Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 1 of 28 Page ID #:1 1 CHARLES D. SWIFT, TX SB# 24091964, Pro Hac Vice pending E-Mail: cswift@clcma.org 2 CHRISTINA A. JUMP, TX SB# 00795828, Pro Hac Vice pending E-Mail: cjump@clcma.org 3 Constitutional Law Center for Muslims in America (CLCMA) 4 833 E. Arapaho Rd., Ste. 102 5 Richardson, Texas 75081 Telephone: 972.914.2507; Facsimile: 972.692.7454 6 7 JEFFREY S. RANEN, CA SB# 224285 E-Mail: Jeffrey.Ranen@lewisbrisbois.com 8 PARISA KHADEMI, CA SB# 271897 9 E-Mail: Parisa.Khademi@lewisbrisbois.com MARGARET R. WRIGHT, CA SB# 312272 10 E-Mail: Margaret.Wright@lewisbrisbois.com 11 Lewis Brisbois Bisgaard & Smith LLP 633 West 5th Street, Suite 4000 12 Los Angeles, California 90071 13 Telephone: 213.250.1800; Facsimile: 213.250.7900 14 Attorneys for Plaintiff 15 16 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 17 18 19 HAISAM ELSHARKAWI, Plaintiff, 20 21 vs. Case No.: _________________ COMPLAINT FOR DAMAGES 22 UNITED STATES OF AMERICA; 23 KIRSTJEN NIELSEN, THE 24 DEPARTMENT OF HOMELAND SECURITY, in her official capacity; 25 KEVIN K. MCALEENAN, CUSTOMS 26 AND BORDER PROTECTION, in his 27 official capacity; LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 28 OFFICER FNU RIVAS, in his individual 4839-1716-2105.1 1 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 2 of 28 Page ID #:2 1 capacity; 2 OFFICER FNU RODRIGUEZ, in his individual capacity; 3 OFFICER FNU STEVENSON, in his individual capacity; 4 OFFICER JENNIFER LNU, in her 5 individual capacity, Defendants. 6 7 PLAINTIFF’S ORIGINAL COMPLAINT 8 Plaintiff Haisam Elsharkawi, through his attorneys, hereby files this 9 Plaintiff’s Original Complaint, alleging violations of the First, Fourth, and Fifth 10 Amendments of the U.S. Constitution, and the Federal Tort Claims Act, and in 11 support thereof shows the following: 12 I. Nature of the Action 13 1. Plaintiff Haisam Elsharkawi (“Plaintiff” or “Mr. Elsharkawi”) is a 14 United States citizen of Egyptian descent residing in Orange County. 15 Mr. Elsharkawi was departing the United States for religious pilgrimage to Saudi 16 2. Arabia when U.S. Customs and Border Protection (“CBP”) agents1 17 stopped Mr. Elsharkawi for an extensive, non-routine search as he boarded his 18 outbound flight. On information and belief, neither individualized nor reasonable 19 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 1 Though Mr. Elsharkawi is certain some of the agents involved were CBP agents, others introduced themselves simply as agents of the Department of Homeland Security (“DHS”), which could include Immigrations and Customs Enforcement 21 (“ICE”) and Homeland Security Investigations (“HSI”) agents, among others. 20 4839-1716-2105.1 2 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 3 of 28 Page ID #:3 1 suspicion supported this search. During this search, CBP agents so aggressively 2 questioned Mr. Elsharkawi that he felt compelled to request an attorney. The CBP 3 agents also searched Mr. Elsharkawi’s checked and carry-on luggage, and asked him 4 to unlock his cellphone. When Mr. Elsharkawi exercised his right to refuse to 5 unlock his phone, the CBP agents handcuffed him, took him to a holding cell, and 6 detained him until he had no reasonable alternative but to unlock his cellphone. 7 Mr. Elsharkawi suffered physical and emotional harm and missed his scheduled 8 flight as a result of the CBP agents’ actions. 3. 9 DHS and its constituent agencies stopped Mr. Elsharkawi, searched and 10 reviewed the data accessible through and/or contained on his electronic devices. 11 Upon information and belief, DHS and its constituent agencies retained and shared 12 Mr. Elsharkawi’s digital information pursuant to DHS policies regarding search of 13 electronic devices at the border. 4. 14 Mr. Elsharkawi brings this action against Defendants Kirstjen Nielsen 15 and Kevin K. McAleenan in their official capacities to challenge the 16 constitutionality of the Policy under the First, Fourth, and Fifth Amendments of the 17 U.S. Constitution. Mr. Elsharkawi further seeks redress against Defendant the 18 United States under the Federal Tort Claims Act, and against Defendants Officers 19 Rivas, Rodriguez, Stevenson, and Jennifer in their individual capacities for 20 violations of 42 U.S.C. § 1981. LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 / / / 4839-1716-2105.1 3 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 4 of 28 Page ID #:4 1 2 II. Jurisdiction and Venue 5. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the 3 Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), 28 U.S.C. §§ 2201 and 4 2202, and Federal Rules of Civil Procedure 57 and 65 authorize declaratory and 5 injunctive relief in this matter. 6 6. Venue is proper in the Central District of California under 28 U.S.C. § 7 1391(e)(1) because Mr. Elsharkawi resides in this District, specifically Orange 8 County, and a substantial part of the events giving rise to Mr. Elsharkawi’s claims 9 occurred in this District, specifically Los Angeles County. 10 11 III. Parties 7. Plaintiff Haisam Elsharkawi is a U.S. citizen residing in Orange 12 County, California. He is of Egyptian descent and is a practicing Muslim. 13 8. The United States of America is a sovereign entity that has waived its 14 immunity in certain circumstances under the Federal Torts Claims Act, 28 U.S.C. §§ 15 1346(b) & 2671 et seq. 16 9. Kirstjen Nielsen is Secretary of the Department of Homeland Security 17 (“DHS”). As head of DHS, Secretary Nielsen has authority over all DHS policies, 18 procedures, and practices related to border searches, including those challenged in 19 this lawsuit. Defendant Nielsen is sued in her official capacity. 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 10. Kevin K. McAleenan is Acting Commissioner of CBP. Acting 21 Commissioner McAleenan has authority over all CBP policies, procedures, and 4839-1716-2105.1 4 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 5 of 28 Page ID #:5 1 practices relating to border searches, including those challenged in this lawsuit. 2 Defendant McAleenan is sued in his official capacity. 11. 3 The CBP and DHS Officers involved in the search, interrogation, and 4 detention of Mr. Elsharkawi include, but are not limited to, Officer FNU Rivas, 5 Officer FNU Rodriguez, Officer FNU Stevenson, and Officer Jennifer LNU.2 These 6 Officers are sued in their individual capacities. 7 IV. Relevant Policies 12. 8 CBP promulgated a policy in October 2009, CBP Directive No. 3340- 9 049,3 regarding the search of electronic devices at the U.S. border (the “2009 10 Policy”). The 2009 Policy permitted CBP to search travelers’ electronic devices at 11 the border without individualized or reasonable suspicion, and to copy, retain, and 12 share the information found in such devices. The 2009 Policy, by its terms, applied 13 equally to those entering and exiting the United States. 13. 14 On January 4, 2018, CBP issued a directive superseding the 2009 15 Policy, CBP Directive No. 3340-049A (“2018 Policy”), purporting to clarify the 16 17 18 19 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 2 Plaintiff Mr. Elsharkawi reserves the right to amend this Complaint to include claims against as yet unidentified Defendants, should Plaintiff uncover facts during discovery that would support such claims. 3 The U.S. Immigration and Customs Enforcement (“ICE”) has promulgated a comparable directive permitting it to search and copy electronic devices, as ICE has concurrent border search powers with CBP. See generally ICE Directive No. 7-6.1 (Border Searches of Electronic Devices), U.S. Immigration and Customs Enforcement (Aug. 18, 2009) (scheduled to be reviewed on Aug. 18, 2012) (hereinafter cited as “ICE Policy”). The ICE Policy has not been updated as of the filing of this Complaint, however, the 2018 Policy section 2.7 cites the ICE Policy and states “when CBP, seizes, or retains electronic devices, or copies of information therefrom, and conveys such to ICE for analysis, investigation, and disposition (with appropriate documentation), the conveyance to ICE is not limited by the terms of this [Policy] and ICE policy will apply upon receipt by ICE.” 4839-1716-2105.1 5 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 6 of 28 Page ID #:6 1 “standard operating procedures for searching, reviewing, retaining, and sharing 2 information contained in [electronic devices] subject to inbound and outbound 3 border searches by [CBP].”4 14. 4 The stated purposes of the 2018 Policy are as follows: (1) “detect 5 evidence relating to terrorism and other national security matters, human and bulk 6 cash smuggling, contraband, and child pornography”; (2) “reveal information about 7 financial and commercial crimes, such as those relating to copyright, trademark, and 8 export control violations”; and (3) “determin[e] . . . an individual’s intentions upon 9 entry and provide additional information relevant to admissibility under the 10 immigration laws.” The 2018 Policy’s purpose also states searches incident to the 11 2018 Policy “can be vital to risk assessments that otherwise may be predicated on 12 limited or no advance information about a given traveler or item, and they can 13 enhance critical information sharing with, and feedback from, elements of the 14 federal government responsible for analyzing terrorist threat information.”5 15. 15 The 2018 Policy’s search provisions mirror the 2009 Policy’s 16 analogous provisions, except that the 2018 Policy purports (a) to clarify and make 17 uniform the 2009 Policy by distinguishing between “basic” and “advanced” 18 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4 2018 Policy, § 1 (Purpose). Notably, the 2018 Policy and 2009 Policy are substantially the same: their stated purposes and their substantive provisions 19 governing search, seizure, retention, and sharing of data on electronic devices at the border are nearly identical when read side-by-side. Plaintiff provides parallel to the relevant sections of each of the Policies in the margin below. 20 citations 5 Compare 2018 Policy, § 1, with 2009 Policy, § 1. With the exception of the wording of the third numbered purpose identified in the text and the risk assessment 21 language, the Policies’ purposes are identical. 4839-1716-2105.1 6 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 7 of 28 Page ID #:7 1 searches, and (b) to confirm and make explicit pre-existing practices developed 2 under the 2009 Policy for handling cloud-based data.6 16. 3 Specifically, the 2018 Policy requires reasonable suspicion for 4 “advanced searches,”7 but permits any other kind of search “with or without 5 suspicion.” Moreover, an advanced search in furtherance of a “national security 6 concern” requires no level of suspicion at all.8 17. 7 Further, the 2018 Policy “formally clarifies that a border search 8 includes an examination of only the information that is resident upon the device and 9 accessible through the device’s operating system or through other software, tools, or 10 applications.”9 In other words, CBP confirmed in the 2018 Policy its position that, 11 “under no circumstances may Officers ‘intentionally use the device [searched] to 12 access information that is solely stored remotely’”—i.e., cloud-based data. The 13 6 Compare 2018 Policy, § 5.1 (Border Searches), with 2009 Policy, § 5.1 (same). The 2018 CBP Policy defines an “advanced search” as “any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” 8 Although the 2018 CBP Policy purports to require “reasonable suspicion” for an advanced search, it also permits such a search, seemingly without reasonable suspicion, when a CBP Officer confronts a “national security concern.” The Policy does not expressly define “national security concern.” Instead, it provides only two examples of situations that might lead a CBP Officer to conclude a “national security concern” exists: “existence of a relevant national security-related lookout in combination with other articulable factors as appropriate, or the presence of an individual on a government-operated and government-vetted terrorist watch list.” It is unclear on the face of the Policy—particularly in light of the provided examples—how an officer might conclude a device’s digital content poses a national security concern without reasonable suspicion of the same. See 2018 Policy, § 5.1.4; see also id. § 1 (suggesting CBP may conduct such searches to inform “risk assessments that otherwise may be predicated on limited or no advance information about a given traveler or item”). 9 Privacy Impact Assessment Update for CBP Border Searches of Electronic Devices, DHS/CBP/PIA-008(a) (Jan. 4, 2018), at 8 (citing 2018 Policy, § 5.1.2). 7 14 15 16 17 18 19 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 4839-1716-2105.1 7 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 8 of 28 Page ID #:8 1 federal government’s internal guidance has indicated since as early as 2014 that “a 2 routine border search ‘may not be stretched’” 10 to cover cloud-based data, and CBP 3 acknowledged this restriction in April 2017.11 18. 4 The 2018 Policy also permits CBP to seize an electronic device (and its 5 data), retain the device or information for review, and share copies of information 6 discovered as a result with other federal, state, and foreign agencies.12 19. 7 Specifically, the 2018 Policy permits CBP to seize “electronic devices, 8 or copies of information contained therein, . . . in order to perform a thorough border 9 search.” It sets time frames for seizure of the device and for destruction of any data 10 copied therefrom; CBP may extend these time frames at its discretion. However, 11 CBP may also retain a device or copies of its information if it finds probable cause 12 exists to seize the device or the information. “Without probable cause . . . , CBP 13 may retain only information relating to immigration, customs, and other 14 enforcement matters if such retention is consistent with the applicable system of 15 records notice.” 16 17 18 19 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 10 Shappert, Gretchen C.F., The Border Search Doctrine: Warrantless Searces of Electronic Devices after Riley v. California, UNITED STATES ATTORNEYS’ BULLETIN: BORDER ISSUES, at 13 (observing under Riley v. California, 134 S. Ct. 2473 (2014), that “[i]f a search incident to arrest ‘may not be stretched’ to cover cloud data, then a routine border search ‘may not be stretched’ either”). 11 In response to June 20, 2017 Due Diligence Questions for Kevin McAleenan from Senator Wyden, McAleenan explained “CBP does not access information found only on remote servers through an electronic device presented for examination” and referencing “a nationwide muster on April 2017 reminding [CBP] officers of this precise aspect of CBP’s border search policy.” See http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/170712-cpb-wydenletter.pdf, at Questions 1.c., 4. 12 Compare 2018 Policy, §§ 5.4-5.5, with 2009 Policy, §§ 5.3-5.4. 4839-1716-2105.1 8 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 9 of 28 Page ID #:9 20. 1 The 2018 Policy permits CBP to share devices and copies of 2 information therein with federal, state, local, and foreign law enforcement agencies. 3 Once CBP has shared a device or its data, the 2018 Policy does not guarantee the 4 return of the device or its data from the other agency. 21. 5 The 2018 Policy does not authorize detention of an individual whose 6 electronic device is being searched.13 22. 7 CBP has selectively released information about the searches it conducts 8 and has failed to publicize basic information about its enforcement of either of the 9 Policies.14 For example, CBP has not publicized the number of advanced (as 10 opposed to “basic”) searches it has conducted, the number of phones it has detained, 11 the number of copies of information it has made, or the number of times it has 12 shared such information with other entities. At the time of this filing, CBP has 13 merely released information about the overall number of searches conducted 14 pursuant to the 2009 Policy.15 15 13 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW The 2009 Policy did not authorize detention of an individual either. See generally 16 2009 Policy. 14 CBP has in place systems for monitoring its enforcement of the Policies, and keeps data on this enforcement. See 2018 Policy, § 6 (“CBP Headquarters will 17 continue to develop and maintain appropriate mechanisms to ensure that statistics regarding border searches of electronic devices, and the results thereof, can be 18 generated from CBP systems using data elements entered by Officers pursuant to this Directive.”). 15 U.S. Customs and Border Protection, CBP Releases Statistics on Electronic 19 Device Searches (Apr. 11, 2017), https://www.cbp.gov/newsroom/national-mediarelease/cbp-releases-statistics-electronic-device-searches-0; U.S. Customs and 20 Border Protection, CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics (Jan. 5, 2018), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated21 border-search-electronic-device-directive-and. 4839-1716-2105.1 9 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 10 of 28 Page ID #:10 23. 1 Plaintiff requests that the Court take judicial notice of both the 2009 2 Policy, the 2018 Policy, and the ICE Policy. 3 V. Electronic Devices 24. 4 Electronic devices are qualitatively and quantitatively different from 5 any other type of object a person might carry with them across the border, such as a 6 briefcase, luggage, or a backpack. 25. 7 Almost every person crossing the U.S. border carries a cellphone or 8 other electronic device in tow, as cellphone use is pervasive and essential. As of 9 January 10, 2018, 95% of Americans owned a cellphone (with 77% owning a 10 smartphone), and 53% owned a tablet computer.16 These devices are multi11 functional, serving as telephones, computers, cameras, video players, rolodexes, 12 calendars, tape recorders, libraries, diaries, albums, televisions, maps, or 13 newspapers. 26. 14 The modern cellphone has immense storage capacity, with the ability to 15 hold 256GB of data, if not more.17 Many travelers do not solely travel with a 16 cellphone, but have their laptops and tablets with them as well, thereby enlarging the 17 amount of data they carry across the border. Further, with cloud-based data, the 18 amount of storage accessible through the modern cellphone is almost limitless. 19 16 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW PEW RESEARCH CENTER, Mobile Fact Sheet, http://www.pewinternet.org/fact20 sheet/mobile/ (Jan. 31, 2018). 17 APPLE INC., iPhone 8 Tech Specs, https://www.apple.com/iphone-8/specs/ 21 (accessed Feb. 1, 2018). 4839-1716-2105.1 10 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 11 of 28 Page ID #:11 27. 1 Cellphones today contain an immense amount of personal, expressive, 2 and associational information. These devices collect in one place many distinct 3 types of information that reveal much more in combination than any isolated 4 record. Further, the depth of these records spans years. Indeed, individuals may not 5 even be aware of all the information contained in their devices, as “deleted” items 6 can remain in the device in other forms. 28. 7 The use of electronic devices has become essential, especially during 8 travel, such that to leave one’s electronic devices at home is improbable, 9 irresponsible, and difficult. Personal and professional communications, daily task10 managing, and record-keeping overwhelmingly take place electronically in today’s 11 world. 12 VI. Facts 29. 13 On February 9, 2017, Mr. Elsharkawi arrived at Los Angeles 14 International Airport (“LAX”) to board a flight via Turkish Airlines to Saudi Arabia 15 for religious pilgrimage.18 30. 16 Mr. Elsharkawi printed off his boarding pass and checked in one bag, 17 with no issues. 18 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 18 Mr. Elsharkawi has, in the past, regularly traveled to Egypt to visit his family in 2009, 2013, and 2016. At all times, he traveled with his electronic devices. 19 Mr. Elsharkawi hopes to visit family abroad again this summer along with completing the pilgrimage CBP interfered with previously. At the very least, Mr. Elsharkawi will travel to Saudi Arabia to complete the Hajj in accordance with 20 his sincerely held religious belief that such pilgrimage is religiously obligatory upon him at least once in his lifetime. He intends to continue to travel abroad with his electronic devices, as traveling without them would cause great hardship—he would 21 be unable to communicate with his family, unable to conduct business, etc. 4839-1716-2105.1 11 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 12 of 28 Page ID #:12 1 31. Mr. Elsharkawi does not believe he had a Secondary Security 2 Screening Selection (“SSSS”) designation from the Transportation Security 3 Administration (“TSA”) on his boarding pass that day, which usually causes an 4 individual to receive extra security screening. Mr. Elsharkawi believes that he has 5 never had an SSSS designation on any of his boarding passes. 6 32. Mr. Elsharkawi passed through the TSA security screening with no 7 issues, as well. 8 33. Mr. Elsharkawi then waited at the gate to board his flight. 9 34. Mr. Elsharkawi was in the process of boarding his flight when he was 10 pulled out of the boarding line by CBP Officer FNU Rivas (“Officer Rivas”). 11 35. Officer Rivas asked Mr. Elsharkawi where he was traveling to, how 12 long his stay was planned for, if he was meeting anyone during his stay, and how 13 much currency he currently had on him. 14 36. Mr. Elsharkawi had a little over $2,500 on him, which he accurately 15 declared. 16 37. After Mr. Elsharkawi answered all of these questions, Officer Rivas 17 asked Mr. Elsharkawi to follow him to a table, where Officer Rivas repeated the 18 same questions while searching his carry-on bag. 19 38. Officer Rivas then proceeded to ask Mr. Elsharkawi about his previous 20 visits to Egypt and the reasons for those visits, what family Mr. Elsharkawi has in LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 Egypt and Saudi Arabia, if any, when Mr. Elsharkawi had initially arrived to the 4839-1716-2105.1 12 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 13 of 28 Page ID #:13 1 U.S., and when Mr. Elsharkawi had gained his citizenship. Mr. Elsharkawi calmly 2 and politely answered all questions, despite many being repetitive. 3 39. As the questioning continued and became increasingly aggressive, 4 Mr. Elsharkawi asked if there was a problem and whether he needed an attorney. 5 Officer Rivas then accused Mr. Elsharkawi of hiding something because of his 6 request for an attorney. 7 40. Five other CBP officers then approached the table where 8 Mr. Elsharkawi was being questioned. 9 41. One of the officers, Officer FNU Rodriguez (“Officer Rodriguez”), 10 asked Mr. Elsharkawi what his problem was and stated that the officers were just 11 doing their job. Officer Rodriguez further threatened Mr. Elsharkawi that he should 12 cooperate or he would miss his flight. Mr. Elsharkawi responded that he was merely 13 asking if he needed an attorney. Officer Rodriguez reiterated Mr. Elsharkawi’s risk 14 of missing his flight if he did not cooperate with the questioning. Officer Rodriguez 15 then told Mr. Elsharkawi to put his hands on his head and, following this 16 admonishment, searched Mr. Elsharkawi. Officer Rodriguez pulled out 17 Mr. Elsharkawi’s phone from his pocket and asked him to unlock it. Mr. Elsharkawi 18 responded that he was not going to unlock his phone and that he refused to answer 19 any further questions until he had an attorney. 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 42. At this point, Mr. Elsharkawi’s checked bag was brought to the gate by 21 another CBP officer. 4839-1716-2105.1 13 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 14 of 28 Page ID #:14 1 43. Officer Rodriguez told Mr. Elsharkawi that if he refused to unlock the 2 phone, CBP would seize it. Mr. Elsharkawi responded that he would not unlock it, 3 and was not giving permission for his phone to be seized. 4 44. Another CBP officer told Mr. Elsharkawi that if he cooperated, he 5 would be released in no time. Mr. Elsharkawi responded that he wanted his rights, 6 he did not want to be treated as a criminal for no apparent reason, and that he 7 wanted an attorney. The CBP officer told Mr. Elsharkawi he was not under arrest so 8 he had no right to an attorney. Mr. Elsharkawi then requested his release. 9 45. Officer Rivas ignored the request and began searching 10 Mr. Elsharkawi’s carry-on bag again. 11 46. Mr. Elsharkawi asked for his phone back to make a call. Officer 12 Rodriguez responded by stating that Mr. Elsharkawi had an attitude, was obviously 13 racist, and had a problem with the uniform of CBP officers. Officer Rodriguez told 14 Mr. Elsharkawi to put his hands behind his back, and handcuffed him. 15 47. Officer Rodriguez, along with two other CBP officers, then began 16 pulling Mr. Elsharkawi into an elevator. 17 48. At this point, Mr. Elsharkawi feared for his safety. He turned to a 18 nearby flight attendant and yelled to her, “Please call a lawyer for me!” 19 49. When Mr. Elsharkawi was taken into the elevator and reached another 20 floor of the airport, he again loudly yelled out, “Someone help, someone call a LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 lawyer for me. They said I’m not under arrest even though I’m handcuffed and they 4839-1716-2105.1 14 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 15 of 28 Page ID #:15 1 are taking me somewhere that I don’t know and will not let me have a lawyer.” 2 50. Officer Rodriguez then pushed Mr. Elsharkawi’s arms up to his neck, 3 to the point that Mr. Elsharkawi feared they would break. 4 51. One of the CBP officers stated that Mr. Elsharkawi was causing a lot of 5 problems, and recommended taking him downstairs. 6 52. Mr. Elsharkawi was taken through a room, where again he yelled out. 7 53. Mr. Elsharkawi was then placed in a holding cell, with one of his 8 hands handcuffed to a bench. 9 54. After some time passed, Officer FNU Stevenson (“Officer Stevenson”) 10 came to Mr. Elsharkawi, introduced himself as a supervisor, and asked 11 Mr. Elsharkawi why he was not cooperating. Officer Stevenson stated that they had 12 not wanted things to get to this point, they did not single Mr. Elsharkawi out, and 13 they were just protecting the country. Officer Stevenson explained that they would 14 only ask him a few questions, and if Mr. Elsharkawi unlocked his phone, he would 15 be free to go. Mr. Elsharkawi responded that he would not unlock his phone because 16 it was an invasion of his privacy, and that the CBP officers had already made him 17 miss his flight. Officer Stevenson stated that the airline would refund his flight 18 because it knew Mr. Elsharkawi was with CBP officers, or it would rebook the flight 19 for tomorrow. Officer Stevenson further explained that they needed to check 20 Mr. Elsharkawi’s phone because CBP protects the country by checking for LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 narcotics, child pornography, and terrorism. 4839-1716-2105.1 15 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 16 of 28 Page ID #:16 55. 1 Mr. Elsharkawi has never been charged with, or investigated for, 2 allegations of narcotics or child pornography. He has never been charged with any 3 terrorism-related offenses. Therefore, Mr. Elsharkawi remained unaware of why he 4 was being held and unable to leave. 56. 5 Officer Stevenson later returned, asking Mr. Elsharkawi if he was 6 willing to come and answer a few questions while they searched his bags in front of 7 him. 8 57. Mr. Elsharkawi left the holding cell and was questioned by Officer 9 Stevenson again, while Officer Rivas searched his bags. 10 58. The officers expressed no interest in searching his iPad, despite seeing 11 it and removing it while searching his bags. 12 59. Officer Stevenson questioned Mr. Elsharkawi about his work, whether 13 he attended school, his address, how he became a citizen, his wife and her work and 14 school, his children, how old they were, their names and the schools they attended. 15 Officer Stevenson again asked Mr. Elsharkawi to unlock his phone. Mr. Elsharkawi 16 again refused. Officer Stevenson informed Mr. Elsharkawi that he was seizing 17 Mr. Elsharkawi’s phones. 18 60. After more time passed, Officer Jennifer LNU (“Officer Jennifer”) 19 approached Mr. Elsharkawi and introduced herself as a DHS officer. Officer 20 Jennifer stated DHS was protecting the country, she wanted to ask a few questions, LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 and she wanted Mr. Elsharkawi to unlock his phone. Mr. Elsharkawi again 4839-1716-2105.1 16 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 17 of 28 Page ID #:17 1 responded that he would not unlock his phone. Officer Jennifer stated that was fine, 2 but they would, as a result, seize his phone and send it back to him in thirty days. 3 Officer Jennifer asked Mr. Elsharkawi the same questions Officer Stevenson had. 4 Officer Jennifer asked Mr. Elsharkawi his mailing address and began putting his 5 phones in a bag, reiterating they would seize them and send them back to him. 6 61. Mr. Elsharkawi then asked Officer Jennifer “Are you okay with some 7 stranger taking your phone and looking through your phone and pictures?” Officer 8 Jennifer responded that she would not be okay with it, but she would do it if it were 9 about someone doing his or her job to protect the country. 10 62. Mr. Elsharkawi stated that he had pictures of his wife without her 11 headscarf on his phone, and this was an additional reason why he did not want his 12 phone searched. 13 63. Officer Jennifer offered to search the phone herself. Mr. Elsharkawi 14 asked how long the search would take and Officer Jennifer responded that it would 15 take about ten to fifteen minutes. 16 64. Defeated, and seeing no alternative, Mr. Elsharkawi felt he had no 17 choice but to acquiesce and unlocked his phone. 18 65. Officer Jennifer then searched his phone and began questioning him 19 regarding his eBay and Amazon accounts, where he got merchandise for his e20 commerce business, and what swap meets he frequents. Officer Jennifer also LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 commented that Mr. Elsharkawi had a lot of apps and a lot of unread emails on his 4839-1716-2105.1 17 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 18 of 28 Page ID #:18 1 phone. 66. 2 Officer Jennifer asked Mr. Elsharkawi to unlock his other phone, which 3 had been in his carry-on bag. Mr. Elsharkawi responded that it was not locked. 4 Officer Jennifer searched the second phone and asked why he did not have anything 5 on this phone. Mr. Elsharkawi responded that he recently got it for business, and he 6 usually only uses it for receiving phone calls. 67. 7 Officer Jennifer then informed him she was done and he was free to 8 take his things and leave. 68. 9 After being interrogated for four hours, Mr. Elsharkawi missed his 10 flight. Turkish Airlines refused to give him a refund, contrary to Officer Stevenson’s 11 representation. 69. 12 Mr. Elsharkawi has exhausted all available administrative remedies, by 13 filing all appropriate complaints with DHS and CBP. Specifically, Mr. Elsharkawi 14 submitted an application to the DHS Traveler Redress Inquiry Program (“DHS 15 TRIP”) on August 4, 2017, a complaint to the CBP Information Center on August 1, 16 2017, a report to the DHS Office of Inspector Genera (“DHS OIG”) on August 1, 17 2017, and a Civil Rights Complaint to the DHS Office for Civil Rights and Civil 18 Liberties (“DHS OCRCL”) on August 15, 2017. To date, Mr. Elsharkawi has 19 received no responses from the relevant agencies. 20 / / / LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 / / / 4839-1716-2105.1 18 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 19 of 28 Page ID #:19 1 70. Pursuant to 28 U.S.C. § 2675 and 28 C.F.R. § 14.2(a), Mr. Elsharkawi 2 presented his FTCA claims to DHS and CBP via letter with a completed Standard 3 Form 95 on August 1, 2017. To date, Mr. Elsharkawi has received no response. 4 71. Mr. Elsharkawi will be irreparably harmed absent injunctive relief from 5 this Court, as he will be unable to travel to Egypt to visit family or Saudi Arabia for 6 religious pilgrimage, without fear that his electronic devices will be searched again, 7 that his data will be seized, and that he will be arrested, all in violation of the 8 Constitution. To avoid these harms, Mr. Elsharkawi will either have to give up his 9 sincerely held religious beliefs, forgo international travel to visit his family, or 10 endure the hardship of international travel without electronic devices. Further, 11 Mr. Elsharkawi already has lost the benefit of one contract, namely his ticket with 12 Turkish Airlines to fly to Saudi Arabia in February 9, 2017, due to Defendants’ 13 interference. 14 VI. Causes of Action 15 Count 1. Fourth Amendment Claim for Search of Electronic Devices 16 (against Defendants Nielsen and McAleenan in their official capacities) 17 72. Mr. Elsharkawi incorporates by reference the entirety of this Complaint 18 as though fully set forth herein. 19 73. The search of Mr. Elsharkawi’s phone was not supported by any real 20 suspicion of ongoing or imminent criminal activity, and as such, no basis for a LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 search existed. Mr. Elsharkawi accurately declared the amount of currency he had 4839-1716-2105.1 19 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 20 of 28 Page ID #:20 1 on his person. In any event, CBP could have no reason to search his phone for 2 physical currency. Further, Mr. Elsharkawi has never experienced anything prior to 3 this incident that would indicate he is on any Terrorist Watch List or is being 4 investigated for terrorism, such as SSSS on his boarding pass, or being subjected to 5 additional screening at an airport. Furthermore, Plaintiff has never received any 6 indication of an investigation into his e-commerce business. Finally, Mr. Elsharkawi 7 has never produced, distributed, received, possessed, or otherwise engaged in 8 trafficking of child pornography, or been charged with ever doing so. 9 74. Accordingly, Defendants Nielsen and McAleenan in their official 10 capacities violated the Fourth Amendment by searching the content of 11 Mr. Elsharkawi’s electronic devices, without a warrant supported by probable cause 12 that the devices contained contraband or evidence of a violation of customs laws, 13 and without particularly describing the information to be searched. 14 Count 2. Fourth Amendment Claim for Seizure of Data 15 (against Defendants Nielsen and McAleenan in their official capacities) 16 75. Mr. Elsharkawi incorporates by reference the entirety of this Complaint 17 as though fully set forth herein. 18 76. Mr. Elsharkawi did not have his cellphone in his possession or sight 19 during his detention. On information and belief, CBP and DHS forensically 20 examined Plaintiff’s cellphone, made copies of Plaintiff’s cellphone for later LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 forensic examination, and/or transmitted such copies to other agencies for either 4839-1716-2105.1 20 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 21 of 28 Page ID #:21 1 technical or subject matter assistance. Defendants needed probable cause to support 2 these actions, but not even reasonable suspicion existed. 77. 3 Accordingly, Defendants Nielsen and McAleenan in their official 4 capacities violated, and continue to violate, the Fourth Amendment by confiscating 5 the data located on and/or accessible through Mr. Elsharkawi’s electronic devices, 6 without probable cause that the data contain contraband or evidence of a violation of 7 customs laws. The confiscations were unreasonable from their inception and 8 thereafter in scope and duration. 9 Count 3. First Amendment Claim for Search of Electronic Devices 10 (against Defendants Nielsen and McAleenan in their official capacities) 78. 11 Mr. Elsharkawi incorporates by reference the entirety of this Complaint 12 as though fully set forth herein. 79. 13 Defendants Nielsen and McAleenan in their official capacities violated 14 the First Amendment by searching Mr. Elsharkawi’s electronic devices that 15 contained expressive content and associational information, without a warrant 16 supported by probable cause that the devices contained contraband or evidence of a 17 violation of customs laws, and without particularly describing the information to be 18 searched. 19 / / / 20 / / / LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 / / / 4839-1716-2105.1 21 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 22 of 28 Page ID #:22 1 Count 4. Section 1981 of the Civil Rights Act of 1866 Claim 2 (against Defendants Rivas, Rodriguez, Stevenson, and Jennifer in their individual 3 4 capacities) 80. Mr. Elsharkawi incorporates by reference the entirety of this Complaint 5 as if set forth herein. 6 81. Mr. Elsharkawi, as an American of Egyptian descent, is a member of a 7 racial minority protected by the Civil Rights Act of 1866, as amended in 1991, at 42 8 U.S.C. § 1981. 9 82. Defendants Rivas, Rodriguez, Stevenson, and Jennifer improperly 10 interfered with Mr. Elsharkawi’s right to exercise and enforce a contract, namely 11 Mr. Elsharkawi’s contract with Turkish Airlines to fly as scheduled with his 12 purchased ticket to Saudi Arabia. 13 83. Defendants Rivas, Rodriguez, Stevenson, and Jennifer intentionally 14 interfered with Mr. Elsharkawi’s right to exercise and enforce his contract with 15 Turkish Airlines, and did so because of Mr. Elsharkawi’s Egyptian descent and race. 16 Defendant Rivas repeatedly asked Mr. Elsharkawi about Mr. Elsharkawi’s previous 17 trips to Egypt and the reasons for those visits, what family Mr. Elsharkawi had in 18 Egypt and Saudi Arabia, if any, when Mr. Elsharkawi had initially arrived to the 19 U.S., and when Mr. Elsharkawi had gained his citizenship. Further, Defendant 20 Rodriguez expressly referenced the difference between his and Mr. Elsharkawi’s LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 respective races just before restraining Mr. Elsharkawi. 4839-1716-2105.1 22 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 23 of 28 Page ID #:23 1 84. Accordingly, Defendants Rivas, Rodriguez, Stevenson, and Jennifer, in 2 their individual capacities, violated 42 U.S.C. § 1981 by intentionally interfering 3 with Mr. Elsharkawi’s right to make and enforce his existing contract with Turkish 4 Airlines, because of Mr. Elsharkawi’s Egyptian ancestry and/or race. 5 Count 5. Federal Tort Claims Act Claims 6 (against Defendant United States) 7 85. Mr. Elsharkawi incorporates by reference the entirety of this Complaint 8 as though fully set forth herein. 9 86. Mr. Elsharkawi brings the claims set forth below against Defendant 10 United States of America under the authority of the Federal Tort Claims Act, 28 11 U.S.C. §§ 1346(b) & 2671 et seq., through which United States has waived its 12 sovereign immunity to the extent that any private person, under like circumstances, 13 would be liable under the relevant substantive state law of the state where the harm 14 occurred. 15 87. Defendants Nielsen, McAleenan, Rivas, Stevenson, and Jennifer are 16 employees of Defendant United States of America. (For purposes of this Count, 17 Defendants Nielsen, McAleenan, Rivas, Stevenson, and Jennifer are hereinafter and 18 collectively referred to as “Defendant’s Employees.”) LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 19 1. False Arrest/False Imprisonment 20 88. The allegations set out in this Complaint establish that Defendant’s 21 Employees intentionally deprived Mr. Elsharkawi of his freedom of movement by 4839-1716-2105.1 23 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 24 of 28 Page ID #:24 1 use of physical barriers, force, and threats of force. The restraint, confinement, and 2 detention compelled Mr. Elsharkawi to stay somewhere for an appreciable time. 3 Mr. Elsharkawi did not knowingly or voluntarily consent to this detention. 4 Mr. Elsharkawi suffered harm. Defendant’s Employees’ conduct was a substantial 5 factor in causing Mr. Elsharkawi’s harm. 6 89. In the alternative, the acts set forth above establish that Defendant’s 7 Employees arrested Mr. Elsharkawi without a warrant. Mr. Elsharkawi suffered 8 harm. Defendant’s Employees’ conduct was a substantial factor in causing 9 Mr. Elsharkawi’s harm. 10 90. Due to his false arrest and imprisonment, Mr. Elsharkawi suffered 11 harm, and is entitled to damages in an amount to be proved at trial. 12 2. Battery 13 91. The allegations set out in this Complaint establish that Defendant’s 14 Employees touched Mr. Elsharkawi with the intent to harm or offend him. 15 Mr. Elsharkawi did not consent to this touching. Mr. Elsharkawi was harmed and 16 offended by this conduct. A reasonable person in Mr. Elsharkawi’s situation would 17 have been offended by the touching. 18 92. In the alternative, the acts set out above establish Defendant’s 19 Employees intentionally touched Mr. Elsharkawi. Defendant’s Employees used 20 unreasonable force to arrest Mr. Elsharkawi. Mr. Elsharkawi did not consent to the LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 use of that force. Mr. Elsharkawi suffered harm as a result of that force; specifically, 4839-1716-2105.1 24 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 25 of 28 Page ID #:25 1 Defendant’s Employees’ use of unreasonable force was a substantial factor in 2 causing Mr. Elsharkawi’s harm. 93. 3 Due to the battery, Mr. Elsharkawi suffered physical injuries and 4 emotional distress. He is entitled to damages in an amount to be proved at trial. 5 3. Negligence 6 94. The allegations set out in this Complaint establish that Defendant’s 7 Employees either did not act or failed to act as a reasonable person would in a 8 similar situation. Such negligent conduct was a substantial factor in causing the 9 harm Mr. Elsharkawi sustained. Defendant’s Employees’ negligent conduct 10 consisted of wrongfully searching Mr. Elsharkawi’s phone, and unlawfully arresting 11 him. 12 95. Due to this negligence, Mr. Elsharkawi suffered harm, and is entitled to 13 damages in an amount to be proved at trial. 14 4. Intentional Infliction of Emotional Distress 15 96. The allegations set out in this Complaint establish that Defendant’s 16 Employees’ conduct was outrageous. Defendant’s Employees intended to cause 17 Mr. Elsharkawi emotional distress and/or acted with reckless disregard of the 18 probability that Mr. Elsharkawi would suffer emotional distress, knowing 19 Mr. Elsharkawi was present when the conduct occurred. Mr. Elsharkawi suffered 20 severe emotional distress. This conduct was a substantial factor in causing LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 Mr. Elsharkawi’s severe emotional distress. 4839-1716-2105.1 25 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 26 of 28 Page ID #:26 97. 1 As a result of this intentional and reckless conduct, Mr. Elsharkawi 2 suffered harm, and is entitled to damages in an amount to be proved at trial. 3 5. Intrusion into Private Affairs 4 98. The allegations set out in this Complaint establish that Mr. Elsharkawi 5 had a reasonable expectation of privacy in his cellphone. Defendant’s Employees 6 intentionally intruded Mr. Elsharkawi’s cellphone. This intrusion would be highly 7 offensive to a reasonable person. Mr. Elsharkawi was harmed. This conduct was a 8 substantial factor in causing Mr. Elsharkawi’s harm. 99. 9 Due to this invasion of privacy, Mr. Elsharkawi suffered harm from the 10 loss of his privacy and his emotional distress. He is entitled to damages in an 11 amount to be proved at trial. 12 VII. Prayer Wherefore, Plaintiff Mr. Elsharkawi respectfully requests that this Court grant 13 14 the following relief: A. 15 Declare that Defendants Nielsen and McAleenan in their official 16 capacities violate the First and Fourth Amendments of the U.S. Constitution by 17 authorizing search of electronic devices carried by persons exiting the United States 18 without a warrant supported by probable cause that the devices contain contraband 19 or evidence of a violation of customs laws, and without particularly describing the 20 information to be searched. LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 / / / 4839-1716-2105.1 26 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 27 of 28 Page ID #:27 1 B. Declare that Defendants Nielsen and McAleenan in their official 2 capacities violate the Fourth Amendment of the U.S. Constitution by confiscating 3 the data located on and/or accessible through electronic devices carried by persons 4 exiting the United States without probable cause that the data contain contraband or 5 evidence of a violation of customs laws and that the confiscations are unreasonable 6 from their inception and thereafter in scope and duration. 7 C. Enjoin Defendants Nielsen and McAleenan in their official capacities 8 from acting pursuant to Policy or permitting any federal agent to act pursuant to the 9 Policy so as to search electronic devices and seize data from electronic devices, 10 respectively, without a warrant supported by probable cause that the devices contain 11 contraband or evidence of a violation of customs laws, and without particularly 12 describing the information to be searched, when such persons are exiting the United 13 States; 14 D. Enjoin Defendants Nielsen and McAleenan in their official capacities 15 to expunge all information gathered from or copies made of the contents of 16 Plaintiff’s electronic devices, and all of Plaintiff’s device passwords; 17 E. Order general and compensatory damages, in an amount to be proved at 18 trial, against the United States for its violations of the Federal Tort Claims Act; 19 F. Order general, compensatory, and punitive and/or exemplary damages 20 in an amount to be proved at trial against the CBP and DHS officers, including but LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 not limited to Defendants Officers Rivas, Rodriguez, Stevenson, and Jennifer; 4839-1716-2105.1 27 COMPLAINT FOR DAMAGES Case 8:18-cv-01971-JLS-DFM Document 1 Filed 10/31/18 Page 28 of 28 Page ID #:28 1 G. Order that Defendants pay Mr. Elsharkawi reasonable costs and 2 attorneys’ fees; and 3 H. Award such other and further relief as this Court deems just and proper. 4 5 DATED: October 31, 2018 Respectfully submitted, 6 By: 7 8 9 /s/ Christina A. Jump Charles D. Swift Christina A. Jump CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA (CLCMA) Pro Hac Vice Counsel for Plaintiff 10 11 /s/ Jeffrey S. Ranen Jeffrey S. Ranen Parisa Khademi Margaret R. Wright LEWIS BRISBOIS BISGAARD & SMITH LLP Local Counsel for Plaintiff 12 13 14 15 16 17 18 19 20 LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 21 4839-1716-2105.1 28 COMPLAINT FOR DAMAGES