Ray Askins v. Usdhs
899 F.3d 1035
| 9th Cir. | 2018Background
- Plaintiffs Ray Askins and Christian Ramirez are U.S. citizens and border-policy advocates who photographed activities at the Calexico West and San Ysidro U.S.–Mexico ports of entry from outdoor public locations. CBP officers detained them and deleted most or all of their photos.
- CBP relies on a national Directive and local Ground Rules that (as applied or enforced) require advance authorization for media photography at ports of entry and authorize denying access or escorting accredited media. Plaintiffs allege CBP enforces a de facto total ban on photography within large outdoor areas adjacent to ports.
- Plaintiffs sued under the First Amendment seeking declaratory and injunctive relief; the district court initially dismissed the complaint under strict scrutiny but granted leave to amend.
- Plaintiffs filed an amended complaint narrowing claims (dropped Fourth Amendment and damages), challenging the Directive/Ground Rules as prior restraints and unconstitutional as applied to public outdoor areas.
- The district court dismissed the amended complaint on the ground of law-of-the-case (refusing to reconsider its earlier dismissal), and entered judgment for the government. Plaintiffs appealed.
- The Ninth Circuit held the district court erred to invoke law-of-the-case on an amended-complaint dismissal and concluded plaintiffs plausibly stated First Amendment claims, vacating and remanding for further fact development.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the law-of-the-case doctrine barred review of the amended complaint | Askins/Ramirez: No — dismissal without prejudice + leave to amend requires fresh merits review of the new operative complaint | DHS/CBP: The district court already decided the constitutional issue; plaintiffs offered no reason to revisit it | Court: Law-of-the-case did not apply; amended complaint is the operative pleading and must be reviewed on its merits |
| Whether CBP policies, as applied to outdoor streets/sidewalks/bridges, violate the First Amendment | Plaintiffs: Policies function as content-based prior restraints banning photographing matters in public view from public fora | DHS: Policies protect border security, investigative integrity, privacy, and safety; are the least restrictive means | Court: Plaintiffs plausibly alleged protected First Amendment activity; government’s nuc. security assertions were too conclusory at MTD stage; further factual record required |
| Proper forum analysis (public forum vs. nonpublic forum) for outdoor areas adjacent to ports | Plaintiffs: Streets, sidewalks, park areas and some plazas are traditional public fora where strict scrutiny applies | DHS: Ports of entry (or portions) are akin to nonpublic fora (airports, military bases) permitting greater regulation | Court: Forum status is fact-intensive; plaintiffs alleged enough to proceed; cannot resolve on current record |
| Level of scrutiny and sufficiency of dismissal under Rule 12(b)(6) | Plaintiffs: If areas are public fora and restrictions content-based, strict scrutiny applies and govt must show least-restrictive means | DHS: Policies serve compelling border interests and survive strict scrutiny | Court: Government failed to carry its burden at pleading stage; dismissal was improper — further development required |
Key Cases Cited
- Musacchio v. United States, 136 S. Ct. 709 (procedural effect of prior rulings and law-of-the-case principles)
- Lacey v. Maricopa County, 693 F.3d 896 (9th Cir.) (pleading-stage standards — accept well-pleaded allegations)
- Jacobson v. U.S. Dep’t of Homeland Sec., 882 F.3d 878 (9th Cir.) (forum analysis and standards for public vs. nonpublic forum at ports/checkpoints)
- Berger v. City of Seattle, 569 F.3d 1029 (9th Cir.) (content-based restrictions trigger strict scrutiny)
- Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (content-based speech restrictions impose heavy government burden)
- United States v. Flores-Montano, 541 U.S. 149 (border context — government interest in controlling entry)
- United States v. Grace, 461 U.S. 171 (public streets and sidewalks as archetypal traditional public forum)