PHOENIX -- Federal appellate judges grilled a Border Patrol attorney who argued Tuesday that the agency 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 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 to 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, which 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 being stopped each time they drive eastbound along the road between Arivaca and Amado.
They question whether the checkpoint, which has now been at the same location for a decade, is actually effective in finding those not in the country legally. And there have been allegations that some motorists have been harassed, particularly those who appear Latino.
In an effort to buttress those claims, area residents along with members of People Helping People began monitoring in 2013. When the Border Patrol erected the ropes to keep them back at least 150 feet, they sued, contending that was too far to do what they need.
A federal judge last year rejected their lawsuit challenging the Border Patrol action, resulting in Tuesday's hearing in San Francisco.
Smith told Nemeroff the Border Patrol has a right to implement its policies to keep the checkpoint itself free from outsiders who might interfere with legitimate government activities. But he questioned the unfettered ability of the agency to unilaterally put up ropes to keep observers from getting anywhere close.
"That's not this country,'' the judge said. "We have an ability and a right to observe what police do, right?''
And he had a pointed question for Nemeroff.
"What is the government prepared to do to give the public the right to observe what's going on?'' Smith asked.
Nemeroff countered that there is no absolute right of people to access. He said that's why courts have never set hard and fast rules on things like when and where police can set up a perimeter around a crime scene.
But Judge Sandra Ikuta said that still leaves questions in her mind of how much latitude the government has in deciding what area it can set aside for observers. She posited the question of what if the Border Patrol wanted a 200-foot -- or even 300-foot -- buffer zone around the checkpoint.
"I assume it's not your position that the Border Patrol could just decide on their own where the limits were of their area and that would become automatically ... a non-public forum,'' Ikuta said.
Nemeroff said the limits were not arbitrary. He said they take in all the area from where there are signs telling people to stop and "rumble strips'' on the road to get the attention of motorists.
Attorney Winslow Taub, representing the residents, told the judges that does not necessarily mean the Border Patrol needs the entire area. He said that, if nothing else, the appellate court should send the case back to the trial judge and force the federal agency to justify the perimeter.
And Taub argued that the perimeter erected is not only larger than needed but done specifically to keep out protesters.
Smith seemed to agree, saying he believes such restrictions must be "narrowly tailored,'' something the trial judge should have considered. But Nemeroff did not see it that way.
"Courts have never micromanaged the government in terms of where they put these sorts of limits,'' he told Smith.
That argument left Smith cold.
"The government has a legitimate right to perform this Border Patrol operation,'' the judge said. And it may be that putting up the ropes is appropriate.
"But it seems to me that when you're talking about people wanting to exercise their First Amendment rights to observe, where they're placed is a reasonable, material issue that the court ought to consider,'' he said. "Somebody has to decide that.''
The judges gave no indication when they will rule.