Jacobson v. U.S. Dep't of Homeland Sec.

• Decision Date: 13 February 2018
• Docket Number: No. 16-17199,16-17199
• Citation: 882 F.3d 878
• Parties: Leesa JACOBSON; Peter Ragan, Plaintiffs–Appellants, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; United States Customs and Border Protection ; United States Office of Border Patrol; Kirstjen M. Nielsen, Acting Secretary, United States Department of Homeland Security, in her official capacity; Kevin K. McAleenan, Acting Commissioner, United States Customs & Border Protection, in his official capacity; Carla L. Provost, Acting Chief of the United States Border Patrol, in her official capacity; Jeffrey Self, Commander, Arizona Joint Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent–Tucson Sector, in his official capacity; Roger San–Martin, Agent in Charge–Tucson Border Patrol Station, in his official capacity; Lloyd Easterling, Assistant Agent in Charge–Tucson Border Patrol Station, in his official capacity; J. Joyner, Border Patrol Agent, in his official capacity; Rosalinda Huey, Border Patrol Agent, in her official capacity; N. Ballistrea, Border Patrol Agent, in her official capacity; S. Spencer, Border Patrol Agent, in his official capacity; K. Riden, Border Patrol Agent, in her official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

882 F.3d 878

Leesa JACOBSON; Peter Ragan, Plaintiffs–Appellants,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY; United States Customs and Border Protection ; United States Office of Border Patrol; Kirstjen M. Nielsen, Acting Secretary, United States Department of Homeland Security, in her official capacity; Kevin K. McAleenan, Acting Commissioner, United States Customs & Border Protection, in his official capacity; Carla L. Provost, Acting Chief of the United States Border Patrol, in her official capacity; Jeffrey Self, Commander, Arizona Joint Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent–Tucson Sector, in his official capacity; Roger San–Martin, Agent in Charge–Tucson Border Patrol Station, in his official capacity; Lloyd Easterling, Assistant Agent in Charge–Tucson Border Patrol Station, in his official capacity; J. Joyner, Border Patrol Agent, in his official capacity; Rosalinda Huey, Border Patrol Agent, in her official capacity; N. Ballistrea, Border Patrol Agent, in her official capacity; S. Spencer, Border Patrol Agent, in his official capacity; K. Riden, Border Patrol Agent, in her official capacity, Defendants–Appellees.

No. 16-17199

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2017, San Francisco, California

Filed February 13, 2018

Winslow Taub (argued), Tracy Zinsou, Ethan Forrest, and Neha Jaganathan, Covington & Burling LLP, San Francisco, California; Kathleen E. Brody and Brenda Muñoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; Mitra Ebadolahi and David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Plaintiffs–Appellants.

Patrick G. Nemeroff (argued) and Scott McIntosh, Appellate Staff; Elizabeth A. Strange, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants–Appellees.

Eugene Volokh, Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; Ilya Shapiro, Cato Institute, Washington, D.C.; for Amicus Curiae The Cato Institute.

Rochelle L. Wilcox, Taylor S. Ball, and John Parsi, Davis Wright Tremaine LLP, Los Angeles, California, for Amici Curiae National Press Photographers Association and The Center for Investigative Reporting Inc.

Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES,^* District Judge.

M. SMITH, Circuit Judge:

Leesa Jacobson and Peter Ragan (collectively, Appellants) filed this suit to challenge their exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona. Before any discovery occurred, the district court granted summary judgment to the Defendants–Appellees (Appellees). We vacate and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Since 2007, the United States Border Patrol (BP) has operated a checkpoint on Arivaca Road, a rural two-lane road in southern Arizona. The checkpoint includes a primary inspection area located on Arivaca Road itself, and a secondary inspection area located on the south side of Arivaca Road. Eastbound motorists are stopped and questioned at the primary inspection area and, in some cases, directed to the secondary inspection area for further questioning. The improvements in the checkpoint area include two portable restrooms, a portable office unit made of storage containers, a portable kennel, several portable lights, and road signs, all located on the south side of Arivaca Road.

Residents of nearby towns such as the Appellants must pass through the checkpoint on their daily routines and stop when traveling eastbound. Some of them, as part of an organization called People Helping People (PHP), held a protest near the checkpoint area on December 8, 2013. The protest was spurred by community complaints that BP agents racially profiled, unlawfully searched, and used excessive force on people stopped at the checkpoint. The BP agent in charge of the checkpoint area learned of the planned protest and decided to suspend checkpoint operations during the protest, allegedly for the safety of all involved, which permitted cars to pass uninspected. On February 26, 2014, the Appellants and others returned to the checkpoint area to protest and to monitor activities within the checkpoint area. The protesters stood first on the south side of Arivaca Road, and later on the north side of the road, in each case approximately 100 feet east of the portable office. After the protesters refused to move further away from the checkpoint area, BP agents erected a yellow tape barrier across the north and south shoulders of Arivaca Road approximately 150 feet east of the portable office unit, and required the protesters to relocate behind those barriers.

During the following week, the tape barrier was replaced with rope barriers on both ends, and signs were added forbidding unauthorized entry. The rope barriers and the signs remain in place approximately 150 feet east and west of the portable office unit. Protesters who have attempted to cross the rope barriers have been threatened with arrest and forced back behind those barriers. In total, the so-called enforcement zone of the checkpoint area extends for approximately 391 feet along Arivaca Road.

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine "who can enter into the perimeter" and "where [Appellants] can and can't be." On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident's wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted "Well, we had our fun today" to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, "It's a free country." When the agent in charge learned of this incident from Appellants' counsel on April 16, 2014, he directed watch commanders to discuss the incident with checkpoint agents and make clear that what had been done was unacceptable.

Subsequently, a surveyor hired by Appellants was allowed inside the enforcement zone. The agents on duty explained to the surveyor that "the barriers were in place only to exclude people who might interfere with Border Patrol activities, such as protestors." One agent invited the surveyor to share a meal with the agents on duty. On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone.

Appellants filed suit on November 20, 2014, alleging unlawful infringement of their First Amendment rights and retaliation for exercise of those rights. The complaint sought injunctive and declaratory relief as well as costs and attorney's fees. After the district court denied Appellants' motion for a preliminary injunction, Appellees moved to dismiss or, in the alternative, for summary judgment. Appellants opposed this motion and moved for discovery. Based only on the pleadings and declarations, and before any discovery had taken place, the district court denied Appellees' motion to dismiss, denied Appellants' motion to take discovery, and granted summary judgment to Appellees on the ground that the checkpoint area, including the enforcement zone, is a nonpublic forum, and that the restrictions on speech therein are content-neutral and reasonable. Appellants timely appealed.

ANALYSIS

Appellants maintain that the First Amendment affords them the right both to protest and to monitor the activities at the BP checkpoint, which they contend include racial profiling and other abuses. See Animal Legal Def. Fund v. Wasden , 878 F.3d 1184, 1203 (9th Cir. 2018) ("It is no surprise that we have recognized that there is a 'First Amendment right to film matters of public interest.' " (quoting Fordyce v. City of Seattle , 55 F.3d 436, 439 (9th Cir. 1995) ) ). They argue that the district court erred in concluding as a matter of law that the government may exclude them from the entire enforcement zone, and that it abused its discretion by denying their motion for discovery.

We examine these questions within the framework of forum analysis, in which the level of judicial scrutiny depends upon whether the site is properly categorized as a public forum or a nonpublic forum. See Int'l Soc'y for Krishna Consciousness of Cal., Inc. v. City of Los Angeles , 764 F.3d 1044, 1049 (9th Cir. 2014). In a public forum, the government "may impose reasonable, content-neutral restrictions on the time, place, or manner of protected speech so long as those limits are 'narrowly tailored to serve a significant governmental interest' and 'leave open ample alternative channels for communication of the information.' " Id. (quoting Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). We have referred to this test as "an intermediate level of scrutiny." Id. (quoting Berger v. City of Seattle , 569 F.3d 1029, 1059 (9th Cir. 2009) (en banc) ). In a nonpublic forum, restrictions on speech must only be " 'reasonable in light of the purpose served by the forum' and 'viewpoint neutral.' " Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 806, 105 S.Ct. 3439, 87...