Arivaca residents ask judge to allow closer observation of border checkpoint

As part of a lawsuit against U.S. Border Patrol over claims that agents intentionally blocked an effort to monitor their actions at a Southern Arizona checkpoint, Arivaca residents have asked a federal judge to intervene.

U.S. District Court Judge Bruce G. MacDonald heard oral arguments Tuesday between a lawyer for the Department of Justice and attorneys with the ACLU and a private firm. He did not immediately issue a decision.

If MacDonald agreed with the plaintiffs, agents would be required to allow monitors access to the public right-of-way along Arivaca Road, a two-lane highway west of Interstate 19 near Amado, and could not keep monitors more than 20 feet away from either the primary or secondary inspection areas. 

The case stems from a lawsuit filed in November by two Arivaca residents, Leesa Jacobson and Peter Ragan. They sued the agency, arguing that Border Patrol agents intentionally restricted their constitutional right to protest, observe and record law enforcement activity at the checkpoint. 

Jacobson and Ragan are members of People Helping People, a community organization that has challenged the Arivaca checkpoint for more than a year. 

In February 2014, the group launched a campaign to observe agents at the checkpoint, but their effort received an immediate push-back by agents who cited safety and privacy concerns. 

In April, the group and the ACLU responded and sent a formal complaint to the agency. 

Currently, the group is barred from being within 150-180 feet from the center of the inspection area. 

"They’ve cordoned us off far away from the checkpoint, parked their trucks to block our view and even threatened to arrest us,” Ragan said told TucsonSentinel.com in November. 

"The right to monitor is a core expressive right under the First Amendment," said attorney Winslow Taub, who argued for the plaintiffs. 

Taub rejected the agency's safety argument, saying that the agency was using "a blanket exclusion untethered to safety concerns" and relying on "speculative scenarios" to keep the group at arm's length. 

Taub also noted that similar attempts by law enforcement to put observing citizens at a distance had failed. This includes a 2011 case, Glik v. Cunniffe, when the Seventh Circuit Court held that "a citizen's right to film government officials ... in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

However, Justice Department attorney Eric Beckenhauer said that having protestors so close would make it difficult for agents to perform their work and dangerous for observers who are near traffic. 

"It's simply not reasonable to think the Border Patrol is going to be able to carry out its duties in those areas," he said.

Beckenhauer also compared the Border Patrol checkpoints to screening areas by Transportation Security Administration checkpoints at airports as well as areas with national security concerns such as nuclear tests sites and military bases. 

"Just because there is a public road, this does not mean it's a public forum," he said. 

The effort to observe and monitor the checkpoints comes from frustration that the checkpoint is the center of racial profiling of residents. 

 In October 2014, the group released a report based on nearly 100 hours of observation and argued that agents were racially profiling.

According to the report, Latino drivers are 26 times more likely to be asked for identification than white drivers. While whites 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, the report noted. 

Border Patrol does not comment on pending litigation, however, the agency said it "does not tolerate racial profiling or agent misconduct and appropriately investigates allegations of wrongdoing."

Moreover, the agency has repeatedly defended the use of the checkpoint near Amado, calling checkpoints a "critical enforcement tool for carrying out the mission of securing our nation’s borders against transnational threats."

"Checkpoints deny major travel routes from the borders to smugglers intent on delivering people, drugs and other contraband to the interior of the United States and allow the Border Patrol to establish an important second layer of defense," the agency said. 

There are 11 checkpoints in Arizona and at least 128 operated nationwide.

MacDonald said he would make his decision soon, and the rest of the lawsuit is ongoing.