SAN DIEGO (CN) - The federal government is unconstitutionally prohibiting people from taking photos near border crossings without prior approval from Customs and the border patrol, two U.S. citizens claim in Federal Court.
Plaintiffs Ray Askins and Christian Ramirez say that in separate incidents, border patrol agents harassed and questioned them, seized devices and erased pictures they took at the U.S.-Mexico border.
They sued the Department of Homeland Security, the commissioner of U.S. Customs and Border Protection, and the port directors at Calexico and San Ysidro.
"CBP [Customs and Border Protection] has an unconstitutional policy and practice of prohibiting the use of cameras and video recording devices at or near CBP-controlled facilities, including U.S. ports of entry, without the CBP's prior approval," the complaint states.
"Acting pursuant to this policy and practice, CBP officers violated plaintiffs' First Amendment rights by directing plaintiffs to cease taking photographs and erasing the photographs they did take of CBP personnel and buildings at U.S. ports of entry." Askins says he was taking photos at the Calexico port of entry for a presentation about the environmental impact of traffic congestion on the border.
After taking several photos from the shoulder of a street 50 to 100 feet away a secondary inspection area, Askins says, border patrol officers questioned him, though he had called ahead to ask permission.
When he refused to delete the pictures, the agents threatened to smash his digital camera, Askins says. They handcuffed him and took him to a room in the inspection area, where they patted him down and "unnecessarily squeezed and touched" his groin area, he says.
He later discovered that all but one image had been deleted from his camera.
Ramirez claims he was returning to the United States from the Mexico with his wife via the San Ysidro port of entry in 2010, when it appeared that male border agents were pulling aside a disproportionate amount of women aside and patting them down.
Ramirez, a member of a San Diego human rights group, says he took some photos with his cell phone, then was stopped by border agents, who erased the photos and took his passport.
He claims that an Immigration and Customs Enforcement Agent told him: "Give me one other reason to take you down," after he refused to hand over ID.
"Plaintiffs' cases are not unique," the complaint states. "CBP officers frequently employ these policies and/or practices to deter individuals from documenting potential misconduct by CBP officers and to destroy evidence of such potential misconduct. For example, CBP officers confronted individuals who captured video footage of the killing of Anastasio Hernandez Rojas by CBP officers at the San Ysidro port of entry on May, 28, 2010, and forced the individuals to erase that footage. In another example at the San Ysidro port of entry, on May 4, 2012, CBP officers confronted Kevin Murphy, who captured video footage of several CBP officers pointing weapons at family members in a van, and forced Mr. Murphy to erase the footage by threatening to smash to Mr. Murphy's phone if he did not do so."
The plaintiffs' attorney David Loy said, "The border is not a Constitution-free zone. Border agents are not above the law, and the law guarantees our right to hold them accountable by documenting their conduct."
Loy, an ACLU attorney, made the statements in a ACLU-issued press statement.
Co-counsel Andrew Woodmansee, with Morrison & Foerster, added: "Americans have a right to chronicle the activities of law enforcement. The Department of Justice recently has stated that the right of a citizen to gather information about government officials - including photographs - 'serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.' While the government has an interest in guaranteeing the security of the United States, it should have no role in stifling speech or violating our right to be secure in our person and our papers."
The plaintiffs seek declaratory judgment that the defendants broke the law, that the plaintiffs are allowed to take video and photos at U.S ports of entry, and want the border police enjoined from seizing their cameras or recording devices "without a warrant, probable cause, reasonable suspicion, consent, exigent circumstances, or any other justification."
They also seek costs and nominal or punitive damages.
CBP spokesman Ralph DeSio told Courthouse News that the agency could not comment on ongoing litigation but recognized "that travelers awaiting inspection at a port of entry will use electronic devices to communicate their status to family members, friends, or professional contacts."
"Due to security concerns, once a traveler begins the inspection process in the federal inspection station, CBP prohibits the use of these devices in order to ensure the safety of the CBP officer and the traveling public, and to protect against the unauthorized disclosure of information and the advancement of criminal activity," DeSio said in an email.
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