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Judge backs ACLU in lawsuit over border checkpoints

Judge backs ACLU in lawsuit over border checkpoints

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One of seven 80-foot-high surveillance tower installed by the Border Patrol in the hills near Nogales. 

PHOENIX -- A federal magistrate is chiding the Border Patrol for trying to hide certain information from the public about its sometimes controversial checkpoints.

In a 55-page recommendation, Bernado Velasco said there is no valid reason for the Department of Homeland Security to refuse to provide records about the location of its checkpoints. The American Civil Liberties Union wants that as part of a broader look into the practices of the Border Patrol in stopping vehicles.

Velasco also rebuffed the contention by Homeland Security that requiring it to divulge information on the nationality and skin complexion of those who are stopped at either fixed checkpoints or roving patrols would be "an unwarranted invasion of personal privacy.''

And he scoffed at a bid by the agency to hide information about how accurate the dogs their agent use are in sniffing out people and drugs being smuggled.

"As long as the government asserts that its canines are reliable, it should not be able to avoid producing records about their reliability,'' Velasco wrote.

The recommendation comes in a case the ACLU filed in 2014 on behalf of Derek and Jane Bambauer, professors at the James E. Rogers College of Law at the University of Arizona after the plaintiffs said that Homeland Security has not fully responded to its requests for records under the federal Freedom of Information Act.

"The incidence of civil rights violations associated with Border Patrol's interior enforcement operations, which include interior checkpoints and 'roving patrol' stops, is a matter of pressing public concern,'' the ACLU wrote in filing the suit. It contends that the budget for U.S. Customs and Border Patrol more than doubled between 2006 and 2014, with a nearly commensurate increase in agents.

"As the agency has expanded, reports of Border Patrol abuses in the Arizona-Sonora region and throughout the nation have increased,'' the lawsuit states. "Plaintiffs seek the requested records in order to shed light on Border Patrol's extensive but largely opaque interior enforcement operations.''

Those checkpoints have been a continued source of contention between the agency and residents of Arivaca, who say agency operations interfere with their lives.

After the lawsuit was filed, the case was put on hold. Attorneys for the government said during that time the agency produced more than 13,000 pages of information.

Based on some of what it got, the ACLU in 2015 issued a report saying that abuse of travelers at Southern Arizona checkpoints was at "epidemic levels.''

Homeland Security lawyers now want the FOIA lawsuit dismissed, contending they have provided everything they need to disclose.

The ACLU responded that the search was inadequate. So a federal judge hearing the case tasked Velasco with reviewing the claims and what had been produced and coming up with a recommendation.

One sought the maximum number of checkpoints, both permanent and tactical, the Border Patrol operated since 1976.

What the agency produced was checkpoint apprehension data for the Tucson and Yuma sectors -- essentially the entire border region -- but with the exact locations removed. And there was nothing about the 18 other border sectors.

Government attorneys argued that federal law allows them to withhold techniques and procedures for law enforcement investigation or prosecutions or guidelines that "could reasonably be expected to risk circumvention of the law.''

Velasco sniffed at those contentions.

He pointed out that the U.S. Supreme Court, in upholding the constitutionality of checkpoints, has relied in part on their visibility to lessen "the fear and surprise engendered in law-abiding motorists'' concerns with the intrusiveness of the stop. Anyway, Velasco said, it's not like the location is a big secret to anyone, even smugglers.

"In this day and age, with the use of cell phones, and other electronic means, and even drones, the location of a checkpoint can hardly be kept secret,'' he wrote. "Even Border Patrol's own website announces the location of at least one checkpoint and nothing prohibits media or others from reporting locations as well.''

Velasco also noted that the ACLU wanted access to certain documents about some of the interactions between Border Patrol agents and those they stop and question, including citizenship, nationality and complexion of people who are taken into custody. He said the stated goal is to "help the public understand whether Latino citizens and legal residents are disproportionately burdened by Border Patrol roving patrol and checkpoint operations.''

The government rejected the request, citing privacy concerns. But Velasco said that's not what the ACLU is requesting.

"The government has not shown how release of citizenship, nationality and complexion issues without use of names, addresses, birth dates, gender, social security numbers, or other combination of information that would make the subject unique or vulnerable to identification, could logically or plausibly be reasonably expected to constitute an unwarranted invasion of personal privacy,'' he wrote.

In its 2015 report, the ACLU said the records it already had showed "recurring examples of Border Patrol agents detaining, searching and terrorizing individuals and entire families at interior checkpoints and in 'roving patrol' vehicle stops far into the interior of the country.''

Among the findings were:

- Threatening motorists with assault rifles, electroshock weapons and knives;

- Destroying and confiscating personal property;

- Dozens of false alerts by Border Patrol drug dogs resulting in searches and detentions of innocent travelers;

- Interfering with efforts by some community members to make video recordings of Border Patrol activities.

And ACLU attorney David Lyall, in releasing the report at the time, said that the checkpoints appear to be ineffective in catching those who enter the country illegally.

He said two Tucson sector checkpoints account for 75 percent of all apprehensions with "nothing'' at others.

He specifically cited one checkpoint north of Yuma, 75 miles from the border on US 95, which he said took only one person into custody over a three-year period. But Lyall said that same checkpoint produced "multiple civil rights complaints during the same period.''

Velasco, in reviewing what the ACLU sought, said there is a good reason for the federal Freedom of Information Act, which forms the basis of the lawsuit.

"Government transparency is critical to maintaining a functional democratic polity, where the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies,'' he wrote. The result, he said was FOIA, which is designed "to facilitate public access to government documents by establishing a judicially enforced right to secure government information from possibly unwilling official hands.''


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