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TUCSON, Ariz. (AP) — Residents of a small southern Arizona town who have spent the past year protesting a Border Patrol checkpoint 20 miles north of Mexico say they should be able to monitor agents from a much closer position than they can now.
A federal magistrate judge in Tucson will decide whether they get to be 20 feet away — not 150 feet, as they're required now — after attorneys on both sides made oral arguments on Tuesday. Judge Bruce G. Macdonald said he would make a decision soon on the request by plaintiffs to issue an injunction against the Border Patrol's regulations on observers.
"The right to monitor is a core expressive right under the First Amendment," attorney Winslow Taub said.
The request for an injunction was made as a lawsuit filed last year by Arivaca residents Leesa Jacobson and Peter Ragan continues. The lawsuit says the Border Patrol violates the plaintiffs' First Amendment rights and harasses them during their attempts to monitor and record agents working the checkpoint. Some protesters have defiantly refused to give their citizenship status.
The Border Patrol has dozens of inland checkpoints around the Southwest and in northern states such as Washington. The checkpoints can be within 100 air miles of the country's border and are usually located on highways and small roads. All people who drive through a checkpoint are asked to reveal whether they are U.S. citizens, and border agents must have reasonable suspicion to detain someone at a checkpoint.
The one just outside of Arivaca is on a two-lane road about 20 miles north of the border with Mexico. Many Arivaca residents say it's invasive and unnecessary to have to stop and declare their citizenship status every time they leave town. The Border Patrol says checkpoints are crucial to stopping drug and human smuggling that makes it past the border.
For now, Jacobsen and Ragan want only to be allowed closer to the agents to monitor their activity. The Arivaca protesters often sit at a 150-foot distance and take note of what kind of car goes through the checkpoint, the apparent ethnicity of the driver and whether the car was pulled in for secondary inspection.
But government attorney Eric Beckenhauer said having the protesters so close to the checkpoint poses a public safety risk for agents and for the observers who are near traffic. "It's simply not reasonable to think the Border Patrol is going to be able to carry out its duties in those areas," he said.
Beckenhauer compared the Border Patrol checkpoints to Transportation Security Administration checkpoints at the airport, saying neither are public forums that allow for public protests or monitoring.
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