Category Archives: First Amendment Violations

NBC 7 San Diego v. United States Department of Homeland Security

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NBC 7 San Diego et al v. United States Department of Homeland Security et al., No. 1:19-cv-01146 (D.D.C., filed Apr. 22, 2019)

In March 2019, NBC 7 San Diego reported that U.S. Customs and Border Protection (CBP) maintains a secret database of lawyers, journalists, and others who were covering the migrant caravan or advocating for asylum seekers. Several of those in the database reported spending hours in secondary screening, and at least three people reported being barred from crossing into Mexico.

NBC reported that CBP secretly tracks these individuals under the aegis of “Operation Secure Line,” the moniker for its efforts to deter and intimidate caravans of asylum seekers. The agency’s proffered justification for maintaining this secret database is that the people listed were somehow involved with an incident in which a large group of asylum seekers approached the border barrier, leading CBP to respond with tear gas.

The existence of this database attracted the attention of the House of Representatives’ Committee on Homeland Security, prompting a letter to DHS leadership requesting further information on the tracking of journalists and advocates.

On April 22, 2019, NBC 7 San Diego filed this lawsuit under the Freedom of Information Act (FOIA) seeking records that reference “Operation Secure Line” and the secret database. CBP continues to deny the database sought exists. The parties have filed cross motions for summary judgment. Defendants have not yet completed their production of responsive records as of April 2022.

On December 20, 2022, the court denied in part and denied without prejudice in part Defendants’ motion for summary judgment, and granted in part and denied without prejudice in part Plaintiffs’ cross-motion. Following the court’s summary judgment order, Defendants have produced thousands of records to NBC 7.

Documents:   

Counsel: The Reporter’s Committee for Freedom of the Press

Contact: Katie Townsend | (202) 795-9300 | ktownsend@rcfp.org

Press: Tom Jones, Secure Line Secrets: Documents Released Behind Border Surveillance of Journalists, Attorneys and Humanitarian Aid Workers, NBC 7 San Diego (Mar. 24, 2023, 4:12 PM), https://www.nbcsandiego.com/news/investigations/secure-line-secrets-documents-released-behind-border-surveillance-of-journalists-attorneys-and-humanitarian-aid-workers/3194760/

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

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FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

Sosa Segura v. United States of America, No. 2:19-cv-00219-SAB (E.D. Wash., filed Jun. 25, 2019) 

On June 20, 2018 the ACLU of Washington and the Northwest Immigrant Rights Project filed a claim under the FTCA on behalf of Andres Sosa Segura, who was unlawfully seized and detained by Border Patrol agents at an intermodal transit station in Spokane, Washington.

Mr. Sosa, a resident of Washington, traveled regularly to Montana for work. On his return trip from Montana, after disembarking a bus at the Spokane station to make a transfer, Mr. Sosa was approached by Border Patrol agents who began to interrogate him about his legal status. Mr. Sosa had been the only Latinx-appearing passenger on the bus. He asserted his right to remain silent and showed the agents a “know your rights” card. Upon viewing the card, one of the agents called Mr. Sosa “illegal,” and both agents positioned their bodies so he could not leave, even once putting their hand on their gun as though to imply the use of force if Mr. Sosa did not comply.

The agents continued to question Mr. Sosa and to threaten him with deportation, even after he disclosed he had already been released from immigration detention and had an ankle monitor. They eventually drove him to a detention facility an hour away from the bus station and continued to detain him for several hours while they verified he had been released from immigration detention on bond. Eventually, Mr. Sosa was driven back to the Spokane bus station and released, though he had already missed all buses back to his home. The complaint letter asserts that Mr. Sosa experienced humiliation, emotional distress, and other damages during the time he was falsely arrested and falsely imprisoned.

On June 25, 2019, Mr. Sosa filed a complaint in federal district court, as CBP failed to issue a final disposition on the administrative complaint within the required six-month period. The government filed a subsequent motion to dismiss, which was denied on November 22, 2019. Mr. Sosa filed for partial summary judgment on September 23, 2020, which was denied on November 17, 2020. A bench trial set for January 19, 2021, has been postponed due to the pandemic, and is now scheduled for June 2021. In March 2021, the government reached a settlement agreement with Mr. Sosa which included an award for damages.

In the course of discovery, the government agreed to lift a confidentiality designation on certain information produced, including deposition excerpts from an officer confirming that CBP no longer requires agents to possess “actionable intelligence” prior to performing security checks at transportation hubs like bus stations. That requirement came into place during the Obama administration, but was lifted after Trump’s election. In addition, the confidentiality designation was lifted on an internal CBP memo from January 2020 detailing Border Patrol’s interpretation of its statutory authority to engage in “suspicionless and consensual encounters” at public bus or train stations.

Counsel: ACLU of Washington | Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | matt@nwirp.org

Press:

Merchant v. Mayorkas (formerly Alasaad v. Nielsen)

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Merchant v. Mayorkas (formerly Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017), Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020), No. 20-1505 (Sup. Ct., filed Apr. 23, 2021)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of time. Plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a traveler’s cellphone. On December 15, 2017, Defendants filed a motion to dismiss.

On May 9, 2018, the court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.

Defendants filed an answer on June 1, 2018. Since then, the parties have been proceeding through the discovery process. In Spring 2019, the parties cross-moved for summary judgment, with plaintiffs arguing that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments and are seeking an injunction. Oral argument was held in July 2019. In November 2019, the court denied Defendants’ motion for summary judgment. The court allowed in part and denied in part Plaintiffs’ motion for summary judgment, denying the request for injunctive relief but allowing the request for declaratory relief. The district court then entered a judgment stating that border authorities may only search a traveler’s electronic device if they have reasonable suspicion that the device contains digital contraband. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020. Briefing on the cross-appeals was ongoing through July, and in August 2020, Harvard Immigration and Refugee Clinic, the Brennan Center for Justice, Constitutional Accountability Center, The National Association of Criminal Defense Lawyers, the Knight First Amendment Institute, and a number of other civil rights, immigration, privacy, and free speech organizations filed briefs as amicus curiae.

On February 9, 2021, the First Circuit issued its decision, holding that neither a warrant nor reasonable suspicion are required for CBP agents to conduct a basic search of electronic devices, and that neither a warrant nor probable cause is required to conduct an advanced search. It also held that CBP agents can retain an electronic device after a traveler crosses the border.

On April 23, 2021, Plaintiffs filed a petition for a writ of certiorari to the Supreme Court, asking the Court to clarify what level of suspicion (i.e., probable cause, reasonable suspicion, or none) is required to search a traveler’s electronic devices, and the scope of that search. The petition further asks the Supreme Court to impose a minimum requirement of reasonable suspicion for any such search conducted at the border. The Constitutional Accountability Center, the Center for Democracy & Technology, the Brennan Center for Justice, and TechFreedom submitted amicus briefs in support of the Plaintiff-Petitioners. On June 28, 2021, the Supreme Court denied the petition for certiorari.

Documents:

Counsel:  Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts

Jacobson et al. v. DHS et al.

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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 the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and certain named Border Patrol agents for their interference with Plaintiffs’ right to protest, observe, and record law enforcement activity at the U.S. Border Patrol’s interior checkpoint on Arivaca Road in Arivaca, Arizona near the U.S.-Mexico border. Although CBP claimed that the Arivaca Road checkpoint was temporary, it had been in continuous existence since 2007. Many Arivaca residents had to drive through the checkpoint every day to reach jobs, schools, doctors, and shops.

Plaintiffs are members of a community organization called People Helping People (“PHP”), which organized a “checkpoint monitoring campaign” in response to public 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 the DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, community volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of Border Patrol agents’ conduct to collect data on checkpoint activity and deter abuse. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after the volunteers began their monitoring activity, Border Patrol agents, with the assistance of local law enforcement, ordered the monitors to move to a spot much farther away from the checkpoint and forbade the monitors from entering the area immediately surrounding the checkpoint. The agents eventually cordoned off this area, unilaterally deeming it “the enforcement zone.” Under threat of arrest, the monitors and protestors complied with the agents’ order to relocate. From outside the enforcement zone, however, it was virtually impossible for the monitors to observe agents’ conduct at the checkpoint.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity at the checkpoint, as well as retaliated against them for engaging in constitutionally protected activity. Plaintiffs sought an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way near the Arivaca Checkpoint.

In January 2015, Plaintiffs moved for a preliminary injunction. After oral arguments in April, the court denied Plaintiffs’ motion in September 2015. Defendants then moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against Plaintiffs, holding that the Arivaca checkpoint was a nonpublic forum and that the restriction placed on Plaintiffs’ speech was a valid “time, place, and manner restriction.”

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, concluding that the limited record before the district court did not permit it to conclude that the enforcement zone was a nonpublic forum or, if it was, whether the government satisfied the requirements for excluding Plaintiffs from a nonpublic forum. The Ninth Circuit then remanded the case to allow discovery to proceed.

On July 15, 2020, Plaintiffs moved for sanctions on the basis of Defendants’ spoliation of relevant evidence and submission of a declaration without the requisite personal knowledge. After briefing and oral argument, the magistrate judge denied Plaintiffs’ motion for sanctions without prejudice.

On June 14, 2021, the parties filed a joint stipulation to dismiss the case with prejudice. The case is now closed. At the end of July 2021, the original Arivaca Checkpoint was dismantled.

Documents:

Related documents:

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

Askins and Ramirez v. DHS et al.

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Askins and Ramirez v. Department of Homeland Security et al., Nos. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) and 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to photograph and monitor publicly visible law enforcement activity and challenging CBP’s abusive behavior towards those who seek to exercise this right at or near ports of entry.

Ray Askins is a U.S. citizen and environmental activist. While standing on a public street in Calexico (inside the United States), he took photographs of the exterior of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. The matters they photographed were publicly visible. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins.

This case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal public activities.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss. In April 2014, the district court granted in part and denied in part the government’s motion. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims. The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting the government’s motion in part. This order addressed Plaintiffs’ Fourth Amendment claims, and invited Plaintiffs to file an amended complaint.

Plaintiffs did so; once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. In February 2018, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint.

On August 14, 2018, the Ninth Circuit issued its opinion and reversed the district court’s ruling, ordering the case to be remanded for discovery. The government filed an answer on March 8, 2019, and the parties spent several months in active discovery. In September 2020, a final settlement was entered and the case was dismissed.

If you would like to understand your rights under the settlement, please visit: https://www.aclu.org/news/free-speech/you-have-the-right-to-record-law-enforcement-officers-including-at-the-border.

If you believe your First Amendment rights have been violated while photographing or recording at a land Port of Entry in the United States, please submit an intake with the ACLU using this online form: https://action.aclu.org/webform/help-us-hold-cbp-officials-accountable.

Counsel: ACLU of San Diego & Imperial Counties; Arnold & Porter Kaye Scholer LLP; First Amendment Coalition

Contact:  David Loy | First Amendment Coalition | dloy@firstamendmentcoalition.org