EFTA01106183.pdf

Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 1 of 29 Janice M. Bellucci, Esq, SBN 108911 LAW OFFICE OF JANICE M. BELLUCCI 2 475 Washington Boulevard Mari rnia 90292 3 Tel: 4 5 Attorney for Plaintiffs 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 JOHN DOE #1, an individual•; JOHN DOE Case No.: 4:16-CV-654-PJH #2, an individual; JOHN DOE #3, an 13 individual; JOHN DOE #4, an individual; JOHN DOE #5, an individual,. JOHN DOE 14 #6, an individual; and JOHN DOE #7, an FIRST AMENDED AND VERIFIED individual; COMPLAINT FOR INJUNCTIVE 15 AND DECLARATORY RELIEF Plaintiffs, 16 [Violation of First and Fifth VS. Amendments and the Ex Post Facto 17 Clause] JOHN KERRY, in his official capacity as 18 Secre of State of the United States; JEH JOHNSON, in his official capacity as 19 Secretary of Homeland Security; LORETTA LYNCH, in her official capacity as Attorney 20 General of the United States; SARAH SALDANA, in her official capacity as 21 Assistant Secretary of Immigration and Customs Enforcement; R. GIL 22 ICERLIKOWSICE, in his official capacity as Commissioner of U.S. Customs and Border 23 Protection; DAVID HARLOW, in his official capacity as Acting Director of the 24 United States Marshals Service; and DOES 1 to 20, inclusive, 25 Defendants. 26 27 28 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106183  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 2 of 29 1 INTRODUCTION 2 1. For the first time in the history of this nation, the United States Government 3 will publicly stigmatize a disfavored minority group using a document foundational to 4 citizenship: their United States passport. 5 2. Specifically, and as more fully alleged herein, the United States 6 Government will mandate that individuals required to register as sex offenders for an 7 offense involving a minor (hereinafter "Covered Individuals") shall be issued passports 8 emblazoned with a "conspicuous" "unique identifier" advertising their status as "sex 9 offenders." The United States has never before used passports to differentiate among 10 citizens or to otherwise mark or stigmatize a specific group of disfavored individuals. 11 3. This legislation applies in a blanket fashion to all Covered Individuals, 12 without regard to the circumstances of their conviction, the age of their conviction, or 13 whether the Covered Individuals pose a current risk to public safety. For example, 14 Covered Individuals whose passports will now publicly identify them as "sex offenders" 15 will include individuals convicted of minor misdemeanor offenses such as "sexting" or 16 public urination, individuals convicted of voluntary sexual contact with a girlfriend or 17 boyfriend while both were teenagers, individuals convicted decades ago and who have 18 never reoffended, and even individuals who are currently minors or who committed their 19 offense while a minor. 20 4. Notably, the United States Department of Justice confirms that more than 21 25 percent of the individuals on sex offender registries nationwide are juveniles.' Many 22 jurisdictions, including California — which has the nation's largest State sex offender 23 24 25 26 27 David Finkelhor, et al., Juveniles Who Commit Sex Offenses Against Minors, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVENILE JUSTICE BULLETIN I, 1 (Dec. 2009), available at 28 hups://www.ncjrs.gov/pdffilesUojjdp/227763.pdf. FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106184  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 3 of 29 1 registry'- that treats all sex offenses with equal severity — place juveniles who commit a 2 sex offense on the State's sex offender registry for life. 3 5. As numerous examples demonstrate, compelling Covered Individuals to 4 identify themselves as sex offenders will invite serious risk of physical harm and 5 harassment upon Covered Individuals, their families, their business associates, and 6 anyone with whom they are traveling, whether for personal or business reasons. This 7 legislation will also impose significant burdens on a Covered Individual's constitutional 8 rights to the freedom of speech, due process, domestic and international travel, and the 9 right to earn a living, among other unconstitutional deprivations. 10 6. This civil rights action challenges the constitutionality of certain provisions 11 of the recently enacted International Megan's Law to Prevent Demand for Child Sex 12 Trafficking, H.R. 515 (hereinafter the "IML"), which was signed into law3 by the 13 President on February 8, 2016, in that, on its face, the IML violates the First Amendment 14 and Fifth Amendment to the United States Constitution, as well as the Ex Post Facto 15 Clause of the United States Constitution. 16 7. Specifically, and as more fully alleged herein, the IML imposes a proverbial 17 Scarlet Letter and compels speech in violation of the First Amendment by forcing 18 Covered Individuals to identify themselves publicly as "sex offenders" on their United 19 States passport, which serves both as a primary form of identification within the United 20 States as well as an essential international travel document. 21 8. Additionally, and as more fully alleged herein, the IML also establishes an 22 international travel blacklist for Covered Individuals previously convicted, or mistakenly 23 believed by the government to be convicted, of a sex offense involving a minor in the 24 2 According to the California Department of Justice, there are currently more than 108,000 individuals 25 required to register as a sex offender pursuant to California Penal Code section 290, et seq. See 26 http://www.meganslaw.ca.gov/statistics.aspx?lang=ENGLISH. The total number of individuals in the nation who are required to register as a sex offender is over 840,000. See National Center for Missing 27 and Exploited Children, Registered Sex Offenders in the United States and its Territories per 100,000 Population, available at http://www.missingJdds.corn/en_US/documents/Sex_Offenders_Map.pdf. 1 28 Public Law 114-119. 3 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106185  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 4 of 29 1 United States, including individuals whose conviction is not related to sex trafficking. 2 That is, the IML's blacklist includes individuals whose convictions involved no 3 domestic or international travel and involved no physical contact with victims, as well as 4 those who are no longer required to register as a sex offender in any jurisdiction.' The 5 IML's blacklist also includes individuals whose convictions pose no risk of involvement 6 in sex trafficking such as those convicted of misdemeanors, those convicted of offenses 7 committed while they were minors, those who are still minors, and those whose 8 convictions have been expunged. 9 9. The IML also imposes significant burdens on the rights and protected 10 liberty interests of Covered Individuals, including the right to international travel, the 11 right to associate with family, economic liberty, and equal protection. Further, the IML 12 stigmatizes Covered Individuals in a manner that substantially infringes on their 13 protected liberty interests by communicating that Covered Individuals pose a current risk 14 to public safety because they are engaged in, or at risk of engaging in, international child 15 sex trafficking. 16 JURISDICTION AND VENUE 17 10. This is a civil rights action seeking to enjoin the implementation of Sections 18 4(e), 5, 6 and 8 of the IML, as well as a declaration that Sections 4(e), 5, 6, and 8 of the 19 IML violate the First Amendment, the Fifth Amendment, and the Ex Post Facto Clause 20 of the United States Constitution. 21 11. This court has jurisdiction over this action under 28 U.S.C. sections 1331, 22 2201, and 2202; as well as 5 U.S.C. section 702, which waives the sovereign immunity 23 of the United States with respect to any action for injunctive relief under 28 U.S.C. 24 Section 1331. 25 26 4 On information and belief, the number of California residents who were previously required to 27 register as a sex offender but who are no longer required to register exceeds 750. On information and belief, the number of Americans who were previously required to register but who are no longer 28 required to register exceeds 10,000. 4 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106186  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 5 of 29 1 12. Under 28 U.S.C. Section 1391(e), venue is proper in this Federal district 2 because defendants are officers of agencies of the United States sued in their official 3 capacities, and because this judicial district is where Plaintiffs John Doe #1 and John 4 Doe #2 reside, and where a substantial part of the events giving rise to the claims have 5 occurred and will continue to occur. 6 PARTIES 7 13. Plaintiff John Doe #1 is an individual residing in San Francisco, California. 8 Plaintiff John Doe #1 was convicted of a felony sex offense involving a minor over 9 twenty-five years ago and has been required to register as a sex offender in California 10 since 1994. Plaintiff John Doe #1 serves as an officer of a corporation with facilities and 11 customers in Europe and Asia, and routinely travels to various countries within Europe 12 and Asia for business purposes. 13 14. Plaintiff John Doe #2 is an individual residing in San Francisco, California. 14 Plaintiff John Doe #2 was convicted by plea of a sex offense in 2007 due to chatting 15 online with someone found to be a minor and/or law enforcement, without ever having 16 direct personal contact, and has been required to register as a sex offender in California 17 since 2007. Plaintiff John Doe #2 has committed no other criminal or civil offenses, and 18 has served notably since 2009 in state and local civil rights and reentry efforts through 19 government councils, nonprofits, and public/private or faith-based community 20 organizations. Plaintiff John Doe #2, by invitation of public healthcare representatives, 21 is active in a joint patient/provider advisory program addressing ongoing services 22 improvements and offerings for individuals and families in San Francisco 23 public/community hospitals and health care clinics. Plaintiff John Doe #2 does not have 24 a passport, but desires to travel with his longtime partner to Mexico, Canada, Europe, 25 and other countries for business, recreational, cultural, and spiritual purposes. Plaintiff 26 John Doe #2 also desires to obtain a passport as a form of primary U.S. citizen 27 identification. 28 5 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106187  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 6 of 29 15. Plaintiff John Doe #3 is an individual residing in Orange County, California 2 and is a licensed attorney who was first admitted to the State Bar of California in 1991. 3 Plaintiff John Doe #3 pled guilty to felony sex offenses involving a teenaged minor in 4 July 1998, and was placed on probation and required to register as a sex offender. 5 Plaintiff John Doe #3 subsequently resigned from the State Bar of California. On 6 September 9, 2003, the Los Angeles Superior Court reduced his convictions from 7 felonies to misdemeanors. On January 7, 2004, the Los Angeles Superior Court set aside 8 Plaintiff John Doe #3's guilty verdict and dismissed his case. Under California law, 9 Plaintiff John Doe #3's convictions are now expunged. On October 10, 2008, the State 10 Bar of California reinstated Plaintiff John Doe #3 to the practice of law, and on 11 October 23, 2011, the California Department of Justice terminated Plaintiff John Doe 12 #3's requirement to register as a sex offender in California. Furthermore, on January 17, 13 2012, the Orange County Superior Court granted Plaintiff John Doe #3's petition for a 14 Certificate of Rehabilitation, declaring that he was rehabilitated and fit to exercise all 15 civil and political rights of citizenship. Therefore, under California law, Plaintiff John 16 Doe #3 is no longer convicted of a sex offense, and is also not required to register as a 17 sex offender in any jurisdiction. Plaintiff John Doe #3 routinely travels to countries in 18 Europe, Asia, and Latin America in connection with his legal representation of clients, 19 and for other business purposes. 20 16. Plaintiff John Doe #4 is an individual residing in the State of Hawaii. 21 Plaintiff John Doe #4 served in the United States Navy for nearly 30 years and retired as 22 a naval officer. In 2009, Plaintiff John Doe #4 pled guilty to one count of Violation of 23 Privacy in the First Degree in the State of Hawaii, a sex offense involving a minor, and 24 was sentenced to a five-year term of probation, but was not required to register as a sex 25 offender. However, about two years after his conviction, the State of Hawaii informed 26 Plaintiff John Doe #4 that he would face criminal prosecution if he did not immediately 27 register as a sex offender in that State. Despite this breach of his plea agreement, 28 6 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106188  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 7 of 29 1 Plaintiff John Doe #4 complied. In February 2013, Plaintiff John Doe #4 was granted an 2 early release from probation. Plaintiff John Doe #4 is married to a citizen of the 3 Philippines who currently resides in the Philippines and who is forbidden to travel to the 4 United States because of current visa restrictions for Filipinos. International travel to the 5 Philippines is therefore the only means by which Plaintiff John Doe #4 can visit his wife. 6 17. Plaintiff John Doe #5 is an individual residing in the State of Texas. 7 Plaintiff John Doe #5 is required to register as a sex offender due to an offense involving 8 a minor that occurred in 2002. Plaintiff John Doe #5 has committed no other criminal or 9 civil offenses and is employed full-time as a pilot for an airline that transports cargo to 10 and from various locations around the world. Due to the changing nature of the air cargo 11 industry, Plaintiff John Doe #5 does not know the country or countries to which he will 12 fly when he arrives at work. Therefore, he is unable to provide the government with 21 13 days advance notice of his international travel. 14 18. Plaintiff John Doe #6 is an individual residing in the State of Hawaii. 15 Plaintiff John Doe #6 is required to register as a sex offender due to his conviction in 16 2005 for an offense involving a minor. Plaintiff John Doe #6 has committed no other 17 criminal or civil offenses and is employed full time as a construction project manager. 18 Plaintiff John Doe #6 married a citizen of Taiwan on the island of Guam in August 2009. 19 They subsequently lived there for about a year and traveled to Taiwan to visit members 20 of the family. Plaintiff John Doe #6 and his wife attempted to re-enter the United States 21 together; however, his wife was denied entry. Plaintiff John Doe #6 made eight trips to 22 Taiwan between 2010 and 2013; however, he was denied entry into that country in June 23 2013 and deported. The reason given for his deportation was information from the 24 United States government. He was told that he will not be allowed to re-enter Taiwan, 25 where his wife lives, for five to ten years. 26 19. Plaintiff John Doe #7 was born in Tehran, Iran, but moved to the United 27 States in 1979. He has resided in the State of California since 1989. Plaintiff John Doe 28 7 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106189  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 8 of 29 I #7 is required to register as a sex offender due to conviction of a sex offense involving a 2 minor in 2010. Plaintiff John Doe #7 is the only child of his father who lives in Iran. 3 Upon the death of his father, Plaintiff John Doe #7 will be entitled to receive his father's 4 real property, personal property and financial wealth. In order to actually receive that 5 property and wealth, Plaintiff John Doe #7 must travel to Iran. Because Iran believes in 6 and practices the death penalty for sex offenders, Plaintiff John Doe #7 will be killed 7 upon entry into that country if the United States notifies Iran that he has been convicted 8 of a sex offense or adds a conspicuous unique identifier to his passport. 9 20. Plaintiffs John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe 10 #5, John Doe #6, and John Doe #7 will be referred to collectively herein as "Plaintiffs." 11 21. Defendant John Kerry is the Secretary of State of the United States and 12 heads the United States Department of State. Defendant Kerry and the Department of 13 State oversee the implementation of certain provisions of the IML, as set forth below. 14 22. Defendant Jeh Johnson is the Secretary of the United States Department of 15 Homeland Security and heads the Department of Homeland Security ("DHS"). 16 Defendant Johnson and the DHS oversee the implementation of certain provisions of the 17 IML, as set forth below. 18 23. Defendant Loretta Lynch is the Attorney General of the United States and 19 heads the United States Department of Justice ("DOJ"). Defendant Lynch and the DOJ 20 oversee the implementation of certain provisions of the IML, as set forth below. 21 24. Defendant Sarah Saldana is The Assistant Secretary for U.S. Immigration 22 and Customs Enforcement within the DHS and, pursuant to the IML, will head the 23 Center from which notifications regarding Covered Individuals are issued. IML § 4(c), 24 (d). 25 25. Defendant R. Gil Kerlikowske is the Commission of U.S. Customs and 26 Border Protection within the DHS and, pursuant to the IML, is a member of the Center 27 from which notifications regarding Covered Individuals are issued. IML § 4(d). 28 a FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106190  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 9 of 29 1 26. Defendant David Harlow is Acting Director of the United States Marshals 2 Service (the "Marshals Service"). Defendant Harlow and the Marshals Service are 3 responsible for implementing certain provisions of the IML, as set forth below. 4 27. The true names and capacities of Defendants sued as Does 1 through 20 are 5 unknown to Plaintiffs, who therefore sue such Defendants by fictitious names. Plaintiffs 6 will seek leave to amend this Complaint, if necessary, to reflect the true names once they 7 have been ascertained. 8 28. Defendants Kerry, Johnson, Lynch, Saldana, Kerlikowske, Harlow, and 9 Does 1 through 20 are collectively referred to herein as "Defendants." 10 FACTS 11 A. International Me2an's Law and International Sex Trafficking 12 29. The purported purpose of the IML is "to protect children from exploitation, 13 especially from sex trafficking tourism, by providing advance notice of intended travel 14 by registered child-sex offenders outside the United States to the government of the 15 country of destination, . . . and for other purposes." IML, Preamble and § 12. 16 30. Despite its stated purpose, the IML is not rationally tailored to serve its 17 stated interest, that is, to protect children from sex trafficking, and instead is inconsistent 18 with currently available empirical evidence, including Federal and State government 19 data regarding the low risk of re-offense posed by registered sex offenders for any sex 20 crime, particularly a crime related to sex trafficking. 21 31. According to Federal government data, sex trafficking and child sex 22 tourism is a rare crime. As stated in an earlier version of the IML introduced in 2010, 23 the Department of Justice "obtained 73 convictions of individuals from the United States 24 charged with committing sexual crimes against minors in other countries," an average of 25 only 10 convictions per year during a seven-year period from 2003 through 2009.5 26 27 5 See H.R. 5138, 111th Cong., Report No. 111-568, Part 1, § 2(a)(12), available at 28 https://www.gpo.gov/fdsys/pkg/B ILLS- 1 1 1 hr5138rIghtml/BILLS-111hr5138rh.htm. 9 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106191  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 10 of 29 1 32. According to state government data, most new sex offenses, including sex 2 trafficking and child sex tourism, are not committed by people required to register as a 3 sex offender. The California Department of Corrections and Rehabilitation ("CDCR") 4 cites research concluding that "first-time offenders" accounted for "95.9% of all arrests 5 for any [registrable sex offense], 95.9% of all arrests for rape, and 94.1% of all arrests 6 for child molestation."6 7 33. Also according to state government data, and contrary to popular myth, the 8 re-offense rate for individuals on a sex offender registry is extremely low.' For example, 9 the CDCR reports that the re-offense rate for California registrants on parole is 0.8 10 percent, the lowest re-offense rate for any crime except murder! In addition, research 11 by Karl Hanson, Ph.D., the world-renown expert on this topic, confirms that, at five 12 years post-offense, the re-offense rate for low-risk offenders is 2 percent, while the re- 13 offense rate for moderate-risk offenders is 7 percent, with the risk of re-offense for both 14 groups diminishing with each passing year.9 15 34. The California Sex Offender Management Board ("CASOMB"), the State's 16 policy expert on sex offender issues, has adopted research by Dr. Hanson which 17 confirms that even high risk sex offenders who have not re-offended in 17 years are no 18 more likely to commit a new sex offense than someone who has never committed a sex 19 6 20 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, A BETTER PATH TO COMMUNITY SAFETY 2 & n. 4 (2014) (emphasis added). 7 21 While the rate at which individuals on sex offender registries recidivate by committing crimes other than sex offenses may be higher, recent research demonstrates that this phenomenon is largely caused 22 by the numerous legal restrictions that destabilize the lives of registrants and impede their reintegration into society, such as presence and residency restrictions, the stigma of public sex 23 offender registries, discrimination in employment and housing opportunities, and myriad other burdens indiscriminately imposed by legislatures, such as the provisions of the IML challenged in this 24 action. See Generally CALIFORNIA SEX OFFENDER MANAGEMENT BOARD, HOMELESSNESS AMONG CALIFORNIA'S REGISTERED SEX OFFENDERS: AN UPDATE (Aug. 2011). 8 25 CALIF. DEPT. OF CORRECTIONS AND REHABILITATION, 2014 OUTCOME EVALUATION REPORT 30 (July 2015), available at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_ 26 Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf. The exact rate was 0.8%. Another 2% of the cases involved a violation of the sex offender registry requirements, and the remaining 5.3% of 27 those who returned to prison committed a new offense that was not a sex crime. 9 R. Karl Hanson, et al., High-Risk Sex Offenders May Not Be High Risk Forever, 29 (15) J. OF 28 INTERPERSONAL VIOLENCE 2792, 2802 (2014). 10 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106192  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 11 of 29 offense.1' Further, the United States Department of Justice reports that the overall re- 2 offense rate for all sex offenders nationwide is only 5.3 percent." 3 35. The IML applies to Covered Individuals regardless of the details of their 4 offense, their actual risk of re-offense, or the age of their conviction. Other than by 5 limiting its application to sex offenses against minors, the IML's designation of "covered 6 sex offender" is overbroad because it is not limited to individuals who have been 7 convicted of sex trafficking or sex tourism, or even to those crimes that would rationally 8 predict some risk of such an offense. IML § 3(3), (10). Rather, the IML applies to all 9 Covered Individuals whose offense involved a minor. IML § 3(3), (10). By definition, 10 therefore, the IML applies to individuals who are minors, or who were convicted of a 11 misdemeanor, as well as individuals whose offenses do not involve contact with a 12 victim, such as sexting, streaking, urinating in public, or viewing child pornography. 13 The IML also applies to individuals whose convictions have been expunged (e.g., 14 Plaintiff John Doe #3), whose convictions were limited to sexual activity with another 15 teenager, and whose convictions are decades old and therefore pose no current threat to 16 public safety (e.g., Plaintiffs John Doe #1 and John Doe #6). 17 36. The IML also applies to individuals, such as Plaintiff John Doe #3, who are 18 no longer required to register as a sex offender because they have been deemed by a 19 state judge to be rehabilitated and therefore no longer a risk or public safety.'2 IML § 20 2(3). 21 22 23 24 R. Karl Hanson, et al., The Field Validity of Static-99/R Sex Offender Risk Assessment Tool in 25 California, 1 J. OF THREAT ASSESSMENT AND MGMT. 102 & n. 12 (2014). U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF SEX OFFENDERS RELEASED 26 FROM PRISON IN 1994, at 7 (Nov. 2003). 12 Oninformation and belief, the number of individuals in California determined to be rehabilitated by a 27 state judge exceeds 750. These determinations are based upon a lengthy process, including a comprehensive evaluation of an individual by mental health professionals and state prosecutors 28 pursuant to California Penal Code Section 290.05. 11 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106193  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 12 of 29 1 37. Finally, the IML applies to individuals in states outside of California who 2 have automatically been removed from their state's registry due to the passage of time 3 and absence of a subsequent offense.13 IML § 2(3). 4 38. The purported "findings" of the IML in support of its draconian measures 5 are predictably brief, conclusory, and (other than by exempting the government from 6 liability) reveal no studied consideration of either the impact of the IML on public safety 7 or the massively disruptive consequences of the IML for Covered Individuals and their 8 families. Specifically, the "findings" are limited to the following three observations: 9 a. "Law enforcement reports indicate that known child-sex 10 offenders are traveling internationally;" 11 b. "The International Labour Organization has estimated that 12 1,8000,000 [sic] children worldwide are victims of child sex 13 trafficking and pornography each year;" and 14 c. "Child sex tourism . . . is a form of child exploitation and, IS where commercial, child sex trafficking." 16 IML § 2(4)-(6). The IML provides no empirical evidence in any form, including facts, 17 statistics, reports, or analyses, to justify the significant punitive burden imposed on 18 Covered Individuals by this law, as summarized herein. 19 39. Among the publicly cited bases for the IML is a sensationalistic 2012 report 20 by the Government Accountability Office ("GAO") entitled "Passport Issuance: Current 21 Situation Results in Thousands of Passports Issued to Registered Sex Offenders." This 22 document reports "that of over 16 million U.S. passports issued in 2008, about 4,500 [or 23 24 13 25 On information and belief, the number of individuals in the nation who have been automatically removed from their state's registry due to the passage of time exceeds 10,000. For example, the 26 registry maintained by the State of New York, the nation's fourth-largest state registry, took effect in 1996 and imposes a 20-year registration requirement on Registrants who are assigned to either no 27 risk classification, or to a Tier I risk classification. See N.Y. Corrections Law § 168-h(a). Accordingly, all New York Registrants who were assigned to either risk classification and whose 28 registration period commenced in 1996 are no longer required to register in 2016 and beyond. 12 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106194  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 13 of 29 1 less than 0.03%] were issued to registered sex offenders."14 However, in commentary 2 published along with the GAO report, the U.S. State Department labeled the entire report 3 "very misleading" and stated the following: 4 a. "Starting with the title . . . we are concerned that it conveys more `shock 5 value' than factual accuracy. .. . [T]he title fails to convey that GAO 6 found no lawful reasons for the Department to deny or revoke the 7 passports of the case study sex offenders based on their status of sex 8 offenders." 9 b. "Congress has already provided the Department authority to deny 10 passports to individuals convicted of the crime of sex tourism involving 11 minors and who used their passports or passport card or otherwise 12 crossed an international border in committing an offense." 13 c. "The title also fails to convey that GAO found no evidence that the 14 offenders used their passports to commit sex offenses abroad. . . . The 15 report appears to suggest, without any foundation, that the Department's 16 issuance of passports to certain Americans facilitated their commission 17 of sex offenses abroad."I5 18 B. The IML's "Unique Passport Identifier" 19 40. The IML mandates that Covered Individuals who are required to register as 20 a sex offender in any jurisdiction ("Registrants") will be forced to identify themselves 21 publicly as registered sex offenders by means of a "unique identifier" on their passports. 22 The IML defines "unique identifier" as "any visual designation affixed to a conspicuous 23 location on the passport indicating that the individual is a covered sex offender." IML 24 §§ 8(a) and (b)(1), (c)(B)(2) (hereinafter, the "Passport Identifier Provision"). 25 26 14 United States Government Accountability Office: Passport Issuance — Current Situation Results in 27 Thousands of Passports Issued to Registered Sex Offenders (June 2012), available at http://www.gao.gov/products/GAO-10-643. 15 28 Id. Appendix II: Comments from the Department of State, at 17-20 (emphasis added). 13 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106195  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 14 of 29 1 41. Thus, for the first time in our nation's history, the Federal government will 2 require American citizens to carry and communicate a "conspicuous" public mark — akin 3 to the proverbial Scarlet Letter — on an object intimately associated with their person. 4 This mark will force the individual to communicate any number of negative messages to 5 the public about himself or herself, including that he or she poses a current threat to 6 public safety because he or she engages in, or is at risk of engaging in, child sex 7 trafficking. In most cases, these messages are false and effectively force such 8 individuals to invite significant risk of harm to themselves, their families, and others 9 with whom they may be traveling. 10 42. Subsequent to the establishment of publicly disclosed sex offender 11 registries in or about 2006, there have been dozens of reports of vigilante reprisals, 12 physical attacks, and even murders of individuals on sex offender registries that occurred 13 solely because the victim was required to register as a sex offender. For example: 14 a. In January 1995, only a few months after their State instituted its public 15 registry, Kenneth Kerkes of Phillipsburg, NJ, and his son, Kenneth Jr., 16 found a neighbor, Michael Groff, on that registry. They broke into the 17 home at Mr. Groff's address at 3 a.m. intending to beat up Mr. Groff but 18 instead mistakenly beat up another man who was staying there. 19 b. In April 2003, Lawrence Trant downloaded a list of addresses in 20 Concord, MA, from the public registry and proceeded to set fire to each 21 home on the list. Later that month, he was arrested when he confronted 22 one of the men on his list, Lawrence Sheridan, with a baseball bat and a 23 knife and stabbed him. 24 c. In February 2004, police in Bakersfield, CA, distributed a flyer with 25 information from the public registry about Vincent Verdile. About two 26 weeks later, Gabriel Garcia went to the front door of Mr. Verdile's home 27 28 14 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106196  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 15 of 29 1 and threatened to kill him while kicking in the door until police shot and 2 killed Mr. Garcia to prevent his entry into Mr. Verdile's home. 3 d. In August 2005, Michael Mullen went to an address in Bellingham, WA, 4 that he found listed on the public registry. He impersonated an FBI 5 agent in order to gain entry to the residence, where he then shot and 6 killed two Registrants, Hank Eisses and Victor Vasquez. 7 e. In April 2006, Stephen Marshall took the addresses of William Elliott 8 and Joseph Gray of Corinth, ME, from the public registry. He first went 9 to Mr. Elliott's home where he shot and killed him. Then he went to Mr. 10 Gray's home and did the same to him. He intended to continue killing 11 people on the public registry until he shot and killed himself when 12 approached by police about the murders. Mr. Elliott was on the public 13 registry because, at age 19, he had sexual contact with his girlfriend 14 three weeks before her 16th birthday. 15 f. In September 2006, Donald Keegan was charged with attempted murder 16 for plotting to set fire to the Long Island, NY, residence of four men 17 listed on the public registry. 18 g; In November 2007, Ivan Oliver of Lakeport, CA, misinterpreted 19 information on the public registry about his new neighbor, Michael 20 Dodele, to mean that Mr. Dodele's offense involved a minor, which it 21 had not. Worried for his four-year-old son's safety, he went to Mr. 22 Dodele's home and killed him by stabbing him 65 times. 23 h. In August 2009, Steven Banister chose the Palm Springs, CA, address 24 of Edward Keeley from the public registry. He and Travis Cody went 25 to the 75-year-old man's home, where they robbed and killed him. 26 i. In June 2012, Patrick Drum shot and killed Gary Blanton, who was a 27 registered sex offender because he had sexual contact with his girlfriend 28 15 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106197  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 16 of 29 1 when he was a senior in high school and she was a freshman. He then 2 drove to the home of registrant Jerry Ray in nearby Agnew and fatally 3 shot him as well. Mr. Drum said he killed both men "because they were 4 sex offenders" and that he had planned on killing more of them until he 5 was caught. In a court hearing, Mr. Blanton's widow reported that 6 people who considered Drum a hero had stalked her home, spat on her 7 family, and thrown things at her car. 8 i In December 2012, in San Juan Capistrano, CA, Robert Vasquez 9 murdered Bobby Ray Rainwater after he learned that Rainwater was a 10 registrant. Both men lived in the same trailer park. Mr. Rainwater was 11 attacked from behind and was stabbed so many times he was practically 12 decapitated. 13 k. In July 22 2013, in Lockhart, SC, Jeremy Moody murdered registrant 14 Charles Parker and his wife, Gretchen Parker, inside their home. Mr. 15 Moody pretended to have car problems outside the home and asked to 16 use the couple's home phone to call a tow truck. After his arrest, Mr. 17 Moody told police that he killed Mr. and Mrs. Parker because Mr. Parker 18 was a registered sex offender. 19 L In September 2015, in Redding, CA, registrant Roy Matagora was shot 20 three times and significantly injured by Timothy Gould when Mr. 21 Matagora opened the front door of his home. After his arrest, Mr. Gould 22 told police that he shot Mr. Matagora solely because he is a sex offender. 23 43. Prior to the IML, obtaining information regarding registered sex offenders 24 required an individual seeking that information to access the Internet. However, the 25 Passport Identifier Provision of the IML would, for the first time, compel Registrants to 26 communicate affirmatively their status as a registered sex offender, along with numerous 27 other false and stigmatizing messages implied by that status, to the public on an object 28 16 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106198  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 17 of 29 1 that they carry with them and that they are legally required to use for identification and 2 other purposes. As evidenced by the reports summarized above, this communication 3 could result in serious risks of harm to Registrants, their families, their business 4 associates, and any individuals with whom they are traveling. 5 44. Tellingly, the IML exempts the relevant government officials and 6 departments from liability arising from any harm that the Passport Identifier Provision 7 causes to Registrants. IML § 8(a) and (d). 8 C. The IML's "Notification Provision" 9 45. In addition to the Passport Identifier Provision, the IML provides that DHS 10 shall establish a Center known as the "Angel Watch Center" within the Child 11 Exploitation Investigations Unit of the DHS's United States Immigration and Customs 12 Department (the "Center"). IML § 4(a). The mission of the Center is to communicate 13 with foreign countries regarding a Covered Individual's international travel. The IML 14 further provides that the Center shall be headed by the Assistant Secretary for U.S. 15 Immigration and Customs Enforcement, shall include as its additional "members" the 16 Commissioner of U.S. Customs and Border Protection, and certain "analysts" and 17 "program managers" designated by the U.S. Customs and Border Protection Department 18 or the U.S. Immigration and Customs Enforcement Department. ILM § 4(c)-4(d). 19 46. The IML operates as follows: 20 a. Self-reporting. Pursuant to the Adam Walsh Child Protection and Safety 21 Act of 2006, certain Covered Registrants are required to inform law 22 enforcement of their international travel plans "in conformity with any 23 time and manner requirements prescribed by the Attorney General," 24 including "any anticipated dates and places of departure, arrival, or 25 return, carrier and flight numbers for air travel, destination country and 26 address or other contact information therein, means and purpose of 27 travel, and any other itinerary or other travel-related information 28 17 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106199  Case 4:16-cv-00654-PJH Document 31 Filed 03/09/16 Page 18 of 29 1 required by the Attorney General." IML § 6. A Covered Registrant who 2 fails to inform law enforcement of his or her travel plans faces a fine or 3 imprisonment for a term up to ten (10) years. IML § 8. 4 b. Reporting by the Center. Independent of an individual's self-reporting 5 obligation, the Center shall also determine if individuals traveling 6 abroad are Covered Individuals at least "48 hours before scheduled 7 departure, or as soon as practicable before scheduled departure." IML § 8 4(e)(1). The Center may "transmit relevant information to the 9 destination country about a sex offender," and share such information 10 with other agencies within the United States Government. IML § 11 4(e)(3). The IML neither defines the term "relevant information . 12 about a sex offender" nor provides any guidelines about the information 13 to be provided to the destination country about the Covered Individual. 14 Further, the IML does not provide any guidelines by which the Center is 15 to determine whether to provide information to a destination country in 16 the first place.16 17 c. Reporting by the Marshals Service. Independent of the Center, the 18 United States Marshals Service may also provide information to 19 destination countries regarding Covered Individuals intending to travel 20 there, and shall also provide information regarding Covered Registrants 21 to the Center and to other government agencies, "within twenty-four 22 hours before the intended travel, and not later than 72 hours after." IML 23 §§ 4(e)(2), 5. The IML fails to identify the information to be provided 24 by the Marshals Service regarding Covered Individuals, and fails to 25 establish guidelines for the information to be provided. Further, the IML 26 16 27 The Center is also to receive incoming notifications from foreign countries regarding individuals with sex offenses who seek to enter the United States pursuant to provisions that are not challenged 28 in this action. IML § 4(b). 18 FIRST AMENDED AND VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF EFTA01106200  Case 4:16-cv-00654-R3H Document 31 Filed 03/09/16 Page 19 of 29 1 fails to prescribe guidelines regarding whether such information should 2 be provided in the first place. 3 d. Provision of Information to the State Department. The Center shall also 4 provide the United States Department of State with information 5 regarding the status of Covered Individuals in connection with the 6 Passport Identifier Provision discussed above. IML § 4(e)(5). 7 D. Inadequacy of the IML's Notice and Redress Procedures 8 47. Critically, the IML contains no mechanism by which Covered Individuals 9 are to receive notice that the Center or the Marshals Service has compiled information 10 regarding them and/or their international travel plans. In addition, the IML contains no 11 mechanism whereby Covered Individuals are notified that information regarding them 12 has been communicated to one or more destination countries. 13 48. Further, the IML also contains no mechanism by which a Covered 14 Individual is to be notified regarding the nature of the information compiled by the 15 Center or the Marshals Service. Finally, the IML contains no mechanism whereby the 16 Covered Individual may identify and correct errors or omissions in the