TUCSON, Ariz. (CN) – A group of small-town activists fighting to close a tiny, temporary Border Patrol checkpoint in southern Arizona gained new hope Tuesday when the Ninth Circuit overturned a 2016 dismissal of their case against the federal government.
The checkpoint, which is about 20 miles north of the U.S. border with Mexico and 20 miles from the nearest interstate highway, lies between roughly 700 residents of Arivaca, Arizona, and virtually everything. Most resident must pass through the checkpoint to go to work, visit a theater or go to the grocery store.
“We are asked to verify our citizenship and are at times subjected to questioning, profiling, warrantless searches, verbal harassment, and physical abuse by Border Patrol agents,” People Helping People, an organization spawned in opposition to the checkpoints, says on its website.
In 2014, People Helping People volunteers, hoping to convince the Department of Homeland Security to close the checkpoint, began monitoring agents’ activities there. The Border Patrol then expanded the boundaries of the “enforcement zone” around the checkpoint until the residents could no longer watch the agents.
Arivaca residents Peter Ragan and Leesa Jacobson sued in 2014, claiming the area should be considered public and that agents had unreasonably kept them at a distance by claiming the enforcement zone is a nonpublic space, which allows the government to restrict access.
“In response to the Arivaca residents’ campaign, Border Patrol agents unconstitutionally interfered with plaintiffs’ speech and retaliated against them by: barring plaintiffs from the public right-of-way adjacent to the checkpoint; requiring them and others monitoring the checkpoint with them to remain at an unreasonably great distance from the checkpoint; obstructing plaintiffs’ view by parking vehicles directly in the way; leaving parked vehicles running next to the checkpoint monitors for hours at a time so that the monitors would suffer from noxious fumes emissions; and threatening plaintiffs with arrest, while allowing individuals who supported defendants the same access to the public right-of-way that defendants denied to plaintiffs and other PHP monitors,” the lawsuit states.
The district court dismissed the case in 2016, finding that just because the area was government owned did not mean it was automatically open to the public. But the appeals court found that the agents had prevented the plaintiffs from gathering information relevant to their lawsuit, such as who agents allow into or exclude from the enforcement zone, and that the lower court ruled with insufficient information.
“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,” U.S. Circuit Judge Milan Smith wrote for the panel in a 14-page opinion.
U.S. Circuit Judge Sandra Ikuta and U.S. District Judge John D. Bates, sitting by designation from the District of Columbia, also sat on the panel.
The Border Patrol maintains about half a dozen temporary checkpoints on Arizona highways near the border. Some, such as one on northbound Interstate 19 about 20 miles inside the U.S., are elaborate semi-permanent structures.
Others, such as the one near Arivaca, consist of little more than traffic cones, banks of cameras that read license plates, and Border Patrol trailers.
People Helping People and attorneys for the American Civil Liberties Union in Arizona, who are representing the plaintiffs, did not immediately respond to requests for comment.
The case now heads back to U.S. District Court in Tucson.