Metropolitan News-Enterprise

 

Wednesday, August 15, 2018

 

Page 3

 

Ninth Circuit: Border Patrol Photo-Ban Case Can Go Forward

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals yesterday reinstyated a challenge by two men to U.S. Customs and Border Protection policies which they say amount to a total ban on unauthorized photography at ports of entry, in violation of the First Amendment.

The opinion by Judge Jay S. Bybee vacates the dismissal of an amended complaint by U.S. District Court Judge Thomas J. Whelan of the Southern District of California.

Two Customs and Border Protection (“CBP”) policies are in issue. The first policy directs the CBP to cooperate with news organizations, but sets out rules for dealing with requests to photograph or film suspects, and the other  establishes “ground rules” for news media personel wishing to film or interview on port of entry property, requiring clearance from the CBP.

‘Total Ban’

The plaintiffs alleged that these policies are interpreted by the agency as a total ban on all photography anywhere in a port of entry—including the public streets and sidewalks nearby which are owned or leased by the agency—without prior authorization.

Under those policies, CBP agents had detained plaintiff Ray Askins for taking pictures at Calexico West, a port of entry in Imperial County. Askins had been standing on a public street, taking pictures of a secondary vehicle inspection area to use at a conference presentation he was planning on the environmental effects of border crossings.

In a similar incident at the San Ysidro port of entry in San Diego, plaintiff Christian Ramirez was on a public pedestrian bridge taking pictures of several male CBP agents who he noticed were conducting searches of female travelers, when CBP agents confiscated his cell phone and deleted the pictures.

Strict Scrutiny Applied

Whelan had assumed that the CBP policies amounted to a content-based restriction on speech in a public forum, which requires a court to apply the strict scrutiny level of constitutional review.

Bybee noted that the process of taking pictures is just as protected under the First Amendment as the pictures themselves, and that public streets are a traditional example of a public forum.

However, he disagreed with Whelan’s holding that the CBP policies were the least restrictive means of accomplishing the government’s interest in territorial sovereignty and border security, characterizing that holding as “thin” and “conclusory.”

He wrote:

“Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry….But the devil lies in the details....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.”

Further Development Necessary

As to the government’s contention that ports of entry are not public forums, Bybee said the question of whether a place has such a status is fact-intensive, and would require further development of the record before the District Court could decide the issue. He pointed out that the two locations would need to be separately considered.

In the case of Calexico West, he noted that there was only one picture of what appeared to be a public street where Askins had taken his photographs, and that the location was right beside a park the government admitted was public property and where the same pictures could have been taken.

“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,” Bybee said. “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.”

Limits of Holding

He went on to say:

“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.”

Bybee added, in a footnote:

“Wc 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.”

Law of Case

Whelan dismissed the initial complaint with leave to amend. When the plaintiffs amended,  the judge dismissed without leabe to amend, saying the law of the case precluded reexamination of issues already decided.

That, Bybee said, was error, explaining:

 “Once the plaintiff elects to file an amended complaint, the new complaint is the only operative complaint before the district court….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.”

He noted that the law of the case doctrine applies obviously when an appellate court has ruled on an issue and remanded the case to the trial court, but that it does not bar a trial court from reevaluating its own legal rulings before a final decree or judgment is issued.

The case is Askins v. U.S. Department of Homeland Security, No. 16-55719.

 

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