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Jacobson v. United States Department of Homeland Security

United States Court of Appeals, Ninth Circuit

February 13, 2018

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.

          Argued and Submitted December 5, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 4:14-cv-02485-BGM Bruce G. Macdonald, Magistrate Judge, Presiding

          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.

         SUMMARY [**]

         Civil Rights

         The panel vacated the district court's summary judgment, entered before any discovery occurred, and remanded in an action in which appellants challenged their exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona.

         Appellants alleged that the First Amendment afforded them the right both to protest and to monitor the activities at the Border Patrol checkpoint, which they contend include racial profiling and other abuses. The district court determined that the checkpoint area, including the enforcement zone, was a nonpublic forum from which the government could reasonably exclude appellants. The district court therefore denied the motion to take discovery pursuant to Federal Rule of Civil Procedure 56(d), on the ground that the information would not assist appellants in opposing summary judgment.

         The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

         The panel held that the limited record before the district court did not permit it to conclude, as a matter of law, that the enforcement zone was a nonpublic forum, or, if it was, whether the government satisfied the requirements for excluding appellants from that nonpublic forum. On remand, and after appropriate discovery, the panel held that the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government's exclusion policy is permissible under the principles of forum analysis.

          OPINION

          M. ...


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