Nebraska Case:MEMORANDUM AND ORDER 12-21-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER 0-17-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)
ORDER 7-23-2012
(No. 8:09CV456.)
ORDER 7-13-2012
(No. 8:09CV456.)
MEMORANDUM AND ORDER 6-29-2012
(No. 8:09CV456.)
MEMORANDUM AND ORDER 6-29-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)
MEMORANDUM AND ORDER 6-1-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)
MEMORANDUM AND ORDER 5-14-2012
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005
ORDER 2-27-2012
No. 8:09CV456.
ORDER 1-10-2012
No. 8:09CV456.
MEMORANDUM AND ORDER 9-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005
MEMORANDUM AND ORDER 6-15-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)
MEMORANDUM AND ORDER 6-20-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)
ORDER 4-25-2011
(No. 8:09CV456.)
MEMORANDUM AND ORDER 4-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005.
MEMORANDUM AND ORDER 8-16-2010
734 F.Supp.2d 882 (2010)
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005.)
MEMORANDUM AND ORDER 1-27-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)
Doe v Nebraska 12-30-2009
(No. 8:09CV456.)
This is a very complicated case with many issues, read it if you wish. Accordingly I am posting only what is relevant in this 12-30-2009 decision:
The specific statutes that are challenged by Plaintiffs, and an abbreviated summary of the reasons for the challenge, are set forth below:
Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 40131 amount to the ex post facto imposition of punishment;
Neb. Rev. Stat. § 29-4006 provides for unreasonable searches and seizures;
Neb. Rev. Stat. §§ 29-4009 and 4013 unreasonably eliminate individual assessments to determine the level of community notification and unreasonably impose website notification for all registrants;
Neb. Rev. Stat. § 29-4001.01 employs vague definitions, making the laws susceptible to arbitrary enforcement and inadvertent noncompliance;
Neb. Rev. Stat. § 28-322.05 2 creates a new crime and wrongly criminalizes certain types of speech and infringes upon the right of association; and
Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 improperly and retroactively modify the terms and conditions of plea agreements and violate separation of powers doctrine.
(See Filing 1, Complaint at CM/ECF p. 4 n.1.)
IT IS ORDERED that the motion for a preliminary injunction (filing 4) is denied except as provided below:
1. Defendants are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).
However, Nebraska went much further and added a "consent to search" and "monitoring" requirement, to wit:
When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:
(a) Search of all the computers or electronic communication devices possessed by the person; and
(b) Installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person.
Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010).
In addition to the "consent to search" and "monitoring" requirement, Nebraska—and, again, unlike SORNA—has now made it a crime for certain offenders who must register to access certain Internet sites. That is:
(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
...(Crime codes omitted)...
(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.
Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010).
Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska's registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. SeeSmith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was "free to . . . live . . . as other citizens, with no supervision") (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed "kiddie porn" crimes. In either context, those restrictions are clearly "punishment."
... ... ...
Earlier Filings:
MEMORANDUM AND ORDER 12-22-2009
MEMORANDUM AND ORDER 12-21-2009
MEMORANDUM AND ORDER 12-18-2009
MEMORANDUM AND ORDER 12-17-2009
There is more on this case HERE
PDF 12-30-2009
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