FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAY ASKINS; CHRISTIAN RAMIREZ, No. 16-55719 Plaintiffs-Appellants, D.C. No. v. 3:12-cv-02600- W-BLM U.S. DEPARTMENT OF HOMELAND SECURITY; DAVID SALAZAR, Director, Calexico Port of Entry; OPINION SIDNEY K. AKI, Director, San Ysidro & Otay Mesa Ports of Entry; KEVIN K. MCALEENAN, Commissioner of United States Customs and Border Protection, Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding Argued and Submitted February 16, 2018 Pasadena, California Filed August 14, 2018 2 ASKINS V. DHS Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason,* District Judge. Opinion by Judge Bybee SUMMARY** First Amendment / Law of the Case Doctrine The panel vacated the district court’s dismissal of an amended complaint in which plaintiffs – advocates on border policy issues whose photos of activities at U.S. ports of entry on the United States-Mexico border were confiscated and destroyed by U.S. Customs and Border Protection (“CBP”) officers – alleged violations of their First Amendment rights, and remanded for further proceedings. The panel held that the law of the case doctrine did not apply because the district court dismissed the First Amendment claim in the initial complaint without prejudice, and did not enter a final judgment. The filing of the amended complaint did not ask the court to reconsider its analysis of the initial complaint, and the district court should simply have considered the amended complaint on its merits. * The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ASKINS V. DHS 3 The panel held that the First Amendment protected the right to photograph and record matters of public interest, and whether a place was “public” depended on the nature of the location. The panel also held that the district court’s holding that the CBP policies were the least restrictive means of serving a compelling government interest were conclusory and insufficient to justify judgment for the government on a motion to dismiss. The panel also held that it was the government’s burden to prove that the specific restrictions were the least restrictive means available, and general assertions of national security were insufficient. The panel concluded that plaintiffs adequately pleaded their claims; and remanded for further factual development for the district court to determine what restrictions, if any, the government could impose in the public, outdoor areas where the photos were taken. COUNSEL Mitra Ebadolahi (argued) and David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California, for Plaintiffs-Appellants. Thomas G. Pullham (argued), Patrick G. Nemeroff, and Scott McIntosh, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants- Appellees. Ilya Shapiro, Cato Institute, Washington, D.C., for Amicus Curiae Cato Institute. 4 ASKINS V. DHS Bruce D. Brown, ...
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