Case :-cv-000-w-blm Document Filed // Page of 0 STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Director, Federal Programs Branch United States Department of Justice, Civil Division STEPHEN J. BUCKINGHAM (MD Bar) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 0 Massachusetts Avenue, NW Washington, DC 000 Tel: 0--0 Fax: 0--0 Email: stephen.buckingham@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) RAY ASKINS, et al. ) No. -cv-00 W-BLM ) Plaintiffs, ) Date: December 0, 0 v. ) Time: No Oral Argument Pursuant ) to Local Rule UNITED STATES DEPARTMENT OF )Courtroom: HOMELAND SECURITY, et al. ) ) Defendants. ) ) MOTION AND NOTICE OF MOTION FOR RECONSIDERATION BY UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND OFFICIAL-CAPACITY DEFENDANTS 0
Case :-cv-000-w-blm Document Filed // Page of 0 For the reasons set forth in the accompanying Memorandum of Points and Authorities, the U.S. Department of Homeland Security and the official-capacity defendants respectfully request that the Court reconsider portions of its Order of September 0, 0. Specifically, the government respectfully requests that the Court reconsider its denial of the government s Motion to Dismiss plaintiffs so-called First Amendment pattern or practice claims; that the Court reconsider its decision to grant plaintiffs leave to amend their official-capacity First Amendment claims; and that the Court reconsider its partial denial of the government s Motion to Dismiss plaintiffs Fourth Amendment challenge to U.S. Customs and Border Protection s search and seizure policy. 0 DATED: Nov., 0 Respectfully Submitted, STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Director, Federal Programs Branch /s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 0 Massachusetts Avenue, NW Washington, DC 000 Tel. 0--0 Fax. 0--0 stephen.buckingham @usdoj.gov Attorneys for Defendants cv00
Case :-cv-000-w-blm Document Filed // Page of 0 CERTIFICATE OF SERVICE I certify that on November, 0, I caused a copy of the foregoing to be filed electronically and that the document is available for viewing and downloading from the ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. /s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) Trial Attorney, U.S. Dep t of Justice Civil Division, Federal Programs Br. 0 Massachusetts Ave., NW Washington, DC 00 Tel. 0--0 Fax. 0--0 stephen.buckingham@usdoj.gov 0 cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Director, Federal Programs Branch United States Department of Justice, Civil Division STEPHEN J. BUCKINGHAM (MD Bar) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 0 Massachusetts Avenue, NW Washington, DC 000 Tel: 0--0 Fax: 0--0 Email: stephen.buckingham@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) RAY ASKINS, et al. ) No. -cv-00 W-BLM ) Plaintiffs, ) Date: December 0, 0 v. ) Time: No Oral Argument Pursuant ) to Local Rule UNITED STATES DEPARTMENT OF )Courtroom: HOMELAND SECURITY, et al. ) ) Defendants. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLARIFICATION AND RECONSIDERATION BY UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND OFFICIAL-CAPACITY DEFENDANTS 0
Case :-cv-000-w-blm Document - Filed // Page of 0 0 INTRODUCTION In its Order of September 0, 0 (the Order ), this Court held that U.S. Customs and Border Protection s ( CBP ) photography policy complies with the First Amendment. Despite that holding and the dismissal of plaintiffs First Amendment challenges to the constitutionality of that policy, the Court allowed plaintiffs to proceed on their so-called First Amendment pattern or practice claims under the theory that the government failed to challenge the validity of those claims in the Motion to Dismiss. But the First Amendment pattern or practice claims that the Court identified are indistinguishable from the remainder of plaintiffs First Amendment claims; the only allegations plaintiffs make with respect to an unconstitutional First Amendment pattern or practice is that CBP was engaged in the practice of implementing an unconstitutional policy. Thus, the Court s holding that CBP s photography policy is constitutional under the First Amendment requires a dismissal of any claims premised on the related assertion that CBP violates the First Amendment by implementing that policy. Accordingly, the government respectfully requests that the Court reconsider its denial of the Motion to Dismiss with respect to the First Amendment pattern or practice claims. Furthermore, even after it had concluded that the CBP photography policy is constitutional, the Court proceeded to analyze the validity of plaintiffs Fourth Amendment claims as though it had held CBP s photography policy to be is cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 0 unconstitutional. That error in analysis led the Court to deny in part the government s Motion to Dismiss plaintiffs Fourth Amendment claims. The constitutional legitimacy of CBP s restrictions on photography necessitates a holding that the seizure and search of individuals who violate those restrictions is also constitutional. Accordingly, the government respectfully requests that the Court clarify the language used in the Fourth Amendment portion of its Order and reconsider its partial denial of the Motion to Dismiss plaintiffs Fourth Amendment claims. Legal Standard A motion for reconsideration should be granted if the district court () is presented with newly discovered evidence, () committed clear error or the initial decision was manifestly unjust, or () if there is an intervening change in controlling law. Sch. Dist. No. J, Multnomah Cnty., Or. v. ACandS, Inc., F.d, (th Cir. ); see also Chamber Rules at. I. The Court Erred in Partially Denying the Government s Motion to Dismiss Plaintiffs First Amendment Claims. In its Order, this Court held that CBP s photography policy survives the strict scrutiny analysis and, therefore, complies with the requirements of the First Amendment. Order Granting in Part & Denying in Part Defs. Mot. to Dismiss ( Order ) at (Dkt. No. ). Despite that holding, the Court granted plaintiffs leave to amend their First Amendment claims and partially denied the government s motion to dismiss on the theory that the government did not move to dismiss defendants so- cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 0 called First Amendment pattern or practice claims. Id. The government respectfully contends that the Court erred in holding that the Complaint asserted independent First Amendment claims under a pattern or practice theory. The pattern or practice claims identified by the Court are not distinguished as independent claims in the Complaint and, to the extent they exist, they are inextricably intertwined with the First Amendment policy claims that the Court rejected. Thus, the Court s holding that CBP s restrictions on photography are constitutionally permissible bars any claim that plaintiffs might have alleged regarding CBP s implementation of those same restrictions. Accordingly, the government respectfully requests that the Court reconsider its denial of the government s Motion to Dismiss any First Amendment pattern or practice claims that plaintiffs may have asserted against the official-capacity defendants. The Court applied a strict scrutiny standard in analyzing plaintiffs First Amendment claims because it found a factual dispute existed as to whether the photography in question occurred in areas traditionally considered as public fora, and because it concluded that the policy in question was not content-neutral. Id. at -0. That holding renders any remaining First Amendment claims against the officialcapacity defendants subject to immediate dismissal. The government respectfully disagrees with the Court s analysis on those issues and maintains that CBP s policy should have been analyzed under a standard of reasonableness. cv00
Case :-cv-000-w-blm Document - Filed // Page of Plaintiffs asserted two First Amendment claims against the official-capacity defendants. See Compl. at - (Dkt. No. ). The first alleges that the 0 0 government violated Mr. Askins First Amendment right of freedom of speech by acting pursuant to an expressly adopted official CBP policy and/or longstanding CBP practice of prohibiting the use of cameras... at CBP-controlled facilities, including U.S. ports of entry, without CBP s prior approval. Id. at. The second uses identical language with respect to Mr. Ramirez. Id. at. The fundamental premise of these claims is that CBP s restriction of plaintiffs photographic activity whether done pursuant to a policy or pursuant to a pattern or practice violated of the First Amendment. The Court has concluded, however, that CBP s restriction of plaintiffs photography activity complied with the First Amendment. And plaintiffs did not allege that CBP had a pattern or practice of acting in a manner that was inconsistent with the policy. Accordingly, whether the alleged CBP activity occurred pursuant to a policy or pursuant to a pattern or practice is immaterial. The Court s holding applies with the same weight in either scenario. Thus, because the Court has held that CBP s restrictions on plaintiffs unauthorized photography comply with the First Amendment, the government respectfully requests that the Court reconsider its denial Mr. Askins First Amendment claim appears to assert a separate, personal-capacity claim against certain unnamed CBP officers under a Bivens theory. Compl. at -. To be clear, the government s Motion to Dismiss did not address any personalcapacity claims that Mr. Askins may be attempting to assert. In any event, because those officers have not been named or served, any possible Bivens claims in this case are not properly before this Court. cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 of the government s Motion to Dismiss any so-called pattern or practice claims asserted under the First Amendment against the official-capacity defendants. Moreover, the government respectfully requests that the Court reconsider its decision to grant plaintiffs leave to amend the First Amendment claims they assert against the official-capacity defendants. [A] party is not entitled to an opportunity to amend his complaint if any potential amendment would be futile[.] Mirmehdi v. United States, F.d, (th Cir. 0) (citation omitted); Foman v. Davis, U.S., (). Because CBP s photography policy survives the strict scrutiny analysis, any attempt to amend the constitutional challenges to that policy would be futile and would further delay the orderly administration of the case. II. The Court s Fourth Amendment Analysis Requires Clarification and the Court Erred in Partially Denying the Government s Motion to Dismiss Plaintiffs Fourth Amendment Claims. Despite holding that the CBP s photography policy is constitutional, the Court proceeded to analyze plaintiffs Fourth Amendment claims under the premise that defendants have not shown that their [photography] policy is constitutional. Order 0 The quoted sentence of the Order reads in full: However, as explained in detail above, Plaintiffs have not shown that their policy is constitutional. Order at. The government assumes that the reference to Plaintiffs in this sentence was in error, and should have instead referred to Defendants, because the only policies in question in this suit are those of CBP. Similarly, the government assumes that the Court s reference to Plaintiffs in the subheading of Section B. of the Order was in error for the same reasons. The language in that subheading appears to have additional inconsistencies that the government assumes are typographical. If these assumptions are incorrect, the government respectfully requests clarification of these references, since they appear to be at odds with the rest of the Order. cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 0 at. Based on that inconsistency, the Court denied in part the government s Motion to Dismiss plaintiffs Fourth Amendment claims. But the constitutionality of CBP s photography policy, as established in the First Amendment portion of the Court s Order, confirms the constitutional legitimacy of CBP s search and seizure policy. Accordingly, pursuant to this Court s conclusion as to the constitutionality of CBP s policy, the government respectfully requests that the Court reconsider its partial denial of its Motion to Dismiss plaintiffs Fourth Amendment challenge to CBP s search and seizure policy. In its Order, the Court recognized that the government s arguments concerning the constitutionality of CBP s search and seizure policy rested on the premise that their photography policy is constitutional. Order at. Indeed, the government argued that because CBP s prohibition of unauthorized photography is constitutional, CBP s policy permitting the detention of individuals who violate that prohibition is also constitutional. See, e.g., Defs. Reply at (Dkt. No. ). Unauthorized photography on ports of entry violates both CBP policy and GSA federal property regulations, see C.F.R. 0-.0, and violation of GSA s federal property regulations constitutes a crime. See C.F.R. 0-.0. Therefore, because CBP officers have probable cause to believe that an individual taking unauthorized photographs has committed a crime, CBP s policy of detaining and searching that individual does not violate the Fourth Amendment. cv00
Case :-cv-000-w-blm Document - Filed // Page of The Court rejected this argument not on its merits, but by relying on the presumption that CBP s photography policy did not meet constitutional scrutiny. But the Court had held the opposite (as explained elsewhere in the Court s Order). The First Amendment portion of the Order made clear that CBP s restrictions on photography are constitutionally permissible. See Order at. Because the only basis on which the Court relied in rejecting the validity of CBP s search and seizure policy was incorrect, the government respectfully requests that the Court reconsider its denial of the government s Motion to Dismiss plaintiffs Fourth Amendment challenge to CBP s search and seizure policy. 0 0 The Order also allows plaintiffs Fourth Amendment excessive force claim to proceed on the basis that the government did not move to dismiss that claim. Order at. Although the text of the claim is not entirely clear, plaintiffs claim of excessive force appears to be a personal capacity claim pertaining solely to Mr. Askins that asserts liability under a Bivens theory against one, unnamed individual. Complaint at -0. Neither the allegations contained in that specific claim nor any other allegations in the complaint contend that CBP has a policy or officially-sanctioned pattern of behavior that allows the use of excessive force. Accordingly, because plaintiffs excessive force claim runs only against an unnamed, personal-capacity defendant, the government s Motion to Dismiss did not address that claim. And, once again, because that individual has not been named or served, any potential Bivens claim for excessive force is not properly before this Court. cv00
Case :-cv-000-w-blm Document - Filed // Page of 0 0 DATED: Nov., 0 Respectfully Submitted, STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Director, Federal Programs Branch /s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) Trial Attorney, Federal Programs Branch United States Department of Justice, Civil Division 0 Massachusetts Avenue, NW Washington, DC 000 Tel. 0--0 Fax. 0--0 stephen.buckingham @usdoj.gov Attorneys for Defendants cv00