A panel for the US Court of Appeals for the Ninth Circuit [judicial website] on Tuesday vacated [opinion, PDF] a lower court’s decision dismissing a suit against the Department of Homeland Security [official website] for confiscating photos of law enforcement officials at the border.

The photos were taken by activist Christian Ramirez in 2010 on a pedestrian bridge near the US-Mexican border. Ramirez observed a Customs and Border Protection official patting down only women who were crossing the border and became concerned. He took “approximately ten photos” on his cellphone. Several officers surrounded Ramirez, took his phone, and deleted the photographs.

The opinion stated, “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 burden of proving that confiscating the photographs were the “least restrictive means” rests with the government.

The lower court had ruled that deleting the photos was “that least restrictive means of serving the compelling interest of protecting the United States’s territorial sovereignty” while applying strict scrutiny.

Since Donald Trump took office, controversy regarding government practices at the border has grown. In February 2017 the Trump administration released [JURIST report] new immigration enforcement measures. At the end of 2017 the Department of Homeland Security said [JURIST report] that attempted border crossings and deportation were down for that year. In January Trump signed [JURIST report] a bill to enhance opioid screening technology at the border.