1/14/2021

LIVE 6.3.3 CM/ECF - U.S. District Court for Eastern California

CIVIL,CLOSED

U.S. District Court Eastern District of California - Live System (Fresno) CIVIL DOCKET FOR CASE #: 1:20-cv-00600-NONE-JDP

Doe #1, et al. v. Hall, et al. Assigned to: UnassignedDJ Referred to: Magistrate Judge Jeremy D. Peterson Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 04/28/2020 Date Terminated: 09/18/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff John Doe #1

represented by Janice Madelyn Bellucci Law Ofﬁce of Janice M. Bellucci 1215 K Street, 17th Floor Sacramento, CA 95814 805-896-7854 Email: jmbellucci@aol.com ATTORNEY TO BE NOTICED

Plaintiff John Doe #2

represented by Janice Madelyn Bellucci (See above for address) ATTORNEY TO BE NOTICED

Plaintiff John Doe #3

represented by Janice Madelyn Bellucci (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Andrew Hall in his ofﬁcial capacity as Chief of the Fresno Police Department
Defendant
Margaret Mims in her ofﬁcial capacity as Fresno County Sheriff

represented by Scott Charles Hawkins County Counsel 2220 Tulare Street, Suite 500 Fresno, CA 93721 559-600-3479 Fax: 559-600-3480 Email: schawkins@co.fresno.ca.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

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LIVE 6.3.3 CM/ECF - U.S. District Court for Eastern California

04/28/2020

1 COMPLAINT against All Defendants by John Doe #1, John Doe #3, John Doe #2. Attorney Bellucci, Janice Madelyn added. (Filing fee $ 400, receipt number 09728864708) (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(Bellucci, Janice) (Entered: 04/28/2020)

04/29/2020 04/29/2020 04/29/2020 05/04/2020 05/08/2020

2 SUMMONS ISSUED as to *Margaret Mims* with answer to complaint due within *21* days. Attorney *Janice Madelyn Bellucci* *Law Ofﬁce of Janice M. Bellucci* *1215 K Street, 17th Floor* *Sacramento, CA 95814*. (Lundstrom, T) (Entered: 04/29/2020)
3 SUMMONS ISSUED as to *Andrew Hall* with answer to complaint due within *21* days. Attorney *Janice Madelyn Bellucci* *Law Ofﬁce of Janice M. Bellucci* *1215 K Street, 17th Floor* *Sacramento, CA 95814*. (Lundstrom, T) (Entered: 04/29/2020)
4 CIVIL NEW CASE DOCUMENTS ISSUED: Initial Scheduling Conference set for 9/17/2020 at 10:30 AM in Yosemite (JDP) before Magistrate Judge Jeremy D. Peterson. (Attachments: # 1 Standing Order, # 2 Standing Order re Judicial Emergency, # 3 Consent Form, # 4 VDRP) (Lundstrom, T) (Entered: 04/29/2020)
5 FIRST AMENDED COMPLAINT against All Defendants by John Doe #1, John Doe #3, John Doe #2. (Attachments: # 1 Exhibit)(Bellucci, Janice) (Entered: 05/04/2020)
6 SUMMONS RETURNED EXECUTED: Margaret Mims served on 5/7/2020, answer due 5/28/2020. (Bellucci, Janice) (Entered: 05/08/2020)

05/11/2020

7 NOTICE of Request to Proceed Under Pseudonyms and to Redact Documents by All Plaintiffs. (Bellucci, Janice) (Entered: 05/11/2020)

05/13/2020 05/15/2020

8 MOTION for TEMPORARY RESTRAINING ORDER by John Doe #1, John Doe #2, John Doe #3. Motion Hearing set for 5/19/2020 at 09:30 AM in Courtroom 4 before District Judge Dale A. Drozd. (Attachments: # 1 Points and Authorities, # 2 Afﬁdavit re Notice of Motion for TRO, # 3 Afﬁdavit re Existence of Irreparable Injury, # 4 Proposed Order, # 5 Proposed Order)(Bellucci, Janice) (Entered: 05/13/2020)
9 MINUTE ORDER (TEXT ENTRY ONLY): Plaintiffs have noticed a motion for temporary restraining order for 5/19/2020, seeking injunctive relief against the Fresno County Sheriff only regarding the Sheriff's policy of requiring registered sex offenders to present themselves in person for periodic updates regardless of the offender's susceptibility to illness in light of the current public health crisis. 8 Given the timing of the harms asserted in the motion, the court does not believe it is necessary to hear and decide the motion by May 19, 2020. Accordingly, the County shall have until noon on May 20, 2020 to ﬁle a written response to the motion. Upon review of that ﬁling, the court will determine whether a reply will be authorized and/or whether a hearing will be necessary. In lieu of an opposition, and in light of the fact that at least some of the concerns raised by at least one of the Plaintiffs have been addressed by waiving in person presentment, the parties are strongly encouraged to meet and confer in an effort to reach accord on the emergent issues raised in the motion. In light of the fact that no defendant has made an appearance in this case, Plaintiffs are instructed to serve a copy of this minute order on the County by hand delivery today or overnight delivery (to arrive Monday morning). Plaintiffs' counsel also shall email a copy to the Deputy County Counsel who has held himself out as representing the County on this matter and shall place a courtesy phone call to that individual informing him of this minute order signed by District Judge Dale A. Drozd on May 15, 2020. (Munoz, I) (Entered: 05/15/2020)

05/20/2020

10 OPPOSITION by Margaret Mims to 8 Motion for TRO,. Attorney Hawkins, Scott Charles added. (Attachments: # 1 Declaration, # 2 Notice)(Hawkins, Scott) (Entered:

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05/27/2020 05/28/2020 09/14/2020
09/14/2020 09/14/2020 09/18/2020

05/20/2020)

LIVE 6.3.3 CM/ECF - U.S. District Court for Eastern California

11 ORDER DENYING 8 Motion for TRO, signed by District Judge Dale A. Drozd on 5/27/2020. (Rivera, O) (Entered: 05/27/2020)

12 ANSWER by Margaret Mims.(Hawkins, Scott) (Entered: 05/28/2020)

13 MINUTE ORDER: The court had set a mandatory telephonic scheduling conference for September 17, 10:30 A.M., and required that the parties submit a joint scheduling report one week before the conference. See ECF No. 4 . The court has not received the required report. By the close of business on September 15, 2020, the parties shall notify the court whether they intend to proceed with this case. If so, they shall submit the joint scheduling report no later than the close of business on September 16, 2020. Minute order signed by Magistrate Judge Jeremy D. Peterson on 9/14/2020. (Dunbar-Kari, K) (Entered: 09/14/2020)

14 STIPULATION to dismiss entire action with prejudice by John Doe #1, John Doe #2, John Doe #3. (Bellucci, Janice) (Entered: 09/14/2020)

15 STIPULATION (Amended) to Dismiss Entire Action with Prejudice by John Doe #1, John Doe #2, John Doe #3. (Bellucci, Janice) (Entered: 09/14/2020)

16 ORDER DIRECTING the Clerk's Ofﬁce to Close the Case, signed by Magistrate Judge Jeremy D. Peterson on 9/15/2020. CASE CLOSED. (Rivera, O) (Entered: 09/18/2020)

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 Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 1 of 19

1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248

5 Attorney for Plaintiffs

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual;

)

JOHN DOE #2, an individual; and

)

12 JOHN DOE #3, an individual;

) )

13 14 15 16 17

)

Plaintiffs,

) )

vs.

) )

ANDREW HALL, in his official capacity as Chief of the Fresno Police Department; and MARGARET MIMS, in her official capacity as Fresno County Sheriff,

) ) ) ) ) )

18

)

Defendants. )

19

)

)

20

Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

22

INTRODUCTION

23

1. This action challenges the discretionary, unauthorized, and injurious policies

24 of the Fresno Police Department (“FPD”) and the Fresno County Sheriff’s Office

25 (“FCSO”) that require persons required to register as a sex offender (“Registrants”) who

26 are vulnerable to the COVID-19 virus to leave their homes and to appear in person at

27 FPD and FCSO stations for their 30-day, 90-day, or annual registration updates

28

________________________________________________________1_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 2 of 19

1 (hereinafter, “periodic updates”). The Sex Offender Registration Act, California Penal

2 Code section 290.012, does not require in-person registration for periodic updates, and

3 therefore does not authorize Defendants to subject vulnerable persons to a risk of

4 significant physical harm, perhaps death, that is universally recognized by national, state,

5 and local government – in violation of orders issued by those governments. In addition,

6 the FPD and FCSO policies that require in-person registration during periodic updates

7 infringe the life and liberty of Registrants in violation of the Fourteenth Amendment to

8 the United States Constitution, the Eighth Amendment to the United States Constitution,

9 as well as the California Sex Offender Registration Act, as more thoroughly pled herein.

10

2. This issue warrants the Court’s attention at this time because the

11 extraordinary measures now being taken to slow the spread of the COVID-19 pandemic

12 are undermined by Defendants’ requirement that Registrants continue to appear in person

13 for periodic updates. Specifically, as of March 19, 2020, the Governor of California has

14 ordered as follows: “Everyone is required to stay home except to get food, care for a

15 relative or friend, get necessary health care, or go to an essential job.”1 The Order

16 contains no exception for Registrants or for registration updates.

17

3. Nor is such an exception mandated by law. Specifically, Sex offender

18 registration is governed by the California Sex Offender Registration Act, codified at

19 Penal Code section 290, et seq. (hereinafter, “Section 290” or “Act”). The text of the Act

20 does not require Registrants to appear in person for any type of periodic update. See Cal.

21 Penal Code § 290.012(a)-(c). Instead, the Act merely requires that Registrants be

22 “Registered.” Ibid. In addition, there is no practical reason why Registrants must appear

23 in person for a periodic update because the purpose of a periodic update is to confirm

24 information that registering agencies already possess, or to provide information that can

25 be transmitted through alternative means which pose little or no risk of exposure of

26

27 1 https://covid19.ca.gov/, last visited March 23, 2020.
28

________________________________________________________2_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 3 of 19

1 COVID-19, such as the telephone or video conferencing apps and programs. Use of this

2 widely available technology provides law enforcement with effective methods to obtain

3 the information necessary to complete periodic updates without subjecting the public, law

4 enforcement personnel, and Registrants to potentially harmful in-person visits to

5 locations where they could either contract or spread COVID-19.

6

4. On information and belief, many registering agencies throughout California,

7 including the Los Angeles Police Department (“LAPD”), the agency with the largest

8 population of Registrants in the state, are processing periodic updates over the telephone.

9 The LAPD does not require Registrants to appear in person while the COVID-19

10 emergency measures are in place. Instead, the LAPD has placed signs, including those

11 attached hereto as Exhibit A, on the exterior of its police stations confirming that the

12 LAPD’s registration policy is currently “modified” to accommodate the COVID-19

13 emergency measures. (Exh. A.) Pursuant to the LAPD’s modified policy, Registrants

14 “are not [] allowed in the station,” and “[the LAPD] will register [them] over the phone.”

15 (Exh. A.)

16

5. Plaintiffs are three individual Registrants, Plaintiffs John Doe #1, John Doe

17 #2, and John Doe #3, who are deemed vulnerable to infection by COVID-19 due to their

18 age and/or chronic medical conditions. As pled more fully below, Defendants have

19 directed all Registrants, including Plaintiffs John Doe #2 and John Doe #3, to appear in

20 person for their periodic updates, and/or have refused to process the registration of

21 Registrants, such as Plaintiff John Doe #1, who do not appear in person.

22

6. Defendants’ mandate that all Registrants, including those with high risk

23 factors for COVID-19, appear in person forces Plaintiffs and all Registrants into a Catch-

24 22. That is, they must either subject themselves to possible COVID-19 infection in

25 violation of a state order, or violate Section 290 by failing to appear in person, thereby

26 inviting arrest and custody in jail or prison – where the risk of COVID-19 infection is

27 much greater. Either option constitutes irreparable injury warranting injunctive relief.

28

________________________________________________________3_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 4 of 19

1 Harris v. Bd. of Supervisors, 366 F.3d 754, 759, 766 (9th Cir. 2004). See also City of

2 Costa Mesa v. United States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020)

3 (granting TRO against placement of COVID-19 patients within city because possible

4 exposure “threat[ens] immediate and irreparable injury”). Section 290 does not require

5 Plaintiffs and all Registrants to play Russian Roulette with their lives in order to confirm

6 information already in the possession of law enforcement.

7

7. Accordingly, Plaintiffs seek a temporary restraining order, preliminary

8 injunction, and permanent injunction directing Defendants to process 30-day, 90-day, and

9 annual updates without the additional, non-statutory requirement to appear in person until

10 the threat from COVID-19 ends. Plaintiffs further seek injunctive relief as well as a

11 declaratory judgment that Registrants are not required to appear in person for periodic

12 updates.

13

JURISDICTION AND VENUE

14

8. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

15 [federal question], 1343(a) [federal question], and 2201 [declaratory judgment], as well

16 as 42 U.S.C. § 1983 [civil rights]. Specifically, jurisdiction under 28 U.S.C. §§ 1331 and

17 1343(a) exists because Defendants’ policies requiring in-person registration during the

18 COVID-19 pandemic constitute a deprivation of life and liberty within the meaning of

19 the Fourteenth Amendment in that: (i) in-person registration constitutes constructive

20 custody in which Registrants are exposed to a risk of bodily harm and death, in violation

21 of the Fourteenth Amendment; (ii) Exposing Registrants to risk of bodily harm and death

22 through in-person registration constitutes a state-created danger in violation of the

23 Fourteenth Amendment; and (iii) Exposing Registrants to risk of bodily harm and death

24 through in-person registration constitutes cruel and unusual punishment in violation of

25 the Eighth Amendment, as follows:

26 ///

27 ///

28

________________________________________________________4_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 5 of 19

1 Fourteenth Amendment: Deprivation of Life and Liberty

2

a. In-person registration at police and sheriff’s stations constitutes

3 constructive custody, thereby triggering a duty by Defendants to avoid deprivations of

4 liberty within the meaning of the Fourteenth Amendment. That is, registration during

5 periodic updates requires Registrants to be physically present in police and sheriff’s

6 stations for up to two hours, during which time Registrants are interviewed by law

7 enforcement, are subject to interrogation concerning their offenses and present

8 compliance with the law, are often photographed and finger printed, and must complete

9 five or more pages of paperwork in the presence of law enforcement.

10

b. Under Defendants’ policies, Registrants are not free to leave during

11 in-person registration because doing so would result in criminal liability pursuant to the

12 California Sex Offender Registration Act, Penal Code section 290, et seq., as well as the

13 federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

14

c. Therefore, Defendant’s policies requiring in-person registration

15 during the COVID-19 pandemic constitute a deprivation of life and liberty within the

16 meaning of the Fourteenth Amendment by subjecting Registrants, law enforcement, as

17 well as the general public, to a risk of infection by the highly contagious novel

18 coronavirus that causes the life-threatening disease COVID-19.

19 Fourteenth Amendment: State-created Danger

20

d. In the context of the COVID-19 pandemic, requiring Registrants to

21 appear in-person for periodic updates is an affirmative act which places Registrants in

22 danger of possibly lethal infection by COVID-19.

23

e. In the context of the COVID-19 pandemic, the danger in which

24 Defendants place Registrants is not a danger to which Registrants would otherwise be

25 subject, and therefore constitutes a state-created danger.

26

f. In the context of the COVID-19 pandemic, the danger in which

27 Defendants place Registrants is known and obvious at all levels of state and local

28

________________________________________________________5_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 6 of 19

1 government, and is a danger to which Defendants are deliberately indifferent. Wood v.

2 Ostrander, 879 F.2d 583 (9th Cir. 1989); Pauluk v. Savage, 836 F.3d 1117 (9th Cir.

3 2016).

4 Eighth Amendment: Cruel and Unusual Punishment

5

g. In-person registration at local police and sheriff’s stations constitutes

6 constructive custody, thereby triggering a duty by Defendants to avoid cruel and unusual

7 punishment within the meaning of the Eighth Amendment. That is, registration during

8 periodic updates requires Registrants to be physically present in police and sheriff’s

9 stations for up to two hours, during which time Registrants are interviewed by law

10 enforcement, are subject to interrogation concerning their offenses and present

11 compliance with the law, are often photographed and finger printed, and must complete

12 five or more pages of paperwork in the presence of law enforcement.

13

h. Under Defendants’ policies, Registrants are not free to leave during

14 in-person registration because doing so would result in criminal liability pursuant to the

15 California Sex Offender Registration Act, Penal Code section 290, et seq., as well as the

16 federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

17

i. Requiring Registrants to appear in-person for periodic updates at

18 police and sheriff’s stations, and thereby exposing them to lethal infection by COVID-19,

19 constitutes cruel and unusual punishment in violation of the Eighth Amendment.

20

9. Under 28 U.S.C. § 1391(b), venue is proper in this Federal district because

21 the events giving rise to the claims have occurred and continue to occur in this district.

22

23

PARTIES

24

10. Plaintiff John Doe #1, aged 71, is a Registrant who resides within the

25 jurisdiction of the FCSO. Plaintiff John Doe #1 is required to update his registration with

26 the FCSO within five working days of his birthday pursuant to California Penal Code

27 section 290.012. Plaintiff John Doe #1 is vulnerable to infection by COVID-19 due to

28

________________________________________________________6_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 7 of 19

1 his advanced age, as determined by state and national health care agencies. In April

2 2020, agents, officers, and officials of the FSCO told Plaintiff John Doe #1 and his

3 counsel that his periodic update will not be processed, completed, or sent to the

4 California Department of Justice unless he appears in person at his local FCSO station.

5

11. Plaintiff John Doe #2, aged 68, is a Registrant who resides within the

6 jurisdiction of the FCSO. Plaintiff John Doe #2 is required to update his registration with

7 the FCSO within five working days of his birthday pursuant to California Penal Code

8 section 290.012. Plaintiff John Doe #2 is vulnerable to infection by COVID-19 due to

9 his advanced age, as well as his chronic medical conditions that include hypertension, as

10 determined by state and national health care agencies.

11

12. Plaintiff John Doe #3 is a Registrant who resides in the City of Fresno,

12 within the jurisdiction of the FPD. Plaintiff John Doe #3 is required to update his

13 registration with the FCSO within five working days of his birthday pursuant to

14 California Penal Code section 290.012. Plaintiff John Doe #3 is vulnerable to infection

15 by COVID-19 due to chronic medical conditions that include asthma, a respiratory

16 disease, as determined by state and national health care agencies.

17

13. Defendant Andrew Hall (“Hall”) is Chief of the Fresno Police Department,

18 the registering agency responsible for implementing the Sex Offender Registration Act

19 within the City of Fresno. In his official capacity as Chief of the FPD, Defendant Hall is

20 responsible for decisions and policies challenged in this action. Defendant Hall is sued in

21 his official capacity.

22

14. Defendant Margaret Mims (“Mims”) is Sheriff of Fresno County, and the

23 chief executive of the FCSO, the registering agency responsible for implementing the Sex

24 Offender Registration Act within Fresno County. In her official capacity as Sheriff,

25 Defendant Mims is responsible for decisions and policies challenged in this action.

26 Defendant Mims is sued in her official capacity.

27

28

________________________________________________________7_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 8 of 19

1

15. Defendants Price and Mims are collectively referred to herein as

2 “Defendants.”

3

FACTS

4

16. Plaintiffs reallege and incorporate herein, as though fully set forth, each and

5 every, all and inclusively, paragraphs 1 through 15.

6 The California Sex Offender Registration Act Does Not Require In-person Periodic

7 Updates

8

17. In the words of Fresno Mayor Lee Brand, “conditions of extreme peril to the

9 safety of persons and property have arisen with respect to the international COVID-19 10 pandemic.”2 Extraordinary measures have been implemented by governments at every 11 level to address this pandemic.3 On March 16, 2020, the Fresno City Council declared a 12 Local Emergency throughout the City of Fresno due to the COVID-19 pandemic.4

13 Subsequently, the Fresno County Board of Supervisors declared a similar Local 14 Emergency the next day.5

15

18. Most notably, on March 19, 2020, the Governor of California issued an

16 order calling upon all 40 million residents of the state to remain in their homes, with 17 limited exceptions for essential travel (hereinafter, the “Order”).6 Specifically, the

18 Governor’s Order directs “all individuals living in the State of California to stay home or

19 at their place of residence except as needed to maintain continuity of operations of the

20 federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-

21

22

23
2 https://www.fresno.gov/cityclerk/wp-content/uploads/sites/9/2020/03/Proclamation.pdf
24
3 https://www.fresno.gov/news/mayor-announces-state-of-emergency-for-coronavirus/
25
4 https://www.fresno.gov/coronavirus/ 26 5 https://www.co.fresno.ca.us/Home/Components/News/News/545/1556?backlist=%2F 27 6 https://covid19.ca.gov/stay-home-except-for-essential-needs/
28

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Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 9 of 19

1 critical-infrastructure-during-covid-19.”7 Sex offender registration is not listed among

2 the exceptions to the Order, and violation of the Order can result in penalties and

3 punishment.

4

19. The Order emphasizes that persons within specific vulnerable populations

5 must self-isolate and remain in their homes. As reflected in the Order, the Center for

6 Disease Control and the California Department of Health Care Services declare the 7 following persons are at “higher risk” for contracting COVID-19:8,9

8

a. Persons aged 65 and older;

9

b. Persons with HIV/AIDS or compromised immune systems; and

10

c. Persons with chronic serious medical conditions, including asthma

11

and hypertension.

12

20. The California Sex Offender Registration Act does not require initial

13 registration, annual updates, 90-day updates, or 30-day updates (i.e., “periodic updates”)

14 to be in person. Instead, the Act only requires that periodic updates occur, without

15 specifying how a Registrant is to provide the required information to the registering

16 agency. E.g., Cal. Penal Code § 290.012(a) (“Beginning on his or her first birthday

17 following registration or change of address, the person shall be required to register

18 annually, within five working days of his or her birthday, to update his or her registration

19 with the entities described in subdivision (b) of Section 290. At the annual update, the

20 person shall provide current information as required on the Department of Justice annual

21 update form, including the information described in paragraphs (1) to (4), inclusive, of

22

23

24
7 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf
25
8 https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-
26
complications.html 27 9 https://covid19.ca.gov/what-you-can-do/#symptoms-risks
28

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Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 10 of 19

1 subdivision (a) of Section 290.015. The registering agency shall give the registrant a copy

2 of the registration requirements from the Department of Justice form.”)

3

21. Notably, the Act specifies only three occasions on which in-person

4 registration or in-person updates are required. Specifically, in-person registration and

5 updates are required only for:

6

a. Transient Registrants “who move[] of out state.” Cal. Penal Code

7

§ 290.011(f) (“A transient who moves out of state shall inform, in person,

8

the chief of police in the city in which he or she is physically present, or the

9

sheriff of the county if he or she is physically present in an unincorporated

10

area or city that has no police department, within five working days, of his

11

or her move out of state.”)

12

b. Registrants who change their residence address, whether within

13

the jurisdiction in which they are currently registered or to a new

14

jurisdiction outside California. Cal. Penal Code § 290.013 (a) (“A person

15

who was last registered at a residence address pursuant to the Act who

16

changes his or her residence address, whether within the jurisdiction in

17

which he or she is currently registered or to a new jurisdiction inside or

18

outside the state, shall, in person, within five working days of the move,

19

inform the law enforcement agency or agencies with which he or she last

20

registered of the move, the new address or transient location, if known, and

21

any plans he or she has to return to California.”)

22

c. Registrants who legally change their names. Cal. Penal Code §

23

290.014 (a) (“If any person who is required to register pursuant to the Act

24

changes his or her name, the person shall inform, in person, the law

25

enforcement agency or agencies with which he or she is currently registered

26

within five working days.”)

27

28

_______________________________________________________1_0_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 11 of 19

1

22. The Legislature’s decision to expressly require in-person updates in certain

2 limited situations but no other situations confirms that the Legislature did not intend to

3 require personal appearance at initial registration, annual updates, 90-day updates, or 30-

4 day updates. See, e.g., Wilson v. City of Laguna Beach, 6 Cal. App. 4th 543, 554 (1992).

5 On information and belief, the California Department of Justice and various local

6 registering agencies are able to, and do in fact, process registrations when a Registrant

7 does not appear in person, such as when a Registrant is hospitalized or otherwise

8 incapacitated. Accordingly, Defendants have, but unlawfully refuse to exercise,

9 discretion to process periodic updates without requiring Registrants to appear in person.

10 Defendants’ refusal places Registrants in danger of exposure to COVID-19.

11 Defendants’ Discretionary In-person Registration Requirement Threatens

12 Vulnerable Registrants and Forces Them to Violate State and Local COVID-19-

13 Related Orders

14

23. Plaintiffs are vulnerable to COVID-19 infection because of their age, and/or

15 certain chronic medical conditions and co-morbidities that are known to be associated

16 with fatalities in COVID-19 patients such as asthma and hypertension. In addition,

17 Plaintiffs are currently subject to the Governor of California’s Order, which requires

18 them to remain at home except for “essential” travel pursuant to the terms of that Order.

19

24. On information and belief, the locations at which Registrants are required to

20 register in person within the jurisdiction of the FPD and the FCSO are often unsanitary,

21 crowded, and do not allow for “social distancing” and other preventative measures

22 mandated by state and local government. In addition, Registrants are forced to enter, sit

23 in, touch, and otherwise interact with unsanitary, and often narrow and cramped, physical

24 environments while registering. Those environments, as well as, the registration

25 procedures employed by Defendants require repeated and prolonged contact with

26 potentially virus-ridden surfaces and objects such as countertops, clip boards, various

27 papers, pens, pen chains, ink pads, chairs, door handles, water fountains, and Livescan

28

_______________________________________________________1_1_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 12 of 19

1 and other fingerprinting machine. These unsanitary surfaces are touched by many other

2 Registrants, as well as other visitors to the station and employees of the registering

3 agencies.

4

25. Plaintiffs are gravely afraid of contracting COVID-19 should they be forced

5 to register in person at FPD and FCSO stations. As one District Court recognized,

6

COVID-19 is a type of highly contagious novel coronavirus that is thought

7

to be “spreading easily and sustainably in the community.” Experts believe

8

that it can live on some surfaces for up to 72 hours after contact with an infected person. A simple sneeze or brush of the face without washing your

9

hands is now known to easily spread the virus, which generally causes fever,

10

cough, and shortness of breath. How Coronavirus Spreads, Centers for Disease Control[,] at 15.

11 Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *10-*12 (M.D.Pa. Mar. 31,

12 2020). The County of Fresno has likewise warned that COVID-19 “is a contagious

13 disease that takes advantage of close contact and poor hygiene, so please do your

14 part in maintaining at least six feet of distance with your peers . . . . This health

15 crisis will require everyone to play a role during this challenging time.”10

16

26. Many courts have recognized that placing persons in close proximity to

17 potentially infected persons and surfaces constitutes a risk of harm that warrants

18 injunctive relief. E.g., Castillo v. Barr, No. 20CV00605-TJH, 2020 U.S. Dist. LEXIS

19 54425, at *4 (C.D. Cal. Mar. 27, 2020) (“Coronavirus is spread between people who are

20 in close contact . . . through respiratory droplets produced when an infected person

21 coughs or sneezes. . . . Moreover, studies have established that the coronavirus can

22 survive up to three days on various surfaces.”). For this reason, the Ninth Circuit sua

23 sponte ordered the immediate release of an immigration detainee with a pending petition

24 for review of her removal order “[i]n light of the rapidly escalating public health crisis,

25 which public health authorities predict will especially impact immigration detention

26

27 10 https://www.co.fresno.ca.us/departments/public-health/covid-19
28

_______________________________________________________1_2_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 13 of 19

1 centers.” Xochihua-Jaimes v. Barr, No. 18-cv-71460, 2020 U.S. App. LEXIS 9069, (9th

2 Cir. Mar. 24, 2020). See also Castillo, 2020 U.S. Dist. LEXIS 54425 (ordering release of

3 certain immigration detainees due to the COVID-19 pandemic). Although in-person

4 registration involves shorter durations of time than other custodial settings, that

5 difference is not significant within the context of the COVID-19 pandemic because

6 COVID-19 infection occurs quickly, and transmission can easily take place within the

7 time period that Registrants are present in person at police and sheriff’s stations. E.g.,

8 Ortuño v. Jennings, No. 3:20-cv-02064, 2020 U.S. Dist. LEXIS 62030, at *6 (N.D. Cal.

9 Apr. 8, 2020) (rejecting argument that threat of infection by COVID-19 is speculative

10 because such infections “are rapidly increasing in the United States, including California,

11 and, when introduced into a confined space, such as a nursing home, a cruise ship, and,

12 recently, a naval aircraft carrier, it can rapidly spread. Indeed, it has quickly spread in a

13 number of jails and prisons”); Perez v. Wolf, 2020 U.S. Dist. LEXIS 65450, *35 (N.D.

14 Cal. Apr. 14, 2020) (“The mere fact that no cases have been reported in the Aurora

15 Facility is irrelevant – it is not a matter of if COVID-19 will enter the facility, but when it

16 will be detected there.”) See also Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It

17 would be odd to deny an injunction to inmates who plainly proved an unsafe, life-

18 threatening condition in their prison on the ground that nothing yet had happened to

19 them.”)

20

27. On or about April 6, 2020, Plaintiff John Doe #3, through counsel,

21 telephoned the FPD to inquire whether Plaintiffs and other Registrants are required to

22 appear in person for periodic updates despite the Governor’s Order as well as the

23 common-sense directives of health care authorities. An FPD registration official

24 confirmed that all Registrants are required to appear in person for periodic updates,

25 regardless of their vulnerability due to one or more high-risk COVID-19 factors.

26

28. On or about April 15, 2020, Plaintiffs John Doe #1 and John Doe #2,

27 through counsel, telephoned the FCSO to inquire whether Plaintiffs and other Registrants

28

_______________________________________________________1_3_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 14 of 19

1 are required to appear in person for periodic updates despite the Governor’s Order as well

2 as the common-sense directives of health care authorities. An FCSO registration official

3 confirmed that all Registrants are required to appear in person for periodic updates,

4 regardless of their vulnerability due to one or more high risk COVID-19 factors.

5

29. In addition to being discretionary and neither required nor authorized by

6 Penal Code Section 290, Defendants’ ongoing decision to require in-person registration

7 for periodic updates forces Plaintiffs and all Registrants to contravene the public safety

8 measures imposed by state and local government upon all residents of California,

9 including the current Order by the Governor of California. Defendants’ decision

10 requiring in-person registration therefore threatens both vulnerable Registrants as well as

11 the larger population with which those Registrants interact, including the public, law

12 enforcement personnel, and their families.

13

30. On information and belief, there are registering agencies throughout

14 California, including the Los Angeles Police Department (LAPD), the agency with the

15 largest population of Registrants in the state, that are currently processing periodic

16 updates over the telephone. That is, the LAPD has completely stopped requiring

17 Registrants to register in person while the COVID-19 emergency measures are in place.

18 Instead, the LAPD has placed signs, including those attached hereto as Exhibit A, on the

19 exterior of its police stations confirming that the LAPD’s registration policy is currently

20 “modified” to accommodate the COVID-19 emergency measures. (Exh. A.) Pursuant to

21 the LAPD’s modified policy, Registrants “are not [] allowed in the station,” and “[the

22 LAPD] will register [them] over the phone.” (Exh. A.)

23

24

FIRST CLAIM

25

(42 U.S.C. § 1983 – Fourteenth Amendment – Due Process)

26

31. Plaintiffs re-allege paragraphs 1 through 30 of this Complaint as though

27 fully set forth herein.

28

_______________________________________________________1_4_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 15 of 19

1

32. Neither the California Sex Offender Registration Act, the federal Sex

2 Offender Registration and Notification Act, nor any other provision of law requires

3 Registrants to appear in person for periodic updates pursuant to California Penal Code

4 section 290.012.

5

33. Plaintiffs are required by Defendants to appear in person for periodic

6 updates pursuant to the policies challenged in this action. The requirement of in-person

7 registration place Registrants in constructive custody, thereby triggering Defendant’s

8 duty to prevent restraints upon or injury to Plaintiffs’ life and liberty pursuant to the

9 Fourteenth Amendment. That is, registration during periodic updates requires the

10 Registrant to be physically present in police and sheriff’s stations for up to two hours,

11 during which time Registrants are interviewed by law enforcement, interrogated

12 regarding their offense and their present compliance with the law, frequently

13 photographed and finger printed, and must complete five or more pages of paperwork in

14 the presence of law enforcement. Under the policies of Defendants challenged herein,

15 Registrants are not free to leave during in-person registration because doing so would

16 result in criminal liability pursuant to the California Sex Offender Registration Act, Penal

17 Code section 290, et seq., as well as the federal Sex Offender Registration and

18 Notification Act, 34 U.S.C. § 20901, et seq.

19

34. The state violates the rights of individuals when it subjects them to risk of

20 physical harm and disease during required interactions with law enforcement. E.g.,

21 Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It would be odd to deny an injunction to

22 inmates who plainly proved an unsafe, life-threatening condition in their prison on the

23 ground that nothing yet had happened to them.”). By virtue of their age and/or chronic

24 medical conditions including asthma and hypertension, Plaintiffs face an elevated risk of

25 death due to infection by COVID-19. Defendants’ policies requiring in-person

26 registration during the COVID-19 pandemic constitute a deprivation of life and liberty

27 within the meaning of the Fourteenth Amendment by subjecting Plaintiffs and

28

_______________________________________________________1_5_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 16 of 19

1 Registrants, as well law enforcement and the general public, to a risk of infection by a

2 highly contagious and potentially deadly disease.

3

35. Furthermore, in the context of the COVID-19 pandemic, requiring

4 Registrants to appear in-person for periodic updates is an affirmative act which places

5 Plaintiffs and all Registrants in danger of possibly lethal infection by COVID-19, a

6 danger to which they would not otherwise be subject, a danger which is known and

7 obvious at all levels of state and local government, and to which Defendants are

8 deliberately indifferent. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989); Pauluk v.

9 Savage, 836 F.3d 1117 (9th Cir. 2016). The risk of infection from COVID-19 in

10 custodial settings has been noted by District Courts, including one which noted that law

11 enforcement “[f]acilities are plainly not equipped to protect Petitioners from a potentially

12 fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious,

13 should we fail to afford relief to Petitioners we will be a party to an unconscionable and

14 possibly barbaric result.” Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *27-*28

15 (M.D. Pa. Mar. 31, 2020)

16

36. Defendants commit these unconstitutional acts under color of authority of

17 law. Plaintiffs face the immediate threat of irreparable injury, for which no legal remedy

18 will suffice, by being deprived of their Fourteenth Amendment rights. Costa Mesa v.

19 United States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020) (granting TRO

20 against placement of COVID-19 patients within city because possible exposure

21 “threat[ens] immediate and irreparable injury”). Thakker, 2020 U.S. Dist. LEXIS 59459,

22 at *21 (“Indeed, courts have even specifically held that COVID-19 constitutes an

23 irreparable harm that supports the grant of a TRO.”)

24 ///

25 ///

26 ///

27 ///

28

_______________________________________________________1_6_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 17 of 19

1

SECOND CLAIM

2

(42 U.S.C. § 1983 – Eighth Amendment – Cruel and Unusual Punishment)

3

37. Plaintiff re-alleges paragraphs 1 through 36 of this Complaint as though

4 fully set forth herein.

5

38. Plaintiffs are required by Defendants to appear in person for periodic

6 updates pursuant to the policies challenged in this action. The requirement of in-person

7 registration places Plaintiffs and all Registrants in constructive custody, thereby

8 triggering Defendant’s duty to prevent cruel and unusual punishment pursuant to the

9 Eighth Amendment. That is, registration during a periodic update requires the Registrant

10 to be physically present in police and sheriff’s stations for up to two hours, during which

11 time Registrants are interviewed by law enforcement, interrogated regarding their offense

12 and their present compliance with the law, frequently photographed and finger printed,

13 and must complete five or more pages of paperwork in the presence of law enforcement.

14 Under the policies of Defendants challenged herein, Registrants are not free to leave

15 during in-person registration because doing so would result in criminal liability pursuant

16 to the California Sex Offender Registration Act, Penal Code section 290, et seq., as well

17 as the federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

18

39. COVID-19 is a highly infectious and potentially lethal disease that is easily

19 transmitted in the community through contact with infected persons, or through contact

20 with surfaces on which the virus can live for days or weeks. Persons infected with

21 COVID-19 can transmit the coronavirus to their family members and to the general

22 public without knowing they are infected. Infection by COVID-19 can produce severe

23 and long-lasting respiratory symptoms that require hospitalization. Requiring Registrants

24 to appear in person for periodic updates, and thereby subjecting them to possibly lethal

25 infection by COVID-19, and rendering them carriers of the disease that may potentially

26 infect their family members and anyone in the general public, constitutes cruel and

27 unusual punishment in violation of the Eighth Amendment.

28

_______________________________________________________1_7_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 18 of 19

1

THIRD CLAIM

2

(28 U.S.C. §2201 – Declaratory Relief)

3

40. Plaintiff re-alleges paragraphs 1 through 39 of this Complaint as though

4 fully set forth herein.

5

41. An actual controversy exists between Plaintiff and Defendants regarding the

6 constitutionality of the policies of Defendants challenged in this action, as well as the

7 interpretation of California Penal Code section 290.012. Specifically, the California Sex

8 Offender Registration Act neither requires nor authorizes 30-day, 90-day, or annual

9 registration updates to be completed in person. Therefore, Defendants lack authority to

10 require Registrants to appear in person for periodic updates pursuant to California Penal

11 Code section 290.012.

12

42. Plaintiffs are informed and believe and thereon allege that Defendants, as

13 well as their deputies, officials, officers, agents, and employees, have failed to comply

14 and continue to fail to comply with the law, and have abused and are continuing to abuse

15 their discretion under the law, by requiring Registrants in vulnerable populations as

16 defined by national and state health care authorities to appear in person for their periodic

17 registration updates amidst the COVID-19 pandemic, as pled herein

18

43. Plaintiffs therefore seek a declaration of their rights under California and

19 federal law, as well as a declaration of Defendants’ duties under the Sex Offender

20 Registration Act, California Penal Code section 290, et seq., and of the scope of

21 Defendants’ discretion under that Act.

22

PRAYER FOR RELIEF

23

Based on the foregoing claims, Plaintiffs seek judgment against Defendants as

24 follows:

25

a. That Defendants be presently and permanently enjoined from requiring

26 persons required to register as a sex offender from appearing in person for 30-day, 90-

27

28

_______________________________________________________1_8_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1 Filed 04/28/20 Page 19 of 19

1 day, and annual updates (“periodic updates”) pursuant to California Penal Code sections

2 290.011 and 290.012 until the threat of COVID-19 has ended;

3

b. For a judgment declaring that California Penal Code sections 290.011 and

4 290.012 and other applicable law do not require persons required to register as a sex

5 offender to appear in person to complete periodic updates;

6

c. That Plaintiffs recover from the Defendants, under 42 U.S.C. § 1988, all of

7 Plaintiffs’ reasonable attorneys’ fees, costs and expenses of this litigation; and

8

d. That Plaintiffs recover such relief as the Court deems just and proper.

9

10

11 Dated: April 28, 2020
12

LAW OFFICE OF JANICE M. BELLUCCI

13

By:

/s/ Janice M. Bellucci

Janice M. Bellucci

14

Attorney for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

_______________________________________________________1_9_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 1-1 Filed 04/28/20 Page 1 of 2
EXHIBIT A

Case 1:20-cv-00600-NONE-JDP Document 1-1 Filed 04/28/20 Page 2 of 2

JS 44 (Rev. 0 /16)

CIVIL COVER SHEET

Case 1:20-cv-00600-NONE-JDP Document 1-2 Filed 04/28/20 Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)

County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business In This State

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a

3

Foreign Country

FORFEITURE/PENALTY

3 Foreign Nation BANKRUPTCY

6

6

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY 310 Airplane 315 Airplane Product
Liability 320 Assault, Libel &
Slander 330 Federal Employers’
Liability 340 Marine 345 Marine Product
Liability 350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Medical Malpractice CIVIL RIGHTS
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities -
Employment 446 Amer. w/Disabilities -
Other 448 Education

PERSONAL INJURY 365 Personal Injury -
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement

625 Drug Related Seizure of Property 21 USC 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS—Third Party
26 USC 7609

375 False Claims Act 376 Qui Tam (31 USC
3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act
896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

1 Original Proceeding

2 Removed from State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 Transferred from
Another District
(specify)

6 Multidistrict Litigation Transfer

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

8 Multidistrict Litigation Direct File

VI. CAUSE OF ACTION Brief description of cause:

VII. REQUESTED IN COMPLAINT:
VIII. RELATED CASE(S) IF ANY
DATE

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.

DEMAND $

(See instructions):

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes

No

DOCKET NUMBER

FOR OFFICE USE ONLY RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

JS 44 Reverse (Rev. 0 /16)
Case 1:20-cv-00600-NONE-JDP Document 1-2 Filed 04/28/20 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) (b) (c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV.

V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

 
 Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 1 of 19

1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248

5 Attorney for Plaintiffs

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual;

, )

JOHN DOE #2, an individual;

) Case No.

12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

15

vs.

A)

N )

)

) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

)

16 17

ANDREW HALL, in his official capacity as Chief of the Fresno Police Department; and MARGARET MIMS,

) ) ) )

in her official capacity as Fresno County )

18 Sheriff,

)

)

19

Defendants. )

)

20

21

22

INTRODUCTION

23

1. This action challenges the discretionary, unauthorized, and injurious policies

24 of the Fresno Police Department (“FPD”) and the Fresno County Sheriff’s Office

25 (“FCSO”) that require persons required to register as a sex offender (“Registrants”) who

26 are vulnerable to the COVID-19 virus to leave their homes and to appear in person at

27 FPD and FCSO stations for their 30-day, 90-day, or annual registration updates

28

________________________________________________________1_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 2 of 19

1 (hereinafter, “periodic updates”). The Sex Offender Registration Act, California Penal

2 Code section 290.012, does not require in-person registration for periodic updates, and

3 therefore does not authorize Defendants to subject vulnerable persons to a risk of

4 significant physical harm, perhaps death, that is universally recognized by national, state,

5 and local government – in violation of orders issued by those governments. In addition,

6 the FPD and FCSO policies that require in-person registration during periodic updates

7 infringe the life and liberty of Registrants in violation of the Fourteenth Amendment to

8 the United States Constitution, the Eighth Amendment to the United States Constitution,

9 as well as the California Sex Offender Registration Act, as more thoroughly pled herein.

10

2. This issue warrants the Court’s attention at this time because the

11 extraordinary measures now being taken to slow the spread of the COVID-19 pandemic

12 are undermined by Defendants’ requirement that Registrants continue to appear in person

13 for periodic updates. Specifically, as of March 19, 2020, the Governor of California has

14 ordered as follows: “Everyone is required to stay home except to get food, care for a

15 relative or friend, get necessary health care, or go to an essential job.”1 The Order

16 contains no exception for Registrants or for registration updates.

17

3. Nor is such an exception mandated by law. Specifically, Sex offender

18 registration is governed by the California Sex Offender Registration Act, codified at

19 Penal Code section 290, et seq. (hereinafter, “Section 290” or “Act”). The text of the Act

20 does not require Registrants to appear in person for any type of periodic update. See Cal.

21 Penal Code § 290.012(a)-(c). Instead, the Act merely requires that Registrants be

22 “Registered.” Ibid. In addition, there is no practical reason why Registrants must appear

23 in person for a periodic update because the purpose of a periodic update is to confirm

24 information that registering agencies already possess, or to provide information that can

25 be transmitted through alternative means which pose little or no risk of exposure of

26

27 1 https://covid19.ca.gov/, last visited March 23, 2020.
28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 3 of 19

1 COVID-19, such as the telephone or video conferencing apps and programs. Use of this

2 widely available technology provides law enforcement with effective methods to obtain

3 the information necessary to complete periodic updates without subjecting the public, law

4 enforcement personnel, and Registrants to potentially harmful in-person visits to

5 locations where they could either contract or spread COVID-19.

6

4. On information and belief, many registering agencies throughout California,

7 including the Los Angeles Police Department (“LAPD”), the agency with the largest

8 population of Registrants in the state, are processing periodic updates over the telephone.

9 The LAPD does not require Registrants to appear in person while the COVID-19

10 emergency measures are in place. Instead, the LAPD has placed signs, including those

11 attached hereto as Exhibit A, on the exterior of its police stations confirming that the

12 LAPD’s registration policy is currently “modified” to accommodate the COVID-19

13 emergency measures. (Exh. A.) Pursuant to the LAPD’s modified policy, Registrants

14 “are not [] allowed in the station,” and “[the LAPD] will register [them] over the phone.”

15 (Exh. A.)

16

5. Plaintiffs are for individual Registrants, Plaintiffs John Doe #1, John Doe

17 #2, John Doe #3, and John Doe #4, who are deemed vulnerable to infection by COVID-

18 19 due to their age and/or chronic medical conditions. As pled more fully below,

19 Defendants have directed all Registrants, including Plaintiffs John Doe #2, John Doe #3,

20 and John Doe #4 to appear in person for their periodic updates, and/or have refused to

21 process the registration of Registrants, such as Plaintiff John Doe #1, who do not appear

22 in person.

23

6. Defendants’ mandate that all Registrants, including those with high risk

24 factors for COVID-19, appear in person forces Plaintiffs and all Registrants into a Catch-

25 22. That is, they must either subject themselves to possible COVID-19 infection in

26 violation of a state order, or violate Section 290 by failing to appear in person, thereby

27 inviting arrest and custody in jail or prison – where the risk of COVID-19 infection is

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 4 of 19

1 much greater. Either option constitutes irreparable injury warranting injunctive relief.

2 Harris v. Bd. of Supervisors, 366 F.3d 754, 759, 766 (9th Cir. 2004). See also City of

3 Costa Mesa v. United States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020)

4 (granting TRO against placement of COVID-19 patients within city because possible

5 exposure “threat[ens] immediate and irreparable injury”). Section 290 does not require

6 Plaintiffs and all Registrants to play Russian Roulette with their lives in order to confirm

7 information already in the possession of law enforcement.

8

7. Accordingly, Plaintiffs seek a temporary restraining order, preliminary

9 injunction, and permanent injunction directing Defendants to process 30-day, 90-day, and

10 annual updates without the additional, non-statutory requirement to appear in person until

11 the threat from COVID-19 ends. Plaintiffs further seek injunctive relief as well as a

12 declaratory judgment that Registrants are not required to appear in person for periodic

13 updates.

14

JURISDICTION AND VENUE

15

8. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

16 [federal question], 1343(a) [federal question], and 2201 [declaratory judgment], as well

17 as 42 U.S.C. § 1983 [civil rights]. Specifically, jurisdiction under 28 U.S.C. §§ 1331 and

18 1343(a) exists because Defendants’ policies requiring in-person registration during the

19 COVID-19 pandemic constitute a deprivation of life and liberty within the meaning of

20 the Fourteenth Amendment in that: (i) in-person registration constitutes constructive

21 custody in which Registrants are exposed to a risk of bodily harm and death, in violation

22 of the Fourteenth Amendment; (ii) Exposing Registrants to risk of bodily harm and death

23 through in-person registration constitutes a state-created danger in violation of the

24 Fourteenth Amendment; and (iii) Exposing Registrants to risk of bodily harm and death

25 through in-person registration constitutes cruel and unusual punishment in violation of

26 the Eighth Amendment, as follows:

27 ///

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 5 of 19

1 Fourteenth Amendment: Deprivation of Life and Liberty

2

a. In-person registration at police and sheriff’s stations constitutes

3 constructive custody, thereby triggering a duty by Defendants to avoid deprivations of

4 liberty within the meaning of the Fourteenth Amendment. That is, registration during

5 periodic updates requires Registrants to be physically present in police and sheriff’s

6 stations for up to two hours, during which time Registrants are interviewed by law

7 enforcement, are subject to interrogation concerning their offenses and present

8 compliance with the law, are often photographed and finger printed, and must complete

9 five or more pages of paperwork in the presence of law enforcement.

10

b. Under Defendants’ policies, Registrants are not free to leave during

11 in-person registration because doing so would result in criminal liability pursuant to the

12 California Sex Offender Registration Act, Penal Code section 290, et seq., as well as the

13 federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

14

c. Therefore, Defendant’s policies requiring in-person registration

15 during the COVID-19 pandemic constitute a deprivation of life and liberty within the

16 meaning of the Fourteenth Amendment by subjecting Registrants, law enforcement, as

17 well as the general public, to a risk of infection by the highly contagious novel

18 coronavirus that causes the life-threatening disease COVID-19.

19 Fourteenth Amendment: State-created Danger

20

d. In the context of the COVID-19 pandemic, requiring Registrants to

21 appear in-person for periodic updates is an affirmative act which places Registrants in

22 danger of possibly lethal infection by COVID-19.

23

e. In the context of the COVID-19 pandemic, the danger in which

24 Defendants place Registrants is not a danger to which Registrants would otherwise be

25 subject, and therefore constitutes a state-created danger.

26

f. In the context of the COVID-19 pandemic, the danger in which

27 Defendants place Registrants is known and obvious at all levels of state and local

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 6 of 19

1 government, and is a danger to which Defendants are deliberately indifferent. Wood v.

2 Ostrander, 879 F.2d 583 (9th Cir. 1989); Pauluk v. Savage, 836 F.3d 1117 (9th Cir.

3 2016).

4 Eighth Amendment: Cruel and Unusual Punishment

5

g. In-person registration at local police and sheriff’s stations constitutes

6 constructive custody, thereby triggering a duty by Defendants to avoid cruel and unusual

7 punishment within the meaning of the Eighth Amendment. That is, registration during

8 periodic updates requires Registrants to be physically present in police and sheriff’s

9 stations for up to two hours, during which time Registrants are interviewed by law

10 enforcement, are subject to interrogation concerning their offenses and present

11 compliance with the law, are often photographed and finger printed, and must complete

12 five or more pages of paperwork in the presence of law enforcement.

13

h. Under Defendants’ policies, Registrants are not free to leave during

14 in-person registration because doing so would result in criminal liability pursuant to the

15 California Sex Offender Registration Act, Penal Code section 290, et seq., as well as the

16 federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

17

i. Requiring Registrants to appear in-person for periodic updates at

18 police and sheriff’s stations, and thereby exposing them to lethal infection by COVID-19,

19 constitutes cruel and unusual punishment in violation of the Eighth Amendment.

20

9. Under 28 U.S.C. § 1391(b), venue is proper in this Federal district because

21 the events giving rise to the claims have occurred and continue to occur in this district.

22

23

PARTIES

24

10. Plaintiff John Doe #1, aged 71, is a Registrant who resides within the

25 jurisdiction of the FCSO. Plaintiff John Doe #1 is required to update his registration with

26 the FCSO within five working days of his birthday pursuant to California Penal Code

27 section 290.012. Plaintiff John Doe #1 is vulnerable to infection by COVID-19 due to

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 7 of 19

1 his advanced age, as determined by state and national health care agencies. In April

2 2020, agents, officers, and officials of the FSCO told Plaintiff John Doe #1 and his

3 counsel that his periodic update will not be processed, completed, or sent to the

4 California Department of Justice unless he appears in person at his local FCSO station.

5

11. Plaintiff John Doe #2, aged 68, is a Registrant who resides within the

6 jurisdiction of the FCSO. Plaintiff John Doe #2 is required to update his registration with

7 the FCSO within five working days of his birthday pursuant to California Penal Code

8 section 290.012. Plaintiff John Doe #2 is vulnerable to infection by COVID-19 due to

9 his advanced age, as well as his chronic medical conditions that include hypertension, as

10 determined by state and national health care agencies.

11

12. Plaintiff John Doe #3 is a Registrant who resides in the City of Fresno,

12 within the jurisdiction of the FPD. Plaintiff John Doe #3 is required to update his

13 registration with the FCSO within five working days of his birthday pursuant to

14 California Penal Code section 290.012. Plaintiff John Doe #3 is vulnerable to infection

15 by COVID-19 due to chronic medical conditions that include asthma, a respiratory

16 disease, as determined by state and national health care agencies.

17

13. Plaintiff John Doe #4, age 72, is a Registrant who resides within the

18 jurisdiction of the FCSO. Plaintiff John Doe #4 is required to update his registration with

19 the FCSO within five working days of his birthday on May 22, 2020 pursuant to

20 California Penal Code section 290.012. Plaintiff John Doe #4 is vulnerable to infection

21 by COVID-19 due to his advanced age, as well as his chronic medical conditions that

22 include diabetes, as determined by state and national health care agencies. In addition,

23 Plaintiff John Doe #4 fears exposing his wife, with whom he resides, to COVID-19,

24 because she is the recent recipient of a kidney transplant, and is therefore vulnerable to

25 life-threatening infection and possible organ rejection.

26

14. Plaintiffs John Doe #1, John Doe #2, John Doe #3, and John Doe #4, are

27 collectively referred to herein as “Plaintiffs.”

28

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1

15. Defendant Andrew Hall (“Hall”) is Chief of the Fresno Police Department,

2 the registering agency responsible for implementing the Sex Offender Registration Act

3 within the City of Fresno. In his official capacity as Chief of the FPD, Defendant Hall is

4 responsible for decisions and policies challenged in this action. Defendant Hall is sued in

5 his official capacity.

6

16. Defendant Margaret Mims (“Mims”) is Sheriff of Fresno County, and the

7 chief executive of the FCSO, the registering agency responsible for implementing the Sex

8 Offender Registration Act within Fresno County. In her official capacity as Sheriff,

9 Defendant Mims is responsible for decisions and policies challenged in this action.

10 Defendant Mims is sued in her official capacity.

11

17. Defendants Price and Mims are collectively referred to herein as

12 “Defendants.”

13

FACTS

14

18. Plaintiffs reallege and incorporate herein, as though fully set forth, each and

15 every, all and inclusively, paragraphs 1 through 17.

16 The California Sex Offender Registration Act Does Not Require In-person Periodic

17 Updates

18

19. In the words of Fresno Mayor Lee Brand, “conditions of extreme peril to the

19 safety of persons and property have arisen with respect to the international COVID-19 20 pandemic.”2 Extraordinary measures have been implemented by governments at every

21 level to address this pandemic.3 On March 16, 2020, the Fresno City Council declared a

22 Local Emergency throughout the City of Fresno due to the COVID-19 pandemic.4

23

24

25
2 https://www.fresno.gov/cityclerk/wp-content/uploads/sites/9/2020/03/Proclamation.pdf
26
3 https://www.fresno.gov/news/mayor-announces-state-of-emergency-for-coronavirus/ 27 4 https://www.fresno.gov/coronavirus/
28

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1 Subsequently, the Fresno County Board of Supervisors declared a similar Local 2 Emergency the next day.5

3

20. Most notably, on March 19, 2020, the Governor of California issued an

4 order calling upon all 40 million residents of the state to remain in their homes, with 5 limited exceptions for essential travel (hereinafter, the “Order”).6 Specifically, the

6 Governor’s Order directs “all individuals living in the State of California to stay home or

7 at their place of residence except as needed to maintain continuity of operations of the

8 federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-

9 critical-infrastructure-during-covid-19.”7 Sex offender registration is not listed among

10 the exceptions to the Order, and violation of the Order can result in penalties and

11 punishment.

12

21. The Order emphasizes that persons within specific vulnerable populations

13 must self-isolate and remain in their homes. As reflected in the Order, the Center for

14 Disease Control and the California Department of Health Care Services declare the

15 following persons are at “higher risk” for contracting COVID-19:8,9

16

a. Persons aged 65 and older;

17

b. Persons with HIV/AIDS or compromised immune systems; and

18

c. Persons with chronic serious medical conditions, including diabetes,

19

asthma, and hypertension.

20

21

22
5 https://www.co.fresno.ca.us/Home/Components/News/News/545/1556?backlist=%2F
23
6 https://covid19.ca.gov/stay-home-except-for-essential-needs/
24
7 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf
25
8 https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-
26
complications.html 27 9 https://covid19.ca.gov/what-you-can-do/#symptoms-risks
28

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1

22. The California Sex Offender Registration Act does not require initial

2 registration, annual updates, 90-day updates, or 30-day updates (i.e., “periodic updates”)

3 to be in person. Instead, the Act only requires that periodic updates occur, without

4 specifying how a Registrant is to provide the required information to the registering

5 agency. E.g., Cal. Penal Code § 290.012(a) (“Beginning on his or her first birthday

6 following registration or change of address, the person shall be required to register

7 annually, within five working days of his or her birthday, to update his or her registration

8 with the entities described in subdivision (b) of Section 290. At the annual update, the

9 person shall provide current information as required on the Department of Justice annual

10 update form, including the information described in paragraphs (1) to (4), inclusive, of

11 subdivision (a) of Section 290.015. The registering agency shall give the registrant a copy

12 of the registration requirements from the Department of Justice form.”)

13

23. Notably, the Act specifies only three occasions on which in-person

14 registration or in-person updates are required. Specifically, in-person registration and

15 updates are required only for:

16

a. Transient Registrants “who move[] of out state.” Cal. Penal Code

17

§ 290.011(f) (“A transient who moves out of state shall inform, in person,

18

the chief of police in the city in which he or she is physically present, or the

19

sheriff of the county if he or she is physically present in an unincorporated

20

area or city that has no police department, within five working days, of his

21

or her move out of state.”)

22

b. Registrants who change their residence address, whether within

23

the jurisdiction in which they are currently registered or to a new

24

jurisdiction outside California. Cal. Penal Code § 290.013 (a) (“A person

25

who was last registered at a residence address pursuant to the Act who

26

changes his or her residence address, whether within the jurisdiction in

27

which he or she is currently registered or to a new jurisdiction inside or

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 11 of 19

1

outside the state, shall, in person, within five working days of the move,

2

inform the law enforcement agency or agencies with which he or she last

3

registered of the move, the new address or transient location, if known, and

4

any plans he or she has to return to California.”)

5

c. Registrants who legally change their names. Cal. Penal Code §

6

290.014 (a) (“If any person who is required to register pursuant to the Act

7

changes his or her name, the person shall inform, in person, the law

8

enforcement agency or agencies with which he or she is currently registered

9

within five working days.”)

10

24. The Legislature’s decision to expressly require in-person updates in certain

11 limited situations but no other situations confirms that the Legislature did not intend to

12 require personal appearance at initial registration, annual updates, 90-day updates, or 30-

13 day updates. See, e.g., Wilson v. City of Laguna Beach, 6 Cal. App. 4th 543, 554 (1992).

14 On information and belief, the California Department of Justice and various local

15 registering agencies are able to, and do in fact, process registrations when a Registrant

16 does not appear in person, such as when a Registrant is hospitalized or otherwise

17 incapacitated. Accordingly, Defendants have, but unlawfully refuse to exercise,

18 discretion to process periodic updates without requiring Registrants to appear in person.

19 Defendants’ refusal places Registrants in danger of exposure to COVID-19.

20 Defendants’ Discretionary In-person Registration Requirement Threatens

21 Vulnerable Registrants and Forces Them to Violate State and Local COVID-19-

22 Related Orders

23

25. Plaintiffs are vulnerable to COVID-19 infection because of their age, and/or

24 certain chronic medical conditions and co-morbidities that are known to be associated

25 with fatalities in COVID-19 patients such as asthma and hypertension. In addition,

26 Plaintiffs are currently subject to the Governor of California’s Order, which requires

27 them to remain at home except for “essential” travel pursuant to the terms of that Order.

28

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1

26. On information and belief, the locations at which Registrants are required to

2 register in person within the jurisdiction of the FPD and the FCSO are often unsanitary,

3 crowded, and do not allow for “social distancing” and other preventative measures

4 mandated by state and local government. In addition, Registrants are forced to enter, sit

5 in, touch, and otherwise interact with unsanitary, and often narrow and cramped, physical

6 environments while registering. Those environments, as well as, the registration

7 procedures employed by Defendants require repeated and prolonged contact with

8 potentially virus-ridden surfaces and objects such as countertops, clip boards, various

9 papers, pens, pen chains, ink pads, chairs, door handles, water fountains, and Livescan

10 and other fingerprinting machine. These unsanitary surfaces are touched by many other

11 Registrants, as well as other visitors to the station and employees of the registering

12 agencies.

13

27. Plaintiffs are gravely afraid of contracting COVID-19 should they be forced

14 to register in person at FPD and FCSO stations. As one District Court recognized,

15

COVID-19 is a type of highly contagious novel coronavirus that is thought

16

to be “spreading easily and sustainably in the community.” Experts believe

that it can live on some surfaces for up to 72 hours after contact with an

17

infected person. A simple sneeze or brush of the face without washing your

18

hands is now known to easily spread the virus, which generally causes fever,

cough, and shortness of breath. How Coronavirus Spreads, Centers for

19

Disease Control[,] at 15.

20 Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *10-*12 (M.D.Pa. Mar. 31,

21 2020). The County of Fresno has likewise warned that COVID-19 “is a contagious

22 disease that takes advantage of close contact and poor hygiene, so please do your

23 part in maintaining at least six feet of distance with your peers . . . . This health

24 crisis will require everyone to play a role during this challenging time.”10

25

26

27 10 https://www.co.fresno.ca.us/departments/public-health/covid-19
28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 13 of 19

1

28. Many courts have recognized that placing persons in close proximity to

2 potentially infected persons and surfaces constitutes a risk of harm that warrants

3 injunctive relief. E.g., Castillo v. Barr, No. 20CV00605-TJH, 2020 U.S. Dist. LEXIS

4 54425, at *4 (C.D. Cal. Mar. 27, 2020) (“Coronavirus is spread between people who are

5 in close contact . . . through respiratory droplets produced when an infected person

6 coughs or sneezes. . . . Moreover, studies have established that the coronavirus can

7 survive up to three days on various surfaces.”). For this reason, the Ninth Circuit sua

8 sponte ordered the immediate release of an immigration detainee with a pending petition

9 for review of her removal order “[i]n light of the rapidly escalating public health crisis,

10 which public health authorities predict will especially impact immigration detention

11 centers.” Xochihua-Jaimes v. Barr, No. 18-cv-71460, 2020 U.S. App. LEXIS 9069, (9th

12 Cir. Mar. 24, 2020). See also Castillo, 2020 U.S. Dist. LEXIS 54425 (ordering release of

13 certain immigration detainees due to the COVID-19 pandemic). Although in-person

14 registration involves shorter durations of time than other custodial settings, that

15 difference is not significant within the context of the COVID-19 pandemic because

16 COVID-19 infection occurs quickly, and transmission can easily take place within the

17 time period that Registrants are present in person at police and sheriff’s stations. E.g.,

18 Ortuño v. Jennings, No. 3:20-cv-02064, 2020 U.S. Dist. LEXIS 62030, at *6 (N.D. Cal.

19 Apr. 8, 2020) (rejecting argument that threat of infection by COVID-19 is speculative

20 because such infections “are rapidly increasing in the United States, including California,

21 and, when introduced into a confined space, such as a nursing home, a cruise ship, and,

22 recently, a naval aircraft carrier, it can rapidly spread. Indeed, it has quickly spread in a

23 number of jails and prisons”); Perez v. Wolf, 2020 U.S. Dist. LEXIS 65450, *35 (N.D.

24 Cal. Apr. 14, 2020) (“The mere fact that no cases have been reported in the Aurora

25 Facility is irrelevant – it is not a matter of if COVID-19 will enter the facility, but when it

26 will be detected there.”) See also Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It

27 would be odd to deny an injunction to inmates who plainly proved an unsafe, life-

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 14 of 19

1 threatening condition in their prison on the ground that nothing yet had happened to

2 them.”)

3

29. On or about April 6, 2020, Plaintiff John Doe #3, through counsel,

4 telephoned the FPD to inquire whether Plaintiffs and other Registrants are required to

5 appear in person for periodic updates despite the Governor’s Order as well as the

6 common-sense directives of health care authorities. An FPD registration official

7 confirmed that all Registrants are required to appear in person for periodic updates,

8 regardless of their vulnerability due to one or more high-risk COVID-19 factors.

9

30. On or about April 15, 2020, Plaintiffs John Doe #1 and John Doe #2,

10 through counsel, telephoned the FCSO to inquire whether Plaintiffs and other Registrants

11 are required to appear in person for periodic updates despite the Governor’s Order as well

12 as the common-sense directives of health care authorities. An FCSO registration official

13 confirmed that all Registrants are required to appear in person for periodic updates,

14 regardless of their vulnerability due to one or more high risk COVID-19 factors.

15

31. In addition to being discretionary and neither required nor authorized by

16 Penal Code Section 290, Defendants’ ongoing decision to require in-person registration

17 for periodic updates forces Plaintiffs and all Registrants to contravene the public safety

18 measures imposed by state and local government upon all residents of California,

19 including the current Order by the Governor of California. Defendants’ decision

20 requiring in-person registration therefore threatens both vulnerable Registrants as well as

21 the larger population with which those Registrants interact, including the public, law

22 enforcement personnel, and their families.

23

32. On information and belief, there are registering agencies throughout

24 California, including the Los Angeles Police Department (LAPD), the agency with the

25 largest population of Registrants in the state, that are currently processing periodic

26 updates over the telephone. That is, the LAPD has completely stopped requiring

27 Registrants to register in person while the COVID-19 emergency measures are in place.

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 15 of 19

1 Instead, the LAPD has placed signs, including those attached hereto as Exhibit A, on the

2 exterior of its police stations confirming that the LAPD’s registration policy is currently

3 “modified” to accommodate the COVID-19 emergency measures. (Exh. A.) Pursuant to

4 the LAPD’s modified policy, Registrants “are not [] allowed in the station,” and “[the

5 LAPD] will register [them] over the phone.” (Exh. A.)

6

7

FIRST CLAIM

8

(42 U.S.C. § 1983 – Fourteenth Amendment – Due Process)

9

33. Plaintiffs re-allege paragraphs 1 through 32 of this Complaint as though

10 fully set forth herein.

11

34. Neither the California Sex Offender Registration Act, the federal Sex

12 Offender Registration and Notification Act, nor any other provision of law requires

13 Registrants to appear in person for periodic updates pursuant to California Penal Code

14 section 290.012.

15

35. Plaintiffs are required by Defendants to appear in person for periodic

16 updates pursuant to the policies challenged in this action. The requirement of in-person

17 registration place Registrants in constructive custody, thereby triggering Defendant’s

18 duty to prevent restraints upon or injury to Plaintiffs’ life and liberty pursuant to the

19 Fourteenth Amendment. That is, registration during periodic updates requires the

20 Registrant to be physically present in police and sheriff’s stations for up to two hours,

21 during which time Registrants are interviewed by law enforcement, interrogated

22 regarding their offense and their present compliance with the law, frequently

23 photographed and finger printed, and must complete five or more pages of paperwork in

24 the presence of law enforcement. Under the policies of Defendants challenged herein,

25 Registrants are not free to leave during in-person registration because doing so would

26 result in criminal liability pursuant to the California Sex Offender Registration Act, Penal

27

28

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Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 16 of 19

1 Code section 290, et seq., as well as the federal Sex Offender Registration and

2 Notification Act, 34 U.S.C. § 20901, et seq.

3

36. The state violates the rights of individuals when it subjects them to risk of

4 physical harm and disease during required interactions with law enforcement. E.g.,

5 Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It would be odd to deny an injunction to

6 inmates who plainly proved an unsafe, life-threatening condition in their prison on the

7 ground that nothing yet had happened to them.”). By virtue of their age and/or chronic

8 medical conditions including asthma and hypertension, Plaintiffs face an elevated risk of

9 death due to infection by COVID-19. Defendants’ policies requiring in-person

10 registration during the COVID-19 pandemic constitute a deprivation of life and liberty

11 within the meaning of the Fourteenth Amendment by subjecting Plaintiffs and

12 Registrants, as well law enforcement and the general public, to a risk of infection by a

13 highly contagious and potentially deadly disease.

14

37. Furthermore, in the context of the COVID-19 pandemic, requiring

15 Registrants to appear in-person for periodic updates is an affirmative act which places

16 Plaintiffs and all Registrants in danger of possibly lethal infection by COVID-19, a

17 danger to which they would not otherwise be subject, a danger which is known and

18 obvious at all levels of state and local government, and to which Defendants are

19 deliberately indifferent. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989); Pauluk v.

20 Savage, 836 F.3d 1117 (9th Cir. 2016). The risk of infection from COVID-19 in

21 custodial settings has been noted by District Courts, including one which noted that law

22 enforcement “[f]acilities are plainly not equipped to protect Petitioners from a potentially

23 fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious,

24 should we fail to afford relief to Petitioners we will be a party to an unconscionable and

25 possibly barbaric result.” Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459, at *27-*28

26 (M.D. Pa. Mar. 31, 2020)

27

28

_______________________________________________________1_6_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 17 of 19

1

38. Defendants commit these unconstitutional acts under color of authority of

2 law. Plaintiffs face the immediate threat of irreparable injury, for which no legal remedy

3 will suffice, by being deprived of their Fourteenth Amendment rights. Costa Mesa v.

4 United States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020) (granting TRO

5 against placement of COVID-19 patients within city because possible exposure

6 “threat[ens] immediate and irreparable injury”). Thakker, 2020 U.S. Dist. LEXIS 59459,

7 at *21 (“Indeed, courts have even specifically held that COVID-19 constitutes an

8 irreparable harm that supports the grant of a TRO.”)

9

SECOND CLAIM

10

(42 U.S.C. § 1983 – Eighth Amendment – Cruel and Unusual Punishment)

11

39. Plaintiff re-alleges paragraphs 1 through 38 of this Complaint as though

12 fully set forth herein.

13

40. Plaintiffs are required by Defendants to appear in person for periodic

14 updates pursuant to the policies challenged in this action. The requirement of in-person

15 registration places Plaintiffs and all Registrants in constructive custody, thereby

16 triggering Defendant’s duty to prevent cruel and unusual punishment pursuant to the

17 Eighth Amendment. That is, registration during a periodic update requires the Registrant

18 to be physically present in police and sheriff’s stations for up to two hours, during which

19 time Registrants are interviewed by law enforcement, interrogated regarding their offense

20 and their present compliance with the law, frequently photographed and finger printed,

21 and must complete five or more pages of paperwork in the presence of law enforcement.

22 Under the policies of Defendants challenged herein, Registrants are not free to leave

23 during in-person registration because doing so would result in criminal liability pursuant

24 to the California Sex Offender Registration Act, Penal Code section 290, et seq., as well

25 as the federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901, et seq.

26

41. COVID-19 is a highly infectious and potentially lethal disease that is easily

27 transmitted in the community through contact with infected persons, or through contact

28

_______________________________________________________1_7_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 18 of 19

1 with surfaces on which the virus can live for days or weeks. Persons infected with

2 COVID-19 can transmit the coronavirus to their family members and to the general

3 public without knowing they are infected. Infection by COVID-19 can produce severe

4 and long-lasting respiratory symptoms that require hospitalization. Requiring Registrants

5 to appear in person for periodic updates, and thereby subjecting them to possibly lethal

6 infection by COVID-19, and rendering them carriers of the disease that may potentially

7 infect their family members and anyone in the general public, constitutes cruel and

8 unusual punishment in violation of the Eighth Amendment.

9

THIRD CLAIM

10

(28 U.S.C. §2201 – Declaratory Relief)

11

42. Plaintiffs re-allege paragraphs 1 through 41 of this Complaint as though

12 fully set forth herein.

13

43. An actual controversy exists between Plaintiffs and Defendants regarding

14 the constitutionality of the policies of Defendants challenged in this action, as well as the

15 interpretation of California Penal Code section 290.012. Specifically, the California Sex

16 Offender Registration Act neither requires nor authorizes 30-day, 90-day, or annual

17 registration updates to be completed in person. Therefore, Defendants lack authority to

18 require Registrants to appear in person for periodic updates pursuant to California Penal

19 Code section 290.012.

20

44. Plaintiffs are informed and believe and thereon allege that Defendants, as

21 well as their deputies, officials, officers, agents, and employees, have failed to comply

22 and continue to fail to comply with the law, and have abused and are continuing to abuse

23 their discretion under the law, by requiring Registrants in vulnerable populations as

24 defined by national and state health care authorities to appear in person for their periodic

25 registration updates amidst the COVID-19 pandemic, as pled herein

26

45. Plaintiffs therefore seek a declaration of their rights under California and

27 federal law, as well as a declaration of Defendants’ duties under the Sex Offender

28

_______________________________________________________1_8_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 5 Filed 05/04/20 Page 19 of 19

1 Registration Act, California Penal Code section 290, et seq., and of the scope of

2 Defendants’ discretion under that Act.

3

PRAYER FOR RELIEF

4

Based on the foregoing claims, Plaintiffs seek judgment against Defendants as

5 follows:

6

a. That Defendants be presently and permanently enjoined from requiring

7 persons required to register as a sex offender from appearing in person for 30-day, 90-

8 day, and annual updates (“periodic updates”) pursuant to California Penal Code sections

9 290.011 and 290.012 until the threat of COVID-19 has ended;

10

b. For a judgment declaring that California Penal Code sections 290.011 and

11 290.012 and other applicable law do not require persons required to register as a sex

12 offender to appear in person to complete periodic updates;

13

c. That Plaintiffs recover from the Defendants, under 42 U.S.C. § 1988, all of

14 Plaintiffs’ reasonable attorneys’ fees, costs and expenses of this litigation; and

15

d. That Plaintiffs recover such relief as the Court deems just and proper.

16

17

18 Dated: May 4, 2020
19

LAW OFFICE OF JANICE M. BELLUCCI

20

By:

/s/ Janice M. Bellucci

Janice M. Bellucci

21

Attorney for Plaintiffs

22

23

24

25

26

27

28

_______________________________________________________1_9_________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 5-1 Filed 05/04/20 Page 1 of 2
EXHIBIT A

Case 1:20-cv-00600-NONE-JDP Document 5-1 Filed 05/04/20 Page 2 of 2

 
 Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 1 of 8

1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248 5 Attorney for Plaintiffs
6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

15

vs.

Case No.: 1:20-cv-00600-NONE-JDP PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION [With TRO Checklist Attached]

16 17 18

ANDREW HALL, in his official capacity as Chief of the Fresno Police Department; and MARGARET MIMS, in her official capacity as Fresno County Sheriff,
Defendants.

Hearing date: May 19, 2020 Time: 9:30 a.m. Courtroom: 4
2500 Tulare Street Fresno, CA

19

20

21

22

In light of the global COVID-19 pandemic and the stay-at-home orders issued by

23 state and local governments to protect the public, and pursuant to Federal Rule of Civil

24 Procedure 65 and Local Rule 231, Plaintiffs John Doe #1 and John Doe #4 (“Plaintiffs”)

25 hereby respectfully move for a Temporary Restraining Order (“TRO”). Specifically,

26 Plaintiffs seek to enjoin Defendant Margaret Mims, Fresno County Sheriff, as well as

27 any her officers, deputies, employees, or agents responsible for the registration of

28

________________________________________________________1_________________________________________________ PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 2 of 8

1 persons convicted of sex offenses pursuant to Penal Code section 290, et. seq.

2 (“Registrants”) from requiring Registrants to appear in person to register at police and

3 sheriff’s stations for 30-day, 90-day, and annual updates pursuant to California Penal

4 Code section 290.012, until a hearing on a preliminary injunction can be held.

5

Temporary relief from Defendant’s in-person registration requirement is

6 warranted during the COVID-19 pandemic because continued in-person registration

7 undermines public safety measures being implemented in response to the pandemic.

8 Since “[t]here is no specific treatment, vaccine or cure for COVID-19,” the only means

9 to slow its spread are hygienic practices such as hand washing, as well as “social

10 distancing” and the avoidance of gatherings. Castillo v. Barr, No. 20CV00605-TJH,

11 2020 U.S. Dist. LEXIS 54425, at *5-*6 (C.D. Cal. March 27, 2020).

12

On March 19, 2020, the Governor of California issued an order calling upon all 40

13 million residents of the State of California to remain in their homes, with limited

14 exceptions for essential travel (hereinafter, the “Order”).1 The Order directs “all

15 individuals living in the State of California to stay home or at their place of residence

16 except as needed to maintain continuity of operations of the federal critical infrastructure

17 sectors.” Further, the Order emphasizes that persons within specified vulnerable

18 populations must self-isolate and remain in their homes. The Center for Disease Control

19 and the California Department of Health Care Services have subsequently declared that

20 persons are at “higher risk” for contracting COVID-19 if they are aged 65 and older;

21 suffer from compromised immune systems; or suffer from chronic serious medical

22 conditions, including asthma, diabetes, lung diseases, and hypertension.2,3

23

24
1 https://covid19.ca.gov/stay-home-except-for-essential-needs/
25
2 https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-
26
complications.html 27 3 https://covid19.ca.gov/what-you-can-do/#symptoms-risks
28

________________________________________________________2_________________________________________________ PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 3 of 8

1

Plaintiffs are elderly Registrants who reside within the jurisdiction of the Fresno

2 County Sheriff’s Office and are required to register with Defendant and the Fresno

3 County Sheriff’s Office for their periodic updates. As explained in their accompanying

4 declarations, Plaintiffs are vulnerable to infection by COVID-19 due to their age and

5 other risk factors, including diabetes, as defined by state and local health officials.

6

Specifically, Plaintiff John Doe #4, age 71, suffers from diabetes, among other

7 ailments. See Exh. A to TRO Memo, Decl. of Plaintiff John Doe #4, ¶4, filed

8 concurrently herewith. In addition, Plaintiff John Doe #4’s wife, with whom he resides,

9 suffers from a compromised immune system as a result of a kidney transplant and the

10 anti-organ rejection medication she is required to take. Plaintiff John Doe #4 is required

11 to update his registration with Defendant on or before May 29, 2020, and is gravely

12 afraid to register in person, for fear of infecting himself and his wife.

13

Plaintiff John Doe #1, age 71, suffers from diabetes and cirrhosis of the liver. Id.,

14 Exh. B, Decl. of Plaintiff John Doe #1, ¶2. In advance of his birthday on March 31,

15 Plaintiff John Doe #1 telephoned the Fresno County Sheriff’s Office and expressed his

16 concern about registering in person for his annual update. Id. ¶4. Although the

17 registration officer initially stated that Plaintiff John Doe #1 did not need to personally

18 appear for his registration appointment, the Fresno County Sheriff’s Office has not

19 timely processed Plaintiff John Doe #1’s registration paperwork. As a result, law

20 enforcement databases, as well as the public Megan’s Law Website, list Plaintiff John

21 Doe #1 as “in violation” of the registration statute, Penal Code section 290.012,

22 threatening Plaintiff John Doe #1 with immanent arrest and prosecution. Id. ¶¶4-10.

23

The threat of infection from disease from COVID-19 is irreparable and

24 remediable by injunction. See Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It would

25 be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening

26 condition in their prison on the ground that nothing yet had happened to them.”); Harris

27 v. Bd. of Supervisors, 366 F.3d 754, 759, 766 (9th Cir. 2004). In fact, one court recently

28

________________________________________________________3_________________________________________________ PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 4 of 8

1 issued a TRO prohibiting the federal government from transferring COVID-19 patients

2 to a facility within the City of Costa Mesa on the grounds that the mere possibility of

3 exposure to residents in the community constitutes irreparable injury. City of Costa

4 Mesa v. United States, No. 8:20-cv-00368-JLS, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal.

5 Feb. 21, 2020).

6

In addition, several other courts have enjoined civil detention orders due to the

7 possibility of COVID-19 spreading when the government forces groups to congregate,

8 based in part upon the ease with which COVID-19 spreads. E.g., Castillo v. Barr, No.

9 20CV00605-TJH, 2020 U.S. Dist. LEXIS 54425, at *4 (C.D. Cal. March 27, 2020)

10 (“Coronavirus is spread between people who are in close contact . . . through respiratory

11 droplets produced when an infected person coughs or sneezes. . . . Moreover, studies

12 have established that the coronavirus can survive up to three days on various surfaces.”

13 (citing cases)); see also Thakker v. Doll, No. 1:20-cv-480, 2020 U.S. Dist. LEXIS

14 59459, at *23 (M.D. Pa. Mar. 31, 2020).

15

In this matter, the threat of COVID-19 infection to Plaintiffs and other Registrants

16 is similarly acute in that Registrants are forced by Defendant to occupy crowded

17 conditions in Sheriff’s stations where the recommended social distancing and sanitation

18 measures cannot be observed. Plaintiffs contend that, in the context of the COVID-19

19 pandemic, and in light of the acute risk of harm to Plaintiffs from that infection,

20 Defendant’s continued requirement that Plaintiffs and all Registrants appear in person

21 for periodic updates violates the Due Process Clause of the Fourteenth Amendment, as

22 well as California law, codified in Section 290.012.

23

This Motion (with “Temporary Restraining Order (TRO) Checklist” attached) is

24 based upon the following documents filed concurrently herewith, or as otherwise

25 indicated:

26

1. First Amended Complaint for Declaratory and Injunctive Relief filed

27

on May 4 2020 (ECF 5)

28

________________________________________________________4_________________________________________________ PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 5 of 8

1

2. Plaintiffs’ Memorandum of Points and Authorities in Support of

2

Motion for Temporary Restraining Order and OSC re: Preliminary

3

Injunction (with Exhibits A through G attached)

4

3. Plaintiffs’ Affidavit of Notice to Defendant of Motion for Temporary

5

Restraining Order (with email attached)

6

4. Plaintiffs’ Affidavit in Support of Irreparable Injury

7

5. [Proposed] Temporary Restraining Order

8

6. [Proposed] Order Setting Hearing on Motion for Preliminary

9

Injunction

10

11
12 Dated: May 13, 2020
13 14 15 16

Respectfully Submitted, LAW OFFICES OF JANICE M. BELLUCCI
By: /s/ Janice M. Bellucci Janice M. Bellucci Attorney for Plaintiffs

17

18

19

20

21

22

23

24

25

26

27

28

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Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 6 of 8

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 7 of 8

Case 1:20-cv-00600-NONE-JDP Document 8 Filed 05/13/20 Page 8 of 8

1

PROOF OF SERVICE

2

I, the undersigned, certify and declare that I am over 18 years of age and not a

3 party to the above-captioned action. Pursuant to the Federal Rule of Civil Procedure 5

4 and Local Rule 135, on May 13, 2020, I served a true copy of the following documents

5 via email on all parties, as follows:

6 Document(s):

7

1. Plaintiffs’ Motion for Temporary Restraining Order and Order to

8

Show Cause re: Preliminary Injunction 2. Plaintiffs’ Memorandum of Points and Authorities in Support of

9

Motion for Temporary Restraining Order and OSC re: Preliminary

10

Injunction (with Exhibits A through G attached)

3. Plaintiffs’ Affidavit of Notice to Defendant of Motion for Temporary

11

Restraining Order (with email attached)

12

4. Plaintiffs’ Affidavit in Support of Irreparable Injury

5. [Proposed] Temporary Restraining Order

13

6. [Proposed] Order Setting Hearing on Motion for Preliminary

14

Injunction

15 Service Addresses:

16

Scott Hawkins (schawkins@fresnocountyca.gov)

17

Deputy County Counsel, County of Fresno Counsel for Defendant Margaret Mimms

18

19

Douglas Sloan (Douglas.Sloan@fresno.gov) Francine Kanne (Francine.Kanne@fresno.gov)

20

Fresno City Attorney’s Office

21

Counsel for Defendant Andrew Hall

22

23

I declare under penalty of perjury under the laws of the State of California that the

24 foregoing is true and correct. Executed this 13th day of May, 2020, in Sacramento, CA.

25

_______/s/ Janice M. Bellucci_______

26

Janice M. Bellucci

27

28

________________________________________________________6_________________________________________________ PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 1 of 55

1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248

5 Attorney for Plaintiffs

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

15

vs.

Case No.: 1:20-cv-00600-NONE-JDP
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

16 ANDREW HALL, in his official capacity as Chief of the Fresno Police Department; and
17 MARGARET MIMS, in her official capacity as Fresno County Sheriff,
18 Defendants.
19

Hearing date: May 29, 2020

20

21

22

23

24

25

26

27

28
_________________________________________________________________________________________________________ PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 2 of 55

1 TABLE OF CONTENTS

2

TABLE OF AUTHORITIES ...........................................................................................................iii

3 MEMORANDUM OF POINTS AND AUTHORITIES................................................................. 1
4

5

I. INTRODUCTION AND SUMMARY .................................................................................... 1

6

II. BACKGROUND ....................................................................................................................... 4

7

A. THE COVID-19 PANDEMIC AND THE GOVERNOR’S STAY-AT-HOME ORDER ..................... 4

8

B. PLAINTIFFS AND OTHER REGISTRANTS ARE A LARGE AND

9

VULNERABLE POPULATION................................................................................................. 4

10

C. IN-PERSON REGISTRATION EXPOSES REGISTRANTS,

11

LAW ENFORCEMENT PERSONNEL, AND THE GENERAL PUBLIC TO

12

INCREASED RISK FROM COVID-19 .................................................................................... 6

13

III. STANDARD FOR RELIEF FOR TRO APPLICATIONS AND

14

PRELIMINARY INJUNCTIONS ........................................................................................... 6

15

IV. ANALYSIS ................................................................................................................................ 7

16

A. FACTOR 1: PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

17

OF THEIR FOURTEENTH AMENDMENT AND STATE LAW CLAIMS ......................................... 7

18

1. Plaintiffs Seek Temporary Relief Concerning a Limited Aspect

19

of the Registration Process ....................................................................................... 7

20

a. The Act Distinguishes Between Changes in Residence and Periodic Updates ........ 8

21

b. Periodic Updates are of Diminished Importance Under the Act.............................. 8

22

c. The Act Does Not Demand that Periodic Updates Occur in Person ........................ 9

23

2. The Governor of California Has Expressly Authorized “Remote” Registration ... 10

24

3. Defendant’s In-person Registration Policy Violates the Fourteenth

25

Amendment Under the State-Created Danger Doctrine......................................... 11

26

4. Defendant’s In-person Registration Policy Violates the Fourteenth

27

Amendment’s Prohibition on Irrational and Arbitrary Action ............................... 13

28
________________________________________________________i _________________________________________________ PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 3 of 55

1

5. In-person Registration for Periodic Updates is Not Implied by the Act................. 14

2

B. FACTOR 2: IRREPARABLE HARM AND INADEQUACY OF LEGAL REMEDY ......................... 15

3

C. FACTORS 3 AND 4: THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST .................... 17

4

V. PLAINTIFFS RESPECTFULLY REQUEST THAT THE COURT

5

WAIVE THE BOND REQUIREMENT FOR THIS MOTION......................................... 19

6

VI. CONCLUSION ....................................................................................................................... 20

7

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Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 4 of 55

1 2 Cases

TABLE OF AUTHORITIES

3 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................ 7

4 Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir.1999)....................................................................... 19

5 Castillo v. Barr, No. 20CV00605-TJH, 2020 U.S. Dist. LEXIS 54425

6 (C.D. Cal. March 27, 2020) .............................................................................................................. 4, 16

7 City of Costa Mesa v. United States, 2020 U.S. Dist. LEXIS 33650

8 (C.D. Cal. Feb. 21, 2020).................................................................................................................. 3, 16
9 Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012) .................................................................................... 17
10 Ford Motor Co. v. County of Tulare, 145 Cal. App. 3d 688 (1983)........................................................ 15
11 Harris v. Bd. of Supervisors, 366 F.3d 754 (9th Cir. 2004)................................................................. 3, 16 12 Helling v. McKinney, 509 U.S. 25 (1994)............................................................................................... 16 13 Holmes v. Jones, 83 Cal. App. 4th 882 (2000) ........................................................................................ 15
In re Taylor, 60 Cal. 4th 1019 (Cal. 2015)........................................................................................... 3, 13 14
Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) .............................................................................. 19 15
Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881, 16
2000 WL 1808426 (C.D. Cal. Dec. 5, 2000) ........................................................................................ 20 17
Kaur v. U.S. Dep’t of Homeland Security, No. 2:20-cv-03172, 18
2020 U.S. Dist. LEXIS 71228 (C.D. Cal. Apr. 22, 2020) .................................................................... 17 19 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ............................................................... 17 20 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008)........................................................................... 7 21 Lavan v. City of Los Angeles, No. 11-cv-2874,
22 2011 U.S. Dist. LEXIS 46030 (C.D. Cal. April 22, 2011) ................................................................... 19
23 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co.,
24 887 F. Supp. 1320 (N.D. Cal. 1995) ....................................................................................................... 6

25 Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082 (9th Cir. 2000) .............................................. 11

26 Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)................................................................................ 3, 11 27 People v. Hofsheier, 37 Cal. 4th 1185 (2006)............................................................................................ 8

28
_______________________________________________________i_ii_________________________________________________ PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 5 of 55
1 Plyler v. Doe, 457 U.S. 202 (1982).......................................................................................................... 13
2 Romer v. Evans, 517 U.S. 620 (1996) ..................................................................................................... 13
3 Thakker v. Doll, 2020 U.S. Dist. LEXIS 59459 (M.D. Pa. Mar. 31, 2020) ...................................... 16, 17 4 United States v. Rodriguez, No. 03-cr-271, 5 2020 U.S. Dist. LEXIS 58718 (E.D.Pa. April 1, 2020) .......................................................................... 5 6 Valle Del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ............................................................ 3, 16 7 Walt Disney Parks & Resorts U.S., Inc. v. Superior Court, 21 Cal. App. 5th 872 (2018) .................. 2, 14
Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) ....................................................................................... 11 8
Wilson v. City of Laguna Beach, 6 Cal. App. 4th 543 (1992)........................................................... 14, 15 9
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ........................................................................ 7 10
Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) ............................................................................... 3, 11 11 12 Statutes
Cal. Penal Code § 209.011............................................................................................................... 7, 8, 10 13
Cal. Penal Code § 290.012................................................................................................................. 2, 8, 9 14
Cal. Penal Code § 290.013........................................................................................................... 2, 7, 8, 10 15
Cal. Penal Code § 290.014................................................................................................................... 8, 10 16 17 Rules
Fed. R. Civ. P. 65 ..................................................................................................................................... 19 18
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Case 1:20-cv-00600-NONE-JDP Document 8-1 Filed 05/13/20 Page 6 of 55

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Plaintiffs John Doe #1 and John Doe #4 respectfully submit this Memorandum of Points and

3 Authorities in support of their Ex Parte Application for Temporary Restraining Order (“TRO”) against

4 Defendant Margaret Mims, Fresno County Sheriff (“Defendant”), and the officials with in the Fresno

5 County Sheriff’s Office (“FCSO”) responsible for the registration of sex offenders pursuant to the

6 California Sex Offender Registration Act, Cal. Penal Code section 290, et seq., (the “Act”).

7 I. INTRODUCTION AND SUMMARY

8

This action challenges the unauthorized and injurious decision by Defendant to require persons

9 required to register a sex offender (“Registrants”) who are vulnerable to COVID-19 to leave the safety

10 of their homes in order and to appear in person at local registering agencies such as the FCSO for their

11 30-day, 90-day, or annual registration updates pursuant to Section 290.012 of the Act (hereinafter,

12 “periodic updates”). A TRO is necessary because Petitioner John Doe #4 must register no later than

13 May 29, 2020, five working days after his birthday on May 22, 2020, which is well before a noticed

14 motion could be brought in this Court. Exh. A ¶7 (Decl. of John Doe #4). In addition, Plaintiff John

15 Doe #1’s periodic update was due no later than April 7, 2020, but Defendant has refused to process his

16 registration until Plaintiff John Doe #1 appears in person to register. Exh. B ¶¶4-10 (Decl. of John Doe

17 #1). As a result, Plaintiff John Doe #1, along with hundreds of other Registrants in Fresno County, are

18 listed as “in violation” in law enforcement databases, threatening them with immanent arrest and

19 prosecution. Id.

20

Consistent with the Act, periodic updates can be completed through means that do not require

21 vulnerable persons to subject themselves, during in-person registration, to a significant risk of harm –

22 infection by the coronavirus – which is universally recognized by national, state, and local governments

23 – in violation of orders issued by those same governments. The fact that the Act does not require in-

24 person registration was confirmed in an Executive Order issued by California Governor Gavin Newsom

25 on May 8, 2020 “encouraging” local registering agencies “to adopt telephonic, remote, or other

26 procedures for registration” in light of the COVID-19 pandemic. Exh. C, at 5 ¶15. The Executive

27 Order also suspends for 60 days the need to obtain a Registrants’ fingerprints or photographs during the

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1 registration process. Exh. C, at 5 ¶15(a). As of the date of this filing, Defendant has acted
2 inconsistently with the Governor’s Executive Order by requiring in-person registration.
3 This issue warrants the Court’s attention at this time because the extraordinary measures now
4 being taken by governments at every level to slow the spread of the coronavirus are undermined by
5 requiring Plaintiffs and all Registrants to appear in person for periodic updates. Specifically, since
6 March 19, 2020, the Governor of California has ordered as follows: “Everyone is required to stay
7 home except to get food, care for a relative or friend, get necessary health care, or go to an essential
8 job.”1 The Order contains no exception for Registrants, as a whole, or for their in-person periodic
9 registration updates.
10 Nor is such an exception mandated or permitted by law. That is because, although the Act
11 requires in-person registration for certain events, such as reporting a change of residence (see Penal
12 Code § 290.013 (a)), the Act does not require in-person registration for periodic updates. Id. §
13 290.012(a)-(c). Under longstanding principles of statutory interpretation, the Legislature’s omission of
14 an in-person registration requirement for periodic updates confirms that Defendant may not impose that
15 requirement upon Registrants. E.g., Walt Disney Parks & Resorts U.S., Inc. v. Superior Court, 21 Cal.
16 App. 5th 872, 879 (2018) (citing cases).
17 In addition, there is no practical reason why Plaintiffs and all Registrants must appear in person
18 for periodic updates because periodic updates are for the sole purposes of confirming information that
19 registering agencies already possess (e.g., current residence addresses), or providing information that
20 can be transmitted through alternative means which eliminate the risk of infection by COVID-19, such
21 as the telephone or email. As noted above, the Governor’s Executive Order states the same, and
22 registering agencies throughout California, including the Los Angeles Police Department (“LAPD”),
23 the San Francisco Police Department, and the Murrieta Police Department, have already suspended in-
24 person registration and are now processing periodic updates only by telephone or alternate means. See
25 Exhs. D-F (signs and documents currently posted in each jurisdiction).
26
27 1 https://covid19.ca.gov/, last visited March 23, 2020.
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1 Defendant’s policies requiring in-person registration during the COVID-19 pandemic constitute
2 a deprivation of life and liberty within the meaning of the Fourteenth Amendment by subjecting
3 Registrants, law enforcement, as well as the general public, to a risk of infection by the highly
4 contagious novel coronavirus that causes the life-threatening disease COVID-19. Specifically,
5 requiring Plaintiffs John Doe #1 and John Doe #4 to appear in-person for periodic updates during a
6 pandemic is an affirmative act which places them and all Registrants in danger of possibly lethal
7 infection, a danger to which Registrants would not otherwise be subject, and which is a known and
8 obvious to Defendant. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989); Pauluk v. Savage, 836 F.3d
9 1117 (9th Cir. 2016). In addition, in light of the Governor’s Executive Order that encourages local
10 agencies to permit remote registration, Defendant’s in-person registration requirement is an arbitrary
11 act in violation of the constitutional guarantee of Due Process. See In re Taylor, 60 Cal. 4th 1019, 1038
12 (Cal. 2015). Finally, Defendant’s policy violates California state law by exceeding the FCSO’s
13 authority under Section 290.012.
14 It must be emphasized that mandating all Registrants to appear in person to register, including
15 those with high risk factors for COVID-19 such as Plaintiffs, puts Registrants into a Catch-22. That is,
16 they must either subject themselves to possible COVID-19 infection, or violate Section 290 by failing
17 to appear in person, thereby inviting arrest and custody in jail or prison – where the risk of COVID-19
18 infection is significantly increased. Either option constitutes irreparable injury warranting injunctive
19 relief. Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (a “credible threat of
20 prosecution” coupled with “an alleged constitutional infringement” are sufficient to constitute
21 irreparable harm; Harris v. Bd. of Supervisors, 366 F.3d 754, 759, 766 (9th Cir. 2004). See also City of
22 Costa Mesa v. United States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020) (granting TRO
23 against placement of COVID-19 patients within city because possible exposure “threat[ens] immediate
24 and irreparable injury.”) Neither Section 290 nor the Due Process Clause of the U.S. Constitution
25 requires Registrants to play Russian Roulette with their lives, and with the lives of their families as well
26 as members of the public, in order to provide the information required for their periodic updates.
27
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1 Therefore, Plaintiffs seek a TRO preventing Defendant and the FCSO from requiring Registrants to
2 appear in person for periodic updates during the COVID-19 pandemic.
3 II. BACKGROUND

4

A. The COVID-19 Pandemic and the Governor’s Stay-at-Home Order

5

“There is no specific treatment, vaccine or cure for COVID-19.” Castillo v. Barr, No.

6 20CV00605-TJH, 2020 U.S. Dist. LEXIS 54425, at *5-*6 C.D. Cal. March 27, 2020). Therefore, the

7 only means to slow the spread of COVID-19 and the coronavirus that causes that disease are hygienic

8 practices such as hand washing, as well as “social distancing” and the avoidance of gatherings. See id.

9

Extraordinary measures have been implemented by governments at every level to combat the

10 spread of COVID-19. Most notably, on March 19, 2020, the Governor issued an order calling upon all

11 40 million residents of the state to remain in their homes, with limited exceptions for essential travel

12 (hereinafter, the “Order”). Specifically, the Order directs “all individuals living in the State of

13 California to stay home or at their place of residence except as needed to maintain continuity of

14 operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/ identifying-

15 critical-infrastructure-during-covid-19.”

16

Further, the Order emphasizes that persons within specified vulnerable populations must self-

17 isolate and remain in their homes. As reflected in the Order, the Center for Disease Control and the

18 California Department of Health Care Services have declared persons at “higher risk” for contracting

19 COVID-19 if they are aged 65 and older; suffer compromised immune systems; or suffer from chronic

20 serious medical conditions, including asthma, diabetes, lung diseases, and hypertension. Sex offender

21 registration is not listed among the exceptions to the Order’s requirement to remain at home, and

22 violation of that Order can result in penalties and/or punishment.

23

B. Plaintiffs and Other Registrants Are a Large and Vulnerable Population

24

As noted above, Plaintiffs are vulnerable to COVID-19 infection by virtue of their age and

25 certain chronic medical conditions, both of which are known to correlate with high mortality rates

26 among COVID-19 patients. Cf. United States v. Rodriguez, No. 03-cr-271, 2020 U.S. Dist. LEXIS

27

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1 58718, *2 (E.D.Pa. April 1, 2020) (granting compassionate release from incarceration for diabetic
2 inmate on grounds that “nothing could be more extraordinary and compelling than this pandemic”).
3 Plaintiff John Doe #1 is a 71-year-old Registrant who suffers from diabetes and cirrhosis of the
4 liver. Exh. B ¶2. On March 18, 2020, Plaintiff John Doe #1 called his local FCSO registration office
5 and stated that he was afraid to appear in person to register on or before his deadline of April 7, 2020,
6 because of the likelihood that he would be in contact with infected persons and surfaces. Id. ¶4. The
7 FCSO registration official responded that Plaintiff John Doe #1 did not have to appear in person to
8 register. Id. ¶5. Plaintiff John Doe #1 understood this to mean that his registration was complete. Id.
9 However, shortly thereafter, Plaintiff John Doe #1’s profile on the Megan’s Law Website was altered to
10 declare him “in violation” for failure to register. Id. Upon inquiry from counsel for Plaintiff John Doe
11 #1, the FCSO confirmed that they had not, in fact, processed his registration, leaving Plaintiff John Doe
12 #1 at risk for arrest and prosecution for the offense of failure to register. Id. ¶¶9-10. Consequently,
13 Plaintiff John Doe #1 remains effectively imprisoned in his own home, unable to leave for fear of
14 arrest, and unable to complete the internship that began more than two years ago and that is necessary
15 to complete is A.A. degree later this year. Id. ¶¶11-12.
16 Plaintiff John Doe #4 is a 71-year-old Registrant who suffers from diabetes. Exh. A ¶¶2-4. In
17 addition, Plaintiff John Doe #4 resides with his wife of 33 years, who is the recipient of a kidney
18 transplant and who therefore has a highly compromised immune system due to her anti-rejection drug
19 regimen. Id. ¶5. Common illnesses, such as colds and flus, are life-threatening for John Doe #4’s wife,
20 who was once hospitalized for 12 days because of the flu and nearly died. Id. During past registration
21 appointments with the FCSO, Plaintiff John Doe #4 has been required to stay in confined spaces for up
22 to an hour with several other Registrants, some of whom appeared to be homeless, and forced to touch
23 many potentially contaminated surface and objects during the registration process. Id. ¶¶8-10. Plaintiff
24 John Doe #4’s deadline to appear in person for his annual update is May 29, 2020. Id. ¶7.
25 Neither Plaintiff John Doe #1 nor John Doe #4 have changed residences since their last
26 registration appointment, meaning that their 2020 registration appointments will consist merely of
27
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1 confirming information that the FCSO already possesses – confirmations that could be made over the

2 telephone or by email. Id. ¶9.

3

C. In-person Registration Exposes Registrants, Law Enforcement Personnel, and the

4

General Public to Increased Risk from COVID-19

5

Defendant’s ongoing decision to require in-person registration for periodic updates forces

6 Plaintiffs and all Registrants to contravene the public safety measures recently imposed by state and

7 local government upon all residents of California, including Registrants. Defendant’s decision to

8 require in-person registration therefore threatens both vulnerable Registrants and the larger population

9 with which those Registrants interact, including the public, law enforcement personnel, and their

10 families.

11

During the registration process, Registrants are exposed to premises that are unsanitary,

12 crowded, and do not allow for “social distancing” or other preventative measures mandated by state and

13 local government. Exh. A ¶¶ 8, 10. In addition, many sheriff’s stations are located in areas with large

14 homeless populations. Further, Registrants are forced to enter, sit in, touch, and otherwise interact with

15 unsanitary, and often narrow and cramped, physical environments while registering. Id. Those

16 environments, as well as, the registration procedures employed by Defendant, require repeated and

17 prolonged physical contact with potentially virus-ridden surfaces and objects such as countertops, clip

18 boards, various papers, pens, pen chains, ink pads, chairs, door handles, water fountains, and

19 fingerprinting machines. Id. These unsanitary surfaces are touched by many other Registrants, as well

20 as other visitors to the station and employees of the registering agencies like the FCSO. Id.

21 III. STANDARD FOR RELIEF FOR TRO APPLICATIONS AND PRELIMINARY

22

INJUNCTIONS

23

The standard for issuing a TRO is identical to the standard for issuing a preliminary injunction.

24 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995).

25 A party seeking a preliminary injunction must demonstrate: (1) that he is likely to succeed on the

26 merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the

27

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1 balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat.
2 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
3 The Ninth Circuit employs a “sliding scale” approach to preliminary injunctions in which the
4 four Winter factors are balanced, such that a preliminary injunction may issue when “serious questions
5 going to the merits [are] raised and the balance of hardships tips sharply in the plaintiff’s favor,” if the
6 other two Winter factors are also shown. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
7 1135 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)). A
8 “serious question” is one in which the plaintiff “has a fair chance of success on the merits. Sierra On-
9 Line, Inc. v. Phoenix Software, Inc., 739 F.3d 1127, 1131-32 (9th Cir. 1984). See also Singer Mgmt.
10 Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (“[L]likelihood of success” means “a
11 reasonable chance, or probability, of winning . . . . [I]t does not mean more likely than not.”); Leiva-
12 Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (same).
13 IV. ANALYSIS
14 A. Factor 1: Plaintiffs are Likely to Succeed on the Merits of their Fourteenth
15 Amendment and State Law Claims
16 1. Plaintiffs Seek Temporary Relief Concerning a Limited Aspect of the
17 Registration Process
18 At the outset, it is critical to note that Plaintiffs seek relief from a policy that implicates a
19 limited and comparatively unimportant component of the Act, such that the relief, if granted, would not
20 undermine the purpose or function of the Act. That is, Plaintiffs seek an order directing Defendant to
21 cease requiring, during the COVID-19 pandemic only, Registrants to appear in person for their periodic
22 updates only, as required by Section 290.012. The Act distinguishes periodic updates from initial
23 registration, changes of residence, and other aspects of the registration process that require immediate,
24 in-person reporting to law enforcement. See Cal. Penal Code § 209.011(a)-(b); § 290.013(a). By
25 comparison, the information sought during periodic updates is not immediately required because it is
26 not urgent and, in most cases, merely confirms information that law enforcement already possesses.
27
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1 a. The Act Distinguishes Between Changes in Residence and Periodic
2 Updates
3 In general, the Act requires persons convicted of an offense described in Section 290,
4 subdivision (c), to complete their initial registration with local law enforcement within specified time
5 frames when they: (1) are released from custody or supervision, (2) establish residency in the state, (3)
6 change their residence address, or (4) cease residing in California. Cal. Penal Code §§ 209.011(a)-(b),
7 (f); 290.013(a). The Act further requires Registrants to periodically update their registration with local
8 law enforcement at specified intervals. For example, all Registrants must annually update their
9 registration within five working days before or after their birthday. Id. § 290.012(a). In addition,
10 Registrants designated as “sexually violent predators” must update their registration every 90 days. Id.
11 Finally, Registrants designated as “transient,” who lack a fixed residence address, must update their
12 registration every 30 days. Id.
13 b. Periodic Updates are of Diminished Importance Under the Act
14 The Act imposes stricter disclosure requirements when Registrants establish or change a
15 residence, than it does for periodic updates. In addition, the Act does not treat all information as
16 equally important, and instead distinguishes urgent updates from periodic updates by the deadlines that
17 are imposed upon Registrants to provide those updates to law enforcement. Specifically, under the Act,
18 the most important information to be provided during the registration process is the establishment of a
19 residence, change of a residence, moving out of state, or a legal name change. That is why the Act
20 mandates that such information be provided to registering agencies within five working days. See Cal.
21 Penal Code § 290.011(a) (release from custody, or moving into the state) id., subd. (b) (acquisition of
22 residence by a transient); id., subd. (f) (transient who moves out of the state); § 290.013 (a) (change of
23 residence within the state); id. (moving to a residence out of the state); id. § 290.014 (a) (legal name
24 change). Immediate notice of this kind of information is necessary to fulfill the purpose of the Act,
25 which is to permit surveillance of Registrants “at all times.” People v. Hofsheier, 37 Cal. 4th 1185,
26 1196 (2006), rev’d on other grounds by Johnson v. Department of Justice, 60 Cal. 4th 871, 874 (2015).
27
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1 In contrast, periodic updates require Registrants to merely confirm or update information that
2 they have previously provided to law enforcement during the above-referenced initial registration or
3 change-of-address appointments. Pursuant to the Act, Registrants appearing for their annual update
4 “shall provide current information as required on the Department of Justice annual update form,
5 including the information described in paragraphs (1) to (4), inclusive, of subdivision (a) of Section
6 290.015.” Cal. Penal Code § 290.012(a).
7 Notably, when the information required during a periodic update changes, the Act does not
8 require Registrants to immediately advise law enforcement of that change. Rather, the Act allows
9 Registrants to wait until their next periodic update to provide the new information. For example, if a
10 Registrant acquires a new car or changes employment, the Act deems that information is not important
11 enough to warrant an immediate update. In fact, Registrants can wait as long as 11 months to provide
12 that information, (Penal Code § 290.012 (a)), or can wait up to 90 days in the case of SVPs, or 30 days
13 in the case of transients. Id., subds. (b)-(c).
14 c. The Act Does Not Demand that Periodic Updates Occur in Person
15 Critically, the Act does not require that annual updates, 90-day updates, or 30-day updates occur
16 in person. Instead, the Act merely requires that Registrants “register” and “update” their registration
17 during the annual update, without specifying how that should be accomplished. Cal. Penal Code §
18 290.012 (a) (“Beginning on his or her first birthday following registration or change of address, the
19 person shall be required to register annually, within five working days of his or her birthday, to update
20 his or her registration with the entities described in subdivision (b) of Section 290.”). Transient
21 Registrants or Registrants designated as SVPs are likewise not required by the Act to register in person.
22 Id., subd. (b) (An SVP “shall . . . verify his or her address no less than once every 90 days and place of
23 employment . . . in the manner prescribed by the Department of Justice. Id. subd. (c) (A transient
24 Registrant “shall update his or her registration at least every 30 days, in accordance with Section
25 290.011,” which contains no in-person requirement).
26
27
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1 When the Legislature intended for Registrants to appear in person, the Legislature expressed

2 that requirement in the Act. It is therefore notable that the Act specifies only three occasions on which

3 “in person” registration is required:

4 1. Transient Registrants “who move[] of out state.” Penal Code § 290.011 (f) (“A

5 transient who moves out of state shall inform, in person, . . . within five working days, of

6 his or her move out of state.”).

7 2. Registrants who change their residence address, whether within the jurisdiction in

8 which they are currently registered or to a new jurisdiction outside California. Penal

9 Code § 290.013 (a) (“A person who was last registered at a residence address pursuant

10 to the Act who changes his or her residence address, whether within the jurisdiction in

11 which he or she is currently registered or to a new jurisdiction inside or outside the state,

12 shall, in person, within five working days of the move . . .”).

13 3. Registrants who legally change their names. Penal Code § 290.014 (a) (“If any

14 person who is required to register pursuant to the Act changes his or her name, the

15 person shall inform, in person, the law enforcement agency or agencies with which he or

16 she is currently registered within five working days.”.)

17 In sum, the Act distinguishes between occasions on which in-person registration is required, and

18 when it is not. In-person registration is not required for periodic updates, which are the subject of

19 Plaintiffs’ claim in this action

20 2. The Governor of California Has Expressly Authorized “Remote” Registration

21

Significantly, on May 8, 2020, California Governor Gavin Newsom issued Executive Order N-

22 63-20, declaring that “strict compliance” with the Sex Offender Registration Act “would prevent,

23 hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.”

24 Exh. C, at 1. The Governor therefore ordered that “Law enforcement agencies are encouraged to adopt

25 telephonic, remote, or other procedures for registration and reporting under the Sex Offender

26 Registration Act . . . .” Id. For registering agencies that authorized remote registration, “all provisions

27 of the Act and implementing procedures that require such persons to provide a signature, fingerprints,

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1 and photograph, are suspended for 60 days.” Id. ¶15(a). In other words, the Act does not require
2 Defendant to mandate in-person registration during the COVID-19 pandemic.
3 3. Defendant’s In-person Registration Policy Violates the Fourteenth
4 Amendment Under the State-Created Danger Doctrine
5 “[T]he Due Process Clause imposes a duty on state actors to protect or care for citizens . . .
6 when the state affirmatively places a particular individual in a position of danger the individual would
7 not otherwise have faced.” Wells v. Walker, 852 F.2d 368, 370 (8th Cir. 1988). This “state-created
8 danger” doctrine gives rise to liability when the state actor displays “deliberate indifference” to a
9 “known or obvious danger.” Pauluk v. Savage, 836 F.3d 1117, 1122 (9th Cir. 2016) (quotation
10 omitted).
11 For example, in Wood v. Ostrander, the defendant police officer pulled over a driver, found him
12 to be intoxicated, placed him under arrest, and impounded the car. 879 F.2d 583, 586 (9th. Cir. 1989)
13 cert. denied, 111 S. Ct. 341 (1990). The intoxicated driver had a female passenger, who alleged that the
14 officer left her stranded without transportation, after 2:00 a.m., in an area known to have a high rate of
15 crime. Id. After the officer departed, the passenger was picked up by another driver and physically
16 assaulted. Id. The Ninth Circuit held that the passenger had raised a triable issue of fact whether the
17 officer’s actions constituted “callous disregard for [the passenger’s] physical security, a liberty interest
18 protected by the Constitution.” Id. at 589.
19 More recently, in Pauluk v. Savange, the plaintiffs, who were heirs of the decedent, sued state
20 officials who had been the decedent’s employers under the Fourteenth Amendment. 836 F.3d at 1119.
21 The decedent had objected to his assignment in a particular facility because he feared exposure to toxic
22 mold. Id. The defendant employers transferred the decedent to the facility anyway, where he later
23 died. Id. The Ninth Circuit held that the plaintiffs had stated a claim under the Fourteenth Amendment
24 arising from the employer’s “deliberate act” of transferring the employee to the allegedly mold-infested
25 facility, and thereby “exposing [him] to an obvious and known danger.” Id. at 1124-25. See also
26 Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000) (plaintiffs stated a
27 damages claim against law enforcement after they removed a drunk patron from a bar at night and sent
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1 him outside, despite low temperatures and the patron wearing only a t-shirt, where patron later froze to
2 death).
3 Similarly, in this case, Defendant and other FCSO registration officials have in the past, and
4 have vowed to continue, affirmatively requiring Plaintiffs and all Registrants to appear in person for
5 periodic registration updates regardless of their age and/or medical condition. In so doing, Defendant
6 has placed, and will continue to place, Plaintiffs and all Registrants in greater danger of contracting
7 COVID-19 than they would be absent Defendant’s affirmative conduct. Defendant’s affirmative
8 conduct in this case is the factor responsible for this increased risk of infection because in-person
9 registration is not required by Section 290.012, as evidenced by the numerous jurisdictions that have
10 suspended in-person registration during the pandemic, as well as the Governor’s Executive Order that
11 authorizes registering agencies such as the FCSO to suspend in-person registration.
12 Moreover, Defendant’s decision to require in-person registration exhibits deliberate indifference
13 to a risk that is known to all persons within the FCSO. Defendant herself has exhorted the public to
14 “pay[] attention to the recommendations of medical professionals,” and to “only go out for essential
15 needs and only for as long as needed.”2 In addition, the FCSO has closed several of its in-person
16 services because of the risk of infection, including the “Civil Unit Window.” Exh. G. Defendant is
17 also aware that Plaintiffs are elderly Registrants who suffer from medical conditions, such as diabetes,
18 that render them particularly vulnerable to the fatal effects of COVID-19. The risk of harm to Plaintiffs
19 is exacerbated by the corresponding risk to the persons who live with Plaintiffs, including Plaintiff John
20 Doe #4’s wife, who is immunocompromised. Yet, Defendant and the FCSO continue to expose
21 Registrants to an undeniable risk of infection, in defiance of the Governor’s recommendation as well as
22 the common sense directives of state and local health officials. Because Defendant’s in-person
23 registration requirement is the sole reason why Plaintiffs are forced to bear this risk of infection,
24 Plaintiffs are likely to succeed on their Fourteenth Amendment claim.
25
26 2 Sheriff Margaret Mims Addresses Public Concerns with COVID-19, at 27 https://www.fresnosheriff.org/media-relations/sheriff-margaret-mims-addresses-public-concerns-with-
covid-19.html (last visited May 11,2020). 28
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1 4. Defendant’s In-person Registration Policy Violates the Fourteenth
2 Amendment’s Prohibition on Irrational and Arbitrary Action
3 Defendant’s continued in-person registration requirement also violates the “basic constitutional
4 right to be free of official action that is unreasonable, arbitrary, and oppressive.” In re Taylor, 60 Cal.
5 4th 1019, 1038 (Cal. 2015). California currently has over 68,000 COVID-19 infections,3 among the 6 highest of any state in the country.4 And the situation continues to worsen. In fact, a draft report by
7 federal agencies issued on May 1, 2020 predicts that the number of deaths from COVID-19 in the
8 nation will double to 135,000 in the coming weeks.5 Even persons who do not die from infection can
9 be expected to suffer catastrophic long-term effects, including impaired lung function; damage to the

10 heart, kidneys, and brain; and other ailments that are continually being discovered and reported.6

11

When compared to the gravity of the threat to Plaintiffs and all Registrants, the supposed

12 benefits of in-person registration are negligible, rendering Defendant’s in-person registration policy

13 arbitrary. Where a vulnerable minority’s liberty interests are at issue, the rational basis standard of

14 review does not mean uncritical acceptance of the government’s rationale for the action or superficial 15 assertions that the legislation serves a government interest. Rather, the court must examine whether the

16 stated purpose of the law would actually be served, see Plyler v. Doe, 457 U.S. 202, 228 (1982), as well

17 as the measured the lack of proportion between the harm inflicted by the law and its purported benefits.

18 Romer v. Evans, 517 U.S. 620, 635 (1996). Indeed, courts have found laws disadvantaging Registrants

19 to be arbitrary, where the evidence of the law’s effectiveness is miniscule but its burden is

20 overwhelmingly disruptive and injurious to their health and safety. See In re Taylor, 60 Cal. 4th 1019,

21 1036, 1038, 1042 (2015) (Invalidating sex offender residency restrictions on federal due process 22 grounds because they applied in a blanket fashion to all Registrants without regard to the details of their

23

24 3 https://covid19.ca.gov/ 25 4 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html
26 5 New York Times, Models Project Sharp Rise in Deaths as States Reopen (May 4, 2020), available at https://www.nytimes.com/2020/05/04/us/coronavirus-live-updates.html (last visited May 6, 2020).
27 6 https://www.healthline.com/health-news/what-we-know-about-the-long-term-effects-of-covid-19
28
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1 individual offenses, resulting in numerous injuries such as homelessness, lack of access to health care

2 services, and effective banishment from whole communities).

3

As noted above, nearly all of the information called for during periodic updates can be

4 communicated remotely, without an in-person visit to a sheriff’s station, and the Governor’s Executive

5 Order has excused the FCSO from collecting the information that is typically collected in person (i.e.,

6 signatures, fingerprints, and photographs). Plaintiffs have not changed residence since they last

7 updated their registrations in 2019, meaning that their annual updates this year are superfluous.

8 Therefore, requiring Plaintiffs to appear in person, at great risk to themselves, to provide information

9 that the Governor has “encouraged” Defendant to obtain remotely, is arbitrary, does not promote public

10 safety, and in fact serves only to harm Registrants, their loved ones, and the general public.

11

5. In-person Registration for Periodic Updates is Not Implied by the Act

12

Finally, Defendant’s in-person registration requirement violates California state law by

13 improperly reading implied terms into the governing statute, Section 290.012. That is, the fact that the

14 Act expressly imposes in-person registration requirements on certain occasions, but not for periodic

15 updates under Section 290.012, confirms that Defendant lack authority to require Registrants to appear

16 in person for periodic updates.

17

When confronted with two statutes, one of which contains a term, and one of which does

18

not, [courts] do not import the term used in the first to limit the second. Instead, it is [the

court’s] obligation to interpret different terms used by the Legislature in the same

19

statutory scheme to have different meanings.

20 Walt Disney Parks & Resorts U.S., Inc. v. Superior Court, 21 Cal. App. 5th 872, 879 (2018).

21 Accordingly, “[w]here, as here, the Legislature has chosen to include a phrase in one provision of the

22 statutory scheme, but to omit it in another provision, we presume that the Legislature did not intend the

23 language included in the first to be read into the second.” Id. (where two related statutes provided

24 separate grounds for transferring actions, and deadline appeared in only one of the two statutes, trial

25 court abused discretion by implying deadline in second statute (citing cases)).

26

For example, Wilson v. City of Laguna Beach, considered a statute (Government Code section

27 65852.2) that sought to encourage local governments to permit second housing units (i.e., “granny

28
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1 flats”) on residential parcels. 6 Cal. App. 4th 543, 545 (1992). The statute gave cities “three options:”

2 (1) outlaw second units, if certain findings could be made; (2) adopt their own ordinances with

3 specified criteria to govern second units; or (3) do neither, and follow the default statutory criteria

4 governing second units. Id. at 553. Critically, option (2) allowed city ordinances to include parking as

5 one of the criteria for approving second units, but option (3) (the default statutory scheme) did not list

6 parking as one of the criteria that cities could use. Id. Instead, option (3) listed only criteria of “height,

7 setback, lot coverage, architectural review, site plan review, fees, charges, and other zoning

8 requirements generally applicable to residential construction in the zone in which the property is

9 located.” Id. The City of Laguna Beach elected to follow the default statutory scheme (option (3)), and

10 argued that the provision in option (3) for “other zoning requirements” “implied” the city’s authority to

11 add a parking requirement before approving second units. Id. at 554. The court in Wilson disagreed,

12 ruling that because the Legislature “expressly mentioned parking in option (2), “the omission of any

13 express reference to parking in [option (3)], when there is such a reference in [option (2)], is therefore

14 dispositive,” and prohibited the insertion of “implied” conditions in option (2). Id.

15

Likewise, in this matter, the California Sex Offender Registration Act “expressly” requires in-

16 person registration for changes of address or legal names in Sections 290.011, 290.013, and 290.014,

17 but omits the in-person requirement from the neighboring provisions of Section 290.012, which govern

18 periodic updates. Because the Legislature “has carefully employed a term [i.e., “in person”] in one

19 place and has excluded it in another, it should not be implied where excluded.” Ford Motor Co. v.

20 County of Tulare, 145 Cal. App. 3d 688, 691 (1983) (emphasis added). See also Holmes v. Jones, 83

21 Cal. App. 4th 882, 890 (2000) (“Where a statute with reference to one subject contains a given

22 provision, omission of that provision from a similar statute concerning a related subject shows that a

23 different intention existed.”). Accordingly, Defendant lacks authority to require in-person registration

24 for periodic updates.

25 B. Factor 2: Irreparable Harm and Inadequacy of Legal Remedy
26 Plaintiffs are threatened with irreparable injury because, by refusing to process their
27 registrations without appearing in person, Defendant forces Plaintiffs to choose between prosecution
28
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1 and imprisonment, or risk of infection and death. Each alternative presents quintessential irreparable

2 injury warranting injunctive relief. E.g., Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir.

3 2013) (a “credible threat of prosecution” coupled with “an alleged constitutional infringement” are

4 sufficient to constitute irreparable harm); Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It would be

5 odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their

6 prison on the ground that nothing yet had happened to them.”); Harris v. Bd. of Supervisors, 366 F.3d

7 754, 759, 766 (9th Cir. 2004).

8 In fact, one court recently issued a TRO prohibiting the federal government from transferring

9 COVID-19 patients to a facility within the City of Costa Mesa on the grounds that the mere possibility

10 of exposure to residents in the community constitutes irreparable injury. City of Costa Mesa v. United

11 States, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal. Feb. 21, 2020). In addition, several other courts have

12 enjoined civil detention orders due to the possibility of COVID-19 spreading when the government

13 forces groups to congregate, based in part upon the apparent ease with which coronavirus spreads. E.g.,

14 Castillo v. Barr, No. 20CV00605-TJH, 2020 U.S. Dist. LEXIS 54425, at *4 (C.D. Cal. Mar. 27, 2020)

15 (“Coronavirus is spread between people who are in close contact . . . through respiratory droplets

16 produced when an infected person coughs or sneezes. . . . Moreover, studies have established that the

17 coronavirus can survive up to three days on various surfaces.”); Thakker v. Doll, 2020 U.S. Dist.

18 LEXIS 59459, at *21 (M.D. Pa. Mar. 31, 2020) (“Indeed, courts have even specifically held that

19 COVID-19 constitutes an irreparable harm that supports the grant of a TRO.” (emphasis added)).

20 Likewise, in this matter, the threat of COVID-19 to Plaintiffs and other Registrants is similarly

21 acute in that they are forced by Defendant into crowded and/or unsanitary conditions where the

22 recommended social distancing and sanitation measures cannot be observed. The result is an

23 exacerbation of the risks of infection that the entire country, including all levels of government, have

24 mobilized to protect against. As the District Court recognized in Thakker v. Doll,

25

In times such as these, we must acknowledge that the status quo of a mere few weeks ago

26

no longer applies. Our world has been altered with lightning speed, and the results are

both unprecedented and ghastly. We now face a global pandemic in which the actions of

27

each individual can have a drastic impact on an entire community. The choices we now

make must reflect this new reality. 28

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1

Respondents’ Facilities are plainly not equipped to protect Petitioners from a potentially

fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious,

2

should we fail to afford relief to Petitioners we will be a party to an unconscionable and

3

possibly barbaric result. . . . If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight. And so

4

we will act.

5 Thakker, 2020 U.S. Dist. LEXIS 59459, at *27-*28.

6

Although many early cases discussing the risk from COVID-19 have arisen in the context of

7 civil detention schemes, the distinction between detention and in-person registration in sheriff’s stations

8 is a difference of degree rather than kind. That is because the transmission of COVID-19 does not

9 require prolonged exposure to an infected person or with an object touched by that person, but instead

10 can easily occur within the 30-minutes-to-two-hour period that a Registrant must spend in a sheriff’s

11 station while registering. Cf. Kaur v. U.S. Dep’t of Homeland Security, No. 2:20-cv-03172, 2020 U.S.

12 Dist. LEXIS 71228, at *9 (C.D. Cal. Apr. 22, 2020) (“The mere fact that no cases have been reported in

13 the [facility at issue] is irrelevant – it is not a matter of if COVID-19 will enter the facility, but when it

14 will be detected there.”). The persons threatened with infection and possible death include not only

15 Registrants, but also law enforcement personnel, as well as innocent third parties such as Plaintiff John

16 Doe #4’s wife, who has a compromised immune system, and who would surely become infected if her

17 husband does. Accordingly, a TRO is necessary to prevent irreparable injury to the health and lives of

18 Plaintiffs and all Registrants, as well as their families and the general public.

19

C. Factors 3 and 4: The Balance of Equities and the Public Interest

20

When a preliminary injunction is sought against the government on constitutional grounds, the

21 “balance of equities” and “public interest” prongs can be considered together. See Farris v. Seabrook,

22 677 F.3d 858, 864 (9th Cir. 2012); Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).

23 In this matter, the Governor of California has confirmed in his Executive Order issued May 8, 2020,

24 that an injunction is in the public interest because the Governor suspended the in-person registration

25 requirement for 60 days, and encouraged local registering agencies such as the FCSO to do the same in

26 order to avoid undermining the state’s ongoing COVID-19 mitigation efforts. See Exh. C. ¶15.

27

In addition, as noted above, Plaintiffs seek only temporarily relief concerning the more

28
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1 peripheral requirement of periodic updates during the COVID-19 pandemic – periodic updates. This
2 requested relief is, in fact, narrower than the relief called for in the Governor’s order, which
3 encompasses not only periodic updates, but also initial registration, as well as other procedures for
4 which in-person registration is required by statute.
5 As stated above, the information called for during periodic updates is information that law
6 enforcement already possesses because it was previously provided during an earlier registration. For
7 example, Registrants such as Plaintiffs John Doe #1 and John Doe #4 who have remained in the same
8 residence, with the same employment status, and with the same car, have no changes to report during
9 their annual updates. Furthermore, in cases where such information has changed, the Act does not
10 require immediate, in-person reporting, but instead permits the update to be delayed until the next
11 periodic update. Thus, any delay that results from the suspension of in-person registration for periodic
12 updates during the COVID-19 pandemic would not harm the registration system, because temporary
13 delays in reporting such information are already built into and tolerated by the system itself.
14 In addition, the information reported during periodic updates are facts that can be provided by
15 telephone or through alternate means that do not require in-person visits, as confirmed by the
16 Governor’s Executive Order. The two pieces of information that cannot be transmitted by phone –
17 fingerprints and a current photograph – are addressed by the Executive Order, and are among the least
18 likely to change between periodic updates, with fingerprints being practically impossible to change.
19 Although there is a small possibility that a Registrant’s personal appearance may change between
20 periodic updates, the Act ascribes a low priority to that information, by virtue of the fact that the Act
21 does not require changes in appearance to be immediately reported to law enforcement. In fact, the Act
22 does not require registering agencies to take a new photograph during each annual update. Instead, the
23 Act merely requires that a Registrant’s photograph be “current,” which indicates that an existing
24 photograph can continue to be used during the pandemic, consistent with the Act. Cal. Penal Code §
25 290.015 (a)(2).
26 Further, even if their collection had not been suspended by the Governor’s Executive Order,
27 fingerprints and photographs can be obtained through means other than in-person registration, such as
28
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1 the mail, video conferencing apps, or visits by law enforcement to a Registrant’s home. Registering
2 agencies frequently use one or more of these alternate means for Registrants who are homebound,
3 hospitalized, or otherwise incapacitated during normal times, which is again consistent with the Act.
4 Finally, requiring Registrants to appear in person offers little if any additional benefit to public safety,
5 particularly because the Act tolerates many months of delay in the reporting of such information.
6 In sum, the relative lack of harm to Defendant and the public from a temporary suspension of
7 the in-person registration requirement supports a TRO, because Plaintiffs have made a strong showing
8 on the merits that in-person registration is not required by Section 290.012, and that in-person
9 registration during the COVID-19 pandemic unconstitutionally infringes life and liberty in violation of
10 the Fourteenth Amendment. Further, any theoretical benefit gained by in-person periodic updates is
11 significantly eclipsed by the real and potentially deadly risk of COVID-19 infection imposed upon
12 Registrants, law enforcement, and the public by forcing Registrants from the safety of their homes into
13 an unsafe environment. Indeed, requiring in-person registration for periodic updates undermines the
14 public safety measures employed by state and local governments to protect public health, with no
15 corresponding public safety benefit. Local registering agencies are capable of processing periodic
16 updates during the COVID-19 pandemic without requiring Registrants to appear in-person, and some
17 registering agencies, including the state’s largest registering agency (the LAPD), are doing just that,
18 with no reported or known deleterious impact upon public safety. See Exhs. D-F.
19 V. PLAINTIFFS RESPECTFULLY REQUEST THAT THE COURT WAIVE THE BOND
20 REQUIREMENT FOR THIS MOTION
21 Courts in the Ninth Circuit have dispensed with the bond requirement of Fed. R. Civ. P. 65(c)
22 “where there is little or no harm to the party enjoined and where plaintiffs are unable to afford to post
23 such a bond.” Lavan v. City of Los Angeles, No. 11-cv-2874, 2011 U.S. Dist. LEXIS 46030, at *15-
24 *16 (C.D. Cal. April 22, 2011) (citing Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (“We
25 have recognized that Rule 65(c) invests the district court with discretion as to the amount of security
26 required, if any.”) (quotation marks omitted) (emphasis in original); Barahona-Gomez v. Reno, 167
27 F.3d 1228, 1237 (9th Cir.1999) (waiving bond where vast majority of plaintiffs were “very poor”);
28
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1 Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881, 2000 WL 1808426, at *2 (C.D. Cal. Dec.
2 5, 2000) (no bond requirement for homeless plaintiffs where “there was no proof of likelihood of harm
3 to the party enjoined”). In this matter, Plaintiffs are elderly Registrants who lack financial means to
4 pay for a bond. In addition, there will be no harm to Defendants if the injunction is issued. Plaintiffs
5 therefore respectfully request that the Court waive the bond requirement.
6 VI. CONCLUSION
7 For the reasons stated above, Plaintiffs respectfully request that the Court issue the Order to
8 Show Cause and TRO submitted concurrently herewith prohibiting Defendant and the Fresno County
9 Sheriff’s Office from requiring in-person registration for periodic updates pursuant to Penal Code
10 section 290.012 during the COVID-19 pandemic until a hearing on a preliminary injunction can be
11 held.
12

13 Dated: May 13, 2020
14

LAW OFFICE OF JANICE M. BELLUCCI

15 By: /s/ Janice M. Bellucci

16

Janice M. Bellucci

Attorney for Plaintiffs 17

18

19

20

21

22

23

24

25

26

27

28
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EXHIBIT A

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EXHIBIT C

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EXHIBIT D

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LOS ANGELES POLICE DEPARTMENT

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EXHIBIT E

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EXHIBIT F

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1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248

5 Attorney for Plaintiffs

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

Case No.: 1:20-cv-00600-NONE-JDP AFFIDAVIT OF NOTICE TO DEFENDANTS OF PLAINTIFFS’ EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

15

vs.

16 ANDREW HALL, in his official capacity as Chief of the Fresno Police Department;
17 and MARGARET MIMS, in her official capacity as Fresno County Sheriff,
18
Defendants.
19

Hearing date: May 19, 2020

20

21

Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 231(c)(5), the

22 undersigned counsel for Plaintiffs provided notice to Defendants Margaret Mims and 23 Andrew Hall of Plaintiffs’ Motion for Temporary Restraining Order (“TRO”), as 24 follows:

25

Defendant Margaret Mims, Fresno County Sheriff, is the only Defendant against

26 whom the TRO is sought. On May 12, 2020, the day prior to filing the TRO

27 Application, I emailed Deputy County Counsel Scott Hawkins

28
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1 (schawkins@fresnocountyca.gov), who had previously identified himself as the attorney

2 likely to represent Defendant Mims in this matter. See Exh. A. I provided Mr. Hawkins

3 with a copy of the Proposed TRO, and inquired whether Defendant Mims would

4 stipulate to it. Id. I also left a voicemail for Mr. Hawkins regarding my email. The next

5 day, on May 13, 2020, at 9:10 a.m., I left Mr. Hawkins another voicemail. I received no

6 response from Mr. Hawkins. Therefore, on May 13, 2020, before 11:00 a.m., my office

7 sent Mr. Hawkins another email advising him of Plaintiffs’ intention to file the TRO

8 Application and to notice a hearing for May 29, 2020. See Exh. B. I also provided Mr.

9 Hawkins with a copy of the TRO Application and all other relevant filings, as indicated

10 in the Proof of Service attached to the Motion for Temporary Restraining Order. Id.

11

Defendant Andrew Hall is not a party against whom the TRO is sought. On May

12 13, 2020, prior to filing the TRO Application, I emailed both Francine Kanne and

13 Douglas Sloan of the Fresno City Attorney’s Office and advised them of Plaintiffs’

14 intention to file a TRO Application and to notice a hearing for May 29, 2020. (Exh. B.)

15 I also provided Ms. Kanne and Mr. Sloan with a copy of the TRO Application and all 16 other relevant filings, as indicated in the Proof of Service.1

17 ///

18 ///

19

20 1 Plaintiffs have been unable to formally serve Defendant Hall with the summons and

21 pleadings in this action because the Fresno Police Department, Court Liaison Office, as

well as the Fresno City Clerk’s office, are closed. On April 30 and May 4, counsel for 22 Plaintiffs exchanged emails with Francine Kanne, an attorney with the City of Fresno.

23 Ms. Kanne directed Plaintiffs to serve Defendant Hall through the above-referenced

24

offices at 2323 Mariposa Mall. However, Plaintiffs’ process server twice visited that location, which was locked, and the process server found no security personnel or other

25 person who could make contact with the offices. Ms. Kanne has refused to accept

26

service on behalf of Defendant Hall. Plaintiffs will continue to pursue service of Defendant Hall. Ms. Kanne and/or her colleague attorney Douglas Sloan have been

27 provided with courtesy copies of both the pleadings in this case, as well as the TRO

28 Application, as noted above.

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1 ///
2 3

Respectfully Submitted,

4 Dated: May 13, 2020

LAW OFFICES OF JANICE M. BELLUCCI

5

By: /s/ Janice M. Bellucci

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Janice M. Bellucci

Attorney for Plaintiffs

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_______________________________________________________3__________________________________________________ AFFIDAVIT OF NOTICE TO DEFENDANTS OF PLAINTIFFS’
EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00600-NONE-JDP Document 8-2 Filed 05/13/20 Page 4 of 7
EXHIBIT A

Case 1:20-cv-00600-NONE-JDP Document 8-2 Filed 05/13/20 Page 5 of 7
From: Janice Bellucci <jmbellucci@aol.com> To: schawkins@fresnocountyca.gov <schawkins@fresnocountyca.gov> Sent: Tue, May 12, 2020 2:19 pm Subject: TRO - Proposed Order Scott - Attached is a Proposed Order for the court's consideration. Please review the Order and let me know if you and your client agree to its contents. If you do not agree, we will file a TRO application with the court tomorrow requesting a hearing date of May 19. That date is important because John Doe #4's birthday is May 21 and he must register no later than May 28. We would appreciate your reply by tomorrow morning at 10 a.m. Thank you. Janice
Law Office of Attorney Janice M. Bellucci 1215 K Street, 17th Floor Sacramento, CA 95814 (805) 896-7854 This e-mail (including all attachments) is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that reading, disseminating, distributing or copying this e-mail, or any attachments hereto, is strictly prohibited. If you have received this e-mail in error, please notify Janice M. Bellucci by telephone at (805) 896-7854 and permanently delete this e-mail from your computer and delete all print or electronic copies of this e-mail.
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Case 1:20-cv-00600-NONE-JDP Document 8-2 Filed 05/13/20 Page 6 of 7
EXHIBIT B

Case 1:20-cv-00600-NONE-JDP Document 8-2 Filed 05/13/20 Page 7 of 7

From: Sent: To:
Cc: Subject: Attachments:

service@all4consolaws.org Wednesday, May 13, 2020 10:51 AM schawkins@fresnocountyca.gov; Douglas.Sloan@fresno.gov; Francine.Kanne@fresno.gov Janice Bellucci Notice of Motion for TRO - CAED Case No. 1:20-cv-600, Doe v. Hall Motion for TRO.pdf; TRO Memo with Exhibits.pdf; TRO Aff. re notice of TRO.pdf; TRO Aff. re irreparable injury.pdf; Proposed TRO.pdf; Proposed Order setting hearing on PI motion.pdf

Dear Counsel:
This email is to notify you that Plaintiffs John Doe #1 and John Doe #4 will today file the attached Motion for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction, with a requested hearing date of May 19, 2020 at 9:30 a.m. in Courtroom 4 of the United States District Court, 2500 Tulare Street, Fresno, CA. Copies of the supporting papers are also attached to his email. Thank you.
Law Office of Janice M. Bellucci (805) 896-7854

1

Case 1:20-cv-00600-NONE-JDP Document 8-3 Filed 05/13/20 Page 1 of 3

1 Janice M. Bellucci, SBN 108911 (JMBellucci@aol.com)
2 LAW OFFICE OF JANICE M. BELLUCCI 1215 K Street, 17th Floor
3 Sacramento, CA 95814 Tel: (805) 896-7854
4 Fax: (916) 823-5248 5 Attorney for Plaintiffs
6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

15

vs.

Case No.: 1:20-cv-00600-NONE-JDP PLAINTIFFS’ AFFIDAVIT IN SUPPORT OF EXISTENCE OF IRREPARABLE INJURY IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION

16 ANDREW HALL, in his official capacity as Chief of the Fresno Police Department;
17 and MARGARET MIMS, in her official capacity as Fresno County Sheriff,
18
Defendants.
19

Hearing date: May 19, 2020

20

21

Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 231(c)(4),

22 Plaintiffs John Doe #1 and John Doe #4 (“Plaintiffs”) hereby submit this Affidavit in

23 support of the existence of irreparable injury threatened by the actions sought to be

24 enjoined.

25

Plaintiffs’ Motion for Temporary Restraining Order (“TRO”) seeks to enjoin

26 Defendant Margaret Mims, in her official capacity as Fresno County Sheriff, from

27 requiring Plaintiffs to appear in person for periodic updates to their sex offender

28

________________________________________________________1_________________________________________________ PLAINTIFFS’ AFFIDAVIT IN SUPPORT OF EXISTENCE OF IRREPARABLE INJURY

Case 1:20-cv-00600-NONE-JDP Document 8-3 Filed 05/13/20 Page 2 of 3

1 registration pursuant to California Penal Code section 290.012 while the COVID-19

2 pandemic persists. Plaintiffs’ advanced age as well as chronic medical conditions,

3 including but not limited to diabetes, place them at an elevated risk of infection and

4 death from COVID-19. This risk is exacerbated by Defendant’s mandate that Plaintiffs

5 appear in person to complete their periodic updates.

6

The threat of infection from disease from COVID-19 is irreparable and

7 remediable by injunction. See Helling v. McKinney, 509 U.S. 25, 33 (1994) (“It would

8 be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening

9 condition in their prison on the ground that nothing yet had happened to them.”); Harris

10 v. Bd. of Supervisors, 366 F.3d 754, 759, 766 (9th Cir. 2004). In fact, one court recently

11 issued a TRO prohibiting the federal government from transferring COVID-19 patients

12 to a facility within the City of Costa Mesa on the grounds that the mere possibility of

13 exposure to residents in the community constitutes irreparable injury. City of Costa

14 Mesa v. United States, No. 8:20-cv-00368-JLS, 2020 U.S. Dist. LEXIS 33650 (C.D. Cal.

15 Feb. 21, 2020).

16

Several other courts have also enjoined civil detention orders due to the possibility

17 of COVID-19 spreading when the government forces groups to congregate, based in part

18 upon the ease with which COVID-19 spreads. E.g., Castillo v. Barr, No. 20CV00605-

19 TJH, 2020 U.S. Dist. LEXIS 54425, at *4 (C.D. Cal. March 27, 2020) (“Coronavirus is

20 spread between people who are in close contact . . . through respiratory droplets

21 produced when an infected person coughs or sneezes. . . . Moreover, studies have

22 established that the coronavirus can survive up to three days on various surfaces.” (citing

23 cases)); Thakker v. Doll, No. 1:20-cv-480, 2020 U.S. Dist. LEXIS 59459, at *21-*23

24 (M.D. Pa. Mar. 31, 2020) (“Indeed, courts have even specifically held that COVID-19

25 constitutes an irreparable harm that supports the grant of a TRO.” (emphasis added)).

26

In addition, threats of prosecution and imprisonment are quintessential irreparable

27 injuries, and both punishments have been threatened against Plaintiffs. E.g., Valle Del

28

________________________________________________________2_________________________________________________ PLAINTIFFS’ AFFIDAVIT IN SUPPORT OF EXISTENCE OF IRREPARABLE INJURY

Case 1:20-cv-00600-NONE-JDP Document 8-3 Filed 05/13/20 Page 3 of 3

1 Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (a “credible threat of

2 prosecution” coupled with “an alleged constitutional infringement” are sufficient to

3 constitute irreparable harm).

4

In this matter, immediate injunctive relief is necessary because Plaintiff John Doe

5 #4 must complete his periodic update no later than May 29, 2020, or risk arrest and

6 prosecution for failure to register pursuant to Penal Code section 290.012. See Exhibit

7 A to TRO Memo, Decl. of Pltf. John Doe #1, ¶¶7, 9. In addition, Plaintiff John Doe #1

8 is already at risk of immediate arrest and prosecution because Defendant has refused to

9 complete his periodic update, which was due no later than April 7, 2020, unless Plaintiff

10 John Doe #1 appears in person at the Sheriff’s station. Id. Exh. B, Decl. of Pltf. John

11 Doe #1, ¶¶4-10.

12

13

14 15
16 Dated: May 13, 2020
17 18 19 20

Respectfully Submitted,
LAW OFFICES OF JANICE M. BELLUCCI
By: /s/ Janice M. Bellucci Janice M. Bellucci Attorney for Plaintiffs

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________________________________________________________3_________________________________________________ PLAINTIFFS’ AFFIDAVIT IN SUPPORT OF EXISTENCE OF IRREPARABLE INJURY

Case 1:20-cv-00600-NONE-JDP Document 8-4 Filed 05/13/20 Page 1 of 2

1

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UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

Case No.: 1:20-cv-00600-NONE-JDP TEMPORARY RESTRAINING ORDER

14

Plaintiffs,

15

vs.

16 ANDREW HALL, in his official capacity as Chief of the Fresno Police Department;
17 and MARGARET MIMS, in her official capacity as Fresno County Sheriff,
18
Defendants.
19

20

21
TO DEFENDANT MARGARET MIMS:
22
Based upon Plaintiffs’ Motion for Temporary Restraining Order filed on May 13,
23
2020, and the other documents filed in connection therewith, the Court hereby orders as
24
follows:
25
1. This action challenges the constitutionality of Defendants’ requirement that
26
registered sex offenders (“Registrants”) appear in person for their periodic
27

28

________________________________________________________1_________________________________________________ TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00600-NONE-JDP Document 8-4 Filed 05/13/20 Page 2 of 2

1

updates pursuant to California Penal Code section 290.012 during the

2

COVID-19 pandemic.

3

2. Plaintiffs have established a likelihood of success on the merits of one or

4

more of the claims asserted in the First Amended Complaint;

5

3. Plaintiffs have demonstrated there is a threat of infection and possible death

6

from COVID-19, and/or the threat of arrest and prosecution should they fail

7

to appear in person to register, either of which constitutes irreparable harm.

8

4. The balance of hardships and the public interest weigh in favor of injunctive

9

relief while the merits of Plaintiffs’ claims are adjudicated.

10

5. The Court hereby exercises its discretion to waive the bond requirement of

11

Fed. R. Civ. P. 65(c) because “there is little or no harm to the party enjoined

12

and [] plaintiffs are unable to afford to post such a bond.” Lavan v. City of

13

Los Angeles, No. 11-cv-2874, 2011 U.S. Dist. LEXIS 46030, at *15-*16

14

(C.D. Cal. April 22, 2011) (citing cases).

15

6. Accordingly, it is hereby ORDERED that Defendant Margaret Mims, as

16

well as any other deputy, agent, employee, or official of the Fresno County

17

Sheriff’s Office who is responsible for the registration of sex offenders

18

pursuant to California Penal Code section 290, et seq., shall not require

19

Registrants to appear in person in order to complete, process, and transmit

20

to the California Department of Justice periodic updates or re-registration

21

pursuant to California Penal Code section 290.012.

22

23 ISSUED as an Order of this Court on the _____ day of May, 2020, at ___________.

24

25

____________________________

26

United States District Judge

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28

________________________________________________________2_________________________________________________ TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00600-NONE-JDP Document 8-5 Filed 05/13/20 Page 1 of 2

1

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8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual
13

14

Plaintiffs,

Case No.: 1:20-cv-00600-NONE-JDP [PROPOSED] ORDER SETTING HEARING ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

15

vs.

16 ANDREW HALL, in his official capacity as Chief of the Fresno Police Department;
17 and MARGARET MIMS, in her official capacity as Fresno County Sheriff,
18
Defendants.
19

20

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22

23

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25

26

27

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_________________________________________________________________________________________________________ ORDER SETTING HEARING ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-00600-NONE-JDP Document 8-5 Filed 05/13/20 Page 2 of 2

1

Following the issuance of the Temporary Restraining Order in this action, the

2 Court hereby ORDERS that the hearing on Plaintiffs’ Motion for Preliminary Injunction

3 will be on _______________, ____, at ____________________.

4

5

Plaintiffs shall file the Motion on or before ______________________________.

6

7

Defendant shall file an Opposition on or before __________________________.

8

9

Plaintiffs shall file a reply on or before __________________________________.

10

11
ISSUED as an Order of this Court on the _____ day of May, 2020, at ___________.
12

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____________________________

14

United States District Judge

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_________________________________________________________________________________________________________ ORDER SETTING HEARING ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

 
 Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 1 of 32

1 DANIEL C. CEDERBORG

County Counsel – State Bar No. 124260 2 SCOTT C. HAWKINS

3

Deputy County Counsel – State Bar No. 207236 FRESNO COUNTY COUNSEL

4 2220 Tulare Street, 5th Floor

Fresno, California 93721 5 Telephone: (559) 600-3479

6 Facsimile: (559) 600-3480

7 Attorneys for Real party in interest, COUNTY OF FRESNO

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11 JOHN DOE #1, an individual;

Case No.: 1:20-cv-00600-NONE-JDP

JOHN DOE #2, an individual; 12 JOHN DOE #3, an individual; and

13 JOHN DOE #4, an individual

RESPONDENTS’, (FRESNO COUNTY SHERIFF’S OFFICE AND SHERIFF

14 Plaintiffs,

MARGARET MIMS, IN HER OFFICIAL

15 vs.

CAPACITY), OPPOSITION TO PLAINTIFFS’ MOTION FOR

16 ANDREW HALL, in his official capacity

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE:

17 as Chief of the Fresno Police Department; PRELIMINARY INJUNCTION

and MARGARET MIMS, in her official 18 capacity as Fresno County Sheriff,

Hearing date: TBD

19 Defendants.

Time: TBD Courtroom: 4

20

2500 Tulare Street

21

Fresno, CA

22

23

RESPONDENTS, FRESNO COUNTY SHERIFF’S OFFICE and SHERIFF

24 MARGARET MIMS (IN HER OFFICIAL CAPACITY), hereby submit the following

25 Opposition Plaintiffs’ Motion For Temporary Restraining Order (“TRO”) And Order To

26 Show Cause Re: Preliminary Injunction.

27

28

Opposition to Plaintiffs’ Motion For Temporary

1

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 2 of 32

1

I. Introduction

2

Using pre-May 8, 2020 evidence to discuss a very different post-May 8, 2020

3 legal and physical environment, Plaintiffs claim that, because of the COVID-19

4 emergency, they (and, impermissibly, for all individuals who are required to register as

5 sex offenders under California’s Sex Offender Registration Act, CA Pen. Code, § 290 et

6 seq. (or the “Act”)) must be permitted to complete certain periodic updates to their

7 registrations remotely, without appearing in-person at a law enforcement agency as the

8 registration procedures require. Plaintiffs seek TRO directing Respondent to “cease

9 requiring persons required to register as a sex offender from appearing in-person” for

10 these periodic updates. The Court should deny Plaintiffs’ request for a TRO because

11 Plaintiffs cannot succeed on the merits of their claims as a matter of law.

12

Plaintiffs assert essentially two distinct theories that appear to be in tension with

13 each other, each of which lacks merit. Notwithstanding a reference to the Governor’s

14 May 8, 2020 Executive Order N-63-20 (See Respondents’ Request for Judicial Notice

15 (“RJN”), Exhibit “6”) related to, and suspending for the first time, certain registration

16 requirements under the Act, Plaintiffs’ Application for TRO argues that, contrary to long-

17 standing procedures, the Act “does not authorize” DOJ and local law enforcement to

18 require registrants to appear in-person for the “periodic” updates. They contend

19 Respondent “exceeded its authority” by allegedly imposing the requirement on its own.

20 Plaintiffs First Amended Complaint (“FAC”), however, asserts a different theory, namely

21 that requiring registrants to appear in-person is a injurious and harmful “discretionary

22 decision” by Respondent, and

23 that under the circumstances of the COVID-19 pandemic, the decision essentially

24 constitutes an abuse of discretion.

25

Despite Plaintiffs’ differing positions, (and again putting aside the current state of

26 affairs resulting from the Governor’s latest Executive Order), the relevant statutes as

27 discussed herein below, not only permit Respondents to establish procedures requiring

28 in-person updates but require that result. Respondent in facts lacks the discretion to

Opposition to Plaintiffs’ Motion For Temporary

2

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 3 of 32

1 provide otherwise. (In fact, nothing in the May 8, 2020 Executive Order changes that

2 fact.) Thus, Plaintiffs have no right to relief under the Act, even taking into consideration

3 the May 8, 2020 Executive Order, and they identify no other cognizable grounds for

4 relief.

5

To be clear, Respondent recognizes that these are exceptional times, and that,

6 consistent with the Governor’s stay-at-home orders, it is critically important to reduce

7 personal contacts during the present emergency. Indeed, the concerns that Plaintiffs

8 raise in this case apply with equal force to the law enforcement officers who must

9 process registrations under the Act, and to society at large. That said, and

10 notwithstanding the numerous and strict modified registration measures Respondent

11 implemented long before the May 8, 2020 Executive Order, and completely contrary to

12 Plaintiffs’ allegations (see accompanying Declaration of Aaron Horne), the Act imposes

13 certain requirements for the periodic updates that necessitate that registrants complete

14 the updates in-person, and the Act does not expressly grant Respondent or the

15 Department of Justice for that matter, the discretion to alter those statutory

16 requirements. Therefore, as Plaintiffs cannot succeed on the merits of their claims, the

17 Court should deny Plaintiffs’ Application for a TRO.

18

II. Preliminary Points

19

Respondent believes the following information is material to the Court’s

20 consideration in this matter such that it should be mentioned upfront.

21

1. Plaintiffs’ Alleged Evidence In Support of a TRO is Stale and Moot.

22

First, this Court should note that Plaintiffs in the instant Ex Parte Application for a

23 TRO, filed their original Complaint on April 28, 2020, and their FAC adding one

24 additional DOE Plaintiff (#4), on May 4, 2020. 1 Subsequently, and as the only evidence

25 in support of their TRO in this matter, Plaintiffs, JOHN DOE# 1 and #4, filed

26 declarations dated May 12, 2020, and May 8, 2020, respectively. As to the latter

27
28 1 ECF no. 5 makes no reference on the pleading itself that it is a FAC. The only difference between it and
the original Complaint is that the latter pleading includes a JOHN DOE #4 in the Caption and body.

Opposition to Plaintiffs’ Motion For Temporary

3

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 4 of 32

1 Declaration, there are no allegations referring to a time after April 20, 2020. As to the

2 former, except for a vague reference to “2020” in para. 9, the allegations concerning

3 Respondent’s registration process are based upon Plaintiff’s previous periodic update

4 account from a year ago, in May of 2019. As indicated in Plaintiffs’ moving papers,

5 however, the Governor of California, Gavin Newsome, issued Executive Order N-63-20

6 on May 8, 2020, providing for the first time ever for the use of discretion (non-mandatory

7 suggestions) by California Law Enforcement Agencies, including Respondent, as to

8 certain Registration requirements mandated by the California Sex Offender Registration

9 Act. (See RJN Ex. “6”).

10

Accordingly, Plaintiffs’ FAC and the only evidence before this Court filed in

11 support of the instant TRO application (including supporting allegations), pre-date the

12 issuance of the Governor’s recent Executive Order on the subject. It follows that

13 currently, and as it pertains to the application for TRO, there simply is no evidence

14 before the Court describing Respondent’s post-Executive Order registration procedures,

15 or even that Respondent will not, or is not for that matter, properly implementing any of

16 the Governor’s May 8, 2020 non-mandatory registration related alternatives as of, or

17 after, May 8, 2020. As a result of these indisputable facts, Plaintiffs’ claims based upon

18 allegations related to pre-May 8, 2020 registration processes employed by Respondent

19 - even if true (thought they are denied) – are both stale, and mooted by the Governor’s

20 latest order providing for previously non-existent discretion, to include in part, the newly

21 available “suspension” of the very requirements targeted by Plaintiffs Application for

22 TRO. These points are discussed further below.

23

2. A State Court Has Already Considered and Rejected Virtually Identical

Claims Recently Filed By Plaintiffs’ Counsel, With Another Pending In

24

The California Supreme Court.

25

Second, the Court should note that Counsel for Plaintiffs recently filed an action

26 in Los Angeles Superior Court wherein her Registrant clients assert largely the same

27 allegations that Plaintiffs raise here, but naming as respondents both the California

28 Attorney General as Head of the Dept. of Justice, and the Los Angeles County Sheriff’s

Opposition to Plaintiffs’ Motion For Temporary

4

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 5 of 32

1 Department. (See RJN Ex “1” [Petitioners’ First Amended Petition for Writ of Mandate,

2 Case No. 20STCV12138, Los Angeles County Superior Court].) As in the instant

3 matter, Counsel promptly filed an application for a TRO in the LA matter, requesting that

4 the court enjoin the respondents from requiring in-person “periodic” updates during the

5 present emergency. As seen by a side-by-side comparison, that pleading, as it has in

6 other matters, serves as the template for Plaintiffs’ Cal. Supreme Court Action, as well

7 as the instant Federal application.

8

In the LA matter, after full briefing, including the application for a TRO and

9 memorandum of points and authorities, oppositions by both the Attorney General and

10 Los Angeles Sheriff, and a reply by Petitioners, the Court denied Petitioners’ request for

11 a TRO. (RJN, Ex “2” [Order Denying Application for TRO, April 17, 2020].) The court

12 ruled that Petitioners “have shown no or very little likelihood of success on the merits.”

13 (Id.) It further ruled that “[t]he balance of harms does not tip appreciably in plaintiff’s

14 favor.” (Id.) The case is currently proceeding in that court.

15

Specifically in that action, like here, Petitioners alleged that because of the

16 coronavirus emergency, persons subject to the Act (registrants) must be allowed to

17 complete the periodic updates—the annual, 30-day, and 90-day updates described

18 above—without appearing in-person at a local law enforcement agency. Like the

19 instant case, Petitioners alleged that the Act “does not require” in-person registration for

20 the periodic updates, and that the requirement to appear in-person for the updates is

21 instead a “discretionary” decision imposed by DOJ. (Pet., ¶¶ 1, 33, 38-39, 47).

22 Petitioners alleged that the decision to require in-person updates during the pandemic

23 puts registrants, law enforcement, and the public at large at risk (Pet., ¶¶ 39-43), and

24 that respondent (DOJ) has “abused and continue[s] to abuse” its discretion by requiring

25 registrants to appear in-person for the periodic updates during the emergency. (Id., ¶¶

26 5, 54, 56.)

27

Like here, Petitioners claimed that the “equities in this case” demand that DOJ

28 “suspend[]” the requirement that registrants appear in-person. (Id., ¶ 47.) Petitioners

Opposition to Plaintiffs’ Motion For Temporary

5

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 6 of 32

1 further alleged, like here, that the requirement to appear in-person violates the state and

2 local stay-at-home orders (id., ¶¶ 1- 2, 39, 52, 56), and that there is no practical reason

3 to require in-person updates because law enforcement can obtain the required

4 information through other means, such as by telephone or videoconference apps. (Id.,

5 ¶¶ 4, 47.)

6

Finally, Petitioners alleged in a single sentence that “[t]he State violates the rights

7 of individuals when it subjects them to the risk of physical harm and disease during

8 required interactions with law enforcement” (id., ¶ 53), though they do not explain much

9 on the point. The Petition included additional allegations seemingly implying that the Act

10 actually prohibits in-person updates, and (as with the instant Application) that

11 respondent (DOJ) exceeded its statutory authority by requiring in-person updates. But

12 the memorandum of points and authorities concedes that the Act, at a minimum,

13 permits DOJ to require in-person updates, stating “Petitioners do not allege that

14 Respondents acted unreasonably in interpreting the Act to permit in-person registration

15 for periodic updates.” Thus, Petitioners alleged only that the Act does not affirmatively

16 require in-person updates, and that, under the present circumstances, DOJ’s decision

17 not to alter the longstanding procedures to permit remote updates amounted to an

18 abuse of discretion.

19

There, Petitioners sought a writ of mandate “directing Respondents to cease

20 requiring in-person registration for the 30-day, 90-day, and annual updates pursuant to

21 section 290.012 until the threat of COVID-19 ends.” (Pet., ¶ 11 & Prayer for Relief.)

22 Like here, Petitioners made clear that their claims concern only the three “periodic

23 updates”—the annual, 30-day, and 90-day updates described above. (Pet. ¶¶ 1, 11.)

24 Petitioners there do not claim that registrants must be permitted to complete their initial

25 registration or other required updates (such as change-of-address or change-of-name

26 updates) remotely. Petitioners, like here, also do not claim that persons subject to the

27 Act should be relieved of their obligation to complete the periodic updates altogether,

28 but only that they should not be required to appear in-person to do so.

Opposition to Plaintiffs’ Motion For Temporary

6

Restraining Order And Order To Show

Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10 Filed 05/20/20 Page 7 of 32

1

Finally, on or about April 1, 2020, Counsel, Ms. Janice Bellucci, also filed an

2 Original Verified Petition for Writ of Mandate/Prohibition in the California Supreme Court

3 (Case No. S261522) against the same parties and, again, virtually identical to the Los

4 Angeles filing as well as the instant TRO Application. That Petition is also currently

5 pending before the California Supreme Court. Counsel for Plaintiff’s in the instant

6 Application is plainly forum-shopping for the relief set forth in the various Applications

7 and Petitions filed in State Court, one of which has already been considered and

8 rejected.

9

3. Plaintiffs’ FAC and TRO Application Constitute A Direct Challenge To

The State Act, Implicating Notice To The State Attorney General. 2

10

11

As a final preliminary matter, Respondent asserts based upon the only evidence

12 filed in support of the instant Application, none of which purports to describe

13 Respondent’s registration processes or practices after the issuance of Governor

14 Newsome’s May 8, 2020 Executive Order relating to the California’s Sex Offender

15 Registration Act, that Plaintiffs’ latest effort can only be construed as a direct challenge

16 to (the constitutionality/validity of) the Act, to include section 290.012 (Periodic updates).

17 Accordingly, Respondent requests that the Court consider and grant this request to

18 invoke the provisions of section 28 U.S.C.A. § 2403, subd. (b), at this time. This

19 Federal Statute provides that,

20

“In any action, suit, or proceeding in a court of the United States to which

21

a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest

22

is drawn in question, the court shall certify such fact to the attorney

general of the State, and shall permit the State to intervene for

23

presentation of evidence, if evidence is otherwise admissible in the case,

24

and for argument on the question of constitutionality.”

25

26 2 Respondent also contemplates in this short response time whether the State Attorney General, for these

27

same reasons, including as the Agency responsible for the collection and enforcement of all Registrations in the State of California, is a necessary party to this proceeding. For reasons related to the extremely

28 short notice and time to respond to this matter, and inability to fully review and research this issue,

Respondent also asks that the Court at least consider this issue.

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1

This request is particularly relevant here, where Counsel for Plaintiffs has filed a

2 number of actions in California Courts where her clients, whether directly or indirectly,

3 have drawn into question the constitutionality/validity of the certain mandatory in-person

4 registration requirements under California’s Sex Offender Registration Act, to include

5 section 290.012. Further question lies, wherein the California Attorney General is

6 already a party to and litigating in one or more of those essentially identical actions, but

7 where he is (purposefully) not named in this instant Federal request for relief. Indeed,

8 Plaintiffs’ instant FAC, as well as their Application for TRO (on their face anyway) at

9 least purport to assert a direct constitutional challenge to the Act under both the Eighth

10 and Fourteenth Amendments, despite attempting to couch them as claims against the

11 “unauthorized and injurious decisions” of Respondent.

12

In addition to and in furtherance of the forgoing preliminary information,

13 Respondent provides the remaining points in opposition to Plaintiffs’ TRO.

14

II. Relevant Factual Matters

15

As stated above, and as it pertains to Plaintiffs’ Application for TRO, there simply

16 is no evidence before the Court describing Respondent’s post-Executive Order

17 registration procedures, or even that Respondent will not, or is not for that matter,

18 properly implementing any of the Governor’s May 8, 2020 non-mandatory registration

19 related alternatives as of, or after, May 8, 2020. In fact, and contrary to Plaintiffs’

20 declarations related to pre May 8, 2020 processes, including the only account from John

21 DOE #4, based upon an alleged registration encounter over twelve months ago,

22 Respondent in fact has implemented escalating precautionary measures since March

23 2020, in keeping with State and Local Health orders. In the interests of time and

24 brevity, the following is a very short synopsis. Please refer to the Declaration of

25 Detective Horne (“DAH __”) for a complete factual history.

26

A. Initial COVID-Responsive Registration Process (3/18/2020):

27

“On 3/18/2020 – Due to the ‘Shelter in Place order,’ FCSO closed the registration

28 building to registrants, posted a sign in front window that states, ‘LOBBY CLOSED

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1 UNTIL FURTHER NOTICE. REGISTRATIONS WILL BE DONE OUTSIDE T, W, TH

2 9AM – 12NOON.’ We started by using tables outside, allowing ‘social distancing,’ while

3 still having registrants sign in, provide thumbprint and signature on the forms, and we

4 still collected forms while wearing gloves and masks.” (DAH, ¶ 3).

5

B. No-Contact COVID-Responsive Registration Processes (4/7/2020):

6

“On 4/7/2020 – to the present, due to the extension of the ‘Shelter in Place’

7 order, FCSO started ‘no contact’ registrations. The building remains closed to

8 registrants, we removed the tables, taped off both entrances to the raised porch along

9 the front of the building. We accept no paperwork, Driver’s licenses, I.D.’s, etc. from

10 registrants and observe at least 6 feet of social distance. We have painted ‘X’s’ on the

11 ground to indicate the proper positioning. We sign-in registrants and document any

12 necessary changes. Upon completing the Department of Justice’s (“DOJ’s”) 8102 forms,

13 in the comments section, we type or hand-write ‘Covid-19 – No signature / fingerprints.

14 Verbal confirmation of information / requirements.’ We sign & date the forms and

15 provide the registrant the opportunity to accept a copy. We take a photo of the

16 registrant from distance of at least 6 feet. All this is conducted while wearing gloves and

17 some wearing masks. We also maintain accessible hand-sanitizers.” (DAH, ¶ 5).

18

C. Plaintiff’s Counsel Fully Informed About Pre-May 8, 2020 Registration

Processes Prior To Filing Both FAC and Subsequent Application For

19

TRO.

20

Respondent in fact had detailed communications with Plaintiffs’ counsel in April

21 2020, fully informing her, as well as Plaintiff John DOE #1, of the current COVID-

22 responsive registration processes beginning as early as March 2020. These

23 communications took place prior to Counsel filing the instant action and related

24 Application or TRO on Plaintiffs’ behalf. See (DAH, ¶¶ 8-20).

25

D. Based On The True Facts, Respondent Was Implementing “Other Procedures” In Keeping With Health Directives And As Encouraged By

26

The Governor’s May 8, 2020 Executive Order, Long Before It Was

Issued. 27

28

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1

Based on the forgoing, Plaintiffs’ Counsel, Ms. Janice Bellucci, filed the FAC and

2 subsequent Application for a TRO on behalf of these two Plaintiffs with full knowledge of

3 the true facts about Respondent’s Registration Processes as of those filing dates, as set

4 forth in the Declaration of Detective Aaron Horne. The facts indicate that Counsel

5 Bellucci knew as of those filing dates, that 1) Respondent was already implementing

6 Registration practices consistent and in compliance with State and Local Health

7 Directives, long before she filed the instant action and Application for TRO; 2) the

8 Governor’s May 8, 2020 Executive Order both expressly encouraged and permitted, but

9 did not mandate, those Registration practices; 3) the statements, allegations, and

10 evidence to the contrary contained in the FAC and other moving TRO papers, such as

11 the statements made by JOHN DOE #4, for example, based upon a completely

12 irrelevant May 2019 registration, were not based on accurate and then current and

13 readily accessible factual information regarding Respondent’s COVID-responsive Sex

14 Offender Registration processes; and 4) the Los Angeles Superior Court, Central

15 District, the Honorable Mary H. Strobel presiding, had already fully considered and flatly

16 rejected as lacking merit virtually identical assertions by Counsel (See RJN Ex “2”).

17

For reasons further set forth herein, these facts and circumstances, as well as

18 the applicable law, wholly preclude the relief requested by Plaintiff’s in the FAC, as well

19 as the instant Application for TRO, and this Court should also reject the same.

20

III. Other Background.

21

A. Plaintiffs’ First Amended Complaint

22

The gist of this action is Plaintiffs’ claim that, because of the coronavirus

23 emergency, persons subject to the Act (registrants) must be allowed to complete the

24 “periodic updates’—the annual, 30-day, and 90-day updates described above—without

25 appearing in-person at a local law enforcement agency. (First Amended Complaint and

26 Complaint (“FAC”), ¶ 1.) Plaintiffs assert varying theories for why they claim the law

27 compels this result. The FAC alleges that the Act does not expressly require registrants

28 to appear in-person for the periodic updates, and that requiring in-person updates is a

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1 “discretionary” and “injurious” decision made by DOJ or local law enforcement agencies.

2 (Id., ¶¶ 1, 3.) It alleges that the “purposes” of the statute could effectively be achieved

3 through alternate means, such as providing the necessary information over the

4 telephone or via video conference apps, or by delaying the collection of some

5 information until the pandemic has ended. (Id., ¶¶ 3, 39.) It alleges that Respondents

6 have/had the “discretion” to process periodic updates without requiring registrants to

7 appear in person, and that, given the COVID-19 emergency, Respondents have

8 “unlawfully refuse[d] to exercise” their “discretion” to permit that result. (Id., ¶¶ 1, 28, 39,

9 46-47; see also Plaintiffs’ Ex Parte Application (“Ex Parte App.”), p.6 [referring to the

10 “discretionary in-person registration requirements challenged in this action”].)

11

Plaintiffs’ Ex Parte Application for TRO, however, asserts a different theory. It

12 appears to argue that the Act actually prohibits any requirement that registrants appear

13 in-person for the periodic updates. Specifically, it contends that the Act expressly

14 requires in-person registration in some instances, but not for the “periodic” updates at

15 issue, and therefore, based on canons of construction, Respondents “may not impose”

16 that requirement. (Ex Parte App. at 1-2, 10-13.) Plaintiffs further assert that they are

17 entitled to relief because registrants must shelter-in-place under various state and local

18 directives, and in-person reporting violates those directives and, at least under the

19 erroneous factual circumstances they assert, puts registrants and all others at risk of

20 contracting COVID-19. (FAC. ¶¶ 2, 21-22.) In addition, they assert that the periodic

21 updates are a “comparatively unimportant component of the Act” and thus the relief they

22 seek would “not compromise the purpose or function of the Act.” (Ex Parte App. at 7-8.)

23

Plaintiffs also do not claim that registrants must be permitted to complete their

24 initial registration or other required updates (such as change-of-address or change-of-

25 name updates) remotely. Plaintiffs also do not claim that persons subject to the Act

26 should be relieved of their obligation to complete the periodic updates altogether, but

27 only that they should not be required to appear in-person to do so.

28

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1

Finally, Plaintiffs make clear that their claims concern only the three periodic

2 updates—the annual, 30-day, and 90-day updates described above. (FAC. ¶¶ l.)

3 Plaintiffs make a vague and legally unsupported attempt to argue various constitutional 4 claims under the 14th Amendment, including “State Created Danger theory, and an

5 “Arbitrary and Capricious” theory. Again, their application for TRO, unlike their FAC,

6 contains no allegations under the Eighth Amendment alleging a theory of cruel and

7 unusual punishment. Still, Plaintiffs FAC merely analogizes to claims by prisoners, 8 inmates and civil and immigration detainees, not Sex Offender Registrants. The Court

9 should also note that Plaintiffs’ Application for TRO and proposed order, only seeks an

10 Order that: Respondent “shall not require Registrants to appear in-person in order to 11 complete, process, and transmit to the California Department of Justice periodic

12 updates or re-registration pursuant to California Penal Code section 290.012.”

13

Based on the May 8, 2020 Executive Order alone, set forth herein below, not

14 even the Governor of the State of California has mandated such a restriction upon Law 15 Enforcement. Likely this is due to the nature of the law itself, but also current directives

16 by the State Health officials as set forth herein, and related circumstances surrounding 17 the State’s daily progression to re-opening economic, business and social activities,

18 including easing the stay at home restrictions.

19

It is also worth noting that Plaintiffs’ FAC is markedly different, and despite

20 alleging a separate “Third” claim seeking a “declaration of their rights under California

21 and federal law, as well as a declaration of Defendants’ duties under the Sex Offender

22 Registration Act, and of the scope of Defendants’ discretion under that Act,” Plaintiffs 23 prayer for relief contains no such request. Additionally, their First Claim, for violation of

24 the Due Process Clause of the Fourteenth Amendment, as well as their Second Claim

25 under the Eight Amendment Cruel and Unusual Punishment theory, respectively, are 26 based entirely on the Court adopting not only their completely inaccurate and stale

27 allegations of Respondent’s registration practices as set forth herein, but also their

28 erroneous “constructive custody” theory, claiming at registration, Registrants are subject

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1 to impermissible interrogations and are not free to leave. This is facially absurd, and

2 again, Plaintiffs’ prayer for relief is devoid of any related requests.

3

B. The Sex Offender Registration Act.

4

Subject only to certain temporary exceptions as provided in the Governor’s May 8,

5 2020 Executive Order as discussed further herein, California’s Sex Offender Registration

6 Act (Pen. Code, § 290 et seq.) provides that any individual who is convicted of specified

7 sex offenses must register with the chief of police or sheriff of the city or county in which

8 he or she is residing—and also with campus police in certain circumstances—within five

9 working days of coming into or changing an address within the city or county, and

10 “thereafter in accordance with the Act.” (Id., § 290, subd. (b).) The registration must

11 consist of detailed information including fingerprints, a current photograph, the name and

12 address of the person’s employer, license plates, a list of all internet identifiers used by

13 the person, and several other items. (Id., § 290.015, subds. (a)-(b).)

14

The Act also requires that such persons must update their registration in various

15 circumstances. For example, a person required to register must notify law enforcement if

16 the person changes his or her address (id., § 290.013), changes his or her name (id., §

17 290.014, subd. (a)), or if the person changes an internet identifier (id., § 290.14, subd.

18 (b)). Of particular relevance here, the Act also requires that persons required to register

19 must update their registration or re-register on a periodic basis at regular intervals.

20 Specifically, all persons subject to the Act must update their registration annually. (Id., §

21 290.012, subd. (a).) In addition, any person who has been adjudicated a sexually violent

22 predator must update the registration every 90 days. (Id., § 290.012, subd. (b).)

23

Finally, any registrant who is living as a transient in California must update the

24 registration every 30 days. (Id., §§ 290.012, subds. (c).) As explained below, the Act’s

25 registration procedures require that persons subject to the Act must appear in-person at

26 a local law enforcement agency and provide detailed information specified by the Act in

27 order to complete the initial registration and the periodic updates. As required by the Act,

28 the registration and updates are completed on official forms prepared and administered

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1 by DOJ, which, in accordance with the Act, also require registrants to register in-person.

2 The Act requires that “[w]ithin three days [of the registration], the registering law

3 enforcement agency or agencies shall forward the statement, fingerprints, photograph,

4 and vehicle license plate number, if any, to the Department of Justice.” (Pen. Code, §

5 290.015, subd. (b).) DOJ is also required to maintain an Internet Web site that makes

6 available information concerning persons who are required to register under the Act. (Id.,

7 § 290.46.).

8

C. The May 8, 2020 Executive Order No. N-63-20

9

In relevant part, the Governor’s May 8, 2020 Executive Order provides the

10 following concerning the California Sex Offender Registration Act.

11

“No. 15) Law enforcement agencies are encouraged to adopt telephonic,

remote, or other procedures for registration and reporting under the Sex

12

Offender Registration Act that are consistent with State and local public

13

health guidance regarding physical distancing, and to post or publicize such procedures through means calculated to reach any

14

person subject to the Act.

a) To the extent that a law enforcement agency institutes telephonic,

15

remote, or other procedures to enable physical distancing, all provisions of

16

the Sex Offender Registration Act (Penal Code sections 290 to 290.024, inclusive) and implementing procedures that require persons subject to the

17

Act to appear in person, and all provisions of the Act and

implementing procedures that require such persons to provide a signature,

18

fingerprints, and photograph, are suspended for 60 days.

19

b) To ensure that lack of technology does not prevent any individual from

complying with registration and reporting requirements, law enforcement

20

agencies are encouraged to provide alternative means of registration

and reporting, including permitting the physical presence of

21

registrants consistent with State and local public health guidance

22

regarding physical distancing. The requirement to register and all

other registration and reporting requirements of the Sex Offender

23

Registration Act remain in place.” [Emphasis Added].

24

25

As issued, the Executive Order issued May 8, 2020 does not “require” Law

Enforcement to take any action. It merely provides that to the extent agencies choose 26

to implement suggestions provided for in the Order, that certain requirements, which 27

prior to the order Agencies would plainly have been prevented from taking, are 28

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1 suspended for 60 days – thereby allowing for the use of certain limited, and heretofore

2 non-existent, discretion related to Offender registration requirements. Importantly, and

3 as acknowledged by Plaintiff’s in their Application, these suggestions, while

4 encouraged, were not mandated, leaving the Act and all of its requirements intact. As

5 far as concerns Respondent in this matter, Respondent had implemented numerous

6 strict COVID-responsive precautions, consistent with State and local Health directives,

7 as early as March 18, 2020, with even more strict “no-contact” precautions as early as

8 April 7, 2020 -- All of which were known to Plaintiffs and their Counsel prior to the filing

9 of their instant action and related Application for TRO, as further explained herein.

10

For these and other reasons set for in this response, the Court should deny

11 Plaintiffs request.

12

IV. Legal Arguments

13

A. Standard Re TRO Relief

14

A party seeking a temporary restraining order must establish (1) he is likely to

15 succeed on the merits; (2) he is likely to suffer irreparable harm absent preliminary

16 relief; (3) the balance of equities tips in his favor, and (4) an injunction is in the public

17 interest. See Cross Culture Christian Ctr. v. Newsom, No. 220CV00832JAMCKD, 2020

18 WL 2121111, at *3 (E.D. Cal. May 5, 2020), citing Winter v. Nat. Res. Def. Council, Inc.,

19 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) [other citation omitted]. In the

20 Ninth Circuit, courts may also issue temporary restraining orders when there are

21 “serious questions going to the merits” and a “balance of hardships that tips sharply

22 towards the plaintiff” so long as the remaining two Winter factors are present. [Id.,

23 internal citation omitted]. When applying either test, courts operate with the

24 understanding that a temporary restraining order, much like a preliminary injunction, is

25 an “extraordinary and drastic remedy.” [Id., internal citation omitted].. “The propriety of a

26 temporary restraining order, in particular, hinges on a significant threat of irreparable

27 injury [ ] that must be imminent in nature.” Id., citing Gish, No. EDCV 20-755-JGB(KKx),

28 2020 WL 1979970, at *3 (April 23, 2020) [Other internal citation omitted].

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1

B. Plaintiffs’ Application For A TRO Lacks Merit And They Are Unlikely To

Succeed On The Merits. 2

3

Here, Plaintiffs are two individuals who have been convicted of sex

4 offenses who are required to comply with certain reporting requirements under

5 the Sex Offender Registration Act codified under California Penal Code § 290, et

6 seq. It should be noted here that both the FAC and TRO application seek a

7 categorical, across-the-board change to the registration procedures for ALL

8 registered sex offenders (see the Prayer for Relief, and the proposed order in

9 support of TRO). There is absolutely no basis for such across-the-board relief,

10 which would essentially amount to a facial claim, based on the specific

11 circumstances of two petitioners. For example, not all sex offenders are at-risk

12 individuals; Plaintiffs cannot and do not describe or show how all (or even most)

13 sex offenders have been or are being subjected to undue or unreasonable risks,

14 much less that they will be subjected to risks going forward, particularly after the

15 Governor’s Executive Order altered the legal landscape. Some might not even

16 need to update their registrations for many months. Plaintiffs clearly fail to state a

17 facial claim based on such a sparse showing.

18

Otherwise, Plaintiffs are requesting, on an ex parte basis, that the Court

19 prevent Respondents from conducting periodic check-ins of sex offenders in-

20 person pursuant to the Sex Offender Registration Act. The various registration

21 requirements of the Sex Offender Registration Act, however, are specifically for

22 the benefit of public safety. As a further preliminary matter, under State law, the 23 Court should note that an injunction may not be granted "to prevent the execution 24 of a public statute by officers of the law for the public benefit." Cal. Civ. Pro. 25 §526(b)(4); §3424(d). Perhaps this is also why Plaintiff chose this specific Federal 26 forum. Further, it is simply not true that Respondent (or any other Governmental 27 entity or actor) is violating State or local Health Orders, or State law (to include the 28 Sex Offender Registration Act) by continuing to conduct essential law

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1 enforcement/governmental services such as critical and public safety services like

2 Sex Offender Registrations. Moreover, nothing in the alleged stay at home orders

3 limits peace officers from enforcing the law, including complying with the 4 requirements of the Sex Offender Registration Act. Yet, that is precisely what

5 Plaintiffs are seeking to do in their FAC and corresponding ex parte Application.

6 As explained herein, Plaintiffs’ claims lack merit and they are not likely to meet the

7 burden required for an order halting these services.

8

Finally, because Respondent was mandated - until issuance of the

9 Governor’s May 8, 2020 Executive Order - to conduct the periodic check-ins in10 person, the pending Application for TRO and alleged supporting “pre-May 8, 2020” 11 evidence simply does not satisfy the Plaintiffs burden regarding the merits of their

12 claims (particularly at present) sufficient for the Court to grant their requests.

13 Accordingly, and for each and all of the reasons explained herein, Plaintiffs are not

14 likely to succeed on the merits of their Petition and, as such, the Court should reject 15 the Application for a TRO.

16

C. Plaintiffs’ Evidence In Support of a TRO Is Stale and Moot.

17

The Governor’s May 8, 2020 Executive Order suspending certain Registration

18 requirements, completely changed the landscape of The Sex Offender Registration

19 Act as it existed on May 7, 2020. As indicated previously in this response, Plaintiffs

20 have put no evidence before this Court describing Respondent’s post-Executive

21 Order registration procedures, or even that Respondent will not, or is not for that

22 matter, properly implementing any of the Governor’s May 8, 2020 non-mandatory

23 registration related alternatives as of, or after, May 8, 2020.

24

As indicated above, as a result of the indisputable facts regarding

25 Respondent’s COVID-responsive registration processes, Plaintiffs’ claims based

26 upon stale allegations related to Respondent’s pre-May 8, 2020 registration

27 processes - even if true (thought they are denied) - are mooted by the Governor’s

28 latest order providing for previously non-existent discretion, to include in part, the

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1 newly available “suspension” of the very requirements targeted by Plaintiffs

2 Application for TRO, and their claims are simply no longer ripe for consideration by

3 the Court. See United States v. State Water Res. Control Bd., 418 F. Supp. 3d 496,

4 519 (E.D. Cal. 2019), citing Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir.

5 2009) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140

6 L.Ed.2d 406 (1998)) [A “claim is not ripe for adjudication if it rests upon contingent

7 future events that may not occur as anticipated, or indeed may not occur at all.”].

8 “Where a dispute hangs on future contingencies that may or may not occur, it may

9 be too impermissibly speculative to present a justiciable controversy.” Id., citing

10 Davis v. Guam, 785 F.3d 1311, 1318 (9th Cir. 2015) (internal quotation marks and

11 citations omitted). “[A] case is moot when the issues are no longer ‘live’ or the

12 parties lack a legally cognizable interest in the outcome.” See Campos v. Fresno

13 Deputy Sheriff's Ass'n, No. 1:18-CV-1660 AWI EPG, 2020 WL 949915, at *5 (E.D.

14 Cal. Feb. 27, 2020), citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,

15 23 L.Ed.2d 491 (1969); and Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th

16 Cir. 2011). That is, if events subsequent to the filing of the case resolve the parties'

17 dispute, the court must dismiss the case as moot. Pitts, 653 F.3d at 1087. “The basic

18 question in determining mootness is whether there is a present controversy as to

19 which effective relief can be granted.” Campos, supra.

20

D. Plaintiffs’ Claims That Respondent Is Violating Government Stay-

At-Home Orders Or That They Preclude In-Person Sex Offender

21

Registration, Are False.

22

Nothing in the a lleg ed stay at home orders referenced by Plaintiffs limits

23 peace officers from enforcing the law, including complying with the requirements

24 of the Sex Offender Registration Act. In fact, the official State of California

25 “COVID19.CA.GOV” website as of the submission of this response, specifically

26 states that the “The Governor has ordered Californians to obey the directives of the

27 State Public Health Officer. Those directives take many forms; they include specific

28 materials linked on this page, as well as these questions and answers. These

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1 questions and answers are directives from the State Public Health Officer, and have

2 the same force and effect as other State Public Health Officer directives.” (See RJN

3 Ex “7”). The Governor also confirms here that “As of May 8, the stay home order

4 was modified. We are now in the first phase of Stage 2. This means in addition to

5 essential activity, curbside retail is allowed, along with the infrastructure to support it.

6 As of May 12, offices, limited services, and outdoor museums are also permitted to

7 open.” He also confirms that “as described in more detail elsewhere in applicable

8 state public health directives (including on this page), there are a wide range of

9 circumstances in which you may leave your home or other place of residence, even

10 if you are not an Essential Critical Infrastructure Worker.” He confirms that people

11 may leave their homes to conduct business with “Essential services that protect

12 public health, public safety, and provide essential needs, and that these services will

13 remain open.” He confirms that these expressly include “Gas stations, Pharmacies,

14 Food and Grocery stores, farmers markets, food banks, convenience stores, take-

15 out and delivery restaurants, Banks, Laundromats/laundry services.” He then

16 confirms that “Essential state and local government functions will also remain

17 open, including law enforcement and offices that provide government

18 programs and services.” This even includes for example, with certain exceptions,

19 visits to the DMV.

20

Based on the facts as set forth in the Declaration of Detective Aaron Horne,

21 Plaintiffs allegations about Respondents pre-May 8, 2020 registration processes are

22 without merit. Plaintiffs failed to submit evidence of any post May 8, 2020

23 registration processes and therefore their instant claims are moot and completely

24 without merit.

25

E. The Registration Requirements Of The Sex Offender

Registration Act Are For The Public Benefit And Safety.

26

27

Notwithstanding the forgoing points defeating the instant request for a TRO,

28 most notably those related to the May 8, 2020 Executive Order and the state of the

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1 evidence in this matter, the Sex Offender Registration Act, codified at California

2 Penal Code §290, et. seq., Registration serves a critical function for the public’s

3 benefit. In implementing the Act the "Legislature finds and declares that a

4 comprehensive system of risk assessment, supervision, monitoring and containment

5 for registered sex offenders residing in California communities is necessary to

6 enhance public safety and reduce the risk of recidivism posed by these offenders."

7 Cal. Pen. Code §290.03(a). Specifically, "sex offenders pose a potentially high risk

8 of committing further sex offenses after release from incarceration or commitment,

9 and the protection of the public from reoffending by these offenders is a paramount

10 public interest." Cal. Pen. Code §290.03(a)(l ) (emphasis added).

11

Prior to May 8, 2020, in other words, as far as Plaintiffs’ Application is

12 concerned, the Sex Offender Registration Act requires, among other things, periodic

13 check-ins by sex offenders subject to the requirements of the Act. Pursuant to the

14 Sex Offender Registration Act, the California Department of Justice has distributed

15 forms to law enforcement agencies specifying the various compliance measures

16 required by sex offenders. These include, as acknowledged by Petitioners, the

17 requirement that sex offenders register with their local law enforcement authorities,

18 in person, periodically. (See, RJN Ex “1”, First Amended Petition for Writ of Mandate

19 at 11:9-15 and Exhibit "2," Order, attached thereto at pp. 3-4, 6-7, 9 and 12.)

20

Plaintiffs have not cited any cases that have held that sex offenders are not

21 required to periodically check in with their local law enforcement agencies, in person,

22 on a periodic basis. To the contrary, courts have already acknowledged that the

23 periodic registration requirements are to specifically be in-person and the

24 requirement to have to periodically register in-person is constitutional and does not

25 violate any fundamental rights. See, e.g., Litman v. Harris, 768 F.3d 1237, 1241 (9th

26 Cir. 2014). See also Does 1-134 v. Wasden, No. 1:16-CV-00429-DCN, 2019 WL

27 1508037, at *6 (D. Idaho Apr. 5, 2019) [Plaintiffs also highlight burdensome in-

28 person registration requirements every three months or upon travel. However, the

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1 Ninth Circuit has expressly rejected the contention that such requirements constitute

2 an affirmative disability], citing American Civil Liberties Union v. Masto, 670 F.3d

3 1046, 1057 (9th Cir. 2012), citing Smith v. Doe, 538 U.S. 84 (2003). See 4 Richardson v. Becerra, No. 217CV01838JAMACPS, 2019 WL 397487, at *3 (E.D.

5 Cal. Jan. 31, 2019) [With respect to a substantive due process claim, rational basis

6 review requires a challenged statute to bear only a “reasonable relation to a

7 legitimate state interest.” The Ninth Circuit has repeatedly found that sex offender 8 registration and notification provisions are rationally related to legitimate government

9 purposes, .. and Sex offenders are not a protected class, and the Ninth Circuit has

10 held that sex offenders do not have a fundamental right to be free from registration 11 requirements. Accordingly, rational basis review applies. Further, this Court rejected

12 sex offenders allegation of a violation of the right to be free from unreasonable,

13 arbitrary, and oppressive official action (ECF No. 1 at 39-48), is merely a reiteration

14 of plaintiff’s substantive due process claim]. Id.

15

Consistent with the purpose of the Sex Offender Registration Act as well as

16 both the California Department of Justice's and the Ninth Circuit's interpretation of 17 the Sex Offender Registration Act to require periodic in-person check-ins, courts in

18 California have repeatedly acknowledged that the "purpose of section 290 is to

19 assure that persons convicted of the crimes enumerated therein shall be readily 20 available for police surveillance at all times because the Legislature deemed them

21 likely to commit similar offenses in the future, People v. Brandao, 203 Cal. App. 4th

22 436, 441 (2012) (emphasis added); see also, e.g., Good v. Superior Court (2008) 23 158 Cal.App.4th 1494, 1509 " the legislature has found and declared that sex

24 offenders pose a high risk of recidivism, and keeping track of their whereabouts is

25 necessary to protect the public.” See also People v. Barker, 34 Cal.4th 345 (2004); 26 People v. Britt, 32 Cal.4th 944 (2004); People v. Meeks, 123 Cal.App.4th 695 (2004); 27 People v. Jones, 101 Cal.App.4th 220 (2002); People v. Davis, 102 Cal.App.4th 377

28 (2002).

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1

As the California Supreme Court has emphasized, "[p]lainly, the Legislature

2 perceives that sex offenders pose a 'continuing threat to society"' Wright v. Superior

3 Court, 15 Cal. 4th 521, 527 (1997) (quoting United States v. Bailey, 444 U.S. 394,

4 413 (1980).) In fact, a failure to comply with the reporting requirements is a felony

5 under California law. People v. Sarden, 36 Cal.4th 65, 113 (2005). On May 11,

6 2020, the Orange County Register reported, “A half dozen sex offenders whose

7 early release from local lockup for parole violations are back behind bars after

8 authorities allege they once again broke the terms of their release.” Orange County

9 District Attorney, Todd Spitzer, reported “It comes as no surprise that these high-risk

10 sex offenders continue to violate the law and do everything they can to avoid being

11 tracked by law enforcement.” “According to the DA’s office, most of the six accused

12 of violating parole after their release either failed to adhere to their supervision or

13 rendered their GPS units inoperable. As of Monday they remained behind bars, local

14 jail records show.” (https://www.ocregister.com/2020/05/11/six-sex-offenders-whose-

15 early-release-was-criticized-by-orange-county-da-are-arrested-again/).

16

Further, at all times Respondent has simply enforced the law as required by

17 the California Department of Justice. As such, the conduct at issue (conducting

18 periodic in-person check-ins under the Sex Offender Registration Act) was not, prior

19 to May 8, 2020, discretionary, and as such, there can be no unlawful decision based

20 on alleged discretion that did not exist. Because the relief presently being sought by

21 Plaintiffs would both frustrate and prevent the proper enforcement of Penal Code §

22 290, et seq., by Respondent, which is both for the public safety and benefit, the

23 Court should deny the instant Application, on this basis alone.

24

25

26

27

28

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1

F. Plaintiffs’ Application For A TRO Is A Direct Challenge To The

Constitutionality/Validity Of California’s Sex Offender Registration Act,

2

And Implicates Notice To And Involvement Of The State Attorney

3

General of California.

4

Plaintiffs have attempted to couch their obvious challenge to the Registration Act

5 itself and request for a TRO, as a “challenge to the unauthorized and injurious decision

6 by Defendant to require persons required to register a sex offender (“Registrants”) who

7 are vulnerable to COVID-19 to leave the safety of their homes in order and to appear in-

8 person at local registering agencies such as the FCSO for their 30-day, 90-day, or

9 annual registration updates pursuant to Section 290.012 of the Act (hereinafter,

10 “periodic updates”). Despite this effort to avoid the appearance and associated

11 challenges and burden of directly attacking a California State legislative act, the

12 evidence in support of Plaintiffs TRO shows they are doing just that.

13

As stated above, given that all of the evidence in support of the TRO pre-dates

14 the Governor’s May 8, 2020 Executive Order expressly suspending the in-person and

15 other Registration mandates of the Act, Plaintiffs’ Application can only be construed as

16 a direct challenge to the Act itself, and not any “decisions” by Respondent related to

17 following its mandates, which of course prior to the Executive Order remained in full

18 force and effect. Moreover, Plaintiffs’ acknowledge as much recognizing that the State

19 Department of Justice is responsible for the creation of the State forms mandating the

20 specific actions and information required by State law enforcement agencies to report

21 the registrations of Sex Offenders under the Act: “Pursuant to the Act, Registrants

22 appearing for their annual update “shall provide current information as required on the

23 Department of Justice annual update form, including the information described in

24 paragraphs (1) to (4), inclusive, of subdivision (a) of Section 290.015.” Cal. Penal Code

25 § 290.012(a).” These forms include CA DOJ 20-07-CJIS – Information Bulletin Form re

26 EO N-63-20; CA DOJ CJIS 8047 – Notice of Sex Offender Notice Requirement; CA

27 DOJ CJIS 8102S – Sex Offender Registration Change Of Address / Annual Or Other

28 Update. (See RJN Ex “3-5”).

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1

Further evidence supporting Respondent’s pre Executive Order obligations is

2 found in the Official Guidance to State Law Enforcement Agencies relative to the

3 implementation of the Governor’s Executive Order setting forth the non-mandatory

4 suggestions for modification of the State Registration mandates. (See RJN Ex “3”).

5 (See DAH ¶¶ 5, 27-29). Based on the foregoing, and despite the labels or veiled effort

6 to point the finger at Respondent, Plaintiffs are plainly not challenging a decision by

7 Respondent, but the constitutionality and validity of the Registration Act itself.

8

As such, this Court should consider invoking at this early stage the requirement

9 of Notice to the State Attorney General of California pursuant to section 28 U.S.C.A. §

10 2403, subd. (b), as requested above. This would allow the State to intervene and weigh

11 in on this challenge to an important State law effecting surely the public’s interest.

12 Plaintiffs’ Counsel has made a strategic decision, for reasons left only to speculation,

13 not to include the State Attorney General of California in this matter directly challenging

14 the Registration Act, which is all the more suspect given that Counsel is currently

15 litigating virtually identical case against the State and is fully aware of its interests in her

16 Registrant clients’ challenges. Respondents further submit the State is, therefore, a

17 necessary party, including due to the alleged statutory interpretations proffered by

18 Plaintiffs in this and other the matters filed by Counsel throughout the State, the

19 (additional) constitutional infirmities as claimed in the instant matter, as well as the

20 nature of the relief demanded.

21

G. The Statutory Scheme Requires That “Periodic Updates” Occur In-

Person.

22

23

Putting aside the current state of affairs resulting from the Governor’s latest

24 Executive Order, and whether Petitioner’s claim is that the Act actually prohibits in-

25 person periodic updates, or instead that the decision to require in-person updates is an

26 abuse of discretion, the claim cannot succeed because the relevant statutes as

27 discussed herein below, not only permit Respondents to establish procedures requiring

28 in-person updates, but require that result. Respondent in facts lacks the discretion to

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1 provide otherwise. (In fact, nothing in the May 8, 2020 Executive Order changes that

2 fact.) Thus, Plaintiffs have no right to relief under the Act, even taking into consideration

3 the May 8, 2020 Executive Order, and they identify no other cognizable grounds for

4 relief.

5

Penal Code section 290.012 governs the periodic updates. Subdivision (a), which

6 governs the annual updates, states that “[a]t the annual update, the person shall provide

7 current information as required on the Department of Justice annual update form,

8 including the information described in paragraphs (1) to (4), inclusive, of subdivision (a)

9 of Section 290.015.” (Pen. Code, § 290.012, subd. (a), italics added.) For the 30-day

10 update, the Act also requires that the registrant “shall” provide the information in

11 “paragraphs (1) to (3), inclusive, of subdivision (a) of Section 290.015.” (Id., §§ 290.015

12 subd. (c); 290.011, subd. (c).) Therefore, the Act expressly requires that the periodic

13 updates include the information in section 290.015, subdivisions (a)(1) through (a)(3). 3

14 Section 290.015, subdivision (a)(1), states that the person registering must provide “[a]

15 statement in writing signed by the person, giving information as shall be required by the

16 Department of Justice. . . .” (Id., § 290.015(a)(1), italics added.) Plaintiffs do not explain

17 how a registrant can provide a statement “in writing,” “signed by the [registrant],” over

18 the telephone or a insist that the Act does not require in-person registration for the

19 conferencing app, much less how the Act purportedly requires such a result.

20

Section 290.015, subdivision (a)(2), further states that the periodic updates must

21 include “[t]he fingerprints and a current photograph of the person taken by the

22 registering official.” (Id., § 290.015(a)(2).) Fingerprints cannot be taken remotely.

23

24 3 While the Act does not expressly impose those requirements for the 90-day updates
required of sexually violent predators, and instead states only that the 90-day update shall 25 occur “in a manner established by the Department of Justice” (see id., § 290.012, subd. (b)),
certainly the statute should not be construed as imposing lesser requirements for these 26 offenders, who are among the most dangerous and have been found to pose a particularly
high risk of recidivism. Regardless, Plaintiffs lack standing to challenge this requirement, 27 since the Complaint does not allege that any of the Plaintiffs are sexually violent predators
subject to this requirement. 28

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1 Instead, fingerprints must be taken by qualified law enforcement or a certified fingerprint

2 roller, with specialized equipment. (See, e.g., Pen. Code, § 11102.1, 13000; 11 Code

3 Regs. § 994.1 et seq.) Therefore, the fingerprinting requirement necessitates that

4 registrants appear in person. Similarly, the statutory requirement that the periodic

5 updates include “a current photograph of the person taken by the registering official”

6 (id., § 290.015(a)(2)) also plainly contemplates in-person registration.

7

Apart from these express requirements, the Act grants DOJ broad discretion over

8 the registration process, and certainly does not prohibit DOJ from requiring in-person

9 updates as Plaintiffs allege. For example, for the initial registration as well as the annual

10 and 30-day updates, the Act states that the registrant shall provide a statement in

11 writing “giving information as shall be required by the Department of Justice,” including

12 specified information. (Pen. Code, § 290.015(a)(1), italics added.) For the annual and

13 the 30-day updates, the Act also states that the Registrant shall provide “current

14 information as required on the Department of Justice annual update form.” (Id., §§

15 290.012, subds. (a), (c); 290.011, subd. (c).) For the 90-day update, the Act states that

16 the registrant shall provide certain information “in a manner established by the

17 Department of Justice.” (Id., § 290.012, subd. (b).) The Act certainly never states that

18 the periodic updates cannot occur in person, as Plaintiffs assert, and this broad

19 discretion that it grants to DOJ over the process further belies any such claim.

20

In sum, the Act includes certain express statutory requirements that by necessity

21 require persons subject to the Act to appear in-person for the periodic updates. Apart

22 from those express requirements, the Act grants DOJ broad discretion over the

23 procedures for the periodic updates. The Act plainly does not prohibit in-person

24 updates, as Plaintiffs appear to argue. 4 These points are strongly reinforced by the

25

26

4 The Act states that a person subject to the Act “shall be required to register annually, within five working days of his or her birthday, to update his or her registration,” and that

27

this update “shall” include the information described above. (Pen. Code, § 290.012, subd. (a), italics added.) Similarly, the Act states that a person required to complete the

90-day update “shall” do so “no less than once every 90 days,” and, for the 30-day

28 update, that the person “shall update his or her registration at least every 30 days.” (Id.,

§ 290.012, subd. (b), (c).)

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1 fact that the Governor’s May 8, 2020 Executive Order, while temporarily suspending

2 certain of the above-mentioned requirements, did not eliminate them, and did not

3 mandate that law enforcement agencies implement the suggestions. Plaintiffs

4 acknowledge as much by stating: “For registering agencies that authorized remote

5 registration, ‘all provisions of the Act and implementing procedures that require such

6 persons to provide a signature, fingerprints, and photograph, are suspended for 60

7 days.’ In other words, the Act does not require Defendant to mandate in-person

8 registration during the COVID-19 pandemic.” [Memo P&A at pg.11:1].

9

H. Plaintiffs’ Claim that the Act “Does Not Authorize” Respondents to

Require In-Person Periodic Updates Lacks Merit.

10

11

Plaintiffs’ argument that DOJ “may not impose” a requirement that registrants

12 appear in-person for the periodic updates, and that DOJ “exceeds [its] authority” by

13 imposing the requirement (Ex Parte App. at 10-13), contradicts the statute and fails as a

14 matter of law. As set forth above, the Act clearly contemplates and authorizes the long-

15 standing procedures requiring registrants to appear in-person for the updates, and

16 indeed it prescribes certain requirements that can only, as a practical matter, be

17 completed in person. (Supra, pp. 9-11.) Plaintiffs do not purport to identify any

18 provision of the Act that directly requires the result they urge. Nor do they (or can they)

19 cite any judicial authority construing the statute as they urge. Rather, they ask the Court

20 to imply a rule prohibiting in-person updates based on a canon of construction.

21

Specifically, Plaintiffs rely on the canon providing that where the Legislature

22 includes a phrase in one provision of a statute and omits it in another provision, courts

23 presume that the Legislature did not intend the phrase to be included in the second

24 provision. (Ex Parte App., pp. 10-12.) This canon of construction, however, cannot

25 supplant the terms and clear intent of the provisions at issue, which, as explained

26 above, clearly contemplate and, as a practical matter, require in-person periodic

27 updates. (Estate of Griswold (2001) 25 Cal.4th 904, 911 [to determine the meaning of a

28 statutory provision, courts “begin by examining the statutory language”]; Medical Bd. of

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1 Cal. v. Sup. Ct. (2001) 88 Cal.App.4th 1001, 1013 [“[The canons] are tools to assist in

2 interpretation, not the formula that always determines it. A court must be careful lest

3 invocation of a canon cause it to lose sight of its objective to ascertain the Legislature’s

4 intent”], internal quotations and citation omitted.) The cases that Plaintiffs cite regarding

5 this canon involved entirely different statutory schemes and are irrelevant here. (See Ex

6 Parte App, citing Walt Disney Parks & Resorts v. Sup. Ct. (2018) 21 Cal.App.5th 872;

7 Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543; Ford Motor Co. v. Cty. of

8 Tulare (1983) 145 Cal.App.3d 688.) 5

9

In fact, while the Act specifically states that some registration steps must occur in

10 person, it also expressly states that other registration steps (ones also not at issue here)

11 should occur remotely, by mail. (Pen. Code, §§ 290.013, subd. (b); 290.014, subd. (b).)

12 Therefore, by Plaintiffs’ logic, this canon of construction also could support precisely the

13 opposite outcome of that urged by Plaintiffs—that is, one could equally argue that when

14 the Legislature intended to permit remote updates, it expressed that intent in the Act.

15 Plainly, this canon of construction sheds no light on the issues here.

16

As further explained herein, Plaintiffs cite the State and local stay-at-home orders

17 in support of their theory, but the orders create no legal rights and do not preclude

18 registrants from traveling to a local law enforcement agency for periodic updates. (The

19 States order also specifically provides that “[t]his Order is not intended to, and does not,

20 create any rights or benefits, substantive or procedural, enforceable at law or in equity,

21

22 5 Plaintiffs place significant weight on Wilson v. City of Laguna Beach (Ex Parte App. at 12), but that case
actually cuts against them. The court there refused to imply a parking requirement in the “granny flat”
23 statute that was not expressly stated. (Wilson, supra, Cal.App.4th at p. 555.) Here, it is Plaintiffs who are
asking the court to imply statutory terms that are not expressly stated in the relevant statutes, i.e., terms
24 that would require or permit registrants to complete their periodic updates by phone, email, or otherwise
remotely. Further the legislative history of the “granny flat” statute indicated that early versions of the bill
25 included a parking requirement, but that the Legislature removed it in response to testimony against it,
and that some local governments vigorously opposed the bill after it was amended “precisely because” it
26 was removed. (Id. at p. 556.) Plaintiffs identify no comparable legislative history here. And finally, implying
a parking requirement would have rendered other express terms in the “granny flat” statute meaningless,
27 which was the “clincher.” (Ibid.) Here, requiring in-person periodic updates is the only way reasonably to
interpret the statutory requirements, including that registrants provide fingerprints and a current
28 photograph taken by the local law enforcement agency. It is Plaintiffs’ construction that would render
parts of the Act meaningless.

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1 against the State of California, its agencies, departments, entities, officers, or any other

2 person.” (See Executive Order N-33-20, https://www.gov.ca.gov/2020/03/19/governor-

3 gavin-newsom-issues-stay-at-home-order/.)

4

Finally, looking at Plaintiffs’ FAC, they allege in a single sentence that “[t]he State

5 violates the rights of individuals when it subjects them to risk of physical harm and

6 disease during required interactions with law enforcement.” and cites Helling v.

7 McKinney (1993) 509 U.S. 25. (FAC.¶ 36.) The FAC does not explain much on the

8 point, and Plaintiffs make no such claim in their Ex Parte Application. Regardless,

9 Helling v. McKinney, like the other cases cited by Plaintiffs on this point, is irrelevant

10 here. It addressed completely different circumstances—the Eighth Amendment rights of

11 prison inmates—and did not consider any of the issues here. (Cf., In re Alva (2004) 33

12 Cal.4th 254 [upholding the Act’s registration requirements against challenge under the

13 Eighth Amendment and analogous state provision].) Respondent further addresses the

14 issue if harm below.

15

For these reasons, Plaintiffs’ arguments that the Act “does not authorize” in-

16 person periodic updates and that Respondent “exceed[ed] [its] authority” also lack merit

17 and must be rejected.

18

I. Plaintiffs’ Remaining Claims Lack Merit.

19

Plaintiffs raise essentially two additional arguments in support of their

20 Application, but both lack merit and cannot justify entry of a TRO. First, Plaintiffs argue

21 that registrants will be harmed absent a TRO and that the balance of equities and Public

22 Interest allegedly favor a TRO, citing several cases involving injunctive relief. Those 23 cases cannot aid Plaintiffs here, however, because in each of those cases, the Plaintiffs 24 had established a likelihood or at least some possibility of success on the merits. Here, 25 as explained, Plaintiffs cannot succeed on the merits of their claims. Plaintiffs cite no 26 authority indicating that injunctive relief can be entered in such circumstances, and it 27 cannot as a matter of law. Furthermore, the circumstances of those cases bear no 28 resemblance to the circumstances here—many of those cases involved the Eighth

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1 Amendment or analogous due process rights of individuals held in prisons or detention

2 facilities, circumstances that are irrelevant here. As explained above, many individuals

3 are permitted or required to leave their homes for various essential purposes and

4 functions during the stay-at-home order.

5

The fact remains, Plaintiffs must first show a “probability of irreparable harm” if

6 relief is not granted. The risk of irreparable harm must be “likely, not just possible.”

7 Perez v. Wolf, No. 5:19-CV-05191-EJD, 2020 WL 1865303, at *12 (N.D. Cal. Apr. 14,

8 2020) [a case involving a confined civil detainee]; see also Herb Reed Enters., LLC v.

9 Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (stating that conclusory or

10 speculative allegations are not enough to establish a likelihood of irreparable harm); see

11 also Martinez Franco v. Jennings, No. 20-CV-02474-CRB, 2020 WL 1976423, at *4

12 (N.D. Cal. Apr. 24, 2020) [If the Constitution requires appropriate social distancing for

13 civil detainees, that result should be achieved with an injunction ordering social

14 distancing in detention facilities, not releasing detainees who request a TRO on a first-

15 come, first-serve basis, citing Dawson, 2020 WL 1304557, at *2 (“[E]ven if Plaintiffs

16 could show a [due process] Fifth Amendment violation, Plaintiffs provide no authority

17 under which such a violation would justify immediate release, as opposed to injunctive

18 relief that would leave Plaintiffs detained while ameliorating any alleged violative

19 conditions within the facility.”). See also Habibi v. Barr, No. 20-CV-00618-BAS-RBB,

20 2020 WL 1864642, at *6 (S.D. Cal. Apr. 14, 2020) [Because Petitioner has not

21 established a likelihood of success on the merits of his due process claims, there is no

22 public interest related to the prevention of continuing constitutional injuries].

23

As shown above for reasons of public safety interests, and in the Declaration of

24 Detective Aaron Horne for Respondent, the balance of equities and public interest do

25 not favor a Plaintiffs’ proposed Federal Court TRO related to this purely State law

26 matter. Plaintiff’s allegations of expected, or feared, or anticipated harm are based

27 entirely on both outdated and false allegations. They have placed no evidence before

28 the Court describing the current (or even post-March 2020) processes at Respondent’s

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1 outdoor facility as detailed by Detective Horne, despite Detective Horne’s having fully

2 explained the same to Plaintiffs’ counsel in April 2020. In any event, neither the State

3 nor Respondent has required registrants to violate their legal obligations under the Act.

4 Furthermore, while it is important to reduce personal contacts as much as possible

5 during these exceptional times, it is also important that the information in California's

6 Sex Offender Registry remain as accurate and up-to-date as possible. Plaintiffs cannot

7 establish that individuals convicted of sex offenses have a unique legal right to

8 disregard the Act's requirements.

9

Lastly, Plaintiffs argue that the periodic updates are of "diminished importance"

10 under the Act. (Ex Parte App. at 8, 14.) This argument also lacks merit and Plaintiffs

11 cite no authority for the proposition. Plaintiffs identify no authority remotely suggesting

12 that they (or the Court), can independently evaluate the supposed need or utility of legal

13 requirements in statutes duly enacted by the Legislature and disregard ones they deem

14 less important. They plainly cannot under California law. (See, e.g., Bautista v. State of

15 California (2011) 201 Cal.App.4th 716, 733 ["The judiciary, in reviewing statutes

16 enacted by the Legislature, may not undertake to evaluate the wisdom of the policies

17 embodied in such legislation"].) Therefore, Plaintiffs have failed to establish a likelihood

18 of harm by appearing at the Fresno parking facility for a brief, no contact, social

19 distancing registration process, or to otherwise identify and justify any cognizable

20 grounds for entry of a TRO.

21

J. Extraordinary Relief From This Court Is Unwarranted Because Virtually

Identical Claims Are Proceeding In The State Superior Court.

22

23

Finally, Plaintiffs apparently believe the issues cannot be resolved in the State

24 Courts, despite having successfully filed an action in Los Angeles Superior Court, as

25 well as the California Supreme Court, asserting virtually the same theories that they

26 raise here, except naming as respondents both the California Attorney General and the

27 Los Angeles County Sheriff’s Department. Now, as stated in the “Preliminary Points,”

28 above, for reasons about which one can readily speculate, with at least two State Court

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1 cases pending related substantially to the same theories asserted here, Plaintiffs

2 choose to also file in Federal Court, and again, to move for a TRO.

3

With analysis of possible abstention type arguments simply out of reach in the

4 short period available to Respondent to address Plaintiff’s Application, suffice it to say

5 that contrary to Plaintiffs’ position, the State courts are fully equipped and uniquely

6 situated to hear and rule on Plaintiff’s claims and to provide relief if warranted. To date

7 however, the reality is that at least for the Superior Court action, the court has thus far

8 declined to do so. Regardless, for the reasons stated by Respondent in this response,

9 the instant TRO Application raises no substantial issues of great public importance

10 necessitating extraordinary relief from this Federal Court.

11 V. CONCLUSION
12 For the foregoing reasons, Respondents respectfully request that the Court deny
13 Plaintiffs’ application for a temporary restraining order.
14

15 Dated: May 20, 2020. 16 17 18 19 20 21

Respectfully submitted,
DANIEL C. CEDERBORG County Counsel
By: /s/ Scott C. Hawkins SCOTT C. HAWKINS Deputy, Attorneys for Respondents.

22

23

24

25

26

27

28

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1 DANIEL C. CEDERBORG

County Counsel – State Bar No. 124260 2 SCOTT C. HAWKINS

3

Deputy County Counsel – State Bar No. 207236 FRESNO COUNTY COUNSEL

4 2220 Tulare Street, 5th Floor

Fresno, California 93721 5 Telephone: (559) 600-3479

6 Facsimile: (559) 600-3480

7 Attorneys for Real party in interest, COUNTY OF FRESNO

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11 JOHN DOE #1, an individual;

Case No.: 1:20-cv-00600-NONE-JDP

JOHN DOE #2, an individual; 12 JOHN DOE #3, an individual; and

13 JOHN DOE #4, an individual

DECLARATION OF DETECTIVE, AARON HORNE, IN SUPPORT OF

14 Plaintiffs,

RESPONDENTS’, (FRESNO COUNTY

15 vs.

SHERIFF’S OFFICE AND SHERIFF MARGARET MIMS, IN HER OFFICIAL

16 ANDREW HALL, in his official capacity

CAPACITY), OPPOSITION TO PLAINTIFFS’ MOTION FOR

17 as Chief of the Fresno Police Department; TEMPORARY RESTRAINING ORDER

and MARGARET MIMS, in her official 18 capacity as Fresno County Sheriff,

AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

19 Defendants.
20
21

Hearing date: TBD Time: TBD Courtroom: 4

22

2500 Tulare Street

Fresno, CA

23

24

I, Aaron Horne, declare as follows:

25

1. I have been employed with the Fresno County Sheriff’s Office (“FCSO”)

26 since February 2002. I have worked various assignments throughout my career with

27 FCSO, including Patrol Division, School Resource Officer, Court Services, and

28 Vice/Intelligence and Investigations. In July 2018, I began my assignment as a PC290

Declaration of Detective Aaron Horne In

1

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 2 of 10

1 Sex Offender Registration Officer. My current rank is Deputy Sheriff III and my title is

2 Detective. The registration office is located at 110 M Street, Fresno, CA 93721. I am

3 familiar with the Fresno County Sheriff’s Sex Offender Registration Processes and

4 requirements, records, databases, and related information and documentation my office

5 is required by law to maintain.

6

2. I make this declaration in my official capacity and in support of

7 Respondents, Fresno County Sheriff’s Office And Sheriff Margaret Mims (In Her Official

8 Capacity), Opposition to Plaintiffs’ Motion For Temporary Restraining Order (“TRO”)

9 And Order To Show Cause Re: Preliminary Injunction. I have personal knowledge of the

10 facts stated herein and if called to testify to these facts I could and would do so

11 competently.

12

3. On 3/18/2020 – Due to the “Shelter in Place “order, FCSO closed the

13 registration building to registrants, posted a sign in front window that states, “LOBBY

14 CLOSED UNTIL FURTHER NOTICE. REGISTRATIONS WILL BE DONE OUTSIDE T,

15 W, TH 9AM – 12NOON”. We started by using tables outside, allowing “social

16 distancing,” while still having registrants sign in, provide thumbprint and signature on the

17 forms, and we still collected forms while wearing gloves and masks.

18

4. On 3/18/2020 – John Doe #1 phoned me and stated his birthday was on

19 3/31/20 so he was due to come in for his annual registration on or around that date. He

20 told me that due to his turning 71 years-old and having pre-existing medical conditions,

21 he was considered “high risk” for Covid-19 and therefore wished to not come in and

22 register. I explained to him that we had closed the office and were conducting

23 registrations outside with adequate distancing and other precautions. He reiterated that

24 he was not comfortable coming in. I advised him that we were temporarily not

25 “mandating” that “high risk for Covid-19” registrants come in. I explained that this meant

26 I would log his name, date of birth, the date and time he called, and once the “Shelter in

27 Place” was lifted, I would notify him to come in and update his registration.

28

Declaration of Detective Aaron Horne In

2

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 3 of 10

1

5. On 4/7/2020 – to the present, due to the extension of the “Shelter in

2 Place” order, FCSO started “no contact” registrations. The building remains closed to

3 registrants, we removed the tables, taped off both entrances to the raised porch along

4 the front of the building. We accept no paperwork, Driver’s licenses, I.D.’s, etc. from

5 registrants and observe at least 6 feet of social distance. We have painted “X’s” on the

6 ground to indicate the proper positioning. We sign-in registrants and document any

7 necessary changes. Upon completing the Department of Justice’s (“DOJ’s”) 8102 forms,

8 in the comments section, we type or hand-write “Covid-19 – No signature / fingerprints.

9 Verbal confirmation of information / requirements.” We sign & date the forms and

10 provide the registrant the opportunity to accept a copy. We take a photo of the

11 registrant from distance of at least 6 feet. All this is conducted while wearing gloves and

12 some wearing masks. We also maintain accessible hand-sanitizers.

13

6. On or about 4/14/20 – John Doe #1 called me and asked for my email

14 address. He said he would feel more comfortable having some type of documentation

15 acknowledging our previous phone call. I provided him my email address. I later

16 received an email from John Doe #1 detailing our phone call on 3/18. In essence, his

17 email indicated that during our call on 3/18, I told him, due to him being high risk, he

18 was not required to personally appear until the pandemic emergency passed and that

19 his phone call was sufficient for registration compliance on a temporary basis and once

20 the pandemic cleared, I would contact him and inform him when he could come in-

21 person to perform and complete his registration.

22

7. I replied, verbatim, “Mr. ____, you are correct. You will be notified once it

23 is determined there is no longer a health risk to you physically coming into the

24 registration office. Thank you for being responsible with your registration requirements

25 and keeping in contact with me. Take care of yourself, Detective Aaron Horne”. My

26 statement, “You are correct” referred in my mind at the time to the fact that I would

27 notify him once the pandemic cleared. I did not intend this to mean that I confirmed

28 telling him his phone call was sufficient for meeting registration requirements, showing

Declaration of Detective Aaron Horne In

3

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 4 of 10

1 as “in compliance” or to show that he had “completed” his registration.

2

8. On or about 4/16/2020 – I received a call from Attorney Janice Bellucci.

3 She told me she was not representing John Doe #1 (referred to him by his actual name

4 throughout the duration of our conversation), but she had spoken to him regarding his

5 prior phone call to me. She said he told her I told him his phone call was sufficient for

6 registration requirements. I told her I did NOT tell him that, and I explained to her the

7 details of my call with him. She told me she was, at that moment, looking at the

8 Megan’s Law website and that he currently showed as “in violation” of his registration. I

9 confirmed that he would remain showing “in violation” until he came to the office in-

10 person and updated his registration. She asked me if FCSO places a registrant in

11 violation in the “system”. I informed her that we do not, that DOJ makes that

12 determination. She asked me, in essence, if John Doe #1 were to be out driving and

13 got pulled over by law enforcement, wouldn’t he be arrestable.

14

9. I explained that he emailed me and I had replied and upon talking to him

15 just prior to receiving his email, I advised him that my phone number would be on my

16 email signature and if he had any contact with law enforcement and they questioned his

17 being “in violation”, the officer, deputy, etc. could call me 24 hours a day and I would

18 explain his situation and my position relate to his COVID related concerns. I also told

19 him he had the option to print out my email and keep it with him so he could show it to

20 any law enforcement personnel in that situation. (This is actually very similar to the SF

21 Police Department’s voucher process, as indicated in Exhibit “E” to Plaintiffs’

22 Memorandum for a TRO).

23

10. Ms. Bellucci asked who at FCSO enforced pursuing charges against

24 registrants “in violation”. I told her my partner and I are the only two, and that we are

25 currently not pursuing warrants or arresting anyone who is showing “in violation” due to

26 being “high risk for Covid-19”. Ms. Bellucci began asking again about John Doe #1,

27 hypothetically being pulled over and I told her, in essence, if he’s out and about driving

28 around, then he can drive to our office and register.

Declaration of Detective Aaron Horne In

4

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 5 of 10

1

11. I further explained to her, in detail, exactly how we have been conducting

2 our registrations since March, and since April 7, outside in the large parking area, to

3 include all precautionary measures such as adequate distancing, gloves, masks, no

4 contact, no signature, no thumbprint, etc. I explained that John Doe #1 coming in to

5 register here, outside in the parking area, puts him no more at risk or even less at risk

6 than going to the grocery store or a doctor’s office.

7

12. Ms. Bellucci then requested I email her documentation of our current

8 registration policy. I advised her that I did not have the authority to not send her that

9 information. She asked me how she could obtain a copy and I told her I would send her

10 request up my chain of command. She replied, in essence, to make sure I tell my

11 supervisor(s) her name, bar number, and that she has had several lawsuits against

12 other LE agencies so that if they “look her up”, that may impel their cooperation.

13

13. I offered Ms. Bellucci the phone number to DOJ so she could perhaps get

14 more information from them. She declined and we ended our conversation.

15

14. On 4/20/2020 – I received an email from Attorney Janice Bellucci. The

16 email states that its purpose is to follow up from our phone call the previous week. Her

17 email states that during that call, she asked me for documentation, and she asks in the

18 email if I have been able to locate any such document. She requested I call her to

19 discuss this further. I declined to call her.

20

15. On or about 4/22/2020 – I received a phone call from John Doe #1. He

21 first apologized for “that attorney calling and bugging you”. Then he stated, in essence,

22 that he was confused because he is listed as “in violation” on the Megan’s Law website

23 but he thought, per our phone call and email, that he complied. I explained to him in

24 detail, as I did to Ms. Bellucci, how he will remain showing “in violation” per the DOJ

25 until he comes down in-person and registers, and I reminded him of the rest of our

26 conversation, explained above.

27

28

Declaration of Detective Aaron Horne In

5

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 6 of 10

1

16. He began asking me, in essence, the same questions Ms. Bellucci had

2 asked me during our phone call. Specifically, the hypothetical scenario of him getting

3 pulled over and being arrestable. I told him that if he’s out driving, then he can drive

4 downtown and register. He told me he only drives to “essential” locations like the

5 grocery store or the pharmacy. I then explained in detail, as I did to Ms. Bellucci, how

6 we are currently conducting our registrations outside, with less time spent at the facility,

7 adequate distancing, gloves, masks, no contact, no signature, no thumbprint, etc. I also

8 reiterated that he has my work cellphone number and that any LE personnel can call

9 me.

10

17. I reminded him that he can print out my email response and show them if

11 his “in violation” status is questioned. I offered him the phone number to DOJ so he too,

12 could perhaps get more information and he too declined. We then ended our

13 conversation. Again, very similar to the process used at SFPD.

14

18. In reading John Doe #1’s Declaration for Application for Temporary

15 Restraining Order, signed by John Doe #1 under penalty of perjury and dated May 12,

16 2020, he states that he told me during the phone call on 3/18/2020 that one of his fears

17 was to enter the registration office because its small size would not allow for social

18 distancing of at least six feet. As stated above, I explained during that call that we

19 moved everything outside in the large open parking area, specifically to allow for proper

20 distancing and were taking the other precautions as well. He fails to mention this.

21

19. In his declaration, he also states that due to his current status of being “in

22 violation”, he is afraid to leave his home due to being at great risk for arrest, booking,

23 and incarceration in the Fresno County Jail. As stated above, during my call from Ms.

24 Bellucci on or about 4/16/2020, and during my call from John Doe #1 on or about

25 4/22/2020, I explained to them both, in detail, how FCSO is not pursuing warrants or

26 other adverse action against registrants “in violation” due to being “high risk” for Covid-

27 19, and that a copy of my reply email to John Doe #1 would very likely prevent any

28 adverse action by any non-FCSO law enforcement officer.

Declaration of Detective Aaron Horne In

6

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 7 of 10

1

20. I also reiterated the option to have any LE personnel call my work

2 cellphone 24 hours a day, allowing me essentially to vouch for John Doe #1 was an

3 additional option. Furthermore, in his declaration, John Doe #1 states that being unable

4 to leave his house due to his fear of arrest, he is unable to continue his Fresno City

5 College internship working as a drug and alcohol counselor at the Fresno Rescue

6 Mission. It is my firm belief that with the precautions the FCSO is taking during

7 registrations, there is no more risk, if not less risk, for contracting Covid-19 than entering

8 and working at the Fresno Rescue Mission.

9

21. In reading John Doe #4’s Declaration for Application for Temporary

10 Restraining Order, signed by John Doe #4 under penalty of perjury and dated May 8,

11 2020, he describes in detail how his registration was conducted in “2019,” which I

12 verified occurred in May of 2019.

13

22. He details being in a small room, sitting shoulder-to-shoulder with others,

14 some of whom did not appear clean, perhaps due to them possibly being homeless, and

15 physical contact with a registration officer during fingerprinting. He also mentions being

16 handed documents and initialing/signing them in several places.

17

23. After describing this alleged (May) 2019 registration encounter, he simply

18 states that in “2020,” the FCSO is “demanding” that he appear in person at the same

19 cramped location where social distancing is not possible. This statement is completely

20 untrue.

21

24. FCSO, as described above, has eliminated each physical step of the

22 registration process existing in May of 2019 and that could be construed in the manner

23 John Doe #4 describes in his declaration (small spaces, physical contact with pens, and

24 other surfaces and close proximity to other persons). The only exception being

25 registration officers, while wearing new gloves for each transaction, offering registrants

26 a “completed” form fresh from the copy machine.

27

25. In the latter part of his declaration, John Doe #4 further mentions having to

28 touch and manipulate numerous objects and surfaces used by others, such as counters,

Declaration of Detective Aaron Horne In

7

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 8 of 10

1 chairs, clipboards, pens, and other equipment. This statement is also completely

2 untrue. FCSO, as described above, since 3/18/2020 modified their protocols, and in

3 4/7/20, closed off the office to registrants and moved the entire registration process

4 outside to large parking lot to allow adequate distancing and other precautionary

5 measures.

6

26. As described above, since 4/7/2020, FCSO, has established a “no

7 contact” method of registration, observing all recommended and proper distancing and

8 sanitation precautions, which has resulted in a substantial decrease (50%+-) in the

9 average stay, now only 10-15 minutes, for a periodic registrant. Even prior to March

10 2020, during the pre-COVID period, the average stay for a periodic registrant was at

11 most a half an hour.

12

27. On 5/13/2020 – I received an email containing an “Information Bulletin”

13 from the Office of Attorney General, Xavier Becerra. A true and correct copy of this

14 form is attached to the “RJN” in support of this response. The bulletin relates to

15 California Governor Newsom’s Executive Order N-63-20 (also part of the RJN), which

16 pertains directly to registration of sex offenders in California. The Information Bulletin

17 provides guidance to Law Enforcement agencies throughout California regarding the

18 registration procedures during the Covid-19 pandemic.

19

28. Prior to receiving this bulletin, FCSO had implemented numerous COVID-

20 19 safety precautions, as explained above, which we believe were and are consistent

21 with the requirements of Fresno County Department of Public Health, as well as State of

22 California, directives.

23

29. On 5/14/2020 - Based on this bulletin, FCSO began implementing the

24 provided specific instructions regarding the completion and submission of the

25 registration forms as stated therein.

26

30. Finally, FCSO’s Sex Offender Registration unit does not currently have the

27 resources, technology or equipment to implement remote registrations. We also believe

28 that telephonic registrations are not feasible for FCSO at this time, including due to

Declaration of Detective Aaron Horne In

8

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 9 of 10

1 inadequate resources or opportunity, as of this time, to fully investigate or otherwise

2 consider and/or develop policies related to such a process, including consulting the DOJ

3 or legal counsel regarding the same.

4

31. FCSO intends to continue following the mandates of the State law as

5 implanted by the DOJ with regard to Sex Offender Registrations, while observing as

6 many of the State’s suggestions to implement “other procedures” in reference to the

7 current Health outbreak as possible, consistent with these mandates, public safety

8 concerns, and all other legal duties and responsibilities.

9

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Declaration of Detective Aaron Horne In

9

Support of Opposition to Plaintiffs’ Motion

For Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case No.: 1:20-cv-00600-NONE-JDP

Case 1:20-cv-00600-NONE-JDP Document 10-1 Filed 05/20/20 Page 10 of 10

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 1 of 57

1 DANIEL C. CEDERBORG

County Counsel – State Bar No. 124260 2 SCOTT C. HAWKINS

3

Deputy County Counsel – State Bar No. 207236 FRESNO COUNTY COUNSEL

4 2220 Tulare Street, 5th Floor

Fresno, California 93721 5 Telephone: (559) 600-3479

6 Facsimile: (559) 600-3480

7 Attorneys for Real party in interest, COUNTY OF FRESNO

8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11 JOHN DOE #1, an individual;

Case No.: 1:20-cv-00600-NONE-JDP

12 JOHN DOE #2, an individual; JOHN DOE #3, an individual; and

13 JOHN DOE #4, an individual

RESPONDENTS’, (FRESNO COUNTY

14 Plaintiffs,

SHERIFF’S OFFICE AND SHERIFF MARGARET MIMS, IN HER OFFICIAL

15 vs.

CAPACITY), REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION

16

TO MOTION FOR TEMPORARY

ANDREW HALL, in his official capacity RESTRAINING ORDER AND ORDER TO 17 as Chief of the Fresno Police Department; SHOW CAUSE RE: PRELIMINARY

18 and MARGARET MIMS, in her official capacity as Fresno County Sheriff,

INJUNCTION

19

Hearing date: TBD

Defendants. 20

Time: TBD Courtroom: 4

21 2500 Tulare Street

22

Fresno, CA

23

RESPONDENTS, FRESNO COUNTY SHERIFF’S OFFICE and SHERIFF

24 MARGARET MIMS (IN HER OFFICIAL CAPACITY), hereby submit the following

25 Request For Judicial Notice in support of their Opposition Plaintiffs’ Motion For

26 Temporary Restraining Order (“TRO”) And Order To Show Cause Re: Preliminary

27 Injunction, pursuant to Federal Rule of Civil Procedure Rule 60(B)(2)(3) &(6); and

28 U.S.D.C., E.D. Calif. Local Rules 230j.

Request For Judicial Notice In Support

1

Case No.: 1:20-cv-00600-NONE-JDP

Opposition to Plaintiffs’ Motion For

Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 2 of 57

1

A Court need not accept as true, conclusions cast in the form of factual

2 allegations, or allegations that contradict matters properly subject to judicial notice. See

3 Tyshkevich v. Wells Fargo Bank, N.A. (E.D.Cal. Jan. 14, 2016, No. 2:15-cv-2010 JAM.

4 Also, Pursuant to Federal Rules of Evidence 201, et seq., "A court shall take judicial

5 notice if requested by a party and supplied with the necessary information." Fed.R. Evid.

6 201 (d). "A judicially noticed fact must be one not subject to reasonable dispute in that it

7 is either (1) generally known within the territorial jurisdiction of the trial court or (2)

8 capable of accurate and ready determination by resort to sources whose accuracy

9 cannot reasonably be questioned." Fed. R. Evid. 201(b).

10

A court may "also take judicial notice of matters of public record, as long as the

11 facts noticed are not subject to reasonable dispute." Intri-Plex Techs., Inc. v. Crest Grp.,

12 Inc., 499 F.3d 1048, 1052 (9th Cir. 2007), and Lee v. City of Los Angeles, 250 F.3d 668,

13 688-89 (9th Cir. 2001). This obviously includes records publicly maintained by a local

14 or State government pursuant to statutory mandate. See Kuan v. United States

15 Customs Serv., 2009 U.S. Dist. LEXIS 126574, *19-20, 2009 WL 6340016 (C.D. Cal.

16 Dec. 16, 2009) [printout from a County database reflecting the absence of a required

17 claim under plaintiff's name is a public record of which the Court may, and hereby does,

18 take judicial notice. See also Cottle v. Skyways, Inc. (E.D.Cal. Apr. 17, 2017, No. 1:17-

19 cv-00049-DAD-BAM) 2017 U.S.Dist.LEXIS 59203, at *11, fn. 2.) ["Proper subjects of

20 judicial notice include ... publicly accessible websites."]; and Mullins v. Wells Fargo

21 Bank, N.A. (E.D.Cal. Sep. 17, 2013, No. 2:13-cv-0453 JAM KJN PS) 2013

22 U.S.Dist.LEXIS 133749, at *13-15.) [court took judicial notice of various certificates,

23 letters, and other official documents from government agencies and government

24 websites, sources whose accuracy cannot reasonably be questioned].

25

Based on the foregoing legal authority, Defendants respectfully request that the

26 Court take judicial notice of the following matters and materials set forth therein and

27 maintained in the County's possession as well as in the possession of and/or

28 maintained by, the State of California, including its Department of Justice, related to

Request For Judicial Notice In Support

2

Case No.: 1:20-cv-00600-NONE-JDP

Opposition to Plaintiffs’ Motion For

Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 3 of 57

1 Sex Offender Registration and the COVID-19 Health Pandemic.

2

1. Petitioners’ First Amended Petition for Writ of Mandate, Case No.

3

20STCV12138, Los Angeles County Superior Court;

4

2. Order Denying Application for TRO, April 17, 2020, Case No.

5

20STCV12138, Los Angeles County Superior Court;

6

3. CA DOJ 20-07-CJIS – Information Bulletin Form re EO N-63-20;

7

4. CA DOJ CJIS 8047 – Notice of Sex Offender Notice Requirement;

8

5. CA DOJ CJIS 8102S – Sex Offender Registration Change Of Address /

9

Annual Or Other Update;

10

6. CA Governor Gavin Newsome’s May 8, 2020 Executive Order N-63-20; and

11

7. Official CA COVID19 Information Website and State Health Directives,

12

https://covid19.ca.gov/stay-home-except-for-essential-needs/#top ;

13

14

Except for no. 7, above, true and correct copies of these Official Government

15 records referenced in Respondent’s Opposition and supporting papers are attached

16 hereto.

17 18 Dated: May 20, 2020, 19 20 21

Respectfully submitted,
DANIEL C. CEDERBORG County Counsel

22

23

Isl Scott C. Hawkins By: Scott C. Hawkins, Deputy

24

Attorneys for Respondents.

25

26

27

28

Request For Judicial Notice In Support

3

Case No.: 1:20-cv-00600-NONE-JDP

Opposition to Plaintiffs’ Motion For

Temporary Restraining Order And Order

To Show Cause Re:Preliminary Injunction

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 4 of 57

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

RJN No. 1

4

Case No.: 1:20-cv-00600-NONE-JDP

Electronically FILED by Superior Court of California, County of Los Angeles on 04/07/2020 11:23 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Lara,Deputy Clerk
Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 5 of 57

1 Janice M. Bellucci, SBN 108911 LAW OFFICE OF JANICE M. BELLUCCI
2 1215 K Street, 17th Floor Sacramento, CA 95814
3 Tel: (805) 896-7854 Fax: (916) 823-5248
4 jmbellucci@aol.com
5 Attorney for Petitioners
6

7

8

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

9

COUNTY OF LOS ANGELES

10

11 ALLIANCE FOR CONSTITUTIONAL

Case No.: 20STCV12138

SEX OFFENSE LAWS, INC., 12 a California non-profit corporation;

JOHN DOE #1, an individual; and 13 JOHN DOE #2, an individual

FIRST AMENDED PETITION FOR WRIT OF MANDATE

AND COMPLAINT FOR DECLARATORY

14

Petitioners/Plaintiffs, AND INJUNCTIVE RELIEF

15 vs.

(CAL. CIV. PROC. CODE §§ 1085, 1060)

16 CALIFORNIA DEPARTMENT OF JUSTICE; Judge: Hon. Jon R. Takasugi

XAVIER BECERRA, in his official capacity as Dept: 17

17 Attorney General of the State of California;

Action filed: March 26, 2020

LOS ANGELES COUNTY SHERIFF’S

Trial date: None set

18 DEPARTMENT; and ALEX VILLANUEVA,

in his official capacity as Sheriff of Los Angeles 19 County;

20

Respondents/Defendants.

21

22

INTRODUCTION

23 1. This action challenges the discretionary, unauthorized, and injurious decision by

24 Respondents and Defendants California Department of Justice (“Cal. DOJ”), Attorney General

25 Xavier Becerra, the Los Angeles County Sheriff’s Department, and Sheriff Alex Villanueva

26 (“LASD”), to require persons required to register as a sex offender (“Registrants”) who are

27 vulnerable to the COVID-19 virus to leave their homes and to appear in person at local LASD

28 stations for their 30-day, 90-day, or annual registration updates (hereinafter, “periodic updates”).

1
FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 6 of 57
1 Consistent with the Sex Offender Registration Act, periodic updates can be completed through 2 means that do not require vulnerable persons to subject themselves, during an in-person registration, 3 to a risk of harm that is universally recognized by national, state, and local government – in 4 violation of orders issued by those same governments. 5 2. This issue warrants the Court’s attention at this time because the extraordinary measures 6 now being taken to slow the spread of the COVID-19 pandemic are undermined by requiring 7 Registrants to continue to appear in person for periodic updates. Specifically, as of March 19, 2020, 8 the Governor of California has ordered as follows: “Everyone is required to stay home except to 9 get food, care for a relative or friend, get necessary health care, or go to an essential job.”1 The 10 Order contains no exception for Registrants or for registration updates. 11 3. Nor is such an exception mandated by law. Sex offender registration is governed by the 12 California Sex Offender Registration Act, codified at Penal Code section 290, et seq. (hereinafter, 13 “Section 290” or “Act”). The text of the Act does not require Registrants to appear in person for 14 periodic updates. (See Cal. Penal Code § 290.012, subds. (a)-(c).) Instead, the Act merely requires 15 that Registrants be “Registered.” (Ibid.) In addition, there is no practical reason why Registrants 16 must appear in person for periodic updates because periodic updates are for the purpose of 17 confirming information that registering agencies already possess, or for the purpose of providing 18 information that can be transmitted through alternative means which pose little or no risk of 19 exposure of COVID-19, such as the telephone or video conferencing apps and programs. Use of 20 this widely available technology provides law enforcement with effective methods to obtain the 21 information necessary to complete periodic updates without subjecting the public, law enforcement 22 personnel, and Registrants to potentially harmful in-person visits to locations where they could 23 either contract or spread COVID-19. Requiring such in-person visits to LASD stations during a 24 pandemic, in contravention of state and local orders, is an abuse of discretion as pled herein. In 25 addition, the Act does not authorize Respondents to require in-person registration for periodic 26 updates. 27 28 1 https://covid19.ca.gov/, last visited March 23, 2020.
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1 4. On information and belief, many registering agencies throughout California, including the 2 Los Angeles Police Department (“LAPD”), the agency with the largest population of Registrants in 3 the state, are processing periodic updates over the telephone. The LAPD does not require 4 Registrants to appear in person while the COVID-19 emergency measures are in place. Instead, the 5 LAPD has placed signs, including those attached hereto as Exhibit A, on the exterior of its police 6 stations confirming that the LAPD’s registration policy is currently “modified” to accommodate the 7 COVID-19 emergency measures. (Exh. A.) Pursuant to the LAPD’s modified policy, Registrants 8 “are not [] allowed in the station,” and “[the LAPD] will register [them] over the phone.” (Exh. A.) 9 5. Petitioners and Plaintiffs include a civil rights organization that is comprised of and supports 10 Registrants, as well as two individual Registrants, Petitioners John Doe #1 and John Doe #2, who 11 are deemed vulnerable to infection by COVID-19 due to age and/or chronic medical conditions 12 including asthma, as well as homelessness. As pled more fully below, Respondent LASD has 13 directed Petitioners John Doe #1 and John Doe #2 and all Registrants residing in the jurisdiction of 14 the LASD to appear in person for their periodic updates. In addition, because he is a homeless 15 (“transient”) Registrant, Petitioner John Doe #2 must register in person at the LASD station in Santa 16 Clarita every 28 days. Petitioner John Doe #2’s next registration appointment is April 9, 2020, 17 followed by additional appointments on May 7, June 5, and every 28 days thereafter. As described 18 more fully below, the LASD limits the hours available for registration at the Santa Clarita station to 19 three hours per week, meaning that a large number of Registrants (both homeless and non20 homeless) are forced to congregate together for long periods while their periodic updates are 21 processed, in violation of the measures now being imposed to slow the spread of COVID-19. 22 6. In addition, certain registration officials within the LASD have asserted that the LASD 23 cannot modify its in-person registration requirement without approval from Respondent Cal. DOJ. 24 Respondents’ mandate that all Registrants, including those with high risk factors for COVID-19, 25 appear in person forces Petitioners and all Registrants into a Catch-22. That is, they must either 26 subject themselves to possible COVID-19 infection in violation of a state order, or violate Section 27 290 by failing to appear in person, thereby inviting arrest and custody in jail or prison – where the 28 risk of COVID-19 infection is much greater. Section 290 does not require Petitioners and all
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1 Registrants to play Russian Roulette with their lives in order to provide the information required for

2 their periodic updates.

3 7. Accordingly, Petitioners seek a writ of mandate, temporary restraining order, preliminary

4 injunction, and permanent injunction directing Respondent LASD to process 30-day, 90-day, and

5 annual updates without the additional, non-statutory requirement to appear in person until the threat

6 from COVID-19 ends. Petitioners also seek a writ of mandate, temporary restraining order,

7 preliminary injunction, and permanent injunction directing Respondents Cal. DOJ and Becerra to

8 cease requiring local registering agencies to require in-person registration for periodic updates until

9 the threat from COVID-19 ends. Petitioners further seek, against all Respondents, a judgment

10 declaring that Registrants are not required to appear in person for periodic updates until the threat

11 from COVID-19 ends.

12

JURISDICTION AND VENUE

13 8. As a court of unlimited jurisdiction, the Los Angeles County Superior Court has jurisdiction

14 over this action for mandamus, declaratory, and injunctive relief pursuant to California Code of

15 Civil Procedure sections 1084, et seq. and 1060.

16 9. Venue is proper within this Court because Respondents Cal. DOJ and Becerra, in his official

17 capacity, maintain an office in Los Angeles County (Cal. Civ. Proc. Code § 401), and because

18 Respondents LASD and Villanueva are located in Los Angeles County.

19

PARTIES

20 10. Petitioners reallege and incorporate herein, as though fully set forth, all and inclusively,

21 paragraphs 1 through 9.

22 11. Petitioner Alliance for Constitutional Sex Offense Laws, Inc. (“ACSOL”) is a non-profit

23 corporation incorporated and headquartered in Los Angeles County, California. ACSOL is

24 dedicated to protecting the Constitution by restoring the civil rights of more than 109,000

25 Registrants in the State of California through advocacy, education, and litigation on behalf of them

26 and their families. ACSOL is beneficially interested in the outcome of these proceedings, as well as

27 in Respondents’ performance of their legal duties, and therefore seeks by this Petition to procure

28 enforcement of a public duty on a question of public right. (Cal. Civ. Proc. Code § 1086.) In

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1 addition, ACSOL’s membership includes thousands of Registrants who reside within the 2 jurisdiction of the LASD who are required to register as sex offenders, who are injured by the 3 discretionary decision challenged in this action, and who are beneficially interested in the outcome 4 of this proceeding. 5 12. Petitioner John Doe #1 is a Registrant who currently resides in Los Angeles County within 6 the jurisdiction of the LASD station in Palmdale. Petitioner John Doe #1 is required to update his 7 registration with the LASD within five working days of his birthday pursuant to Penal Code section 8 290.012. Petitioner John Doe #1 is vulnerable to COVID-19 because he suffers from chronic 9 medical conditions including asthma, a respiratory disease, as determined by national and state 10 health care agencies. 11 13. Petitioner John Doe #2 is a 64-year-old homeless Registrant who currently resides in the 12 City of Santa Clarita, within the jurisdiction of the LASD. Petitioner John Doe #2 is vulnerable to 13 COVID-19 because of his age (64), as well as chronic medical conditions that include asthma, a 14 respiratory disease, and his homeless status. Because he is homeless, Petitioner John Doe #2 is 15 designated as a “transient” by the Act and the Act requires him to update his registration in person at 16 an LASD station every 30 days, in addition to his annual update. However, Respondent LASD 17 requires Petitioner John Doe #2 to register in person every 28 days at the LASD station in Santa 18 Clarita. Petitioner John Doe #2’s next registration appointment is April 9, 2020, followed by 19 additional appointments on May 7 and June 5, 2020, at which Petitioner John Doe #2 must also 20 appear in person. 21 14. Petitioners John Doe #1 and John Doe #2 shall be referred to herein collectively as 22 “Petitioners.” 23 15. Respondent California Department of Justice (“Cal. DOJ”) is a state agency with overall 24 responsibility for interpreting and enforcing the Act, including implementation of the discretionary 25 decision challenged in this action. 26 16. Respondent Xavier Becerra is the Attorney General for the State of California. In his 27 official capacity, as set forth in Article 5, Section 13 of the California Constitution, he is the “chief 28 law officer of the State,” with a duty “to see that the laws of the state are uniformly and adequately
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1 enforced.” He has “direct supervision over every district attorney and sheriff and over such other

2 law enforcement officers as may be designated by law.” (Cal. Const. art. 5, § 13.) He “has charge,

3 as attorney, of all legal matters in which the State is interested.” (Cal. Gov’t Code § 12511.) He is

4 obligated to enforce the laws of the State and to ensure that those laws are enforced in a manner that

5 complies with the California and United States Constitutions.

6 17. Respondent Los Angeles County Sheriff’s Department (“LASD”) is a local law enforcement

7 agency responsible for implementing the Act in Los Angeles County (Cal. Penal Code § 290, subd.

8 (b).) Respondent LASD is responsible for facilitating the periodic updates for all Registrants

9 residing in its jurisdiction, including Petitioner John Doe. On information and belief, Respondent

10 LASD is responsible for the discretionary decision challenged in this action.

11 18. Respondent Alex Villanueva (“Villanueva”) is the Sheriff of Los Angeles County and the

12 highest-ranking official within the LASD. In his official capacity as Sheriff, Respondent Alex

13 Villanueva is responsible for the decisions and policies challenged in this action.

14 19. Respondents Cal. DOJ, Becerra, LASD and Villanueva shall be referred to herein

15 collectively as “Respondents.”

16

FACTS

17 20. Petitioners reallege and incorporate herein, as though fully set forth, each and every, all and

18 inclusively, paragraphs 1 through 19.

19 The Coronavirus Pandemic and State and Local Orders to Remain at Home

20 21. In the words of Los Angeles Mayor Eric Garcetti, “The novel coronavirus pandemic is a

21 global emergency that is unprecedented in modern history.”2 Extraordinary measures have been

22 implemented by governments at every level to address this pandemic. Most notably, on March 19,

23 2020, the Governor of California issued an order calling upon all 40 million residents of the state to

24 remain in their homes, with limited exceptions for essential travel (hereinafter, the “Order”).3

25 Specifically, the Governor’s Order directs “all individuals living in the State of California to stay

26

27

2https://www.lamayor.org/sites/g/files/wph446/f/article/files/SAFER_AT_HOME_ORDER2020.03. 19.pdf

28 3 https://covid19.ca.gov/stay-home-except-for-essential-needs/

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1 home or at their place of residence except as needed to maintain continuity of operations of the

2 federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-

3 infrastructure-during-covid-19.”4 Sex offender registration is not listed among the exceptions to the

4 Order, and violation of the Order can result in penalties and punishment.

5 22. The Order emphasizes that persons within specific vulnerable populations must self-isolate

6 and remain in their homes. As reflected in the Order, the Center for Disease Control and the

7 California Department of Health Care Services declare the following persons are at “higher risk” for

8 contracting COVID-19:5,6

9

a. Persons aged 65 and older;

10

b. Persons with HIV/AIDS or compromised immune systems; and

11

c. Persons with chronic serious medical conditions, including asthma.

12 23. On March 4, 2020, the Los Angeles County Board of Supervisors declared a Local

13 Emergency throughout Los Angeles County due to the COVID-19 pandemic. In addition,

14 consistent with the Governor’s Order, the Los Angeles County Department of Public Health has

15 ordered that “All persons are to remain in their homes or at their place of residence except to travel

16 to and from Essential Business, to work at or provide service to a Healthcare Operation or Essential

17 Infrastructure, to engage in Essential Activities, or to participate in individual or family outdoor 18 activity, while practicing social distancing.”7

19 The California Sex Offender Registration Act Does Not Require In-person Periodic Updates

20 24. In general, the Act requires persons convicted of an offense described in Section 290,

21 subdivision (c) to complete their initial registration with local law enforcement within specified time

22 frames when they: (1) are released from custody or supervision, (2) establish residency in the state,

23 (3) change their residence address, or (4) cease residing in California.

24

25 4 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf
26 5 https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html 27 6 https://covid19.ca.gov/what-you-can-do/#symptoms-risks
7http://www.publichealth.lacounty.gov/media/Coronavirus/COVID-19_March%2021-HOOrder28 7_00_FINAL2.pdf
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1

2 25. The Act further requires Registrants to periodically update their registration with local law

3 enforcement at specified intervals, as follows:

4

a. All Registrants must provide an “annual update” within five working days of

5

their birthday, beginning on his or her first birthday after the initial

6

registration. (Penal Code § 290.012, subd. (a).)

7

b. Registrants designated “sexually violent predators” must update their

8

registration every 90 days. (Penal Code § 290.012, subd. (b).)

9

c. Transient Registrants (i.e., those with no fixed residence address), must

10

update their registration every 30 days. (Penal Code § 290.012, subd. (c).)

11 26. The Act does not require initial registration, annual updates, 90-day updates, or 30-day

12 updates (i.e., “periodic updates”) to be in person. Instead, the Act only requires that periodic

13 updates occur, without specifying how the Registrant is to provide the required information to the

14 registering agency. (E.g., Penal Code § 290.012, subd. (a) [“Beginning on his or her first birthday

15 following registration or change of address, the person shall be required to register annually, within

16 five working days of his or her birthday, to update his or her registration with the entities described

17 in subdivision (b) of Section 290. At the annual update, the person shall provide current information

18 as required on the Department of Justice annual update form, including the information described in

19 paragraphs (1) to (4), inclusive, of subdivision (a) of Section 290.015. The registering agency shall

20 give the registrant a copy of the registration requirements from the Department of Justice form.”].)

21 27. Notably, the Act specifies only three occasions on which in-person registration or in-person

22 updates are required. Specifically, in-person registration and updates are required only for:

23

a. Transient Registrants “who move[] of out state.” (Penal Code § 290.011,

24

subd. (f) [“A transient who moves out of state shall inform, in person, the

25

chief of police in the city in which he or she is physically present, or the

26

sheriff of the county if he or she is physically present in an unincorporated

27

area or city that has no police department, within five working days, of his or

28

her move out of state.”].)

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1

2

b. Registrants who change their residence address, whether within the

3

jurisdiction in which they are currently registered or to a new jurisdiction

4

outside California. (Penal Code § 290.013, subd. (a) [“A person who was

5

last registered at a residence address pursuant to the Act who changes his or

6

her residence address, whether within the jurisdiction in which he or she is

7

currently registered or to a new jurisdiction inside or outside the state, shall,

8

in person, within five working days of the move, inform the law enforcement

9

agency or agencies with which he or she last registered of the move, the new

10

address or transient location, if known, and any plans he or she has to return

11

to California.”].)

12

c. Registrants who legally change their names. (Penal Code § 290.014, subd.

13

(a) [“If any person who is required to register pursuant to the Act changes his

14

or her name, the person shall inform, in person, the law enforcement agency

15

or agencies with which he or she is currently registered within five working

16

days”].)

17 28. The Legislature’s decision to expressly require in-person updates in certain limited situations

18 but no other situations confirms that the Legislature did not intend to require personal appearance at

19 initial registration, annual updates, 90-day updates, or 30-day updates. (See, e.g., Wilson v. City of

20 Laguna Beach (1992) 6 Cal. App. 4th 543, 554.) On information and belief, the Respondent Cal.

21 DOJ and various local registering agencies are able to, and do in fact, process registrations when the

22 Registrant does not appear in person, such as when a Registrant is hospitalized or otherwise

23 incapacitated. Accordingly, Respondents have, but unlawfully refuse to exercise, discretion to

24 process periodic updates without requiring Registrants to appear in person.

25 Respondents’ Discretionary In-person Registration Requirement Threatens Vulnerable

26 Registrants and Forces Them to Violate State and Local COVID-19-Related Orders

27 29. Petitioner John Doe #1 suffers from chronic medical conditions that render him vulnerable

28 to COVID-19 infection, including asthma, as confirmed by state and local authorities. In addition,

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1 Petitioner John Doe #1 is currently subject to the Governor of California’s Order, which requires 2 him to remain at home except for “essential” travel pursuant to the terms of that order. 3 30. Petitioner John Doe #2 is a 64-year-old homeless Registrant who must appear at the LASD 4 station in Santa Clarita for his 30-day updates and annual update pursuant to the Act. As noted 5 above, the LASD requires Petition John Doe #2 to register in person every 28 days, with his next in6 person registration required on April 9, May 7, and June 5, 2020. Petitioner John Doe #2 is 7 vulnerable to COVID-19 because of his age, his chronic asthma, a respiratory disease, as well as his 8 homeless status, in which he is constantly exposed to unsanitary and crowded conditions where 9 transmission of the coronavirus is more likely. 10 31. On March 24 and March 25, 2020, Petitioners, through counsel, telephoned five separate 11 LASD stations (Carson, Compton, Lancaster, Palmdale, and West Hollywood) to inquire whether 12 Petitioners and other Registrants are required to appear in person for periodic updates despite the 13 Governor’s Order as well as the common-sense directives of health care authorities, including the 14 directive of Los Angeles County itself, to remain at home. All five LASD registration officials 15 confirmed that all Registrants are required to appear in person for periodic updates, regardless of 16 their vulnerability due to one or more high risk COVID-19 factors. 17 32. On information and belief, the risk imposed upon the public, law enforcement personnel, 18 Registrants, and their families by the in-person registration requirement is rendered even greater 19 within the LASD’s jurisdiction because one or more LASD stations have severely restricted the 20 hours available for registration. For example, the LASD station in Santa Clarita, where Petitioner 21 John Doe #2 registers, is only open for three hours per week on a walk-in basis, that is, on 22 Thursdays between 1:00 p.m. and 4:00 p.m. In addition, the LASD station in Santa Clarita will not 23 provide anyone with an appointment to register. As a result of these restricted hours, Petitioner 24 John Doe #2 routinely encounters a large number of Registrants who are forced to congregate 25 together while their periodic updates are processed. By restricting the hours during which 26 Registrants must appear to register, Respondent LASD has increased the risk of infection and harm 27 not only to Registrants, but also to their families, law enforcement, and the general public by 28 ensuring that Registrants will appear in larger and more concentrated numbers at LASD stations.
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1 2 33. In addition, two of the five LASD registration officials queried by Petitioners’ counsel 3 asserted that the LASD cannot suspend its policy requiring in-person registration unless permitted to 4 do so by Respondent Cal. DOJ, because Respondent Cal. DOJ mandates that registering agencies 5 such as the LASD require Registrants to register in person. Accordingly, on information and belief, 6 Respondents Cal. DOJ and Becerra are responsible for the decision challenged in this action. The 7 continued insistence by registering agencies in counties and cities that Registrants appear in person 8 for periodic updates is, in part, the result of paperwork requirements that Respondents impose upon 9 registering agencies. Specifically, Department of Justice form CJIS 8102S (rev. 01/2020), attached 10 hereto as Exhibit B, purports to summarize the registration requirements, including the information 11 that must be provided by Registrants and collected by local registering agencies during periodic 12 updates. Form CJIS 8102S erroneously states that periodic updates must be done “in person.” 13 (Compare Exh. B, at pp. 3-4 ¶¶ 4, 6-7, 9, 12 with Cal. Penal Code § 290.012, subds. (a)-(c). See 14 also Litmon v. Harris (2014) 768 F.3d 1237, 1240, citing the State of California Form CJIS 8102S, 15 entitled “Sex Registration / Change of Address / Annual or Other Update.”) 16 34. In addition to being discretionary and neither required nor authorized by Section 290, 17 Respondents’ ongoing decision to require in-person registration for periodic updates forces 18 Petitioners and all Registrants to contravene the public safety measures imposed by state and local 19 government upon all residents of California, including Registrants, including the current Order by 20 the Governor of California. (Helling v. McKinney (1994) 509 U.S. 25, 33 [“It would be odd to deny 21 an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on 22 the ground that nothing yet had happened to them.”].) Respondents’ decision requiring in-person 23 registration therefore threatens both vulnerable Registrants as well as the larger population with 24 which those Registrants interact, including the public, law enforcement personnel, and their 25 families. 26 35. On information and belief, the locations at which Registrants are required to register in 27 person are often unsanitary, crowded, and do not allow for “social distancing” and other 28 preventative measures mandated by state and local government. For example, many police and
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1 sheriff’s stations are located in areas with large homeless populations. In addition, Registrants are

2 forced to enter, sit in, touch, and otherwise interact with unsanitary, and often narrow and cramped,

3 physical environments while registering. Those environments, as well as, the registration

4 procedures employed by Respondents, require repeated and prolonged contact with potentially

5 virus-ridden surfaces and objects such as countertops, clip boards, various papers, pens, pen chains,

6 ink pads, chairs, door handles, water fountains, and Livescan and other fingerprinting machine.

7 These unsanitary surfaces are touched by innumerable other Registrants, as well as other visitors to

8 the station and employees of the registering agencies.

9 36. On information and belief, there are registering agencies throughout California, including

10 the Los Angeles Police Department (LAPD), the agency with the largest population of Registrants

11 in the state, that are processing periodic updates over the telephone. That is, the LAPD has

12 completely stopped requiring Registrants to register in person while the COVID-19 emergency

13 measures are in place. Instead, the LAPD has placed signs, including those attached hereto as

14 Exhibit A, on the exterior of its police stations confirming that the LAPD’s registration policy is

15 currently “modified” to accommodate the COVID-19 emergency measures. (Exh. A.) Pursuant to

16 the LAPD’s modified policy, Registrants “are not [] allowed in the station,” and “[the LAPD] will

17 register [them] over the phone.” (Exh. A.)

18

EQUITY AND IRREPARABLE INJURY

19 37. Petitioner realleges and incorporates herein, as though fully set forth, each and every, all and

20 inclusively, paragraphs 1 through 36.

21 38. Risk of infection and death are irreparable injuries remediably by injunction. (E.g., Harris v.

22 Bd. of Supervisors (9th Cir. 2004) 366 F.3d 754 759, 766. See also City of Costa Mesa v. United

23 States (C.D. Cal. Feb. 21, 2020) No. 8:20-cv-00368-JLS, 2020 U.S. Dist. LEXIS 33650 [grating

24 temporary restraining order against placement of persons infected with COVID-19 within city limits

25 because such placement “threat[ens] immediate and irreparable injury”].)

26 39. Respondents’ discretionary decision to require that periodic updates occur in-person, rather

27 than through telephone or videoconferencing or other means, subjects Registrants and the general

28 public to an unreasonable and untenable risk of harm, as confirmed by state and local authorities

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1 who have ordered such Registrants to remain at home. There are alternative effective means to 2 achieve the purposes of Section 290, such as providing the necessary information by telephone or 3 through videoconference, or by delaying the collection of certain information until the COVID-19 4 pandemic has ended. On information and belief, certain state and federal agencies, including but 5 not limited to the California courts and the California Department of Motor Vehicle, have 6 suspended numerous statutory or regulatory requirements to appear in person, and/or have tolled 7 deadlines associated with appearing in person, due to the COVID-19 pandemic. In addition, on 8 information and belief, some registering agencies within the State of California, such as the Los 9 Angeles Police Department (“LAPD”), have suspended their requirement that Registrants appear in 10 person for periodic updates. (See Exh. A.) The equities in this case demand that Respondents 11 extend similar accommodation to Petitioners and other Registrants required to register in Los 12 Angeles County Sheriff’s Department stations, and throughout California, because of the 13 extraordinary needs and measures required by the current pandemic. 14 40. Mandamus, declaratory, and injunctive relief are warranted in this action because 15 Respondents’ unlawful activity has caused, is causing, and will continue to cause immediate and 16 irreparable harm to Petitioners, other Registrants, as well as the public at large by exposing 17 Petitioners and other Registrants to increased risk of infection by the COVID-19 virus. In fact, the 18 purpose of the stay-at-home order issued by the Governor of California is to prevent precisely the 19 risks imposed by Respondents upon Registrants when Registrants are needlessly forced to appear in 20 person at a Sheriff’s station. Yet, Respondents persist in requiring that Registrants appear in person 21 for periodic updates. 22 41. There are no plain, adequate, complete, or speedy alternative remedies available to redress 23 the violations of law committed by Respondents in this action, nor are there any available and non24 futile administrative remedies available to redress the violations of law committed by Respondents. 25 Damages are not adequate to protect Petitioners from the continuing effects of Respondents’ 26 violations of the law and from Respondents’ failure to carry out their duty under the law in 27 compliance with the law. (Cal. Civ. Proc. Code § 1086.) 28 ///
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1

FIRST CLAIM FOR RELIEF

2

(Mandamus – Cal. Civ. Proc. Code § 1085)

3 42. Petitioners reallege and incorporate herein, as though fully set forth, each and every, all and

4 inclusively, paragraphs 1 through 41.

5 43. As recognized by state and local government, COVID-19 is transmittable in the community

6 through person-to-person contact, or by contact with surfaces that host that virus. “There is no

7 specific treatment, vaccine or cure for COVID-19.” (Castillo v. Barr (C.D. Cal. March 27, 2020),

8 No. 20CV00605-TJH, 2020 U.S. Dist. LEXIS 54425, at p. *5-*6.) Therefore, the only means to

9 slow the spread of COVID-19 and the coronavirus that causes the disease are “social distancing”

10 and the avoidance of gatherings. (See id.) In order to minimize the risk to individuals as well as to

11 society at large, the Governor of California has ordered all persons to stay at home unless departing

12 for or returning from “essential” trips that do not include sex offender registration.

13 44. In addition, the California Sex Offender Registration Act neither requires nor authorizes 30-

14 day, 90-day, or annual registration updates to be completed in person. Yet, Respondents have

15 forced, and continue to force, Registrants to appear in person, even during the COVID-19 pandemic,

16 despite the Governor’s Order that such persons remain at home. Forcing Registrants to appear at

17 police and sheriff’s stations, which pose a risk of COVID-19 infection, for the purpose of periodic

18 updates exposes Petitioners, other Registrants, law enforcement personnel, and the public at large,

19 to increased risk of infection.

20 45. The state violates the rights of individuals when it subjects them to risk of physical harm and

21 disease during required interactions with law enforcement. (See Helling v. McKinney (1994) 509

22 U.S. 25, 33. Castillo, supra, 2020 U.S. Dist. LEXIS 54425, at p. *8-*14.)

23 46. The information required for 30-day, 90-day, and annual updates can be effectively obtained

24 by Respondents without requiring Registrants to appear in person. In the alternative, Respondents

25 have the discretion to stop in-person registration and/or to permit and process periodic updates

26 through alternative methods, including but not limited to the telephone. Despite widespread

27 availability of effective alternative methods of registration, Respondents refuse to use those

28 methods, thereby unlawfully refusing to exercise that discretion.

14 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 19 of 57

1 47. By requiring Registrants to appear in person for periodic updates pursuant to Penal Code

2 sections 290.011 and 290.012, Respondents have effectively added a requirement that is not

3 contained in those statutes or any other applicable statute, in violation of the law, thereby abusing its

4 discretion.

5 48. Petitioners are beneficially interested in the outcome of this mandamus action because

6 Petitioners are adversely impacted by Respondents’ failure to perform their duty in compliance with

7 the law, as well as by Respondents’ abuse of discretion, and because Petitioners’ rights are infringed

8 by Respondents’ failure to perform their duty in compliance with the law, as well as by

9 Respondents’ abuse of discretion.

10 49. The injuries that Petitioners are suffering and will suffer as a result of the actions of

11 Respondents, as well as their deputies, officials, officers, agents, and employees, are severe,

12 irreparable, and ongoing, and there is no plain, adequate, complete, or speedy alternative remedies

13 available to redress the violations of law committed by Respondents in this action, nor are there any

14 available and non-futile administrative remedies available to redress the violations of law committed

15 by Respondents. Damages are not adequate to protect Petitioners from the continuing effects of

16 Respondents’ violations of the law, from Respondents’ abuse of their discretion under the law, and

17 from Respondents’ failure to carry out their duty as required by law. Therefore, immediate

18 mandamus relief is necessary to halt and prevent further occurrence of these ongoing unlawful acts

19 as well as the infliction of irreparable harm to Petitioners and all Registrants.

20

SECOND CLAIM FOR RELIEF

21

(Declaratory Judgment – Cal. Civ. Proc. Code § 1060)

22 50. Petitioners reallege and incorporate herein, as though fully set forth, each and every, all and

23 inclusively, paragraphs 1 through 49.

24 51. There is an actual controversy as set forth in this Petition.

25 52. The California Sex Offender Registration Act neither requires nor authorizes 30-day, 90-

26 day, or annual registration updates to be completed in person. Therefore, Respondents lack

27 authority to require Registrants to appear in person for periodic updates pursuant to California Penal

28 Code section 290.012.

15 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 20 of 57

1 53. Petitioners are informed and believe and thereon allege that Respondents, as well as their

2 deputies, officials, officers, agents, and employees, have failed to comply and continue to fail to

3 comply with the law, and have abused and are continuing to abuse their discretion under the law, by

4 requiring Registrants in vulnerable populations as defined by national and state health care

5 authorities to appear in person for their periodic registration updates amidst the COVID-19

6 pandemic, as pled herein.

7 54. By requiring Registrants in vulnerable populations as defined by national and state health

8 care agencies to appear in person for their periodic registration updates amidst the COVID-19

9 pandemic, Respondents have violated the “basic constitutional right” of Plaintiffs and other

10 Registrants “to be free of official action that is unreasonable, arbitrary, and oppressive.” (In re

11 Taylor (2015) 60 Cal. 4th 1019, 1038.)

12 55. Petitioners therefore seek a declaration of their rights under California law, as well as a

13 declaration of Respondents’ duties under the Sex Offender Registration Act, California Penal Code

14 section 290, et seq., and of the scope of Respondents’ discretion under that Act.

15 56. The injuries that Petitioners are suffering and will suffer as a result of the actions of

16 Respondents, as well as their deputies, officials, officers, agents, and employees, are severe,

17 irreparable, and ongoing, and there is no plain, adequate, complete, or speedy alternative remedies

18 available to redress the violations of law committed by Respondents in this action, nor are there any

19 available and non-futile administrative remedies available to redress the violations of law committed

20 by Respondents. Damages are not adequate to protect Petitioners from the continuing effects of

21 Respondents’ violations of the law, from Respondents’ abuse of their discretion under the law, and

22 from Respondents’ failure to carry out their duty as required by law. Therefore, immediate

23 mandamus relief is necessary to halt and prevent further occurrence of these ongoing unlawful acts

24 as well as the infliction of irreparable harm to Petitioners and all Registrants.

25

PRAYER FOR RELIEF

26

WHEREFORE, Petitioners pray for judgment against Respondents Cal. DOJ, Becerra,

27 LASD, and Villanueva as follows:

28

A. That the Court issue a peremptory writ of mandate directing Respondent LASD and

16 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 21 of 57

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 /// 28 ///

Villanueva to cease requiring persons required to register as a sex offender from appearing in person for 30-day, 90-day, and annual updates (“periodic updates”) pursuant to California Penal Code sections 290.011 and 290.012 until the threat of COVID-19 has ended; B. That the Court issue a peremptory writ of mandate directing Respondents Cal. DOJ and Becerra to cease requiring persons required to register as a sex offender from appearing in person for 30-day, 90-day, and annual updates (“periodic updates”) pursuant to California Penal Code sections 290.011 and 290.012 until the threat of COVID-19 has ended; C. That the Court issue a peremptory writ of mandate directing Respondents Cal. DOJ and Becerra to cease requiring local registering agencies to perform in-person registration for 30-day, 90-day, and annual updates (“periodic updates”) pursuant to California Penal Code sections 290.011 and 290.012 until the threat of COVID-19 has ended; D. For a judgment declaring that California Penal Code sections 290.011 and 290.012 and other applicable law do not require persons required to register as a sex offender to appear in person to complete periodic updates; E. For a judgment declaring that Respondents lack authority under California Penal Code sections 290.011 and 290.012 and other applicable law to require persons required to register as a sex offender to appear in person to complete periodic updates; F. For a judgment declaring that Respondents have abused their discretion under California Penal Code sections 290.011 and 290.012 and other applicable law by requiring persons required to register as a sex offender to appear in person to complete periodic updates; G. For a temporary restraining order, preliminary injunction, and permanent injunction restraining Respondents from requiring persons required to register as a sex offender from appearing in person for periodic updates pursuant to California Penal Code sections 290.011 and 290.012 until the threat of COVID-19 has ended;

17 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 22 of 57

1

H. That Petitioners recover from Respondents all of the Petitioners’ reasonable attorneys’

2

fees, costs, and expenses of this litigation; and

3

I. For such other and further relief as the Court deems just and proper.

4

5 Dated: April 7, 2020 6 7 8

LAW OFFICE OF JANICE M. BELLUCCI
By: _________________________________ Janice M. Bellucci Attorney for Petitioners

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11

12

13

14

15

16

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18

19

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21

22

23

24

25

26

27

28

18 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 23 of 57

1

VERIFICATION

2

I, Janice M. Bellucci, have read this FIRST AMENDED PETITION FOR WRIT OF

3 MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF in the

4 matter of Alliance for Constitutional Sex Offense Laws, Inc., et al. v. California Department of

5 Justice, et al. I am the Executive Director of Petitioner Alliance for Constitutional Sex Offense

6 Laws, Inc. and make this declaration on behalf of that entity. In addition, I am counsel of record for

7 Petitioner John Doe in this action. Pursuant to Code of Civil Procedure section 446, I make this

8 verification on behalf of Petitioners John Doe #1 and John Doe #2 because they reside in Los

9 Angeles County, while my office is in the City of Sacramento. Unless otherwise noted, the facts

10 alleged therein are within my personal knowledge and I know these facts to be true. As to the

11 remainder of the Petition, I am informed, and do believe, that the matters therein are true, and on

12 that ground allege that the matters stated therein are true.

13

Executed April 7, 2020, in Sacramento, California. I declare under the penalty of perjury

14 under the laws of the State of California that the foregoing is true and correct.

15

By: ___________________________________

16

Janice M. Bellucci

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19 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 24 of 57
EXHIBIT A

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 25 of 57

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 26 of 57
EXHIBIT B

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

CJIS 8102S

PAGE 1 of 5

(RCev.a01s/2e0201) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 27 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections (§§) 290–290.024 and 290.01

PLEASE FOLLOW THESE IMPORTANT PROCESSING INSTRUCTIONS:
• Print or type the required information and enter into the California Sex and Arson Registry (CSAR) application. • Submit a current photograph of the registrant to the DOJ Image System: https://calphoto.ext.doj.ca.gov/. • Have the registrant read and initial the registration requirements on pages 3, 4, and 5 of this form. • Verify the registrant understands the requirements. • Retain the original of this form. • Provide a photocopy to the registrant as a receipt.

FACILITY TYPE (Enter alpha code in Facility Type field): Day Care Center. . . . . . . . . . . . . . . . . . . . . . . . . . . .DC Family Child Care Home. . . . . . . . . . . . . . . . . . . .FCH Group Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .GH Foster Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .FH Adult Day Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . .AD Sober Living Home . . . . . . . . . . . . . . . . . . . . . . . . .SLH Elderly Care Home . . . . . . . . . . . . . . . . . . . . . . . . .ECH

REASON FOR REGISTRATION (More than one box can be checked):

ANNUAL

30 DAY (TRANSIENT)

90 DAY (SVP)

CHANGE OF ADDRESS

OTHER (e.g., Initial, Additional Address)

REGISTRATION EVENT (Check all that apply):

INITIAL (1st 8102 in CSAR) Residence Campus (Attending, Employed, Volunteer) Employment (Out of state resident employed in CA) Transient
ADDITIONAL ADDRESS (Concurrent) Residence Campus (Attending, Employed, Volunteer) Employment (Out of state resident employed in CA)

REGISTRANT HAS MOVED/CHANGE OF ADDRESS INTO JURISDICTION
INTO JURISDICTION FROM OUT OF STATE WITHIN JURISDICTION OUT OF JURISDICTION OUT OF STATE
INACTIVATE ADDRESS - If registrant has more than one registered address, list the address registrant is vacating from in the space below:

ABSCONDED (LEA has verified whereabouts unknown)

DEPORTATION

INCARCERATION

CDCR

LOCAL

FED

INC DATE:

DJJ

DSH/DDS

ICE

If the registrant is DECEASED, do not complete this form. To update a registrant to DECEASED status, complete and submit form CJIS 8086B.

UPDATE (No Change in Registration Status)

FULL NAME OF REGISTRANT

Last

First

Middle

Suffix

ALIASES

DATE OF BIRTH

CII NUMBER (SID)

DRIVER'S LICENSE/I.D. NUMBER STATE

EXPIRATION DATE

FCN NUMBER

SOCIAL SECURITY NUMBER

INSTITUTION NUMBER (CDCR, DJJ, or DSH)

FBI NUMBER

SEX

RACE

HAIR COLOR

EYE COLOR

HEIGHT

WEIGHT

PLACE OF BIRTH

ORIGINATING AGENCY CASE NUMBER (OCA)

TYPE OF CONVICTION IF NON-CALIFORNIA OFFENSE

OUT OF STATE

FEDERAL

NEW OR MODIFIED SCARS, MARKS, TATTOOS, AND OTHER CHARACTERISTICS NOT IN CSAR 1 LOCATION

NEW OR MODIFIED SCARS, MARKS, TATTOOS, AND OTHER CHARACTERISTICS NOT IN CSAR 2 LOCATION

NEW OR MODIFIED SCARS, MARKS, TATTOOS, AND OTHER CHARACTERISTICS NOT IN CSAR 3 LOCATION

HOME PHONE NUMBER

WORK PHONE NUMBER

MILITARY DESCRIPTION

PICTURE

TEXT

DESCRIPTION

PICTURE

TEXT

DESCRIPTION

PICTURE

TEXT

CELLULAR PHONE NUMBER

ADDRESS

Street Number and Name

Apt./Unit Number

CITY

DWELLING TYPE Single Family Residence

Apartment / Condominium

LOCATION(S) FREQUENTED BY TRANSIENT

Hotel / Motel

Other

LICENSED FACILITY

YES

NO

FACILITY TYPE

ADDITIONAL REGISTRATION ADDRESS Street Number and Name Residence Campus Employment

Apt./Unit Number CITY

DWELLING TYPE Single Family Residence

Apartment / Condominium

Hotel / Motel

Other

LICENSED FACILITY FACILITY TYPE

YES

NO

CAMPUS REGISTRATION Attending Employed

CAMPUS NAME/ADDRESS Volunteer

STREET NUMBER AND NAME

CITY

STATE

ZIP CODE

STATE

ZIP CODE

STATE ZIP CODE
Registrant Rolled Right Thumbprint If amputated, use next available finger

SIGNATURE OF REGISTRANT

DATE

DISTRIBUTION: Original to Registering Agency; Copy to Subject Registering

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

CJIS 8102S

PAGE 2 of 5

(RCev.a01s/2e0201) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 28 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections (§§) 290–290.024 and 290.01

NAME OF REGISTRANT

Last

First

Middle

CII NUMBER (SID)

DATE

RELATED ADDRESS (e.g., Mailing, Emergency Contact)

Street Number and Name

Apt./Unit Number City

State

Zip Code

RELATED ADDRESS TYPE Mailing
GPS Charging Location

Emergency Contact

NAME OF EMERGENCY CONTACT (If emergency contact is checked)

RELATED ADDRESS (e.g., Mailing, Emergency Contact)

Street Number and Name

Apt./Unit Number City

RELATIONSHIP TO EMERGENCY CONTACT (e.g., Mother, Father)

State

Zip Code

RELATED ADDRESS TYPE Mailing GPS Charging Location
OCCUPATION

Emergency Contact

NAME OF EMERGENCY CONTACT (If emergency contact is checked) RELATIONSHIP TO EMERGENCY CONTACT (e.g., Mother, Father)

EMPLOYER'S NAME

DATE CURRENT EMPLOYMENT BEGAN

EMPLOYER'S ADDRESS

Street Number and Name

Suite/Unit Number City

State

Zip Code

WORK ADDRESS (If different than Employer's Address) Street Number and Name

Suite/Unit Number City

State

Zip Code

REGISTERING AGENCY (Do Not Abbreviate) REGISTERING AGENCY'S E-MAIL ADDRESS PROBATION/PAROLE OFFICER

REGISTERING OFFICER'S NAME AND TITLE

PHONE NUMBER

ORI

MNEMONIC PHONE NUMBER

DNA COLLECTED? YES NO

COMMENTS (Include additional, new or modified Scars, Marks, Tattoos, and Other Characteristics)

ADDRESS/RESIDENCE DEFINITIONS:
ADDRESS - Address at which I regularly reside, regardless of the number of days or nights spent there. ADDITIONAL ADDRESS - Additional address at which I regularly reside, regardless of the number of days or nights spent there. RELATED ADDRESS - Address of a relative or other person who is likely to know how to contact me. EMPLOYER'S NAME/ADDRESS - The name and address of my employer (e.g., company, individual, entity), and the address of that employer. WORK ADDRESS - The address at which I work. RESIDENCE - One or more addresses at which I regularly reside, regardless of the number of days or nights spent there, such as a shelter or structure that can be located
by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.

HAS YOUR VEHICLE INFORMATION CHANGED SINCE YOUR LAST REGISTRATION? IF SO, PLEASE PROVIDE THE UPDATED VEHICLE INFORMATION BELOW.

HAVE YOU SOLD OR STOPPED REGULARLY DRIVING A VEHICLE SINCE YOUR LAST REGISTRATION?

YES

NO

VEHICLE #1 Registered Owner

Regularly Driven

VEHICLES OWNED, REGISTERED, OR REGULARLY DRIVEN

VEHICLE #2

Registered Owner

Regularly Driven

VEHICLE (#1) IDENTIFICATION NUMBER (VIN)

VEHICLE (#2) IDENTIFICATION NUMBER (VIN)

LICENSE PLATE NUMBER #1 STATE

TYPE

YEAR OF EXPIRATION

LICENSE PLATE NUMBER #2 STATE

TYPE

YEAR OF EXPIRATION

VEHICLE YEAR MAKE

MODEL

STYLE/COLOR

VEHICLE YEAR MAKE

MODEL

STYLE/COLOR

END DATE

MAKE

MODEL

Registrant Rolled Right Thumbprint If amputated, use next available finger

SIGNATURE OF REGISTRANT

DATE

DISTRIBUTION: Original to Registering Agency; Copy to Subject Registering

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

CJIS 8102S

PAGE 3 of 5

(RCev.a01s/2e0201) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 29 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections (§§) 290–290.024 and 290.01

NAME OF REGISTRANT

Last

First

Middle

CII NUMBER (SID)

DATE

REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

1.

My responsibility to register as a sex offender in California is a lifetime requirement, except as provided in Pen. Code, § 290.005,

Pen. Code, § 290.5, or by court order.

2.

I must register in person, if I have never registered, within five (5) working days of: 1) coming into California, or 2) release from

incarceration, placement, commitment, or release on probation, with the law enforcement agency having jurisdiction over my place(s)

of residence or where I am physically present as a transient. (Pen. Code, § 290)

3.

I must re-register in person, if I have previously registered, within five (5) working days, after release from incarceration, placement,

or commitment that lasted 30 or more days, or within five (5) working days after release on probation. I do not have to re-register

after release if I was incarcerated for less than 30 days, and I return to the last registered address, and the update of registration that

is required to occur within five (5) working days before or after my birthday did not fall within that incarceration period.

(Pen. Code, § 290.015)

4.

I must annually update my registration information in person, within five (5) working days before or after my birthday, at the law

enforcement agency having jurisdiction over my residence address or where I am currently present as a transient. Annual updates

begin with my first birthday following registration or change of address. (Pen. Code, § 290.012)

5.

Upon coming into, or when changing my residence address within a city and/or county in which I am residing, I must register or re-

register in person, within five (5) working days, with the law enforcement agency having jurisdiction over my residence.

(Pen. Code, §§ 290, 290.013)

6.

If I change my registered address to a new address, either within the same jurisdiction or anywhere inside or outside of the state, I

must inform the last registering agency or agencies in person within five (5) working days before or after I leave. If I do not know my

new residence address or transient location I must later notify, by registered or certified mail, the last registering agency or agencies

of the new address or transient location with five (5) working days of moving to the new address or location. (Pen. Code, § 290.013)

7.

If I am registered at a residence address and become transient, I have five (5) working days within which to register in person with

the law enforcement agency having jurisdiction where I am physically present as a transient. (Pen. Code, § 290.011)

8.

If I am registered as a transient and move to a residence, I have five (5) working days within which to register in person with the law

enforcement agency having jurisdiction over the new address. (Pen. Code, § 290.011)

9.

If I have no residence address, I must register in person in the jurisdiction where I am physically present as a transient within five (5)

working days of becoming transient. Thereafter, I must update my registration information in person no less than once every 30

days with the law enforcement agency having jurisdiction over the place where I am physically present as a transient on the day I re-

register. I do not need to report changes of transient location within the 30-day period unless I move out of state. I must also comply

with the annual requirement to update my registration. (Pen. Code, § 290.011)

10.

If I am registered as a transient and I am moving out of state, I must inform the law enforcement agency having jurisdiction over the

place where I was physically present as a transient, in person, within five (5) working days before or after I leave. I must also inform

the law enforcement agency of my planned destination, residence, or transient location out of state, if known, and any plans to return

to California. (Pen. Code, § 290.011)

11.

If I move outside of California, I am required by federal law to register in the new state within three (3) working days. Federal law

requires me to notify my registering agency no less than 21 days before I intend to travel internationally.

REGISTRATION REQUIREMENTS CONTINUE ON PAGE 4

I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense.

Registrant Rolled Right Thumbprint If amputated, use next available finger

SIGNATURE OF REGISTRANT

DATE

DISTRIBUTION: Original to Registering Agency; Copy to Subject Registering

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

CJIS 8102S

PAGE 4 of 5

(RCev.a01s/2e0201) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 30 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections (§§) 290–290.024 and 290.01

NAME OF REGISTRANT

Last

First

Middle

CII NUMBER (SID)

DATE

REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

12.

If I have ever been committed as a sexually violent predator, I must update my registration information in person, no less than once

every 90 days with the law enforcement agency having jurisdiction over my residence or transient location. I must also comply with

the annual requirement to update my registration in person. (Pen. Code, §§ 290.001, 290.012)

13.

If I have more than one residence address at which I regularly reside (regardless of the number of days or nights I spend at each

address), I must register in person, within five (5) working days at each address with the law enforcement agency having jurisdiction

over each residence. If I no longer reside at a registered address, I must inform in person, the registering agency having jurisdiction

over that address within five (5) working days before or after I leave. (Pen. Code, § 290.010)

14.

If I reside or am a transient on a University of California, California State University, or community college campus, I must register in

person, within five (5) working days with the local law enforcement agency having jurisdiction over the campus and additionally with

the campus police. (Pen. Code, §§ 290, 290.011)

15.

If I am enrolled or employed (with or without compensation) at an institution of higher learning, I must register within five (5) working

days of commencement of the term of enrollment or employment, with the campus police department or if no campus police

department exists, with the law enforcement agency having jurisdiction over that campus. I must also register in person with the law

enforcement agency having jurisdiction over my place of residence or transient location. When I cease being enrolled or employed at

that institution, I must notify the registering agency for the campus within five (5) working days. (Pen. Code, §§ 290.009, 290.01)

16.

Campus registration must be in person unless I am enrolled in an online course which does not require my presence at an institution

of higher learning in California. I must register for online courses by mailing the Department of Justice Online Course Registration

Form to the campus police department, or if no campus police department exists, to the law enforcement agency having jurisdiction

over that campus, within five (5) working days of commencement of my term of enrollment. When I cease being enrolled at that

institution, I must notify the registering agency for the campus within five (5) working days. (Pen. Code, §§ 290.009, 290.01) The

DOJ Online Course Registration Form is available at: www.oag.ca.gov.

17.

I understand that if I wish to come into any school building or upon any school ground (grades K-12), I must have a lawful purpose

and written permission from the school's chief administrative officer indicating the date(s) and time(s) for which permission has been

granted. (Pen. Code, § 626.81)

18.

If I live outside of California and I am required to register in that state and I attend school or am employed in California, I must register

in person with the law enforcement agency having jurisdiction over my school or employment location within five (5) working days of

beginning attendance or becoming employed, in addition to registering in my state of residence. (Pen. Code, § 290.002)

19.

I must provide proof of residence to the registering agency within 30 days of registration or re-registration at a new residence

address. (Pen. Code, § 290.015)

20.

If I am on parole or probation, I must provide proof of registration to my parole agent or probation officer within six (6) working days

of release on parole or probation and proof of any change or update to my registration within five (5) working days. (Pen. Code, §

290.85)

REGISTRATION REQUIREMENTS CONTINUE ON PAGE 5

I have been notified of my duty to register as a sex offender pursuant to Pen. Code §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense.

Registrant Rolled Right Thumbprint If amputated, use next available finger

SIGNATURE OF REGISTRANT

DATE

DISTRIBUTION: Original to Registering Agency; Copy to Subject Registering

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

CJIS 8102S

PAGE 5 of 5

(RCev.a01s/2e0201) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 31 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections (§§) 290–290.024 and 290.01

NAME OF PERSON NOTIFIED Last

First

Middle

CII NUMBER (SID)

DATE

REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

21.

If I change my name I must notify in person, within five (5) working days, the law enforcement agency or agencies having jurisdiction

over my place of residence or place where I am required to register as a transient. (Pen. Code, § 290.014)

22.

I understand I am required to submit DNA samples, as well as fingerprints and full palm prints. (Pen. Code, §§ 296, 296.2)

23.

If I accept a position as an employee or volunteer with any person, group, or organization where I would be working directly and in an

unaccompanied setting with minor children on more than an incidental and occasional basis or have supervision or disciplinary power

over minor children, I shall disclose my status as a registrant, upon application or acceptance of a position, to that person, group, or

organization. If I have been convicted of a crime where the victim was a minor under 16 years of age, I shall not be an employer,

employee, independent contractor, or act as a volunteer with any person, group, or organization in a capacity in which the registrant

would be working directly and in an unaccompanied setting with minor children on more than an incidental and occasional basis or

have supervision or disciplinary power over minor children. If I work in an accompanied setting with minor children, and my work would

require me to touch the minor children on more than an incidental basis, I shall disclose my status as a registrant, upon application or

acceptance of the position, to that person, group, or organization. (Pen. Code, § 290.95)

Privacy Notice As Required by Civil Code § 1798.17
Collection and Use of Personal Information. The California Justice Information Services (CJIS) Division in the Department of Justice (DOJ) collects the information requested on this form as authorized by Pen. Code, §§ 290–290.023 and 290.01. In addition, any personal information collected by state agencies is subject to the limitations in the Information Practices Act and state policy. The DOJ's general privacy policy is available at https://oag.ca.gov/privacy-policy.
Providing Personal Information. All the personal information requested in the form must be provided. Failure to provide requested information may result in your address change not being processed.
Access to Your Information. Please contact the local law enforcement agency where you registered if you wish to review the personal information collected on this form, as permitted by the Information Practices Act.
Possible Disclosure of Personal Information. The local law enforcement agency where you registered is required by law to enter this information into the California Sex and Arson Registry (CSAR). Additionally, the California Sex Offender Registry is required by law to provide the information in CSAR to other law enforcement agencies.
The information you provide may also be disclosed in the following circumstances:
• With other persons or agencies where necessary to perform their legal duties, and their use of your information is compatible and complies with state law, such as for investigations or for licensing, certification, or regulatory purposes;
• To another government agency as required by state or federal law.

I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense. I have read and understand the Privacy Notice as required by Civil Code § 1798.17.

Registrant Rolled Right Thumbprint If amputated, use next available finger

SIGNATURE OF REGISTRANT

DATE

California Department of Justice California Sex Offender Registry (CSOR)
P.O. Box 903387 Sacramento, CA 94203-3870
DISTRIBUTION: Original to Registering Agency; Copy to Subject Registering

Case 1:20-cv-00600-NONE-JDP Document 10-2

ATTORNEY OR PARTY WITHOUT ATTORNEY:

STATE BAR NO: 108,911

NAME: Janice M. Bellucci

FIRM NAME: Law Office of Janice M. Bellucci

STREET ADDRESS: 1215 K Street, 17th Floor

CITY: Sacramento

STATE: CA

ZIP CODE: 95814

TELEPHONE NO.: 805.896.7854

FAX NO. : 916.823.5248

E-MAIL ADDRESS: jmbellucci@aol.com

ATTORNEY FOR (name): Petitioners/Plaintiffs

Filed 05/20/20

Page 32PoOfS5-7050/EFS-050
FOR COURT USE ONLY

SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los Angeles STREET ADDRESS: 111 North Hill Street
MAILING ADDRESS:
CITY AND ZIP CODE: Los Angeles, CA 90012 BRANCH NAME: Stanley Mosk Courthouse
PLAINTIFF/PETITIONER: Alliance for Constitutional Sex Offense Laws, Inc., et al.

CASE NUMBER:
20STCV12138

DEFENDANT/RESPONDENT: California Department of Justice, et al.

JUDICIAL OFFICER:
Hon. Jon R. Takasugi

PROOF OF ELECTRONIC SERVICE

DEPARTMENT:
17

1. I am at least 18 years old. a. My residence or business address is (specify): Law Office of Janice M. Bellucci 1215 K Street, 17th Floor, Sacramento, CA 95814
b. My electronic service address is (specify): jmbellucci@aol.com; service@all4consolaws.org
2. I electronically served the following documents (exact titles): FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (CAL. CIV. PROC. CODE §§ 1085, 1060)
The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.)
3. I electronically served the documents listed in 2 as follows: a. Name of person served: Aaron Jones, counsel for Respondents California Department of Justice and Xavier Becerra On behalf of (name or names of parties represented, if person served is an attorney): Respondents California Department of Justice and Xavier Becerra b. Electronic service address of person served : Aaron.Jones@doj.ca.gov c. On (date): April , 2020
The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)/EFS-050(P) may be used for this purpose.)

Date: April , 2020 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Janice M. Bellucci
(TYPE OR PRINT NAME OF DECLARANT)

(SIGNATURE OF DECLARANT)

Form Approved for Optional Use Judicial Council of California POS-050/EFS-050 [Rev. February 1, 2017]

PROOF OF ELECTRONIC SERVICE (Proof of Service/Electronic Filing and Service)

Page 1 of 1
Cal. Rules of Court, rule 2.251 www.courts.ca.gov

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 33 of 57

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

RJN No. 2

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Case No.: 1:20-cv-00600-NONE-JDP

CSUasPeE1R:2I0O-cRv-0C0O60U0R-NTONOEF-JCDAPLIDFoOcuRmNeInAt 1,0C-2OUFNileTdY05O/2F0/L20OSPAagNeG34EoLfE5S7
Civil Division Central District, Stanley Mosk Courthouse, Department 1

20STCV12138 ALLIANCE FOR CONSTITUTIONAL SEX OFFENSE LAWS, INC., A CALIFORNIA NON-PROFIT CORPORATION, et al. vs CALIFORNIA DEPARTMENT OF JUSTICE, et al.

April 17, 2020 8:30 AM

Judge: Honorable Mary H. Strobel Judicial Assistant: N DiGiambattista Courtroom Assistant: None

CSR: None ERM: None Deputy Sheriff: None

APPEARANCES: For Petitioner(s): Janice M. Bellucci (Telephonic) (X) For Respondent(s): Michael Daniel Allen (X) (Telephonic); Aaron David Jones (x) (Telephonic)

NATURE OF PROCEEDINGS: EX PARTE APPLICATION OF PLAINTIFF, ALLIANCE FOR CONSTITUTIONAL SEX OFFENSE LAWS, FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
Matter, continued from April 14, 2020, is called for hearing in Department One. . The court orally announces its tentative ruling to all counsel. . After hearing argument, the court adopts its tentative ruling as the order of the court.
The temporary restraining order is denied. Plaintiffs have shown no or very little likelihood of success on the merits. While plaintiffs have shown potential harm from denial of the temporary restraining order, defendants have also shown potential harm from issuance of the temporary restraining order. The balance of harms does not tip appreciably in plaintiff's favor. . It appearing to the court that this case belongs to the writs and receivers department, the case is transferred to Department One for reassignment. . Notice is waived.

Minute Order

Page 1 of 1

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

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Xavier BecerrCa,aAsetto1r:n2e0y-cGve-n0e0ra6l00-NONE-JDP Document 10-2 Filed 05/20/20 Page 36 of 57

California Department of Justice CALIFORNIA JUSTICE
INFORMATION SERVICES DIVISION Joe Dominic, Chief
Subject :
Executive Order N-63-20, RE: Sex Offender Registration

No .
20-07-CJIS
Date:
05-12-2020

Contact for information:
California Sex Offender Registry
(916) 210-3113
CASEX-Reg@doj.ca.gov

TO: ALL CALIFORNIA LAW ENFORCEMENT AGENCIES
Effective May 7, 2020, pursuant to Executive Order N-63-20, law enforcement agencies (LEAs) are encouraged to adopt telephonic, remote, or other procedures for registration and reporting under the Sex Offender Registration Act (Penal Code sections 290 to 290.024, inclusive (the Act)). Such procedures must be consistent with state and local public health guidance regarding physical distancing, and LEAs are encouraged to post or publicize such procedures through means calculated to reach any person subject to the Act (registrants).
Pursuant to Executive Order N-63-20, to the extent an LEA institutes telephonic, remote, or other procedures to enable physical distancing, all provisions of the Act and implementing procedures that require registrants to appear in person, and all provisions of the Act and implementing procedures that require registrants to provide a signature, fingerprints, and photograph, are suspended for 60 days.
To ensure that lack of technology does not prevent any individual from complying with registration and reporting requirements, LEAs are encouraged to provide alternative means of registration and reporting, including permitting the physical presence of registrants consistent with state and local public health guidance regarding physical distancing.
The requirement to register and all other registration and reporting requirements of the Act remain in place.
***
This Information Bulletin is being issued to provide guidance to LEAs regarding the implementation of Executive Order N-63-20.
In accordance with Executive Order N-63-20, for the next 60 days, fingerprints, signatures, initials, or photographs of a registrant are no longer required in order to process CJIS 8047 and CJIS 8102S forms. If an agency uses LiveScan machines as standard protocol to enter registration information into the California Sex and Arson Registry (CSAR) via the Registration type of transaction (REG TOT), agencies should manually enter all information into CSAR via CSAR's graphical user interface.
Agencies should consult their agency counsel, City Attorney's Office and/or County Counsel's Office regarding any local directive which might affect registrants' abilities to complete registration and to determine the proper implementation of Executive Order N-63-20 for their agency.
Due to the current COVI D-19 pandemic, registering agencies may be employing different registration procedures; therefore, it is recommended that partner agencies remain in close communication in enforcing registration requirements.

InformationCBauslleet1in:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 37 of 57 Executive Order N-63-20, RE: Sex Offender Registration Page 2
Please find below specific instructions regarding the completion and submission of the CJIS 8047 and CJIS 8102S forms. Complete either the CJIS 8047 or the CJIS 8102S form pursuant to standard procedures for the type of registration event. Please fingerprint and photograph the registrant at their next registration event as required under the Act following the expiration of Executive Order N-63-20.
CJIS 8047: Notice of Sex Offender Registration Requirement Form
Page 1: Confirm all data fields. Registering official to sign and date in "Statement of Notifying Officer" section. Recite admonishment contained within signature block and ask registrant to confirm understanding. Registering official to sign and date, note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of admonishment and acknowledged admonishment" in "Statement of Person Notified" section. Do not provide a thumbprint.
Page 2: Recite admonishments 1-12 and ask registrant to confirm understanding of each admonishment.
Page 3: Recite admonishments 13-23 and ask registrant to confirm understanding of each admonishment. Registering official to sign and date in "Comments" field and note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of each admonishment on pages 2 and 3 and acknowledged each admonishment on pages 2 and 3."
Page 4: Recite privacy notice and admonishment in signature block to registrant and ask registrant to confirm understanding of privacy notice and admonishment. Registering officer to sign and date in signature block and note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of privacy notice and admonishment in signature block and acknowledged privacy notice and admonishment."
Do not take, submit, or upload photograph of registrant.
CSAR Entry: Forward to the California Department of Justice for entry.
CJIS 8102S: Sex Offender Registration Change of Address/Annual or Other Update Form
Page 1: Confirm all data fields with registrant. Ensure that all information is confirmed at the next in-person registration event. Registering official to sign and date in "Statement of Notifying Officer" section. Registering official to sign, date, and note "Completed on behalf of and with consent of [Registrant name]" in "Statement of Person Notified" section. Do not provide a thumbprint.
Page 2: Confirm all data fields with registrant. Registering official to sign and date, note "Completed on behalf of and with consent of [Registrant name]." Do not provide a thumbprint.
Page 3: Recite admonishments 1-11 and admonishment contained within signature block and ask registrant to confirm understanding of each admonishment. Registering official to sign and date in signature block and note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of each admonishment and acknowledged each admonishment, including admonishment in signature block." Do not provide a thumbprint.
Page 4: Recite admonishments 12-20 and admonishment contained within signature block and ask registrant to confirm understanding of each admonishment. Registering official to sign

InformationCBauslelet1in:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 38 of 57 Executive Order N-63-20, RE: Sex Offender Registration Page 3
and date in signature block and note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of each admonishment and acknowledged each admonishment, including admonishment in signature block." Do not provide a thumbprint. Page 5: Recite admonishments 21-23 and ask registrant to confirm understanding of each admonishment. Recite privacy notice and admonishment in signature block to registrant and ask registrant to confirm understanding of privacy notice and admonishment. Registering official to sign and date in signature block and note "Completed on behalf of and with consent of [Registrant name]. [Registrant name] notified of each admonishment and acknowledged each admonishment, including admonishment in signature block. [Registrant name] notified of privacy notice and acknowledged privacy notice." Do not provide a thumbprint. Do not take, submit, or upload photograph of registrant. CSAR Entry: Enter all information into CSAR directly. Maintain original.
JOE DOMINIC, Chief California Justice Information Services Division
For XAVIER BECERRA Attorney General

Case 1:20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 39 of 57

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

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NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENT
Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01
PLEASE FOLLOW THESE IMPORTANT PROCESSING INSTRUCTIONS: Print or type required information and submit the original form to the Department of Justice (DOJ) within three (3) business days. Submit a current photograph of the registrant to the DOJ Image System: https://calphoto.ext.do .ca.gov/ Have the registrant read, sign, and initial the registration requirements on pages 2 and 3 of this form. Verify the registrant understands the requirements. Retain a copy of this form provide a copy of this form to the Notifying Agency (if different than Registering Agency) and to the Registrant. Send this original form to the California Department of Justice, California Sex Offender Registry, P.O. Box 903387, Sacramento, CA 94203-3870

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I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 2 and 3 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense.

Re istrant Rolled Ri t um print f amputated, use ne t availa le fin er

(NOTE: THIS FORM DOES NOT COMPLETE YOUR DUTY TO REGISTER. UPON RELEASE FROM INCARCERATION OR RELEASE INTO SUPERVISION, YOU MUST REGISTER IN PERSON WITHIN FIVE (5) WORKING DAYS TO COMPLETE THE REGISTRATION PROCESS.)

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NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENT

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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f c an e m re istered address to a ne address, eit er it in t e same urisdiction or an ere inside or

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re istered or certified mail, t e last re isterin a enc or a encies of t e ne address or transient location it in

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f am re istered as a transient and move to a residence, ave five ) or in da s it in ic to re ister in

person it t e la enforcement a enc avin urisdiction over t e ne address en Code,

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f ave no residence address, must re ister in person in t e urisdiction ere am p sicall present as a

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person no less t an once ever t irt ) da s it t e la enforcement a enc avin urisdiction over t e place

ere am p sicall present as a transient on t e da re re ister do not need to report c an es of transient

location it in t e da period unless move out of state must also compl it t e annual re uirement to

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f am re istered as a transient and am movin out of state, must inform t e la enforcement a enc avin

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f move outside of California, am re uired federal la to re ister in t e ne state it in t ree ) or in da s ederal la re uires me to notif m re isterin a enc no less t an t ent one ) da s efore intend to travel internationall

f ave ever een committed as a se uall violent predator, must update m re istration information in person, no

less t an once ever ninet ) da s it t e la enforcement a enc avin urisdiction over m residence or

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en Code,

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DEFINITION: Residence means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.
REGISTRATION REQUIREMENTS CONTINUE ON NEXT PAGE (PAGE 3)

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NOTICE OF SEX OFFENDER REGISTRATION REQUIREMENT

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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nline Course Re istration orm to t e campus police department, or if no campus police department e ists, to t e

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availa le at: www.oag.ca.gov

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ave supervision or disciplinar po er over minor c ildren, s all disclose m status as a re istrant, upon

application or acceptance of a position, to t at person, roup, or or ani ation f ave een convicted of a crime

ere t e victim as a minor under si teen ) ears of a e, s all not e an emplo er, emplo ee, independent

contractor, or act as a volunteer it an person, roup, or or ani ation in a capacit in ic t e re istrant ould

e or in directl and in an unaccompanied settin it minor c ildren on more t an an incidental and occasional

asis or ave supervision or disciplinar po er over minor c ildren f or in an accompanied settin it minor

c ildren, and m or ould re uire me to touc t e minor c ildren on more t an incidental asis, s all disclose

m status as a re istrant, upon application or acceptance of t e position, to t at person, roup, or or ani ation

en Code,

)

COMMENTS

DEFINITION: Residence means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.

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Privacy Notice s Re uired Civil Code

Collection and Use of Personal Information. e California Justice nformation ervices CJ ) Division of t e Department of Justice

D J) collects t e information re uested on t is form as aut ori ed en Code,

and

e CJ Division

uses t is information to re ister a se offender as mandated la n addition, an personal information collected state a encies is

su ect to t e limitations in t e nformation ractices ct and state polic e D J s eneral privac polic is availa le at

https://oag.ca.gov/privacy-policy

Providing Personal Information. ll t e personal information re uested in t e form must e provided ailure to provide t e mandator personal information ill result in our form not ein processed

Access to Your Information. ou ma revie t e records maintained t e CJ Division in t e D J t at contain our personal information, as permitted t e nformation ractices ct ee elo for contact information

Possible Disclosure of Personal Information. n order to re ister a se offender as mandated la , e ma need to s are t e information ou ive us it la enforcement a encies.

e information ou provide ma also e disclosed in t e follo in circumstances:

it ot er persons or a encies ere necessar to perform t eir le al duties, and t eir use of our information is compati le and complies it state la , suc as for investi ations or for licensin , certification, or re ulator purposes and

o anot er overnment a enc as re uired state or federal la

Contact Information. or uestions a out t is notice or information on our re istrant records, ou ma contact t e California e

ffender Re istr mana er p one at )

, e mail at MegansLaw do .ca.gov, or via mail at:

e Department of Justice California e ffender Re istr
Bo acramento, C

I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 2 and 3 of this form.
I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate.
I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense. I have read and understand the Privacy Notice as required by Civil Code § 1798.17

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Return the original, completed, and signed form to:
The Department of Justice ATTN: California Sex Offender Registry
P.O. Box 903387 Sacramento, CA 94203-3870
(NOTE: This is not a registration form. Please use the CJIS 8102S form for registration purposes.)
DISTRIBUTION: ri inal to D J C R cop to la enforcement a enc avin urisdiction over address cop to otif in enc and cop to re istrant

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

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Case No.: 1:20-cv-00600-NONE-JDP

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RCevase 1) :20-cv-00600-NONE-JDP Document 10-2 Filed 05/20/20 Page 46 of 57 SEX OFFENDER REGISTRATION

CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

PLEASE FOLLOW THESE IMPORTANT PROCESSING INSTRUCTIONS:
rint or t pe t e re uired information and enter into t e California e and rson Re istr C R) application u mit a current p oto rap of t e re istrant to t e D J ma e stem: ttps: calp oto e t do ca ov ave t e re istrant read and initial t e re istration re uirements on pa es , , and of t is form erif t e re istrant understands t e re uirements Retain t e ori inal of t is form rovide a p otocop to t e re istrant as a receipt

FACILITY TYPE (Enter alpha code in Facility Type field):

Da Care Center

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f t e re istrant is DECEASED, do not complete t is form o update a re istrant to DECEASED status, complete and su mit form CJIS 8086B

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Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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ADDRESS/RESIDENCE DEFINITIONS:
ADDRESS ddress at ic re ularl reside, re ardless of t e num er of da s or ni ts spent t ere ADDITIONAL ADDRESS dditional address at ic re ularl reside, re ardless of t e num er of da s or ni ts spent t ere RELATED ADDRESS ddress of a relative or ot er person o is li el to no o to contact me EMPLOYER'S NAME/ADDRESS e name and address of m emplo er e , compan , individual, entit ), and t e address of t at emplo er WORK ADDRESS e address at ic or RESIDENCE ne or more addresses at ic re ularl reside, re ardless of t e num er of da s or ni ts spent t ere, suc as a s elter or structure t at can e located
a street address, includin , ut not limited to, ouses, apartment uildin s, motels, otels, omeless s elters, and recreational and ot er ve icles

HAS YOUR VEHICLE INFORMATION CHANGED SINCE YOUR LAST REGISTRATION? IF SO, PLEASE PROVIDE THE UPDATED VEHICLE INFORMATION BELOW.

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CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

responsi ilit to re ister as a se offender in California is a lifetime re uirement, e cept as provided in en Code,

,

en Code,

, or court order

must re ister in person, if ave never re istered, it in five ) or in da s of: ) comin into California, or ) release from

incarceration, placement, commitment, or release on pro ation, it t e la enforcement a enc avin urisdiction over m place s)

of residence or ere am p sicall present as a transient en Code,

)

must re re ister in person, if ave previousl re istered, it in five ) or in da s, after release from incarceration, placement,

or commitment t at lasted or more da s, or it in five ) or in da s after release on pro ation do not ave to re re ister

after release if as incarcerated for less t an da s, and return to t e last re istered address, and t e update of re istration t at

is re uired to occur it in five ) or in da s efore or after m irt da did not fall it in t at incarceration period

en Code,

)

must annuall update m re istration information in person, it in five ) or in da s efore or after m irt da , at t e la

enforcement a enc avin urisdiction over m residence address or ere am currentl present as a transient nnual updates

e in it m first irt da follo in re istration or c an e of address en Code,

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pon comin into, or en c an in m residence address it in a cit and or count in ic am residin , must re ister or re

re ister in person, it in five ) or in da s, it t e la enforcement a enc avin urisdiction over m residence

en Code,

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f c an e m re istered address to a ne address, eit er it in t e same urisdiction or an ere inside or outside of t e state,

must inform t e last re isterin a enc or a encies in person it in five ) or in da s efore or after leave f do not no m

ne residence address or transient location must later notif , re istered or certified mail, t e last re isterin a enc or a encies

of t e ne address or transient location it five ) or in da s of movin to t e ne address or location en Code,

)

f am re istered at a residence address and ecome transient, ave five ) or in da s it in ic to re ister in person it

t e la enforcement a enc avin urisdiction ere am p sicall present as a transient en Code,

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f am re istered as a transient and move to a residence, ave five ) or in da s it in ic to re ister in person it t e la

enforcement a enc avin urisdiction over t e ne address en Code,

)

f ave no residence address, must re ister in person in t e urisdiction ere am p sicall present as a transient it in five )

or in da s of ecomin transient ereafter, must update m re istration information in person no less t an once ever

da s it t e la enforcement a enc avin urisdiction over t e place ere am p sicall present as a transient on t e da re

re ister do not need to report c an es of transient location it in t e da period unless move out of state must also compl

it t e annual re uirement to update m re istration en Code,

)

f am re istered as a transient and am movin out of state, must inform t e la enforcement a enc avin urisdiction over t e

place ere as p sicall present as a transient, in person, it in five ) or in da s efore or after leave must also inform

t e la enforcement a enc of m planned destination, residence, or transient location out of state, if no n, and an plans to return

to California en Code,

)

f move outside of California, am re uired federal la to re ister in t e ne state it in t ree ) or in da s ederal la re uires me to notif m re isterin a enc no less t an da s efore intend to travel internationall

REGISTRATION REQUIREMENTS CONTINUE ON PAGE 4

I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense.

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CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

f ave ever een committed as a se uall violent predator, must update m re istration information in person, no less t an once

ever da s it t e la enforcement a enc avin urisdiction over m residence or transient location must also compl it

t e annual re uirement to update m re istration in person en Code,

,

)

f ave more t an one residence address at ic re ularl reside re ardless of t e num er of da s or ni ts spend at eac

address), must re ister in person, it in five ) or in da s at eac address it t e la enforcement a enc avin urisdiction

over eac residence f no lon er reside at a re istered address, must inform in person, t e re isterin a enc avin urisdiction

over t at address it in five ) or in da s efore or after leave en Code,

)

f reside or am a transient on a niversit of California, California tate niversit , or communit colle e campus, must re ister in

person, it in five ) or in da s it t e local la enforcement a enc avin urisdiction over t e campus and additionall it

t e campus police en Code,

,

)

f am enrolled or emplo ed it or it out compensation) at an institution of i er learnin , must re ister it in five ) or in

da s of commencement of t e term of enrollment or emplo ment, it t e campus police department or if no campus police

department e ists, it t e la enforcement a enc avin urisdiction over t at campus must also re ister in person it t e la

enforcement a enc avin urisdiction over m place of residence or transient location en cease ein enrolled or emplo ed at

t at institution, must notif t e re isterin a enc for t e campus it in five ) or in da s en Code,

,

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Campus re istration must e in person unless am enrolled in an online course ic does not re uire m presence at an institution

of i er learnin in California must re ister for online courses mailin t e Department of Justice nline Course Re istration

orm to t e campus police department, or if no campus police department e ists, to t e la enforcement a enc avin urisdiction

over t at campus, it in five ) or in da s of commencement of m term of enrollment en cease ein enrolled at t at

institution, must notif t e re isterin a enc for t e campus it in five ) or in da s en Code,

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D J nline Course Re istration orm is availa le at: www.oag.ca.gov

understand t at if is to come into an sc ool uildin or upon an sc ool round rades ), must ave a la ful purpose

and ritten permission from t e sc ool s c ief administrative officer indicatin t e date s) and time s) for ic permission as een

ranted en Code,

)

f live outside of California and am re uired to re ister in t at state and attend sc ool or am emplo ed in California, must re ister

in person it t e la enforcement a enc avin urisdiction over m sc ool or emplo ment location it in five ) or in da s of

e innin attendance or ecomin emplo ed, in addition to re isterin in m state of residence en Code,

)

must provide proof of residence to t e re isterin a enc it in da s of re istration or re re istration at a ne residence

address en Code,

)

f am on parole or pro ation, must provide proof of re istration to m parole a ent or pro ation officer it in si ) or in da s of release on parole or pro ation and proof of an c an e or update to m re istration it in five ) or in da s en Code,
)

REGISTRATION REQUIREMENTS CONTINUE ON PAGE 5

I have been notified of my duty to register as a sex offender pursuant to Pen. Code §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense.

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CHANGE OF ADDRESS / ANNUAL OR OTHER UPDATE

Sex Offender Registration Act – Penal Code (Pen. Code) Sections §§) 290–290.024 and 290.01

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REGISTRATION REQUIREMENTS - REGISTRANT IS REQUIRED TO READ AND INITIAL ALL REQUIREMENTS

f c an e m name must notif in person, it in five ) or in da s, t e la enforcement a enc or a encies avin urisdiction

over m place of residence or place ere am re uired to re ister as a transient en Code,

)

understand am re uired to su mit D samples, as ell as fin erprints and full palm prints en Code,

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)

f accept a position as an emplo ee or volunteer it an person, roup, or or ani ation ere ould e or in directl and in an

unaccompanied settin it minor c ildren on more t an an incidental and occasional asis or ave supervision or disciplinar po er

over minor c ildren, s all disclose m status as a re istrant, upon application or acceptance of a position, to t at person, roup, or

or ani ation f ave een convicted of a crime ere t e victim as a minor under ears of a e, s all not e an emplo er,

emplo ee, independent contractor, or act as a volunteer it an person, roup, or or ani ation in a capacit in ic t e re istrant

ould e or in directl and in an unaccompanied settin it minor c ildren on more t an an incidental and occasional asis or

ave supervision or disciplinar po er over minor c ildren f or in an accompanied settin it minor c ildren, and m or ould

re uire me to touc t e minor c ildren on more t an an incidental asis, s all disclose m status as a re istrant, upon application or

acceptance of t e position, to t at person, roup, or or ani ation en Code,

)

Privacy Notice s Re uired Civil Code

Collection and Use of Personal Information. e California Justice nformation ervices CJ ) Division in t e Department

of Justice D J) collects t e information re uested on t is form as aut ori ed en Code,

and

n addition, an

personal information collected state a encies is su ect to t e limitations in t e nformation ractices ct and state polic e D J s

eneral privac polic is availa le at ttps: oa ca ov privac polic

Providing Personal Information. ll t e personal information re uested in t e form must e provided ailure to provide re uested information ma result in our address c an e not ein processed

Access to Your Information. lease contact t e local la enforcement a enc information collected on t is form, as permitted t e nformation ractices ct

ere ou re istered if ou is to revie t e personal

Possible Disclosure of Personal Information. e local la enforcement a enc ere ou re istered is re uired la to enter t is information into t e California e and rson Re istr C R) dditionall , t e California e ffender Re istr is re uired la to provide t e information in C R to ot er la enforcement a encies

e information ou provide ma also e disclosed in t e follo in circumstances:

it ot er persons or a encies ere necessar to perform t eir le al duties, and t eir use of our information is compati le and complies it state la , suc as for investi ations or for licensin , certification, or re ulator purposes

o anot er overnment a enc as re uired state or federal la

I have been notified of my duty to register as a sex offender pursuant to Pen. Code, §§ 290–290.024 and 290.01. I have read or had read to me, and initialed each registration requirement specified on pages 3, 4, and 5 of this form. I understand it is my duty to know the registration requirements, including changes to the law that may be made after I sign this form. I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense. I understand refusing to sign this form is also punishable as a criminal offense. I have read and understand the Privacy Notice as required by Civil Code § 1798.17.

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California Department of Justice California Sex Offender Registry (CSOR)
P.O. Box 903387 Sacramento, CA 94203-3870
DISTRIBUTION: ri inal to Re isterin enc Cop to u ect Re isterin

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Request For Judicial Notice In Support Opposition to Plaintiffs’ Motion For Temporary Restraining Order And Order To Show Cause Re:Preliminary Injunction

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 Case 1:20-cv-00600-NONE-JDP Document 11 Filed 05/27/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JOHN DOE #1, an individual; JOHN DOE #2, an individual;
12 JOHN DOE #3, an individual; and JOHN DOE #4, an individual,
13
Plaintiffs, 14
v. 15
ANDREW HALL, in his official capacity 16 as Chief of the Fresno Police Department;
and MARGARET MIMS, in her official 17 capacity as Fresno County Sheriff,

No. 1:20-cv-00600-NONE-JDP
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. No. 8)

18

Defendants.

19

20

Before the Court is a motion for a temporary restraining order (“TRO”) brought by

21 plaintiffs, John Does 1 and 4, who are sex offenders registered with the state under California’s

22 Sex Offender Registration Act. (Doc. No. 8.) Plaintiffs seek an order prohibiting defendant

23 Margaret Mims, Fresno County Sheriff, in her official capacity, from requiring in-person

24 registration updates during the SARS-CoV-2 pandemic until plaintiffs’ request for preliminary

25 injunction can be heard. (Id. at 1–2.) Periodic registration updates are required under California

26 Penal Code § 290.012; however, plaintiffs contend that certain health conditions and age render

27 them particularly vulnerable to COVID-19, the illness caused by SARS-CoV-2, meaning it is

28 unsafe for them to present themselves to update their registrations. (Id. at 1-3.) 1

Case 1:20-cv-00600-NONE-JDP Document 11 Filed 05/27/20 Page 2 of 3

1

Plaintiffs’ request for a TRO is informed by their understanding of personal presentment

2 for registration as it occurred in previous years and months, prior to the COVID-19 outbreak and

3 before implementation of social distancing and other public health measures. (Doc. Nos. 8 at 4;

4 8-1 at 10, 11, 29.) For example, regarding the registration updating process, plaintiffs state: “…

5 Registrants are forced by Defendant to occupy crowded conditions in Sheriff’s stations where the

6 recommended social distancing and sanitation measures cannot be observed,” (Doc. No. 8 at 4);

7 “[d]uring past registration appointments with the [Fresno County Sheriff’s Office], Plaintiff John

8 Doe #4 has been required to stay in confined spaces for up to an hour with several other

9 Registrants” and “forced to touch many potentially contaminated surface and objects …,” (Doc.

10 No. 8-1 at 10); and “[d]uring the registration process, Registrants are exposed to premises that

11 are unsanitary, crowded, and do not allow for ‘social distancing’ or other preventive measures

12 …,” (Doc. No. 8-1 at 11). An affidavit from John Doe #4 details his experience registering in

13 2019 but contains no information about more recent or current conditions. (Doc. No. 8-1 at 29.)

14

In response, defendant has outlined the changes made to the personal presentment process,

15 which currently is “no contact,” socially-distanced, and takes place outdoors. (Doc. Nos. 10 at 8–

16 9; 10-1.) Specifically, a detective responsible for registration on behalf of defendant has stated as

17 follows in his affidavit:

18

We started [on March 18] by using tables outside, allowing ‘social

19

distancing,’ while still having registrants sign in, provide

thumbprint and signature on the forms, and we still collected forms

20

while wearing gloves and masks.

21

…

22

On 4/7/2020 – to the present, due to the extension of the ‘Shelter in

23

Place’ order, FCSO started ‘no contact’ registrations. The building

remains closed to registrants, we removed the tables, taped off both

24

entrances to the raised porch along the front of the building. We

accept no paperwork, Driver’s licenses, I.D.’s, etc. from registrants

25

and observe at least 6 feet of social distance. We have painted

26

‘X’s’ on the ground to indicate the proper positioning. We sign-in registrants and document any necessary changes. Upon

27

completing the Department of Justice’s (“DOJ’s”) 8102 forms, in

the comments section, we type or hand-write ‘Covid-19 – No

28

signature/fingerprints. Verbal confirmation of information/

2

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1

requirements.’ We sign & date the forms and provide the

registrant the opportunity to accept a copy. We take a photo of the

2

registrant from distance of at least 6 feet. All this is conducted

3

while wearing gloves and some wearing masks. We also maintain

accessible hand-sanitizers.

4

5 (Doc. No. 10-1 at ¶¶ 3, 5.)

6

A plaintiff must establish each of the following to secure an injunction: “that he is likely

7 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

8 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

9 Winter v. Natural Resources Defense Council, 555 U.S. 7, 20, 24 (2008) (“A preliminary

10 injunction is an extraordinary remedy never awarded as a right.”). The plaintiff bears the burden

11 to “make a showing on all four prongs.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

12 (9th Cir. 2011).

13

The facts presented by plaintiffs in support of their request for a TRO are stale. Plaintiffs

14 are silent regarding the significant changes that have been made to the personal presentment

15 process for updating sex offender registrations. Plaintiffs have not disputed the description of the

16 new process or contested the sufficiency or efficacy of the mitigation measures defendant has

17 enacted. Plaintiffs’ request instead hinges on a prior process, which is no longer in place. The

18 harm contemplated by plaintiffs relates to the old process, not the new, as demonstrated by

19 plaintiffs’ own words outlined above. Because there is no dispute of fact that a new process of

20 “no contact,” socially-distanced, outdoor registration updating exists, the Court finds plaintiffs

21 have not met their burden in demonstrating they are likely to suffer an irreparable harm unless

22 relief is granted.

23

For the foregoing reasons, plaintiffs’ request for a temporary restraining order, (Doc. No.

24 8), is DENIED WITHOUT PREJUDICE.

25 IT IS SO ORDERED.

26

Dated: May 27, 2020

27

UNITED STATES DISTRICT JUDGE

28 3