHP monitors have been unable to observe or record

3 the identity of agents operating the checkpoint, and have had difficulty observing and

4 recording descriptions of vehicles and vehicle occupants. Plaintiffs also have been unable

5 to discern the nature of agents’ interactions with motorists, whether conversational or

6 inquisitional in nature, from behind the barriers. Plaintiffs are further impeded in their

7 ability to observe and record the full range of actions taken by agents and by Border Patrol

8 service canines, including canine “alerts” and agent inspections. As a result of the

9 obstacles imposed by Border Patrol, Plaintiff and other PHP monitors’ ability to gather

10 basic information about public law enforcement practices has been severely limited.

11

69. Additionally, as-yet unidentified Border Patrol agents have harassed,

12 intimidated, and retaliated against the PHP monitors, including Plaintiffs, in direct

13 response to their checkpoint monitoring campaign. Plaintiffs have themselves been

14 subject to harassment, intimidation, and retaliation by agents at the checkpoint, and are

15 aware of all incidents alleged herein in which other members of PHP were treated

16 similarly.

17

70. On multiple occasions following the initiation of the checkpoint monitoring

18 campaign, Border Patrol agents parked vehicles next to the barriers for the purpose of

19 obstructing the monitors’ view, despite the ample availability of alternative parking

20 locations. When Plaintiffs and other PHP monitors arrived at the checkpoint in the

21 morning, Border Patrol agents moved their vehicles and parked them next to the barriers;

22 after the monitors left, agents removed the vehicles.

23

71. On more than one occasion, agents have parked a Border Patrol vehicle next

24 to the barrier and left the engine running, with exhaust fumes directed at the monitors. In

25 one instance, in an attempt to avoid the exhaust fumes blowing in their direction, the

26 monitors moved to the opposite side of the road. The agent responded by parking a

27 vehicle next to the barrier on that side of the road, again leaving the engine running. Both

28 vehicles were left idling for approximately three hours while the monitors were present.

13

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 16 of 25

1 On another occasion, Plaintiff Jacobson was forced to breathe exhaust fumes directed at

2 the monitors from a Border Patrol vehicle that was left running next to the barrier.

3

72. On another occasion, the monitors could overhear agents shouting

4 profanities that were directed at the monitors; one agent yelled to a passing motorist, “You

5 should drive up and tell her, ‘Bitch, don’t film me!’”

6

73. At no point since the onset of PHP’s checkpoint monitoring activities have

7 Plaintiffs or any other checkpoint monitors interfered or attempted to interfere with

8 Border Patrol operations in any way.

9

74. On March 7, 2014, Defendant San-Martin sent an e-mail to People Helping

10 People, a copy of which is attached as Exhibit C, which read in part:

11

The inside perimeter of the checkpoint is not a public place where anyone

12

can just show up and establish ground. It is a “controlled area” for agents conducting their duties. By controlled I mean agents have the authority and

13

are within their right to determine who can enter into the perimeter where

they are conducting law enforcement actions. Agents have the right to

14

perform their duties without impediment by individuals who are on scene.

15

The decision on where monitors can stand/sit without interfering with agents and traffic is that of the agents and not the monitors.

16

75. On March 11, 2014, Defendant San-Martin and Defendant Easterling spoke

17 at the Arivaca Community Center. Members of PHP, including Plaintiff Ragan, were

18 present.

19

76. Defendants San-Martin and Easterling both asserted that Border Patrol had

20 the authority to restrict access to the public area adjacent to the Arivaca Road checkpoint.

21 Defendant Easterling stated that “the people who are going to dictate where they can and

22 can’t be are the agents on the scene.” Defendant Easterling also noted that agents required

23 the monitors to move “under threat of arrest.” Defendant Easterling went on to say,

24 “We’re well aware that we have some agents out there that lose their minds. Well aware.

25 And when we get the reports on that . . . we take care of it.” Defendant Easterling stated

26 that all agents should have their name tags visible.

27

28

14

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 17 of 25

1

77. Defendant San-Martin acknowledged that Border Patrol vehicles had parked

2 adjacent to the barriers to block ingress, but claimed there was no intention to obstruct the

3 monitors’ view of the checkpoint.

4

78. Defendants Easterling and San-Martin also acknowledged that arrests at the

5 Arivaca Road checkpoint are rare, but that the checkpoint serves as a “deterrent.”

6

79. Border Patrol agents at the Arivaca Road checkpoint have repeatedly

7 allowed individuals not affiliated with PHP to access the area surrounding the checkpoint

8 while denying that access to Plaintiffs and other PHP monitors. On April 3, 2014, PHP

9 monitors, including Plaintiff Ragan, observed a local resident arrive and park his vehicle

10 next to the barrier, directly inside the new “enforcement zone.” That individual had

11 previously directed obscene comments and gestures at the monitors, and on this occasion

12 began to harass and video record the monitors stationed on the other side of the barrier.

13

80. The man remained inside the barrier for approximately forty minutes, at one

14 point parking his truck with one end protruding into the roadway. The man’s wife also

15 arrived and parked her car inside the barrier. As the man left the checkpoint area, he

16 stopped in the westbound lane where monitors overheard him shout to the agents on duty,

17 “Well, we had our fun today.” The agents at the checkpoint smiled and laughed.

18

81. Later, as Plaintiff Ragan was departing from the Arivaca Road checkpoint,

19 he asked the agents at the checkpoint if they had given the man permission to remain

20 inside the “enforcement zone.” An agent replied, “It’s a free country.”

21

82. On another occasion, monitors observed another man dressed in plain

22 clothes go through the checkpoint, park his truck in the secondary inspection area, and

23 approach the checkpoint on foot, where he conversed with agents for approximately

24 twenty minutes.

25

83. At some point subsequent to this encounter, Border Patrol replaced the “No

26 Pedestrian” signs with new signs that read, “No Unauthorized Entry Beyond This Point.”

27 Those signs and the Border Patrol’s barriers remain in place. Photographs of the signs are

28 attached as Exhibit D.

15

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 18 of 25

1

84. On April 17, 2014, the ACLU sent a letter to Defendants Padilla, Johnson,

2 and Kerlikowske, a copy of which is attached as Exhibit E, demanding that Border Patrol

3 cease harassing and discriminating against the checkpoint monitors, remove the barriers

4 on Arivaca Road, and allow peaceful protest and monitoring activity from a short distance

5 outside the primary inspection area.

6

85. On April 24, 2014, Defendant Padilla sent a letter to the ACLU, a copy of

7 which is attached as Exhibit F, asserting that Border Patrol would continue to restrict

8 access to the public area adjacent to the Arivaca Road checkpoint.

9

86. On July 3, 2014, the ACLU sent a second letter to Defendants Padilla,

10 Johnson, and Kerlikowske, a copy of which is attached as Exhibit G, seeking a resolution

11 of the dispute. To date, Defendants have not responded to that letter.

12

87. On July 11, 2014, Plaintiff Ragan and other members of PHP participated in

13 a checkpoint “Know Your Rights” rally at the Arivaca Road checkpoint. The rally took

14 place on the west side of the checkpoint, while Plaintiff Jacobson and other PHP monitors

15 set up to record checkpoint operations from the east. Members of the media were present

16 and agents permitted reporters and pedestrians only to walk along the north side of the

17 road from one end of the “enforcement zone” to the other. Agents again parked Border

18 Patrol vehicles immediately adjacent to the barriers on both sides of the road, impeding

19 Plaintiff Jacobson and other monitors’ view of the checkpoint. As the monitors were

20 departing, the Border Patrol vehicles were removed.

21

88. Border Patrol agents at the Arivaca Road checkpoint and at other Border

22 Patrol checkpoints repeatedly have asserted that motorists do not have the right to record

23 checkpoint interactions. For example, the ACLU’s January 15, 2014 administrative

24 complaint describes an August 19, 2013 encounter in which a family of four was accosted

25 by Defendant Riden for attempting to video record their checkpoint stop.3

26

27 3 See ACLU COMPLAINT, supra n.1, at 8–9 (“When Mrs. Garcia exited the vehicle with the phone, Agent Riden yelled at her to turn it off, and tried unsuccessfully to grab the
28 phone from Mrs. Garcia’s hand, poking her chest. Mrs. Garcia handed the phone to her husband. Agent Riden continued to yell and demanded that Mr. Garcia turn the phone off. 16

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 19 of 25

1

89. More recently, on August 1, 2014, a California resident filed a complaint

2 with Pima County Sheriff’s Department, alleging that a Border Patrol agent at the Arivaca

3 Road checkpoint prevented her from videotaping a search of her vehicle.4

4

90. On October 19, 2014, after analyzing monitoring data collected from

5 February 26 to April 28, 2014, members of PHP presented initial findings of the

6 checkpoint monitoring campaign at a community forum in Arivaca. Among other

7 findings, PHP reported that Border Patrol agents at the Arivaca Road checkpoint were

8 engaged in “systemic” discrimination, subjecting Latino motorists to far greater scrutiny

9 and delay than Caucasian motorists. The monitors’ report noted that the data was collected

10 from an area “beyond monitors’ ability to adequately see or hear Border Patrol

11 operations” and that limitations imposed by Border Patrol “restricted [monitors’] ability to

12 observe and record important information.”

13

91. After more than eight months and thousands of observed checkpoint stops,

14 PHP monitors have not witnessed a single arrest at the Arivaca Road checkpoint.

15

92. To the best of their ability, given the restrictions imposed upon them by

16 Defendants, Plaintiffs and other PHP members have continued monitoring, recording, and

17 collecting data concerning agents’ interactions with motorists at the Arivaca Road

18 checkpoint, and intend to continue analyzing the recorded data and reporting their

19 findings. Their ability to do so remains significantly impeded by Defendants’ actions,

20 however, and PHP recently decided to narrow the scope of the data monitors will seek to

21

22

23 Agent Riden stated that Mr. Garcia could not use her phone to record because Border

24 Patrol was searching the vehicle ‘based on probable cause.’ Agent Riden continued

yelling at Mr. Garcia to turn off the phone . . . Mr. Garcia could see that Agent Riden’s 25 behavior was upsetting his children, so he turned the phone off, but not before Agent

26 Riden attempted, again unsuccessfully, to grab the phone out of his hands.”).

27

4 See Woman Claims Assault at Border Patrol Checkpoint, GREEN VALLEY NEWS, Aug. 22, 2014, available at http://bit.ly/1rIWgRY (“A short video clip of the incident provided

28 to the Green Valley News shows the agent grabbing the phone from the woman’s hand.

The woman also said the agent went through her phone and purse without permission.”).

17

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 20 of 25

1 record. For example, monitors no longer attempt to record the identity of agents at the

2 checkpoint because that information is impossible to discern from so far away.

3 Border Patrol’s Arbitrary “Enforcement Zone” and Harassment of Plaintiffs Violate

4

the First Amendment

5

93. On information and belief, prior to February 26, 2014, Defendants never

6 created or enforced a restricted checkpoint “enforcement area” or “zone,” or any similar

7 restriction on public access to the public right-of-way adjacent to the Arivaca Road

8 checkpoint, or adjacent to any other Arizona interior vehicle checkpoint.

9

94. On information and belief, prior to February 26, 2014, Defendants never

10 erected “No Pedestrian” signs or other signage indicating restricted public access to the

11 public right-of-way adjacent to the Arivaca Road checkpoint, or adjacent to any other

12 Arizona interior vehicle checkpoint.

13

95. On information and belief, subsequent to February 26, 2014, Defendants

14 have not created or enforced any other checkpoint “enforcement zone” and have not

15 installed “No Pedestrian” signage restricting access to the public right-of-way adjacent to

16 any other interior vehicle checkpoint in Arizona other than the Arivaca Road checkpoint.

17

96. On information and belief, prior to February 26, 2014, Defendants were

18 aware that Plaintiffs and others working with them were critical of the practices of Border

19 Patrol, including their criticism of arbitrary and unconstitutional actions by Border Patrol

20 agents at the Arivaca Road checkpoint.

21

97. On information and belief, Defendants established the “enforcement zone”

22 and accompanying signage at the Arivaca Road checkpoint in direct response to the PHP

23 monitoring campaign and to prevent protesters and monitors from accessing the public

24 right-of-way adjacent to the checkpoint.

25

98. On information and belief, Defendants DHS, CBP and Border Patrol have

26 not promulgated regulations governing the boundaries of interior checkpoint

27 “enforcement zones” or any similar exclusive zones of authority adjacent to interior

28 vehicle checkpoints.

18

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 21 of 25

1

99. On information and belief, Defendants DHS, CBP, Border Patrol, Johnson,

2 Kerlikowske, Self, Fisher, Padilla, San-Martin, and Easterling have a policy and practice

3 of delegating decisions regarding any restrictions on public access to public areas adjacent

4 to Border Patrol interior checkpoints to the discretion of local sector chiefs, supervisors,

5 and/or agents in the field. These delegations of authority do not include specific criteria or

6 conditions for persons seeking to observe and/or record the activities of agents at Border

7 Patrol interior checkpoints, nor instructions concerning the First Amendment rights of

8 persons to engage in such observations.

9

100. On information and belief, Defendants DHS, CBP, Border Patrol, Johnson,

10 Kerlikowske, Self, Fisher, Padilla, San-Martin, and Easterling are aware of and condone

11 the actions Border Patrol has taken to restrict public access to public areas adjacent to the

12 Arivaca Road checkpoint, including the harassment, intimidation, and retaliatory acts

13 Border Patrol agents have directed at Plaintiffs, and have taken no action to lift those

14 restrictions or to prevent future harassment, intimidation, and retaliatory acts from being

15 directed at Plaintiffs.

16

101. By preventing and impeding Plaintiffs’ checkpoint monitoring and

17 protesting activities, and by threatening Plaintiffs with arrest, Defendants’ actions have

18 chilled, deterred, and infringed upon Plaintiffs’ right to engage in protected speech,

19 resulting in harm to Plaintiffs.

20

102. Defendants’ policies, customs, and/or practices concerning Plaintiffs’

21 checkpoint monitoring and protesting activities have caused Border Patrol agents to chill,

22 deter, and infringe upon Plaintiffs’ right to engage in protected speech, resulting in harm

23 to Plaintiffs and entitling them to declaratory and injunctive relief.

24

103. Through harassment, intimidation, willful obstruction, and selective

25 enforcement of the “enforcement area” at the Arivaca Road checkpoint, Defendants have

26 discriminated and retaliated against Plaintiffs for exercising their First Amendment rights.

27

104. The acts, omissions, policies, customs, and/or practices of all Defendants are

28 causing irreparable harm to Plaintiffs due to interference with and chilling of their First

19

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 22 of 25

1 Amendment rights to protest and/or record checkpoints from a public right-of-way, for

2 which they have no adequate remedy at law.

3

105. An actual and immediate controversy has arisen and now exists between

4 Plaintiffs and Defendants regarding Plaintiffs’ ability to exercise First Amendment rights

5 to protest, observe, and/or record the Arivaca Road checkpoint from a public right-of-way

6 adjacent to the checkpoint. Plaintiffs are entitled to a declaration of rights with respect to

7 this controversy. Without such a declaration, Plaintiffs will be uncertain of their rights and

8 responsibilities under the law.

9

CLAIMS

10

COUNT ONE

11

Unlawful Regulation of Plaintiffs’ First Amendment Rights in a Public Forum

12

(All Defendants)

13

106. Plaintiffs reallege and incorporate by reference the allegations in all

14 preceding paragraphs.

15

107. The First Amendment to the United States Constitution prohibits

16 infringement on and chilling of protected First Amendment activity.

17

108. Defendants Easterling, San-Martin, Joyner, Huey, Ballistrea,

18 Spencer, and Riden acted pursuant to Defendants DHS, CBP, Border Patrol, Johnson,

19 Kerlikowske, Self, Fisher, and Padilla’s expressly adopted official policy and/or

20 longstanding practice of delegating authority regarding public access to public areas

21 adjacent to interior vehicle checkpoints to the discretion of supervisors and/or agents in

22 the field. This policy and/or practice affords an impermissible degree of discretion to

23 agents and continues to be an impermissible prior restraint on speech and to chill, deter,

24 and infringe upon Plaintiffs’ First Amendment rights. Further, Defendants’ definition of

25 the “enforcement zone” and inconsistent regulation of Plaintiffs’ proximity to Defendants’

26 public activities in and near the checkpoints are both broader than needed to further

27 Defendants’ objectives.

28

20

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 23 of 25

1

109. Defendants continue to infringe upon, restrict, and violate Plaintiffs’

2 First Amendment rights because Plaintiffs’ speech has been chilled by Defendants’

3 policies, customs, and/or practices.

4

COUNT TWO

5

Retaliation Based on Rights Protected Under the First Amendment of the United

6

States Constitution

7

(All Defendants)

8

110. Plaintiffs reallege and incorporate by reference the allegations in all

9 preceding paragraphs.

10

111. The First Amendment protects the rights of Plaintiffs to protest and to

11 observe, take photographs, and make video recordings of public officials engaged in the

12 public discharge of their duties.

13

112. Defendants have violated Plaintiffs’ First Amendment rights by

14 improperly infringing upon and restricting Plaintiffs First Amendment rights and by

15 harassing, intimidating, retaliating against and threatening Plaintiffs with arrest for

16 engaging in constitutionally protected speech.

17

113. Defendants continue to infringe upon, restrict, and violate Plaintiffs’

18 First Amendment rights. Plaintiffs continue to face an imminent threat from Defendants of

19 being harassed, intimidated, retaliated against or arrested if they engage in constitutionally

20 protected activity.

21

RELIEF REQUESTED

22 WHEREFORE, Plaintiffs respectfully request that this Court:

23 A. Issue a preliminary and permanent injunction restraining Defendants, their

24

employees, agents, and successors from

25

1. Preventing, restricting, impeding, or otherwise interfering with

26

Plaintiffs’ First Amendment rights to protest and record the Border

27

Patrol checkpoint on Arivaca Road, or any other Border Patrol

28

21

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 24 of 25

1 2 3 4 5 6 7 8 B. 9 10 11 12 13 14 C. 15 D. 16 17 18 19 20 21 22 23 24 25 26 27 28

checkpoint situated similarly to the one on Arivaca Road, from the
public right-of-way; and
2. Preventing, restricting, impeding, or otherwise interfering with
Plaintiffs’ First Amendment rights to protest and record the Border
Patrol checkpoint on Arivaca Road, or any other Border Patrol
checkpoint situated similarly to the one on Arivaca Road, from areas
where other members of the public are allowed to congregate.
Enter a judgment declaring that
1. Defendants have violated Plaintiffs’ rights under the First
Amendment; and
2. Plaintiffs are entitled under the First Amendment to protest and
record Border Patrol interior vehicle checkpoint operations from a
reasonable distance outside the primary inspection area.
Award Plaintiffs costs, including reasonable attorneys’ fees, and
Grant such other and further relief as the Court deems just and proper.
DATED this 20th day of November, 2014.
ACLU FOUNDATION OF ARIZONA By /s/ James Lyall Daniel J. Pochoda James Lyall Victoria Lopez Joel Edman 3707 North 7th Street, Suite 235 Phoenix, AZ 85014
ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES /s/ Mitra Ebadolahi David Loy Mitra Ebadolahi P.O. Box 87131 San Diego, CA 92138-7131

22

Case 4:14-cv-02485-BGM Document 1 Filed 11/20/14 Page 25 of 25

1

COVINGTON & BURLING, LLP

2

/s/ Winslow Taub Winslow Taub

3

Tracy Ebanks

Ethan Forrest

4

1 Front Street, 35th Floor

5

San Francisco, CA 94612

6

COVINGTON & BURLING, LLP

7

Christina E. Dashe 9191 Towne Centre Drive, 6th Floor

8

San Diego, CA 92122

9

Attorneys for Plaintiffs

10

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13

14

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Case 4:14-cv-02485-BGM Document 1-2 Filed 11/20/14 Page 1 of 20
EXHIBIT A

Case 4:14-cv-02485-BGM Document 1-2 Filed 11/20/14 Page 2 of 20

January 15, 2014
Charles K. Edwards Deputy Inspector General Department of Homeland Security Office of Inspector General 245 Murray Drive, SW Building 410 Washington, D.C. 20528

Tamara Kessler Officer for Civil Rights and
Civil Liberties Department of Homeland Security Office of Civil Rights and Civil Liberties 245 Murray Lane, SW Building 410 Washington, D.C. 20528

Re: Complaint and request for investigation of abuses at U.S. Border Patrol interior checkpoints in southern Arizona, including unlawful search and seizure, excessive force, and racial profiling.

Dear Mr. Edwards and Ms. Kessler:

We write with serious concerns regarding U.S. Border Patrol interior vehicle checkpoints in southern Arizona. This complaint is submitted on behalf of 15 U.S. citizens, aged 6 to 69 years old, whose rights were violated in the course of more than 12 separate incidents over the past 15 months at 6 different Arizona checkpoints, as described in detail below.1 The ACLU receives frequent reports from Arizona residents regarding unconstitutional searches and seizures, excessive use of force, racial profiling, and other agent misconduct at checkpoints. Residents describe similar patterns of abuse at various checkpoints throughout the state—including searches based on service canines “alerting” to nonexistent contraband2 and prolonged, unjustified detentions—indicating that these incidents are not anomalous or perpetrated by a few “bad apples,” but rather are the result of systemic deficiencies in Border Patrol policies and practices, which are leading to widespread rights violations.

The ACLU is a non-partisan, non-profit, nation-wide organization that works daily in courts, communities, and legislatures across the country to protect and preserve the rights and liberties established by the Bill of Rights and state and federal law. The ACLU has a particular commitment to ensuring that fundamental constitutional protections of due process and equal protection are extended to every person, regardless of citizenship or immigration status, and that government respects the civil and human rights of all people. The ACLU of Arizona is an ACLU state affiliate organization with over 7,000 supporters. The ACLU’s Border Litigation Project investigates, documents, and litigates civil and human rights violations in the U.S.-Mexico border region.

1 Five of these incidents occurred in the same week in late November-early December 2013, at three different checkpoints. Though several of the individuals described below have experienced checkpoint-related abuses on multiple occasions, this letter focuses on the most recent incidents. 2 In at least eight of the incidents documented herein, Border Patrol service canines “alerted” in the absence of contraband. The ACLU recently filed a lawsuit on behalf of a U.S. citizen subjected to a strip search, multiple genital and cavity searches, a forced bowel movement, an X-ray, and a CT scan following a similar false alert by a U.S. Customs and Border Protection service canine. See Jane Doe v. El Paso County Hospital District, et al., No. 3:13-CV-00406-DB (W.D.Tex. filed Dec. 18, 2013); Complaint available at http://www.aclu-nm.org/wpcontent/uploads/2013/12/Complaint-Jane-Doe-v-Various-Defendants-12-18-13.pdf
Page 1 of 17

Case 4:14-cv-02485-BGM Document 1-2 Filed 11/20/14 Page 3 of 20
Residents of southern Arizona are increasingly outraged by Border Patrol checkpoints, and for good reason. Forty years ago, the U.S. Supreme Court condoned immigration checkpoints under the assumption that the stops are “brief,” and involve, at most, a “limited inquiry into residence status” and a “visual inspection” of the exterior of the vehicle.3 In practice, border residents regularly experience extended interrogation and detention not related to establishing citizenship, invasive searches, verbal harassment, and physical assault, among other abuses. As discussed below, Border Patrol checkpoints often appear to be operated as drug interdiction checkpoints, which are unconstitutional,4 and not for the limited purpose of verifying residence status. Indeed, most of the individuals described herein were never asked about their citizenship, and Border Patrol’s own figures show that the vast majority of drug-related arrests at checkpoints do not involve unauthorized immigrants at all, but rather, U.S. citizens.5
According to a 2009 U.S. Government Accountability Office (GAO) Report, Border Patrol operates 71 permanent and tactical checkpoints across the southwest.6 These operations stem from Border Patrol’s authority to conduct warrantless seizures within “a reasonable distance”7 of the border. That distance is defined by outdated regulations to be “100 air miles”8 from any external boundary, including coastal boundaries, and thus encompasses roughly two-thirds of the U.S. population and the entirety of several states.9 In practice, Border Patrol ignores that limitation, roaming still further into the interior of the country.10 In Arizona, most checkpoints are located on rural state highways between 25 and 50 miles north of the border, many of them in the vicinity of southern Arizona towns and cities.
3 See United States v. Martinez-Fuerte, 428 U.S. 543, 558–60 (1976), discussed infra. 4 See City of Indianapolis v. Edmond, 531 U.S. 32 (2000), discussed infra. 5 The vast majority of these arrests are for marijuana-related offenses, and the number of arrests in 2011 was triple that in 2005. See Andrew Becker, Four of Five Border Patrol Drug Busts Involve US Citizens, Records Show, CENTER FOR INVESTIGATIVE REPORTING, Mar. 26, 2013, available at http://cironline.org/reports/four-five-borderpatrol-drug-busts-involve-us-citizens-records-show-4312. Meanwhile, CBP’s data shows that apprehensions of undocumented immigrants are at 40-year lows while deaths of border crossers are at historic highs. See Bob Ortega, Border Apprehensions Up, But Still Near Historic Lows, ARIZONA REPUBLIC, Jun. 3, 2013 available at http://www.azcentral.com/news/politics/articles/20130531mexico-border-apprehensions-up.html 6 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, REPORT TO CONGRESSIONAL REQUESTERS, BORDER PATROL: CHECKPOINTS CONTRIBUTE TO BORDER PATROL’S MISSION, BUT MORE CONSISTENT DATA COLLECTION AND PERFORMANCE MEASUREMENT COULD IMPROVE EFFECTIVENESS, GAO-09-824, (Aug. 2009) available at http://www.gao.gov/products/GAO-09-824. 7 See 8 U.S.C. § 1357(a)(3). 8 See 8 C.F.R. § 287.1(b). The Justice Department published regulations defining “reasonable distance” as 100 miles in 1957. See Field Officers: Powers and Duties, 22 Fed. Reg., 236, 9808–09 (Dec. 6, 1957) (to be codified at C.F.R. § 287). There is no public history to indicate why the Justice Department chose 100 miles as the “reasonable distance” from the border. It may have been that 100 miles had historically been considered a “reasonable” distance regarding availability of witnesses for examination, responses to subpoenas, and other discovery issues under federal law. See, e.g., 10 U.S.C. § 849; FED. R. CRIM. P. 7; FED. R. CIV. P. 45. 9 Though immigration checkpoints are mostly confined to the southwest, Border Patrol has operated temporary checkpoints in northern states as well. A recent Freedom of Information Act (FOIA) request uncovered design plans for permanent checkpoints on southbound New England highways. See ACLU OF VERMONT, SURVEILLANCE ON THE NORTHERN BORDER, (Sept. 17, 2013), available at http://www.acluvt.org/surveillance/northern_border_report.pdf. 10 See, e.g., Todd Miller, War on the Border, NY TIMES, Aug. 18, 2013, available at http://www.nytimes.com/2013/08/18/opinion/sunday/war-on-the-border.html?pagewanted=all&_r=0 (describing checkpoint stop of Senator Patrick Leahy 125 miles from the border in New York state: “When Mr. Leahy asked what authority the agent had to detain him, the agent pointed to his gun and said, ‘That’s all the authority I need.’”); Michelle Garcia, Securing the Border Imposes a Toll on Life in Texas, AL JAZEERA AMERICA, Sept. 25, 2013, available at http://america.aljazeera.com/articles/2013/9/25/living-under-thelawofbordersecurity.html#mainpar_ adaptiveimage_0 (“[W]hen it was pointed out that [Alice, Texas] sits more than 100 miles from the border, [a Border Patrol spokesman] explained that ‘the law does not say that we cannot patrol. Our jurisdiction kinda changes.’”); see also United States v. Venzor-Castillo, 991 F.2d 634 (10th Cir. 1993) (finding Border Patrol lacked
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Border Patrol checkpoints have profoundly negative impacts on border communities. Recently, residents of Arivaca, Arizona11 began petitioning for the removal of one of three local checkpoints that surround their town, citing ongoing rights violations and harassment as well as harm to property values,12 tourism, and quality of life resulting from checkpoint operations. Community members have also been documenting examples of checkpoint abuses. One former local business owner (her small business suffered from the decline in tourism caused by the checkpoint and was forced to close its doors at the end of 2013) described being detained on her way to a doctor’s appointment following a heart attack, held for over an hour in the hot sun, not permitted to sit down, and denied water. Other Arivacans report that agents at the checkpoint have told them, “You have no rights here,” or that all community members are considered suspect simply by virtue of living in Arivaca.13 The Arivaca petition, recently presented to Border Patrol’s Tucson Sector Chief Manuel Padilla Jr., reads in part:
Residents are intimidated by armed federal agents and subjected to improper questioning and warrantless searches in violation of their 4th, 5th and 14th Amendment rights. It is not possible for Arivaca residents to leave northbound without passing through one of three area checkpoints. Thus, locals must pass through the checkpoint with regularity, sometimes daily, such that these constitutional rights violations are not merely occasional or minor inconveniences but rather frequent and substantial infringements. People of color experience greater scrutiny and longer detentions at the checkpoint; such racial profiling violates the law as well as the federal government’s own guidelines prohibiting any consideration of race or ethnicity in such encounters.14
The experiences described by the residents of Arivaca—and those listed below—are not unique; rather, they are consistent with numerous reports of rights violations across the state and throughout the southwest, and have become more common as Border Patrol has expanded at an unprecedented rate.15 The GAO has found numerous problems with checkpoint oversight, including “information gaps and reporting issues [that] have hindered public accountability, and inconsistent data collection and entry [that] have hindered management’s ability to monitor the need for program improvement.”16
reasonable suspicion to stop and search vehicle 235 miles from the border where agent had no knowledge regarding the origin of the vehicle). 11 A town of approximately 700 people, Arivaca is located 11 miles north of the U.S.-Mexico border and within 30 miles of three different Border Patrol checkpoints—one on Arivaca Road in Amado, Arizona, another on State Route 286, south of Three Points, Arizona, and a third on Interstate 19 outside of Tubac, Arizona. Residents must pass through the checkpoints daily to go to work, purchase groceries, or run basic errands. 12 See, e.g., Judith Gans, THE BORDER PATROL CHECKPOINT ON INTERSTATE 19 IN SOUTHERN ARIZONA: A CASE STUDY OF IMPACTS ON RESIDENTIAL REAL ESTATE PRICES, UNIVERSITY OF ARIZONA, (Dec. 2012), available at http://udallcenter.arizona.edu/ucpubs/gans_2012b.pdf 13 Additional narratives of Arivaca community members, three of which are described in greater detail in this complaint, are available at http://phparivaca.org/?page_id=210 14 Arivaca Checkpoint Petition, available at https://www.change.org/petitions/u-s-border-patrol-remove-the-checkpoint-on-arivaca-rd-in-amado-az-quite-el-ret%C3%A9n-de-la-carretera-de-arivaca-en-amado-az 15 From 2004 to 2011, as the ranks of agents doubled to more than 21,000, complaints involving CBP received by the DHS Office of Civil Liberties and Civil Rights nearly tripled. See DEP’T OF HOMELAND SEC., OFFICE OF CIVIL RIGHTS AND CIVIL LIBERTIES, “DEPARTMENT-WIDE DATA ON COMPLAINTS RECEIVED,” available at http://www.dhs.gov/department-wide-data-complaints-received. Given the many problems with the DHS complaint system, discussed infra, it is likely that incidents of abuse are substantially under-reported. 16 See GAO-09-824, supra at *28. Those findings were made in 2009, the last time the federal government conducted a thorough review of Border Patrol checkpoint operations and their impact on border residents and local communities. GAO’s “community impact” analysis omitted Tucson sector checkpoints on the grounds that, at the time, they were considered “tactical” and not permanent checkpoints. Id. at *89.
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We request that you promptly investigate and respond appropriately to each of the individual incidents detailed herein, and conduct a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years. Furthermore, a thorough review of Border Patrol checkpoint policies and practices is needed to ensure that operations are in fact limited to briefly verifying citizenship. This review should determine whether agents are receiving direction and instructions regarding the limits of their authority and if they adhere to those guidelines in practice. It should include all policies and procedures related to service canines, in light of widespread reports of “false alerts,” a problem that federal courts have long recognized.17 We believe significant changes in Border Patrol training, oversight, and accountability mechanisms are needed to prevent ongoing and systematic violations of state and federal law, as well as Border Patrol’s own guidelines, and to protect the rights of border communities. We urge you to make recommendations for such changes consistent with your mission to prevent further abuses.

Section I of this complaint describes 12 recent examples of unlawful practices at Border Patrol checkpoints in southern Arizona. Section II presents the applicable legal framework.

I.

Individual Complaints of Border Patrol Abuses at Checkpoints

1. Samaritans of Green Valley (Kathy Zweig, Lyn Nowakowski, & Fawn Brown) - Arivaca Road Checkpoint, Amado, AZ, Dec. 18, 2013.

At approximately 1:45 p.m. on December 18, 2013, Kathy Zweig, 69, Lyn Nowakowski, 68, and Fawn Brown, 59, arrived at the Arivaca Road checkpoint. All three are volunteers with Samaritans of Green Valley (“Samaritans”). The group has been providing humanitarian aid in southern Arizona for the past decade and passes through the Arivaca Road checkpoint daily. On this occasion, the volunteers pulled into the checkpoint in a clearly marked Samaritans vehicle and were met by a Border Patrol agent later identified as John Howard. Agent Howard did not ask any of the women about their citizenship; instead, he asked a series of questions about the contents of their vehicle, which they answered truthfully. Agent Howard was particularly interested in the volunteers’ backpacks in the rear of the vehicle, which the volunteers explained were used to carry food, water, and medical supplies for their humanitarian aid work. Agent Howard stated that the backpacks could also be used to carry narcotics and asked the volunteers to open the trunk. When they asked why, Agent Howard stated, “Because I have mere suspicion you could be carrying drugs.” Agent Howard then directed them to “pull into secondary.”

The volunteers pulled into the secondary inspection area and exited the vehicle. They again asked for an explanation. Agent Howard said, “I pulled you over for due diligence and mere suspicion.” When the women asked Agent Howard to articulate what his suspicion was based upon, Agent Howard explained that there could be narcotics in the backpacks “because that's what backpacks are used for. When we see backpacks, we become suspicious.” Agent Howard then repeated, “Just pop your trunk.” The women again refused and continued to ask for an explanation. Agent Howard replied, “The backpacks.” Agent Howard handed the volunteers a small, laminated card bearing U.S. Customs and Border Protection (“CBP”) and Border Patrol insignia and titled “Authority as an Agent.”18

17 See infra. 18 Attached herein as Exhibit A, the card reads in part: “Border Patrol agents may stop and question motorist [sic] at reasonably located checkpoints, even in the absence of individualized or reasonable suspicion.” Among other omissions, the card does not specify that questioning must be “brief” and the stop confined to a “limited inquiry into residence status.” United States v. Martinez-Fuerte, 428 U.S. 543, 558–60 (1976). Neither does it specify that “reasonable suspicion” is required for non-immigration inquiries (the standard is not “mere suspicion,” as the agent claimed), or that searches must be based on “probable cause” that a crime has likely been committed. See infra.
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Ms. Zweig, Ms. Nowakowski, and Ms. Brown proceeded to record the names of Agent Howard and the two other agents present, Agent Miguel San Quentin and Agent Alexis Barrios. As they were doing so, Agent Barrios became visibly angry and agitated, and ripped his name tag off his chest and thrust it in Ms. Nowakowski’s face in an aggressive and intimidating manner. Agent Howard continued to ask for consent to search the vehicle, and the volunteers continued to refuse. After approximately ten minutes, Agent Howard told them, “We called the dog and it will be here in a few minutes.” After another ten minutes had elapsed, a service canine and its handler arrived. Ms. Nowakowski recognized the handler, Agent Ewing, from several prior interactions. Agent Ewing said, “Just let me walk around the car with the dog.” Ms. Nowaskowski again objected, and asked if she and the others were free to go. Agent Ewing said that they were. As Ms. Nowaskowski was returning to the vehicle, Agent Howard asked Agent Ewing, “Are you releasing them?” Agent Ewing responded that he was.
Ms. Zweig, Ms. Nowakowski, and Ms. Brown were detained for approximately thirty minutes. They were never asked about their citizenship.
2. John Forrey – Tombstone Checkpoint, Route 80, Dec. 6, 2013.
On December 6, 2013, John Forrey arrived at the Tombstone checkpoint located on Arizona State Route 80. Mr. Forrey is a professional photographer and native of Bisbee, Arizona. An agent peered through the back window of his vehicle and asked him to open his trunk. Mr. Forrey did not consent to a search of his trunk. The agent asked Mr. Forrey where he was coming from. Mr. Forrey responded that this was personal information. The agent asked Mr. Forrey if he had a driver’s license, and Mr. Forrey said that he did. The agent then directed Mr. Forrey into a secondary inspection area. Mr. Forrey asked why he was being detained. The agent called over another agent, identified as Agent Torres, who asked Mr. Forrey if he was refusing to go to secondary. Mr. Forrey replied that he was not refusing but was asking why he was being detained. Mr. Forrey then pulled into secondary and left the motor running and his foot on the brake.
Agent Torres approached and asked if Mr. Forrey had a weapon. Mr. Forrey did not have a weapon, but because the question was not related to his citizenship, he paused to consider whether or not he was required to answer. Before Mr. Forrey could respond, however, Agent Torres unholstered his gun, and holding it a foot away, pointed it at Mr. Forrey’s face, screaming at him not to reach for anything. Other agents approached, pulled Mr. Forrey’s left arm through the open window, and began twisting it. The agents opened the door as Agent Torres directed them to pull Mr. Forrey out. Mr. Forrey tried to put the automatic transmission in park so the car would not roll. Agent Torres, still pointing his gun at Mr. Forrey’s head, started screaming, “He's reaching for the console!” Mr. Forrey stopped reaching for the transmission. The agents started dragged Mr. Forrey out of the car, causing his foot to come off the brake and the car to roll forward. Agent Torres yelled, “Put it in park, asshole!” Mr. Forrey put the car in park. Agent Torres then holstered his pistol, pulled out his Taser and yelled, “Let's just Taser him!” Instead, the agents handcuffed Mr. Forrey and left him on a bench nearby while they searched his car.
A supervisor approached and accused Mr. Forrey of intentionally trying to harm the agents by allowing his car to roll forward. Mr. Forrey noted that, with a gun pointed at his head, he had been instructed not to reach for anything while being forcibly removed from his vehicle. Mr. Forrey objected strongly to his detention and to the conduct of Agent Torres. The supervisor did not release Mr. Forrey from the handcuffs, but said that he would “talk to Torres.”
Agents continued to search the interior of the vehicle over Mr. Forrey’s repeated objections. To open the passenger door, which was locked, one of the agents broke the door latch mechanism; as a result, the door now does not open or close securely. The agents called for an Arizona Department of Public
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Safety officer, but an officer never arrived. Mr. Forrey was detained for approximately 40 minutes before he was finally taken out of handcuffs and released. He suffered a bruise on his upper left arm and cuts on his left hand. Mr. Forrey was not asked about his citizenship status.
This was not the first time Mr. Forrey has been detained by the Border Patrol. About three months earlier, Mr. Forrey was pulled over while driving approximately 30 miles north of the border. An agent approached him and immediately asked to look in his trunk. The agent did not say why he pulled Mr. Forrey over and did not ask him about his residence status. Mr. Forrey was detained for 30 minutes before being released. The next day, Mr. Forrey arrived at the Tombstone checkpoint. Again an agent asked to look in Mr. Forrey’s trunk. Mr. Forrey refused and had to wait while a service canine inspected his car. Mr. Forrey is a professional photographer who travels extensively in southern Arizona. He has been pulled over by Border Patrol dozens of times, sometimes as far as 60 miles from the border.
3. Dale Polen – Arivaca Road Checkpoint, Amado, AZ, Dec. 2, 2013.
Dale Polen is a six-year resident of Arivaca, Arizona and a local mechanic. On December 2, 2013, Mr. Polen was on his way to get supplies for work when he arrived at the Arivaca Road checkpoint at approximately 8:45 a.m. An agent slapped the side of his vehicle and told him to “pull into secondary.” Mr. Polen asked why, to which the agent responded, “You’re driving like an idiot.” Mr. Polen objected to the agent’s characterization of his driving. The agent then stated that a service canine had “alerted.”
Mr. Polen pulled into the secondary inspection area and the agent directed him to exit his vehicle. The agent again stated, “The only reason we pulled you over is because you were driving like an idiot.” Mr. Polen objected that traffic enforcement was outside Border Patrol’s authority. The agent then claimed that a service canine had “tagged” the vehicle. The agent proceeded to remove Mr. Polen’s two dogs from the car and search the interior of Mr. Polen’s vehicle. When Mr. Polen objected to the search, one agent said, “You won’t be laughing when we find stuff.” Another agent remarked, “Arivaca is just a bunch of smugglers.” One of the agents kept his right hand on his firearm during his interaction with Mr. Polen. Mr. Polen was detained for approximately 30 minutes before he was released. He was never asked about his citizenship.
Like all Arivaca residents, Mr. Polen must pass through a checkpoint anytime he wishes to leave town, and has had similar encounters with Border Patrol at the Arivaca Road checkpoint in the past. Last year, agents detained Mr. Polen for 30 minutes and searched the interior of his vehicle after claiming that a service canine had alerted. On another occasion, Mr. Polen arrived at the checkpoint on his motorcycle. A service canine alerted, jumping up on Mr. Polen’s motorcycle. Agents told Mr. Polen to get off his motorcycle and began to question him about drugs. When Mr. Polen objected to being detained, an agent reached out and grabbed Mr. Polen’s arm. The other agents assisted in throwing Mr. Polen to the ground. Agents held Mr. Polen down while his motorcycle was searched. After more than 20 minutes, he was released. Mr. Polen tried to make a complaint to local law enforcement, but officials dismissed his concerns. As a result of these experiences, Mr. Polen feels extremely apprehensive every time he approaches the checkpoint, which he tries as much as possible to avoid.
4. Tim Buchanan – Arivaca Road Checkpoint, Amado, AZ, Dec. 2, 2013.
On December 2, 2013, Tim Buchanan arrived at the Arivaca Road checkpoint at approximately 9:30 a.m. Mr. Buchanan is a 61-year-old retiree and 12-year resident of Arivaca. He drives through the checkpoint several times a week, usually on his way to play golf. On this occasion, an agent asked Mr. Buchanan if he was a U.S. citizen, and he confirmed that he is. The agent then directed him to the secondary inspection area. Mr. Buchanan pulled into the secondary inspection area and exited his vehicle.
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An agent who later identified himself as Agent Taylor approached with a service canine, opened the driver’s side door, and directed the dog to enter Mr. Buchanan’s vehicle. Mr. Buchanan immediately objected that he did not consent to allowing the dog inside his vehicle. Agent Taylor responded by yelling, “Shut your fucking mouth!” Mr. Buchanan repeated his objection to the search. Agent Taylor yelled, “Shut your fucking mouth you fucking asshole and let me do my job!” Mr. Buchanan turned to another agent standing by and asked for an explanation. Agent Taylor interjected, “Shut your fucking mouth!” The other agent directed Mr. Buchanan to sit on a bench. Mr. Buchanan repeated his request for an explanation. Agent Taylor again interrupted him, screaming, “I said shut the fuck up,” and placed his right hand on his firearm. Agent Taylor then continued searching Mr. Buchanan’s vehicle, muttering loudly to himself, “These fuckers...the fucking cunts.” Mr. Buchanan was deeply shaken by Agent Taylor’s actions, but he persisted in asking the other agent why his vehicle was being searched. Agent Taylor again interrupted and said, “Because I didn’t recognize you.”
Mr. Buchanan was detained for approximately 30 minutes before he was released. When he asked Agent Taylor for his name, the agent concealed his badge from view but responded, “Taylor.” Mr. Buchanan was deeply traumatized by the encounter; nonetheless, he called a Border Patrol supervisor to report the incident. Approximately one week later, a Border Patrol “community liaison” called Mr. Buchanan. The liaison informed Mr. Buchanan that agents had confirmed his account, and clarified that the abusive agent’s name was not “Taylor,” but “Haley.” The liaison said, “I don’t know why he lied to you.” The liaison would not say whether Agent Haley faced any consequences for his actions, but tried to reassure Mr. Buchanan that “it won’t happen again.” Mr. Buchanan later learned that a Border Patrol agent in Arivaca had asked Mr. Polen (whose checkpoint encounter, described above, occurred minutes ahead of Mr. Buchanan’s) for information about Mr. Buchanan; Mr. Buchanan does not know why a Border Patrol agent would be asking other Arivaca residents about him.
5. Shirley Stepp – Arivaca Road Checkpoint, Amado, AZ, Dec. 1, 2013.
On the morning of December 1, 2013, Shirley Stepp pulled into the Arivaca Road checkpoint following a run-in with a dead skunk. An agent asked if she was a U.S. citizen, and she confirmed that she is. The agent asked her about the smell of her car, and she explained that she had been at the home of a neighbor who recently killed a skunk. The agent said, “No, that’s not what it smells like,” and directed Ms. Stepp to the secondary inspection area.
Ms. Stepp pulled into the secondary inspection area and exited the vehicle. The agent indicated that he had called for a service canine. No service canine arrived, however, and after waiting nearly 45 minutes, the agent told Ms. Stepp, “It will save time if we can search your car.” In order to be released, Ms. Stepp consented to a search. The agent conducted an extended, invasive search of her vehicle. Ms. Stepp keeps a gas treatment additive in the rear of her vehicle; later, she discovered the container had been opened and flammable liquid was leaking all over the rear of the vehicle. After searching the interior of her car, the agent directed Ms. Stepp to empty her pockets. The agent questioned her at length about drugs and her prescribed medication, refusing to believe that the smell was due to a skunk, even when Ms. Stepp offered to call her neighbor to confirm her story. At one point, the agent claimed that by carrying her prescribed medication, Ms. Stepp had committed “an arrestable offense.” The service canine never arrived. Finally, after detaining Ms. Stepp for over an hour, the agents released her.
Ms. Stepp was outraged by this encounter. She felt humiliated watching her friends and neighbors drive by while she was detained. Some people tried to stop to check on her but were waved away by Border Patrol agents who claimed that she was “under investigation.” Though she has lived in Arivaca for the past 25 years, Ms. Stepp fears interacting with Border Patrol agents at the checkpoint, which she must drive through several times every week. She hears frequent reports from friends and neighbors about Border Patrol agents harassing and abusing Arivaca residents at the checkpoint.
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6. Don Tran & Chad Ivey – I-8 Checkpoint, California-Arizona State Line, Nov. 29, 2013.
On November 29, 2013, Don Tran and Chad Ivey were driving from San Diego to Phoenix on I8. Mr. Tran, 49, is a law school graduate and Mr. Ivey, 41, is a Marine veteran; both are IT professionals. They arrived at the I-8 Border Patrol checkpoint around 10:30 p.m. An agent asked if they were U.S. citizens, and they confirmed that they are. The agent directed Mr. Tran to pull into the secondary inspection area. Mr. Tran complied. In the secondary inspection area, agents again asked if Mr. Tran and Mr. Ivey were U.S. citizens, and again they stated that they are. An agent then asked Mr. Tran and Mr. Ivey to step out of the vehicle, without explanation. They both complied. As he was exiting, Mr. Tran locked his car.
Mr. Tran spoke with a supervising agent and made clear that he did not consent to a search of his vehicle. Mr. Tran and Mr. Ivey sat on a bench and watched as an agent arrived with a service canine. Mr. Tran and Mr. Ivey observed the dog and its handler, later identified as Agent Danny Ruiz circled their vehicle. The dog did not react to Mr. Tran’s vehicle in any way. After passing Mr. Tran’s vehicle, the dog alerted to a hand bag in an adjacent vehicle, pulling the bag out of the open trunk. The Border Patrol supervisor then notified Mr. Tran and Mr. Ivey, “We need to search your car. The dog got a hit on your car.” Mr. Tran objected that the dog had not alerted on his vehicle but rather on an item in an adjacent vehicle. Nonetheless, both the supervisor and Agent Ruiz asserted that they dog had “hit a positive scent” in Mr. Tran’s vehicle, giving Border Patrol probable cause for a search.
An agent tried to open Mr. Tran’s vehicle but it was locked. Mr. Tran repeated his objection to any search of his vehicle and suggested they call a judge to obtain a warrant. A group of agents conferred together before notifying Mr. Tran, “It’s going to be a while, we need to pat you down and put you in a holding cage while we wait for the magistrate.” Mr. Tran was directed to leave his car keys with the agents. Mr. Tran and Mr. Ivey each asked if they were being detained. Both of them were told, “You are being detained.” Mr. Tran and Mr. Ivey were taken to a holding area of small, wire cages and placed in separate cells. After approximately 45 minutes, agents returned and released them. After returning to their vehicle, it was apparent from the disarray that agents had searched the interior, including the glove compartment, center console, and trunk.
7. The Garcia Family – Route 86 Checkpoint, east of Tohono O’odham Indian Reservation, Aug. 19, 2013.
On August 19, 2013, Jason and Charlotte Garcia were driving east on State Route 86 from Sells, Arizona with their twin six-year-old foster children. Mrs. Garcia was driving when the family arrived at the checkpoint. Without inquiring about the family’s residence status, the agent directed Mrs. Garcia to pull into the secondary inspection area. Mrs. Garcia asked why they were being detained and the agent responded angrily, “Because I told you so.” The Garcias again asked for an explanation. A female agent, later identified as K. Riden, approached and directed Mrs. Garcia to pull into secondary. Agent Riden stated that she would forcefully remove the Garcias from their vehicle and drive the car into secondary if they did not comply. The Garcias repeated their request for an explanation. Agent Riden claimed that a service canine had “alerted” to the vehicle. The Garcias stated that they did not have anything in the vehicle that would cause a dog to alert, and no dog was nearby.
Agent Riden then directed another agent to “put it down,” shorthand for deploying a tire deflation device to prevent the vehicle from driving away. Mrs. Garcia told the agent that she would go to the secondary inspection area, and Agent Riden instructed her to “hold on.” The tire deflation device was removed and Mrs. Garcia drove into secondary, where Agent Riden demanded that the Garcias exit the vehicle. The Garcias had begun recording the incident on a cell phone. When Mrs. Garcia exited the
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vehicle with the phone, Agent Riden yelled at her to turn it off, and tried unsuccessfully to grab the phone from Mrs. Garcia’s hand, poking her chest. Mrs. Garcia handed the phone to her husband. Agent Riden continued to yell and demanded that Mr. Garcia turn the phone off. Agent Riden stated that Mr. Garcia could not use her phone to record because Border Patrol was searching the vehicle “based on probable cause.” Agent Riden continued yelling at Mr. Garcia to turn off the phone.
The Garcia family was escorted to a nearby bench. Several agents stood over them in a threatening manner as the Garcia parents tried to comfort their sons, who were terrified by what was happening. From where they were sitting the Garcias could not see whether or not agents were searching their vehicle. Agent Riden continued yelling at Mr. Garcia to turn off his phone. Another agent told the Garcias they were “setting terrible role models” for their children. Mr. Garcia could see that Agent Riden’s behavior was upsetting his children, so he turned the phone off, but not before Agent Riden attempted, again unsuccessfully, to grab the phone out of his hands. Another agent pulled Mr. and Mrs. Garcia aside and told them not to “argue” with Agent Riden which would “just make matters worse” for them. The Garcia parents continued to try to comfort their children, who were visibly upset. Finally, the Garcia family was released. They were never asked about their citizenship.
This incident was extremely traumatic for the Garcia children, who continued to refer to the experience for several weeks. One of the children stated that he was afraid that Border Patrol agents were going to “throw Mom down.” The other child said he did not want to visit his cousin in Sells anymore because he did not want to cross the checkpoint again. Several days after the incident, the Garcia children spotted some Border Patrol agents in a local diner and were instantly afraid; the boys clung to their parents and asked if the agents were going to harm them. Both Mr. and Mrs. Garcia work in Sells. It is not possible for them to return from work without passing through one of the four Border Patrol checkpoints surrounding the Tohono O’odham Indian Reservation. Mrs. Garcia often returns from work late at night, sometimes arriving at the checkpoint around midnight, with no other cars around. Agents have repeatedly demanded that she open her trunk for inspection, questioned her about matters unrelated to her immigration status, and refused to provide names and badge numbers when requested.
Mr. Garcia says, “The Reservation has become a police state. It seems like no one can go out in public without being questioned by Border Patrol agents.” He says Border Patrol agents do not respect tribal customs or the law, and that abuses of tribal members19 have become more common because agents “are never held accountable for their actions.”
19 See Stanley Throssell, 77-year-old woman says Border Patrol agent abused her at AZ 86 checkpoint, THE RUNNER, Oct. 18, 2013, available at, http://oodhamrunner.com/community/77-year-old-woman-says-border-patrolagent-abused-her-at-az-86-checkpoint/ (“A 77-year-old woman from San Pedro Village says a Border Patrol agent left her with bruises when he grabbed her arm as she went to open the trunk of her car at the checkpoint on Arizona Highway 86 east of the reservation boundary. Mildred Antone said the incident took place Oct. 12, between 5 and 6 p.m. as she was on her way to San Xavier for the celebration of Saint Kateri Tekakwitha…Antone said when she drove up to the checkpoint, an older Border Patrol agent asked her to open her car trunk. She noted that it’s not easy for her to get in and out of her car, so she told the agent that there was nothing in her trunk. She said he continued to insist that she open the trunk, and an argument ensued. Antone admitted to letting loose an expletive, and the agent responded by implying that tribal members lie to the agents all the time. Antone said she then pushed her car door open and the agent walked into it. She walked to open up the trunk, and that is when the agent grabbed her by the arm, she said. The incident escalated from there, she said, as the agent accused her of assaulting a federal officer. She was told to pull her car to a secondary checkpoint area, and she said she complied, giving the agent her driver’s license. Several agents huddled together, then the agent with whom she had the confrontation came over to her, saying her age was of no consequence, he would throw her in jail and tow away her car, she recalled. He then tossed her driver’s license into the front window of her car and told her to leave, she said. Antone said she is now fearful of going to the checkpoint. ‘I’m afraid to go down there to the checkpoint. I haven’t gone because I’m afraid he might still be there,’ she said.”)
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8. Julia Turner – Tombstone Checkpoint, Route 80, Jan. 1, 2013. 9. Julia Turner – Tombstone Checkpoint, Route 80, Nov. 8, 2012.
On the evening of January 1, 2013, Julia Turner, then 19-years-old, was on her way home from work. Ms. Turner is Hispanic and describes her appearance as Hispanic. At the Tombstone checkpoint, Ms. Turner was questioned about her citizenship and asked to hand over her driver’s license. An Agent Cooper walked around her vehicle with a service canine. Ms. Turner saw that the dog did not react to her vehicle and had begun to move to the car behind hers when Agent Cooper pulled on the dog and started tapping on the trunk of Ms. Turner’s vehicle. Agent Cooper then told Ms. Turner the dog had “hit” on something in the car and directed her to pull into the secondary inspection area.
Ms. Turner pulled into the secondary inspection area, turned off her vehicle, and exited with her purse and phone. Agent Cooper told her to leave her purse and phone in the car. Ms. Turner objected, and Agent Cooper tried to grab her phone out of her hands. She again objected, but Agent Cooper told her it was “part of procedure.” Ms. Turner retained her phone and called her father, a retired Sheriff’s Deputy with extensive experience with police dogs.20 Two other agents approached and an Agent Nabity told Ms. Turner that if she did not hang up the phone she would have to “sit there a long time and not be able to leave.” Meanwhile, Agent Cooper and another agent searched Ms. Turner’s car. Agents removed Ms. Turner’s registration as well as her prescription medication. Agent Cooper and Agent Nabity began to question her about the medication at length, even after they were presented with a valid prescription. Ms. Turner was detained approximately 35 minutes before she was released.
Two months earlier, on the evening of November 8, 2012, Ms. Turner was driving home from work when an agent asked her for her driver’s license, proof of insurance, and information related to her commute. An agent then notified Ms. Turner that a dog had “alerted,” giving Border Patrol probable cause to search her car, and directed her to the secondary inspection area. An agent told Ms. Turner to hand over her cell phone, but she refused and was able to call her father. Agents detained Ms. Turner for approximately 45 minutes while they searched her vehicle before releasing her.
In addition, Ms. Turner faced additional scrutiny on at least three prior occasions at the same checkpoint. In each instance, agents asked Ms. Turner to turn off her engine and open her trunk for inspection. Each time she was asked about her work, where she was going and why, and about her vehicle. Each time, agents asked her to show identification, registration, and proof of insurance. On several occasions, Ms. Turner witnessed other cars being waved through while she was detained. Ms. Turner believes she was subject to additional scrutiny and harassment on account of her ethnicity.
10. David Chapman – Huachuca City Checkpoint, Route 90, December 28, 2012. 11. David Chapman – Sunsites Checkpoint, Route 191, Dec. 21, 2012. 12. David Chapman – Sunsites Checkpoint, Route 191, Oct. 24, 2012.
David Chapman, 45, is a small business owner and 15-year resident of Pearce, Arizona. On December 28, 2012 at approximately 11:45 a.m., Mr. Chapman arrived at the Border Patrol checkpoint located on Route 90 north of Sierra Vista, Arizona. Mr. Chapman was informed that a service canine had alerted to his car, and he was directed to pull into the secondary inspection area. A supervisor named Agent Caspar approached Mr. Chapman’s vehicle with an Agent Debusk. Agent Debusk proceeded to
20 Brian Turner has driven through the Tombstone checkpoint and observed the dogs being improperly handled. He believes agents arbitrarily decide whom to question, only subjecting some persons to stops and searches, and that his daughter was repeatedly detained on account of her Hispanic appearance. Mr. Turner, who is Caucasian, has driven his daughter’s vehicle through Border Patrol checkpoints without facing similar detention or harassment.
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search the interior of the vehicle and Mr. Chapman’s personal effects. Mr. Chapman repeatedly objected to the search, which greatly amused Agent Caspar. Agent Caspar laughed and said, “Go tell Congress, it won’t get you anywhere.” Mr. Chapman was detained for over ten minutes while his car was searched before he was released. He was not questioned about his residence status.
On December 21, 2012, at approximately 1:30 p.m., Mr. Chapman arrived at the Sunsites checkpoint on Route 191. He was not asked about his citizenship; instead, he was immediately directed to pull into the secondary inspection area. An Officer C. Swanson told him that a service canine had alerted and directed the dog into Mr. Chapman’s vehicle. Mr. Chapman objected to the search. Mr. Chapman later discovered the dog had destroyed some business-related paperwork in the front seat. Mr. Chapman was eventually released.
On October 24, 2012 at approximately 9:30 a.m., Mr. Chapman arrived at the Sunsites checkpoints. A service canine jumped onto Mr. Chapman’s vehicle. Mr. Chapman objected that the dog was scratching his truck. An Agent M. Torres informed him that his dog had “hit,” and directed Mr. Chapman to pull into the secondary inspection area. Agent Torres then told Mr. Chapman that he had probable cause to search the vehicle. Another agent asked Mr. Chapman for identification and asked him to exit his vehicle. Agent Torres proceeded to lead the dog around the vehicle, saying, “Get it boy, get it boy.” The dog continued to jump onto the vehicle. Agent Torres returned the dog to its kennel and continued to search Mr. Chapman’s truck bed, pausing to confer with an Agent J. Caporale. Agent Torres questioned Mr. Chapman about his use of the vehicle and about drugs. After being detained for approximately fifteen minutes, Mr. Chapman was released. He was not asked about his residence status.21
II. Constitutional Limitations on Immigration Checkpoints
The Fourth Amendment imposes limits on the government’s search-and-seizure powers to prevent “arbitrary and oppressive” interference with the privacy and personal security of individuals. United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). Accordingly, courts have imposed strict limitations on Border Patrol checkpoint operations; indeed, the legal legitimacy of immigration checkpoints is premised upon those limitations. Id. at 556–57. (“The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”)
In Martinez-Fuerte, the Supreme Court found immigration checkpoints to be permissible only insofar as they involve a “brief detention of travelers during which (a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Id. at 558 (citation omitted). The Court specified, “Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search.” Id. The Court condoned referrals to secondary inspection areas “made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy.” Id. at 560 (emphasis added). “The objective intrusion of the stop and inquiry thus remains minimal [and] should not be frightening or offensive because of their public and relatively routine nature,” the Court observed. Id.; see also United States v. Ortiz, 422 U.S. 891, 894–95 (1975) (“At traffic checkpoints the motorist can see that other vehicles are being stopped…and he is much
21 This was not Mr. Chapman’s last encounter with Agent Torres. On December 16, 2012 at around 11:30 a.m., Mr. Chapman again arrived at the Sunsites checkpoint. The checkpoint was not in operation, but as Mr. Chapman drove through, he made eye contact with Agent Torres before continuing westbound on Route 191. Approximately one quarter mile down the road, a Border Patrol vehicle approached Mr. Chapman from the rear until it was a car’s length from his rear bumper. The Border Patrol vehicle tailgated Mr. Chapman at a speed of 65 miles per hour for about half a mile before pulling off the road. Mr. Chapman subsequently called the Wilcox Border Patrol station to submit a verbal complaint, but did not receive a response.
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less likely to be frightened or annoyed by the intrusion.”) As for local residents subject to frequent stops, the Court noted, “Motorists whom the officers recognize as local inhabitants…are waved through the checkpoint without inquiry.” Id. at 550.
That case was decided almost 40 years ago, in 1976.22 Today, Border Patrol checkpoints diverge in significant respects from those described in Martinez-Fuerte. In Arizona, most checkpoints are located in rural areas where local residents are often forced to undergo searches and detentions ranging far beyond “limited” citizenship inquiries and not justified by “heavy traffic.”23 Border residents—including the many individuals who must pass through checkpoints daily to go to work, run errands, or take children to school—describe feelings of anxiety, fear, and anger after being interrogated, harassed, searched, and/or assaulted by federal agents. These individuals are not “waved through the checkpoint without inquiry,” as the Supreme Court envisioned. Id. Each of the motorists described herein was referred for non-routine, unjustified detentions in a secondary inspection area on at least one occasion. Two of the above complainants were threatened with firearms.24 Mr. Forrey and Mrs. Garcia were physically assaulted. Ms. Stepp was threatened with imprisonment. Mr. Ivey and Mr. Chan were detained in wire cages for approximately 45 minutes while their car was searched on a pretext and without their consent. The Garcia children fear passing through the checkpoints that surround the Tohono O’odham Indian Reservation where their parents work. While the Supreme Court in Martinez-Fuerte condoned immigration checkpoints because they were thought to impose a “minimal,” non-offensive intrusion on the rights of motorists, the daily experiences of border residents profoundly undermine that premise, and by extension, the legitimacy of the checkpoints themselves. Id.25
In many cases, agents appear to be dispensing with any pretext of immigration enforcement, instead conducting generalized criminal investigations, which the Supreme Court has found to be unconstitutional. See City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.”); Delaware v. Prouse, 440 U.S. 648 (1979); see also United States v. Ellis, 330 F.3d 677, 680 (5th Cir. 2003) (allowing Border Patrol to routinely tack on otherwise impermissible drug interdiction questioning was “essentially an attempt to circumvent the [Supreme] Court’s holding in Edmond…”) (quotations omitted). In Edmond, the Supreme Court invalidated a checkpoint established for general crime control purposes: “Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.” Id. at 42.
22 There were roughly 1,800 Border Patrol agents nationwide in 1976. Today, there are over 21,000. 23 One of the checkpoints at issue in Martinez-Fuerte was located on I-5 in California, and referrals to secondary inspection areas were justified in part by the necessity of managing heavy traffic on “important highways.” Martinez-Fuerte, 428 U.S. at 556–57. By contrast, the majority of Border Patrol checkpoints are located on rural state highways and county roads where traffic is light and motorists often interact with agents in isolation. 24 Both of those incidents occurred shortly before The Arizona Republic reported on the absence of known consequences for agents who use deadly force. See Rob O’Dell and Bob Ortega, Deadly Border Agents Incidents Cloaked in Silence, ARIZONA REPUBLIC, Dec. 16, 2013, available at http://www.azcentral.com/news/politics/articles/20131212arizona-border-patrol-deadly-force-investigation.html (noting that 42 individuals have been killed by Border Patrol agents since 2005 and, “In none of the 42 deaths is any agent or officer publicly known to have faced consequences — not from the Border Patrol, not from Customs and Border Protection or Homeland Security, not from the Department of Justice, and not, ultimately, from criminal or civil courts.”) 25 See also Martinez-Fuerte, 428 U.S. at 572–73 (Brennan, J., dissenting) (“One wonders what actual experience supports my Brethren's conclusion that referrals ‘should not be frightening or offensive because of their public and relatively routine nature.’…[F]or the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting.” (citations omitted))
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For many border residents, invasive stops have long since become a “routine part of life.” Id. In the above cases, three humanitarian aid workers were detained for thirty minutes solely because an agent claimed that backpacks are per se suspicious; one motorist was detained over an hour because her car smelled like a skunk; another because he was “driving like an idiot”; and yet another was detained and threatened with a firearm because an agent “didn’t recognize” him. Ms. Stepp and Ms. Turner were harassed and questioned about their legitimate prescription medications. The residents of Arivaca have documented similar experiences.26 Most tellingly, in each of the stops described herein, Border Patrol had either completed or never initiated any immigration-related inquiry when it detained these motorists; ten of the fifteen individuals described above were never asked about residence status at all. Also revealing is the common sight of local law enforcement with no immigration enforcement authority accompanying Border Patrol agents at checkpoints. With so many agents going far beyond—or simply ignoring—the permissible “limited inquiry into residence status,” it is difficult to discern what differentiates Border Patrol checkpoints from the general crime control checkpoints held to be unconstitutional more than a decade ago in Edmond. See also United States v. Soyland, 3 F.3d 1312, 1316 (9th Cir. 1993) (Kozinski, J., dissenting) (“There's reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez–Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment.”)27
Additionally, it is clear that Border Patrol agents regularly exceed the lawful limits of their authority in the course of individual stops, resulting in widespread rights abuses. There is no question that agents cannot extend checkpoint stops for any length of time for non-immigration purposes, absent “reasonable suspicion” that a crime has been committed. See United States v. Preciado-Robles, 964 F.2d 882, 884–85 (9th Cir. 1992) (articulable suspicion is required for detention following immigration questioning and “there must be a valid basis for any additional intrusion, and it must be of a brief duration.”); Ellis, 330 F.3d 677, 680 (“[A]n agent at an immigration stop may investigate nonimmigration matters beyond the permissible length of the immigration stop if and only if the initial lawful stop creates reasonable suspicion warranting further investigation.”); United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001) (“[T]he scope of an immigration checkpoint is limited to the justifying, programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint.”).
26 In one case, “[a]n Arivaca resident and a friend arrived at the checkpoint and identified themselves as U.S. citizens. An agent asked to search their vehicle and they declined. As a result, the agent directed them to the secondary inspection area. When they asked for an explanation, the agent replied that if they would not consent to a search, they would have to wait for a service canine to inspect the vehicle. They waited 20 minutes for the dog to arrive, at which point agents demanded that they exit the vehicle, without explanation, and then opened the door of their car and let the dog in. When they objected, agents yelled at them to remain still and keep their hands visible. They were not allowed to use their phones. One of the agents then claimed that the dog had ‘alerted’ because it had ‘changed its breathing pattern.’ After 45 minutes, they were finally released. Agents told them the search was, ‘for [their] own protection.’” In another case, an Arivaca resident, “arrived at the checkpoint and notified the agent she was a U.S. citizen. The agent asked if the vehicle she was driving belonged to her. She responded that she was a U.S. citizen. The agent said, ‘You can answer a simple question or we can do it the hard way,’ and directed her to the secondary inspection area. More agents arrived with a service canine, and claimed that the dog had ‘alerted’ to the presence of contraband. The agents demanded that the woman exit the vehicle, over her objections, then questioned her about drugs, firearms, and the vehicle’s history. The service canine found no drugs or contraband, but agents continued to search her trunk, then rifled through her purse and opened and smelled her water bottle. Before letting her go, the agents told her she had not been ‘respectful.’” See http://phparivaca.org/?page_id=210 27 See also Soyland, 3 F.3d 1312 at 1320 (Kozinski, J., dissenting) (“Given the strong hints that the Constitution is being routinely violated at these checkpoints, we owe it to ourselves and the public we serve to look into the matter. Even without an order of this court or the district court, the Department of Justice would be well-advised to establish the bona fides of these checkpoints.”)
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The government itself acknowledges this limitation on its authority. See Legal Opinion of INS General Counsel, Other Agencies Working at Border Patrol Checkpoints, at 2 (May 9, 1994) (“Referrals to the secondary inspection area that do not involve an immigration based violation must be supported by at least reasonable suspicion.”) (emphasis added); UNITED STATES BORDER PATROL, SAN DIEGO SECTOR, LEGAL ANALYSIS OF BORDER PATROL CHECKPOINTS 14 (June 1, 2003) (“Where Border Patrol agents seek to detain a vehicle for secondary inspection solely for some non-immigration purpose, the law generally requires the agents to have a ‘reasonable suspicion’ of criminal wrongdoing.”); see also CBP Inspector’s Field Manual, Section 18.7(b) (“Before an inspector may constitutionally detain a person…the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States.”)
By contrast, southern Arizona residents are regularly detained and questioned regarding weapons and drug trafficking, as well as medical history, work and family, their comings and goings, and other subjects in no way related to verifying immigration or residence status or based on reasonable suspicion of a crime. The stops described herein ranged from 15 minutes to over an hour, not the “brief” three to five minute stops and “limited” inquiries contemplated by the Supreme Court—though, as noted, absent reasonable suspicion of criminal wrongdoing, each of these stops would have been unlawful for any period of time. See Martinez-Fuerte, 428 U.S. at 547, 558-59; Ellis, 330 F. 3d at 680 (“[W]hen the purpose of a stop switches from enforcement of immigration laws to drug interdiction, a Fourth Amendment violation occurs unless the Border Patrol agent has individualized suspicion of wrongdoing.”) (emphasis added).28
It is also well-established that Border Patrol agents at permanent checkpoints may not search the interior of any vehicle without consent or probable cause. Ortiz, 422 U.S. 891; see also Almedia-Sanchez v. United States, 413 U.S. 266 (1973). Consent to a search must be knowingly and voluntarily given, and must not be the product of coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Agents routinely ignore this limitation as well. As described above, Mr. Buchanan’s vehicle was searched without any lawful basis and over his repeated objections. Ms. Stepp only consented to a search of her vehicle and her person after being forcibly detained and humiliated for 45 minutes. Mr. Forrey’s vehicle was searched after he was threatened at gunpoint. Mr. Tran’s vehicle was searched on a pretext. Mr. Forrey, Mr. Polen, Mrs. Garcia, Ms. Turner, and Mr. Chapman were all subjected to vehicle searches on multiple occasions. These searches, lacking consent and probable cause, were unlawful. Id.
Equally troubling is agents’ common practice of asserting that service canines have “alerted” to contraband as a basis for probable cause to conduct a search. A canine alert can provide agents with probable cause for a search only if the reliability of the dog and the handler are established. United States v. Lingenfelter, 997 F. 2d 632, 639 (9th Cir. 1994). There are ample grounds, however, to doubt the reliability of Border Patrol’s use of service canines, including numerous studies and court decisions questioning the ability of canines to detect contraband accurately. See, e.g., United States v. Thomas, 726 F.3d 1086, 1093 (9th Cir. 2013) (Border Patrol canine certification records showed marginal performance but were too heavily redacted to afford adequate opportunity to challenge basis for search); Merrett v. Moore, 58 F.3d 1547, 1549 (11th Cir. 1995) (noting that narcotics were not found in twenty-seven out of twenty-eight alerts at a temporary checkpoint); Doe v. Renfrow, 631 F.2d 91, 95 (7th Cir. 1980) (Fairchild, C.J., dissenting) (noting false alerts in thirty-five out of fifty encounters); see generally Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 427, 430 (1997) (noting that “even a very high accuracy rate can produce an unreasonable amount of false positives” and that service canines are “least effective when they survey a random population.”)
28 See also Edmond, 531 U.S. at 56. (Thomas, J., dissenting) (“I rather doubt that the Framers would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”)
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The experiences of Arizona motorists raise similar concerns. In the eight examples of false canine alerts documented herein, none resulted in the discovery of contraband. In some instances, agents appeared to be using the service canines as excuses to conduct a search. In the case of Mr. Tran and Mr. Ivey, a canine’s alert to another motorist’s bag was used as a basis for searching their vehicle. Ms. Turner described a similar experience, with agents striking her vehicle to encourage the dog to alert.29 In the case of Mr. Polen, agents were unclear about the basis for his detention before settling on an alleged canine alert, even though there was no dog nearby. Several of the cases documented by Arivaca residents involved Border Patrol calling for service canines only after motorists legitimately declined to consent to a search or answer questions not related to citizenship; in several instances, agents then claimed a service canine “alerted,” giving them probable cause for a search. In none of those cases was any contraband discovered. The frequency of false canine alerts at Border Patrol checkpoints indicates either that canines are frequently unreliable, or that agents are using canines fraudulently in order to obtain probable cause where it does not otherwise exist, or both. Whichever the case may be, the result is that border residents are regularly subject to unconstitutional searches and detentions.
Additionally, as we have seen in the context of “roving patrol” stops,30 Border Patrol continues to rely on race and ethnicity as factors in subjecting certain motorists to additional scrutiny and detention at checkpoints. In addition to Ms. Turner’s account of multiple racially-motivated detentions, the ACLU receives reports from Latino and Native American residents who experience additional scrutiny and delay at checkpoints, for no apparent reason other than their perceived race or ethnicity.31 Such practices are unlawful as well. See Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000); Melendres v. Arpaio, Civ. No. PHX–CV–07–02513–GMS, 2013 WL 2297173, at *69 (D. Ariz. May 24, 2013) (“[T]here is no legitimate basis for considering a person’s race in forming a belief that he or she is more likely to engage in a criminal violation, and the requisite ‘exact connection between justification and classification,’ in focusing on Hispanic persons in immigration enforcement is lacking.”) (citation omitted).32
***
Border Patrol checkpoints today bear little resemblance to those authorized by the Supreme Court in Martinez-Fuerte. Many Border Patrol officials do not understand—or simply ignore—the legal limits of their authority at checkpoints. One of the agents described above resorted to reading legalese from a tiny script that he did not understand, misstating the applicable legal standard, to try to justify the stop. Others claimed, falsely, that motorists could not make phone calls or videotape agents searching vehicles. Multiple citizens have reported being told by agents, “You have no rights here,” or that refusal to consent to a search gives agents probable cause for a search. In many cases, agents responded to citizens who legitimately asserted their rights with additional abuses. The Office of Inspector General recently
29 The agent’s contact with the vehicle may have in and of itself been unlawful. See Thomas, 726 F.3d at 1093 (“[I]t is conceivable that by directing the drug dog to touch the truck and toolbox in order to gather sensory information about what was inside, the border patrol agent committed an unconstitutional trespass or physical intrusion.”) 30 The ACLU submitted a complaint on October 9, 2013, on behalf of five Arizona residents subjected to unlawful roving patrols, at least one of whom appeared to have been racially profiled by Border Patrol. See http://www.acluaz.org/sites/default/files/documents/ACLU%20AZ%20Complaint%20re%20CBP%20Roving%20P atrols%20Oct%209%202013.pdf 31 One Arivaca resident, a naturalized U.S. citizen, has “repeatedly faced extended questioning and demands for identification at the Arivaca Road checkpoint. Although she is a citizen, agents have demanded that she show proof of naturalization, which she is not required to carry. She believes this scrutiny is based solely on her Hispanic appearance and her accent.” See http://phparivaca.org/?page_id=210 32 See also U.S. DEP’T OF JUSTICE, GUIDANCE REGARDING THE USE OF RACE BY FEDERAL LAW ENFORCEMENT AGENCIES, (June 2003), available at http://www.justice.gov/crt/about/spl/documents/guidance_on_race.pdf
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concluded that Border Patrol agents do not understand agency use of force policies.33 This profound lack of understanding evidently extends to checkpoint procedures as well. These problems are compounded by the fact that agents at checkpoints do not appear to document their interactions with motorists—including agents’ use of force, false alerts by service canines, and prolonged detentions—not resulting in arrest. The lack of documentation and oversight makes it impossible to know when Border Patrol agents are exceeding their authority or straying from agency guidelines. This is a recipe for further abuse.
Finally, as we have noted before, the complaint process by which individuals report abuses to Border Patrol and other DHS entities is lacking in consistency and transparency and fails to provide meaningful redress to those whose rights have been violated. Border Patrol and DHS officials often fail to provide accurate information to complainants about the investigatory process or the status of their complaint, and are not responsive to reasonable requests for information. The ACLU is still awaiting response to a complaint filed on April 26, 2012 on behalf of eleven individuals abused by agents at Ports of Entry,34 and another filed on October 9, 2013 on behalf of five Arizona residents subjected to unlawful roving patrol stops.35 Unfortunately, the lack of attention by DHS and its agencies to these complaints— involving civil rights abuses by the largest federal law enforcement agency in the nation—is not atypical. As should by now be clear, the entire DHS complaint process is in dire need of reform, and a broader commitment to Border Patrol oversight, accountability, and transparency is long overdue.
III. Conclusion
We request that you conduct a prompt investigation of these individual allegations of abuse, along with any known checkpoint-related complaints from the past five years. We also urge a comprehensive review of checkpoint policies and practices to determine whether Border Patrol is complying with its obligations under the U.S. Constitution and agency guidelines—with particular attention to the extent to which agents at checkpoints are:
1) conducting investigations unrelated to verifying immigration status and without reasonable suspicion of criminal activity;
2) searching vehicles without consent or probable cause; 3) using service canines to obtain probable cause, either by claiming falsely that a dog has
“alerted,” or by relying on inadequately trained or unqualified canines, resulting in significant rates of false alerts; 4) racially profiling motorists at checkpoints; and 5) using excessive force, making false claims, and/or improperly interrogating, intimidating, and harassing motorists at checkpoints.
33 See Brian Bennett, Many Border Agents Don’t Understand Use-Of-Force Rules, Report Says, LA TIMES, Sept. 18, 2013, available at http://articles.latimes.com/2013/sep/18/nation/la-na-nn-border-patrol-use-of-force-20130918 (An audit showed that many agents “do not understand use of force and the extent to which they may or may not use force.”) This is in part due to the fact that training and hiring standards were lowered to accomplish the rapid expansion of the Border Patrol from roughly 12,000 agents in 2006 to over 21,000 today. See Greg Morgan, Hiring Practices Questioned after Border Agent’s Arrest, SAN DIEGO UNION TRIBUNE, Apr. 1, 2011, available at http://www.utsandiego.com/news/2011/Apr/01/hiring-practices-questioned-after-border-agents-ar/ (quoting a Border Patrol representative, “Pretty much everyone was being pushed through because they needed the bodies.”) 34 Available at https://www.aclu.org/files/assets/aclu_2012_cbp_abuse_complaint_2.pdf . DHS sent form responses regarding three of the eleven cases of abuse documented in the ACLU’s April 2012 complaint, without commenting on the many allegations of abuse by CBP officials or conducting interviews with any of the complainants. 35 Available at http://www.acluaz.org/sites/default/files/documents/ACLU%20AZ%20Complaint%20re%20CBP%20Roving%20P atrols%20Oct%209%202013.pdf. To date, DHS has contacted only one of the five individuals whose abuses were documented in the ACLU’s October 2013 complaint.
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In cases of unlawful conduct, we urge that the agents responsible be appropriately disciplined and that the results of your investigation be made public. Finally, significant changes in Border Patrol training, oversight, and accountability mechanisms are needed, and we again urge you to make substantive recommendations for such changes consistent with your institutional mission in order to prevent further abuses.
Please contact us with any questions or concerns at (602) 650-1854.
Sincerely,

James Lyall Staff Attorney ACLU of Arizona

Cc: Jeh Johnson Acting Secretary of Homeland Security U.S. Department of Homeland Security 245 Murray Lane SW Washington, D.C. 20528
Thomas Winkowski Acting Commissioner U.S. Customs and Border Protection 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20229
Manuel Padilla, Jr. Chief Patrol Agent – Tucson Sector U.S. Customs and Border Protection 2430 S. Swan Road Tucson, AZ 85711
Jocelyn Samuels Acting Assistant Attorney General Civil Rights Division Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
John S. Leonardo United States Attorney Department of Justice 405 W. Congress Street, Suite 4800 Tucson, AZ 85701

Senator John McCain U.S. Senator for Arizona 241 Russell Senate Office Building Washington, DC 20510
Senator Jeff Flake U.S. Senator for Arizona B85 Russell Senate Office Building Washington, DC 20510
Congressman Raúl Grijalva U.S. House of Representatives 1511 Longworth HOB Washington, DC 20515
Congressman Ron Barber U.S. House of Representatives 1029 Longworth HOB Washington, DC 20515

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EXHIBIT A

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EXHIBIT A

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January 15, 2014
Charles K. Edwards Deputy Inspector General Department of Homeland Security Office of Inspector General 245 Murray Drive, SW Building 410 Washington, D.C. 20528

Tamara Kessler Officer for Civil Rights and
Civil Liberties Department of Homeland Security Office of Civil Rights and Civil Liberties 245 Murray Lane, SW Building 410 Washington, D.C. 20528

Re: Complaint and request for investigation of abuses at U.S. Border Patrol interior checkpoints in southern Arizona, including unlawful search and seizure, excessive force, and racial profiling.

Dear Mr. Edwards and Ms. Kessler:

We write with serious concerns regarding U.S. Border Patrol interior vehicle checkpoints in southern Arizona. This complaint is submitted on behalf of 15 U.S. citizens, aged 6 to 69 years old, whose rights were violated in the course of more than 12 separate incidents over the past 15 months at 6 different Arizona checkpoints, as described in detail below.1 The ACLU receives frequent reports from Arizona residents regarding unconstitutional searches and seizures, excessive use of force, racial profiling, and other agent misconduct at checkpoints. Residents describe similar patterns of abuse at various checkpoints throughout the state—including searches based on service canines “alerting” to nonexistent contraband2 and prolonged, unjustified detentions—indicating that these incidents are not anomalous or perpetrated by a few “bad apples,” but rather are the result of systemic deficiencies in Border Patrol policies and practices, which are leading to widespread rights violations.

The ACLU is a non-partisan, non-profit, nation-wide organization that works daily in courts, communities, and legislatures across the country to protect and preserve the rights and liberties established by the Bill of Rights and state and federal law. The ACLU has a particular commitment to ensuring that fundamental constitutional protections of due process and equal protection are extended to every person, regardless of citizenship or immigration status, and that government respects the civil and human rights of all people. The ACLU of Arizona is an ACLU state affiliate organization with over 7,000 supporters. The ACLU’s Border Litigation Project investigates, documents, and litigates civil and human rights violations in the U.S.-Mexico border region.

1 Five of these incidents occurred in the same week in late November-early December 2013, at three different checkpoints. Though several of the individuals described below have experienced checkpoint-related abuses on multiple occasions, this letter focuses on the most recent incidents. 2 In at least eight of the incidents documented herein, Border Patrol service canines “alerted” in the absence of contraband. The ACLU recently filed a lawsuit on behalf of a U.S. citizen subjected to a strip search, multiple genital and cavity searches, a forced bowel movement, an X-ray, and a CT scan following a similar false alert by a U.S. Customs and Border Protection service canine. See Jane Doe v. El Paso County Hospital District, et al., No. 3:13-CV-00406-DB (W.D.Tex. filed Dec. 18, 2013); Complaint available at http://www.aclu-nm.org/wpcontent/uploads/2013/12/Complaint-Jane-Doe-v-Various-Defendants-12-18-13.pdf
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Residents of southern Arizona are increasingly outraged by Border Patrol checkpoints, and for good reason. Forty years ago, the U.S. Supreme Court condoned immigration checkpoints under the assumption that the stops are “brief,” and involve, at most, a “limited inquiry into residence status” and a “visual inspection” of the exterior of the vehicle.3 In practice, border residents regularly experience extended interrogation and detention not related to establishing citizenship, invasive searches, verbal harassment, and physical assault, among other abuses. As discussed below, Border Patrol checkpoints often appear to be operated as drug interdiction checkpoints, which are unconstitutional,4 and not for the limited purpose of verifying residence status. Indeed, most of the individuals described herein were never asked about their citizenship, and Border Patrol’s own figures show that the vast majority of drug-related arrests at checkpoints do not involve unauthorized immigrants at all, but rather, U.S. citizens.5
According to a 2009 U.S. Government Accountability Office (GAO) Report, Border Patrol operates 71 permanent and tactical checkpoints across the southwest.6 These operations stem from Border Patrol’s authority to conduct warrantless seizures within “a reasonable distance”7 of the border. That distance is defined by outdated regulations to be “100 air miles”8 from any external boundary, including coastal boundaries, and thus encompasses roughly two-thirds of the U.S. population and the entirety of several states.9 In practice, Border Patrol ignores that limitation, roaming still further into the interior of the country.10 In Arizona, most checkpoints are located on rural state highways between 25 and 50 miles north of the border, many of them in the vicinity of southern Arizona towns and cities.
3 See United States v. Martinez-Fuerte, 428 U.S. 543, 558–60 (1976), discussed infra. 4 See City of Indianapolis v. Edmond, 531 U.S. 32 (2000), discussed infra. 5 The vast majority of these arrests are for marijuana-related offenses, and the number of arrests in 2011 was triple that in 2005. See Andrew Becker, Four of Five Border Patrol Drug Busts Involve US Citizens, Records Show, CENTER FOR INVESTIGATIVE REPORTING, Mar. 26, 2013, available at http://cironline.org/reports/four-five-borderpatrol-drug-busts-involve-us-citizens-records-show-4312. Meanwhile, CBP’s data shows that apprehensions of undocumented immigrants are at 40-year lows while deaths of border crossers are at historic highs. See Bob Ortega, Border Apprehensions Up, But Still Near Historic Lows, ARIZONA REPUBLIC, Jun. 3, 2013 available at http://www.azcentral.com/news/politics/articles/20130531mexico-border-apprehensions-up.html 6 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, REPORT TO CONGRESSIONAL REQUESTERS, BORDER PATROL: CHECKPOINTS CONTRIBUTE TO BORDER PATROL’S MISSION, BUT MORE CONSISTENT DATA COLLECTION AND PERFORMANCE MEASUREMENT COULD IMPROVE EFFECTIVENESS, GAO-09-824, (Aug. 2009) available at http://www.gao.gov/products/GAO-09-824. 7 See 8 U.S.C. § 1357(a)(3). 8 See 8 C.F.R. § 287.1(b). The Justice Department published regulations defining “reasonable distance” as 100 miles in 1957. See Field Officers: Powers and Duties, 22 Fed. Reg., 236, 9808–09 (Dec. 6, 1957) (to be codified at C.F.R. § 287). There is no public history to indicate why the Justice Department chose 100 miles as the “reasonable distance” from the border. It may have been that 100 miles had historically been considered a “reasonable” distance regarding availability of witnesses for examination, responses to subpoenas, and other discovery issues under federal law. See, e.g., 10 U.S.C. § 849; FED. R. CRIM. P. 7; FED. R. CIV. P. 45. 9 Though immigration checkpoints are mostly confined to the southwest, Border Patrol has operated temporary checkpoints in northern states as well. A recent Freedom of Information Act (FOIA) request uncovered design plans for permanent checkpoints on southbound New England highways. See ACLU OF VERMONT, SURVEILLANCE ON THE NORTHERN BORDER, (Sept. 17, 2013), available at http://www.acluvt.org/surveillance/northern_border_report.pdf. 10 See, e.g., Todd Miller, War on the Border, NY TIMES, Aug. 18, 2013, available at http://www.nytimes.com/2013/08/18/opinion/sunday/war-on-the-border.html?pagewanted=all&_r=0 (describing checkpoint stop of Senator Patrick Leahy 125 miles from the border in New York state: “When Mr. Leahy asked what authority the agent had to detain him, the agent pointed to his gun and said, ‘That’s all the authority I need.’”); Michelle Garcia, Securing the Border Imposes a Toll on Life in Texas, AL JAZEERA AMERICA, Sept. 25, 2013, available at http://america.aljazeera.com/articles/2013/9/25/living-under-thelawofbordersecurity.html#mainpar_ adaptiveimage_0 (“[W]hen it was pointed out that [Alice, Texas] sits more than 100 miles from the border, [a Border Patrol spokesman] explained that ‘the law does not say that we cannot patrol. Our jurisdiction kinda changes.’”); see also United States v. Venzor-Castillo, 991 F.2d 634 (10th Cir. 1993) (finding Border Patrol lacked
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Border Patrol checkpoints have profoundly negative impacts on border communities. Recently, residents of Arivaca, Arizona11 began petitioning for the removal of one of three local checkpoints that surround their town, citing ongoing rights violations and harassment as well as harm to property values,12 tourism, and quality of life resulting from checkpoint operations. Community members have also been documenting examples of checkpoint abuses. One former local business owner (her small business suffered from the decline in tourism caused by the checkpoint and was forced to close its doors at the end of 2013) described being detained on her way to a doctor’s appointment following a heart attack, held for over an hour in the hot sun, not permitted to sit down, and denied water. Other Arivacans report that agents at the checkpoint have told them, “You have no rights here,” or that all community members are considered suspect simply by virtue of living in Arivaca.13 The Arivaca petition, recently presented to Border Patrol’s Tucson Sector Chief Manuel Padilla Jr., reads in part:
Residents are intimidated by armed federal agents and subjected to improper questioning and warrantless searches in violation of their 4th, 5th and 14th Amendment rights. It is not possible for Arivaca residents to leave northbound without passing through one of three area checkpoints. Thus, locals must pass through the checkpoint with regularity, sometimes daily, such that these constitutional rights violations are not merely occasional or minor inconveniences but rather frequent and substantial infringements. People of color experience greater scrutiny and longer detentions at the checkpoint; such racial profiling violates the law as well as the federal government’s own guidelines prohibiting any consideration of race or ethnicity in such encounters.14
The experiences described by the residents of Arivaca—and those listed below—are not unique; rather, they are consistent with numerous reports of rights violations across the state and throughout the southwest, and have become more common as Border Patrol has expanded at an unprecedented rate.15 The GAO has found numerous problems with checkpoint oversight, including “information gaps and reporting issues [that] have hindered public accountability, and inconsistent data collection and entry [that] have hindered management’s ability to monitor the need for program improvement.”16
reasonable suspicion to stop and search vehicle 235 miles from the border where agent had no knowledge regarding the origin of the vehicle). 11 A town of approximately 700 people, Arivaca is located 11 miles north of the U.S.-Mexico border and within 30 miles of three different Border Patrol checkpoints—one on Arivaca Road in Amado, Arizona, another on State Route 286, south of Three Points, Arizona, and a third on Interstate 19 outside of Tubac, Arizona. Residents must pass through the checkpoints daily to go to work, purchase groceries, or run basic errands. 12 See, e.g., Judith Gans, THE BORDER PATROL CHECKPOINT ON INTERSTATE 19 IN SOUTHERN ARIZONA: A CASE STUDY OF IMPACTS ON RESIDENTIAL REAL ESTATE PRICES, UNIVERSITY OF ARIZONA, (Dec. 2012), available at http://udallcenter.arizona.edu/ucpubs/gans_2012b.pdf 13 Additional narratives of Arivaca community members, three of which are described in greater detail in this complaint, are available at http://phparivaca.org/?page_id=210 14 Arivaca Checkpoint Petition, available at https://www.change.org/petitions/u-s-border-patrol-remove-the-checkpoint-on-arivaca-rd-in-amado-az-quite-el-ret%C3%A9n-de-la-carretera-de-arivaca-en-amado-az 15 From 2004 to 2011, as the ranks of agents doubled to more than 21,000, complaints involving CBP received by the DHS Office of Civil Liberties and Civil Rights nearly tripled. See DEP’T OF HOMELAND SEC., OFFICE OF CIVIL RIGHTS AND CIVIL LIBERTIES, “DEPARTMENT-WIDE DATA ON COMPLAINTS RECEIVED,” available at http://www.dhs.gov/department-wide-data-complaints-received. Given the many problems with the DHS complaint system, discussed infra, it is likely that incidents of abuse are substantially under-reported. 16 See GAO-09-824, supra at *28. Those findings were made in 2009, the last time the federal government conducted a thorough review of Border Patrol checkpoint operations and their impact on border residents and local communities. GAO’s “community impact” analysis omitted Tucson sector checkpoints on the grounds that, at the time, they were considered “tactical” and not permanent checkpoints. Id. at *89.
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We request that you promptly investigate and respond appropriately to each of the individual incidents detailed herein, and conduct a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years. Furthermore, a thorough review of Border Patrol checkpoint policies and practices is needed to ensure that operations are in fact limited to briefly verifying citizenship. This review should determine whether agents are receiving direction and instructions regarding the limits of their authority and if they adhere to those guidelines in practice. It should include all policies and procedures related to service canines, in light of widespread reports of “false alerts,” a problem that federal courts have long recognized.17 We believe significant changes in Border Patrol training, oversight, and accountability mechanisms are needed to prevent ongoing and systematic violations of state and federal law, as well as Border Patrol’s own guidelines, and to protect the rights of border communities. We urge you to make recommendations for such changes consistent with your mission to prevent further abuses.

Section I of this complaint describes 12 recent examples of unlawful practices at Border Patrol checkpoints in southern Arizona. Section II presents the applicable legal framework.

I.

Individual Complaints of Border Patrol Abuses at Checkpoints

1. Samaritans of Green Valley (Kathy Zweig, Lyn Nowakowski, & Fawn Brown) - Arivaca Road Checkpoint, Amado, AZ, Dec. 18, 2013.

At approximately 1:45 p.m. on December 18, 2013, Kathy Zweig, 69, Lyn Nowakowski, 68, and Fawn Brown, 59, arrived at the Arivaca Road checkpoint. All three are volunteers with Samaritans of Green Valley (“Samaritans”). The group has been providing humanitarian aid in southern Arizona for the past decade and passes through the Arivaca Road checkpoint daily. On this occasion, the volunteers pulled into the checkpoint in a clearly marked Samaritans vehicle and were met by a Border Patrol agent later identified as John Howard. Agent Howard did not ask any of the women about their citizenship; instead, he asked a series of questions about the contents of their vehicle, which they answered truthfully. Agent Howard was particularly interested in the volunteers’ backpacks in the rear of the vehicle, which the volunteers explained were used to carry food, water, and medical supplies for their humanitarian aid work. Agent Howard stated that the backpacks could also be used to carry narcotics and asked the volunteers to open the trunk. When they asked why, Agent Howard stated, “Because I have mere suspicion you could be carrying drugs.” Agent Howard then directed them to “pull into secondary.”

The volunteers pulled into the secondary inspection area and exited the vehicle. They again asked for an explanation. Agent Howard said, “I pulled you over for due diligence and mere suspicion.” When the women asked Agent Howard to articulate what his suspicion was based upon, Agent Howard explained that there could be narcotics in the backpacks “because that's what backpacks are used for. When we see backpacks, we become suspicious.” Agent Howard then repeated, “Just pop your trunk.” The women again refused and continued to ask for an explanation. Agent Howard replied, “The backpacks.” Agent Howard handed the volunteers a small, laminated card bearing U.S. Customs and Border Protection (“CBP”) and Border Patrol insignia and titled “Authority as an Agent.”18

17 See infra. 18 Attached herein as Exhibit A, the card reads in part: “Border Patrol agents may stop and question motorist [sic] at reasonably located checkpoints, even in the absence of individualized or reasonable suspicion.” Among other omissions, the card does not specify that questioning must be “brief” and the stop confined to a “limited inquiry into residence status.” United States v. Martinez-Fuerte, 428 U.S. 543, 558–60 (1976). Neither does it specify that “reasonable suspicion” is required for non-immigration inquiries (the standard is not “mere suspicion,” as the agent claimed), or that searches must be based on “probable cause” that a crime has likely been committed. See infra.
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Ms. Zweig, Ms. Nowakowski, and Ms. Brown proceeded to record the names of Agent Howard and the two other agents present, Agent Miguel San Quentin and Agent Alexis Barrios. As they were doing so, Agent Barrios became visibly angry and agitated, and ripped his name tag off his chest and thrust it in Ms. Nowakowski’s face in an aggressive and intimidating manner. Agent Howard continued to ask for consent to search the vehicle, and the volunteers continued to refuse. After approximately ten minutes, Agent Howard told them, “We called the dog and it will be here in a few minutes.” After another ten minutes had elapsed, a service canine and its handler arrived. Ms. Nowakowski recognized the handler, Agent Ewing, from several prior interactions. Agent Ewing said, “Just let me walk around the car with the dog.” Ms. Nowaskowski again objected, and asked if she and the others were free to go. Agent Ewing said that they were. As Ms. Nowaskowski was returning to the vehicle, Agent Howard asked Agent Ewing, “Are you releasing them?” Agent Ewing responded that he was.
Ms. Zweig, Ms. Nowakowski, and Ms. Brown were detained for approximately thirty minutes. They were never asked about their citizenship.
2. John Forrey – Tombstone Checkpoint, Route 80, Dec. 6, 2013.
On December 6, 2013, John Forrey arrived at the Tombstone checkpoint located on Arizona State Route 80. Mr. Forrey is a professional photographer and native of Bisbee, Arizona. An agent peered through the back window of his vehicle and asked him to open his trunk. Mr. Forrey did not consent to a search of his trunk. The agent asked Mr. Forrey where he was coming from. Mr. Forrey responded that this was personal information. The agent asked Mr. Forrey if he had a driver’s license, and Mr. Forrey said that he did. The agent then directed Mr. Forrey into a secondary inspection area. Mr. Forrey asked why he was being detained. The agent called over another agent, identified as Agent Torres, who asked Mr. Forrey if he was refusing to go to secondary. Mr. Forrey replied that he was not refusing but was asking why he was being detained. Mr. Forrey then pulled into secondary and left the motor running and his foot on the brake.
Agent Torres approached and asked if Mr. Forrey had a weapon. Mr. Forrey did not have a weapon, but because the question was not related to his citizenship, he paused to consider whether or not he was required to answer. Before Mr. Forrey could respond, however, Agent Torres unholstered his gun, and holding it a foot away, pointed it at Mr. Forrey’s face, screaming at him not to reach for anything. Other agents approached, pulled Mr. Forrey’s left arm through the open window, and began twisting it. The agents opened the door as Agent Torres directed them to pull Mr. Forrey out. Mr. Forrey tried to put the automatic transmission in park so the car would not roll. Agent Torres, still pointing his gun at Mr. Forrey’s head, started screaming, “He's reaching for the console!” Mr. Forrey stopped reaching for the transmission. The agents started dragged Mr. Forrey out of the car, causing his foot to come off the brake and the car to roll forward. Agent Torres yelled, “Put it in park, asshole!” Mr. Forrey put the car in park. Agent Torres then holstered his pistol, pulled out his Taser and yelled, “Let's just Taser him!” Instead, the agents handcuffed Mr. Forrey and left him on a bench nearby while they searched his car.
A supervisor approached and accused Mr. Forrey of intentionally trying to harm the agents by allowing his car to roll forward. Mr. Forrey noted that, with a gun pointed at his head, he had been instructed not to reach for anything while being forcibly removed from his vehicle. Mr. Forrey objected strongly to his detention and to the conduct of Agent Torres. The supervisor did not release Mr. Forrey from the handcuffs, but said that he would “talk to Torres.”
Agents continued to search the interior of the vehicle over Mr. Forrey’s repeated objections. To open the passenger door, which was locked, one of the agents broke the door latch mechanism; as a result, the door now does not open or close securely. The agents called for an Arizona Department of Public
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Safety officer, but an officer never arrived. Mr. Forrey was detained for approximately 40 minutes before he was finally taken out of handcuffs and released. He suffered a bruise on his upper left arm and cuts on his left hand. Mr. Forrey was not asked about his citizenship status.
This was not the first time Mr. Forrey has been detained by the Border Patrol. About three months earlier, Mr. Forrey was pulled over while driving approximately 30 miles north of the border. An agent approached him and immediately asked to look in his trunk. The agent did not say why he pulled Mr. Forrey over and did not ask him about his residence status. Mr. Forrey was detained for 30 minutes before being released. The next day, Mr. Forrey arrived at the Tombstone checkpoint. Again an agent asked to look in Mr. Forrey’s trunk. Mr. Forrey refused and had to wait while a service canine inspected his car. Mr. Forrey is a professional photographer who travels extensively in southern Arizona. He has been pulled over by Border Patrol dozens of times, sometimes as far as 60 miles from the border.
3. Dale Polen – Arivaca Road Checkpoint, Amado, AZ, Dec. 2, 2013.
Dale Polen is a six-year resident of Arivaca, Arizona and a local mechanic. On December 2, 2013, Mr. Polen was on his way to get supplies for work when he arrived at the Arivaca Road checkpoint at approximately 8:45 a.m. An agent slapped the side of his vehicle and told him to “pull into secondary.” Mr. Polen asked why, to which the agent responded, “You’re driving like an idiot.” Mr. Polen objected to the agent’s characterization of his driving. The agent then stated that a service canine had “alerted.”
Mr. Polen pulled into the secondary inspection area and the agent directed him to exit his vehicle. The agent again stated, “The only reason we pulled you over is because you were driving like an idiot.” Mr. Polen objected that traffic enforcement was outside Border Patrol’s authority. The agent then claimed that a service canine had “tagged” the vehicle. The agent proceeded to remove Mr. Polen’s two dogs from the car and search the interior of Mr. Polen’s vehicle. When Mr. Polen objected to the search, one agent said, “You won’t be laughing when we find stuff.” Another agent remarked, “Arivaca is just a bunch of smugglers.” One of the agents kept his right hand on his firearm during his interaction with Mr. Polen. Mr. Polen was detained for approximately 30 minutes before he was released. He was never asked about his citizenship.
Like all Arivaca residents, Mr. Polen must pass through a checkpoint anytime he wishes to leave town, and has had similar encounters with Border Patrol at the Arivaca Road checkpoint in the past. Last year, agents detained Mr. Polen for 30 minutes and searched the interior of his vehicle after claiming that a service canine had alerted. On another occasion, Mr. Polen arrived at the checkpoint on his motorcycle. A service canine alerted, jumping up on Mr. Polen’s motorcycle. Agents told Mr. Polen to get off his motorcycle and began to question him about drugs. When Mr. Polen objected to being detained, an agent reached out and grabbed Mr. Polen’s arm. The other agents assisted in throwing Mr. Polen to the ground. Agents held Mr. Polen down while his motorcycle was searched. After more than 20 minutes, he was released. Mr. Polen tried to make a complaint to local law enforcement, but officials dismissed his concerns. As a result of these experiences, Mr. Polen feels extremely apprehensive every time he approaches the checkpoint, which he tries as much as possible to avoid.
4. Tim Buchanan – Arivaca Road Checkpoint, Amado, AZ, Dec. 2, 2013.
On December 2, 2013, Tim Buchanan arrived at the Arivaca Road checkpoint at approximately 9:30 a.m. Mr. Buchanan is a 61-year-old retiree and 12-year resident of Arivaca. He drives through the checkpoint several times a week, usually on his way to play golf. On this occasion, an agent asked Mr. Buchanan if he was a U.S. citizen, and he confirmed that he is. The agent then directed him to the secondary inspection area. Mr. Buchanan pulled into the secondary inspection area and exited his vehicle.
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An agent who later identified himself as Agent Taylor approached with a service canine, opened the driver’s side door, and directed the dog to enter Mr. Buchanan’s vehicle. Mr. Buchanan immediately objected that he did not consent to allowing the dog inside his vehicle. Agent Taylor responded by yelling, “Shut your fucking mouth!” Mr. Buchanan repeated his objection to the search. Agent Taylor yelled, “Shut your fucking mouth you fucking asshole and let me do my job!” Mr. Buchanan turned to another agent standing by and asked for an explanation. Agent Taylor interjected, “Shut your fucking mouth!” The other agent directed Mr. Buchanan to sit on a bench. Mr. Buchanan repeated his request for an explanation. Agent Taylor again interrupted him, screaming, “I said shut the fuck up,” and placed his right hand on his firearm. Agent Taylor then continued searching Mr. Buchanan’s vehicle, muttering loudly to himself, “These fuckers...the fucking cunts.” Mr. Buchanan was deeply shaken by Agent Taylor’s actions, but he persisted in asking the other agent why his vehicle was being searched. Agent Taylor again interrupted and said, “Because I didn’t recognize you.”
Mr. Buchanan was detained for approximately 30 minutes before he was released. When he asked Agent Taylor for his name, the agent concealed his badge from view but responded, “Taylor.” Mr. Buchanan was deeply traumatized by the encounter; nonetheless, he called a Border Patrol supervisor to report the incident. Approximately one week later, a Border Patrol “community liaison” called Mr. Buchanan. The liaison informed Mr. Buchanan that agents had confirmed his account, and clarified that the abusive agent’s name was not “Taylor,” but “Haley.” The liaison said, “I don’t know why he lied to you.” The liaison would not say whether Agent Haley faced any consequences for his actions, but tried to reassure Mr. Buchanan that “it won’t happen again.” Mr. Buchanan later learned that a Border Patrol agent in Arivaca had asked Mr. Polen (whose checkpoint encounter, described above, occurred minutes ahead of Mr. Buchanan’s) for information about Mr. Buchanan; Mr. Buchanan does not know why a Border Patrol agent would be asking other Arivaca residents about him.
5. Shirley Stepp – Arivaca Road Checkpoint, Amado, AZ, Dec. 1, 2013.
On the morning of December 1, 2013, Shirley Stepp pulled into the Arivaca Road checkpoint following a run-in with a dead skunk. An agent asked if she was a U.S. citizen, and she confirmed that she is. The agent asked her about the smell of her car, and she explained that she had been at the home of a neighbor who recently killed a skunk. The agent said, “No, that’s not what it smells like,” and directed Ms. Stepp to the secondary inspection area.
Ms. Stepp pulled into the secondary inspection area and exited the vehicle. The agent indicated that he had called for a service canine. No service canine arrived, however, and after waiting nearly 45 minutes, the agent told Ms. Stepp, “It will save time if we can search your car.” In order to be released, Ms. Stepp consented to a search. The agent conducted an extended, invasive search of her vehicle. Ms. Stepp keeps a gas treatment additive in the rear of her vehicle; later, she discovered the container had been opened and flammable liquid was leaking all over the rear of the vehicle. After searching the interior of her car, the agent directed Ms. Stepp to empty her pockets. The agent questioned her at length about drugs and her prescribed medication, refusing to believe that the smell was due to a skunk, even when Ms. Stepp offered to call her neighbor to confirm her story. At one point, the agent claimed that by carrying her prescribed medication, Ms. Stepp had committed “an arrestable offense.” The service canine never arrived. Finally, after detaining Ms. Stepp for over an hour, the agents released her.
Ms. Stepp was outraged by this encounter. She felt humiliated watching her friends and neighbors drive by while she was detained. Some people tried to stop to check on her but were waved away by Border Patrol agents who claimed that she was “under investigation.” Though she has lived in Arivaca for the past 25 years, Ms. Stepp fears interacting with Border Patrol agents at the checkpoint, which she must drive through several times every week. She hears frequent reports from friends and neighbors about Border Patrol agents harassing and abusing Arivaca residents at the checkpoint.
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6. Don Tran & Chad Ivey – I-8 Checkpoint, California-Arizona State Line, Nov. 29, 2013.
On November 29, 2013, Don Tran and Chad Ivey were driving from San Diego to Phoenix on I8. Mr. Tran, 49, is a law school graduate and Mr. Ivey, 41, is a Marine veteran; both are IT professionals. They arrived at the I-8 Border Patrol checkpoint around 10:30 p.m. An agent asked if they were U.S. citizens, and they confirmed that they are. The agent directed Mr. Tran to pull into the secondary inspection area. Mr. Tran complied. In the secondary inspection area, agents again asked if Mr. Tran and Mr. Ivey were U.S. citizens, and again they stated that they are. An agent then asked Mr. Tran and Mr. Ivey to step out of the vehicle, without explanation. They both complied. As he was exiting, Mr. Tran locked his car.
Mr. Tran spoke with a supervising agent and made clear that he did not consent to a search of his vehicle. Mr. Tran and Mr. Ivey sat on a bench and watched as an agent arrived with a service canine. Mr. Tran and Mr. Ivey observed the dog and its handler, later identified as Agent Danny Ruiz circled their vehicle. The dog did not react to Mr. Tran’s vehicle in any way. After passing Mr. Tran’s vehicle, the dog alerted to a hand bag in an adjacent vehicle, pulling the bag out of the open trunk. The Border Patrol supervisor then notified Mr. Tran and Mr. Ivey, “We need to search your car. The dog got a hit on your car.” Mr. Tran objected that the dog had not alerted on his vehicle but rather on an item in an adjacent vehicle. Nonetheless, both the supervisor and Agent Ruiz asserted that they dog had “hit a positive scent” in Mr. Tran’s vehicle, giving Border Patrol probable cause for a search.
An agent tried to open Mr. Tran’s vehicle but it was locked. Mr. Tran repeated his objection to any search of his vehicle and suggested they call a judge to obtain a warrant. A group of agents conferred together before notifying Mr. Tran, “It’s going to be a while, we need to pat you down and put you in a holding cage while we wait for the magistrate.” Mr. Tran was directed to leave his car keys with the agents. Mr. Tran and Mr. Ivey each asked if they were being detained. Both of them were told, “You are being detained.” Mr. Tran and Mr. Ivey were taken to a holding area of small, wire cages and placed in separate cells. After approximately 45 minutes, agents returned and released them. After returning to their vehicle, it was apparent from the disarray that agents had searched the interior, including the glove compartment, center console, and trunk.
7. The Garcia Family – Route 86 Checkpoint, east of Tohono O’odham Indian Reservation, Aug. 19, 2013.
On August 19, 2013, Jason and Charlotte Garcia were driving east on State Route 86 from Sells, Arizona with their twin six-year-old foster children. Mrs. Garcia was driving when the family arrived at the checkpoint. Without inquiring about the family’s residence status, the agent directed Mrs. Garcia to pull into the secondary inspection area. Mrs. Garcia asked why they were being detained and the agent responded angrily, “Because I told you so.” The Garcias again asked for an explanation. A female agent, later identified as K. Riden, approached and directed Mrs. Garcia to pull into secondary. Agent Riden stated that she would forcefully remove the Garcias from their vehicle and drive the car into secondary if they did not comply. The Garcias repeated their request for an explanation. Agent Riden claimed that a service canine had “alerted” to the vehicle. The Garcias stated that they did not have anything in the vehicle that would cause a dog to alert, and no dog was nearby.
Agent Riden then directed another agent to “put it down,” shorthand for deploying a tire deflation device to prevent the vehicle from driving away. Mrs. Garcia told the agent that she would go to the secondary inspection area, and Agent Riden instructed her to “hold on.” The tire deflation device was removed and Mrs. Garcia drove into secondary, where Agent Riden demanded that the Garcias exit the vehicle. The Garcias had begun recording the incident on a cell phone. When Mrs. Garcia exited the
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vehicle with the phone, Agent Riden yelled at her to turn it off, and tried unsuccessfully to grab the phone from Mrs. Garcia’s hand, poking her chest. Mrs. Garcia handed the phone to her husband. Agent Riden continued to yell and demanded that Mr. Garcia turn the phone off. Agent Riden stated that Mr. Garcia could not use her phone to record because Border Patrol was searching the vehicle “based on probable cause.” Agent Riden continued yelling at Mr. Garcia to turn off the phone.
The Garcia family was escorted to a nearby bench. Several agents stood over them in a threatening manner as the Garcia parents tried to comfort their sons, who were terrified by what was happening. From where they were sitting the Garcias could not see whether or not agents were searching their vehicle. Agent Riden continued yelling at Mr. Garcia to turn off his phone. Another agent told the Garcias they were “setting terrible role models” for their children. Mr. Garcia could see that Agent Riden’s behavior was upsetting his children, so he turned the phone off, but not before Agent Riden attempted, again unsuccessfully, to grab the phone out of his hands. Another agent pulled Mr. and Mrs. Garcia aside and told them not to “argue” with Agent Riden which would “just make matters worse” for them. The Garcia parents continued to try to comfort their children, who were visibly upset. Finally, the Garcia family was released. They were never asked about their citizenship.
This incident was extremely traumatic for the Garcia children, who continued to refer to the experience for several weeks. One of the children stated that he was afraid that Border Patrol agents were going to “throw Mom down.” The other child said he did not want to visit his cousin in Sells anymore because he did not want to cross the checkpoint again. Several days after the incident, the Garcia children spotted some Border Patrol agents in a local diner and were instantly afraid; the boys clung to their parents and asked if the agents were going to harm them. Both Mr. and Mrs. Garcia work in Sells. It is not possible for them to return from work without passing through one of the four Border Patrol checkpoints surrounding the Tohono O’odham Indian Reservation. Mrs. Garcia often returns from work late at night, sometimes arriving at the checkpoint around midnight, with no other cars around. Agents have repeatedly demanded that she open her trunk for inspection, questioned her about matters unrelated to her immigration status, and refused to provide names and badge numbers when requested.
Mr. Garcia says, “The Reservation has become a police state. It seems like no one can go out in public without being questioned by Border Patrol agents.” He says Border Patrol agents do not respect tribal customs or the law, and that abuses of tribal members19 have become more common because agents “are never held accountable for their actions.”
19 See Stanley Throssell, 77-year-old woman says Border Patrol agent abused her at AZ 86 checkpoint, THE RUNNER, Oct. 18, 2013, available at, http://oodhamrunner.com/community/77-year-old-woman-says-border-patrolagent-abused-her-at-az-86-checkpoint/ (“A 77-year-old woman from San Pedro Village says a Border Patrol agent left her with bruises when he grabbed her arm as she went to open the trunk of her car at the checkpoint on Arizona Highway 86 east of the reservation boundary. Mildred Antone said the incident took place Oct. 12, between 5 and 6 p.m. as she was on her way to San Xavier for the celebration of Saint Kateri Tekakwitha…Antone said when she drove up to the checkpoint, an older Border Patrol agent asked her to open her car trunk. She noted that it’s not easy for her to get in and out of her car, so she told the agent that there was nothing in her trunk. She said he continued to insist that she open the trunk, and an argument ensued. Antone admitted to letting loose an expletive, and the agent responded by implying that tribal members lie to the agents all the time. Antone said she then pushed her car door open and the agent walked into it. She walked to open up the trunk, and that is when the agent grabbed her by the arm, she said. The incident escalated from there, she said, as the agent accused her of assaulting a federal officer. She was told to pull her car to a secondary checkpoint area, and she said she complied, giving the agent her driver’s license. Several agents huddled together, then the agent with whom she had the confrontation came over to her, saying her age was of no consequence, he would throw her in jail and tow away her car, she recalled. He then tossed her driver’s license into the front window of her car and told her to leave, she said. Antone said she is now fearful of going to the checkpoint. ‘I’m afraid to go down there to the checkpoint. I haven’t gone because I’m afraid he might still be there,’ she said.”)
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8. Julia Turner – Tombstone Checkpoint, Route 80, Jan. 1, 2013. 9. Julia Turner – Tombstone Checkpoint, Route 80, Nov. 8, 2012.
On the evening of January 1, 2013, Julia Turner, then 19-years-old, was on her way home from work. Ms. Turner is Hispanic and describes her appearance as Hispanic. At the Tombstone checkpoint, Ms. Turner was questioned about her citizenship and asked to hand over her driver’s license. An Agent Cooper walked around her vehicle with a service canine. Ms. Turner saw that the dog did not react to her vehicle and had begun to move to the car behind hers when Agent Cooper pulled on the dog and started tapping on the trunk of Ms. Turner’s vehicle. Agent Cooper then told Ms. Turner the dog had “hit” on something in the car and directed her to pull into the secondary inspection area.
Ms. Turner pulled into the secondary inspection area, turned off her vehicle, and exited with her purse and phone. Agent Cooper told her to leave her purse and phone in the car. Ms. Turner objected, and Agent Cooper tried to grab her phone out of her hands. She again objected, but Agent Cooper told her it was “part of procedure.” Ms. Turner retained her phone and called her father, a retired Sheriff’s Deputy with extensive experience with police dogs.20 Two other agents approached and an Agent Nabity told Ms. Turner that if she did not hang up the phone she would have to “sit there a long time and not be able to leave.” Meanwhile, Agent Cooper and another agent searched Ms. Turner’s car. Agents removed Ms. Turner’s registration as well as her prescription medication. Agent Cooper and Agent Nabity began to question her about the medication at length, even after they were presented with a valid prescription. Ms. Turner was detained approximately 35 minutes before she was released.
Two months earlier, on the evening of November 8, 2012, Ms. Turner was driving home from work when an agent asked her for her driver’s license, proof of insurance, and information related to her commute. An agent then notified Ms. Turner that a dog had “alerted,” giving Border Patrol probable cause to search her car, and directed her to the secondary inspection area. An agent told Ms. Turner to hand over her cell phone, but she refused and was able to call her father. Agents detained Ms. Turner for approximately 45 minutes while they searched her vehicle before releasing her.
In addition, Ms. Turner faced additional scrutiny on at least three prior occasions at the same checkpoint. In each instance, agents asked Ms. Turner to turn off her engine and open her trunk for inspection. Each time she was asked about her work, where she was going and why, and about her vehicle. Each time, agents asked her to show identification, registration, and proof of insurance. On several occasions, Ms. Turner witnessed other cars being waved through while she was detained. Ms. Turner believes she was subject to additional scrutiny and harassment on account of her ethnicity.
10. David Chapman – Huachuca City Checkpoint, Route 90, December 28, 2012. 11. David Chapman – Sunsites Checkpoint, Route 191, Dec. 21, 2012. 12. David Chapman – Sunsites Checkpoint, Route 191, Oct. 24, 2012.
David Chapman, 45, is a small business owner and 15-year resident of Pearce, Arizona. On December 28, 2012 at approximately 11:45 a.m., Mr. Chapman arrived at the Border Patrol checkpoint located on Route 90 north of Sierra Vista, Arizona. Mr. Chapman was informed that a service canine had alerted to his car, and he was directed to pull into the secondary inspection area. A supervisor named Agent Caspar approached Mr. Chapman’s vehicle with an Agent Debusk. Agent Debusk proceeded to
20 Brian Turner has driven through the Tombstone checkpoint and observed the dogs being improperly handled. He believes agents arbitrarily decide whom to question, only subjecting some persons to stops and searches, and that his daughter was repeatedly detained on account of her Hispanic appearance. Mr. Turner, who is Caucasian, has driven his daughter’s vehicle through Border Patrol checkpoints without facing similar detention or harassment.
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search the interior of the vehicle and Mr. Chapman’s personal effects. Mr. Chapman repeatedly objected to the search, which greatly amused Agent Caspar. Agent Caspar laughed and said, “Go tell Congress, it won’t get you anywhere.” Mr. Chapman was detained for over ten minutes while his car was searched before he was released. He was not questioned about his residence status.
On December 21, 2012, at approximately 1:30 p.m., Mr. Chapman arrived at the Sunsites checkpoint on Route 191. He was not asked about his citizenship; instead, he was immediately directed to pull into the secondary inspection area. An Officer C. Swanson told him that a service canine had alerted and directed the dog into Mr. Chapman’s vehicle. Mr. Chapman objected to the search. Mr. Chapman later discovered the dog had destroyed some business-related paperwork in the front seat. Mr. Chapman was eventually released.
On October 24, 2012 at approximately 9:30 a.m., Mr. Chapman arrived at the Sunsites checkpoints. A service canine jumped onto Mr. Chapman’s vehicle. Mr. Chapman objected that the dog was scratching his truck. An Agent M. Torres informed him that his dog had “hit,” and directed Mr. Chapman to pull into the secondary inspection area. Agent Torres then told Mr. Chapman that he had probable cause to search the vehicle. Another agent asked Mr. Chapman for identification and asked him to exit his vehicle. Agent Torres proceeded to lead the dog around the vehicle, saying, “Get it boy, get it boy.” The dog continued to jump onto the vehicle. Agent Torres returned the dog to its kennel and continued to search Mr. Chapman’s truck bed, pausing to confer with an Agent J. Caporale. Agent Torres questioned Mr. Chapman about his use of the vehicle and about drugs. After being detained for approximately fifteen minutes, Mr. Chapman was released. He was not asked about his residence status.21
II. Constitutional Limitations on Immigration Checkpoints
The Fourth Amendment imposes limits on the government’s search-and-seizure powers to prevent “arbitrary and oppressive” interference with the privacy and personal security of individuals. United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). Accordingly, courts have imposed strict limitations on Border Patrol checkpoint operations; indeed, the legal legitimacy of immigration checkpoints is premised upon those limitations. Id. at 556–57. (“The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”)
In Martinez-Fuerte, the Supreme Court found immigration checkpoints to be permissible only insofar as they involve a “brief detention of travelers during which (a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.” Id. at 558 (citation omitted). The Court specified, “Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search.” Id. The Court condoned referrals to secondary inspection areas “made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy.” Id. at 560 (emphasis added). “The objective intrusion of the stop and inquiry thus remains minimal [and] should not be frightening or offensive because of their public and relatively routine nature,” the Court observed. Id.; see also United States v. Ortiz, 422 U.S. 891, 894–95 (1975) (“At traffic checkpoints the motorist can see that other vehicles are being stopped…and he is much
21 This was not Mr. Chapman’s last encounter with Agent Torres. On December 16, 2012 at around 11:30 a.m., Mr. Chapman again arrived at the Sunsites checkpoint. The checkpoint was not in operation, but as Mr. Chapman drove through, he made eye contact with Agent Torres before continuing westbound on Route 191. Approximately one quarter mile down the road, a Border Patrol vehicle approached Mr. Chapman from the rear until it was a car’s length from his rear bumper. The Border Patrol vehicle tailgated Mr. Chapman at a speed of 65 miles per hour for about half a mile before pulling off the road. Mr. Chapman subsequently called the Wilcox Border Patrol station to submit a verbal complaint, but did not receive a response.
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less likely to be frightened or annoyed by the intrusion.”) As for local residents subject to frequent stops, the Court noted, “Motorists whom the officers recognize as local inhabitants…are waved through the checkpoint without inquiry.” Id. at 550.
That case was decided almost 40 years ago, in 1976.22 Today, Border Patrol checkpoints diverge in significant respects from those described in Martinez-Fuerte. In Arizona, most checkpoints are located in rural areas where local residents are often forced to undergo searches and detentions ranging far beyond “limited” citizenship inquiries and not justified by “heavy traffic.”23 Border residents—including the many individuals who must pass through checkpoints daily to go to work, run errands, or take children to school—describe feelings of anxiety, fear, and anger after being interrogated, harassed, searched, and/or assaulted by federal agents. These individuals are not “waved through the checkpoint without inquiry,” as the Supreme Court envisioned. Id. Each of the motorists described herein was referred for non-routine, unjustified detentions in a secondary inspection area on at least one occasion. Two of the above complainants were threatened with firearms.24 Mr. Forrey and Mrs. Garcia were physically assaulted. Ms. Stepp was threatened with imprisonment. Mr. Ivey and Mr. Chan were detained in wire cages for approximately 45 minutes while their car was searched on a pretext and without their consent. The Garcia children fear passing through the checkpoints that surround the Tohono O’odham Indian Reservation where their parents work. While the Supreme Court in Martinez-Fuerte condoned immigration checkpoints because they were thought to impose a “minimal,” non-offensive intrusion on the rights of motorists, the daily experiences of border residents profoundly undermine that premise, and by extension, the legitimacy of the checkpoints themselves. Id.25
In many cases, agents appear to be dispensing with any pretext of immigration enforcement, instead conducting generalized criminal investigations, which the Supreme Court has found to be unconstitutional. See City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.”); Delaware v. Prouse, 440 U.S. 648 (1979); see also United States v. Ellis, 330 F.3d 677, 680 (5th Cir. 2003) (allowing Border Patrol to routinely tack on otherwise impermissible drug interdiction questioning was “essentially an attempt to circumvent the [Supreme] Court’s holding in Edmond…”) (quotations omitted). In Edmond, the Supreme Court invalidated a checkpoint established for general crime control purposes: “Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.” Id. at 42.
22 There were roughly 1,800 Border Patrol agents nationwide in 1976. Today, there are over 21,000. 23 One of the checkpoints at issue in Martinez-Fuerte was located on I-5 in California, and referrals to secondary inspection areas were justified in part by the necessity of managing heavy traffic on “important highways.” Martinez-Fuerte, 428 U.S. at 556–57. By contrast, the majority of Border Patrol checkpoints are located on rural state highways and county roads where traffic is light and motorists often interact with agents in isolation. 24 Both of those incidents occurred shortly before The Arizona Republic reported on the absence of known consequences for agents who use deadly force. See Rob O’Dell and Bob Ortega, Deadly Border Agents Incidents Cloaked in Silence, ARIZONA REPUBLIC, Dec. 16, 2013, available at http://www.azcentral.com/news/politics/articles/20131212arizona-border-patrol-deadly-force-investigation.html (noting that 42 individuals have been killed by Border Patrol agents since 2005 and, “In none of the 42 deaths is any agent or officer publicly known to have faced consequences — not from the Border Patrol, not from Customs and Border Protection or Homeland Security, not from the Department of Justice, and not, ultimately, from criminal or civil courts.”) 25 See also Martinez-Fuerte, 428 U.S. at 572–73 (Brennan, J., dissenting) (“One wonders what actual experience supports my Brethren's conclusion that referrals ‘should not be frightening or offensive because of their public and relatively routine nature.’…[F]or the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting.” (citations omitted))
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For many border residents, invasive stops have long since become a “routine part of life.” Id. In the above cases, three humanitarian aid workers were detained for thirty minutes solely because an agent claimed that backpacks are per se suspicious; one motorist was detained over an hour because her car smelled like a skunk; another because he was “driving like an idiot”; and yet another was detained and threatened with a firearm because an agent “didn’t recognize” him. Ms. Stepp and Ms. Turner were harassed and questioned about their legitimate prescription medications. The residents of Arivaca have documented similar experiences.26 Most tellingly, in each of the stops described herein, Border Patrol had either completed or never initiated any immigration-related inquiry when it detained these motorists; ten of the fifteen individuals described above were never asked about residence status at all. Also revealing is the common sight of local law enforcement with no immigration enforcement authority accompanying Border Patrol agents at checkpoints. With so many agents going far beyond—or simply ignoring—the permissible “limited inquiry into residence status,” it is difficult to discern what differentiates Border Patrol checkpoints from the general crime control checkpoints held to be unconstitutional more than a decade ago in Edmond. See also United States v. Soyland, 3 F.3d 1312, 1316 (9th Cir. 1993) (Kozinski, J., dissenting) (“There's reason to suspect the agents working these checkpoints are looking for more than illegal aliens. If this is true, it subverts the rationale of Martinez–Fuerte and turns a legitimate administrative search into a massive violation of the Fourth Amendment.”)27
Additionally, it is clear that Border Patrol agents regularly exceed the lawful limits of their authority in the course of individual stops, resulting in widespread rights abuses. There is no question that agents cannot extend checkpoint stops for any length of time for non-immigration purposes, absent “reasonable suspicion” that a crime has been committed. See United States v. Preciado-Robles, 964 F.2d 882, 884–85 (9th Cir. 1992) (articulable suspicion is required for detention following immigration questioning and “there must be a valid basis for any additional intrusion, and it must be of a brief duration.”); Ellis, 330 F.3d 677, 680 (“[A]n agent at an immigration stop may investigate nonimmigration matters beyond the permissible length of the immigration stop if and only if the initial lawful stop creates reasonable suspicion warranting further investigation.”); United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001) (“[T]he scope of an immigration checkpoint is limited to the justifying, programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint.”).
26 In one case, “[a]n Arivaca resident and a friend arrived at the checkpoint and identified themselves as U.S. citizens. An agent asked to search their vehicle and they declined. As a result, the agent directed them to the secondary inspection area. When they asked for an explanation, the agent replied that if they would not consent to a search, they would have to wait for a service canine to inspect the vehicle. They waited 20 minutes for the dog to arrive, at which point agents demanded that they exit the vehicle, without explanation, and then opened the door of their car and let the dog in. When they objected, agents yelled at them to remain still and keep their hands visible. They were not allowed to use their phones. One of the agents then claimed that the dog had ‘alerted’ because it had ‘changed its breathing pattern.’ After 45 minutes, they were finally released. Agents told them the search was, ‘for [their] own protection.’” In another case, an Arivaca resident, “arrived at the checkpoint and notified the agent she was a U.S. citizen. The agent asked if the vehicle she was driving belonged to her. She responded that she was a U.S. citizen. The agent said, ‘You can answer a simple question or we can do it the hard way,’ and directed her to the secondary inspection area. More agents arrived with a service canine, and claimed that the dog had ‘alerted’ to the presence of contraband. The agents demanded that the woman exit the vehicle, over her objections, then questioned her about drugs, firearms, and the vehicle’s history. The service canine found no drugs or contraband, but agents continued to search her trunk, then rifled through her purse and opened and smelled her water bottle. Before letting her go, the agents told her she had not been ‘respectful.’” See http://phparivaca.org/?page_id=210 27 See also Soyland, 3 F.3d 1312 at 1320 (Kozinski, J., dissenting) (“Given the strong hints that the Constitution is being routinely violated at these checkpoints, we owe it to ourselves and the public we serve to look into the matter. Even without an order of this court or the district court, the Department of Justice would be well-advised to establish the bona fides of these checkpoints.”)
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The government itself acknowledges this limitation on its authority. See Legal Opinion of INS General Counsel, Other Agencies Working at Border Patrol Checkpoints, at 2 (May 9, 1994) (“Referrals to the secondary inspection area that do not involve an immigration based violation must be supported by at least reasonable suspicion.”) (emphasis added); UNITED STATES BORDER PATROL, SAN DIEGO SECTOR, LEGAL ANALYSIS OF BORDER PATROL CHECKPOINTS 14 (June 1, 2003) (“Where Border Patrol agents seek to detain a vehicle for secondary inspection solely for some non-immigration purpose, the law generally requires the agents to have a ‘reasonable suspicion’ of criminal wrongdoing.”); see also CBP Inspector’s Field Manual, Section 18.7(b) (“Before an inspector may constitutionally detain a person…the inspector must have reasonable suspicion that the person is an alien and is illegally in the United States.”)
By contrast, southern Arizona residents are regularly detained and questioned regarding weapons and drug trafficking, as well as medical history, work and family, their comings and goings, and other subjects in no way related to verifying immigration or residence status or based on reasonable suspicion of a crime. The stops described herein ranged from 15 minutes to over an hour, not the “brief” three to five minute stops and “limited” inquiries contemplated by the Supreme Court—though, as noted, absent reasonable suspicion of criminal wrongdoing, each of these stops would have been unlawful for any period of time. See Martinez-Fuerte, 428 U.S. at 547, 558-59; Ellis, 330 F. 3d at 680 (“[W]hen the purpose of a stop switches from enforcement of immigration laws to drug interdiction, a Fourth Amendment violation occurs unless the Border Patrol agent has individualized suspicion of wrongdoing.”) (emphasis added).28
It is also well-established that Border Patrol agents at permanent checkpoints may not search the interior of any vehicle without consent or probable cause. Ortiz, 422 U.S. 891; see also Almedia-Sanchez v. United States, 413 U.S. 266 (1973). Consent to a search must be knowingly and voluntarily given, and must not be the product of coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Agents routinely ignore this limitation as well. As described above, Mr. Buchanan’s vehicle was searched without any lawful basis and over his repeated objections. Ms. Stepp only consented to a search of her vehicle and her person after being forcibly detained and humiliated for 45 minutes. Mr. Forrey’s vehicle was searched after he was threatened at gunpoint. Mr. Tran’s vehicle was searched on a pretext. Mr. Forrey, Mr. Polen, Mrs. Garcia, Ms. Turner, and Mr. Chapman were all subjected to vehicle searches on multiple occasions. These searches, lacking consent and probable cause, were unlawful. Id.
Equally troubling is agents’ common practice of asserting that service canines have “alerted” to contraband as a basis for probable cause to conduct a search. A canine alert can provide agents with probable cause for a search only if the reliability of the dog and the handler are established. United States v. Lingenfelter, 997 F. 2d 632, 639 (9th Cir. 1994). There are ample grounds, however, to doubt the reliability of Border Patrol’s use of service canines, including numerous studies and court decisions questioning the ability of canines to detect contraband accurately. See, e.g., United States v. Thomas, 726 F.3d 1086, 1093 (9th Cir. 2013) (Border Patrol canine certification records showed marginal performance but were too heavily redacted to afford adequate opportunity to challenge basis for search); Merrett v. Moore, 58 F.3d 1547, 1549 (11th Cir. 1995) (noting that narcotics were not found in twenty-seven out of twenty-eight alerts at a temporary checkpoint); Doe v. Renfrow, 631 F.2d 91, 95 (7th Cir. 1980) (Fairchild, C.J., dissenting) (noting false alerts in thirty-five out of fifty encounters); see generally Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 427, 430 (1997) (noting that “even a very high accuracy rate can produce an unreasonable amount of false positives” and that service canines are “least effective when they survey a random population.”)
28 See also Edmond, 531 U.S. at 56. (Thomas, J., dissenting) (“I rather doubt that the Framers would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”)
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The experiences of Arizona motorists raise similar concerns. In the eight examples of false canine alerts documented herein, none resulted in the discovery of contraband. In some instances, agents appeared to be using the service canines as excuses to conduct a search. In the case of Mr. Tran and Mr. Ivey, a canine’s alert to another motorist’s bag was used as a basis for searching their vehicle. Ms. Turner described a similar experience, with agents striking her vehicle to encourage the dog to alert.29 In the case of Mr. Polen, agents were unclear about the basis for his detention before settling on an alleged canine alert, even though there was no dog nearby. Several of the cases documented by Arivaca residents involved Border Patrol calling for service canines only after motorists legitimately declined to consent to a search or answer questions not related to citizenship; in several instances, agents then claimed a service canine “alerted,” giving them probable cause for a search. In none of those cases was any contraband discovered. The frequency of false canine alerts at Border Patrol checkpoints indicates either that canines are frequently unreliable, or that agents are using canines fraudulently in order to obtain probable cause where it does not otherwise exist, or both. Whichever the case may be, the result is that border residents are regularly subject to unconstitutional searches and detentions.
Additionally, as we have seen in the context of “roving patrol” stops,30 Border Patrol continues to rely on race and ethnicity as factors in subjecting certain motorists to additional scrutiny and detention at checkpoints. In addition to Ms. Turner’s account of multiple racially-motivated detentions, the ACLU receives reports from Latino and Native American residents who experience additional scrutiny and delay at checkpoints, for no apparent reason other than their perceived race or ethnicity.31 Such practices are unlawful as well. See Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000); Melendres v. Arpaio, Civ. No. PHX–CV–07–02513–GMS, 2013 WL 2297173, at *69 (D. Ariz. May 24, 2013) (“[T]here is no legitimate basis for considering a person’s race in forming a belief that he or she is more likely to engage in a criminal violation, and the requisite ‘exact connection between justification and classification,’ in focusing on Hispanic persons in immigration enforcement is lacking.”) (citation omitted).32
***
Border Patrol checkpoints today bear little resemblance to those authorized by the Supreme Court in Martinez-Fuerte. Many Border Patrol officials do not understand—or simply ignore—the legal limits of their authority at checkpoints. One of the agents described above resorted to reading legalese from a tiny script that he did not understand, misstating the applicable legal standard, to try to justify the stop. Others claimed, falsely, that motorists could not make phone calls or videotape agents searching vehicles. Multiple citizens have reported being told by agents, “You have no rights here,” or that refusal to consent to a search gives agents probable cause for a search. In many cases, agents responded to citizens who legitimately asserted their rights with additional abuses. The Office of Inspector General recently
29 The agent’s contact with the vehicle may have in and of itself been unlawful. See Thomas, 726 F.3d at 1093 (“[I]t is conceivable that by directing the drug dog to touch the truck and toolbox in order to gather sensory information about what was inside, the border patrol agent committed an unconstitutional trespass or physical intrusion.”) 30 The ACLU submitted a complaint on October 9, 2013, on behalf of five Arizona residents subjected to unlawful roving patrols, at least one of whom appeared to have been racially profiled by Border Patrol. See http://www.acluaz.org/sites/default/files/documents/ACLU%20AZ%20Complaint%20re%20CBP%20Roving%20P atrols%20Oct%209%202013.pdf 31 One Arivaca resident, a naturalized U.S. citizen, has “repeatedly faced extended questioning and demands for identification at the Arivaca Road checkpoint. Although she is a citizen, agents have demanded that she show proof of naturalization, which she is not required to carry. She believes this scrutiny is based solely on her Hispanic appearance and her accent.” See http://phparivaca.org/?page_id=210 32 See also U.S. DEP’T OF JUSTICE, GUIDANCE REGARDING THE USE OF RACE BY FEDERAL LAW ENFORCEMENT AGENCIES, (June 2003), available at http://www.justice.gov/crt/about/spl/documents/guidance_on_race.pdf
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concluded that Border Patrol agents do not understand agency use of force policies.33 This profound lack of understanding evidently extends to checkpoint procedures as well. These problems are compounded by the fact that agents at checkpoints do not appear to document their interactions with motorists—including agents’ use of force, false alerts by service canines, and prolonged detentions—not resulting in arrest. The lack of documentation and oversight makes it impossible to know when Border Patrol agents are exceeding their authority or straying from agency guidelines. This is a recipe for further abuse.
Finally, as we have noted before, the complaint process by which individuals report abuses to Border Patrol and other DHS entities is lacking in consistency and transparency and fails to provide meaningful redress to those whose rights have been violated. Border Patrol and DHS officials often fail to provide accurate information to complainants about the investigatory process or the status of their complaint, and are not responsive to reasonable requests for information. The ACLU is still awaiting response to a complaint filed on April 26, 2012 on behalf of eleven individuals abused by agents at Ports of Entry,34 and another filed on October 9, 2013 on behalf of five Arizona residents subjected to unlawful roving patrol stops.35 Unfortunately, the lack of attention by DHS and its agencies to these complaints— involving civil rights abuses by the largest federal law enforcement agency in the nation—is not atypical. As should by now be clear, the entire DHS complaint process is in dire need of reform, and a broader commitment to Border Patrol oversight, accountability, and transparency is long overdue.
III. Conclusion
We request that you conduct a prompt investigation of these individual allegations of abuse, along with any known checkpoint-related complaints from the past five years. We also urge a comprehensive review of checkpoint policies and practices to determine whether Border Patrol is complying with its obligations under the U.S. Constitution and agency guidelines—with particular attention to the extent to which agents at checkpoints are:
1) conducting investigations unrelated to verifying immigration status and without reasonable suspicion of criminal activity;
2) searching vehicles without consent or probable cause; 3) using service canines to obtain probable cause, either by claiming falsely that a dog has
“alerted,” or by relying on inadequately trained or unqualified canines, resulting in significant rates of false alerts; 4) racially profiling motorists at checkpoints; and 5) using excessive force, making false claims, and/or improperly interrogating, intimidating, and harassing motorists at checkpoints.
33 See Brian Bennett, Many Border Agents Don’t Understand Use-Of-Force Rules, Report Says, LA TIMES, Sept. 18, 2013, available at http://articles.latimes.com/2013/sep/18/nation/la-na-nn-border-patrol-use-of-force-20130918 (An audit showed that many agents “do not understand use of force and the extent to which they may or may not use force.”) This is in part due to the fact that training and hiring standards were lowered to accomplish the rapid expansion of the Border Patrol from roughly 12,000 agents in 2006 to over 21,000 today. See Greg Morgan, Hiring Practices Questioned after Border Agent’s Arrest, SAN DIEGO UNION TRIBUNE, Apr. 1, 2011, available at http://www.utsandiego.com/news/2011/Apr/01/hiring-practices-questioned-after-border-agents-ar/ (quoting a Border Patrol representative, “Pretty much everyone was being pushed through because they needed the bodies.”) 34 Available at https://www.aclu.org/files/assets/aclu_2012_cbp_abuse_complaint_2.pdf . DHS sent form responses regarding three of the eleven cases of abuse documented in the ACLU’s April 2012 complaint, without commenting on the many allegations of abuse by CBP officials or conducting interviews with any of the complainants. 35 Available at http://www.acluaz.org/sites/default/files/documents/ACLU%20AZ%20Complaint%20re%20CBP%20Roving%20P atrols%20Oct%209%202013.pdf. To date, DHS has contacted only one of the five individuals whose abuses were documented in the ACLU’s October 2013 complaint.
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In cases of unlawful conduct, we urge that the agents responsible be appropriately disciplined and that the results of your investigation be made public. Finally, significant changes in Border Patrol training, oversight, and accountability mechanisms are needed, and we again urge you to make substantive recommendations for such changes consistent with your institutional mission in order to prevent further abuses.
Please contact us with any questions or concerns at (602) 650-1854.
Sincerely,

James Lyall Staff Attorney ACLU of Arizona

Cc: Jeh Johnson Acting Secretary of Homeland Security U.S. Department of Homeland Security 245 Murray Lane SW Washington, D.C. 20528
Thomas Winkowski Acting Commissioner U.S. Customs and Border Protection 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20229
Manuel Padilla, Jr. Chief Patrol Agent – Tucson Sector U.S. Customs and Border Protection 2430 S. Swan Road Tucson, AZ 85711
Jocelyn Samuels Acting Assistant Attorney General Civil Rights Division Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530
John S. Leonardo United States Attorney Department of Justice 405 W. Congress Street, Suite 4800 Tucson, AZ 85701

Senator John McCain U.S. Senator for Arizona 241 Russell Senate Office Building Washington, DC 20510
Senator Jeff Flake U.S. Senator for Arizona B85 Russell Senate Office Building Washington, DC 20510
Congressman Raúl Grijalva U.S. House of Representatives 1511 Longworth HOB Washington, DC 20515
Congressman Ron Barber U.S. House of Representatives 1029 Longworth HOB Washington, DC 20515

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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From: SAN-MARTIN, ROGER <ROGER.SAN-MARTIN@cbp.dhs.gov> Date: Fri, Mar 7, 2014 at 9:43 AM Subject: To: "phparivaca@gmail.com" <phparivaca@gmail.com>
Dear PHP,
I was browsing through your website and came across a briefing you give regarding the recent protests at the Arivaca BP Checkpoint. There were a couple of statements in the brief that I would like to address and clarify. I think it’s important to avoid putting out misinformation that can cause confusion and misunderstandings between those monitoring the checkpoint and agents working there.
In the brief you state that Border Patrol Agents do not have the authority to make arrests. That is an incorrect statement. In fact, the arrest authority for Border Patrol Agents is greater than most other Federal Law Enforcement Agencies and a result of enforcing laws under three different U.S. Titles. They are Titles 18 , 19, and 21. These titles relate to Immigration, U.S. Customs, and Federal Drug Laws. U.S. Border Patrol Agents make more arrests per year than any other law enforcement agency within the United States. Arrests are not limited to illegal immigrants and include U.S. Citizens and members of vast criminal organizations who violate the U.S. Laws that Border Patrol Agents enforce. Agents can also make arrests for any felony that takes place in their presence. What agents do not have is the authority to enforce traffic laws and that is why the Pima County Sheriff’s Office was asked to come to the checkpoint that day. Agents wanted to make sure that no state laws were being violated as a result of protesters standing on the shoulder of the highway and the highway itself.
I also noted where the brief stated that Border Patrol’s intention to intimidate monitors was abundantly clear that day. It further states that under threat of arrest, Border Patrol agents ordered the monitors to move to a distance that severely impaired their ability to observe checkpoint operations. Let me be clear, agents have no intention of trying to keep your group from monitoring or protesting the checkpoint. As far as agents are concerned, you are within your right to monitor and protest but you are not within your right to do it inside the operational perimeter of the checkpoint where agents are working and conducting law enforcement activities. The inside perimeter of the checkpoint is not a public place where anyone can just show up and
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establish ground. It is a “controlled area” for agents conducting their duties. By controlled I mean agents have the authority and are within their right to determine who can enter into the perimeter where they are conducting law enforcement actions. Agents have the right to perform their duties without impediment by individuals who are on scene. The decision on where monitors can stand/sit without interfering with agents and traffic is that of the agents and not the monitors.
There are numerous reasons for this. Foremost is the safety of the agents, travelers, and protesters. We cannot have a crowd of people impeding, standing, or sitting in close proximity to agents doing their job. Agents need to be focused on arriving traffic and the passengers they are speaking with, not distracted by people who have entered their work area without authorization and who are moving around, yelling, talking, singing, getting in their way, waving signs, etc. That is absolutely not going to be allowed. . There is also an expectation of privacy by the people we encounter driving into the checkpoint. Not everyone supports your cause and we are liable for protecting the privacy of those who do not wish have monitors listening to the answers they give during our questioning. Furthermore, agents cannot and will not allow the monitors to establish ground in areas where the agents feel the monitors may be at risk should a confrontation arise between agents and those they may be trying to arrest (wanted criminals, smugglers, UDAs, drug traffickers, etc.). The protestors and monitors will be instructed to remain in a marked area that has been established for them at the edge of the checkpoint’s eastern perimeter. You state that this distance severely impairs your ability to observe checkpoint operations. I disagree, there is a close clear view of the agents and inspection areas while at the same time allowing agents to do their job without impediment and respecting the privacy of vehicle occupants during questioning.
Your brief alleges that Border Patrol’s intention on the day of the protest was to intimidate monitors by pushing them back and threatening arrest. Fact is that agents politely asked the monitors numerous times to move back to a designated area we had set up for them and the monitors refused. The agents explained why this needed to be done to include advising that the public was not allowed to set up ground where agents were conducting law enforcement duties as it impeded the agent’s ability to safely do their job. This was explained numerous times yet the monitors still refused to move. It was then that agents began to advise the monitors that they were subject to arrest if they continued to ignore commands to move away from the agent’s work area.
Eventually the majority of protester/monitors moved to the area we had designated yet there were still some who continued to challenge the agents by remaining a few feet inside the perimeter. At this point agents were forced to park vehicles up against the barrier in order to get these persons to move to the other side. Some of the monitors claimed agents placed the vehicles there to block the view of the inspection areas. That is incorrect. The vehicles were parked there to provide an additional barrier because some monitors refused to move. If the monitors had moved when agents asked them to the vehicles would have never been placed there. We really have to commend the agents at the checkpoint that day for their patience and professionalism. Agents would have been within their authority to forcibly remove and/or arrest those who continued to impede and interfere after commands were given to move behind the barrier. Agents instead chose to give the protestors ample time
(approximately 1 ½ hours) to move. I doubt there is any other law enforcement agency that would have patiently waited 1 ½ hours for someone to move after they were asked and ultimately told to do so.
2

Case 4:14-cv-02485-BGM Document 1-4 Filed 11/20/14 Page 4 of 5 There is a law which addresses impeding a Federal Officer while in the performance of his or her duties. The law also addresses assault and resisting. Contrary to your beliefs that agents cannot make arrests, 18 USC 111 gives agents the authority to arrest any persons, including citizens, who violate the section as it reads below. 18 USCS § 111. Assaulting, resisting, or impeding certain U.S. officers or employees (a) In general. Whoever-(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person deemed an officer or employee of the U.S. as designated in section 1114 of this title [18 USCS § 1114] while officer or employee is engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 [18 USCS § 1114] on account of the performance of official duties during such person's term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both. In the end I think it is important that both groups respect each other’s mission. As previously stated, agents do not have the desire or intention to challenge or stop PHP from monitoring as long as it’s done from outside the marked perimeter of the checkpoint. Monitoring and protesting must be done in a manner that does not impede or interfere with the agent’s ability to do their job or put anyone in danger of getting hurt. Please feel free to post my message on your website for PHP members to see.
You can contact me by phone or e mail should you have any questions, complaints, or issues.
Thank You
Roger San Martin Agent in Charge Tucson Border Patrol Station Roger.Sanmartin@dhs.gov (520) 514-4701 (desk).
3

Case 4:14-cv-02485-BGM Document 1-4 Filed 11/20/14 Page 5 of 5 -People Helping People
Arivacans providing hospitality and community support in the borderlands.
Arivaca Humanitarian Aid Office Hours and Contact Info Tuesday, Thursday 12-4pm Friday and Saturday 9am-1pm Closed - Sunday, Monday, Wednesday 520-398-3093 www.phparivaca.org
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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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July 3, 2014
VIA EMAIL AND CERTIFIED U.S. MAIL:
Manuel Padilla, Jr. Chief Patrol Agent – Tucson Sector U.S. Customs and Border Protection 2430 South Swan Road Tucson, AZ 85711
Re: First Amendment Rights of Protesters and Photographers at Arivaca Road Checkpoint
Dear Chief Padilla,
We write to again seek resolution of this matter. A recent decision by the U.S. Supreme Court, as well as consistent findings by the Ninth Circuit Court of Appeals, make clear that the arbitrary interference with the ability of Arivaca residents to observe and record public activities at the Arivaca Road checkpoint, including restriction to a designated area 150 feet from the checkpoint, violate established constitutional rights. Further your April 24, 2014 response letter on this matter includes inaccurate representations, which we write to correct; that letter is attached, for your reference.
In a decision handed down just last week, McCullen v. Coakley, No. 121168 (U.S. June 26, 2014), the Supreme Court made clear that the restriction imposed by the Border Patrol in Arivaca cannot stand. McCullen involved a buffer zone restricting access to public areas within 35 feet of abortion clinic entrances. Id. The Supreme Court held that this restriction violated the First Amendment of persons seeking to be closer, notwithstanding the legitimate interests asserted by the state, including that of maintaining public safety, because the statute burdened “substantially more speech than necessary.” Id. at 16. The Court observed there were ample, less restrictive alternatives available, and the fact that those alternatives might be more difficult to implement than a simple buffer zone was not enough to satisfy the First Amendment: “To meet the

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requirements of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easier to enforce, but the prime objective of the First Amendment is not efficiency.” Id. at 20. By resorting to “the extreme step of closing a substantial portion of a traditional public forum to all speakers…without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes,” the statute violated the First Amendment. Id.
The same rationale applies to the checkpoint monitors engaged in First Amendment activity at the Arivaca Road checkpoint. As stated in our previous letter, Border Patrol’s checkpoint restrictions are not narrowly tailored to any substantial interest in safety and do not provide alternative channels for effectively protesting, monitoring, and recording the operation of checkpoints. See Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (“75yard security zone” was not narrowly tailored to asserted safety interests
Notwithstanding your April 24 response letter, the Border Patrol has not provided “alternative channels of communication.” It is not the case, as your letter claims, that residents have “unlimited viewing space from either side of the Checkpoint, which is only ten feet from the end of the secondary inspections area.” In fact, Border Patrol has erected barriers on the public right of way approximately 150 feet from the checkpoint on both the east and west sides of the checkpoint. As you know, the secondary inspection area extends east from the checkpoint on the south side of Arivaca Road. There is no secondary inspection area to the west of the checkpoint or on the north side of the road directly across from the checkpoint. Nonetheless, checkpoint monitors are prohibited from entering the newly created “enforcement zone,” and must remain approximately 150 feet from the checkpoint at all times.
The response letter also inaccurately claims that filming government officials in public “may” be protected by the First Amendment. There is no “may” about this protection. As set out in our previous letter of April 17, 2014, the Ninth Circuit and other federal appellate courts have been unequivocal on this point. See e.g., Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing First Amendment right to film matters of public interest). Further, your letter does not address our concerns that agents have harassed and retaliated against checkpoint monitors, have parked vehicles in a manner to obstruct observations, and subjected checkpoint supporters and opponents to disparate treatment. Nor does it address our concerns regarding the undue discretion afforded to agents in restricting access to public areas adjacent to checkpoints.
Accordingly, we renew our demand that Border Patrol remove the barriers on Arivaca Road and allow residents to peacefully protest, photograph, and videotape from the public right of way across the street from the checkpoint and/or from a short distance outside the primary inspection area. We are available
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to discuss this matter further; if however, we cannot resolve this matter promptly, we will pursue legal action to vindicate the rights of the Arivaca checkpoint monitors.
Please contact us if you have any questions at (602) 650-1854 or jlyall@acluaz.org.
Sincerely,
James Lyall Staff Attorney ACLU of Arizona
Enclosure as indicated:
Cc: Jeh Johnson Secretary of Homeland Security U.S. Department of Homeland Security 245 Murray Lane SW Washington, D.C. 20528
R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20229
Thomas Winkowski Deputy Commissioner U.S. Customs and Border Protection 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20229
Stevan Bunnell General Counsel Office of the General Counsel U.S. Department of Homeland Security Mail Stop 3650 Washington, DC 20528
Scott K. Falk Chief Counsel Office of Chief Counsel U.S. Customs and Border Protection Mail Stop 3650 Washington, DC 20528
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 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Leesa Jacobson and Peter Ragan,

No. CV-14-02485-TUC-BGM

10
11 v.
12

Plaintiffs,

13 United States Department of Homeland Security; United States Customs and
14 Border Protection; United States Office
15 of Border Patrol, et al.,

ORDER

16

Defendants.

17

18

Currently pending before the Court is Plaintiffs’ Motion for Preliminary Injunction

19 (Doc. 29). The Government has filed its Response (Doc. 38), and Plaintiffs have replied

20 (Doc. 43). Oral argument was heard on April 21, 2015. Minute Entry 4/21/2015 (Doc.

21 46).

22

23 I. FACTUAL BACKGROUND1

24

Plaintiffs are residents of Arivaca, Arizona and members of People Helping

25 People (“PHP”), a community organization who initiated a “checkpoint monitoring

26 campaign” to protest the United States Border Patrol checkpoint on Arivaca Road in

27

28

1 For purposes of this motion, the facts have been derived from the Complaint (Doc. 1),

with reference to declarations of individuals, as appropriate.

1 Amado, Arizona. Compl. (Doc. 1) ¶¶ 2, 9, 10; Raglan Decl. 12/23/2014 (Doc. 27-2) ¶ 3.

2 Arivaca Road is a two-lane county road, and the checkpoint is located approximately

3 twenty-two (22) miles east of Arivaca and one mile west of Amado, where the road meets

4 Interstate 19. San Martin Decl. 1/30/2015 (Doc. 34-4) ¶ 6. The Arivaca Road checkpoint

5 has been in operation for approximately seven years. Compl. (Doc. 1) ¶ 31. Generally,

6 eastbound vehicles are individually screened, with the agent manning the primary

7 inspection area standing on the center stripe. San Martin Decl. 1/30/2015 (Doc. 34-4) ¶

8 9.

9

In approximately July 2013, PHP launched a campaign to protest the Arivaca

10 Road checkpoint. Compl. (Doc. 1) ¶ 32. PHP is an all-volunteer organization, founded

11 by residents of Arivaca, Arizona to provide humanitarian aid along the United States–

12 Mexico border. Id. at ¶ 33. Beginning in approximately October 2013, PHP drafted and

13 circulated a petition calling on Border Patrol to remove the Arivaca Road checkpoint,

14 citing civil rights violations by agents at the checkpoint, along with harm to property

15 values, tourism, and quality of life resulting from checkpoint operations. Id. at ¶ 34;

16 Raglan Decl. 7/23/2014 (Doc. 27-2) ¶ 12. The petition also stated residents’ objection to

17 the checkpoint for its alleged role in contributing to migrant deaths and the militarization

18 of the border region. Compl. (Doc. 1) ¶ 34.

19

On December 8, 2013, PHP held a rally at the Arivaca checkpoint. San Martin

20 Decl. 1/30/2015 (Doc. 34-4) ¶ 12. The checkpoint was closed by Border Patrol for the

21 duration of the rally for the safety of protesters, agents, and motorists. San Martin Decl.

22 1/30/2015 (Doc. 34-4) ¶ 12; Spencer Decl. 1/30/2015 (Doc. 34-7) ¶ 3. While checkpoint

23 operations were suspended, traffic was permitted to pass uninspected. San Martin Decl.

24 1/30/2015 (Doc. 34-4) ¶ 12; Spencer Decl. 1/30/2015 (Doc. 34-7) ¶ 3.

25

On February 26, 2014, PHP members initiated checkpoint “monitoring” activities

26 at the Arivaca Road checkpoint. Compl. (Doc. 1) ¶ 42; Raglan Decl. 12/23/2014 (Doc.

27 27-2) ¶¶ 4, 13. Monitors wore fluorescent yellow traffic vests marked “Checkpoint

28 Monitor” and carried a sign reading “monitoring to Deter Abuse and Collect Data,” as

- 2 -

1 well as video cameras, notepads, and PHP materials. Compl. (Doc. 1) ¶ 43. PHP

2 monitors sought to observe all interactions between agents and motorists during the

3 period monitoring occurred and to record relevant information based on those

4 observations. Id. The monitors were accompanied by roughly two dozen additional

5 protesters and PHP members, several of whom carried signs and banners protesting the

6 checkpoint. Id. at ¶ 44.

7

PHP members were moved initially by Border Patrol agents to an area

8 approximately 200 feet east of the checkpoint. Compl. (Doc. 1) ¶ 46. Border Patrol

9 asserts that this boundary was approximately 150 feet east of the primary inspection area.

10 San Martin Decl. 1/30/2015 (Doc. 34-4) ¶ 13. Border Patrol also informed the protesters

11 that they had a permit for their use of the area. Compl. (Doc. 1) at ¶¶ 47–48. Pima Count

12 Sherriff’s Deputies eventually moved the monitors to an area directly across from where

13 the monitors were standing, at the end of a line of Border Patrol vehicles. Id. at ¶ 49.

14 The monitors complain that their view was obstructed by several Border Patrol vehicles

15 that were parked along the north side of the road. Id. at ¶ 50. Border Patrol agents

16 ultimately cordoned off an “enforcement zone” to prevent pedestrian access to the

17 checkpoint. Id. at ¶¶ 53–58.

18

On March 1, 2014, PHP members returned to “monitor” the checkpoint. Compl.

19 (Doc. 1) ¶ 59. The monitors stopped approximately 100 feet from the checkpoint, in

20 roughly the same location that they had agreed to use previously at the request of Deputy

21 Judd. Id. at ¶ 60. The monitors were approached by Border Patrol agents and told that

22 they needed to stand behind the boundary; the monitors refused and remained in place.

23 Id. at ¶ 61; Huey Decl. 1/30/2015 (Doc. 34-8) ¶ 3. Approximately an hour later, Border

24 Patrol agents returned and told the monitors that either they moved or they would be

25 placed under arrest. Compl. (Doc. 1) ¶ 62; Huey Decl. 1/30/2015 (Doc. 34-8) ¶ 3.

26 Accordingly, the monitors moved to approximately 150 feet from the checkpoint. Id. at

27 63. Border Patrol then parked a vehicle on the west side of the barrier, directly in front of

28 the PHP members, blocking their line of vision. Id. at 64. Also in March 2014, a drunk

- 3 -

1 motorist travelling westbound through the Arivaca checkpoint drove off the road and

2 crashed into license plate readers located on the northern roadside near the primary

3 inspection area. San Martin Decl. 1/30/2015 (Doc. 34-4) ¶ 10.

4

Plaintiffs also offer anecdotal evidence of individuals being allowed inside the

5 enforcement zone – in one case the person was someone who had harassed the protesters

6 previously, and who recorded their activities from within the enforcement zone. Compl.

7 (Doc. 1) ¶¶ 79–81. In response to this April 3, 2014 incident, Border Patrol Agent in

8 Charge Roger San Martin took corrective action “to reinforce the policy to permit only

9 authorized persons within the checkpoint for official purposes[,] and . . . to make clear

10 that incidents such as this were unacceptable.” San Martin Decl. 1/30/2015 (Doc. 34-4)

11 ¶¶ 16–18. A second example given by Plaintiffs, is of a plain clothed individual arriving

12 in his truck and conversing with agents. Compl. (Doc. 1) ¶ 82. Agent in Charge San

13 Martin stated that the Complaint does not contain sufficient information to determine

14 whether this incident violates policy, because Border Patrol agents, and other law

15 enforcement agents, including those from the Drug Enforcement Agency (“DEA”) and

16 Immigration and Customs Enforcement (“ICE”), work in plainclothes and often stop at

17 checkpoints for the purpose of intelligence sharing or to advise Border Patrol that they

18 are operating in the area. San Martin Decl. 1/30/2015 (Doc. 34-4) ¶ 19.

19

Plaintiffs’ Complaint (Doc. 1) alleges one count of “Unlawful Regulation of

20 Plaintiffs’ First Amendment Rights in a Public Forum” and one count of “Retaliation

21 Based on Rights Protected Under the First Amendment of the United States

22 Constitution.” Compl. (Doc. 1) at ¶¶ 106–113. Plaintiffs claim that the “enforcement

23 zone” and regulation of Plaintiffs proximity to the checkpoint are “both broader than

24 needed to further Defendants’ objectives.” Id. at ¶ 108. Plaintiffs seek injunctive and

25 declaratory relief.

26

27 III. ANALYSIS

28

Currently pending before the Court is Plaintiffs’ Motion for Preliminary Injunction

- 4 -

1 and Memorandum of Points and Authorities in Support Attached (Doc. 29). Defendant

2 has responded (Doc. 38), and Plaintiff replied (Doc. 43). Plaintiffs seek a preliminary

3 injunction prohibiting (1) “Defendants from barring Plaintiffs from any portion of the

4 public right-of-way more than twenty feet outside of the primary and secondary

5 inspection areas of the Border Patrol checkpoint on Arivaca Road, including the public

6 right-of-way on the side of the road opposite the checkpoint shelter; and (2) “Defendants

7 from deliberately infringing or interfering with Plaintiffs’ First Amendment rights to

8 observe or record the operation of the Border Patrol checkpoint on Arivaca Road from

9 the adjacent public right-of-way, including by deliberately parking cars between the

10 observers and checkpoint operations and by running Border Patrol vehicle so that the

11 exhaust reaches Plaintiffs, and by verbally harassing Plaintiffs and gratuitously

12 threatening arrest.” Pl.’s Mot. for Prelim. Inj. (Doc. 29) at 1.

13

A. Standing

14

As an initial matter, the Government asserts that Plaintiffs do not have standing to

15 bring this lawsuit. Govt.’s Response (Doc. 34) at 34. Relying on Lujan v. Defenders of

16 Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 2138, 119 L.Ed.2d 351 (1992), the

17 Government argues that Plaintiffs failure to demonstrate an intent to return to the Arivaca

18 checkpoint means that they cannot establish a “‘real and immediate threat’ of future

19 injury necessary to obtain prospective injunctive relief, and therefore lack standing to

20 seek it.” Govt.’s Response (Doc. 34) at 34.

21

Plaintiffs assert that the Government’s actions, such as roping off the area around

22 the checkpoint and parking vehicles in the monitors’ line of sight, have had a chilling

23 impact on the exercise of their First Amendment rights, and therefore represent a

24 continuing and irreparable harm. Pls.’ Reply (Doc. 40) at 16.

25

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.

26 Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). “The

27 jurisdiction of federal courts is defined and limited by Article III of the Constitution.”

28 Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed. 947 (1968). Further, the

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1 judicial power of this and all federal courts is limited to actual cases or controversies.

2 U.S. Const. art. III; See also, Flast v. Cohen, 392 U.S. 83, 94–95, 88 S.Ct. 1942, 1949–

3 50, 20 L.Ed.2d 947 (1968). The Supreme Court of the United States recognizes several

4 doctrines which define the constitutional and prudential limitations on the federal courts’

5 power to hear cases. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82

6 L.Ed.2d 556 (1984). Included among these are the concepts of standing, mootness,

7 ripeness and political questions. Id. Prior to invoking the power of the federal court, it

8 must be determined “whether the litigant is entitled to have the court decide the merits of

9 the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,

10 2205, 45 L.Ed.2d 343 (1975). “[T]he standing question is whether the plaintiff has

11 ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his

12 invocation of federal-court jurisdiction and to justify exercise of the court’s remedial

13 powers on his behalf.” Id., 95 S.Ct. at 2205 (citations omitted). “The Art. III judicial

14 power exists only to redress or otherwise to protect against injury to the complaining

15 party[.]” Id.; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1, 112 S.Ct. 2130, 2136

16 n.1, 119 L.Ed.2d 351 (1992) (“the injury must affect the plaintiff in a personal and

17 individual way.”).

18

Plaintiffs bear the burden of showing that they have standing for each type of

19 relief sought. Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142,

20 1149, 173 L.Ed.2d 1 (2009) (citations omitted); Lujan, 504 U.S. at 561, 112 S.Ct. at

21 2136. In order to meet this burden, Plaintiffs must show that (1) they have suffered an

22 “injury in fact” that is (a) “concrete and particularized” and (b) “actual or imminent”; (2)

23 a causal connection between the injury fairly traceable to defendant’s actions; and (3) it is

24 likely, not merely speculative, that the injury will be redressed by a favorable decision.

25 Lujan, 504 U.S. at 560–61, 112 S.Ct. at 2136. “At the pleading stage, general factual

26 allegations of injury resulting from the defendant’s conduct may suffice[;] . . . [however,]

27 [i]n response to a summary judgment motion . . . the plaintiff can no longer rest on such

28 ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . .

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1 ‘supported adequately by the evidence adduced at trial.’” Id. at 561, 112 S.Ct. at 2137

2 (citations omitted).

3

The Ninth Circuit Court of Appeals has observed that “at the pleading stage, we

4 have never required a litigant, per impossibile, to demonstrate a total chilling of his First

5 Amendment rights to file grievances and to pursue civil rights litigation in order to

6 perfect a retaliation claim. Speech can be chilled even when not completely silenced.”

7 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2004) (emphasis in original) (prisoner

8 filed suit against prison officials alleging unconstitutional interference in his First

9 Amendment rights to file prison grievances and seek access to the legal process). “[T]he

10 proper First Amendment inquiry asks ‘whether an official’s acts would chill or silence a

11 person of ordinary firmness from future First Amendment activities.’” Rhodes, 408 F.3d

12 at 568–69 (quoting Mendocino Environmental Center v. Mendocino County, 192 F.3d

13 1283, 1300 (9th Cir. 1999)) (emphasis in original). Furthermore, “[i]t is well established

14 that in the area of freedom of expression an overbroad regulation may be subject to facial

15 review and invalidation, even though its application in the case under consideration may

16 be constitutionally unobjectionable.” Forsyth County, Ga. v. Nationalist Movement, 505

17 U.S. 123, 129, 112 S.Ct. 2395, 2400–01, 120 L.Ed.2d 101 (1992) (citations omitted).

18 “This exception from general standing rules is based on an appreciation that the very

19 existence of some broadly written laws has the potential to chill the expressive activity of

20 others not before the court.” Id. at 2401 (citations omitted).

21

Based upon the face of the Complaint (Doc. 1) and Plaintiffs’ Motion for

22 Preliminary Injunction (Doc. 29) and Reply (Doc. 40), the Court finds Plaintiffs have

23 alleged sufficient facts to demonstrate a concrete injury, and ongoing alleged chilling of

24 speech. As such, Plaintiffs have standing to object to the Government’s policies.

25

B. Preliminary Injunction

26

During oral argument, Plaintiffs clarified that for purposes of the preliminary

27 injunction, the alleged abridgement of their right to monitor is the only issue before the

28 Court.

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1

1. Standard of Review

2

A preliminary injunction is an extraordinary and drastic remedy and will not be

3 granted absent a clear showing of likely success in the underlying claim and likely

4 irreparable injury. See Munaf v. Geren, 553 U.S. 674, 689–90, 128 S.Ct. 2207, 2219, 171

5 L.Ed.2d 1 (2008); Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 1867, 138

6 L.Ed.2d 162 (1997) (per curiam); Warsoldier v. Woodford, 418 F.3d 989, 993–94 (9th

7 Cir. 2005); Regents of University of California v. ABC, Inc., 747 F.2d 511, 515 (9th Cir.

8 1984); Fed. R. Civ. P. 65. To obtain a preliminary injunction, the moving party must

9 show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

10 in the absence of preliminary relief, that the balance of equities tips in his favor, and that

11 an injunction is in the public interest.” Winter v. Natural Resources Defense Council,

12 Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374, 172 L.Ed.2d 249 (2008). The moving party has

13 the burden of proof on each element of the test. Environmental Council of Sacramento v.

14 Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Moreover, in the First Amendment

15 arena, courts “face an inherent tension: the moving party bears the burden of showing

16 likely success on the merits—a high burden if the injunction changes the status quo

17 before trial—and yet within that merits determination the government bears the burden of

18 justifying its speech-restrictive law.” Thalheimer v. City of San Diego, 645 F.3d 1109,

19 1115 (9th Cir. 2011).

20

Additionally, the function of a preliminary injunction is to preserve the status quo

21 pending a determination on the merits. Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th

22 Cir. 1988). As such, there is heightened scrutiny where the movant seeks to alter rather

23 than maintain the status quo. Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir.

24 1993) (holding that mandatory, as opposed to prohibitory, injunctions are “subject to a

25 heightened scrutiny and should not be issued unless the facts and law clearly favor the

26 moving party.”). The Ninth Circuit Court of Appeals has held that this type of mandatory

27 injunctive relief is disfavored, and should be denied unless the facts and law clearly favor

28 the movant. Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). There is

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1 also heightened scrutiny where the injunction would provide substantially all the relief

2 the movant may recover after a full trial on the merits. Kikumura v. Hurley, 242 F.3d

3 950, 955 (9th Cir. 2001).

4

2. Likelihood of Success on the Merits

5

The Ninth Circuit Court of Appeals has recognized that evaluation of the

6 likelihood of success on the merits requires consideration of (1) the classification of the

7 property under the Supreme Court of the United States’ forum analysis; (2) assess the

8 appropriate level of scrutiny for that forum; and (3) determine whether the Government’s

9 policy withstands this scrutiny. Brown v. California Dept. of Transp., 321 F.3d 1217,

10 1221 (9th Cir. 2003).

11

a. First Amendment—In General

12

In its First Amendment jurisprudence, the Supreme Court of the United States has

13 recognized “three types of fora: the traditional public forum, the public forum created by

14 government designation, and the nonpublic forum.” Cornelius v. NAACP Legal Defense

15 and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567

16 (1985). “Traditional public fora are those places which ‘by long tradition or by

17 government fiat have been devoted to assembly and debate.’” Id. (quoting Perry

18 Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74

19 L.Ed.2d 794 (1983)). “Public streets and parks fall into this category.” Cornelius, 473

20 U.S. at 802, 105 S.Ct. at 3449. “The government can exclude a speaker from a traditional

21 public forum ‘only when the exclusion is necessary to serve a compelling state interest

22 and the exclusion is narrowly drawn to achieve that interest.’” Arkansas Educ. Television

23 Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (quoting

24 Cornelius, 473 U.S. at 800, 105 S.Ct. 3439)). This “strict scrutiny” analysis applies to

25 content based regulations on speech. See Madsen v. Women’s Health Ctr., Inc., 512 U.S.

26 753, 791, 114 S.Ct. 2516, 2537, 129 L.Ed.2d 593 (1994) (Scalia, J. concurring). “[E]ven

27 in a public forum[,] [however,] the government may impose reasonable restrictions on the

28 time, place, or manner of protected speech, provided the restrictions ‘are justified without

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1 reference to the content of the regulated speech, that they are narrowly tailored to serve a

2 significant governmental interest, and that they leave open ample alternative channels for

3 communication of the information.’” Ward v. Rock Against Racism, 491 U.S. 781, 791,

4 109, S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-

5 Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)); see also

6 United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000). Such time, manner, place

7 regulations represent an intermediate level of scrutiny. See Turner Broadcasting System,

8 Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994).

9

Designated public fora “may be created by government designation of a place or

10 channel of communication for use by the public at large for assembly and speech, for use

11 by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802,

12 105 S.Ct. at 3449. “The government does not create a [designated] public forum by

13 inaction or by permitting limited discourse, but only by intentionally opening a

14 nontraditional forum for public discourse.” Id. “If the government excludes a speaker

15 who falls within the class to which a designated public forum is made generally available,

16 its action is subject to strict scrutiny.” Arkansas Educ. Television Comm’n, 523 U.S. at

17 677, 118 S.Ct. at 1641 (citations omitted).

18

The First Amendment, however “does not guarantee access to property simply

19 because it is owned or controlled by the government.” Cornelius, 473 U.S. at 803, 105

20 S.Ct. at 3449 (quoting United States Postal Service v. Council of Greenburgh Civic

21 Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981)). “Nothing in

22 the Constitution requires the Government freely to grant access to all who wish to

23 exercise their right to free speech on every type of Government property without regard

24 to the nature of the property or to the disruption that might be caused by the speaker’s

25 activities.” Cornellius, 473 U.S. 799–800, 105 S.Ct. at 3447. The Government, “no less

26 than a private owner of property, has power to preserve the property under its control for

27 the use to which it is lawfully dedicated.” Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct.

28 1211, 1217, 47 L.Ed.2d 505 (1976). “Access to a nonpublic forum . . . can be restricted

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1 as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression

2 merely because public officials oppose the speaker’s view.’” Cornelius, 473 U.S. at 800,

3 105 S.Ct. at 3448 (citations omitted) (alterations in original).

4

b. Expression Versus Right of Access

5

Plaintiffs assert that the Arivaca Road checkpoint is a public forum, and that as

6 such they are entitled to monitor the activities of Border Patrol agents and their

7 interactions with the motoring public, with little limitation. See Pls.’ Mot. for Prelim. Inj.

8 (Doc. 29). Conversely, Defendants argue that the right of access requires only a

9 reasonableness inquiry as to any restrictions on speech, and in any event the checkpoint is

10 a nonpublic forum, and as such, the Government is entitled to reasonable time, manner,

11 and place restrictions on speech. See Defs.’ Opposition to Pls.’ Mot. for Prelim. Inj.

12 (Doc. 38) at 12–25.

13

Plaintiffs rely on the Ninth Circuit Court of Appeals decision in Fordyce v. City of

14 Seattle, 55 F.3d 436 (9th Cir. 1995) to sustain their position. In Fordyce, the Ninth

15 Circuit Court of Appeals recognized that an individual videotaping and audio-recording

16 people on the streets of Seattle had a First Amendment right “to film matters of public

17 interest.” 55 F.3d at 439. Plaintiff Jerry Fordyce was videotaping a public protest march,

18 ostensibly for broadcast on a public access channel. Id. at 438. Fordyce was filming two

19 boys, whose adult relative asked him to stop. When Fordyce refused, the relative

20 complained to police. Id. at 439. The police also asked Fordyce to stop, but he again

21 refused. Id. Fordyce was arrested for violating a Washington State statute barring the

22 recording of private conversations without the consent of all participants. Id. at 438. The

23 matter was before the court of appeals regarding, inter alia, the district court’s grant of

24 the city defendants’ motion for summary judgment as to Fordyce’s 42 U.S.C. § 1983 and

25 state tort claims. Fordyce, 55 F.3d at 438–39. The Fordyce court’s recognition of a First

26 Amendment right to film matters of public interest came in the context of overruling the

27 district court’s grant of summary judgment to an officer who allegedly pushed Fordyce’s

28 camera into his face, thereby reinstating Fordyce’s First Amendment claim under 42

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1 U.S.C. § 1983 and state law assault and battery claim against the individual officer. Id. at

2 439. The Fordyce court did not pass on the constitutionality of the Washington statute,

3 nor did it make any findings regarding plaintiff’s First Amendment claim beyond that

4 there were material issues of fact necessitating trial.

5

The First Circuit Court of Appeals has recognized that “[t]he filming of

6 government officials engaged in their duties in a public place, including police officers

7 performing their responsibilities . . . serves a cardinal First Amendment interest in

8 protecting and promoting ‘the free discussion of governmental affairs.’” Glik v. Cunniffe,

9 655 F.3d 78, 82 (1st Cir. 2011) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct.

10 1434, 16 L.Ed.2d 484 (1966)). This “right to film[,] [however,] is not without

11 limitations[—][i]t may be subject to reasonable time, place, and manner restrictions.”

12 Glik, 655 F.3d at 84. The plaintiff, Glik, had “filmed the defendant police officers in the

13 Boston Common, the oldest city park in the United States and the apotheosis of a public

14 forum.” Id. Glik recorded an arrest from approximately ten (10) feet away, and was

15 subsequently arrested for a violation of the Massachusetts’s wiretap statute. Id. at 80.

16 Glik sued for a violation of his rights pursuant to 42 U.S.C. § 1983, and the district court

17 denied defendants’ motion to dismiss on qualified immunity grounds. Id. The court of

18 appeals held that although the First Amendment right to record is not unqualified, for

19 purposes of the case before it, the district court did not err in denying qualified immunity.

20

Subsequently, the First Circuit Court of Appeals considered the right to film a

21 traffic stop. Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014). Gericke filmed an officer

22 performing a traffic stop of a friend’s vehicle. Id. at 3–4. The officer was aware of her

23 presence, and never asked her to stop recording. Id. Gericke was arrested and charged

24 with unlawful interception of oral communications, and brought suit against the officers

25 under 42 U.S.C. § 1983. Id. at 4. The Gericke court reiterated a statement the court

26 made in Glik acknowledging that “a traffic stop is worlds apart from an arrest on the

27 Boston Common in the circumstances alleged [in that case.]” Gericke, 753 F.3d at 7

28 (quoting Glik, 655 F.3d at 85). The Gericke court went on to state, “[i]mportantly, an

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1 individual’s exercise of her First Amendment right to film police activity carried out in

2 public, including a traffic stop, necessarily remains unfettered unless and until a

3 reasonable restriction is imposed or in place.” Gericke, 753 F.3d at 8. The court of

4 appeals upheld the district court’s denial of qualified immunity to the officers, but did not

5 consider whether the wiretapping statute amounted to a reasonable time, place, and

6 manner restriction on speech. Id. at 9–10.

7

Conversely, the Third Circuit Court of Appeals upheld a district court’s grant of

8 qualified immunity to a police officer defendant. Kelly v. Borough of Carlisle, 622 F.3d

9 248, 263 (3d Cir. 2010). Plaintiff Brian Kelly was the passenger in a friend’s car, when

10 he was pulled over for a traffic violation. Id. at 251. During the stop, Kelly recorded the

11 interaction between his friend and the officer. Id. Kelly was arrested for violating

12 Pennsylvania’s Wiretapping and Electronic Surveillance Control Act. Id. Kelly brought

13 suit under 42 U.S.C. § 1983 for a violation of his First Amendment rights. Id. The Third

14 Circuit Court of Appeals found that “there was insufficient case law establishing a right

15 to videotape police officers during a traffic stop to put a reasonably competent police

16 officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping

17 police during the stop would violate the First Amendment.” Kelly v. Borough of Carlisle,

18 622 F.3d 248, 262 (3d Cir. 2010). “Moreover, even insofar as [the right] is clearly

19 established, the right to record matters of public concern is not absolute; it is subject to

20 reasonable time, place, and manner restrictions, as long as they are ‘justified without

21 reference to the content of the regulated speech, . . . are narrowly tailored to serve a

22 significant governmental interest, and . . . leave open ample alternative channels for

23 communication of the information.’” Id. (emphasis and alterations in original) (quoting

24 Ward v. Rock Against Racism, 491 U.S. 781, 791, 109, S.Ct. 2746, 105 L.Ed.2d 661

25 (1989).

26

The Seventh Circuit Court of Appeals, following the First Circuit, assessed the

27 Illinois eavesdropping statute under a heightened First Amendment scrutiny. ACLU of

28 Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012). The court found that as applied, the

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1 statute “interfere[d] with the gathering and dissemination of information about

2 government officials performing their duties in public . . . burden[ing] speech and press

3 rights[.]” Id. at 600.

4

Distinct from these right to record cases, the Ninth Circuit Court of Appeals has

5 also recognized “a qualified right of access for the press and public to observe

6 government activities.” Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012). The Leigh

7 court acknowledged that “[t]he [Supreme Court of the United States] recognized ‘the

8 common understanding that a major purpose of [the First] Amendment was to protect the

9 free discussion of governmental affairs.’” Id. at 898 (3d alteration in original) (quoting

10 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604, 102 S.Ct. 2613, 73 L.Ed.2d

11 248 (1982)). In Leigh, the plaintiff, a photojournalist, sought unrestricted access to

12 observe a Bureau of Land Management (“BLM”) horse roundup. Leigh, 677 F.3d at 894.

13 The court of appeals found that the appropriate test for plaintiff’s First Amendment claim

14 was that articulated by the Supreme Court of the United States in Press-Enterprise Co. v.

15 Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8–9, 106 S.Ct. 2735, 92 L.Ed.2d 1

16 (1986), stating:

17

First, the court must determine whether a right of access attaches to the

18

government proceeding or activity by considering 1) “whether the place

and process have historically been open to the press and general public”

19

and 2) “whether public access plays a significant positive role in the

20

functioning of the particular process in question.” 478 U.S. at 8–9, 106

S.Ct. 2735. Second, if the court determines that a qualified right applies,

21

the government may overcome that right only by demonstrating “an

22

overriding interest based on findings that closure is essential to preserve

higher values and is narrowly tailored to serve that interest.” Id. at 9, 106

23

S.Ct. 2735 (internal citation omitted).

24 Leigh, 677 F.3d at 898. The Leigh court further found that because there was no

25 restriction on plaintiff’s ability to have a dialogue with another person, “the right of

26 access analysis [was] the more appropriate standard for [the] case.” Id. at 898 n. 3.

27

For purposes of the preliminary injunction motion, the Court will assume, without

28 deciding, that the area in question is a public forum. If the Government’s restrictions

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1 withstand this higher level of scrutiny, they will remain valid if the property is actually a

2 non-public forum. Similarly, the Government’s restrictions would also withstand a 3 challenge under a right of access theory.2

4

c. Content Neutral

5

Plaintiffs contend that “Defendants’ actions since the erection of the barriers are

6 inconsistent with the assertion that the roped-off area is needed for “enforcement,” and

7 evince a pattern of selective targeting of Plaintiffs.” Pls.’ Mot. for Prelim. Inj. and Mem.

8 of Points and Authorities in Support (Doc. 29). Defendants assert that the policy is “to

9 permit only authorized persons within the checkpoint for official purposes.” San Martin

10 Decl. 1/30/2015 (Doc. 38-4) ¶¶ 17–18.

11

“The principal inquiry in determining content neutrality, in speech cases generally

12 and in time, place, or manner cases in particular, is whether the government has adopted a

13 regulation of speech because of disagreement with the message it conveys.” Ward v.

14 Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)

15 (citations omitted). “[A] facially neutral law does not become content based simply

16 because it may disproportionately affect speech on certain topics.” McCullen v. Coakley,

17 — U.S. —, 134 S.Ct. 2518, 2531, 189 L.Ed.2d 502 (2014). “A regulation that serves

18 purposes unrelated to the content of expression is deemed neutral, even if it has an

19 incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791,

20 109 S.Ct. at 2754. “The question in such a case is whether the law is ‘justified without

21 reference to the content of the regulated speech.’” McCullen, — U.S. —, 134 S.Ct. at

22 2531 (quoting Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89

23 L.Ed.2d 29 (1986).

24

Here, Defendants primary interest is in protecting the safety and security of Border

25 Patrol agents, canines, and the public. San Martin Decl. 1/30/2015 (Doc. 38-4) ¶¶ 10–11.

26 Furthermore, “[C]heckpoint stops are ‘seizures’ within the meaning of the Fourth

27

2 The Court notes that it finds that the right of access assessment of Leigh is not

28

appropriate in this case. Unlike Leigh, there is the potential for discussion between

monitor and checkpoint motorists. See Leigh, 677 F.3d at 898 n.3.

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1 Amendment.” Martinez-Fuerte v. United States, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082,

2 49 L.Ed.2d 1116 (1976). The Supreme Court of the United States has “upheld brief,

3 suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to

4 intercept illegal aliens, . . . and at a sobriety checkpoint aimed at removing drunk drivers

5 from the road[.]” City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 452,

6 148 L.Ed.2d 333 (2000) (internal citations omitted). Such programs were “designed to

7 serve ‘special needs, beyond the normal need for law enforcement.’” Id. (citations

8 omitted). As such, checkpoint stops are criminal investigations, which if frustrated may

9 “jeopardize the integrity of the search for truth that is so critical to the fair administration

10 of justice.” Times Mirror Co. v. U.S., 873 F.2d 1210, 1213 (9th Cir. 1989) (discussing

11 the public right of access to judicial proceedings, and the negative impact that openness

12 may have on criminal fact-finding).

13

Plaintiffs argue that Defendants are targeting their speech. As an example

14 Plaintiffs assert that when a land surveyor, who surveyed the property on and around the

15 checkpoint, asked why there were roped off areas, Border Patrol agents explained that

16 “the barriers were in place to exclude people who might interfere with Border Patrol

17 activities[.]” McLain Decl 12/23/2014 (Doc. 29-3) ¶ 15. Plaintiffs assume that this

18 demonstrates that agents are targeting them. Interference can occur when the source is

19 deemed positive or negative. The message of the speaker is irrelevant. In this case, the

20 policy applies equally to Plaintiffs, cartel members who wish to obtain information

21 regarding the transport of their load, or members of the public who wish to cheer in

22 support of the checkpoint. As such, Defendants’ policy to exclude those who do not have

23 official business within the boundaries of the checkpoint is content neutral.

24

d. Significant Government Interest

25

“It has been a national policy for many years to limit immigration into the United

26 States.” Martinez-Fuerte v. United States, 428 U.S. 543, 551, 96 S.Ct. 3074, 3080, 49

27 L.Ed.2d 1116 (1976). As such, there is a substantial public interest “in the practice of

28 routine stops for inquiry at permanent checkpoints.” Id. at 556, 96 S.Ct. at 3082. It is

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1 undisputed that the Government’s interest in enforcing its laws is substantial.

2

e. Narrowly Tailored

3

Plaintiffs assert that Defendants’ policy is not narrowly tailored, because the

4 barriers “forc[e] pedestrian traffic into the roadway,” and that “Plaintiffs have even

5 offered to stand on the side of the road opposite the checkpoint—where no enforcement

6 activity takes place at all[.]” Pls.’ Mot. for Prelim. Inj. and Mem. of Points and

7 Authorities in Support (Doc. 29) at 24. Further, Plaintiffs assert that the policy “prevents

8 them from being able to adequately see or determine the nature of the interactions

9 between border Patrol agents and motorists, thereby preventing them from determining

10 whether harassment or constitutional violations have occurred.” Id. at 26. Conversely,

11 Defendants reiterate the need to protect the safety of agents and the public. See Defs.’

12 Response to Mot. for Prelim. Inj. (Doc. 38) at 19–20.

13

“[T]he requirement of narrow tailoring is satisfied ‘so long as the . . . regulation

14 promotes a substantial government interest that would be achieved less affectively absent

15 the regulation.’” Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 2758,

16 105 L.Ed.2d 661 (1989) (alterations in original) (quoting United States v. Albertini, 472

17 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)). Such restriction “need not

18 be the least restrictive or least intrusive means of doing so.” Id. at 798, 109 S.Ct. 2757–

19 58. “[T]he government still ‘may not regulate expression in such a manner that a

20 substantial portion of the burden on speech does not serve to advance its goals.’”

21 McCullen v. Coakley, — U.S. —, 134 S.Ct. 2518, 2535, 189 L.Ed.2d 502 (2014) (quoting

22 Ward, 491 U.S. at 799, 109 S.Ct. at 2758)).

23

Plaintiffs rely on McCullen to argue that Border Patrol “has available to it a

24 variety of approaches that appear capable of serving its interests, without excluding

25 individuals from areas historically open for speech and debate.” McCullen, 134 S.Ct. at

26 2539. The Supreme Court in McCullen held that a thirty-five (35) foot buffer zone

27 around Massachusetts abortion clinics burdened more speech than necessary, because it

28 severely impeded petitioners’ ability to distribute literature and speak to clinic patients

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1 one-on-one, without shouting. Id. at 2536–37. Plaintiffs also cite to Bay Area Peace

2 Navy v. United States, 914 F.2d 1224 (9th Cir. 1990), where a 75-yard security zone was

3 deemed too broad in light of the “speculative threat of violent attack[.]” Bay Area Peace

4 Navy, 914 F.2d at 1228. The Bay Area Peace Navy court, however, recognized that “a

5 tangible threat to security” could result in modification of a narrower injunction. Id.

6

Unlike in Bay Area Peace Navy, however, the Government’s concern for agent

7 and public safety is not speculative. See San Martin Decl. 1/30/2015 (Doc. 38-4) ¶ 10–

8 11. Furthermore, there are standard weapon-retention techniques that preclude allowing

9 Plaintiffs to occupy the area on the north side of the street. Id. at 20. Moreover, as this is

10 a rural road, there are no sidewalks or other pedestrian only areas for Plaintiffs to stand.

11 The shoulder of a road does not provide any buffer between Plaintiffs and vehicle traffic.

12 The enforcement zone also allows Border Patrol to park its vehicles in a manner serving a

13 legitimate law enforcement purpose, as well as maintaining a safety zone for the

14 protection of all involved. See United States v. Griefen, 200 F.3d 1256, 1262 (150 foot

15 closure order surrounding construction area in a national park valid time, place, and

16 manner restriction on speech). Additionally, the 180-foot enforcement zone runs east and

17 west from the center of the checkpoint, the secondary inspection area extends

18 approximately 100-feet from the center of the checkpoint. Defs.’ Response to Mot. for

19 Prelim. Inj. (Doc. 38) at 20.

20

Further, the sample “Checkpoint Vehicle Stop Report[s]” Plaintiffs have submitted

21 do not reflect Plaintiffs’ inability to monitor the checkpoint. See Pls.’ Reply (Doc. 43) ,

22 Exh. “1.” The reports include the date, day of the week, as well as arrival and departure

23 time. Id. Monitors then circle whether a vehicle was a sedan; SUV; van; truck; bus; or

24 other, and whether the vehicle was newer; older; battered; washed; unwashed; bumper

25 stickers; or other. Id. Some information is recorded by circling “yes” or “no,” such as

26 Arizona license plate, interior search at secondary, canine search at secondary, or

27 physical search of occupants. Id. Other information requires a fill-in or check response,

28 such as the number of occupants and whether they were male, female, children, teens,

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1 adults or over 50, whether occupants made comments to the monitors, and other incidents

2 and observations. Id. Monitors circle whether a search occurred at primary, with choices

3 of none; visual exterior; canine; alerted; or interior. Id.

4

On March 25, 2015, a monitor was able to document the ethnicity of the driver,

5 the type and characteristics of the vehicle and driver, and that the individual showed

6 papers. Pls.’ Reply, Exh. “1” (Doc. 43-2) at 473. On April 15, 2015, a monitor, in

7 addition to the standard form answers, provided information regarding what occurred at

8 secondary including that the driver got out of the vehicle, a canine sniff being performed,

9 and where on the vehicle was searched. Id., Exh. “1” (Doc. 43-3) at 404. Similarly, the

10 “Checkpoint Monitoring: Shift Report” which indicates summary information, including

11 law enforcement personnel, are filled out with varying degrees of completeness. See id.,

12 Exh. “1” (Doc.43-2) at 52, Exh. “1” (Doc. 43-3) at 465, 517. As such, the Court finds

13 that the 180-foot enforcement zone is a valid time, place, and manner restriction on

14 Plaintiffs’ speech.

15

3. Remaining Factors

16

In light of the Court’s determination that Defendants’ policy is a valid time, place,

17 and manner restriction on speech, Plaintiffs cannot meet their burden to show a likelihood

18 of success on the merits. As such, the Court will not consider the remaining factors

19 necessary to support entry of a preliminary injunction.

20 . . .

21 . . .

22 . . .

23 . . .

24 . . .

25 . . .

26 . . .

27 . . .

28 . . .

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1 IV. CONCLUSION

2

Based upon the foregoing, Defendants’ policy restricting pedestrian access to the

3 Arivaca Border Patrol Checkpoint is a valid time, place, and manner restriction on

4 speech. As such, Plaintiffs have not met their burden to warrant entry of a preliminary

5 injunction. Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for

6 Preliminary Injunction (Doc. 29) is DENIED.

7

Dated this 14th day of September, 2015.

8

9

Honorable Bruce G. Macdonald

10

United States Magistrate Judge

11

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13

14

15

16

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26

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 Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 1 of 29

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 9 Leesa Jacobson and Peter Ragan,

No. CV-14-02485-TUC-BGM

10

Plaintiffs,

11 v.
12 United States Department of Homeland
13 Security, et al.,
14 Defendants.
15

ORDER

16 Currently pending before the Court is Defendant’s Motion to Dismiss, or in the
17
18 Alternative, Motion for Summary Judgment (Doc. 61). Plaintiffs have filed their

19 opposition (Doc. 72), including an assertion that relief pursuant to Rule 56(d), Federal

20 Rules of Civil Procedure, is appropriate. Defendant filed its reply (Doc. 78) and Plaintiff 21 22 replied in support of their Rule 56(d) declaration (Doc. 83). On September 22, 2016, oral

23 argument was held before the Honorable Bruce G. Macdonald. Minute Entry 9/22/2016

24 (Doc. 92). The matter is ripe for review. 25
. . . 26
27 . . .

28 . . .

Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 2 of 29

1 I. 2 3 4

FACTUAL BACKGROUND A. The Arivaca Border Patrol Checkpoint The eastbound approach to the Arivaca checkpoint is marked as follows: at about

5 0.4 mile out, “Border Patrol Checkpoint Ahead;” at 1,350 feet, “Speed Limit 35” mph,

6 reduced from 45 mph; at 900 feet, “Speed Limit 25” mph; at 600 feet, “All Vehicles Must
7 Stop Ahead;” at 320 feet, “No Passing Zone;” at 300 feet, “K-9 on Duty, Please Restrain
8

9 Your Pets;” at 250 feet, “Use Low Beams;” and at 180 feet, “Speed Limit 15” mph and a

10 digital speed board, with traffic cones and pylons along the center stripe beginning at 200 11
feet out, a series of three rumble strips beginning at 110 feet out, and a stop sign at the 12 13 primary inspection area, in the center of the checkpoint. See Pls.’ Mot. Prelim. Inj.,

14 McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image); Defs.’ Response to

15 Prelim. Inj., San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1–
16
17 18 (photographs). Plaintiffs dispute this statement, arguing with Defendants’ “overbroad

18 use of the term ‘Arivaca checkpoint.’” Pls.’ CSOF (Doc. 73) at ¶ 1. Plaintiffs further

19 argue that “characterizing the disputed area as a ‘checkpoint,’ or argument about the 20
significance of the disputed area more generally,” Defendants are asserting legal 21
22 argument.1 Pls.’ CSOF (Doc. 73) at ¶ 1. Plaintiffs also assert that they are entitled “to

23 take discovery into Defendants’ operations along Arivaca Road[.]” Id. Plaintiffs do not 24
dispute, however, the foundation for the photographs and the accuracy of where the 25 26 signage is placed. Furthermore, Defendants’ statement relies, at least in part, on an image

27

1 Black’s Law Dictionary defines a “checkpoint” as “[a] roadblock or barrier used to

28 check people and vehicles passing through, as for authorization to enter, security breaches, law
enforcement.” Black’s Law Dictionary (10th ed. 2014).

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 3 of 29

1 submitted by Plaintiffs in their Motion for Preliminary Injunction (Doc. 29) and
2 resubmitted in their Controverting Statement of Facts (Doc. 73) at ¶ 36 opposing to
3 4 Defendants’ currently pending motion.2

5

At the primary inspection area, there are two plastic barricades along the center

6 stripe, in between which a Border Patrol agent stands. See Pls.’ Mot. Prelim. Inj.,
7 McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image); Defs.’ Response to
8

9 Prelim. Inj., San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1–

10 18 (photographs). Plaintiffs dispute this fact, because they “have not been afforded the 11
opportunity to take discovery into Defendants’ operations along Arivaca Road, and 12 13 accordingly have been prevented from providing a more detailed response[.]” Pls.’

14 CSOF (Doc. 73) at ¶ 2. The plastic barricades are clearly visible and identified in the

15 satellite image provided by Plaintiffs’ expert and resubmitted in their Controverting
16
17 Statement of Facts (Doc. 73) at ¶ 36. Moreover, the plastic mat is also visible. See Pls.’

18 CSOF (Doc. 73) at ¶ 36. Furthermore, Plaintiffs do not dispute the foundation or

19 accuracy of the photographs submitted with Agent San Martin’s declaration, which
20 clearly show the mat with an agent standing on it. Defs.’ Response to Prelim. Inj., San
21

22 Martin Decl. (Exh. “C”) (Doc. 38-5) at Attach. “12.”

23

On the northern roadside are a portable lighting unit and often several Border

24

25

2 The Court “retain[s] discretion to take judicial notice of documents ‘not subject to

reasonable dispute.’” Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (quoting Fed. R.

26 Evid. 201(b)). As such, “judicial notice of a Google map and satellite image as a ‘source[]

whose accuracy cannot reasonably be questioned,’” for the placement of rumble strips and
27 signage is appropriate. McCormack v. Hiedeman, 694 F.3d 1004, 1008 n. 1 (9th Cir. 2012)

28 (citations omitted) (alterations in original) (relying on Google maps and satellite image to
establish distance from Idaho to Utah).

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 4 of 29
1 Patrol vehicles. See Pls.’ Mot. Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) (map 2
from satellite image); Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) 3 4 (Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1–18 (photographs). On the southern 5 roadside is an 8-by-40 foot storage container used for administration, processing, and 6 detention, beside which are a canopy and a portable kennel. See Pls.’ Mot. Prelim. Inj., 7
McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image); Defs.’ Response to 8 9 Prelim. Inj., San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1– 10 18 (photographs). As an initial matter Plaintiffs dispute “that there are ‘often’ ‘several’ 11
Border Patrol vehicles parked on the northern side of the road.” Pls.’ CSOF (Doc. 73) at 12 13 ¶ 3. In support of this opposition, Plaintiffs cite to “Ragan Decl. ¶ 17.” Pls.’ CSOF 14 (Doc. 73) at ¶ 3. Peter Ragan’s declaration submitted in support of their opposition to the 15
currently pending motion does not contain a ¶ 17, and that paragraph in his declaration 16 17 submitted in support of Plaintiffs’ motion for preliminary injunction relates to Pima 18 County Sheriff’s Deputies moving “monitors” to the northern roadside and states “no 19 Border Patrol activities [were] being conducted on that side of the road.” Diagram “A” 20
of the same paragraph is another satellite image of the checkpoint. The satellite image 21 22 shows one vehicle parked on the northern shoulder next to the lights. See Pls.’ Mot. 23 Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image); Pls.’ CSOF 24
(Doc. 73) at ¶ 36. Plaintiffs further “object that they cannot provide evidence regarding 25 26 the actual use of the equipment and structures along Arivaca Road, as they have not been 27 afforded the opportunity to take discovery into Defendants’ operations[.]”3 Pls.’ CSOF 28
3 Irrespective of the equipment and structures actual use, they are present within the
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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 5 of 29
1 (Doc. 73) at ¶ 4. 2
East of the primary inspection area on the southern roadside is an approximately 3 4 100-foot-long secondary inspection area, at the eastern end of which is a Border Patrol 5 sedan used to give chase. See Pls.’ Mot. Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) 6 (map from satellite image); Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) 7
(Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1–18 (photographs); Pls.’ Mot. Prelim. Inj., 8 9 Raglan Decl. (Doc. 29-2) at ¶ 15, Diagram “A.” As motorists exit the checkpoint, traffic 10 pylons extend approximately 160 feet east of its center. Id. Plaintiffs object to 11
Defendants’ “legal argument characterizing a particular portion of Arivaca Road as a 12 13 ‘secondary inspection area[.]’” Pls.’ CSOF (Doc. 73) at ¶ 5. This objection is without 14 merit, however, as “secondary inspection area” is a well-established term of art. See 15
United States v. Martinez-Fuerte, 428 U.S. 543, 546 & 559, 96 S.Ct. 3074, 3078 & 3083, 16 17 49 L.Ed.2d 1116 (1976) (describing operation of Border Patrol checkpoint located away 18 from the international border including agents directing vehicles “to a secondary 19 inspection area” and noting the “regularized manner in which established checkpoints are 20
operated”). Plaintiffs “further object that they have not been afforded the opportunity to 21 22 take discovery into Defendants’ operations along Arivaca Road, and accordingly have 23 been prevented from providing a more detailed response. Pls.’ CSOF (Doc. 73) at ¶ 5. 24
Again, the satellite picture is one submitted by Plaintiffs and the sedan visible, as well as 25 26 the area referred to as “secondary” (although it is not labeled as such on the satellite 27 image). See Pls.’ Mot. Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) (map from 28
footprint of the Arivaca checkpoint.
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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 6 of 29

1 satellite image); Pls.’ Mot. Prelim. Inj., Raglan Decl. (Doc. 29-2) at ¶ 15, Diagram “A.”

2 As such, the Court takes judicial notice of this fact.
3

4

Also on the southern roadside are two portable lighting units, restroom, a sink, a

5 water tank, and a variety of other equipment. See Pls.’ Mot. Prelim. Inj., McLain Decl.,

6 Exh. “2” (Doc. 29-3) (map from satellite image); Defs.’ Response to Prelim. Inj., San
7 Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5, & 38-6) at ¶ 8 & Attach. 1–18 (photographs).
8

9 Again, Plaintiffs object “that they cannot provide evidence regarding the actual use of the

10 equipment and structures along Arivaca Road, as they have not been afforded the 11
opportunity to take discovery into Defendants’ operations along Arivaca Road.” Pls.’ 12 13 CSOF (Doc. 73) at ¶ 6. This contention is similarly without merit. The structures are

14 clearly visible and labeled in McLain’s satellite image. See Pls.’ Mot. Prelim. Inj.,

15 McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image). What their use is
16
17 (restrooms and lighting) is irrelevant to the fact that they are there. Moreover, Plaintiffs

18 do not dispute the existence of the structures, they simply complain that their use is

19 unknown.
20 To encourage westbound motorists to slow to the posted speed limit of 15 mph,
21

22 and to prevent them from driving off the road to avoid the rumble strips, agents often

23 park Border Patrol vehicles on the northern roadside beside the primary inspection area. 24
See Pls.’ Mot. Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite 25 26 image); Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5,

27 & 38-6) at ¶ 8–9 & Attach. 1–18 (photographs); Defs.’ Response to Prelim. Inj., Spencer

28 Decl. (Exh. “D”) (Doc. 38-7) at ¶ 6 & Attach. 6–7 (photographs); Defs.’ Response to

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 7 of 29

1 Prelim. Inj., Huey Decl. (Exh. “E”) (Doc. 38-8) at ¶4 & Attach. 1–2 (photographs).
2 “Plaintiffs dispute that ‘agents often park Border Patrol vehicles on the northern roadside
3 4 beside the primary inspection area.’” Pls.’ CSOF (Doc. 73) at ¶ 7 (citing Pls.’ Mot.

5 Prelim. Inj., McLain Decl., Exh. “2” (Doc. 29-3) (map from satellite image); Pls.’ Mot.

6 Prelim. Inj., Raglan Decl. (Doc. 29-2) at ¶ 15, Diagram “A”). There is a single Border
7 Patrol vehicle parked on the northern roadside in the satellite images cited by Plaintiffs.
8

9 Plaintiffs’ objection misses the point that Defendants use the northern edge of the road

10 way across from where the checkpoint buildings and other equipment are located on the

11 southern edge.
12

13

Plaintiffs further object to San Martin’s declaration because it contains hearsay

14 and “presents lay opinions beyond the scope of Federal Rule of Evidence 701, and Mr.

15 San Martin has not been qualified as an expert under Federal Rule of Evidence 702.”
16
17 Pls.’ CSOF (Doc. 73) at ¶ 7. “Plaintiffs further object to Paragraphs 8 and 9 of the San

18 Martin Declaration because to the extent they purport to present information from any

19 documents, they are not the best evidence under Federal Rule of Evidence 1002.” Id.
20 Paragraph 8 of San Martin’s declaration provides “[t]he signage around checkpoints is
21

22 designed in accordance with the Border Patrol’s traffic control plan, adopted after a pair

23 of fatal accidents at a checkpoint in upstate New York in 2004.” Defs.’ Response to 24
Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 8. Paragraph 8 goes onto 25 26 address the attached pictures of the Arivaca checkpoint, for which Agent San Martin is

27 providing foundation. As the Patrol Agent in Charge of the United States Border Patrol’s

28

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 8 of 29

1 Tucson Station, Agent San Martin is qualified as an expert.4 See Defs.’ Response to

2 Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 1. Moreover, as mentioned
3
4 previously, the Supreme Court of the United States has recognized that “checkpoint

5 operations both appear to and actually involve less discretionary enforcement activity.”

6 United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 3083, 49 L.Ed.2d
7 1116 (1976). “The location of a fixed checkpoint is not chosen by officers in the field,
8

9 but by officials responsible for making overall decisions as to the most effective

10 allocation of limited enforcement resources.” Id. at 559, 96 S.Ct. at 3083; see also 11
United States Government Accountability Office Report to Congressional Requesters, 12 13 Border Patrol Checkpoints Contribute to Border Patrol’s Mission, but More Consistent

14 Data Collection and Performance Measurement Could Improve Effectiveness, No. 09-

15 824 (August 2009) (“GAO Report”) at 9–10 (describing tactical checkpoints, including a
16
17 photograph of the Arivaca checkpoint). Additionally, the information that Plaintiffs

18 object to as hearsay is not relevant to the accuracy of Defendants’ SOF ¶ 7.

19

Motorists sometimes fail to yield at checkpoints or will flee when referred to the

20

secondary inspection area. Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) 21

22 (Doc. 38-4) at ¶ 10–11. The pursuit vehicle located at the eastern end of the secondary

23 inspection area at the Arivaca checkpoint may swerve, fish tail, and kick up rocks when 24
leaving the unpaved, dirt roadside at the start of a high-speed chase. Defs.’ Response to 25 26 Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 11. Plaintiffs dispute these

27

28

4 There can be no serious argument against Agent San Martin’s “specialized

knowledge will help the trier of fact to understand the evidence.” Fed. R. Evid. 702(a).

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 9 of 29

1 facts asserting that only a small percentage of vehicles passing through the checkpoint
2 ever get referred to secondary. Pls.’ CSOF (Doc. 73) at ¶ 8; see also Pls.’ Mot. Prelim.
3 4 Inj., Raglan Decl. (Doc. 29-2) at ¶¶ 7, 9. While this is probably true, it is irrelevant

5 whether it happens or not at the Arivaca checkpoint, because the checkpoints are

6 consistently designed to be “visible evidence, reassuring to law-abiding motorists, that
7 the stops are duly authorized and believed to serve the public interest.” Martinez-Fuerte,
8

9 428 U.S. at 559, 96 S.Ct. at 3083. Plaintiffs further argue that “[l]ikewise, none of the

10 material cited by Defendants establishes that the pursuit vehicle located at or near the 11
Arivaca Road checkpoint has ever ‘swerve[d], fish tail[ed], [or] kick[ed] up rocks when 12 13 leaving the unpaved, dirt roadside at the start of a high-speed chase.’” Pls.’ CSOF (Doc.

14 73) at ¶ 8. Again, Plaintiffs seek 56(d) relief regarding this assertion. Plaintiffs miss the

15 point, however, that it is not whether the chase vehicle has ever had to chase, but rather
16
17 that is part of the layout of the checkpoint and ultimately goes to the reasonableness of

18 Defendants’ restriction.

19

Defendants assert that in the past 5 years, there have been at least 28 significant

20

safety incidents at the three checkpoints within Tucson Station. Nine of those incidents 21

22 involved either a failure to yield at the primary inspection area or a flight from the

23 secondary inspection area. Five others involved driving under the influence or reckless 24
driving, two of which resulted in accidents. In March 2014, a drunk motorist traveling 25 26 westbound through the Arivaca checkpoint drove off the roadway and crashed into

27 license plate readers located on the northern roadside near the primary inspection area.

28 Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 10.

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 10 of 29

1 Moreover, “[i]t is a standard weapon-retention technique for law enforcement officers to
2 keep other persons in their line of sight when in close proximity to avoid being snuck up
3 4 on from behind and assaulted or disarmed.” Defs.’ SOF (Doc. 59-2) at ¶ 10; see also

5 Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 20.

6 Additionally, “[c]anines used in the primary and secondary inspection areas of Border
7 Patrol checkpoints can be distracted by unfamiliar surroundings and people, and have
8

9 bitten handlers, agents, and civilians.” Defs.’ SOF (Doc. 59-2) at ¶ 11; see also Defs.’

10 Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 11. Plaintiffs 11
object to these statements for a variety of reasons, including a need for 56(d) relief. 12 13 Additionally, they object to San Martin’s qualifications as an expert and to the relevance

14 of the canine facts. As noted previously, Plaintiffs’ argument regarding Agent San

15 Martin’s lack of qualification as an expert are meritless. Furthermore, these facts are not
16
17 relevant to the footprint of the checkpoint, but illustrate Border Patrol’s concern for the

18 safety of their officers, canines, and the public.

19

B. December 8, 2013 Event

20

On December 8, 2013, the organization People Helping People staged a rally at 21

22 the Arivaca checkpoint with more than 100 participants, who carried signs and banners

23 and gave speeches. Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 24
38-4) at ¶ 12; Defs.’ Response to Prelim. Inj., Spencer Decl. (Exh. “D”) (Doc. 38-7) at ¶ 25 26 3; Press Release, People Helping People (“PHP”), Community Members Shut Down

27 Border Patrol Checkpoint (Dec. 9, 2013), available at http://phparivaca.org/?p=262 (last

28 visited September 15, 2016). Plaintiffs “disagree with Defendants’ overbroad use of the

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 11 of 29

1 term ‘Arivaca checkpoint’ to include anything other than actual structures and areas used
2 for law enforcement activities, such as the small temporary shelter on the south side of
3 4 the road, from which agents conduct checkpoint inspections of eastbound traffic, and the

5 actual area used to perform secondary inspections of vehicles, also on the south side of

6 the road, running east from and immediately adjacent to the shelter.” Pls.’ CSOF (Doc.
7 73 at ¶ 12 (citing Compl. (Doc. 1); Pls.’ Mot. Prelim. Inj., Raglan Decl. (Doc. 29-2) at ¶
8

9 9. Plaintiffs seek 56(d) relief. During the rally, protesters entered the roadway within

10 and around the checkpoint. Defs.’ Response to Prelim. Inj., Spencer Decl. (Exh. “D”) 11
(Doc. 38-7) at ¶ 4 & Attach. 1–5 (photographs). Plaintiffs again “disagree with 12 13 Defendants’ overbroad use of the term ‘Arivaca checkpoint[.]’”5 Again, Plaintiffs seek

14 56(d) relief. Due to safety concerns, the Border Patrol suspended checkpoint operations

15 from approximately 12:30 p.m. to 4:50 p.m., during which time traffic was permitted to
16
17 pass uninspected. See Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc.

18 38-4) at ¶ 12; Defs.’ Response to Prelim. Inj., Spencer Decl. (Exh. “D”) (Doc. 38-7) at ¶

19 3–4 & Attach. “4” (photograph); Press Release, People Helping People (“PHP”),
20 Community Members Shut Down Border Patrol Checkpoint (Dec. 9, 2013), available at
21

22 http://phparivaca.org/?p=262 (last visited September 15, 2016). Plaintiffs again “disagree

23 with Defendants’ overbroad use of the term ‘Arivaca checkpoint’” and seek 56(d) relief.

24 C. February 26, 2014 Event
25

26

On February 26, 2014, Plaintiff Ragan, five (5) other “monitors,” and

27

28

5 The Court notes that Defendant referred generically to the “checkpoint” in this

paragraph.

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 12 of 29

1 approximately two dozen protesters visited the checkpoint. Defs.’ Response to Prelim.
2 Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 13; Defs.’ Response to Prelim. Inj.,
3 4 Spencer Decl. (Exh. “D”) (Doc. 38-7) at ¶ 5; Pls.’ Mot. Prelim. Inj., Raglan Decl. (Doc.

5 29-2) at ¶ 13. The group approached the Arivaca checkpoint from the east and stopped

6 approximately 100 feet from the center of the checkpoint, past the checkpoint’s
7 easternmost traffic pylon. When asked by Border Patrol agents to move back to a spot
8

9 about 150 feet east of the center of the checkpoint, the group repeatedly refused. Defs.’

10 Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 13; Defs.’ 11
Response to Prelim. Inj., Spencer Decl. (Exh. “D”) (Doc. 38-7) at ¶ 5–6 & Attach. 6–7 12 13 (photographs); Pls.’ Mot. Prelim. Inj., Raglan Decl. (Doc. 29-2) at ¶¶ 13–19. Plaintiffs

14 continue to object to Defendants’ use of “Arivaca checkpoint” to refer to anything more

15 than the primary and secondary inspection areas on the south side of the road and seek
16
17 56(d) relief.

18

D. March 1, 2014 Event

19

On March 1, 2014, a group of at least five (5) individuals visited the checkpoint.

20

At that time rope barriers had been strung across the northern and southern roadsides 21

22 approximately 150 feet east of the center of the checkpoint. Defs.’ Response to Prelim.

23 Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 13–14; Defs.’ Response to Prelim. Inj., 24
Huey Decl. (Exh. “E”) (Doc. 38-8) at ¶ 3. The group approached the checkpoint form the 25 26 east, continued past the rope barriers, and stopped approximately twenty (20) to thirty

27 (30) feet west of the barriers. When asked by Border Patrol agents to move back behind

28 the rope barriers, the group repeatedly refused. See Defs.’ Response to Prelim. Inj., Huey

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 13 of 29
1 Decl. (Exh. “E”) (Doc. 38-8) at ¶ 3–4 & Attach 1–2 (photographs). Plaintiffs assert that 2
Border Patrol did not put the incident tape up until after they arrived. Pls.’ CSOF (Doc. 3 4 73) at ¶ 17. During this incident, agents parked Border Patrol vehicles on the northern 5 and southern roadsides, just inside the barriers, as directed by agent San Martin. See 6 Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 14. On 7
March 7, 2014 Agent San Martin stated in an e-mail that, during the incident, “[t]he 8 9 vehicles were parked there to provide an additional barrier because some monitors 10 refused to move. If the monitors had moved when agents asked them to the vehicles 11
would have never been placed there.” See Compl. (Doc. 1), San Martin E-mail to PHP 12 13 3/7/2014 (Exh. “C”) at 2. In the same e-mail, Agent San Martin stated that “agents do 14 not have the desire or intention to challenge or stop PHP from monitoring as long as it’s 15
done from outside the marked perimeter of the checkpoint.” See id. at 3. On March 11, 16 17 2014, during a community meeting, PHP members complained that Border Patrol 18 vehicles parked beside the cordons interfered with their view of the checkpoint. In 19 response, Agent San Martin stated that, as a show of good faith, if the PHP members 20
would agree to respect the cordons, he would direct the agents not to park vehicles beside 21 22 the cordons (unless that space was needed for parking or other operational needs). The 23 next day, on March 12, 2014, he relaxed his previous order accordingly. Defs.’ Response 24
to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 14–15, 21. Plaintiffs 25 26 continuing objection to these statements (aside from the direct dispute regarding when the 27 tape was placed) is Defendants’ use of the term “Arivaca Checkpoint.” Plaintiffs 28
continue to seek 56(d) relief. Regarding the disputed issue of the tape, whether there was
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1 tape there or not, there was an incident between the parties.

2 E. Additional Activities
3

4

During a twenty-four (24) hour rally at the checkpoint on December 7, 2014, after

5 PHP members complained that fumes, light, and noise from a generator that powered

6 portable light units were interfering with their sleep, Border Patrol agents moved the
7 generator to the opposite side of the road, away from the PHP members’ tents. Defs.’
8

9 Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Doc. 38-4) at ¶ 21. From the

10 western cordons, PHP members have handed out “know your rights” fliers to motorists 11
entering the checkpoint to advise them of their legal rights. From the eastern cordons, 12 13 they have flagged down motorists leaving the checkpoint to discuss their views. Id. at ¶

14 22. Other citizen groups have erected large signs on private land adjacent to the

15 checkpoint reading “Keep Our BP Checkpoint Open” and “Citizens of Arivaca, Moyza,
16
17 and Amado Support Our BP Checkpoint.” Id. at ¶ 8 & Attach. 19–21. Primarily

18 Plaintiffs object to the use of the term “Arivaca Checkpoint” and seek 56(d) relief.

19 Regarding the signs on private land, Plaintiffs object based on relevancy. The signs on
20 private lands are only relevant insofar as Plaintiffs have asserted that others are
21

22 exercising their First Amendment rights within the Border Patrol checkpoint area (so they

23 should be able to as well). The point being, these signs are on private land, so Border 24
Patrol has no control over their placement. 25

26

27 II. DEFENDANTS’ MOTION TO DISMISS

28 Defendants seek dismissal of Plaintiffs’ Complaint (Doc. 1) pursuant to Rule

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 15 of 29

1 12(b)(6), Federal Rules of Civil Procedure. In making the argument for dismissal,
2 Defendants rely on the Court’s September 14, 2015 Order (Doc. 54) denying Plaintiff’s
3 4 motion for preliminary injunction.

5

A. Standard of Review

6

A complaint is to contain a “short and plain statement of the claim showing that

7 the pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not
8

9 demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

10 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 11
1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of 12 13 action, supported by mere conclusory statements, do not suffice.” Id.; Pareto v. Fed.

14 Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998) (“conclusory allegations of law and

15 unwarranted inferences are not sufficient to defeat a motion to dismiss.”).
16

17

Dismissal is appropriate where a plaintiff has failed to “state a claim upon which

18 relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a

19 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
20 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting
21

22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d

23 929 (2007)). Further, “[a] claim has facial plausibility when the plaintiff pleads factual 24
content that allows the court to draw the reasonable inference that the defendant is liable 25 26 for the misconduct alleged. The plausibility standard is not akin to a ‘probability

27 requirement,’ but it asks for more than a sheer possibility that a defendant has acted

28 unlawfully.” Id. (citations omitted).

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1

“When ruling on a motion to dismiss, [the Court must] accept all factual

2 allegations in the complaint as true and construe the pleadings in the light most favorable
3
4 to the nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los

5 Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068,

6 1072 (9th Cir. 2005)). “The court draws all reasonable inferences in favor of the
7 plaintiff.” Id. (citing Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043
8

9 n.2 (9th Cir. 2008)). This Court is not required, however, to accept conclusory

10 statements as a factual basis. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 11
S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007); Mann v. City of Tucson, 782 F.2d 790, 793 12 13 (9th Cir. 1986) (“Although we must, in general, accept the facts alleged in the complaint

14 as true, wholly vague and conclusory allegations are not sufficient to withstand a motion

15 to dismiss.”); see also Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
16
17 2007) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient

18 to raise genuine issues of fact and defeat summary judgment”).

19

B. Plaintiffs’ Complaint

20

In Count One, Plaintiffs allege that the Government’s policy and practices 21

22 regarding “public access to public areas adjacent to interior vehicle checkpoints . . .

23 continues to be an impermissible prior restraint on speech and . . . chill[s], deter[s], and 24
infringe[s] upon Plaintiffs’ First Amendment rights.” Compl. (Doc. 1) at 20. Plaintiffs 25 26 further allege that the Government’s “definition of the ‘enforcement zone’ and

27 inconsistent regulation of Plaintiffs’ proximity to Defendants’ public activities in and

28 near the checkpoints are both broader than needed to further Defendants’ objectives.” Id.

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 17 of 29

1

Count Two alleges that “Defendants have violated Plaintiffs’ First Amendment

2 rights by improperly infringing upon and restricting Plaintiffs[’] First Amendment rights
3
4 and by harassing, intimidating, retaliating against and threatening Plaintiffs with arrest

5 for engaging in constitutionally protected speech” and that this threat is ongoing. Id. at

6 21. Additionally, Plaintiffs have provided an extensive factual background, which if true,
7 is sufficient to sustain a plausible claim on its face. See Iqbal, 556 U.S. at 678, 129 S.Ct.
8

9 at 1949. Plaintiffs seek to engage in conduct including protesting the checkpoint, as well

10 as monitoring the actions of Border Patrol agents. See Compl. (Doc. 1). Assuming, 11
without deciding that monitoring is protected conduct, “the First Amendment protects a 12 13 significant amount of verbal criticism and challenge directed at police officers.” City of

14 Houston, Tex. v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987).

15 In relying on the Court’s previous denial of Plaintiff’s motion for preliminary
16
17 injunction, Defendants rely on the legal conclusions therein, many of which were

18 presumed, but not decided, and only for the purpose of determining whether Plaintiffs

19 were entitled to immediate injunctive relief. For purposes of a motion to dismiss,
20 however, Plaintiffs have sufficiently stated a claim for an alleged violation of their First
21

22 Amendment rights.

23

24 III. MOTION FOR SUMMARY JUDGMENT
25

26

A. Rule 56(d) Declaration

27

Rule 56(d), Federal Rules of Civil Procedure, provides an avenue for relief to a

28 party opposing a motion for summary judgment that has not yet had the opportunity to

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 18 of 29

1 obtain facts necessary to its opposition of the motion. Fed. R. Civ. P. 56(d). Rule 56(d)

2 provides:

3

4

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

5 (1) defer considering the motion or deny it;
6

7

(2) allow time to obtain affidavits or declarations or to take discovery; or

8 (3) issue any other appropriate order.
9

10 Fed. R. Civ. P. 56(d). “The requesting party must show: (1) it has set forth in affidavit

11 form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist;

12 and (3) the sought-after facts are essential to oppose summary judgment.” Family and
13 Home Finance Center, Inc. v. Federal Home Loan Mortgage, Corp., 525 F.3d 822, 827
14

15 (9th Cir. 2008) (citations omitted) (delineating requirements for relief under Rule 56(f),

16 current Rule 56(d)’s predecessor). The Ninth Circuit Court of Appeals has observed that 17
“[w]here . . . a summary judgment motion is filed so early in the litigation, before a party 18 19 has had any realistic opportunity to pursue discovery relating to its theory of the case,

20 district courts should grant any Rule 56(f) motion fairly freely.” Burlington Northern

21 Santa Fe R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation, 323 F.3d 767,
22
23 773 (9th Cir. 2003) (citations omitted). “The burden is on the party seeking additional

24 discovery[, however,] to proffer sufficient facts to show that the evidence sought exists,

25 and that it would prevent summary judgment.” Employers Teamsters Local nos. 175 and
26 505 Pension Trust Fund v. Clorox, 353 F.3d 1125, 1129–30 (9th Cir. 2004) (citations
27

28 omitted).

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 19 of 29

1

Here, the facts sought by Plaintiffs are not related to the physical footprint of the

2 checkpoint, but rather to the policies surrounding the “Enforcement Zone.” See Taub
3
4 Decl. (Doc. 69-2). Plaintiffs’ argument is rooted on the legal finding that the checkpoint

5 is a public forum—something the Court assumed, without deciding, for purposes of the

6 preliminary injunction motion. See Order 9/14/2015 (Doc. 54). At oral argument the
7 Court inquired into what information Plaintiffs needed to oppose summary judgment if
8

9 the checkpoint is a non-public forum. In response, counsel directed the Court to

10 paragraphs five (5), six (6), and seven (7) of his declaration. Paragraph five seeks 11
additional discovery “to determine who has been permitted to enter the ‘enforcement 12 13 zone,’ their views regarding PHP and the Arivaca Road checkpoint, how frequently they

14 have been permitted to enter the zone, and for what purposes. Taub Decl. (Doc. 72-1) at

15 ¶ 5. Paragraph six seeks discovery relevant to determining “whether the ‘enforcement
16
17 zone’ is necessary to serve a compelling or significant government interest.” Id. at ¶ 6.

18 Paragraph seven seeks discovery to “determine the extent to which the ‘enforcement

19 zone’ is narrowly tailored to serving any government interest.” Id. at ¶ 7. This includes
20 “written regulations, policies, and other documents pertinent to the restrictions on
21

22 pedestrians in or near interior checkpoints and pertinent to the size of the area needed to

23 carry out border patrol duties, vehicle parking, equipment storage, temporary building 24
situation, cordons, or other physical features of the interior checkpoints.” Id. The 25 26 information sought, however, would not assist Plaintiffs in opposing summary judgment

27 regarding whether the checkpoint is a non-public forum. As such, and for the reasons

28 discussed, infra, Plaintiffs’ motion for Rule 56(d) relief is denied.

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1

B. Standard of Review

2 Summary judgment is appropriate when, viewing the facts in the light most
3
4 favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,

5 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), “there is no genuine issue as to any

6 material fact and [] the moving party is entitled to a judgment as a matter of law.” Fed.
7 R. Civ. P. 56(c). A fact is “material” if it “might affect the outcome of the suit under the
8

9 governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury

10 could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 11
2510. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant 12 13 to the consideration of a motion for summary judgment. Id. In order to withstand a

14 motion for summary judgment, the nonmoving party must show “specific facts showing

15 that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106
16
17 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Moreover, a “mere scintilla of evidence” does

18 not preclude the entry of summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at

19 2512. The United States Supreme Court also recognized that “[w]hen opposing parties
20 tell two different stories, one of which is blatantly contradicted by the record, so that no
21

22 reasonable jury could believe it, a court should not adopt that version of the facts for

23 purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 24
380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The determination of what type of 25 26 forum an area represents for First Amendment purposes is a legal question which may be

27 resolved on summary judgment. See ACLU of Nevada v. City of Las Vegas, 333 F.3d

28 1092 (9th Cir. 2003) (reviewing district court’s determination that the Fremont Street

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 21 of 29

1 Experience was a nonpublic forum and granting summary judgment in favor of

2 Defendants).
3

4

C. Analysis

5

1. First Amendment—In General

6

In its First Amendment jurisprudence, the Supreme Court of the United States has

7 recognized “three types of fora: the traditional public forum, the public forum created by
8

9 government designation, and the nonpublic forum.” Cornelius v. NAACP Legal Defense

10 and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 11
(1985). “Traditional public fora are those places which ‘by long tradition or by 12 13 government fiat have been devoted to assembly and debate.’” Id. (quoting Perry

14 Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74

15 L.Ed.2d 794 (1983)). “Public streets and parks fall into this category.” Cornelius, 473
16
17 U.S. at 802, 105 S.Ct. at 3449. “The government can exclude a speaker from a traditional

18 public forum ‘only when the exclusion is necessary to serve a compelling state interest

19 and the exclusion is narrowly drawn to achieve that interest.’” Arkansas Educ. Television
20 Comm’n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (quoting
21

22 Cornelius, 473 U.S. at 800, 105 S.Ct. 3439)). This “strict scrutiny” analysis applies to

23 content based regulations on speech. See Madsen v. Women’s Health Ctr., Inc., 512 U.S.

24 753, 791, 114 S.Ct. 2516, 2537, 129 L.Ed.2d 593 (1994) (Scalia, J. concurring).
25

26

“[E]ven in a public forum[,] [however,] the government may impose reasonable

27 restrictions on the time, place, or manner of protected speech, provided the restrictions

28 ‘are justified without reference to the content of the regulated speech, that they are

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 22 of 29

1 narrowly tailored to serve a significant governmental interest, and that they leave open
2 ample alternative channels for communication of the information.’” Ward v. Rock
3 4 Against Racism, 491 U.S. 781, 791, 109, S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting

5 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069,

6 82 L.Ed.2d 221 (1984)); see also United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir.
7 2000). Such time, manner, place regulations represent an intermediate level of scrutiny.
8

9 See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459,

10 129 L.Ed.2d 497 (1994). Furthermore, “the government always retains authority to close 11
a public forum, by selling the property, changing its physical character, or changing its 12 13 principal use.” Internat’l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,

14 699, 112 S.Ct. 2711, 2718, 120 L.Ed.2d 541 (1992) (Kennedy, J., concurring).

15 Designated public fora “may be created by government designation of a place or
16
17 channel of communication for use by the public at large for assembly and speech, for use

18 by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802,

19 105 S.Ct. at 3449. “The government does not create a [designated] public forum by
20 inaction or by permitting limited discourse, but only by intentionally opening a
21

22 nontraditional forum for public discourse.” Id. “If the government excludes a speaker

23 who falls within the class to which a designated public forum is made generally available, 24
its action is subject to strict scrutiny.” Arkansas Educ. Television Comm’n, 523 U.S. at 25 26 677, 118 S.Ct. at 1641 (citations omitted).

27

The First Amendment, however “does not guarantee access to property simply

28 because it is owned or controlled by the government.” Cornelius, 473 U.S. at 803, 105

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 23 of 29

1 S.Ct. at 3449 (quoting United States Postal Service v. Council of Greenburgh Civic
2 Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981)). “Nothing in
3 4 the Constitution requires the Government freely to grant access to all who wish to

5 exercise their right to free speech on every type of Government property without regard

6 to the nature of the property or to the disruption that might be caused by the speaker’s
7 activities.” Cornelius, 473 U.S. 799–800, 105 S.Ct. at 3447. The Government, “no less
8

9 than a private owner of property, has power to preserve the property under its control for

10 the use to which it is lawfully dedicated.” Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 11
1211, 1217, 47 L.Ed.2d 505 (1976). “Access to a nonpublic forum . . . can be restricted 12 13 as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression

14 merely because public officials oppose the speaker’s view.’” Cornelius, 473 U.S. at 800,

15 105 S.Ct. at 3448 (citations omitted) (alterations in original).
16

17

“[I]n assessing a First Amendment claim for speech on government property, ‘we

18 must identify the nature of the forum, because the extent to which the Government may

19 limit access depends on whether the forum is public or nonpublic.’” Hopper v. City of
20 Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (quoting Cornelius, 473 U.S. at 797, 105
21

22 S.Ct. at 3446).

23

2. The Arivaca Checkpoint

24 Plaintiffs argue that the “Arivaca checkpoint” does not “include anything other
25

26 than actual structures and areas used for law enforcement activities, such as the small

27 temporary shelter on the south side of the road, from which agents conduct checkpoint

28 inspections of eastbound traffic, and the actual area used to perform secondary

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 24 of 29

1 inspections of vehicles also on the south side of the road, running east from and
2 immediately adjacent to the shelter.” See, e.g., Pls.’ CSOF (Doc. 73) at ¶ 12; Compl.
3 4 (Doc. 1) at ¶ 29; Pls.’ Mot. Prelim. Inj., Raglan Decl. (Doc. 29-2) at ¶ 9.

5

The satellite photographs relied on by Plaintiffs for their Motion for Preliminary

6 Injunction, and submitted again in their controverting statement of facts, are clearly
7 marked to show that where Defendants have placed the “enforcement zone” signage on
8

9 both the east and west ends of the checkpoint corresponds to the “check point sign” with

10 a digital speed board on the west and the 15 mph speed limit sign on the east. See Pls.’ 11
Mot. Prelim. Inj., McLain Decl. (Doc. 27-3), Exh. “2.” Furthermore, in the center of the 12 13 roadway from the digital speed board to the 15 mph speed limit sign are orange and white

14 road markers and plastic barricades. See id. Additionally, there are plastic speed bumps

15 in the roadway on both the north and south lanes of travel. See id. On the north side of
16
17 the street is portable lighting equipment. See id. There is also equipment and vehicles on

18 the south side of the roadway, to the west of the primary inspection area. See id. To the

19 east, past the secondary inspection area is a Border Patrol vehicle, which is used in the
20 event someone purposely tries to avoid secondary. See Pls.’ Mot. Prelim. Inj., McLain
21

22 Decl. (Doc. 27-3), Exh. “2;” Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”)

23 (Doc. 38-4) at ¶ 11. Defendants further assert that Border Patrol vehicles are also parked 24
on the north side of the street. See Pls.’ Mot. Prelim. Inj., McLain Decl. (Doc. 27-3), 25 26 Exh. “2;” Defs.’ Response to Prelim. Inj., San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5,

27 & 38-6) at ¶ 8–9 & Attach. 1–18 (photographs).

28 The orange and white lane dividers and barricades were placed there by Border

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 25 of 29

1 Patrol, and but for the checkpoint, they would not be there. Additionally, the area on
2 either side of the roadway is utilized by Border Patrol equipment and vehicles. See Pls.’
3 4 Mot. Prelim. Inj., McLain Decl. (Doc. 27-3), Exh. “2;” Defs.’ Response to Prelim. Inj.,

5 San Martin Decl. (Exh. “C”) (Docs. 38-4, 38-5, & 38-6) at ¶ 8–9 & Attach. 1–18

6 (photographs). No reasonable jury could believe that the checkpoint is limited solely to
7 the primary enforcement shelter and secondary inspection area. As such, the Court finds
8

9 that the Arivaca checkpoint consists of the area between the checkpoint/speed limit signs

10 placed on its east and west boundaries.

11 3. First Amendment—Forum Analysis
12

13

Plaintiffs assert that the Arivaca Road checkpoint is a public forum, and that as

14 such they are entitled to protest and record the activities of Border Patrol agents, inter

15 alia, without limitation. Conversely, Defendants argue that the checkpoint is a nonpublic
16
17 forum, and therefore, a reasonableness inquiry is required.

18

“Traditional public fora are those places which ‘by long tradition or by

19 government fiat have been devoted to assembly and debate.’” Cornelius v. NAACP Legal
20 Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87
21

22 L.Ed.2d 567 (1985) (quoting Perry Education Assn. v. Perry Local Educators’ Assn., 460

23 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). “Nothing in the Constitution[, 24
however] requires the Government freely to grant access to all who wish to exercise their 25 26 right to free speech on every type of Government property without regard to the nature of

27 the property or to the disruption that might be caused by the speaker’s activities.”

28 Cornellius, 473 U.S. 799-800, 105 S.Ct. at 3447. “Access to a nonpublic forum . . . can

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 26 of 29

1 be restricted as long as the restrictions are ‘reasonable and [are] not an effort to suppress
2 expression merely because public officials oppose the speaker’s view.’” Cornelius, 473
3 4 U.S. at 800, 105 S.Ct. at 3448 (citations omitted) (alterations in original).

5

The Ninth Circuit Court of Appeals “has emphasized the following three factors in

6 considering whether an area constitutes a traditional public forum: 1) the actual use and
7 purposes of the property, particularly status as a public thoroughfare and availability of
8

9 free public access to the area . . . 2) the area’s physical characteristics, including its

10 location and the existence of clear boundaries delimiting the area . . . and 3) traditional or 11
historic use of both the property in question and other similar properties. ACLU of 12 13 Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003).

14

Plaintiffs urge that this is simply a public thoroughfare and free public access to

15 the area demands a determination that the checkpoint is a public forum. Plaintiffs’
16
17 argument dismisses the law enforcement operation that is occurring on this stretch of

18 road. As the Supreme Court of the United States has noted, the “maintenance of a traffic

19 checking program in the interior is necessary because the flow of illegal aliens cannot be
20 controlled effectively at the border.” United States v. Martinez-Fuerte, 428 U.S. 543,
21

22 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976). Moreover, “[t]hese checkpoints are

23 located on important highways; in their absence such highways would offer illegal aliens 24
a quick and safe route into the interior.” Id. at 556–57, 96 S.Ct. at 6082. The Ninth 25 26 Circuit Court of Appeals has upheld a district court’s finding that a “roadway is not a

27 public forum because it is not open to unrestricted public use.” Hale v. Dept. of Energy,

28 806 F.2d 910, 915 (1986). In Hale, the court of appeals found that the roadway leading

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Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 27 of 29

1 from the main highway to the main guard gate of a nuclear testing facility “ha[d] been
2 withdrawn from public use for the purpose of conducting nuclear testing[,] [and] [i]ts use
3 4 for expressive, as well as nonexpressive, activity by the public is limited.” Id. at 915–16.

5 Similarly, the stretch of Arivaca Road where Border Patrol has clearly delineated the

6 checkpoint has been withdrawn from unrestricted public use. As discussed in Section
7 III.C.2., supra, the checkpoint consists of signs, road markers, speed bumps, lighting,
8

9 buildings, equipment, and vehicles. Furthermore, the checkpoint is used 24 hours per

10 day. It is distinctly different from the open highway surrounding it. Additionally, Border 11
Patrol checkpoints do not have a long history of being open to the public, and access on 12 13 Arivaca Road is not unrestricted in light of the legitimate law enforcement activity taking

14 place. As such, the Court finds that the Arivaca checkpoint is a nonpublic forum.

15 4. First Amendment—Reasonableness
16

17

“With respect to a nonpublic forum, the government may enforce restrictions on

18 First Amendment conduct as long as they are neutral with respect to viewpoint and are

19 reasonable.” Hale v. DOE, 806 F.2d 910, 916 (9th Cir. 1986) (citing Cornelius, 105 S.Ct.
20 at 3451. Further, “[r]easonableness ‘must be assessed in the light of the purpose of the
21

22 forum and all the surrounding circumstances.’” Hale, 806 F.2d at 916–17 (citing

23 Cornelius, 105 S.Ct. at 3453). 24
“The principal inquiry in determining content neutrality, in speech cases generally 25 26 and in time, place, or manner cases in particular, is whether the government has adopted a

27 regulation of speech because of disagreement with the message it conveys.” Ward v.

28 Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)

- 27 -

Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 28 of 29

1 (citations omitted). “[A] facially neutral law does not become content based simply
2 because it may disproportionately affect speech on certain topics.” McCullen v. Coakley,
3 4 — U.S. —, 134 S.Ct. 2518, 2531, 189 L.Ed.2d 502 (2014). “A regulation that serves

5 purposes unrelated to the content of expression is deemed neutral, even if it has an

6 incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791,
7 109 S.Ct. at 2754. “The question in such a case is whether the law is ‘justified without
8

9 reference to the content of the regulated speech.’” McCullen, — U.S. —, 134 S.Ct. at

10 2531 (quoting Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89

11 L.Ed.2d 29 (1986).
12

13

Here, Defendants primary interest is in protecting the safety and security of Border

14 Patrol agents, canines, and the public. San Martin Decl. 1/30/2015 (Doc. 38-4) ¶¶ 10–11.

15 Furthermore, “[C]heckpoint stops are ‘seizures’ within the meaning of the Fourth
16
17 Amendment.” Martinez-Fuerte v. United States, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082,

18 49 L.Ed.2d 1116 (1976). The Supreme Court of the United States has “upheld brief,

19 suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to
20 intercept illegal aliens, . . . and at a sobriety checkpoint aimed at removing drunk drivers
21

22 from the road[.]” City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 452,

23 148 L.Ed.2d 333 (2000) (internal citations omitted). Such programs were “designed to 24
serve ‘special needs, beyond the normal need for law enforcement.’” Id. (citations 25 26 omitted). As such, checkpoint stops are criminal investigations, which if frustrated may

27 “jeopardize the integrity of the search for truth that is so critical to the fair administration

28 of justice.” Times Mirror Co. v. U.S., 873 F.2d 1210, 1213 (9th Cir. 1989) (discussing

- 28 -

Case 4:14-cv-02485-BGM Document 93 Filed 09/30/16 Page 29 of 29

1 the public right of access to judicial proceedings, and the negative impact that openness

2 may have on criminal fact-finding).
3

4

Defendants’ restrictions are content neutral and reasonable in light of the ongoing

5 law enforcement activity at the checkpoint. There are obvious safety and security

6 concerns with such an operation both to the agents and public. To limit monitoring to
7 areas 150 feet from the midpoint of the checkpoint, is not unreasonable. “The First
8

9 Amendment does not demand unrestricted access to a nonpublic forum merely because of

10 that forum may be the most efficient means of delivering the speaker’s message.” 11
Cornelius, 105 S.Ct. at 3453. 12

13

14 IV. CONCLUSION

15 Based on the foregoing, the Court finds the Arivaca Checkpoint is a nonpublic
16
17 forum, and Defendants’ restrictions on speech are reasonable. In light of this

18 determination, Plaintiffs’ retaliation claim cannot stand.

19

Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, or

20

in the Alternative, Motion for Summary Judgment (Doc. 61) is GRANTED. IT IS 21

22 FURTHER ORDERED that the Clerk of the Court shall enter judgment and close its file

23 in this matter. 24
Dated this 30th day of September, 2016. 25

26

27

Honorable Bruce G. Macdonald

28

United States Magistrate Judge

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 Case: 16-17199, 02/13/2018, ID: 10761237, DktEntry: 48-1, Page 1 of 14

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LEESA JACOBSON; PETER RAGAN, Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; UNITED STATES OFFICE OF BORDER PATROL; KIRSTJEN M. NIELSEN, Acting Secretary, United States Department of Homeland Security, in her official capacity; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs & Border Protection, in his official capacity; CARLA L. PROVOST, Acting Chief of the United States Border Patrol, in her official capacity; JEFFREY SELF, Commander, Arizona Joint Field Command, in his official capacity; MANUEL PADILLA, JR., Chief Patrol Agent-Tucson Sector, in his official capacity; ROGER SAN-MARTIN, Agent in Charge-Tucson Border Patrol Station, in his official capacity; LLOYD EASTERLING, Assistant Agent in Charge-Tucson

No. 16-17199
D.C. No. 4:14-cv-02485-
BGM
OPINION

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Border Patrol Station, in his official capacity; J. JOYNER, Border Patrol Agent, in his official capacity; ROSALINDA HUEY, Border Patrol Agent, in her official capacity; N. BALLISTREA, Border Patrol Agent, in her official capacity; S. SPENCER, Border Patrol Agent, in his official capacity; K. RIDEN, Border Patrol Agent, in her official capacity,
Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona
Bruce G. Macdonald, Magistrate Judge, Presiding
Argued and Submitted December 5, 2017 San Francisco, California
Filed February 13, 2018
Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES,* District Judge.
Opinion by Judge Milan D. Smith, Jr.

* The Honorable John D. Bates, Senior District Judge for the United States District Court for the District of Columbia, sitting by designation.

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3

SUMMARY**

Civil Rights
The panel vacated the district court’s summary judgment, entered before any discovery occurred, and remanded in an action in which appellants challenged their exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona.
Appellants alleged that the First Amendment afforded them the right both to protest and to monitor the activities at the Border Patrol checkpoint, which they contend include racial profiling and other abuses. The district court determined that the checkpoint area, including the enforcement zone, was a nonpublic forum from which the government could reasonably exclude appellants. The district court therefore denied the motion to take discovery pursuant to Federal Rule of Civil Procedure 56(d), on the ground that the information would not assist appellants in opposing summary judgment.
The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

The panel held that the limited record before the district court did not permit it to conclude, as a matter of law, that the enforcement zone was a nonpublic forum, or, if it was, whether the government satisfied the requirements for excluding appellants from that nonpublic forum. On remand, and after appropriate discovery, the panel held that the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government’s exclusion policy is permissible under the principles of forum analysis.

COUNSEL
Winslow Taub (argued), Tracy Zinsou, Ethan Forrest, and Neha Jaganathan, Covington & Burling LLP, San Francisco, California; Kathleen E. Brody and Brenda Muñoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; Mitra Ebadolahi and David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for PlaintiffsAppellants.
Patrick G. Nemeroff (argued) and Scott McIntosh, Appellate Staff; Elizabeth A. Strange, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

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5

Eugene Volokh, Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; Ilya Shapiro, Cato Institute, Washington, D.C.; for Amicus Curiae The Cato Institute.
Rochelle L. Wilcox, Taylor S. Ball, and John Parsi, Davis Wright Tremaine LLP, Los Angeles, California, for Amici Curiae National Press Photographers Association and The Center for Investigative Reporting Inc.

OPINION
M. SMITH, Circuit Judge:
Leesa Jacobson and Peter Ragan (collectively, Appellants) filed this suit to challenge their exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona. Before any discovery occurred, the district court granted summary judgment to the Defendants-Appellees (Appellees). We vacate and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Since 2007, the United States Border Patrol (BP) has operated a checkpoint on Arivaca Road, a rural two-lane road in southern Arizona. The checkpoint includes a primary inspection area located on Arivaca Road itself, and a secondary inspection area located on the south side of Arivaca Road. Eastbound motorists are stopped and questioned at the primary inspection area and, in some cases, directed to the secondary inspection area for further questioning. The improvements in the checkpoint area include two portable restrooms, a portable office unit made

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JACOBSON V. DHS

of storage containers, a portable kennel, several portable lights, and road signs, all located on the south side of Arivaca Road.
Residents of nearby towns such as the Appellants must pass through the checkpoint on their daily routines and stop when traveling eastbound. Some of them, as part of an organization called People Helping People (PHP), held a protest near the checkpoint area on December 8, 2013. The protest was spurred by community complaints that BP agents racially profiled, unlawfully searched, and used excessive force on people stopped at the checkpoint. The BP agent in charge of the checkpoint area learned of the planned protest and decided to suspend checkpoint operations during the protest, allegedly for the safety of all involved, which permitted cars to pass uninspected. On February 26, 2014, the Appellants and others returned to the checkpoint area to protest and to monitor activities within the checkpoint area. The protesters stood first on the south side of Arivaca Road, and later on the north side of the road, in each case approximately 100 feet east of the portable office. After the protesters refused to move further away from the checkpoint area, BP agents erected a yellow tape barrier across the north and south shoulders of Arivaca Road approximately 150 feet east of the portable office unit, and required the protesters to relocate behind those barriers.
During the following week, the tape barrier was replaced with rope barriers on both ends, and signs were added forbidding unauthorized entry. The rope barriers and the signs remain in place approximately 150 feet east and west of the portable office unit. Protesters who have attempted to cross the rope barriers have been threatened with arrest and forced back behind those barriers. In total, the so-called

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7

enforcement zone of the checkpoint area extends for approximately 391 feet along Arivaca Road.
Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine “who can enter into the perimeter” and “where [Appellants] can and can’t be.” On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident’s wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted “Well, we had our fun today” to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, “It’s a free country.” When the agent in charge learned of this incident from Appellants’ counsel on April 16, 2014, he directed watch commanders to discuss the incident with checkpoint agents and make clear that what had been done was unacceptable.
Subsequently, a surveyor hired by Appellants was allowed inside the enforcement zone. The agents on duty explained to the surveyor that “the barriers were in place only to exclude people who might interfere with Border Patrol activities, such as protestors.” One agent invited the surveyor to share a meal with the agents on duty. On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the

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enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone.
Appellants filed suit on November 20, 2014, alleging unlawful infringement of their First Amendment rights and retaliation for exercise of those rights. The complaint sought injunctive and declaratory relief as well as costs and attorney’s fees. After the district court denied Appellants’ motion for a preliminary injunction, Appellees moved to dismiss or, in the alternative, for summary judgment. Appellants opposed this motion and moved for discovery. Based only on the pleadings and declarations, and before any discovery had taken place, the district court denied Appellees’ motion to dismiss, denied Appellants’ motion to take discovery, and granted summary judgment to Appellees on the ground that the checkpoint area, including the enforcement zone, is a nonpublic forum, and that the restrictions on speech therein are content-neutral and reasonable. Appellants timely appealed.
ANALYSIS
Appellants maintain that the First Amendment affords them the right both to protest and to monitor the activities at the BP checkpoint, which they contend include racial profiling and other abuses. See Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018) (“It is no surprise that we have recognized that there is a ‘First Amendment right to film matters of public interest.’” (quoting Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995))). They argue that the district court erred in concluding as a matter of law that the government may exclude them from the entire enforcement zone, and that it abused its discretion by denying their motion for discovery.

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9

We examine these questions within the framework of forum analysis, in which the level of judicial scrutiny depends upon whether the site is properly categorized as a public forum or a nonpublic forum. See Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of Los Angeles, 764 F.3d 1044, 1049 (9th Cir. 2014). In a public forum, the government “may impose reasonable, content-neutral restrictions on the time, place, or manner of protected speech so long as those limits are ‘narrowly tailored to serve a significant governmental interest’ and ‘leave open ample alternative channels for communication of the information.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). We have referred to this test as “an intermediate level of scrutiny.” Id. (quoting Berger v. City of Seattle, 569 F.3d 1029, 1059 (9th Cir. 2009) (en banc)). In a nonpublic forum, restrictions on speech must only be “‘reasonable in light of the purpose served by the forum’ and ‘viewpoint neutral.’” Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
The enforcement zone, consisting of strips of public land along a public roadway, may have begun as a public forum. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (“Public streets and sidewalks ‘occupy a “special position in terms of First Amendment protection.”’ They are ‘the archetype of a traditional public forum.’” (alteration and citations omitted) (quoting Snyder v. Phelps, 562 U.S. 443, 456 (2011))); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009). Since 2007, it has also

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served as, or abutted, a BP checkpoint.1 One question before us is whether this new use has changed the enforcement zone’s character from a public forum to a nonpublic forum. “Although it is possible for a public forum to lose its status, ‘the destruction of public forum status . . . is at least presumptively impermissible.’” ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1105 (9th Cir. 2003) (alteration in original) (quoting United States v. Grace, 461 U.S. 171, 180 (1983)). Therefore, the government bears the burden of showing that an area previously serving as a rural public road “is no longer a [rural public road] and has lost its public forum status.” Id. “In order to change a property’s public forum status, the [government] ‘must alter the objective physical character or uses of the property.’” Id. (quoting Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 700 (1991) (Kennedy, J., concurring)); cf. Hale v. Dep’t of Energy, 806 F.2d 910, 915 (9th Cir. 1986) (holding that an access road was a nonpublic forum because it had been “withdrawn from public use for the purpose of conducting nuclear testing”).

This inquiry is, to a large extent, factual. “Context matters in forum analysis.” Wright v. Incline Vill. Gen. Improvement Dist., 665 F.3d 1128, 1136 (9th Cir. 2011). This circuit has developed a fact-intensive, three-factor test

1 The parties dispute whether all of the enforcement zone is part of the checkpoint area: the government maintains that the “checkpoint” is the entire enforcement zone, while Appellants argue that the “checkpoint” is only the actual structures and areas used for law enforcement activities, such as the portable office and the secondary inspection area, and the enforcement zone stretches far beyond the checkpoint. To the extent this is a question of semantics, we may disregard it; to the extent it is a factual question with any legal relevance, there is a genuine issue of material fact which must be resolved in favor of the nonmoving party on a motion for summary judgment.

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11

to determine whether a location is a public forum in the first instance. See ACLU of Nev., 333 F.3d at 1100–01. Determining whether the government has “alter[ed] the objective physical character or uses of [a] property” that was previously a public forum, id. at 1105 (citation omitted), is likewise fact-specific, see, e.g., id. (“The principal uses of Fremont Street, both before and after its transformation, are as a commercial district and public thoroughfare.”); Venetian Casino Resort, LLC v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 944 (9th Cir. 2001) (“The newly constructed sidewalk still performs the same role as a thoroughfare for pedestrian traffic along Las Vegas Boulevard that it performed before . . . .”). Therefore, it may be difficult to make a forum determination without a full factual record. See Kaahumanu v. Hawaii, 682 F.3d 789, 800 (9th Cir. 2012) (“On the record before us, it is difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category.”); Ctr. for Bio-Ethical Reform, Inc. v. City & Cty. of Honolulu, 455 F.3d 910, 920 (9th Cir. 2006) (“We do not express any opinion as to whether the beaches are public fora because the record is not developed on this point . . . .”); Preminger v. Principi, 422 F.3d 815, 823 n.5 (9th Cir. 2005) (“Plaintiffs’ mere mention of the parks and streets on the Campus, areas generally considered traditional public fora, is insufficient for us to classify them because the preliminary injunction record contains insufficient detail.”). It is all the more difficult in a case like this one, in which the facts in the record are at times contradictory and contested by the parties.
Appellants argue that the district court could not resolve this factual dispute on the record before it, and hence abused its discretion by denying their request to take discovery pursuant to Federal Rule of Civil Procedure 56(d). We agree. “Where . . . a summary judgment motion is filed so

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early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56[(d)] motion fairly freely.” Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003).
The district court denied the Rule 56(d) motion on the ground that the information sought “would not assist [Appellants] in opposing summary judgment regarding whether the checkpoint is a non-public forum.” However, Appellants identified several areas in which they sought discovery relevant to critical matters at issue in the summary judgment motion.
First, Appellants sought discovery regarding the law enforcement uses of the checkpoint area encompassed within the enforcement zone, including rules and regulations governing the use of the checkpoint area. These uses are relevant to the determination of whether the enforcement zone is a public or a nonpublic forum. Moreover, regardless of which level of scrutiny applies, they may be relevant to the ultimate constitutional question of whether the enforcement zone policy violates the First Amendment. The limited information in the record regarding the layout and use of the checkpoint area leaves many questions unanswered about the specific uses of areas outside the primary and secondary inspection zones. For example, evidence that large portions of the enforcement zone are unused for checkpoint activities would tend to create genuine issues of material fact as to whether the government has transformed the enforcement zone along Arivaca Road into a nonpublic forum and, if the area is still a public forum, whether the enforcement zone is narrowly tailored to the government’s interest in operating a BP checkpoint. See

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13

Long Beach Area Peace Network, 574 F.3d at 1039–40; Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990).
Second, Appellants sought discovery about who has been allowed into the enforcement zone and why. This information could reveal whether the enforcement zone has been applied selectively based on viewpoint. The government’s stated policy is that “pedestrians are allowed inside the checkpoint only for official purposes,” but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government’s policy. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
Finally, Appellants sought discovery of data regarding traffic stops at the checkpoint, in order to determine the accuracy of the data gathered by Appellants from their positions outside the enforcement zone. This information is relevant to whether Appellants have ample alternative opportunities for observation, as would be required to justify their exclusion from a public forum. See Reed v. Lieurance, 863 F.3d 1196, 1212 (9th Cir. 2017).
The limited record before the district court does not permit us to conclude, as a matter of law, that the enforcement zone is a nonpublic forum, or, if it is, that the

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government has satisfied the requirements for excluding Appellants from that nonpublic forum. On remand, and after appropriate discovery, the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government’s exclusion policy is permissible under the principles of forum analysis.
CONCLUSION
For the foregoing reasons, we vacate the district court’s grant of summary judgment and remand for further proceedings. Costs shall be taxed against DefendantsAppellees.
VACATED and REMANDED.

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BILL OF COSTS
This form is available as a fillable version at: http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf.
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief Reply Brief Other**

REQUESTED (Each Column Must Be Completed)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

ALLOWED (To Be Completed by the Clerk)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

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Case: 16-17199, 02/13/2018, ID: 10761237, DktEntry: 48-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk