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First Amendment lawsuit over Arivaca checkpoint dismissed

A federal judge in Tucson dismissed a lawsuit that said U.S. Border Patrol agents violated the First Amendment rights of some Arivaca residents by blocking their effort to observe a checkpoint maintained by the agency. 

On Friday, U.S. District Court Judge Bruce G. MacDonald issued his ruling, saying that the Border Patrol checkpoint, located near Amado on the two-lane highway known as Arivaca Road, was a nonpublic forum and thus, the restrictions created by Border Patrol agents were not unreasonable under the First Amendment. 

"Defendants’ restrictions are content neutral and reasonable in light of the ongoing law enforcement activity at the checkpoint," wrote MacDonald. "There are obvious safety and security concerns with such an operation both to the agents and public. To limit monitoring to areas 150 feet from the midpoint of the checkpoint, is not unreasonable." 

In February 2014, a group of Arivaca residents and supporters launched a campaign designed to observe agents at the checkpoint, arguing that such monitoring was necessary because the checkpoint was the site of racial profiling, invasive searches, verbal harassment, and on multiple occasions, physical assault. 

The checkpoint's placement on the main road between the town of Arivaca and Interstate 19 means that residents of the small Arizona town may pass through the checkpoint at least twice a day. 

On Feb. 26, members of the group People Helping People in the Border Zone began observing the checkpoint at least three times a week, however, they were immediately pushed back by Border Patrol agents who cited safety and security concerns.

On March 1, residents returned to the checkpoint, but found that agents had installed new barriers, blocking pedestrian access on both sides of the road. This included a sign that read "Border Patrol Enforcement Zone - No Pedestrians Beyond This Point." 

In April the ACLU of Arizona sent a formal complaint to agency, arguing that the pushback created an "unacceptable risk of viewpoint discrimination." According to the U.S. Supreme Court, filming the actions of law enforcement officers is protected, the ACLU said. Monitors and protestors were engaged in political speech, which is "guaranteed the highest level of protection under the First Amendment," the ACLU said. 

"Border Patrol agents at the Arivaca Road checkpoint cannot evade the First Amendment by decreeing that an arbitrary 150-feet area within a public right of way is a ‘operations zone’ or a ‘controlled area’ from which individuals must be excluded for ‘safety reasons,'" the ACLU said. 

Two members of the group, Leesa Jacobsen and Peter Ragan, argued in the suit that the agency's definition of the "enforcement zone" was overly broad, as were an inconsistent response to their actions around the checkpoint. The pair also allege that the agents infringed upon their First Amendment rights by "harassing, intimidating, retaliating against and threatening Plaintiffs with arrest for engaging in constitutionally protected speech."

Despite the pushback, the group gathered more than 100 hours of observation and released a report that agents were racially profiling, they said. 

According to their observations Latino drivers were 26 times more likely to be asked for identification than white drivers, the group said. White drivers comprised more than 80 percent of the people who drove through the checkpoint during the observation period, less than one percent of whites had to prove their citizenship to Border Patrol agents, they said. 

In his ruling, MacDonald said the checkpoint was located in a "clearly delineated" area that has been "withdrawn from unrestricted public use." 

"It is distinctly different from the open highway surrounding it. Additionally, Border Patrol checkpoints do not have a long history of being open to the public, and access on Arivaca Road is not unrestricted in light of the legitimate law enforcement activity taking place," MacDonald wrote. 

While the First Amendment generally protects speech, even in a public place, the government may impose reasonable restrictions, MacDonald wrote. 

As part of their defense against the lawsuit, the Border Patrol said that by being close, the observers could be put in danger because motorists could flee the checkpoint forcing agents to give chase. 

MacDonald agreed, writing: "Motorists sometimes fail to yield at checkpoints or will flee when referred to the secondary inspection area."

"The pursuit vehicle located at the eastern end of the secondary inspection area at the Arivaca checkpoint may swerve, fish tail, and kick up rocks when leaving the unpaved, dirt roadside at the start of a high-speed chase," MacDonald said. 

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Border Patrol's primary interest was in "protecting the safety and security of Border Patrol agents, canines, and the public," he said. 

Border Patrol said that in the past 5 years, there have been "28 significant safety incidents at the three checkpoints" in the Tucson Sector. "This includes nine incidents when drivers either failed to yield or attempted to flee the secondary inspection area. Five other incidents involved drivers under the influence or reckless driving, MacDonald said. 

Border Patrol does not comment on lawsuits, however, in previous instances the agency has defended checkpoint use. 

In 2014, an agency spokeswoman said that "In the Tucson Sector, checkpoints remain a critical piece of infrastructure and a highly effective tool in our enforcement efforts to secure our nation’s borders." 

"Checkpoints deny major routes of egress from the border areas to smugglers intent on delivering people, drugs and other contraband to the interior of the United States and allows the Border Patrol to establish an important second layer of defense," she said.

A second lawsuit by the ACLU, led by two University of Arizona law professors, found thousands of complaints lobbied against the agency in connection with the use of checkpoints along the southwest border.

In documents released last October, the ACLU found that in at least 142 instances agents may have violated the civil rights of motorists in California and Arizona. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Observers watching the U.S. Border Patrol checkpoint from February to April in 2014.