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 counsel, 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 phones 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. 2013 WL 1561546.

On September 30, 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. 2013 WL 5462296.

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. 2014 WL 1600410.

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. 2015 WL 12434362.

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. 2016 WL 4597529.

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.

On August 14, 2018 the Ninth Circuit vacated the District Court's holding on the First Amendment claim and remanded for further proceedings. The court found the First Amendment claim to not be precluded from reconsideration based on the earlier dismissal of the Fourth Amendment claim. Moreover, the court held that the government’s action was content-based restriction of speech in a public forum and required a more substantial showing that banning photography achieved the compelling interest of promoting border security. 899 F.3d 1035.

Discovery continued throughout much of 2017 and 2018. Plaintiffs filed an amended complaint on June 10, 2019 that focused on their First Amendment claims.

The case was transferred to Magistrate Judge Allison Goddard on September 16, 2019; she oversaw discovery and settlement negotiations. As of May 2020, the parties had not reached a settlement agreement, and negotiation is ongoing.

Emma Bao - 05/28/2013
Taylor Brook - 02/09/2018
Dan Toubman - 05/29/2020


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