How Close Is Too Close For Monitoring Border Patrol Checkpoints?

By Holliday Moore
Howard Fischer
Published: Thursday, December 7, 2017 - 5:00am
Updated: Thursday, December 7, 2017 - 5:05am

The 9th U.S. Circuit Court of Appeals is deciding how close is too close for the public to stand and monitor Border Patrol checkpoints. The case born out of southern Arizona could set precedence for the rest of the country.

For the past decade, residents living between Arivaca and Amado have routinely stopped at a Border Patrol checkpoint, less than 20 miles north of the Arizona-Mexico border.

The site has not moved in that time, prompting neighbors to wonder how effective it really is at policing illegal immigration. And, when motorists began complaining about alleged profiling because they looked Hispanic, the community began actively observing the checkpoint.

Four years ago, Border Patrol agents placed a 150-foot barrier around the checkpoint, which neighbors claimed violated their First Amendment rights to observe.

On Tuesday, Assistant U.S. Attorney Patrick Nemeroff tried to explain to Judge Milan Smith Jr. why someone's those rights to observe are waived when entering a national security area.

"If the government legitimately sets aside an area for some security function, it clearly delineates that area so that the public recognizes, 'When I pass this line I'm entering an area that is not devoted to expressive activity,' then, yes, it becomes a non-public forum,'' he told the judge.

Judge Smith grew concerned those non-public forum boundaries are currently left to the agency's discretion.

"It sounds like you're saying no matter what the government does, whether it's putting a policeman there or a shack or whatever to do that, automatically, it's a non-public forum."

"Yes," Nemeroff said.

Smith disagreed and reminded him, "That's not this country, we have the right to observe what police do."

Nemeroff reminded the judges, "Courts have never micromanaged the government in terms of where they put these sorts of limits."

Smith was not impressed and appeared to agree with the residents' attorney Winslow Taub who asked, at the very least, for the judges to redefine perimeter distances for the Border Patrol.

The judges agreed to consider the arguments, but gave no indication when they will rule.

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