darren chaker-first amendment

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Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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M. ANDREW WOODMANSEE (CA SBN 201780) [email protected] KIMBERLY R. GOSLING (CA SBN 247803) [email protected] JEFFREY M. DAVID (CA SBN 265503) [email protected] MARY PRENDERGAST (CA SBN 272737) [email protected] MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 DAVID LOY (CA SBN 229235) [email protected] SEAN RIORDAN (CA SBN 255752) [email protected] ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, California 92138-7131 Telephone: 619.232.2121

Attorneys for Plaintiffs RAY ASKINS and CHRISTIAN RAMIREZ

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RAY ASKINS and CHRISTIAN RAMIREZ,

Plaintiffs,

v.

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,

Defendants.

Case No. 12CV2600 W BLM

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(B)(6) Date: April 15, 2013 Time: NO ORAL ARGUMENT SCHEDULED PER LOCAL RULE Dept.: 7 Judge: Thomas J. Whelan

Case 3:12-cv-02600-W-BLM Document 32 Filed 03/13/13 of 38

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i Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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TABLE OF CONTENTS

Page I. INTRODUCTION ............................................................................................ 1

II. BACKGROUND .............................................................................................. 2

A. CBP Interfered with Mr. Askins’s Speech. ............................................ 2

B. CBP Interfered with Mr. Ramirez’s Speech. ......................................... 5

C. CBP Interfered with Plaintiffs’ Speech Pursuant to Official Policy and Practice. ........................................................................................... 8

D. Plaintiffs Wish to Continue Taking Photographs at U.S. Ports of Entry, But CBP’s Policy and Practice Deters and Prevents Them from Doing So. ....................................................................................... 8

III. LEGAL STANDARD ...................................................................................... 9

IV. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE FIRST AMENDMENT .................................................................................. 10

A. Plaintiffs’ Plausibly Allege They Were in Public Fora. ...................... 11

B. CBP’s Regulation Is Not Reasonable and Viewpoint-Neutral and Thus Is Unconstitutional. ..................................................................... 15

1. CBP’s Regulation is Unconstitutional Because it is Unreasonable. ............................................................................ 16

a. The Regulation Is Unreasonably Underinclusive. .......... 16

b. CBP’s Regulation Does Not Target Disruption. ............. 18

2. CBP’s Regulation Unconstitutionally Permits Viewpoint Discrimination. .......................................................................... 19

V. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE FOURTH AMENDMENT ............................................................................. 21

A. A Violation of CBP’s Unconstitutional Prohibition on All Photography Cannot Provide CBP Officers With Probable Cause. .... 22

B. Plaintiffs Have Sufficiently Alleged a Pattern of Officially Sanctioned Behavior in Violation of the Fourth Amendment. ............ 25

C. Plaintiffs Assert Independent Fourth Amendment Claims Based on Unconstitutional Search and Seizure of Their Cameras. ................ 26


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ii Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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VI. IN THE ALTERNATIVE, PLAINTIFFS ARE ENTITLED TO LEAVE TO AMEND ..................................................................................... 28

VII. CONCLUSION .............................................................................................. 28


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iii Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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TABLE OF AUTHORITIES

Page(s) CASES

ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012) .................................. 10

Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074 (2011) .................................................................................................................... 9

Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) ............................................................................ 10

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................. 9

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009) ................................................................................ 9

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ........................................................................................... 10

Child Evangelism Fellowship of Md., Inc. v. Montgomery Co. Pub. Sch., 457 F.3d 376 (4th Cir. 2006) .............................................................................. 19

Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ........................................................................................... 17

Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985) ............................................................................... 11, 12, 18

Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910 (9th Cir. 2006), cert. denied, 132 S. Ct. 1583 (2012) ............ 16, 18

Deepakkumar Himatlal Soneji v. Dep’t of Homeland Sec., 525 F. Supp. 2d 1151 (N.D. Cal. 2007)................................................................ 9

Doe v. United States, 58 F.3d 494 (9th Cir. 1995) ................................................................................ 28

Dumas v. Kipp, 90 F.3d 386 (9th Cir. 1996) ................................................................................ 28


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iv Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) ............................................................................................. 10

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ................................................................................ 10

Hebbe v. Pliler, 627 F.3d 340 (9th Cir. 2010) .......................................................................... 9, 13

In re Verifone Sec. Litig., 11 F.3d 865 (9th Cir. 1993) ............................................................................................. 24

Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ........................................................................................... 18

Intri-Plex Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048 (9th Cir. 2007) ............................................................................ 13

Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012) ........................................................................ 19, 20

L.H. v. Schwarzenegger, No. 06-2042, 2007 WL 662463 (E.D. Cal. Feb. 28, 2007) ................................ 25

Ladue v. Gilleo, 512 U.S. 43 (1994) ............................................................................................. 17

Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007) .............................................................................. 21

Libertarian Party of Los Angeles v. Bowen, -- F.3d --, 2013 WL 815584 (9th Cir. March 6, 2013) ....................................... 14

Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) ............................................................................ 28

Maryland v. Macon, 472 U.S. 463 (1985) ........................................................................................... 27

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .............................................................................. 26

Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) .............................................................................. 19


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v Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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Mocek v. Albuquerque, et al., No. 11-cv-1009, 2013 WL 312881 (D.N.M. Jan. 14, 2013) ................................... 18

Morse v. Frederick, 551 U.S. 393 (2007) .......................................................................................................... 19

Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007) ................................................................................... 26

OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2011) ................................................................................................. 12

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) ....................................................................................................... 15, 16

Roaden v. Kentucky, 413 U.S. 496 (1973) .......................................................................................................... 27

Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005)............................................................................. 20

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) .......................................................................................................... 17

Seifert v. Winter, 555 F. Supp. 2d 3 (D.D.C. 2008) ....................................................................... 23

Smith v. Cumming, 212 F.3d 1332 (11th Cir. 2000) ...................................................................................... 10

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012) ..................... 9

Stewart v. Dist. of Columbia Armory Bd., 863 F.2d 1013 (D.C. Cir. 1988) ...................................................................................... 13

United Food & Comm. Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) ........................................................................................... 15

United States v. Alghazouli, 517 F.3d 1179 (9th Cir. 2006) ......................................................................................... 22


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United States v. Brice, 926 F.2d 925 (9th Cir. 1991) .............................................................................. 23

United States v. Cervantes, 678 F.3d 798 (9th Cir. 2012) .............................................................................. 26

United States v. Cotterman, – F.3d –, 2013 WL 856292 (9th Cir. March 8, 2013) ........................................ 20

United States v. Crop Growers Corp., 954 F.Supp. 335 (D.D.C. 1997) ......................................................................... 24

United States v. Finley, 477 F.3d 250 (5th Cir. 2007) .............................................................................. 27

United States v. Grace, 461 U.S. 171 (1983) ........................................................................................... 13

United States v. Karo, 468 U.S. 705 (1984) ........................................................................................... 26

United States v. Kokinda, 497 U.S. 720 (1990) ..................................................................................... 12, 15

United States v. Lamson, 162 F. 165 (D.R.I. 1908) .................................................................................... 24

United States v. Stansell, 847 F.2d 609 (9th Cir. 1988) .............................................................................. 23

United States v. Young, 278 F. App’x 242 (4th Cir. 2008) ....................................................................... 27

Van Gesner v. United States, 153 F. 46 (9th Cir. 1907) .................................................................................... 22

Vanguard Outdoor, LLC v. Los Angeles, 648 F.3d 737 (9th Cir. 2011) .............................................................................. 17

Venetian Casino Resort, L.L.C. v. Local Jt. Exec. Bd. of Las Vegas, 257 F.3d 937 (9th Cir. 2001) .............................................................................. 12


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vii Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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Yordy v. Astrue, No.1:09-cv-03028-NJV, 2010 U.S. Dist. LEXIS 14966 (N.D. Cal. Feb. 22, 2010) .............................. 9, 10

STATUTES

6 U.S.C. § 111(b)(1)(G) ........................................................................................... 20

40 U.S.C. § 121(c) ................................................................................................... 23

OTHER AUTHORITIES

41 C.F.R. § 102-74.420 ............................................................................... 22, 23, 24

41 C.F.R. § 102-74.420(c) ....................................................................................... 23

41 C.F.R. § 102-74.450 ..................................................................................... 22, 23

Fed. R. of Civ. Proc. 12(b)(6) ................................................................................................. 9

Fed. R. Evid. 201 ..................................................................................................... 23

Fed. R. Evid. 201(b) ................................................................................................ 13


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1 Case No. 12CV2600 W BLM Plaintiffs’ Opposition to Defendants’ Motion to Dismiss

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I. INTRODUCTION Defendants’ motion to dismiss is a premature attempt to avoid judicial

inquiry into their unconstitutional prohibition on Plaintiffs’ exercise of clearly

established First Amendment rights.

Photography is pure First Amendment speech, entitled to constitutional

protection regardless of subject. As the Department of Justice itself has

emphasized, “[r]ecording governmental officers engaged in public duties is a form

of speech through which private individuals may gather and disseminate

information of public concern, including the conduct of law enforcement officers.”

(Complaint at Ex. A (U.S. Dep’t of Justice, Letter to the Parties dated May 14,

2012, Sharp v. Baltimore City Police Dept., et. al., No. 1:11-cv-02888-BEL (D.

Md.) (“DOJ Letter to the Parties in Sharp”), at 2.) The right to gather and

disseminate such information “serves a cardinal First Amendment interest in

protecting and promoting ‘the free discussion of governmental affairs.’” (Id. at 3.)

Plaintiffs seek only to protect their core First Amendment rights to take

photographs and engage in political speech that holds government officials

accountable.

Defendants argue that Plaintiffs’ Complaint is inadequate. But Plaintiffs

need only show a claim to relief that is plausible on its face, and they have

sufficiently alleged both First and Fourth Amendment violations. Defendants’

arguments to the contrary are based on assertions about which there is a factual

dispute, and thus dismissal of these claims would be premature. Whether or not the

Court later finds Plaintiffs were in a public forum, Defendants have not established

that their regulation is reasonable and viewpoint-neutral such that Plaintiffs’ claims

are implausible. Moreover, Plaintiffs seek only to protect their right to take photos

of matters already exposed to public view, and not to engage in unrestricted

photography anywhere “on land ports of entry.” (Motion to Dismiss (“Mot.”) at 1.)

The Court should reject Defendants’ attempts to exaggerate the relief Plaintiffs are


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seeking in order to undermine Plaintiff’s ability to state a claim for that relief.

Finally, Plaintiffs have adequately pled a violation of the Fourth Amendment as a

result of being detained, searched, and having their property seized without

probable cause. Defendants point to no authority allowing them to criminalize

violations of CBP’s own internal policy; Plaintiffs therefore could not

constitutionally be detained and searched on that basis. Because neither plaintiff

was in the act of crossing the border at the time of the incidents, Defendants’ pleas

for “greater deference” to its inspection rights are misplaced.

Whatever CBP may contend, it is not exempt from the First Amendment and

the border is not a First Amendment-free zone. Plaintiffs seek only to protect their

own well-established “First Amendment right to photograph matters exposed to

public view”—including the exterior of CBP buildings and officers carrying out

their duties in public. Because CBP’s prohibition on all photography without prior

CBP authorization is not reasonable and viewpoint-neutral as applied to matters

exposed to public view, Plaintiffs have adequately pled plausible violations of their

First and Fourth Amendment rights. Defendants’ motion should be denied.

II. BACKGROUND In similar incidents at separate U.S. ports of entry, CBP interfered with

Plaintiffs’ speech by detaining them, seizing their personal property, and erasing

photos taken by Plaintiffs of CBP personnel and buildings. These incidents reflect

CBP’s policy and practice of prohibiting the use of cameras and video recording

devices to film matters exposed to public view in and around U.S. ports of entry,

without CBP’s prior approval. Although Plaintiffs strongly wish to continue

recording CBP activities and facilities, CBP’s policy and practice unlawfully deter

and prevent them from doing so.

A. CBP Interfered with Mr. Askins’s Speech. Plaintiff Ray Askins is a U.S. citizen living primarily in Mexicali, Mexico.

(Complaint ¶17.) He travels frequently to the United States, often to attend


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meetings or to visit his home in Lake Arrowhead, California. (Id.)

Mr. Askins maintains and contributes to a blog that primarily addresses

environmental issues and human rights abuses in the U.S.-Mexico border region.

(Id.) This work involves extensive research, investigation, and analysis of CBP

activities. (Id.) Additionally, this work has culminated in numerous reports

prepared by Mr. Askins and submitted to then-U.S. Representative Bob Filner,

whose former congressional district includes the entire California-Mexico border.

(Id.)

In April 2012, Mr. Askins attempted to take photographs of the Calexico-

Mexicali Port of Entry for a presentation at a conference entitled “Health Impacts of

Border Crossings,” held on May 4, 2012, in San Ysidro, California. (Id. ¶¶ 18, 20.)

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

the secondary inspection area of the Calexico-Mexicali Port of Entry to demonstrate

that the CBP does not make full and proper use of this inspection area, leading to

longer delays at the border crossing and, accordingly, to more pollution arising

from emissions of vehicles waiting in line to cross the border or enter the port of

entry. (Id. ¶ 19.)

Mr. Askins initially contacted CBP Officer John Campos by phone on or

about April 18, 2012, seeking permission to take three or four photographs inside

the secondary inspection area at the Calexico Port of Entry the next day. (Id. ¶ 20.)

Officer Campos said that this would be inconvenient, but otherwise did not object

to the request. (Id.)

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

(Id. ¶ 21.) When he received no answer, Mr. Askins left a voicemail message

stating that, instead of taking photographs inside the building, he would stand on

the street in Calexico and take photographs of the exit of the secondary inspection

area. (Id.) As planned, Mr. Askins then drove to Calexico, California, and took

three or four photographs of the exit of secondary inspection from a vantage point


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on the shoulder of a public street, approximately 50 to 100 feet from the secondary

inspection exit. (Id. ¶ 22.) Mr. Askins remained outside the port of entry on the

U.S. side of the border when taking these photographs. (Id. ¶ 24.) He was not

engaged in the act of crossing the border. (Id.)

Shortly after Mr. Askins took the photos, a number of male CBP officers

approached him. (Id. ¶ 25.) One or two of the officers demanded that Mr. Askins

delete the photos. (Id.) When Mr. Askins stated that he would not do so, one or

more of the officers responded that they would smash the camera if Mr. Askins did

not delete the photos. (Id.) Mr. Askins again declined to delete the photos,

explaining that they were his property. (Id.) The officers then handcuffed Mr.

Askins from behind and took his camera, passport, car keys, and hat. (Id.) The

CBP officers spoke to Mr. Askins in an aggressive and threatening manner

throughout this encounter, despite the fact that Mr. Askins at no point posed a threat

to the safety of the officers and at no point resisted arrest. (Id. ¶ 26.) Furthermore,

Mr. Askins committed no crime and took no actions giving rise to probable cause

or a reasonable suspicion that he had committed or was about to commit a crime.

(Id.)

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

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

holding Mr. Askins’s right arm in a tight grip that caused significant pain and

bruising on the inside of Mr. Askins’s arm. (Id. ¶ 27.) The officer told Mr. Askins

to sit down. (Id. ¶ 27.) Mr. Askins was not free to leave the room. (Id.)

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

where he subjected Mr. Askins to an invasive and embarrassing physical search.

(Id. ¶ 28.) During the search, Mr. Askins remained clothed and Officer Doe 1 used

his hands to pat Mr. Askins’s entire body. (Id.) Mr. Askins felt that he was being

groped, and experienced particular discomfort when Officer Doe 1 unnecessarily

squeezed and touched Mr. Askins’s groin area several times. (Id.)


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After detaining Mr. Askins for approximately 25 to 35 minutes, one or more

CBP officers told him that he was free to go and returned his belongings. (Id. ¶ 29.)

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

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

had been deleted. (Id. ¶ 30.)

B. CBP Interfered with Mr. Ramirez’s Speech. Mr. Ramirez is a U.S. citizen living in San Diego, California. (Id. ¶ 33.)

He crosses the U.S.-Mexico border approximately three to four times per month,

often to visit family members living in Mexico. (Id.)

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

(Id. ¶ 34.) Alliance San Diego is a non-profit, non-partisan organization with the

mission of providing a means for diverse individuals to share information,

collaborate on issues, and mobilize for change in the pursuit of social justice,

especially in low-income communities and communities of color. (Id.) The

organization pursues this mission through targeted civic engagement programs and

strategic coalitions that focus on specific issues and policy reforms, including issues

related to immigrant rights at the U.S.-Mexico border. (Id.)

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

observe law enforcement activity and monitor human rights issues. (Id. ¶ 35.) He

does this not only for work but also out of a sense of personal responsibility as a

lifelong member of the border community. (Id.) He has long believed that it is

important to document law enforcement activity at the border in order to address

and hopefully to prevent the abuse of human rights. (Id.)

On or about June 20, 2010, Mr. Ramirez and his wife crossed the border into

Mexico to have lunch with his father. (Id. ¶ 36.) Mr. Ramirez and his wife parked

on the U.S. side of the border and crossed into Mexico. (Id.) Upon their return,

Mr. Ramirez and his wife were admitted into the United States without incident.


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(Id. ¶ 37.) They then crossed a pedestrian bridge that passes over Interstate 5 on the

U.S. side of the border. (Id.)

While crossing this pedestrian bridge, Mr. Ramirez noticed that, at a CBP-

staffed southbound pedestrian checkpoint below him, women were being inspected

and patted down by male CBP officers. (Id. ¶ 38.) Mr. Ramirez’s wife commented

that the officers appeared to be pulling aside only women for inspection. (Id.) Mr.

Ramirez observed the checkpoint for approximately 10 to 15 minutes. (Id. ¶ 39.)

During that time, Mr. Ramirez took approximately 10 pictures using his cell phone

camera, out of concern that the CBP officers might be acting inappropriately. (Id.)

Mr. Ramirez was in the United States when he took these photographs. (Id. ¶ 41.)

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

by two men who appeared to be private security officers. (Id. ¶ 42.) One of the

private security officers asked for Mr. Ramirez’s personal identification documents.

(Id.) Mr. Ramirez explained that he and his wife had already passed through

inspection and declined to hand over his documents again. (Id.) One of the private

security officers then ordered Mr. Ramirez to stop taking photographs. (Id. ¶ 43.)

Mr. Ramirez refused and took a picture of the private security officer. (Id.) Acting

aggressively, the private security officer attempted to grab Mr. Ramirez. (Id.) Mr.

Ramirez stopped taking photographs and said to his wife, “let’s go.” (Id.)

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

followed by the private security officers, whom Mr. Ramirez heard send a radio call

for backup. (Id. ¶ 44.) Approximately five to seven CBP officers were waiting at

the bottom of the bridge. (Id.) They asked whether and why Mr. Ramirez had

taken any photographs. (Id.) Mr. Ramirez responded that he had taken the

photographs because he had witnessed what he believed to be inappropriate activity

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

officers. (Id.) The CBP officers at the bottom of the bridge then asked Mr.


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Ramirez to turn over his phone. (Id. ¶ 45.) Mr. Ramirez refused and explained that

he was willing only to show them the photographs. (Id.)

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

Ramirez’s personal identification documents. (Id. ¶ 46.) The officer later

identified himself as a U.S. Immigration and Customs Enforcement (“ICE”) agent.

(Id.) After Mr. Ramirez refused to turn over his documents and explained that they

had already been inspected, the ICE officer responded, “Give me one other reason

to take you down.” (Id.) The officer then took Mr. Ramirez’s and Mr. Ramirez’s

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

(Id.) As the ICE officer walked away, a CBP officer took Mr. Ramirez’s phone and

scrolled through the photos, making a comment about Mr. Ramirez’s personal

pictures. (Id. ¶ 47.) As with Mr. Askins, the private security and CBP officers

spoke to Mr. Ramirez in an aggressive and threatening manner throughout this

encounter. (Id. ¶ 48.)

Approximately ten to fifteen minutes after the ICE agent had taken the

passports belonging to Mr. Ramirez and Mr. Ramirez’s wife, the agent returned

with the documents and gave them back to Mr. Ramirez. (Id. ¶ 49.) Mr. Ramirez

and his wife were then allowed to continue on their way. (Id.) During the entire

encounter at the bottom of the bridge, Mr. Ramirez and his wife were separated

from each other by CBP officers. (Id. ¶ 50.) The officers essentially created a

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

(Id.) Neither Mr. Ramirez nor his wife felt free to leave at any point during that

time. (Id.)

When Mr. Ramirez later looked through the contents of his phone, he

discovered that the CBP officer who took his phone had deleted all of the photos

that Mr. Ramirez had just taken while crossing the pedestrian bridge. (Id. ¶ 47.)


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C. CBP Interfered with Plaintiffs’ Speech Pursuant to Official Policy and Practice.

As Plaintiffs’ experiences demonstrate, CBP has a clear practice of

prohibiting photographs at or near CBP-controlled facilities. CBP not only deletes

photographs it deems impermissible, but also intimidates and harasses the

photographers for the apparent purpose of discouraging future recordings.

CBP’s subsequent statements to Mr. Askins further demonstrate that CBP

officers acted pursuant to an official policy. After the April 19, 2012 incident, Mr.

Askins sent a letter of complaint to Port Director Billy Whitford. (Complaint, Ex.

C.) In his response, Director Whitford stated: In response to the issues raised in your complaint, the area in question is currently under the jurisdiction of GSA [(General Services Administration)] and CBP. CBP security policies prohibit visitors at CBP-controlled facilities from using cameras and video recording devices without the prior approval from the senior CBP official (Port Director or designee).

(Id.) Finally, documents submitted with Defendants’ Motion to Dismiss

demonstrate that CBP prohibits all photography on port of entry property without

the prior written permission of CBP authorities. (Mot., Ex. B.)

D. Plaintiffs Wish to Continue Taking Photographs at U.S. Ports of Entry, But CBP’s Policy and Practice Deters and Prevents Them from Doing So.

Both Mr. Askins and Mr. Ramirez strongly hope to continue making

photographic and video recordings of CBP buildings and personnel in public view

at the San Ysidro, Calexico, and other U.S. ports of entry in the future. For Mr.

Askins, the photographs and videos allow him to document air pollution and human

rights abuses at the border. (See Complaint ¶ 32.) Similarly, for Mr. Ramirez, the

photographs and videos are a way to document human rights abuses and to monitor

activity in his border community. (Id. ¶ 51.) Indeed, Mr. Ramirez considers


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documenting such border issues to be a fundamental piece of his identity and part

of his life experience. (Id.)

III. LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a complaint should not be

dismissed if “it may be supported by showing any set of facts consistent with the

allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

(2007). Indeed, “Rule 12(b)(6) motions are viewed with disfavor and are properly

granted” only “under extraordinary circumstances.” Yordy v. Astrue, No.1:09-cv-

03028-NJV, 2010 U.S. Dist. LEXIS 14966, *4 (N.D. Cal. Feb. 22, 2010).

A complaint need only allege “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. In considering a motion to

dismiss for failure to state a claim, the Court must accept as true the allegations of

the complaint in question, “construe the pleading in the light most favorable to the

party opposing the motion, and resolve all doubts in the pleader’s favor.” Hebbe v.

Pliler, 627 F.3d 340 (9th Cir. 2010); see also Deepakkumar Himatlal Soneji v.

Dep’t of Homeland Sec., 525 F. Supp. 2d 1151, 1157 (N.D. Cal. 2007). The Court

reads the complaint “as a whole, not parsed piece by piece to determine whether

each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588

F.3d 585, 594 (8th Cir. 2009). Moreover, “Twombly and Iqbal do not require that

the complaint include all facts necessary to carry the plaintiff’s burden.” Al-Kidd v.

Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct.

2074 (2011). “Asking for plausible grounds to infer the existence of a claim for

relief does not impose a probability requirement at the pleading stage; it simply

calls for enough facts to raise a reasonable expectation that discovery will reveal

evidence to prove that claim.” Id. “If there are two alternative explanations, one

advanced by defendant and the other advanced by plaintiff, both of which are

plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101


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(2012).

“[T]he Court is generally confined to consideration of the allegations in the

pleadings[.]” Yordy, 2010 U.S. Dist. LEXIS 14966 at *5. However, while the

Court cannot accept “new” facts alleged in opposition papers, a plaintiff’s briefing

may always be used to clarify allegations in a complaint. Id.

IV. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE FIRST AMENDMENT

Defendants exaggerate the relief Plaintiffs actually seek in order to argue that

Plaintiffs cannot demonstrate entitlement to that relief. Plaintiffs do not seek the

ability to engage in “unrestricted photography on ports of entry….” (Mot. at 17.)

To the contrary, Plaintiffs’ seek to prevent CBP from impeding their attempts to

photograph officers in the public discharge of their duties and matters exposed to

public view such as the exterior of CBP buildings, which could also be

photographed from off port of entry property. This case is not about the right to

enter into port of entry buildings and take photographs of CBP computer screens

and sensitive documents — none of these things are exposed to public view from

outside port of entry buildings and thus they are outside the scope of Plaintiffs’

request for relief. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985)

(court must not “formulate a rule of constitutional law broader than is required by

the precise facts to which it is to be applied”). The Court accordingly should reject

Defendants’ attempts to overstate the scope of Plaintiffs’ claims in order to argue

that Plaintiffs have not alleged a plausible claim to relief.

Stripping away this overbroad characterization, Plaintiffs have stated a claim

for relief under the First Amendment. Photography is protected by the First

Amendment, especially in the context of holding the government accountable.

ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir.), cert. denied, 133 S. Ct. 651

(2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. Cumming, 212

F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th


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Cir. 1995); cf. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th

Cir. 2010) (both process and product of making “realistic or abstract images” are

“pure expression entitled to full First Amendment protection”).

Plaintiffs have sufficiently pled that they were in public fora at the time of

the incidents, and Defendants have not established to the contrary despite

submitting reams of documents for judicial notice. But even if Plaintiffs were

located in nonpublic fora, Plaintiffs have sufficiently pled that CBP’s regulation is

unreasonable and not viewpoint-neutral. Properly construed in the light most

favorable to Plaintiffs, the allegations plausibly state a claim for violations of their

First Amendment rights, and Defendants’ Motion to Dismiss should be denied.

A. Plaintiffs’ Plausibly Allege They Were in Public Fora. The government’s ability to limit protected speech depends on the nature of

the forum in which that speech occurs. Cornelius v. NAACP Legal Defense &

Educ. Fund, 473 U.S. 788, 797, (1985). On one end of the spectrum is the

traditional public forum, in which “speakers can be excluded . . . only when the

exclusion is necessary to serve a compelling state interest and the exclusion is

narrowly drawn to achieve that interest.” Id. at 800. But even if the forum is

nonpublic, the government may restrict access only if “the restrictions are

reasonable and [are] not an effort to suppress expression merely because the public

officials oppose the speaker’s view.” Id. (quoting Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Plaintiffs plausibly allege they were in public fora at the time the CBP

confronted them. Askins alleges he was on the shoulder of a public street. Ramirez

alleges he was on a pedestrian bridge. Both locations are plausibly public fora –

Defendants do not contest the issue with respect to Ramirez, except to misconstrue

Plaintiffs’ allegations. (See Mot. at 8; Complaint at ¶ 36-40.) Defendants have not

even disputed Plaintiffs’ entitlement to relief should the Court find they were in

public fora when taking their photographs. Their Motion to Dismiss should be


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denied on this basis alone.

Defendants’ arguments to the contrary are based on Defendants’ assumption

that any land owned by the government is automatically a nonpublic forum. (See

Mot. at 15.) This assumption is curious given that public parks, streets, and other

traditional public fora are often government-owned. But more importantly, mere

title to property does not control whether it is a public or nonpublic forum. See

Venetian Casino Resort, L.L.C. v. Local Jt. Exec. Bd. of Las Vegas, 257 F.3d 937,

943 (9th Cir. 2001) (discussing cases deciding “whether private property qualifies

as a public forum”). Portions of the area CBP asserts is government property may

nonetheless be a public forum, or a limited public forum, depending on their

characteristics and usage. United States v. Kokinda, 497 U.S. 720, 728–30 (1990)

(“‘location and purpose’ of [the property]” are crucial to determining nature of

forum). The location and purpose of a land port of entry may be to ensure

controlled entry into and exit from the United States, but the same is not necessarily

true of a street outside the exit from the port of entry, or a pedestrian bridge to a

parking lot, traversed after crossing the border.

Defendants attempt to define “land port of entry” broadly to swallow the

specific areas where Plaintiffs were situated when they took photos of matters

exposed to public view. However, construing the allegations in the light most

favorable to Plaintiff, it is possible that different portions of the port area could be

different types of fora.1 And whether he was on a sidewalk or public street when

taking his photographs, Askins was in a “quintessential public forum,” “which ‘by

long tradition or by government fiat has been devoted to assembly and debate.’”

Cornelius, 473 U.S. at 802, citing Perry, 460 U.S. at 45 (parks, streets, and 1 For instance, the street running through the port and the pedestrian bridge above the port, both readily accessible to the public, may be public fora, while the more secure areas may be nonpublic fora. See OSU Student Alliance v. Ray, 699 F.3d 1053, 1062-63 (9th Cir. 2011) (college campus was a public forum, “except any grounds designated for authorized access only”).


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sidewalks). Even if the federal government in fact owns that shoulder, sidewalk, or

Highway 111 itself, Askins had no reason to believe it was not a public forum. See

United States v. Grace, 461 U.S. 171, 179 (1983) (sidewalks surrounding United

States Supreme Court building indistinguishable in both location and purpose from

other public sidewalks, and thus were public fora). In any event, “the decision as to

whether a forum is public usually invokes a factual inquiry” that cannot be decided

on a motion to dismiss. Stewart v. Dist. of Columbia Armory Bd., 863 F.2d 1013,

1018 (D.C. Cir. 1988).

Plaintiffs also have plausibly alleged that they were not actually on CBP

property at the time the incidents occurred. Askins’s sole remaining photograph

does not establish exactly where Askins was standing, though he alleges that he was

50-100 feet from the port of entry and on a public street. Defendants’ attempt to

negate this well-pleaded allegation is legally and factually defective. As a threshold

matter, the Court should reject Defendants’ land transfer documents that purport to

show that Askins was on port of entry property. Those documents contain nothing

more than an incomprehensible map and information concerning a parcel of land

that is indecipherable without advanced electronic mapping software. Such

confusing information on the disputed issue of Askins’ location is paradigmatically

not subject to judicial notice. See Fed. R. Evid. 201(b) (“[a] judicially noticed fact

must be one not subject to reasonable dispute in that it . . . (2) can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned”); Intri-Plex Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th

Cir. 2007) (court may properly consider matters of public record as long as the facts

noticed are not subject to reasonable dispute) (emphasis added). Given that

Askins’s location is in dispute, the Court may not take judicial notice of his location

as Defendants request; rather, as required for the purposes of this Motion, the Court

must construe the facts in favor of Plaintiffs and resolve all doubts in Plaintiffs’

favor. See Hebbe, 627 F.3d at 340.


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Beyond Defendants’ improper attempt to judicially notice Askins’ location,

the email from a CBP official, who was not present when Askins was taking the

photo, does nothing to show that Askins was on CBP property because his

interpretation must be based on Askins’ photo, which indisputably shows he was

some distance from the port of entry. Thus, contrary to Defendants’ argument, the

information properly in the record does not demonstrate that Askins was on CBP

property, and not on a public sidewalk or in some other public space. (See Mot. at

8 n.15.) As such, there is a factual issue as to Askins’ location—a key determining

factor in whether or not CBP’s actions are constitutional. Dismissal is premature

when such factual disputes exist. See, e.g., James River Ins. Co. v. Ace Cab, Inc.,

No/ 2:11-cv-01879-MMD-PAL, 2012 U.S. Dist. LEXIS 156108, at *4-5 (D. Nev.

Oct. 31, 2012) (denying motion to dismiss that “simply presents its own version of

the facts and demonstrates that a factual dispute exists between the parties.

Evidence will determine whose version is correct; however, on a motion to dismiss,

this inquiry is premature.”)

As to Mr. Ramirez, Defendants also have not demonstrated that the

pedestrian bridge on which he was standing when the incident occurred is CBP

property. Ramirez’s allegations in the complaint say nothing about being on CBP

property. (Complaint ¶¶ 37-40.) Accordingly, Defendants’ argument that Ramirez

admits to having been on CBP property when he took the photos is baseless.

Defendants also fail to provide any reason why the bridge should be considered a

nonpublic forum even if it is owned by CBP.2 2 Defendants’ argument (Mot. at 11 n.19) that Plaintiffs lack standing is without merit. “First Amendment challenges, such as Plaintiffs’ here, ‘present unique standing considerations’ such that ‘the inquiry tilts dramatically toward a finding of standing.’” Libertarian Party of Los Angeles v. Bowen, -- F.3d --, 2013 WL 815584, *1 (9th Cir. March 6, 2013) (quoting Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). Plaintiffs have alleged that CBP officers unconstitutionally suppressed their own photography in violation of their First Amendment rights near ports of entry and that CBP officers have a policy and/or practice of regularly suppressing photography at or near ports of entry. Plaintiffs accordingly retain standing to challenge the First Amendment

(Footnote continues on next page.)


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B. CBP’s Regulation Is Not Reasonable and Viewpoint-Neutral and Thus Is Unconstitutional.

Even if Plaintiffs were in nonpublic fora at the time they were detained and

their photographs deleted, the Court need only find that Plaintiffs have alleged

plausible grounds that the regulation is not reasonable or viewpoint-neutral to deny

Defendants’ Motion to Dismiss. Plaintiffs have done so because “[t]he

Government, even when acting in its proprietary capacity, does not enjoy absolute

freedom from First Amendment constraints.” Kokinda, 497 U.S. at 725.

A restriction on speech in a nonpublic forum is valid only if it is “reasonable”

and “not an effort to suppress expression merely because public officials oppose the

speaker’s view.” Perry, 460 U.S. at 46. Moreover, “[t]he reasonableness

requirement for restrictions on speech in a nonpublic forum requires more of a

showing than does the traditional rational basis test.” Sammartano, 303 F.3d at

966-67. Specifically, the requirement

is not the same as establish[ing] that the regulation is rationally related to a legitimate governmental objective, as might be the case for the typical exercise of the government’s police power. There must be evidence in the record to support a determination that the restriction is reasonable. That is, there must be evidence that the restriction reasonably fulfills a legitimate need.

Id. (citations and internal quotation marks omitted). Even in a nonpublic forum, the

court must make an “independent determination of whether the government’s rules

and its application of its rules are reasonably related to the government’s policy

objectives.” United Food & Comm. Workers Union, Local 1099 v. Sw. Ohio Reg’l

Transit Auth., 163 F.3d 341, 357 (6th Cir. 1998).

CBP’s regulation is unreasonable because it underinclusve; it allows

photography of matters exposed to public view from off of CBP property, while

(Footnote continued from previous page.)

violations based on these plausible allegations, regardless of whether CBP officers exceeded formal CBP policy.


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simultaneously asserting that security interests allow it to prohibit the exact same

photographs by those located on CBP property. Moreover, CBP’s regulation

improperly allows the agency to exercise effectively unlimited discretion to prohibit

photography it deems inconsistent with its “mission,” which necessarily excludes

any person attempting to spontaneously record misconduct that could be used to

impugn CBP’s actions, while allowing approved photography that favors CBP.

1. CBP’s Regulation is Unconstitutional Because it is Unreasonable.

CBP’s restriction on all photography conducted without prior permission on

CBP property is unreasonable, and thus unconstitutional. “The reasonableness

analysis focuses on whether the limitation is consistent with preserving the property

for the purpose to which it is dedicated.” Ctr. for Bio-Ethical Reform, Inc. v. City

& County of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006), cert. denied, 132 S. Ct.

1583 (2012) (citations omitted); see also Perry, 460 U.S. at 50-51. The regulation

is unreasonable because it is underinclusive and not properly targeted.

a. The Regulation Is Unreasonably Underinclusive. CBP’s regulation cannot meet its stated goal of ensuring security, and thus is

unreasonable, because it is underinclusive and thus unconstitutional as applied to

photographing matters exposed to public view that could also be photographed

from off port of entry property. CBP’s restriction focuses on the location of the

photographer, rather than what he or she is attempting to photograph. Thus, the

restriction would not prevent individuals from taking the same or similar

photographs while standing off of port of entry property. It is simply irrational for

CBP to prohibit photography of matters exposed to public view, when those matters

can also be photographed from off port of entry property.3

3 Even the CBP website the government cites arguably reveals more about the technology used at ports of entry than the photographs of areas open to the public CBP unconstitutionally regulates. Available at

(Footnote continues on next page.)


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In other First Amendment cases, the courts recognize that rules restricting

speech are unconstitutional because they are unreasonably underinclusive. For

example, in the commercial speech context, which involves a reasonableness

standard similar to that for nonpublic fora, the government must “establish a

‘reasonable fit’ between its legitimate interests” and “the means chosen to serve

those interests.” Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993).

Under this standard, a restriction on speech may be unconstitutionally

underinclusive when it “ha[s] exceptions that undermine and counteract the interest

the government claims it adopted the law to further,” because “such a regulation

cannot directly and materially advance its aim.” Vanguard Outdoor, LLC v. Los

Angeles, 648 F.3d 737, 742 (9th Cir. 2011) (citations and internal quotation marks

omitted). In other words, “if the exception ensures that the regulation will fail to

achieve its end, it does not materially advance its aim,” and is therefore

unreasonable. Id.

That is the case here. As applied to matters exposed to public view, CBP’s

asserted policy does not materially advance the purported aim in protecting security

and privacy, because those matters can also be photographed from off port of entry

property, which CBP’s policy does not (and likely cannot) prohibit. On the facts

alleged, it is plausible that Plaintiffs were only taking photographs of areas

viewable to the public. Therefore, taking the facts in the light most favorable to

Plaintiffs, CBP’s policy violates the First Amendment because it is unreasonably

underinclusive. Cf. Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (though

government had “valid goal,” the “irrationality of this unique and puzzling

regulatory framework ensures” that regulation of commercial speech “will fail to

(Footnote continued from previous page.)

http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/port_security/fact_sheet_cbp_securing.xml.


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achieve that end,” because “other provisions of the same Act directly undermine

and counteract its effects”); Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions

from an otherwise legitimate regulation of a medium of speech . . . may diminish

the credibility of the . . . rationale for restricting speech in the first place.”).

b. CBP’s Regulation Does Not Target Disruption. CBP’s restriction prohibits all photography, not just photography by persons

who are disruptive or who impede CBP officers in the performance of their duties.

As the Supreme Court explained in Cornelius, an appropriate restriction only

allows “exclusion of speakers who would disrupt the nonpublic forum and hinder

its effectiveness for its intended purpose.” Cornelius, 473 U.S. at 797. The instant

case is distinguishable from Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505

U.S. 672, 683-85 (1992), and Center for Bio-Ethical Reform, 455 F.3d at 922 (cited

in Mot. at 12-15, 19), because in both cases the defendants alleged, and the court

agreed, that the plaintiffs were disruptive and therefore hindered the effectiveness

of the nonpublic fora for their intended purposes.

Defendants find no comfort in Mocek v. Albuquerque, et al., No. 11-cv-1009,

2013 WL 312881, at *1 (D.N.M. Jan. 14, 2013). That case was about

photographing TSA checkpoint procedures inside an airport building, which by

definition are not exposed to public view from outside the airport. Here, by

contrast, Plaintiffs assert the right to photograph matters exposed to public view

outside port of entry buildings that could also be photographed from off port of

entry property. Regardless of whether Mocek was correctly decided, it has no

bearing on this case, which arises on fundamentally different facts. In addition, in

Mocek, the plaintiff’s photography activities disrupted the flow of patrons through

the TSA checkpoint and could have allowed others to evade TSA’s screening

protocol. Id. at *32, 53-54. Here, Defendants do not even allege that Askins or

Ramirez were disruptive or were recording matters that could have allowed others

to evade CBP enforcement.


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Moreover, Defendants’ analogy to airport terminals (Mot. at 15) is not apt,

because even at TSA checkpoints, photography is permitted with procedures in

place to allow agents to assess a photographer’s purpose and whether he or she

poses a threat. There is no outright ban as here. Mocek, at *28 (noting that TSA

website says, “there was no general prohibition against taking photographs ‘as long

as you’re not interfering with the screening process or slowing things down.’”).

2. CBP’s Regulation Unconstitutionally Permits Viewpoint Discrimination.

Assuming the relevant areas are nonpublic fora, CBP’s policy remains

unconstitutional for the additional reason that it improperly allows viewpoint

discrimination. Even in a nonpublic forum, viewpoint “neutrality requires not just

that a government refrain from explicit viewpoint discrimination, but also that it

provide adequate safeguards to protect against the improper exclusion of

viewpoints.” Child Evangelism Fellowship of Md., Inc. v. Montgomery Co. Pub.

Sch., 457 F.3d 376, 384 (4th Cir. 2006). When a policy for access to a nonpublic

forum allows unbridled discretion and thus “offers no protection against the

discriminatory exercise of . . . discretion, it creates too great a risk of viewpoint

discrimination to survive constitutional scrutiny.” Id. at 389; see also Kaahumanu

v. Hawaii, 682 F.3d 789, 806 (9th Cir. 2012) (viewpoint neutrality requirement

includes prohibition on a licensing authority’s “unbridled discretion” in “nonpublic

forums”).

That is the case here. Although CBP purports to permit photography

“without favoritism,” it reserves the right to prohibit photography that

“compromise[es] the DHS/CBP mission.” (Mot. at Ex. A, CBP Directive at ¶ 3.1.)

That exception improperly threatens to swallow the rule by allowing CBP the

unlimited discretion to prohibit any photography it deems inconsistent with its

“mission.” To assert the right to prohibit speech based on an agency’s

understanding of its “mission” would give the agency “a license to suppress speech


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on political and social issues based on disagreement with the viewpoint expressed,”

which “strikes at the very heart of the First Amendment.” Morse v. Frederick, 551

U.S. 393, 423 (2007) (Alito, J., concurring); cf. Miller v. City of Cincinnati, 622

F.3d 524, 540 (6th Cir. 2010) (directive allowing city officials to limit access to city

hall based on “the rights and responsibilities specified in the Charter of the City of

Cincinnati . . . offers no meaningful guidance” and therefore is unconstitutional).

Even if CBP has not in fact exploited its limitless discretion to ban photography it

deems inconsistent with its “mission,” such “discretionary power is inconsistent

with the First Amendment,” because “the potential for the exercise of such power

exists.” Kaahumanu, 682 F.3d at 807.

The danger of viewpoint discrimination is highlighted by the fact that by

definition, CBP’s policy prohibits any spontaneous “unauthorized” photography of

abuses committed by CBP agents, while allowing “authorized” photography of

matters deemed acceptable by CBP. As demonstrated by the experience of Mr.

Ramirez, it would be impossible to seek out and receive prior permission to

photograph or videotape misconduct by officers exposed to public view. Yet CBP

reserves the right to allow “authorized” photography that is consistent with its

“mission” and presumably depicts the agency in a favorable light. This kind of

viewpoint discrimination, actual or latent, cannot survive First Amendment

scrutiny, even in a nonpublic forum, especially given the fundamental First

Amendment interest in holding government accountable for its conduct.4 See, e.g.,

Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (finding “no 4 The idea advanced by Defendants that CBP has carte blanche at the border in light of its mission is baseless. As the Ninth Circuit sitting en banc recently reiterated, CBP’s important function “does not mean, however, that at the border ‘anything goes.’” United States v. Cotterman, – F.3d –, 2013 WL 856292, *5 (9th Cir. March 8, 2013) (quoting United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008)). Defendants fail to mention that the same authority on which they rely to establish CBP’s border security mission also includes within the agency’s “primary mission” “ensur[ing] that the civil rights and civil liberties of persons are not diminished by efforts, activities, and programs aimed at securing the homeland.” 6 U.S.C. § 111(b)(1)(G).


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doubt that the free speech clause of the Constitution protected” plaintiff who

videotaped officers, because “[v]ideotaping is a legitimate means of gathering

information for public dissemination and can often provide cogent evidence”).

V. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE FOURTH AMENDMENT

Plaintiffs have alleged more than sufficient facts to give rise to a plausible

entitlement to relief under the Fourth Amendment. Specifically, Plaintiffs allege

that CBP officers detained and searched them without probable cause, searched and

seized their cameras, and destroyed their personal property. Defendants concede

that the only possible behavior that could have led to Plaintiffs’ detention was their

taking photographs; defendants do not allege Plaintiffs were acting suspiciously or

in a disruptive manner that might justify warrantless detention and search.

Thus, Defendants’ arguments rest on its assertions that the CBP officers had

probable cause to believe Askins and Ramirez were committing a crime. And the

only purported “crime” they identify is violation of CBP’s policy against

unauthorized photography and a regulation relating to photography on federal

property. As an initial matter, Defendants ignore the fact that a potential violation

of CBP’s prohibition on all unauthorized photography from port of entry property

cannot give rise to probable cause if that prohibition is unconstitutional as applied

to Plaintiffs. See, e.g., Leonard v. Robinson, 477 F.3d 347, 359 (6th Cir. 2007)

(statute that is unconstitutional “to the extent it is applied to Leonard’s speech,

cannot here support probable cause”). Moreover, as discussed below, Defendants

have not established that violation of this internal CBP policy constitutes a crime

for the purpose of demonstrating probable cause. Although CBP believes it should

be given greater deference due to security interests (Mot. at 22), CBP fails to make

any cognizable argument as to how this affects Plaintiff’s ability to state a plausible

claim for relief. In any event, neither Plaintiff was in the act of crossing the border

at the time the incidents occurred, rendering Defendants’ argument moot.


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Defendants’ motion should be denied.

A. A Violation of CBP’s Unconstitutional Prohibition on All Photography Cannot Provide CBP Officers With Probable Cause.

Defendants do not allege that Plaintiffs were disruptive or that they interfered

with CBP officers in the course of their duties. Thus, in order to cloak its agents

with probable cause for their actions in detaining Plaintiffs, CBP’s argument

depends on whether taking photographs on CBP property is a “violat[ion of] federal

law.” (Mot. at 20.) As demonstrated above, Plaintiffs have alleged sufficient facts

to demonstrate a plausible entitlement to relief from CBP’s unconstitutional policy.

A possible violation of an unconstitutional policy, whether or not it carries a

criminal penalty, cannot provide probable cause.

Moreover, while Defendants themselves are unclear about whether CBP was

investigating Plaintiff for a violation of its own internal policy or the regulation

prohibiting photography on federal property, 41 C.F.R. § 102-74.420, no statute

provides authority for the imposition of criminal liability for a violation of § 102-

74.420. Citing a venerable line of authority, the Ninth Circuit has ruled that “a

criminal conviction for violating a regulation is permissible only if a statute

explicitly provides that violation of that regulation is a crime.” United States v.

Alghazouli, 517 F.3d 1179, 1184 (9th Cir. 2006) (emphasis added) (citing United

States v. Eaton, 144 U.S. 677 (1892) and United States v. Grimaud, 220 U.S. 506

(1911)); see also Van Gesner v. United States, 153 F. 46, 53 (9th Cir. 1907) (citing

Eaton for the principle that “no rule or regulation made by the Land Department is

a law in the sense that it can make that a crime which is not made a crime by any

statute of the United States”). CBP cites to 41 C.F.R. § 102-74.450 as providing

criminal penalties for violation of § 102-74.420, but the statute that authorizes §

102-74.450 does not specifically authorize criminal penalties:

(c) Regulations by Administrator.—


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(1) General authority.--The Administrator may prescribe regulations to carry out this subtitle. (2) Required regulations and orders.--The Administrator shall prescribe regulations that the 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). Accordingly, there is no statutory authorization for the

imposition of criminal penalties under § 102-74.420. Neither of the cases that

Defendants cite help them here. See United States v. Brice, 926 F.2d 925, 930-31

(9th Cir. 1991); United States v. Stansell, 847 F.2d 609, 612-16 (9th Cir. 1988)

(Mot. at 20-21). Those cases upheld criminal liability for violations of predecessor

regulations to 41 C.F.R. § 102-74.420. Brice, 926 F.2d at 931; Stansell, 847 F.2d at

616. But neither of those cases addressed whether the regulations at issue carried

the force of criminal law. In fact, those predecessor regulations (neither of which

deals with photography) were authorized by statutes that expressly provided for

criminal sanctions, whereas here the authorizing statute contains no such allowance

for criminal sanctions. See Brice, 926 F.2d at 926, 927 n.1 (impeding and

disrupting a government employee); Stansell, 847 F.2d at 614 n.6 (complying with

signs). Accordingly, even if CBP’s policy were constitutional, it is likely that the

“penalties” regulation, 41 C.F.R. § 102-74.450, could not lawfully criminalize the

conduct in which Plaintiffs engaged because it is not authorized by any statute

allowing for imposition of criminal liability.

But even if a statute did provide authorization for criminal liability for a

violation of § 102-74.420, that section expressly allows photography of “[b]uilding

entrances, lobbies, foyers, corridors, or auditoriums.” 41 C.F.R. § 102-74.420(c).

DHS has already interpreted that regulation in a manner showing the Plaintiffs did


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not violate the regulation. A bulletin issued by the Federal Protection Services,5 the

DHS agency charged with protection of federal property states, in part:

• “[T]his regulation [§ 102-74.420] does not prohibit photography by

individuals of the exterior of federally owned or leased facilities from

publicly accessible spaces such as streets, sidewalks, parks and plazas.”

• “[T]his regulation [§ 102-74.420] only prescribes photography of the

interior of federally [sic] buildings, i.e., ‘space occupied by a tenant

agency’ or ‘building entrances, lobbies, foyers, corridors, or

auditoriums.’”

(See Woodmansee Declaration in Support of Plaintiffs’ Motion for Preliminary

Injunction, Ex. B (FPS Bulletin) at 2.). Askins did nothing more than photograph

the exterior of a federal building, and neither Plaintiff sought to photograph the

interior of a federal building. Accordingly, under DHS’s interpretation, Plaintiffs

did not violate the regulation. It thus is surprising that Defendants now argue that

Plaintiffs were engaged in criminal behavior based on that same regulation.

What’s more, CBP’s theory of criminal liability is based in whole or in part

on its own internal rules and procedures, which go far beyond the text of the

regulation. CBP alleges that Plaintiffs violated a policy contained within a 2009

CBP bulletin that the agency has not shown to be available to the public. CBP

cannot bootstrap its own internal rules and procedures into instruments that carry

the sanction of criminal punishment if violated. See United States v. Crop Growers

Corp., 954 F.Supp. 335, 349 (D.D.C. 1997) (“[T]o the extent that any duty to

disclose is predicated on professional standards not codified in any statute or 5 FPS is the agency within DHS “charged with protecting thousands of Federal facilities and safeguarding millions of Federal employees, contractors, and civilian visitors.” DHS, “Federal Building Security,” available at http://www.dhs.gov/topic/federal-building-security. The Court may properly take judicial notice of this document as a public record falling under Fed. R. Evid. 201. Seifert v. Winter, 555 F. Supp. 2d 3, 11 n.5 (D.D.C. 2008) (taking judicial notice of government agency directive published on its website).


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regulation, there can be no criminal liability.”) (emphasis added); United States v.

Lamson, 162 F. 165, 168 (D.R.I. 1908) (“To make criminal liability depend, not

upon the terms of an act of Congress, nor upon the terms of the regulation adopted

by the Commissioner of Internal Revenue with the approval of the Secretary of the

Treasury, but upon the terms of a form referred to in this regulation, would go far

beyond any decision which has been brought to my attention.”); see also In re

Verifone Sec. Litig., 11 F.3d 865, 871 (9th Cir. 1993) (“declin[ing] to hold that a

violation of exchange rules governing disclosure may be imported as a surrogate

for” determining whether there was a statutory or regulatory violation).

Defendants’ reliance on CBP’s internal policies to establish the unlawfulness

of Plaintiffs’ conduct thus is misplaced. Regardless, as discussed above, there is a

factual issue as to whether Plaintiffs were located on CBP property at the time they

were detained and searched. If Plaintiffs were not on CBP property, Defendants’

entire justification for the search, seizure and deletion of Askins’ property—that

they were just following rules—unravels. Viewing the allegations in the light most

favorable to Plaintiffs, the government has not demonstrated it had probable cause

to stop, detain, and search Plaintiffs for taking a few photographs of areas exposed

to public view.

B. Plaintiffs Have Sufficiently Alleged a Pattern of Officially Sanctioned Behavior in Violation of the Fourth Amendment.

Plaintiffs need not show “a pattern of officially sanctioned behavior” in

violation of the Fourth Amendment, as Plaintiffs have plausibly alleged that CBP’s

policy itself is unconstitutional. CBP’s assertion that it may arrest Plaintiffs for

engaging in photography that violates its policy is also strong evidence showing

that Plaintiffs have standing. As discussed above in Section V(A), supra, CBP

cannot lawfully criminalize conduct through its own internal policies or a regulation

that carries no statutory authorization for criminal penalization. In short, CBP’s

very defense of this action is an assertion of its right to violate Plaintiffs’ Fourth


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Amendment rights if they again seek to take photographs. Moreover, Even if

CBPs policy passed constitutional muster—which it does not—Plaintiffs would

nonetheless have standing to seek prospective relief to prevent further violations of

their Fourth Amendment rights. Plaintiffs’ allegations concerning the experiences

of Askins and Christian Ramirez demonstrate that officers “have repeatedly

engaged in the injurious acts” of detaining photographers, seizing their equipment,

and deleting their photographs, whether on or off CBP property. L.H. v.

Schwarzenegger, No. 06-2042, 2007 WL 662463, at *6 (E.D. Cal. Feb. 28, 2007)

(denying motion to dismiss for lack of standing; plaintiffs had sufficiently alleged

threat of future harm based on the fact that “defendants have repeatedly engaged in

the injurious acts in the past”); see also Multi-Ethnic Immigrant Workers Org.

Network v. City of Los Angeles, 246 F.R.D. 621, 627 (C.D. Cal. 2007) (finding

standing sufficiently alleged and granting motion for class certification based on

plaintiffs’ allegations LAPD “engaged in the injurious acts in the past”). Plaintiffs

are unable to avoid future injury because in practice, CBP policy and actions

effectively prohibit all photography of matters in public view from both on and off

CBP property. And although CBP policy authorizes only the detention of recording

equipment, Plaintiffs’ allegations demonstrate that CBP officers routinely enforce

the policy through the deletion of photographs. Thus, Plaintiffs have alleged that

their injuries stem from an unconstitutional written policy, that in the alternative

CBP has a pattern or practice of violating the Fourth Amendment, and that

Plaintiffs are unable to avoid future injury. See Melendres v. Arpaio, 695 F.3d

990, 997-98 (9th Cir. 2012). These allegations are more than sufficient to state a

claim for relief under the Fourth Amendment.

C. Plaintiffs Assert Independent Fourth Amendment Claims Based on Unconstitutional Search and Seizure of Their Cameras.

In addition to the allegations that Defendants violated Plaintiffs’ Fourth

Amendment right against detention, Plaintiffs allege that Defendants violated their


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Fourth Amendment rights by searching and seizing Plaintiffs’ cell phone and

camera and deleting data from the devices. Defendants do not assert any arguments

in their Motion to Dismiss addressing the latter violations.

The Fourth Amendment prohibits warrantless searches without exigent

circumstances supported by probable cause or consent. United States v. Karo, 468

U.S. 705, 717 (1984); United States v. Cervantes, 678 F.3d 798, 802 (9th Cir.

2012). When First Amendment-protected activity is subjected to warrantless

seizure that “br[ings] to an abrupt halt an orderly and presumptively legitimate

distribution or exhibition” of that activity, the Fourth Amendment is violated.

Roaden v. Kentucky, 413 U.S. 496, 503 (1973). Where the First Amendment is

concerned, the Fourth Amendment must “be applied with ‘scrupulous exactitude.’”

Maryland v. Macon, 472 U.S. 463, 468 (1985).

The government recognized this principle recently in its Statement of Interest

in Sharp v. Baltimore City Police Dep’t, Case No. 1:11-cv-02888-BEL (D. Md.).

(Woodmansee Declaration in Support of Plaintiffs’ Motion for Preliminary

Injunction, Ex. C.) In Sharp, police officers seized and searched the plaintiff’s

phone, then deleted all the videos it contained, including several of the officers

forcibly making an arrest. Id. at 2. The Department of Justice wrote in support of

the plaintiff, arguing that the plaintiff had a property interest in his cell phone that

was violated without a warrant, and that no exception for warrantless searches

applied. Id. at 12-13.

Here, Plaintiffs have sufficiently alleged that the exercise of their First

Amendment rights led to violations of their Fourth Amendment rights. Even

without a violation of the First Amendment, Plaintiffs both had their property

seized, and in the case of their photographs, destroyed. Plaintiffs had a possessory

interest in their cell phone and camera and a recognized expectation of privacy in

the photographs saved on their devices. See United States v. Finley, 477 F.3d 250,

259-60 (5th Cir. 2007) (recognizing a person’s possessory interest in their cell


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phone and privacy interest in the data contained therein); United States v. Young,

278 F. App’x 242, 245-46 (4th Cir. 2008) (per curiam) (recognizing defendant’s

“[p]rivacy rights in the phone” from which officer retrieved text messages).

Defendants do not even attempt to assert that an exception to the warrant

requirement applied. Even if they did, no exception applies. Plaintiffs did not give

their consent, they were not arrested, and nothing in the Complaint suggests exigent

circumstances existed. As a result, Plaintiffs’ Fourth Amendment claims should

withstand Defendants’ Motion to Dismiss.

VI. IN THE ALTERNATIVE, PLAINTIFFS ARE ENTITLED TO LEAVE TO AMEND

Even if the Court grants Defendants’ motion, Plaintiffs are entitled to leave

to amend unless it is clear the problem cannot be cured by pleading additional facts.

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Dumas v. Kipp, 90 F.3d 386,

393 (9th Cir. 1996) (amendment should be granted unless it would be “futile”); Doe

v. United States, 58 F.3d 494, 497 (9th Cir. 1995). Defendants do not even contest

Plaintiffs’ entitlement to leave to amend in their motion to dismiss. Moreover, in

the event Defendants’ motion is granted, permitting Plaintiffs to amend their

Complaint would not be futile, as Plaintiffs are easily capable of amending their

Complaint to remedy any deficiencies identified by the Court. Defendants cannot

make a showing of futility necessary to defeat Plaintiffs’ request for leave to

amend.

VII. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court deny

Defendants’ Motion to Dismiss in its entirety, or in the alternative grant leave to

amend.


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Dated: March 13, 2013

MORRISON & FOERSTER LLP

By: s/ M. Andrew Woodmansee M. ANDREW WOODMANSEE [email protected]

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I certify that on March 13, 2013, I caused a copy of the foregoing to be filed

electronically and that the document is available for viewing and downloading from

the ECF system. Participants in the case who are registered CM/ECF users will be

served by the CM/ECF system.

By: /s M. Andrew Woodmansee M. ANDREW WOODMANSEE [email protected]


darren chaker-first amendment

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