Jacobson et al. v. DHS et al.

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. As of October 2019, discovery is ongoing.

Related documents:

Counsel: ACLU of Arizona, ACLU of San Diego and Imperial Counties, and Covington and Burling.

Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Castro Romo v. United States of America

Castro Romo v. United States of America, No. 4:12-041 (D. Ariz. Feb. 6, 2015)

On February 6, 2015, the district court awarded the plaintiff, Jesus Castro Romo, $497,943 as damages for injuries he suffered when he was shot by a Border Patrol agent. Following a five day trial, the court found that the Border Patrol agent, who was on horseback, caught up with Mr. Castro and others as they were walking through the Arizona desert. Mr. Castro ran from the agent, who pursued him. Upon catching up to him, the agent threatened Castro, yelled obscenities at him, hit him with the horse’s reins, had the horse poke him from behind, and ultimately shot Castro in his lower back. The court credited Mr. Castro’s version of events and rejected as less credible the agent’s version that Castro was about to throw a rock at him—both because the agent changed his story over time and also because the agent previously had been convicted of taking a bribe while working for the Border Patrol.

Based upon these facts, the court concluded that the agent had committed an intentional battery under Arizona law; that his use of a gun constituted the use of deadly force; that he was not justified in using deadly force; and that the unresolved question of whether Castro had been operating as a “coyote” did not change the fact that it was unreasonable for the agent to use deadly force under these circumstances. The court considered Castro’s action in running from the agent and reduced the damage award by 10%.

The decision sets out in detail the evidence supporting the various types of damages and the court’s calculations of these damages, including past and future medical and psychiatric expenses, economic damages, and pain and suffering. On March 5, 2015, Mr. Castro filed a motion requesting that the court amend its findings of fact and conclusions of law and enter a new judgment increasing the amount of damages awarded. On July 21, 2015, the court agreed to recalculate Mr. Castro’s damages for future pain and suffering and loss of enjoyment of life to account for the effect of inflation. The court increased the original damages award by nearly $20,000 to a new total of $516, 320.82.

Counsel: Risner and Graham

Contact: William J. Risner | (520) 622-7494

Complaint by the ACLU to the Department of Homeland Security Denouncing Interior Checkpoint Abuses

Complaint by ACLU of Arizona and ACLU Border Litigation Project to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties Denouncing Interior Checkpoint Abuses

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

Counsel: ACLU of Arizona

Contact: James Lyall | ACLU of Arizona | 602.650.1854 | jlyall@acluaz.org