UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Transcription

1 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Daniel J. Pochoda (Bar No. 0) James Duff Lyall (Bar No. 00)** Victoria Lopez (Bar No. 00) ACLU FOUNDATION OF ARIZONA 0 North th Street, Suite Phoenix, AZ 0 T: (0) 0- dpochoda@acluaz.org jlyall@acluaz.org vlopez@acluaz.org Winslow Taub* Tracy Zinsou* Ethan Forrest* Neha Jaganathan* Covington & Burling LLP Front Street San Francisco, CA - T: () -000 wtaub@cov.com tzinsou@cov.com eforrest@cov.com * Admitted pro hac vice **Admitted pursuant to Ariz. Sup. Ct. R. (f) Attorneys for Plaintiffs LEESA JACOBSON, PETER RAGAN, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS & BORDER PROTECTION, UNITED STATES OFFICE OF BORDER PATROL, ET. AL., Defendants. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA David Loy* Mitra Ebadolahi* ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box San Diego, CA - T: () - davidloy@aclusandiego.org mebadolahi@aclusandiego.org Case No.: :-cv-0-bgm PLAINTIFFS CONTROVERTING STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

2 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 CONTROVERTING STATEMENT OF FACTS Pursuant to Local Civil Rule.(b), Plaintiffs submit the following response to Defendants Statement of Facts Not in Genuine Dispute ( SOF ). See Dkt. No. -. As noted below, and explained in more detail in Plaintiffs brief, many of Defendants facts rely on the use of summary terms (for example, checkpoint ) to describe matters that are, in actuality, contested (for example, the parties dispute the boundaries of the area in which law enforcement activity takes place in the disputed section of Arivaca Road). Regarding the citations within this document and in Plaintiffs Brief: Ragan Decl. refers to the Declaration of Peter Ragan in Support of Plaintiffs Motion for Preliminary Injunction, Docket No. -; McLain Decl. refers to the Declaration of Stephen W. McLain in Support of Plaintiffs Motion for Preliminary Injunction, Docket No. -; Ragan Reply Decl. refers to the Declaration of Peter Ragan in Support of Plaintiffs Reply Brief in Support of Plaintiffs Motion for Preliminary Injunction, Docket No. 0-; Ebanks Decl. refers to the Declaration of Tracy Ebanks in Support of Plaintiffs Motion for Preliminary Injunction, Docket No. -; and Ragan MSJ Decl. refers to the Declaration of Peter Ragan in Support of Plaintiffs Opposition to Defendants Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, filed concurrently herewith. I. RESPONSES TO DEFENDANTS STATEMENT OF FACTS. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl. ; Ragan Decl.. To the extent that Defendants terminology encompasses legal argument The following paragraphs track the numbered paragraphs set forth in Defendants SOF.

3 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs dispute that there are often several Border Patrol vehicles parked on the northern side of the road. See Ragan Decl. ; McLain Decl. Ex.. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs object that they cannot provide evidence regarding the actual use of the equipment and structures along Arivaca Road, as they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. To the extent that Defendants statement of fact is legal argument characterizing a particular portion of Arivaca Road as a secondary inspection area, Plaintiffs object for the reasons set forth in Plaintiffs brief, accompanying declarations, and statement of other undisputed facts, below. Ragan Decl.. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from

4 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs object that they cannot provide evidence regarding the actual use of the equipment and structures along Arivaca Road, as they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs dispute that agents often park Border Patrol vehicles on the northern roadside beside the primary inspection area. See Ragan Decl. ; McLain Decl. Ex.. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). Plaintiffs also object to Defendants statements about accidents at other checkpoints in Paragraph of the San Martin Declaration, and the entirety of Paragraph of the San Martin Declaration, because those statements are hearsay under Federal Rule of Evidence 0. Further, Paragraph of the San Martin Declaration presents lay opinions beyond the scope of Federal Rule of Evidence 0, and Mr. San Martin has not been qualified as an expert under Federal Rule of Evidence 0. Plaintiffs further object to Paragraphs and of the San Martin Declaration because to the extent they purport to present information from any documents, they are not best evidence under Federal Rule of Evidence 00.. Disputed. Plaintiffs dispute this fact. Ragan Decl.,. Moreover, none of the material cited by Defendants establishes that any motorist has failed to yield at the Arivaca Road checkpoint or attempted to flee when referred to the secondary inspection area at the Arivaca Road checkpoint. Likewise, none of the material cited by Defendants establishes that the pursuit vehicle located at or near the Arivaca Road checkpoint has ever swerve[d], fish tail[ed], [or] kick[ed] up rocks when leaving the unpaved, dirt roadside at the start of a high-speed chase. SOF. These are points of contention, not

5 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 uncontroverted facts. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). Plaintiffs also object to Paragraph of the San Martin Declaration on the grounds that it is hearsay under Federal Rule of Evidence 0 and offers lay opinions beyond the scope of Federal Rule of Evidence 0, although Mr. San Martin has not been qualified as an expert under Federal Rule of Evidence 0. Plaintiffs further object to Paragraph of the San Martin Declaration because to the extent it purports to present information from any documents, it is not best evidence under Federal Rule of Evidence 00.. Disputed. None of the material cited by Defendants connects the statistics presented in this statement of fact (regarding twenty-eight safety incidents at Tucson Station checkpoints) to the Arivaca Road checkpoint specifically. These statistics are thus irrelevant. Specifically, Plaintiffs object to Defendants references to these incidents in Paragraph 0 of the San Martin Declaration because they are irrelevant under Federal Rules of Evidence 0 and 0, and prejudicial under Federal Rule of Evidence 0. Plaintiffs further object to the entirety of Paragraph 0 of the San Martin Declaration because it is hearsay under Federal Rule of Evidence 0, and to the extent this paragraph purports to present information from any documents, its statements are not best evidence under Federal Rule of Evidence 00. Plaintiffs also object to Paragraph 0 of the San Martin Declaration because offers lay opinions that exceed the scope of Federal Rule of Evidence 0, and Mr. San Martin has not been qualified as an expert under Federal Rule of Evidence 0. Plaintiffs contend that traffic through the Arivaca Road checkpoint is typically minimal. Ragan Decl.. Plaintiffs further dispute this statement of fact to the extent it consists of argument by Defendants regarding purported safety concerns along the disputed portion of Arivaca Road. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca

6 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). 0. Disputed. Plaintiffs object that they have not been afforded the opportunity to take discovery into either Defendants operations along Arivaca Road or the basis for Defendants assertions regarding their law enforcement policies and techniques; accordingly, Plaintiffs have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). Plaintiffs further object to Paragraph 0 of the San Martin Declaration because it is irrelevant under Federal Rules of Evidence 0 and 0, and prejudicial under Federal Rule of Evidence 0. Plaintiffs further object to Paragraph 0 of the San Martin Declaration because it is hearsay under Federal Rule of Evidence 0, and to the extent it purports to present information from any documents, it is not best evidence under Federal Rule of Evidence 00. Plaintiffs also object to Paragraph 0 of the San Martin Declaration because it is a lay opinion that exceeds the scope of Federal Rule of Evidence 0, and Mr. San Martin has not been qualified as an expert under Federal Rule of Evidence 0.. Disputed. Plaintiffs dispute this fact on the ground that the material cited by Defendants in support of the fact does not describe any actual instances of a canine being distracted by unfamiliar surroundings and people, or biting handlers, agents, and civilians, particularly in response to the presence of monitoring or protesting activity. Nor does this material describe any such instances at the Arivaca Road checkpoint specifically. These materials are thus irrelevant. Specifically, Plaintiffs object to the reference to canines in Paragraph of the San Martin Declaration because it is irrelevant under Federal Rules of Evidence 0 and 0, and prejudicial under Federal Rule of Evidence 0. It also lacks foundation under Federal Rule of Evidence 0. Plaintiffs further object to the reference to canines in Paragraph of the San Martin Declaration because it is hearsay under Federal Rule of Evidence 0, and to the extent it purports to present information from any documents, it is not best evidence under Federal Rule of

7 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Evidence 00. Plaintiffs also object to the reference to canines in Paragraph of the San Martin Declaration because it is a lay opinion that exceeds the scope of Federal Rule of Evidence 0, and Mr. San Martin has not been qualified as an expert under Federal Rule of Evidence 0. Plaintiffs also object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road or the basis for Defendants assertions regarding their law enforcement policies and techniques; accordingly, Plaintiffs have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan

8 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan

9 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs dispute this fact. Ragan Decl., ; McLain Decl., Exs.. Furthermore, Plaintiffs disagree with Defendants overbroad use of the term Arivaca checkpoint to include anything other than actual structures and areas used for

10 Case :-cv-0-bgm Document - Filed 0/0/ Page 0 of 0 0 road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs object that they have not been afforded the opportunity to take discovery into either Defendants operations along Arivaca Road or Defendants actions during particular encounters with Plaintiffs and other protestors. Accordingly, Plaintiffs have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).

11 Case :-cv-0-bgm Document - Filed 0/0/ Page of Disputed. Plaintiffs object that they have not been afforded the opportunity to take discovery into either Defendants operations along Arivaca Road or Defendants actions during particular encounters with Plaintiffs and other protestors. Accordingly, Plaintiffs have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument 0

12 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Plaintiffs also dispute this fact to the extent it describes matters that took place outside of Plaintiffs observations. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs also dispute this fact to the extent it describes matters that took place outside of Plaintiffs observations. Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d).. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument

13 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). Plaintiffs further object to Paragraph of the San Martin Declaration because what Plaintiffs do outside the checkpoint is irrelevant under Federal Rules of Evidence 0 and 0, and prejudicial under Federal Rule of Evidence 0.. Disputed. Plaintiffs disagree with Defendants overbroad use of the term road, running east from and immediately adjacent to the shelter. Compl., Ragan Decl.. To the extent that Defendants terminology encompasses legal argument Plaintiffs further object that they have not been afforded the opportunity to take discovery into Defendants operations along Arivaca Road, and accordingly have been prevented from providing a more detailed response, as set forth in Plaintiffs declaration in support of further discovery under F.R.C.P. (d). Plaintiffs further object to Attachments of the San Martin Declaration, as well as the portion of Paragraph referencing those Attachments, because what other people do on private land outside the checkpoint and away from Arivaca Road is irrelevant under Federal Rules of Evidence 0 and 0, and prejudicial under Federal Rule of Evidence 0.

14 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 II. PLAINTIFFS STATEMENT OF ADDITIONAL FACTS THAT ESTABLISH A GENUINE ISSUE OF MATERIAL FACT A. The Arivaca Checkpoint. For more than seven years, residents of the towns of Arivaca and Amado in Arizona have lived with a continuous Border Patrol presence in their community. Border Patrol checkpoints are present on virtually every route out of Arivaca, and many local residents must pass through a checkpoint regularly to go to school or work, or to perform routine errands. Ragan Decl., Ex... In the past year, residents have sought to monitor one of these checkpoints, on Arivaca Road in Amado ( Arivaca Road checkpoint ), to document and deter suspected abuses by Border Patrol agents and to measure the efficacy of the checkpoint and its impact on the local community. Ragan Decl., Ex... The Arivaca Road checkpoint is located on a two-lane road in a rural area where traffic is minimal. Ragan Decl.,.. The checkpoint consists of a small temporary shelter on the south side of the road, from which agents conduct checkpoint inspections of eastbound traffic, as well as a dirt area to the east of the checkpoint shelter on the south side of the road, which is used for secondary inspections. See Ragan Decl. ; McLain Decl. Ex. A. 0. The Arivaca Road checkpoint is located between Arivaca and Amado, rural towns with a combined population of,000. Ragan Decl... As indicated by data collected by Plaintiffs and other monitors, Arivaca Road is not heavily trafficked, and checkpoint arrests are extremely rare. Id. at.. After being questioned by the Border Patrol agent or agents on duty, eastbound motorists may be directed to the secondary inspection area for further questioning. Id. at. Only a small fraction of vehicles arriving at the checkpoint are referred for secondary inspections. Id.. In July 0, PHP began a campaign to protest the checkpoint and inform the public about its impact on the community. Id. at 0, Ex. A. PHP launched an

15 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 Abuse Documentation Clinic and circulated a petition calling for removal of the checkpoint. Ragan Decl. at.. Complaints documented by PHP described Border Patrol agents engaging in civil rights violations at the checkpoint including racial profiling, false canine alerts, unlawful searches, and excessive use of force by agents. Id... In support of this campaign, and to hold agents at the checkpoint accountable, PHP announced that it would be starting a community effort to monitor the Arivaca Road checkpoint. Id. at. B. Law Enforcement Activity Occurs in a Small Section of the Enforcement Zone. Border Patrol s activities are largely confined to the south side of the road, east of the checkpoint shelter; the north side of the road, across from the checkpoint shelter, and the area west of the checkpoint shelter are not used for inspections. Ragan Decl. ; see McLain Decl. Ex.. (McLain Dec. Ex. (excerpt)). The barriers demarcating Border Patrol s enforcement zone were erected across the public right-of-way on both the north and south shoulders of the road, but Border Patrol s checkpoint activities are limited to the south shoulder of the road. See Ragan Decl.,.

16 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0. Law enforcement activity occurs in only a relatively small portion of the roped-off area that Plaintiffs have been prevented from entering, and there are large areas inside the barriers where no physical structures exist. McLain Decl. Ex.. (McLain Decl. Ex. ). Law enforcement activity at the Arivaca Road checkpoint is minimal. In approximately 00 hours of monitoring from February to April 0, Plaintiffs and other monitors observed, vehicles pass eastbound though the Arivaca Road checkpoint, an average of approximately one vehicle every two and half minutes during the busiest times in the day. See Ragan Decl. Ex.. 0. Over the same period, monitors did not observe a single driver or passenger detained by agents at the checkpoint. Defendants have acknowledged that arrests at the Arivaca Road checkpoint are extremely rare, and that the primary purpose of the checkpoint is deterrence. Ragan Decl.. C. Plaintiffs Have Attempted to Observe and Record Arivaca Road Checkpoint; Border Patrol Agents Have Unlawfully Erected Barriers in Response. On February, 0, the first day of monitoring, Plaintiffs, as part of a group of approximately thirty PHP checkpoint monitors and protestors, approached the secondary inspection area from the east, walking on the south side of Arivaca Road. Id. at.. The monitors carried signs that read Monitoring to Deter Abuses + Collect Data. The protestors carried signs and banners protesting the checkpoint with slogans

17 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 such as, Checkpoints Can t Divide Us!, and Revitalize Not Militarize Border Communities. Id. at.. When Plaintiff Ragan and the other monitors were approximately 00 feet east of the checkpoint shelter (See Ragan Decl. Diagram A Position ), the group was confronted by Defendants Joyner and Riden and told to move back past a cattle guard in the road, which, based on the monitors own approximation at that time, was believed to be roughly 00 feet from where they were standing, and approximately 00 feet away from the eastern end of the checkpoint shelter. Ragan Decl., Diagram A.. The monitors refused, remained in place, and began to observe and record interactions between agents and motorists. Ragan Decl... Defendants returned and again insisted that Plaintiff Ragan and the other monitors move further away. Id. at.. Defendants Joyner and Riden stated that they had a permit granting exclusive use of the area. Id.. Later, after also being directed by local Sheriff s Deputies, the monitors moved to an area on the north side of the road directly across from where they had been stationed. Id. at.. Once relocated to the north side of the road, some of the monitors attempted to move closer to the checkpoint, but were turned back by several Border Patrol agents. At all times, Plaintiffs were outside of the areas in which Border Patrol was conducting its inspections. Id. at.. Later that day, Border Patrol agents erected barriers demarcating an enforcement zone, approximately fifty feet further east of where the Plaintiffs and monitors were standing on the north shoulder, a total of approximately 0 feet east of the checkpoint shelter. McLain Decl. Ex.. The barriers were erected across the publicright-of-way on both the north and south shoulders of the road. See id. 0. Prior to the initiation of PHP s campaign, Defendants had never before demarcated an enforcement zone or installed similar barriers at the Arivaca Road

18 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 checkpoint. Ragan Decl.. No other checkpoints in the area surrounding Arivaca and Amado have specifically demarcated enforcement zones from which pedestrians, protestors, or observers are barred. Id.. Border Patrol agents then insisted that Plaintiffs and the monitors move behind the barrier, and threatened them with arrest if they did not comply. Under threat of arrest, Plaintiffs and others in their group relocated to an area behind the barrier. Id. at.. Since that time, Border Patrol has maintained barriers on the public-right-ofway. Id. at.. Following the first day of monitoring, Border Patrol erected new rope barriers on both sides of the road, and posted a sign that read Border Patrol Enforcement Zone - No Pedestrians Beyond this Point. The barriers and signs have since been modified but have remained in the same location, approximately 0 feet east of the checkpoint, since Border Patrol s initial encounter with the monitors. Id. at.. As a result, Plaintiffs and others have not been able to observe and record basic checkpoint activities. From behind the barriers, persons seeking to monitor the checkpoint activities are unable to observe agents interactions with motorists, and are thus unable to record information about the checkpoint activity, including the identity of agents conducting the stops, the characteristics of the vehicle occupants, the behavior of any service canines, and the nature of communications between agents and motorists. Id. at 0.. In March 0, monitors again attempted to move to an area inside the barriers an empty space across the road from the checkpoint shelter on the north shoulder and approximately 00 feet east of the shelter. Border Patrol agents again forced the monitors to relocate behind the Border Patrol barriers under threat of arrest. Id. at.. As a result, monitors were again unable to observe and record much of the checkpoint-related information they sought. Id. at.

19 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 D. Border Patrol s Restrictions on Monitoring Have Prevented Adequate Documentation of Border Patrol Agents Public Activities, and Are Not Justified By Defendants Proffered Rationales. Due to Border Patrol s restrictions, all observations have been made from a distance that has severely limited Plaintiffs ability to monitor the Checkpoint. Id. at 0.. While Plaintiffs have been able to collect some limited data, because Defendants restrictions frustrate the purpose of Plaintiffs campaign and severely limit observation of Border Patrol s public activities, Plaintiffs and other monitors have curtailed monitoring activities and participation in the monitoring campaign has diminished. See id. at.. The limited observations that monitors have made suggest that the restrictions on their ability to observe checkpoint activity may conceal inappropriate agent conduct. Specifically, PHP s initial findings, based on monitoring from February to April 0, suggested that Latino motorists are subjected to discriminatory practices. Ragan Decl. Ex. ; Ragan Reply Decl., Ex.. 0. Based on its limited stop data, PHP concluded that Latinos are approximately twenty times more likely than Caucasians to be referred for secondary inspection, and twenty-six times more likely to be asked to show identification. Plaintiffs and PHP are severely limited in their ability to confirm, describe, or elaborate upon this apparent discrimination, or other checkpoint activity, from the distant vantage point to which they are confined. Id. E. Border Patrol Has Excluded Plaintiffs, Yet Allowed Other Individuals to Enter the Enforcement Zone. Since erecting the barriers, Border Patrol has allowed persons other than Plaintiffs and the PHP monitors to enter the enforcement zone. For example, on November, 0, Steve McLain, a professional surveyor, conducted a survey of the checkpoint. McLain Decl... When he asked whether he could conduct the survey in the area surrounding the checkpoint, including within the enforcement zone, the Border Patrol agents on duty informed him that the barriers were only in place to exclude protesters or others the

20 Case :-cv-0-bgm Document - Filed 0/0/ Page 0 of 0 0 Border Patrol agents believe to be disruptive to the checkpoint, and not the public in general. McLain Decl... On April, 0, PHP monitors, including Plaintiff Ragan, observed a local resident arrive and park his vehicle next to the barrier, directly inside Border Patrol s newly-designated enforcement zone. Ragan Decl... That resident began to question and harass the monitors stationed on the other side of the barrier. Id.. He remained inside the barrier for approximately forty minutes, at one point parking his truck with one end protruding into the roadway. Id.. The man s wife also arrived and parked her car inside the barrier. Id.. As Plaintiff Ragan was departing, he asked the agents at the checkpoint if they had given the man permission to remain inside the enforcement zone; an agent replied, It s a free country. Id. at.. Defendants have acknowledged that the agents at the checkpoint are given discretion to choose which members of the public are allowed near the checkpoint. In a March, 0 sent from Defendant San-Martin to PHP, he stated that agents have the authority and are within their right to determine who can enter into the perimeter where they are conducting law enforcement actions.the decision on where monitors can stand/sit without interfering with agents and traffic is that of the agents and not the monitors. Ebanks Decl. Ex... At a March, 0 presentation at the Arivaca Community Center, Assistant Agent in Charge Easterling stated that the people who are going to dictate where [the monitors] can and can t be are the agents on the scene, even though he noted that Border Patrol was well aware that we have some agents out there that lose their minds... and when we get the reports on that... we take care of it. Ragan Decl.. 0. Agents at the checkpoint have used this discretion to interfere with Plaintiffs observations, for example, by parking vehicles in Plaintiffs line of sight. At a July 0 checkpoint rally, agents parked Border Patrol vehicles immediately adjacent to

21 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 the barriers on both sides of the road, impeding Plaintiff Jacobson s and other monitors view of the checkpoint for over an hour. Id. at.. On more than one occasion, agents have parked a Border Patrol vehicle next to the barrier and left the engine running, with exhaust fumes directed at the monitors. Id. at 0. In one instance, in an attempt to avoid the exhaust fumes blowing in their direction, the monitors moved to the opposite side of the road. Id. An agent responded by parking a vehicle next to the barrier on that side of the road, again leaving the engine running. Id. Both vehicles were left idling for approximately three hours while the monitors were present. Id.. Plaintiffs and other monitors have also experienced several instances in which motorists passing through the Arivaca Road checkpoint taunted and harassed them as they drove by, after having had conversations with Border Patrol agents. Ragan MSJ Decl.. These motorists interactions with Border Patrol agents appeared to be joking and friendly, and Plaintiffs and other monitors have sometimes overheard negative comments about PHP and monitors. Id. F. The Right of Way Along Arivaca Road is Used for Expressive Purposes. The public right of way alongside Arivaca Road is routinely used for expressive purposes. Election signs, mounted on stakes, are often displayed on the roadside. Id. at.. Signs pertaining to events and local businesses, such as restaurants, are also located on the side of Arivaca Road. Id.. Signs in support of the Checkpoint and Border Patrol are also clearly visible from Arivaca Road, including from within the enforcement zone. Id. at ; see also San Martin Decl. Ex. C. 0

22 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 DATED this th day of January, 0. ACLU FOUNDATION OF ARIZONA By /s/ James Lyall Daniel J. Pochoda James Lyall Victoria Lopez 0 North th Street, Suite Phoenix, AZ 0 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES /s/ Mitra Ebadolahi David Loy Mitra Ebadolahi P.O. Box San Diego, CA - COVINGTON & BURLING, LLP /s/ Winslow Taub Winslow Taub Tracy Zinsou Ethan Forrest Neha Jaganathan Front Street, th Floor San Francisco, CA Attorneys for Plaintiffs

23 Case :-cv-0-bgm Document - Filed 0/0/ Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on the th day of January, 0, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing. Notice of this filing will be sent by to all parties by operation of the Court s electronic filing system or by mail as indicated on the Notice of Electronic Filing. I further certify that the attached document was served on the following counsel for Defendants, by means of electronic mail: Eric B. Beckenhauer Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 0 Massachusetts Ave. NW Washington, DC 00 Eric.Beckenhauer@usdoj.gov Dated: January, 0 San Francisco, CA /s/ Rohna Houston Paralegal