Askins v. U.S. Department of Homeland Security
The Ninth Circuit held that the First Amendment protects photographing matters exposed to public view and that broad security restrictions at government facilities cannot be upheld on conclusory assertions alone.
Executive Summary
Askins is the Ninth Circuit’s most useful case for photography around government and law-enforcement facilities. Building on Fordyce v. City of Seattle, it reaffirmed that the First Amendment protects photographing and recording matters of public interest while emphasizing that the constitutional analysis depends heavily on where the person is standing.
Ray Askins and Christian Ramirez were border-policy advocates who photographed activity at U.S. ports of entry along the California-Mexico border. Both alleged that Customs and Border Protection officers stopped them, searched or detained them, confiscated their cameras or phones, and deleted photographs.
The plaintiffs did not claim a right to enter secured interiors, holding cells, inspection areas, or other restricted spaces. Their amended complaint focused on photographs taken from streets, sidewalks, parks, pedestrian bridges, and other outdoor locations allegedly open to the general public.
The Ninth Circuit vacated dismissal of their First Amendment claims. It held that the district court could not simply assume the restrictions were constitutional based on generalized invocations of national security. Further factual development was required to determine the nature of each location, the applicable forum doctrine, the government interests at stake, and whether the particular restrictions were sufficiently tailored.
The First Amendment protects the right to photograph and record matters of public interest. When government restricts photography in outdoor areas accessible to the public, the constitutionality of that restriction depends on the nature of the location and the government’s ability to justify the specific restriction—not merely on labeling the property a sensitive government facility.
The Two Photography Incidents
Ray Askins at Calexico West
Ray Askins was concerned with environmental and public-health issues near the United States-Mexico border. In April 2012, he sought to photograph the secondary vehicle-inspection area at the Calexico West port of entry for a conference presentation about air quality and emissions.
After receiving no clear permission from CBP, Askins decided to photograph the exit of the inspection area from a nearby street. He stood near the intersection of First Street and Paulin Avenue, immediately in front of a public park, approximately fifty to one hundred feet from the inspection-area exit.
According to the amended complaint, CBP officers approached him, demanded that he delete the photographs, threatened to smash his camera when he refused, searched and handcuffed him, confiscated his property, and detained him for approximately twenty-five to thirty-five minutes. When his property was returned, all but one of the photographs had been deleted.
Christian Ramirez at San Ysidro
Christian Ramirez was also a border-policy advocate. While walking with his wife across a pedestrian bridge near the San Ysidro port of entry, he photographed activities visible from the bridge.
CBP officers confronted him, and additional officers arrived. According to the complaint, officers confiscated his cellphone without consent and deleted his photographs. The plaintiffs alleged that the bridge and nearby outdoor locations were open to ordinary public use without requiring entry into secured portions of the port.
The plaintiffs expressly did not challenge restrictions on photography inside secure CBP facilities. Their claims concerned matters visible from allegedly public, outdoor areas.
The First Amendment Right to Photograph Publicly Visible Activity
The Ninth Circuit relied on its earlier decision in Fordyce, which recognized a First Amendment right to film matters of public interest. Askins applied that principle to photography of government activity and matters exposed to public view.
The government attempted to characterize the case as one involving a claimed right of access to government-controlled information. The Ninth Circuit rejected that framing. The plaintiffs were not demanding entry into secured spaces or access to confidential government proceedings; they claimed a right to photograph what could already be seen from locations open to the public.
That distinction is fundamental. The First Amendment does not generally create a right to enter restricted government spaces, but the government cannot avoid First Amendment scrutiny simply because the object being photographed is government property or government activity.
Photography and recording of matters exposed to public view are protected First Amendment activities. The government’s authority to restrict that activity depends substantially on the legal character and actual use of the place where the photographer is located.
Location and Public-Forum Analysis
Askins emphasizes that “public” is not determined solely by who owns the property. Government-owned land may contain traditional public fora, designated or limited public fora, and nonpublic areas with very different constitutional rules.
The Ninth Circuit described forum classification as a fact-intensive inquiry. Relevant considerations include the actual use and purpose of the property, whether it functions as a public thoroughfare, the degree of free public access, physical boundaries, and the traditional or historical use of that type of property.
At Calexico West, Askins alleged that he stood on streets indistinguishable from other city streets and adjacent to a public park. At San Ysidro, Ramirez alleged that the pedestrian bridge was openly used by members of the public and did not require crossing the border or entering a port building.
The court concluded that those allegations could not be dismissed simply by accepting the government’s assertion that CBP owned or controlled the property.
For police stations and other government campuses, “government property” is not a complete answer. Agencies should identify the exact location of the recorder: public sidewalk, public parking area, lobby, secured hallway, employee area, booking space, evidence area, or other forum.
National Security and Other Government Interests
The government asserted significant interests, including territorial sovereignty, law-enforcement techniques, ongoing investigations, traveler privacy, sensitive information, efficient operation of ports of entry, and protection against terrorist attacks.
The Ninth Circuit did not dismiss those interests as illegitimate. Instead, it held that conclusory references to them were insufficient to win dismissal of the case.
When government restricts protected First Amendment activity, it bears the burden of demonstrating the constitutionality of the restriction under the applicable standard. That requires evidence and tailoring, not simply a generalized statement that security is important.
The district court had concluded that the challenged CBP policies were the least restrictive means of serving compelling interests. The Ninth Circuit found that conclusion too thin to support judgment for the government at the motion-to-dismiss stage.
Askins does not hold that security-based photography restrictions are invalid. It holds that government must identify the specific security interest, connect the restriction to that interest, and satisfy the constitutional standard applicable to the particular forum and restriction.
What Askins Does—and Does Not—Establish
- The case protects photography and recording of matters exposed to public view; it does not establish an unrestricted right to enter secure government areas.
- The plaintiffs expressly did not challenge photography restrictions inside CBP buildings, inspection areas, holding cells, or comparable secure spaces.
- The Ninth Circuit did not finally determine that every location identified by the plaintiffs was a traditional public forum.
- The court remanded for factual development concerning the characteristics and uses of the locations.
- The decision does not invalidate all security-based restrictions on photography.
- Government must support restrictions with evidence and appropriate tailoring rather than conclusory security assertions.
- Ownership or control of property by a law-enforcement agency does not by itself determine forum status.
- The case involved prospective declaratory and injunctive claims against federal agencies and officials, not a qualified-immunity damages ruling against individual officers.
Agency Guidance
Primary Sources and Further Reading
This monograph is provided for training and general informational purposes. It is not legal advice and does not replace review of the complete opinion, current statutes, controlling federal and state authority, agency policy, or consultation with prosecutors and agency counsel.
© 2026 Shield Public Safety Training. All rights reserved. Reviewed September 7, 2026.