Judge Dumps Passport|’Scarlet Letter’ Fight

OAKLAND, Calif. (CN) - A federal judge rejected a group of registered sex offenders' constitutional challenge to a new law that will mark their passports and notify foreign governments of their travels, ruling for a second time that their claims are premature.

U.S. District Judge Phyllis Hamilton said the group hasn't shown a cognizable injury that can be addressed by the court, since the International Megan's Law to Prevent Demand for Child Sex Trafficking Through Advanced Notification of Traveling Sex Offenders hasn't fully taken effect.

The original Megan's Law was passed by the New Jersey Legislature in 1994 after 7-year-old Megan Kanka was assaulted and murdered by a sex offender living across the street. The legislation, which requires authorities to disclose where convicted child offenders live, has since been adopted by every other state in the nation.

The international version was passed by Congress in February and includes two provisions, one that notifies foreign countries in advance when registered sex offenders in the United States intend to travel internationally and encourages reciprocal notifications, and a conspicuously affixed passport identifier to mark a registered sex offender as such.

It is intended to strengthen a previously existing U.S. Marshals Service notification program and the Department of Homeland Security's "Operation Angel Watch," which targets sex tourists traveling from Los Angeles International Airport to Southeast Asian countries.

The passport identifier provision is not yet in effect, and the government not determined what the mark will look like and where it will be placed on a passport. For this reason, Hamilton dismissed the lawsuit with prejudice Friday.

"The court finds that plaintiffs have failed to establish standing, because they have not alleged a certainly impending injury fairly traceable to the International Megan's Law provisions that they challenge, or which is redressable by the relief sought in the first amended complaint," Hamilton wrote. "Because the passport provisions are not yet in effect (and the procedures have not been finalized), plaintiffs cannot show a certainly impending injury."

She added, "Plaintiffs speculate regarding the possible impact of a passport identifier, suggesting that individuals carrying such passports will be at risk of harm from unknown third parties. Such speculation cannot provide a basis for challenging the statute when the identifier provisions have not even been implemented. Because it is unknown what form the identifier will take, or any of the other details previously discussed, plaintiffs cannot show that they will suffer hardship if the court withholds review."

A group of seven registered sex offenders sued Secretary of State John Kerry, the Department of Homeland Security, Immigration and Customs Enforcement and the U.S. Marshals Service on Feb. 9, 2016, the day after President Barack Obama signed the bill.

The plaintiffs say the mark is akin to a "scarlet letter," which restricts their travel and in some cases, could result in serious bodily harm. One plaintiff was born in Iran and moved to California in 1979. He is an only child and stands to inherit his father's property when he dies, but must travel to Iran to receive his legacy. Because of a conviction for an offense involving a minor in 2010, the man is a registered sex offender and fears returning to Iran with a passport that bears the mark of a sex offender.

In an interview Monday, attorney Janice Bellucci with California Reform Sex Offender Laws said the group hasn't yet decided how to proceed.

"We certainly disagree with the decision," Bellucci said. "We don't think somebody needs to have their passport stamped before we challenge the law because it is a facial challenge."

At this point, the plaintiffs can appeal to the Ninth Circuit or scrap the lawsuit and start over with a fresh set of plaintiffs.

"We haven't made a final decision yet about what to do," she said.

Bellucci said she'd been fielding calls from people who have already been turned away from foreign nations because of the law's notification provision.

"When we filed the lawsuit, the International Megan's Law hadn't gone into effect. Now people have been affected," she said. "Notifications are being sent out about registered citizens. A man I just talked to this morning was denied entry into the Philippines this September."

The attorney said she worries about what the sort of harm required by the court will look like.

"You have to wait until somebody travels to Iran and they're murdered because their passport has been stamped," she said.

Referring to a hearing in Hamilton's Oakland courtroom last month, she added, "One of the points I was trying to make was just the law itself has a chilling effect on a lot of people who are quite frankly afraid to travel outside the country."

Hamilton also rejected the plaintiffs' First Amendment claims, ruling the passport mark is a statement of fact that doesn't fall under constitutional protections.

"A mark on a passport identifying the holder as a registered sex offender is neither an 'opinion' which is being attributed to the passport holder, nor a misleading statement. Registered sex offenders had a full and fair opportunity to challenge the criminal charges at the time they were brought. They cannot now argue that there is any dispute regarding their status as offenders," Hamilton wrote.

"It is not the speech of the passport holder that is at issue, any more than the speech of the holder of a government-issued identification card is at issue with regard to identifiers such as name, date of birth, height, weight, or eye color."

Assistant United States Attorney Kathryn Wyer, who argued for the government at the hearing, did not respond to an email request for comment.

Follow @MariaDinzeo

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit