By JW August, journalist and Past President of Californians Aware

A lawsuit challenging what amounts to a No Photo Zone policy of the U.S. Customs and Border Patrol (CBP) has a new lease on life.  An appellate court said U.S. District Judge Thomas Whelan in San Diego erred in dismissing a case filed by the ACLU, who had argued the government has no right to maintain a sweeping ban on information gathering activities along the US/Mexican border. Whelan initially had ruled that citizens’ First or Fourth Amendment rights are not relevant when it involves CBP actions because of the “extremely compelling interest of border security” and in “protecting United States territorial sovereignty.”

On review, the  U.S. Ninth Circuit of Appeals  called this generic rationale “too thin.”  In its August 14 opinion, the court said the government hasn’t shown “these specific restrictions” are appropriate when citizens are exercising their First Amendment rights in public areas. In other words, the Border Patrol can’t just create a general policy that would forbid photography by members of the public anywhere along the border they choose.

What prompted this were two very different cases involving non-media advocates for reform in border policy at the Calexico, California and Tijuana border crossings.

Ray Askins was 50 to 100 feet from the exit of the secondary inspection area in Calexico when he took three or four photographs in preparing a story on traffic gridlock. He was standing in a public street when he took pictures of the exit.  The appeals court decision described what happened next.

Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.

As has been pointed out in the hearings, Askins was not trying to photograph the inside of buildings or sensitive areas not visible to the public. Neither was Christian Ramirez, a San Diego activist and the second plaintiff in the lawsuit, whom this reporter interviewed for this article.

Ramirez saw two US Customs agents, both men, patting down women at the border crossing going into Mexico.  He a had a perfect line of sight from the pedestrian bridge that spans Interstate 5.  It was on a public sidewalk on the U.S. side.  He knew it was inappropriate behavior for anyone in law enforcement to frisk someone of the opposite sex. Ramirez is actively involved in the human rights movement and considered the behavior a violation of the women’s rights..   He took out his Blackberry and began taking pictures of the pat-downs by the men.

At the top of the bridge crossing two Wackenhut Security personnel, now called G4S, asked for identification documents from both Ramirez and his wife.  He told them that he and his wife had already passed through security and didn’t need to provide them their papers. Anyone on the bridge had to pass the border checkpoint.  The security personnel told Ramirez to stop taking pictures and ordered him and his wife, both US Citizens, to “move along” and that “they were loitering.” So they did.

At the end of their descent they were greeted with a “wall of federal agents,” he said, as one took his wife in one direction, him in another.  He put his hands up but was “frightened not so much for my own safety but for my wife,” he said. Ramirez said he was worried that “his wife would make the wrong gesture—what she would do, how she would react.” Fearing a strong response from the agents to anything she did, he said, “That would have been enough for her to be hurt. I have been through this before, my wife hasn’t.”

Ramirez said he  later learned that two of those involved were ICE officers in plain clothes. Like the security guards, they asked for identification papers and then told him to show the pictures he had taken.  He refused. An ICE officer warned, “Just give me a reason to take you down.” Ramirez showed them the seven to ten photographs of the pat-downs he had taken. They asked why he took the pictures and he explained he was a human rights observer. They told him he was “not allowed to take pictures here” and then deleted his photos.  “I didn’t know what to do, how to react,” he recalled. The couple was later released.

Six years later, the lawsuit filed on behalf of Ramirez and Askins by the ACLU, once thought dead, is very much alive again.  As David Loy of the ACLU has argued, “Apart from the inherent First Amendment right to take pictures of things happening in public, there’s a particularly strong First Amendment interest in holding government accountable. And particularly, holding border agencies accountable — because there’s a record of abuse there.”

Court dates for the next phase of the case are undetermined.