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First Amendment Challenges To Local Law Enforcement And Border Patrol

David Loy, legal director for the ACLU of San Diego & Imperial Counties, talks to KPBS about lawsuits over the First Amendment.


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.


Statement from U.S. Customs and Border Protection

U.S. Customs and Border Protection (CBP) cannot comment on ongoing litigation. CBP recognizes that travelers awaiting inspection at a port of entry will use electronic devices to communicate their status to family members, friends, or professional contacts. Due to security concerns, once a traveler begins the inspection process in the federal inspection station, CBP prohibits the use of these devices in order to ensure the safety of the CBP officer and the traveling public, and to protect against the unauthorized disclosure of information and the advancement of criminal activity.

Angelica De Cima, Spokesperson for U.S. Customs and Border Protection

Two legal cases in San Diego focus on the tension between First Amendment rights and law enforcement security.

At the border, the ACLU is suing the U.S Department of Homeland Security over the right for citizens to take pictures at border crossings.

The lawsuit, filed last week in San Diego, says the Customs and Border Protection agency prohibits the public from taking photos at or near ports of entry without permission. It calls the policy a violation of constitutional rights to free speech and against illegal search and seizure.

David Loy, legal director for the ACLU of San Diego & Imperial Counties, told KPBS the suit's plaintiff Ray Askins took photos of an inspection area at a Calexico border crossing in April from a city street. After being handcuffed and searched, authorities returned his digital camera with photos erased.

The Calexico port director, Billy Whitford, told Askins in an email the next day that permission is needed to take photos and video at Customs and Border Protection facilities. The email makes no mention of restrictions on taking photos from a nearby street.

"The border is not a constitution-free zone," Loy said. "There is a fundamental First Amendment right to take photographs, period, from anything that is knowingly exposed to public view. Second, there is an even more fundamental right to document the conduct of government agents."

In Escondido, the ACLU has successfully settled a lawsuit against the city for access to observe and protest traffic checkpoints.

The ACLU said in a press release under the settlement, "the City of Escondido agrees not to interfere with the First Amendment right to protest, film, or record traffic checkpoints, except to the limited extent members of the public may be excluded from a narrowly defined 'operational area' at the checkpoint."

In a statement, acting Escondido Police Chief Cory Moles said, “This agreement allows the Escondido Police Department to continue with our traffic checkpoints to ensure community safety, while also protecting the First Amendment Rights of our citizens.”

The California Highway Patrol did not settle its case with the ACLU, a hearing is set for Tuesday November 6 in federal court.

Claire Trageser and the Associated Press contributed to this report.

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