On November 20, 2014, two residents of Arivaca, Arizona and volunteer members of a community organization called People Helping People (PHP) filed this lawsuit in the U.S. District Court for the District of Arizona against the U.S. Border Patrol and the U.S. Department of Homeland Security (DHS). The plaintiffs alleged that DHS interfered with their “checkpoint monitoring campaign” at a Border Patrol checkpoint approximately 35 miles north of the U.S.-Mexico border in southern Arizona. The plaintiffs, represented by private counsel and the ACLU, sought declaratory and injunctive relief for alleged violations of their First Amendment rights.
The complaint stated that Border Patrol operated an interior checkpoint on Arivaca Road in Amado, Arizona. The plaintiffs and other members of PHP commenced a campaign near the checkpoint to protest it by observing, photographing, and videotaping Border Patrol agents’ actions at the checkpoint. The plaintiffs contended that the campaign was a reflection of the “local residents’ growing concern about Border Patrol activities in their community, including harassment and civil rights violations by federal agents at the checkpoint.” The complaint stated that in response to the campaign, Border Patrol agents barred the plaintiffs from the public area near the checkpoint, required them to conduct their campaign “at an unreasonably great distance from the checkpoint,” and threatened to arrest them.
By consent of the parties, the case was assigned to Magistrate Judge Macdonald on February 12, 2015.
The plaintiffs moved for a preliminary injunction on January 6, 2015, which the court denied eight months later on September 14. The court held that the government's policy was “a valid time, place, and manner restriction on speech,” and the plaintiffs therefore could not meet their burden of showing a likelihood of success on the merits. The court found that the government’s primary interest was “in protecting the safety and security of Border Patrol agents, canines, and the public,” and held that it was important not to jeopardize the purpose of checkpoint stops to conduct criminal investigations “so critical to the fair administration of justice.”
On November 2, 2015, DHS moved to dismiss the case, or in the alternative, for summary judgment. On September 30, the court denied the motion to dismiss after finding that the plaintiffs had stated a First Amendment claim upon which relief could be granted. However, the court then granted summary judgment in favor of DHS, finding that the plaintiffs had not demonstrated any dispute as to the government’s assertion that the checkpoint was, in fact, a non-public forum.
The plaintiffs appealed to the Ninth Circuit on November 29, 2016. Oral argument was held the following winter on December 5, 2017. On February 13, 2018, the Ninth Circuit vacated the district court’s judgment and remanded for further consideration, finding that the record before the district court did not warrant its conclusion, as a matter of law, that the enforcement zone was a non-public forum or that the government had satisfied the requirements for excluding the plaintiffs from the area. The Ninth Circuit instructed that on remand, the parties should conduct discovery to allow the district court to make such determinations.
On remand in the district court, the parties filed a series of several status reports indicating that while the parties had not discussed settlement since a July 24, 2018 conference, they remained willing to consider potential settlement options.
On July 15, 2020, the plaintiffs sought sanctions against DHS. The motion was based on “(1) Defendants’ destruction of key documents and (2) Defendants’ submission to the Court of a declaration, on which the Court relied on multiple occasions, which lacked foundation for critical statements.” This motion is pending before the court.
Virginia Weeks - 01/22/2018
Virginia Weeks - 02/13/2018
Sam Kulhanek - 04/14/2019
Bogyung Lim - 08/07/2020
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