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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO David KOLKO, Luis Alberto ROJAS GOMEZ AMERICAN IMMIGRATION LAWYERS ASSOCIATION COLORADO CHAPTER Petitioner(s)

) ) ) ) ) V. ) PETITION FOR ISSUANCE ) OF EMERGENCY TEMPORARY Dennis Hale, Acting Regional Director of ) RESTRAINING ORDER Federal Protective Service, Region 8, Denver ) Denver District; L. Eric PATTERSON, Director) Federal Protective Services, Department of ) Homeland Security; Jeh JOHNSON, Secretary ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND ) SECURITY; ) Respondent(s). )

PETITION FOR ISSUANCE OF EMERGENCY TEMPORARY RESTRAINING ORDER Petitioners, David Kolko, Luis Alberto Rojas Gomez and American Immigration Lawyers Association, Colorado Chapter, by and through undersigned counsel, hereby respectfully moves this Honorable Court for an order: (1)

Temporarily enjoining Respondents from continuing to detain Mr. Kolko from entry into the federal building absent consent to a National Crime Information Center (NCIC) background check;

(2)

Temporarily ordering Federal Protective Services to cease and desist Cease from detaining individuals trying to enter the federal building while

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performing National Crime Information Center background checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado; (3)

Temporarily ordering Federal Protective Services to cease and desist from performing such checks;

(4)

Temporarily ordering Federal Protective Services to cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado;

(5)

Temporarily ordering Federal Protective Services to allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check.

This Motion is filed in conjunction with Petitioner’s pending habeas corpus petition, Civil Case No. ______________. In support of this Motion, Mr. Kolko and Mr. Rojas Gomez state as follows:

2

Mr. Kolko was illegally detained by Federal Protective Services of the Department of Homeland Security when attempting to enter the Federal Building at 1961 Stout Street to attend an immigration court hearing on behalf of his client, Luis Alberto Rojas Gomez.

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3

Federal Protective Services asked Mr. Kolko for a valid form of government issued identification to enter the building. He was unwilling to present a valid form of government identification.

4

Federal Protective Services instructed Mr. Kolko that he cannot enter the building without a government issued identification document or by undergoing a mandatory National Crime Information Center (“NCIC”) background check.

5

Mr. Kolko’s detention pending such a check was in violation of his rights against unreasonable search and seizure in violation of the 4th Amendment, and his rights under the 14th and 5th Amendment against unwarranted intrusion on his privacy. Such detention pending background checks was not narrowly tailored to achieve a reasonable government objective.

6

Mr. Luis Alberto Rojas Gomez is a non-citizen of the United States currently in removal proceedings. Mr. Rojas Gomez was scheduled for an immigration court proceeding at 1961 Stout Street in the Federal Building on April 16, 2014.

7

On entry to the building, the Federal Protective Service asked Mr. Rojas Gomez to present a valid government identification.

8

When Mr. Rojas Gomez was unable to do so, he was detained while Federal Protective Services conducted an NCIC background check on Mr. Rojas Gomez.

9

The Federal Protective Service is a branch of the Department of Homeland Security charged with keeping federal properties safe and secure for federal employees, officials and visitors. Federal Protective Services is in charge of security services for the Federal Building at 1961 Stout Street. Page3

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10

The American Immigration Lawyers Association Colorado Chapter is the local chapter of a national organization comprised of more than 13,000 lawyers and law school professors who practice and teach in the field of immigration and nationality law. AILA Colorado Chapter’s approximately 250 members regularly practice before the Department of Homeland Security and Executive Office for Immigration Review Immigration Court which is housed in the Federal Building at 1961 Stout Street, often on a pro bono basis. In this capacity, AILA Colorado represents many constituent members who will be significantly impacted by Operation Shield and the background checks at issue in this case. AILA Colorado has consented to serving as an organizational plaintiff in this case

JURISDICTION AND VENUE 11

This action arises under the Constitution of the United States, and the Administrative Procedures Act (“APA”), 5 U.S.C. section 701 et. seq. This Court has jurisdiction under 28 U.S.C. section 2241 (c)(1) and (3), Article 1, Section 9, Clause 2 of the United States Constitution, and 28 U.S.C. section 1331, as Mr. Kolko and Mr. Rojas Gomez were detained under the under color of the authority of the United States, and such custody is in violation of the Constitution, laws, or treaties of the United States. Article 1, Section 9, Clause 2 of the United States Constitution, 28 U.S.C. § 1331, § 1350 (relating to federal tort claims), § 1651 (relating to necessary Writs), The Declaratory Judgment Act, § 2201 (relating to Courts’ ability to fashion appropriate remedies), and § 2202 (relating to Courts’ Page4

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ability to fashion appropriate remedies).

Because Mr. Kolko and Mr. Rojas

Gomez also seek declaratory relief, Petitioners also rely on F.R. Civ. P. 57. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). 12

Venue lies in the United States District Court for the District of Colorado, the judicial district in which ICE Interim Field Director, Doug Maurer resides. 28 U.S.C. § 1391(e).

PARTIES 13

Mr. David Kolko is a licensed attorney practicing immigration law in the State of Colorado and has practiced immigration law since 1988. He currently serves as Chair Elect of the Colorado Chapter of AILA. He regularly represents clients before the Department of Homeland Security and Executive Office for Immigration Review which is housed in the Federal Building at 1961 Stout Street, Denver, Colorado.

14

On April 16th, Mr. Kolko was detained while attempting to enter the Federal Building to represent his client in immigration court. The purpose of his detention was so that Federal Protective Services could conduct an NCIC criminal background check. Mr. Kolko refused the check and was denied entry to the federal building to represent his client.

15

Mr. Rojas Gomez is a non-citizen of the United States currently in removal proceedings. He was scheduled for a hearing with the immigration court at 1961 Stout Street on April 16, 2014. Page5

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16

On April 16th, Mr. Rojas Gomez was detained while attempting to enter the Federal Building to appear for his immigration court proceeding. The purpose of his detention was so that Federal Protective Services could conduct an NCIC criminal background check.

17

Upon information and belief, other members of the public were similarly detained while attempting to enter the Federal Building while NCIC checks were conducted.

18

Upon information and belief, individuals, including immigration attorneys, who could not present government identification were similarly detained while such background checks were conducted and such attorneys are dues-paying members of the American Immigration Lawyers Association.

19

Upon information and belief, government employees were not subjected to the NCIC background checks.

20

According to the FPS website, these background checks are pursuant to an Operation known as Operation Shield officially sanctioned by the Department of Homeland Security. www.dhs.gov/operation-shield.

21

Defendant Dennis Hale resides in the District of Colorado and is sued in his official capacity as the Acting Regional Director of Federal Protective Services for Region 8 which encompasses the Denver District. In this capacity, he is the immediate legal custodian of Mr. Kolko and Mr. Rojas Gomez, and he has responsibility for the administration of the Federal Protective Service rules and

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regulations in the Federal Building at 1961 Stout Street and routinely does and transacts business in the District of Colorado. 22

Defendant L. Eric Patterson is sued in his official capacity as the Director of Federal Protective Services, Department of Homeland Security. In this capacity he has responsibility for the administration of the Federal Protective Service Rules and regulations in the Federal Building at 1961 Stout Street, and routinely does and transacts business in the District of Colorado. He is a legal custodian of Mr. Kolko and Mr. Rojas Gomez. Armentero v. INS, 340 F.3d 1058, 1071 (9th Cir. 2003).

23

Defendant Jeh Johnson is sued in his official capacity as the Secretary of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. In this capacity he has responsibility for the administration of the Federal Protective Service, and routinely does and transacts business in the District of Colorado. He is a legal custodian of Mr. Kolko and Mr. Rojas Gomez.

24

Defendant Department of Homeland Security (“DHS”) is made a party defendant for purposes of obtaining declaratory and injunctive relief pursuant to the APA and the Declaratory Judgment Act. DHS exercises power and authority over individuals entering federal buildings on a nationwide basis and is a custodian of Mr. Kolko and Mr. Rojas Gomez.

REQUIREMENTS FOR GRANTING A TEMPORARY RESTRAINING ORDER Page7

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25

The 10th Circuit requires that a party seeking a temporary restraining order (“TRO”) must demonstrate the following: (1) a substantial likelihood of success on the merits; (2) Irreparable injury unless the temporary restraining order issues; (3) the threatened injury outweighs whatever damage the proposed restraining order may cause to the respondents, and (4) the restraining order would not be adverse to the public interest. Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992).

25.

If the party seeking the temporary restraining order can establish the last three factors listed above, then the first factor becomes less strict -- i.e. instead of showing a substantial likelihood of success, the party need only prove that there are 'questions going to the merits ... so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).

SHOWING OF IRREPARABLE INJURY 26

Mr. Kolko and Mr. Rojas Gomez re-allege and incorporate by reference each and every allegation contained in the paragraphs 1 through 24 as if set forth fully herein.

27

As a prerequisite to the issuance of a temporary restraining order, the petitioner must show a real, immediate, and irreparable injury which will occur pending a

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final hearing, and that the order is necessary to prevent such injury or damage. American Investors Life Ins. Co. v. Green Shield Plan, Inc., 145 Colo. 188, 358 P.2d 473 (1960). 28

As a citizen, Mr. Kolko is protected by every clause of the United States Constitution. As a non-citizen, Mr. Rojas Gomez is protected by every clause that is not expressly reserved to its citizens. This protection includes the Due Process Clause of the Fifth Amendment, which provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law,” U.S. CONST. amend. V. e.g., Plyler v. Doe, 457 U.S. 202, 210 (1987); Mathews v. Diaz, 426 U.S. 67 (1976); Yamataya v. Fisher, 189 U.S. 86 (1903).

29

Mr. Kolko and Mr. Rojas Gomez were both detained when trying to enter the federal building on April 16, 2014.

30

Mr. Kolko was scheduled to appear on behalf of his clients at an immigration court proceeding at 1961 Stout Street on the afternoon of April 16, 2014.

31

On entry to the federal building at 1961 Stout Street, Mr. Kolko was requested by Agents of the Federal Protective Services to present government Identification for entry and to go through a metal detector for screening.

32

Mr. Kolko was told that he would be detained while the FPS conducted an NCIC criminal background check prior to his entry.

33

Mr. Kolko refused to undergo the background check and was denied entry into the Federal Building by Federal Protective Services. He is still unable to enter the building unless and until he consents to the check. Page9

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34

Mr. Rojas Gomez was detained while the FPS conducted an NCIC criminal background check prior to his entry. He was detained for the time necessary to conduct the check.

35

After the check was conducted, Mr. Rojas Gomez was allowed to enter the Federal Building.

36

Upon information and belief, other members of the public were similarly detained while attempting to enter the Federal Building while NCIC checks were conducted.

37

Upon information and belief, individuals, including immigration attorneys, who could not present government identification were similarly detained while such background checks were conducted and such attorneys are dues-paying members of the American Immigration Lawyers Association.

38

Upon information and belief, government employees were not subjected to the NCIC background checks.

39

Absent the grant of a Temporary Restraining Order, FPS will continue to deny access to individuals entering the federal building absent a government issued identification or by undergoing a required NCIC background check. Individuals will continue to be detained pending such checks and if they refuse will be denied entry. For individuals order to appear in immigration proceedings this will result in in absentia orders of removal. For attorneys representing these clients, it will mean their clients will go to court unrepresented. Such action violates the

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fundamental constitutional rights of individuals seeking to enter the federal building. 40

“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This vital liberty interest is at stake when an individual is subject to detention. St. John v. McElroy, 917 F.Supp. 243, 250 (S.D.N.Y. 1996) (“[T]he private interest affected is St. John’s liberty interest, which is of the highest constitutional import.”); Leader v. Blackman, 744 F.Supp. 500, 509 (S.D.N.Y. 1990).

41

Substantive Due Process requires that detention authorized for non-punitive purposes not be “excessive in relation to the regulatory goal Congress sought to achieve.” United States v. Salerno, 481 U.S. 739, 747 (1987).

THE BALANCE OF EQUITIES FAVORS THE GRANTING OF THE TEMPORARY RESTRAINING ORDER 42

Petitioners re-allege and incorporate by reference each and every allegation contained in the paragraphs 1 through 40 as if set forth fully herein.

43

The government’s principle justifications for the NCIC search are pursuant to Operation Shield. http://www.dhs.gov/operation-shield.

44

According to the FPS website, the purpose of Operation Shield is to protect federal buildings from acts of terrorism.

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45

While this is a worthy objective, conducting NCIC background checks of individuals entering the building is not going to achieve the result the government seeks.

46

Furthermore, subjecting some, but not all individuals to such check is arbitrary and contrary to the purpose of the operation.

47

In this case, FPS suffers little or no harm by a temporary injunction since they can continue to require ID or government escort to immigration court and can continue to conduct metal detector searches.

THE GRANTING OF THE TEMPORARY RESTRAINING ORDER WILL NOT DISSERVE THE PUBLIC INTEREST 48

Petitioners re-alleges and incorporates by reference each and every allegation contained in the paragraphs 1 through 46 as if set forth fully herein.

49

The public interest is served by continuing the searches that are already conducted in federal buildings through metal detection, Identification checks and government escort if necessary. Doing background checks is unlikely to result in information leading to terrorism or any other concern that would not otherwise be discovered through the procedures already in place.

REASONABLE PROBABILITY OF SUCCESS ON THE MERITS

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50

Petitioners re-allege and incorporates by reference each and every allegation contained in the paragraphs 1 through 48 as if set forth fully herein.

51

Mr. Kolko and Mr. Rojas Gomez allege numerous violations of the United States Constitution in the Habeas Petition and Motion for Declaratory and Injunctive Relief. Each of these violations will be addressed in turn.

I.

THE PETITIONERS HAVE A FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE

52

Fourth Amendment claims are cognizable in federal habeas corpus. Stone v. Powell, 428 U.S. 465, 495-95 (1976).

53

The FPS seeks to use criminal background checks to gather personal information concerning Mr. Kolko, Mr. Rojas Gomez and other individuals entering the federal building. Access to the NCIC background checks is not necessary nor narrowly tailored to achieve any reasonable government objective and Mr. Kolko and Mr. Rojas Gomez have a privacy right under the United States Constitution that will be violated by their detention while such background checks are being conducted.

54

While the Constitution does not explicitly establish a right of privacy, the Supreme Court has recognized for nearly 100 years that a right of personal privacy does exist. E.g., Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); Union Pacific R.R. Co. v. Botsford, 141 U.S. 250, 35 L. Ed. 734, 11 S. Ct. 1000 Page13

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(1891). In a series of cases, the Court established a zone of privacy protected by the penumbra of a variety of provisions in the Bill of Rights including: the First Amendment, Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); in the general penumbra of the Bill of Rights, Griswold v. Connecticut, 381 U.S. 617 (1965); and in the Fourteenth Amendment's concept of personal liberty and restriction upon state action, Roe v. Wade, 410 U.S. at 153. See also, Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986) (The Due Process Clause directly protects fundamental aspects of personal privacy against intrusion by the State). 55

This penumbra protects two kinds of privacy interests: the individual's interest in avoiding disclosure of personal matters and the interest in being independent when making certain kinds of personal decisions. Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). The first interest protects the individual from governmental inquiry into matters in which it does not have a legitimate and proper interest. Id. "The right to be left alone," the Supreme Court has said, is "the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. 944, 48 S. Ct. 564 (Brandeis, J., dissenting).

56

This aspect of the right to privacy protects "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73 (1977). See also Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867, 900 (1977); Page14

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Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979). 57

The Tenth Circuit has repeatedly interpreted the Supreme Court's decision in Whalen v. Roe, 429 U.S. 589 (1977), as creating a right to privacy in the nondisclosure of personal information held by the government. Herring v. Keenan, 218 F.3d 1171 (10th Cir. 2000) Citing, Slayton v. Willingham, 726 F.2d 631, 635 (10th Cir. 1984) (holding that the Supreme Court explicitly recognized the constitutional right to privacy in Whalen v. Roe); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986) ("Due process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state."); Eastwood v. Department of Corrections of the State of Okla., 846 F.2d 627, 63031 (10th Cir. 1988), ("This penumbra [of a variety of provisions in the Bill of Rights] protects two kinds of privacy interests: the individual's interest in avoiding disclosure of personal matters and the interest in being independent when making certain kinds of personal decisions."); Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989) ("The Supreme Court has recognized that the constitutional right to privacy protects an individual's interest in preventing disclosure by the government of personal matters.") See also, Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. 2001); Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, 516 U.S. 817 (1995); A.L.A. v. West Valley City, 26 F.3d 989, 990-91 (10th Cir. 1994) (recognizing a constitutional right to privacy regarding disclosure

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by a police officer of the results of an arrestee's HIV test.); Denver Policemen's Protective Association v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). 58

This "right to confidentiality." encompasses the "power to control what we shall reveal about our intimate selves, to whom, and for what purpose." Martinelli v. District Court, 612 P.2d 1083, 199 Colo. 163 (Colo. 1980) quoting, Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Schellenberg, 360 So.2d 83, 92 (Fla. App. 1978).

59

Due process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state. Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986).

60

When the right to confidentiality is invoked to prevent disclosure of personal materials or information, a tri-partite balancing inquiry must be undertaken by the court. Nixon v. Administrator, supra, at 2777-2778; Plante, supra, at 1134; Shuman v. City of Philadelphia, 470 F.Supp. 449, 457-459 (E.D.Pa. 1979). Cf. People v. Milnes, 186 Colo. 409, 413-414, 527 P.2d 1163, 1165 (1974); MangelsDavidson v. Pena, 789 F.2d 836, 839 (10th Cir. 1986); Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. 2001).Dill, 180 Colo. 123, 130-131, 503 P.2d 157, 161 (1972); Berman v. People, 41 Colo. App. 488, 589 P.2d 508 (1978).

61

The Tenth Circuit has applied this test in a number of cases. Compare Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995) (no legitimate expectation of privacy in expunged criminal record)(emphasis added); Flanagan v. Munger, 890 F.2d 1557, 1570-1 (10th Cir. 1989) (no legitimate expectation of privacy in police Page16

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internal investigation files); Stidham v. Peace Officers Standards and Training, 265 F.3d 1144, 1155 (10th Cir. 2001) (no legitimate expectation of privacy in reasons for resignation or employee evaluations or allegations of rape and assault); with Herring v. Keenan, 218 F.3d 1171 (10th Cir. 2000) (legitimate expectation of privacy in nondisclosure of HIV status), cert. denied, 122 S. Ct. 96 (2001); Sheets v. Salt Lake County, 45 F.3d at 1387 (legitimate expectation of privacy in wife's diary as it pertained to intimate marital matters); Arguably, the information in an NCIC is not extremely sensitive in nature, in other words, the facts revealed in the NCIC report are not particularly controversial or embarrassing. However, information need not be embarrassing to be personal and whether it is sufficiently personal to be protected is a legitimate question for the jury. 62

First, The claimant must show that he or she has "an actual or subjective expectation that the information will. . . not be disclosed for a non law enforcement purpose or that the state would disclose the information for stated purposes only. Schellenberg, supra, at 94-95.

63

Information is constitutionally protected when a legitimate expectation exists that it will remain confidential while in the state's possession. See Nixon v. Administrator of General Services, 433 U.S. 425, 457-58, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977) (citing Katz v. United States, 389 U.S. 347, 351-53, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)); Lichtenstein, 660 F.2d at 435. The legitimacy of an individual's expectations depends, at least in part, upon the intimate or otherwise personal nature of the material which the state possesses. Id.; see also United Page17

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States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980) (medical records protected). Or, by showing that he or she divulged the information to the state pursuant to an understanding that it would be held in confidence or that the state would disclose the information for stated purposes only. Schellenberg, supra, at 94-95. Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995). 64

Mr. Kolko and Mr. Rojas Gomez have an actual and subjective expectation that the information contained in the NCIC report would not be disclosed and would remain confidential while in the state's possession and not be used for the purposes for which the government now seeks to use it.

65

The Second part of the test is whether the disclosure of this information will advance a compelling state interest. Plante, supra, at 1134; Shellenberg, supra, at 97; Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986). In this case, it will thwart several significant state and public interests.

66

Use of the information contained in the NCIC for purpose of entering the federal building is contrary to the public interest in that it may adversely chill individuals from seeking to enter the federal building for immigration proceedings and could result in in absentia orders of removal. It could also have a chilling effect on representation of individuals in immigration proceedings since attorneys will be less likely to represent individuals in removal proceedings if background checks are necessary in order to effectively do so.

66.

As such, detention while NCIC background checks are conducted will not advance a compelling state interest but will thwart several significant federal interests Page18

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including efficient administration of the immigration court system, encouragement for individuals to appear for removal proceedings and encouragement for attorneys to engage in representation of non-citizens in removal proceedings. 67.

The third part of the test is that disclosure must be accomplished in the least intrusive manner. Denver Policemen's Protective Assoc. v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981); Shellenberg, supra, at 96; See also Nixon v. Administrator, supra; Whalen v. Roe, supra. Here, the use of NCIC background checks does not narrowly achieve the objective of ensuring that those accessing the federal building are not doing so with unsafe objectives. The existence of lack thereof of a criminal record is in no way indicative that the individual seeks to enter the federal building on that particular occasion to commit a crime. The use of metal detectors is a less intrusive and more efficient and effective way of achieviving the same objective.

II.

THE USE OF INFORMATION IN AN NCIC TO DENY ENTRY AFTER AN ILLEGAL DETENTION AND SEARCH IS IN VIOLATION OF THE FOURTH AMENDMENT

68.

Detaining an individual seeking to enter the federal building and conducting an NCIC search without the benefit of a warrant and is unconstitutional.

69.

Any purported consent simply because the individual is entering a federal building is inherently coercive and not constitutionally valid, especially when such entry is required in order to represent an individual appearing in immigration court housed in the federal building.

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70.

The search was conducted without a warrant and is a per se a violation of Mr. Kolko and Mr. Rojas Gomez’s right to be free from unreasonable searches and seizures under either the Colorado and/or the United States Constitutions unless the government shows that the search falls within one of a carefully defined set of exceptions, such as a valid consent

71.

Mr. Rojas Gomez’s consent was not constitutionally valid and should not excuse the FPS from the constitutional requirement of obtaining a warrant based on probable cause since he was under a federal order to appear for immigration court proceedings.

72.

It is the government’s burden to prove by a preponderance of the evidence that Mr. Rojas Gomez’s consent was constitutionally valid.

73.

Mr. Rojas Gomez’s purported consent was not voluntary but was the product of duress or coercion both express and implied from the circumstances of the FPS interaction with him and by the fact that he was under a federal order to appear for court.

74.

The circumstances in which Mr. Rojas Gomez purportedly gave consent were inherently coercive. He was confronted by 7-8 fully uniformed FPS officers before he even entered the Federal building. The officers were carrying guns and wearing FPS uniforms.

75.

The officer’s actions, demeanor, appearance was impliedly and expressly coercive. He was not presented with a request for permission to search but, instead, the officers’ words and actions demanded the right to search the NCIC. As such, any purported consent is more accurately characterized as a submission to authority

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caused by the officer’s express and implied show of authority and not consent freely and voluntarily given. 76.

The FPS officers unconstitutionally detained Mr. Rojas Gomez and any purported consent is rendered invalid as tainted by the unconstitutional detention.

77.

The officer’s engaged in an investigatory stop of both Mr. Rojas Gomez and Mr. Kolko. The officers’ words and conduct if communicated to a reasonable person would lead the reasonable person to believe they were not free to decline the officers' requests or otherwise terminate the encounter. In fact, by terminating the encounter, Mr. Kolko was denied entry to the building.

78.

An investigatory stop implicates constitutional protections and requires the FPS to possess specific and articulable facts, which taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into Mr. Kolko and Mr. Rojas Gomez’s personal security.

79.

At the time the FPS detained Mr. Kolko and Mr. Rojas Gomez, the FPS did not possess a reasonable and articulable suspicion that they were engaged in criminal activity.

80.

Mrs. Rojas Gomez’s consent was not sufficiently independent from the illegal detention because the purported consent was obtained in order to gain access to a federal building in which he was under a federal order to appear.

81.

Mr. Rojas Gomez’s “consent” was obtained in violation of his constitutional rights embodied within the Fifth and Sixth Amendments to the United States

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Constitution. His detention and the search of the NCIC are presumed involuntary and the product of the government’s unconstitutional activity.

III.

PETITIONER KOLKO’S CONTINUED DETENTION IS UNCONSTITUTIONAL

83.

As a citizen, Mr. Kolko is protected by every clause of the United States Constitution. This protection includes the Due Process Clause of the Fifth Amendment, which provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law,” U.S. CONST. amend. V. e.g., Plyler v. Doe, 457 U.S. 202, 210 (1987); Mathews v. Diaz, 426 U.S. 67 (1976); Yamataya v. Fisher, 189 U.S. 86 (1903).

84.

“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This vital liberty interest is at stake when an individual is subject to detention by the FPS. St. John v. McElroy, 917 F.Supp. 243, 250 (S.D.N.Y. 1996) (“[T]he private interest affected is St. John’s liberty interest, which is of the highest constitutional import.”); Leader v. Blackman, 744 F.Supp. 500, 509 (S.D.N.Y. 1990); see also Doherty v. Thornburgh, 943 F.2d 204, 208 (2d Cir. 1991) (finding that even aliens unlawfully present in the U.S. have a “substantive Due Process right to liberty during deportation proceedings”), cert. dismissed, Doherty v. Barr, 503 U.S. 901 (1992).

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85.

Substantive Due Process requires that detention authorized for non-punitive purposes not be “excessive in relation to the regulatory goal Congress sought to achieve.” United States v. Salerno, 481 U.S. 739, 747 (1987).

NO PLAIN SPEEDY AND ADEQUATE REMEDY AT LAW 86. Petitioners re-allege and incorporate by reference each and every allegation contained in the paragraphs 1 through 85 as if set forth fully herein. 87. There is no requirement for exhaustion of remedies in this case. There is no explicit statutory exhaustion requirement for habeas challenges to immigration related claims.

Tam v. INS, 14 F. Supp. 2d 1184, 1189 (E.D. Cal. 1998)

(“Congress has not specifically mandated exhaustion before judicial review of [INS] custody determination”); Jankowski v. INS, 138 F.Supp. 269, 274-75 & n. 6 (D. Conn 2001)(joining [s]everal courts [which] have held that under section 1252(d)(1), exhaustion is statutorily required only for appeals to Courts of Appeals of final orders of removal.”)(citations omitted). 88. McCarthy v. Madigan specifically provides that where Congress has not clearly required exhaustion, “sound judicial discretion governs.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992). 89. Exhaustion is not required where (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question,” Page23

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Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995). All four circumstances are present in this case. 90. Exhaustion may be excused if “the interest of the individual in retaining prompt access to a federal judicial forum [outweighs] countervailing institutional interests favoring exhaustion.” McCarthy, 503 U.S. at 146. 91. There are no available remedies which provide adequate relief. 92. The Petitioners do not have alternative or fully adequate remedies, judicial or administrative, available to them. He is not entitled to maintain a suit or appeal on these issues in any other forum.

PRAYER FOR RELIEF WHEREFORE, Petitioner prays that this Honorable Court grant the following relief: (1) PRAYER FOR RELIEF WHEREFORE, Petitioner prays that this Honorable Court grant the following relief: a. Temporarily order FPS to Cease and desist from detaining individuals trying to enter the federal building while performing National Crime Information Center background checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado; b. Temporarily order FPS to cease and desist from performing such checks; c. Temporarily order FPS to cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado; Page24

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d. Temporarily order FPS to allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check e. Award the Plaintiffs attorney’s fees and costs and EAJA fees as the position of the United States in this litigation is not substantially justified; f. Any other relief that the Court deems necessary, proper and appropriate.

Respectfully Submitted,

_/s Jeff Joseph________________________ Jeff Joseph (Colo. Reg. No. 28695) Joseph Law Firm, PC 12203 East Second Ave. Aurora, CO 80011 (303) 297-9171 (303) 733-4188 FAX [email protected] _/s Bryon Large_________________________ Bryon M. Large, Esq. Kolko and Associates 303 East 17th Avenue, Suite 585 Denver, Colorado 80203 Telephone: (303) 371-1822 Facsimile: (303) 373-1822 E-mail: [email protected]

Dated this 16th day of April 2014.

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CERTIFICATE OF SERVICE

I, Jeff Joseph, hereby certify that I served a true and correct copy of the Petition for Temporary Restraining Order upon the U.S. Attorney via ECF on April 16, 2014 at the following address: 1225 17th Street, Suite 700 Denver, CO 80202 Dennis Hale Acting Regional Director Federal Protective Services Denver Federal Center, Building 44, Room 258 West 6th Avenue & Kipling Street, Box 25266 Denver, CO 80225-0266 Jeh Johnson and L Eric Patterson c/o Chief of Commercial and Administrative Law Division Office of the Principal Legal Advisor Department of Homeland Security United States Department of Homeland Security 425 I St. NW, Room 6100 Washington, DC 20536 Eric Holder U.S. Attorney General Department of Justice

Respectfully submitted,

___/s Jeff Joseph_______ Jeff D. Joseph #28695 Joseph Law Firm, PC 12203 East Second Ave. Aurora, CO 80011 Page26

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(303) 297-9171 [email protected]

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CERTIFICATE OF SERVICE

I, Jeff Joseph, hereby certify that I served a true and correct copy of the Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief upon the U.S. Attorney via ECF on April 16, 2014 at the following address: 1225 17th Street, Suite 700 Denver, CO 80202 And to the following individuals via regular mail: Dennis Hale Acting Regional Director Federal Protective Services Denver Federal Center, Building 44, Room 258 West 6th Avenue & Kipling Street, Box 25266 Denver, CO 80225-0266 Jeh Johnson and L Eric Patterson c/o Chief of Commercial and Administrative Law Division Office of the Principal Legal Advisor Department of Homeland Security United States Department of Homeland Security 425 I St. NW, Room 6100 Washington, DC 20536 Eric Holder U.S. Attorney General Department of Justice

Respectfully submitted,

___________________________ Jeff D. Joseph #28695 Joseph Law Firm, PC 12203 East Second Ave. Page28

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Aurora, CO 80011 (303) 297-9171 [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO David KOLKO, Luis Alberto ROJAS GOMEZ AMERICAN IMMIGRATION LAWYERS ASSOCIATION COLORADO CHAPTER Petitioner(s)

) ) ) ) ) V. ) ) Dennis Hale, Acting Regional Director of ) ORDER Federal Protective Service, Region 8, Denver ) Denver District; L. Eric PATTERSON, Director) Federal Protective Services, Department of ) Homeland Security; Jeh JOHNSON, Secretary ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND ) SECURITY; ) Respondent(s). )

PETITION FOR ISSUANCE OF EMERGENCY TEMPORARY RESTRAINING ORDER ORDER Respondents are hereby ordered to: 2.

Immediately cease and desist from detaining individuals trying to enter the federal building while performing National Crime Information Center background checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado;

3.

Immediately cease and desist from performing such checks;

4.

Immediately to cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado;

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5.

Immediately allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check ________________________ ________________________

________________________

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

David KOLKO, Luis Alberto ROJAS GOMEZ AMERICAN IMMIGRATION LAWYERS ASSOCIATION COLORADO CHAPTER Petitioner(s)

) ) ) ) ) V. ) ) Dennis Hale, Acting Regional Director of ) Federal Protective Service, Region 8, Denver ) Denver District; L. Eric PATTERSON, Director) Federal Protective Services, Department of ) Homeland Security; Jeh JOHNSON, Secretary ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND ) SECURITY; ) Respondent(s). )

PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF

PETITION FOR WRIT OF HABEAS CORPUS RELIEF AND MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF

Petitioners David Kolko, Luis Alberto Rojas Gomez, and the American Immigration Lawyers Association Colorado Chapter, (hereinafter, “Petitioners” or “Mr. Kolko” or “Mr Gomez”), by and through undersigned counsel, hereby respectfully move this Honorable Court for a writ of habeas corpus ordering the Federal Protective Service of the Department of Homeland Security (hereainafter, “FPS”) to: (1) Cease and desist from detaining individuals trying to enter the federal building while performing National Crime Information Center background

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checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado; (2) Cease and desist from performing such checks; (3) Cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado; (4) Allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check. This Motion for Declaratory and Injunctive Relief seeks an Injunction ordering FPS to: (1) Cease and desist from detaining individuals trying to enter the federal building while performing National Crime Information Center background checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado; (2) Cease and desist from performing such checks; (3) Cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado; (4) Allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check CUSTODY 1.

Mr. Kolko was illegally detained by Federal Protective Services of the Department of Homeland Security when attempting to enter the Federal Building at 1961 Stout Street to attend an immigration court hearing on behalf of his client, Luis Alberto Rojas Gomez.

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2.

Federal Protective Services asked Mr. Kolko for a valid form of government issued identification to enter the building. He was unwilling to present a valid form of government identification.

3.

Federal Protective Services instructed Mr. Kolko that he cannot enter the building without a government issued identification document or by undergoing a mandatory National Crime Information Center (“NCIC”) background check.

4.

Mr. Kolko’s detention pending such a check was in violation of his rights against unreasonable search and seizure in violation of the 4th Amendment, and his rights under the 14th and 5th Amendment against unwarranted intrusion on his privacy. Such detention pending background checks was not narrowly tailored to achieve a reasonable government objective.

5.

Mr. Luis Alberto Rojas Gomez is a non-citizen of the United States currently in removal proceedings. Mr. Rojas Gomez was scheduled for an immigration court proceeding at 1961 Stout Street in the Federal Building on April 16, 2014.

6.

On entry to the building, the Federal Protective Service asked Mr. Rojas Gomez to present a valid government identification.

7.

When Mr. Rojas Gomez was unable to do so, he was detained while Federal Protective Services conducted an NCIC background check on Mr. Rojas Gomez.

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8.

The Federal Protective Service is a branch of the Department of Homeland Security charged with keeping federal properties safe and secure for federal employees, officials and visitors. Federal Protective Services is in charge of security services for the Federal Building at 1961 Stout Street.

9.

The American Immigration Lawyers Association Colorado Chapter (“AILA”) is the local chapter of a national organization comprised of more than 13,000 lawyers and law school professors who practice and teach in the field of immigration and nationality law.

AILA’s Colorado’s

approximately 250 members regularly practice before the Department of Homeland Security and Executive Office for Immigration Review Immigration Court which is housed in the Federal Building at 1961 Stout Street, often on a pro bono basis.

In this capacity, AILA Colorado

represents many constituent members who will be significantly impacted by Operation Shield and the background checks at issue in this case. AILA Colorado has consented to serving as an organizational plaintiff in this case.

JURISDICTION AND VENUE 10.

This action arises under the Constitution of the United States, the Immigration and Nationality Act (“INA”), 8 U.S.C. section 1101 et seq., and the Administrative Procedures Act (“APA”), 5 U.S.C. section 701 et. seq. This Court has jurisdiction under 28 U.S.C. section 2241 (c)(1) and (3), Article 1, Section 9, Clause 2 of the United States Constitution, and 28 Page

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U.S.C. section 1331, as Mr. Kolko and Mr. Rojas Gomez were detained and denied entry to the federal building under color of the authority of the United States, and such custody is in violation of the Constitution, laws, or treaties of the United States. Article 1, Section 9, Clause 2 of the United States Constitution, 28 U.S.C. § 1331, § 1350 (relating to federal tort claims), § 1651 (relating to necessary Writs), The Declaratory Judgment Act, § 2201 (relating to Courts’ ability to fashion appropriate remedies), and § 2202 (relating to Courts’ ability to fashion appropriate remedies). Because Mr. Kolko, Mr. Rojas Gomez and AILA Colorado also seek declaratory relief, Petitioners also rely on F.R. Civ. P. 57. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). 11.

Venue lies in the United States District Court for the District of Colorado, the judicial district in which Federal Protective Services Acting Field Director, Dennis Hale resides. 28 U.S.C. § 1391(e).

PARTIES 12.

Mr. David Kolko is a licensed attorney practicing immigration law in the State of Colorado and has practiced immigration law since 1988.

He

currently serves as Chair Elect of the Colorado Chapter of AILA. He regularly represents clients before the Department of Homeland Security and Executive Office for Immigration Review which is housed in the Federal Building at 1961 Stout Street, Denver, Colorado. Page

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13.

On April 16th, Mr. Kolko was detained while attempting to enter the Federal Building to represent his client in immigration court. The purpose of his detention was so that Federal Protective Services could conduct an NCIC criminal background check. Mr. Kolko refused the check and was denied entry to the federal building to represent his client.

14.

Mr. Rojas Gomez is a non-citizen of the United States currently in removal proceedings. He was scheduled for a hearing with the immigration court at 1961 Stout Street on April 16, 2014.

15.

On April 16th, Mr. Rojas Gomez was detained while attempting to enter the Federal Building to appear for his immigration court proceeding. The purpose of his detention was so that Federal Protective Services could conduct an NCIC criminal background check.

16.

Upon information and belief, other members of the public were similarly detained while attempting to enter the Federal Building while NCIC checks were conducted.

17.

Upon information and belief, individuals, including immigration attorneys, who could not present government identification were similarly detained while such background checks were conducted and such attorneys are duespaying members of the American Immigration Lawyers Association.

18.

Upon information and belief, government employees were not subjected to the NCIC background checks.

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19.

According to the FPS website, these background checks are pursuant to an Operation known as Operation Shield officially sanctioned by the Department of Homeland Security. www.dhs.gov/operation-shield.

20.

Defendant Dennis Hale resides in the District of Colorado and is sued in his official capacity as the Acting Regional Director of Federal Protective Services for Region 8 which encompasses the Denver District. In this capacity, he is the immediate legal custodian of Mr. Kolko and Mr. Rojas Gomez, and he has responsibility for the administration of the Federal Protective Service rules and regulations in the Federal Building at 1961 Stout Street and routinely does and transacts business in the District of Colorado.

21.

Defendant L. Eric Patterson is sued in his official capacity as the Director of Federal Protective Services, Department of Homeland Security. In this capacity he has responsibility for the administration of the Federal Protective Service Rules and regulations in the Federal Building at 1961 Stout Street, and routinely does and transacts business in the District of Colorado. He is a legal custodian of Mr. Kolko and Ms. Rojas Gomez. Deleted: Ashcroft, ___________.

th

Armentero v. INS, 340 F.3d 1058, 1071 (9 Cir. 2003). 22.

Defendant Jeh Johnson is sued in his official capacity as the Secretary of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. In this capacity he has responsibility for the administration of the Federal Protective Service, and routinely does Page

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and transacts business in the District of Colorado. He is a legal custodian Deleted: Padilla v. Ridge, ______________.

of Mr. Kolko and Mr. Rojas Gomez.

Formatted: Bullets and Numbering

23.

Defendant Department of Homeland Security (“DHS”) is made a party defendant for purposes of obtaining declaratory and injunctive relief pursuant to the APA and the Declaratory Judgment Act. DHS exercises power and authority over individuals entering federal buildings on a nationwide basis and is a custodian of Mr. Kolko and Mr. Rojas Gomez.

STATEMENT OF FACTS Formatted: Bullets and Numbering

24.

Mr. Kolko was scheduled to appear on behalf of his clients at an immigration court proceeding at 1961 Stout Street on the afternoon of April 16, 2014.

25.

On entry to the federal building at 1961 Stout Street, Mr. Kolko was requested by Agents of the Federal Protective Services to present government Identification for entry and to go through a metal detector for screening.

26.

Mr. Kolko was told that he would be detained while the FPS conducted an NCIC criminal background check prior to his entry.

27.

Mr. Kolko refused to undergo the background check and was denied entry into the Federal Building by Federal Protective Services. He is still unable to enter the building unless and until he consents to the check. Page

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28.

Mr. Rojas Gomez was detained while the FPS conducted an NCIC criminal background check prior to his entry.

He was detained for the time

necessary to conduct the check. 29.

After the check was conducted, Mr. Rojas Gomez was allowed to enter the Federal Building. Deleted: ¶

LEGAL BACKGROUND Deleted: ¶

I.

THE PETITIONERS HAVE A FOURTH AMENDMENT RIGHT

AGAINST

UNREASONABLE

SEARCH

AND

SEIZURE Formatted: Bullets and Numbering

30.

Fourth Amendment claims are cognizable in federal habeas corpus. Stone v. Powell, 428 U.S. 465, 495-95 (1976). Deleted: ¶

31.

The FPS seeks to use criminal background checks to gather personal information concerning Mr. Kolko, Mr. Rojas Gomez and other individuals entering the federal building. Access to the NCIC background checks is not necessary nor narrowly tailored to achieve any reasonable government objective and Mr. Kolko and Mr. Rojas Gomez have a privacy right under the United States Constitution that will be violated by their detention while such background checks are being conducted. Formatted: Indent: Before: 0"

32.

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While the Constitution does not explicitly establish a right of privacy, the Supreme Court has recognized for nearly 100 years that a right of personal privacy does exist. E.g., Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Page

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Ct. 705 (1973); Union Pacific R.R. Co. v. Botsford, 141 U.S. 250, 35 L. Ed. 734, 11 S. Ct. 1000 (1891). In a series of cases, the Court established a zone of privacy protected by the penumbra of a variety of provisions in the Bill Formatted: Complex Script Font: 13 pt

of Rights including: the First Amendment, Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); in the general penumbra of the Bill of Rights, Griswold v. Connecticut, 381 U.S. 617 (1965); and in the Fourteenth Amendment's concept of personal liberty and restriction upon state action, Roe v. Wade, 410 U.S. at 153. See also, Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986) (The Due Process Clause directly protects fundamental aspects of personal privacy against intrusion by the State). 33.

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This penumbra protects two kinds of privacy interests: the individual's interest in avoiding disclosure of personal matters and the interest in being independent when making certain kinds of personal decisions. Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). The first interest protects the individual from governmental inquiry into matters in which it does not have a legitimate and proper interest. Id. "The right to be

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left alone," the Supreme Court has said, is "the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. Formatted: Complex Script Font: 13 pt

944, 48 S. Ct. 564 (Brandeis, J., dissenting).

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34.

This aspect of the right to privacy protects "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73 (1977). See also Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867, 900 (1977); Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979).

35.

The Tenth Circuit has repeatedly interpreted the Supreme Court's decision in Whalen v. Roe, 429 U.S. 589 (1977), as creating a right to privacy in the non-disclosure of personal information held by the government. Herring v. Keenan, 218 F.3d 1171 (10th Cir. 2000) Citing, Slayton v. Willingham, 726

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F.2d 631, 635 (10th Cir. 1984) (holding that the Supreme Court explicitly recognized the constitutional right to privacy in Whalen v. Roe); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986) ("Due process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state."); Eastwood v. Department of Corrections of the State of Okla., 846 F.2d 627, 630-31 (10th Cir. 1988), ("This penumbra [of a variety of provisions in the Bill of Rights] protects two kinds of privacy interests: the individual's interest in avoiding disclosure of personal matters and the interest in being independent when making certain kinds of personal decisions."); Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989) ("The Supreme Court has recognized that the constitutional right to privacy protects an individual's interest in Page

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Case 1:14-cv-01094 Document 1 Filed 04/16/14 USDC Colorado Page 12 of 35

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preventing disclosure by the government of personal matters.") See also, Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. 2001); Sheets v. Salt

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Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, 516 U.S. 817 (1995); A.L.A. v. West Valley City, 26 F.3d 989, 990-91 (10th Cir. 1994) (recognizing a constitutional right to privacy regarding disclosure by a police officer of the results of an arrestee's HIV test.); Denver Policemen's Protective Association v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). 36.

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This "right to confidentiality." encompasses the "power to control what we shall reveal about our intimate selves, to whom, and for what purpose." Martinelli v. District Court, 612 P.2d 1083, 199 Colo. 163 (Colo. 1980) quoting, Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel.

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Schellenberg, 360 So.2d 83, 92 (Fla. App. 1978). 37.

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Due process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state. Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986).

38.

When the right to confidentiality is invoked to prevent disclosure of personal materials or information, a tri-partite balancing inquiry must be Formatted: Font: Italic, Complex Script Font: 13 pt

undertaken by the court. Nixon v. Administrator, supra, at 2777-2778;

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Plante, supra, at 1134; Shuman v. City of Philadelphia, 470 F.Supp. 449, 457-459 (E.D.Pa. 1979). Cf. People v. Milnes, 186 Colo. 409, 413-414, 527 P.2d 1163, 1165 (1974); MangelsDavidson v. Pena, 789 F.2d 836, 839 (10th Cir. 1986); Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. Page

12

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2001).Dill, 180 Colo. 123, 130-131, 503 P.2d 157, 161 (1972); Berman v. People, 41 Colo. App. 488, 589 P.2d 508 (1978). 39.

The Tenth Circuit has applied this test in a number of cases. Compare Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995) (no legitimate expectation of privacy in expunged criminal record)(emphasis added); Flanagan v. Munger, 890 F.2d 1557, 1570-1 (10th Cir. 1989) (no legitimate expectation of privacy in police internal investigation files); Stidham v. Peace Officers Standards and Training, 265 F.3d 1144, 1155 (10th Cir. 2001) (no legitimate expectation of privacy in reasons for resignation or employee evaluations or allegations of rape and assault); with Herring v. Keenan, 218 F.3d 1171 (10th Cir. 2000) (legitimate expectation of privacy in nondisclosure of HIV status), cert. denied, 122 S. Ct. 96 (2001); Sheets v. Salt Lake County, 45 F.3d at 1387 (legitimate expectation of privacy in wife's diary as it pertained to intimate marital matters); Arguably, the information in an NCIC is not extremely sensitive in nature, in other words, the facts revealed in the NCIC report are not particularly controversial or embarrassing. However, information need not be embarrassing to be personal and whether it is sufficiently personal to be protected is a legitimate question for the jury. Formatted: Bullets and Numbering

40.

First, The claimant must show that he or she has "an actual or subjective expectation that the information will. . . not be disclosed for a non law

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enforcement purpose or that the state would disclose the information for stated purposes only. Schellenberg, supra, at 94-95. 41.

Information is constitutionally protected when a legitimate expectation

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exists that it will remain confidential while in the state's possession. See

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Nixon v. Administrator of General Services, 433 U.S. 425, 457-58, 53 L. Formatted: Font: Italic, Complex Script Font: 13 pt

Ed. 2d 867, 97 S. Ct. 2777 (1977) (citing Katz v. United States, 389 U.S. 347, 351-53, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)); Lichtenstein, 660 F.2d at 435. The legitimacy of an individual's expectations depends, at least in part, upon the intimate or otherwise personal nature of the material

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which the state possesses. Id.; see also United States v. Westinghouse

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Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980) (medical records

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protected). Or, by showing that he or she divulged the information to the state pursuant to an understanding that it would be held in confidence or that the state would disclose the information for stated purposes only. Schellenberg, supra, at 94-95. Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995). 42.

Mr. Kolko and Mr. Rojas Gomez have an actual and subjective expectation that the information contained in the NCIC report would not be disclosed and would remain confidential while in the state's possession and not be used for the purposes for which the government now seeks to use it.

43.

The Second part of the test is whether the disclosure of this information will advance a compelling state interest. Page

Plante, supra, at 1134; 14

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Shellenberg, supra, at 97; Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986). In this case, it will thwart several significant state and public interests. 44.

Use of the information contained in the NCIC for purpose of entering the federal building is contrary to the public interest in that it may adversely chill individuals from seeking to enter the federal building for immigration proceedings and could result in in absentia orders of removal. It could also have a chilling effect on representation of individuals in immigration proceedings since attorneys will be less likely to represent individuals in removal proceedings if background checks are necessary in order to effectively do so.

40.

As such, detention while NCIC background checks are conducted will not advance a compelling state interest but will thwart several significant federal interests including efficient administration of the immigration court system, encouragement for individuals to appear for removal proceedings and encouragement for attorneys to engage in representation of non-citizens in removal proceedings.

41.

The third part of the test is that disclosure must be accomplished in the least intrusive manner. Denver Policemen's Protective Assoc. v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981); Shellenberg, supra, at 96; See also Nixon v. Administrator, supra; Whalen v. Roe, supra. Here, the use of NCIC background checks does not narrowly achieve the objective of ensuring that those accessing the federal building are not doing so with unsafe objectives. The existence of lack

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thereof of a criminal record is in no way indicative that the individual seeks to enter the federal building on that particular occasion to commit a crime. The use of metal detectors is a less intrusive and more efficient and effective way of achieviving the same objective.

II.

THE USE OF INFORMATION IN AN NCIC TO DENY ENTRY AFTER AN ILLEGAL DETENTION AND SEARCH IS IN VIOLATION OF THE FOURTH AMENDMENT

42.

Detaining an individual seeking to enter the federal building and conducting an NCIC search without the benefit of a warrant and is unconstitutional.

43.

Any purported consent simply because the individual is entering a federal building is inherently coercive and not constitutionally valid, especially when such entry is required in order to represent an individual appearing in immigration court housed in the federal building.

44.

The search was conducted without a warrant and is a per se a violation of Mr. Kolko and Mr. Rojas Gomez’s right to be free from unreasonable searches and seizures under either the Colorado and/or the United States Constitutions unless the government shows that the search falls within one of a carefully defined set of exceptions, such as a valid consent.

Deleted: ¶ It is clear that presentence reports have traditionally been confidential -- indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a discretionary matter or as of right. See, Williams v. New York, 337 U.S. 241 (1949) (no denial of due process where sentencing judge considered presentence report which was not disclosed to defendant). See also history of amendments to Fed. Rules of Criminal Procedure 32 described below. ¶ As stated by the Supreme Court: “In both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. . . . One reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report.” U.S. Dep't of Justice v. Julian, 486 U.S. 1 (1988).¶ This court should be mindful of the fact that the use of the information contained in a PSIR whether disclosed through the report itself or the probation officer necessitates a public disclosure if it is a basis for removal since the basis for removal is public information.¶ The criminal defendant has a strong interest in maintaining the confidentiality of his or her presentence report. Sentencing proceedings, and particularly the presentence investigation, often involve a broad-ranging inquiry into a defendant's private life, not limited by traditional rules of evidence. See, e.g. 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").¶ The probation report may contain: a listing of juvenile adjudications involving the defendant (which are normally confidential under state law); allegations concerning the defendant's involvement in other, uncharged offenses; the defendant's physical and mental health (including the defendant's I.Q., results of psychiatric tests, history of substance abuse problems and unusual fears, hostilities, obsessions, compulsions, depressions, or sexual deviations); any ... [1]

Formatted: Bullets and Numbering Formatted: Bullets and Numbering

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45.

Mr. Rojas Gomez’s consent was not constitutionally valid and should not excuse the FPS from the constitutional requirement of obtaining a warrant based on probable cause since he was under a federal order to appear for immigration court proceedings.

46.

It is the government’s burden to prove by a preponderance of the evidence that Mr. Rojas Gomez’s consent was constitutionally valid.

47.

Mr. Rojas Gomez’s purported consent was not voluntary but was the product of duress or coercion both express and implied from the circumstances of the FPS interaction with him and by the fact that he was under a federal order to appear for court.

48.

The circumstances in which Mr. Rojas Gomez purportedly gave consent were inherently coercive. He was confronted by 7-8 fully uniformed FPS officers before he even entered the Federal building. The officers were carrying guns and wearing FPS uniforms.

49.

The officer’s actions, demeanor, appearance was impliedly and expressly coercive. He was not presented with a request for permission to search but, instead, the officers’ words and actions demanded the right to search the NCIC. As such, any purported consent is more accurately characterized as a submission to authority caused by the officer’s express and implied show of authority and not consent freely and voluntarily given.

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50.

The FPS officers unconstitutionally detained Mr. Rojas Gomez and any purported consent is rendered invalid as tainted by the unconstitutional detention.

51.

The officer’s engaged in an investigatory stop of both Mr. Rojas Gomez and Mr. Kolko. The officers’ words and conduct if communicated to a reasonable person would lead the reasonable person to believe they were not free to decline the officers' requests or otherwise terminate the encounter. In fact, by terminating the encounter, Mr. Kolko was denied entry to the building.

52.

An investigatory stop implicates constitutional protections and requires the FPS to possess specific and articulable facts, which taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into Mr. Kolko and Mr. Rojas Gomez’s personal security.

53.

At the time the FPS detained Mr. Kolko and Mr. Rojas Gomez, the FPS did not possess a reasonable and articulable suspicion that they were engaged in criminal activity.

54.

Mrs. Rojas Gomez’s consent was not sufficiently independent from the illegal detention because the purported consent was obtained in order to gain access to a federal building in which he was under a federal order to appear.

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55.

Mr. Rojas Gomez’s “consent” was obtained in violation of his constitutional rights embodied within the Fifth and Sixth Amendments to the United States Constitution. His detention and the search of the NCIC are presumed involuntary and the product of the government’s unconstitutional activity. Formatted: Font: 12 pt

III.

PETITIONER

KOLKO’S

CONTINUED

DETENTION IS UNCONSTITUTIONAL Formatted: Bullets and Numbering

56.

As a citizen, Mr. Kolko is protected by every clause of the United States Constitution. This protection includes the Due Process Clause of the Fifth Amendment, which provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law,” U.S. CONST. amend. V. e.g., Plyler v. Doe, 457 U.S. 202, 210 (1987); Mathews v. Diaz, 426 U.S. 67 (1976); Yamataya v. Fisher, 189 U.S. 86 (1903).

57.

“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This vital liberty interest is at stake when an individual is subject to detention by the FPS. St. John v. McElroy, 917 F.Supp. 243, 250 (S.D.N.Y. 1996) (“[T]he private interest affected is St. John’s liberty interest, which is of the highest constitutional import.”); Leader v. Blackman, 744 F.Supp. 500, 509 (S.D.N.Y. 1990); see also Doherty v. Thornburgh, 943 F.2d 204, 208 (2d Cir. 1991) (finding that

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even aliens unlawfully present in the U.S. have a “substantive Due Process right to liberty during deportation proceedings”), cert. dismissed, Doherty v. Barr, 503 U.S. 901 (1992). 58.

Substantive Due Process requires that detention authorized for non-punitive purposes not be “excessive in relation to the regulatory goal Congress sought to achieve.” United States v. Salerno, 481 U.S. 739, 747 (1987). FIRST CLAIM FOR RELIEF (Fourth Amendment Claim) Formatted: Bullets and Numbering

59.

Mr. Kolko, Mr. Rojas Gomez and AILA Colorado reallege and incorporates by reference each and every allegation alleged in paragraphs 1 through 58 as if set forth fully herein.

60.

The violations alleged above have been in violation of Mr. Kolko, Mr. Rojas Gomez and AILA Colorado’s rights to freedom from unwarranted invasion of privacy and unlawful government intrusion on person or property in violation of the Fourth Amendment of the United States Constitution.

SECOND CLAIM FOR RELIEF (Privacy Claim) Formatted: Bullets and Numbering

61.

Mr. Kolko, Mr. Rojas Gomez and AILA Colorado reallege and incorporates by reference each and every allegation alleged in paragraphs 1 through 60 as if set forth herein. Page

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62.

The violations alleged above have been in violation of Mr. Kolko, Mr. Rojas Gomez and AILA Colorado’s privacy rights inherent and implicit in the Fifth, Fourth and Fourteenth Amendments to the Constitution and the Bill of Rights. Formatted: Centered

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 Formatted: Bullets and Numbering

63.

Pursuant to Local Rule 7.1 of the United States District Court for the District of Colorado, counsel for Petitioner states that he attempted to make contact with the United States Attorney and has been unable to resolve this matter prior to filing this motion. Counsel will continue to attempt resolution pending a decision on this Motion.

PRAYER FOR RELIEF WHEREFORE, Petitioner prays that this Honorable Court grant the following relief: a. Afford Petitioner due process rights guaranteed by the federal Constitution b. Grant this motion for declaratory and injunctive relief; c. Grant this petition for writ of habeas corpus; d. Declare the detention by Respondents to be contrary to the Constitution; e. Order FPS to Cease and desist from detaining individuals trying to enter the federal building while performing National Crime Information Center background checks from individuals entering the Federal Building at 1961 Stout Street in Denver, Colorado; Page

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f. Order FPS to cease and desist from performing such checks; g. Order FPS to cease and desist from “Operation Shield” at the Federal Building at 1961 Stout Street in Denver, Colorado; h. Order FPS to allow attorneys and members of the public access to the federal building after presentation of a valid form of identification and security screening for weapons without the requirement of an NCIC background check i. Award the Plaintiffs attorney’s fees and costs and EAJA fees as the position of the United States in this litigation is not substantially justified; j. Any other relief that the Court deems necessary, proper and appropriate.

Respectfully Submitted,

_________________________ Jeff Joseph (Colo. Reg. No. 28695) Joseph Law Firm, PC 12203 East Second Ave. Aurora, CO 80011 (303) 297-9171 (303) 733-4188 FAX [email protected] Bryon M. Large, Esq. (Colo. Reg. No. 38524) Kolko and Associates 303 East 17th Avenue, Suite 585 Denver, Colorado 80203 Telephone: (303) 371-1822 Facsimile: (303) 373-1822

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E-mail:

[email protected]

Dated this 16th day of April 2014.

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CERTIFICATE OF SERVICE

I, Jeff Joseph, hereby certify that I served a true and correct copy of the Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief upon the U.S. Attorney via ECF on April 16, 2014 at the following address: 1225 17th Street, Suite 700 Denver, CO 80202 Dennis Hale Acting Regional Director Federal Protective Services Denver Federal Center, Building 44, Room 258 West 6th Avenue & Kipling Street, Box 25266 Denver, CO 80225-0266 Jeh Johnson and L Eric Patterson c/o Chief of Commercial and Administrative Law Division Office of the Principal Legal Advisor Department of Homeland Security United States Department of Homeland Security 425 I St. NW, Room 6100 Washington, DC 20536 Eric Holder U.S. Attorney General Department of Justice

Respectfully submitted,

___________________________ Jeff D. Joseph #28695 Joseph Law Firm, PC 12203 East Second Ave. Aurora, CO 80011 Page

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(303) 297-9171 [email protected]

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Page 16: [1] Deleted

Karen Rosen

10/5/2004 12:05:00 PM

It is clear that presentence reports have traditionally been confidential -- indeed, it is only in the past 25 years that the defendant has had access to the presentence report, either as a discretionary matter or as of right. See, Williams v. New York, 337 U.S. 241 (1949) (no denial of due process where sentencing judge considered presentence report which was not disclosed to defendant). See also history of amendments to Fed. Rules of Criminal Procedure 32 described below. As stated by the Supreme Court: “In both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. . . . One reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report.” U.S. Dep't of Justice v. Julian, 486 U.S. 1 (1988). This court should be mindful of the fact that the use of the information contained in a PSIR whether disclosed through the report itself or the probation officer necessitates a public disclosure if it is a basis for removal since the basis for removal is public information. The criminal defendant has a strong interest in maintaining the confidentiality of his or her presentence report. Sentencing proceedings, and particularly the presentence

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investigation, often involve a broad-ranging inquiry into a defendant's private life, not limited by traditional rules of evidence. See, e.g. 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."). The probation report may contain: a listing of juvenile adjudications involving the defendant (which are normally confidential under state law); allegations concerning the defendant's involvement in other, uncharged offenses; the defendant's physical and mental health (including the defendant's I.Q., results of psychiatric tests, history of substance abuse problems and unusual fears, hostilities, obsessions, compulsions, depressions, or sexual deviations); any history of child abuse or neglect; details of the defendant's relationship with his or her spouse or significant other; and details of the defendant's financial condition. See, Gregg v. United States, 394 U.S. 489 (1967) (there are no formal limitations on the contents of presentence reports, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged); Williams v. New York, 337 U.S. 241 (1949) (sentencing judge's consideration of presentence report containing wide range of information concerning defendant's personal life and past criminal behavior does not deny due process, even though defendant not allowed to examine report or challenge its contents); Model Penal Code § 7.07(3) (presentence report should contain, inter alia, "the defendant's history of delinquency or criminality, physical and mental

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condition, family situation and background, economic status, education, occupation and personal habits”). Frequently information disclosed to probation officers during the presentence investigation is given to the investigators in confidence. For example, a defendant may disclose his income but not wish to have those figures made public. A psychiatrist may provide an evaluation whose availability would best be restricted to the court and those involved in the defendant's rehabilitation. Law enforcement agencies frequently wish to protect the sources of information in their records and will sometimes exact a promise of confidentiality from the probation officer. In order to ensure the availability of as much information as possible to assist in sentencing, the courts have generally determined that presentencing reports should be held confidential. See, e.g., United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1977) (per curiam); United States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1973); United States v. Fischer, 381 F.2d 509, 511-13 (2d Cir. 1967), cert. denied, 390 U.S. 973 (1968). In affirming a refusal to disclose to a defendant the presentence report on a codefendant, the court in Martinello stated as follows: “Presentence reports are not public records but rather confidential reports to the trial judge for use in his effort to arrive at a fair sentence. United States v. Greathouse, 188 F. Supp. 765 (M.D. Ala. 1960). As other courts have held, requiring disclosure of a presentence report is contrary to the public interest as it may adversely affect the sentencing court's ability to obtain

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data on a confidential basis from the accused, and from sources independent of the accused, for use in the sentencing process.” Martinello, 556 F.2d at 1216. Maintaining the confidentiality of the probation report insures citizens will be more forthcoming with information concerning a defendant. There exists a legitimate fear that disclosure of probation reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. United States Department Justice Et Al. V. Julian Et Al., 486 U.S. 1 (1988). Persons with negative information about a defendant may feel threatened not just by a defendant learning of the contents but equally from the public at large. See United States v. Charmer Indus., Inc., 711 F.2d 1164, 1174-75 (2d Cir. 1983); Hancock Bros., Inc. v. Jones, 293 F. Supp. 1229, 1234 (N.D.Cal. 1968) ("Reprisal by the defendant is only one event to guard against in promoting free and untrammeled disclosures by persons who have information necessary for sentencing or grand jury purposes."). Moreover, the desire to avoid being publicly associated with a convicted criminal (by supplying information for the presentence report) applies equally to individuals who have favorable impressions of the defendant. It is in the best interests of the defendant, and society at large, that this information be disclosed to the court before sentence is imposed. Governmental use of information within a probation report will affect the information received by a sentencing court from the most important source of presentence information: the defendant. Defendants will be reluctant to disclose details of their private life due to the possibility that the contents of the presentence report

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might one day be used in a “quasi-criminal’ proceeding such as this or otherwise open for other public inspection. The sentencing court has a substantial interest in insuring that all information relevant to the sentencing decision is made available to the court. The Supreme Court has long recognized that "conscientious judges" seek "to sentence persons on the best available information rather than on guesswork and inadequate information." Williams v. New York, 337 U.S. 241, 249 (1949). Permitting administrative, civil use of the information contained in the PSIR will jeopardize the "free flow of information" and the quality and quantity of presentence information courts receive at sentencing. United States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1973) ("requiring disclosure of a presentence report is contrary to the public interest as it would adversely affect the sentencing court's ability to obtain data on a confidential basis from the accused and from sources independent of the accused for use in the sentencing process."); See also United States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984); United States v. Cyphers, 553 F.2d 1064, 1069 (7th Cir.), cert. denied, 434 U.S. 843 (1977); United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985), cert. denied. 475 U.S. 1014 (1986); United States v. Charmer Indus., Inc., 711 F.2d 1164, 1171 (2d Cir. 1983); United States v. Martinello, 556 F.2d 1215, 1216 (5th Cir. 1977) (per curiam); United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir. 1976); United States v. Boesky, 674 F. Supp. 1128, 1130 (S.D.N.Y. 1987); Hancock Bros., Inc. v. Jones, 293 F. Supp. 1229, 1232 (N.D.Cal. 1968).]

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Permitting prosecutorial use of the information contained in the PSIR also interferes with the presentence report as a correctional tool in the important rehabilitative process. The presentence investigation can be an important first step in the rehabilitation of the defendant. During the presentence investigation the defendant may be amenable to personal change. The investigation may have both a salutary and traumatic effect on the defendant. The crisis of the situation often brings about a reevaluation of the offender's personal situation. Thus, it is an excellent time to develop a positive atmosphere for the subsequent supervisory relationship. It is frequently through the presentence report that the court determines what type of rehabilitative services are appropriate for a defendant. Frequently drug addiction is an underlying cause in many different crimes. If a defendant is afraid to admit his drug dependency to a probation officer because his “admissions” can be used in a future removal proceeding, the court will not impose the correct rehabilitative programs, the defendant’s problem will not be fixed and future criminal activity becomes more likely. Prosecutorial use of a presentence report is incompatible with the purpose of the report as a sentencing and correctional tool. Candor and openness on the part of the report's primary source, the defendant, will be stifled if the report is available for prosecutorial or investigative use. Prosecutorial use of the contents of the presentence report will not promote the effective functioning of the probation office, or, by extension, the sentencing court; rather, prosecutorial use will be a positive hindrance to the probation office's performance of its obligation to

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provide the sentencing court with a comprehensive analysis of the defendant's character. The government also has an interest in preventing the disclosure of presentence reports. The presentence report will often contain information regarding the defendant's past or future cooperation with the government. The report may also include information conveyed by informants or cooperating codefendants regarding the defendant's relative culpability for the offense for which he has been convicted, and the defendant's involvement in other crimes which may be under investigation. Especially where the defendant was a member of an organized, ongoing criminal enterprise, disclosure may pose a substantial risk to the safety of government informants, even though the defendant is incarcerated. And disclosure of the defendant's cooperation with the government may increase the risk of retaliation against the defendant, both during his or her imprisonment, and upon release. Therefore widespread disclosure of the presentence report may obstruct the government's ability to investigate crimes. See United States v. Boesky, 674 F. Supp. 1128, 1129-30 (S.D.N.Y. 1987) (fact that presentence report would reveal defendant's involvement in ongoing criminal investigation justifies nondisclosure). Rule 32 of the Federal Rules of Criminal Procedure mandates the confidentiality of presentence reports. Admittedly, the probation report that is the subject of this motion was prepared in a state proceeding and is governed by the Colorado Rules of Criminal Procedure. However, the Federal Rules of Criminal Procedure, as pertaining to third party disclosure of information in a probation report, provide

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useful guidance and ample support for the position that this information should not be used in a prosecutorial manner. The circumstances under which presentence investigation reports are to be made, their content, and the circumstances under which they may be disclosed, are governed by Rule 32 of the Federal Rules of Criminal Procedure. Under Rule 32 of the Federal Rules of Criminal Procedure a presentence report was traditionally treated as such a highly confidential document that even the defendant who was the subject of the report could not get access to the information contained therein. Over time there has been a gradual relaxation of Rule 32's restraints on disclosure to allow access by the defendant but not third-parties. See generally, United States Dep't of Justice v. Julian, 486 U.S. 1 (1988) (outlining history of, and reasons for, successive amendments of Rule 32). However, while the bonds of secrecy surrounding the presentence report were loosened to permit defense access, the framers of the Federal Rules remained sensitive to the concerns of law enforcement officials that unlimited access to the report might discourage full disclosure of relevant information to the sentencing judge, and might jeopardize ongoing criminal investigations. Thus, unless the court directs otherwise, Rule 32(c)(3)(E) requires that "copies of the presentence investigation report made available to the defendant . . . shall be returned to the probation officer immediately following the imposition of sentence." The Advisory Committee Notes to the 1974 amendment of Rule 32 make clear that this return requirement is meant "to insure that [presentence reports] do not become available to unauthorized persons. 'Such reports shall be

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part of the record but shall be sealed and opened only on order of the court.'" 62 F.R.D. 271, 325 (citation omitted); see also United States Dep't of Justice v. Julian, 108 S. Ct. at 1615 (Scalia, J., dissenting) (quoting letter of Chief of Probation Division, indicating that main concern with defendant's retention of presentence report is that "there would be no way of effectively prohibiting further disclosure of the information to third parties"). The successive amendments of Rule 32, culminating in an extremely broad right of access for defendants, are based on compelling considerations of fairness to the person most directly affected by the contents of the presentence report -- the defendant. These considerations have no relevance to third-party requests for access. If this were a probation report prepared in a Federal Court, the ICE would have no legal right to access the information contained within the probation report without a court order. Federally prepared probation reports are strictly confidential and the information contained therein is jealously protected. The use of the probation report without regard to the protections and in violation of the Federal rules of Criminal Procedure renders the proceedings fundamentally unfair.