Court in S.F. revives suit over photos at border
The public has a right to photograph law enforcement officers working in public places, a federal appeals court in San Francisco said Tuesday in reinstating a lawsuit by environmental and civil rights advocates whose photos at U.S. ports of entry in Southern California were confiscated and destroyed by the Border Patrol.
The case involved events in 2010 and 2012 and a government policy requiring advance permission from the Border Patrol to photograph people or activities at ports of entry. The patrol applied that policy to photos taken from public areas — in this case, from a nearby street and a pedestrian bridge.
A federal judge in San Diego dismissed the
advocates’ legal challenge, saying the photography restriction was justified by the need to protect border security and “United States territorial sovereignty.” But the Ninth U.S. Circuit Court of Appeals said those broad justifications might not apply to constitutionally protected activities, like photography, in areas traditionally open to the public.
“The First Amendment protects the right to photograph and record matters of public interest,” Judge Jay Bybee, one of the court’s most conservative members, said in a 3-0 ruling reinstating the suit. “This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.”
Bybee rejected government lawyers’ comparison of ports of entry to courthouses and jails, where photography is often restricted for reasons of security and privacy. He said more evidence was needed on the scope of the policy before determining its legality, but noted that streets and sidewalks have long been defined as a “traditional public forum” open to the “free exercise of expressive activities.”
The ruling reaffirms that “the First Amendment applies to all law enforcement,” including the Border Patrol, “and that calling something, quoteunquote, ‘the border’ doesn’t remove it from constitutional protection,” said Mitra Ebadolahi, an American Civil Liberties Union attorney representing the photographers in the case.
The Reporters Committee for Freedom of the Press and seven media organizations filed arguments supporting the lawsuit. Caitlin Vogus, a lawyer for the committee, said a ruling supporting the right to photograph at the border was timely because “immigration is a huge story.” If the Border Patrol objects to photography of some of its activities, she said, it can shield them from public view.
One plaintiff, Ray Askins, is an environmental advocate in Imperial County who went to the Calexico port of entry in April 2012 to photograph vehicles idling in inspection areas for a talk he was planning on the health impacts of border crossings. He said he took pictures of an inspection area from a public street 50 to 100 feet away before Border Patrol officers stopped him, threatened to smash his camera, handcuffed and searched him, and held him in custody for about a half hour while they deleted most of the photos.
The other plaintiff, Christian Ramirez, who works on human rights issues, said he was on a pedestrian bridge at the San Ysidro port of entry in San Diego County in June 2010 when he saw male Border Patrol officers at a security checkpoint searching and patting down only female travelers. He said he took about 10 photos from his cell phone before he and his wife were approached by security officers, followed by a group of Border Patrol officers who took his phone and deleted the pictures.
Since then, Ramirez said, the government has put up signs on the pedestrian bridge, a transit plaza and a footpath to the border — public areas within view of Border Patrol inspection zones — banning all photography.