CA9 on Border, First Amendment: Jacobson v. DHS

CA9 on Border, First Amendment: Jacobson v. DHS

Jacobson v. DHS, Feb. 13, 2018 - Court staff summary: "The panel vacated the district court’s summary judgment, entered before any discovery occurred, and remanded in an action in which appellants challenged their exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona.

Appellants alleged that the First Amendment afforded them the right both to protest and to monitor the activities at the Border Patrol checkpoint, which they contend include racial profiling and other abuses. The district court determined that the checkpoint area, including the enforcement zone, was a nonpublic forum from which the government could reasonably exclude appellants. The district court therefore denied the motion to take discovery pursuant to Federal Rule of Civil Procedure 56(d), on the ground that the information would not assist appellants in opposing summary judgment.

The panel held that appellants identified several areas where discovery was relevant to critical matters at issue in the summary judgment motion. First, information regarding law enforcement uses of the checkpoint area encompassed within the enforcement zone was relevant to the determination of whether the enforcement zone was a public or a nonpublic forum. Second, information about who had been allowed into the enforcement zone could reveal whether the enforcement zone has been applied selectively based on viewpoint. Finally, information regarding traffic stops at the checkpoint was relevant to determine the accuracy of data gathered by appellants and their alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

The panel held that the limited record before the district court did not permit it to conclude, as a matter of law, that the enforcement zone was a nonpublic forum, or, if it was, whether the government satisfied the requirements for excluding appellants from that nonpublic forum. On remand, and after appropriate discovery, the panel held that the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government’s exclusion policy is permissible under the principles of forum analysis."