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You Have the Right to Record Law Enforcement Officers — Including at the Border

by Brooke Kaufman
Christian Ramirez, a San Diego resident and community organizer and human rights advocate, was at the San Ysidro Port of Entry when he witnessed male U.S. Customs and Border Protection (“CBP”) officers inspecting and patting down female travelers. Ramirez, concerned that the officers were abusing their power, took out his cell phone to take photographs of the incident. As he did this, Ramirez was standing on the United States side of the border, recording law enforcement in public — an act protected by the First Amendment. Still, federal officials physically accosted Ramirez, took his cell phone, and deleted the photographs.

According to the ACLU, the constitutional right to record helps to ensure law enforcement accountability. Recordings offer an irrefutable record of interactions between law enforcement and historically hyper-surveilled border communities. Currently, CBP is the largest law enforcement agency in the United States. It’s also one of the deadliest: In the past 12 years, more than 200 people have died at the hands of CBP officials. CBP has tried to prevent the public from recording its agents at work — and thus capturing abuses of power — near United States ports of entry. CBP officials have threatened, harassed, and assaulted people who take photos or videos of law enforcement in public, unrestricted areas near the border.

To put a stop to this practice, the ACLU represented Ramirez and Ray Askins, an environmental advocate who CBP officials physically assaulted at the Calexico Port of Entry when he tried to photograph idling vehicles. In September 2020, the ACLU achieved a landmark settlement in the First Amendment lawsuit, forcing the federal government to admit there is no border exception to the First Amendment right to photograph and record matters of public interest.

The ACLU says the settlement will strengthen protections for border communities and people who frequently cross through check points.

First, the settlement maintains that government officials can’t interfere with the right to photograph or record law enforcement from a “Publicly Accessible Area at any land port of entry in the United States.” Such areas are defined as “an outdoor area at a land port of entry where a member of the public is permitted to be regardless of whether they intend to cross the United States border.” The only ports of entry excluded are airports.

Second, the settlement prohibits government officials from requiring someone to obtain prior authorization for photos or videos taken at the border. This means no consent from the government is required to record law enforcement abuses in real time. Third, the settlement states that officials cannot “unlawfully seize, delete, destroy, alter, or otherwise inhibit” a person’s access to photos or videos taken at the border. Fourth, the settlement clarifies that documenting law enforcement or other activity at the border is not a crime.

Fifth, the settlement does allow government officials to restrict recordings of any kind in “Restricted Access Areas.” Such areas are defined as “any area within a land port of entry’s boundaries that is used regularly by the Department of Homeland Security … to process or inspect individuals or vehicles crossing an international border.” Photos and videos may be restricted at certain points of inspection, inside port buildings, or in other “restricted” areas.

Ultimately, Askins’settlement safeguards the First Amendment right to record law enforcement in public. This is especially important for capturing civil rights violations and other abuses of power along United States borders.

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