Jacobson et al. v. DHS et al., Nos. 14-02485 (D. Ariz., filed Nov. 20, 2014) and 16-17199 (9th Cir., filed Nov. 30, 2016)
This is a First Amendment case brought against DHS, CBP, and certain named officials for their interference with the plaintiffs’ right to protest, observe, and record activity at the U.S. Border Patrol’s checkpoint on Arivaca Road near the Arizona-Mexico border. Although CBP claims that this checkpoint is temporary, it has been in continuous existence for twelve years. Many Arivaca residents must drive through the checkpoint every day to reach jobs, schools, and shops. Plaintiffs are members of a community organization called People Helping People (PHP), which organized a “checkpoint monitoring campaign” in response to complaints that Border Patrol agents were violating individuals’ civil rights at the checkpoint. A number of these incidents were detailed in an administrative complaint filed with DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.
As part of the checkpoint monitoring campaign, PHP volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of the actions of Border Patrol agents at the checkpoint. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after PHP began their monitoring activity, Border Patrol agents ordered the volunteers and protestors to move to a spot much farther away, making it virtually impossible for the monitors to observe what was happening at the checkpoint. The Border Patrol agents enlisted the assistance of a local law enforcement officer, who also ordered the PHP monitors to move to another spot. The monitors and protestors complied with this order.
Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity in their community. They seek an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way.
In January 2015, Plaintiffs moved for a preliminary injunction. After oral arguments in April, the court denied Plaintiffs’ motion in September 2015, finding that the Border Patrol’s policy was a valid “time, place, and manner restriction” on Plaintiffs’ speech. Defendants moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against the Plaintiffs.
Plaintiffs appealed in November 2016. Briefing was completed in August 2017 and oral argument held in December 2017, in San Francisco.
On February 13, 2018, the Ninth Circuit vacated the district court’s grant of summary judgment to defendants, remanding the case to allow discovery to proceed.
Plaintiffs have moved for sanctions on the basis of Defendants’ spoliation of relevant evidence and submission of a declaration without the requisite personal knowledge. Briefing on that motion is scheduled to be completed by mid-October 2020.
As of October 2020, discovery is ongoing.
- Plaintiffs’ Motion for a Preliminary Injunction
- District Court Order Denying Plaintiffs’ Motion for a Preliminary Injunction
- District Court Order Granting Defendants’ Motion to Dismiss
- Appellants’ Opening Brief
- Amicus Brief in Support of Appellants from CATO Institute
- Amicus Brief in Support of Appellants from National Press Photographers’ Association & the Center for Investigative Reporting
- Appellees’ Brief
- Appellants’ Reply Brief
- Ninth Circuit Oral Argument Video
- Ninth Circuit Oral Argument Audio
- Ninth Circuit Opinion
Counsel: ACLU of Arizona, ACLU of San Diego and Imperial Counties, and Covington and Burling.
Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | firstname.lastname@example.org