Askins v. USDHS, No. 16-55719 (9th Cir. 2018)
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Plaintiffs filed suit for violation of their First Amendment rights, seeking injunctive and declaratory relief, after they took photographs of activities at U.S. ports of entry on the United States–Mexico border, they were both stopped and searched by officers of the CBP, and their photos were destroyed. The district court dismissed plaintiffs' claims.
The Ninth Circuit held that the district court erred by applying the law of the case doctrine on a motion to dismiss an amended complaint. On the merits, the panel held that the First Amendment protected the right to photograph and record matters of public interest, and whether a place was "public" depended on the nature of the location; the district court's holding that the CBP policies were the least restrictive means of serving a compelling government interest were conclusory and insufficient; and it was the government's burden to prove that the specific restrictions were the least restrictive means available. The panel held that plaintiffs have adequately pleaded their claims and that further factual development was required before the district court could determine what restrictions, if any, the government may impose in these public, outdoors areas where the photos were taken.
Court Description: First Amendment / Law of the Case Doctrine. The panel vacated the district court’s dismissal of an amended complaint in which plaintiffs – advocates on border policy issues whose photos of activities at U.S. ports of entry on the United States-Mexico border were confiscated and destroyed by U.S. Customs and Border Protection (“CBP”) officers – alleged violations of their First Amendment rights, and remanded for further proceedings. The panel held that the law of the case doctrine did not apply because the district court dismissed the First Amendment claim in the initial complaint without prejudice, and did not enter a final judgment. The filing of the amended complaint did not ask the court to reconsider its analysis of the initial complaint, and the district court should simply have considered the amended complaint on its merits. ASKINS V. DHS 3 The panel held that the First Amendment protected the right to photograph and record matters of public interest, and whether a place was “public” depended on the nature of the location. The panel also held that the district court’s holding that the CBP policies were the least restrictive means of serving a compelling government interest were conclusory and insufficient to justify judgment for the government on a motion to dismiss. The panel also held that it was the government’s burden to prove that the specific restrictions were the least restrictive means available, and general assertions of national security were insufficient. The panel concluded that plaintiffs adequately pleaded their claims; and remanded for further factual development for the district court to determine what restrictions, if any, the government could impose in the public, outdoor areas where the photos were taken.
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