Case: Askins v. U.S. Department of Homeland Security

3:12-cv-02600 | U.S. District Court for the Southern District of California

Filed Date: Oct. 24, 2012

Case Ongoing

Clearinghouse coding complete

Case Summary

On October 24, 2012, two U.S. citizens detained by U.S. Customs and Border Protection (CBP) after taking pictures of ports of entry filed a lawsuit in the U.S. District Court for the Southern District of California, under 5 U.S.C. § 702, 28 U.S.C. § 2201 and Bivens, against CBP, an agency within the Department of Homeland Security. The plaintiffs, represented by attorneys from the ACLU of San Diego and private counsel, sought injunctive, declaratory, and monetary relief, alleging that CBP's pol…

On October 24, 2012, two U.S. citizens detained by U.S. Customs and Border Protection (CBP) after taking pictures of ports of entry filed a lawsuit in the U.S. District Court for the Southern District of California, under 5 U.S.C. § 702, 28 U.S.C. § 2201 and Bivens, against CBP, an agency within the Department of Homeland Security. The plaintiffs, represented by attorneys from the ACLU of San Diego and private counsel, sought injunctive, declaratory, and monetary relief, alleging that CBP's policy and practice of prohibiting the use of camera and video recording devices at or near CBP-controlled facilities without CBP's prior approval was unconstitutional, in violation of the plaintiffs' First and Fourth Amendment rights.

The complaint explained that, as the Human Rights Director of Alliance San Diego, the plaintiff ran a blog and took pictures of the port of entry, CBP officers, and attempted to detail suspicious activity of law enforcement officers. The complaint detailed two separate interactions one of the plaintiffs had with CBP officers. On both occasions, the officers confiscated his camera/phone and deleted the pictures the plaintiff had taken of the entry port and male officers patting down females. On the first occasion, the plaintiff was also detained, and he claimed an officer used excessive force to take his camera away and arrest him. On both occasions, CBP officers explained it was their policy to not permit pictures to be taken. On this basis, the plaintiff claimed his First Amendment right to take pictures and use them in his blog was violated. Additionally, the plaintiffs claimed that undergoing an unreasonable search and seizure of their persons and their phones violated their Fourth Amendment rights.

On January 29, 2013, the plaintiffs filed for a preliminary injunction.

On February 19, 2013, the defendants filed a motion to dismiss for failure to state a claim.

On April 12, 2013, the District Court (Judge Thomas J. Whelan) denied the plaintiffs' motion for a preliminary injunction because the plaintiffs failed to show citizens had a First Amendment right to photograph the interior of secondary inspection areas for US ports of Entry, that they suffered irreparable harm, or that the First Amendment concerns outweighed the public interest of border security. 2013 WL 1561546.

On September 30, 2013, the court granted the defendant's motion to dismiss in part and denied the motion in part. The court dismissed without prejudice the claim that the defendant’s policy against picture taking violated the plaintiffs' First Amendment rights. The court also dismissed with prejudice the plaintiffs' claim that their Fourth Amendment rights were violated because the CBP photography policy was unconstitutional because the policy did not say the officers must delete the pictures. However, the claim that the practice of deleting the pictures and temporarily detaining the plaintiffs was not dismissed and neither was the claim for excessive use of force. 2013 WL 5462296.

On November 27, 2013, the defendants filed a motion for reconsideration of the partial dismissal of their motion to dismiss the case. On April 17, 2014 the court found that permitting leave to amend the plaintiffs' First Amendment claim was proper. However, the court ordered further briefing by the plaintiffs and the defendants because the lack of probable cause claim required reconsideration. 2014 WL 1600410.

On April 24, 2014, the plaintiffs, and on May 1, 2014, the defendants, filed supplementary briefing.

On January 29, 2015, the court granted the defendant’s motion for reconsideration because taking pictures of the port of entry was considered a crime and therefore the CBP officers had probable cause to assume the plaintiffs had committed a crime. Under this logic, the court found a warrantless search was permissible. However, the remaining Fourth Amendment claim of excessive force remained. 2015 WL 12434362.

On November 6, 2015, the plaintiffs filed an amended complaint. The new complaint removed the plaintiffs' Fourth Amendment claims and emphasized the First Amendment claims surrounding the CBP photography restriction and the importance of the removal of this policy.

On December 18, 2015 and January 8, 2016, the defendant’s filed a motion to dismiss the complaint again for failure to state a claim. On March 23, 2016 the court found the First Amendment claim was substantively the same and therefore the complaint was dismissed with prejudice. 2016 WL 4597529.

On May 17, 2016 the plaintiffs filed an appeal to the Ninth Circuit.

On September 28, 2016, the plaintiffs submitted a brief for review explaining why their complaint should not be barred by case law and their amended complaint to reiterate the factual and legal underpinnings. These alternations were ignored by the district court.

On October 5, 2016, the CATO institute, the Reporters Committee for Freedom of the Press, and seven media organization filed amicus briefs. The CATO brief argued that the First Amendment protected taking pictures of officers and the CBP’s policy failed the strict scrutiny test because the restriction of photography in this way did not leave alternative options. The Reporters Committee argued that photography and visual recording were essential elements of the media’s reporting of numerous matters of public concern, including those arising at the border. They also claimed there were strong policy reasons to allow photographing public officials including CBP officials and national security concerns did not provide the compelling interest to justify the CBP media restrictions.

On August 14, 2018 the Ninth Circuit vacated the District Court's holding on the First Amendment claim and remanded for further proceedings. The court found the First Amendment claim to not be precluded from reconsideration based on the earlier dismissal of the Fourth Amendment claim. Moreover, the court held that the government’s action was content-based restriction of speech in a public forum and required a more substantial showing that banning photography achieved the compelling interest of promoting border security. 899 F.3d 1035.

Discovery continued throughout much of 2017 and 2018. Plaintiffs filed an amended complaint on June 10, 2019 that focused on their First Amendment claims.

The case was transferred to Magistrate Judge Allison Goddard on September 16, 2019; she oversaw discovery and settlement negotiations. As of May 2020, the parties had not reached a settlement agreement, and negotiation is ongoing.

Summary Authors

Emma Bao (5/28/2013)

Taylor Brook (2/9/2018)

Dan Toubman (5/29/2020)

People

For PACER's information on parties and their attrorneys, see: https://www.courtlistener.com/docket/4192373/parties/askins-v-united-states-department-of-homeland-security/


Judge(s)

Bybee, Jay S. (Nevada)

Major, Barbara L. (California)

Whelan, Thomas J. (California)

Attorneys(s) for Plaintiff

Callahan, Samuel Francis (District of Columbia)

D'Amico, Sara (District of Columbia)

David, Jeffrey M. (California)

Ebadolahi, Mitra (California)

Gersch, David P. (District of Columbia)

Gosling, Kimberly Rhea (California)

Jones, Robert Stanton (District of Columbia)

Judge(s)

Bybee, Jay S. (Nevada)

Major, Barbara L. (California)

Whelan, Thomas J. (California)

Attorneys(s) for Plaintiff

Callahan, Samuel Francis (District of Columbia)

D'Amico, Sara (District of Columbia)

David, Jeffrey M. (California)

Ebadolahi, Mitra (California)

Gersch, David P. (District of Columbia)

Gosling, Kimberly Rhea (California)

Jones, Robert Stanton (District of Columbia)

Loy, John David (California)

Luk, Arthur (District of Columbia)

Markovitz, Jonathan Paul (California)

Prendergast, Mary (California)

Riordan, Sean (California)

Thompson, Sarah D. (California)

Woodmansee, M. Andrew (California)

Attorneys(s) for Defendant

Buckingham, Stephen J. (District of Columbia)

Craigmyle, Bradley (District of Columbia)

Nemeroff, Patrick George (District of Columbia)

Swinton, Nathan Michael (District of Columbia)

Westmoreland, Rachael (District of Columbia)

Westmoreland [inactive], Rachel Lynn (District of Columbia)

Documents in the Clearinghouse

Document

3:12-cv-02600

Docket [PACER]

April 24, 2020

April 24, 2020

Docket
1-4

3:12-cv-02600

Complaint For Declaratory And Injunctive Relief and Damages

Oct. 24, 2012

Oct. 24, 2012

Complaint
34

3:12-cv-02600

Order Denying Motion for Preliminary Injunction

2013 WL 1561546

April 12, 2013

April 12, 2013

Order/Opinion
42

3:12-cv-02600

Order Granting in Part and Denying in Part Defendants' Motion to Dismiss [DOC. 22] with Leave to Amend

2013 WL 5462296

Sept. 30, 2013

Sept. 30, 2013

Order/Opinion
49

3:12-cv-02600

Order: (1) Granting in Part and Denying in Part Defendants' Motion for Reconsideration [DOC. 46]; and (2) Requiring Further Briefing

2014 WL 1600410

April 17, 2014

April 17, 2014

Order/Opinion
56

3:12-cv-02600

Order Granting-in-Part Defendants' Motion for Reconsideration [DOC. 46]

2015 WL 12434362

Jan. 29, 2015

Jan. 29, 2015

Order/Opinion
73

3:12-cv-02600

Order Granting Defendants' Motion to Dismiss [DOC. 65]

2016 WL 4597529

March 23, 2016

March 23, 2016

Order/Opinion

3:12-cv-02600

16-55719

Opinion

U. S. Court of Appeals for the Ninth Circuit

899 F.3d 1035

Aug. 14, 2018

Aug. 14, 2018

Order/Opinion
108 & 108-1 to 108-4

3:12-cv-02600

Second Amended Complaint for Declaratory and Injunctive Relief

June 10, 2019

June 10, 2019

Complaint

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4192373/askins-v-united-states-department-of-homeland-security/

Last updated Aug. 2, 2022, 3:13 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT with Jury Demand against All Defendants ( Filing fee $ 350 receipt number 0974-5278217.), filed by Christian Ramirez, Ray Askins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)The new case number is 3:12-cv-2600-W-BLM. Judge Thomas J. Whelan and Magistrate Judge Barbara Lynn Major are assigned to the case. (Woodmansee, Mark)(vam) (cap). (Entered: 10/25/2012)

1 Exhibit A

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2 Exhibit B

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3 Exhibit C

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4 Civil Cover Sheet

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Oct. 24, 2012

Oct. 24, 2012

RECAP
2

NOTICE of Party With Financial Interest by Ray Askins, Christian Ramirez. (vam) (cap). (Entered: 10/25/2012)

Oct. 24, 2012

Oct. 24, 2012

PACER
3

Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (vam) (cap). (Entered: 10/25/2012)

Oct. 25, 2012

Oct. 25, 2012

PACER
4

NOTICE of Appearance by Patrick George Nemeroff on behalf of David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Nemeroff, Patrick)(srm). (Entered: 12/06/2012)

Dec. 6, 2012

Dec. 6, 2012

PACER
5

NOTICE of Appearance by Mary Prendergast on behalf of Ray Askins, Christian Ramirez (Prendergast, Mary) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
6

NOTICE of Appearance by Kimberly Rhea Gosling on behalf of Ray Askins, Christian Ramirez (Gosling, Kimberly) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
7

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. Billy Whitford served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
8

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. David V. Aguilar served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
9

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. Frank Jaramillo served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
10

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. United States Customs and Border Protection Officers served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
11

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. United States Department of Homeland Security served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
12

SUMMONS Returned Executed by Christian Ramirez, Ray Askins. David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford served. (Woodmansee, Mark Andrew) (srm). (Entered: 12/07/2012)

Dec. 7, 2012

Dec. 7, 2012

PACER
13

NOTICE of Appearance by John David Loy on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Loy, John) (srm). (Entered: 12/07/2012)

1 Proof of Service

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Dec. 7, 2012

Dec. 7, 2012

PACER
14

NOTICE of Appearance by Sean Connor Riordan on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Riordan, Sean) (srm). (Entered: 12/07/2012)

1 Proof of Service

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Dec. 7, 2012

Dec. 7, 2012

PACER
15

Joint MOTION for Extension of Time to File Response/Reply to Complaint by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 12/11/2012)

Dec. 11, 2012

Dec. 11, 2012

PACER
16

ORDER Granting 15 Joint Motion for Extension of Time to File Response. Defendants are directed to respond to 1 Complaint no later than January 30, 2013. Signed by Judge Thomas J. Whelan on 12/11/2012. (srm) (jcj). (Entered: 12/12/2012)

Dec. 11, 2012

Dec. 11, 2012

PACER
17

Joint MOTION for Extension of Time to File Response/Reply to Complaint by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 01/25/2013)

Jan. 25, 2013

Jan. 25, 2013

PACER
18

ORDER Granting 17 Joint Motion for Extension of Time to File Response/Reply. Defendants' answer/response due 2/13/2013. Signed by Judge M. James Lorenz on 1/28/2013. (srm) (jcj). (Entered: 01/29/2013)

Jan. 29, 2013

Jan. 29, 2013

PACER
19

MOTION for Preliminary Injunction by Ray Askins, Christian Ramirez. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration Askins, # 3 Declaration Ramirez, # 4 Declaration Young, # 5 Declaration Woodmansee, # 6 Exhibit A to Woodmansee Dec, # 7 Exhibit B to Woodmansee Dec, # 8 Exhibit C to Woodmansee Dec, # 9 Exhibit D to Woodmansee Dec, # 10 Exhibit E to Woodmansee Dec)(Woodmansee, Mark Andrew) (srm). (Entered: 01/29/2013)

1 Memo of Points and Authorities

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2 Declaration Askins

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3 Declaration Ramirez

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4 Declaration Young

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5 Declaration Woodmansee

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6 Exhibit A to Woodmansee Dec

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7 Exhibit B to Woodmansee Dec

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8 Exhibit C to Woodmansee Dec

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9 Exhibit D to Woodmansee Dec

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10 Exhibit E to Woodmansee Dec

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Jan. 29, 2013

Jan. 29, 2013

PACER
20

NOTICE of Appearance by Jeffrey M. David on behalf of Ray Askins, Christian Ramirez (David, Jeffrey) (srm). (Entered: 02/05/2013)

Feb. 5, 2013

Feb. 5, 2013

PACER
21

ORDER Resetting Hearing Date and Setting Briefing Schedule on 19 Plaintiff's Motion for Preliminary Injunction. The hearing date for the motion is rescheduled to March 27, 2013 at 10:00 a.m. Defendants' opposition due February 22, 2013. Plaintiff's reply due March 1, 2013. Signed by Judge Thomas J. Whelan on 2/6/2013. (srm) (Entered: 02/06/2013)

Feb. 6, 2013

Feb. 6, 2013

PACER
22

MOTION to Dismiss for Failure to State a Claim by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Nemeroff, Patrick) Modified on 2/14/2013, notice of non-compliance prepared (srm). (Entered: 02/13/2013)

1 Memo of Points and Authorities

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2 Exhibit A

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3 Exhibit B

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4 Exhibit C

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5 Exhibit D

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6 Exhibit E

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Feb. 13, 2013

Feb. 13, 2013

PACER
23

NOTICE of Non-Compliance with Local Rule 5.1(a) Legibility, re 22 MOTION to Dismiss for Failure to State a Claim filed by Billy Whitford, Frank Jaramillo, David V. Aguilar, United States Department of Homeland Security. (srm) (Entered: 02/14/2013)

Feb. 14, 2013

Feb. 14, 2013

PACER
24

Joint MOTION for Leave to File Excess Pages by David V. Aguilar, Ray Askins, Frank Jaramillo, Christian Ramirez, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (srm). (Entered: 02/19/2013)

Feb. 19, 2013

Feb. 19, 2013

PACER
25

Joint MOTION for Extension of Time to File Briefs for Plaintiffs' Motion for Preliminary Injunction and Defendants' Motion to Dismiss by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 02/20/2013)

Feb. 20, 2013

Feb. 20, 2013

PACER
26

ORDER Granting 24 Motion for Leave to File Excess Pages. Signed by Judge Thomas J. Whelan on 2/20/2013. (srm) (jcj). (Entered: 02/20/2013)

Feb. 20, 2013

Feb. 20, 2013

PACER
27

RESPONSE in Opposition re 19 MOTION for Preliminary Injunction filed by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Declaration of Billy Whitford)(Nemeroff, Patrick) (srm). (Entered: 02/22/2013)

1 Declaration of Billy Whitford

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Feb. 22, 2013

Feb. 22, 2013

PACER
28

ORDER Resetting Hearing Date and Setting Briefing Schedule. The hearing date for Plaintiff's Motion For Preliminary Injuction is rescheduled for 4/15/2013 10:30 AM before Judge Thomas J. Whelan. Hearing on Defendants' Motion to Dismiss reschedule for 4/15/2013. The Court will decided motion on the papers and without oral argument. Replies to Motion for Preliminary Injunction due 3/8/2013. Replies to Motion to Dismiss due by 3/27/2013. Signed by Judge Janis L. Sammartino on 2/27/2013. (srm) (jcj). (Entered: 02/27/2013)

Feb. 27, 2013

Feb. 27, 2013

PACER
29

Joint MOTION for Leave to File Excess Pages for Plaintiffs Reply in Support of Motion for Preliminary Injunction and Defendants Reply in Support of Motion to Dismiss by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 03/07/2013)

March 7, 2013

March 7, 2013

PACER
30

REPLY to Response to Motion re 19 MOTION for Preliminary Injunction filed by Ray Askins, Christian Ramirez. (Attachments: # 1 Declaration Askins, # 2 Declaration Woodmansee, # 3 Exhibit A to Woodmansee Decl, # 4 Exhibit B to Woodmansee Decl, # 5 Exhibit C to Woodmansee Decl)(Woodmansee, Mark Andrew) (srm). (Entered: 03/08/2013)

1 Declaration Askins

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2 Declaration Woodmansee

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3 Exhibit A to Woodmansee Decl

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4 Exhibit B to Woodmansee Decl

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5 Exhibit C to Woodmansee Decl

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March 8, 2013

March 8, 2013

PACER
31

ORDER Granting 29 Joint Motion for Leave to File Excess Pages, Extending Page Limit For Multiple Reply Briefs. Signed by Judge Thomas J. Whelan on 3/11/2013. (srm) (jcj). (Entered: 03/12/2013)

March 11, 2013

March 11, 2013

PACER
32

RESPONSE in Opposition re 22 MOTION to Dismiss for Failure to State a Claim filed by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 03/13/2013)

March 13, 2013

March 13, 2013

PACER
33

REPLY to Response to Motion re 22 MOTION to Dismiss for Failure to State a Claim filed by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (leh). (Entered: 03/27/2013)

March 27, 2013

March 27, 2013

PACER
34

ORDER Vacating Preliminary Injunction Hearing. The Court VACATES the April 15, 2013 hearing date on (Doc. 19 ) Plaintiff's motion for preliminary injunction. There shall be no oral argument on this matter. Signed by Judge Thomas J. Whelan on 4/12/2013. (srm) (jcj). (Entered: 04/12/2013)

April 12, 2013

April 12, 2013

PACER
35

ORDER Denying 19 Motion for Preliminary Injunction. Signed by Judge Thomas J. Whelan on 4/12/2013. (srm) (Entered: 04/12/2013)

April 12, 2013

April 12, 2013

RECAP
36

ORDER TO SHOW CAUSE. Plaintiffs and Defendants are directed to submit briefs to this Court addressing the questions no later than 5:00 PM on August 23, 2013. Signed by Judge Thomas J. Whelan on 8/9/2013.(vam) (Entered: 08/09/2013)

Aug. 9, 2013

Aug. 9, 2013

PACER
37

Joint MOTION for Extension of Time to File Response to Order to Show Cause by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) Modi (vam). (Entered: 08/14/2013)

Aug. 14, 2013

Aug. 14, 2013

PACER
38

ORDER Extending Deadline to File Supplementary Briefing in Response to Order to Show Cause 37 . The Court grants the joint motion, and extends the deadline to file simultaneous supplemental briefing in response to the Court's Order to Show Cause to September 20, 2013 at 5:00 p.m. Signed by Judge Thomas J. Whelan on 8/15/2013. (vam) (Entered: 08/15/2013)

Aug. 15, 2013

Aug. 15, 2013

PACER
39

SUPPLEMENTAL BRIEFING by Defendants David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford re 36 Order to Show Cause . (Nemeroff, Patrick) (vam). (Entered: 09/20/2013)

Sept. 20, 2013

Sept. 20, 2013

PACER
40

SUPPLEMENTAL BRIEFING by Plaintiffs Ray Askins, Christian Ramirez re 36 Order to Show Cause Regarding Motion to Dismiss. (Woodmansee, Mark Andrew) (vam). (Entered: 09/20/2013)

Sept. 20, 2013

Sept. 20, 2013

PACER
41

AMENDED DOCUMENT by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. Amendment to 39 Supplemental Briefing . (Nemeroff, Patrick) (vam). (Entered: 09/23/2013)

Sept. 23, 2013

Sept. 23, 2013

PACER
42

ORDER Granting in Part and Denying in Part 22 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, the Court Grants in Part and Denies in Part Defendants' motion to dismiss. The Court Further Orders that the Defendants' motion to dismiss with respect to Plaintiffs' First Amendment claims is Granted With Leave to Amend. This dismissal applies only to Plaintiffs' claims that the Defendants' photography policy is unconstitutional under the First Amendment. To the extend Defendants move to dismiss Plaintiffs' First Amendment claims because they do not establish a pattern or practice the motion is Denied. Defendants did not move to dismiss the remaining First Amendment claims. Defendants' motion to dismiss Plaintiffs' Fourth Amendment claims, to the extent that Plaintiffs claim that Defendants photography policyexplicitly condones deletion of photographs, is Granted. Because Plaintiffs cannot show that Defendants' written policy condones deletion of pictures, leave to amend would be futile, and this claim is thus Dismissed with Prejudice. Defendants motion to dismiss the remainder of Plaintiffs' Fourth Amendment claims is Denied. Signed by Judge Thomas J. Whelan on 9/30/2013. (leh) (Entered: 09/30/2013)

Sept. 30, 2013

Sept. 30, 2013

RECAP
43

Joint MOTION for Extension of Time to File Motion for Clarification or Reconsideration by David V. Aguilar, Frank Jaramillo, United States Department of Homeland Security, Billy Whitford. (Nemeroff, Patrick) (leh). (Entered: 10/24/2013)

Oct. 24, 2013

Oct. 24, 2013

PACER
44

ORDER Granting 43 Joint Motion for Extension of Time to File Motion for Clarification or Reconsideration. It is hereby ordered that Defendant's shall file any such motion by 11/27/2013. Signed by Judge Thomas J. Whelan on 10/24/2013. (leh) (Entered: 10/25/2013)

Oct. 24, 2013

Oct. 24, 2013

PACER
45

NOTICE by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford of Substitution of Counsel (Buckingham, Stephen)Attorney Stephen J. Buckingham added to party David V. Aguilar(pty:dft), Attorney Stephen J. Buckingham added to party Frank Jaramillo(pty:dft), Attorney Stephen J. Buckingham added to party United States Customs and Border Protection Officers(pty:dft), Attorney Stephen J. Buckingham added to party United States Department of Homeland Security(pty:dft), Attorney Stephen J. Buckingham added to party Billy Whitford(pty:dft) (srm). (Entered: 11/22/2013)

Nov. 22, 2013

Nov. 22, 2013

PACER
46

MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities)(Buckingham, Stephen) (ag). (Entered: 11/27/2013)

1 Memo of Points and Authorities

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Nov. 27, 2013

Nov. 27, 2013

PACER
47

RESPONSE in Opposition re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew) (srm). (Entered: 12/11/2013)

Dec. 11, 2013

Dec. 11, 2013

PACER
48

REPLY to Response to Motion re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Buckingham, Stephen) (knb). (Entered: 12/23/2013)

Dec. 23, 2013

Dec. 23, 2013

PACER
49

ORDER granting in part and denying in part Defendants' 46 Motion for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim. Court denies Dfts' motion insofar as Plaintiffs' First Amendment claims as to a pattern or practice, and Plaintiffs' being given leave to amend. Court grants Dfts' motion insofar as Dfts' Fourth Amendment probable-cause analysis and the incorporation of the premise that the CBP policy violated the First Amendment. Court orders further briefing on the issue of the statutory authority for the federal policy property regulations that Dfts argue grounds for the officers' probable cause. Plaintiffs shall file response by 4/24/2014, not exceed 10 pages in length. Dfts shall file reply by 5/1/2014, not to exceed 10 pages in length. Signed by Judge Thomas J. Whelan on 4/17/2014. (jah) (Entered: 04/18/2014)

April 17, 2014

April 17, 2014

RECAP
50

SUPPLEMENTAL BRIEFING on Statutory Authority by Plaintiffs Ray Askins, Christian Ramirez. (Woodmansee, Mark Andrew). Modified on 4/25/2014 - Edited text to match pleading (jah). (Entered: 04/24/2014)

April 24, 2014

April 24, 2014

PACER
51

SUPPLEMENTAL REPLY re 46 MOTION for Reconsideration re 42 Order on Motion to Dismiss for Failure to State a Claim, filed by David V. Aguilar, Frank Jaramillo, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Buckingham, Stephen). Modified on 5/2/2014 - Edited to remove duplicative text (jah). (Entered: 05/01/2014)

May 1, 2014

May 1, 2014

PACER
52

MOTION for Extension of Time to File FTCA Claims (Unopposed Motion) by Ray Askins, Christian Ramirez. (David, Jeffrey) (av1). (Entered: 07/03/2014)

July 3, 2014

July 3, 2014

PACER
53

ORDER Granting Joint Motion for an Extension of Time to Amend the Complaint to Add FTCA Claims 52 . Signed by Judge Thomas J. Whelan on 7/3/2014. (vam) (Entered: 07/03/2014)

July 3, 2014

July 3, 2014

PACER
54

NOTICE of Appearance by Mitra Ebadolahi on behalf of Ray Askins, Christian Ramirez (Ebadolahi, Mitra)Attorney Mitra Ebadolahi added to party Ray Askins(pty:pla), Attorney Mitra Ebadolahi added to party Christian Ramirez(pty:pla) (av1). (Entered: 07/07/2014)

July 7, 2014

July 7, 2014

PACER
55

NOTICE by Ray Askins, Christian Ramirez Notice of Withdrawal of Attorney, Sean Riordan (Loy, John) (jpp). (Entered: 12/30/2014)

Dec. 30, 2014

Dec. 30, 2014

PACER
56

ORDER granting-in-part 46 Defendants' motion for reconsideration. The Court grants-in-part Defendants motion for reconsideration and dismisses-in part Plaintiffs Fourth Amendment claims, but only to the extent that Plaintiffs claim Defendants photography policy to be violative of the Fourth Amendment. Moreover, given that the Courts finding is one of law, leave to amend would be futile, and thus the dismissal is with prejudice. Signed by Judge Thomas J. Whelan on 01/29/2015.(jpp) (Entered: 01/29/2015)

Jan. 29, 2015

Jan. 29, 2015

PACER
57

NOTICE by Ray Askins, Christian Ramirez of Withdrawal of Attorney Jeffrey M. David (Woodmansee, Mark Andrew) (jpp). (Entered: 03/10/2015)

March 10, 2015

March 10, 2015

PACER
58

Joint MOTION for Order to Set Deadlines for First Amended Complaint and Response by Ray Askins, Christian Ramirez. (Gosling, Kimberly) (jpp). (Entered: 09/28/2015)

Sept. 28, 2015

Sept. 28, 2015

PACER
59

ORDER granting 58 Joint Motion to set deadlines for First Amended Complaint and response. Plainttiffs must file the FAC, if at all, on or before November 5, 2015. Defendants must respond to the FAC on or before December 7, 2015.Signed by Judge Thomas J. Whelan on 10/06/2015. (jpp) (Entered: 10/06/2015)

Oct. 6, 2015

Oct. 6, 2015

PACER
60

AMENDED COMPLAINT against United States Department of Homeland Security, Billy Whitford, SIDNEY K. AKI, R. GIL KERLIKOWSKE, filed by Christian Ramirez, Ray Askins. (Attachments: # 1 Exhibit, # 2 Proof of Service)New Summons Requested. (Ebadolahi, Mitra) (jpp). (Entered: 11/05/2015)

1 Exhibit

View on PACER

2 Proof of Service

View on PACER

Nov. 5, 2015

Nov. 5, 2015

RECAP
61

Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jpp) (Entered: 11/06/2015)

Nov. 6, 2015

Nov. 6, 2015

PACER
62

NOTICE of Appearance by Nathan Michael Swinton on behalf of David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Swinton, Nathan)Attorney Nathan Michael Swinton added to party Sidney K Aki(pty:dft), Attorney Nathan Michael Swinton added to party R Gil Kerlikowske(pty:dft), Attorney Nathan Michael Swinton added to party United States Customs and Border Protection Officers(pty:dft), Attorney Nathan Michael Swinton added to party United States Department of Homeland Security(pty:dft), Attorney Nathan Michael Swinton added to party Billy Whitford(pty:dft) (jpp). (Entered: 12/03/2015)

Dec. 3, 2015

Dec. 3, 2015

PACER
63

Joint MOTION for Extension of Time to File Response/Reply to First Amended Complaint by Sidney K Aki, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Swinton, Nathan) (jpp). (Entered: 12/03/2015)

Dec. 3, 2015

Dec. 3, 2015

PACER
64

ORDER granting 63 Joint Motion for Extension of Time to respond to the First Amended complaint. Defendant must respond to the FAC on or before December 18, 2015. Signed by Judge Thomas J. Whelan on 12/04/2015. (jpp) (Entered: 12/04/2015)

Dec. 4, 2015

Dec. 4, 2015

PACER
65

MOTION to Dismiss for Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction by Sidney K Aki, R Gil Kerlikowske, United States Department of Homeland Security, Billy Whitford. (Attachments: # 1 Memo of Points and Authorities)(Buckingham, Stephen)Attorney Stephen J. Buckingham added to party Sidney K Aki(pty:dft), Attorney Stephen J. Buckingham added to party R Gil Kerlikowske(pty:dft) (jpp). (Entered: 12/18/2015)

1 Memo of Points and Authorities

View on RECAP

Dec. 18, 2015

Dec. 18, 2015

PACER
66

Joint MOTION for Extension of Time to File Response/Reply on Motion to Dismiss by Ray Askins, Christian Ramirez. (Attachments: # 1 Proof of Service)(Loy, John)(jao). (Entered: 01/07/2016)

1 Proof of Service

View on PACER

Jan. 7, 2016

Jan. 7, 2016

PACER
67

ORDER Granting 66 Joint Motion for Extension of Time to File Response/Reply re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction . In accordance with the dates appearing in the pending joint motion, Plaintiffs must file any opposition to the pending motion to dismiss on or before February 1, 2016. Defendants must file any reply by February 16, 2016. The motion to dismiss is presently noticed for January 25, 2016. [Doc. 65.] The hearing date is continued to February 29, 2016. There will be no oral argument pursuant to Civil Local Rule 7.1(d.1). Signed by Judge Thomas J. Whelan on 1/8/2016. (jao) (Entered: 01/08/2016)

Jan. 8, 2016

Jan. 8, 2016

PACER
68

MOTION to Withdraw as Attorney by Ray Askins, Christian Ramirez. (Attachments: # 1 Declaration of M. Andrew Woodmansee)(Woodmansee, Mark Andrew) (jao). (Entered: 01/22/2016)

1 Declaration of M. Andrew Woodmansee

View on PACER

Jan. 22, 2016

Jan. 22, 2016

PACER
69

NOTICE of Appearance by Jonathan Paul Markovitz on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Markovitz, Jonathan)Attorney Jonathan Paul Markovitz added to party Ray Askins(pty:pla), Attorney Jonathan Paul Markovitz added to party Christian Ramirez(pty:pla) (jao). (Entered: 01/29/2016)

1 Proof of Service

View on PACER

Jan. 29, 2016

Jan. 29, 2016

PACER
70

RESPONSE in Opposition re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Ray Askins, Christian Ramirez. (Attachments: # 1 Proof of Service)(Ebadolahi, Mitra) (jao). (Entered: 02/01/2016)

1 Proof of Service

View on PACER

Feb. 1, 2016

Feb. 1, 2016

RECAP
71

ORDER Granting 68 Motion to Withdraw as Attorney. Attorneys Mark Andrew Woodmansee, Kimberly Rhea Gosling, and Mary Prendergast terminated. Signed by Judge Thomas J. Whelan on 2/8/2016. (jao) (Entered: 02/08/2016)

Feb. 8, 2016

Feb. 8, 2016

PACER
72

REPLY to Response to Motion re 65 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by David V. Aguilar, Sidney K Aki, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers. (Swinton, Nathan) (jao). (Entered: 02/16/2016)

Feb. 16, 2016

Feb. 16, 2016

RECAP
73

ORDER Granting 65 Defendants' Motion to Dismiss. The Court grants Defendants' motion to dismiss without leave to amend. This action is dismissed with prejudice. The Clerk is directed to close the case. Signed by Judge Thomas J. Whelan on 3/23/2016. (jao) (sjt). (Entered: 03/23/2016)

March 23, 2016

March 23, 2016

RECAP
79

NOTICE of Hearing: Appeal Mandate Hearing set for 11/19/2018 10:00 AM in Courtroom 3C before Judge Thomas J. Whelan. (no document attached) (bjb) (Entered: 11/01/2018)

Nov. 1, 2018

Nov. 1, 2018

74

CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that the Court grants Defendants' motion to dismiss without leave to amend. This case is dismissed with prejudice.(jao) (Entered: 03/23/2016)

March 23, 2016

March 23, 2016

PACER
80

NOTICE of Appearance by Rachael Lynn Westmoreland on behalf of David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford (Westmoreland, Rachael)Attorney Rachael Lynn Westmoreland added to party David V. Aguilar(pty:dft), Attorney Rachael Lynn Westmoreland added to party Sidney K Aki(pty:dft), Attorney Rachael Lynn Westmoreland added to party DOES 16 through 50(pty:dft), Attorney Rachael Lynn Westmoreland added to party Frank Jaramillo(pty:dft), Attorney Rachael Lynn Westmoreland added to party R Gil Kerlikowske(pty:dft), Attorney Rachael Lynn Westmoreland added to party United States Customs and Border Protection Officers(pty:dft), Attorney Rachael Lynn Westmoreland added to party United States Department of Homeland Security(pty:dft), Attorney Rachael Lynn Westmoreland added to party Billy Whitford(pty:dft) (jao). (Entered: 11/16/2018)

Nov. 16, 2018

Nov. 16, 2018

75

NOTICE OF APPEAL to the 9th Circuit as to 74 Clerk's Judgment, by Ray Askins, Christian Ramirez. (Filing fee $ 505 receipt number 0974-9069902.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # 1 Proof of Service)(Ebadolahi, Mitra). (akr). (Entered: 05/17/2016)

1 Proof of Service

View on PACER

May 17, 2016

May 17, 2016

PACER
81

Joint MOTION Reschedule Appeal Mandate Hearing by David V. Aguilar, Sidney K Aki, DOES 16 through 50, Frank Jaramillo, R Gil Kerlikowske, United States Customs and Border Protection Officers, United States Department of Homeland Security, Billy Whitford. (Westmoreland, Rachael) (jao). (Entered: 11/16/2018)

Nov. 16, 2018

Nov. 16, 2018

76

USCA Case Number 16-55719 for 75 Notice of Appeal to 9th Circuit, filed by Christian Ramirez, Ray Askins. (akr) (Entered: 05/17/2016)

May 17, 2016

May 17, 2016

PACER
82

ORDER Granting 81 Joint Motion to Reschedule Appeal Mandate Hearing. Appeal Mandate Hearing reset for 12/3/2018 10:00 AM in Courtroom 3C before Judge Thomas J. Whelan. Signed by Judge Thomas J. Whelan on 11/16/2018. (jao) (Entered: 11/19/2018)

Nov. 19, 2018

Nov. 19, 2018

83

Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11953116.) (Application to be reviewed by Clerk.) (Gersch, David) 11/30/2018 − To be refiled re signatures and document format. (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

77

USCA Time Schedule Order as to 75 Notice of Appeal to 9th Circuit, filed by Christian Ramirez, Ray Askins. (akr) (Entered: 05/17/2016)

May 17, 2016

May 17, 2016

PACER
97

Answer to Amended Complaint

March 8, 2019

March 8, 2019

PACER
84

Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11953121.) (Application to be reviewed by Clerk.) (D'Amico, Sara) 11/30/2018 − To be refiled re missing signature. (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

85

Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11953116 − See 83 .) (Application to be reviewed by Clerk.) (Gersch, David) Modified text on 11/30/2018 to include filing fee info. (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

98

Order for Early Neutral Evaluation

March 11, 2019

March 11, 2019

PACER
99

Notice (Other)

March 26, 2019

March 26, 2019

PACER
86

Request to Appear Pro Hac Vice, (Filing fee received: $ 206 receipt number 0974−11953121 − See 84 .) (Application to be reviewed by Clerk.) (D'Amico, Sara) Modified text on 11/30/2018 to include filing fee info. (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

87

PRO HAC APPROVED re 85 : David Paul Gersch appearing for Plaintiffs Ray Askins, Christian Ramirez. (no document attached) (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

100

Joint Discovery Plan

March 29, 2019

March 29, 2019

PACER
88

PRO HAC APPROVED re 86 : Sara D'Amico appearing for Plaintiffs Ray Askins, Christian Ramirez. (no document attached) (mdc) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

Case Management Conference

April 5, 2019

April 5, 2019

PACER

Early Neutral Evaluation Conference

April 5, 2019

April 5, 2019

PACER
91

Minute Entry for proceedings held before Judge Thomas J. Whelan: Appeal Mandate Hearing held on 12/3/2018. Appeal Mandate ordered filed and spread.(Court Reporter/ECR Mauralee Ramirez). (Plaintiff Attorney David Gursh). (Defendant Attorney Rachael Westmoreland). (Amy Dail).(no document attached) (llb) (Entered: 12/06/2018)

Dec. 3, 2018

Dec. 3, 2018

92

MANDATE of USCA vacating the decision of the USDC and remanding for further proceedings as to 75 Notice of Appeal to the 9th Circuit filed by Christian Ramirez, Ray Askins. (akr) (Entered: 12/06/2018)

Dec. 3, 2018

Dec. 3, 2018

102

Order

April 9, 2019

April 9, 2019

PACER
89

Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−11972131.) (Application to be reviewed by Clerk.) (Jones, Robert) (mdc) (Entered: 12/06/2018)

Dec. 6, 2018

Dec. 6, 2018

103

Scheduling Order

April 9, 2019

April 9, 2019

PACER
104

Protective Order

1 Proposed Protective Order

View on PACER

2 Exhibit A

View on PACER

April 12, 2019

April 12, 2019

PACER
93

NOTICE of Appearance by Sarah D. Thompson on behalf of Ray Askins, Christian Ramirez (Attachments: # 1 Proof of Service)(Thompson, Sarah)Attorney Sarah D. Thompson added to party Ray Askins(pty:pla), Attorney Sarah D. Thompson added to party Christian Ramirez(pty:pla) (jao). (Entered: 01/03/2019)

Jan. 3, 2019

Jan. 3, 2019

Case Details

State / Territory: California

Case Type(s):

Speech and Religious Freedom

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: Oct. 24, 2012

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Two U.S. citizens detained by CBP officers after taking pictures of ports of entry.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

ACLU of Southern California

ACLU Affiliates (any)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

U.S. Department of Homeland Security, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Content of Injunction:

Preliminary relief denied

Issues

General:

Excessive force

False arrest

Phone

Search policies

Type of Facility:

Government-run