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Case Name Askins v. U.S. Department of Homeland Security FA-CA-0007
Docket / Court 3:12-cv-02600-W-BLM ( S.D. Cal. )
State/Territory California
Case Type(s) Policing
Speech and Religious Freedom
Attorney Organization ACLU Chapters (any)
ACLU of Southern California
Case Summary
On October 24, 2012, two U.S. citizens detained by U.S. Customs and Border Protection (CBP) after taking pictures of ports of entry filed a lawsuit in the U.S. District Court for the Southern District of California, under 5 U.S.C. § 702, 28 U.S.C. § 2201 and Bivens, against CBP, an agency within ... read more >
On October 24, 2012, two U.S. citizens detained by U.S. Customs and Border Protection (CBP) after taking pictures of ports of entry filed a lawsuit in the U.S. District Court for the Southern District of California, under 5 U.S.C. § 702, 28 U.S.C. § 2201 and Bivens, against CBP, an agency within the Department of Homeland Security. The plaintiffs, represented by attorneys from the ACLU of San Diego and private counsels, sought injunctive, declaratory, and monetary relief, alleging that CBP's policy and practice of prohibiting the use of camera and video recording devices at or near CBP-controlled facilities without CBP's prior approval was unconstitutional, in violation of the plaintiffs' First and Fourth Amendment rights.

The complaint explained that, as the Human Rights Director of Alliance San Diego, the plaintiff ran a blog and took pictures of the port of entry, CBP officers, and attempted to detail suspicious activity of law enforcement officers. The complaint detailed two separate interactions one of the plaintiffs had with CBP officers. On both occasions, the officers confiscated his camera/phone and deleted the pictures the plaintiff had taken of the entry port and male officers patting down females. On the first occasion, the plaintiff was also detained, and he claimed an officer used excessive force to take his camera away and arrest him. On both occasions, CBP officers explained it was their policy to not permit pictures to be taken. On this basis, the plaintiff claimed his First Amendment right to take pictures and use them in his blog was violated. Additionally, the plaintiffs claimed that undergoing an unreasonable search and seizure of their persons and their phone violated their Fourth Amendment rights.

On January 29, 2013, the plaintiffs filed for a preliminary injunction.

On February 19, 2013, the defendants filed a motion to dismiss for failure to state a claim.

On April 12, 2013, the District Court (Judge Thomas J. Whelan) denied the plaintiffs' motion for a preliminary injunction because the plaintiffs failed to show citizens had a First Amendment right to photograph the interior of secondary inspection areas for US ports of Entry, that they suffered irreparable harm, or that the First Amendment concerns outweighed the public interest of border security. Askins v. U.S. Dep't of Homeland Sec., 2013 WL 1561546 (S.D. Cal. Apr. 12, 2013).

On September 23, 2013, the court granted the defendant's motion to dismiss in part and denied the motion in part. The court dismissed without prejudice the claim that the defendant’s policy against picture taking violated the plaintiffs' First Amendment rights. The court also dismissed with prejudice the plaintiffs' claim that their Fourth Amendment rights were violated because the CBP photography policy was unconstitutional because the policy did not say the officers must delete the pictures. However, the claim that the practice of deleting the pictures and temporarily detaining the plaintiffs was not dismissed and neither was the claim for excessive use of force.

On November 27, 2013, the defendants filed a motion for reconsideration of the partial dismissal of their motion to dismiss the case. On April 17, 2014 the court found that permitting leave to amend the plaintiffs' First Amendment claim was proper. However, the court ordered further briefing by the plaintiffs and the defendants because the lack of probable cause claim required reconsideration.

On April 24, 2014, the plaintiffs, and on May 1, 2014, the defendants, filed supplementary briefing.

On January 29, 2015, the court granted the defendant’s motion for reconsideration because taking pictures of the port of entry was considered a crime and therefore the CBP officers had probable cause to assume the plaintiffs had committed a crime. Under this logic, the court found a warrantless search was permissible. However, the remaining Fourth Amendment claim of excessive force remained.

On November 6, 2015, the plaintiffs filed an amended complaint. The new complaint removed the plaintiffs' Fourth Amendment claims and emphasized the First Amendment claims surrounding the CBP photography restriction and the importance of the removal of this policy.

On December 18, 2015 and January 8, 2016, the defendant’s filed a motion to dismiss the complaint again for failure to state a claim. On March 23, 2016 the court found the First Amendment claim was substantively the same and therefore the complaint was dismissed with prejudice.

On May 17, 2016 the plaintiffs filed an appeal to the Ninth Circuit.

On September 28, 2016, the plaintiffs submitted a brief for review explaining why their complaint should not be barred by case law and their amended complaint to reiterate the factual and legal underpinnings. These alternations were ignored by the district court.

On October 5, 2016, the CATO institute, the Reporters Committee for Freedom of the Press, and seven media organization filed amicus briefs. The CATO brief argued that the First Amendment protected taking pictures of officers and the CBP’s policy failed the strict scrutiny test because the restriction of photography in this way did not leave alternative options. The Reporters Committee argued that photography and visual recording were essential elements of the media’s reporting of numerous matters of public concern, including those arising at the border. They also claimed there were strong policy reasons to allow photographing public officials including CBP officials and national security concerns did not provide the compelling interest to justify the CBP media restrictions.

Starting December 2, 2016 the parties submitted various briefs and supplemental documents for review until October 10, 2017. On October 10, 2017, oral argument was scheduled for February 16, 2018.

This case is ongoing.

Emma Bao - 05/28/2013
Taylor Brook - 02/09/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Preliminary relief denied
Defendant-type
Law-enforcement
General
Excessive force
False arrest
Phone
Search policies
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Bivens
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) U.S. Department of Homeland Security
Plaintiff Description Two U.S. citizens detained by CBP officers after taking pictures of ports of entry.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU of Southern California
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2012
Case Ongoing Yes
Docket(s)
3:12-cv-2600 (S.D. Cal.)
FA-CA-0007-9000.pdf | Detail
Date: 02/13/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint For Declaratory And Injunctive Relief and Damages [ECF# 1-4]
FA-CA-0007-0001.pdf | Detail
Date: 10/24/2012
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion for Preliminary Injunction [ECF# 34] (2013 WL 1561546) (S.D. Cal.)
FA-CA-0007-0002.pdf | WESTLAW | Detail
Date: 04/12/2013
Source: PACER [Public Access to Court Electronic Records]
Judges Major, Barbara L. (S.D. Cal.) [Magistrate]
FA-CA-0007-9000
Whelan, Thomas J. (S.D. Cal.)
FA-CA-0007-0002 | FA-CA-0007-9000
Plaintiff's Lawyers David, Jeffrey M. (California)
FA-CA-0007-0001 | FA-CA-0007-9000
Ebadolahi, Mitra (California)
FA-CA-0007-9000
Gosling, Kimberly Rhea (California)
FA-CA-0007-9000
Loy, John David (California)
FA-CA-0007-0001 | FA-CA-0007-9000
Markovitz, Jonathan Paul (California)
FA-CA-0007-9000
Prendergast, Mary (California)
FA-CA-0007-0001 | FA-CA-0007-9000
Riordan, Sean (California)
FA-CA-0007-0001 | FA-CA-0007-9000
Woodmansee, M. Andrew (California)
FA-CA-0007-0001 | FA-CA-0007-9000
Defendant's Lawyers Buckingham, Stephen J. (District of Columbia)
FA-CA-0007-9000
Nemeroff, Patrick George (District of Columbia)
FA-CA-0007-9000
Swinton, Nathan Michael (District of Columbia)
FA-CA-0007-9000

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