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Ninth Circuit Rules on Transforming Public Streets into Nonpublic Forums

Immigration and border control issues have been at the forefront of recent public debate. Protestors are pushing for greater access to both monitor the activities of law enforcement agents and to express their opinions. In the Ninth Circuit’s recent decision in Jacobson v. Department of Homeland Security, 882 F.3d 878 (9th Cir. Feb. 2018) the Court considered protestors’ rights near a U.S. Border Patrol traffic checkpoint. In overturning the district court’s grant of summary judgment to the government, the Ninth Circuit emphasized that whether the public street had been transformed into a nonpublic forum was a fact-intensive inquiry which the district court should not have resolved without allowing discovery.  Accordingly, the Ninth Circuit remanded and directed the district court to allow discovery before determining the forum classification of the enforcement zone and whether the government’s limitations for the forum met the applicable standards for the forum at play. While the opinion is directed at the attempted closure of a public street near a Border Patrol checkpoint, municipalities should be aware that it also raises First Amendment considerations regarding attempts to close and/or limit access to public streets for other purposes, such as for outdoor dining or shopping.

The Border Patrol checkpoint at issue was located in southern Arizona, near the border with Mexico. It had been in operation since 2007, and was a semi-permanent establishment including a portable office, restrooms, and kennel. Because there was no alternative local road, residents were compelled to pass through the checkpoint on a daily basis, sometimes multiple times per day. In 2013, People Helping People, a local community group, concluded that law enforcement was engaging in racial profiling, unlawful searches, and excessive force at the checkpoint. In February of 2014, to protest and monitor these alleged abuses, People Helping People began regularly protesting and monitoring the checkpoint by positioning themselves approximately 100 feet away from the checkpoint on the shoulder of the road. Within a week, Border Patrol agents pushed the protesters even further away by blocking off an area extending 150 feet from the checkpoint in both directions along the road (the “enforcement zone”). Despite the enforcement zone, the protestors continued to monitor and observe the checkpoint for months. Among other things, People Helping People claimed that members of the public sympathetic to Border Patrol were allowed access to the enforcement zone while members of People Helping People were denied access.

The protestors sued, alleging that the First Amendment afforded them the right to protest and monitor the Border Patrol checkpoint on the public street and that their exclusion from the enforcement zone violated their First Amendment rights. The Department of Homeland Security moved for summary judgment prior to discovery and the protestors filed a motion to take discovery. The district court denied the discovery request and granted summary judgment in favor of the Department of Homeland Security, holding that the enforcement zone was a nonpublic forum and that excluding the protestors met the standard for imposing limitations on a nonpublic forum. The protestors appealed.

On appeal, the Ninth Circuit held that the district court had abused its discretion by granting summary judgment without sufficient facts. The Ninth Circuit found that discovery was relevant to critical issues in the summary judgment motion including whether the enforcement zone qualified as a nonpublic forum, whether the limitations on access to the enforcement zone had been selectively enforced, and whether the protestors’ exclusion from the enforcement zone prevented them from effectively monitoring the activities of Border Patrol agents. The Ninth Circuit emphasized that public streets are a traditional public forum, where freedom of speech is most protected, and that the district court needed more facts before concluding that the enforcement zone had transformed the public street into a nonpublic forum. The Court also wanted the lower court to undertake a more thoughtful examination of the enforcement zone and the claims that the government allowed access to sympathizers while denying access to protestors. Such alleged viewpoint-based enforcement is prohibited not only in a public forum but also in a nonpublic forum so discovery on this issue was critical to the protestors’ First Amendment claims.

In a time of increasing partisanship, public protests, and the politicization of law enforcement, the Jacobson opinion is a reminder that the Ninth Circuit will critically review any restrictions on the First Amendment in public spaces. While the decision addresses a specific fact pattern involving a protest related closure of a public street near a Border Patrol checkpoint, the court’s analysis raises important caution for municipalities that are considering the full or partial limitation of access to areas traditionally considered public forums.