Your Right to Record at the Border

July 25, 2022 David Loy

A special message on landmark legal settlement affirming your right to film federal officials in public areas at land ports of entry

The right to record law enforcement activity is entrenched in First Amendment law, but it took an eight-year lawsuit to uphold it at U.S. land ports of entry, which are often critical community hubs. For example, the San Ysidro Port of Entry between San Diego and Tijuana is the busiest land port of entry in the Western Hemisphere, with 70,000 vehicles and 20,000 pedestrians entering the United States each day.

On May 28, 2010, at the San Ysidro Port of Entry, border agents beat, tased, and suffocated Anastasio Hernández Rojas, resulting in his death three days later. Agents intimidated eyewitnesses and deleted their videos of the attack. An eyewitness video that survived was instrumental in a lawsuit that ultimately resulted in a $1 million settlement.

The killing and its coverup inspired the ACLU of San Diego & Imperial Counties to file Askins and Ramirez v. Department of Homeland Security in 2012, seeking to preserve the First Amendment right to record law enforcement activity in outdoor areas of land ports of entry.

Ray Askins is an environmental activist who photographed the exterior of the Calexico Port of Entry building for a presentation on vehicle emissions. Christian Ramirez is a human rights activist who photographed male officers frisking female travelers at the San Ysidro Port of Entry. Officers detained, harassed, and threatened both men, temporarily confiscated their cameras, and deleted their photographs without permission. Officers also physically abused Mr. Askins.

After prolonged litigation, the Ninth Circuit U.S. Court of Appeals upheld the plaintiffs’ right to pursue the lawsuit. The parties reached a settlement in September 2020, which guaranteed the right to record events in certain publicly accessible areas of all land ports of entry in the United States.

In April 2022, FAC joined ACLU-SDIC and its co-counsel, Arnold & Porter Kaye Scholer LLP, to monitor compliance with the settlement and enforce it if necessary. Anyone who believes their rights have been violated while recording events at a land port of entry is encouraged to share their concerns in an online intake form. FAC will review all such reports carefully.

—David Loy, Legal Director, First Amendment Coalition

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Op-ed: You have a right to record law enforcement at the border. Here’s why it’s important.

“The Askins settlement is an important step in safeguarding the public’s critical First Amendment right to monitor and document law enforcement conduct and an important tool in holding CBP officials accountable for their abuses and misuse of power,” Emily Child and Bardis Vakili, lawyers with ACLU San Diego & Imperial Counties, write about the case. “It is especially important now that people are being denied their right to seek asylum in the U.S. — often by CBP officers physically, sometimes forcefully, keeping people away from ports of entry.” Read the op-ed in the San Diego Union-Tribune

Ramirez: Growing up, Border Patrol harassed my community. I now work to hold the agency accountable.

“I have been arrested, threatened and harassed many times by federal agents for bearing witness to their abusive actions,” writes Christian Ramirez, longtime community organizer and human rights advocate who was a plaintiff in the lawsuit. “The journey has been extremely difficult but not devoid of victories.” Read the op-ed in the San Diego Union-Tribune

Askins: I was interrogated, touched inappropriately for taking legal photos at the border

“I managed to take about four photos when I was approached by Customs and Border Protection (CBP) officers. I was handcuffed and dragged off to a small room inside the Port of Entry and searched by three male officers. It was a very uncomfortable search,” writes Ray Askins, a border environmentalist and another plaintiff in the lawsuit. “By the time it was over, they deleted all but one of my photos from my camera without explanation. I was angry and humiliated.” Read the op-ed in the San Diego Union-Tribune