Free Speech Case Reinstated Against Border Patrol

A federal appeals court reinstated a free speech lawsuit against the Border Patrol that asserts the agents kept protesters far from an Arizona checkpoint on a rural road as the demonstrators attempted to monitor what they contend was racial profiling by the patrol.

The People Helping People group challenged their exclusion from an enforcement zone set up  around the rural checkpoint in response to the group’s attempts to watch the agents’ conduct following community complaints of racial profiling, unlawful searches and excessive force at the checkpoint.

The 9th U.S. Circuit Court of Appeals ruled Tuesday that the trial judge improperly dismissed the lawsuit prior to any evidence being developed in the dispute.  The panel held that the limited record developed for U.S. Magistrate Bruce MacDonald was not sufficient to permit MacDonald to conclude that the enforcement zone set up by Border Patrol agents was a nonpublic forum.

The court remanded the case for further development of evidence to determine whether the case may proceed.

The dispute began in 2007, when the two-lane road checkpoint was used to stop eastbound drivers for questioning and a secondary area for further inspection. Over time the checkpoint included portable restrooms, portable office, storage and a portable kennel as well as lights.

Residents had to pass through the stop on daily routines. In December 2013, the PHP group organized a protest spurred by community complaints of improper searches, racial profiling and excessive force. The Border Patrol suspended searches on the day of the protest but in February 2014 the groups returned to monitor activities.

Border Patrol agents then erected a yellow tape barrier about 150 feet away from the office and later replaced it with rope barriers on both sides of the road forbidding the groups to get closer than 150 feet, under threat of arrest. At another point agents part their cars so as to block PHP monitors from viewing, much less entering, the enforcement zone.

In November 2014, the group sued alleging First Amendment violation and retaliation for exercise of their rights. They sought a preliminary injunction, which was rejected. The suit was then dismissed after MacDonald ruled the inspection area was not a public forum and thus not protected from the restrictions on free speech.

The appeals court disagreed.

“The limited record before the district court does not permit us to conclude, as a matter of law, that the enforcement zone is a nonpublic forum, or, if it is, that the government has satisfied the requirements for excluding appellants for that nonpublic forum,” Judge Milan Smith wrote for the panel.

Case: Ragan v. Dept. of Homeland Security, No. 16-17199



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