JS 44 (Rev. 09/11)

Case 3:12-cv-02600-W-BCLIMVILDoCcOumVeEnRt 1S-4HEFEileTd 10/24/12 Page 1 of 3

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS RAY ASKINS and CHRISTIAN RAMIREZ

DEFENDANTS UNITED STATES DEPARTMENT OF HOMELAND SECURITY; et al. (see Attachment B)

(b) County of Residence of First Listed Plaintiff Imperial County
(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number) M. Andrew Woodmansee (CA SBN 201780) (see Attachment A) Morrison & Foerster LLP, 12531 High Bluff Drive San Diego, CA 92130-2040 Telephone: (858) 720-5100 II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

County of Residence of First Listed Defendant Washington D.C.

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

'12CV2600 W BLM

Attorneys (If Known)
U.S. Department of Justice, Office of the Attorney General

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001 Telephone: (202) 514-2001

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF ’1

DEF ’1

Incorporated or Principal Place of Business In This State

PTF DEF ’ 4 ’4

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

’ 110 Insurance

PERSONAL INJURY

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excl. Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 190 Other Contract

Product Liability

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

’ 362 Personal Injury -

Med. Malpractice

REAL PROPERTY

CIVIL RIGHTS

’ 210 Land Condemnation

’ 440 Other Civil Rights

’ 220 Foreclosure

’ 441 Voting

’ 230 Rent Lease & Ejectment ’ 442 Employment

’ 240 Torts to Land

’ 443 Housing/

’ 245 Tort Product Liability

Accommodations

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities -

Employment

’ 446 Amer. w/Disabilities -

Other

’ 448 Education

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 365 Personal Injury -

of Property 21 USC 881 ’ 423 Withdrawal

Product Liability ’ 690 Other

28 USC 157

’ 367 Health Care/

Pharmaceutical

PROPERTY RIGHTS

Personal Injury

’ 820 Copyrights

Product Liability

’ 830 Patent

’ 368 Asbestos Personal

’ 840 Trademark

Injury Product

Liability

LABOR

SOCIAL SECURITY

PERSONAL PROPERTY ’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

’ 370 Other Fraud

Act

’ 862 Black Lung (923)

’ 371 Truth in Lending ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g))

’ 380 Other Personal

’ 740 Railway Labor Act

’ 864 SSID Title XVI

Property Damage ’ 751 Family and Medical

’ 865 RSI (405(g))

’ 385 Property Damage

Leave Act

Product Liability ’ 790 Other Labor Litigation

’ 791 Empl. Ret. Inc.

PRISONER PETITIONS

Security Act

FEDERAL TAX SUITS

’ 510 Motions to Vacate

’ 870 Taxes (U.S. Plaintiff

Sentence

or Defendant)

Habeas Corpus:

’ 871 IRS—Third Party

’ 530 General

26 USC 7609

’ 535 Death Penalty

IMMIGRATION

’ 540 Mandamus & Other ’ 462 Naturalization Application

’ 550 Civil Rights

’ 463 Habeas Corpus -

’ 555 Prison Condition

Alien Detainee

’ 560 Civil Detainee -

(Prisoner Petition)

Conditions of

’ 465 Other Immigration

Confinement

Actions

’ 6 ’6
OTHER STATUTES
’ 375 False Claims Act ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act ’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes

V. ORIGIN
’ 1 Original Proceeding

(Place an “X” in One Box Only)

’ 2 Removed from

’ 3 Remanded from

State Court

Appellate Court

’ 4 Reinstated or Reopened

’

5

Transferred from another district

(specify)

’ 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
5 U.S.C. § 702; 28 U.S.C. § 2201; U.S. Const. amend. I, IV VI. CAUSE OF ACTION Brief description of cause:

Violation of First and Fourth Amendment rights

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE
10/24/2012
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
s/M. Andrew Woodmansee

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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Case 3:12-cv-02600-W-BLM Document 1-4 Filed 10/24/12 Page 2 of 3
ATTACHMENT A TO ASKINS v. U.S. DEPT. OF HOMELAND SECURITY
CIVIL COVER SHEET ATTORNEYS FOR PLAINTIFFS:
M. ANDREW WOODMANSEE (CA SBN 201780) mawoodmansee@mofo.com JEFFREY M. DAVID (CA SBN 265503) jdavid@mofo.com MARY PRENDERGAST (CA SBN 272737) mprendergast@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 DAVID LOY (CA SBN 229235) davidloy@aclusandiego.org SEAN RIORDAN (CA SBN 255752) sriordan@aclusandiego.org ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, California 92138-7131 Telephone: 619.232.2121
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Case 3:12-cv-02600-W-BLM Document 1-4 Filed 10/24/12 Page 3 of 3
ATTACHMENT B TO ASKINS v. U.S. DEPT. OF HOMELAND SECURITY
CIVIL COVER SHEET
DEFENDANTS: UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DAVID V. AGUILAR, Deputy Commissioner of United States Customs and Border Protection; CALEXICO PORT DIRECTOR BILLY WHITFORD; SAN YSIDRO PORT DIRECTOR FRANK JARAMILLO; UNITED STATES CUSTOMS & BORDER PROTECTION OFFICERS DOES 1 through 15; and DOES 16 through 50.
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 1 of 16

1 M. ANDREW WOODMANSEE (CA SBN 201780) mawoodmansee@mofo.com
2 JEFFREY M. DAVID (CA SBN 265503) jdavid@mofo.com
3 MARY PRENDERGAST (CA SBN 272737) mprendergast@mofo.com
4 MORRISON & FOERSTER LLP 12531 High Bluff Drive
5 San Diego, California 92130-2040 Telephone: 858.720.5100
6 DAVID LOY (CA SBN 229235)
7 davidloy@aclusandiego.org SEAN RIORDAN (CA SBN 255752)
8 sriordan@aclusandiego.org ACLU FOUNDATION OF SAN DIEGO &
9 IMPERIAL COUNTIES P.O. Box 87131
10 San Diego, California 92138-7131 Telephone: 619.232.2121
11 Attorneys for Plaintiffs
12 RAY ASKINS AND CHRISTIAN RAMIREZ

13 UNITED STATES DISTRICT COURT
14 SOUTHERN DISTRICT OF CALIFORNIA
15

16 RAY ASKINS and CHRISTIAN RAMIREZ, Case No. '12CV2600 W BLM

17

Plaintiffs,

COMPLAINT FOR DECLARATORY

18

AND INJUNCTIVE RELIEF AND

v.

DAMAGES

19

UNITED STATES DEPARTMENT OF

JURY TRIAL DEMANDED

20 HOMELAND SECURITY; DAVID V.

AGUILAR, Deputy Commissioner of United

21 States Customs and Border Protection;

CALEXICO PORT DIRECTOR BILLY

22 WHITFORD; SAN YSIDRO PORT

DIRECTOR FRANK JARAMILLO;

23 UNITED STATES CUSTOMS & BORDER

PROTECTION OFFICERS DOES 1 through

24 15; and DOES 16 through 50,

25

Defendants.

26

27

28

1
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 2 of 16

1

Plaintiffs Ray Askins and Christian Ramirez (collectively, “Plaintiffs”) bring this First and

2 Fourth Amendment action against the U.S. Department of Homeland Security, U.S. Customs and

3 Border Protection Deputy Commissioner David V. Aguilar, Calexico Port Director Billy

4 Whitford, San Ysidro Port Director Frank Jaramillo, U.S. Customs and Border Protection

5 Officers Does 1-15, and Defendants Does 16-50 (collectively, “Defendants”), and allege as

6 follows.

7

NATURE OF THE ACTION

8

1. This is a civil action to remedy violations of Plaintiffs’ First and Fourth

9 Amendment rights by officers of U.S. Customs and Border Protection (“CBP”), an agency within

10 the Department of Homeland Security.

11

2. The First Amendment right to freedom of speech includes the right to take

12 photographs and make video recordings of matters such as U.S. ports of entry and federal law

13 enforcement officers engaged in the public discharge of their duties. The U.S. Department of

14 Justice (“DOJ”) agreed in a letter providing guidance for potential settlement negotiations in

15 Christopher Sharp v. Baltimore City Police Department, et. al., No. 1:11-cv-02888-BEL (D.

16 Md.), advising that “[r]ecording governmental officers engaged in public duties is a form of

17 speech through which private individuals may gather and disseminate information of public

18 concern, including the conduct of law enforcement officers.” (Exhibit A, DOJ Guidance Letter

19 dated May 14, 2012, at 2 (citations omitted).) DOJ further advised that “the justification for this

20 right is firmly rooted in long-standing First Amendment principles” and that “[t]he right to

21 ‘[g]ather[] information about government officials in a form that can readily be disseminated to

22 others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion

23 of governmental affairs.’” (Id. at 3 (citations omitted).)

24

3. CBP has an unconstitutional policy and practice of prohibiting the use of cameras

25 and video recording devices at or near CBP-controlled facilities, including U.S. ports of entry,

26 without the CBP’s prior approval. Acting pursuant to this policy and practice, CBP officers

27 violated Plaintiffs’ First Amendment rights by directing Plaintiffs to cease taking photographs

28 and erasing the photographs they did take of CBP personnel and buildings at U.S. ports of entry.

2
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 3 of 16

1

4. Furthermore, in the course of violating Plaintiffs’ free speech rights, CBP officers

2 also violated Plaintiffs’ rights under the Fourth Amendment. These officers did so pursuant to an

3 official policy and/or a longstanding practice of searching and/or seizing individuals, without any

4 legally sufficient justification, when the individuals use cameras and video recording devices at or

5 near such facilities without prior approval from CBP. Specifically, Officers Does 1-15 subjected

6 Mr. Askins to the use of excessive force and to an unlawful search and seizure. Other CBP

7 officers subjected Mr. Ramirez to an unlawful search and seizure.

8

5. Plaintiffs’ cases are not unique. CBP officers frequently employ these policies

9 and/or practices to deter individuals from documenting potential misconduct by CBP officers and

10 to destroy evidence of such potential misconduct. For example, CBP officers confronted

11 individuals who captured video footage of the killing of Anastasio Hernandez Rojas by CBP

12 officers at the San Ysidro port of entry on May, 28, 2010, and forced the individuals to erase that

13 footage. In another example at the San Ysidro port of entry, on May 4, 2012, CBP officers

14 confronted Kevin Murphy, who captured video footage of several CBP officers pointing weapons

15 at family members in a van, and forced Mr. Murphy to erase the footage by threatening to smash

16 Mr. Murphy’s phone if he did not do so.

17

6. To remedy the First and Fourth Amendment violations, Plaintiffs seek injunctive

18 and declaratory relief against all defendants, and Plaintiff Askins seeks damages against Officers

19 Does 1-15.

20

THE PARTIES

21

7. Plaintiffs Ray Askins and Christian Ramirez are, and at all relevant times were,

22 citizens of the United States.

23

8. Defendant U.S. Department of Homeland Security (“DHS”) is an executive

24 department of the United States. U.S. Customs and Border Protection is an agency within DHS.

25

9. Defendant David V. Aguilar is the Deputy Commissioner of the CBP.

26

10. Officers Does 1-15 (the “Doe Officers”) are, and at all relevant times were,

27 officers employed by the CBP, and were acting under color of authority of the laws of the United

28 States. The true names of the Doe Officers, as well as the true names of Defendants Does 16-50

3
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1 (collectively, with the Doe Officers, the “Doe Defendants”) are unknown to Plaintiffs, who

2 therefore sue the Doe Defendants by fictitious names. Plaintiffs reserve the right to amend this

3 Complaint to further identify the Doe Defendants when Plaintiffs have ascertained these

4 defendants’ true names and capacities.

5

11. All defendants are sued in their official capacities for declaratory and injunctive

6 relief. Mr. Askins also sues Officers Does 1-15 in their individual capacities for damages.

7

12. Injunctive relief is sought against each defendant as well as each defendant’s

8 agents, assistants, successors, employees, attorneys, and all persons acting in concert or

9 cooperation with any of them or at the direction or under the control of any of them.

10

JURISDICTION AND VENUE

11

13. The Court has jurisdiction under 28 U.S.C. § 1331 because Defendants are acting

12 on behalf of the United States and this action arises under the First and Fourth Amendments to the

13 United States Constitution.

14

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

15 violations alleged here pursuant to 5 U.S.C. § 702, which waives the sovereign immunity of the

16 United States for relief other than money damages; 28 U.S.C. § 2201; and/or Federal Rules of

17 Civil Procedure 57 and 65. Additionally, pursuant to Bivens v. Six Unknown Federal Narcotics

18 Agents, 403 U.S. 388 (1971), the Court may award damages against the Doe Officers, who are

19 sued in their individual capacities.

20

15. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (e),

21 because the events that give rise to this action occurred within this district, and because one or

22 more defendants reside in this district.

23

16. The Court has personal jurisdiction over Officers Does 1-15, all of whom, on

24 information and belief, are residents of the state of California.

25

FACTS

26

PLAINTIFF ASKINS

27

17. Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico. He travels

28 frequently to the United States, often to attend meetings or to visit his home in Lake Arrowhead,

4
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 5 of 16

1 California. He maintains and contributes to a blog that primarily addresses environmental issues

2 and human rights abuses in the U.S.-Mexico border region. This work involves extensive

3 research, investigation, and analysis of CBP border activities. Additionally, this work has

4 culminated in numerous reports prepared by Mr. Askins and submitted to U.S. Representative

5 Bob Filner, whose congressional district includes the entire California-Mexico border.

6

18. Mr. Askins’s claims arise from his attempt to take photographs of the Calexico-

7 Mexicali port of entry for a presentation at a conference entitled “Health Impacts of Border

8 Crossings,” held on May 4, 2012, in San Ysidro, California. According to its website, the

9 conference was funded by the Southwest Consortium on Environmental Research and Policy.

10 The website also states: “This binational conference focuses on local health impacts of the U.S.-

11 Mexico border. The emphasis is on avenues for reduction of exposures to traffic pollutants

12 experienced by people crossing the border at the U.S.-Mexico Ports of Entry, workers and the

13 community on both sides of the border. The conference includes participation of researchers and

14 stakeholders from the San Diego-Tijuana region and other areas along the U.S.-Mexico border

15 with similar issues.” See http://www.healthyborders2012.com/#!about (attached as Exhibit B to

16 this Complaint). Furthermore, the conference materials state that, as an outcome of the

17 conference, “[a] White Paper is to be sent to the Air Quality and Environmental Health Task

18 Forces of the EPA Border 2012 initiative as well as local and state agencies and regional

19 stakeholders along the border.”

20

19. In connection with his conference presentation, Mr. Askins wished to photograph

21 the secondary inspection area of the Calexico-Mexicali port of entry to demonstrate that the CBP

22 does not make full and proper use of this inspection area, leading to longer delays at the border

23 crossing and, accordingly, to more pollution arising from emissions of vehicles waiting in line to

24 cross the border or enter the port of entry.

25

20. On or about April 18, 2012, Mr. Askins contacted CBP Officer John Campos by

26 phone and requested permission to take three or four photographs inside the secondary inspection

27 area at the Calexico port of entry the next day. Officer Campos said that this would be

28 inconvenient, but otherwise did not object to the request.

5
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1

21. On or about April 19, 2012, Mr. Askins called Officer Campos to follow up.

2 When Officer Campos did not answer, Mr. Askins left a voicemail message stating that, instead

3 of taking photographs inside the building, Mr. Askins would stand on the street in Calexico and

4 take photographs of the exit of the secondary inspection area.

5

22. On or about April 19, 2012, at approximately 3:21 p.m., Mr. Askins was standing

6 on the shoulder of a public street in Calexico, California, approximately 50-100 feet from the exit

7 from the secondary inspection area at the Calexico port of entry. From this vantage point, Mr.

8 Askins took three or four photographs of the exit of the secondary inspection area, including the

9 following photograph:

10

11

12

13

14

15

16

17

18

19

20
23. While taking these photographs, Mr. Askins was not engaged in any form of 21
commercial speech or activity. Mr. Askins took these photographs for political and/or other non22
commercial purposes. 23
24. Additionally, when taking these photographs, Mr. Askins was not engaged in the 24
act of crossing the border. Mr. Askins was outside the port of entry on the U.S. side of the border 25
when taking the photographs. 26
25. Shortly after he took the photos, a number of male CBP officers (Officers Does 127
15) approached Mr. Askins. One or two of the officers (Officer Doe 1 and/or Officer Doe 2) 28

6
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 7 of 16

1 demanded that Mr. Askins delete the photos. When Mr. Askins stated that he would not do so,

2 Officer Doe 1 and/or Officer Doe 2 stated that they would smash the camera if Mr. Askins did not

3 delete the photos. Mr. Askins again declined to delete the photos, explaining that they were his

4 property. One or more officers (Officers Does 1-15) then handcuffed Mr. Askins from behind

5 and took his camera, passport, car keys, and hat.

6

26. Throughout this encounter, the CBP officers—particularly Officer Doe 1—spoke

7 to Mr. Askins in an aggressive and threatening manner, despite the fact that Mr. Askins at no

8 point posed a threat to the safety of the officers and at no point actively resisted arrest.

9 Furthermore, Mr. Askins committed no crime and took no actions giving rise to a reasonable

10 suspicion or probable cause that he had committed or was about to commit a crime.

11

27. After Mr. Askins was handcuffed and his possessions taken, Officer Doe 1

12 forcefully led Mr. Askins into a small room inside the secondary inspection area, holding Mr.

13 Askins’s right arm in a tight grip that caused significant pain and bruising on the inside of Mr.

14 Askins’s arm. The officer told Mr. Askins to sit down. Mr. Askins was not free to leave the

15 room.

16

28. After about 20 minutes, Officer Doe 1 led Mr. Askins to a separate room where he

17 subjected Mr. Askins to an invasive and embarrassing physical search. During the search, Mr.

18 Askins remained clothed and Officer Doe 1 used his hands to pat Mr. Askins’s entire body. Mr.

19 Askins felt that he was being groped, and experienced particular discomfort when Officer Doe 1

20 unnecessarily squeezed and touched Mr. Askins’s groin area several times.

21

29. One or more CBP officers (Officers Does 1-15) then told Mr. Askins that he was

22 free to go and returned his belongings. Officer Doe 4 escorted him to the exit. From the moment

23 CBP officers first detained Mr. Askins to the moment they told him he was free to go,

24 approximately 25-35 minutes elapsed. The officers had no warrant or other justification for the

25 search and/or seizure of Mr. Askins’s person or property.

26

30. When Mr. Askins later scrolled through the pictures on his digital camera, he

27 discovered that all but one of the photographs he just had taken of the port of entry had been

28 deleted.

7
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1

31. On or about April 19, 2012, Mr. Askins sent a letter of complaint regarding the

2 incident to Port Director Billy Whitford. Director Whitford responded in writing. In his response

3 (attached as Exhibit C to this Complaint), Director Whitford stated: “In response to the issues

4 raised in your complaint, the area in question is currently under the jurisdiction of GSA [(General

5 Services Administration)] and CBP. CBP security policies prohibit visitors at CBP-controlled

6 facilities from using cameras and video recording devices without the prior approval from the

7 senior CBP official (Port Director or designee).”

8

32. Mr. Askins hopes to continue to photograph the Calexico port of entry, San Ysidro

9 port of entry, and other ports of entry in the future, to document air pollution and human rights

10 abuses, but the policies, practices, and actions of CBP and its officers chill, prevent, hinder, and

11 deter him from doing so.

12

PLAINTIFF RAMIREZ

13

33. Mr. Ramirez is a U.S. citizen living in San Diego, California. He crosses the U.S.-

14 Mexico border approximately three to four times per month, often to visit family members living

15 in Mexico.

16

34. Mr. Ramirez works as the Human Rights Director at Alliance San Diego. Alliance

17 San Diego is a non-profit, non-partisan organization whose stated mission is to provide a means

18 for diverse individuals to share information, collaborate on issues and mobilize for change in the

19 pursuit of social justice, especially in low-income communities and communities of color. The

20 organization pursues this mission through targeted civic engagement programs and strategic

21 coalitions that focus on specific issues and policy reforms, including issues related to immigrant

22 rights at the U.S.-Mexico border.

23

35. As a part of his job, Mr. Ramirez regularly visits the U.S.-Mexico border to

24 observe law enforcement activity and monitor human rights issues. He does this not only for

25 work but also out of a sense of personal responsibility as a lifelong member of the border

26 community. He has long believed that it is important to document law enforcement activity at the

27 border in order to address and hopefully to prevent the abuse of human rights.

28

8
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1

36. Mr. Ramirez’s claims arise from his experience crossing the border at the San

2 Ysidro port of entry on Father’s Day 2010. On or about that day—June 20, 2010—Mr. Ramirez

3 and his wife crossed the border into Mexico to visit his father. They parked on the U.S. side of

4 the border and walked into Mexico through the pedestrian entrance at San Ysidro.

5

37. After a late lunch, Mr. Ramirez and his wife returned to the United States. They

6 passed through primary inspection at the San Ysidro port of entry without incident. They then

7 crossed a pedestrian bridge that passes over, among other things, the southbound lanes of

8 Interstate 5.

9

38. While crossing this pedestrian bridge, Mr. Ramirez noticed that, at a southbound

10 security checkpoint below him, which was staffed by CBP officers, women were being inspected

11 and patted down by male CBP officers. Mr. Ramirez’s wife commented that the officers

12 appeared to be pulling aside only women for inspection.

13

39. Mr. Ramirez observed the checkpoint for approximately ten to 15 minutes. During

14 that time he took approximately ten pictures using his cell phone camera, out of concern that the

15 CBP officers might have been acting inappropriately.

16

40. While taking the photographs at issue on or about June 20, 2010, Mr. Ramirez was

17 not engaged in any form of commercial speech or activity. Mr. Ramirez took these photographs

18 for political and/or other non-commercial purposes.

19

41. Additionally, when taking these photographs, Mr. Ramirez was not engaged in the

20 act of crossing the border. Mr. Ramirez was in the United States when taking the photographs.

21

42. While observing the checkpoint, Mr. Ramirez and his wife were approached by

22 two men who appeared to be private security officers. One of the private security officers asked

23 for Mr. Ramirez’s personal identification documents. Mr. Ramirez explained that he and his wife

24 had already passed through inspection and declined to hand over his documents again.

25

43. One of the private security officers then ordered Mr. Ramirez to stop taking

26 photographs. Mr. Ramirez refused and took a picture of the private security officer. Acting

27 aggressively, the private security officer attempted to grab Mr. Ramirez. Mr. Ramirez stopped

28 taking photographs and said “let’s go” to his wife.

9
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1

44. Mr. Ramirez and his wife then began to descend the pedestrian bridge, now

2 followed by the private security officers, whom Mr. Ramirez heard make a radio call for backup.

3 At the bottom of the bridge, approximately five to seven CBP officers were waiting. They asked

4 whether and why Mr. Ramirez had taken any photographs. Mr. Ramirez responded that he had

5 taken photographs because he had witnessed what he believed to be inappropriate activity by

6 CBP officers at the checkpoint—namely, the patting down of women by male officers.

7

45. The CBP officers at the bottom of the bridge then asked Mr. Ramirez to turn over

8 his phone. Mr. Ramirez refused and explained that he was willing only to show them the

9 photographs.

10

46. An officer in plain clothes then confronted Mr. Ramirez and asked for Mr.

11 Ramirez’s personal identification documents. The officer later identified himself as a U.S.

12 Immigration and Customs Enforcement (“ICE”) agent. Mr. Ramirez refused to turn over his

13 documents and explained that they had already been inspected. The ICE officer said to Mr.

14 Ramirez, “Give me one other reason to take you down.” The officer took Mr. Ramirez’s and Mr.

15 Ramirez’s wife’s passports out of Mr. Ramirez’s shirt pocket and went to a nearby office.

16

47. A CBP officer then took Mr. Ramirez’s phone and scrolled through the photos,

17 making a comment about Mr. Ramirez’s personal pictures. When Mr. Ramirez later looked

18 through the contents of his phone, he discovered that the CBP officer who took his phone had

19 deleted all of the photos that Mr. Ramirez had just taken at the CBP checkpoint.

20

48. Throughout this encounter, officers spoke to Mr. Ramirez in an aggressive and

21 threatening manner, despite the fact that Mr. Ramirez at no point posed a threat to the safety of

22 the officers and at no point actively resisted arrest. Furthermore, Mr. Ramirez committed no

23 crime and took no actions giving rise to a reasonable suspicion or probable cause that he had

24 committed or was about to commit a crime.

25

49. Approximately ten to 15 minutes after the ICE agent had taken the passports

26 belonging to Mr. Ramirez and Mr. Ramirez’s wife, the ICE agent returned with the documents

27 and gave them back to Mr. Ramirez. Mr. Ramirez and his wife were then allowed to continue on

28 their way.

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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 11 of 16

1

50. During the entire encounter at the bottom of the bridge, which lasted

2 approximately ten to 15 minutes from the time Mr. Ramirez and his wife reached the bottom of

3 the bridge and were confronted by the CBP officers, to the time they were allowed to go, Mr.

4 Ramirez and his wife were separated from each other by CBP officers. The officers essentially

5 created a buffer area around Mr. Ramirez while they questioned him and took his cell phone.

6 Neither Mr. Ramirez nor his wife felt free to leave at any point during that time. The officers had

7 no warrant or other justification for the search and/or seizure of Mr. Ramirez’s person or

8 property.

9

51. Mr. Ramirez hopes to continue to photograph the San Ysidro port of entry and

10 other ports of entry in the future, in order to document human rights abuses and to monitor

11 activity in his border community. Indeed, he considers documenting such border issues to be a

12 fundamental piece of his identity and part of his life experience. But the policies, practices, and

13 actions of CBP and its officers chill, prevent, hinder, and deter him from doing so.

14

CLAIMS FOR RELIEF

15

CLAIM ONE

(VIOLATION OF THE FIRST AMENDMENT—FREEDOM OF SPEECH— 16 BY PLAINTIFF ASKINS AGAINST DEFENDANTS DEPARTMENT OF HOMELAND

SECURITY, COMISSIONER AGUILAR, AND OFFICERS DOES 1-15) 17

18

52. Plaintiff Askins incorporates by reference and re-alleges each preceding paragraph

19 as if fully set forth herein.

20

53. Mr. Askins has the right to freedom of speech, which includes the right to take

21 photographs and make video recordings of matters such as U.S. ports of entry and federal law

22 enforcement officers engaged in the public discharge of their duties.

23

54. By engaging in the above-described conduct on or about April 19, 2012, Officer

24 Does 1-15 violated Mr. Askins’s First Amendment right to freedom of speech.

25

55. In violating Mr. Askins’s First Amendment rights, Officers Does 1-15 acted

26 pursuant to an expressly adopted official CBP policy and/or a longstanding CBP practice of

27 prohibiting the use of cameras and video recording devices at CBP-controlled facilities, including

28 U.S. ports of entry, without the CBP’s prior approval. This policy and/or practice prevents,

11
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 12 of 16

1 restricts and/or hinders the ability of persons such as Plaintiffs to take photographs and make

2 video recordings of matters such as U.S. ports of entry and federal law enforcement officers

3 engaged in the public discharge of their duties. This CBP policy and/or practice continues to be

4 an impermissible prior restraint on speech and to chill, deter, and infringe Mr. Askins’s First

5 Amendment right to freedom of speech.

6

56. Furthermore, the violation of Mr. Askins’s First Amendment rights by Officers

7 Does 1-15 caused Mr. Askins to suffer harm. As a result, Mr. Askins is entitled to monetary

8 damages from Officers Does 1-15 pursuant to the Bivens doctrine.

9

57. The violation of Mr. Askins’s First Amendment rights by Officer Does 1-15 was

10 also oppressive, malicious, and done with a willful and conscious disregard of Mr. Askins’s

11 rights, justifying an award of punitive damages.

12

CLAIM TWO

(VIOLATION OF THE FIRST AMENDMENT—FREEDOM OF SPEECH—

13

BY PLAINTIFF RAMIREZ AGAINST DEFENDANTS

DEPARTMENT OF HOMELAND SECURITY AND COMMISSIONER AGUILAR) 14

15

58. Plaintiff Ramirez incorporates by reference and re-alleges each preceding

16 paragraph as if fully set forth herein.

17

59. Mr. Ramirez has the right to freedom of speech, which includes the right to take

18 photographs and make video recordings of matters such as U.S. ports of entry and federal law

19 enforcement officers engaged in the public discharge of their duties.

20

60. By engaging in the above-described conduct on or about June 20, 2010, the CBP

21 violated Mr. Ramirez’s First Amendment right to freedom of speech.

22

61. In violating Mr. Ramirez’s First Amendment rights, the CBP officers acted

23 pursuant to an expressly adopted official CBP policy and/or a longstanding CBP practice of

24 prohibiting the use of cameras and video recording devices at CBP-controlled facilities, including

25 U.S. ports of entry, without the CBP’s prior approval. This policy and/or practice prevents,

26 restricts and/or hinders the ability of persons such as Plaintiffs to take photographs and make

27 video recordings of matters such as U.S. ports of entry and federal law enforcement officers

28 engaged in the public discharge of their duties. This CBP policy and/or practice continues to be

12
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 13 of 16

1 an impermissible prior restraint on speech and to chill, deter, and infringe Mr. Ramirez’s First

2 Amendment right to freedom of speech.

3

CLAIM THREE

(VIOLATION OF THE FOURTH AMENDMENT—UNLAWFUL SEARCH AND

4

SEIZURE—BY PLAINTIFF ASKINS AGAINST DEFENDANTS DEPARTMENT OF

HOMELAND SECURITY, COMISSIONER AGUILAR, AND OFFICERS DOES 1-15) 5

6

62. Plaintiff Askins incorporates by reference and re-alleges each preceding paragraph

7 as if fully set forth herein.

8

63. By engaging in the above-described conduct on or about April 19, 2012, CBP

9 Officers Does 1-15 searched and seized Mr. Askins’s person and/or property without a warrant,

10 probable cause, reasonable suspicion, consent, exigent circumstances, or any other justification,

11 in violation of Mr. Askins’s Fourth Amendment right to freedom from unreasonable search and

12 seizure.

13

64. In violating Mr. Askins’s Fourth Amendment rights, the CBP officers acted

14 pursuant to an expressly adopted official CBP policy and/or a longstanding CBP practice of

15 searching and seizing individuals without a warrant, probable cause, reasonable suspicion,

16 consent, exigent circumstances, or any other justification, when the individuals use cameras and

17 video recording devices at or near CBP-controlled facilities, including U.S. ports of entry, without

18 the CBP’s prior approval.

19

65. Furthermore, the conduct of Officers Does 1-15 caused Mr. Askins to suffer harm.

20 As a result, Mr. Askins is entitled to monetary damages from Officers Does 1-15 pursuant to the

21 Bivens doctrine.

22

66. The unreasonable search and seizure by Officer Does 1-15 was also oppressive,

23 malicious, and done with a willful and conscious disregard of Mr. Askins’s rights and safety,

24 justifying an award of punitive damages.

25

26

27

28

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1

CLAIM FOUR

(VIOLATION OF THE FOURTH AMENDMENT—EXCESSIVE USE OF FORCE—BY

2

PLAINTIFF ASKINS AGAINST DEFENDANTS DEPARTMENT OF HOMELAND

SECURITY, COMISSIONAR AGUILAR, AND OFFICERS DOES 1-15)

3

4

67. Plaintiff Askins incorporates by reference and re-alleges each preceding paragraph

5 as if fully set forth herein.

6

68. By engaging in the above-described conduct on or about April 19, 2012, including

7 gripping Mr. Askins’s right arm with such force as to cause significant pain and bruising, without

8 provocation or justification, Officer Doe 1 violated Mr. Askins’s Fourth Amendment right to

9 freedom from the use of excessive force.

10

69. Furthermore, the conduct of Officer Doe 1 caused Mr. Askins to suffer harm. As a

11 result, Mr. Askins is entitled to monetary damages from Officer Doe 1 pursuant to the Bivens

12 doctrine.

13

70. Officer Doe 1’s excessive use of force was also oppressive, malicious, and done

14 with a willful and conscious disregard of Mr. Askins’s rights and safety, justifying an award of

15 punitive damages.

16

CLAIM FIVE

(VIOLATION OF THE FOURTH AMENDMENT—UNLAWFUL SEARCH AND

17 SEIZURE—BY PLAINTIFF RAMIREZ AGAINST DEFENDANTS DEPARTMENT OF

HOMELAND SECURITY AND COMISSIONAR AGUILAR)

18

19

71. Plaintiff Ramirez incorporates by reference and re-alleges each preceding

20 paragraph as if fully set forth herein.

21

72. By engaging in the above-described conduct on or about June 20, 2010, the CBP

22 officers searched and seized Mr. Ramirez’s person and/or property without a warrant, probable

23 cause, reasonable suspicion, consent, exigent circumstances, or any other justification, in

24 violation of Mr. Ramirez’s Fourth Amendment right to freedom from unreasonable search and

25 seizure.

26

73. In violating Mr. Ramirez’s Fourth Amendment rights, the CBP officers acted

27 pursuant to an expressly adopted official CBP policy and/or a longstanding CBP practice of

28 searching and seizing individuals without a warrant, probable cause, reasonable suspicion,

14
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 15 of 16

1 consent, exigent circumstances, or any other justification, when the individuals use cameras and

2 video recording devices at or near CBP-controlled facilities, including U.S. ports of entry, without

3 the CBP’s prior approval.

4

PRAYER FOR RELIEF

5

WHEREFORE, Plaintiffs respectfully request that the Court:

6

A. Preliminarily and permanently enjoin all Defendants, their successors, agents,

7 servants and employees, and anyone acting in concert with Defendants, from preventing,

8 impeding, or otherwise interfering with Plaintiffs’ First Amendment free speech rights to take

9 photographs and make video recordings of U.S. ports of entry and federal law enforcement

10 officers engaged in the public discharge of their duties;

11

B. Preliminarily and permanently enjoin all Defendants, their successors, agents,

12 servants and employees, and anyone acting in concert with Defendants, from violating Plaintiffs’

13 Fourth Amendment rights by searching and seizing Plaintiffs and/or Plaintiffs’ cameras or video

14 recording devices without a warrant, probable cause, reasonable suspicion, consent, exigent

15 circumstances, or any other justification, when Plaintiffs use cameras and video recording devices

16 at or near CBP-controlled facilities, including U.S. ports of entry.

17

C. Declare Defendants’ conduct to be unlawful;

18

D. Award Plaintiff Askins general, compensatory, statutory, nominal, and/or punitive

19 damages against CBP Officers Does 1-15 for the violations of his First and Fourth Amendment

20 rights, in an amount to be proven at trial;

21

E. Award Plaintiffs’ costs, including reasonable attorneys’ fees; and

22

F. Award such other relief as the Court deems proper.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

15
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Case 3:12-cv-02600-W-BLM Document 1 Filed 10/24/12 Page 16 of 16

1

JURY DEMAND

2

Plaintiffs hereby demand a trial by jury for all issues so triable.

3

4 Dated: October 24, 2012

MORRISON & FOERSTER LLP

5

6

By:

s/M. Andrew Woodmansee

M. ANDREW WOODMANSEE

7

MAWoodmansee@mofo.com

8

Attorneys for Plaintiffs

RAY ASKINS and CHRISTIAN RAMIREZ

9

10

11

12

13

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15

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18

19

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COMPLAINT

 
 1

2

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7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 RAY ASKINS, et al.,
12 vs.
13

Plaintiffs,

14 U.S. DEPARTMENT OF

HOMELAND SECURITY, et al.,

15

Defendants.

16

CASE NO. 12-CV-2600 W (BLM)
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION [DOC. 19]

17

Pending before the Court is Plaintiff Ray Askins’ and Plaintiff Christian

18 Ramirez’s (collectively, “Plaintiffs”) motion for a preliminary injunction. Defendants

19 United States Department of Homeland Security, David V. Aguilar, Billy Whitford,

20 and Frank Jaramillo (“Defendants”) oppose the motion. Having reviewed and

21 considered the parties’ arguments as set forth in their papers, for the reasons outlined

22 below, the Court DENIES the motion for a preliminary injunction [Doc. 19].

23

24 I. BACKGROUND

25

Plaintiffs allege that in two separate but similar incidents, their First Amendment

26 rights were infringed. The first incident involved Mr. Ramirez and occurred on June

27 20, 2010 at the San Ysidro Port of Entry. The second involved Mr. Askins and

28 occurred on April 19, 2013 at the Calexico Port of Entry. Plaintiffs filed the instant

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1 motion for preliminary injunction to “prevent further violations of Plaintiffs’ First

2 Amendment right to photograph matters exposed to public view, including the conduct

3 of law enforcement officers in the course of their duties.” (Pls.’ Mot. Prelim. Inj. [Doc

4 19-1], p. 9.)

5

6

A. Incident Involving Mr. Ramirez

7

Mr. Ramirez is a U.S. citizen living in San Diego, California who crosses the

8 border three or four times a month, often to visit his family in Mexico. (Declaration of

9 Christian Ramirez [Doc. 19-3], ¶¶ 2, 3.) He works as the Human Rights Director for

10 Alliance San Diego, a nonprofit organization dedicated to a number of causes, including

11 issues related to immigrant rights at the U.S.-Mexico Border. (Id., ¶ 4.) As part of his

12 job, and as a concerned member of the “border community,” Ramirez often visits the

13 U.S.-Mexico border “to observe law enforcement activity and monitor human rights

14 issues.” (Id., ¶ 5.)

15

On or around June 20, 2010, Mr. Ramirez and his wife were returning to the

16 United States from visiting a family member in Mexico. (Id., ¶¶ 6-7.) After being

17 admitted into the United States, Mr. Ramirez and his wife crossed a pedestrian bridge

18 that passes over Interstate 5 on the U.S. side of the border. (Id., ¶ 7.) While crossing

19 the bridge, Mr. Ramirez noticed that male CBP officers were inspecting and patting

20 down female pedestrians at a southbound pedestrian checkpoint below the bridge. (Id.,

21 ¶ 8.) Mr. Ramirez claims that his wife said that the officers were only inspecting female

22 pedestrians. (Id.) Mr. Ramirez stopped for more than ten minutes to observe the

23 checkpoint, taking several pictures with his cell phone camera “out of concern that the

24 officers were acting inappropriately.” (Opp’n, pp. 5–6 (citing Decl. Ramirez, ¶ 9).)

25 Defendants claim that Mr. Ramirez admits to having taken these photos while on CBP

26 port of entry property. (Opp’n., pp. 9-10.) Mr. Ramirez denies this claim. (Reply [Doc.

27 30] 5.) It is undisputed that Mr. Ramirez did not attempt to obtain permission from

28

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1 CBP prior to photographing the port of entry. (See Declartion of Billy Whitford [Doc 27-

2 1],¶¶ 38-42; See generally Pls.’ Mot. Prelim. Inj.; See generally Reply.)

3

While Mr. Ramirez was observing and photographing the checkpoint, a

4 uniformed officer asked him to present his personal identification documents and to

5 stop taking pictures. (Decl. Ramirez, ¶¶ 11, 12.) After explaining that he had already

6 passed through inspection, refusing to hand over his documents, and taking another

7 picture of the officer, Mr. Ramirez and his wife began to descend the pedestrian bridge.

8 (Id., ¶¶ 12, 13.) Mr. Ramirez alleges that he was subsequently detained, questioned,

9 and searched. (Id., ¶¶ 14-21.) Mr. Ramirez claims that a CBP officer took his phone

10 and deleted all of his photos of the checkpoint. (Id. ¶ 22.) CBP has not located records

11 of any incident involving Mr. Ramirez on or around June 20, 2010. (Opp’n. 11.)

12

13

B. Incident Involving Mr. Askins

14

Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently

15 crosses the border into the United States. (Declaration of Ray Askins [Doc. 19-2], ¶¶

16 2, 3.) He maintains and contributes to a blog that addresses environmental issues and

17 human rights abuses in the U.S.-Mexico border region. (Id., ¶ 3.) Mr. Askins’ work

18 “involves extensive research, investigation, and analysis of CBP activities.” (Id., ¶4.)

19 On April 18, 2012, Plaintiff Ray Askins emailed Calexico Port Director Billy Whitford

20 and Calexico Public Affairs and Supervisory CBP Officer John Campos, requesting

21 permission to photograph the interior of the vehicle secondary inspection area of the

22 Calexico Port of Entry. (Decl. Whitford, ¶ 12; Decl. Whitford, Ex. C.) His email, sent

23 at approximately 4:30 p.m., indicated he would be passing through the Calexico port

24 around noon on April 19, 2013. (Decl. Whitford, Ex. C.) Mr. Askins alleges that he

25 also called Officer Campos on April 18, 2012 with the same request. (Decl. Whitford, ¶

26 8.) According to Mr. Askins, Officer Campos said that it would be inconvenient for

27 him to take the requested photos, but he did not explicitly object to the request. (Decl.

28 Whitford, ¶ 8.)

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1

The next morning, on April 19, 2013, having received no response from Mr.

2 Whitford, Mr. Askins called Officer Campos to follow up on his request. (Decl.

3 Whitford, ¶ 13.) Defendants contend that Officer Campos explained to Mr. Askins that

4 he did not have permission to photograph the secondary vehicle inspection area at that

5 time, but was free to photograph the port of entry when not on port of entry property.

6 (Id.) Mr. Askins claims that his call was not answered, and he left a voicemail

7 indicating that instead of taking photographs inside the secondary inspection area, he

8 would stand on the street in Calexico and photograph the secondary inspection from

9 there. (Decl. Askins, ¶ 10.)

10

Later that day, Mr. Askins drove to Calexico and photographed the exit of

11 secondary inspection area. (Decl. Askins, ¶ 10.) Mr. Askins contends that he took the

12 photos from a public street outside the port of entry. (Id. ¶ 11.) Defendants contend

13 that the location where Mr. Askins took the photos was on port of entry property.

14 (Decl. Whitford, ¶ 14.) Shortly thereafter, Mr. Askins was detained and searched by

15 CBP officers who had observed him taking photographs. (Decl. Whitford [Doc. 27-1]

16 ¶¶ 14, 16, 17, 18.) Mr. Askins alleges that the CBP officers deleted the photos he had

17 taken after Mr. Askins refused the CBP officers’ request to delete the photos. (Decl.

18 Askins, ¶¶12-13, 20.) CBP denies deleting Askins’s photographs. (Opp’n., p. 10;

19 Whitford Decl., ¶¶19, 21.)

20

On October 24, 2012, Plaintiffs filed their complaint against Defendant, claiming

21 violations of the First and Fourth Amendments. (Compl. [Doc. 1].) On January 29,

22 2013, Plaintiffs filed a motion for preliminary injunction based on Defendants’ alleged

23 violations of the First Amendment. (Pls.’ Mot. Prelim. Inj. [Doc. 19]; see also Reply

24 [Doc. 30].) Defendants oppose. (Opp’n [Doc. 27].)

25

26 II. LEGAL STANDARD

27

Under Rule 65 of the Federal Rules of Civil Procedure, a district court has the

28 authority to issue a preliminary injunction in the exercise of its equitable powers. Fed.

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1 R. Civ. P. 65. “The standard for granting a preliminary injunction balances the

2 plaintiff’s likelihood of success against the relative hardship to the parties.” Clear

3 Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003); Stormans,

4 Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2008). A preliminary injunction is an

5 extraordinary and drastic remedy, one that should not be granted unless the movant,

6 by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S.

7 968, 972 (1997). The Ninth Circuit recognizes two tests for granting preliminary

8 injunctive relief. Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir.

9 2005).

10

To obtain a preliminary injunction under the first, “traditional,” test, a plaintiff

11 must show “‘(1) a strong likelihood of success on the merits, (2) the possibility of

12 irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of

13 hardships favoring the plaintiff, and (4) advancement of the public interest (in certain

14 cases).’” Save Our Sonoran, 408 F.3d at 1120 (quoting Johnson v. Cal. State Bd. of

15 Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)).

16

To obtain a preliminary injunction under the second, “alternative,” test, a

17 plaintiff must demonstrate either (1) a combination of probable success on the merits

18 and the possibility of irreparable injury or (2) that serious questions are raised and the

19 balance of hardships tips sharply in his favor. Save Our Sonoran, 408 F.3d at 1120

20 (citing Johnson, 72 F.3d 1430); Immigrant Assistance Project of the L.A. Cnty. of Fed’n

21 of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002). “These two formulations represent

22 two points on a sliding scale in which the required degree of irreparable harm increases

23 as the probability of success decreases. They are not separate tests but rather outer

24 reaches of a single continuum.” Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097,

25 1100 (9th Cir. 1998). Thus, “the greater the relative hardship to the moving party, the

26 less probability of success must be shown.” Immigrant Assistance Project, 306 F.3d at

27 873 (citations). “Conversely, it has been held that a preliminary injunction may be

28

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1 granted even though the harm factor favors defendant if plaintiff demonstrates a

2 substantial likelihood that he will ultimately prevail.” Id. (citations).

3

“In cases where the public interest is involved, the district court must also

4 examine whether the public interest favors the plaintiff.” Fund for Animals, Inc. v.

5 Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992); see also Caribbean Marine Servs. Co., Inc.

6 v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Under either test, however, the district

7 court must consider the public interest as a factor in balancing the hardships when the

8 public interest may be affected.”).

9

10 III. DISCUSSION

11

As an initial matter, there is some dispute as to the scope of Plaintiffs’ requested

12 preliminary injunction. Plaintiffs claim that “[c]ontrary to Defendants’ assertion,

13 Plaintiffs do not seek an injunction preventing Defendants from regulating photography

14 anywhere ‘on land ports of entry.’” (Reply, p. 1(citing Opp’n., p. 1)). “Instead, Plaintiffs

15 seek only to protect their own well-established ‘First Amendment right to photograph

16 matters exposed to public view’–including the exterior of CBP buildings and officers

17 carrying out their duties in public.” (Reply, p. 1(citing Pls.’ Mot. Prelim Inj.) The Court

18 agrees.

19

Defendants argue that the Plaintiffs were in a nonpublic forum when they took

20 the pictures in question, and therefore, we subject to CBP’s reasonable and viewpoint

21 neutral restrictions of unauthorized photography. (Opp’n. 15.) Thus, Defendants

22 characterize this motion as one that turns completely on whether or not Plaintiffs were

23 photographing the border from a public or private forum. (Opp’n, pp. 14-18.) That is

24 not the case. Instead, resolution of this motion depends on whether Plaintiffs can carry

25 their burden of establishing that they are likely to show that the Defendants violated

26 their alleged well-established First Amendment right to photograph matters exposed

27 to public view.

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1

As mentioned above, a preliminary injunction is an extraordinary and drastic

2 remedy, one that should not be granted unless the movant, by a clear showing, carries

3 the burden of persuasion. Mazurek, 520 U.S. at 972. For the following reasons, the

4 Court finds that Plaintiffs have not met their burden, and as such, they are not entitled

5 to a preliminary injunction.

6

7

A. Probability of Success

8

Plaintiffs claim that they are likely to show that Defendants have violated the

9 First Amendment in two ways. Specifically, Plaintiffs claim that Defendants violated

10 Plaintiffs’ constitutional rights to (1) photograph CBP officers engaged in the discharge

11 of their duties and (2) photograph the exterior of federal buildings such as U.S. ports

12 of entry. (Pls.’ Mot. Prelim. Inj., pp. 10-18.) For the following reasons, the Court finds

13 that Plaintiffs are unlikely to succeed on the merits of these claims.

14

15

1. Plaintiffs Fail to Establish a First Amendment Right to

Photograph CBP Officers Executing Their Duties at the

16

Border

17

There is no doubt that citizens enjoy a First Amendment right to photograph 18

police officers performing their responsibilities in public places, as evidenced by the 19

cases cited by Plaintiffs. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir 1995); 20

Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)(holding that there is a constitutionally 21

protected right to videotape police carrying out their duties in public); Smith v. City 22
of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)(“The First Amendment protects the 23

right to gather information about what public officials do on public property,” including 24

right “to photograph or videotape police conduct”); Robinson v. Fetterman, 378 25

F.Supp. 2d 534, 542 (E.D. Pa. 2005)(finding First Amendment right to videotape state 26

troopers on public highway performing truck inspections). The Department of Justice 27

letter that Plaintiffs cite is in accord with this line of cases, and is also limited to 28

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1 situations where police officers are performing their duties in a public place. (See DOJ

2 Letter [Doc. 19-6] 1.)

3

Noticeably lacking from the Plaintiffs’ motion, however, is any argument as to

4 why these cases apply to CBP officers executing their duties at U.S. ports of entry.

5 Plaintiffs have not cited, and the Court is not aware of, controlling authority suggesting

6 that Plaintiffs have a First Amendment right to photograph CBP officers as they

7 perform their operational duties at U.S. ports of entry. (See Mot. Prelim. Inj., pp. 11-14.)

8 Instead, Plaintiffs conclude that “[g]iven the government’s unequivocal statements in

9 Sharp . . . Defendants cannot deny that the First Amendment protects the right to

10 record CBP officers engaged in the discharge of their duties.” Thus, Plaintiffs assume

11 that CBP officers are legally equivalent to police officers and that their duties are legally

12 equivalent to those of police officers. Moreover, Plaintiffs assume that the public places

13 at issue in the cases cited above are legally equivalent to U.S. ports of entry. The Court

14 is unwilling to make such assumptions, especially in light of the sensitive nature of CBP

15 operations and its responsibility for national security and secure borders. (See Decl.

16 Whitford, ¶¶ 8, 9.)

17

In light of the forgoing, the Court finds that Plaintiffs have failed to show that

18 citizens have a First Amendment right to photograph CBP officers executing their

19 duties at U.S. ports of entry. Therefore, Defendants have not shown that they are likely

20 to succeed on the merits of this line of argument.

21

22

2. Plaintiffs Fail to Establish a First Amendment Right to

Photograph the Secondary Inspection Area at the Border 23

24

Plaintiffs next argue that “the right to photograph matters exposed to public view

25 includes the public’s right to photograph the exterior of federal buildings and facilities.”

26 (Mot. Prelim. Inj. 14.) Thus, Plaintiffs contend, Mr. Askins’ photos of the secondary

27 inspection area are protected under the right to photograph matters exposed to public

28 view. (Id.) This argument is unpersuasive because Mr. Askins was photographing the

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1

When Mr. Askins was confronted, he was photographing the interior of the

2 secondary vehicle inspection area at the port of entry. (Compl., ¶ 22; Decl. Askins, ¶

3 10.) The secondary vehicle inspection area is “among the most sensitive areas on a port

4 of entry.” (Decl. Whitford, ¶ 15.) In the secondary vehicle inspection area, “CBP

5 officers conduct border searches and assist with investigations of vehicles using sensitive

6 search techniques and technologies.” (Id.) “Visual documentation of these techniques

7 and technologies could assist drug traffickers and human smugglers in alluding

8 detection.” (Id.) Plaintiffs’ argument relies heavily on the presumption that Mr. Askins

9 was taking exterior photos. Indeed, Plaintiffs present no argument that a First

10 Amendment right to photograph the interior of federally owned facilities exists. Even

11 the FPS bulletin that Plaintiffs’ rely upon in their brief explicitly states that it does not

12 apply to photography of the interior of federal buildings. (FPS Info. Bulletin [Doc. 19-7]

13 2(emphasis in original).)

14

Plaintiffs also attempt to establish a “right to photograph the exterior of federal

15 buildings” by suggesting that “architectural photography” has “inherent First

16 Amendment value.” (Mot. Prelim. Inj. 14.) Even if the Bery or Leicester cases establish

17 that the First Amendment protects “architectural photography,” such a rule is

18 unhelpful to Plaintiffs as they fail to argue how either case stands for the proposition

19 that Mr. Askins has a right to photograph the interior of the secondary vehicle 20 inspection area. See Bery v. City of New York, 97 F.3d 689 (2nd Cir. 1996); Leicester

21 v. Warner Bros., 232 F.3d 1212, 1217 (9th Cir. 2000). Plaintiffs next argue that because these photos “served the purpose of discussing
22 and critiquing the environmental impact of exhaust emission from vehicles delayed at
23 the port of entry,” they are protected political speech under the First Amendment.
24 (Pls.’ Mot. Prelim. Inj., pp. 14-15.) However, none of the cases cited by Plaintiffs address
25 whether photographing the interior of sensitive government buildings is protected
26 political speech. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131
27 S. Ct. 2806 (2011)(finding Arizona’s matching funds scheme substantially burdens
28 political speech and is not sufficiently justified by a compelling interest to survive First

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1 Amendment scrutiny); Butterworth v. Smith, 494 U.S. 624, 632 (1990)(finding Florida

2 statute prohibiting witness from ever disclosing testimony given before grand jury

3 violates First Amendment insofar as it prohibits witness from disclosing own testimony

4 after grand jury’s term has ended); NAACP v. Clairborne Hardware Co., 458 U.S. 886,

5 913 (1982)(finding, inter alia, that a boycott which was not violent was constitutionally

6 protected).

7

Moreover, the Court is unimpressed by Plaintiffs’ attempt to categorize Mr.

8 Askins’ photographs as political speech. It is no secret that vehicles are delayed at land

9 ports of entry for hours at a time. Such delays may indeed negatively impact the

10 environment. However, Mr. Askins’ photographs do not document vehicle delays but

11 instead amount to surveillance of CBP officers, techniques, and technologies. (Supra,

12 10.) Thus, Plaintiffs cannot show that photographing the operational activities of CBP

13 officers inside the secondary inspection area constitutes political speech.

14

In light of the forgoing, the Court finds that Plaintiffs have failed to show that

15 citizens have a First Amendment right to photograph the interior portion of the

16 secondary inspection area at U.S. ports of entry. Therefore, Defendants have not

17 shown that they are likely to succeed on the merits of this line of argument. Thus, the

18 likelihood of success factor weighs heavily against granting an injunction.

19

20

B. Irreparable Harm

21

The second factor the Court considers is irreparable harm. Plaintiffs argue that

22 because they “likely will prevail on the merits of their First Amendment claims” they

23 will necessarily suffer irreparable harm. (Pls.’ Mot. Prelim. Inj., p. 21.)

24

“The loss of First Amendment freedoms, for even minimal periods of time,

25 unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373

26 (1976). However, a plaintiff who is less likely to succeed must produce a greater

27 showing of irreparable harm. Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005).

28

As previously stated, Plaintiffs have not established a likelihood of success that

CBP’s photography rules violate their First Amendment rights. See Hale v. Dep't of

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1 Energy, 806 F.2d 910, 918 (9th Cir. 1986)(holding “[a]bsent a First Amendment claim,

2 the appellants have failed to establish that irreparable harm will flow from a failure to

3 preliminarily enjoin defendants’ actions.”). Furthermore, Plaintiff Ramirez waited over

4 two years from the time of the alleged incident to file this lawsuit. (See Pls.’ Mot. Prelim.

5 Inj., p. 5.) Similarly, over six months passed between Askins’ incident and this lawsuit.

6 (See id., p. 2.) The passage of time implies a lack of necessity and weighs against

7 Plaintiff’s claim of irreparable harm. See Miller for & on Behalf of N.L.R.B. v.

8 California Pac. Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993)(“Plaintiff's long delay

9 before seeking a preliminary injunction implies a lack of urgency and irreparable

10 harm.”).

11

For these reasons, the Court finds that Plaintiffs have not met their heightened

12 burden to show irreparable harm. See Preminger, 422 F.3d at 826. Thus, this factor

13 weighs heavily against granting an injunction.

14

15

C. Balance of Equities & Public Interest

16

The third and fourth factors the Court considers are the balance of the equities

17 and public interest. Plaintiffs argue that they meet both elements, noting that the

18 analysis of these two elements often merge when the government is the opposing party.

19 (Pls.’ Mot. Prelim. Inj., p. 21(citing Nken v. Holder, 556 US 418, 435 (2009).)

20

When considering the necessity of a preliminary injunction, “the public interest

21 inquiry primarily addresses the impact on non-parties rather than parties.” Preminger,

22 422 F.3d at 826 (quoting Sammartano, 303 F.3d at 974 (9th Cir. 2002). “Generally,

23 public interest concerns are implicated when a constitutional right has been violated,

24 because all citizens have a stake in upholding the Constitution.” Id. The Court will not

25 grant a preliminary injunction based on one set of public interests “unless those public

26 interests outweigh other public interests that cut in favor of not issuing the injunction.”

27 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1138 (9th Cir. 2011).

28

Plaintiffs first contend that the public interest favors an injunction because “‘it

is always in the public interest to prevent the violation of a party’s constitutional

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1 rights.’” (Pls.’ Mot. Prelim. Inj., p. 21.) Further, Plaintiffs argue that “the public has a

2 specific interest in preserving the right to document CBP activities.” (Id.) However,

3 Plaintiffs have not shown that they are likely to establish a constitutional violation or

4 that citizens enjoy broad First Amendment protection to document all CBP “activities.”

5 (Id.)

6

In addition, Defendants persuasively argue that the rule restricting photography

7 serves important national and border security interests. (Opp’n, p. 30; Decl. Whitford,

8 ¶¶ 8-10.) Of particular import is the fact that granting an injunction would

9 compromise border security. (Decl. Whitford, ¶ 9.)

10

In light of the foregoing, Plaintiffs’ have not established that their First

11 Amendment concerns outweigh the public interests connected to border security.

12 Accordingly, this factor weighs against granting an injunction.

13

14 IV. CONCLUSION AND ORDER

15

For the reasons discussed above, the Court DENIES Plaintiffs’ motion for a

16 preliminary injunction [Doc. 19].

17

18

IT IS SO ORDERED.

19

20 DATED: April 12, 2013

21

22

23

24

Hon. Thomas J. Whelan

United States District Judge 25

26

27

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1 DAVID LOY (CA SBN 229235) davidloy@aclusandiego.org
2 MITRA EBADOLAHI (CA SBN 275157) mebadolahi@aclusandiego.org
3 SARAH THOMPSON (CA SBN 323188) sthompson@aclusandiego.org
4 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
5 P.O. Box 87131 San Diego, California 92138-7131
6 Telephone: 619.232.2121

7 DAVID P. GERSCH david.gersch@arnoldporter.com
8 R. STANTON JONES stanton.jones@arnoldporter.com
9 SARA MURPHY D’AMICO sara.d’amico@arnoldporter.com
10 ARNOLD & PORTER KAYE SCHOLER LLP
11 601 Massachusetts Avenue, NW Washington, DC 20001
12 Telephone: 202.942.5000

13 Attorneys for Plaintiffs RAY ASKINS AND CHRISTIAN RAMIREZ
14

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17

18 RAY ASKINS and

Case No. 3:12-cv-02600-W-BLM

CHRISTIAN RAMIREZ,

19

Plaintiffs,

SECOND AMENDED

v.

COMPLAINT FOR

20 UNITED STATES DEPARTMENT DECLARATORY AND

OF HOMELAND SECURITY;

INJUNCTIVE RELIEF

21 GENERAL SERVICES

ADMINISTRATION;

22 FEDERAL PROTECTIVE SERVICE;

JOHN P. SANDERS, Acting

23 Commissioner of United States

Customs and Border Protection;

24 EMILY W. MURPHY, Administrator

of the General Services Administration;

25 L. ERIC PATTERSON, Director of the

Federal Protective Service; DAVID A.

26 SALAZAR, Director, Calexico Port of

Entry; SIDNEY K. AKI, Director, San

27 Ysidro & Otay Mesa Ports of Entry,

Defendants.

28

Case 3:12-cv-02600-W-AHG Document 108 Filed 06/10/19 PageID.1175 Page 2 of 28

1 Plaintiffs Ray Askins and Christian Ramirez (collectively, “Plaintiffs”) bring
2 this First Amendment action against the U.S. Department of Homeland Security, the
3 General Services Administration, the Federal Protective Service, and, in their official
4 capacities, U.S. Customs and Border Protection Acting Commissioner John P.
5 Sanders, Administrator of the General Services Administration Emily W. Murphy,
6 Director of the Federal Protective Service L. Eric Patterson, Calexico Port Director
7 David Salazar, and San Ysidro Port Director Sidney Aki (collectively,
8 “Defendants”), and allege as follows.
9 NATURE OF THE ACTION
10 1. This is a civil rights action to remedy violations of Plaintiffs’ First
11 Amendment rights by Defendants, including officers and agents of U.S. Customs and
12 Border Protection (“CBP”), an agency within the U.S. Department of Homeland
13 Security (“DHS”).
14 2. The right to gather, receive, record, and disseminate information is
15 grounded in the Free Speech Clause of the First Amendment. This right is further
16 grounded in the Petition Clause of the First Amendment (if the purpose of gathering,
17 receiving, or recording the information is to use it to petition the government for
18 redress of grievances), and the Free Press Clause of the First Amendment (if the
19 purpose of gathering, receiving, or recording the information is to publish and
20 disseminate it to other people).
21 3. The First Amendment guarantees the right to take photographs of and
22 otherwise record law enforcement officers engaged in the public discharge of their
23 duties and other matters or events exposed to public view. For convenience, the terms
24 “photograph” and “photography” as used in this Complaint encompass all forms of
25 recording matters or events, including but not limited to still photography and video
26 recording.
27

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1 4. The public has a significant interest in monitoring and recording
2 government officials at ports of entry, including CBP officers and their agents, “who
3 are granted substantial discretion that may be misused to deprive individuals of their
4 liberties.” Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).
5 5. CBP routinely and consistently denies public access to basic
6 information about its operations, including whether officers engaged in misconduct
7 are disciplined in any way, thus shielding both the agency and individual officials
8 from public accountability for abusive policies and practices. See, e.g., Fernanda
9 Santos, Border Patrol Accused of Profiling and Abuse, N.Y. TIMES, Oct. 14, 2015,
10 available at http://nyti.ms/1GeW0E7; Garrett M. Graff, The Green Monster: How
11 the Border Patrol Became America’s Most Out-of-Control Law Enforcement Agency,
12 POLITICO, Nov./Dec. 2014, available at http://politi.co/1tlB4CS; Carrie Johnson,
13 Former Border Protection Insider Alleges Corruption, Distortion in Agency, NAT’L
14 PUB. RADIO, Aug. 28, 2014, available at http://n.pr/1wGGPdv; see also AMERICAN
15 IMMIGRATION COUNCIL, NO ACTION TAKEN: LACK OF CBP ACCOUNTABILITY IN
16 RESPONDING TO COMPLAINTS OF ABUSE (2014), available at http://bit.ly/SwNbye.
17 6. In recent years, the physical abuse of persons at or near the border by
18 CBP has been rampant. See, e.g., Joseph Tanfani, et al., Special Report: How Tasers
19 Became Instruments of Excessive Force for the Border Patrol, L.A. TIMES, Oct. 30,
20 2015, available at http://lat.ms/1M5U2GF. Such abuse has further fueled the public’s
21 interest in monitoring and recording public actions of CBP officials at ports of entry.
22 For example, CBP officials’ excessive use of force has resulted in a record number
23 of deaths, including the deaths of U.S. citizens and lawful permanent residents. See,
24 e.g., Brian Bennett, Border Patrol Absolves Itself In Dozens of Cases of Lethal Force,
25 L.A. TIMES, June 15, 2015, available at http://lat.ms/1Xxf3hA; Charles Davis, U.S.
26 Customs and Border Protection Has Killed Nearly 50 People in 10 Years. Most Were
27 Unarmed. And Not One Officer Has Been Disciplined. NEW REPUBLIC, Jan. 4, 2015,
28

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1 available at http://bit.ly/1BBYcyn. In view of CBP’s unwillingness or inability to
2 timely discipline officials for misconduct and abuse, the importance of public access
3 to information regarding CBP’s actions cannot be overstated.
4 7. Along the U.S.-Mexico border, DHS either owns or leases from other
5 federal government agencies large swaths of property, including ports of entry and
6 areas surrounding ports of entry. For convenience, the terms “port of entry” or “port
7 of entry property” as used in this Complaint encompass all such property, whether
8 owned or leased by DHS and/or CBP, to which Defendants assert their photography
9 policies, described below, apply.
10 8. CBP has a national policy that it asserts prohibits photography on any
11 port of entry property without advance official permission. See U.S. Customs and
12 Border Protection, Office of Public Affairs, Roles, Functions and Responsibilities,
13 CBP Directive No. 5410-001B (Mar. 18, 2009) (attached as Exhibit A) (hereinafter
14 “Policy”).
15 9. According to the Policy, authorization of photography “at CBP facilities
16 shall be made in consultation with the appropriate Public Affairs Specialist and with
17 the concurrence and control of the appropriate CBP supervisor.” Id. at Part 6.2.3. The
18 Policy contains no standards or criteria limiting CBP officials’ discretion to grant or
19 deny permission to take photographs on port of entry property. On its face, the Policy
20 covers only “the media.”
21 10. Likewise, CBP’s media “ground rules” for “Southern California ports
22 of entry”—which Defendants apply to photography by any person in the areas at
23 issue in this action—purportedly require individuals to obtain advance authorization
24 from CBP officials in order to take photographs on any port of entry property. See
25 U.S. Customs and Border Protection, Ground Rules for News Media Representatives
26 When Visiting Southern California Ports of Entry (attached as Exhibit B) (hereinafter
27 “Ground Rules”). The Ground Rules contain no standards or criteria limiting CBP
28

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1 officials’ discretion to grant or deny permission to take photographs on port of entry
2 property. In addition, like the Policy, the Ground Rules on their face cover only
3 “news media representatives.”
4 11. The Policy and Ground Rules are currently in effect and were in effect
5 at all times relevant to this action.
6 12. Other authorities relied upon by Defendants to exclude photography at
7 federal ports of entry include 41 C.F.R. § 102-74.420; Part 11.19 of CBP’s Security
8 Policy and Procedures, HB 1400-02B (August 13, 2009); DHS’s Instruction of the
9 Participation of DHS with Film and Television Productions, DHS Directives System
10 Instruction No. 109-01-001; and 41 C.F.R. §§ 102-74.370, 102-74.380, 102-74.385,
11 and 102-74.390.
12 13. Both individually and taken together, Defendants’ interpretation and
13 enforcement of the above-mentioned policies and procedures violate the First
14 Amendment by (a) conferring unlimited discretion upon CBP officials to grant or
15 deny permission to take photographs on port of entry property, including areas of that
16 property that constitute a traditional public forum, and (b) unreasonably restricting
17 the right to take photographs of matters or events exposed to public view from
18 exterior or outdoor areas of port of entry property, including areas of that property
19 that constitute a traditional public forum.
20 14. Defendants and/or their agents violated Plaintiff Ray Askins’s First
21 Amendment rights by directing him to cease taking photographs of the exterior of the
22 Calexico West port of entry building from a location outside that building, and by
23 erasing all but one of the photographs he did take of said exterior.
24 15. Defendants and/or their agents violated Plaintiff Christian Ramirez’s
25 First Amendment rights by directing him to cease taking photographs of matters and
26 events exposed to public view in outdoor areas of the San Ysidro port of entry, and
27 by erasing all of the photographs he did take of said events.
28

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1 16. As interpreted and enforced by Defendants, the above-mentioned
2 policies and procedures unconstitutionally prevent Mr. Askins and Mr. Ramirez from
3 freely exercising their First Amendment rights to photograph and record matters and
4 events exposed to public view from exterior or outdoor areas of CBP ports of entry.
5 17. Plaintiffs’ cases are not unique. Defendants and/or their agents
6 frequently deter or prevent individuals from documenting potential misconduct by
7 CBP officers and other matters of public interest, and destroy photo or video evidence
8 of the same.
9 18. As interpreted and enforced by Defendants, therefore, the above-
10 mentioned policies and procedures chill and deter reasonable persons from exercising
11 their First Amendment rights to photograph and record matters exposed to public
12 view from exterior or outdoor areas of CBP ports of entry.
13 19. Perhaps the most well-known recent example of this unconstitutional
14 interference occurred in May 2010, when CBP officers confronted individuals who
15 captured video footage of the government’s lethal beating of Anastasio Hernandez
16 Rojas at the San Ysidro port of entry. CBP officers demanded that some of these
17 eyewitnesses hand over their cell phones or delete the video they had just recorded
18 of the incident. See, e.g., R. Stickney, Judge Clears Way for Family’s Civil Suit in
19 Border Beating Death, NBC SAN DIEGO, Oct. 7, 2014, available at
20 http://bit.ly/1MSRJYl (noting that, when members of the public gathered to record
21 the fatal beating of Hernandez Rojas, one federal officer confiscated witness cell
22 phones and erased images and videos recorded thereupon); Cristina Costantini &
23 Elise Foley, Anastasio Hernandez-Rojas Death: Border Patrol Tasing Incident
24 Complicated by New Footage (VIDEO), HUFFINGTON POST (updated Apr. 24, 2012,
25 12:40 PM EDT), http://huff.to/1jzwlfu.
26 20. After eyewitness videos of Hernandez Rojas’s brutal beating surfaced,
27 sixteen members of Congress sent a letter to CBP seeking information about the
28

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1 agency’s use-of-force policies and internal investigation protocols. See Press
2 Release, Congressman José E. Serrano, Sixteen Members of Congress Call for
3 Justice in Hernandez-Rojas Case (May 10, 2012), available at
4 https://bit.ly/1HvbeQE. Subsequent public pressure led CBP to undertake a three-
5 pronged review of its use-of-force policies and, ultimately, to release those policies
6 to the public. See, e.g., Adrian Carrasquillo, Border Patrol Finally Releases Report
7 Critical of Use of Deadly Force, BUZZFEED NEWS (May 30, 2014, 1:25 PM PST),
8 http://bzfd.it/1PSKkcv.
9 21. Plaintiffs seek declaratory and injunctive relief to protect their First
10 Amendment rights. Specifically, Plaintiffs seek a declaration that Defendants are
11 violating the First Amendment by (a) asserting unlimited discretion to grant or deny
12 permission to photograph and (b) unreasonably prohibiting photography of matters
13 or events exposed to public view from exterior or outdoor areas of ports of entry.
14 Plaintiffs also seek an injunction prohibiting Defendants from preventing Plaintiffs
15 from photographing matters or events exposed to public view from exterior or
16 outdoor areas of ports of entry.
17 THE PARTIES
18 22. Plaintiff Ray Askins is, and at all relevant times was, a citizen of the
19 United States. Since at least 2008, Mr. Askins has researched environmental health
20 hazards in Imperial County and, in particular, in Calexico along the U.S.-Mexico
21 border. He has also served on the Imperial-Mexicali Air Quality Task Force since at
22 least 2009.
23 23. Plaintiff Christian Ramirez is, and at all relevant times was, a citizen of
24 the United States. He is the statewide policy director for the Service Employees
25 International Union (SEIU) United Service Workers West (USWW). Previously, he
26 served as the Human Rights Director for Alliance San Diego, an organization focused
27 on building coalitions to promote social justice and social change. He also served as
28

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1 the Director of the Southern Border Communities Coalition, which brings together
2 more than sixty organizations reaching from San Diego, California to Brownsville,
3 Texas to promote policies and solutions that improve the quality of life in border
4 communities.
5 24. Defendant U.S. Department of Homeland Security is an executive
6 department of the United States.
7 25. U.S. Customs and Border Protection is an agency within DHS. The
8 agency employs more than 60,000 individuals and is one of the world’s largest law
9 enforcement organizations.
10 26. Defendant General Services Administration is an independent agency of
11 the United States government.
12 27. Defendant Federal Protective Service is a federal agency tasked with
13 providing security and law enforcement services to GSA-owned and leased
14 properties.
15 28. Defendant John P. Sanders is Acting Commissioner of CBP. He is sued
16 here in his official capacity.
17 29. Defendant Emily W. Murphy is Administrator of the General Services
18 Administration. She is sued here in her official capacity.
19 30. Defendant L. Eric Patterson is Director of the Federal Protective
20 Service. He is sued here in his official capacity.
21 31. Defendant David Salazar is Director of the Calexico port of entry. He is
22 sued here in his official capacity.
23 32. Defendant Sidney Aki is Director of the San Ysidro and Otay Mesa ports
24 of entry. He is sued here in his official capacity.
25 33. Plaintiffs seek declaratory and injunctive relief against each Defendant,
26 as well as each Defendant’s agents, assistants, successors, employees, attorneys, and
27

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1 all persons acting in concert or cooperation with any of them or at the direction or
2 under the control of any of them.
3 JURISDICTION AND VENUE
4 34. The Court has jurisdiction under 28 U.S.C. § 1331 because Defendants
5 are acting on behalf of the United States and this action arises under the First
6 Amendment to the United States Constitution.
7 35. The Court may grant declaratory and injunctive relief for the
8 constitutional violations alleged here pursuant to 5 U.S.C. § 702, which waives the
9 sovereign immunity of the United States for relief other than money damages; 28
10 U.S.C. § 2201; and/or Federal Rules of Civil Procedure 57 and 65.
11 36. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)
12 and (e), because the events that give rise to this action occurred within this district,
13 and because one or more of the Defendants reside in this district.
14 FACTS
15 A. PLAINTIFF RAY ASKINS
16 I. PERSONAL AND PROFESSIONAL BACKGROUND
17 37. Mr. Askins is a U.S. citizen living primarily in Mexicali, Baja
18 California, Mexico. He retired from his job as an insurance broker in November 2001.
19 Nowadays, he travels frequently to the United States, often to attend governmental
20 and policy meetings in Imperial County. He usually crosses into the United States
21 through the Calexico West port of entry.
22 38. Mr. Askins is deeply concerned with environmental and environmental
23 health issues affecting the U.S.-Mexico border region generally and Imperial County
24 in particular. He himself suffers from chronic obstructive pulmonary disease, a
25 progressive disease which makes it difficult for him to breathe.
26 39. Imperial County and its constituent communities, including the City of
27 Calexico, suffer from high rates of poverty and pollution, which together contribute
28

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1 to significant public health and environmental problems. See, e.g., Tony Perry,
2 Deepening Woes for the Imperial Valley, L.A. TIMES, Apr. 27, 2009, available at
3 http://lat.ms/1N9Q1xp (detailing historic, persistent poverty and environmental
4 pollution afflicting Imperial County).
5 40. A higher proportion of Imperial County residents live at or below the
6 federal poverty level compared to other California counties, which, according to the
7 county’s Community and Economic Development Department, means that residents
8 “face many challenges in meeting basic health needs.” See U.S. CENSUS BUREAU,
9 STATE & COUNTY QUICK FACTS: IMPERIAL COUNTY, https://bit.ly/2YGfUCz (last
10 visited May 19, 2019); IMPERIAL CNTY. CMTY. & ECON. DEV. DEP’T,
11 COMPREHENSIVE ECONOMIC DEVELOPMENT STRATEGY 2014–2015 ANNUAL UPDATE
12 25 (2015), available at https://bit.ly/2WTnWr8 (hereinafter “CEDS 2014–15”).
13 “Much of Imperial County is designated as a medically underserved area.” CEDS
14 2014–15 at 25.
15 41. According to the California Department of Public Health, Imperial
16 County’s poor air quality, combined with many residents’ lack of access to primary
17 health care providers, have contributed to very high rates of asthma in the area. See
18 Patricia Leah Brown, The Air is Dark and Asthma is Deadly Along the Mexico
19 Border, REVEAL: CTR. FOR INVESTIGATIVE REPORTING, Apr. 21, 2015, available at
20 http://bit.ly/1XxwSgv. A recent study by a San Diego State University environmental
21 health professor found “that diesel and gasoline from Mexicali, Mexico, most likely
22 from idling vehicles at the border crossing, is the No. 1 source of particulate matter
23 in Calexico, California, increasing in intensity when the wind blows into the Imperial
24 Valley from the south.” Id. Calexico residents are exposed to high levels of harmful
25 particulate matters in the air; the highest levels, and the most destructive particulates,
26 are found near the border crossing, through which more than seven million trucks
27 and passenger vehicles commute annually. Id.
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1 42. Health experts have long acknowledged a link between high-traffic
2 areas and asthma severity. See, e.g., YING-YING MENG, ET AL., UCLA HEALTH
3 POLICY RESEARCH BRIEF: LIVING NEAR HEAVY TRAFFIC INCREASES ASTHMA
4 SEVERITY 1 (2006), available at http://bit.ly/1S83ABS. For adults with asthma,
5 medium to high traffic exposure has been found to increase the likelihood of chronic
6 symptoms by approximately forty to eighty percent. Id. Latino children with asthma
7 are nearly two-and-a-half times more likely than White children to live near high-
8 traffic areas. Id. at 4.
9 43. Hospitalization rates for asthma in Imperial County are among the
10 highest in the state, especially for children. Whereas the rate of emergency hospital
11 visits for asthma in California as a whole is 46.1 per 10,000 residents, in Imperial
12 County, it is more than double: 91.0 per 10,000 residents. CEDS 2014–2015 at 26;
13 see also, e.g., Anna Gorman, Imperial County Leads State in Treatment of Children
14 with Asthma, L.A. TIMES, July 16, 2012, available at http://lat.ms/1Nmo7AT.
15 44. Mr. Askins’s environmental advocacy work involves extensive
16 research, investigation, and analysis of CBP border activities, including in particular
17 activities at or near U.S.-Mexico ports of entry. He is especially interested in how
18 emissions from idling vehicles awaiting primary or secondary inspection at the ports
19 of entry contribute to environmental pollution and health problems in Imperial
20 County and Mexicali.
21 45. For several years, beginning in 2008, Mr. Askins maintained and
22 contributed regularly to a blog (now defunct) that addressed environmental issues
23 and human rights abuses in the U.S.-Mexico border region.
24 46. Since at least March 2008, Mr. Askins has contributed to or co-authored
25 numerous reports relating to the environmental consequences of law enforcement
26 activities at or near U.S.-Mexico ports of entry.
27

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1 47. Mr. Askins has submitted various environmental bulletins and reports

2 based on his research to public officials, including: (a) members of the U.S.

3 Environmental Protection Agency; (b) the Imperial County Board of Supervisors;

4 and (c) Bob Filner, during his tenure as U.S. Representative for California’s 51st

5 congressional district, which includes all of Imperial County and the southern

6 portions of San Diego County.

7 48. Since at least 2009, Mr. Askins has served on the Imperial-Mexicali Air

8 Quality Task Force.

9 49. In April 2014, Dr. Paul English, MPH, Ph.D., invited Mr. Askins to join

10 the Imperial County Community Air Monitoring Project of the California

11 Environmental Health Tracking Program. As a member of this project, Mr. Askins

12 has worked in a team to place forty air quality monitors throughout Imperial County,

13 including one such monitor near the Calexico West port of entry.

14 II. 2012 INCIDENT
15 50. In the spring of 2012, Mr. Askins was preparing a presentation for a

16 conference entitled “Health Impacts of Border Crossings,” which was scheduled for

17 May 3 and 4, 2012 in San Ysidro, California.

18 51. The conference was funded by the Southwest Consortium on

19 Environmental Research and Policy, through a cooperative agreement with the U.S.

20 Environmental Protection Agency. Conference organizers described the event as one

21 that

22

focused on local health impacts of the U.S.-Mexico border. The

23

emphasis was on avenues for reduction of exposures to traffic pollutants

experienced by people crossing the border at the U.S.-Mexico Ports of

24

Entry, workers and the community on both sides of the border. The

25

conference included participation of researchers and stakeholders from

the San Diego-Tijuana region and other areas along the U.S.-Mexico

26

border with similar issues.

27 Exhibit C (Health Impacts of Border Crossings Conference 2012).

28

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1 52. To prepare for a presentation at this conference, Mr. Askins planned to
2 visit the Calexico West port of entry. Specifically, Mr. Askins intended to photograph
3 the secondary vehicle inspection area of the port of entry to demonstrate that CBP
4 did not make full and proper use of this area, leading to longer delays and,
5 consequently, more emissions pollution from vehicles waiting to cross the border.
6 53. On or about April 18, 2012, Mr. Askins contacted CBP Officer John
7 Campos by phone and requested permission to take three or four photographs inside
8 the secondary inspection area at the Calexico port of entry the next day. Officer
9 Campos said that this would be inconvenient, but otherwise did not object to the
10 request.
11 54. On or about April 19, 2012, Mr. Askins called Officer Campos to follow
12 up. When Officer Campos did not answer, Mr. Askins left a voicemail message
13 stating that, instead of taking photographs inside the Calexico port of entry building,
14 Mr. Askins would stand on the street outside that building and take photographs of
15 the exit of the secondary inspection area.
16 55. On or about April 19, 2012, at approximately 3:10 p.m., Mr. Askins was
17 standing near the shoulder of a public street in Calexico, California, approximately
18 fifty to 100 feet from the exit from the secondary inspection area at the Calexico West
19 port of entry. More precisely, Mr. Askins was standing near the shoulder of the public
20 street at the intersection of First Street and Paulin Avenue.
21 56. Immediately behind Mr. Askins was the Genaro Teco Monroy
22 Memorial International Border Friendship Park, a small public park with grass lawns
23 and concrete benches overlooking the Calexico West port of entry secondary
24 inspection area.
25 57. Both the public street and the park are public forums open to speech and
26 expressive activity by tradition and past usage. Upon information and belief,
27

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1 Defendants consider some or all of these areas to be part of the Calexico West port
2 of entry.
3 58. From this vantage point, outdoors and outside any port of entry building
4 or structure, Mr. Askins took three or four photographs of the exit of the secondary
5 inspection area, including the following photograph:
6

7

8

9

10

11

12

13

14

15

16

17

59. While taking these photographs, Mr. Askins was not engaged in any

18 form of commercial speech or activity. Mr. Askins took these photographs for

19 political and/or other non-commercial purposes.

20

60. The building exterior photographed by Mr. Askins was exposed to

21 public view from exterior and outdoor areas of both port of entry property and

22 adjacent property.

23

61. Additionally, when taking these photographs, Mr. Askins was not

24 engaged in the act of crossing the border. Rather, Mr. Askins was standing outdoors

25 on the U.S. side of the border when taking the photographs.

26

27

28

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1 62. Shortly after Mr. Askins took the photographs, a number of male CBP
2 officers approached him. One or two of the officers demanded that Mr. Askins delete
3 the photographs. Mr. Askins stated that he would not do so.
4 63. One or more of the CBP officers then stated that they would smash Mr.
5 Askins’s camera if he did not delete the photographs. Mr. Askins again declined to
6 delete the photographs, explaining that they were his property.
7 64. One or more of these officers then handcuffed Mr. Askins from behind
8 and took his camera, passport, car keys, and hat.
9 65. Throughout this encounter, the CBP officers spoke to Mr. Askins in an
10 aggressive and threatening manner, despite the fact that Mr. Askins at no point posed
11 a threat to the safety of the officers and at no point actively resisted arrest.
12 Furthermore, Mr. Askins committed no crime and took no actions giving rise to a
13 reasonable suspicion or probable cause that he had committed or was about to commit
14 a crime under any law that could constitutionally have been applied to him. To the
15 extent Mr. Askins may have violated any law making his photography illegal, that
16 law is unconstitutional as applied to him.
17 66. After Mr. Askins was handcuffed and his possessions taken, one officer
18 forcefully led him into a small room inside the secondary inspection area, holding
19 Mr. Askins’s right arm in a tight grip that caused significant pain and bruising on the
20 inside of Mr. Askins’s arm. The officer told Mr. Askins to sit down. Mr. Askins was
21 not free to leave the room.
22 67. After about twenty minutes, the same officer led Mr. Askins to a
23 separate room, where he subjected Mr. Askins to an invasive and embarrassing
24 physical search. During the search, Mr. Askins remained clothed while the officer
25 used his hands to pat Mr. Askins’s entire body. Mr. Askins felt that he was being
26 groped, and experienced particular discomfort when the officer unnecessarily
27 squeezed and touched Mr. Askins’s groin area several times.
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1 68. One or more CBP officers then told Mr. Askins that he was free to go
2 and returned his belongings, and one officer escorted him to the exit. From the
3 moment CBP officers first detained Mr. Askins to the moment they told him he was
4 free to go, approximately twenty-five to thirty-five minutes elapsed. The officers had
5 no warrant or other constitutional justification for the search and/or seizure of Mr.
6 Askins’s person or property.
7 69. When Mr. Askins later scrolled through the pictures on his digital
8 camera, he discovered that all but one of the photographs he just had taken of the port
9 of entry had been deleted.
10 70. On April 20, 2012, Mr. Askins sent a letter of complaint to then-Port
11 Director Billy Whitford regarding the April 19 incident. That same day, Director
12 Whitford responded in writing, stating:
13

14

In response to the issues raised in your complaint, the area in question is currently under the jurisdiction of GSA [(General Services

15

Administration)] and CBP. CBP security policies prohibit visitors at

16

CBP-controlled facilities from using cameras and video recording devices without the prior approval from the senior CBP official (Port

17

Director or designee).

18

The officer perceived your actions as a security violation and detained you briefly until a supervisor was contacted and it was

19

determined that you posed no threat to the facility, the public, or the

20

officers. I regret that this incident occurred and hope that all officers conducted themselves in a professional manner at all times.

21 See Exhibit D (Email from Billy B. Whitford to Ray Askins (Apr. 20, 2012)).

22

III. NECESSITY OF AND ENTITLEMENT TO INJUNCTIVE

23

RELIEF

24

71. Mr. Askins wants to continue photographing matters and events

25 exposed to public view from outdoor and exterior areas of the Calexico port of entry,

26 including but not limited to the specific area in which he was standing at the time of

27 the above incident. As a result of his experience and in light of Defendants’

28 interpretation and enforcement of above-mentioned policies and procedures,

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1 however, Mr. Askins has a reasonable fear that if he does continue such photography,
2 he will again be subject to interference by Defendants and/or their agents. Such
3 interference may include Mr. Askins’s detention or arrest and the loss of his personal
4 property, such as his camera and photographs.
5 72. Mr. Askins seeks to photograph and record matters and events exposed
6 to public view in the area immediately surrounding the Calexico port of entry
7 building, including vehicular traffic and CBP officers engaged in the public discharge
8 of their duties, in order to document air and other environmental pollution as well as
9 human rights abuses.
10 73. Unless enjoined by this Court, Defendants can and will continue to
11 interpret and enforce the above-mentioned policies and procedures to prohibit Mr.
12 Askins from photographing matters and events exposed to public view from outdoor
13 or exterior areas of the Calexico port of entry, including vehicular traffic and CBP
14 officers engaged in the public discharge of their duties.
15 74. As a result of Defendants’ interpretation and enforcement of the above-
16 mentioned policies and procedures, Mr. Askins has been chilled, hindered, deterred,
17 and prevented from freely exercising his First Amendment right to photograph
18 matters and events exposed to public view from outdoor or exterior areas of the
19 Calexico port of entry, including vehicular traffic and CBP officers engaged in the
20 public discharge of their duties.
21 75. Mr. Askins is thus suffering, and will continue to suffer, irreparable
22 harm as a result of the violation of his First Amendment rights.
23 76. Mr. Askins has no adequate remedy at law.
24

25

26

27

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1 B. PLAINTIFF CHRISTIAN RAMIREZ
2 I. PERSONAL AND PROFESSIONAL BACKGROUND
3 77. Mr. Ramirez is a U.S. citizen living in San Diego, California. He is a
4 nationally-recognized border policy advocate and a leading expert on border-related
5 civil and human rights abuses.
6 78. Mr. Ramirez regularly travels to the U.S.-Mexico border, both to visit
7 family members living in Mexico and to observe law enforcement activity and
8 monitor human rights issues. He does this not only for work but also out of a sense
9 of personal responsibility as a lifelong member of the border community.
10 79. The San Ysidro port of entry is the busiest land port in the Western
11 Hemisphere. See, e.g., U.S. General Services Administration, San Ysidro Port of
12 Entry, https://bit.ly/2VOEaFi (last visited May 19, 2019). An estimated 20,000
13 northbound pedestrians cross from Mexico into the United States through the San
14 Ysidro port of entry each day. Id.
15 80. As explained, the incidence of civil and human rights violations along
16 the U.S.-Mexico border, including at or near the San Ysidro port of entry, and the
17 lack of CBP accountability for such abuses, are matters of grave public concern.
18 81. Members of the public, like Mr. Ramirez, seek to document CBP
19 activity at or near the San Ysidro port of entry to safeguard against civil and human
20 rights abuses, including excessive use of force and racial profiling.
21 II. 2010 INCIDENT
22 82. On June 20, 2010—Father’s Day—Mr. Ramirez and his wife crossed
23 the border into Mexico to visit his father. They parked on the U.S. side of the border
24 and walked into Mexico through the pedestrian entrance at San Ysidro.
25 83. Mr. Ramirez and his wife returned to the United States the same
26 afternoon. They passed through primary inspection at the San Ysidro port of entry
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1 without incident. Once inside the United States, they walked toward their vehicle,
2 crossing a pedestrian bridge that passed over the southbound lanes of Interstate 5.
3 84. While crossing this pedestrian bridge, Mr. Ramirez noticed that women
4 were being inspected and patted down by male CBP officers at a southbound security
5 checkpoint below him. The officers appeared to be pulling aside only women for
6 inspection.
7 85. Mr. Ramirez observed the checkpoint for approximately ten to fifteen
8 minutes. During that time he took approximately ten photographs using his cell phone
9 camera, out of concern that the CBP officers might have been acting inappropriately.
10 86. While taking these photographs, Mr. Ramirez was not engaged in any
11 form of commercial speech or activity. Mr. Ramirez took these photographs for
12 political and/or other non-commercial purposes.
13 87. Additionally, when taking these photographs, Mr. Ramirez was not
14 engaged in the act of crossing the border, nor was he inside any port of entry building.
15 Rather, Mr. Ramirez was standing outdoors on the U.S. side of the border when
16 taking the photographs.
17 88. The events and individuals photographed by Mr. Ramirez were exposed
18 to public view in exterior and outdoor areas of the San Ysidro port of entry property.
19 89. While observing the checkpoint, Mr. Ramirez and his wife were
20 approached by two men who appeared to be private security officers.
21 90. One of the private security officers asked for Mr. Ramirez’s personal
22 identification documents. Mr. Ramirez explained that he and his wife had already
23 passed through inspection and declined to hand over his documents again.
24 91. One of the private security officers then ordered Mr. Ramirez to stop
25 taking photographs. Mr. Ramirez refused and took a picture of the private security
26 officer. Acting aggressively, the private security officer attempted to grab Mr.
27 Ramirez.
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1 92. Mr. Ramirez stopped taking photographs and said “let’s go” to his wife;
2 the two began to descend from the pedestrian bridge. The private security officers,
3 whom Mr. Ramirez heard make a radio call for backup, followed them.
4 93. At the bottom of the pedestrian bridge, approximately five to seven CBP
5 officers were waiting. They asked whether and why Mr. Ramirez had taken any
6 photographs. Mr. Ramirez responded that he had taken photographs because he had
7 witnessed what he believed to be inappropriate activity by CBP officers at the
8 checkpoint—namely, the patting down of women by male officers.
9 94. The CBP officers at the bottom of the bridge asked Mr. Ramirez to turn
10 over his phone. Mr. Ramirez refused and explained that he was willing only to show
11 them the photographs.
12 95. An officer in plain clothes, who later identified himself as a U.S.
13 Immigration and Customs Enforcement (“ICE”) officer, confronted Mr. Ramirez and
14 asked for Mr. Ramirez’s personal identification documents. Mr. Ramirez refused to
15 turn over his documents and explained that he and his wife had already been
16 inspected.
17 96. The ICE officer then said to Mr. Ramirez, “Give me one other reason to
18 take you down.” He took Mr. Ramirez’s and Mr. Ramirez’s wife’s passports out of
19 Mr. Ramirez’s shirt pocket, without Mr. Ramirez’s consent, and went to a nearby
20 office.
21 97. A CBP officer then confiscated Mr. Ramirez’s cell phone, again without
22 Mr. Ramirez’s consent, and scrolled through the photographs. As he did so, the
23 officer made comments about Mr. Ramirez’s personal pictures.
24 98. The CBP officer eventually found the photographs Mr. Ramirez had
25 taken from the pedestrian bridge. The officer then proceeded to delete these images,
26 without Mr. Ramirez’s consent. After deleting the photographs, the CBP officer
27 returned the cell phone to Mr. Ramirez.
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1 99. When Mr. Ramirez later looked through the contents of his cell phone,
2 he confirmed that the CBP officer had deleted all of the photographs that Mr. Ramirez
3 had just taken, without Mr. Ramirez’s consent or permission.
4 100. Throughout this encounter, which lasted ten to fifteen minutes after Mr.
5 Ramirez and his wife had reached the bottom of the pedestrian bridge, Mr. Ramirez
6 and his wife were separated from each other by CBP officers. The officers essentially
7 created a buffer area around Mr. Ramirez while they questioned him and took his cell
8 phone.
9 101. Moreover, the officers spoke to Mr. Ramirez in an aggressive and
10 threatening manner throughout this encounter, despite the fact that Mr. Ramirez at
11 no point posed a threat to the safety of the officers and at no point actively resisted
12 arrest. Furthermore, Mr. Ramirez committed no crime and took no actions giving rise
13 to a reasonable suspicion or probable cause that he had committed or was about to
14 commit a crime under any law that could constitutionally have been applied to him.
15 To the extent Mr. Ramirez may have violated any law making his photography
16 illegal, that law is unconstitutional as applied to him.
17 102. Approximately ten to fifteen minutes after confiscating the passports,
18 the ICE agent returned with the documents and gave them back to Mr. Ramirez. Mr.
19 Ramirez and his wife were then allowed to continue on their way.
20 103. Neither Mr. Ramirez nor his wife felt free to leave at any point during
21 this encounter. The officers had no warrant or other constitutional justification for
22 the search and/or seizure of Mr. Ramirez’s person or property.
23 III. RECONSTRUCTION OF SAN YSIDRO PORT OF ENTRY
24 104. In or around late 2007, a three-phase, multi-million dollar project
25 commenced to reconstruct the San Ysidro port of entry. See GSA Fact Sheet:
26 Reconfiguration and Expansion of the Existing Port of Entry (Sept. 2007), available
27 at https://bit.ly/2YENxV1 (last visited on May 19, 2019). The project was expected
28

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1 to be completed by Summer 2016. See U.S. General Services Administration, San
2 Ysidro Port of Entry, https://bit.ly/2VOEaFi (last visited May 19, 2019). It is still not
3 completed as of this date.
4 105. As part of this project, the old pedestrian bridge connecting the United
5 States to Mexico, upon which Mr. Ramirez was standing at the time of the 2010
6 incident, has been decommissioned.
7 106. In 2011, a new pedestrian bridge replaced the old bridge.
8 107. The new bridge runs east to west on the U.S. side of the border,
9 connecting the transit plaza on San Ysidro Boulevard to the east and Camiones Way
10 to the west. Like the old bridge, the new bridge passes over Interstate 5. See Elizabeth
11 Aguilera, San Ysidro’s New Pedestrian Bridge Opens Friday, SAN DIEGO UNION
12 TRIBUNE, Apr. 14, 2011, available at http://bit.ly/1OSWzEY.
13 108. The bridge is open to and used by the public to cross over Interstate 5.
14 It does not connect to the border crossing or any port of entry building or edifice;
15 members of the public can and do frequently cross the bridge without crossing the
16 border or entering or exiting any port of entry building.
17 109. The outdoor vehicle inspection areas where CBP officers conduct
18 primary and secondary inspections are visible from this new bridge, as are portions
19 of the City of San Diego and United States to the north and City of Tijuana and
20 Mexico to the south.
21 110. Under the current configuration of the San Ysidro port of entry, Mr.
22 Ramirez wishes to exercise his First Amendment rights to photograph and otherwise
23 record matters exposed to public view, including CBP officers engaged in the public
24 discharge of their duties, in but not limited to the following outdoor areas:
25 (a) The transit plaza on San Ysidro Boulevard and adjacent sidewalk.
26 This transit plaza and adjacent sidewalk are outdoors and open to
27 and used by the public. Members of the public can and frequently
28

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1 do use the transit plaza and adjacent sidewalk without crossing
2 the border or entering or exiting any port of entry building. The
3 exit of the San Ysidro port of entry building—where individuals
4 crossing the border on foot first enter into the United States—is
5 readily visible to pedestrians in the transit plaza and adjacent
6 sidewalk. Upon information and belief, part or all of the transit
7 plaza and adjacent sidewalk is a public forum open to speech and
8 expressive activity by tradition and past usage.
9 (b) The east-to-west pedestrian bridge connecting San Ysidro
10 Boulevard to the east and Camiones Way to the west. As
11 explained, this bridge crosses over Interstate 5, so the outdoor
12 vehicle inspection areas where CBP officers conduct primary and
13 secondary inspections are visible to pedestrians.
14 (c) The footpath leading from the transit plaza and adjacent sidewalk
15 to Mexico. This footpath lies to the southeast of the transit plaza,
16 behind certain businesses lining the east side of San Ysidro
17 Boulevard. The eastern side of the footpath is the base of a small
18 hill and is lined with a concrete wall, above which there is a
19 railroad. The western side of the footpath includes chainlink fence
20 overlooking parking lots used by government officials.
21 Approximately halfway down the footpath, there is a small tent
22 behind the eastern concrete wall. This tent is staffed by CBP
23 officials, who sometimes leave the tent to question pedestrians on
24 the path as they move toward the entrance to Mexico. The
25 footpath terminates at a structure through which pedestrians must
26 pass to enter Mexico, which is staffed by Mexican officials,
27 including Mexican law enforcement officers. Members of the
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1 public can walk along this footpath without crossing the border

2 or entering or exiting any port of entry building; it is possible to

3 turn around and walk back towards the transit plaza and adjacent

4 sidewalk at any point prior to crossing into the Mexican border

5 building.

6 (d) The outdoor bi-directional pedestrian crossing area known as

7 “PedWest,” located adjacent to the planned transit center at

8 Virginia Avenue.

9 111. In or near these areas, there are one or more official U.S. government

10 signs posted that appear to prohibit some or all forms of photography from these

11 outdoor areas.

12 112. The ongoing reconstruction of the San Ysidro port of entry has neither

13 lessened nor eliminated public concern about civil and human rights violations along

14 the U.S.-Mexico border. Indeed, given that improved infrastructure at the San Ysidro

15 port of entry will accommodate a greater number of border crossers each day, public

16 oversight of federal law enforcement activity at the port is indispensable.

17 113. Mr. Ramirez remains deeply committed to documenting civil and

18 human rights violations throughout the border region, including San Ysidro. He is

19 particularly concerned about the lack of adequate oversight, transparency, and

20 accountability within CBP, and about incidents involving CBP officials’ excessive

21 or unwarranted use of force (or other abusive behavior) and racial and religious

22 profiling.

23

IV. NECESSITY OF AND ENTITLEMENT TO INJUNCTIVE

24

RELIEF

25

114. Since the 2010 incident, Mr. Ramirez has refrained from photographing

26 matters and events exposed to public view from outdoor and exterior areas of the San

27 Ysidro port of entry, including CBP officers engaged in the public discharge of their

28 duties.

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1 115. As a result of his experience, and in light of Defendants’ interpretation
2 and enforcement of above-mentioned policies and procedures, Mr. Ramirez has a
3 reasonable fear that if he attempts to photograph matters and events exposed to public
4 view from outdoor or exterior areas of the San Ysidro port of entry, including but not
5 limited to those described above, he will again be subject to interference by
6 Defendants and/or their agents. Such interference may include Mr. Ramirez’s
7 detention or arrest and the loss of his personal property, such as his cell phone and
8 photographs.
9 116. To document CBP officers’ official actions, including potential civil and
10 human rights abuses, Mr. Ramirez is prepared, and intends, to resume photographing
11 matters and events exposed to public view at San Ysidro port of entry (from outdoor
12 places including but not limited to the areas described above) as soon as he is able to
13 do so without CBP interference.
14 117. Unless enjoined by this Court, Defendants can and will continue to
15 interpret and enforce the above-mentioned policies and procedures to prohibit Mr.
16 Ramirez from photographing matters and events exposed to public view from
17 outdoor or exterior areas of the San Ysidro port of entry, including but not limited to
18 those described above.
19 118. As a result of Defendants’ interpretation and enforcement of the above-
20 mentioned policies and procedures, Mr. Ramirez has been chilled, hindered, deterred,
21 and prevented from freely exercising his First Amendment right to photograph
22 matters and events exposed to public view from outdoor or exterior areas of the San
23 Ysidro port of entry, including but not limited to those described above, including
24 CBP officers or their agents engaged in the public discharge of their duties.
25 119. Mr. Ramirez is thus suffering, and will continue to suffer, irreparable
26 harm as a result of refraining from exercising his First Amendment rights.
27 120. Mr. Ramirez has no adequate remedy at law.
28

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1

CLAIMS FOR RELIEF

2

CLAIM ONE

3 (VIOLATION OF THE FIRST AMENDMENT—FREEDOM OF SPEECH— BY BOTH PLAINTIFFS AGAINST ALL DEFENDANTS)
4

5

121. Plaintiffs re-allege and incorporate by reference each preceding

6 paragraph, as if fully set forth herein.

7

122. The Defendants’ allegedly applicable policies (including but not limited

8 to the Policy and Ground Rules) and practices constitute prior restraints that violate

9 the First Amendment because they require advance permission to take photographs

10 of matters or events of public interest exposed to public view in exterior and outdoor

11 areas of port of entry property and provide unlimited discretion for Defendants and/or

12 their agents to grant or deny permission to take such photographs. Such limitless

13 discretion inherently creates an unacceptable risk of viewpoint discrimination,

14 regardless of whether or how it is in fact exercised.

15

CLAIM TWO

16 (VIOLATION OF THE FIRST AMENDMENT—FREEDOM OF SPEECH—

BY PLAINTIFF ASKINS AGAINST ALL DEFENDANTS EXCEPT SIDNEY

17

AKI)

18 123. Plaintiffs re-allege and incorporate by reference each preceding
19 paragraph, as if fully set forth herein.
20 124. The Defendants’ policies and practices violate the First Amendment by
21 unreasonably restricting Mr. Askins’s right to take photographs of matters and events
22 of public interest exposed to public view from exterior or outdoor areas of the
23 Calexico port of entry, because it is irrational to prohibit photography of such matters
24 and events, regardless of the nature of the forum from which they are taken.
25 125. To the extent the Defendants enforce policies or implement practices
26 that prevent photography of matters or events of public interest in any area of
27 Calexico that is a traditional or designated public forum, such enforcement or
28

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1 implementation violates the First Amendment because it is not narrowly tailored to

2 any substantial governmental interest and does not leave open ample alternative

3 channels for expression.

4

CLAIM THREE

5

(VIOLATION OF THE FIRST AMENDMENT—FREEDOM OF SPEECH—

6

BY PLAINTIFF RAMIREZ AGAINST ALL DEFENDANTS EXCEPT

DAVID A. SALAZAR)

7 126. Plaintiffs re-allege and incorporate by reference each preceding

8 paragraph, as if fully set forth herein.

9 127. The Defendants’ policies and practices violate the First Amendment by

10 unreasonably restricting Mr. Ramirez’s right to take photographs of matters and

11 events of public interest exposed to public view from exterior or outdoor areas of the

12 San Ysidro port of entry, because it is irrational to prohibit photography of such

13 matters and events, regardless of the nature of the forum from which they are taken.

14 128. To the extent the Defendants enforce policies or implement practices

15 that prevent photography of matters or events of public interest in any area of San

16 Ysidro that is a traditional or designated public forum, such enforcement or

17 implementation violates the First Amendment because it is not narrowly tailored to

18 any substantial governmental interest and does not leave open ample alternative

19 channels for expression.

20

PRAYER FOR RELIEF

21 WHEREFORE, Plaintiffs respectfully request that the Court:

22 A. Declare Defendants’ allegedly applicable policies and practices

23 unconstitutional as applied to photography of matters and events exposed to public

24 view from exterior or outdoor areas of the Calexico and San Ysidro ports of entry;

25 B. Preliminarily and permanently enjoin all Defendants, their successors,

26 agents, servants and employees, and anyone acting in concert with Defendants or any

27 of the foregoing persons, from preventing, impeding, or otherwise interfering with

28

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1 Plaintiffs’ First Amendment rights to make and retain photographs, video recordings,
2 or any other recordings of matters or events exposed to public view from exterior or
3 outdoor areas of the Calexico and San Ysidro ports of entry;
4 C. Award Plaintiffs’ costs, including reasonable attorneys’ fees; and
5 D. Award such other relief as the Court deems proper.
6

7 Dated: 8

June 7, 2019

By: /s Mitra Ebadolahi MITRA EBADOLAHI mebadolahi@aclusandiego.org

9

Attorney for Plaintiffs

10

Ray Askins and Christian Ramirez

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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12cv02600

 
 Askins v. U.S. Department of Homeland Security, 899 F.3d 1035 (2018) 18 Cal. Daily Op. Serv. 8128, 2018 Daily Journal D.A.R. 8073

899 F.3d 1035 United States Court of Appeals, Ninth Circuit.
Ray ASKINS; Christian Ramirez, Plaintiffs-Appellants, v.
U.S. DEPARTMENT OF HOMELAND SECURITY; David Salazar, Director, Calexico Port of Entry; Sidney K. Aki, Director, San Ysidro & Otay Mesa Ports of Entry; Kevin K. McAleenan, Commissioner of United States Customs and Border Protection, Defendants-Appellees.
No. 16-55719 |
Argued and Submitted February 16, 2018 Pasadena, California | Filed August 14, 2018
Synopsis Background: Border policy advocates brought action against United States Department of Homeland Security and others alleging that their First Amendment rights were violated when, while taking photographs from public lands of activities at United States ports of entry on United States-Mexico border, United States Customs and Border Protection (CBP) officers stopped them and destroyed their photographs, and seeking injunctive and declaratory relief. The United States District Court for the Southern District of California, No. 3:12-cv-02600-W-BLM, Thomas J. Whelan, Senior District Judge, 2016 WL 4597529, dismissed amended complaint as barred by law of the case doctrine. Advocates appealed.
Holdings: The Court of Appeals, Bybee, Circuit Judge, held that:
law of the case doctrine did not apply to bar advocates’ amended First Amendment claim, and
advocates stated First Amendment claim.
Vacated and remanded.
1

Procedural Posture(s): On Appeal; Motion to Dismiss for Failure to State a Claim.
Attorneys and Law Firms
*1037 Mitra Ebadolahi (argued) and David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California, for Plaintiffs-Appellants.
Thomas G. Pullham (argued), Patrick G. Nemeroff, and Scott McIntosh, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.
Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute.
Bruce D. Brown, Gregg P. Leslie, and Caitlin Vogus, Reporters Committee for Freedom of the Press; J. Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression & The University of Virginia School of Law First Amendment Clinic, Charlottesville, Virginia; for Amici Curiae Reporters Committee for Freedom of the Press and 7 Media Organizations.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, Senior District Judge, Presiding, D.C. No. 3:12-cv-02600-W-BLM
Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason,* District Judge.
OPINION
BYBEE, Circuit Judge:
*1038 Plaintiffs Ray Askins and Christian Ramirez are advocates on border policy issues. In separate incidents, while on public property, they took photographs of activities at U.S. ports of entry on the United States–Mexico border. Both were stopped and searched by officers of the United States Customs and Border Protection (“CBP”), and their photos were destroyed. According to CBP, Askins and Ramirez were on

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CBP-controlled property when they took the photos. Under CBP’s policies, members of the media must obtain advance permission from CBP to photograph, videotape, or film inside or outside of port of entry buildings.
Askins and Ramirez filed suit for violation of their First Amendment rights and sought injunctive and declaratory relief. The district court dismissed plaintiffs’ claims, applying strict scrutiny and upholding CBP’s policies as the least restrictive means of serving the compelling interest of protecting the United States’s territorial sovereignty, but granted leave to file an amended complaint. When plaintiffs filed an amended complaint, the district court dismissed it as barred by the law of the case doctrine.
We conclude that it was error to apply the law of the case doctrine on a motion to dismiss an amended complaint. On the merits, we conclude that plaintiffs have stated First Amendment claims upon which relief can be granted. We vacate the judgment and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs’ suit stems from two separate incidents. Because the district court dismissed plaintiffs’ suit on the government’s motion to dismiss, for purposes of this appeal, we must accept as true plaintiffs’ allegations in the amended complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 907 (9th Cir. 2012) (en banc).
A. The Incidents
1. Calexico West Ray Askins is a U.S. citizen concerned with environmental health hazards in Imperial County and near the U.S.–Mexico border. He has a special interest in the effect of emissions from vehicles idling in the inspection areas at the ports of entry in California on air quality. In April 2012, Askins sought to photograph the secondary vehicle inspection area of the Calexico West port of entry in connection with a conference presentation he was
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preparing on the health impacts of border crossings. *1039 When Askins called CBP to request permission, he was told by an officer that this would be “inconvenient,” but his request was neither approved nor denied. The next morning, he informed the officer by voicemail that he would photograph the exit of the secondary inspection area from the street outside instead. The exit of the Calexico West secondary inspection area and a port-of-entry building exterior are visible from streets on or near the port of entry and from the Genaro Teco Monroy Memorial International Border Friendship Park, a small park.
On the afternoon of April 19, Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.
Askins alleges that he wishes to photograph “matters and events exposed to public view from outdoor and exterior areas of the Calexico port of entry” and “in the area immediately surrounding the Calexico port of entry building,” specifically, “vehicular traffic and CBP officers engaged in the public discharge of their duties, in order to document air and other environmental pollution as well as human rights abuses.” He claims that he now refrains from doing so in light of the CBP policies and the past enforcement of those policies against him.
2. San Ysidro Christian Ramirez is a U.S. citizen and policy advocate who works on human rights issues in border communities. On June 20, 2010, Ramirez and his wife visited his father

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in Mexico, parking on the U.S. side of the border and crossing through the San Ysidro port of entry pedestrian entrance. They crossed back into the United States later the same day. After they had passed through inspection, the Ramirezes crossed a pedestrian bridge over Interstate 5 to return to their vehicle. While on the bridge, Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera.
Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the *1040 Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.
The pedestrian bridge from which Ramirez took the photographs has since been replaced. The new bridge runs east to west, passing over Interstate 5 to connect the San Ysidro Boulevard transit plaza and Camiones Way, both on the U.S. side of the border. Plaintiffs allege that the bridge “is open to and used by the public to cross over Interstate 5,” and that “members of the public can and do frequently cross the bridge without crossing the border or entering or exiting any port of entry building.” The outdoor vehicle inspection areas in which CBP conducts primary and secondary inspections at the San Ysidro port of entry are visible from the new bridge. Ramirez alleges that he wishes to photograph “matters exposed to public view, including CBP officers engaged in the public discharge of their duties” from the new pedestrian bridge, the San Ysidro Boulevard transit plaza, and a footpath leading from the transit plaza to the border. U.S. government signs posted at these locations prohibit any form of photography. Ramirez claims that he now refrains from documenting matters and events visible from those
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locations in light of the CBP policies and the past enforcement of those policies against him.
B. The Suit
1. The Initial Complaint Plaintiffs filed suit in October 2012 against the Department of Homeland Security, named officials of CBP, and 50 unnamed CBP officers. Plaintiffs claimed that CBP’s policies and practices violated their First and Fourth Amendment rights and sought declaratory and injunctive relief, damages, and costs and attorneys’ fees. The government moved to dismiss under Rule 12(b)(6) and brought to the court’s attention two CBP policies: CBP Directive No. 5410-001B (Mar. 18, 2009) (“Directive”), a national policy “defin[ing] guidelines relating to the disclosure of official [CBP] information to accredited news organizations, mass media, published professional journals, and stakeholder groups,” and CBP’s “Ground Rules for News Media Representatives when Visiting Southern California Ports of Entry” (“Ground Rules”). The government argued that, under these policies, any individual seeking to film or take photographs at ports of entry is required to obtain prior authorization.
The district court held that plaintiffs had sufficiently alleged the policies were content-based restrictions on speech in a public forum, triggering strict scrutiny. But the court decided that the policies survived strict scrutiny because they serve “perhaps the most compelling government interest: protecting the territorial integrity of the United States” and there were no less restrictive alternatives. The district court granted the motion to dismiss with leave to amend “with respect to the constitutionality of the CBP photography policy.”
2. The Amended Complaint Plaintiffs filed an amended complaint in 2015 against the U.S. Department of Homeland Security, the Commissioner of U.S. Customs and Border Protection, and the directors of Calexico West and San Ysidro ports of entry. Plaintiffs omitted any claims based on the Fourth

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Amendment, dropped their claims for damages, and did not sue the unnamed CBP officers. Plaintiffs also formally challenged the CBP policies identified by the government under the First Amendment. First, they challenge the policies on their face as prior restraints. Second, they challenge the policies as unreasonable as applied to them. *1041 The policies, which we refer to as the “Directive” and the “Ground Rules,” require members of the media to obtain advance permission to document events at ports of entry.
Under the Directive, “CBP shall cooperate with accredited local, national, and foreign news organizations, without favoritism, in the dissemination of official information while not compromising the DHS/CBP mission.” Section 6.2 provides procedures for media requests to photograph suspects and states that “[d]ecisions to allow any photographing, videotaping or filming by the media at CBP facilities shall be made in consultation with the appropriate Public Affairs Specialist and with the concurrence and control of the appropriate CBP supervisor.” It also provides that “[p]hotographing of suspects/detainees by news organizations in public places or in transit is neither encouraged nor discouraged,” and instructs CBP that “[w]hen news organizations arrive at the scene of an enforcement action in progress without prior CBP knowledge, CBP personnel shall not interfere with photographing suspects in public places or in transport.” The Directive prohibits the “[d]etention of persons or media and/or the detention of recording equipment, film or notes ... unless the owner or operator of such materials has violated federal law, unlawfully breached the security of a CBP facility, or has endangered the safety of CBP personnel.”
The Ground Rules, which apply to the ports of entry involved here, are directed towards “accredited news media representatives” and are motivated by “concerns for the privacy of the traveling public, integrity of law enforcement and investigative activities, and safety of visiting media representatives and the public.” They require “members of the press who desire to film, conduct interviews or engage in any other media activity” to “clear their visit in advance with appropriate CBP officials.” Under the Ground Rules, “[r]eporters who do not have such clearance may be denied access to port property,” and “photographers and camera crews” must “be escorted by a designated officer at ALL times while on port property,” without exception. The Ground Rules prohibit photography in “non-public spaces such as the pat down room and holding cells” and “merchandise storage areas,” “close-up” photographs of “port computer
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screens,” and recognizable photographs of CBP officers without their permission “[f]or reasons of officer safety.”
Plaintiffs allege that CBP interprets and enforces these policies as a total ban on all photography by any person from any area within a port of entry without prior authorization from CBP. Plaintiffs do not challenge CBP’s restrictions on photography within CBP facilities, such as buildings and inspection areas. Rather, plaintiffs allege that there are “large swaths of property” owned or leased by CBP that are public streets and sidewalks, that these constitute traditional public fora, and that CBP enforces its no-photography policies within these areas in violation of the First Amendment.
The government moved to dismiss the amended complaint for failure to state a claim. The district court held that it was “precluded” by the law of the case doctrine from revisiting its prior order. Because plaintiffs brought “the identical issue,” but failed to “identify any clear error, intervening change in law, new evidence, changed circumstances, or manifest injustice resulting from the previous decision,” “[t]he law of the case bar[red] Plaintiffs’ claims.” The district court entered judgment for the government. Plaintiffs timely appealed.1
*1042 II. ANALYSIS
Plaintiffs raise two questions on appeal. First, whether the law of the case doctrine applies in this case. Second, whether, on the merits, the district court properly dismissed their suit. We address each issue in turn.
A. The Law of the Case Doctrine “The law-of-the-case doctrine generally provides that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Musacchio v. United States, ––– U.S. ––––, 136 S.Ct. 709, 716, 193 L.Ed.2d 639 (2016) (quoting Pepper v. United States, 562 U.S. 476, 506, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) ). The district court determined that it was “precluded” from reconsidering its order dismissing the original First Amendment claims in adjudicating the motion to dismiss

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the amended First Amendment claims, absent a showing that “1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.” United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998). Reasoning that the amended claims raised the same issue as the original claims—the constitutionality of the CBP policies—the court held that the claims were barred because plaintiffs failed to “identify any clear error, intervening change in law, new evidence, changed circumstances, or manifest injustice resulting from the previous decision.”
The law of the case doctrine does not preclude a court from reassessing its own legal rulings in the same case. The doctrine applies most clearly where an issue has been decided by a higher court; in that case, the lower court is precluded from reconsidering the issue and abuses its discretion in doing so except in the limited circumstances the district court identified. See, e.g., Cuddy, 147 F.3d at 1114; United States v. Miller, 822 F.2d 828, 832 (9th Cir. 1987) (“The rule is that the mandate of an appeals court precludes the district court on remand from reconsidering matters which were either expressly or implicitly disposed of upon appeal.”); United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (“The legal effect of the doctrine of the law of the case depends upon whether the earlier ruling was made by a trial court or an appellate court. ... A trial court may not, however, reconsider a question decided by an appellate court.”).
A court may also decline to revisit its own rulings where the issue has been previously decided and is binding on the parties—for example, where the district court has previously entered a final decree or judgment. See Lummi Indian Tribe, 235 F.3d at 452–53 (holding that district court did not abuse its discretion to invoke law of the case where its prior decision interpreted 1974 Indian fishing rights decree). The law of the case doctrine does not, however, bar a court from reconsidering its own orders before judgment is entered or the court is otherwise divested of jurisdiction over the order. See City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 888–89 (9th Cir. 2001); Houser, 804 F.2d at 567; see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all *1043 the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”).
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The law of the case doctrine does not apply here. The district court dismissed plaintiffs’ First Amendment claim, but without prejudice; it did not enter a final judgment in the case. It specifically granted plaintiffs leave to amend “with respect to the constitutionality of the CBP photography policy.” Accepting the district court’s invitation, plaintiffs filed an amended complaint, and included facts and claims that were different from those in the initial complaint. Instead of ruling on the merits of the government’s motion to dismiss the amended complaint, the district court invoked the law of the case doctrine, holding that it was “precluded” from considering the amended complaint. This was error.
Once the plaintiff elects to file an amended complaint, the new complaint is the only operative complaint before the district court. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A]fter amendment the original pleading no longer performs any function and is treated thereafter as non-existent[.]” (internal quotation marks omitted) ). Thus, when an original complaint is dismissed without prejudice, the filing of an amended complaint does not ask the court to reconsider its analysis of the initial complaint. The amended complaint is a new complaint, entitling the plaintiff to judgment on the complaint’s own merits; we do not ask whether the plaintiff is “precluded” or “barred” by the prior ruling. When the defendant files a motion to dismiss the amended complaint, it may urge the district court to determine that the plaintiff’s amended complaint did not cure the deficiencies of the initial complaint. If the district court determines the amended complaint is substantially the same as the initial complaint, the district court is free to follow the same reasoning and hold that the amended claims suffer from the same legal insufficiencies. The district court is not, however, bound by any law of the case. The district court may decide the second motion to dismiss in the same way it decided the first, but permitting the filing of an amended complaint requires a new determination. That leaves the district court free to correct any errors or misunderstandings without having to find that its prior decision was “clearly erroneous.” Cuddy, 147 F.3d at 1114. By contrast, where a final legal determination has been made by a higher court, or by the district court in the same or a related case, the law of the case doctrine allows the court to impose a heightened burden on the plaintiff—to show clear error, changed law, new evidence, changed circumstances, or manifest injustice. Id.
Here, the district court erred in dismissing plaintiffs’ amended complaint as barred by the law of the case

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doctrine. By invoking the law of the case doctrine, the district court held plaintiffs to a higher standard than if they had pleaded their amended complaint originally. The district court should simply have considered the amended complaint on its merits. As the district court granted plaintiffs leave to file the amended complaint and both orders are before us on appeal, we have the discretion to proceed to consider de novo whether plaintiffs state a claim in their amended complaint.
B. Plaintiffs’ First Amendment Claims In their amended complaint, plaintiffs claim that CBP’s policies impose unconstitutional restrictions on their First Amendment right to photograph and record CBP officers engaging in the public discharge of their official duties. They contend that the policies impose a prior restraint and prevent the documentation of civil and human rights abuses, including the excessive use of force and racial or religious profiling, at *1044 the border. They do not seek unrestricted access to all areas of ports of entry or unlimited photography privileges, but rather assert a right to photograph only those matters that are “exposed to public view from exterior or outdoor areas of the Calexico and San Ysidro ports of entry.” Plaintiffs have alleged that these areas, even if leased or owned by CBP, are public streets and sidewalks that must be considered public fora.
The First Amendment protects the right to photograph and record matters of public interest. See Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203–04 (9th Cir. 2018); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); cf. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–62 (9th Cir. 2010) (holding that the process of creating pure speech is entitled to the same First Amendment protection as the product of that process). This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places. See Fordyce, 55 F.3d at 439; see also, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (recognizing “that the First Amendment protects the filming of government officials in public spaces”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).
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Whether a place is “public” depends on the nature of the location. The government’s ability to regulate speech in a traditional public forum, such as a street, sidewalk, or park, is “sharply circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Content-based restrictions on speech are subject to strict scrutiny and may only be upheld if they are “the least restrictive means available to further a compelling government interest.” Berger v. City of Seattle, 569 F.3d 1029, 1050 (9th Cir. 2009) (en banc). Reasonable, content-neutral, time, place, or manner restrictions, on the other hand, are subject to “an intermediate level of scrutiny.” Jacobson v. U.S. Dep’t of Homeland Sec., 882 F.3d 878, 882 (9th Cir. 2018) (quoting Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of L.A., 764 F.3d 1044, 1049 (9th Cir. 2014) ). They are permitted in public fora so long as they are “narrowly tailored to serve a significant governmental interest,” “leave open ample alternative channels for communication of the information,” and do “not delegate overly broad licensing discretion to a government official.” Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1023–24 (9th Cir. 2009) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ). In contrast, restrictions on speech in a nonpublic forum must only be “reasonable in light of the purpose served by the forum and viewpoint neutral.” Jacobson, 882 F.3d at 882 (internal quotation marks omitted) (quoting Int’l Soc’y for Krishna Consciousness, 764 F.3d at 1049).
The district court assumed, for purposes of deciding the government’s first motion to dismiss, that the areas adjacent to Calexico West and San Ysidro were public fora and that CBP’s restrictions were content based. That meant the government had the burden of demonstrating that its restrictions on speech were the least restrictive means necessary to serve a compelling government interest.2 The *1045 district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the

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policies were the least restrictive means of serving these interests.
These conclusions are too thin to justify judgment for the government on a motion to dismiss. “When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816–17, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); accord Reno v. ACLU, 521 U.S. 844, 879, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (“The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective[.]”); Berger, 569 F.3d at 1035. “It is rare that a regulation restricting speech because of its content will ever be permissible.” Playboy Entm’t Grp., 529 U.S. at 818, 120 S.Ct. 1878; see also Berger, 569 F.3d at 1052–53. Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry. See United States v. Flores-Montano, 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004) (“The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”). But the devil lies in the details: “Even at the border, we have rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.
Moreover, determining whether a location is properly categorized as a public forum involves largely factual questions. We have adopted “a fact-intensive, three-factor test to determine whether a location is a public forum in the first instance.” Jacobson, 882 F.3d at 883. We consider “1) the actual use and purposes of the property, particularly [its] status as a public thoroughfare and availability of free public access to the area; 2) the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area; and 3) traditional or historic use of both the property in question and other similar properties.” ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1100–01 (9th Cir. 2003) (citations omitted).
How these factors apply here cannot be answered without
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development of the record and separate consideration of the Calexico *1046 West and San Ysidro ports of entry. At Calexico West, Askins took photographs from the shoulder of two streets and will continue to photograph the exterior areas of the port of entry from those streets, the nearby park, and other public, outdoor locations. It appears from the one photograph that we have in the record that the streets on which Askins stood are indistinguishable from other Calexico city streets, and the amended complaint indicates that there are no signs or other indicators marking the port of entry boundaries. Furthermore, the Genaro Teco Monroy Park abuts those streets, and the government concedes the park is not part of the port of entry—which means that Askins presumably could have taken the same photographs of Calexico West had he only taken a couple of steps back from the street into the park.
“Public streets and sidewalks” are “the archetype of a traditional public forum.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (quoting Snyder v. Phelps, 562 U.S. 443, 456, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) ); accord United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (noting that “ ‘public places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums’ ”); ACLU of Nev., 333 F.3d at 1101 (“[W]hen a property is used for open public access or as a public thoroughfare, we need not expressly consider the compatibility of expressive activity because these uses are inherently compatible with such activity.”). Even if we were to assume these areas are part of the port of entry, we would need to know much more about the port of entry’s boundaries and the public’s access to and use of Calexico West’s streets and sidewalks before we could decide the relative importance of banning photography from those streets and sidewalks. See Grace, 461 U.S. at 179–80, 103 S.Ct. 1702 (emphasizing that there was “no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave” in holding that sidewalks bordering the Supreme Court building are a public forum); Jacobson, 882 F.3d at 883.
San Ysidro presents a different set of circumstances. Ramirez took photographs of the San Ysidro port of entry from a pedestrian bridge and wishes to take photographs from the new pedestrian bridge, a transit plaza, and the adjacent sidewalk. Unlike the streets adjacent to the

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Calexico West port of entry, we are told there are signs prohibiting photography on the pedestrian bridge overlooking the San Ysidro port of entry. The government compares ports of entry to military bases, airport terminals, and interstate rest areas, portions of which have been held to be nonpublic fora. See Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (airport terminals); Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military bases); Jacobsen v. Bonine, 123 F.3d 1272, 1274 (9th Cir. 1997) (rest areas). But the boundaries of the San Ysidro port of entry are neither established by the record nor a matter of which we can take judicial notice. And even accepting that the San Ysidro port of entry facilities are a nonpublic forum, the public’s access to and use of the transit plaza, sidewalks, and other outdoor areas is critical to determining whether they retain their public fora status. See Jacobson, 882 F.3d at 884 (“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 *1047 inspection zones.”); see also Flower v. United States, 407 U.S. 197, 198–99, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (per curiam) (holding that First Amendment protections applied equally on city streets and an open, unguarded street regularly used by civilians that passed through a military base).

We do not mean to suggest that all or even any areas within a port of entry are necessarily public fora, or that allowing the public to transit through a port of entry for the purpose of crossing the border creates a public forum. We decide today only that plaintiffs have adequately pleaded their claims and that further factual development is required before the district court can determine what restrictions, if any, the government may impose in these public, outdoors areas.3
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s dismissal of plaintiffs’ First Amended Complaint and REMAND for further proceedings. Costs shall be taxed against Defendants-Appellees.
All Citations
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Footnotes

*

The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation.

1

We have jurisdiction pursuant to 28 U.S.C. § 1291. We ordinarily review a district court’s application of the law of

the case doctrine for abuse of discretion. United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000).

However, because the final judgment of the district court resulted in dismissal of an amended complaint, we review

de novo. Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1291 (9th Cir. 2015) (“We

review the district court’s dismissal of the complaint under Rule 12(b)(6) de novo.”).

2

On appeal, the government attempts to avoid the forum framework altogether by framing this as a First

Amendment right of access to government proceedings case. The government likens photography of proceedings at

ports of entry to access to courtroom proceedings, jails, town halls, and executions. This analysis might be relevant if

plaintiffs challenged the policies’ restrictions on photography of CBP computer screens, secured or interior areas of

the port of entry, or holding cells. But the right asserted by plaintiffs in this case is that of speech on matters

exposed to public view—not the right of access to government-controlled information or to areas not freely open to

the public.

3

We also anticipate that the parties will help illuminate why CBP’s Directive and Ground Rules are even relevant to

this case. Both written policies apply to “accredited” news organizations and representatives seeking advance

8

Askins v. U.S. Department of Homeland Security, 899 F.3d 1035 (2018) 18 Cal. Daily Op. Serv. 8128, 2018 Daily Journal D.A.R. 8073
approval for visits to CBP facilities. The Directive states that “[p]hotographing of suspects/detainees by news organizations in public places or in transit is neither encouraged nor discouraged” and provides that CBP personnel will “not interfere with photographing suspects in public places.” Similarly, the Ground Rules provides that “[r]eporters” who do not obtain advance permission may be denied entry and that members of the media who are admitted to port property must be accompanied. The Ground Rules prohibit photography in “non-public-spaces such as the pat down room and holding cells.” We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.
9

 
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1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 RAY ASKINS and CHRISTIAN RAMIREZ,
13

CASE NO. 12-CV-2600 W (BLM)

14

15

16

v.

Plaintiffs,

17 U.S. DEPARTMENT OF
18 HOMELAND SECURITY, et al.,
19

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [DOC. 22] WITH LEAVE TO AMEND

20

Defendants.

21

22 Defendants U.S. Department of Homeland Security, David V. Aguilar, Billy
23 Whitford, and Frank Jaramillo move to dismiss Plaintiffs’ Complaint under Federal Rule
24 of Civil Procedure 12(b)(6). (MTD [Doc. 22]; Reply [Doc. 33].) Plaintiffs oppose.
25 (Opp’n [Doc. 32].) The Court decides the matter on the parties’ briefs and the record.
26 See S.D. Cal. Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court GRANTS
27 IN PART AND DENIES IN PART Defendants’ 12(b)(6) motion.
28

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1 I. BACKGROUND

2

Plaintiffs allege that in two separate but similar incidents, their First Amendment

3 and Fourth Amendment rights were infringed. The first incident involved Mr. Ramirez

4 and occurred on June 20, 2010 at the San Ysidro Port of Entry. The second involved

5 Mr. Askins and occurred on April 19, 2012 at the Calexico Port of Entry.

6

7

A. Incident Involving Mr. Ramirez

8

According to the Complaint, Mr. Ramirez is a U.S. citizen living in San Diego,

9 California who crosses the border three or four times a month, often to visit his family

10 in Mexico. (Compl. ¶ 33.) He works as the Human Rights Director for Alliance San

11 Diego, a nonprofit organization dedicated to a number of causes, including issues

12 related to immigrant rights at the U.S.-Mexico Border. (Id. ¶ 34.) As part of his job,

13 and as a concerned member of the “border community,” Ramirez often visits the U.S.-

14 Mexico border “to observe law enforcement activity and monitor human rights issues.”

15 (Id. ¶ 35.)

16

On or around June 20, 2010, Mr. Ramirez and his wife were returning to the

17 United States after visiting a family member in Mexico. (Compl. ¶¶ 36-37.) After being

18 admitted into the United States, Mr. Ramirez and his wife crossed a pedestrian bridge

19 that passes over Interstate 5 on the U.S. side of the border. (Id. ¶ 37.) While crossing

20 the bridge, Mr. Ramirez noticed that male Customs and Border Protection (“CBP”)

21 officers were inspecting and patting down female pedestrians at a southbound

22 pedestrian checkpoint below the bridge. (Id. ¶ 38.) Mr. Ramirez claims that his wife

23 said that the officers were only inspecting female pedestrians. (Id.) Mr. Ramirez

24 “observed the checkpoint for approximately ten to [fifteen] minutes,” taking

25 approximately ten pictures using his cell phone camera “out of concern that the officers

26 were acting inappropriately.” (Id. ¶ 39.) Mr. Ramirez does not allege that he had or

27 attempted to obtain permission from CBP prior to photographing the port of entry. (See

28 generally Id.)

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1

While Mr. Ramirez was observing and photographing the checkpoint from the

2 pedestrian bridge, a uniformed officer asked him to present his personal identification

3 documents and to stop taking pictures. (Compl. ¶¶ 42-43.) After explaining that he

4 had already passed through inspection, refusing to hand over his documents, and taking

5 another picture of the officer, Mr. Ramirez and his wife began to descend the pedestrian

6 bridge. (Id. ¶¶ 42-44.)

7

At the bottom of the bridge, CBP officers stopped Mr. Ramirez and his wife and

8 asked whether and why he had taken photographs. (Compl. ¶ 44.) Mr. Ramirez told

9 the officers that he had taken photographs of “what he believed to be inappropriate

10 activity by CBP officers at the checkpoint–namely, the patting down of women by male

11 officers.” (Id.) After Mr. Ramirez refused the officer’s request to turn over his phone,

12 he offered to show them the pictures. (Id. ¶ 45.)

13

Then, a U.S Immigration and Customs Enforcement (“ICE”) agent confronted

14 Mr. Ramirez and asked him for his personal identification documents. (Compl. ¶ 46.)

15 Mr. Ramirez again refused, and explained that he and his wife had already been

16 inspected. (Id.) The ICE agent took Mr. Ramirez’s and Mr. Ramirez’s wife’s passports

17 and brought them to a nearby office. (Id.) While in the office, a CBP officer scrolled

18 through the photos on Mr. Ramirez’s phone and deleted all the photos Mr. Ramirez had

19 taken of the CBP checkpoint. (Id.) The ICE agent returned the passports and allowed

20 them to continue on their way. (Id. ¶ 49.)

21

22

B. Incident Involving Mr. Askins

23

According to the Complaint, Mr. Askins is a U.S. citizen living primarily in

24 Mexicali, Mexico who frequently crosses the border into the United States. (Compl. ¶

25 17.) He maintains and contributes to a blog that addresses environmental issues and

26 human rights abuses in the U.S.-Mexico border region. (Id.) Mr. Askins’ work

27 “involves extensive research, investigation, and analysis of CBP activities.” (Id.)

28

On April 18, 2012, Askins contacted CBP Officer John Campos by phone and

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1 “requested permission to take three or four photographs inside the secondary inspection

2 area at the Calexico port of entry” on April 19, 2012. (Compl. ¶ 20.) Officer Campos

3 did not object to the request, nor did he grant it. (Id.) On April 19, 2012, Mr. Askins

4 called Officer Campos to follow up on their previous conversation, but Campos did not

5 answer. (Id. ¶ 21.) Mr. Askins left Officer Campos a voicemail stating that he was

6 going to stand on the street in Calexico and take photographs of the exit of the

7 secondary inspection area. (Id.)

8

On or about April 19, 2012, Mr. Askins took “three or four photographs of the

9 exit of the secondary inspection area” while standing approximately “50-100 feet from

10 the exit from the secondary inspection area.” (Compl. ¶ 22.) When he took these

11 pictures, he was in the United States and “not engaged in the act of crossing the

12 border.” (Id. ¶ 24.) After Mr. Askins took the pictures, CBP officers demanded Mr.

13 Askins delete the photos. (Id. ¶ 25.) Mr. Askins refused, and the officers stated they

14 would “smash the camera if Mr. Askins did not delete the photos.” (Id.) He again

15 declined, explaining that the photos were his property. (Id.) At that point, the officers

16 handcuffed Mr. Askins and took his camera, passport, car keys, and hat. (Id.)

17

Mr. Askins was forcefully lead into a small room inside the secondary inspection

18 area and told to sit down. (Compl. ¶ 27.) He was not free to leave. (Id.) He was next

19 lead to a separate room where he was “subjected . . . to an invasive and embarrassing

20 physical search.” (Id. ¶ 28.) After the search, the officers told Mr. Askins he was free

21 to go and returned his belongings. (Id. ¶ 29.) Upon inspection of his phone, he realized

22 that three of the four pictures he had taken of the port of entry had been deleted. (Id.¶

23 30.)

24

25

C. The Current Litigation

26

On October 24, 2012, Plaintiffs filed this action alleging multiple violations of the

27 First and Fourth Amendments. (Compl. ¶¶ 52-73.) Plaintiffs’ First Amendment claims

28 include a number of theories of liability:

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1

1. Defendants violated Plaintiffs’ right to take photographs and video

recordings of U.S. ports of entry.

2

2. Defendants violated Plaintiffs’ right to take photographs and video

3

recordings of federal law enforcement officers engaged in the public

discharge of their duties.

4

3. CBP’s photography policy violates the rights described in (1) and (2).

5

4. CBP has a practice of violating the rights described in (1) and (2).

(Compl. 11-13.) Plaintiffs’ Fourth Amendment claims also include a number of theories

6

of liability:

7

1. Defendants violated Plaintiffs’ right to freedom from

8

unreasonable search and seizure of one’s person.

9

2. Defendants violated Plaintiffs’ right to freedom from

unreasonable search and seizure of one’s property.

10

3. CBP has a policy that violates the rights described in (1) and (2).

11

4. CBP has a practice of violating the rights described in (1) and

(2).

12

5. Defendants violated Mr. Askins’ right to freedom from the use

13

of excessive force.

(Compl. 13-15.)

14 On January 29, 2013, Plaintiffs filed a motion for preliminary injunction based

15 on Defendants’ alleged violations of the First Amendment. (Pls.’ Mot. Prelim.

16 Inj. [Doc. 19].) On April 12, 2013, the Court issued an order denying the motion for

17 preliminary injunction. (Order Denying Prelim. Inj. [Doc. 35].) On February 13, 2013,

18 Defendants filed the instant motion to dismiss. (MTD [Doc. 22]; Reply [Doc. 33].).

19 Plaintiffs oppose. (Opp’n [Doc. 32].)

20

21 II. LEGAL STANDARD
22 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
23 cause of action for failure to state a claim upon which relief can be granted. Fed. R.
24 Civ. P. 12(b)(6). In ruling on a 12(b)(6) motion, a court must “accept all material
25 allegations of fact as true and construe the complaint in a light most favorable to the
26 non-moving party.” Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).
27 However, the complaint must also “contain sufficient factual matter...to ‘state a claim
28 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)

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Case 3:12-cv-02600-W-BLM Document 42 Filed 09/30/13 Page 6 of 14

1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A complaint will

2 survive a motion to dismiss where the plaintiff “pleads factual content that allows the

3 court to draw the reasonable inference that the defendant is liable for the misconduct

4 alleged.” Id. (citing Twombly, 550 U.S. at 556).

5

6 III. DISCUSSION

7

A. Violation of the First Amendment

8

In Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 800

9 (1985), the Supreme Court explained that it “has adopted a forum analysis as a means

10 of determining when the Government’s interest in limiting the use of its property to

11 its intended purpose outweighs the interest of those wishing to use the property for

12 other purposes.” The level of scrutiny applied to the government’s limitation depends

13 on whether the speech occurs in a public or private forum. Id.

14

Restrictions on speech in a public forum must be “justified without reference to

15 the content of the regulated speech ... narrowly tailored to serve a significant

16 governmental interest, and ... leave open ample alternative channels for

17 communication of the information.” American Civil Liberties Union of Nevada v. City

18 of Las Vegas, 333 F.3d 1092, 1106 (9th Cir. 2003)(quoting Ward v. Rock Against

19 Racism, 491 U.S. 781, 791 (1989)). Restrictions on speech in a nonpublic forum, on

20 the other hand, are subject to a much less stringent test: they must only be “reasonable

21 and not an effort to suppress expression merely because public officials oppose the

22 speaker's view.” Perry Education Association v. Perry Local Educators' Association,

23 460 U.S. 37, 46 (1983).

24

Defendants move to dismiss Plaintiffs’ First Amendment claims, arguing that

25 “CBP’s prohibition of unauthorized photography on ports of entry complies with the

26 First Amendment because it constitutes a reasonable and viewpoint neutral restriction

27 of expressive activity on a nonpublic forum.” (MTD 10.) Essentially, Defendants

28 argue that Plaintiffs were in nonpublic fora when they took the pictures in question,

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1 which subjects the Defendants photography policy to the lenient “reasonable/view

2 point neutral” standard. Plaintiffs oppose, arguing that they were in public fora when

3 they took the pictures and that CBP’s regulation of photography is “unreasonable and

4 not viewpoint-neutral.” (Opp’n 11.) Thus, Plaintiffs contend that because they were

5 in public fora when taking the photos, the photography policy should be subject to

6 heightened scrutiny under the “significant government interest/narrowly tailored” test.

7

As an initial matter, the Court notes that Defendants’ line of argument only

8 addresses the alleged unconstitutionality of CBP’s written photography policy.1 It fails

9 to address Plaintiffs’ other theories of liability under the First Amendment. Thus, the

10 following analysis applies only to Plaintiffs’ claims that the CBP’s policy prohibiting

11 unauthorized photographs is unconstitutional.

12

13

1. Plaintiffs have adequately plead that they were exercising their First

14

Amendment rights in public fora.

15

Public forums “are places, such as streets and parks, that have traditionally been

16 devoted to expressive activity.” Preminger v. Principi, 422 F.3d 815, 823 (9th Cir.

17 2005). “Sidewalks, streets, and parks generally ‘are considered, without more, to be

18 public forums.’” American Civil Liberties Union, 333 F.3d at 1099(quoting United

19 States v. Grace, 461 U.S. 171, 177 (1983)). “Nonpublic fora” are “areas that have not

20 traditionally or explicitly been open to expressive activity.” Preminger, 422 F.3d at

21 823.

22

Plaintiffs allege that Mr. Ramirez and his wife passed through primary inspection,

23 reentered the United States, and began walking across a “pedestrian bridge.” (Compl. ¶

24

25
1 Defendants argue, in passing, that “even if the Court accepts Mr. Askins’ allegation
26 that he was off of port of entry as true for purposes of this motion, that allegation would not
27 suffice to state a plausible claim . . . [because] [a] single instance of CBP officers stopping
photography from just off of a port of entry would not constitute a practice of restricting
28 photography outside of ports of entry.” (MTD 11 n. 19.) However, Defendants present no
applicable legal authority to support this claim.

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1 37.) While crossing the bridge, Mr. Ramirez began taking photographs of a pedestrian

2 checkpoint at the San Ysidro. (Id. ¶¶ 38-39.) That pedestrian bridge is essentially an

3 elevated sidewalk, which is generally considered to be a public forum with respect to

4 First Amendment jurisprudence. See American Civil Liberties Union, 333 F.3d at

5 1099. Therefore, the Court finds that Plaintiffs have plausibly plead that Mr. Ramirez

6 was in a public forum when he took the photographs at issue here. Id.

7

Defendants argue that Mr. Ramirez was in a nonpublic forum because “Mr.

8 Ramirez admits that he was on the San Ysidro port of entry at the time he took the

9 photographs.” (MTD 8.) However, Mr. Ramirez makes no such admission. Moreover,

10 even if Mr. Ramirez had made such an admission, his being located on government

11 owned property would not establish that he was in a nonpublic forum. See Venetian

12 Casino Resort, L.L.C. v. Local Joint Executive Bd. Of Las Vegas, 247 F.3d 937, 943

13 (9th Cir. 2001)(explaining that the title to property is not dispositive evidence in the

14 public forum versus nonpublic forum inquiry). Indeed, traditional public fora like

15 sidewalks and streets are often owned by the government. Finally, “the decision as to

16 whether a forum is public usually invokes a factual inquiry” which is inappropriate to

17 decide at this stage of the litigation. Stewart v. Dist. of Columbia Armory Bd., 863

18 F.2d 1013, 1018 (D.C. Cir. 1988).

19

Here, the issue before the Court is whether it is plausible, based on the

20 allegations made in the complaint, that Mr. Ramirez could prove that the pedestrian

21 bridge in question is a public forum. In light of the foregoing, the Court answers this

22 question in the affirmative.

23

Plaintiffs claim that “Mr. Askins was standing on the shoulder of a public street

24 in Calexico, California, approximately 50-100 feet from the exit from the secondary

25 inspection area at the Calexico port of entry” when he took photos. (Compl. ¶ 22.)

26 These allegations are sufficient to establish that Mr. Askins was in a public forum for

27 purposes of a motion to dismiss, as public streets are generally considered to be public

28 fora. See American Civil Liberties Union of Nevada, 333 F.3d at 1099.

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1

Defendants proffer argument and evidence to establish that Mr. Askins was

2 standing on “port of entry property.” (MTD 7-8, n. 15.) However, as explained above,

3 the ownership of this property does not establish conclusively that it is a nonpublic

4 forum. Also, resolution of this factual dispute is inappropriate here. See Stewart, 863

5 F.2d at 1018. Therefore, Plaintiffs have sufficiently alleged that Mr. Askins was also

6 in a public forum when he took the photographs in question.

7

8

2. Content based

9

The first requirement for restriction on speech in a public forum to be

10 constitutional is that it must be “justified without reference to the content of the

11 regulated speech.” American Civil Liberties, 333 F.3d at 1106. However, if a

12 restriction is not content-neutral, the regulation is subjected to strict scrutiny

13 and only valid if it is the least restrictive means available to further a compelling

14 government interest. Berger v. City of Seattle, 569 F.3d 1029, 1052 (9th Cir.

15 2009).

16

CBP argues that its policy is content-neutral because it restricts any

17 unauthorized photography on port property. (See CBP Directive No. 5410-001B, 18 Office of Public Affairs; Roles, Functions, Responsibilities2 [Doc. 22-2] Ex. A, ¶

19 6.2.3.) However, as admitted by Defendants, “the decision to authorize

20 photography shall be made “‘without favoritism . . . while not compromising the

21 DHS/CBP mission.’” (MTD 6 (citing CBP Directive 3.).) Such a rule is

22 necessarily content-based because authorization depends on whether or not the

23

24

25

2Generally, the court may not consider material outside the complaint when ruling on

a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555

26 n.19 (9th Cir. 1990). However, the court may consider any documents specifically identified

27 in the complaint whose authenticity is not questioned by the parties. Fecht v. Price Co., 70
F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statute on other grounds). Moreover, the
28 court may consider the full text of those documents, even when the complaint quotes only

selected portions. Id.

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1 CBP believes the content of the photography compromises the DHS/CBP

2 mission. Thus, CBP’s photography policy is subject to strict scrutiny.

3

4

3. Strict scrutiny

5

As a content-based regulation, the CBP requirement for authorized photography

6 consistent with its “mission” is “only valid if it serves a compelling government interest

7 in the least restrictive manner possible.” Berger, 569 F.3d at 1052.

8

Defendants explain that their policy advances their “interests in preserving the

9 integrity of its sensitive border search techniques, law enforcement operations, and

10 criminal investigations.” Defendants’ asserted interest in regulating photography at the

11 border serves perhaps the most compelling government interest: protecting the

12 territorial integrity of the United States. U.S. v. Flores-Montano, 541 U.S. 149, 153

13 (2004)(“It is axiomatic that the United States, as sovereign, has the inherent authority

14 to protect, and a paramount interest in protecting, its territorial integrity.”) Plaintiffs

15 do not, nor can they, plausibly dispute that this is not a compelling government

16 interest.

17

Plaintiffs instead argue that the policy is not “the least restrictive means to

18 further the articulated interest” because the CBP can serve these same interests by

19 prohibiting photography of matters not exposed to public view. (Plaintiffs’ Supplemental

20 Brief 4.) Specifically, Plaintiffs suggest the policy is “overinclusive” as it extends to

21 photography of matters exposed to public view, which do not implicate CBP interests.

22 (Id.) However, Plaintiffs fail to account for the fact that a policy that prohibited

23 photography of “matters exposed to public view” would not fully address the

24 government’s interest in protecting its borders. Specifically, many issues of border

25 security “exposed to public view,” such as the identity of CBP officers and search

26 techniques, would be unprotected under such a rule. Moreover, a policy that restricted

27 photography to “matters not exposed to public view” would be impractical, if not

28 impossible to enforce, because border patrol agents could not determine who was and

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1 who was not complying with such a rule. Indeed, any photography policy that hinges

2 on whether or not the subject of the photo is exposed to public view would still require

3 CBP to authorize the photography.

4

Plaintiffs also maintain the policy is “underinclusive” as it fails to prevent

5 photography of the same matters from outside port of entry property. (Id.) However,

6 “[p]hotography from off of port entry property does not pose the same threat to

7 government interests as photography” on port property. (Reply 8 n. 3.) This is because

8 CBP can erect barriers and position its operations to shield sensitive techniques from

9 off port property, but the same is not true for those on port of entry property.

10

Moreover, Plaintiffs apparent concern that Defendants have unbridled

11 discretion to prohibit photography is unfounded. Because CBP officials may not grant

12 requests that compromise the Department of Homeland Security “mission,” CBP’s

13 priority mission of securing the United States from terrorists and terrorist weapons and

14 facilitating lawful international trade is a significant bar to unbridled discretion. See

15 6 U.S.C. § 111. Furthermore, CBP is precluded from using favoritism when deciding

16 whether or not to grant requests. (CBP Directive 3.1.) Therefore, CBP’s legal

17 directive provides sufficient safeguard against officer discretion. Moreover, Plaintiffs

18 have not alleged that either of them requested authorization and were subsequently

19 denied the same due to improper officer discretion.

20

For the foregoing reasons, the Court finds that CBP’s photography policy

21 survives the strict scrutiny analysis due to the extremely compelling interest of border

22 security and the fact that the Court finds the current policy to be the least restrictive

23 alternative available to Defendants. Therefore, Defendants motion to dismiss with

24 respect to the constitutionality of the CBP photography policy is GRANTED with

25 LEAVE TO AMEND.

26

27

28

B. Violation of the Fourth Amendment

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1

1. Plaintiffs have not established that their photography policy is

2

unconstitutional, so their argument based on the policy’s presumed

3

constitutionality fails.

4

Defendants move to dismiss Plaintiffs’ Fourth Amendment claims by arguing

5 that “because the restriction of unauthorized photography on land ports of entry is

6 constitutional, the seizure and search of individuals who violate that restriction is also

7 constitutional.” (MTD 21.) Thus, Defendants base their entire argument on the

8 premise that their photography policy is constitutional. However, as explained in

9 detail above, the Plaintiffs have not shown that their policy is constitutional.

10 Therefore, the Court DENIES the Defendants’ motion to dismiss on this ground.

11

Defendants also claim Plaintiffs fail to allege “a pattern of officially sanctioned

12 behavior” violative of the Fourth Amendment. (MTD 23, citing Melendres v. Aripaio,

13 695 F. 3d 990 (9th Cir. 2012).) They further argue Plaintiffs must show they are

14 “realistically threatened by a repetition” of the violation, and have failed to do so. (Id.,

15 quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).) In support of this

16 argument, they contend that “a single instance” does not establish a pattern. (MTD

17 23.)

18

However, Plaintiffs specifically allege that “[i]n violating [Plaintiffs’] Fourth

19 Amendment rights, the CBP officers acted pursuant to . . . a longstanding CBP

20 practice.” (Compl. ¶¶ 64, 73.) In support of these allegations, Plaintiffs have plead two

21 instances of CBP officers improperly searching and seizing the persons and property of

22 two separate individuals at two separate ports of entry while they took photos in a

23 public forum. (Compl. ¶¶ 62-66, 71-73; Opp’n 11.) Moreover, the Complaint states

24 both Plaintiffs hope to continue photographing ports of entry in the future. (Compl.

25 8, 11.) Accordingly, the Court finds that Plaintiffs have alleged a “pattern of official

26 sanctioned behavior” that violates the Fourth Amendment.

27

Additionally, Defendants argue that CBP’s written policy does not authorize

28 deletion of detained individuals’ photographs and that “[P]laintiffs’ allegations of two

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1 or three instances of deletion by CBP officers . . . do not plausibly state a claim that

2 CBP officers engage in an officially sanctioned pattern of deleting photographs.”

3 (MTD 24.) There is no dispute that CBP’s photography policy does not condone

4 deletion of photographs. Moreover, a review of the CBP directive containing the

5 photography policy reveals no such deletion rule. Therefore, the Court GRANTS IN

6 PART Defendants’ motion, to the extent that Plaintiffs claim that CBP’s written

7 photography policy allows deletion of Plaintiffs photographs. Because Plaintiffs cannot

8 show that Defendants’ written policy condones deletion of pictures, leave to amend

9 would be futile, and this claim is thus DISMISSED WITH PREJUDICE.

10

However, the Court disagrees with Defendants’ contention that Plaintiffs have

11 not alleged a pattern of deleting photos. Indeed, Plaintiffs have alleged that on two

12 separate but similar occasions, officers took Plaintiffs phones and deleted pictures

13 therefrom before returning the phones to their owners. Thus, the Court finds it is

14 plausible, based on the allegations made in the complaint, that Plaintiffs could prove

15 that Defendants have a practice of deleting photos. Thus, to the extent Defendants

16 argue Plaintiffs have not plead a pattern or practice of deleting photos, Defendants’

17 motion is DENIED IN PART.

18

19

2. Excessive Use of Force

20

Defendants have not moved to dismiss Plaintiffs’ fourth claim, which alleges

21 excessive use of force against Plaintiff Askins in violation of the Fourth Amendment.

22 Therefore, this claim survives Defendants’ motion to dismiss.

23

24 IV. CONCLUSION AND ORDER

25

For these reasons, the Court GRANTS IN PART and DENIES IN PART

26 Defendants’ motion to dismiss. The Court FURTHER ORDERS as follows:

27

• Defendants’ motion to dismiss with respect to Plaintiffs’ First

28

Amendment claims is GRANTED WITH LEAVE TO AMEND. As

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1

noted above, this dismissal applies only to Plaintiffs’ claims that the

2

Defendants’ photography policy is unconstitutional under the First

3

Amendment. To the extend Defendants move to dismiss Plaintiffs’ First

4

Amendment claims because they do not establish a pattern or practice

5

the motion is DENIED. Defendants did not move to dismiss the

6

remaining First Amendment claims.

7

• Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claims, to

8

the extent that Plaintiffs claim that Defendants photography policy

9

explicitly condones deletion of photographs, is GRANTED. Because

10

Plaintiffs cannot show that Defendants’ written policy condones deletion

11

of pictures, leave to amend would be futile, and this claim is thus

12

DISMISSED WITH PREJUDICE. Defendants motion to dismiss the

13

remainder of Plaintiffs’ Fourth Amendment claims is DENIED.

14

15

IT IS SO ORDERED.

16

17 DATED: September 30, 2013

18

Hon. Thomas J. Whelan

United States District Judge

19

20

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26

27

28

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10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12

13 RAY ASKINS, et al.

Case No. 12-cv-2600-W(BLM)

14

Plaintiffs,

15

16

v.

17

18

19 U.S. DEPARTMENT OF 20 HOMELAND SECURITY, et al.,

21

Defendants.

ORDER:
(1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR RECONSIDERATION [DOC. 46]; AND
(2) REQUIRING FURTHER BRIEFING

22

On October 24, 2012, Plaintiffs commenced this action against Defendants,

23 alleging violations of their First and Fourth Amendments by Customs and Border

24 Protection (“CBP”) officers. On September 30, 2013, the Court granted in part and 25 denied in part Defendants’ motion to dismiss for failure to state a claim. Defendants

26 now move for reconsideration of that order. Plaintiffs oppose.

27 //

28 //

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1

The Court decides the matter on the papers submitted and without oral

2 argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN

3 PART and DENIES IN PART Defendants’ motion for reconsideration, and

4 ORDERS further briefing.

5

6 I. LEGAL STANDARD

7

Once judgment has been entered, reconsideration may be sought by filing a

8 motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend

9 a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from judgment).

10 See Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir. 1993).

11

“Although Rule 59(e) permits a district court to reconsider and amend a previous

12 order, the rule offers an extraordinary remedy, to be used sparingly in the interests of

13 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop,

14 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). “Indeed, a

15 motion for reconsideration should not be granted, absent highly unusual circumstances,

16 unless the district court is presented with newly discovered evidence, committed clear

17 error, or if there is an intervening change in the controlling law.” Id. (quoting 389

18 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (internal quotation

19 marks omitted). Further, a motion for reconsideration may not be used to raise

20 arguments or present evidence for the first time when they could reasonably have been

21 raised earlier in the litigation. Id. It does not give parties a “second bite at the apple.”

22 See id. Finally, “after thoughts” or “shifting of ground” do not constitute an appropriate

23 basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL

24 2058549, at *2 (S.D. Cal. July 15, 2009).

25

Similarly, Rule 60(b) provides for extraordinary relief and may be invoked only

26 upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972

27 F.2d 1038, 1044 (9th Cir.1994) (citing Ben Sager Chem. Int’l v. E. Targosz & Co., 560

28 F.2d 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration

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1 based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

2 evidence which by due diligence could not have been discovered before the court’s

3 decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has

4 been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). That last

5 prong is “used sparingly as an equitable remedy to prevent manifest injustice and is to

6 be utilized only where extraordinary circumstances prevented a party from taking timely

7 action to prevent or correct an erroneous judgment.” Delay v. Gordon, 475 F.3d 1039,

8 1044 (9th Cir. 2007).

9

However, the relief available under Federal Rule of Civil Procedure 60(a) differs

10 from the aforementioned rules. Rule 60(a) states, in pertinent part, that “[c]lerical

11 mistakes in judgments, orders or other parts of the record and errors therein arising

12 from oversight or omission may be corrected by the court at any time of its own

13 initiative or on the motion of any party and after such notice, if any, as the court

14 orders.” Fed. R. Civ. P. 60(a). Though “[s]ubstantive changes of mind by a court

15 cannot be effected through Rule 60(a) . . . [a] court’s failure to memorialize part of its

16 decision . . . is a clerical error.” Buchanan v. United States, 755 F. Supp. 319, 324 (D.

17 Or. 1990); see also Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987).

18 “Rule 60(a) can be used to conform a judgment to a prior ruling.” Buchanan, 755 F.

19 Supp. at 324.

20

21 II. ANALYSIS

22

Defendants move for reconsideration of three parts of the previous order. First,

23 they contend that the Court made an error in partially denying their motion to dismiss

24 Plaintiffs’ First Amendment claims. (Defs.’ Mot. 2:14–5:10.) Second, they contend

25 that the Court should not have granted Plaintiffs leave to amend the First Amendment

26 claims that were dismissed. And third, they argue that the Court erred by partially

27 denying their motion to dismiss Plaintiffs’ Fourth Amendment claims. (Id. at 5:11–7:9.)

28 //

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1

A. Partial Denial of Defendants’ Motion to Dismiss Plaintiffs’ First

2

Amendment Claims Was Proper.

3

Defendants contend that “[t]he ‘pattern or practice’ claims identified by the

4 Court are not distinguished as independent claims in the complaint and, to the extent

5 they exist, they are inextricably intertwined with the First Amendment ‘policy’ claims

6 that the Court rejected.” (Defs.’ Mot. 3:3–6.) Defendants are incorrect.

7

Plaintiffs allege in the complaint that “an expressly adopted official CBP policy

8 and/or a longstanding CBP practice of prohibiting the use of cameras and video

9 recording devices at CBP-controlled facilities[.]” (Compl. 11:25–28, 12:22–25

10 (emphasis added).) The use of the disjunctive in the second and third claims allows

11 Plaintiffs to pursue alternative theories. See Fed. R. Civ. P. 8(d)(2) (“A party may set

12 out 2 or more statements of a claim or defense alternatively or hypothetically, either in

13 a single count or defense or in separate ones. If a party makes alternative statements,

14 the pleading is sufficient if any one of them is sufficient.”).

15

Defendants moved to dismiss one of Plaintiffs’ theories relating to an official CBP

16 policy, but their motion failed to adequately address allegations of a pattern or practice.

17 (See Defs.’ Mot. to Dismiss 16:21–17:19; Compl. 11:25–28, 12:22–25.) Defendants

18 only grounded their arguments for the constitutionality of policies restricting

19 photography on those specific, official policies. (See Defs.’ Mot. to Dismiss 16:21–17:19

20 (“[T]he ground rules issued by CBP’s San Diego Office of Field Operations highlight

21 “‘concerns for . . . the integrity of law enforcement and investigative activities’ . . . .

22 CBP’s photography policy also addresses ‘concerns for the privacy of the traveling

23 public.’” (citations omitted)).) One of these arguments formed a basis for the Court’s

24 order. (See Sept. 30, 2013 Order 10:8–10 (noting Defendants’ contention that their

25 policy protected an interest in preserving sensitive law enforcement techniques).)

26

Having successfully argued that CBP’s explicit and official policies regarding

27 photography were constitutional, Defendants may not now move to dismiss the

28 alternative theory of an unconstitutional pattern or practice by urging reconsideration

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1 of the previous order on the ground that “whether the alleged CBP activity occurred

2 pursuant to a policy or pursuant to a practice is immaterial.” (See Defs.’ Mot. 4:10–13.)

3 Defendants state that “[t]he fundamental premise of [Plaintiffs’ First Amendment

4 claims] is that CBP’s restriction of plaintiffs’ photographic activity—whether done

5 pursuant to a policy or pursuant to a pattern or practice—violated of [sic] the First

6 Amendment.” (Id. at 4:7–10 (emphasis added).) The basis for the Court’s previous

7 order was Defendants’ motion to dismiss, and Defendants grounded that motion’s

8 reasoning in official CBP policies. Reconsideration is not the appropriate vehicle for

9 Defendants to raise this new argument that was not raised in the previous motion. See,

10 e.g., Kona Enters., 229 F.3d at 890 (citing Orange St. Partners, 179 F.3d at 665).

11

Accordingly, the Court DENIES Defendants’ motion for reconsideration insofar

12 as it requests reconsideration of the Court’s order partially denying their previous

13 motion to dismiss Plaintiffs’ First Amendment pattern-or-practice claims.

14

15

B. Leave to Amend Plaintiffs’ First Amendment Claims Was Properly

16

Granted.

17

Defendants also “respectfully [request] that the Court reconsider its decision to

18 grant plaintiffs leave to amend the First Amendment claims[.]” (Defs.’ Mot. 5:3–4.)

19 They provide only the following reasoning: “Because ‘CBP’s photography policy survives

20 the strict scrutiny analysis,’ any attempt to amend the constitutional challenges to that

21 policy would be futile.” (Defs.’ Mot. 5:8–10.)

22

“The court should freely give leave when justice so requires,” and apply this

23 policy with “extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

24 (9th Cir. 1987) (applying Fed. R. Civ. P. 15(a)). Defendants fail to demonstrate why

25 amendment would be futile. Therefore, the Court DENIES Defendants’ motion for

26 reconsideration of the Court’s order granting leave to amend the First Amendment

27 claims.

28 //

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1

C. The Court’s Fourth Amendment Probable Cause Analysis Requires

2

Reconsideration and Further Briefing.

3

The Court began its previous Fourth Amendment analysis with Defendants’

4 contention that “[b]ecause the restriction of unauthorized photography on land ports

5 of entry is constitutional, the seizure and search of individuals who violate that

6 restriction is also constitutional.” (Sept. 30, 2013 Order 12:4–10; see also Defs.’ Mot.

7 to Dismiss 21:2–4.) In rejecting this line of reasoning, the Court relied on the

8 erroneous premise that the CBP photography policy violated the First Amendment.

9 (Sept. 30, 2013 Order 12:4–10.)

10

Because the Court had previously found the CBP policy to be permissible under

11 the First Amendment, the Court GRANTS Defendants’ motion for reconsideration

12 only of the portion of its previous order that addressed Defendants’ Fourth Amendment

13 probable-cause analysis, and that subsumed the premise that the policy was

14 unconstitutional under the First Amendment. However, the Court emphasizes that a

15 finding that the enforcement of the CBP policy comports with the Fourth Amendment

16 does not necessarily follow from the policy itself comporting with the First Amendment.

17

In its previous order, the Court did not reach the merits of Defendants’ probable

18 cause argument. Defendants contend that: (1) taking photographs at a port of entry

19 is a crime; (2) an officer who observes photographs being taken at a port has probable

20 cause to believe that a crime is being committed; and (3) the officer may thus

21 constitutionally detain that individual and seize his camera. (Defs.’ Mot. 20:18–20.)

22 They proceed to direct the Court’s attention to 42 C.F.R. §§ 102-74.370, 102-74.420,

23 102-74.450 as providing the basis for the crime in question. (Id.) However, as Plaintiffs

24 point out in their opposition brief, “a criminal conviction for violating a regulation is

25 permissible only if a statute explicitly provides that violation of that regulation is a

26 crime.” (Pls.’ Opp’n 3:24–27 (citing United States v. Alghazouli, 517 F.3d 1179, 1184

27 (9th Cir. 2008)).) Plaintiffs cite 40 U.S.C. § 121(c) as the authorizing statute for the

28 regulation providing for criminal penalties in their argument that the statute in question

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1 does not explicitly permit such penalties. (Pls.’ Opp’n 3:17–4:7.) Defendants do not

2 identify any authorizing statutes either in their motion to dismiss or in their motion for

3 reconsideration. Defendants do, however, identify such statutes in their reply briefs to

4 both motions. (Defs.’ Reply to Mot. to Dismiss 33 12:1–16; Defs.’ Reply 7:3–20

5 (arguing, among other sources of statutory authorization, that “the Ninth Circuit has

6 recognized 40 U.S.C. § 1315 as delegating authority to impose criminal penalties for

7 violations of GSA's federal property regulations”).) Consequently, Plaintiffs have not

8 yet had the opportunity to respond to this line of reasoning. Therefore, further briefing

9 is required before the Court can resolve this issue.

10

11 III. CONCLUSION & ORDER

12

In light of the foregoing, the Court GRANTS IN PART and DENIES IN

13 PART Defendants’ motion for reconsideration. (Doc. 46.) Specifically, the Court

14 DENIES Defendants’ motion insofar as Plaintiffs’ First Amendment claims as to a

15 pattern or practice, and Plaintiffs being given leave to amend. And the Court

16 GRANTS Defendants’ motion insofar as Defendants’ Fourth Amendment probable-

17 cause analysis and the incorporation of the premise that the CBP policy violated the

18 First Amendment.

19

In light of the unresolved issue reconsidered, the Court ORDERS further briefing

20 on the issue of the statutory authority for the federal property regulations that

21 Defendants argue form the grounds for the officers’ probable cause. The briefing

22 schedule shall be as follows:

23

(1) Plaintiffs shall file and serve a response, if any, to this order by April 24,

24

2014, which shall not exceed ten pages in length; and

25

(2) Defendants shall file and serve a reply, if any, to Plaintiffs’ response by

26

May 1, 2014, which also shall also not exceed ten pages in length.

27 //

28 //

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1

The parties are warned that the Court will not consider arguments straying

2 outside the scope of the specific question presented.

3

IT IS SO ORDERED.

4

5 DATE: April 17, 2014 6 7 8

HON. THOMAS J. WHELAN United States District Court Southern District of California

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1

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 RAY ASKINS, et al.,

Case No.: 12-CV-2600 W (BLM)

12

Plaintiffs,

13 v.

14 U.S. DEPARTMENT OF HOMELAND
15 SECURITY, et al., Defendants.
16

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [DOC. 65]

17

18

19

Pending before the Court is Defendants’ motion to dismiss for failure to state a

20 claim under Federal Rule of Civil Procedure 12(b)(6). (Defs.’ Mot. [Doc. 65].) The

21 Court decides the matter on the papers submitted and without oral argument. See Civ.

22 L.R. 7.1(d)(1). For the reasons stated below, the Court GRANTS Defendants’ motion

23 WITHOUT LEAVE TO AMEND and DISMISSES this case WITH PREJUDICE.

24 [Doc. 65.]

25 //

26 //

27 //

28 //

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1 I. BACKGROUND

2

Plaintiffs allege that United States Customs and Border Protection (“CBP”) “has a

3 national policy that prohibits photography on any port of entry property without advance

4 official permission.” (See FAC [Doc. 60] ¶ 8; Pls.’ Exh. A [Doc. 60-1].) They allege that

5 this policy, together with local ground rules implementing it, violates their First

6 Amendment rights because it “require[s] advance permission to take photographs . . .” of

7 CBP facilities “and provide[s] unlimited discretion for CBP officials to grant or deny

8 permission to take such photographs.” (FAC [Doc. 60] ¶¶ 119, 121.)

9

Plaintiffs allege that CBP agents acting pursuant to this policy prevented them

10 from taking pictures of the San Ysidro and Calexico Ports of Entry, and that they either

11 want or intend to take more photographs. (See FAC [Doc. 60] ¶¶ 32–100.)

12

On September 13, 2013, the Court held that the CBP policy on photography

13 comports with the First Amendment. (See Sept. 30, 2013 Order [Doc. 42] 11:20–25.) In

14 so doing, it found that “Plaintiffs[’] apparent concern that Defendants have unbridled

15 discretion to prohibit photography is unfounded.” (Id. [Doc. 42] 11:10–17.)

16

17 II. LEGAL STANDARD

18

The Court must dismiss a cause of action for failure to state a claim upon which

19 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)

20 tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51

21 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either

22 for lack of a cognizable legal theory or for insufficient facts under a cognizable theory.

23 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the

24 motion, a court must “accept all material allegations of fact as true and construe the

25 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty.,

26 487 F.3d 1246, 1249 (9th Cir. 2007).

27

Complaints must contain “a short and plain statement of the claim showing that the

28 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted

2
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1 this rule to mean that “[f]actual allegations must be enough to rise above the speculative

2 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The allegations in the

3 complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to

4 relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

5 Twombly, 550 U.S. at 570).

6

Well-pleaded allegations in the complaint are assumed true, but a court is not

7 required to accept legal conclusions couched as facts, unwarranted deductions, or

8 unreasonable inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v.

9 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

10

Leave to amend should be freely granted when justice so requires. See Fed. R.

11 Civ. P. 15(a). However, denial of leave to amend is appropriate when such leave would

12 be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996); Plumeau

13 v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997).

14

15 III. DISCUSSION

16

A. Article III Standing

17

The jurisdiction of federal courts is limited to “Cases” and “Controversies.” See

18 U.S. Const. art. III, § 2, cl. 1. This is the foundation of the doctrine of standing. See

19 Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992). Standing is a threshold

20 jurisdictional requirement. See id. at 559. It has three components: (i) “injury in fact”—

21 there must be a violation of a legally protected interest that is both concrete and

22 particularized, and that is either actual or imminent; (ii) causation—there must be a

23 causal link between the conduct challenged and the injury; and (iii) redressability—a

24 favorable decision by the Court must be likely to redress the injury. See id. at 560

25 (internal citations omitted).

26

In light of the potential for chilling effects on free speech, “[c]onstitutional

27 challenges based on the First Amendment present unique standing considerations.”

28 Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir.

3
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1 2003). In First Amendment cases, “plaintiffs may establish an injury in fact without first

2 suffering a direct injury from the challenged restriction.” See Lopez v. Candaele, 630

3 F.3d 775, 785 (9th Cir. 2010). “In such pre-enforcement cases, the plaintiff may meet

4 constitutional standing requirements by ‘demonstrat[ing] a realistic danger of sustaining a

5 direct injury as a result of the statute’s operation or enforcement.’ ” Id. (quoting Babbitt

6 v. United Farm Workers Nat’l Union, 442 U.S. 289, 298). Such a realistic danger must

7 be supported by an allegation of an intent to engage in conduct “ ‘arguably affected with

8 a constitutional interest, but proscribed by a statute, and . . . a credible threat of

9 prosecution thereunder.’ ” Id. (quoting Babbitt, 442 U.S. at 298). But “plaintiffs must

10 still show an actual or imminent injury to a legally protected interest.” Id. (internal

11 citations omitted). The “touchstone” of this inquiry is whether the injury or threat of

12 injury is credible—more than mere speculation. See id. at 786.

13

In the First Amendment context, self-censorship can itself be a constitutionally

14 sufficient injury so long as it is based on “an actual and well-founded fear” that the

15 challenged statute will be enforced. See Human Life of Washington, Inc. v. Brumsickle,

16 624 F.3d 990, 1001 (9th Cir. 2010) (quoting Cal. Pro–Life Council Inc. v. Getman, 328

17 F.3d 1088, 1095 (9th Cir.2003)).

18

Defendants contend that Plaintiffs do not allege injury in fact because the

19 allegations of future harm are “hypothetical[,]” “conjectural[,]” and “may never occur at

20 all.” (See Defs.’ Mot. [Doc. 65-1] 17:1–17.) The FAC alleges that Plaintiffs Askins and

21 Ramirez both attempted to take photographs at the San Ysidro and Calexico Ports of

22 Entry, respectively, but that CBP agents acting pursuant to official policy detained the

23 two of them and prevented them from doing so. (FAC [Doc. 60] ¶¶ 32–71, 72–100.) It

24 alleges that Mr. Askins “wants to continue photographing [the area in question] . . . [but]

25 has a reasonable fear” that that he will be subject to CBP interference if he attempts to do

26 so; it further alleges that Mr. Ramirez “intends” to resume his photography activities “as

27 soon as he is able to do so without CBP interference. (See id. [Doc. 60] ¶¶ 66–71, 111–

28

4
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1 117.) The Court assumes true these well-pleaded allegations of fact. See Papasan, 478

2 U.S. at 265.

3

Plaintiffs Askins and Ramirez both allege a desire or intention to resume the

4 conduct they argue is constitutionally protected, but that CBP policy proscribes. (See id.)

5 They allege that they have both been detained once for the conduct in question, and they

6 both allege a fear that a resumption of photography may result in future detention or

7 seizures. (See id.) As such, Plaintiffs allege both a realistic danger of sustaining future

8 injury from the operation of CBP policy, and self-censorship based on a well-founded

9 fear of enforcement. See Lopez, 630 F.3d at 785; Brumsickle, 624 F.3d 990, 1001.

10 Therefore, Plaintiffs allege injury in fact. See id.

11

Defendants’ motion to dismiss the FAC on standing grounds is denied.

12

13

B. Law of the Case

14

“ ‘The law of the case doctrine is a judicial invention designed to aid in the

15 efficient operation of court affairs.’ ” U.S. v. Lummi Indian Tribe, 235 F.3d 443, 452

16 (9th Cir. 2000) (quoting Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,

17 715 (9th Cir. 1990)). “[A] court is generally precluded from reconsidering an issue

18 previously decided by the same court, or a higher court in the identical case.” See id.

19 For the doctrine to apply, “the issue in question must have been ‘decided explicitly or by

20 necessary implication in [the] previous disposition.’ ” Id. (quoting Liberty Mutual Ins.

21 Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982)). Application of the law of the case

22 doctrine is discretionary. A court may reconsider its previous order and depart from the

23 law of the case if:

24

1) the first decision was clearly erroneous;

2) an intervening change in the law has occurred;

25

3) the evidence on remand is substantially different;

26

4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.

27 United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (quoting United States v.

28 Alexander, 106 F.3d 874, 876 (9th Cir. 1997)).

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1

As noted above, the Court held that CBP’s photography policy comports with the

2 First Amendment on September 30 of 2013. (See Sept. 30, 2013 Order [Doc. 42] 11:20–

3 25.) As held in 2013, “CBP’s photography policy survives the strict scrutiny analysis due

4 to the extremely compelling interest of border security and the fact that the Court finds

5 the current policy to be the least restrictive alternative available to Defendants.” (Id.)

6

Now, more than two years later, Plaintiffs bring claims that hinge on the identical

7 issue—whether CBP’s policy of prohibiting photography at CBP-controlled facilities is

8 inconsistent with the First Amendment. (See FAC [Doc. 60] ¶¶ 118–125.) Their

9 opposition to the instant motion attempts to relitigate that same issue, but it does not

10 identify any clear error, intervening change in law, new evidence, changed

11 circumstances, or manifest injustice resulting from the previous decision. (See Pls.’

12 Opp’n [Doc. 70] 10:25–23:15.)

13

As the Court reasoned in 2013, the CBP policy in question is the least restrictive

14 means by which to serve the compelling interest of protecting United States territorial

15 sovereignty. (See Sept. 30, 2013 Order [Doc. 42] 10:4–11:25.) See Berger v. City of

16 Seattle, 569 F.3d 1029, 1052 (9th Cir. 2009) (summarizing the First Amendment strict

17 scrutiny analysis). The policy shields sensitive CBP operations that would lose efficacy

18 if made known to those who would smuggle aliens or contraband across the border. (See

19 id.) In its original order, the Court noted Plaintiffs’ contention that the policy was

20 overinclusive because it extended to photography of matters in public view. (See id.)

21 Plaintiffs had submitted that CBP could serve national interests by prohibiting only

22 photography of internal CBP matters, those already hidden from the public. (See id.)

23 Besides its apparent superfluity, this notion overlooks the distinction between exhaustive

24 recording of CBP activities over time and an individual’s transitory observations when

25 crossing. A CBP policy that did not restrict photography on ports of entry would allow

26 comprehensive, long-term documentation of port procedures. Such intimate familiarity

27 with CBP patterns would be invaluable to drug cartels and smugglers seeking to violate

28 the borders of the United States.

6
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1

The law of the case bars Plaintiffs’ claims. See Lummi Indian Tribe, 235 F.3d at

2 452. Defendants’ motion to dismiss is granted.

3

4 IV. CONCLUSION AND ORDER

5

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss

6 WITHOUT LEAVE TO AMEND.1 [Doc. 65.]

7

This action is DISMISSED WITH PREJUDICE. The Clerk is directed to close

8 the case.

9

10

IT IS SO ORDERED.

11

12 Dated: March 23, 2016

13

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21

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24

25

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27 28 1 As the dismissal is based on the legal insufficiency of Plaintiffs’ claims, amendment would be futile.
See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).

7
12-CV-2600 W (BLM)

 
 Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

2015 WL 12434362 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Ray ASKINS and Christian Ramirez, Plaintiffs, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
CASE NO. 12-CV-2600 W (BLM) |
Signed 01/29/2015
Attorneys and Law Firms
Jonathan Paul Markovitz, John David Loy, Mitra Ebadolahi, Aclu Foundation of San Diego and Imperial Counties, Kimberly Rhea Gosling, Mark Andrew Woodmansee, Mary Prendergast, Morrison & Foerster LLP, San Diego, CA, for Plaintiffs.
U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, Nathan Michael Swinton, Stephen J. Buckingham, Patrick George Nemeroff, United States Department of Justice, Washington, DC, for Defendants.

supplemental briefs. (See Pls.’ Suppl. Br. [Doc. 50]; Defs.’ Suppl. Reply [Doc. 51].) Defendants continue to seek the dismissal of Plaintiffs’ Fourth Amendment claims. Plaintiffs oppose.
The Court decides the matter on the parties’ briefs and the record. See S.D. Cal. Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS-IN-PART Defendants’ motion for reconsideration, and DISMISSES-IN-PART Plaintiffs’ Fourth Amendment claims.
I. BACKGROUND The facts of this case are well known to the parties and the Court. Nevertheless, given the tenor of the relevant issues, the Court finds it appropriate to restate the facts below.1 As the Court has previously noted, Plaintiffs allege that in two separate but similar incidents, their First Amendment and Fourth Amendment rights were infringed.2 The first incident involved Mr. Ramirez and occurred on June 20, 2010 at the San Ysidro Port of Entry. The second involved Mr. Askins and occurred on April 19, 2012 at the Calexico Port of Entry.

ORDER GRANTING-IN-PART DEFENDANTS’ MOTION FOR RECONSIDERATION [DOC. 46]
Hon. Thomas J. Whelan, United States District Judge
*1 Pending before the Court is Defendants’ motion for reconsideration of the Court’s September 30, 2013 Order, (Defs.’ Mot. Recons. [Doc. 46] ), wherein the Court granted-in-part and denied-in-part Defendants’ motion to dismiss Plaintiffs’ Complaint for failure to state a claim, (see Sept. 30, 2013 Order [Doc. 42] ). Thereafter, the Court granted-in-part and denied-in-part Defendants’ motion, and ordered further briefing. (Apr. 17, 2014 Order [Doc. 49].) The parties have submitted their
1

A. Incident Involving Mr. Ramirez According to the Complaint, Mr. Ramirez is a U.S. citizen living in San Diego, California who crosses the border three or four times every month. (Compl. ¶ 33.) He works as the Human Rights Director for Alliance San Diego, a nonprofit organization dedicated to a number of causes, including issues related to immigrant rights at the U.S.–Mexico Border. (Id. ¶ 34.) As part of his job, and as a concerned member of the “border community,” Mr. Ramirez often visits the U.S.–Mexico border “to observe law enforcement activity and monitor human rights issues.” (Id. ¶ 35.)
On or around June 20, 2010, Mr. Ramirez and his wife were returning to the United States after visiting a family member in Mexico. (Compl. ¶¶ 36–37.) After being admitted into the United States, Mr. Ramirez and his wife crossed a pedestrian bridge that passes over Interstate 5 on the U.S. side of the border. (Id. ¶ 37.) While crossing

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

the bridge, Mr. Ramirez noticed that male Customs and Border Protections (“CBP”) officers were inspecting and patting down female pedestrians at a southbound pedestrian checkpoint below the bridge. (Id. ¶ 38.) Mr. Ramirez claims that his wife said that the officers were only inspecting female pedestrians. (Id.) Mr. Ramirez “observed the checkpoint for approximately ten to [fifteen] minutes,” taking approximately ten pictures using his cell phone camera out of concern that the officers were acting inappropriately. (Id. ¶ 39.) Mr. Ramirez does not allege that he had or attempted to obtain permission from CBP prior to photographing the port of entry. (See id.)
*2 While Mr. Ramirez was observing and photographing the checkpoint from the pedestrian bridge, a uniformed officer asked him to present his personal identification documents and to stop taking pictures. (Compl. ¶¶ 42–43.) After explaining that he had already passed through inspection, refusing to hand over his documents, and taking another picture of the officer, Mr. Ramirez and his wife began to descend the pedestrian bridge. (Id. ¶¶ 42–44.)
At the bottom of the bridge, CBP officers stopped Mr. Ramirez and his wife and asked whether and why he had taken photographs. (Compl. ¶ 44.) Mr. Ramirez told the officers that he had taken photographs of “what he believed to be inappropriate activity by CBP officers at the checkpoint—namely, the patting down of women by male officers.” (Id.) After Mr. Ramirez refused the officer’s request to turn over his phone, he offered to show them the pictures. (Id. ¶ 45.)
At that point, a U.S Immigration and Customs Enforcement (“ICE”) agent confronted Mr. Ramirez and asked him for his personal identification documents. (Compl. ¶ 46.) Mr. Ramirez again refused and explained that he and his wife had already been inspected. (Id.) The ICE agent took Mr. Ramirez’s and Mr. Ramirez’s wife’s passports and brought them to a nearby office. (Id.) While in the office, a CBP officer scrolled through the photos on Mr. Ramirez’s phone and deleted all the photos Mr. Ramirez had taken of the CBP checkpoint. (Id.) The ICE agent returned the passports and allowed Mr. Ramirez and his wife to continue on their way. (Id. ¶ 49.)

B. Incident Involving Mr. Askins According to the Complaint, Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. (Compl. ¶ 17.) He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.–Mexico border region. (Id.) Mr. Askins’s work “involves extensive research, investigation, and analysis of CBP border activities.” (Id.)
On April 18, 2012, Mr. Askins contacted CBP Officer John Campos by phone and “requested permission to take three or four photographs inside the secondary inspection area at the Calexico port of entry” on April 19, 2012. (Compl. ¶ 20.) Officer Campos did not object to the request, nor did he grant it. (Id.) On April 19, 2012, Mr. Askins called Officer Campos to follow up on their previous conversation, but Campos did not answer. (Id. ¶ 21.) Mr. Askins left Officer Campos a voicemail stating that he was going to stand on the street in Calexico and take photographs of the exit of the secondary inspection area. (Id.)
On or about April 19, 2012, Mr. Askins took “three or four photographs of the exit of the secondary inspection area” while standing approximately “50–100 feet from the exit from the secondary inspection area.” (Compl. ¶ 22.) When he took the pictures, he was in the United States and “not engaged in the act of crossing the border.” (Id. ¶ 24.) After Mr. Askins took the pictures, CBP officers demanded he delete the photos. (Id. ¶ 25.) Mr. Askins refused, and the officers stated they would “smash the camera if Mr. Askins did not delete the photos.” (Id.) He again declined, explaining that the photos were his property. (Id.) At that point, the officers handcuffed Mr. Askins and took his camera, passport, car keys, and hat. (Id.)
Mr. Askins was forcefully led into a small room inside the secondary inspection area and told to sit down. (Compl. ¶ 27.) He was not free to leave. (Id.) He was later taken to a separate room where he was “subjected ... to an invasive and embarrassing physical search.” (Id. ¶ 28.) Then, the officers told Mr. Askins he was free to go and returned his belongings. (Id. ¶ 29.) Upon inspection of his phone, he realized that three of the four pictures he had taken of the port of entry had been deleted. (Id. ¶ 30.)

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Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

C. The Current Litigation *3 On October 24, 2012, Plaintiffs filed this action alleging multiple violations of their First and Fourth Amendment rights. (Compl. ¶¶ 52–73.) On February 13, 2013, Defendants filed a motion to dismiss Plaintiffs’ Complaint for failure to state a claim. (MTD [Doc. 22]; Defs.’ Reply [Doc. 33].). Plaintiffs opposed. (Pls.’ Opp’n [Doc. 32].) Thereafter, on September 30, 2013, the Court granted-in-part and denied-in-part Defendants’ motion to dismiss. (See Sept. 30, 2013 Order.) The Court’s Order prompted Defendants to file a motion for reconsideration, which the Court granted-in-part and denied-in-part on April 17, 2014. (See Defs.’ Mot. Recons.; Apr. 17, 2014 Order.) The Court also ordered the parties to submit further briefing on Defendants’ probable cause argument—an argument contained within the portion of Defendants’ motion to dismiss that addressed Plaintiffs’ Fourth Amendment claims. (Apr. 17, 2014 Order 6:17–18.) Specifically, the Court ordered briefing “on the issue of the statutory authority for the federal property regulations that Defendants argue form the grounds for the officers’ probable cause.” (Id. at 7:19–21.) The parties have submitted their supplemental briefs, which are now before the Court. (See Pls.’ Suppl. Br.; Defs.’ Suppl. Reply.)
II. LEGAL STANDARD Once judgment has been entered, reconsideration may be sought by filing a motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993).
“Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and internal quotation marks omitted). “Indeed, ‘a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.’ ” Id. (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Further, a motion for reconsideration “may
3

not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Id. It does not give parties a “second bite at the apple.” See id. Finally, “after thoughts” or “shifting of ground” do not constitute an appropriate basis for reconsideration. Ausmus v. Lexington Ins. Co., 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009) (citations and internal quotation marks omitted).
Similarly, Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992) (citing Ben Sager Chem. Int’l v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered before the court’s decision; (3) fraud by the adverse party; (4) the judgment being void; (5) the judgment having been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). The ground for relief under (6) is “used sparingly as an equitable remedy to prevent manifest injustice” and “is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” U.S. v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).
However, the relief available under Federal Rule of Civil Procedure 60(a) differs from the aforementioned rules. Rule 60(a) states, in pertinent part, that “[t]he court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record,” and “[t]he court may do so on motion or on its own, with or without notice.” Fed. R. Civ. P. 60(a). Though “[s]ubstantive changes of mind by a court cannot be effected through Rule 60(a),” it is said that “[a] court’s failure to memorialize part of its decision [constitutes] a clerical error.” Buchanan v. United States, 755 F. Supp. 319, 324 (D. Or. 1990) (citing Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983)); see also Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987). “Rule 60(a) can be used to conform a judgment to a prior ruling.” Buchanan, 755 F. Supp. at 324 (citation omitted).

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

III. DISCUSSION *4 In its September 30, 2013 Order, the Court found CBP’s photography policy to comport with the First Amendment. (See Sept. 30, 2013 Order 11:20–25.) Next, in setting out its Fourth Amendment analysis, the Court restated Defendants’ contention that “[b]ecause the restriction of unauthorized photography on land ports of entry is constitutional, the seizure and search of individuals who violate that restriction is also constitutional.” (Id. at 12:4–10 (citing MTD 21:2–4) (internal quotation marks omitted).) However, despite the Court’s initial finding that CBP’s policy does not violate the First Amendment, the Court then relied on the erroneous premise that CBP’s photography policy does violate the First Amendment, and therefore rejected Defendants’ contention. (Id.) As a result, the Court—with one exception—denied Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claims.3 (Id. at 11:28–13:17, 14:7–13.)
In light of the above, the Court has not yet had an opportunity to reach the merits of Defendants’ probable cause argument. (See Apr. 17, 2014 Order at 6:17–18.) The Court will now analyze that argument. And, for the reasons stated below, the Court GRANTS-IN-PART Defendants’ motion for reconsideration and DISMISSES-IN-PART Plaintiffs’ Fourth Amendment claims, but only to the extent that Plaintiffs claim that CBP’s photography policy violates the Fourth Amendment.
A. CBP’s Policy Comports with the Fourth Amendment In its motion to dismiss, Defendants argued that “CBP’s written policy complies with the Fourth Amendment by permitting the arrest of individuals who take unauthorized photographs on ports of entry.” (MTD 20:14–15.) Defendants then explained that “GSA regulations authorize[ ] the arrest and search of an individual on port of entry property if an officer has probable cause to believe that the individual has violated federal law.” (Id. at 20:18–20.) Thus, according to Defendants’ probable cause argument, (1) taking photographs at a port of entry is a crime; (2) an officer who observes photographs being taken at a port of entry has probable cause to believe that a crime is being committed; and (3) the officer may thus constitutionally detain that individual and seize his
4

camera. (Id.)
In support of their argument, Defendants pointed to various provisions of the code of federal regulations as well as a CBP agency directive. (See, e.g., MTD 20:17–24.) Under 41 C.F.R. § 102-74.420—the federal regulation pertaining to “the policy concerning photographs for news, advertising or commercial purposes”—photography on federal property is explicitly limited. The text of the regulation states as follows:
Except where security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of—
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.
41 C.F.R. § 102-74.420. Section 102-74.370 of the same subpart of the C.F.R.— subpart “C,” which deals with “Conduct on Federal Property”—details the items subject to inspection on federal property by federal agencies.4 Section 102-74.450 is the subpart’s criminal penalties provision.5
*5 In addition to § 102-74.420, the CBP’s Office of Public Affairs has circulated a Directive that appears to elucidate CBP’s photography policy.6 According to that Directive, “CBP personnel should not prevent the lawful efforts of the news media to photograph, tape, record, or televise an enforcement action from outside a designated perimeter as long as the CBP-controlled area has not been breached.” CBP Directive No. 5410–001B, 6.2.2 (emphasis added). The Directive further explains that “[d]etention of persons or media and/or the detention of recording equipment, film or notes are prohibited unless the owner or operator of such materials has violated federal law.” Id. at 6.2.4 (emphasis added).
Thus, the first issue that the Court must resolve is whether a violation of the provisions at § 102-74.420, specifically

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

§ 102-74.420(a), constitutes a crime. The Court will then decide whether an officer who observes photographs being taken at a port of entry has probable cause to believe that a crime is being committed, and, if so, whether the officer may detain that individual and seize his camera.
1. The relevant statutory history indicates that taking photographs on a port of entry in contravention of 41 C.F.R. § 102-74.420(a)constitutes a crime Plaintiffs’ principal point of contention is that a violation of the regulation codified at 41 C.F.R. § 102-74.420(a) is not a crime. (Pls.’ Suppl. Br. 1:7–12 (“Simply put, taking photos of matters exposed to public view on federal property is not a crime.”).) In setting the foundation for that argument, Plaintiffs cite to United States v. Alghazouli, wherein the Ninth Circuit recognized that according to the Supreme Court, “a criminal conviction for violating a regulation is permissible only if a statute explicitly provides that violation of that regulation is a crime.” 517 F.3d 1179, 1184 (2008). Plaintiffs proceed to argue that §§ 102-74.420(a) and 102-74.450—the criminal sanctions provision—are not based on a statutory source of authority authorizing criminal sanctions, “and therefore the regulations cannot criminalize Plaintiffs’ conduct.” (Pls.’ Suppl. Br. 1:5–8.) As Plaintiffs point out, §§ 102-74.420(a) and 102.74.450 appear to cite only to 40 U.S.C. § 121(c) as their statutory source of authority. (Id. at 1:22–2:11.) Plaintiffs believe this to mean that § 121(c) constitutes “the sole statute that expressly authorizes the regulations at issue here.” (Id. at 3:4–5 (emphasis added).)
Section 121(c) falls under Subtitle I of Title 40 of the United States Code. Title 40 pertains to “Public Buildings, Property, and Works,” and Subtitle I pertains to “Federal Property and Administrative Services.” The text of § 121(c), which deals with functions of the Administrator of the General Services Administration (“GSA”), states:
(c) Regulations by Administrator.—
(1) General Authority.— The Administrator may prescribe regulations to carry out this subtitle.
(2) Required regulations and order.— The Administrator shall prescribe regulations that the
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Administrator considers necessary to carry out the Administrator’s functions under this subtitle and the head of each executive agency shall issue orders and directives that the agency head considers necessary to carry out the regulations.
40 U.S.C. § 121(c). Plaintiffs note that “[b]y its plain language, [§ 121(c)] does not authorize criminal penalties for violation of any regulation it authorizes.” (Pls.’ Suppl. Br. 1:24–25.) And, after applying the decision in Alghazouli to the instant case, Plaintiffs conclude that violators of 41 C.F.R. § 102-74.420 are not subject to criminal penalties because “there is no statutory authorization for the imposition of criminal penalties for alleged violation[s] of § 102-74.420.” (Pls.’ Suppl. Br. 2:10–11.)
*6 Defendants, on the other hand, contend that the government indeed has “the ability to criminally sanction violators of federal property regulations such as the regulations specified under 41 C.F.R. § 102-74.420. (See Defs.’ Suppl. Reply 1:2–3.) To support their contention, Defendants assert that § 102-74.420’s citation to 40 U.S.C. § 121(c) is not fully determinative of the issue. Rather, Defendants argue it is actually 40 U.S.C. § 1315(c) that serves as the statutory authority providing for criminal sanctions of violations of federal property regulations. (See, e.g., id. at 8:3–8.) And, as Defendants point out, “Plaintiffs cite to no authority suggesting that a Federal Register notice”—such as the one in question that purportedly modified the Federal Management Regulations (“FMR”) in 2005—“must contain a citation to all relevant statutory authorities or risk becoming ineffective.” (Id. at 4:19–5:5.) Therefore, according to Defendant, the fact that §§ 102-74.420 and 102-74.450 cite only to 40 U.S.C. § 121(c) as their “general regulatory authority” does not lead to the conclusion that there can be no other extant statutory authority for criminalizing violations of § 102-74.420. (Id. at 4:19–5:5; 8:3–8.) The Court agrees with Defendants.
Congress enacted 40 U.S.C. § 318a in 1948, thereby authorizing the GSA to promulgate rules and regulations to govern property falling within its control. Act of June 1, 1948, ch. 359, § 2, 62 Stat. 281 (1948). In addition, § 318a provided for the enforcement of such rules and regulations, and, in conjunction with § 318c, it authorized penalties for violations of those rules and regulations. 40 U.S.C. §§ 318a, 318c (1948). In 2002, in an effort to “revise, codify, and enact without substantive change certain general and permanent laws, related to public

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

buildings, property, and works,” Congress modified Title 40. Pub. L. No. 107-217, 116 Stat. 1062 (2002). Through that modification, Congress moved the substance of the statutory provisions previously codified at 40 U.S.C. § 318 to 40 U.S.C. § 1315. See id.; see also U.S. v. Bichsel, 395 F.3d 1053, 1055 (9th Cir. 2005).
In addition to the 2002 modifications of Title 40, Congress also passed the Homeland Security Act (“HSA”) in 2002 in the wake of the events of September 11, 2001. Pub. L. No. 107-96, 116 Stat. 2135 (2002). One effect of the HSA was the transfer of the functions of the Administrator of the GSA—previously codified at 40 U.S.C. § 318—to the Secretary of the newly-formed Department of Homeland Security (“DHS”). See id.; 40 U.S.C. § 1315. The HSA contained a number of savings provisions, one of which explained that “[c]ompleted administrative actions of an agency shall not be affected by the enactment of [the HSA] or the transfer of such agency to the Department [of Homeland Security], but shall continue in effect according to their terms until amended, modified, superseded, terminated, set aside, or revoked.” Pub. L. No. 107-296, § 1512(a)(1), 116 Stat. 2135 (codified at 6 U.S.C. § 552(a)(1)). The Act noted that the phrase “completed administrative action” included “orders, determinations, rules, regulations, [and] personnel actions.” Id. at § 1512(a)(2) (emphasis added) (codified at 6 U.S.C. § 552(a)(2)). Defendants point out—and the Court has found no indication to the contrary—that the Secretary of DHS has yet to revoke or otherwise amend the GSA’s previously promulgated rules. (See Defs.’ Reply Br. 2:1–3.)
Therefore, in light of the above, it appears that the aforementioned congressional actions in 2002 relocated the former 40 U.S.C. § 318 to its current position at 40 U.S.C. § 1315, and transferred from the GSA to the Secretary of the DHS the authority to revise or otherwise promulgate regulations such as the those under which the instant dispute arises.7 See § 1315(c).
*7 Nonetheless, Plaintiffs further argue that the 2005 publication in the Federal Register of the regulations at issue—41 C.F.R. §§ 102-74.420 and 102-74.450—relies on a statute “that does not authorize criminal penalties.” (Pls.’ Suppl. Br. 3:12–14, 1:22–25.) Plaintiffs again identify that statute as 40 U.S.C. § 121(c). (See id. at 1:22–25, 3:3–6.) And, as previously noted, Plaintiffs point out that this “sole statute that expressly authorizes the regulations at issue here ... does not establish ... criminal liability.” (Id. at 3:2–6.) In other words, Plaintiffs contend
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that “statutory authorization for regulatory criminal liability must be located, if it exists at all, by reference to the statutes that the regulation itself recognizes as its source of authority.” (Id. at 3:6–8.)
Defendants, on the other hand, claim that the “2005 GSA update to and reorganization of certain federal property regulations”—which affected 102-74.420 and 102-74.450—merely constituted one of several instances of the GSA’s attempts to “streamline regulations governing federal property.” (Defs.’ Reply Br. 3:17–20.) Thus, Defendants assert that the 2005 GSA actions were merely “technical in nature” and did not dispense with the government’s ability to prescribe criminal penalties for regulatory violations. (Id. at 5:11–13.) The Court again agrees with Defendants.
Before Congress passed the HSA in 2002, the Administrator of the GSA was authorized to impose criminal penalties for violations of regulations governing federal property. Prior to 2002, those regulations were located at 41 C.F.R. Pt. 101. The specific regulation authorizing criminal penalties for violations of federal property regulations was located at 41 C.F.R. § 101-20.315. Management of Buildings and Grounds, 53 Fed. Reg. 129-01 (Jan. 5, 1988). In 2002, the regulations previously contained at § 101-20 were moved to § 102-74. See Real Property Policies, 67 Fed. Reg. 76882-01 (Dec. 13, 2002); see also 41 C.F.R. § 101-20.0.8 According to the Federal Register, these GSA changes moved the criminal penalties provision—located at 41 C.F.R. § 101-20.315—to its current location at 41 C.F.R. § 102-74.450. 67 Fed. Reg. 76882-01; Real Property Policies Update, 67 Fed. Reg. 76820-01 (Dec. 13, 2002). The subsequent 2005 changes that Plaintiffs refer to were made for the purposes of “amending the Federal Management Regulation (FMR) to update the legal citations to conform [to law] and to incorporate additional policy guidance.” Federal Management Regulation; Real Property Policies Update, 70 Fed. Reg. 67786-01 (Nov. 8, 2005). Thus, the 2005 changes did not alter the location or substance of 41 C.F.R. § 102-74.450.
As Defendants point out, the fact that the 2005 updates to the regulations in question here only cite to 40 U.S.C. § 121(c) is unavailing to Plaintiffs position for several reasons. First, Plaintiffs do not cite any authority that would require a Federal Register notice to include citations to all relevant statutory authorities or risk becoming ineffective. (Defs.’ Suppl. Reply 5:2–5.) Second, Defendants note that in 2002 and 2005, the GSA

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

“no longer had the authority to prescribe, revoke, or amend property regulations with criminal penalties” because such authority had been transferred to DHS under the HSA and 40 U.S.C. § 1315(c). (Id. at 5:5–8.) Therefore, in light of the fact that neither the 2002 or 2005 action substantively modified the federal property regulations that fall within the purview of the DHS’s authority, it appears that those GSA actions were in fact merely “technical in nature.” (Id. at 5:11–12.)
*8 For the reasons discussed above, the Court finds that the relevant statutory history establishes that a violation of 41 C.F.R. § 102-74.420(a) in fact constitutes a crime and subjects violators to criminal penalties.
2. Extant case law also indicates that a violation of 41 C.F.R. § 102-74.420(a) constitutes a crime In addition to the foregoing, extant case law appears to indicate that individuals who violate § 102-74.420(a) are indeed subject to criminal penalties. According to Defendants, numerous circuit courts—including the Ninth Circuit—have affirmed criminal convictions for regulatory violations comparable to the regulation at issue in the instant case. (See, e.g., Defs.’ Suppl. Reply 1:11–13.) In support of this contention, Defendants cite, inter alia, United States v. Baldwin, 745 F.3d 1027 (10th Cir. 2014), United States v. Strong, 724 F.3d 51 (1st Cir. 2013), and Bichsel, 395 F.3d at 1053. Plaintiffs, on the other hand, contend that Defendants’ citations are inapposite. Plaintiffs, for their part, cite to the Eleventh Circuit’s decision in United States v. Izurieta, 710 F.3d 1176 (11th Cir. 2013), which they aver supports “the principle that statutory authorization for regulatory criminal liability must be located, if it exists at all, by reference to the statutes that the regulation itself recognizes as its source of authority.” (Pls.’ Suppl. Br. 3:6–8.) For the following reasons, the Court finds that Defendants have the better of the argument.
In Baldwin, an attorney was convicted of three offenses after a bench trial before a federal magistrate judge, two of which were based on federal property regulations located at 41 C.F.R. Pt. 102-74.9 745 F.3d at 1029–30. The attorney challenged his federal property regulation convictions, arguing that the regulations existed merely to “articulate[ ] no more than administrative rules or policies, not crimes.” Id. at 1030. The Tenth Circuit
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disagreed.
In affirming the attorney’s convictions, the court explained that “[t]he regulations certainly do delineate policy, but that isn’t all they do.” Baldwin, 745 F.3d at 1030. The court continued: “Another section of the same regulatory ‘subpart’ expressly provides that the very sections Mr. Baldwin violated can be enforced through criminal sanctions ....” Id. The court then quoted 41 C.F.R. § 102-74.450—the criminal sanctions provision discussed above. Id. And, in identifying the statutory authority for the criminalization of the conduct for which the appellant had been convicted, the court explained:
[W]ith some scratching around we see that Congress did expressly authorize first the General Services Administration and then the Department of Homeland Security to establish regulations “for the protection and administration of property owned or occupied by the Federal Government” and to prescribe “reasonable” penalties of “not more than 30 days” in prison and fines in the amounts allowed by title 18.
*9 Id. (emphasis added). In support of this, the court cited both 40 U.S.C. § 1315(c) and 6 U.S.C. § 552. Id. The court’s citations noted that 40 U.S.C. § 1315(c) was “formerly found at 40 U.S.C. 318a, 318c,” and that 6 U.S.C. § 552 “facilitat[ed] transfer of authority from GSA to DHS.” Id. Furthermore, the Baldwin court concluded that the criminal provision regulation in question “can claim at least some legislative pedigree, some measure of congressional authorization.” Id. Thus, it appears that the Tenth Circuit’s “scratching around” in Baldwin is tantamount to the examination of statutory authority that this Court conducted above.
Another case to which Defendants cite in support of their position is Strong. 724 F.3d at 51. In Strong, an individual defendant soiled the first floor men’s restroom at a federal courthouse in Portland, Maine. Id. at 54. As a result of his actions, the defendant was charged with violating 41 C.F.R. § 102-74.380(b) and (d), which prohibit “[a]ll persons entering in or on Federal property” from “[w]illfully destroying or damaging property,” and from “[c]reating any hazard on property to persons or things.” Id. at 52. The defendant was also charged with violating 41 C.F.R. § 102-74.390(a), which prohibits “[a]ll persons entering in or on Federal property ... from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that ... [c]reates loud or unusual noise or a nuisance.” Id. After a bench trial before a magistrate

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

judge, the defendant was convicted of violating all three regulations and sentenced to seven days in jail. Id. at 52, 55. The district court affirmed the convictions on appeal—a decision that the defendant later appealed to the Court of Appeals for the First Circuit. Id. at 52.
In reviewing the defendant’s convictions, the First Circuit acknowledged 40 U.S.C. § 1315(c)(1) as being “the enabling statute” for regulations falling within subpart “C” of § 102-74. See Strong, 724 F.3d at 55. Specifically, the court quoted the language of § 1315(c)(1) and explained that “[t]he statute ... authorizes the Secretary [of Homeland Security] to come up with substantive rules needed for the protection and administration of the property.” Id. at 56. Based in part on that finding, the Court ultimately upheld the defendant’s convictions. Id. at 60. Thus, although the specific legal arguments proffered by the defendant in Strong differ from that of the Plaintiffs in the instant case,10 Strong—consistent with Defendants’ averments here—appears to supply additional support for the proposition that 40 U.S.C. § 1315 provides a statutory basis for criminalization of acts prohibited under subpart “C” of § 102-74.
A third case to which Defendants cite for support is Bichsel. 395 F.3d at 1053. Bichsel involved a defendant who, after chaining himself to the doors of a United States courthouse in Tacoma, Washington, and subsequently refusing to comply with a Federal Protective Service officer’s command to remove the chains, was charged with violating 41 C.F.R. § 102-74.385—a federal regulation requiring “[p]ersons in and on [Federal] property” to comply “with the lawful direction of Federal police officers and other authorized individuals.” Id. at 1054–55. After a bench trial before a magistrate judge, the defendant was found guilty of violating § 102-74.385. Id. at 1055. The district court then affirmed the conviction on appeal, and the defendant sought review of that decision before the Ninth Circuit. Id.
*10 In upholding the defendant’s conviction, the Ninth Circuit explained that § 102-74.385—another regulation falling within the purview of the same statutory subpart of the regulations in question in the instant case—“is promulgated under 40 U.S.C. § 1315.” Bichsel, 395 F.3d at 1055. The court then went one step further to note that “[s]ection 1315 was enacted in August 2002, and is derived from former 40 U.S.C. § 318”—the original statute that Congress enacted in 1948, which, as discussed above and by the Sixth Circuit in Baldwin, (1) authorized the GSA to promulgate rules and regulations to govern
8

property falling within its control, and (2) provided for the enforcement of such rules and regulations through the penalties it authorized. Id. Thus, as Defendants point out, the Ninth Circuit’s decision in Bichsel provides yet another example of an appellate court recognizing 40 U.S.C. § 1315 as providing a statutory basis for criminalization of acts prohibited under subpart “C” of § 102-74.11 (See Defs.’ Suppl. Reply 5:20–6:4 (citing Bichsel, 395 F.3d at 1055).)
Plaintiffs, on the other hand, rely on Izurieta, 710 F.3d at 1184, in support of their assertion that “statutory authorization for regulatory criminal liability must be located, if it exists at all, by reference to the statutes that the regulation itself recognizes as its source of authority.” (Pls.’ Suppl. Br. 2:21–3:8.) The defendants in Izurieta were charged with and subsequently convicted, under 18 U.S.C. § 545, of conspiracy to unlawfully import goods into the United States based on their purported violation of 19 C.F.R. § 141.113(c)(3). 710 F.3d at 1178–79. On appeal, the Eleventh Circuit addressed the “key question as to what ‘law’ must be violated for importation to be ‘contrary to law’ under the charged statute, 18 U.S.C. § 545.” Id. at 1179 (citing United States v. Place, 693 F.3d 219, 228–29 n.12 (1st Cir. 2012)). After conducting a thorough analysis, the Eleventh Circuit explained that 18 U.S.C. § 545 was “grievously ambiguous, at least with respect to its effect of criminalizing conduct in violation of 19 C.F.R. § 141.113(c).” Id. at 1184 (citing United States v. Mitchell, 39 F.3d 465, 470 (4th Cir. 1994)). That is, the court found “great doubt” as to whether § 141.113(c) defined criminal activity or merely provided for civil remedies. Id. In light of that ambiguity, the court applied the rule of lenity, and ultimately vacated the defendants’ convictions. Id.
Plaintiffs’ reliance on Izurieta is unavailing for several reasons. First, that case involved the Eleventh Circuit’s interpretation of a statutory scheme and correspondent regulation wholly unrelated to those in question in the instant case. Second, the defendants’ convictions in Izurieta were vacated based on the rule of lenity, the application of which would be improper here considering the absence of the requisite “ ‘grievous ambiguity or uncertainty’ ” that must precede the application of the rule to a given regulation. 710 F.3d at 1181–82 (quoting Chapman v. United States, 500 U.S. 453, 456 (1991)). Third, Plaintiffs do not cite to any specific portion of Izurieta to support their assertion that “statutory authorization for regulatory criminal liability must be located, if it exists at all, by reference to the statutes that

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

the regulation itself recognizes as its source of authority.”12 (See Pls.’ Suppl. Br. 3:6–8.) Fourth, although the Eleventh Circuit examined the statutes to which 19 C.F.R. 141.113(c) cites, it also recognized that whether a regulation constitutes a “law” for the purposes of criminal prosecutions depends on the structure of the particular statute in question. See Izurieta, 710 F.3d at 1180–81 (citing United States v. Howard, 352 U.S. 212, 216 (1957)); see also Alghazouli, 517 F.3d at 1184 (“As the Supreme Court has stated, there is no ‘fixed principle that a regulation can never be a “law” for purposes of criminal prosecutions. It may or may not be, depending on the structure of the particular statute.’ ” (quoting Singer v. United States, 323 U.S. 338, 345 (1945))).
*11 Plaintiffs’ citation to Aghazouli is also unavailing. That case, like Izurieta, dealt with a defendant charged with violating 18 U.S.C. § 545 based on violations of a federal regulation. Aghazouli, 517 F.3d at 1183. However, the decision in Aghazouli pertained to a particular question of law not before the Court in the instant case. Id. Specifically, the Ninth Circuit held that “Congress intended the term ‘law’ in § 545 to include a regulation when, but only when, a statute ... specifies that a violation of that regulation constitutes a crime.” Id. Thus, Aghazouli appears to be limited to the Ninth Circuit’s interpretation of § 545. See, e.g., Izurieta, 710 F.3d at 1180 (noting that the Ninth Circuit’s decision Alghazouli reflected its narrow interpretation of § 545).
Still, Plaintiffs contend that the Ninth Circuit’s decision in Alghazouli stands for the proposition that “a regulation may not impose criminal sanctions unless that regulation’s authorizing statute explicitly authorized it to do so.” (Pls.’ Suppl. Br. 3:15–17 (citing Alghazouli, 517 F.3d at 1184).) That contention, however, mischaracterizes Alghazaouli, wherein the Ninth Circuit also recognized that “the Supreme Court made clear ... that a criminal conviction for violating a regulation is permissible only if a statute”—not the regulation’s authorizing statute—“explicitly provides that violation of that regulation is a crime.” Furthermore, and rather tellingly, the Ninth Circuit has previously upheld a conviction for a violation of 102-74.385—a similarly situated regulation falling under the same regulatory scheme as § 102-74.420(a). See Bichsel, 395 F.3d at 1053.
In light of the above, the Court finds that persons who violate § 102-74.420(a) are in fact subject to criminal penalties. Indeed, adopting the adverse position would
9

lead to an untenable result—specifically, that violations of other regulations falling within the same subpart of the C.F.R., such as regulations regarding explosives on federal property (41 C.F.R. § 102–74.435), weapons on federal property (41 C.F.R. § 102–74.440), and vehicular and pedestrian traffic on federal property (41 C.F.R. § 102-74.430), could not be punishable as “crimes.” Furthermore, Plaintiffs’ contentions beg the question: by what statutory authority were the Defendants subject to criminal sanctions in Baldwin, Strong, and Bicshel? Those cases, however, furnish a sufficient answer to that question: § 1351(c) provides the requisite statutory source of authority to criminalize the acts in question in those cases as well as in this case.
3. Probable cause to detain and to seize cameras According to the remainder of Defendants’ probable cause argument, an officer who observes photographs being taken on a port of entry has probable cause to believe that a crime is being committed, and, as a result, may lawfully detain that individual and seize his camera. (MTD 20:18–20, 21:5–7.) Plaintiffs do not appear to refute these assertions. Plaintiffs’ only apparent argument revolves around the threshold issue of the government’s capacity to criminally sanction violators of § 102-74.420(a). (See generally Pls.’ Opp’n; Pls.’ Suppl. Br.)
According to well-established precedent, “[t]here is probable cause for a warrantless arrest and a search incident to that arrest if, under the totality of the facts and circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime.” United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (citing United States v. Woods, 720 F.2d 1022, 1028 (9th Cir. 1983); United States v. Bernard, 623 F.2d 551, 559 (9th Cir. 1979)). Moreover, the Supreme Court has explained that although “warrantless searches are presumptively unreasonable,” there exist “a few limited exceptions to this general rule,” such as automobiles, consent, and exigent circumstances. United States v. Karo, 468 U.S. 705, 717 (1984) (citations omitted). Another such exception is the “plain view” exception, which “requires: (1) that the initial intrusion must be lawful; and (2) that the incriminatory nature of the evidence must be immediately apparent to the officer.”

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

United States v. Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000) (citing United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996)).
*12 In light of the Court’s finding that a violation of § 102-74.420(a) constitutes a crime, and given the relevant Fourth Amendment case law, it follows that a CBP officer’s observation of an act prohibited under § 102-74.420(a) would provide such officer with the requisite probable cause to conclude that a crime had been committed. See Gonzales, 749 F.2d at 1337. As a result, the Court agrees with Defendants’ assertion that—notwithstanding the prohibitions of the Fourth Amendment— the observing CBP officer would be lawfully permitted to detain the suspect and seize his camera. See Garcia, 205 F.3d at 1187.
B. Plaintiffs’ Remaining Fourth Amendment Claims In their motion for reconsideration, Defendants requested “that the Court reconsider its denial of the government’s [m]otion to [d]ismiss [P]laintiffs’ Fourth Amendment challenge to CBP’s search and seizure policy.” (Defs.’ Mot. Recons. 7:7–9 (emphasis added).) In their supplemental reply brief, Defendants reiterated that request verbatim. (Defs.’ Suppl. Br. 8:12–14.) However, Defendants’ supplemental reply also attempts to expand the scope of the instant motion beyond Plaintiffs’ Fourth Amendment challenge to CBP’s policy to encompass all of Plaintiffs’ remaining Fourth Amendment claims. (Id. at 2:8–10 (contending that “Plaintiffs’ Fourth Amendment claims should be dismissed in their entirety” (emphasis added)).) Despite Defendants’ attempt, the Court declines to dismiss the remainder of Plaintiffs’ Fourth Amendment claims for two reasons.
First, in partially granting Defendants’ reconsideration motion, this Court’s April 17, 2014 Order explicitly stated that it would reconsider “only ... the portion of its previous order that addressed Defendants’ Fourth Amendment probable-cause analysis.” (Apr. 17, 2014 Order 6:11–13.) Defendants’ probable-cause analysis was provided in the context of their argument that “CBP’s written policy complies with the Fourth Amendment by permitting the arrest of individuals who take unauthorized photographs on ports of entry.” (MTD 20:13–15 (emphasis added).) Specifically, Defendants’ motion to dismiss argued that “GSA regulations authorize[ ] the
10

arrest and search of an individual on port of entry property if an officer has probable cause to believe that the individual has violated federal law.” (Id. at 20:17–20.) Thus, in the Court’s view, the only issue on which Defendants sought reconsideration was the validity of CBP’s policy under the Fourth Amendment. Above, the Court found CBP’s written photography policy to comport with the Fourth Amendment. The remainder of Plaintiffs’ claims, therefore, remain intact.
Second, it does not follow from the Court’s dismissal of Plaintiffs’ Fourth Amendment claim as to CBP’s policy that the Court must also dismiss Plaintiffs’ remaining Fourth Amendment claims. As an initial matter, neither Plaintiffs or Defendants contend that the CBP officers were unable to discern the nature of Plaintiffs’ actions. Indeed, Plaintiffs do not argue—nor could they, based on the extant record—that they were not taking photographs at the relevant times. Furthermore, there is no dispute as to whether Plaintiffs obtained permission to take photographs. Thus, for the purposes of Plaintiffs’ remaining Fourth Amendment claims, the unresolved point of contention is whether or not Plaintiffs were on ports of entry when they were seized. (See, e.g., Pls.’ Opp’n 25:13–18.)
Defendants’ motion to dismiss contended that Plaintiffs were in fact on port of entry property while they took the photographs. (See, e.g., MTD 7:22–8:2.) However, according to Plaintiffs, an unresolved factual issue exists as to ownership of or authority over the properties in question. (Pls.’ Opp’n 13:9–28, 14:16–22, 25:11–13.) In ruling on Defendants’ motion to dismiss, the Court recognized that Defendants had proffered argument and evidence in an effort to establish such facts. (September 30, 2013 Order 9:1–2.) Yet, because the Court must construe Plaintiffs’ allegations of material fact in the light most favorable to Plaintiffs as the nonmoving parties for the purposes of Defendants’ 12(b)(6) motion, Cedars-Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), the Court accepts Plaintiffs’ allegations of material fact as true.13 That is, at this stage of the litigation, Plaintiffs’ allegations as to the ownership of the property on which they stood at all relevant times, even if doubtful in fact—and the Court has its doubts that the property in question is not CBP-administered, port of entry property—are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
*13 For these reasons, the Court declines to alter its

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

previous decision not to dismiss the remainder of Plaintiffs’ Fourth Amendment claims, and, accordingly, DENIES Defendants’ reconsideration motion insofar as it seeks the dismissal of those claims.

reconsideration and DISMISSES-IN-PART Plaintiffs’ Fourth Amendment claims, but only to the extent that Plaintiffs claim Defendants’ photography policy to be violative of the Fourth Amendment. Moreover, given that the Court’s finding is one of law, leave to amend would be futile, and thus the dismissal is WITH PREJUDICE.

IT IS SO ORDERED.

IV. CONCLUSION

In light of the forgoing, the Court finds that there is sufficient statutory authority for violations of 41 C.F.R. §

DATED: January 29, 2015.

102-74.420(a) to be punishable as a criminal offense.

All Citations

Given the criminal nature of the offense, the Court finds that CBP’s photography policy comports with the Fourth

Not Reported in Fed. Supp., 2015 WL 12434362

Amendment. For this reason, and after careful

reconsideration of the Court’s September 30, 2013 Order,

the Court GRANTS-IN-PART Defendants’ motion for

Footnotes

1

The facts herein discussed are the same as those appearing in the Court’s September 30, 2013 Order. (See Sept. 30,

2013 Order.)

2

The Court’s September 30, 2013 Order granted-in-part and denied-in-part Defendants’ motion to dismiss Plaintiffs’

First Amendment claims. (See Sept. 30, 2013 Order 6:7–11:25, 13:24–14:6.) The Court subsequently denied

Defendants’ motion to reconsider the Court’s Order as to those claims. (Apr. 17, 2014 Order 4:1–5:27.) Thus, issues

pertaining to Plaintiffs’ First Amendment claims are not presently before the Court.

3

The Court partially granted Defendants’ motion to dismiss Plaintiffs’ Fourth Amendment claims, but only “to the

extent that Plaintiffs claim that Defendants[’] photography policy explicitly condones deletion of photographs.”

(September 30, 2013 Order 14:7–9.) Because the Court determined that Plaintiffs would be unable to demonstrate

that Defendants’ written policy condones deletion of pictures, the partial dismissal was with prejudice. (Id. at

14:9–12.)

4

Section 102-74.370 is entitled “What items are subject to inspection by Federal agencies?” and states: “Federal

agencies may, at their discretion, inspect packages, briefcases and other containers in the immediate possession of

visitors, employees or other persons arriving on, working at, visiting, or departing from Federal property. Federal

agencies may conduct a full search of a person ... upon his or her arrest.” 41 C.F.R. § 102-74.370.

5

Section 102-74.450 is entitled “What are the penalties for violating any rule or regulation in this subpart?” and

states: “A person found guilty of violating any rule or regulation in this subpart while on any property under the

charge and control of GSA shall be fined under title 18 of the United States Code, imprisoned for not more than 30

days, or both.” 41 C.F.R. § 102-74.450.

6

See CBP Directive No. 5410–001B, U.S. Customs and Border Protection Office of Public Affairs, Roles, Functions and

Responsibilities (March 18, 2009), http://foiarr.cbp.gov/streamingWord.asp?i=1245 (superceding a 2005 directive).

11

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015)

7

Section 1315(c) is entitled “Regulations,” and § 1315(c)(1) states in part: “The Secretary, in consultation with the

Administrator of General Services, may prescribe regulations necessary for the protection and administration of

property owned or occupied by the Federal Government and persons on the property. The regulations may include

reasonable penalties, within the limits prescribed in paragraph (2), for violations of the regulations.” Section

1315(c)(2) states: “A person violating a regulation prescribed under this subsection shall be fined under title 18,

United States Code, imprisoned for not more than 30 days, or both.”

8

Notably, 41 C.F.R. § 101-20.0 is now titled “Cross-reference to the Federal Management Regulation (FMR) (41 CFR

chapter 102 parts 1 through 220).” The specific text of § 101-20.0 now reads: “[F]or information on management of

buildings and grounds, see FMR part 102-74 (41 CFR part 102–74).” 41 C.F.R. § 101-20.0 It is also important to note

that § 101-20.315 originally cited to 40 U.S.C. 318c as one of its sources of statutory authority. See 53 Fed. Reg.

129-01.

9

The first of those two offenses was 41 C.F.R. § 102-74.385, which requires persons in and on federal property to “at

all times comply with official signs of a prohibitory, regulatory or directory nature and with the lawful direction of

Federal police officers and other authorized individuals.” Baldwin, 745 F.3d at 1030. The second was 41 C.F.R. §

102-74.390(c), which states that “persons entering in or on Federal property are prohibited from loitering, exhibiting

disorderly conduct or exhibiting other conduct on property that ... impedes or disrupts the performance of official

duties by Government employees.” Id.

10 Unlike Plaintiffs’ argument here, the defendant’s principal argument in Strong involved whether or not the government had satisfied the notice requirement under § 102-74.365. See generally Strong, 724 F.3d at 51.

11 Plaintiffs argue that because the decision in Bichsel pre-dates the 2005 publication in the Federal Register of the regulations at issue, Bichsel is not controlling or persuasive in this instance. (Pls.’ Suppl. Br. 3:9–17.) However, as discussed above, the Court has found the relevant events in 2005 to be merely technical in nature, and, therefore, not preclusive of Bichsel’s application to the instant case.

12 Instead, Plaintiffs point to the Eleventh Circuit’s observation that none of the provisions under which 19 C.F.R. § 141.113(c) was authorized “establish criminal liability for failure to comply with the provision itself.” (See Pls.’ Suppl. Br. 3:2–4 (quoting Izurieta, 710 F.3d at 1183) (internal quotation marks omitted).) However, as this Court already explained above, 40 U.S.C. § 1315(c) provides the requisite “express authorization” for § 102-74.420 and its coordinate penalty provision at § 102-74.450.

13 In their motion to dismiss, Defendants contended that “judicially noticeable facts establish that Mr. Askins was in fact on port of entry property” when he took photographs at the Calixico port of entry. (MTD 7:22–1.) Then, in a footnote, Defendants cited to various pieces of evidence in support of that contention. (MTD 8 n.15.) The evidence included a picture attached to the Complaint that Plaintiffs purport to be one of the pictures Mr. Askins took on April 19, 2012 (see Compl. ¶ 22); the Complaint’s allegation as to Mr. Askins’s location when he took the photographs (see id.); and a series of documents related to certain Calexico border-area property, including information about various parcels of land and a somewhat obscure map depicting the property, (see MTD, Ex. D [Doc. 22-5]; MTD, Ex. E [Doc. 22-6) ] ). (MTD 8 n.15.) Defendants’ motion to dismiss also averred that Plaintiffs had conceded in the Complaint that Mr. Ramirez was on the San Ysidro port of entry at the time that he took the photographs. (MTD 8:1–2.) Then, in their Reply, Defendants cited a GSA website in support of their contention that “the San Ysidro pedestrian bridge is indisputably part of the San Ysidro port of entry.” (Defs.’ Reply 4 n.2 (citing San Ysidro Pedestrian Bridge Fact Sheet, GSA, http://www.gsa.gov/graphics/regions/%20SYLPOE_Ped_Bridge_Fact_Sheet.pdf (last visited Jan. 6, 2015) (broken link)).)
12

Askins v. U.S. Department of Homeland Security, Not Reported in Fed. Supp. (2015) With respect to Mr. Askins, the Court agrees with Plaintiffs that Defendants’ exhibits, even in conjunction with the photograph included in the Complaint, do not conclusively demonstrate his exact location on April 19, 2012. (See, e.g., Pls.’ Opp’n 13:9–14:15.) Defendants’ argument on this point occurred in a footnote, and it was not fully developed. Without more, the Court declines at this juncture to find that Mr. Askins was indisputably standing on port of entry property when he took the photographs. Whether he was is a fact that Defendants will have an opportunity to prove at a later stage. As to Mr. Ramirez, the only piece of evidence that Defendants provided was a broken link to GSA’s website. Although the Court has its doubts that the pedestrian bridge is not port of entry property under the administration of CBP, the Court cannot, based on that piece of evidence alone, find that Mr. Ramirez was on port of entry property at the time he took photographs in San Ysidro.
13

 
 STAYED,ENE,NON−COMPLIANCE,PROTO
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:12−cv−02600−W−AHG

Askins et al v. United States Department of Homeland Security et al Assigned to: Judge Thomas J. Whelan Referred to: Magistrate Judge Allison H. Goddard
Case in other court: USCA, 16−55719
Cause: 05:0702 Administrative Procedure Act − Right of Review
Plaintiff

Date Filed: 10/24/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Ray Askins

represented by Arthur Luk Arnold & Porter Kaye Scholer 601 Massachusetts Avenue NW Washington, DC 20001 202−942−5000 Fax: 202−942−5999 Email: arthur.luk@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David Paul Gersch Arnold & Porter Kaye Scholer 601 Massachusetts Avenue NW Washington, DC 20001 202−942−5125 Fax: 202−942−5999 Email: david.gersch@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Paul Markovitz ACLU of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138 619−232−2121 Fax: 619−232−0036 Email: jmarkovitz@aclusandiego.org TERMINATED: 03/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stanton Jones Arnold & Porter Kaye Scholer 601 Massachusetts Avenue NW Washington, DC 20001 202−942−5563 Fax: 202−942−5999 Email: stanton.jones@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Francis Callahan Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001−3743 202−942−5000

Fax: 202−942−5999 Email: sam.callahan@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara D'Amico Arnold & Porter Kaye Scholer 601 Massachusetts Avenue NW Washington, DC 20001 202−942−5000 Fax: 202−942−5999 Email: sara.d'amico@arnoldporter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. David Morrison & Foerster LLP 12531 High Bluff Drive San Diego, CA 92130 (858)720−5100 Fax: (858)720−5125 Email: jdavid@mofo.com TERMINATED: 03/10/2015 ATTORNEY TO BE NOTICED
John David Loy ACLU Foundation of San Diego and Imperial Counties PO Box 87131 San Diego, CA 92138 (619) 232−2121 Fax: (619)232−0036 Email: davidloy@aclusandiego.org ATTORNEY TO BE NOTICED
Kimberly Rhea Gosling Morrison & Foerster 12531 High Bluff Drive Suite 100 San Diego, CA 92130 (858)720−5100 Fax: (858)720−5125 Email: kgosling@mofo.com TERMINATED: 02/08/2016
Mark Andrew Woodmansee Hooper, Lundy & Bookman, P.C. 101 West Broadway Suite 1200 San Diego, CA 92101 619−744−7303 Fax: 619−230−0987 Email: mawoodmansee@health−law.com TERMINATED: 02/08/2016
Mary Prendergast Morrison & Foerster LLP 12531 High Bluff Drive Suite 100 San Diego, CA 92130 (858) 720−7973 Fax: (858) 523−2851 Email: mprendergast@mofo.com

Plaintiff Christian Ramirez

TERMINATED: 02/08/2016
Mitra Ebadolahi ACLU Foundation of San Diego PO Box 87131 San Diego, CA 92138 (619) 232−2121 Fax: (619) 232−0036 Email: mebadolahi@aclusandiego.org ATTORNEY TO BE NOTICED
Sarah D. Thompson ACLU of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138 619−232−2121 Fax: 619−232−0036 Email: sthompson@aclusandiego.org ATTORNEY TO BE NOTICED
Sean Connor Riordan ACLU Foundation of San Diego & Imperial Counties PO Box 87131 San Diego, CA 92138−7131 (619)398−4485 Fax: (619)232−0036 Email: sriordan@aclusandiego.org TERMINATED: 12/30/2014 ATTORNEY TO BE NOTICED
represented by Arthur Luk (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Paul Gersch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Paul Markovitz (See above for address) TERMINATED: 03/26/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stanton Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Francis Callahan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sara D'Amico (See above for address)

V.
Defendant
United States Department of Homeland Security

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M. David (See above for address) TERMINATED: 03/10/2015 ATTORNEY TO BE NOTICED
John David Loy (See above for address) ATTORNEY TO BE NOTICED
Kimberly Rhea Gosling (See above for address) TERMINATED: 02/08/2016
Mark Andrew Woodmansee (See above for address) TERMINATED: 02/08/2016
Mary Prendergast (See above for address) TERMINATED: 02/08/2016
Mitra Ebadolahi (See above for address) ATTORNEY TO BE NOTICED
Sarah D. Thompson (See above for address) ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) TERMINATED: 12/30/2014 ATTORNEY TO BE NOTICED
represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle 1100 L Street NW Washington, DC 20005 202−616−8101 Fax: 202−616−8460 Email: Bradley.T.Craigmyle@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton

Defendant
David V. Aguilar Deputy Commissioner of United States Customs and Border Protection TERMINATED: 11/05/2015

DOJ−Civ 1100 L Street NW Suite 12022 Washington, DC 20530 202−305−7667 Email: Nathan.M.Swinton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick George Nemeroff Department of Justice 20 Massachusetts Avenue NW Washington, DC 20001 (202)305−8727 Fax: (202)616−8470 Email: patrick.g.nemeroff@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland U.S. Department of Justice P.O. Box 883 Washington, DC 20044 202−514−1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham United States Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 514−3330 Fax: (202) 616−8470 Email: stephen.buckingham@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick George Nemeroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Billy Whitford Director, Calexico Port of Entry TERMINATED: 06/10/2019
Defendant Frank Jaramillo San Ysidro Port Director TERMINATED: 11/05/2015
Defendant United States Customs and Border Protection Officers DOES 1 through 15 TERMINATED: 11/05/2015

represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick George Nemeroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick George Nemeroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant DOES 16 through 50 TERMINATED: 11/05/2015
Defendant Sidney K Aki Director, San Ysidro & Otay Mesa Ports of Entry
Defendant R Gil Kerlikowske Commissioner of United States Customs and Border Protection TERMINATED: 06/10/2019
Defendant General Services Administration

Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Michael Swinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY

Defendant Federal Protective Service (FPS)
Defendant Emily W. Murphy Administrator of the General Services Administration
Defendant L. Eric Patterson Director of the Federal Protective Service
Defendant John P. Sanders Acting Commissioner of United States Customs and Border Protection

ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David A. Salazar Director, Calexico Port of Entry

Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Craigmyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/24/2012
10/24/2012 10/25/2012
12/06/2012
12/07/2012 12/07/2012 12/07/2012 12/07/2012 12/07/2012 12/07/2012

# Docket Text
1 COMPLAINT with Jury Demand against All Defendants ( Filing fee $ 350 receipt number 0974−5278217.), filed by Christian Ramirez, Ray Askins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)
The new case number is 3:12−cv−2600−W−BLM. Judge Thomas J. Whelan and Magistrate Judge Barbara Lynn Major are assigned to the case. (Woodmansee, Mark)(vam) (cap). (Entered: 10/25/2012)
2 NOTICE of Party With Financial Interest by Ray Askins, Christian Ramirez. (vam) (cap). (Entered: 10/25/2012)
3 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (vam) (cap). (Entered: 10/25/2012)
4 NOTICE of Appearance by Patrick George Nemeroff on behalf of David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Nemeroff, Patrick)(srm). (Entered: 12/06/2012)
5 NOTICE of Appearance by Mary Prendergast on behalf of Ray Askins, Christian Ramirez (Prendergast, Mary) (srm). (Entered: 12/07/2012)
6 NOTICE of Appearance by Kimberly Rhea Gosling on behalf of Ray Askins, Christian Ramirez (Gosling, Kimberly) (srm). (Entered: 12/07/2012)
7 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. Billy Whitford served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)
8 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. David V. Aguilar served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)
9 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. Frank Jaramillo served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)
10 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. United States Customs and Border Protection Officers served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

12/07/2012 12/07/2012 12/07/2012 12/07/2012 12/11/2012 12/11/2012 01/25/2013 01/29/2013 01/29/2013
02/05/2013 02/06/2013
02/13/2013
02/14/2013 02/19/2013 02/20/2013

11 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. United States Department of Homeland Security served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)
12 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)
13 NOTICE of Appearance by John David Loy on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Loy, John) (srm). (Entered: 12/07/2012)
14 NOTICE of Appearance by Sean Connor Riordan on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Riordan, Sean) (srm). (Entered: 12/07/2012)
15 Joint MOTION for Extension of Time to File Response/Reply to Complaint by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 12/11/2012)
16 ORDER Granting 15 Joint Motion for Extension of Time to File Response. Defendants are directed to respond to 1 Complaint no later than January 30, 2013. Signed by Judge Thomas J. Whelan on 12/11/2012. (srm) (jcj). (Entered: 12/12/2012)
17 Joint MOTION for Extension of Time to File Response/Reply to Complaint by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 01/25/2013)
18 ORDER Granting 17 Joint Motion for Extension of Time to File Response/Reply. Defendants' answer/response due 2/13/2013. Signed by Judge M. James Lorenz on 1/28/2013. (srm) (jcj). (Entered: 01/29/2013)
19 MOTION for Preliminary Injunction by Ray Askins, Christian Ramirez. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration Askins, # 3 Declaration Ramirez, # 4 Declaration Young, # 5 Declaration Woodmansee, # 6 Exhibit A to Woodmansee Dec, # 7 Exhibit B to Woodmansee Dec, # 8 Exhibit C to Woodmansee Dec, # 9 Exhibit D to Woodmansee Dec, # 10 Exhibit E to Woodmansee Dec)(Woodmansee, Mark Andrew) (srm). (Entered: 01/29/2013)
20 NOTICE of Appearance by Jeffrey M. David on behalf of Ray Askins, Christian Ramirez (David, Jeffrey) (srm). (Entered: 02/05/2013)
21 ORDER Resetting Hearing Date and Setting Briefing Schedule on 19 Plaintiff's Motion for Preliminary Injunction. The hearing date for the motion is rescheduled to March 27, 2013 at 10:00 a.m. Defendants' opposition due February 22, 2013. Plaintiff's reply due March 1, 2013. Signed by Judge Thomas J. Whelan on 2/6/2013. (srm) (Entered: 02/06/2013)
22 MOTION to Dismiss for Failure to State a Claim by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Nemeroff, Patrick) Modified on 2/14/2013, notice of non−compliance prepared (srm). (Entered: 02/13/2013)
23 NOTICE of Non−Compliance with Local Rule 5.1(a) Legibility, re 22 MOTION to Dismiss for Failure to State a Claim filed by Billy Whitford, Frank Jaramillo, David V. Aguilar, United States Department of Homeland Security. (srm) (Entered: 02/14/2013)
24 Joint MOTION for Leave to File Excess Pages by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 02/19/2013)
25 Joint MOTION for Extension of Time to File Briefs for Plaintiffs' Motion for Preliminary Injunction and Defendants' Motion to Dismiss by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 02/20/2013)

02/20/2013 02/22/2013 02/27/2013
03/07/2013 03/08/2013
03/11/2013 03/13/2013 03/27/2013 04/12/2013 04/12/2013 08/09/2013 08/14/2013 08/15/2013
09/20/2013 09/20/2013

26 ORDER Granting 24 Motion for Leave to File Excess Pages. Signed by Judge Thomas J. Whelan on 2/20/2013. (srm) (jcj). (Entered: 02/20/2013)
27 RESPONSE in Opposition re 19 MOTION for Preliminary Injunction filed by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration of Billy Whitford)(Nemeroff, Patrick) (srm). (Entered: 02/22/2013)
28 ORDER Resetting Hearing Date and Setting Briefing Schedule. The hearing date for Plaintiff's Motion For Preliminary Injuction is rescheduled for 4/15/2013 10:30 AM before Judge Thomas J. Whelan. Hearing on Defendants' Motion to Dismiss reschedule for 4/15/2013. The Court will decided motion on the papers and without oral argument. Replies to Motion for Preliminary Injunction due 3/8/2013. Replies to Motion to Dismiss due by 3/27/2013. Signed by Judge Janis L. Sammartino on 2/27/2013. (srm) (jcj). (Entered: 02/27/2013)
29 Joint MOTION for Leave to File Excess Pages for Plaintiffs Reply in Support of Motion for Preliminary Injunction and Defendants Reply in Support of Motion to Dismiss by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 03/07/2013)
30 REPLY to Response to Motion re 19 MOTION for Preliminary Injunction filed by Ray Askins, Christian Ramirez. (Attachments: # 1 Declaration Askins, # 2 Declaration Woodmansee, # 3 Exhibit A to Woodmansee Decl, # 4 Exhibit B to Woodmansee Decl, # 5 Exhibit C to Woodmansee Decl)(Woodmansee, Mark Andrew) (srm). (Entered: 03/08/2013)
31 ORDER Granting 29 Joint Motion for Leave to File Excess Pages, Extending Page Limit For Multiple Reply Briefs. Signed by Judge Thomas J. Whelan on 3/11/2013. (srm) (jcj). (Entered: 03/12/2013)
32 RESPONSE in Opposition re 22 MOTION to Dismiss for Failure to State a Claim filed by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 03/13/2013)
33 REPLY to Response to Motion re 22 MOTION to Dismiss for Failure to State a Claim filed by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (leh). (Entered: 03/27/2013)
34 ORDER Vacating Preliminary Injunction Hearing. The Court VACATES the April 15, 2013 hearing date on (Doc. 19 ) Plaintiff's motion for preliminary injunction. There shall be no oral argument on this matter. Signed by Judge Thomas J. Whelan on 4/12/2013. (srm) (jcj). (Entered: 04/12/2013)
35 ORDER Denying 19 Motion for Preliminary Injunction. Signed by Judge Thomas J. Whelan on 4/12/2013. (srm) (Entered: 04/12/2013)
36 ORDER TO SHOW CAUSE. Plaintiffs and Defendants are directed to submit briefs to this Court addressing the questions no later than 5:00 PM on August 23, 2013. Signed by Judge Thomas J. Whelan on 8/9/2013.(vam) (Entered: 08/09/2013)
37 Joint MOTION for Extension of Time to File Response to Order to Show Cause by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) Modi (vam). (Entered: 08/14/2013)
38 ORDER Extending Deadline to File Supplementary Briefing in Response to Order to Show Cause 37 . The Court grants the joint motion, and extends the deadline to file simultaneous supplemental briefing in response to the Court's Order to Show Cause to September 20, 2013 at 5:00 p.m. Signed by Judge Thomas J. Whelan on 8/15/2013. (vam) (Entered: 08/15/2013)
39 SUPPLEMENTAL BRIEFING by Defendants David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford re 36 Order to Show Cause . (Nemeroff, Patrick) (vam). (Entered: 09/20/2013)
40 SUPPLEMENTAL BRIEFING by Plaintiffs Ray Askins, Christian Ramirez re 36 Order to Show Cause Regarding Motion to Dismiss. (Woodmansee, Mark Andrew) (vam). (Entered: 09/20/2013)

09/23/2013 09/30/2013
10/24/2013 10/24/2013 11/22/2013
11/27/2013 12/11/2013 12/23/2013 04/17/2014

41 AMENDED DOCUMENT by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. Amendment to 39 Supplemental Briefing . (Nemeroff, Patrick) (vam). (Entered: 09/23/2013)
42 ORDER Granting in Part and Denying in Part 22 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, the Court Grants in Part and Denies in Part Defendants' motion to dismiss. The Court Further Orders that the Defendants' motion to dismiss with respect to Plaintiffs' First Amendment claims is Granted With Leave to Amend. This dismissal applies only to Plaintiffs' claims that the Defendants' photography policy is unconstitutional under the First Amendment. To the extend Defendants move to dismiss Plaintiffs' First Amendment claims because they do not establish a pattern or practice the motion is Denied. Defendants did not move to dismiss the remaining First Amendment claims. Defendants' motion to dismiss Plaintiffs' Fourth Amendment claims, to the extent that Plaintiffs claim that Defendants photography policyexplicitly condones deletion of photographs, is Granted. Because Plaintiffs cannot show that Defendants' written policy condones deletion of pictures, leave to amend would be futile, and this claim is thus Dismissed with Prejudice. Defendants motion to dismiss the remainder of Plaintiffs' Fourth Amendment claims is Denied. Signed by Judge Thomas J. Whelan on 9/30/2013. (leh) (Entered: 09/30/2013)
43 Joint MOTION for Extension of Time to File Motion for Clarification or Reconsideration by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (leh). (Entered: 10/24/2013)
44 ORDER Granting 43 Joint Motion for Extension of Time to File Motion for Clarification or Reconsideration. It is hereby ordered that Defendant's shall file any such motion by 11/27/2013. Signed by Judge Thomas J. Whelan on 10/24/2013. (leh) (Entered: 10/25/2013)
45 NOTICE by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford of Substitution of Counsel (Buckingham, Stephen)Attorney Stephen J. Buckingham added to party David V. Aguilar(pty:dft), Attorney Stephen J. Buckingham added to party Frank Jaramillo(pty:dft), Attorney Stephen J. Buckingham added to party United States Customs and Border Protection Officers(pty:dft), Attorney Stephen J. Buckingham added to party United States Department of Homeland Security(pty:dft), Attorney Stephen J. Buckingham added to party Billy Whitford(pty:dft) (srm). (Entered: 11/22/2013)
46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities)(Buckingham, Stephen) (ag). (Entered: 11/27/2013)
47 RESPONSE in Opposition re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 12/11/2013)
48 REPLY to Response to Motion re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Buckingham, Stephen) (knb). (Entered: 12/23/2013)
49 ORDER granting in part and denying in part Defendants' 46 Motion for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim. Court denies Dfts' motion insofar as Plaintiffs' First Amendment claims as to a pattern or practice, and Plaintiffs' being given leave to amend. Court grants Dfts' motion insofar as Dfts' Fourth Amendment probable−cause analysis and the incorporation of the premise that the CBP policy violated the First Amendment. Court orders further briefing on the issue of the statutory authority for the federal policy property regulations that Dfts argue grounds for the officers' probable cause. Plaintiffs shall file response by 4/24/2014, not exceed 10 pages in length. Dfts shall file reply by 5/1/2014, not to exceed 10 pages in length. Signed by Judge Thomas J. Whelan on 4/17/2014. (jah) (Entered: 04/18/2014)

04/24/2014 05/01/2014
07/03/2014 07/03/2014 07/07/2014 12/30/2014 01/29/2015
03/10/2015 09/28/2015 10/06/2015 11/05/2015 11/06/2015 12/03/2015
12/03/2015

50 SUPPLEMENTAL BRIEFING on Statutory Authority by Plaintiffs Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew). Modified on 4/25/2014 − Edited text to match pleading (jah). (Entered: 04/24/2014)
51 SUPPLEMENTAL REPLY re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Buckingham, Stephen). Modified on 5/2/2014 − Edited to remove duplicative text (jah). (Entered: 05/01/2014)
52 MOTION for Extension of Time to File FTCA Claims (Unopposed Motion) by Ray Askins, Christian Ramirez. (David, Jeffrey) (av1). (Entered: 07/03/2014)
53 ORDER Granting Joint Motion for an Extension of Time to Amend the Complaint to Add FTCA Claims 52 . Signed by Judge Thomas J. Whelan on 7/3/2014. (vam) (Entered: 07/03/2014)
54 NOTICE of Appearance by Mitra Ebadolahi on behalf of Ray Askins, Christian Ramirez (Ebadolahi, Mitra)Attorney Mitra Ebadolahi added to party Ray Askins(pty:pla), Attorney Mitra Ebadolahi added to party Christian Ramirez(pty:pla) (av1). (Entered: 07/07/2014)
55 NOTICE by Ray Askins, Christian Ramirez Notice of Withdrawal of Attorney, Sean Riordan (Loy, John) (jpp). (Entered: 12/30/2014)
56 ORDER granting−in−part 46 Defendants' motion for reconsideration. The Court grants−in−part Defendants motion for reconsideration and dismisses−in part Plaintiffs Fourth Amendment claims, but only to the extent that Plaintiffs claim Defendants photography policy to be violative of the Fourth Amendment. Moreover, given that the Courts finding is one of law, leave to amend would be futile, and thus the dismissal is with prejudice. Signed by Judge Thomas J. Whelan on 01/29/2015.(jpp) (Entered: 01/29/2015)
57 NOTICE by Ray Askins, Christian Ramirez of Withdrawal of Attorney Jeffrey M. David (Woodmansee, Mark Andrew) (jpp). (Entered: 03/10/2015)
58 Joint MOTION for Order to Set Deadlines for First Amended Complaint and Response by Ray Askins, Christian Ramirez. (Gosling, Kimberly) (jpp). (Entered: 09/28/2015)
59 ORDER granting 58 Joint Motion to set deadlines for First Amended Complaint and response. Plainttiffs must file the FAC, if at all, on or before November 5, 2015. Defendants must respond to the FAC on or before December 7, 2015.Signed by Judge Thomas J. Whelan on 10/06/2015. (jpp) (Entered: 10/06/2015)
60 AMENDED COMPLAINT against United States Department of Homeland Security, Billy Whitford, SIDNEY K. AKI, R. GIL KERLIKOWSKE, filed by Christian Ramirez, Ray Askins. (Attachments: # 1 Exhibit, # 2 Proof of Service)New Summons Requested. (Ebadolahi, Mitra) (jpp). (Entered: 11/05/2015)
61 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jpp) (Entered: 11/06/2015)
62 NOTICE of Appearance by Nathan Michael Swinton on behalf of David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Swinton, Nathan)Attorney Nathan Michael Swinton added to party Sidney K Aki(pty:dft), Attorney Nathan Michael Swinton added to party R Gil Kerlikowske(pty:dft), Attorney Nathan Michael Swinton added to party United States Customs and Border Protection Officers(pty:dft), Attorney Nathan Michael Swinton added to party United States Department of Homeland Security(pty:dft), Attorney Nathan Michael Swinton added to party Billy Whitford(pty:dft) (jpp). (Entered: 12/03/2015)
63 Joint MOTION for Extension of Time to File Response/Reply to First Amended Complaint by Sidney K Aki, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Swinton, Nathan) (jpp). (Entered: 12/03/2015)

12/04/2015 12/18/2015
01/07/2016 01/08/2016
01/22/2016 01/29/2016 02/01/2016 02/08/2016 02/16/2016 03/23/2016 03/23/2016 05/17/2016 05/17/2016 05/17/2016

64 ORDER granting 63 Joint Motion for Extension of Time to respond to the First Amended complaint. Defendant must respond to the FAC on or before December 18, 2015. Signed by Judge Thomas J. Whelan on 12/04/2015. (jpp) (Entered: 12/04/2015)
65 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Sidney K Aki, R Gil Kerlikowske, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities)(Buckingham, Stephen)Attorney Stephen J. Buckingham added to party Sidney K Aki(pty:dft), Attorney Stephen J. Buckingham added to party R Gil Kerlikowske(pty:dft) (jpp). (Entered: 12/18/2015)
66 Joint MOTION for Extension of Time to File Response/Reply on Motion to Dismiss by Ray Askins, Christian Ramirez. (Attachments: # 1 Proof of Service)(Loy, John)(jao). (Entered: 01/07/2016)
67 ORDER Granting 66 Joint Motion for Extension of Time to File Response/Reply re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction . In accordance with the dates appearing in the pending joint motion, Plaintiffs must file any opposition to the pending motion to dismiss on or before February 1, 2016. Defendants must file any reply by February 16, 2016. The motion to dismiss is presently noticed for January 25, 2016. [Doc. 65.] The hearing date is continued to February 29, 2016. There will be no oral argument pursuant to Civil Local Rule 7.1(d.1). Signed by Judge Thomas J. Whelan on 1/8/2016. (jao) (Entered: 01/08/2016)
68 MOTION to Withdraw as Attorney by Ray Askins, Christian Ramirez. (Attachments: # 1 Declaration of M. Andrew Woodmansee)(Woodmansee, Mark Andrew) (jao). (Entered: 01/22/2016)
69 NOTICE of Appearance by Jonathan Paul Markovitz on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Markovitz, Jonathan)Attorney Jonathan Paul Markovitz added to party Ray Askins(pty:pla), Attorney Jonathan Paul Markovitz added to party Christian Ramirez(pty:pla) (jao). (Entered: 01/29/2016)
70 RESPONSE in Opposition re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Ray Askins, Christian Ramirez. (Attachments: # 1 Proof of Service)(Ebadolahi, Mitra) (jao). (Entered: 02/01/2016)
71 ORDER Granting 68 Motion to Withdraw as Attorney. Attorneys Mark Andrew Woodmansee, Kimberly Rhea Gosling, and Mary Prendergast terminated. Signed by Judge Thomas J. Whelan on 2/8/2016. (jao) (Entered: 02/08/2016)
72 REPLY to Response to Motion re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by David V. Aguilar, Sidney K Aki, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers. (Swinton, Nathan) (jao). (Entered: 02/16/2016)
73 ORDER Granting 65 Defendants' Motion to Dismiss. The Court grants Defendants' motion to dismiss without leave to amend. This action is dismissed with prejudice. The Clerk is directed to close the case. Signed by Judge Thomas J. Whelan on 3/23/2016. (jao) (sjt). (Entered: 03/23/2016)
74 CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that the Court grants Defendants' motion to dismiss without leave to amend. This case is dismissed with prejudice.(jao) (Entered: 03/23/2016)
75 NOTICE OF APPEAL to the 9th Circuit as to 74 Clerk's Judgment, by Ray Askins, Christian Ramirez. (Filing fee $ 505 receipt number 0974−9069902.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # 1 Proof of Service)(Ebadolahi, Mitra). (akr). (Entered: 05/17/2016)
76 USCA Case Number 16−55719 for 75 Notice of Appeal to 9th Circuit, filed by Christian Ramirez, Ray Askins. (akr) (Entered: 05/17/2016)
77 USCA Time Schedule Order as to 75 Notice of Appeal to 9th Circuit, filed by Christian Ramirez, Ray Askins. (akr) (Entered: 05/17/2016)

02/13/2018 11/01/2018 11/16/2018
11/16/2018 11/19/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 11/30/2018 12/03/2018
12/03/2018 12/06/2018

78 ORDER of USCA as to 75 Notice of Appeal to 9th Circuit, filed by Christian Ramirez, Ray Askins. At oral argument, the parties shall be prepared to address the relevance, if any, of Jacobson v. USDHS, No. 16−17199 (9th Cir. Feb. 13, 2018). (akr) (Entered: 02/13/2018)
79 NOTICE of Hearing: Appeal Mandate Hearing set for 11/19/2018 10:00 AM in Courtroom 3C before Judge Thomas J. Whelan. (no document attached) (bjb) (Entered: 11/01/2018)
80 NOTICE of Appearance by Rachael Lynn Westmoreland on behalf of David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Westmoreland, Rachael)Attorney Rachael Lynn Westmoreland added to party David V. Aguilar(pty:dft), Attorney Rachael Lynn Westmoreland added to party Sidney K Aki(pty:dft), Attorney Rachael Lynn Westmoreland added to party DOES 16 through 50(pty:dft), Attorney Rachael Lynn Westmoreland added to party Frank Jaramillo(pty:dft), Attorney Rachael Lynn Westmoreland added to party R Gil Kerlikowske(pty:dft), Attorney Rachael Lynn Westmoreland added to party United States Customs and Border Protection Officers(pty:dft), Attorney Rachael Lynn Westmoreland added to party United States Department of Homeland Security(pty:dft), Attorney Rachael Lynn Westmoreland added to party Billy Whitford(pty:dft) (jao). (Entered: 11/16/2018)
81 Joint MOTION Reschedule Appeal Mandate Hearing by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Westmoreland, Rachael) (jao). (Entered: 11/16/2018)
82 ORDER Granting 81 Joint Motion to Reschedule Appeal Mandate Hearing. Appeal Mandate Hearing reset for 12/3/2018 10:00 AM in Courtroom 3C before Judge Thomas J. Whelan. Signed by Judge Thomas J. Whelan on 11/16/2018. (jao) (Entered: 11/19/2018)
83 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11953116.) (Application to be reviewed by Clerk.) (Gersch, David) 11/30/2018 − To be refiled re signatures and document format. (mdc) (Entered: 11/30/2018)
84 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11953121.) (Application to be reviewed by Clerk.) (D'Amico, Sara) 11/30/2018 − To be refiled re missing signature. (mdc) (Entered: 11/30/2018)
85 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11953116 − See 83 .) (Application to be reviewed by Clerk.) (Gersch, David) Modified text on 11/30/2018 to include filing fee info. (mdc) (Entered: 11/30/2018)
86 Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11953121 − See 84 .) (Application to be reviewed by Clerk.) (D'Amico, Sara) Modified text on 11/30/2018 to include filing fee info. (mdc) (Entered: 11/30/2018)
87 PRO HAC APPROVED re 85 : David Paul Gersch appearing for Plaintiffs Ray Askins, Christian Ramirez. (no document attached) (mdc) (Entered: 11/30/2018)
88 PRO HAC APPROVED re 86 : Sara D'Amico appearing for Plaintiffs Ray Askins, Christian Ramirez. (no document attached) (mdc) (Entered: 11/30/2018)
91 Minute Entry for proceedings held before Judge Thomas J. Whelan: Appeal Mandate Hearing held on 12/3/2018. Appeal Mandate ordered filed and spread.(Court Reporter/ECR Mauralee Ramirez). (Plaintiff Attorney David Gursh). (Defendant Attorney Rachael Westmoreland). (Amy Dail).(no document attached) (llb) (Entered: 12/06/2018)
92 MANDATE of USCA vacating the decision of the USDC and remanding for further proceedings as to 75 Notice of Appeal to the 9th Circuit filed by Christian Ramirez, Ray Askins. (akr) (Entered: 12/06/2018)
89 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11972131.) (Application to be reviewed by Clerk.) (Jones, Robert) (mdc) (Entered: 12/06/2018)

12/06/2018 01/03/2019 01/10/2019 01/11/2019 01/28/2019 03/08/2019 03/11/2019
03/26/2019 03/29/2019 04/05/2019
04/09/2019 04/09/2019
04/12/2019 04/23/2019 05/20/2019

90 PRO HAC APPROVED re 89 : Robert Stanton Jones appearing for Plaintiffs Ray Askins, Christian Ramirez. (no document attached) (mdc) (Entered: 12/06/2018)
93 NOTICE of Appearance by Sarah D. Thompson on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Thompson, Sarah)Attorney Sarah D. Thompson added to party Ray Askins(pty:pla), Attorney Sarah D. Thompson added to party Christian Ramirez(pty:pla) (jao). (Entered: 01/03/2019)
94 MOTION to Stay in Light of the Lapse in Appropriations by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Westmoreland, Rachael) (jao). (Entered: 01/10/2019)
95 ORDER Granting 94 Ex Parte Motion to Stay During Lapse in Department of Justice Appropriations. Signed by Judge Thomas J. Whelan on 1/11/2019. (jao) (Entered: 01/11/2019)
96 NOTICE of Restoration of Appropriations by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford re 95 Order on Motion to Stay (Westmoreland, Rachael) (jao). (Entered: 01/28/2019)
97 ANSWER to 60 Amended Complaint, by United States Customs and Border Protection Officers, David V. Aguilar, Billy Whitford, DOES 16 through 50, Sidney K Aki, Frank Jaramillo, R Gil Kerlikowske, United States Department of Homeland Security.(Westmoreland, Rachael) (jao). (Entered: 03/08/2019)
98 NOTICE AND ORDER for Early Neutral Evaluation Conference and Case Management Conference. Early Neutral Evaluation set for 4/5/2019 01:30 PM before Magistrate Judge Barbara Lynn Major. In the event the case does not settle duringthe ENE, the Court will conduct an Initial Case Management Conference. Joint Discovery Plan due 3/29/2019. Signed by Magistrate Judge Barbara Lynn Major on 3/11/2019.(jao) (Entered: 03/11/2019)
99 NOTICE of Withdrawal of Counsel, Jonathan Markovitz by Ray Askins, Christian Ramirez (Markovitz, Jonathan) (jao). (Entered: 03/26/2019)
100 JOINT DISCOVERY PLAN by Ray Askins, Christian Ramirez (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(D'Amico, Sara) (ag). (Entered: 03/29/2019)
101 Minute Entry for proceedings held before Magistrate Judge Barbara Lynn Major: Early Neutral Evaluation Conference held on 4/5/2019. Case did not settle. Case Management Conference held on 4/5/2019. Order to follow.(Plaintiff Attorney Robert Stanton Jones, David Paul Gersch, Mitra Ebadolahi). (Defendant Attorney Rachael Lynn Westmoreland, Amy Deu). (no document attached) (bll) (Entered: 04/05/2019)
102 Stipulated Order Pursuant to Federal Rule of Evidence 502(d). Signed by Magistrate Judge Barbara Lynn Major on 4/9/2019.(jao) (Entered: 04/09/2019)
103 SCHEDULING ORDER: Mandatory Settlement Conference set for 7/13/2020 09:30 AM before Magistrate Judge Barbara Lynn Major. Memorandum of Contentions of Fact and Law due by 8/17/2020. Proposed Pretrial Order due by 9/7/2020. Final Pretrial Conference set for 9/21/2020 10:30 AM before Judge Thomas J. Whelan. Signed by Magistrate Judge Barbara Lynn Major on 4/9/2019.(jao) (Entered: 04/09/2019)
104 Joint MOTION for Protective Order by Ray Askins, Christian Ramirez. (Attachments: # 1 Proposed Protective Order, # 2 Exhibit A)(D'Amico, Sara) (jao). (Entered: 04/12/2019)
105 ORDER Granting 104 Joint Motion for Protective Order With Modification. Signed by Magistrate Judge Barbara Lynn Major on 4/23/2019. (jao) (Entered: 04/23/2019)
106 Ex Parte MOTION to Amend/Correct 60 Amended Complaint, by Ray Askins, Christian Ramirez. (Attachments: # 1 Exhibit A − Second Amended Complaint, # 2 Exhibit B − Redline Comparison, # 3 Exhibit C − Plaintiffs' Interrogatories, # 4 Exhibit D − Defendants' Responses, # 5 Exhibit E − Email Correspondence I, # 6 Exhibit F − Email Correspondence II)(Gersch, David) (jao). (Entered: 05/20/2019)

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06/25/2019 06/25/2019 07/03/2019
07/09/2019
07/12/2019

107 ORDER Granting 106 Ex Parte Motion for Leave to File Second Amended Complaint. Plaintiff may file an amended pleading, if any, by Monday, June 10, 2019. Signed by Judge Thomas J. Whelan on 5/30/2019. (jao) (Entered: 05/30/2019)
108 AMENDED COMPLAINT against All Defendants, filed by Christian Ramirez, Ray Askins. (Attachments: # 1 Exhibit A − CBP Directive No. 5410−001B, # 2 Exhibit B − CBP Ground Rules, # 3 Exhibit C − Health Impacts of Border Crossings Conf., # 4 Exhibit D − CBP Email Response)New Summons Requested. (D'Amico, Sara) Mailer sent re signature on 6/11/2019 (jao). (Entered: 06/10/2019)
109 Summons Issued on Second Amended Complaint. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jao) (Entered: 06/11/2019)
110 ORDER: (1) Setting Briefing Schedule, (2) Granting Parties' Request For Additional Time to File a Motion to Compel Regarding Historic Use Discovery, and (3) Clarifying Chambers Rule V(E). Signed by Magistrate Judge Barbara Lynn Major on 6/12/2019.(jao) (Entered: 06/12/2019)
111 Joint MOTION to Continue (modify) Order Setting Briefing Schedule by Ray Askins, Christian Ramirez. (Ebadolahi, Mitra) (jao). (Entered: 06/21/2019)
112 ORDER Granting 111 Joint Motion for Modification of Order Setting Briefing Schedule (ECF No. 110 ). Plaintiffs shall have until July 12, 2019 to complete a joint conference call with the Court regarding any impasse on these discovery requests. Plaintiffs must file their motion on or before June 25, 2019; Defendants must file their opposition on or before July 9, 2019; and Plaintiffs must file any reply on or before July 16, 2019. Signed by Magistrate Judge Barbara Lynn Major on 6/24/2019. (tcf) (jao). (Entered: 06/24/2019)
113 MOTION to Compel by Ray Askins, Christian Ramirez. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration)(Ebadolahi, Mitra) (jao). (Entered: 06/25/2019)
114 SUMMONS Returned Executed by Christian Ramirez, Ray Askins. Federal Protective Service (FPS), General Services Administration, Emily W. Murphy, L. Eric Patterson served. (Attachments: # 1 Exhibit Delivery Confirmations)(D'Amico, Sara) (jao). (Entered: 06/25/2019)
115 ANSWER to 108 Amended Complaint, by United States Customs and Border Protection Officers, General Services Administration, David V. Aguilar, Federal Protective Service (FPS), Sidney K Aki, L. Eric Patterson, Emily W. Murphy, Billy Whitford, DOES 16 through 50, David A. Salazar, John P. Sanders, Frank Jaramillo, R Gil Kerlikowske, United States Department of Homeland Security.(Westmoreland, Rachael)Attorney Rachael Lynn Westmoreland added to party Federal Protective Service (FPS)(pty:dft), Attorney Rachael Lynn Westmoreland added to party General Services Administration(pty:dft), Attorney Rachael Lynn Westmoreland added to party Emily W. Murphy(pty:dft), Attorney Rachael Lynn Westmoreland added to party L. Eric Patterson(pty:dft), Attorney Rachael Lynn Westmoreland added to party David A. Salazar(pty:dft), Attorney Rachael Lynn Westmoreland added to party John P. Sanders(pty:dft) (jao). (Entered: 07/03/2019)
116 RESPONSE in Opposition re 113 MOTION to Compel filed by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Exhibit 1− Declaration of Elaine Dismuke, # 2 Exhibit 2− Declaration of Peggy DeBeliso, # 3 Exhibit 3− Active Learning Protocol)(Westmoreland, Rachael) (jao). (Entered: 07/09/2019)
117 Joint MOTION to Continue (modify) Order setting briefing schedule (ECF 112) by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Westmoreland, Rachael) (jao). (Entered: 07/12/2019)

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09/23/2019

118 ORDER Granting 117 Joint Motion for Modification of Order Setting Briefing Schedule. Signed by Magistrate Judge Barbara Lynn Major on 7/15/2019. (jao) (Entered: 07/15/2019)
119 REPLY to Response to Motion re 113 MOTION to Compel filed by Ray Askins, Christian Ramirez. (D'Amico, Sara) Mailer sent on 7/17/2019 (jao). (Entered: 07/16/2019)
120 ORDER granting in part and denying in part Plaintiffs' Motion to Compel [ECF No. 113 ]. Status Report due by 8/27/2019. Signed by Magistrate Judge Barbara Lynn Major on 8/6/2019. (jrm) (jao). (Entered: 08/06/2019)
121 ORDER Setting Briefing Schedule. Plaintiffs must file their motion on or before September 23, 2019; Defendants must file their opposition on or before October 11, 2019; and Plaintiffs must file any reply on or before October 21, 2019. Upon completion of the briefing, the Court will take the matter under submission pursuant to Civil Local Rule 7.1(d)(1) and no personal appearances will be required. Signed by Magistrate Judge Barbara Lynn Major on 8/26/2019.(jao) (Entered: 08/26/2019)
122 MOTION for Extension of Time to Complete Discovery Complying with the Court's Order on Plaintiffs' Motion to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration Falk (Ex. 1), # 2 Declaration Palmer (Ex. 2))(Westmoreland, Rachael) (jao). (Entered: 08/27/2019)
123 STATUS REPORT (Joint) by Ray Askins, Christian Ramirez. (Attachments: # 1 Exhibit A: Active Learning Protocol, # 2 Exhibit B: White Paper)(D'Amico, Sara) Mailer sent on 8/28/2019 (jao). (Entered: 08/27/2019)
124 RESPONSE in Opposition re 122 MOTION for Extension of Time to Complete Discovery Complying with the Court's Order on Plaintiffs' Motion to Compel filed by Ray Askins, Christian Ramirez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(D'Amico, Sara) Mailer sent re signature on 8/29/2019 (jao). (Entered: 08/28/2019)
125 Joint MOTION for Extension of Time to File Regarding Discovery Disputes by Christian Ramirez. (D'Amico, Sara)(jao). (Entered: 08/29/2019)
126 ORDER Granting 125 Joint Motion for Extension of Time to Raise Certain Discovery Disputes. Plaintiffs have until September 23, 2019 to contact chambers to raise any disputes pertaining to GSA and FPS's discovery responses. Signed by Magistrate Judge Barbara Lynn Major on 9/3/2019. (jao) (Entered: 09/03/2019)
127 ORDER Regarding Joint Status Report [ECF 123 ]. The parties must file their proposed dates on or before October 7, 2019. If the parties are unable to agree on dates, each party may propose dates and provide a short justification for their proposal. Signed by Magistrate Judge Barbara Lynn Major on 9/3/2019.(jao) (Entered: 09/03/2019)
128 ORDER Granting 122 Defendants' Motion to Extend Deadline for Compliance With Court's Order on Plaintiff's Motion to Compel. Given the breadth of Plaintiffs' discovery requests and the scope of the required search described by Defendants, the additional requested time is reasonable. Signed by Magistrate Judge Barbara Lynn Major on 9/3/2019. (jao) (Entered: 09/03/2019)
129 ORDER OF TRANSFER. IT IS HEREBY ORDERED that the following listed case is transferred from the calendar of the Honorable Barbara L. Major to the calendar of the Honorable Allison H. Goddard for all further proceedings. All conferences or hearing dates previously set before Judge Major will remain as scheduled and will be before Judge Goddard. All dates set before any district judge remain unchanged. The new case number is 12cv2600−W−AHG. Signed by Magistrate Judge Barbara Lynn Major on 9/16/2019.(jao) (Entered: 09/16/2019)
130 MOTION to Compel by Christian Ramirez. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit

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10/24/2019 10/30/2019
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D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V)(D'Amico, Sara) (jao). (Entered: 09/23/2019)
131 Joint MOTION for Extension of Time to File Joint Status Report and Responses/Replies to Plaintiffs' Motion to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration of Rachael Westmoreland)(Westmoreland, Rachael) (jao). (Entered: 10/04/2019)
132 ORDER Granting 131 Joint Motion to Extend Deadlines to File Joint Discovery Proposal and to Complete Motion to Compel Briefing. Signed by Magistrate Judge Allison H. Goddard on 10/4/2019. (jao) (Entered: 10/04/2019)
133 ORDER SETTING TELEPHONIC DISCOVERY CONFERENCE. Telephonic discovery conference set for 10/30/2019 at 02:00 PM before Magistrate Judge Allison H. Goddard. Counsel shall call the chambers teleconference line at 1−877−873−8018 and use 8367902 as the access code to join the conference. Signed by Magistrate Judge Allison H. Goddard on 10/16/2019. (no document attached) (kxm) (Entered: 10/16/2019)
134 Joint MOTION for Extension of Time to File Proposed Case Management Schedule by Ray Askins, Christian Ramirez. (Attachments: # 1 Declaration of Mitra Ebadolahi)(Ebadolahi, Mitra) (jao). (Entered: 10/16/2019)
135 ORDER: (1) Granting in Part 134 Joint Motion; (2) Vacating Deadline to File Case Management Schedule; and (3) Setting Deadline to File Joint Status Report. Signed by Magistrate Judge Allison H. Goddard on 10/17/2019. (jao) (Entered: 10/17/2019)
136 ORDER Clarifying Motion to Compel Deadlines. Defendants' deadline to file a Response in opposition to Plaintiffs' Motion to Compel is extended to October 25, 2019; Plaintiffs' Reply deadline remains set on November 4, 2019. Signed by Magistrate Judge Allison H. Goddard on 10/21/2019.(jao) (Entered: 10/21/2019)
137 Joint MOTION for Extension of Time to File Response/Reply as to 130 MOTION to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration of Rachael Westmoreland)(Westmoreland, Rachael) (jao). (Entered: 10/24/2019)
138 ORDER Granting 137 Joint Motion to Extend Briefing Deadlines on 130 Plaintiffs' MOTION to Compel . Responses due by 11/8/2019, Replies due by 11/18/2019. Beginning on November 4, 2019, the parties must file biweekly status reports to keep the Court apprised of the status of their settlement discussions, as previously ordered. Signed by Magistrate Judge Allison H. Goddard on 10/24/2019. (jao) (Entered: 10/24/2019)
139 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Telephonic Status Conference held on 10/30/2019. The Court postponed discussion of the parties' discovery dispute due to ongoing settlement negotiations. The parties were directed to indicate in their Status Report due 11/4/2019 whether they are interested in Court facilitation of their continuing settlement talks and were apprised of the available options for such facilitation. (Plaintiff Attorneys David Gersch, Arthur Luk, Sara D'Amico, and Sarah Thompson). (Defendant Attorney Rachael Westmoreland). (no document attached) (kxm) (Entered: 10/30/2019)
140 STATUS REPORT (Joint) by Ray Askins, Christian Ramirez. (D'Amico, Sara) (jdt). (Entered: 11/04/2019)
141 NOTICE of Appearance by Bradley Craigmyle on behalf of David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services

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Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Craigmyle, Bradley)Attorney Bradley Craigmyle added to party David V. Aguilar(pty:dft), Attorney Bradley Craigmyle added to party Sidney K Aki(pty:dft), Attorney Bradley Craigmyle added to party DOES 16 through 50(pty:dft), Attorney Bradley Craigmyle added to party Federal Protective Service (FPS)(pty:dft), Attorney Bradley Craigmyle added to party General Services Administration(pty:dft), Attorney Bradley Craigmyle added to party Frank Jaramillo(pty:dft), Attorney Bradley Craigmyle added to party R Gil Kerlikowske(pty:dft), Attorney Bradley Craigmyle added to party Emily W. Murphy(pty:dft), Attorney Bradley Craigmyle added to party L. Eric Patterson(pty:dft), Attorney Bradley Craigmyle added to party David A. Salazar(pty:dft), Attorney Bradley Craigmyle added to party John P. Sanders(pty:dft), Attorney Bradley Craigmyle added to party United States Customs and Border Protection Officers(pty:dft), Attorney Bradley Craigmyle added to party United States Department of Homeland Security(pty:dft), Attorney Bradley Craigmyle added to party Billy Whitford(pty:dft) (jdt). (Entered: 11/04/2019)
142 ORDER Granting Request for Extension of Briefing Deadlines on Plaintiffs' Motion to Compel. The parties seek an additional one−week extension of the Motion to Compel briefing deadlines. ECF No. 140 . The Court finds good cause to grant the request: Defendants' deadline to file a Response in opposition is 11/15/2019. Plaintiffs' Reply deadline is 11/25/2019. Signed by Magistrate Judge Allison H. Goddard on 11/5/2019. (jdt) Modified on 11/6/2019 to correct judge association. NEF regenerated (jdt). (Entered: 11/05/2019)
143 Joint MOTION to Vacate Briefing Schedule for Plaintiffs' Second Motion to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Craigmyle, Bradley) (jdt). (Entered: 11/15/2019)
144 ORDER Granting in Part and Denying in Part Joint Motion to Vacate Briefing Schedule for Plaintiff's Motion to Compel (ECF No. 143 ). The Court denies the parties' request to vacate the briefing deadlines entirely; however, the Court finds good cause to grant an extension. Defendants' deadline to file a Response in opposition to Plaintiffs' Motion to Compel is extended from 11/15/2019 to 12/6/2019. Plaintiffs' Reply deadline is extended from 11/25/2019 to 12/16/2019. Signed by Magistrate Judge Allison H. Goddard on 11/15/2019. (jdt) (Entered: 11/15/2019)
145 STATUS REPORT (Joint) by Ray Askins, Christian Ramirez. (D'Amico, Sara) (jdt). (Entered: 11/18/2019)
146 MOTION for Extension of Time to Complete Discovery Complying with the Court's Order on Plaintiffs' Motion to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration Peggy DeBeliso (Exhibit 1), # 2 Declaration Stephen McCleary (Exhibit 2))(Craigmyle, Bradley) (jdt). (Entered: 11/18/2019)
147 ORDER Granting Motion for Extension of Time to Comply with Court Order Compelling Certain Discovery (ECF No. 146 ). Signed by Magistrate Judge Allison H. Goddard on 11/19/2019. (jrm) (Entered: 11/19/2019)
148 ORDER Setting Settlement Conference. The Court sets an in−person Settlement Conference for 12/13/2019 at 9:30 AM in the chambers of Magistrate Judge Allison H. Goddard. Signed by Magistrate Judge Allison H. Goddard on 11/22/2019. (jdt) (Entered: 11/22/2019)
149 STATUS REPORT (Joint) by Ray Askins, Christian Ramirez. (D'Amico, Sara) (jdt). (Entered: 12/02/2019)
150 Joint MOTION for Extension of Time to File Response/Reply as to 130 MOTION to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective

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Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Craigmyle, Bradley) (jdt). (Entered: 12/04/2019)
151 MOTION for Extension of Time to Complete Discovery Complying with the Court's Order on Plaintiffs' Motion to Compel by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Federal Protective Service (FPS), General Services Administration, Frank Jaramillo, R Gil Kerlikowske, Emily W. Murphy, L. Eric Patterson, David A. Salazar, John P. Sanders, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Craigmyle, Bradley) (jdt). (Entered: 12/04/2019)
152 ORDER Granting Joint Motion to Extend Briefing Schedule for Plaintiff's Motion to Compel (ECF No. 150 ). Responses due by 1/3/2020. Replies due by 1/13/2020. Signed by Magistrate Judge Allison H. Goddard on 12/5/2019. (jdt) (Entered: 12/06/2019)
153 ORDER Granting Motion for Extension of Time to Comply With Court Order Compelling Certain Discovery (ECF No. 151 ). Signed by Magistrate Judge Allison H. Goddard on 12/5/2019. (jdt) (Entered: 12/06/2019)
154 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Settlement Conference held on 12/13/2019. The case did not settle, but Court will set another Settlement Conference. Order to issue. (Plaintiff Attorneys Mitra Ebadolahi, Sara D'Amico, and Sarah Thompson). (Defendant Attorneys Rachael Westmoreland, Bradley Craigmyle, James Scott, Nicholis Mutton, and Amy Dell). (no document attached) (kxm) (Entered: 12/16/2019)
155 ORDER: (1) Setting Settlement Conference; (2) Staying Briefing Schedule on Plaintiff's September 23, 2019 Motion to Compel; (3) Extending Defendants'Deadline to Comply with Court's August 6, 2019 Order on Prior Motion to Compel; (4) Setting Telephonic Status Conference; and (5) Setting Deadline for Defendant's To Return Comments to Draft Protective Order to Plaintiffs. The Court SETS another Settlement Conference for January 31, 2020 at 9:30 AM in the chambers of Magistrate Judge Allison H. Goddard. the Court hereby STAYS all briefing schedule deadlines related to Plaintiffs Motion to Compel. The Court further EXTENDS Defendants deadline to fully comply with the Courts August 6, 2019 Order granting Plaintiffs motion to compel in part from January 10, 2020 to February 10, 2020. The Court SETS a Telephonic Status Conference for January 24, 2020. Finally, Defendants must return any comments and/or revisions to the current draft protective order to Plaintiffs by December 20, 2019. Signed by Magistrate Judge Allison H. Goddard on 12/16/2019.(mme) (Entered: 12/16/2019)
156 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−13285781.) (Application to be reviewed by Clerk.) (Callahan, Samuel) (rmc). (Entered: 12/18/2019)
157 PRO HAC APPROVED: Samuel Francis Callahan appearing for Plaintiffs Ray Askins, Christian Ramirez (no document attached) (rmc) (Entered: 12/18/2019)
158 MINUTE ORDER Clarifying that the Telephonic Status Conference set for 1/24/2020 in 155 Order Setting Settlement Conference will take place at 02:30 PM. Signed by Magistrate Judge Allison H. Goddard on 12/18/2019. (no document attached) (kxm) (Entered: 12/18/2019)
159 Request to Appear Pro Hac Vice ( Filing fee received: $206 receipt number 0974−13289209.) (Application to be reviewed by Clerk.) (Luk, Arthur) (rmc). (Entered: 12/19/2019)
160 PRO HAC APPROVED: Arthur Luk appearing for Plaintiffs Ray Askins, Christian Ramirez (no document attached) (rmc) (Entered: 12/19/2019)
161 ORDER: (1) Affirming January 31, 2020 Settlement Conference; (2) Vacating January 24, 2020 Telephonic Status Conference; and (3) Setting Deadline for Supplemental Settlement Conference Briefs. Signed by Magistrate Judge Allison H. Goddard on 1/21/2020. (jdt) (Entered: 01/22/2020)

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02/18/2020 02/21/2020 03/06/2020 03/23/2020

162 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Settlement Conference held on 1/31/2020. The case did not settle, but the Court will continue to facilitate settlement negotiations. Order to issue. (Plaintiff Attorneys Mitra Ebadolahi, Arthur Luk, and Sarah Thompson). (Defendant Attorneys Rachael Westmoreland, Bradley Craigmyle, James Scott, Amy Dell, and Nicholis Mutton (telephonic)). (no document attached) (kxm) (Entered: 01/31/2020)
163 ORDER (1) Setting Telephonic Status Conferences; (2) Maintaining Stay on Briefing Schedule for Plaintiffs' Motion to Compel; and (3) Extending Deadline for Compliance with Court's August 6, 2019 Order. Parties must provide comments and/or proposed revisions to the Court's latest draft Settlement Stipulation by 2/7/2020. Telephonic Status Conference with Plaintiffs' counsel set for 2/10/2020 at 09:30 AM and Telephonic Status Conference with Defendants' counsel set for the same day at 10:30 AM before Magistrate Judge Allison H. Goddard. Briefing Schedule on 130 Plaintiffs' Motion to Compel remains stayed. Defendants' deadline to fully comply with 120 Order Granting Motion to Compel in Part extended to 2/18/2020. Signed by Magistrate Judge Allison H. Goddard on 01/31/2020. (kxm) (Entered: 01/31/2020)
164 ORDER Resetting Telephonic Status Conferences With Counsel. Telephonic Status Conference with Defendants' counsel is reset for 2/11/2020 at 2 PM. Telephonic Status Conference with Plaintiffs' counsel is reset for 2/12/2020 at 1:30 PM. Signed by Magistrate Judge Allison H. Goddard on 2/4/2020. (jdt) (Entered: 02/04/2020)
165 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Confidential Telephonic Status Conference re proposed revisions to draft settlement stipulation held with counsel for Defendants on 2/11/2020. (Defendant Attorneys Rachael Westmoreland and Bradley Craigmyle). (no document attached) (kxm) (Entered: 02/11/2020)
166 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Confidential Telephonic Status Conference re: proposed revisions to draft settlement stipulation held with counsel for Plaintiffs on 2/12/2020. (Plaintiff Attorneys Mitra Ebadolahi, Sara D'Amico, Arthur Luk, Samuel Callahan, and Sarah Thompson). (no document attached) (kxm) (Entered: 02/12/2020)
167 ORDER: (1) Setting Telephonic Status Conferences; and (2) Extending Deadline for Compliance With Court's August 6, 2019, Order. The Court sets a confidential Telephonic Status Conference with Defendants' counsel for 2/18/2020 at 11:30 AM and another confidential Telephonic Status Conference with Plaintiffs' counsel for 2/21/2020 at 11:00 AM. All briefing schedule deadlines related to Plaintiffs' Motion to Compel (ECF No. 130 ) remain stayed. The Court further extends Defendants' deadline to fully comply with the Court's August 6, 2019 Order granting Plaintiffs' motion to compel in part (ECF No. 120 ) to 3/10/2020. Signed by Magistrate Judge Allison H. Goddard on 2/13/2020. (jdt) (Entered: 02/13/2020)
168 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Confidential Telephonic Status Conference re: continuing settlement discussions held on 2/18/2020 with counsel for Defendants. (Defendant Attorneys Rachael Westmoreland and Bradley Craigmyle). (no document attached) (kxm) (Entered: 02/18/2020)
169 Minute Entry for proceedings held before Magistrate Judge Allison H. Goddard: Confidential Telephonic Status Conference held on 2/21/2020 re: continuing settlement discussions with counsel for Plaintiffs. Judge Goddard will provide the parties a Mediator's Proposal of a new proposed stipulated settlement early next week. (Plaintiff Attorneys Mitra Ebadolahi, Sara D'Amico, Sarah Thompson, and Arthur Luk). (no document attached) (kxm) (Entered: 02/21/2020)
170 ORDER Extending Deadline for Compliance With Court's August 6, 2019 Order. The Court extends Defendants' deadline to fully comply with the Court's 8/6/2019 Order granting Plaintiffs' motion to compel in part (ECF No. 120 ) from 3/10/2020 to 3/24/2020. Signed by Magistrate Judge Allison H. Goddard on 3/6/2020. (jdt) (Entered: 03/09/2020)
171 ORDER Extending Deadline for Compliance With Court's August 6. 2019 Order. The Court extends Defendants' deadline to fully comply with the Court's Order granting Plaintiffs' motion to compel in part (ECF No. 120 ) to 4/7/2020. Signed by Magistrate

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Judge Allison H. Goddard on 3/23/2020. (jdt) (Entered: 03/23/2020)
172 ORDER Extending Deadline for Compliance With Court's August 6, 2019 Order. The Court extends Defendants' deadline to fully comply with the Court's August 6, 2019 Order granting Plaintiffs' motion to compel in part (ECF No. 120 ) to 4/28/2020. Signed by Magistrate Judge Allison H. Goddard on 4/6/2020. (jdt) (Entered: 04/06/2020)
173 ORDER Setting Attorneys−Only Telephonic Settlement Conference for 4/20/2020 at 10:30 AM before Magistrate Judge Allison H. Goddard. See order for details regarding the governing procedures. Signed by Magistrate Judge Allison H. Goddard on 04/13/2020.(kxm) (Entered: 04/13/2020)
174 ORDER: (1) Continuing Telephonic Settlement Conference; and (2) Staying Deadline for Compliance with August 6, 2019 Order on Motion to Compel. The Telephonic Settlement Conference is continued to 4/28/2020 at 9:00 AM before Magistrate Judge Allison H. Goddard. Signed by Magistrate Judge Allison H. Goddard on 4/15/2020. (jdt) (Entered: 04/15/2020)
175 ORDER: (1) Continuing Telephonic Settlement Conference; and (2) Setting Deadline for Defendants' Counteroffer. The Court continues the telephonic Settlement Conference to 5/6/2020 at 9:00 AM before Magistrate Judge Allison H. Goddard. Signed by Magistrate Judge Allison H. Goddard on 4/24/2020. (jdt) (Entered: 04/24/2020)