Can Border Patrol stop citizens from observing and collecting data on BP racial profiling?
About three years ago during the Spring of 2014 a group of citizens from Arivaca, just south of Tucson, began observing and collecting data on the Border Patrol checkpoint on I-19 on the way north to Tucson, AZ.
Latino drivers are 26 times more likely to be asked for identification than white drivers at the U.S. Border Patrol checkpoint on Arivaca Road west of Interstate 19, according to a group that wants the checkpoint removed.
Although thousands of drivers passed through the checkpoint, no arrests were made during the period when observers recorded the actions of border agents there, the group said.
Nearly 50 people filled the meeting room of the Arivaca Community Center on Sunday, where the group People Helping People presented their case based on the observations of trained volunteers who tracked how Border Patrol agents treated people driving east through the checkpoint toward I-19.
Between Feb. 26 and April 28, observers watched 2,379 vehicles pass through the checkpoint.
Each observer recorded the type of vehicle, the apparent race of the occupants, the length of the stop, if the driver presented identification, and whether or not the vehicle was sent to additional inspection by border agents.
While less than two percent of motorists were asked for their identification, that requirement fell almost entirely on Latino motorists, members of the group said.
While whites comprised more than 80 percent of the people who drove through the checkpoint during the observation period, less than one percent of whites had to prove their citizenship to Border Patrol agents.
Meanwhile, approximately 16 percent of Latinos had to show their identification.
Once presented with the clear racial bias by Border Patrol that had now been documented, the government agency decided to fight this transparency, captured by citizens exercising their First Amendment right to simply observe and to document and tally what they saw, by setting up a perimeter to keep observers away from this freeway checkpoint.
The citizens decided to take the government to court, and now the hearing on the First Amendment rights vs the Border Patrol has been heard by the Ninth Circuit Court of Appeals.
It appears the judges may not be convinced that this perimeter meant to stop citizens from collecting data is justified in the name of security.
SAN FRANCISCO – Federal appellate judges grilled an attorney for the Border Patrol who argued Tuesday it has the right to keep observers and protesters at least 150 feet from a controversial checkpoint in southern Arizona.
Assistant U.S. Attorney Patrick Nemeroff told the 9th Circuit Court of Appeals that the entire 300-foot wide stretch from end to end, including the road and the unpaved right of way, is needed for the federal agency to do its job of screening passing vehicles for those not in the country legally.
While the checkpoint was first established in 2007, Nemeroff acknowledged that police tape and, later, ropes, were not erected until 2013 when individuals showed up to monitor what was taking place and protest the activity. But he told the three-judge panel that nothing really changed and, as far as the Border Patrol is concerned, the entire area has been off limits to outsiders since 2007, meaning it is not an area where people can exercise their First Amendment rights of observation and protest.
“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,” Nemeroff said. “It becomes a non-public forum.”
But Judge Milan Smith Jr. said even assuming there’s a legitimate need for the perimeter to conduct legitimate police operations, that still leaves questions.
“Can you bar people from observing that?” he asked.
“Yes,” Nemeroff responded.
“That’s kind of shocking,” the judge retorted.
Hanging in the balance is how close those who want to watch the activities will be able to get.
The checkpoint has been a sore point among some area residents who do not like the fact they are stopped each time they drive eastbound along the road between Arivaca and Amado.