and Submitted December 5, 2017 San Francisco, California
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
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.
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
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.
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.
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.
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.
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.