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Court Says Arizona Residents Hassled By CBP Encroachment Can Move Forward With Their First Amendment Lawsuit

About a half-decade ago, Customs and Border Patrol turned roads in and out of a small Arizona town into East Germany. Now, the Ninth Circuit Appeals Court has ruled residents of Arivaca, Arizona can move forward with the civil rights lawsuit against several federal government agencies, including the DHS and CBP.

The backstory to the lawsuit is stunning, in a "surely this can't be happening in America" sort of way. The New York Times covered the misery of Arivaca residents back in 2014. It shows what can happen when the federal government is allowed to turn large swathes of American soil into a proto-DMZ with armed guards and "papers, please" checkpoints.

Every time Jack Driscoll drives the 32 miles from this remote outpost in southeastern Arizona to the closest supermarket, or to doctor’s appointments, or to a pharmacy to fill his prescriptions, he must stop at a Border Patrol checkpoint and answer the same question: “Are you a U.S. citizen?”

Sometimes, Border Patrol agents ask where he is going or coming from, the type of car he is driving, what is in that bag on the back seat or what brings him to these parts, even though he has lived here for more than a year.


He is not the only one in this community of 800 whose anger is boiling over. Although checkpoints are a fact of life here — the tollbooth-like way stations are part of the routine for anyone driving the highways near the border — citizens like Mr. Driscoll are now starting to raise questions about whether the familiar but irritating routine violates their constitutional rights, which include protections against arbitrary stops and searches.

Most residents of Arivaca have to leave town to do anything. The small town has few services, forcing residents to deal with the CBP every time they travel anywhere else. Surrounded by three roads with three checkpoints, residents have no option but to subject themselves to unneeded scrutiny, apparently in perpetuity. Despite the CBP's stranglehold on this particular border-adjacent area, no one who's dealt with CBP hassle for years has seen much in the way of border protection. And they would know, because they've been watching.

This year, volunteers organized, gathering hundreds of signatures and picketing outside the Border Patrol offices in Tucson to try to get the checkpoints removed, to no avail. For several months, small groups monitored the busiest of the area’s checkpoints, on Arivaca Road, noting things like the length of the stops, the questions asked and the number of drivers pulled aside for a search of their vehicle and belongings.

“We didn’t see any arrests,” said one of the volunteers, Peter Ragan, 52, a landscaper who has lived in Arivaca for 12 years. “There were no undocumented people apprehended at the checkpoint, no drugs interdicted, no murderers, rapists or terrorists we were defended against, as far as we could see.”

To be clear, none of these residents ever leave the country. All of this activity -- this constant monitoring of 800 residents of a small Arizona town -- targets US citizens going from place to place entirely within US borders. The pushback by residents was limited to monitoring CBP operations from public roads. No one interfered with the work being done by officers. All they did was watch, record, and protest the CBP activities.

The CBP didn't like this. It couldn't just tell residents to leave, however. That would have been too obvious of a Constitutional violation. Instead, the CBP did everything it could to deter citizens from documenting the agency's activities. From the appeals court decision [PDF]:

Some of them, as part of an organization called People Helping People (PHP), held a protest near the checkpoint area on December 8, 2013. The protest was spurred by community complaints that BP agents racially profiled, unlawfully searched, and used excessive force on people stopped at the checkpoint. The BP agent in charge of the checkpoint area learned of the planned protest and decided to suspend checkpoint operations during the protest, allegedly for the safety of all involved, which permitted cars to pass uninspected. On February 26, 2014, the Appellants and others returned to the checkpoint area to protest and to monitor activities within the checkpoint area. The protesters stood first on the south side of Arivaca Road, and later on the north side of the road, in each case approximately 100 feet east of the portable office. After the protesters refused to move further away from the checkpoint area, BP agents erected a yellow tape barrier across the north and south shoulders of Arivaca Road approximately 150 feet east of the portable office unit, and required the protesters to relocate behind those barriers.

First, there was the arbitrary decision by the CBP that moved protesters and observers back 50 feet, as though 100 feet wasn't far enough away for the CBP to do its work without interference. Anyone crossing the tape barrier was threatened with arrest.

Then there's the fact that the CBP only enforced this ad hoc barrier against protesters and observers.

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine “who can enter into the perimeter” and “where [Appellants] can and can’t be.” On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident’s wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted “Well, we had our fun today” to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, “It’s a free country.”

Is it? Sure doesn't seem like it when you're being asked about your citizenship several times a week and forced to stand behind an arbitrary barrier to even look at a CBP checkpoint.

Sometimes the tape barrier wasn't enough for the CBP. It also engaged in activities clearly aimed at preventing observation from behind the barriers.

On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone.

The residents sued (with the assistance of the ACLU), alleging First Amendment violations. The district court ruled in favor of the CBP, granting summary judgment before any discovery had occurred. It called the three CBP checkpoints (which were supposed to be temporary) "nonpublic forums" where citizens could be removed without violating their rights.

The Appeals Court calls this decision premature, stating that the plaintiffs have raised several issues which require discovery to proceed before they can be ruled on.

The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

This decision allows the residents of Arivaca to move forward with their lawsuit and start demanding records from the CBP. The first point of attack against the "nonpublic forum" argument begins with the CBP's own antagonistic actions. As the court notes, the inconsistent approach taken by the CBP in regards to its makeshift protester barriers raises a lot of questions about the supposed "neutral viewpoint" of the CBP's enforcement.

The government’s stated policy is that “pedestrians are allowed inside the checkpoint only for official purposes,” but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government’s policy.

Hopefully, this will result in a win for the plaintiffs. Their protests and documentation are the only way they can fight back against the CBP's inland encroachment. The continued observation will likely show the only purpose these checkpoints serve is to disrupt the lives of American citizens traveling entirely within the borders of the United States.

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