Heidy v. US Customs Service
| Decision Date | 02 March 1988 |
| Docket Number | No. CV86-2365-JSL(Px).,CV86-2365-JSL(Px). |
| Citation | 681 F. Supp. 1445 |
| Parties | Alice HEIDY, National Central American Health Rights Network, et al., Plaintiffs, v. UNITED STATES CUSTOMS SERVICE, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Barrett S. Litt, Litt & Stormer, Los Angeles, Cal., David Cole, Center for Constitutional Rights, New York City, for plaintiffs.
Donna Eide, U.S. Attys. Office, Los Angeles, Cal., for defendants.
This is a case of first impression. It involves a constitutional challenge to the procedures adopted by the United States Customs Service ("Customs") for enforcement of 19 U.S.C. Section 1305 ("Section 1305"). Section 1305 prohibits, among other things, the importation of certain written materials into the United States. Specifically, Section 1305 provides in pertinent part:
Plaintiffs in this action1 ("Plaintiffs") are all United States citizens from whom written materials were seized upon their reentry into the United States from Nicaragua. In some instances, an initial review was made by Customs officials to determine whether the questioned materials urged "treason or insurrection" in violation of Section 1305 ("Section 1305 Review" or "Review"). In others, Customs sought the assistance of the Federal Bureau of Investigation ("FBI") in making its determination. Photocopies were made of some of the detained materials. In addition, in some, if not all cases, the agency conducting the review made permanent records reflecting at least the identity of the person from whom the materials were seized, a description of the contents of the materials reviewed, the place from which the materials were being imported, the purpose of the review, and the determination made by the reviewer. None of the materials reviewed, however, were ultimately determined to violate Section 1305.
After the Section 1305 Review was completed, most of the original materials were returned to Plaintiffs,2 and in most cases, the copies were not retained by Customs.3 The records, reports and/or notes relating to materials found not to be prohibited by Section 1305 ("Records of Non-Violation"), however, were not returned to the Plaintiffs, and thus were retained by Customs and other agencies, including the FBI.
Plaintiffs brought this action for declaratory and injunctive relief charging that Customs' practices and procedures exhibited a pattern of misenforcement and misapplication of Section 1305, such that all persons returning from Nicaragua were threatened with an invasion of their constitutional rights. At the time their complaint was filed, Plaintiffs' primary contention was that the materials had been seized by Customs officials who had received no training of any kind on the constitutional limitations or applications of Section 1305 and that the seizures had been made upon the basis of nonuniform, entirely subjective determinations of whether the materials were or might be subversive.
Without conceding that Plaintiffs were correct in their position, Customs responded promptly and provided two successive policy directives (collectively the "Policy Directives") which addressed many of the problems raised by Plaintiffs.4
The Policy Directives express Customs' current policy and set clear standards regarding the appropriate methods to be used by Customs when enforcing Section 1305.5 Under the Policy Directives, Customs reserves the right to disseminate to the FBI and other agencies any materials related to the Section 1305 Review. The FBI, however, refuses to be bound by any limitations on its own policies or procedures which might follow from the Policy Directives.6
On the basis of the Policy Directives, Customs urges that Plaintiffs' original claims against it are now moot. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969). Plaintiffs concede that the Policy Directives adequately address their concerns as to the procedures in which Customs determines whether certain materials should be seized for the purpose of further review.7
Plaintiffs do not agree, however, that appropriate procedures have been established as to what is done with materials after they have been seized at the border. On the contrary, Plaintiffs assert that the post-seizure handling of the materials threatens Plaintiffs, as a matter of express and consciously adopted policy, with the same violation of constitutional rights which they suffered in the absence of any policy.
Under the Policy Directives, once a decision is made that the seized materials do not violate Section 1305, the original materials are to be returned to the owner and all copies of the materials are to be destroyed. The Policy Directives, however, do not address whether Customs may create, retain or disseminate Records of Non-Violation. Accordingly, there is both a reasonable expectation that a violation of Plaintiffs' rights will recur and that the interim relief provided by the Policy Directives has not "completely eradicated" the alleged violations of Plaintiffs' constitutional rights. See Halet v. Wend Investment Co., 672 F.2d 1305, 1307-08 (9th Cir. 1982). The Court holds, therefore, that Plaintiffs' claims have not been mooted by the adoption of the Policy Directives.
Customs further argues that Plaintiffs lack standing to pursue their claims. In order to have standing, a plaintiff must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ... and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
Customs argues that Plaintiffs lack standing because the Policy Directives have never been applied to them and there is no real threat that application of the Directives will produce in the future the kind of harm which they suffered before the Directives were promulgated. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The Court does not agree.
Plaintiffs all allege that they have current plans to travel to Nicaragua8 or elsewhere abroad from where it is likely that they will wish to return with written materials which, although not in fact proscribed by Section 1305, might nevertheless be validly seized at the border under the Policy Directives and subjected to a Section 1305 Review. Plaintiffs assert that the dissemination of seized materials to other agencies and the creation and retention of the Records of Non-Violation all have a substantial "chilling effect" on the free exercise of rights guaranteed to them by the first amendment.9 If Plaintiffs are denied the relief they seek, they will continue to be exposed in the future to the same harm they have suffered in the past. Accordingly, Plaintiffs have standing to pursue their claims.10
Customs urges that as to any materials which have been lawfully seized for purposes of a Section 1305 Review, Customs has the right to make records concerning such materials, and to make the materials available for inspection by other governmental agencies, regardless of the ultimate determination of violation or nonviolation of Section 1305.
Congress has imposed upon Customs the duty to seize materials proscribed by Section 1305, and "to transmit information thereof" to the United States Attorney. Section 1305 does not prohibit Customs from utilizing the expertise reposed in other agencies, such as the FBI, to determine whether the materials are proscribed under Section 1305. This does not suggest, however, that if Customs seeks the assistance of other agencies in making a Section 1305 Review the other agency would be able to encroach further on Plaintiffs' constitutional rights than would Customs itself.
The assistance provided to Customs by other agencies is merely a practical accommodation and is not authorized by the statute. Any rights that another agency might have to the materials seized for purposes of a Section 1305 Review therefore are purely derivative. United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir.1979). Accordingly, if another agency, such as the FBI, participates with Customs in actions enforcing the statute, it does so as a subordinate...
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