ACTIVISTS: SIGNS AT BORDER UNCLEAR ON PHOTOS, VIDEO
Settlement affirms right to document in public areas at ports of entry
Christian Ramírez had just crossed back into the U.S. from Mexico at the San Ysidro Port of Entry with his wife when they saw male border officials patting down female travelers.
Ramírez, a longtime border activist, instinctually took out his cellphone and began snapping photos. But he was quickly stopped by private security officials on the pedestrian bridge and soon after surrounded by a group of Customs and Border Protection officials. They confiscated his cellphone and deleted all of the images he had taken from the bridge, according to court records.
The 2010 incident became the basis of a First Amendment lawsuit that challenged the government’s restrictions of filming and photographing near official border crossings. Ten years later — and after two dismissals and a federal appellate ruling — the case resulted in a settlement that forces CBP to acknowledge the rights of people to document activity in public spaces.
“Just to illustrate how long this has been dragging on ... the electronic device that I had on me at the time was a Blackberry, so that tells you that this has been going on for many years now,” Ramírez, the human rights director at Alliance San Diego, said in a recent interview. “But it was well worth it.”
The 2020 legal settlement between the American Civil Liberties Union and CBP says the agency can no longer restrict people from filming and taking photos outside of U.S. land ports of entry, but local activists say new signage at the U.S.-Mexico border required under the terms of the agreement doesn’t go far enough to highlight the substantial change.
“I would say there was always a First Amendment right to record at the port of entry, but the federal government refused to acknowledge that First Amendment right, and the settlement forces them to do so,” said Mitra Ebadolahi, a former border litigation project staff attorney at the ACLU who handled the case. Her work focused on identifying, documenting and
litigating alleged human and civil rights violations along the U.S.-Mexico border.
The settlement specifies that CBP “shall not prevent, impede or otherwise interfere with the First Amendment rights of members of the public to make and retain photographs, video records or other recordings of matters or events from a publicly accessible area ... at any land port of entry in the United States, except as permitted in the (settlement).”
A sign posted outside a San Ysidro pedestrian bridge is less direct and includes language that indicates “written permission of an authorized official” might be required in certain instances, such as restricted areas. However, the federal regulation cited on the sign does not supersede the settlement or the First Amendment, as applied to the public, Ebadolahi stressed.
“If you are outside, in a publicly accessible area, you have a First Amendment right to take photographs and record,” explained Ebadolahi, clarifying you do not have to get any special written permission. The restricted areas include indoor areas or areas only accessible as you cross the border.
Ray Askins, a border environmentalist and another plaintiff in the lawsuit, sent the Union-Tribune a photo of the Calexico border crossing on Tuesday that he said shows some of the old signage still posted and incorrectly reflecting outdated language that filming at the border is prohibited without prior permission.
“CBP did not take this agreement seriously, changing the verbiage marked on some signs, and leaving other signs unchanged,” Askins said. “My feelings are mixed knowing no meaningful agreement was reached. The United States Constitution and the First Amendment was violated.”
Askins, who is concerned about vehicle emissions at border crossings, wanted to take a photograph of a vehicle inspection area in April 2012 at the port of entry in Calexico for a conference presentation.
He called CBP, and, according to court documents, was told his request would be “inconvenient.”
He ended up taking three or four photos from an intersection near the port before CBP officials demanded that he delete the images, the lawsuit states.
When he refused, the officials threatened to smash his camera and then handcuffed him, confiscating his camera and holding him in a port inspection area, according to court documents. He was released about a halfhour later after CBP deleted all but one of his photos.
Askins said some signs posted in Calexico have conflicting and confusing language. Ebadolahi, the attorney, said the wording in the signs is not ideal, but more work needs to be done educating the public about what their rights are.
“The signs can’t be the end-all, be-all,” she added.
In response to questions about the signs and settlement terms, a CBP spokesperson released a statement that said: “Customs and Border Protection made the changes in signage that were agreed upon as part of the settlement by February of 2021. CBP also has notified its employees of the terms of the settlement, including that, except as provided in the settlement, they may not interfere with visual or audio recording in outdoor, publicly accessible areas at our land ports.”
Activists and legal experts say the settlement could have far-reaching impacts — both in documenting or preventing potential law enforcement abuse and in establishing that the federal government can’t make special rules within certain undefined zones that ignore constitutional rights.
The issue predates smartphones, when instead of telling people to delete images, border agents would rip up videotapes and camera film of activists or journalists seen documenting activity in the port of entry areas. In at least one instance, which is not part of the litigation, private security guards made a journalist read aloud the signage that they said showed he could not take photos.
Activists and legal experts point to the case of Anastasio Hernández-Rojas, who was fatally beaten and shot with a Taser in 2010 while being deported to Mexico, as being emblematic of what’s at stake. Witnesses nearby captured part of the arrest on video.
“They claimed that he had been resisting, and that he was violent and that he was a threat to the agents and officers,” said Ebadolahi, “and then this video comes out that shows they had hogtied him, he’s prone on his belly and they’re tasing him over and over again, and he dies of a heart attack. It’s so egregious.”
In 2017, a federal judge approved the U.S. government’s offer to pay $1 million to Hernández-Rojas’ children to settle a lawsuit.