Darren chaker-first amendment

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Case No. 12CV2600 W BLM
Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
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M. ANDREW WOODMANSEE (CA SBN 201780)
MAWoodmansee@mofo.com
KIMBERLY R. GOSLING (CA SBN 247803)
kgosling@mofo.com
JEFFREY M. DAVID (CA SBN 265503)
JDavid@mofo.com
MARY PRENDERGAST (CA SBN 272737)
MPrendergast@mofo.com
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: 858.720.5100
DAVID LOY (CA SBN 229235)
DavidLoy@aclusandiego.org
SEAN RIORDAN (CA SBN 255752)
SRiordan@aclusandiego.org
ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES
P.O. Box 87131
San Diego, California 92138-7131
Telephone: 619.232.2121
Attorneys for Plaintiffs
RAY ASKINS and CHRISTIAN RAMIREZ
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RAY ASKINS and CHRISTIAN
RAMIREZ,
Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY;
DAVID V. AGUILAR, Deputy
Commissioner of United States
Customs and Border Protection;
CALEXICO PORT DIRECTOR
BILLY WHITFORD; SAN YSIDRO
PORT DIRECTOR FRANK
JARAMILLO; UNITED STATES
CUSTOMS & BORDER
PROTECTION OFFICERS DOES 1
through 15; and DOES 16 through 50,
Defendants.
Case No. 12CV2600 W BLM
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS UNDER FRCP 12(B)(6)
Date: April 15, 2013
Time: NO ORAL ARGUMENT
SCHEDULED PER
LOCAL RULE
Dept.: 7
Judge: Thomas J. Whelan
Case 3:12-cv-02600-W-BLM Document 32 Filed 03/13/13 Page 1 of 38

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TABLE OF CONTENTS
Page
I. INTRODUCTION............................................................................................1
II. BACKGROUND..............................................................................................2
A. CBP Interfered with Mr. Askins’s Speech.............................................2
B. CBP Interfered with Mr. Ramirez’s Speech..........................................5
C. CBP Interfered with Plaintiffs’ Speech Pursuant to Official Policy
and Practice............................................................................................8
D. Plaintiffs Wish to Continue Taking Photographs at U.S. Ports of
Entry, But CBP’s Policy and Practice Deters and Prevents Them
from Doing So........................................................................................8
III. LEGAL STANDARD......................................................................................9
IV. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE
FIRST AMENDMENT..................................................................................10
A. Plaintiffs’ Plausibly Allege They Were in Public Fora. ......................11
B. CBP’s Regulation Is Not Reasonable and Viewpoint-Neutral and
Thus Is Unconstitutional......................................................................15
1. CBP’s Regulation is Unconstitutional Because it is
Unreasonable. ............................................................................16
a. The Regulation Is Unreasonably Underinclusive. ..........16
b. CBP’s Regulation Does Not Target Disruption..............18
2. CBP’s Regulation Unconstitutionally Permits Viewpoint
Discrimination. ..........................................................................19
V. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER THE
FOURTH AMENDMENT.............................................................................21
A. A Violation of CBP’s Unconstitutional Prohibition on All
Photography Cannot Provide CBP Officers With Probable Cause.....22
B. Plaintiffs Have Sufficiently Alleged a Pattern of Officially
Sanctioned Behavior in Violation of the Fourth Amendment.............25
C. Plaintiffs Assert Independent Fourth Amendment Claims Based
on Unconstitutional Search and Seizure of Their Cameras.................26

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ii Case No. 12CV2600 W BLM
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VI. IN THE ALTERNATIVE, PLAINTIFFS ARE ENTITLED TO
LEAVE TO AMEND.....................................................................................28
VII. CONCLUSION ..............................................................................................28

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iii Case No. 12CV2600 W BLM
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TABLE OF AUTHORITIES
Page(s)
CASES
ACLU of Ill. v. Alvarez,
679 F.3d 583 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012) ..................................10
Al-Kidd v. Ashcroft,
580 F.3d 949 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074
(2011)....................................................................................................................9
Anderson v. City of Hermosa Beach,
621 F.3d 1051 (9th Cir. 2010)............................................................................10
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .............................................................................................9
Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585 (8th Cir. 2009)................................................................................9
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) ...........................................................................................10
Child Evangelism Fellowship of Md., Inc. v. Montgomery Co. Pub. Sch.,
457 F.3d 376 (4th Cir. 2006)..............................................................................19
Cincinnati v. Discovery Network, Inc.,
507 U.S. 410 (1993) ...........................................................................................17
Cornelius v. NAACP Legal Defense & Educ. Fund,
473 U.S. 788 (1985) ...............................................................................11, 12, 18
Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu,
455 F.3d 910 (9th Cir. 2006), cert. denied, 132 S. Ct. 1583 (2012)............16, 18
Deepakkumar Himatlal Soneji v. Dep’t of Homeland Sec.,
525 F. Supp. 2d 1151 (N.D. Cal. 2007)................................................................9
Doe v. United States,
58 F.3d 494 (9th Cir. 1995)................................................................................28
Dumas v. Kipp,
90 F.3d 386 (9th Cir. 1996)................................................................................28

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iv Case No. 12CV2600 W BLM
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Fordyce v. City of Seattle,
55 F.3d 436 (9th Cir. 1995) .............................................................................................10
Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011) ................................................................................10
Hebbe v. Pliler,
627 F.3d 340 (9th Cir. 2010)..........................................................................9, 13
In re Verifone Sec. Litig.,
11 F.3d 865 (9th Cir. 1993) .............................................................................................24
Int’l Soc. for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672 (1992) ...........................................................................................18
Intri-Plex Tech., Inc. v. Crest Grp., Inc.,
499 F.3d 1048 (9th Cir. 2007)............................................................................13
Kaahumanu v. Hawaii,
682 F.3d 789 (9th Cir. 2012)........................................................................19, 20
L.H. v. Schwarzenegger,
No. 06-2042, 2007 WL 662463 (E.D. Cal. Feb. 28, 2007)................................25
Ladue v. Gilleo,
512 U.S. 43 (1994) .............................................................................................17
Leonard v. Robinson,
477 F.3d 347 (6th Cir. 2007)..............................................................................21
Libertarian Party of Los Angeles v. Bowen,
-- F.3d --, 2013 WL 815584 (9th Cir. March 6, 2013).......................................14
Lopez v. Smith,
203 F.3d 1122 (9th Cir. 2000)............................................................................28
Maryland v. Macon,
472 U.S. 463 (1985) ...........................................................................................27
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012)..............................................................................26
Miller v. City of Cincinnati,
622 F.3d 524 (6th Cir. 2010)..............................................................................19

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Mocek v. Albuquerque, et al.,
No. 11-cv-1009, 2013 WL 312881 (D.N.M. Jan. 14, 2013)................................... 18
Morse v. Frederick,
551 U.S. 393 (2007) .......................................................................................................... 19
Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles,
246 F.R.D. 621 (C.D. Cal. 2007) ................................................................................... 26
OSU Student Alliance v. Ray,
699 F.3d 1053 (9th Cir. 2011)................................................................................................. 12
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983)....................................................................................................... 15, 16
Roaden v. Kentucky,
413 U.S. 496 (1973) .......................................................................................................... 27
Robinson v. Fetterman,
378 F. Supp. 2d 534 (E.D. Pa. 2005)............................................................................. 20
Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995) .......................................................................................................... 17
Seifert v. Winter,
555 F. Supp. 2d 3 (D.D.C. 2008) .......................................................................23
Smith v. Cumming,
212 F.3d 1332 (11th Cir. 2000)...................................................................................... 10
Starr v. Baca,
652 F.3d 1202 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012)..................... 9
Stewart v. Dist. of Columbia Armory Bd.,
863 F.2d 1013 (D.C. Cir. 1988)...................................................................................... 13
United Food & Comm. Workers Union, Local 1099 v.
Sw. Ohio Reg’l Transit Auth.,
163 F.3d 341 (6th Cir. 1998)........................................................................................... 15
United States v. Alghazouli,
517 F.3d 1179 (9th Cir. 2006)......................................................................................... 22

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United States v. Brice,
926 F.2d 925 (9th Cir. 1991)..............................................................................23
United States v. Cervantes,
678 F.3d 798 (9th Cir. 2012)..............................................................................26
United States v. Cotterman,
– F.3d –, 2013 WL 856292 (9th Cir. March 8, 2013)........................................20
United States v. Crop Growers Corp.,
954 F.Supp. 335 (D.D.C. 1997) .........................................................................24
United States v. Finley,
477 F.3d 250 (5th Cir. 2007)..............................................................................27
United States v. Grace,
461 U.S. 171 (1983) ...........................................................................................13
United States v. Karo,
468 U.S. 705 (1984) ...........................................................................................26
United States v. Kokinda,
497 U.S. 720 (1990) .....................................................................................12, 15
United States v. Lamson,
162 F. 165 (D.R.I. 1908) ....................................................................................24
United States v. Stansell,
847 F.2d 609 (9th Cir. 1988)..............................................................................23
United States v. Young,
278 F. App’x 242 (4th Cir. 2008).......................................................................27
Van Gesner v. United States,
153 F. 46 (9th Cir. 1907)....................................................................................22
Vanguard Outdoor, LLC v. Los Angeles,
648 F.3d 737 (9th Cir. 2011)..............................................................................17
Venetian Casino Resort, L.L.C. v. Local Jt. Exec. Bd. of Las Vegas,
257 F.3d 937 (9th Cir. 2001)..............................................................................12

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Yordy v. Astrue,
No.1:09-cv-03028-NJV,
2010 U.S. Dist. LEXIS 14966 (N.D. Cal. Feb. 22, 2010)..............................9, 10
STATUTES
6 U.S.C. § 111(b)(1)(G)...........................................................................................20
40 U.S.C. § 121(c)...................................................................................................23
OTHER AUTHORITIES
41 C.F.R. § 102-74.420 ...............................................................................22, 23, 24
41 C.F.R. § 102-74.420(c).......................................................................................23
41 C.F.R. § 102-74.450 .....................................................................................22, 23
Fed. R. of Civ. Proc. 12(b)(6) ................................................................................................. 9
Fed. R. Evid. 201.....................................................................................................23
Fed. R. Evid. 201(b) ................................................................................................13

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I. INTRODUCTION
Defendants’ motion to dismiss is a premature attempt to avoid judicial
inquiry into their unconstitutional prohibition on Plaintiffs’ exercise of clearly
established First Amendment rights.
Photography is pure First Amendment speech, entitled to constitutional
protection regardless of subject. As the Department of Justice itself has
emphasized, “[r]ecording governmental officers engaged in public duties is a form
of speech through which private individuals may gather and disseminate
information of public concern, including the conduct of law enforcement officers.”
(Complaint at Ex. A (U.S. Dep’t of Justice, Letter to the Parties dated May 14,
2012, Sharp v. Baltimore City Police Dept., et. al., No. 1:11-cv-02888-BEL (D.
Md.) (“DOJ Letter to the Parties in Sharp”), at 2.) The right to gather and
disseminate such information “serves a cardinal First Amendment interest in
protecting and promoting ‘the free discussion of governmental affairs.’” (Id. at 3.)
Plaintiffs seek only to protect their core First Amendment rights to take
photographs and engage in political speech that holds government officials
accountable.
Defendants argue that Plaintiffs’ Complaint is inadequate. But Plaintiffs
need only show a claim to relief that is plausible on its face, and they have
sufficiently alleged both First and Fourth Amendment violations. Defendants’
arguments to the contrary are based on assertions about which there is a factual
dispute, and thus dismissal of these claims would be premature. Whether or not the
Court later finds Plaintiffs were in a public forum, Defendants have not established
that their regulation is reasonable and viewpoint-neutral such that Plaintiffs’ claims
are implausible. Moreover, Plaintiffs seek only to protect their right to take photos
of matters already exposed to public view, and not to engage in unrestricted
photography anywhere “on land ports of entry.” (Motion to Dismiss (“Mot.”) at 1.)
The Court should reject Defendants’ attempts to exaggerate the relief Plaintiffs are

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seeking in order to undermine Plaintiff’s ability to state a claim for that relief.
Finally, Plaintiffs have adequately pled a violation of the Fourth Amendment as a
result of being detained, searched, and having their property seized without
probable cause. Defendants point to no authority allowing them to criminalize
violations of CBP’s own internal policy; Plaintiffs therefore could not
constitutionally be detained and searched on that basis. Because neither plaintiff
was in the act of crossing the border at the time of the incidents, Defendants’ pleas
for “greater deference” to its inspection rights are misplaced.
Whatever CBP may contend, it is not exempt from the First Amendment and
the border is not a First Amendment-free zone. Plaintiffs seek only to protect their
own well-established “First Amendment right to photograph matters exposed to
public view”—including the exterior of CBP buildings and officers carrying out
their duties in public. Because CBP’s prohibition on all photography without prior
CBP authorization is not reasonable and viewpoint-neutral as applied to matters
exposed to public view, Plaintiffs have adequately pled plausible violations of their
First and Fourth Amendment rights. Defendants’ motion should be denied.
II. BACKGROUND
In similar incidents at separate U.S. ports of entry, CBP interfered with
Plaintiffs’ speech by detaining them, seizing their personal property, and erasing
photos taken by Plaintiffs of CBP personnel and buildings. These incidents reflect
CBP’s policy and practice of prohibiting the use of cameras and video recording
devices to film matters exposed to public view in and around U.S. ports of entry,
without CBP’s prior approval. Although Plaintiffs strongly wish to continue
recording CBP activities and facilities, CBP’s policy and practice unlawfully deter
and prevent them from doing so.
A. CBP Interfered with Mr. Askins’s Speech.
Plaintiff Ray Askins is a U.S. citizen living primarily in Mexicali, Mexico.
(Complaint ¶17.) He travels frequently to the United States, often to attend

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meetings or to visit his home in Lake Arrowhead, California. (Id.)
Mr. Askins maintains and contributes to a blog that primarily addresses
environmental issues and human rights abuses in the U.S.-Mexico border region.
(Id.) This work involves extensive research, investigation, and analysis of CBP
activities. (Id.) Additionally, this work has culminated in numerous reports
prepared by Mr. Askins and submitted to then-U.S. Representative Bob Filner,
whose former congressional district includes the entire California-Mexico border.
(Id.)
In April 2012, Mr. Askins attempted to take photographs of the Calexico-
Mexicali Port of Entry for a presentation at a conference entitled “Health Impacts of
Border Crossings,” held on May 4, 2012, in San Ysidro, California. (Id. ¶¶ 18, 20.)
In connection with his conference presentation, Mr. Askins wished to photograph
the secondary inspection area of the Calexico-Mexicali Port of Entry to demonstrate
that the CBP does not make full and proper use of this inspection area, leading to
longer delays at the border crossing and, accordingly, to more pollution arising
from emissions of vehicles waiting in line to cross the border or enter the port of
entry. (Id. ¶ 19.)
Mr. Askins initially contacted CBP Officer John Campos by phone on or
about April 18, 2012, seeking permission to take three or four photographs inside
the secondary inspection area at the Calexico Port of Entry the next day. (Id. ¶ 20.)
Officer Campos said that this would be inconvenient, but otherwise did not object
to the request. (Id.)
On or about April 19, 2012, Mr. Askins called Officer Campos to follow up.
(Id. ¶ 21.) When he received no answer, Mr. Askins left a voicemail message
stating that, instead of taking photographs inside the building, he would stand on
the street in Calexico and take photographs of the exit of the secondary inspection
area. (Id.) As planned, Mr. Askins then drove to Calexico, California, and took
three or four photographs of the exit of secondary inspection from a vantage point

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on the shoulder of a public street, approximately 50 to 100 feet from the secondary
inspection exit. (Id. ¶ 22.) Mr. Askins remained outside the port of entry on the
U.S. side of the border when taking these photographs. (Id. ¶ 24.) He was not
engaged in the act of crossing the border. (Id.)
Shortly after Mr. Askins took the photos, a number of male CBP officers
approached him. (Id. ¶ 25.) One or two of the officers demanded that Mr. Askins
delete the photos. (Id.) When Mr. Askins stated that he would not do so, one or
more of the officers responded that they would smash the camera if Mr. Askins did
not delete the photos. (Id.) Mr. Askins again declined to delete the photos,
explaining that they were his property. (Id.) The officers then handcuffed Mr.
Askins from behind and took his camera, passport, car keys, and hat. (Id.) The
CBP officers spoke to Mr. Askins in an aggressive and threatening manner
throughout this encounter, despite the fact that Mr. Askins at no point posed a threat
to the safety of the officers and at no point resisted arrest. (Id. ¶ 26.) Furthermore,
Mr. Askins committed no crime and took no actions giving rise to probable cause
or a reasonable suspicion that he had committed or was about to commit a crime.
(Id.)
After Mr. Askins was handcuffed and his possessions taken, Officer Doe 1
forcefully led Mr. Askins into a small room inside the secondary inspection area,
holding Mr. Askins’s right arm in a tight grip that caused significant pain and
bruising on the inside of Mr. Askins’s arm. (Id. ¶ 27.) The officer told Mr. Askins
to sit down. (Id. ¶ 27.) Mr. Askins was not free to leave the room. (Id.)
After about 20 minutes, Officer Doe 1 led Mr. Askins to a separate room
where he subjected Mr. Askins to an invasive and embarrassing physical search.
(Id. ¶ 28.) During the search, Mr. Askins remained clothed and Officer Doe 1 used
his hands to pat Mr. Askins’s entire body. (Id.) Mr. Askins felt that he was being
groped, and experienced particular discomfort when Officer Doe 1 unnecessarily
squeezed and touched Mr. Askins’s groin area several times. (Id.)

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After detaining Mr. Askins for approximately 25 to 35 minutes, one or more
CBP officers told him that he was free to go and returned his belongings. (Id. ¶ 29.)
When Mr. Askins later scrolled through the pictures on his digital camera, he
discovered that all but one of the photographs he just had taken of the port of entry
had been deleted. (Id. ¶ 30.)
B. CBP Interfered with Mr. Ramirez’s Speech.
Mr. Ramirez is a U.S. citizen living in San Diego, California. (Id. ¶ 33.)
He crosses the U.S.-Mexico border approximately three to four times per month,
often to visit family members living in Mexico. (Id.)
Mr. Ramirez works as the Human Rights Director at Alliance San Diego.
(Id. ¶ 34.) Alliance San Diego is a non-profit, non-partisan organization with the
mission of providing a means for diverse individuals to share information,
collaborate on issues, and mobilize for change in the pursuit of social justice,
especially in low-income communities and communities of color. (Id.) The
organization pursues this mission through targeted civic engagement programs and
strategic coalitions that focus on specific issues and policy reforms, including issues
related to immigrant rights at the U.S.-Mexico border. (Id.)
As part of his job, Mr. Ramirez regularly visits the U.S.-Mexico border to
observe law enforcement activity and monitor human rights issues. (Id. ¶ 35.) He
does this not only for work but also out of a sense of personal responsibility as a
lifelong member of the border community. (Id.) He has long believed that it is
important to document law enforcement activity at the border in order to address
and hopefully to prevent the abuse of human rights. (Id.)
On or about June 20, 2010, Mr. Ramirez and his wife crossed the border into
Mexico to have lunch with his father. (Id. ¶ 36.) Mr. Ramirez and his wife parked
on the U.S. side of the border and crossed into Mexico. (Id.) Upon their return,
Mr. Ramirez and his wife were admitted into the United States without incident.

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(Id. ¶ 37.) They then crossed a pedestrian bridge that passes over Interstate 5 on the
U.S. side of the border. (Id.)
While crossing this pedestrian bridge, Mr. Ramirez noticed that, at a CBP-
staffed southbound pedestrian checkpoint below him, women were being inspected
and patted down by male CBP officers. (Id. ¶ 38.) Mr. Ramirez’s wife commented
that the officers appeared to be pulling aside only women for inspection. (Id.) Mr.
Ramirez observed the checkpoint for approximately 10 to 15 minutes. (Id. ¶ 39.)
During that time, Mr. Ramirez took approximately 10 pictures using his cell phone
camera, out of concern that the CBP officers might be acting inappropriately. (Id.)
Mr. Ramirez was in the United States when he took these photographs. (Id. ¶ 41.)
While observing the checkpoint, Mr. Ramirez and his wife were approached
by two men who appeared to be private security officers. (Id. ¶ 42.) One of the
private security officers asked for Mr. Ramirez’s personal identification documents.
(Id.) Mr. Ramirez explained that he and his wife had already passed through
inspection and declined to hand over his documents again. (Id.) One of the private
security officers then ordered Mr. Ramirez to stop taking photographs. (Id. ¶ 43.)
Mr. Ramirez refused and took a picture of the private security officer. (Id.) Acting
aggressively, the private security officer attempted to grab Mr. Ramirez. (Id.) Mr.
Ramirez stopped taking photographs and said to his wife, “let’s go.” (Id.)
Mr. Ramirez and his wife then began to descend the pedestrian bridge, now
followed by the private security officers, whom Mr. Ramirez heard send a radio call
for backup. (Id. ¶ 44.) Approximately five to seven CBP officers were waiting at
the bottom of the bridge. (Id.) They asked whether and why Mr. Ramirez had
taken any photographs. (Id.) Mr. Ramirez responded that he had taken the
photographs because he had witnessed what he believed to be inappropriate activity
by CBP officers at the checkpoint—namely, the patting down of women by male
officers. (Id.) The CBP officers at the bottom of the bridge then asked Mr.

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Ramirez to turn over his phone. (Id. ¶ 45.) Mr. Ramirez refused and explained that
he was willing only to show them the photographs. (Id.)
An officer in plain clothes then confronted Mr. Ramirez and asked for Mr.
Ramirez’s personal identification documents. (Id. ¶ 46.) The officer later
identified himself as a U.S. Immigration and Customs Enforcement (“ICE”) agent.
(Id.) After Mr. Ramirez refused to turn over his documents and explained that they
had already been inspected, the ICE officer responded, “Give me one other reason
to take you down.” (Id.) The officer then took Mr. Ramirez’s and Mr. Ramirez’s
wife’s passports out of Mr. Ramirez’s shirt pocket and went to a nearby office.
(Id.) As the ICE officer walked away, a CBP officer took Mr. Ramirez’s phone and
scrolled through the photos, making a comment about Mr. Ramirez’s personal
pictures. (Id. ¶ 47.) As with Mr. Askins, the private security and CBP officers
spoke to Mr. Ramirez in an aggressive and threatening manner throughout this
encounter. (Id. ¶ 48.)
Approximately ten to fifteen minutes after the ICE agent had taken the
passports belonging to Mr. Ramirez and Mr. Ramirez’s wife, the agent returned
with the documents and gave them back to Mr. Ramirez. (Id. ¶ 49.) Mr. Ramirez
and his wife were then allowed to continue on their way. (Id.) During the entire
encounter at the bottom of the bridge, Mr. Ramirez and his wife were separated
from each other by CBP officers. (Id. ¶ 50.) The officers essentially created a
buffer area around Mr. Ramirez while they questioned him and took his cell phone.
(Id.) Neither Mr. Ramirez nor his wife felt free to leave at any point during that
time. (Id.)
When Mr. Ramirez later looked through the contents of his phone, he
discovered that the CBP officer who took his phone had deleted all of the photos
that Mr. Ramirez had just taken while crossing the pedestrian bridge. (Id. ¶ 47.)

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C. CBP Interfered with Plaintiffs’ Speech Pursuant to Official
Policy and Practice.
As Plaintiffs’ experiences demonstrate, CBP has a clear practice of
prohibiting photographs at or near CBP-controlled facilities. CBP not only deletes
photographs it deems impermissible, but also intimidates and harasses the
photographers for the apparent purpose of discouraging future recordings.
CBP’s subsequent statements to Mr. Askins further demonstrate that CBP
officers acted pursuant to an official policy. After the April 19, 2012 incident, Mr.
Askins sent a letter of complaint to Port Director Billy Whitford. (Complaint, Ex.
C.) In his response, Director Whitford stated:
In response to the issues raised in your complaint, the area
in question is currently under the jurisdiction of GSA
[(General Services Administration)] and CBP. CBP
security policies prohibit visitors at CBP-controlled
facilities from using cameras and video recording devices
without the prior approval from the senior CBP official
(Port Director or designee).
(Id.) Finally, documents submitted with Defendants’ Motion to Dismiss
demonstrate that CBP prohibits all photography on port of entry property without
the prior written permission of CBP authorities. (Mot., Ex. B.)
D. Plaintiffs Wish to Continue Taking Photographs at U.S.
Ports of Entry, But CBP’s Policy and Practice Deters and
Prevents Them from Doing So.
Both Mr. Askins and Mr. Ramirez strongly hope to continue making
photographic and video recordings of CBP buildings and personnel in public view
at the San Ysidro, Calexico, and other U.S. ports of entry in the future. For Mr.
Askins, the photographs and videos allow him to document air pollution and human
rights abuses at the border. (See Complaint ¶ 32.) Similarly, for Mr. Ramirez, the
photographs and videos are a way to document human rights abuses and to monitor
activity in his border community. (Id. ¶ 51.) Indeed, Mr. Ramirez considers

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documenting such border issues to be a fundamental piece of his identity and part
of his life experience. (Id.)
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a complaint should not be
dismissed if “it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
(2007). Indeed, “Rule 12(b)(6) motions are viewed with disfavor and are properly
granted” only “under extraordinary circumstances.” Yordy v. Astrue, No.1:09-cv-
03028-NJV, 2010 U.S. Dist. LEXIS 14966, *4 (N.D. Cal. Feb. 22, 2010).
A complaint need only allege “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. In considering a motion to
dismiss for failure to state a claim, the Court must accept as true the allegations of
the complaint in question, “construe the pleading in the light most favorable to the
party opposing the motion, and resolve all doubts in the pleader’s favor.” Hebbe v.
Pliler, 627 F.3d 340 (9th Cir. 2010); see also Deepakkumar Himatlal Soneji v.
Dep’t of Homeland Sec., 525 F. Supp. 2d 1151, 1157 (N.D. Cal. 2007). The Court
reads the complaint “as a whole, not parsed piece by piece to determine whether
each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009). Moreover, “Twombly and Iqbal do not require that
the complaint include all facts necessary to carry the plaintiff’s burden.” Al-Kidd v.
Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct.
2074 (2011). “Asking for plausible grounds to infer the existence of a claim for
relief does not impose a probability requirement at the pleading stage; it simply
calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence to prove that claim.” Id. “If there are two alternative explanations, one
advanced by defendant and the other advanced by plaintiff, both of which are
plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101

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(2012).
“[T]he Court is generally confined to consideration of the allegations in the
pleadings[.]” Yordy, 2010 U.S. Dist. LEXIS 14966 at *5. However, while the
Court cannot accept “new” facts alleged in opposition papers, a plaintiff’s briefing
may always be used to clarify allegations in a complaint. Id.
IV. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER
THE FIRST AMENDMENT
Defendants exaggerate the relief Plaintiffs actually seek in order to argue that
Plaintiffs cannot demonstrate entitlement to that relief. Plaintiffs do not seek the
ability to engage in “unrestricted photography on ports of entry….” (Mot. at 17.)
To the contrary, Plaintiffs’ seek to prevent CBP from impeding their attempts to
photograph officers in the public discharge of their duties and matters exposed to
public view such as the exterior of CBP buildings, which could also be
photographed from off port of entry property. This case is not about the right to
enter into port of entry buildings and take photographs of CBP computer screens
and sensitive documents — none of these things are exposed to public view from
outside port of entry buildings and thus they are outside the scope of Plaintiffs’
request for relief. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985)
(court must not “formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied”). The Court accordingly should reject
Defendants’ attempts to overstate the scope of Plaintiffs’ claims in order to argue
that Plaintiffs have not alleged a plausible claim to relief.
Stripping away this overbroad characterization, Plaintiffs have stated a claim
for relief under the First Amendment. Photography is protected by the First
Amendment, especially in the context of holding the government accountable.
ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir.), cert. denied, 133 S. Ct. 651
(2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. Cumming, 212
F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th

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Cir. 1995); cf. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th
Cir. 2010) (both process and product of making “realistic or abstract images” are
“pure expression entitled to full First Amendment protection”).
Plaintiffs have sufficiently pled that they were in public fora at the time of
the incidents, and Defendants have not established to the contrary despite
submitting reams of documents for judicial notice. But even if Plaintiffs were
located in nonpublic fora, Plaintiffs have sufficiently pled that CBP’s regulation is
unreasonable and not viewpoint-neutral. Properly construed in the light most
favorable to Plaintiffs, the allegations plausibly state a claim for violations of their
First Amendment rights, and Defendants’ Motion to Dismiss should be denied.
A. Plaintiffs’ Plausibly Allege They Were in Public Fora.
The government’s ability to limit protected speech depends on the nature of
the forum in which that speech occurs. Cornelius v. NAACP Legal Defense &
Educ. Fund, 473 U.S. 788, 797, (1985). On one end of the spectrum is the
traditional public forum, in which “speakers can be excluded . . . only when the
exclusion is necessary to serve a compelling state interest and the exclusion is
narrowly drawn to achieve that interest.” Id. at 800. But even if the forum is
nonpublic, the government may restrict access only if “the restrictions are
reasonable and [are] not an effort to suppress expression merely because the public
officials oppose the speaker’s view.” Id. (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
Plaintiffs plausibly allege they were in public fora at the time the CBP
confronted them. Askins alleges he was on the shoulder of a public street. Ramirez
alleges he was on a pedestrian bridge. Both locations are plausibly public fora –
Defendants do not contest the issue with respect to Ramirez, except to misconstrue
Plaintiffs’ allegations. (See Mot. at 8; Complaint at ¶ 36-40.) Defendants have not
even disputed Plaintiffs’ entitlement to relief should the Court find they were in
public fora when taking their photographs. Their Motion to Dismiss should be

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denied on this basis alone.
Defendants’ arguments to the contrary are based on Defendants’ assumption
that any land owned by the government is automatically a nonpublic forum. (See
Mot. at 15.) This assumption is curious given that public parks, streets, and other
traditional public fora are often government-owned. But more importantly, mere
title to property does not control whether it is a public or nonpublic forum. See
Venetian Casino Resort, L.L.C. v. Local Jt. Exec. Bd. of Las Vegas, 257 F.3d 937,
943 (9th Cir. 2001) (discussing cases deciding “whether private property qualifies
as a public forum”). Portions of the area CBP asserts is government property may
nonetheless be a public forum, or a limited public forum, depending on their
characteristics and usage. United States v. Kokinda, 497 U.S. 720, 728–30 (1990)
(“‘location and purpose’ of [the property]” are crucial to determining nature of
forum). The location and purpose of a land port of entry may be to ensure
controlled entry into and exit from the United States, but the same is not necessarily
true of a street outside the exit from the port of entry, or a pedestrian bridge to a
parking lot, traversed after crossing the border.
Defendants attempt to define “land port of entry” broadly to swallow the
specific areas where Plaintiffs were situated when they took photos of matters
exposed to public view. However, construing the allegations in the light most
favorable to Plaintiff, it is possible that different portions of the port area could be
different types of fora.1
And whether he was on a sidewalk or public street when
taking his photographs, Askins was in a “quintessential public forum,” “which ‘by
long tradition or by government fiat has been devoted to assembly and debate.’”
Cornelius, 473 U.S. at 802, citing Perry, 460 U.S. at 45 (parks, streets, and
1
For instance, the street running through the port and the pedestrian bridge
above the port, both readily accessible to the public, may be public fora, while the
more secure areas may be nonpublic fora. See OSU Student Alliance v. Ray, 699
F.3d 1053, 1062-63 (9th Cir. 2011) (college campus was a public forum, “except
any grounds designated for authorized access only”).

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sidewalks). Even if the federal government in fact owns that shoulder, sidewalk, or
Highway 111 itself, Askins had no reason to believe it was not a public forum. See
United States v. Grace, 461 U.S. 171, 179 (1983) (sidewalks surrounding United
States Supreme Court building indistinguishable in both location and purpose from
other public sidewalks, and thus were public fora). In any event, “the decision as to
whether a forum is public usually invokes a factual inquiry” that cannot be decided
on a motion to dismiss. Stewart v. Dist. of Columbia Armory Bd., 863 F.2d 1013,
1018 (D.C. Cir. 1988).
Plaintiffs also have plausibly alleged that they were not actually on CBP
property at the time the incidents occurred. Askins’s sole remaining photograph
does not establish exactly where Askins was standing, though he alleges that he was
50-100 feet from the port of entry and on a public street. Defendants’ attempt to
negate this well-pleaded allegation is legally and factually defective. As a threshold
matter, the Court should reject Defendants’ land transfer documents that purport to
show that Askins was on port of entry property. Those documents contain nothing
more than an incomprehensible map and information concerning a parcel of land
that is indecipherable without advanced electronic mapping software. Such
confusing information on the disputed issue of Askins’ location is paradigmatically
not subject to judicial notice. See Fed. R. Evid. 201(b) (“[a] judicially noticed fact
must be one not subject to reasonable dispute in that it . . . (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be
questioned”); Intri-Plex Tech., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th
Cir. 2007) (court may properly consider matters of public record as long as the facts
noticed are not subject to reasonable dispute) (emphasis added). Given that
Askins’s location is in dispute, the Court may not take judicial notice of his location
as Defendants request; rather, as required for the purposes of this Motion, the Court
must construe the facts in favor of Plaintiffs and resolve all doubts in Plaintiffs’
favor. See Hebbe, 627 F.3d at 340.

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Beyond Defendants’ improper attempt to judicially notice Askins’ location,
the email from a CBP official, who was not present when Askins was taking the
photo, does nothing to show that Askins was on CBP property because his
interpretation must be based on Askins’ photo, which indisputably shows he was
some distance from the port of entry. Thus, contrary to Defendants’ argument, the
information properly in the record does not demonstrate that Askins was on CBP
property, and not on a public sidewalk or in some other public space. (See Mot. at
8 n.15.) As such, there is a factual issue as to Askins’ location—a key determining
factor in whether or not CBP’s actions are constitutional. Dismissal is premature
when such factual disputes exist. See, e.g., James River Ins. Co. v. Ace Cab, Inc.,
No/ 2:11-cv-01879-MMD-PAL, 2012 U.S. Dist. LEXIS 156108, at *4-5 (D. Nev.
Oct. 31, 2012) (denying motion to dismiss that “simply presents its own version of
the facts and demonstrates that a factual dispute exists between the parties.
Evidence will determine whose version is correct; however, on a motion to dismiss,
this inquiry is premature.”)
As to Mr. Ramirez, Defendants also have not demonstrated that the
pedestrian bridge on which he was standing when the incident occurred is CBP
property. Ramirez’s allegations in the complaint say nothing about being on CBP
property. (Complaint ¶¶ 37-40.) Accordingly, Defendants’ argument that Ramirez
admits to having been on CBP property when he took the photos is baseless.
Defendants also fail to provide any reason why the bridge should be considered a
nonpublic forum even if it is owned by CBP.2
2
Defendants’ argument (Mot. at 11 n.19) that Plaintiffs lack standing is
without merit. “First Amendment challenges, such as Plaintiffs’ here, ‘present
unique standing considerations’ such that ‘the inquiry tilts dramatically toward a
finding of standing.’” Libertarian Party of Los Angeles v. Bowen, -- F.3d --, 2013
WL 815584, *1 (9th Cir. March 6, 2013) (quoting Ariz. Right to Life Political
Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). Plaintiffs have
alleged that CBP officers unconstitutionally suppressed their own photography in
violation of their First Amendment rights near ports of entry and that CBP officers
have a policy and/or practice of regularly suppressing photography at or near ports
of entry. Plaintiffs accordingly retain standing to challenge the First Amendment
(Footnote continues on next page.)

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B. CBP’s Regulation Is Not Reasonable and Viewpoint-Neutral
and Thus Is Unconstitutional.
Even if Plaintiffs were in nonpublic fora at the time they were detained and
their photographs deleted, the Court need only find that Plaintiffs have alleged
plausible grounds that the regulation is not reasonable or viewpoint-neutral to deny
Defendants’ Motion to Dismiss. Plaintiffs have done so because “[t]he
Government, even when acting in its proprietary capacity, does not enjoy absolute
freedom from First Amendment constraints.” Kokinda, 497 U.S. at 725.
A restriction on speech in a nonpublic forum is valid only if it is “reasonable”
and “not an effort to suppress expression merely because public officials oppose the
speaker’s view.” Perry, 460 U.S. at 46. Moreover, “[t]he reasonableness
requirement for restrictions on speech in a nonpublic forum requires more of a
showing than does the traditional rational basis test.” Sammartano, 303 F.3d at
966-67. Specifically, the requirement
is not the same as establish[ing] that the regulation is
rationally related to a legitimate governmental objective,
as might be the case for the typical exercise of the
government’s police power. There must be evidence in
the record to support a determination that the restriction is
reasonable. That is, there must be evidence that the
restriction reasonably fulfills a legitimate need.
Id. (citations and internal quotation marks omitted). Even in a nonpublic forum, the
court must make an “independent determination of whether the government’s rules
and its application of its rules are reasonably related to the government’s policy
objectives.” United Food & Comm. Workers Union, Local 1099 v. Sw. Ohio Reg’l
Transit Auth., 163 F.3d 341, 357 (6th Cir. 1998).
CBP’s regulation is unreasonable because it underinclusve; it allows
photography of matters exposed to public view from off of CBP property, while
(Footnote continued from previous page.)
violations based on these plausible allegations, regardless of whether CBP officers
exceeded formal CBP policy.

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simultaneously asserting that security interests allow it to prohibit the exact same
photographs by those located on CBP property. Moreover, CBP’s regulation
improperly allows the agency to exercise effectively unlimited discretion to prohibit
photography it deems inconsistent with its “mission,” which necessarily excludes
any person attempting to spontaneously record misconduct that could be used to
impugn CBP’s actions, while allowing approved photography that favors CBP.
1. CBP’s Regulation is Unconstitutional Because it is
Unreasonable.
CBP’s restriction on all photography conducted without prior permission on
CBP property is unreasonable, and thus unconstitutional. “The reasonableness
analysis focuses on whether the limitation is consistent with preserving the property
for the purpose to which it is dedicated.” Ctr. for Bio-Ethical Reform, Inc. v. City
& County of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006), cert. denied, 132 S. Ct.
1583 (2012) (citations omitted); see also Perry, 460 U.S. at 50-51. The regulation
is unreasonable because it is underinclusive and not properly targeted.
a. The Regulation Is Unreasonably Underinclusive.
CBP’s regulation cannot meet its stated goal of ensuring security, and thus is
unreasonable, because it is underinclusive and thus unconstitutional as applied to
photographing matters exposed to public view that could also be photographed
from off port of entry property. CBP’s restriction focuses on the location of the
photographer, rather than what he or she is attempting to photograph. Thus, the
restriction would not prevent individuals from taking the same or similar
photographs while standing off of port of entry property. It is simply irrational for
CBP to prohibit photography of matters exposed to public view, when those matters
can also be photographed from off port of entry property.3
3
Even the CBP website the government cites arguably reveals more about
the technology used at ports of entry than the photographs of areas open to the
public CBP unconstitutionally regulates. Available at
(Footnote continues on next page.)

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In other First Amendment cases, the courts recognize that rules restricting
speech are unconstitutional because they are unreasonably underinclusive. For
example, in the commercial speech context, which involves a reasonableness
standard similar to that for nonpublic fora, the government must “establish a
‘reasonable fit’ between its legitimate interests” and “the means chosen to serve
those interests.” Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993).
Under this standard, a restriction on speech may be unconstitutionally
underinclusive when it “ha[s] exceptions that undermine and counteract the interest
the government claims it adopted the law to further,” because “such a regulation
cannot directly and materially advance its aim.” Vanguard Outdoor, LLC v. Los
Angeles, 648 F.3d 737, 742 (9th Cir. 2011) (citations and internal quotation marks
omitted). In other words, “if the exception ensures that the regulation will fail to
achieve its end, it does not materially advance its aim,” and is therefore
unreasonable. Id.
That is the case here. As applied to matters exposed to public view, CBP’s
asserted policy does not materially advance the purported aim in protecting security
and privacy, because those matters can also be photographed from off port of entry
property, which CBP’s policy does not (and likely cannot) prohibit. On the facts
alleged, it is plausible that Plaintiffs were only taking photographs of areas
viewable to the public. Therefore, taking the facts in the light most favorable to
Plaintiffs, CBP’s policy violates the First Amendment because it is unreasonably
underinclusive. Cf. Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (though
government had “valid goal,” the “irrationality of this unique and puzzling
regulatory framework ensures” that regulation of commercial speech “will fail to
(Footnote continued from previous page.)
http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/port_security/fact_sheet_cbp_s
ecuring.xml.

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achieve that end,” because “other provisions of the same Act directly undermine
and counteract its effects”); Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions
from an otherwise legitimate regulation of a medium of speech . . . may diminish
the credibility of the . . . rationale for restricting speech in the first place.”).
b. CBP’s Regulation Does Not Target Disruption.
CBP’s restriction prohibits all photography, not just photography by persons
who are disruptive or who impede CBP officers in the performance of their duties.
As the Supreme Court explained in Cornelius, an appropriate restriction only
allows “exclusion of speakers who would disrupt the nonpublic forum and hinder
its effectiveness for its intended purpose.” Cornelius, 473 U.S. at 797. The instant
case is distinguishable from Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 683-85 (1992), and Center for Bio-Ethical Reform, 455 F.3d at 922 (cited
in Mot. at 12-15, 19), because in both cases the defendants alleged, and the court
agreed, that the plaintiffs were disruptive and therefore hindered the effectiveness
of the nonpublic fora for their intended purposes.
Defendants find no comfort in Mocek v. Albuquerque, et al., No. 11-cv-1009,
2013 WL 312881, at *1 (D.N.M. Jan. 14, 2013). That case was about
photographing TSA checkpoint procedures inside an airport building, which by
definition are not exposed to public view from outside the airport. Here, by
contrast, Plaintiffs assert the right to photograph matters exposed to public view
outside port of entry buildings that could also be photographed from off port of
entry property. Regardless of whether Mocek was correctly decided, it has no
bearing on this case, which arises on fundamentally different facts. In addition, in
Mocek, the plaintiff’s photography activities disrupted the flow of patrons through
the TSA checkpoint and could have allowed others to evade TSA’s screening
protocol. Id. at *32, 53-54. Here, Defendants do not even allege that Askins or
Ramirez were disruptive or were recording matters that could have allowed others
to evade CBP enforcement.

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Moreover, Defendants’ analogy to airport terminals (Mot. at 15) is not apt,
because even at TSA checkpoints, photography is permitted with procedures in
place to allow agents to assess a photographer’s purpose and whether he or she
poses a threat. There is no outright ban as here. Mocek, at *28 (noting that TSA
website says, “there was no general prohibition against taking photographs ‘as long
as you’re not interfering with the screening process or slowing things down.’”).
2. CBP’s Regulation Unconstitutionally Permits
Viewpoint Discrimination.
Assuming the relevant areas are nonpublic fora, CBP’s policy remains
unconstitutional for the additional reason that it improperly allows viewpoint
discrimination. Even in a nonpublic forum, viewpoint “neutrality requires not just
that a government refrain from explicit viewpoint discrimination, but also that it
provide adequate safeguards to protect against the improper exclusion of
viewpoints.” Child Evangelism Fellowship of Md., Inc. v. Montgomery Co. Pub.
Sch., 457 F.3d 376, 384 (4th Cir. 2006). When a policy for access to a nonpublic
forum allows unbridled discretion and thus “offers no protection against the
discriminatory exercise of . . . discretion, it creates too great a risk of viewpoint
discrimination to survive constitutional scrutiny.” Id. at 389; see also Kaahumanu
v. Hawaii, 682 F.3d 789, 806 (9th Cir. 2012) (viewpoint neutrality requirement
includes prohibition on a licensing authority’s “unbridled discretion” in “nonpublic
forums”).
That is the case here. Although CBP purports to permit photography
“without favoritism,” it reserves the right to prohibit photography that
“compromise[es] the DHS/CBP mission.” (Mot. at Ex. A, CBP Directive at ¶ 3.1.)
That exception improperly threatens to swallow the rule by allowing CBP the
unlimited discretion to prohibit any photography it deems inconsistent with its
“mission.” To assert the right to prohibit speech based on an agency’s
understanding of its “mission” would give the agency “a license to suppress speech

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on political and social issues based on disagreement with the viewpoint expressed,”
which “strikes at the very heart of the First Amendment.” Morse v. Frederick, 551
U.S. 393, 423 (2007) (Alito, J., concurring); cf. Miller v. City of Cincinnati, 622
F.3d 524, 540 (6th Cir. 2010) (directive allowing city officials to limit access to city
hall based on “the rights and responsibilities specified in the Charter of the City of
Cincinnati . . . offers no meaningful guidance” and therefore is unconstitutional).
Even if CBP has not in fact exploited its limitless discretion to ban photography it
deems inconsistent with its “mission,” such “discretionary power is inconsistent
with the First Amendment,” because “the potential for the exercise of such power
exists.” Kaahumanu, 682 F.3d at 807.
The danger of viewpoint discrimination is highlighted by the fact that by
definition, CBP’s policy prohibits any spontaneous “unauthorized” photography of
abuses committed by CBP agents, while allowing “authorized” photography of
matters deemed acceptable by CBP. As demonstrated by the experience of Mr.
Ramirez, it would be impossible to seek out and receive prior permission to
photograph or videotape misconduct by officers exposed to public view. Yet CBP
reserves the right to allow “authorized” photography that is consistent with its
“mission” and presumably depicts the agency in a favorable light. This kind of
viewpoint discrimination, actual or latent, cannot survive First Amendment
scrutiny, even in a nonpublic forum, especially given the fundamental First
Amendment interest in holding government accountable for its conduct.4
See, e.g.,
Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (finding “no
4
The idea advanced by Defendants that CBP has carte blanche at the border
in light of its mission is baseless. As the Ninth Circuit sitting en banc recently
reiterated, CBP’s important function “does not mean, however, that at the border
‘anything goes.’” United States v. Cotterman, – F.3d –, 2013 WL 856292, *5 (9th
Cir. March 8, 2013) (quoting United States v. Seljan, 547 F.3d 993, 1000 (9th Cir.
2008)). Defendants fail to mention that the same authority on which they rely to
establish CBP’s border security mission also includes within the agency’s “primary
mission” “ensur[ing] that the civil rights and civil liberties of persons are not
diminished by efforts, activities, and programs aimed at securing the homeland.” 6
U.S.C. § 111(b)(1)(G).

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doubt that the free speech clause of the Constitution protected” plaintiff who
videotaped officers, because “[v]ideotaping is a legitimate means of gathering
information for public dissemination and can often provide cogent evidence”).
V. PLAINTIFFS HAVE STATED A CLAIM FOR RELIEF UNDER
THE FOURTH AMENDMENT
Plaintiffs have alleged more than sufficient facts to give rise to a plausible
entitlement to relief under the Fourth Amendment. Specifically, Plaintiffs allege
that CBP officers detained and searched them without probable cause, searched and
seized their cameras, and destroyed their personal property. Defendants concede
that the only possible behavior that could have led to Plaintiffs’ detention was their
taking photographs; defendants do not allege Plaintiffs were acting suspiciously or
in a disruptive manner that might justify warrantless detention and search.
Thus, Defendants’ arguments rest on its assertions that the CBP officers had
probable cause to believe Askins and Ramirez were committing a crime. And the
only purported “crime” they identify is violation of CBP’s policy against
unauthorized photography and a regulation relating to photography on federal
property. As an initial matter, Defendants ignore the fact that a potential violation
of CBP’s prohibition on all unauthorized photography from port of entry property
cannot give rise to probable cause if that prohibition is unconstitutional as applied
to Plaintiffs. See, e.g., Leonard v. Robinson, 477 F.3d 347, 359 (6th Cir. 2007)
(statute that is unconstitutional “to the extent it is applied to Leonard’s speech,
cannot here support probable cause”). Moreover, as discussed below, Defendants
have not established that violation of this internal CBP policy constitutes a crime
for the purpose of demonstrating probable cause. Although CBP believes it should
be given greater deference due to security interests (Mot. at 22), CBP fails to make
any cognizable argument as to how this affects Plaintiff’s ability to state a plausible
claim for relief. In any event, neither Plaintiff was in the act of crossing the border
at the time the incidents occurred, rendering Defendants’ argument moot.

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Defendants’ motion should be denied.
A. A Violation of CBP’s Unconstitutional Prohibition on All
Photography Cannot Provide CBP Officers With Probable
Cause.
Defendants do not allege that Plaintiffs were disruptive or that they interfered
with CBP officers in the course of their duties. Thus, in order to cloak its agents
with probable cause for their actions in detaining Plaintiffs, CBP’s argument
depends on whether taking photographs on CBP property is a “violat[ion of] federal
law.” (Mot. at 20.) As demonstrated above, Plaintiffs have alleged sufficient facts
to demonstrate a plausible entitlement to relief from CBP’s unconstitutional policy.
A possible violation of an unconstitutional policy, whether or not it carries a
criminal penalty, cannot provide probable cause.
Moreover, while Defendants themselves are unclear about whether CBP was
investigating Plaintiff for a violation of its own internal policy or the regulation
prohibiting photography on federal property, 41 C.F.R. § 102-74.420, no statute
provides authority for the imposition of criminal liability for a violation of § 102-
74.420. Citing a venerable line of authority, the Ninth Circuit has ruled that “a
criminal conviction for violating a regulation is permissible only if a statute
explicitly provides that violation of that regulation is a crime.” United States v.
Alghazouli, 517 F.3d 1179, 1184 (9th Cir. 2006) (emphasis added) (citing United
States v. Eaton, 144 U.S. 677 (1892) and United States v. Grimaud, 220 U.S. 506
(1911)); see also Van Gesner v. United States, 153 F. 46, 53 (9th Cir. 1907) (citing
Eaton for the principle that “no rule or regulation made by the Land Department is
a law in the sense that it can make that a crime which is not made a crime by any
statute of the United States”). CBP cites to 41 C.F.R. § 102-74.450 as providing
criminal penalties for violation of § 102-74.420, but the statute that authorizes §
102-74.450 does not specifically authorize criminal penalties:
(c) Regulations by Administrator.—

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(1) General authority.--The Administrator may prescribe
regulations to carry out this subtitle.
(2) Required regulations and orders.--The Administrator
shall prescribe regulations that the Administrator
considers necessary to carry out the Administrator's
functions under this subtitle and the head of each
executive agency shall issue orders and directives that the
agency head considers necessary to carry out the
regulations.
40 U.S.C. § 121(c). Accordingly, there is no statutory authorization for the
imposition of criminal penalties under § 102-74.420. Neither of the cases that
Defendants cite help them here. See United States v. Brice, 926 F.2d 925, 930-31
(9th Cir. 1991); United States v. Stansell, 847 F.2d 609, 612-16 (9th Cir. 1988)
(Mot. at 20-21). Those cases upheld criminal liability for violations of predecessor
regulations to 41 C.F.R. § 102-74.420. Brice, 926 F.2d at 931; Stansell, 847 F.2d at
616. But neither of those cases addressed whether the regulations at issue carried
the force of criminal law. In fact, those predecessor regulations (neither of which
deals with photography) were authorized by statutes that expressly provided for
criminal sanctions, whereas here the authorizing statute contains no such allowance
for criminal sanctions. See Brice, 926 F.2d at 926, 927 n.1 (impeding and
disrupting a government employee); Stansell, 847 F.2d at 614 n.6 (complying with
signs). Accordingly, even if CBP’s policy were constitutional, it is likely that the
“penalties” regulation, 41 C.F.R. § 102-74.450, could not lawfully criminalize the
conduct in which Plaintiffs engaged because it is not authorized by any statute
allowing for imposition of criminal liability.
But even if a statute did provide authorization for criminal liability for a
violation of § 102-74.420, that section expressly allows photography of “[b]uilding
entrances, lobbies, foyers, corridors, or auditoriums.” 41 C.F.R. § 102-74.420(c).
DHS has already interpreted that regulation in a manner showing the Plaintiffs did

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not violate the regulation. A bulletin issued by the Federal Protection Services,5
the
DHS agency charged with protection of federal property states, in part:
• “[T]his regulation [§ 102-74.420] does not prohibit photography by
individuals of the exterior of federally owned or leased facilities from
publicly accessible spaces such as streets, sidewalks, parks and plazas.”
• “[T]his regulation [§ 102-74.420] only prescribes photography of the
interior of federally [sic] buildings, i.e., ‘space occupied by a tenant
agency’ or ‘building entrances, lobbies, foyers, corridors, or
auditoriums.’”
(See Woodmansee Declaration in Support of Plaintiffs’ Motion for Preliminary
Injunction, Ex. B (FPS Bulletin) at 2.). Askins did nothing more than photograph
the exterior of a federal building, and neither Plaintiff sought to photograph the
interior of a federal building. Accordingly, under DHS’s interpretation, Plaintiffs
did not violate the regulation. It thus is surprising that Defendants now argue that
Plaintiffs were engaged in criminal behavior based on that same regulation.
What’s more, CBP’s theory of criminal liability is based in whole or in part
on its own internal rules and procedures, which go far beyond the text of the
regulation. CBP alleges that Plaintiffs violated a policy contained within a 2009
CBP bulletin that the agency has not shown to be available to the public. CBP
cannot bootstrap its own internal rules and procedures into instruments that carry
the sanction of criminal punishment if violated. See United States v. Crop Growers
Corp., 954 F.Supp. 335, 349 (D.D.C. 1997) (“[T]o the extent that any duty to
disclose is predicated on professional standards not codified in any statute or
5
FPS is the agency within DHS “charged with protecting thousands of
Federal facilities and safeguarding millions of Federal employees, contractors, and
civilian visitors.” DHS, “Federal Building Security,” available at
http://www.dhs.gov/topic/federal-building-security. The Court may properly take
judicial notice of this document as a public record falling under Fed. R. Evid. 201.
Seifert v. Winter, 555 F. Supp. 2d 3, 11 n.5 (D.D.C. 2008) (taking judicial notice of
government agency directive published on its website).

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regulation, there can be no criminal liability.”) (emphasis added); United States v.
Lamson, 162 F. 165, 168 (D.R.I. 1908) (“To make criminal liability depend, not
upon the terms of an act of Congress, nor upon the terms of the regulation adopted
by the Commissioner of Internal Revenue with the approval of the Secretary of the
Treasury, but upon the terms of a form referred to in this regulation, would go far
beyond any decision which has been brought to my attention.”); see also In re
Verifone Sec. Litig., 11 F.3d 865, 871 (9th Cir. 1993) (“declin[ing] to hold that a
violation of exchange rules governing disclosure may be imported as a surrogate
for” determining whether there was a statutory or regulatory violation).
Defendants’ reliance on CBP’s internal policies to establish the unlawfulness
of Plaintiffs’ conduct thus is misplaced. Regardless, as discussed above, there is a
factual issue as to whether Plaintiffs were located on CBP property at the time they
were detained and searched. If Plaintiffs were not on CBP property, Defendants’
entire justification for the search, seizure and deletion of Askins’ property—that
they were just following rules—unravels. Viewing the allegations in the light most
favorable to Plaintiffs, the government has not demonstrated it had probable cause
to stop, detain, and search Plaintiffs for taking a few photographs of areas exposed
to public view.
B. Plaintiffs Have Sufficiently Alleged a Pattern of Officially
Sanctioned Behavior in Violation of the Fourth Amendment.
Plaintiffs need not show “a pattern of officially sanctioned behavior” in
violation of the Fourth Amendment, as Plaintiffs have plausibly alleged that CBP’s
policy itself is unconstitutional. CBP’s assertion that it may arrest Plaintiffs for
engaging in photography that violates its policy is also strong evidence showing
that Plaintiffs have standing. As discussed above in Section V(A), supra, CBP
cannot lawfully criminalize conduct through its own internal policies or a regulation
that carries no statutory authorization for criminal penalization. In short, CBP’s
very defense of this action is an assertion of its right to violate Plaintiffs’ Fourth

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Amendment rights if they again seek to take photographs. Moreover, Even if
CBPs policy passed constitutional muster—which it does not—Plaintiffs would
nonetheless have standing to seek prospective relief to prevent further violations of
their Fourth Amendment rights. Plaintiffs’ allegations concerning the experiences
of Askins and Christian Ramirez demonstrate that officers “have repeatedly
engaged in the injurious acts” of detaining photographers, seizing their equipment,
and deleting their photographs, whether on or off CBP property. L.H. v.
Schwarzenegger, No. 06-2042, 2007 WL 662463, at *6 (E.D. Cal. Feb. 28, 2007)
(denying motion to dismiss for lack of standing; plaintiffs had sufficiently alleged
threat of future harm based on the fact that “defendants have repeatedly engaged in
the injurious acts in the past”); see also Multi-Ethnic Immigrant Workers Org.
Network v. City of Los Angeles, 246 F.R.D. 621, 627 (C.D. Cal. 2007) (finding
standing sufficiently alleged and granting motion for class certification based on
plaintiffs’ allegations LAPD “engaged in the injurious acts in the past”). Plaintiffs
are unable to avoid future injury because in practice, CBP policy and actions
effectively prohibit all photography of matters in public view from both on and off
CBP property. And although CBP policy authorizes only the detention of recording
equipment, Plaintiffs’ allegations demonstrate that CBP officers routinely enforce
the policy through the deletion of photographs. Thus, Plaintiffs have alleged that
their injuries stem from an unconstitutional written policy, that in the alternative
CBP has a pattern or practice of violating the Fourth Amendment, and that
Plaintiffs are unable to avoid future injury. See Melendres v. Arpaio, 695 F.3d
990, 997-98 (9th Cir. 2012). These allegations are more than sufficient to state a
claim for relief under the Fourth Amendment.
C. Plaintiffs Assert Independent Fourth Amendment Claims
Based on Unconstitutional Search and Seizure of Their
Cameras.
In addition to the allegations that Defendants violated Plaintiffs’ Fourth
Amendment right against detention, Plaintiffs allege that Defendants violated their

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Fourth Amendment rights by searching and seizing Plaintiffs’ cell phone and
camera and deleting data from the devices. Defendants do not assert any arguments
in their Motion to Dismiss addressing the latter violations.
The Fourth Amendment prohibits warrantless searches without exigent
circumstances supported by probable cause or consent. United States v. Karo, 468
U.S. 705, 717 (1984); United States v. Cervantes, 678 F.3d 798, 802 (9th Cir.
2012). When First Amendment-protected activity is subjected to warrantless
seizure that “br[ings] to an abrupt halt an orderly and presumptively legitimate
distribution or exhibition” of that activity, the Fourth Amendment is violated.
Roaden v. Kentucky, 413 U.S. 496, 503 (1973). Where the First Amendment is
concerned, the Fourth Amendment must “be applied with ‘scrupulous exactitude.’”
Maryland v. Macon, 472 U.S. 463, 468 (1985).
The government recognized this principle recently in its Statement of Interest
in Sharp v. Baltimore City Police Dep’t, Case No. 1:11-cv-02888-BEL (D. Md.).
(Woodmansee Declaration in Support of Plaintiffs’ Motion for Preliminary
Injunction, Ex. C.) In Sharp, police officers seized and searched the plaintiff’s
phone, then deleted all the videos it contained, including several of the officers
forcibly making an arrest. Id. at 2. The Department of Justice wrote in support of
the plaintiff, arguing that the plaintiff had a property interest in his cell phone that
was violated without a warrant, and that no exception for warrantless searches
applied. Id. at 12-13.
Here, Plaintiffs have sufficiently alleged that the exercise of their First
Amendment rights led to violations of their Fourth Amendment rights. Even
without a violation of the First Amendment, Plaintiffs both had their property
seized, and in the case of their photographs, destroyed. Plaintiffs had a possessory
interest in their cell phone and camera and a recognized expectation of privacy in
the photographs saved on their devices. See United States v. Finley, 477 F.3d 250,
259-60 (5th Cir. 2007) (recognizing a person’s possessory interest in their cell

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phone and privacy interest in the data contained therein); United States v. Young,
278 F. App’x 242, 245-46 (4th Cir. 2008) (per curiam) (recognizing defendant’s
“[p]rivacy rights in the phone” from which officer retrieved text messages).
Defendants do not even attempt to assert that an exception to the warrant
requirement applied. Even if they did, no exception applies. Plaintiffs did not give
their consent, they were not arrested, and nothing in the Complaint suggests exigent
circumstances existed. As a result, Plaintiffs’ Fourth Amendment claims should
withstand Defendants’ Motion to Dismiss.
VI. IN THE ALTERNATIVE, PLAINTIFFS ARE ENTITLED TO
LEAVE TO AMEND
Even if the Court grants Defendants’ motion, Plaintiffs are entitled to leave
to amend unless it is clear the problem cannot be cured by pleading additional facts.
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Dumas v. Kipp, 90 F.3d 386,
393 (9th Cir. 1996) (amendment should be granted unless it would be “futile”); Doe
v. United States, 58 F.3d 494, 497 (9th Cir. 1995). Defendants do not even contest
Plaintiffs’ entitlement to leave to amend in their motion to dismiss. Moreover, in
the event Defendants’ motion is granted, permitting Plaintiffs to amend their
Complaint would not be futile, as Plaintiffs are easily capable of amending their
Complaint to remedy any deficiencies identified by the Court. Defendants cannot
make a showing of futility necessary to defeat Plaintiffs’ request for leave to
amend.
VII. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court deny
Defendants’ Motion to Dismiss in its entirety, or in the alternative grant leave to
amend.

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Dated: March 13, 2013 MORRISON & FOERSTER LLP
By: s/ M. Andrew Woodmansee
M. ANDREW WOODMANSEE
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I certify that on March 13, 2013, I caused a copy of the foregoing to be filed
electronically and that the document is available for viewing and downloading from
the ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
By: /s M. Andrew Woodmansee
M. ANDREW WOODMANSEE

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