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First Amendment Challenges To Local Law Enforcement And Border Patrol

October 31, 2012 1:15 p.m.

GUESTS

David Loy is legal director for the ACLU of San Diego & Imperial Counties.

Guylyn Cummins, is a partner in the Entertainment, Media and Technology Practice Group in Sheppard Mullin Richter Hampton LLP's San Diego office.

Related Story: First Amendment Challenges To Local Law Enforcement And Border Patrol

Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh. Two legal cases in San Diego focus on the tensions between first amendment rights and law enforcement security. In Escondido, are the ACLU has successfully settled a lawsuit against the city for citizen access to observe and protest traffic checkpoints. And at the border, the ACLU is suing the U.S. department of homeland security over the right of citizens to take pictures at border crossings. Joining me is David Loy, director for the ACLU for San Diego and imperial counties. Thank you.

LOY: Thank you for having me.

CAVANAUGH: And Guylyn Cummins is -- the reason we're talking to her is she deals with first amendment issues. Thank you for joining us today.

CUMMINS: Thank you.

CAVANAUGH: David, let's talk first about the situation up in Escondido. The city police and the c, HP have been conducting traffic checkpoints for some time. Remind us why there are protests against these checkpoints.

LOY: Okay. It's city of Escondido who police run the checkpoints. CHP as far as I know is not running the checkpoints in the city. And there are protests because even though the Courts have approved motor vehicle checkpoints for traffic safety purposes, none the less, many individuals continue to object to checkpoints as a fundamental violation of their personal liberty. They believe that it is just fundamentally wrong for government stostop anyone without individualized suspicion of wrongdoing. Among other people, my two clients routinely protest the checkpoints operated by Escondido police department and they also have videotaped the operation of the checkpoints to insure that they conform to the letter of the law as established by the Courts. The

CAVANAUGH: Now, what restrictions did law enforcement in Escondido put on the protests?

LOY: The first incident involved an Escondido police officer who told the protestors that they could not protest the checkpoints within 500 feet of a freeway off-ramp, and he sited to a vehicle code section that has nothing to do with political protest. It has to do with selling goods and services. And that was a clear violation of the first amendment. At a later time, a CPR officer did the same thing and ordered my clients to prove their protest from a location where I believe they had a perfect right to be on a public sidewalk, again siting the same incorrect Vehicle Code section. Later, and earlier this year, Escondido police officers told one of my clients, Matthew balonia, that he could not videotape the operation of a checkpoint within what they called the "operational area" of the checkpoint. My problem with that was that I thought their definition of operational area was overbroad and inconsistent with first amendment case law on the proper access of citizens to observe and document police conduct. There was a case out of the Boston in the 1st Circuit which upheld the right to videotape an arrest in progress from only 10 feet away. So I thought that certainly established a baseline. So that was the premise on which we started the case.

CAVANAUGH: And this case with the City of San Diego did settle. We invited the Escondido police department to be part of this show, and also the California highway patrol but they did not respond to our request by airtime. Guylyn, a general question, what are the rights of citizens to protest an ongoing police action?

CUMMINS: Well, I think what David is talking about is really important in our society because there are things like sidewalk, streets, places that are traditionally open to the public, in which many, many court opinions have upheld citizens should have essentially an unlimited right of free speech. So they can criticize the government, law enforcement techniques. In the airports after 911, we saw basically reporters trying to report on TSAs, you know, policies and procedures that they were implementing. And all of this is important for groups and other journalists to report on.

CAVANAUGH: What about the police shutting down that access?

CUMMINS: Essentially what police have to do, there's two different things. No. 1, there's case law with respect to crime scenes. So if there's truly a crime scene and the officers have taped it off, they have authority over that crime scene. The second thing is the time and the manner of the restriction. You have to look at the public forum that you're looking at, so what kind of speech is compatible with the activities there, and if you encode the time, place, and manner restriction, then it has to be reasonable and related to a real problem. So for example if I'm a protestors and I haven't been allowed on corners on a public beach, three courts have said you don't have the right to interfere with everybody else else enjoyment at the beach by using these speaker phones. That's an for example of one.

CAVANAUGH: The settle was reached. What was the settlement that was reached?

LOY: I think we reached a very good settlement with the city that upheld my clients' first amendment rights and respected legitimate law enforcement interests. In short, we agreed that first of all, the city and city police will no longer rely on this incorrect vehicle section about selling goods and services. We reached agreement on the scope of the -- the proper scope of an operational area surrounding a traffic checkpoint. We came to the conclusion that the permissible distance for civilians to observe would be 15 feet. And the operational area had to be designed in such a way that protestors and observers had to have the right of access to an otherwise public sidewalk as long as they stayed within -- came no closer than 15 feet to the officers conducted the screening of the vehicles. And if necessary, to insure a 15-foot distance that only a very limited portion of the public sidewalk could be closed, with alternative arrangements to be made. We also agreed if they're running a checkpoint at night and use generators and lights and cables and things like that, those have to be placed on the sidewalk, the portion of the sidewalk that has the generators and cables and lights could be closed to access. In the same way that you can close a sidewalk to fix it or repair it or 2 other kinds of construction. I didn't view that as a problem, and I think my clients and I accepted that was a legitimate interest of the city.

CAVANAUGH: Okay. We reached out to city officials in Escondido. They were not able to join us. Escondido's police chief says in a press release that the settlement will allow checkpoints to continue to insure community safety. And just to be clear, this lawsuit didn't have anything to do with the substance of these checkpoints, just simply the ability for protestors to be there and to photograph the activities taking place.

LOY: That's absolutely correct. The ACLU opposes suspicionless vehicle checkpoints. We do agree with our clients in this case that they are a violation of fundamental civil rights and liberties to be stopped by police without any suspicion of wrongdoing. As I said, the Courts have not agreed with us on that position. So we do not beat our head into that wall again in this lawsuit. But we do oppose checkpoints. But as I said, at this point, it's a political and social matter, not a legal matter. But we did file this lawsuit to defend the first amendment right to protest and document government conduct.

CAVANAUGH: I want to slip in the notion that the CHP is not a party to the settlement. You do have a lawsuit going on this same issue with the CHP, is that not right?

LOY: That's correct. Technically it's one lawsuit with separate claims with CHP and Escondido. I think it's a fair settlement, and I appreciate the city coming to the table to settle this out. CHP, there are somewhat different claims against them. We will be arguing a preliminary injunction hearing against CHP on November 6th.

CAVANAUGH: I want to move you to another lawsuit that the ACLU is involved in: It's the issue of taking pictures at the border crossing. Tell us what happened to a man named Ray Askins when he took pictures of an inspection area at the U.S. Mexico border.

LOY: He is a U.S. citizen, a retiree, and an activist concerned with environmental issues. He was standing on a city street inside the United States, inside the point of entry. He was not on government property, on the shoulder of a public street in the city of Calexico, and he was photographing the outside of the port of entry building. And he was doing that because he wanted to use the picture to illustrate a power point that he was preparing for a conference on environmental issues at the border, and particularly the problem of vehicle emissions from cars and trucks stalled at the ports of entry. And while he was engaging in this perfectly lawful and peaceful activity, several customs and border protection agents came outside the building, detained him, grabbed him, harassed him, frisked him, took him inside, roughed him up to some degree, not to beat him but grabbed him hard, took his camera, deleted photographs, and then kicked them out.

CAVANAUGH: Let me ask you, does the U.S. customs and border protection agency, do they say -- admit that they deleted the photographers, or is that a point of issue?

LOY: I don't know if they admit or deny it. We just filed the lawsuit. I haven't heard their position. Buff the Department of Justice has taken the position in a case involving local police in Baltimore that the first amendment never, never allows police to delete photographs on a camera taken from an individual. Even if they have the right to take the camera to preserve evidence, which I don't concede is at all appropriate in this case because there was no crime being committed. But even if, it absolutely is completely unjustified to delete a photograph.

CAVANAUGH: The U.S. customs and Border Patrol were not able to take part in this decision they said because they can't comment on ongoing litigation. "CBP recognizes that travelers awaiting inspection at a point of entry will use electronic devices to communicate. Due to security concern, once a traveler begins the inspection process in the federal inspection station, CPB prohibits the use of these devices." And you can read the agency's full website. I'm sorry, that's CBP! The customs and border protection agency.

LOY: Not the corporation for public broadcasting.

CAVANAUGH: Thank you! That's in there, you know that!

[ LAUGHTER ]

LOY: Just to respond briefly, my clients were not in the inspection process. Mr. Askins was on the U.S. side of the border. Mr. Ramirez who was also detained and harassed and had his camera phone taken and photos deleted after he had crossed through the pedestrian crossing at San Ysidro and was photographing the conduct of border patrol agents. He was concerned that male officers might be frisking female travelers. Neither of them was in the midst of the inspection process. Both were on the U.S. side of the border. Mr. Ramirez had already passed through inspection. So by their own statement, that doesn't even apply. And even if we were in that situation, I would not concede, and I think it's fundamental that citizens and travelers have the right to document the conduct of law enforcements. There is a long his of abuses committed by border enforcement agents specifically at ports of entry. We've filed a complaint with DHS about this issue, and it is nowhere more important to document the conduct of government agents in areas exposed to the public, and we're not talking about access to secret classified areas. We're talking about the things that the public expose. And to document these law enforcements is the lifeblood of a free society and free press.

CAVANAUGH: Let me get Guylyn Cummins in here what. Do the respective sides have to prove? That the public's right to photograph at the border outweighs security concerns?

CUMMINS: Well, again if it's a public forum, then essentially any restriction on that, free speech, visibility stands for scrutiny, which is almost never a standard that you can meet. So in a public forum, citizens have the right to freely speak, freely see what's going on, to photograph and comment on their government's conduct at the time. With respect to the time place and manner restrictions that discussed earlier, those get les scrutiny. So they have to be rationally related to whatever problem it is the government is articulating. And then the journalist or citizen has the right to come in and say no, that's a pretext or the harm isn't that bad. Or my first amendment rights outweigh the problem that the government is identifying.

CAVANAUGH: We live in a post-911 world here, does that strengthen -- any of the patriot act laws or anything like that, does that strengthen the government's position when it comes to restricting photographs and videos being taken of Border Patrol agents?

CUMMINS: We saw a lot of these cases right after 911, and the Courts pretty much upheld across the board citizens' and journalists' rights to photograph TSA at work, to photograph the long lines that were being created for airplane boarding and all that. While the government does have a legitimate right if there's some kind of equipment at issue or something that would pose a real national security problem, they do have the rights to restrict photography and speech rights of an individual. But one of the reasons that I commend the ACLU for taking on these cases and they often need to be tested. Many times the problem that's identified is not a real problem or not a severe problem. And the free speech rights shouldn't be limited.

LOY: I want to add to that. For decades, if not centuries, the government has been invoking national -- pretexts of national security and border safety and so forth as a pretext to silence and censor speech. Of the very purpose of the first amendment is to hold the government accountable to allow citizens to speak and to document government conduct, open and transparent flows of information about government conduct are the lifeblood of our democracy. And nowhere more so at the border. The border is not a constitution free zone. The government sometimes likes to think it is, but it is not. And the first amendment applies just as stronglia at the border as anywhere else. And we as a people have the right to observe and document that which the government has exposed to the public. Ian Ysidro, thousands of people pass through there every day. You can go online and find thousands of images of port of entry buildings. We have the right to document what our government does in public.

CAVANAUGH: We are out of time.