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Ray Askins, et al v. U.S. Department of For Preliminary Homeland Security

April 12, 2013

RAY ASKINS, ET AL.,
PLAINTIFFS,
v.
U.S. DEPARTMENT OF FOR PRELIMINARY HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

INJUNCTION [DOC. 19] ORDER DENYING MOTION

Pending before the Court is Plaintiff Ray Askins' and Plaintiff Christian Ramirez's (collectively, "Plaintiffs") motion for a preliminary injunction. Defendants United States Department of Homeland Security, David V. Aguilar, Billy Whitford, and Frank Jaramillo ("Defendants") oppose the motion. Having reviewed and considered the parties' arguments as set forth in their papers, for the reasons outlined below, the Court DENIES the motion for a preliminary injunction [Doc. 19].

I. BACKGROUND

Plaintiffs allege that in two separate but similar incidents, their First Amendment rights were infringed. The first incident involved Mr. Ramirez and occurred on June 20, 2010 at the San Ysidro Port of Entry. The second involved Mr. Askins and occurred on April 19, 2013 at the Calexico Port of Entry. Plaintiffs filed the instant motion for preliminary injunction to "prevent further violations of Plaintiffs' First Amendment right to photograph matters exposed to public view, including the conduct of law enforcement officers in the course of their duties." (Pls.' Mot. Prelim. Inj. [Doc 19-1], p. 9.)

A. Incident Involving Mr. Ramirez

Mr. Ramirez is a U.S. citizen living in San Diego, California who crosses the border three or four times a month, often to visit his family in Mexico. (Declaration of Christian Ramirez [Doc. 19-3], ¶¶ 2, 3.) He works as the Human Rights Director for Alliance San Diego, a nonprofit organization dedicated to a number of causes, including issues related to immigrant rights at the U.S.-Mexico Border. (Id., ¶ 4.) As part of his job, and as a concerned member of the "border community," Ramirez often visits the U.S.-Mexico border "to observe law enforcement activity and monitor human rights issues." (Id., ¶ 5.)

On or around June 20, 2010, Mr. Ramirez and his wife were returning to the United States from visiting a family member in Mexico. (Id., ¶¶ 6-7.) After being admitted into the United States, Mr. Ramirez and his wife crossed a pedestrian bridge that passes over Interstate 5 on the U.S. side of the border. (Id., ¶ 7.) While crossing the bridge, Mr. Ramirez noticed that male CBP officers were inspecting and patting down female pedestrians at a southbound pedestrian checkpoint below the bridge. (Id., ¶ 8.) Mr. Ramirez claims that his wife said that the officers were only inspecting female pedestrians. (Id.) Mr. Ramirez stopped for more than ten minutes to observe the checkpoint, taking several pictures with his cell phone camera "out of concern that the officers were acting inappropriately." (Opp'n, pp. 5--6 (citing Decl. Ramirez, ¶ 9).) Defendants claim that Mr. Ramirez admits to having taken these photos while on CBP port of entry property. (Opp'n., pp. 9-10.) Mr. Ramirez denies this claim. (Reply [Doc. 30] 5.) It is undisputed that Mr. Ramirez did not attempt to obtain permission from CBP prior to photographing the port of entry. (See Declartion of Billy Whitford [Doc 27-1],¶¶ 38-42; See generally Pls.' Mot. Prelim. Inj.; See generally Reply.)

While Mr. Ramirez was observing and photographing the checkpoint, a uniformed officer asked him to present his personal identification documents and to stop taking pictures. (Decl. Ramirez, ¶¶ 11, 12.) After explaining that he had already passed through inspection, refusing to hand over his documents, and taking another picture of the officer, Mr. Ramirez and his wife began to descend the pedestrian bridge. (Id., ¶¶ 12, 13.) Mr. Ramirez alleges that he was subsequently detained, questioned, and searched. (Id., ¶¶ 14-21.) Mr. Ramirez claims that a CBP officer took his phone and deleted all of his photos of the checkpoint. (Id. ¶ 22.) CBP has not located records of any incident involving Mr. Ramirez on or around June 20, 2010. (Opp'n. 11.)

B. Incident Involving Mr. Askins

Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. (Declaration of Ray Askins [Doc. 19-2], ¶¶ 2, 3.) He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.-Mexico border region. (Id., ¶ 3.) Mr. Askins' work "involves extensive research, investigation, and analysis of CBP activities." (Id., ¶4.) On April 18, 2012, Plaintiff Ray Askins emailed Calexico Port Director Billy Whitford and Calexico Public Affairs and Supervisory CBP Officer John Campos, requesting permission to photograph the interior of the vehicle secondary inspection area of the Calexico Port of Entry. (Decl. Whitford, ¶ 12; Decl. Whitford, Ex. C.) His email, sent at approximately 4:30 p.m., indicated he would be passing through the Calexico port around noon on April 19, 2013. (Decl. Whitford, Ex. C.) Mr. Askins alleges that he also called Officer Campos on April 18, 2012 with the same request. (Decl. Whitford, ¶ 8.) According to Mr. Askins, Officer Campos said that it would be inconvenient for him to take the requested photos, but he did not explicitly object to the request. (Decl. Whitford, ¶ 8.)

The next morning, on April 19, 2013, having received no response from Mr. Whitford, Mr. Askins called Officer Campos to follow up on his request. (Decl. Whitford, ¶ 13.) Defendants contend that Officer Campos explained to Mr. Askins that he did not have permission to photograph the secondary vehicle inspection area at that time, but was free to photograph the port of entry when not on port of entry property. (Id.) Mr. Askins claims that his call was not answered, and he left a voicemail indicating that instead of taking photographs inside the secondary inspection area, he would stand on the street in Calexico and photograph the secondary inspection from there. (Decl. Askins, ¶ 10.)

Later that day, Mr. Askins drove to Calexico and photographed the exit of secondary inspection area. (Decl. Askins, ¶ 10.) Mr. Askins contends that he took the photos from a public street outside the port of entry. (Id. ¶ 11.) Defendants contend that the location where Mr. Askins took the photos was on port of entry property. (Decl. Whitford, ¶ 14.) Shortly thereafter, Mr. Askins was detained and searched by CBP officers who had observed him taking photographs. (Decl. Whitford [Doc. 27-1] ¶¶ 14, 16, 17, 18.) Mr. Askins alleges that the CBP officers deleted the photos he had taken after Mr. Askins refused the CBP officers' request to delete the photos. (Decl. Askins, ¶¶12-13, 20.) CBP denies deleting Askins's photographs. (Opp'n., p. 10; Whitford Decl., ¶¶19, 21.)

On October 24, 2012, Plaintiffs filed their complaint against Defendant, claiming violations of the First and Fourth Amendments. (Compl. [Doc. 1].) On January 29, 2013, Plaintiffs filed a motion for preliminary injunction based on Defendants' alleged violations of the First Amendment. (Pls.' Mot. Prelim. Inj. [Doc. 19]; see also Reply [Doc. 30].) Defendants oppose. (Opp'n [Doc. 27].)

II. LEGAL STANDARD

Under Rule 65 of the Federal Rules of Civil Procedure, a district court has the authority to issue a preliminary injunction in the exercise of its equitable powers. Fed. R. Civ. P. 65. "The standard for granting a preliminary injunction balances the plaintiff's likelihood of success against the relative hardship to the parties." Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2008). A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. ...


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