Ray Askins v. Usdhs , 899 F.3d 1035 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAY ASKINS; CHRISTIAN RAMIREZ, No. 16-55719
Plaintiffs-Appellants,
D.C. No.
v. 3:12-cv-02600-
W-BLM
U.S. DEPARTMENT OF HOMELAND
SECURITY; DAVID SALAZAR,
Director, Calexico Port of Entry; OPINION
SIDNEY K. AKI, Director, San Ysidro
& Otay Mesa Ports of Entry; KEVIN
K. MCALEENAN, Commissioner of
United States Customs and Border
Protection,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted February 16, 2018
Pasadena, California
Filed August 14, 2018
2 ASKINS V. DHS
Before: Marsha S. Berzon and Jay S. Bybee, Circuit
Judges, and Sharon L. Gleason,* District Judge.
Opinion by Judge Bybee
SUMMARY**
First Amendment / Law of the Case Doctrine
The panel vacated the district court’s dismissal of an
amended complaint in which plaintiffs – advocates on border
policy issues whose photos of activities at U.S. ports of entry
on the United States-Mexico border were confiscated and
destroyed by U.S. Customs and Border Protection (“CBP”)
officers – alleged violations of their First Amendment rights,
and remanded for further proceedings.
The panel held that the law of the case doctrine did not
apply because the district court dismissed the First
Amendment claim in the initial complaint without prejudice,
and did not enter a final judgment. The filing of the amended
complaint did not ask the court to reconsider its analysis of
the initial complaint, and the district court should simply have
considered the amended complaint on its merits.
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ASKINS V. DHS 3
The panel held that the First Amendment protected the
right to photograph and record matters of public interest, and
whether a place was “public” depended on the nature of the
location. The panel also held that the district court’s holding
that the CBP policies were the least restrictive means of
serving a compelling government interest were conclusory
and insufficient to justify judgment for the government on a
motion to dismiss. The panel also held that it was the
government’s burden to prove that the specific restrictions
were the least restrictive means available, and general
assertions of national security were insufficient. The panel
concluded that plaintiffs adequately pleaded their claims; and
remanded for further factual development for the district
court to determine what restrictions, if any, the government
could impose in the public, outdoor areas where the photos
were taken.
COUNSEL
Mitra Ebadolahi (argued) and David Loy, ACLU Foundation
of San Diego & Imperial Counties, San Diego, California, for
Plaintiffs-Appellants.
Thomas G. Pullham (argued), Patrick G. Nemeroff, and Scott
McIntosh, Appellate Staff, Civil Division, United States
Department of Justice, Washington, D.C., for Defendants-
Appellees.
Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus
Curiae Cato Institute.
4 ASKINS V. DHS
Bruce D. Brown, Gregg P. Leslie, and Caitlin Vogus,
Reporters Committee for Freedom of the Press; J. Joshua
Wheeler, Thomas Jefferson Center for the Protection of Free
Expression & The University of Virginia School of Law First
Amendment Clinic, Charlottesville, Virginia; for Amici
Curiae Reporters Committee for Freedom of the Press and
7 Media Organizations.
OPINION
BYBEE, Circuit Judge:
Plaintiffs Ray Askins and Christian Ramirez are
advocates on border policy issues. In separate incidents,
while on public property, they took photographs of activities
at U.S. ports of entry on the United States–Mexico border.
Both were stopped and searched by officers of the United
States Customs and Border Protection (“CBP”), and their
photos were destroyed. According to CBP, Askins and
Ramirez were on CBP-controlled property when they took the
photos. Under CBP’s policies, members of the media must
obtain advance permission from CBP to photograph,
videotape, or film inside or outside of port of entry buildings.
Askins and Ramirez filed suit for violation of their First
Amendment rights and sought injunctive and declaratory
relief. The district court dismissed plaintiffs’ claims,
applying strict scrutiny and upholding CBP’s policies as the
least restrictive means of serving the compelling interest of
protecting the United States’s territorial sovereignty, but
granted leave to file an amended complaint. When plaintiffs
filed an amended complaint, the district court dismissed it as
barred by the law of the case doctrine.
ASKINS V. DHS 5
We conclude that it was error to apply the law of the case
doctrine on a motion to dismiss an amended complaint. On
the merits, we conclude that plaintiffs have stated First
Amendment claims upon which relief can be granted. We
vacate the judgment and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs’ suit stems from two separate incidents.
Because the district court dismissed plaintiffs’ suit on the
government’s motion to dismiss, for purposes of this appeal,
we must accept as true plaintiffs’ allegations in the amended
complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 907 (9th
Cir. 2012) (en banc).
A. The Incidents
1. Calexico West
Ray Askins is a U.S. citizen concerned with
environmental health hazards in Imperial County and near the
U.S.–Mexico border. He has a special interest in the effect of
emissions from vehicles idling in the inspection areas at the
ports of entry in California on air quality. In April 2012,
Askins sought to photograph the secondary vehicle inspection
area of the Calexico West port of entry in connection with a
conference presentation he was preparing on the health
impacts of border crossings. When Askins called CBP to
request permission, he was told by an officer that this would
be “inconvenient,” but his request was neither approved nor
denied. The next morning, he informed the officer by
voicemail that he would photograph the exit of the secondary
inspection area from the street outside instead. The exit of
the Calexico West secondary inspection area and a port-of-
6 ASKINS V. DHS
entry building exterior are visible from streets on or near the
port of entry and from the Genaro Teco Monroy Memorial
International Border Friendship Park, a small park.
On the afternoon of April 19, Askins stood at the
intersection of First Street and Paulin Avenue on the U.S. side
of the border, near the shoulder of the streets and immediately
in front of the park. He was approximately 50–100 feet from
the exit of the secondary inspection area, and he had not
crossed the border or otherwise passed through border
security to reach his location. Standing in the street, Askins
took three or four photographs of the exit of the secondary
inspection area. 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.
Askins alleges that he wishes to photograph “matters and
events exposed to public view from outdoor and exterior
areas of the Calexico port of entry” and “in the area
immediately surrounding the Calexico port of entry building,”
specifically, “vehicular traffic and CBP officers engaged in
the public discharge of their duties, in order to document air
and other environmental pollution as well as human rights
abuses.” He claims that he now refrains from doing so in
light of the CBP policies and the past enforcement of those
policies against him.
ASKINS V. DHS 7
2. San Ysidro
Christian Ramirez is a U.S. citizen and policy advocate
who works on human rights issues in border communities.
On June 20, 2010, Ramirez and his wife visited his father in
Mexico, parking on the U.S. side of the border and crossing
through the San Ysidro port of entry pedestrian entrance.
They crossed back into the United States later the same day.
After they had passed through inspection, the Ramirezes
crossed a pedestrian bridge over Interstate 5 to return to their
vehicle. While on the bridge, Ramirez observed male CBP
officers at a security checkpoint below inspecting and patting
down only female travelers. Concerned that the officers
might be acting inappropriately, Ramirez observed the
checkpoint from the bridge for ten to fifteen minutes and took
approximately ten photographs with his cellphone camera.
Ramirez and his wife were approached by men who
appeared to be private security officers. The men ordered
them to stop taking photographs. The officers also demanded
their identification documents, which Ramirez refused to
provide as they had already passed through border inspection.
The officers radioed for backup as Ramirez and his wife
walked away, and at the bottom of the bridge, Ramirez was
met by five to seven CBP officers. The CBP officers
questioned Ramirez, and, without Ramirez’s consent, a CBP
officer confiscated Ramirez’s cellphone and deleted all of the
photographs Ramirez had taken from the bridge. A U.S.
Immigration and Customs Enforcement officer confiscated
the Ramirezes’ passports and walked away, leaving Ramirez
surrounded by the CBP officers. After ten to fifteen minutes,
their documents were returned to them and the Ramirezes
were allowed to leave.
8 ASKINS V. DHS
The pedestrian bridge from which Ramirez took the
photographs has since been replaced. The new bridge runs
east to west, passing over Interstate 5 to connect the San
Ysidro Boulevard transit plaza and Camiones Way, both on
the U.S. side of the border. Plaintiffs allege that the bridge
“is open to and used by the public to cross over Interstate 5,”
and that “members of the public can and do frequently cross
the bridge without crossing the border or entering or exiting
any port of entry building.” The outdoor vehicle inspection
areas in which CBP conducts primary and secondary
inspections at the San Ysidro port of entry are visible from
the new bridge. Ramirez alleges that he wishes to photograph
“matters exposed to public view, including CBP officers
engaged in the public discharge of their duties” from the new
pedestrian bridge, the San Ysidro Boulevard transit plaza, and
a footpath leading from the transit plaza to the border. U.S.
government signs posted at these locations prohibit any form
of photography. Ramirez claims that he now refrains from
documenting matters and events visible from those locations
in light of the CBP policies and the past enforcement of those
policies against him.
B. The Suit
1. The Initial Complaint
Plaintiffs filed suit in October 2012 against the
Department of Homeland Security, named officials of CBP,
and 50 unnamed CBP officers. Plaintiffs claimed that CBP’s
policies and practices violated their First and Fourth
Amendment rights and sought declaratory and injunctive
relief, damages, and costs and attorneys’ fees. The
government moved to dismiss under Rule 12(b)(6) and
brought to the court’s attention two CBP policies: CBP
ASKINS V. DHS 9
Directive No. 5410-001B (Mar. 18, 2009) (“Directive”), a
national policy “defin[ing] guidelines relating to the
disclosure of official [CBP] information to accredited news
organizations, mass media, published professional journals,
and stakeholder groups,” and CBP’s “Ground Rules for News
Media Representatives when Visiting Southern California
Ports of Entry” (“Ground Rules”). The government argued
that, under these policies, any individual seeking to film or
take photographs at ports of entry is required to obtain prior
authorization.
The district court held that plaintiffs had sufficiently
alleged the policies were content-based restrictions on speech
in a public forum, triggering strict scrutiny. But the court
decided that the policies survived strict scrutiny because they
serve “perhaps the most compelling government interest:
protecting the territorial integrity of the United States” and
there were no less restrictive alternatives. The district court
granted the motion to dismiss with leave to amend “with
respect to the constitutionality of the CBP photography
policy.”
2. The Amended Complaint
Plaintiffs filed an amended complaint in 2015 against the
U.S. Department of Homeland Security, the Commissioner of
U.S. Customs and Border Protection, and the directors of
Calexico West and San Ysidro ports of entry. Plaintiffs
omitted any claims based on the Fourth Amendment, dropped
their claims for damages, and did not sue the unnamed CBP
officers. Plaintiffs also formally challenged the CBP policies
identified by the government under the First Amendment.
First, they challenge the policies on their face as prior
restraints. Second, they challenge the policies as
10 ASKINS V. DHS
unreasonable as applied to them. The policies, which we
refer to as the “Directive” and the “Ground Rules,” require
members of the media to obtain advance permission to
document events at ports of entry.
Under the Directive, “CBP shall cooperate with
accredited local, national, and foreign news organizations,
without favoritism, in the dissemination of official
information while not compromising the DHS/CBP mission.”
Section 6.2 provides procedures for media requests to
photograph suspects and states that “[d]ecisions to allow any
photographing, videotaping or filming by the media at CBP
facilities shall be made in consultation with the appropriate
Public Affairs Specialist and with the concurrence and control
of the appropriate CBP supervisor.” It also provides that
“[p]hotographing of suspects/detainees by news organizations
in public places or in transit is neither encouraged nor
discouraged,” and instructs CBP that “[w]hen news
organizations arrive at the scene of an enforcement action in
progress without prior CBP knowledge, CBP personnel shall
not interfere with photographing suspects in public places or
in transport.” The Directive prohibits the “[d]etention of
persons or media and/or the detention of recording
equipment, film or notes . . . unless the owner or operator of
such materials has violated federal law, unlawfully breached
the security of a CBP facility, or has endangered the safety of
CBP personnel.”
The Ground Rules, which apply to the ports of entry
involved here, are directed towards “accredited news media
representatives” and are motivated by “concerns for the
privacy of the traveling public, integrity of law enforcement
and investigative activities, and safety of visiting media
representatives and the public.” They require “members of
ASKINS V. DHS 11
the press who desire to film, conduct interviews or engage in
any other media activity” to “clear their visit in advance with
appropriate CBP officials.” Under the Ground Rules,
“[r]eporters who do not have such clearance may be denied
access to port property,” and “photographers and camera
crews” must “be escorted by a designated officer at ALL
times while on port property,” without exception. The
Ground Rules prohibit photography in “non-public spaces
such as the pat down room and holding cells” and
“merchandise storage areas,” “close-up” photographs of “port
computer screens,” and recognizable photographs of CBP
officers without their permission “[f]or reasons of officer
safety.”
Plaintiffs allege that CBP interprets and enforces these
policies as a total ban on all photography by any person from
any area within a port of entry without prior authorization
from CBP. Plaintiffs do not challenge CBP’s restrictions on
photography within CBP facilities, such as buildings and
inspection areas. Rather, plaintiffs allege that there are “large
swaths of property” owned or leased by CBP that are public
streets and sidewalks, that these constitute traditional public
fora, and that CBP enforces its no-photography policies
within these areas in violation of the First Amendment.
The government moved to dismiss the amended
complaint for failure to state a claim. The district court held
that it was “precluded” by the law of the case doctrine from
revisiting its prior order. Because plaintiffs brought “the
identical issue,” but failed to “identify any clear error,
intervening change in law, new evidence, changed
circumstances, or manifest injustice resulting from the
previous decision,” “[t]he law of the case bar[red] Plaintiffs’
12 ASKINS V. DHS
claims.” The district court entered judgment for the
government. Plaintiffs timely appealed.1
II. ANALYSIS
Plaintiffs raise two questions on appeal. First, whether
the law of the case doctrine applies in this case. Second,
whether, on the merits, the district court properly dismissed
their suit. We address each issue in turn.
A. The Law of the Case Doctrine
“The law-of-the-case doctrine generally provides that
‘when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the
same case.’” Musacchio v. United States, 136 S. Ct. 709, 716
(2016) (quoting Pepper v. United States, 562 U.S. 476, 506
(2011)). The district court determined that it was “precluded”
from reconsidering its order dismissing the original First
Amendment claims in adjudicating the motion to dismiss the
amended First Amendment claims, absent a showing that
“1) the first decision was clearly erroneous; 2) an intervening
change in the law has occurred; 3) the evidence on remand is
substantially different; 4) other changed circumstances exist;
or 5) a manifest injustice would otherwise result.” United
States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998).
1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We ordinarily
review a district court’s application of the law of the case doctrine for
abuse of discretion. United States v. Lummi Indian Tribe, 235 F.3d 443,
452 (9th Cir. 2000). However, because the final judgment of the district
court resulted in dismissal of an amended complaint, we review de novo.
Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d
1286, 1291 (9th Cir. 2015) (“We review the district court’s dismissal of
the complaint under Rule 12(b)(6) de novo.”).
ASKINS V. DHS 13
Reasoning that the amended claims raised the same issue as
the original claims—the constitutionality of the CBP
policies—the court held that the claims were barred because
plaintiffs failed to “identify any clear error, intervening
change in law, new evidence, changed circumstances, or
manifest injustice resulting from the previous decision.”
The law of the case doctrine does not preclude a court
from reassessing its own legal rulings in the same case. The
doctrine applies most clearly where an issue has been decided
by a higher court; in that case, the lower court is precluded
from reconsidering the issue and abuses its discretion in
doing so except in the limited circumstances the district court
identified. See, e.g., Cuddy, 147 F.3d at 1114; United States
v. Miller, 822 F.2d 828, 832 (9th Cir. 1987) (“The rule is that
the mandate of an appeals court precludes the district court on
remand from reconsidering matters which were either
expressly or implicitly disposed of upon appeal.”); United
States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (“The
legal effect of the doctrine of the law of the case depends
upon whether the earlier ruling was made by a trial court or
an appellate court. . . . A trial court may not, however,
reconsider a question decided by an appellate court.”).
A court may also decline to revisit its own rulings where
the issue has been previously decided and is binding on the
parties—for example, where the district court has previously
entered a final decree or judgment. See Lummi Indian Tribe,
235 F.3d at 452–53 (holding that district court did not abuse
its discretion to invoke law of the case where its prior
decision interpreted 1974 Indian fishing rights decree). The
law of the case doctrine does not, however, bar a court from
reconsidering its own orders before judgment is entered or the
court is otherwise divested of jurisdiction over the order. See
14 ASKINS V. DHS
City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882,
888–89 (9th Cir. 2001); Houser, 804 F.2d at 567; see also
Fed. R. Civ. P. 54(b) (“[A]ny order or other decision,
however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and
liabilities.”).
The law of the case doctrine does not apply here. The
district court dismissed plaintiffs’ First Amendment claim,
but without prejudice; it did not enter a final judgment in the
case. It specifically granted plaintiffs leave to amend “with
respect to the constitutionality of the CBP photography
policy.” Accepting the district court’s invitation, plaintiffs
filed an amended complaint, and included facts and claims
that were different from those in the initial complaint.
Instead of ruling on the merits of the government’s motion to
dismiss the amended complaint, the district court invoked the
law of the case doctrine, holding that it was “precluded” from
considering the amended complaint. This was error.
Once the plaintiff elects to file an amended complaint, the
new complaint is the only operative complaint before the
district court. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
Cir. 1992) (“[A]fter amendment the original pleading no
longer performs any function and is treated thereafter as non-
existent[.]” (internal quotation marks omitted)). Thus, when
an original complaint is dismissed without prejudice, the
filing of an amended complaint does not ask the court to
reconsider its analysis of the initial complaint. The amended
complaint is a new complaint, entitling the plaintiff to
judgment on the complaint’s own merits; we do not ask
whether the plaintiff is “precluded” or “barred” by the prior
ASKINS V. DHS 15
ruling. When the defendant files a motion to dismiss the
amended complaint, it may urge the district court to
determine that the plaintiff’s amended complaint did not cure
the deficiencies of the initial complaint. If the district court
determines the amended complaint is substantially the same
as the initial complaint, the district court is free to follow the
same reasoning and hold that the amended claims suffer from
the same legal insufficiencies. The district court is not,
however, bound by any law of the case. The district court
may decide the second motion to dismiss in the same way it
decided the first, but permitting the filing of an amended
complaint requires a new determination. That leaves the
district court free to correct any errors or misunderstandings
without having to find that its prior decision was “clearly
erroneous.” Cuddy, 147 F.3d at 1114. By contrast, where a
final legal determination has been made by a higher court, or
by the district court in the same or a related case, the law of
the case doctrine allows the court to impose a heightened
burden on the plaintiff—to show clear error, changed law,
new evidence, changed circumstances, or manifest injustice.
Id.Here, the district court erred in dismissing plaintiffs’
amended complaint as barred by the law of the case doctrine.
By invoking the law of the case doctrine, the district court
held plaintiffs to a higher standard than if they had pleaded
their amended complaint originally. The district court should
simply have considered the amended complaint on its merits.
As the district court granted plaintiffs leave to file the
amended complaint and both orders are before us on appeal,
we have the discretion to proceed to consider de novo
whether plaintiffs state a claim in their amended complaint.
16 ASKINS V. DHS
B. Plaintiffs’ First Amendment Claims
In their amended complaint, plaintiffs claim that CBP’s
policies impose unconstitutional restrictions on their First
Amendment right to photograph and record CBP officers
engaging in the public discharge of their official duties. They
contend that the policies impose a prior restraint and prevent
the documentation of civil and human rights abuses,
including the excessive use of force and racial or religious
profiling, at the border. They do not seek unrestricted access
to all areas of ports of entry or unlimited photography
privileges, but rather assert a right to photograph only those
matters that are “exposed to public view from exterior or
outdoor areas of the Calexico and San Ysidro ports of entry.”
Plaintiffs have alleged that these areas, even if leased or
owned by CBP, are public streets and sidewalks that must be
considered public fora.
The First Amendment protects the right to photograph and
record matters of public interest. See Animal Legal Def. Fund
v. Wasden, 878 F.3d 1184, 1203–04 (9th Cir. 2018); Fordyce
v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); cf.
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–62
(9th Cir. 2010) (holding that the process of creating pure
speech is entitled to the same First Amendment protection as
the product of that process). This includes the right to record
law enforcement officers engaged in the exercise of their
official duties in public places. See Fordyce, 55 F.3d at 439;
see also, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th
Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)
(recognizing “that the First Amendment protects the filming
of government officials in public spaces”); Smith v. City of
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First
Amendment protects the right to gather information about
ASKINS V. DHS 17
what public officials do on public property, and specifically,
a right to record matters of public interest.”).
Whether a place is “public” depends on the nature of the
location. The government’s ability to regulate speech in a
traditional public forum, such as a street, sidewalk, or park,
is “sharply circumscribed.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983). Content-based
restrictions on speech are subject to strict scrutiny and may
only be upheld if they are “the least restrictive means
available to further a compelling government interest.”
Berger v. City of Seattle, 569 F.3d 1029, 1050 (9th Cir. 2009)
(en banc). Reasonable, content-neutral, time, place, or
manner restrictions, on the other hand, are subject to “an
intermediate level of scrutiny.” Jacobson v. U.S. Dep’t of
Homeland Sec., 882 F.3d 878, 882 (9th Cir. 2018) (quoting
Int’l Soc’y for Krishna Consciousness of Cal., Inc. v. City of
L.A., 764 F.3d 1044, 1049 (9th Cir. 2014)). They are
permitted in public fora so long as they are “narrowly tailored
to serve a significant governmental interest,” “leave open
ample alternative channels for communication of the
information,” and do “not delegate overly broad licensing
discretion to a government official.” Long Beach Area Peace
Network v. City of Long Beach, 574 F.3d 1011, 1023–24 (9th
Cir. 2009) (quoting Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984); Forsyth Cty. v.
Nationalist Movement, 505 U.S. 123, 130 (1992)). In
contrast, restrictions on speech in a nonpublic forum must
only be “reasonable in light of the purpose served by the
forum and viewpoint neutral.” Jacobson, 882 F.3d at 882
(internal quotation marks omitted) (quoting Int’l Soc’y for
Krishna Consciousness, 764 F.3d at 1049).
18 ASKINS V. DHS
The district court assumed, for purposes of deciding the
government’s first motion to dismiss, that the areas adjacent
to Calexico West and San Ysidro were public fora and that
CBP’s restrictions were content based. That meant the
government had the burden of demonstrating that its
restrictions on speech were the least restrictive means
necessary to serve a compelling government interest.2 The
district court found that the CBP policies survived strict
scrutiny because of “the extremely compelling interest of
border security” and the government’s general interest in
“protecting United States territorial sovereignty.” To this, the
government adds that the CBP policies serve compelling
government interests in protecting CBP’s law enforcement
techniques and the integrity of on-going investigations;
protecting the privacy of travelers, suspects, and sensitive
digital information; ensuring the safe and efficient operation
of the ports of entry; and protecting against terrorist attacks.
In conclusory fashion, the district court held that the policies
were the least restrictive means of serving these interests.
These conclusions are too thin to justify judgment for the
government on a motion to dismiss. “When the Government
restricts speech, the Government bears the burden of proving
the constitutionality of its actions.” United States v. Playboy
2
On appeal, the government attempts to avoid the forum framework
altogether by framing this as a First Amendment right of access to
government proceedings case. The government likens photography of
proceedings at ports of entry to access to courtroom proceedings, jails,
town halls, and executions. This analysis might be relevant if plaintiffs
challenged the policies’ restrictions on photography of CBP computer
screens, secured or interior areas of the port of entry, or holding cells. But
the right asserted by plaintiffs in this case is that of speech on matters
exposed to public view—not the right of access to government-controlled
information or to areas not freely open to the public.
ASKINS V. DHS 19
Entm’t Grp., Inc., 529 U.S. 803, 816–17 (2000); accord Reno
v. ACLU, 521 U.S. 844, 879 (1997) (“The breadth of this
content-based restriction of speech imposes an especially
heavy burden on the Government to explain why a less
restrictive provision would not be as effective[.]”); Berger,
569 F.3d at 1035. “It is rare that a regulation restricting
speech because of its content will ever be permissible.”
Playboy Entm’t Grp., 529 U.S. at 818; see also Berger,
569 F.3d at 1052–53. Without question, protecting our
territorial integrity is a compelling interest that could justify
reasonable restrictions on speech activities at ports of entry.
See United States v. Flores-Montano, 541 U.S. 149, 152
(2004) (“The Government’s interest in preventing the entry
of unwanted persons and effects is at its zenith at the
international border.”). But the devil lies in the details:
“Even at the border, we have rejected an ‘anything goes’
approach.” United States v. Cotterman, 709 F.3d 952, 957
(9th Cir. 2013) (en banc). It is the government’s burden to
prove that these specific restrictions are the least restrictive
means available to further its compelling interest. They
cannot do so through general assertions of national security,
particularly where plaintiffs have alleged that CBP is
restricting First Amendment activities in traditional public
fora such as streets and sidewalks.
Moreover, determining whether a location is properly
categorized as a public forum involves largely factual
questions. We have adopted “a fact-intensive, three-factor
test to determine whether a location is a public forum in the
first instance.” Jacobson, 882 F.3d at 883. We consider
“1) the actual use and purposes of the property, particularly
[its] status as a public thoroughfare and availability of free
public access to the area; 2) the area’s physical
characteristics, including its location and the existence of
20 ASKINS V. DHS
clear boundaries delimiting the area; and 3) traditional or
historic use of both the property in question and other similar
properties.” ACLU of Nev. v. City of Las Vegas, 333 F.3d
1092, 1100–01 (9th Cir. 2003) (citations omitted).
How these factors apply here cannot be answered without
development of the record and separate consideration of the
Calexico West and San Ysidro ports of entry. At Calexico
West, Askins took photographs from the shoulder of two
streets and will continue to photograph the exterior areas of
the port of entry from those streets, the nearby park, and other
public, outdoor locations. It appears from the one photograph
that we have in the record that the streets on which Askins
stood are indistinguishable from other Calexico city streets,
and the amended complaint indicates that there are no signs
or other indicators marking the port of entry boundaries.
Furthermore, the Genaro Teco Monroy Park abuts those
streets, and the government concedes the park is not part of
the port of entry—which means that Askins presumably could
have taken the same photographs of Calexico West had he
only taken a couple of steps back from the street into the
park.
“Public streets and sidewalks” are “the archetype of a
traditional public forum.” Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir.
2011) (quoting Snyder v. Phelps, 562 U.S. 443, 456 (2011));
accord United States v. Grace, 461 U.S. 171, 177 (1983)
(noting that “‘public places’ historically associated with the
free exercise of expressive activities, such as streets,
sidewalks, and parks, are considered, without more, to be
‘public forums’”); ACLU of Nev., 333 F.3d at 1101 (“[W]hen
a property is used for open public access or as a public
thoroughfare, we need not expressly consider the
ASKINS V. DHS 21
compatibility of expressive activity because these uses are
inherently compatible with such activity.”). Even if we were
to assume these areas are part of the port of entry, we would
need to know much more about the port of entry’s boundaries
and the public’s access to and use of Calexico West’s streets
and sidewalks before we could decide the relative importance
of banning photography from those streets and sidewalks.
See Grace, 461 U.S. at 179–80 (emphasizing that there was
“no separation, no fence, and no indication whatever to
persons stepping from the street to the curb and sidewalks
that serve as the perimeter of the Court grounds that they
have entered some special type of enclave” in holding that
sidewalks bordering the Supreme Court building are a public
forum); Jacobson, 882 F.3d at 883.
San Ysidro presents a different set of circumstances.
Ramirez took photographs of the San Ysidro port of entry
from a pedestrian bridge and wishes to take photographs from
the new pedestrian bridge, a transit plaza, and the adjacent
sidewalk. Unlike the streets adjacent to the Calexico West
port of entry, we are told there are signs prohibiting
photography on the pedestrian bridge overlooking the San
Ysidro port of entry. The government compares ports of
entry to military bases, airport terminals, and interstate rest
areas, portions of which have been held to be nonpublic fora.
See Int’l Soc. for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 679 (1992) (airport terminals); Greer v. Spock,
424 U.S. 828, 838 (1976) (military bases); Jacobsen v.
Bonine, 123 F.3d 1272, 1274 (9th Cir. 1997) (rest areas). But
the boundaries of the San Ysidro port of entry are neither
established by the record nor a matter of which we can take
judicial notice. And even accepting that the San Ysidro port
of entry facilities are a nonpublic forum, the public’s access
to and use of the transit plaza, sidewalks, and other outdoor
22 ASKINS V. DHS
areas is critical to determining whether they retain their
public fora status. See Jacobson, 882 F.3d at 884 (“The
limited information in the record regarding the layout and use
of the checkpoint area leaves many questions unanswered
about the specific uses of areas outside the primary and
secondary inspection zones.”); see also Flower v. United
States, 407 U.S. 197, 198–99 (1972) (per curiam) (holding
that First Amendment protections applied equally on city
streets and an open, unguarded street regularly used by
civilians that passed through a military base).
We do not mean to suggest that all or even any areas
within a port of entry are necessarily public fora, or that
allowing the public to transit through a port of entry for the
purpose of crossing the border creates a public forum. We
decide today only that plaintiffs have adequately pleaded their
claims and that further factual development is required
before the district court can determine what restrictions, if
any, the government may impose in these public, outdoors
areas.3
3
We also anticipate that the parties will help illuminate why CBP’s
Directive and Ground Rules are even relevant to this case. Both written
policies apply to “accredited” news organizations and representatives
seeking advance approval for visits to CBP facilities. The Directive states
that “[p]hotographing of suspects/detainees by news organizations in
public places or in transit is neither encouraged nor discouraged” and
provides that CBP personnel will “not interfere with photographing
suspects in public places.”
Similarly, the Ground Rules provides that “[r]eporters” who do not
obtain advance permission may be denied entry and that members of the
media who are admitted to port property must be accompanied. The
Ground Rules prohibit photography in “non-public-spaces such as the pat
down room and holding cells.”
ASKINS V. DHS 23
III. CONCLUSION
For the foregoing reasons, we VACATE the district
court’s dismissal of plaintiffs’ First Amended Complaint and
REMAND for further proceedings. Costs shall be taxed
against Defendants-Appellees.
We are puzzled as to how these guidelines apply to members of the
public, whether media or not, who take photographs outside of port of
entry facilities from streets and sidewalks accessible to the general public,
whether those streets and sidewalks are on or off the port of entry. On
their face, the policies would not appear to apply to plaintiffs at all, much
less sanction the detention of plaintiffs and the destruction of their
photographs under the circumstances alleged.