2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 1 of 38 Pg ID 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK PARSONS, BRANDON BRADLEY,
SCOTT GANDY, ROBERT HELLIN,
JOSEPH BRUCE, and JOSEPH UTSLER,
Case No.
Plaintiffs,
Hon.
vs.
COMPLAINT
UNITED STATES DEPARTMENT OF JUSTICE
and FEDERAL BUREAU OF INVESTIGATION,
Defendants.
/
SAURA J. SAHU (P69627)
HOWARD HERTZ (P26653)
MILLER, CANFIELD, PADDOCK
ELIZABETH C. THOMSON (P53579)
AND STONE, P.L.C.
Hertz Schram, P.C.
Cooperating Counsel, American Civil
1760 South Telegraph Road
Liberties Union Fund of Michigan
Bloomfield Hills, Michigan 48302
150 West Jefferson, Suite 2500
(248) 335-5000
Detroit, Michigan 48226
hhertz@hertzschram.com
(313) 963-6420
sahu@millercanfield.com
FARRIS F. HADDAD (P71538)
FARRIS F. HADDAD & ASSOCIATES, P.C.
MICHAEL J. STEINBERG (P43085)
26100 American Drive, Suite 605
DANIEL S. KOROBKIN (P72842)
Southfield, Michigan 48034
KARY L. MOSS (P49759)
(888) 818-1646
American Civil Liberties Union
Farris@CallFarris.com
Fund of Michigan
2966 Woodward Avenue
Attorneys for Plaintiffs Bruce and Utsler
Detroit, Michigan 48201
(313) 578-6814
msteinberg@aclumich.org
dkorobkin@aclumich.org
Attorneys for Plaintiffs
Parsons, Bradley, Gandy and Hellin
/
COMPLAINT
Plaintiffs Mark Parsons, Brandon Bradley, Scott Gandy, Robert Hellin, Joseph Bruce
and Joseph Utsler state as follows for their Complaint against Defendants United States
Department of Justice and the Federal Bureau of Investigation:
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 2 of 38 Pg ID 2
PRELIMINARY STATEMENT
1.
Plaintiffs challenge the federal government’s unwarranted and unlawful
decision to designate a musical band’s supporters as a criminal gang, thereby subjecting
them to significant harm, including repeated police harassment and denial of employment.
2.
Among the supporters of almost any group - whether it be a band, sports
team, university, political organization or religion - there will be some people who violate
the lawǤ Inevitably, some will do so while sporting the group’s logos or symbolsǤ However,
it is wrong to designate the entire group of supporters as a criminal gang based on the acts
of a few. Unfortunately, that is exactly what happened here.
3.
Plaintiffs self-identify as
“Juggalos,” or fans of the musical group Insane
Clown Posse (“ICP”) and other bands on ICP’s independent record label, Psychopathic
RecordsǤ Some of ICP’s songs, such as “Juggalo Homies,” “Juggalo Island,” and “Miracles,”
have hopeful, life-affirming themes about the wonders of life and the support that Juggalos
give to one anotherǤ Other music, called “horrorcore hip hop,” uses very harsh language to
tell nightmare-like stories with an underlying message that horrible things happen to
people who choose evil over good.
4.
Many people view Juggalos as nonconformists because of their musical
tastes, their practice of painting their faces to look like clowns, and the distinctive Juggalo
symbols - including the “hatchetman” logo - that they often display on their clothing,
jewelry, body art and bumper stickers. Yet when Juggalos come together at concerts or
their annual week-long gathering every summer, they know that they are in a community
where all people are equal and where they will be accepted and respected for who they are.
The unifying theme for Juggalos is that no matter what one’s economic status, racial
-2-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 3 of 38 Pg ID 3
background or past problems, Juggalos are a “family” of people who love and help one
another, enjoy one another’s company, and bond over the music and a philosophy of lifeǤ
Organized crime is by no means part of the Juggalo culture.
5.
The Defendants, the United States Department of Justice (“DOJ”) and the
Federal Bureau of Investigation (“FBI”), estimate that there are over a million Juggalos in
the United States. As with any large group, a relative handful engage in criminal activity,
sometimes while wearing Juggalo symbols. Yet, in 2011, Defendants seized on reports of
independent crimes to brand Juggalos across the country as a “loosely-organized hybrid
gang” in the DOJ’s 2011 National Gang Threat Assessment (“2011 Assessment”)Ǥ
6.
This gang designation has caused real harm to ordinary Juggalos from coast
to coast. Defendants widely published the designation to state and local police agencies
through an online law enforcement database, as well as through reports and other means.
As a result, state and local police routinely stop, detain, interrogate, photograph and
document people like Plaintiffs, who do not have any connections to gangs, because they
have exercised their First Amendment rights to express their identity as Juggalos by
displaying Juggalo symbols. Other Juggalos, including plaintiff Scott Gandy, have been
denied consideration for employment because of the gang designation. The designation
has a chilling effect on Juggalos’ ability to express themselves and to associate with one
another.
7.
Defendants’ designation of the Juggalos as a “hybrid gang” violates the
federal Administrative Procedure Act (APA) for three reasons. First, it infringes on
Juggalos’ First Amendment freedoms and is unconstitutionally vague in violation of Due
Process. Second, branding the group as a gang is arbitrary and capricious, since the DOJ
-3-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 4 of 38 Pg ID 4
stigmatized an entire fan base of more than a million people even though it knows that only
a small fraction of individuals have engaged in isolated criminal acts. Third, Defendants
violated criminal intelligence collection procedures by gathering information on Juggalos
without reasonable suspicion to believe that the group is involved in a “definable criminal
activity or enterprise” and by gathering such information in a way that interferes with their
protected activities.
8.
As set forth below, Plaintiffs seek a declaration that designating the Juggalos
as a gang or “hybrid gang” is unlawfulǤ They also seek an order under the APA removing
the Juggalos from the DOJ’s gang list and enjoining Defendants from taking action in the
future that would brand Juggalos, as a group, as a criminal gang based on the actions of a
relatively few people who may identify as Juggalos.
JURISDICTION
9.
The Court has federal question jurisdiction under 28 U.S.C. § 1331 because
this case arises under the United States Constitution and the federal Administrative
Procedure Act (“APA”), 5 UǤSǤCǤ § 702 et seq.
VENUE
10.
The Eastern District of Michigan is the proper venue for this case under 28
U.S.C. § 1391(e) because Plaintiffs Joseph Utsler and Joseph Bruce reside in this District,
and the DOJ and the FBI are agencies of the United States government.
PARTIES
11.
Plaintiff Mark Parsons is a Juggalo. He resides in Las Vegas, Nevada.
12.
Plaintiff Brandon Bradley is a Juggalo. He resides in Citrus Heights, California.
13.
Plaintiff Scott Gandy is a Juggalo. He resides in Concord, North Carolina.
-4-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 5 of 38 Pg ID 5
14.
Plaintiff Robert Hellin is a Juggalo. He resides in Garner, Iowa.
15.
Plaintiff Joseph Utsler is a Juggalo and a member of the musical group ICP. He
resides in Davisburg, Michigan.
16.
Plaintiff Joseph Bruce is a Juggalo and a member of ICP. He resides in
Farmington Hills, Michigan.
17.
Defendant DOJ is a department of the United States government.
18.
Defendant FBI is an agency within the DOJ.
19.
The DOJ and the FBI are each “agencies” within the meaning of the APAǤ
20.
The FBI is responsible for administering the National Gang Intelligence
Center (“Center” or “NGIC”)Ǥ The Center is a multi-agency operation of the United States
government that is responsible for collecting, analyzing and disseminating information
from and to federal, state and local prosecutors, law enforcement authorities and
corrections officials about criminal street gangs, prison gangs and outlaw motorcycle
gangs.
GENERAL ALLEGATIONS
ICP and the Juggalos
21.
ICP is a musical group formed in or about 1991 and based in Farmington
Hills, Michigan. The group is known for its elaborate live performances. It has two certified
platinum albums - that is, selling one million (1,000,000) or more copies in the U.S. - and
five gold albums - that is, selling five hundred thousand (500,000) or more copies in the
U.S. - to its credit. ICP can be controversial, rebellious and provocative. But the duo is an
artistic venture and a musical group like other popular entertainers - whether they be
-5-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 6 of 38 Pg ID 6
club-music artists, gangster rappers, death metal bands, folk singers or more traditional
artists.
22.
Some ICP songs deal with social, political or religious themes; others are
counter-cultural; and others are simply artistic entertainment and expression. The songs
often use harsh language and themes.
23.
Juggalos are members of ICP’s dedicated musical fan baseǤ These music fans
have been known as “Juggalos” since the early 1990sǤ They appreciate ICP’s music and its
other expressive art.
24.
As an expression of their identity, Juggalos often obtain and display
distinctive tattoos of ICP and Psychopathic Record art and icons. They also wear and
otherwise display ICP art, symbols and insignia on their clothing and other personal
belongings.
25.
Juggalos gather and associate with each other to listen to ICP’s music, to
share ideas surrounding the music, to express their support of or interest in the ideas that
ICP expresses through its music, to express their affiliation with ICP and the artists on its
record label, and to express their affiliation with one another.
26.
The expressive activities and purposes described above are primary reasons
why Juggalos group together and associate with one another.
27.
The primary purposes of the Juggalos - as a group - do not include engaging
in criminal activity.
28.
Many Juggalos embrace “Juggaloism” as a philosophy, an identity, and a way
of lifeǤ ICP’s lyrics, through their description of a “Dark Carnival,” address themes of good
and evil, heaven and hell, and acceptance and tolerance of others. Juggalos follow these
-6-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 7 of 38 Pg ID 7
ethics and try to live by the moral code of the “CarnivalǤ” Many Juggalos also see themselves
as social outcasts and look to one another for acceptance and support. Based on these
shared values, Juggalos strongly identify with one another and often refer to themselves as
a “familyǤ”
Plaintiff Mark Parsons
29.
At all relevant times, Parsons was a Juggalo.
30.
Parsons has never knowingly affiliated with any criminal gang.
31.
Parsons owns and operates a small trucking business entitled “Juggalo
Express LLC,” a limited liability corporation incorporated in the State of UtahǤ
32.
Parsons drives a semi truck for Juggalo Express LLC.
33.
Parsons decorates the side of his semi truck with a large, visible ICP
“hatchetman” logoǤ Parsons placed this logo on his truck to express his affinity for ICP’s
music, his identity as a Juggalo, and his affiliation with the Juggalo community.
34.
On or about July 9, 2013, Parsons was riding with a driver-trainee in
Parsons’s semi truck on an interstate freeway outside Knoxville, TennesseeǤ The trainee
was properly driving and Parsons was instructing when they entered a weigh station
operated by the Tennessee Department of Transportation.
35.
In accordance with posted instructions, they drove in the “bypass” lane so
that Parsons’s truck could be weighed while continuing to move at a slow speedǤ
36.
As they drove in the bypass lane, a Tennessee State Trooper ordered Parsons
and the trainee to stop the truck and park for a safety inspection. They complied.
37.
Once they parked, the State Trooper approached Parsons and asked if he was
a Juggalo.
-7-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 8 of 38 Pg ID 8
38.
The State Trooper indicated that he detained Parsons for an inspection
because of the hatchetman logo on the truck.
39.
The State Trooper indicated that he considered Juggalos to be a criminal gang
because of the DOJ’s designationǤ
40.
The State Trooper asked Parsons if he had any axes, hatchets, or other
similar chopping instruments in the truck. Parsons truthfully answered that he did not.
41.
The State Trooper continued to search the truck and interrogate Parsons for
about an hour, delaying Parsons’ time-sensitive hauling work. During the search, the State
Trooper did not find any weapons or contraband. The State Trooper did not issue a ticket
or other citation to Parsons.
42.
During the detention, the State Trooper never:
a. identified a motor vehicle safety offense that might support a safety
inspection;
b. informed Parsons about any motor vehicle safety offense that might
otherwise support the detention; or
c. articulated any reasonable suspicion to believe that criminal activity
might be afoot, aside from the State Trooper’s perception of the
hatchetman logo.
43.
Parsons never consented to the detention for the purpose of questioning his
Juggalo affiliation.
44.
Parsons did not feel free to terminate the detention before the State Trooper
released Parsons.
Plaintiff Brandon Bradley
45.
At all relevant times, Bradley was a Juggalo.
46.
Bradley has never knowingly affiliated with any criminal gang.
-8-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 9 of 38 Pg ID 9
47.
In or around September 2012, a Citrus Heights, California Police Officer in a
patrol car flashed the car’s lights and stopped Bradley when Bradley was biking homeǤ
48.
At the time, Bradley had visible Juggalo tattoos and was wearing a Twiztid
Batman shirt, which is Juggalo merchandise.
49.
At all relevant times, Bradley obtained and displayed his Juggalo tattoos in
order to express his affinity for the music of Psychopathic Records artists, his affiliation
with the Juggalos as music fans, and his pride in being a member of the Juggalo community.
50.
At all relevant times, Bradley possessed and displayed his merchandise from
ICP and other Psychopathic Records artists in order to express his affinity for the music, his
affiliation with the Juggalos as music fans, and his pride in being a member of the Juggalo
community.
51.
Upon information and belief, the actual and primary reason that the officer
stopped Bradley was because the officer saw Bradley’s Juggalo tattoos and merchandiseǤ
52.
The officer detained Bradley for about fifteen minutes while interrogating
Bradley about being a Juggalo and about his Juggalo tattoos.
53.
The officer took notes about Bradley’s answersǤ
54.
Later, an ex-Citrus Heights Police Officer told Bradley that the ex-officer
heard about the above encounter and that Bradley would have to get his Juggalo tattoos
removed if he wanted to be a police officer because the tattoos are gang-affiliated.
55.
In or around October 2012, Bradley was walking across a street in downtown
Sacramento, California.
56.
At the time, he was wearing a shirt bearing an ICP-related insignia, and some
of his ICP-related tattoos were visible.
-9-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 10 of 38 Pg ID 10
57.
As he crossed the street, a uniformed deputy from the Sacramento Sheriff’s
Department approached Bradley.
58.
The deputy asked if Bradley was a Juggalo.
59.
The deputy demanded to see Bradley’s identification, and Bradley compliedǤ
60.
The deputy took Bradley’s identification and his ICP-themed wallet and held
them throughout the encounter.
61.
Bradley did not feel free to demand his wallet and identification back or to
leave without them.
62.
The deputy ran a background check on Bradley.
63.
The deputy detained and questioned Bradley for a substantial amount of
time, during which the deputy accused Bradley of being in a gang because he was a Juggalo.
The deputy stated that to be a Juggalo is to be a gang member. The deputy also asked
Bradley about his ICP-related tattoos.
64.
One evening in January 2013, Bradley was walking alone in the bike lane on a
stretch of road that did not have a sidewalk.
65.
Bradley was wearing an ICP jacket with a large red “hatchetman” insignia on
the back.
66.
A black, unmarked police cruiser passed Bradley in the opposite direction.
67.
The cruiser performed a U-turn, pulled up behind Bradley and stopped him.
68.
Two male officers wearing bullet-proof vests - who appeared to be gang-
squad officers - exited the cruiser and immediately told Bradley that they noticed his jacket
with the “hatchetman” insigniaǤ
-10-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 11 of 38 Pg ID 11
69.
The officers ordered Bradley to stand in front of a guardrail with his back to
them so that they could take pictures of his jacket.
70.
Bradley submitted while the officers also took photographs of his face and
his tattoos.
71.
For a lengthy time period, the officers interrogated Bradley about his status
as a Juggalo and about whether he was a gang member. The officers took notes about the
encounter and about Bradley’s responsesǤ Although Bradley denied being in any gang, the
officers translated his answers into gang-related terms when they repeated them.
72.
Upon information and belief, the officers entered this information into a gang
information database that is part of or feeds information into the gang information
database that the NGIC administers.
73.
Bradley did not feel free to end the encounter until the officers released him.
74.
Upon information and belief, each of the law enforcement officials above
relied upon the DOJ’s classification of the Juggalos as a gang when deciding whether to stop,
question or otherwise detain or investigate Bradley.
75.
Due to the incidents above, Bradley has decided on numerous occasions not
to wear Juggalo-related clothing or other merchandise, not to publicly express his affinity
for ICP music, and not to express his membership in the Juggalo community. He has taken
these steps in order to avoid similar negative contacts with law enforcement in the future.
Plaintiff Scott Gandy
76.
At all relevant times, Gandy was a Juggalo.
77.
Gandy has never knowingly affiliated with any criminal gang.
-11-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 12 of 38 Pg ID 12
78.
In or around 2012, Gandy visited an Army recruiting office where he had
become familiar with the recruiters.
79.
Gandy had large ICP-related tattoos on his chest, which he obtained to
express his affinity for ICP’s music, his status as a Juggalo and his appreciation of other
Psychopathic Records artists’ musicǤ
80.
At the recruiting office, the Army’s recruiting Sergeant asked Gandy if he had
any tattoos. Gandy showed the Sergeant his Juggalo tattoos.
81.
The Sergeant told Gandy that the Juggalos were on the federal government’s
gang listǤ The Sergeant said that he considered Gandy’s Juggalo tattoos to be gang-related.
Upon information and belief, the Sergeant’s determination that the Juggalos were a
prohibited criminal gang was based on the DOJ’s Juggalo gang designationǤ
82.
The Sergeant questioned Gandy about whether he was a gang member.
83.
The Sergeant instructed Gandy that he must remove or permanently cover
his Juggalo tattoos or the Army would immediately deny his recruitment application. The
Sergeant said that it did not matter how virtuous a life Gandy had lived, the Army could not
and would not accept him with the tattoos. The Sergeant said that to be considered by the
Army, Gandy must remove or permanently cover the tattoos.
84.
Upon information and belief, the Army has a policy prohibiting “gang”
tattoos.
85.
Although the Army has not publicly released the materials it uses to identify
criminal “gangs” and their members, upon information and belief, the Army deems the
Juggalos to be a criminal gang and bases that assessment on the DOJ’s Juggalo gang
designation.
-12-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 13 of 38 Pg ID 13
86.
As a result of the Sergeant’s instructions and comments, Gandy spent
hundreds of dollars to undergo a painful procedure in which his Juggalo tattoos were
covered with other tattoos. Gandy underwent this procedure in order to receive
consideration of his recruitment application. Gandy would not have undergone this
procedure or obtained these new tattoos if the Sergeant had not indicated that it was
necessary.
87.
After undergoing the procedure, Gandy returned to the recruitment office
and again showed the same Sergeant his new tattoos.
88.
The Sergeant said that he approved and that Gandy’s application would
receive considerationǤ Ultimately, Gandy’s application was deniedǤ
Plaintiff Robert Hellin
89.
At all relevant times, Hellin was a Juggalo.
90.
Hellin has never knowingly affiliated with any criminal gang.
91.
Hellin enlisted in the Army in 2008, before the Juggalo gang designation. He
is a Corporal in the Army, where he has served honorably in Iraq, Afghanistan and Korea as
a member of cavalry and special operations units.
92.
Hellin has visible ICP-related tattoos, which he obtained and displays in
order to express his identity as a Juggalo.
93.
Upon information and belief, because of the Juggalo gang designation,
Hellin’s identity as a Juggalo places him in imminent danger of suffering discipline or an
involuntary discharge from the Army.
-13-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 14 of 38 Pg ID 14
Plaintiffs Joseph Bruce and Joseph Utsler
94.
At all relevant times, Bruce and Utsler were Juggalos and members of the
musical group ICP.
95.
Bruce and Utsler do not knowingly affiliate with any criminal gang.
96.
On August 20, 2012, ICP entered into a contract with AEG Live to perform at
the Royal Oak Music Theater in Royal Oak, Michigan on October 31, 2012 for ICP’s annual
musical and artistic event known as “Hallowicked,” with a possible second performance on
October 30, 2012 if tickets to the October 31 performance sold out.
97.
On or about October 8, 2012, the Royal Oak Music Theater cancelled the
Hallowicked event without notice, initially indicating that it was the landlord’s decisionǤ
98.
After discussions with AEG Live and Royal Oak Music Theater, ICP’s record
label discovered that the Royal Oak Police Department asked the Royal Oak Music Theater
to cancel the event.
99.
When asking the Royal Oak Music Theater to cancel the Hallowicked event,
the Royal Oak Police Department cited the federal Juggalo gang designation.
The DOJ and the National Gang Intelligence Center
100. In Public Law
109-162, 119 Stat.
2960 (2005), Congress directed the
Attorney General to “establish a National Gang Intelligence Center and gang information
database to be housed at and administered by the [FBI] to collect, analyze, and disseminate
gang activity information from” the FBI, the Bureau of Prisons, the Drug Enforcement
Administration, other federal agencies, and state and local law enforcement, prosecutors,
and correctional officers. In the same federal statute, Congress directed the Center:
a.
to make that same information available to “Federal, State, and local
law enforcement agencies,” to “Federal, State, and local corrections
-14-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 15 of 38 Pg ID 15
agencies and penal institutions,” and to “Federal, State, and local
prosecutorial agencies,” as well as to
“any other entity as
appropriate”; and
b.
to “annually submit to Congress a report on gang activityǤ”
101. The DOJ promptly established the Center in response to Congress’s direction,
and upon information and belief, the FBI has administered the Center since its inception.
102. Upon information and belief, the DOJ and/or the FBI promptly established a
gang information database in response to Congress’s directionǤ
103. In an April 2008 report to Congress, the Attorney General described the
Center as part of a coordinated set of “intelligence and enforcement mechanisms aimed at
dismantling the most significant violent national and regional gangsǤ” The Attorney General
said:
NGIC integrates the gang intelligence assets of all Department of Justice
agencies and has established partnerships with other federal, state, and local
agencies that possess gang-related information--serving as a centralized
intelligence resource for gang information and analytical support. This
enables gang investigators and analysts . . . to further identify gangs and gang
members . . . and to guide the appropriate officials in coordinating their
investigations and prosecutions to disrupt and dismantle gangs. The NGIC's
mission is to support law enforcement agencies through timely and accurate
information sharing and strategic/tactical analysis of federal, state, and local
law enforcement intelligence focusing on the growth, migration, criminal
activity, and association of gangs that pose a significant threat to
communities throughout the United States.
U.S. Dep't of Justice, Attorney General's Report to Congress on the Growth of Violent Street
Gangs in Suburban Areas (2008) (emphasis added).
104. Federal statutes do not define the term “gangǤ”
105. According to the federally-funded “National Gang Center,” law enforcement
authorities fail to agree on what a “gang” isǤ The National Gang Center has stated, “There is
no widely or universally accepted definition of a ‘gang’ among law enforcement agenciesǤ”
-15-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 16 of 38 Pg ID 16
106. Federal law defines the term “criminal street gang” as a group that has at
least five members; “has as one of its primary purposes the commission of 1 or more
[specified federal felony-levelȐ criminal offenses” involving drugs, violence, or a conspiracy
to commit the same; has a membership that engaged in a continuing series of those crimes
within the past five years; and engages in activities that affect interstate commerce. 18
U.S.C. § 521(a) (emphasis added).
NGIC Online
107. Through the Center, the DOJ and FBI publish a variety of official reports and
other official materials.
108. Many of those reports and materials are made available to the general public
on the Internet at http://www.nationalgangcenter.gov , which is funded by the DOJ. The
DOJ and FBI, in turn, cite and rely upon the materials, resources and statistics that are
published at http://www.nationalgangcenter.gov.
109. The Center created a separate online database, NGIC Online, to publish and
otherwise make available its reports, findings and other information to federal, state and
local prosecutors, law enforcement officials and corrections officials. The Center continues
to administer and use NGIC Online for that purpose.
110. At all relevant times, the DOJ has controlled the content of what is published
and/or distributed on NGIC Online.
111. Upon information and belief, NGIC Online includes the reports and materials
that are published at http://www.nationalgangcenter.gov.
112. Upon information and belief, the DOJ has incorporated NGIC Online into the
Law Enforcement Online database. According to the FBI, the Law Enforcement Online
-16-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 17 of 38 Pg ID 17
database “is a secure, Internet-based information sharing system for agencies around the
world that are involved in law enforcement, first response, criminal justice, anti-terrorism,
and intelligence. With LEO, members can access or share sensitive but unclassified
information anytime and anywhere. * * * By using one name and password, agencies can
access LEO and such resources as Ǥ Ǥ Ǥ [theȐ National Gang Intelligence Center Ǥ Ǥ Ǥ Ǥ”
113. The DOJ and FBI intend for federal, state and local prosecutors, law
enforcement officials and corrections officials to use the information that is available on
NGIC Online when they engage in governmental actions against members or affiliates of
any gang that the DOJ and/or the FBI identifies.
114. The number of queries by state and local law enforcement officials to NGIC
Online apparently exceeds 200,000 per year.
115. Upon information and belief, since at least 2010, federal, state and local
prosecutors, law enforcement officials and corrections officials have been actively using
and relying on NGIC Online when engaging in governmental actions against members or
affiliates of the groups that the DOJ and/or the FBI have identified as gangs.
2009 National Gang Threat Assessment
116. In 2009, the Center published its 2009 National Gang Threat Assessment, in
which the Center summarized and reported about the information it had collected and
analyzed to that point in relation to street gangs, prison gangs, and outlaw motorcycle
gangs.
117. From in or around 2009 until the filing of this Complaint, the
2009
Assessment was available to the general public at http://www.nationalgangcenter.gov.
-17-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 18 of 38 Pg ID 18
Upon information and belief, the 2009 Assessment has also been available on NGIC Online
throughout roughly the same time period.
118. The 2009 Assessment does not mention the Juggalos or identify them as any
kind of “gangǤ” Instead, it focuses on known prison gangs, outlaw motorcycle gangs, and
criminal street gangs such as the Mexican Mafia, Bloods, Crips, Hells Angels, Mara
Salvatrucha 13, Vice Lords, and Gangster Disciples, each of which is purportedly linked to
interstate drug trafficking or distribution, and some of which are purportedly also linked to
interstate human and weapons trafficking.
2011 National Gang Threat Assessment
119. In or about October 2011, the Center published the 2011 Assessment, which
was its third National Gang Threat Assessment.
120. According to the Center, the 2011 Assessment “enhances and builds on the
gang-related trends and criminal threats identified in the 2009 assessmentǤ”
121. According to the Center, the 2011 Assessment “supports US Department of
Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent
crime) and 2Ǥ4 (to reduce the threat, trafficking, use, and related violence of illegal drugs)Ǥ”
122. According to the Center, the 2011 Assessment “is based on federal, state,
local, and tribal law enforcement and corrections agency intelligence, including
information and data provided by the National Drug Intelligence Center (NDIC) and the
National Gang Center. Additionally, this assessment is supplemented by information
retrieved from open source documents and data collected through April 2011Ǥ”
123. From on or about its 2011 publication through the time of the filing of this
Complaint, the
2011 Assessment has been available to the general public at
-18-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 19 of 38 Pg ID 19
http://www.nationalgangcenter.gov.
124. Upon information and belief, the 2011 Assessment has also been accessible
through NGIC Online since its original publication.
125. Upon information and belief, the DOJ intended and still intends for federal,
state and local prosecutors, law enforcement officials and corrections officials to use the
2011 Assessment when they engage in governmental actions targeting and/or against
members or affiliates of any “gang” that the DOJ identifies.
126. Upon information and belief, federal, state and local prosecutors, law
enforcement officials and corrections officials have been actively using or relying on the
2011 Assessment when engaging in governmental actions targeting and/or against
members or affiliates of any “gang” that the DOJ identifies, including JuggalosǤ
Hybrid Gangs
127. The 2011 Assessment contains a section about “hybrid gangsǤ”
128. Federal statutes do not define the term “hybrid gangǤ”
129. The 2011 Assessment does not specifically define the term “hybrid gangǤ”
130. The 2011 Assessment suggests that hybrid gangs are groups composed of
people who affiliate with other known criminal street gangs.
131. The 2011 Assessment states:
a.
“The expansion of hybrid gangs—non-traditional gangs with multiple
affiliations—is a continued phenomenon in many jurisdictions
nationwide. Because of their multiple affiliations, ethnicities,
migratory nature, and nebulous structure, hybrid gangs are difficult to
track, identify, and target as they are transient and continuously
evolvingǤ”
b.
Hybrid gangs “are adopting national symbols and gang members often
crossover from gang to gangǤ”
-19-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 20 of 38 Pg ID 20
c.
“Hybrid Gangs Ǥ Ǥ Ǥ are fluid in size and structure, yet tend to adopt
similar characteristics of larger urban gangs, including their own
identifiers, rules, and recruiting methodsǤ”
Juggalos as a “Hybrid Gang”
132. In the 2011 Assessment, the Center designated the “Juggalos” as “a loosely-
organized hybrid gangǤ”
133. The nationwide Juggalo membership, believed to be over one million fans,
vehemently reject the gang label they have received in recent years.
134. The 2011 Assessment does not define what a “Juggalo” is, but it states:
“Juggalos are traditionally fans of the musical group the Insane Clown PosseǤ”
135. In fact, the vast majority of Juggalos are music fans who are not involved in
any criminal gang or any gang-related activity. They liken themselves to a family.
136. There is little to no structure within the Juggalos as a group, and there is no
formalized leadership.
137. In the
2011 Assessment, the DOJ’s Juggalo gang designation identifies
Juggalos - simply as Juggalos - as being members of a “hybrid gangǤ”
138. The Juggalo gang designation refers to Juggalos as an entire group or
association.
139. The Juggalo gang designation does not contain any meaningful distinction
between law-abiding Juggalos and individual criminal Juggalos or criminal “subsets” of
Juggalos.
140. The 2011 Assessment states:
a.
“[MȐany Juggalo subsets exhibit gang-like behavior and engage in
criminal activity and violenceǤ”
b.
“Most crimes committed by Juggalos are sporadic, disorganized,
-20-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 21 of 38 Pg ID 21
individualistic, and often involve simple assault, personal drug use
and possession, petty theft, and vandalismǤ”
c.
“[AȐ small number of Juggalos are forming more organized subsets
and engaging in more gang-like criminal activity, such as felony
assaults, thefts, robberies, and drug salesǤ”
d.
“Juggalos’ disorganization and lack of structure within their groups,
coupled with their transient nature, makes it difficult to classify them
and identify their members and migration patternsǤ”
141. The DOJ, FBI and the Center use and encourage other governmental agencies
to use an individual’s Juggalo tattoos to indicate that the individual is a JuggaloǤ
142. The DOJ, FBI and the Center use and encourage other governmental agencies
to use an individual’s act of wearing, possessing or displaying ICP clothing, symbols or
other merchandise to indicate that the individual is a Juggalo.
143. The DOJ, FBI and the Center use and encourage other governmental agencies
to use an individual’s act of wearing, possessing or displaying the clothing, symbols or
other merchandise of other Psychopathic Records artists to indicate that the individual is a
Juggalo.
144. In order to avoid being subject to police scrutiny as a gang member,
individual law-abiding Juggalos must:
a.
forsake their status as Juggalos (whether as music fans or as part of
the “family” that shares the same philosophy);
b.
refrain from identifying themselves as Juggalos;
c.
refrain from affiliating or associating with other Juggalos;
d.
refrain from affiliating or associating with ICP and other Psychopathic
Records artists;
e.
refrain from attending concerts and events of Psychopathic Records
artists;
f.
refrain from obtaining or displaying Juggalo tattoos;
-21-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 22 of 38 Pg ID 22
g.
remove Juggalo tattoos that they already have; and/or
h.
refrain from buying, possessing, wearing, donning or displaying the
clothing, symbols or other merchandise of ICP or other Psychopathic
Records artists.
145. Insofar as federal officials reasonably believe that individual Juggalos affiliate
with other known criminal gangs - such as the Bloods or Crips - the DOJ, FBI and the
Center can identify, locate and target those individuals’ criminal-gang-related activity by
focusing either on their relationships with known criminal gangs or on their personal
conduct.
146. In response to a request under the federal Freedom of Information Act for all
information upon which the DOJ relied in making its Juggalo gang designation, the DOJ
produced 102 pages of the total 156 pages that were purportedly responsive.
147. The DOJ, FBI and the Center have not provided, and upon information and
belief do not have, sufficient evidence to support a reasonable basis for concluding that the
Juggalos:
a.
are a nationally affiliated criminal street gang;
b.
affiliate on any significant group-wide basis with known criminal
gangs;
c.
have as a primary purpose a shared criminal purpose as a group;
d.
engage in an ongoing scheme of criminal activity;
e.
commit crimes as part of any coherent, overarching criminal-gang
plan;
f.
are involved as a group in interstate drug, human or weapons
trafficking; or
g.
present a significant threat, as a group, to communities throughout
the United States, or to public safety in those communities.
-22-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 23 of 38 Pg ID 23
148. In the 2011 Assessment and the FOIA Production, the DOJ, FBI and the Center
have not provided - and upon information and belief they do not have - sufficient evidence
of a causal link between the classification of the Juggalos as a hybrid gang and the
governmental interests in:
a.
reducing the threat, trafficking, use, and “related violence” of illegal
drugs; and/or
b.
reducing the threat, incidence, and prevalence of violent crime.
149. As a result of Defendants’ classification of the Juggalos as a gang, Plaintiffs
and other Juggalos have suffered a variety of harms at the hands of government officials.
These harms not only include harms to Plaintiffs’ good names, reputations, honor and
integrity, but also improper stops, detentions, interrogations, searches, denials of
consideration for federal employment, and interference with existing federal employment,
as well as other distinct harmsǤ Defendants’ classification of the Juggalos as a gang also has
a chilling effect on the expressive and associational activity of Plaintiffs and other Juggalos.
COUNT 1: Administrative Procedure Act
(Agency Action Contrary to the First mendment’s Freedom of ssociation)
150. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
151. Plaintiffs assert this claim under the federal Administrative Procedure Act, 5
U.S.C. § 551 et seq. (“APA”) and UǤSǤ ConstǤ amendǤ IǤ
152. The DOJ’s Juggalo gang designations are interpretive rules under the APAǤ
153. The DOJ and FBI engaged in “final agency action” under § 704 of the APA
when the Center issued the 2011 Assessment and its Juggalo gang designations.
-23-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 24 of 38 Pg ID 24
154. As Juggalos, Plaintiffs were within the zone of interests regulated by these
final agency actions.
155. These final agency actions do not provide any relevant, meaningful way to
differentiate between law-abiding Juggalos and individual criminal Juggalos.
156. Under § 702 of the APA, Plaintiffs suffered legal wrongs or were adversely
affected or aggrieved because of the Center’s classification of the Juggalos as a gangǤ These
wrongs, adverse effects and/or aggrievements not only include harms to Plaintiffs’ good
names, reputations, honor and integrity, but also improper stops, detentions,
interrogations, searches, improper denials of consideration for federal employment,
compelled expression (in the form of a forced tattoo), and interference with existing federal
employment, as well as other distinct harms.
157. Under § 706(2)(B) of the APA, this Court has authority to “hold unlawful and
set aside agency action, findings, and conclusions found to be . . . contrary to constitutional
right, power, privilege, or immunityǤ”
158. The First Amendment protects individuals’ right to associate for purposes of
engaging in the forms of expression that the Amendment protects.
159. Juggalos associate together for the primary purposes of listening to and
appreciating the music of ICP and other Psychopathic Records artists; sharing ideas about
that music and expressing their support of or interest in the ideas that ICP expresses
through its music; expressing their affiliation with ICP and the artists on its record label;
and expressing their affiliation with other Juggalos and their identification with Juggaloism
as a philosophy, a set of values, a moral code, and a way of life.
-24-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 25 of 38 Pg ID 25
160. Plaintiffs Parsons, Hellin, Gandy and Bradley associate with other individuals
as “Juggalos” in order to engage in protected expressionǤ Plaintiffs’ protected expression
includes listening to the music of Psychopathic Records artists, attending “gatherings,”
concerts and other musical events by these artists, expressing Plaintiffs’ identity and
affiliation as Juggalos, bearing Juggalo tattoos and other Juggalo art, and discussing political
and/or moral issues with other Juggalos.
161. The group known as the “Juggalos” does not have a primary purpose of
committing criminal offenses. The vast majority of individual Juggalos do not associate
together to commit crimes.
162. Plaintiffs do not associate with other Juggalos in order to commit crimes.
163. By classifying the entire group of Juggalos
- which is overwhelmingly
composed of law-abiding music fans - as some form of criminal gang, the DOJ and FBI have
directly burdened Plaintiffs’ and other Juggalos’ First Amendment freedom of associationǤ
That classification burdens the Juggalos, including Plaintiffs, because they are Juggalos.
164. Due to the Center’s particular role in serving as a central clearinghouse and
authority about criminal street gangs, the DOJ’s use of the Center’s reports to designate the
Juggalos as a gang has actually and proximately caused state and local law enforcement and
correctional officers to wrongfully treat Plaintiffs and other Juggalos as if they were
criminal street gang members.
165. The law enforcement and correctional actions discussed above directly
burden Plaintiffs’ freedom of associationǤ
-25-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 26 of 38 Pg ID 26
166. The federal, state and local actions discussed above chill the freedom of
association of substantial numbers of Juggalos who are not members of any criminal street
gang.
167. The DOJ’s classification of the Juggalos as a hybrid gang reaches a substantial
amount of protected associational conduct and is unconstitutionally overbroad.
168. The Center’s classification of the Juggalos as a hybrid gang is not a narrowly
tailored means, the least restrictive alternative, a necessary means, or a directly and
palpably connected means to further any sufficient, substantial or compelling
governmental interest.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA
holding unlawful and setting aside the 2011 Assessment and any other classification by the
DOJ, FBI or the Center of the Juggalos, as a whole, as any kind of “gang,” because these
governmental actions violate the First Amendment right to freedom of association. For the
same reason, Plaintiffs further request that the Court enjoin Defendants from taking action
in the future that would brand Juggalos, as a group, as a criminal gang based on the actions
of a relatively few people who may identify as Juggalos.
COUNT 2: Administrative Procedure Act
( gency ction Contrary to the First mendment’s Freedom of Expression)
169. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
170. Plaintiffs assert this separate, additional claim of a constitutional violation
under § 706(2)(B) of the APA.
171. The First Amendment to the United States Constitution provides that
“Congress shall make no law Ǥ Ǥ Ǥ abridging the freedom of speechǤ” UǤSǤ ConstǤ amendǤ IǤ
-26-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 27 of 38 Pg ID 27
172. The First Amendment protects the right of individuals to speak, write, make
music, make art, and otherwise engage in expressive conduct. This right to freedom of
expression also protects individuals’ rights to attend musical events and concerts, to create
and bear tattoo art, to express their association or affiliation with other individuals or
groups, and to listen to speech about artistic, political and socio-economic matters.
173. Plaintiffs intended their Juggalo tattoos, clothing, symbols and merchandise
to express their identities as Juggalos and their affiliations with other Juggalos.
174. Others objectively interpret and understand Juggalo tattoos, clothing,
symbols and merchandise as expressions of the bearers’ identification as Juggalos and their
affiliations with other Juggalos. For example, the DOJ, FBI and the Center specifically rely on
and interpret these Juggalo symbols to identify individual people as Juggalos and/or as
people who affiliate with other Juggalos. The DOJ, FBI and the Center actively encourage
state and local authorities to do the same, which those state and local authorities do as a
result of such encouragement.
175. By bearing Juggalo art, tattoos, clothing, symbols and merchandise, Plaintiffs
engaged in protected expression.
176. As part of the federal classification of the Juggalos as a gang, the DOJ, FBI and
the Center identify Juggalos on the basis of their Juggalo tattoos, clothing, symbols and
other merchandise and other protected expression.
177. By identifying the Juggalos on the basis of their protected expression as
targets for law enforcement action, the DOJ, FBI and/or the Center have engaged - and
continue to engage - in content-based regulation.
-27-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 28 of 38 Pg ID 28
178. By targeting and/or taking action against the Juggalos due to their protected
expression, the DOJ, FBI and the Center directly burden the Juggalos’ (including the
Plaintiffs’) freedom of expression under the First AmendmentǤ
179. When identifying, targeting and/or taking action against the Juggalos due to
their protected expression - including through the 2011 Assessment - the DOJ, FBI and the
Center have actually and proximately caused other state and local law enforcement
authorities to take actions that directly burden the Juggalos’, including the Plaintiffs’,
freedom of expression under the First Amendment.
180. The federal, state and local actions mentioned in this Count chill the freedom
of expression of substantial numbers of Juggalos who are not members of any criminal
street gang. Individual Juggalos, including Plaintiffs, have refrained from engaging in
constitutionally protected expression for fear that it would result in his or her classification
by federal law enforcement as a criminal gang member.
181. By identifying Juggalos as criminal gang members through reference to their
protected expression, the DOJ, FBI and the Center have reached a substantial amount of
protected conduct. The classification is unconstitutionally overbroad.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA
holding unlawful and setting aside the 2011 Assessment and any other classification by the
DOJ, FBI or the Center of the Juggalos, as a whole, as any kind of “gang,” because these
governmental actions violate the First Amendment right to freedom of expression. For the
same reason, Plaintiffs further request that the Court enjoin Defendants from taking action
in the future that would use Juggalo group-based symbols and expression to identify
-28-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 29 of 38 Pg ID 29
individuals as members of a criminal gang, based on the actions of a relatively few people
who may identify as Juggalos.
COUNT 3: Administrative Procedure Act
(Agency Action that Violates Due Process Under the Fifth Amendment)
182. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
183. Plaintiffs assert this separate, additional claim of a constitutional violation
under § 706(2)(B) of the APA.
184. The Fifth Amendment to the United States Constitution provides that “No
person shall Ǥ Ǥ Ǥ be deprived of life, liberty, or property, without due process of lawǤ” UǤSǤ
Const. amend. V.
185. Under the Due Process Clause of the Fifth Amendment, federal laws, rules,
regulations, and other similar legislative and administrative measures are
unconstitutionally vague if they fail to give fair notice of the conduct that is forbidden or
required by either (a) failing to inform the regulated parties what is required of them so
that they may act accordingly; or (b) failing to provide enough precision and guidance to
limit the discretion of those enforcing the law in order to avoid arbitrary or discriminatory
law enforcement.
186. Where, as here, a federal criminal law-enforcement measure concerns
protected First Amendment rights, the above anti-vagueness requirements of the Due
Process Clause apply with particular strictness.
187. As used by the DOJ, the FBI and the Center, the terms “gang”, “hybrid gang”,
and “Juggalo” are not fairly or clearly definedǤ
-29-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 30 of 38 Pg ID 30
188. The terms “gang” and “hybrid gang” do not have any settled or determined
meaning, and they are strongly susceptible to subjective interpretation.
189.
The term “Juggalo” is strongly susceptible to subjective interpretationǤ
190.
The DOJ, FBI and Center’s classification of the Juggalos as a gang:
a.
has regulated Plaintiffs and other Juggalos on the basis of the Juggalos’
status as Juggalos;
b.
has failed to provide an affirmative, reasonably ascertainable
standard of conduct; and
c.
has failed to identify any particular prohibited actions that an
individual Juggalo can avoid in order to avoid being considered a
“hybrid gang” member, aside from renouncing or concealing their
identity as a Juggalo.
191.
When classifying the Juggalos as a hybrid gang, the DOJ, FBI and the Center:
a.
have not provided law enforcement officers with adequate guidance
about how to distinguish the vast majority of law-abiding Juggalos
from the small percentage of criminal individuals or subsets;
b.
failed to meaningfully limit the discretion of law enforcement officers
in deciding whether and how to take law enforcement action targeting
criminal individuals or subsets of Juggalos; and
c.
granted government officials so much discretion that individual
officials’ decisions to limit protected speech can rest on ambiguous
and subjective reasons rather than being constrained by objective
criteria.
192.
The DOJ, FBI and Center’s classification of the Juggalos as a hybrid gang:
a.
is vague and ambiguous; and
b.
has a substantial chilling effect upon the exercise by Plaintiffs and
other Juggalos of their rights to freedom of expression and
association.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA
holding unlawful and setting aside the 2011 Assessment and any other classification by the
DOJ, FBI or the Center of the Juggalos, as a whole, as a “gang” or “hybrid gang” because
-30-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 31 of 38 Pg ID 31
these governmental actions violate their right to Due Process. For the same reason,
Plaintiffs further request that the Court enjoin Defendants from taking action in the future
that would brand Juggalos, as a group, as a “gang” or “hybrid gangǤ”
COUNT 4: Administrative Procedure Act
(Arbitrary and Capricious Agency Action)
193. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
194. Plaintiffs assert this claim to challenge arbitrary and capricious agency action
under § 706(2)(A) of the APA, which authorizes this Court to “hold unlawful and set aside
agency action, findings, and conclusions found to be . . . arbitrary, capricious, [or] an abuse
of discretion Ǥ Ǥ Ǥ Ǥ”
195. The DOJ, FBI and the Center have not provided - and upon information and
belief they do not have - a proper basis to explain their decision to depart from, add to,
and/or amend the 2009 Assessment (which did not include the Juggalos as any kind of
gang) and instead to identify the Juggalos as a “gang” in the 2011 AssessmentǤ
196. The DOJ, FBI and the Center have not provided - and upon information and
belief they do not have - a proper basis to believe that the Juggalos, as a group, are a
criminal street gang.
197. The DOJ, FBI and the Center are in possession of information that the vast
majority of Juggalos do not constitute and are not members of a criminal street gang.
198. Insofar as the DOJ, FBI and Center have classified the Juggalos as a “criminal
street gang” under federal law:
a.
that classification is - as alleged and described above - an interpretive
rule and a final agency action, which has adversely affected and
aggrieved the Plaintiffs within the meaning of the APA;
-31-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 32 of 38 Pg ID 32
b.
that classification lacks a proper factual basis, is implausible, and
cannot be ascribed to a difference in view or the product of agency
expertise;
c.
that classification is based on a failure to adequately develop the
administrative record and to gather the evidence necessary to
evaluate whether a criminal street gang exists in these circumstances;
d.
the DOJ, FBI and Center failed to reasonably consider and address the
alternative of identifying criminal street gang members through their
affiliations with known, established criminal street gangs rather than
through their status as Juggalos.
199. Insofar as the DOJ, FBI and Center have classified the Juggalos as a “criminal
street gang” under federal law, that classification is arbitrary and capricious under the APAǤ
WHEREFORE, Plaintiffs request that this Court enter an order under the APA
holding unlawful and setting aside the 2011 Assessment and any other classification by the
DOJ, FBI or the Center designating the Juggalos as a criminal street gang because these
governmental actions are arbitrary and capricious. For the same reason, Plaintiffs further
request that the Court enjoin Defendants from taking action in the future that would brand
Juggalos, as a group, as a criminal street gang based on the actions of a relatively few
people who may identify as Juggalos.
COUNT 5: Administrative Procedure Act
(Agency Action that Fails to Observe Procedures Required by Law)
200. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
201. Plaintiffs assert this claim under § 706(2)(D) of the APA, which authorizes
this Court to “hold unlawful and set aside agency action, findings, and conclusions found to
be Ǥ Ǥ Ǥ without observance of procedure required by lawǤ”
-32-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 33 of 38 Pg ID 33
202. The DOJ, FBI and Center must comply with the provisions in the Code of
Federal Regulations that provide “operating principles” for “Criminal Intelligence Systems
Operating PoliciesǤ” 28 CǤFǤRǤ § 23Ǥ20Ǥ
203. The purpose of the “operating principles” is to “assure that all criminal
intelligence systems operating through support under the Omnibus Crime Control and Safe
Streets Act of 1968 . . . are utilized in conformance with the privacy and constitutional
rights of individualsǤ” 28 CǤFǤRǤ § 23Ǥ1Ǥ The “operating principles” are intended to confer
important procedural benefits upon individuals.
204. Under 28 CǤFǤRǤ§ 23Ǥ20(b): “A project shall not collect or maintain criminal
intelligence information about the political, religious, or social views, associations, or
activities of any individual or any group, association, corporation, business, partnership, or
other organization unless such information directly relates to criminal conduct or activity
and there is reasonable suspicion that the subject of the information is or may be involved
in criminal conduct or activityǤ”
205. Pursuant to 28 CǤFǤRǤ § 23Ǥ20(c), “Reasonable Suspicion or Criminal Predicate
is established when information exists which establishes sufficient facts to give a trained
law enforcement or criminal investigative agency officer, investigator, or employee a basis
to believe that there is a reasonable possibility that an individual or organization is
involved in a definable criminal activity or enterprise. In an interjurisdictional intelligence
system, the project is responsible for establishing the existence of reasonable suspicion of
criminal activity either through examination of supporting information submitted by a
participating agency or by delegation of this responsibility to a properly trained
-33-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 34 of 38 Pg ID 34
participating agency which is subject to routine inspection and audit procedures
established by the projectǤ”
206. Under 28 CǤFǤRǤ § 23Ǥ20(l): “A project shall make assurances that there will be
no harassment or interference with any lawful political activities as part of the intelligence
operationǤ”
207. The Juggalos are a “group” or “association” within the meaning of 28 CǤFǤRǤ
§ 23.20(b).
208. The Plaintiffs are “individuals” within the meaning of 28 C.F.R. § 23.20(b).
209. The DOJ, FBI and Center have collected and/or maintained
“criminal
intelligence information” about the Juggalos’
“political, religious, or social views,
associations, or activities,” within the meaning of 28 CǤFǤRǤ § 23.20(b).
210. Upon information and belief, the DOJ, FBI and Center have collected and/or
maintained “criminal intelligence information” about some or all of the Plaintiffs’ “political,
religious, or social views, associations, or activities,” within the meaning of 28 CǤF.R.
§ 23.20(b), because the Plaintiffs are Juggalos.
211. Upon information and belief, the DOJ, FBI and Center have collected
purported “criminal intelligence information” about the Juggalos and/or the Plaintiffs that
fails to properly relate to definable criminal conduct or activity.
212. The DOJ, FBI and Center have failed to provide - and upon information and
belief they do not have - sufficient information to support a “reasonable suspicion” or a
“reasonable possibility” that the Juggalos as a group “[areȐ involved in a definable criminal
activity or enterprise,” within the meaning of 28 CǤFǤRǤ § 23Ǥ20(c)Ǥ
-34-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 35 of 38 Pg ID 35
213. The DOJ, FBI and Center have failed to provide - and upon information and
belief they do not have - sufficient information to support a “reasonable suspicion” or a
“reasonable possibility” that the Plaintiffs:
a.
“[areȐ involved in a definable criminal activity or enterprise,” within
the meaning of 28 C.F.R. § 23.20(c); or
b.
“[areȐ or may be involved in criminal conduct or activity,” within the
meaning of 28 C.F.R. § 23.20(b).
214. The DOJ, FBI and Center have failed to provide - and upon information and
belief they do not have - sufficient information to show that they have made “assurances
that there will be no harassment or interference with any lawful political activities as part
of the intelligence operation,” within the meaning of 28 CǤFǤRǤ § 23Ǥ20(l)Ǥ
WHEREFORE, Plaintiffs request that this Court enter an order under the APA:
(a) requiring the DOJ to expunge and eliminate purported
“criminal
intelligence information” concerning the Juggalos from NGIC Online, Law
Enforcement Online, and any other gang intelligence database under its
control;
(b) prohibiting and enjoining the DOJ, FBI or the Center from gathering
purported “criminal intelligence information” about the Juggalos, as a whole
group, unless and until the DOJ has sufficient facts to give a trained law
enforcement or criminal investigative agency officer, investigator, or
employee a basis to believe that the Juggalos, as a whole group, are involved
in a definable criminal activity or enterprise; and
(c) prohibiting and enjoining the DOJ, FBI or the Center from including within
its collection of criminal intelligence information any information about an
individual’s status as a Juggalo, in general, unless and until the DOJ has
sufficient facts to give a trained law enforcement or criminal investigative
agency officer, investigator, or employee a basis to believe that the Juggalos,
as a whole group, are involved in a definable criminal activity or enterprise.
COUNT 6: Declaratory Judgment Act
215. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
-35-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 36 of 38 Pg ID 36
216. Plaintiffs assert this claim for declaratory relief under the Declaratory
Judgment Act, 28 U.S.C. § 2201, which authorizes the Court to “declare the rights and other
legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as suchǤ”
217. Upon information and belief, the DOJ and FBI currently have collected the
most complete repositories within the United States of information from international,
federal, state and local governmental authorities on the subject of whether Juggalos are
involved in any activity related to criminal street gangs.
218. For the reasons set forth above, the information referenced in the
immediately preceding paragraph is not sufficient
a.
to overcome the First Amendment’s prohibition here on classifying
the Juggalos as any kind of criminal “gangǤ”
b.
to overcome the Due Process Clause’s prohibition here on the vague
and otherwise constitutionally deficient classification of the Juggalos
as any kind of criminal “gangǤ”
WHEREFORE, Plaintiffs request that this Court enter a declaratory judgment holding
that federal designations of the Juggalos, as a whole, as any kind of criminal “gang” are
unlawful because they violate the First and Fifth Amendments.
PRAYER FOR RELIEF
For the reasons set forth above, Plaintiffs respectfully request that this Court:
(1) Enter an order under the APA:
(a) holding unlawful and setting aside the 2011 Assessment and any other
classification by the DOJ, FBI or the Center of the Juggalos, as a whole, as a
-36-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 37 of 38 Pg ID 37
“gang” or a
“hybrid gang” because those governmental actions are
unconstitutional;
(b) holding unlawful any classifications by the DOJ, FBI or the Center of the
Juggalos, as a whole, as a “criminal street gang” because those governmental
actions are arbitrary and capricious;
(c) requiring the DOJ to expunge and eliminate purported
“criminal
intelligence information” concerning the Juggalos from NGIC Online, Law
Enforcement Online, and any other gang intelligence database under its
control, because such information was collected and maintained in violation
of the legally required procedures;
(d) prohibiting and enjoining the DOJ, FBI and the Center from gathering
purported “criminal intelligence information” about the Juggalos, as a whole,
unless and until the DOJ has sufficient facts to give a trained law enforcement
or criminal investigative agency officer, investigator, or employee a basis to
believe that the Juggalos, as a whole, are involved in a definable criminal
activity or enterprise; and
(e) prohibiting and enjoining the DOJ, FBI and the Center from including
within its collection and/or database of criminal intelligence information any
information about an individual’s status as a Juggalo, in general, unless and
until the requirements of subparagraph (d) above are met.
(2) Declare, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that the
governmental designation of “Juggalos,” as a whole, as a “gang” or a “hybrid gang” is
unconstitutional under the First and Fifth Amendments to the United States
Constitution.
(3) Award costs and reasonable attorneys’ feesǤ
(4) Grant such other and further relief as the Court deems just and proper.
Respectfully submitted,
/s/ Saura J. Sahu
/s/ Howard Hertz
Saura J. Sahu (P69627)
Howard Hertz (P26653)
Miller, Canfield, Paddock and Stone, P.L.C.
Elizabeth C. Thomson (P53579)
Cooperating Counsel, American Civil
Hertz Schram, P.C.
Liberties Union Fund of Michigan
1760 South Telegraph Road
150 West Jefferson, Suite 2500
Bloomfield Hills, Michigan 48302
Detroit, Michigan 48226
(248) 335-5000
(313) 963-6420
hhertz@hertzschram.com
sahu@millercanfield.com
-37-
2:14-cv-10071-RHC-PJK Doc # 1 Filed 01/08/14 Pg 38 of 38 Pg ID 38
Michael J. Steinberg (P43085)
Farris F. Haddad (P71538)
Daniel S. Korobkin (P72842)
Farris F. Haddad & Associates, P.C.
Kary L. Moss (P49759)
26100 American Drive, Suite 605
American Civil Liberties Union
Southfield, Michigan 48034
Fund of Michigan
(888) 818-1646
2966 Woodward Avenue
Farris@CallFarris.com
Detroit, Michigan 48201
(313) 578-6814
Attorneys for Plaintiffs Bruce and Utsler
msteinberg@aclumich.org
dkorobkin@aclumich.org
Attorneys for Plaintiffs
Parsons, Bradley, Gandy and Hellin
Dated: January 8, 2014
21394489
-38-