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Court hears appeals on 1st Amendment case over Arivaca checkpoint

The 9th Circuit Court of Appeals heard arguments Tuesday over a lower court's dismissal of a lawsuit that accused U.S. Border Patrol agents of violating the First Amendment rights of a group attempting to observe one of the agency's checkpoints in Southern Arizona.

Government attorneys said that the federal agency has the power to bar groups from observing the Border Patrol checkpoint, located near Amado on the two-lane highway known as Arivaca Road. Pressed by a judge, one said that the government could even block the public from a courthouse — a contention that the judge said was "kind of shocking."

"We have an ability and a right to observe what police do, right?," asked Judge Milan Smith.

The suit is the result of Border Patrol roping off the area, barring an activist group concerned about racial profiling from directly monitoring agents at the checkpoint south of Tucson.

In October 2016, a lower court judge ruled that the checkpoint was a non-public 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 U.S. District Court Judge Bruce G. 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."

However, MacDonald wrote that the "matter is ripe for review."

Assistant U.S. Attorney Patrick Nemeroff told the three-judge appellate panel that the checkpoint, along with an "enforcement zone" that runs along the highway for 300 feet, is needed for the federal agency to conduct short stops for the purpose of immigration enforcement.

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"If the government legitimately sets aside an area for some security function, it clearly delineates that area so that the public recognizing when I pass this line, I'm entering an area that's not devoted to expressive activity," Nemeroff said.

Nemeroff said that Pima County provided the agency with a permit in 2007, allowing the agency to operate the checkpoint, which went unchanged until the agency placed ropes and signs. "You'll see they're at the edge of the checkpoint as already established," he said.

In 2014, a group of Arivaca residents led by Leesa Jacobsen and Peter Ragan launched a campaign to observe agents, arguing that monitoring was necessary because the checkpoint was the site of racial profiling, invasive searches, verbal harassment, and on multiple occasions, physical assault. The group, People Helping People in the Border Zone, immediately faced pushback from BP agents who cited safety and security concerns, and later installed new barriers, and a sign that read "Border Patrol Enforcement Zone - No Pedestrians Beyond This Point."

The American Civil Liberties Union of Arizona sent a formal complaint to the agency, arguing that "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.'"

"They say that there's no other checkpoint that has this configuration," noted Judge Smith.

"No one had sought to congregate at the center of a checkpoint," Nemeroff replied. The checkpoint became a "non-public forum" after the agency "fundamentally altered the configuration" of the roadway, he said, acknowledging that agents only set up tape, ropes, and later signs in response to monitoring.

Border Patrol later set up a similar arrangements at two other checkpoints, including the one on Interstate 19 and another north of the Buenos Aires National Wildlife Refuge, on State Route 286 after the group began monitoring there as well.

William Taub, an attorney representing Jacobsen and Ragan, argued that the "central, most troubling aspect" of the case was how Border Patrol added a barrier "erected in response to observers."

"You should be able to stand where you are not interfering with law enforcement operations," said Taub, arguing that in part the issue was that the agents engaged in "viewpoint discrimination" by holding observers at a distance, while allowing a pro-checkpoint couple access.

Judge Sandra Segal Ikuta said that viewpoint discrimination was "genuine issue," but said that if both monitors and anti-protesters were allowed into the secured area, it would be "hard to see" viewpoint discrimination.

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Taub said that agents allowed in pro-checkpoint people for more than 40 minutes, but kept monitors out.

Later, Smith challenged Nemeroff, asking if the government could automatically make a courthouse a non-public forum by setting up a tent and barbed wire outside.

"I hesitate to use the term automatically, but if the government legitimately sets aside an area for security function, and clearly delineates that area, it is not devoted to expressive activity," Nemeroff said.

"No matter what the government does, it automatically becomes a non-public forum?" Smith asked. "Can you bar people from observing that?"

"Yes," Nemeroff responded.

"That kind of shocking to me," Smith said.

Later, he added: "That’s not this country, we have an ability and a right to observe what police do, right?"

"But it seems to me that when you’re talking about people wanting to exercise their First Amendment rights to observe, where they’re placed is a reasonable, material issue that the court ought to consider," he said. "Somebody has to decide that."

Smith seemed to agree that the agency has the right to implement policies to keep people from interfering with the checkpoint, but he asked if Border Patrol could "decide on its own" the boundaries of the checkpoint. "They can't just arbitrarily set these limits, they hung the ropes at the edge of a checkpoint that had been there for almost 10 years."

Judge John Bates asked rhetorically if the agency could place ropes a quarter-of-a-mile away, an argument that Ikuta also referred back to, asking if agents wanted more security, could they expand the zone 200 or 300 feet.

Nemeroff said that the 150-foot zones on the west and east ends of the checkpoint were not arbitrary, but rather the area that had signs telling people to stop, and "rumble strips."

Smith said that while the ropes may be perfectly legal, there was still an issue the court ought to consider.

"What is the government prepared to do to give the public the right to observe what’s going on?" Smith asked.

"The ropes were placed, just as the edge of the checkpoint, and the checkpoint was designed that way to further a significant safety issue," said Nemeroff. "The ropes were put up only because no one had done this before. This is a checkpoint on a rural road where people are not naturally going to choose to congregate—they know they’re in a checkpoint."

"So, why are you trying to keep them out?" Smith asked.

A ruling from the appellate court is pending.

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

Arivaca residents and members of the group People Helping People in the Border Zone protest the Arivaca checkpoint, west of I-19 near Amado, in 2015