Leesa Jacobson v. Usdhs
882 F.3d 878
| 9th Cir. | 2018Background
- Border Patrol (BP) operated a checkpoint on Arivaca Road, AZ, with a primary inspection on the road and secondary inspection area; portable structures (office, restrooms, lights) sit south of the road.
- BP established an "enforcement zone" marked by tape/rope and signs about 150 feet east and west of the portable office, extending ~391 feet along the road; protesters and monitors were required to remain behind the barriers.
- Plaintiffs Leesa Jacobson and Peter Ragan (and associates) protested and monitored BP activity alleging racial profiling and other abuses; they were excluded from the enforcement zone while some local residents, a surveyor, reporters, and others were allowed in on occasion.
- Plaintiffs sued under the First Amendment seeking declaratory and injunctive relief; after no discovery, the district court denied plaintiffs’ discovery request and granted summary judgment to defendants, concluding the enforcement zone was a nonpublic forum and exclusions were reasonable and content-neutral.
- The Ninth Circuit vacated and remanded, holding that material factual disputes existed and that the district court abused its discretion by denying Rule 56(d) discovery needed to resolve forum characterization, viewpoint neutrality, and availability of alternative observation opportunities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Characterization of enforcement zone (public vs nonpublic forum) | Zone remains a public forum (road/shoulders); checkpoint use doesn’t transform entire area | Checkpoint use converted the area into a nonpublic forum permitting exclusions | Court: factual dispute; cannot decide as matter of law; remand after discovery |
| Denial of Rule 56(d) discovery | Early summary judgment prevented needed discovery on uses, access, and stop data; discovery should be freely allowed | Discovery would not change forum analysis; summary judgment appropriate on existing record | Court: district court abused discretion; discovery potentially material and should be permitted |
| Viewpoint neutrality of exclusions | Exclusion policy applied selectively against protesters/monitors (evidence others allowed in) | Policy is content-neutral and applied to protect checkpoint operations | Court: disputed factual evidence of selective access—requires discovery to resolve |
| Adequacy of alternative channels / narrow tailoring | Plaintiffs’ outside observations may be inadequate; must test whether exclusions leave open ample alternatives | Exclusion reasonable for checkpoint safety/operations and Plaintiffs have alternatives outside zone | Court: factual dispute over whether plaintiffs had ample alternatives (stop data and observation capability); remand for factual development |
Key Cases Cited
- Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (First Amendment right to record matters of public interest)
- Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (right to record public officials performing public duties)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test for content-neutral restrictions in public forum)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (standard for restrictions in nonpublic forums: reasonable and viewpoint neutral)
- ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003) (government must alter objective physical character/uses to change forum status)
- Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) (forum analysis and narrow tailoring in time/place/manner cases)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination prohibited)
- Reed v. Lieurance, 863 F.3d 1196 (9th Cir. 2017) (ample alternative channels requirement in public-forum analysis)