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 United States District Court for the District of Arizona against the Office of Border Patrol. The plaintiffs alleged that Border Patrol had interfered with the plaintiffs' campaign at a border patrol checkpoint in Arizona. The plaintiffs, represented by private counsel and the ACLU, sought declaratory and injunctive relief for alleged violations of the plaintiffs' 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 and instead required them to conduct their campaign "unreasonably" far away from the checkpoint, and threatened to arrest the plaintiffs.

At the consent of the parties, the case was assigned to Magistrate Judge Macdonald on Feb. 12, 2015.

The plaintiffs moved for preliminary injunction on Jan. 6, 2015, which the court denied on Sept. 14, 2015. The court held that the government's "policy is a valid time, place, and manner restriction on speech," and so the plaintiffs could not meet their burden of showing a likelihood of success on the merits. The court found that the government's "primary interest is 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." 2015 U.S. Dist. LEXIS 122777.

On Nov. 2, 2015, the government moved to dismiss the case, or in the alternative, for summary judgment, which the court granted on Sept. 30, 2016. The court denied the motion to dismiss after it found that the plaintiffs had sufficiently stated a claim upon which relief could be granted as to the alleged First Amendment violation. But the court granted summary judgment after finding that the plaintiffs had not demonstrated any dispute as to the government's assertion that the checkpoint was in fact a nonpublic forum.

The plaintiffs filed notice of appeal to the Ninth Circuit on Nov. 29, 2016. Oral argument was held on Dec. 5, 2017. On Feb. 13, 2018, the Ninth Circuit vacated the judgment and remanded for further consideration. The court found that the record before the district court did not warrant its conclusion as a matter of law that the enforcement zone was a nonpublic forum or that the government had satisfied the requirements for excluding the plaintiffs from the area. The court held that on remand, discovery was to be conducted to allow the district court to make such determinations.

The case is ongoing.

Virginia Weeks - 01/22/2018
Virginia Weeks - 02/13/2018


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