STUART F. DELERY Principal Deputy Assistant Attorney General … · 2015-09-21 · RAY ASKINS, et...

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STUART F. DELERY Principal Deputy Assistant Attorney General

DIANE KELLEHER Assistant Director, Federal Programs Branch United States Department of Justice, Civil Division PATRICK G. NEMEROFF (CA Bar No. 268928) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 Tel: 202-305-8727 Fax: 202-616-8470 Email: [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

__________________________________________ )

RAY ASKINS, et al. ) ) No. 12-cv-2600 W-BLM

Plaintiffs, ) v. )

) Date: March 27, 2013 UNITED STATES DEPARTMENT OF ) Time: NO ORAL ARGUMENT HOMELAND SECURITY, et al. ) PURSUANT TO LOCAL RULE

) Courtroom: 7 Defendants. )

_________________________________________ )

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BY

UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND OFFICIAL-CAPACITY DEFENDANTS

Case 3:12-cv-02600-W-BLM Document 22-1 Filed 02/13/13 of 31

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TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................1

BACKGROUND ...................................................................................................................................1

A. Policies Restricting Photography on Land Ports of Entry .............................................4

B. Plaintiffs’ Allegations ....................................................................................................7

STANDARD OF REVIEW ...................................................................................................................9

ARGUMENT .........................................................................................................................................9

I. CBP’s Prohibition Of Unauthorized Photography On Land Ports Of Entry Complies With The First Amendment .....................................................................................................10

A. Land Ports Of Entry Are Nonpublic Forums ...............................................................11

B. CBP’s Prohibition Of Unauthorized Photography Is Reasonable And Viewpoint Neutral ........................................................................................................14

1. Plaintiffs fail to state a claim that CBP’s prohibition of unauthorized photography is unreasonable............................................................................15

2. Plaintiffs fail to state a claim that CBP’s prohibition of unauthorized photography is not viewpoint neutral ..............................................................18

II. Plaintiffs Have Not Alleged A CBP Policy Or Officially Sanctioned Pattern Of Behavior That Violates The Fourth Amendment.....................................................................20

A. CBP’s Policy With Respect To Unauthorized Photography On Ports Of Entry Complies With The Fourth Amendment......................................................................20

B. Plaintiffs Have Not Stated A Plausible Claim That, Despite CBP’s Written Policy, CBP Officers Engage In A Pattern Of Officially Sanctioned Behavior That Violates The Fourth Amendment ........................................................................23

CONCLUSION ....................................................................................................................................24


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TABLE OF AUTHORITIES

Cases Ashcroft v. Iqbal,

556 U.S. 662 (2009) .................................................................................................................... 9, 12 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .......................................................................................................................... 9 Brown v. Cal. Dep't of Transp.,

321 F.3d 1217 (9th Cir. 2003) ........................................................................................................ 14 City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .................................................................................................................... 11, 23 Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788 (1985) .................................................................................................................... 1, 14 Ctr. for Bio-Ethical Reform, Inc. v. Honolulu,

455 F.3d 910 (9th Cir. 2006) ................................................................................................... passim Daniels-Hall v. Nat'l Educ. Ass'n,

629 F.3d 992 (9th Cir. 2010) ............................................................................................................ 2 Flint v. Dennison,

488 F.3d 816 (9th Cir. 2007) .......................................................................................... 1, 12, 13, 19 Fordyce v. City of Seattle,

55 F.3d 436 (9th Cir. 1995) ............................................................................................................ 15 Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ................................................................................................. 10, 11, 14 Greer v. Spock,

424 U.S. 828 (1976) ........................................................................................................................ 13 Hague v. Comm. for Indus. Org.,

307 U.S. 496 (1939) ........................................................................................................................ 12 Hale v. Dep't of Energy,

806 F.2d 910 (9th Cir. 1986) .......................................................................................................... 16 Headwaters Inc. v. United States Forest Serv.,

399 F.3d 1047 n. 3 (9th Cir. 2005) ................................................................................................... 8 Hodgers-Durgin v. de la Vina,

199 F.3d 1037 (9th Cir. 1999) ............................................................................................ 11, 23, 24 In re Rigel Pharms., Inc. Sec. Lit., 697 F.3d 869 (9th Cir. 2012) ......................................................... 9 Int'l Soc. For Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992) ...................................................................................................... 12, 14, 15, 18


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Jacobsen v. Bonine, 123 F.3d 1272 (9th Cir. 1997) ........................................................................................................ 13

Kaahumanu v. Hawaii,

682 F.3d 789 (9th Cir. 2012) .......................................................................................................... 19 Lavan v. City of Los Angeles,

693 F.3d 1022 (9th Cir. 2012) .................................................................................................. 17, 22 Lazy Y Ranch Ltd.,

546 F.3d at 588 (9th Cir. 2008)..................................................................................................... 8, 9 Melendres v. Aripaio,

695 F.3d 990 (9th Cir. 2012) .............................................................................................. 11, 23, 24 Mocek v. City of Albuquerque, 11-cv-1009, (D.N.M.) ................................................................. 10, 15 Perry Educ. Ass'n v. Perry Local Educators' Ass'n,

460 U.S. 37 (1983) .................................................................................................................... 12, 15 Peviani v. Hostess Brands, Inc.,

750 F. Supp. 2d 1111 (C.D. Cal. 2010) ............................................................................................ 2 Rigel Pharms., Inc. Sec. Lit.,,

697 F.3d 869 (9th Cir. 2012) ............................................................................................................ 9 Robinson v. Fetterman,

378 F. Supp. 2d 534 (E.D. Pa. 2005) .............................................................................................. 14 Seifert v. Winter,

555 F. Supp. 2d 3 (D.D.C. 2008) ...................................................................................................... 2 Sentinel Commc'ns Co. v. Watts,

936 F.2d 1189 (11th Cir. 1991) ...................................................................................................... 13 Sharp v. Balt. City Police Dep’t, et al., 11-cv-2888 (D. Md.) ............................................................ 14 Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ...................................................................................................... 10 United States v. Aukai,

497 F.3d 955 (9th Cir. 2007) .......................................................................................................... 22 United States v. Brice,

926 F.2d 925 (9th Cir. 1991) .......................................................................................................... 20 United States v. Cortez-Rocha,

394 F.3d 1115 (9th Cir. 2005) .................................................................................................. 22, 23 United States v. Crasper,

472 F.3d 1141 (9th Cir. 2007) ........................................................................................................ 21 United States v. Flores-Montano,

541 U.S. 149 (2004) .................................................................................................................. 12, 16


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United States v. Garcia, 205 F.3d 1182 (9th Cir. 2000) ........................................................................................................ 21

United States v. Juvenile Female,

566 F.3d 943 (9th Cir. Cal. 2009) ..................................................................................................... 1 United States v. Perea-Ray,

680 F.3d 1179 (9th Cir. 2012) .......................................................................................................... 8 United States v. Pope,

686 F.3d 1078 (9th Cir. 2012) ........................................................................................................ 21 United States v. Smith,

790 F.2d 789 (9th Cir. 1986) .......................................................................................................... 21 United States v. Stansell,

847 F.2d 609 (9th Cir. 1988) .......................................................................................................... 20 United States v. Turner,

926 F.2d 883 (9th Cir. 1991) .................................................................................................... 21, 22 United States v. Two Right-of-Way Easements, et al., 11-cv-0707(S.D. Cal.) ............................. 21, 22 United States v. Windsor,

846 F.2d 1569 (9th Cir. 1988) ........................................................................................................ 22 Statutes 6 U.S.C. § 111 ................................................................................................................................. 2, 16 6 U.S.C. § 202 ........................................................................................................................... 2, 16, 18 6 U.S.C. § 215 ................................................................................................................................. 2, 16 6 U.S.C. § 251 ................................................................................................................................. 2, 16 6 U.S.C. § 552 ................................................................................................................................. 3, 16 8 U.S.C. § 1357 ..................................................................................................................................... 3 19 U.S.C. § 482 ..................................................................................................................................... 3 19 U.S.C. § 1433 ................................................................................................................................... 3 19 U.S.C. § 1459 ................................................................................................................................... 3 Regulations 19 C.F.R. § 101.1 .................................................................................................................................. 3 19 C.F.R. § 101.3 ............................................................................................................................ 3, 13 41 C.F.R. § 102-74.365 ............................................................................................................... 4, 5, 11


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41 C.F.R. § 102-74.370 ....................................................................................................... 5, 20, 21, 22 41 C.F.R. § 102-74.375 ......................................................................................................................... 4 41 C.F.R. § 102-74.385 ......................................................................................................................... 5 41 C.F.R. § 102-74.390 ................................................................................................................... 5, 13 41 C.F.R. § 102-74.400 ......................................................................................................................... 5 41 C.F.R. § 102-74.410 ................................................................................................................... 6, 13 41 C.F.R. § 102-74.415 ................................................................................................................... 5, 13 41 C.F.R. §§ 102-74.420 ................................................................................................................. 5, 20 41 C.F.R. §§ 102-74.430 ....................................................................................................................... 5 41 C.F.R. §§ 102-74.435 ....................................................................................................................... 5 41 C.F.R. §§ 102-74.440 ....................................................................................................................... 5 41 C.F.R. §§ 102-74.450 ................................................................................................................ 5, 20 OTHER AUTHORITIES U.S. Const. amend I ..................................................................................................................... passim U.S. Const. amend IV .................................................................................................................. passim Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) .................................. 12 CBP Directive No. 5410-001B, Office of Public Affairs; Roles, Functions, Responsibilities (March 18, 2009) .................................................................. passim U.S. Customs and Border Protection Ground Rules for News Media Representatives When Visiting Southern California Ports of Entry ............................... passim


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INTRODUCTION

At issue in this case is the authority of U.S. Customs and Border Protection (CBP) to limit

photography on land ports of entry, the border facilities at which CBP controls entry into and exit

from the United States. Plaintiffs Ray Askins and Christian Ramirez allege that CBP violates the

First Amendment by requiring individuals to obtain authorization prior to taking photographs on

land ports of entry. But “‘[n]othing in the Constitution requires the Government freely to grant

access to all who wish to exercise their right to free speech on every type of Government property

without regard to the nature of the property.’” Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007)

(quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985)).

CBP’s policy applies only to individuals on government property that is not traditionally

open to expressive activity. Moreover, the policy serves important interests related to border

security. CBP’s restriction of photography on land ports of entry therefore complies with the First

Amendment and is easily distinguishable from cases involving photography of police officers in

public places. Likewise, CBP does not violate the Fourth Amendment by detaining an individual

when CBP officers have probable cause to believe that the individual has committed a crime by

taking unauthorized photographs while on the property of a land port of entry.

For the reasons set forth below, plaintiffs have failed to state a claim that any CBP policy or

practice with respect to photography violates the First Amendment or the Fourth Amendment.

Plaintiffs’ claims against the United States Department of Homeland Security and official-capacity

defendants seeking injunctive and declaratory relief therefore should be dismissed.

BACKGROUND

The Department of Homeland Security (DHS) was created by the Homeland Security Act of

2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). See United States v. Juvenile Female, 566 F.3d


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943, 949 (9th Cir. Cal. 2009). Pursuant to the Act, CBP was established, taking over responsibilities

of the former United States Customs Service and U.S. Immigration and Naturalization Service, and

was consolidated with other agencies under DHS to create a “single, unified structure” to protect the

United States. See id. (citing H.R. Rep. 107-609(I), at 66 (2002), reprinted in 2002 U.S.C.C.A.N.

1352, 1356). CBP has the priority mission of securing the United States from terrorists and terrorist

weapons and is the agency within DHS responsible for securing the United States’ borders and

facilitating lawful international trade and travel by enforcing hundreds of United States laws. See 6

U.S.C. §§ 111, 202, 215, 251.1

Entry into and exit from the United States is controlled by CBP at over three hundred ports of

entry, including air, land, and sea ports, as well as between the ports of entry.2 A port of entry “is

the facility that provides controlled entry and exit in and out of the United States for people and

materials.”3 Ports of entry may be “designated by Executive Order of the President, by order of the

1 See also generally Snapshot, A summary of CBP facts and figures, U.S. Customs and Border Protection (CBP Snapshot), available at http://www.cbp.gov/linkhandler/cgov/about/accomplish/ cbp_snapshot_2013.ctt/cbp_snapshot_2013.pdf; Summary of Laws and Regulations Enforced by CBP (2005), available at http://www.cbp.gov/xp/cgov/trade/legal/summary_laws_enforced/.

In evaluating this motion to dismiss, this Court may take judicial notice of facts and documents, including agency directives and guidelines, that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Government information and policies posted on government websites are properly subject to judicial notice. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010); see also Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1116 (C.D. Cal. 2010) (taking judicial notice of FDA Food Labeling Guide); Seifert v. Winter, 555 F. Supp. 2d 3, 11 n.5 (D.D.C. 2008) (taking judicial notice of government agency directive published on its website). Defendants respectfully request the Court to take judicial notice of the information and policies posted on government websites that are cited in this brief. 2 See About Border Security, CBP.gov, Home, Border Security, http://www.cbp.gov/xp/cgov/border_security/bs/. 3 See GSA, Q&A, available at GSA, Land Ports of Entry Toolkit, http://www.gsa.gov/portal/content/103603; see also 19 U.S.C. §§ 1433(b), 1459(a).


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[Department of Homeland Security], or by Act of Congress.”4 19 C.F.R. § 101.1; see also 19 C.F.R.

§ 101.3(b) (listing ports of entry, many of which were designated by the President in 1913). “The

terms ‘port’ and ‘port of entry’ incorporate the geographical area under the jurisdiction of a port

director.” Id. It “consists of the land, the buildings, the on-site roadways, and parking lots occupied

by the federal inspection agencies.” See GSA, Q&A, supra note 3. The majority of land ports of

entry in the United States are owned and operated by the United States General Services

Administration (GSA).5

CBP is the primary occupying tenant of GSA-owned land ports of entry. See GSA, Q&A,

supra note 3.6 Ports of entry are divided among twenty CBP Office of Field Operations regions,

which provide centralized management oversight and operational assistance.7 At ports of entry,

CBP is responsible for inspecting persons and goods to safeguard the American public against

terrorism and prevent the entry into the country of inadmissible persons, contraband, narcotics,

agricultural pests, and smuggled goods. Id. CBP officers, who are armed and uniformed federal law

enforcement officers, determine the admissibility of individuals into the United States and have

arrest authority. See 8 U.S.C. § 1357.8 CBP officers have the authority, under 19 U.S.C. § 482, to

“stop, search, and examine . . . any vehicle, beast, or person, on which or whom he or they shall 4 Following passage of the Homeland Security Act of 2002, the regulation’s reference to the Department of Treasury is deemed to refer to the Department of Homeland Security. See 6 U.S.C. § 552(d). 5 Of the 185 land ports of entry, 102 are owned and operated by GSA, 22 are leased by GSA, and the remaining 43 are under the jurisdiction and control of the United States Department of Homeland Security. See GSA, Fast Facts, available at GSA, Land Ports of Entry Toolkit, http://www.gsa.gov/portal/content/103603. 6 See also Agencies Typically Located at LPOE, GSA, available at GSA, Land Ports of Entry Toolkit, http://www.gsa.gov/portal/content/103603. 7 See Field Operations Offices, CBP.gov, http://www.cbp.gov/xp/cgov/toolbox/contacts/cmcs/. 8 See also Field Operations Offices, CBP.gov, supra n.7; Field Operations/Port Security, CBP.gov, Home, Border Security, http://www.cbp.gov/xp/cgov/border_security/port_activities/.


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suspect there is merchandise . . . introduced into the United States in any manner contrary to law.”

On a typical day, CBP officers at ports of entry process almost one million individuals and over sixty

thousand truck, rail, and sea containers. See CBP Snapshot, supra n.1.

Plaintiffs challenge CBP’s restriction of photography on two land ports of entry located on

California’s border with Mexico, the San Ysidro port of entry and the Calexico port of entry. See

Complaint, Dkt. No. 1. The San Ysidro and Calexico ports of entry, like the majority of United

States land ports of entry, are owned by GSA.9 The San Ysidro port of entry, located just fifteen

miles south of San Diego, is the busiest land border crossing in the western hemisphere and handles

over thirty-one million passenger vehicles annually.10 The Calexico West port of entry is located in

downtown Calexico, California, and handles over thirty-six thousand passenger vehicles and

pedestrians on an average day.11 Both ports of entry are located within the CBP San Diego Office of

Field Operations jurisdiction.12

A. Policies Restricting Photography on Land Ports of Entry

As GSA-owned property, the San Ysidro and Calexico ports of entry are subject to GSA’s

regulations governing conduct on federal property. See 41 C.F.R. §§ 102-74.365 – .74.455 (Conduct

on Federal Property). Those regulations give authority to agencies that occupy GSA property. See

id. § 102-74.365. They permit occupying agencies to close portions of federal property to the public

as needed for the orderly conduct of government business. See id. § 102-74.375. And they give

9 See Land Ports of Entry, GSA, http://www.gsa.gov/portal/content/104871. 10 See id.; San Ysidro Port of Entry, GSA, http://www.gsa.gov/portal/category/21521. 11 See Calexico West Land Port of Entry, GSA, http://www.gsa.gov/portal/content/103395. The nearby Calexico East Port of Entry is also owned and operated by GSA. See Land Ports of Entry, GSA, http://www.gsa.gov/portal/content/104871. 12 See Field Operations Offices, CBP.gov, San Diego, http://www.cbp.gov/xp/cgov/ toolbox/contacts/cmcs/cmc_s_ca.xml.


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agencies the discretion to inspect the possessions of visitors to federal property, and to conduct a full

search incident to an arrest. See id. § 102-74.370.

GSA’s regulations also impose restrictions on public visitors to GSA property. See id. § 102-

74.365. Individuals on federal property must at all times comply with official signs and with the

lawful direction of federal officers and other authorized individuals. See id. § 102-74.385. They are

prohibited from loitering, exhibiting disorderly conduct, unreasonably obstructing entries and exits,

or otherwise impeding or disrupting the performance of official duties by government employees.

See id. § 102-74.390; see also id. §§ 102-74.380 (prohibiting destruction of property); 102-74.430

(traffic control); 102-74.400 - .405 (prohibiting alcohol and drugs); 103.74.435 - .440 (prohibiting

explosives and weapons). Individuals on GSA property cannot distribute or post pamphlets,

handbills, or flyers except as part of authorized government activities. See id. § 102-74.415. And

individuals are prohibited from unauthorized solicitations for commercial, charitable, or political

purposes. See id. at § 102-74.410. An individual who violates GSA’s federal property regulations

may be subject to criminal penalties, including imprisonment. See id. § 102-74.450.

With respect to photography, GSA’s regulations prohibit individuals on federal property

from taking photographs or film of “space occupied by a tenant agency for non-commercial

purposes” without “the permission of the occupying agency concerned.” See id. § 102-74.420(a).

“Except where security regulations, rules, orders, or directives apply,” GSA’s regulations permit

photography of “[b]uilding entrances, lobbies, foyers, corridors, or auditoriums for news purposes.”

Id. § 102-74.420(c).

CBP’s national policy with respect to photography on ports of entry is contained within its

directive addressing public affairs. See CBP Directive No. 5410-001B, Office of Public Affairs;


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Roles, Functions, Responsibilities (March 18, 2009), attached as Ex. A.13 CBP does not restrict

photography taken or video made from off of ports of entry, but prohibits unauthorized photography

taken while on ports of entry. Pursuant to its policy, “CBP personnel should not prevent the lawful

efforts of the news media to photograph, tape, record, or televise an enforcement action from outside

a designated perimeter as long as the CBP-controlled area has not been breached.” Id. at part 6.2.2.

Authorization of photography at CBP facilities, including ports of entry, “shall be made in

consultation with the appropriate Public Affairs Specialist and with the concurrence and control of

the appropriate CBP supervisor.” Id. at part 6.2.3. The decision to authorize photography shall be

made “without favoritism . . . while not compromising the DHS/CBP mission.” Id. at part 3.1.

“[R]esponses to news organizations and individuals shall be tempered by concerns for on-going

investigations; sensitive foreign activities; operational factors; detection, targeting and selectivity

factors; techniques and capabilities; exchange of intelligence; and matters in litigation.” Id. CBP

officers may detain a photographer and his or her recording equipment only if the individual “has

violated federal law, unlawfully breached the security of a CBP facility, or has endangered the safety

of CBP personnel.” Id. at part 6.2.4.

Media ground rules issued by CBP’s San Diego Office of Field Operations, which apply to

any individual seeking to film or photograph at ports of entry, require authorization in advance of

filming or photographing on port of entry property. See U.S. Customs and Border Protection

Ground Rules for News Media Representatives When Visiting Southern California Ports of Entry

13 Available at http://foiarr.cbp.gov/streamingWord.asp?i=1245. CBP’s 2009 directive replaced an earlier 2005 directive that contained the same policy with respect to photography. See CBP Directive No. 5410-001A, U.S. Customs and Border Protection Media and Public Affairs Policy (Sept. 8, 2005), available at http://foiarr.cbp.gov/streamingWord.asp?i=1244.


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(Media Ground Rules),14 attached as Ex. B, at ¶ 1. The ground rules provide that “[r]eporters who

do not have such clearance may be denied access to port property.” Id. Pursuant to the ground rules,

photographers and camera crews must be escorted by a designated CBP officer at all times while on

port property. Id. at ¶ 2. In order to “protect privacy rights of the public and preserve the integrity

of investigations,” visitors must ensure that suspects of criminal law enforcement activities and

detained vehicles cannot be identified in any photographs or video. Id. at ¶ 4. The ground rules

restrict videotaping or photographing of contraband extracted from vehicles, see id. at ¶ 7, of a CBP

officer without the officer’s permission, see id. at ¶ 8, and of port computer screens, see id. at ¶ 9.

The ground rules “are operative at all times” due to “concerns for the privacy of the traveling public,

integrity of law enforcement and investigative activities, and safety of visiting media representatives

and the public.” Id.

B. Plaintiffs’ Allegations

Plaintiffs Ray Askins and Christian Ramirez each alleges that he attempted to photograph a

CBP land port of entry but was stopped by CBP officers. See Complaint. Mr. Askins claims that he

attempted to photograph the Calexico port of entry on or about April 19, 2012, see id. at ¶ 22, while

Mr. Ramirez claims that he attempted to photograph the San Ysidro port of entry on or about June

20, 2010, see id. at ¶¶ 36-39. Neither plaintiff claims that he received authorization prior to

attempting to photograph the ports of entry, or that he was accompanied by a CBP official while

taking photographs. See id. at ¶¶ 20, 39. Although Mr. Askins claims that he was just off of port of

entry property at the time he took photographs of the Calexico port of entry secondary vehicle

inspection area, see id. at ¶ 24, judicially noticeable facts establish that Mr. Askins was in fact on

14 Available at http://nemo.cbp.gov/opa/2013/media_ground_rules.pdf. The media ground rules are posted on CBP’s public affairs webpage. See CBP.gov, Newsroom, Press Officers, State Listings, http://cbp.gov/xp/cgov/newsroom/press_officers/statelistings.xml.


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port of entry property.15 Mr. Ramirez admits that he was on the San Ysidro port of entry at the time

that he took photographs. See Complaint at ¶ 36-40. Both plaintiffs allege that upon taking

photographs they were approached by officers who instructed them to stop. See id. at ¶¶ 25, 43. Mr.

Ramirez claims that he took one additional picture. See id. at ¶ 43. Both plaintiffs allege that they

subsequently were detained, questioned, and searched, and that some or all of the pictures of the

ports of entry were deleted. See id. at ¶¶ 25-30, 44-50.

Plaintiffs have sued DHS and, in their official capacity, the Deputy Commissioner of CBP

David Aguilar, the Calexico Port Director Billy Whitford, and the San Ysidro Acting Port Director

Joseph Misenhelter.16 See Complaint.17 Plaintiffs seek declaratory and injunctive relief preventing

CBP from restricting unauthorized photography on ports of entry. See id., Prayer for Relief at A-C.

They also seek relief preventing CBP from detaining and searching individuals who violate GSA

regulations and CBP directives by taking unauthorized photographs on ports of entry. See id. On

15 Judicially noticeable facts establish that Mr. Askins was on port of entry property while photographing the secondary inspection area. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (stating that a court “need not accept as true allegations contradicting documents that are referenced in the complaint or that are properly subject to judicial notice.”). Mr. Askins claims that he was on the shoulder of a street, 50-100 feet from the exit of the Calexico port of entry secondary inspection area. See Complaint at ¶ 22. That description, along with the picture attached to Mr. Askins’ complaint, establishes that Mr. Askins was standing on the shoulder of Highway 111. See United States v. Perea-Ray¸ 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking judicial notice of geography established through Google map). On April 8, 2011, prior to Mr. Askins’ alleged detention, GSA took ownership of that portion of Highway 111 as part of the port of entry. See United States v. Two Right-of-Way Easements, et al., 11-cv-0707, Doc. 8 (Apr. 8, 2011, S.D. Cal.) (Order for Delivery of Immediate Possession of Subject Property), attached as Ex. D; id., Doc. 4 (Apr. 7, 2011, S.D. Cal.) (Declaration of Taking), attached as Ex. E; see also Headwaters Inc. v. United States Forest Serv., 399 F.3d 1047, 1051 n. 3 (9th Cir. 2005) (taking judicial notice of documents filed in a separate case). And an exhibit attached to plaintiffs’ Complaint further confirms that Mr. Askins was taking photographs from on port of entry property when he was detained. See Complaint, Ex. C (Email from Port Director Billy Whitford to Ray Askins) (“[T]he area in question is currently under the jurisdiction of GSA and CBP.”). 16 Plaintiffs named San Ysidro Port Director Frank Jaramillo in their complaint. Mr. Jaramillo recently passed away. The current Acting Port Director of San Ysidro is Joseph Misenhelter. 17 Plaintiffs have also brought Bivens claims against unnamed CBP officers. Those claims are not at issue in this motion to dismiss. Moreover, because those officers have not been named or served, granting this motion to dismiss would resolve this litigation in its entirety.


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January 29, 2013, plaintiffs filed a motion for a preliminary injunction. See Pls.’ Notice of Mot. and

Mot. for Prelim. Inj., Doc. 19.18

STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all the allegations

in the complaint are true.” In re Rigel Pharms., Inc. Sec. Lit., 697 F.3d 869, 875 (9th Cir. 2012)

(citing Twombly, 550 U.S. at 555). The Court’s “review of challenges to a dismissal for failure to

state a claim is generally limited to the face of the complaint, materials incorporated into the

complaint by reference, and matters of which [the Court] may take judicial notice.” Id. at 875-76.

The Court “need not accept as true allegations contradicting documents that are referenced in the

complaint or that are properly subject to judicial notice.” Lazy Y Ranch Ltd., 546 F.3d at 588.

ARGUMENT

Plaintiffs have failed to state a claim that they are entitled to injunctive or declaratory relief

curtailing CBP’s authority to regulate photography on ports of entry. The CBP policy at issue

restricts photography only on CBP facilities such as land ports of entry, the facilities at which CBP

controls entry into and exit from the United States. Because ports of entry are nonpublic forums,

CBP’s restriction is subject to a lenient standard of judicial scrutiny. CBP’s prohibition of

unauthorized photography easily satisfies that standard because it is viewpoint neutral and serves

important government interests related to national security and border control. In addition, CBP may

detain and search an individual who commits a crime by taking unauthorized photographs in 18 Pursuant to this Court’s order, defendants’ opposition to plaintiffs’ motion for preliminary injunction is due to be filed by February 22, 2013. See Doc. 21. Defendants will file a separate opposition to plaintiffs’ motion for preliminary injunction on or before that date.


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violation of GSA’s federal property regulations. Plaintiffs’ claims against DHS and official-capacity

defendants seeking prospective relief therefore should be dismissed.

I. CBP’s Prohibition Of Unauthorized Photography On Land Ports Of Entry Complies With The First Amendment

Plaintiffs have failed to state a claim that CBP’s prohibition of unauthorized photography on

land ports of entry violates the First Amendment. While some courts have recognized a First

Amendment right to film matters of public interest, they have acknowledged that the right “may be

subject to reasonable time, place, and manner restrictions.” See Glik v. Cunniffe, 655 F.3d 78, 84

(1st Cir. 2011) (citing Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)). CBP’s

prohibition of unauthorized photography on ports of entry complies with the First Amendment

because it constitutes a reasonable and viewpoint neutral restriction of expressive activity on a

nonpublic forum. See Ctr. for Bio-Ethical Reform, Inc. v. Honolulu, 455 F.3d 910, 919 (9th Cir.

2006) (restrictions of expressive activity on nonpublic forums “need only be reasonable and

viewpoint neutral”).

Restricting photography on ports of entry serves important interests particular to CBP’s role

in ensuring border security. It serves CBP’s interests in preserving the integrity of its sensitive

border search techniques, law enforcement operations, and criminal investigations; in protecting

individuals’ privacy; and in protecting port security. CBP’s policy is viewpoint neutral on its face

and plaintiffs have alleged no facts suggesting that it is discriminatory in practice. Accordingly,

plaintiffs’ First Amendment claims should be dismissed. See Mocek v. City of Albuquerque, 11-cv-

1009, Doc. 49, at *90-99 (D.N.M. Jan. 14, 2013), attached as Ex. C (dismissing for failure to state a

claim a challenge to a restriction on unauthorized photography at an airport terminal screening

point).


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A. Land Ports Of Entry Are Nonpublic Forums

The first step in assessing the constitutionality of a time, place, and manner restriction on

expressive activity is to “‘identify the nature of the forum, because the extent to which the

Government may limit access depends on whether the forum is public or nonpublic.’” Ctr. for Bio-

Ethical Reform, Inc., 455 F.3d at 919-20; see also Glik, 655 F.3d at 84 (relying on the fact that the

filming at issue occurred “in the Boston Common, . . . the apotheosis of a public forum”). In this

case, the restriction on photography and recording applies only to individuals on land ports of entry.

GSA’s federal property regulations apply to “persons entering in or on” GSA property, not to

individuals off of GSA property. See 41 C.F.R. § 102-74.365 (“The rules in this subpart apply to all

property under the authority of GSA and to all persons entering in or on such property.”). CBP

explicitly permits photography or video from off of ports of entry, and the agency prohibits only

unauthorized photography by individuals on port of entry property. See CBP Directive No. 5410-

001B, at part 6.2.2 (“CBP personnel should not prevent the lawful efforts of the news media to

photograph, tape, record, or televise an enforcement action from outside a designated perimeter as

long as the CBP-controlled area has not been breached.”).19

19 Although Mr. Askins has alleged that he was off of port of entry property when he was detained by CBP officers, see Complaint at ¶ 24, judicially noticeable facts establish that he was in fact on port of entry property. See supra note 15. But even if the Court accepts Mr. Askins’ allegation that he was off of port of entry as true for purposes of this motion, that allegation would not suffice to state a plausible claim that CBP has a policy or practice of restricting photography from off of ports of entry. A single instance of CBP officers stopping photography from just off of a port of entry would not constitute a practice of restricting photography outside of ports of entry. To the contrary, CBP’s policy, as written, expressly permits photography from off of ports of entry. Accordingly, plaintiffs have failed to state a claim for prospective relief with respect to photography from off of ports of entry. See Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999) (en banc) (“The Supreme Court has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way.” (citations omitted)). Moreover, absent allegations that establish beyond a speculative level a policy or practice of restricting photography from off of ports of entry, plaintiffs lack standing to seek prospective relief addressing photography from off of ports of entry. See Melendres v. Arpaio, 695 F.3d 990, 997-98 (9th Cir. 2012) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).


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“For purposes of First Amendment analysis, public property fits into one of three main

categories: (1) a public forum, (2) a designated public forum, or (3) a nonpublic forum.” Ctr. for

Bio-Ethical Reform, Inc., 455 F.3d at 919 (citation omitted). “On one end of the fora spectrum lies

the traditional public forum, ‘places which by long tradition . . . have been devoted to assembly and

debate.’” Flint, 488 F.3d at 830 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 45 (1983). “Next on the spectrum is the so-called designated public forum, which exists

when the government intentionally dedicates its property to expressive conduct.” Flint, 488 F.3d at

830 (quotation omitted). “At the opposite end of the fora spectrum is the non-public forum,” which

is “any public property that is not by tradition or designation a forum for public communication.”

Id. (quotation omitted). “Examples of nonpublic fora include airport terminals, highway overpass

fences, and interstate rest stop areas (including perimeter walkways).” Ctr. for Bio-Ethical Reform,

Inc., 455 F.3d at 919 (citations omitted).

Ports of entry constitute nonpublic forums. They have no history of being devoted to free

expression, and are established by the government not to provide a place for free expression of ideas,

but to serve the vital national interest in border security. See, e.g., United States v. Flores-Montano,

541 U.S. 149, 153 (2004) (“It is axiomatic that the United States, as sovereign, has the inherent

authority to protect, and a paramount interest in protecting, its territorial integrity.”).

Land ports of entry do not qualify as traditional public forums. “[A] traditional public forum

is property that has as ‘a principal purpose . . . the free exchange of ideas.’” Int’l Soc. For Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (quoting Cornelius, 473 U.S. at 800). In

holding that airport terminals are nonpublic forums, the Supreme Court reasoned that, “given the

lateness with which the modern air terminal has made its appearance, it hardly qualifies for the

description of having ‘immemorially . . . time out of mind’ been held in the public trust and used for

purposes of expressive activity.” Id. at 680 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496,


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515 (1939)). Relying on that decision, the Ninth Circuit held that interstate rest areas also are

nonpublic forums because they “are relatively modern creations that have ‘never existed

independently of the Interstate System.” Jacobsen v. Bonine, 123 F.3d 1272, 1274 (9th Cir. 1997)

(quoting Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1203 (11th Cir. 1991). The majority of

the current United States land ports of entry were designated in 1913 or later, see 19 C.F.R. §

101.3(b), and therefore, like airport terminals and interstate rest areas, are relatively modern

creations. Moreover, ports of entry are established to secure national borders and facilitate travel and

trade, and have not been held in the public trust for purposes of expressive activity. In holding that

military installations are nonpublic forums, the Supreme Court observed that “the business of a

military installation like Fort Dix [is] to train soldiers, not to provide a public forum.” Greer v.

Spock, 424 U.S. 828, 838 (1976). Likewise, it is the business of ports of entry to protect border

security and provide controlled entry into the country. See GSA, Q&A, supra note 3.

Ports of entry also do not constitute designated public forums. A designated public forum

“cannot exist in the absence of specific action on the part of the government.” Flint, 488 F.3d at 830

(citation omitted). Not only has the government taken no such specific action with respect to ports

of entry, it has explicitly restricted expressive activity on ports of entry. Cf. Ctr. for Bio-Ethical

Reform, Inc., 455 F.3d at 920 (“In light of the numerous restrictions placed on the use of the airspace

in and around Honolulu, its principal purpose can hardly be characterized as promoting the free

exchange of ideas.” (quotation omitted)). In addition to restricting photography on ports of entry,

GSA regulations prohibit solicitation and the distribution of pamphlets, handbills, or flyers. See 41

C.F.R. §§ 102-74.410, 102-74.415. It is irrelevant to the forum analysis that ports of entry are

accessible to the public. Ports of entry are necessarily made open to the public to allow for

controlled entry into the country, not to allow for the free expression of ideas. GSA regulations

prohibit loitering on ports of entry, see 41 C.F.R. § 102-74.390, and the public therefore does not


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have an unqualified right to be on port of entry property. In any event, a designated public forum is

not created merely because “members of the public are permitted freely to visit a place owned or

operated by the Government.” Lee, 505 U.S. at 680 (quotation omitted). “The government does not

create a public forum by inaction or by permitting limited discourse, but only by intentionally

opening a nontraditional forum for public discourse.” Cornelius, 473 U.S. at 802.

Because land ports of entry are not traditional or designated public forums, they constitute

nonpublic forums. See Ctr. for Bio-Ethical Reform, Inc., 455 F.3d at 919 (“Any public property that

is neither a public nor a designated public forum is considered a nonpublic forum.”).

B. CBP’s Prohibition Of Unauthorized Photography Is Reasonable And Viewpoint Neutral

Because land ports of entry are nonpublic forums, CBP’s prohibition of unauthorized

photography “does not violate the First Amendment as long as it is ‘(1) reasonable in light of the

purpose served by the forum and (2) viewpoint neutral.’”20 Ctr. for Bio-Ethical Reform, Inc., 455

F.3d at 920 (quoting Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1222 (9th Cir. 2003)). CBP’s

policy is reasonable because it serves important national security and border security related

interests. CBP’s policy is viewpoint neutral because it prohibits all unauthorized photography on

ports of entry, regardless of viewpoint, and because authorization of photography does not depend

upon viewpoint. Plaintiffs have alleged no facts that plausibly undermine either the reasonableness

or the viewpoint neutrality of CBP’s policy. Plaintiffs therefore fail to state a claim that CBP’s

prohibition of unauthorized photography on ports of entry violates the First Amendment.

20 This case therefore is easily distinguishable from cases that involve filming of officials in a public forum, such as a city sidewalk, where “the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’” Glik, 655 F.3d at 84 (quoting Perry Educ. Ass’n, 460 U.S. at 45). It is also distinguishable from cases, such as Sharp v. Balt. City Police Dep’t, et al., 11-cv-2888 (D. Md.), where an individual films police officers “from private property with permission of the owner.” Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005). As discussed further below, this case is also distinguishable from cases such as Glik and Sharp because those cases do not involve the vital border security interests at stake in United States ports of entry.


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1. Plaintiffs fail to state a claim that CBP’s prohibition of unauthorized photography is unreasonable

A restriction on expressive activity on a nonpublic forum “need only be reasonable; it need

not be the most reasonable or the only reasonable limitation.” Lee, 505 U.S. at 683; see also Ctr. for

Bio-Ethical Reform, Inc., 455 F.3d at 922 (The restriction “must fulfill a legitimate need” but “need

not constitute the least restrictive alternative available.”). In Lee, the Supreme Court held that a

prohibition of solicitation in airport terminals was reasonable because it addressed “the disruptive

effect that solicitation may have on business” and the “risks of duress” to targets of solicitation. 505

U.S. at 683-84. In Center for Bio-Ethical Reform, Inc., the Ninth Circuit held that Hawaii’s

prohibition of aerial advertising was justified by an interest in preserving aesthetics and promoting

safety. See 455 F.3d at 922. The court noted that “[t]he government need not provide detailed proof

that the regulation advances its purposed interests of safety and aesthetics.” Id.

In Mocek v. City of Albuquerque, et al., 11-cv-1009, ECF No. 49 (D.N.M. Jan. 14, 2013), the

District of New Mexico held that a restriction of unauthorized photography and filming at an airport

terminal screening checkpoint was reasonable. Id. at 90-98. The court identified several interests

served by the restriction, including preserving the integrity of the screening process and preventing

disruption of passengers. See id. at 95-98. The court found that the restriction was all the more

reasonable because it did not ban filming altogether but allowed for authorized filming, see id. at 97-

98, and because it applied only to filming, not to other more expressive activities, id. at 98.21

21 The court in Mocek noted that the Tenth Circuit has not recognized a protected First Amendment right to record police officers in the course of their public duties. See id. at 91; Cf. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (noting a “First Amendment right to film matters of public interest”). However, the court assumed a First Amendment right was implicated in holding that the restriction at issue was nonetheless a permissible time, place, and manner restriction. See Mocek, 11-cv-1009, Doc. 49 at 90-99.


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CBP’s prohibition on unauthorized photography serves vital national interests particular to

CBP’s role in ensuring border security. See, e.g., Flores-Montano, 541 U.S. at 153 (2004) (noting

the federal government’s “paramount interest in protecting . . . its territorial integrity”); see also

Hale v. Dep’t of Energy, 806 F.2d 910, 917 (9th Cir. 1986) (holding that a restriction on

demonstrations at a nuclear weapons test site was reasonable due in part to the “obvious safety and

national security concerns associated with nuclear testing facilities”).

The policy is readily justified by CBP’s significant interests in preserving the integrity of its

sensitive border search techniques, law enforcement operations, and assistance in criminal

investigations. CBP’s central mission is to safeguard the American public against terrorism and to

prevent the entry into the country of narcotics, agricultural pests, and smuggled goods. See 6 U.S.C.

§§ 111, 202, 215, 251; CBP Snapshot, supra n.1. CBP fulfills that mission by utilizing, among other

things, sophisticated inspection technologies at ports of entry to detect contraband.22 Unauthorized

and unmonitored photography of CBP’s inspection process could enable individuals to document,

study, and thereby attempt to evade CBP’s sensitive inspection techniques. Additionally, CBP

conducts criminal investigations out of ports of entry related to contraband it discovers during its

inspections.23 Unauthorized and unmonitored photography of CBP’s operations could frustrate

sensitive on-going investigations.

CBP’s national directive on public affairs recognizes that access to CBP information and

operations must be tempered by “concerns for on-going investigations,” “operational factors,” and

“techniques and capabilities.” See CBP Directive No. 5410-001B, Part 3.1. Similarly, the ground

22 See Inspections and Surveillance Technologies, CBP.gov, Border Security, http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/port_security/fact_sheet_cbp_securing.xml. 23 See, e.g., CBP Leads National Operation Targeting Illicit Pharmaceuticals (Nov. 9, 2012), CBP.gov, National News Releases, http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/ 11082012.xml (describing a controlled delivery operation CBP coordinated with Homeland Security Investigations).


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rules issued by CBP’s San Diego Office of Field Operations highlight “concerns for . . . the integrity

of law enforcement and investigative activities.” Media Ground Rules at 1, supra p. 6. The rules

address these concerns by requiring any individual granted authorization to photograph or film on

ports of entry to be accompanied by a CBP officer at all times. See id. at ¶ 2. Additionally, the

ground rules restrict the filming of sensitive criminal investigation activities, see id. at ¶¶ 4-5,

including the extraction of contraband from vehicles, see id. at ¶ 7. And they prohibit the filming or

photography of port computer screens, which may contain law enforcement sensitive information.

See id. at ¶ 9.

CBP’s photography policy also addresses “concerns for the privacy of the traveling public.”

See id. Pursuant to the media ground rules, individuals authorized to film on ports of entry, when

filming law enforcement actions, must “ensure that suspects cannot be identified in photos or video.”

See id. at ¶ 4. They are prohibited from filming the questioning of suspects. See id. at ¶ 5. And they

may not take close-up photographs or videos of port computer screens because the screens may

contain sensitive information protected by privacy laws. See id. at ¶ 9. The media ground rules also

cite “officer safety” as a reason to restrict recognizable photography or film of a CBP officer without

the officer’s permission. See id. at ¶ 8.

CBP’s restriction on unauthorized photography is further justified by CBP’s interest in

protecting ports, and the public, from possible terrorist attacks. Ports of entry are integral to border

security and, in particular, to “[p]reventing the entry of terrorists and the instruments of terrorism

into the United States.” 6 U.S.C. § 202; see also id. §§ 111, 215, 251. Ports of entry therefore are

particularly likely to be targets of terrorist attack. Cf. Lavan v. City of Los Angeles, 693 F.3d 1022,

1029 n.8 (9th Cir. 2012) (recognizing a heightened government interest in protecting against terrorist

attacks at transportation hubs, including border crossings). Unrestricted photography on ports of

entry could aid in planning such an attack and therefore threatens port security.


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Finally, even putting aside the risk of terrorist attacks, unrestricted photography poses other

risks to the safe and efficient operation of ports. In Lee, the Supreme Court held that a prohibition of

solicitation at airport terminals was reasonable in part because solicitation could impede passengers

hurrying to catch a flight. See 505 U.S. at 683-84 (“Passengers who wish to avoid the solicitor may

have to alter their paths, slowing both themselves and those around them, . . . [such] that the normal

flow of traffic is impeded.”). Like airports, ports of entry are busy places with high volumes of

pedestrian and vehicular traffic. The Calexico West port of entry, for example, handles over thirty-

six thousand passenger vehicles and pedestrians on an average day.24 Allowing unaccompanied

individuals onto ports of entry to take pictures could disrupt traffic and lead to accidents. See, e.g.,

Complaint at ¶ 22 (plaintiff Mr. Askins alleges that he was on the shoulder of a street while taking

photographs). Even individuals otherwise on ports of entry for legitimate purposes could cause

disruption by stopping to take pictures. The San Diego Office of Field Operations’ ground rules

acknowledge concerns for “safety of visiting media representatives and the public.” Media Ground

Rules at 1, supra p. 6. They address those concerns by requiring authorized individuals to be

accompanied by CBP officers at all times, see id. at ¶ 2, and by directing visitors “to be alert at all

times and to follow orders from federal officers to prevent injury,” id. at ¶ 10.

In light of the significant border security interests served by CBP’s photography restriction,

and the fact that the restriction prohibits only unauthorized photography, CBP’s restriction satisfies

the reasonableness requirement applicable to restrictions of expression on a nonpublic forum.

2. Plaintiffs fail to state a claim that CBP’s prohibition of unauthorized photography is not viewpoint neutral

In addition to being reasonable, CBP’s policy is viewpoint neutral and appropriately limits

the discretion of CBP officials in granting authorization to photograph. “Viewpoint neutrality is the

24 See Calexico West Land Port of Entry, GSA, supra note11.


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requirement that government not favor one speaker’s message over another’s regarding the same

topic.” Flint, 488 F.3d at 833. CBP prohibits all unauthorized photography on ports of entry,

without regard to the views of the individual seeking to take pictures. See CBP Directive No.

54100-001B; Media Ground Rules. And in deciding whether to grant authorization to photograph,

CBP officials must act “without favoritism” and “provide timely and sufficient responses,” while

addressing concerns for on-going investigations, investigative techniques, privacy, and safety. See

CBP Directive No. 54100-001B, Part 3.1. CBP’s policy therefore appropriately constrains the

discretion of officials in granting authorization to photograph on ports of entry. Cf. Kaahumanu v.

Hawaii, 682 F.3d 789, 805-07 (9th Cir. 2012) (noting that “[i]n some contexts, the phrase ‘necessary

and appropriate’ may sufficiently constrain the authority of a permitting official”). CBP’s policy

“draws no lines by subject matter . . . or by viewpoint,” and is therefore “entirely neutral.” See Ctr.

for Bio-Ethical Reform, Inc., 455 F.3d at 921.

Plaintiffs have alleged no facts that draw into question the viewpoint neutrality of CBP’s

photography policy. Neither plaintiff alleges that he was prohibited from taking unauthorized

photographs as a result of his viewpoint. And any such allegation would be implausible in light of

CBP’s blanket prohibition on all unauthorized photography on land ports of entry. Also, neither

plaintiff alleges that he was unable to obtain authorization to photograph, let alone that any

authorization decision was based on viewpoint. Mr. Ramirez does not claim that he sought

authorization prior to attempting to photograph on the San Ysidro port of entry. See Complaint, ¶ 39

While Mr. Askins initially sought authorization to photograph on the Calexico port of entry, he

failed to wait for an official response to his request prior to attempting to photograph. Mr. Askins

alleges that he contacted CBP Officer Campos by phone on April 18, 2012, in order to seek

authorization to photograph on the Calexico port of entry. See Complaint, ¶ 20. But rather than wait

for an official response to his request, Mr. Askins photographed the Calexico port of entry the very


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next day. Id. at ¶¶ 21-22. Plaintiffs have therefore failed to state a claim that CBP’s policy is not

viewpoint neutral.

II. Plaintiffs Have Not Alleged A CBP Policy Or Officially Sanctioned Pattern of Behavior That Violates The Fourth Amendment

Plaintiffs also fail to allege facts sufficient to state a plausible claim that CBP violates the

Fourth Amendment through the detention of individuals who take unauthorized photographs on land

ports of entry. CBP’s written policy complies with the Fourth Amendment by authorizing the

detention of photographers only if the photographer has violated federal law. And plaintiffs have

failed to state a plausible claim that, despite CBP’s written policy, CBP officers violate the Fourth

Amendment in practice.

A. CBP’s Policy With Respect To Unauthorized Photography On Ports Of Entry Complies With The Fourth Amendment

CBP’s written policy complies with the Fourth Amendment by permitting the arrest of

individuals who take unauthorized photographs on ports of entry. Plaintiffs mistakenly claim that

the seizure and search of an individual who takes unauthorized photographs on a port of entry is not

justified by reasonable suspicion or probable cause. See Complaint at ¶¶ 63-64. GSA regulations

authorizes the arrest and search of an individual on port of entry property if an officer has probable

cause to believe that the individual has violated federal law. See 42 C.F.R. § 102-74.370

(authorizing agency officers to inspect the possessions of visitors to federal property, and to conduct

a full search incident to an arrest); CBP Directive No. 5410-001B, at part 6.2.4 (permitting detention

of a photographer who has violated federal law). Pursuant to GSA regulations, unauthorized

photography on a land port of entry constitutes a crime. See 41 C.F.R. §§ 102-74.420 (prohibition

on unauthorized photograph), 102-74.450 (imposing criminal penalties); see also United States v.

Brice, 926 F.2d 925, 930-31 (9th Cir. 1991) (upholding criminal conviction for violation of GSA’s

regulation prohibiting conduct disrupting a government employee); United States v. Stansell, 847


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F.2d 609, 612-16 (9th Cir. 1988) (upholding criminal conviction for violating GSA regulation

requiring compliance with posted signs and the directions of officers). Because the restriction of

unauthorized photography on land ports of entry is constitutional, the seizure and search of

individuals who violate that restriction is also constitutional.

An officer who observes an individual taking unauthorized photographs on a port of entry

has probable cause to believe that the individual has committed a crime. See United States v. Smith,

790 F.2d 789, 792 (9th Cir. 1986). (To determine whether there is probable cause, courts look to “the

totality of circumstances known to the arresting officer, [to determine if] a prudent person would

have concluded that there was a fair probability that [the suspect] has committed a crime.”). The

officer therefore may detain and question the individual, see, e.g. United States v. Crasper, 472 F.3d

1141, 1147 (9th Cir. 2007) (only reasonable suspicion required for an investigative stop), and may

arrest the individual, see Smith, 790 F.2d at 792. In appropriate circumstances, the officer may seize

the individual’s camera without a warrant pursuant to the plain view exception. See United States v.

Garcia, 205 F.3d 1182, 1187 (9th Cir. 2000) (warrantless seizure permissible if (1) the initial

intrusion is lawful, and (2) the incriminatory nature of the evidence is immediately apparent to the

officer). And, in appropriate circumstances, the officer may conduct a warrantless search of the

camera. See, e.g., United States v. Turner, 926 F.2d 883, 887-88 (9th Cir. 1991) (upholding

warrantless search as a search incident to an arrest); United States v. Pope, 686 F.3d 1078, 1084 (9th

Cir. 2012) (upholding warrantless search as justified by exigent circumstances). See also 41 C.F.R.

§ 102-74.370 (authorizing agency officers to conduct a full search incident to an arrest).

The reasonableness of CBP’s written policy is further supported by the government’s

heightened security interests and the public’s reduced privacy interests on ports of entry. The

government has a heightened interest in searching individuals who violate federal law on ports of

entry, due to implicated security interests that are not present in less sensitive locations. Ports of


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entry serve significant national security interests. See, e.g., United States v. Cortez-Rocha, 394 F.3d

1115, 1123-25 (9th Cir. 2005) (describing the important role of border security in preventing

terrorist attacks). Just as those interests justify broader government authority to conduct searches at

the border, see id. at 1125-26, they also warrant greater deference to seizures and searches necessary

to protect the security and operation of ports of entry, see Lavan, 693 F.3d 1022, 1029 n.8

(recognizing a heightened government interest in conducting searches at transportation hubs,

including border crossings). In addition, individuals on ports of entry have a diminished expectation

of privacy. Most individuals legitimately on ports of entry either are about to, or just have, crossed

the border, where they are subject to the government’s broad authority to conduct searches. See

Cortez-Rocha, 394 F.3d at 1125-26; see also United States v. Windsor, 846 F.2d 1569, 1577 (9th

Cir. 1988) (en banc) (listing cases, including a border search case, that involve “searches that

occurred in places where expectations of privacy are necessarily reduced”). And, even as to the

relatively rare individual legitimately on a port of entry for purposes other than crossing the border,

simply stepping on to GSA property exposes that individual to a possible inspection for security

purposes. See 41 CFR. § 102-74.370 (authorizing agency officers to inspect the possessions of

visitors to federal property); see also United States v. Aukai, 497 F.3d 955, 960-62 (9th Cir. 2007)

(en banc) (discussing constitutionality of administrative screening searches).

Because an individual who has taken unauthorized photographs on a port of entry has

committed a crime, CBP’s written policy permitting the detention and, in appropriate circumstances,

search of such an individual complies with the Fourth Amendment. CBP’s written policy is all the

more reasonable in light of the important government security interests and diminished privacy

interests implicated on ports of entry.


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B. Plaintiffs Have Not Stated A Plausible Claim That, Despite CBP’s Written Policy, CBP Officers Engage In A Pattern Of Officially Sanctioned Behavior That Violates The Fourth Amendment

Because CBP’s written policy complies with the Fourth Amendment, plaintiffs are not

entitled to equitable relief unless they can show that CBP officers engage in “a pattern of officially

sanctioned behavior” that violates the Fourth Amendment. See Melendres v. Aripaio, 695 F.3d 990,

997-98 (9th Cir. 2012) (quotation omitted). Plaintiffs’ allegations do not state a plausible claim of

such a pattern. Accordingly, plaintiffs have failed to allege “a sufficient likelihood of injury to

warrant equitable relief.” Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir. 1999).

CBP’s directive provides that CBP officers may detain a photographer and his or her

recording equipment only if the individual “has violated federal law, unlawfully breached the

security of a CBP facility, or has endangered the safety of CBP personnel.” CBP Directive No.

5410-001B, at part 6.2.4. Plaintiffs have not alleged facts that state a plausible claim that, despite

CBP’s written policy, CBP officers seize or search photographers without probable cause that the

individuals have committed a crime by taking unauthorized photographs on a land port of entry.

Although Mr. Askins alleges that he was photographing from off of port of entry property when he

was detained, judicially noticeable facts establish that he was in fact on port of entry property. See

supra note 15. In any event, plaintiffs’ allegation of a single instance of CBP officers detaining an

individual who took pictures from off of a port of entry cannot plausibly state a claim that CBP has

an officially sanctioned pattern of such detentions. Plaintiffs therefore have not stated a claim for

prospective relief addressing photography from off of ports of entry. See Hodgers-Durgin, 199 F.3d

at 1042-44. And plaintiffs lack standing to seek such prospective relief. See Melendres, 695 F.3d at

997-98 (“To have standing to assert a claim for prospective injunctive relief, a plaintiff must

demonstrate ‘that he is realistically threatened by a repetition of [the violation].’” (quoting City of

Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).


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Similarly, CBP’s written policy authorizes only the detention of recording equipment, not the

deletion of photographs. See CBP Directive No. 5410-001B, at part 6.2.4. In light of that policy,

plaintiffs’ allegations of two or three instances of deletion by CBP officers, even if accepted as true

for purposes of this motion, do not plausibly state a claim that CBP officers engage in an officially

sanctioned pattern of deleting photographs. Plaintiffs therefore have not stated a claim for

prospective relief addressing the deletion of photographs. See Hodgers-Durgin, 199 F.3d at 1042-

44. In any event, plaintiffs lack standing to seek such prospective relief because plaintiffs can avoid

any possible future injury simply by refraining from taking illegal unauthorized photographs on port

property. See Melendres, 695 F.3d at 998 (noting that “standing is not appropriate where a plaintiff

can avoid injury by avoiding illegal conduct”); Hodgers-Durgin, 199 F.3d at 1041-42 (same).

Plaintiffs’ allegations do not state a claim that CBP has a policy or officially sanctioned

pattern with respect to unauthorized photography that violates the Fourth Amendment. Accordingly,

plaintiffs’ claims for prospective relief pursuant to the Fourth Amendment must be dismissed.

CONCLUSION

For the reasons stated herein, defendants respectfully request that the Court grant defendants’

Motion to Dismiss plaintiffs’ claims against DHS and official-capacity defendants seeking injunctive

and declaratory relief.

DATED: February 13, 2013 Respectfully Submitted,

STUART F. DELERY Principal Deputy Assistant Attorney General

DIANE KELLEHER Assistant Director, Federal Programs Branch

s/ Patrick G. Nemeroff PATRICK G. NEMEROFF (CA Bar No. 268928) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 20 Massachusetts Avenue, NW


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Washington, DC 20001 202-305-8727 202-616-8470 (fax) [email protected]


STUART F. DELERY Principal Deputy Assistant Attorney General … · 2015-09-21 · RAY ASKINS, et...

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