PEOPLE HAVE RIGHTS TO RECORD OFFICERS, EVEN AT THE BORDER
People have the right to record law enforcement officers, especially when those officers may be involved in wrongdoing in public view, whether they are in a city street or at the border.
The right to record is critical for holding law enforcement accountable for abuses, but it took a federal lawsuit and landmark settlement in September 2020 to get the federal government to concede that there is no border exception to this First Amendment right.
The 2012 lawsuit, filed by the American Civil Liberties Union and Morrison & Foerster — and later joined by Arnold & Porter Kaye Scholer — stemmed from several incidents that occurred more than a decade ago.
In one of those incidents, Christian Ramirez, a longtime community organizer and human rights advocate, was walking across the border at the San Ysidro Port of Entry in June 2010 when he noticed male Customs and Border Protection (CBP) officers patting down female travelers. Concerned with this inappropriate conduct, Ramirez took a series of photos on his cell phone.
Soon after capturing the photos, a security officer approached Ramirez and told him to stop taking photographs. The officer escorted him to a group of waiting federal officials, who aggressively accosted Ramirez, seized his phone and deleted the photos he had just taken.
The incident occurred less than a month after CBP officers at the same port allegedly brutally beat and repeatedly stun-gunned Anastasio Hernández Rojas. Hernández Rojas later died in the hospital. Immediately after the beating, CBP officers forced people at the scene to erase cell phone videos they had taken.
These incidents were part of an alarming — and unconstitutional — trend of CBP prohibiting the use of cameras and video recording devices at or near CBP-controlled facilities, like U.S. ports of entry, particularly to deter individuals from documenting misconduct by CBP officers and destroying evidence of that misconduct. This trend is even more worrisome given that CBP, including its subcomponent agency, the U.S. Border Patrol, is widely considered to be one of the nation’s deadliest and most rogue law enforcement agencies.
In the lawsuit, Askins et al. v. U.S. Department of Homeland Security et al., attorneys represented Ramirez and Ray Askins, an environmental advocate in Imperial County whose photos of the Calexico Port of Entry were deleted by CBP officials in April 2012.
Despite CBP’s insistence that the right to photograph and record matters of public interest exposed to public view from outdoor and otherwise unrestricted areas did not apply to any place the federal government unilaterally designated as “the border,” the lawsuit ultimately resulted in a settlement agreement rejecting that argument.
The Askins settlement is an important step in safeguarding the public’s critical First Amendment right to monitor and document law enforcement conduct and an important tool in holding CBP officials accountable for their abuses and misuse of power. It is especially important now that people are being denied their right to seek asylum in the U.S. — often by CBP officers physically, sometimes forcefully, keeping people away from ports of entry.
The settlement helps protect people’s right to photograph and record by:
Affirming that the public has the right to take photographs, video recordings or other recordings of law enforcement activity from a “publicly accessible area” at any land port of entry in the United States without U.S. government officials’ interference (a publicly accessible area is any outdoor area at a port of entry where a person can be regardless of whether they intend to cross the border);
Prohibiting U.S. government officials from unlawfully seizing, deleting, destroying, altering or otherwise inhibiting a person’s access to photographs or recordings taken from publicly accessible areas;
Ensuring that U.S. government officials may not require members of the public to obtain prior authorization to record and document at the border — meaning that members of the public have the right to document and record abuses they witness in real time without needing the government’s prior consent; and
Making it clear that taking photos or other recordings from publicly accessible areas at U.S. land ports of entry is not unlawful activity. Under the settlement, U.S. government officials can restrict photography or recording in “restricted access areas,” such as an area within the port of entry that is regularly used to process or inspect individuals or vehicles crossing the border, or inside port buildings.
Anyone who believes their right to photograph and record government activity in public view at or near land ports of entry in the United States has been violated, should contact the ACLU by visiting: action.aclu.org/ webform/help-us-hold-cbp-officials-accountable.
Government consent is not required for the public to act as a watchdog.
Child is the legal fellow at ACLU of San Diego & Imperial Counties and lives in North Park. Vakili is the interim legal director and lives in Encinitas.