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Private Eyes

Civil-rights defenders sue for the right to record Homeland Security actions

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Given the multitudes of people crossing every day through America's ports of entry, our border law-enforcement folks turn surprisingly shy when citizens try to photograph their work.

Just ask Ray Askins, who blogs about environmental and human-rights abuses along the U.S.-Mexico border. As he was photographing the California port at Calexico on April 19, he was approached by agents with U.S. Customs and Border Protection. He says the agents demanded his camera. When Askins refused, they allegedly handcuffed him, took the camera and deleted its images.

Or ask Christian Ramirez, a San Diego resident who crosses the border several times each month to visit relatives in Mexico. Ramirez is human-rights director for a nonprofit social-justice organization called Alliance San Diego, and his job includes monitoring border law enforcement. On June 20, 2010—Father's Day—Ramirez and his wife visited his dad in Mexico. They claim that after returning through the port at San Ysidro, they witnessed male U.S. Customs agents singling out women for special inspections and pat-downs. When Ramirez began taking cell-phone pictures from a pedestrian bridge, the two were reportedly approached by a half-dozen more agents. One of them took his phone, Ramirez says, only to return it with all of the photos of the agents deleted.

In October, the American Civil Liberties Union of San Diego and Imperial Counties, joined by the law firm Morrison and Foerster, filed suit on behalf of both Ramirez and Askins in federal court.

"The border is not a Constitution-free zone," said the San Diego ACLU's legal director, David Loy, in a press release. "Border agents are not above the law, and the law guarantees our right to hold them accountable by documenting their conduct."

But Customs and Border Protection, a branch of the U.S. Department of Homeland Security, requires that permission be granted for the use of recording and camera equipment at U.S. ports.

When asked about this policy, a Customs spokesman sent the Weekly this statement: "CBP has the authority to protect against the disclosure of private or proprietary information," it said. "Also we protect against the potential that images taken in the Federal Inspection Station can be used to circumvent law-enforcement efforts such as unlawful entry, drug-smuggling and other customs violations established to protect Americans, residents and visitors."

Contacted by phone, Juan Osorio, a Nogales-based CBP public-information officer, elaborated. "CBP policy is that, if you want to record (at ports of entry), you can always come down and ask us, and give us a little synopsis of exactly what you want to obtain by taking pictures and where they're going to be shown," he says.

"You can always take pictures off the port property. If you're off port property, there's nothing we can do."

But that hands-off attitude is apparently optional; Ray Askins was not on federal property when he was allegedly manhandled for taking pictures. Nor was Christian Ramirez.

Osorio acknowledges that even someone snapping pictures from a distance might face a few questions. He offers this analogy: "Say we're at Walmart, and I'm following you, and I'm taking your picture. Wouldn't you want to know why I'm taking that picture, and where it's going to come out? It's curiosity."

Curiosity is one thing. But constitutional rights are another, say opponents of the policy. "Our clients were harassed when they were outside of CBP facilities, in places that, as far as we could tell, were completely public," says Sean Riordan, a staff attorney with the San Diego ACLU. "So whatever authority CBP might think it has within its own installations, there certainly is a limit to their ability to suppress photography and video recording in public places."

Riordan says that even if the agency wants to limit camera or video use on government property, "there still ought to be a First Amendment right to record CBP officers going about their business—especially when CBP officers are doing something that would be of public interest."

Such as male agents frisking women at inspection stations or accosting an innocent border-crosser. To Riordan, the First Amendment defines "a right to make a record of that using a camera. By doing so, it doesn't jeopardize national security or the CBP's interest in legitimate law enforcement. All it does is creates the conditions for accountability within the agency."

But customs isn't the only branch of federal law enforcement that treads this fuzzy line. The U.S. Border Patrol has also tangled with First Amendment rights at its checkpoints, most notably in the case of Terry Bressi, an engineer with the UA's Lunar and Planetary Laboratory. (See "Running the Gauntlet," Currents, June 18, 2009.)

Bressi routinely passes through Border Patrol checkpoints coming and going from his job at Kitt Peak National Observatory, on the Tohono O'odham Nation west of Tucson.

His tussle with the federal agents began in 2002, after he spotted them apparently monitoring a Tohono O'odham DUI checkpoint. When he raised a stink over this mixing of tribal and federal police duties, he found himself beside the road in handcuffs.

That incident so outraged Bressi that he began photographing Border Patrol agents while passing through their checkpoints, a pastime they hardly found endearing. In response, those agents sometimes removed their nametags. They've tried to force him to show identification, and had him cited by tribal police for impeding checkpoint traffic flows. The citation was quickly thrown out in Pima County Justice Court.

"People tell me, 'That kind of thing happens all the time. Why are you making such a big deal over it?'" Bressi explained to the Weekly in 2009. "But to me, it just shows how far government is overreaching."

Perhaps it does happen all the time. At least that's how it seemed to Kat Rodriguez last year, when she led a visiting group of activists through the Mariposa Port of Entry in Nogales. As coordinator for the Tucson immigrant-rights group Derechos Humanos, Rodriguez is accustomed to dealing with agents. But when a board member of the Washington, D.C.-based Alliance for Global Justice tried to cross with a camera, he got an up-close look at justice border-style.

One agent told the man to turn the camera off, Rodriguez recalls. A few minutes later, she says, the agent approached again, this time demanding to see the camera. When the man refused, he was taken into an inspection area and interrogated for 25 minutes. "He said they took the camera from him, looked at it and then gave it back to him."

Rodriguez considers this sheer harassment. "All it succeeds in doing," she says, "is oppressing tourists who have a camera in their hand."

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