North Carolina Supreme Court: Social media ban for sex offenders remains in place for now

This post pertains ONLY to the State v Packingham Case.

8-30-2013 North Carolina:

A state law barring registered sex offenders in North Carolina from using social media websites where children are members will remain in effect while the state attorney general drafts an appeal of a recent Court of Appeals decision.

On Friday, the state Supreme Court issued a stay that keeps in place a 2008 law that the appeals court described as “too broad” and so “vague” that it fails to target the “evil” it was designed to rectify.

Attorney General Roy Cooper petitioned the Supreme Court for a stay that keeps the law in place until the Aug. 20 appeals court decision can be reviewed by the state high court justices.

“Instead of lurking around playgrounds, today’s child predators go online where they can groom multiple victims at once,” Cooper said in a prepared statement. “Along with tough laws, strong law enforcement, and education efforts, keeping known sex abusers off of social networking sites helps protect children.”

Lester Gerard Packingham Jr., 32, a registered sex offender in North Carolina, is behind the challenge of the 2008 law. He argued that the restriction, part of a legislative package that Cooper advocated for, was a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”

Packingham was convicted in 2002 of taking indecent liberties with a child.

In 2010, Durham police began investigating MySpace and Facebook profiles to enforce the law. Investigators said they found a picture of Packingham at Facebook and determined he created the profile page, according to court documents. Packingham was convicted in May 2012 and received a suspended sentence and probation.

The 2008 legislative package came about at a time that state attorneys general across the country were raising concerns about such social media sites as Facebook and MySpace, hoping to protect users from sexual predators using the networks.

The North Carolina law makes it illegal for a registered sex offender to access a website where he or she knows minors have personal web pages.

Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search.

The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions, and allows users to create pages to post information.

Though the law makes exceptions for websites that provide narrow services such as email, the three-judge appeals court panel said, it could prohibit a registered sex offender from accessing Google, Amazon or even a cooking TV channel website because the sites provide secondary social networking forums.

Gerding said the ambiguousness of the law has made it difficult for him to advise sex offender clients who are trying to follow it.

North Carolina’s sex offender laws require people convicted since 1996 of sexually violent offenses and specific crimes against children to register with the sheriffs in the counties where they live. Those on the registry may not live close to schools or daycares. They are barred from working with minors and visiting certain places where children are likely to be present.

One of Gerding’s clients has not been able to attend his child’s T-ball games because of the restrictions. The client’s wife had planned to go to the game and use Skype so her husband could watch without being on the premises, but a sheriff told him that would violate the 2008 law.

“Nobody knows what sites this law covers,” Gerding said Friday. “And because nobody knows, I don’t know what to tell my clients.” ..Source.. by Anne Blythe

Becker v State

8-22-2013 Indiana:

Becker v State

Criminal cases are prosecuted in the name of the “State of Indiana.” But as Shakespeare famously asked, “What’s in a name? that which we call a rose / By any other name would smell as sweet.” Gertrude Stein’s answer was that “Rose is a rose is a rose is a rose.”

Similarly, we conclude that in this matter related to the sex offender registry, “the State is the State,” whether it acts through a deputy prosecutor or through the Department of Correction. Both entities share the same substantial interest—to maximize an offender’s registration obligations—and are therefore in privity with each other in cases involving that interest.

Accordingly, we hold that when the State (via a local prosecutor) fails to appeal an adverse sex-offender registration ruling, the State (via the DOC) becomes bound by it under principles of res judicata.

The DOC’s 2011 intervention in this case therefore came too late. On its face, the DOC’s motion challenged a trial court ruling issued a few weeks earlier—but in substance, it sought reconsideration of an unappealed 2008 ruling that had long since become binding against the State.

We thus reverse the trial court’s order granting the DOC’s Motion to Correct Error.

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Defendant was convicted of felony criminal deviate conduct in 1998, was released from prison in 2000, and began registering annually as a sex offender. Indiana later expanded its registration requirements. Defendant petitioned for relief from the additional SVP obligations, arguing that they were an unconstitutional ex post facto law as applied to him. The trial court concluded in 2008 that retroactively classifying Defendant as an SVP under the expanded statutes would be unconstitutional.

The State did not appeal the 2008 order, nor did the Department of Corrections (DOC) intervene to challenge it. In 2011, the State found Defendant had satisfied his registration obligations under the ten-year statute that existed at the time of his conviction. The DOC later filed a motion to correct error, arguing that Defendant's registration obligation from ten years to life was not an ex post facto violation.

The trial court granted the motion and vacated the 2008 order. Defendant appealed, arguing that the 2008 order was res judicata against the DOC. The Supreme Court reversed, holding that even if the 2008 order was erroneous, it nevertheless became res judicata against the "State" - both the prosecutor and the DOC - when the State failed to appeal it.

Parolee Limited by GPS and Residency Can Sue California

8-1-2013 California:

California must face claims that it violated the civil rights of a convicted sex offender by conditioning parole on a residency restriction and GPS monitoring, the 9th Circuit ruled.

William Thornton faced these parole restrictions even though his convictions in California were not sex-related. Thornton was convicted of California in 2006 for buying or receiving stolen property, and later for robbery.

Both times the Golden State imposed residency and GPS monitoring restrictions as conditions of Thornton's parole release from prison because of Thornton's 1987 guilty plea in Tennessee to sexual battery.

In 2012, a California appeals court prohibited "blanket enforcement" of the residency restriction, but it found that the state's Department of Corrections and Rehabilitation could impose the condition on a parolee after considering his individual circumstances.

Under Section 3003.5(b) of California's Sexual Predator Punishment and Control Act of 2006, also known as Jessica's Law or Proposition 83, registered sex offenders may not "reside within 2000 feet of any public or private school, or park where children regularly gather."

The provision that requires electronic monitoring by a GPS devise is codified in Sections 3000.07(a) and 3004(b).

Thornton challenged the parole conditions during his second prison term in California, but a federal judge in San Diego dismissed the complaint after finding that Thornton could seek relief only through habeas corpus.

A divided three-judge panel of the 9th Circuit reversed Wednesday, finding that the lower court misinterpreted the U.S. Supreme Court's resolution of Heck v. Humphrey.

In that 1994 decision, the justices held that a suit must be classified as a habeas corpus action if "the plaintiff in a federal civil rights action is challenging the legality of his conviction, so that his victory would require his release even if he had not sought that relief." Such an action must then be dismissed if the plaintiff has failed to exhaust his state remedies, under the doctrine.

The 9th Circuit said Wednesday that only its sister circuit in Chicago has considered applying the Heck doctrine to federal civil rights actions under Section 1983 that challenge parole conditions.

"Consistent with Supreme Court precedent and that of our sister circuit, we hold that such an action is not barred by Heck if it is not a collateral attack on either the fact of a parolee's confinement as a parolee or the parolee's underlying conviction or sentence," Judge Susan Graber wrote for the majority. "Because we conclude that petitioner's action is not such an attack, we reverse and remand."

State, parole board and parole officers do not have qualified or absolute immunity from Thornton's injunctive relief, according to the ruling.

On remand, Thornton "may assert his nonmonetary claim arising from the allegedly discriminatory enforcement of his parole conditions," Graber added.

Judge Sandra Ikuta said she would have affirmed and not created a circuit split.

"Here, if Thornton were successful in his challenge to the parole conditions imposed by the CDCR, it would necessarily imply the invalidity of a portion of his sentence," Ikuta wrote.

"Because Thornton was sentenced under § 1170 for his 2010 robbery offense, his sentence necessarily included the term and conditions of parole set by the CDCR," she added. "In challenging his parole conditions, then, Thornton is challenging a statutorily mandated component of his sentence, and if he is successful, it would necessarily imply the invalidity of a portion of his sentence. Therefore, under the rules explained in Dotson, he may not bring this challenge under § 1983."

Ikuta also warned that district courts "will have no idea what to make of the majority's Delphic guidance as they confront § 1983 suits challenging various kinds and permutations of parole conditions." ..Source.. by LISA COSTON

Ryals v City of Englewood

8-21-2013 Colorado:

Ryals v City of Englewood and HERE

UPDATE 8-27-13: Englewood to appeal sexual offender decision

Update 1-25-16: CO Sup Ct Decision on Appeal Not Good

(UPDATE: 2014: Residency law reinstated with different distances. See way below)

This case was tried to the Court from July 22 to 25, 2013. Plaintiff Stephen Brett Ryals challenges the constitutionality of the City of Englewood’s Ordinance 34, which restricts where certain sex offenders—including Mr. Ryals—may reside. Mr. Ryals brings five claims under three theories, arguing that the ordinance

• (1) is preempted by state sex offender regulations,
• (2) retroactively and punitively changes the legal consequences of his original conviction, and
• (3) deprives him of his liberty without due process of law.

The Court finds that the Englewood ordinance in its present form is preempted by Colorado state law.

... ... ...

Order
For the foregoing reasons, the Court directs that final judgment be entered in favor of the plaintiff, Stephen Ryals, and against the defendant, the City of Englewood. As the prevailing party, the plaintiff is awarded his reasonable costs pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.

DATED this 21th day of August, 2013.

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Order on Attorney's Fees and Costs (June 2014)

Plaintiff moves for an award of attorney's fees and certain costs not previously assessed. The parties have submitted several affidavits in support of their respective positions and have not requested an evidentiary hearing or oral argument. For the reasons set forth herein, the Court awards attorney's fees (to Plaintiff RSO) in the amount of $429,999.50 and additional costs in the amount of $16,618.13.

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News Articles Below

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Englewood’s Sex Offender Residency Restrictions Ruled Unconstitutional (Aug 2013)

DENVER – In a case brought by ACLU attorneys, a federal district court yesterday invalidated an Englewood ordinance that restricts where persons convicted of certain sex offenses can live, ruling that the ordinance violates the Colorado Constitution.

Englewood’s ordinance makes it a crime for persons convicted of certain sex offenses to live within 2000 feet of any school, park, or playground, or 1000 feet of any licensed day care center, recreation center or swimming pool, or any property located next to a bus stop, walk-to-school route, or recreational trail.

Judge R. Brooke Jackson ruled that the ordinance “leaves essentially no place for offenders to live” and pushes sex offenders into neighboring cities, causing an impermissible conflict with “the state interest in the uniform treatment, management, rehabilitation, and reintegration of sex offenders during and after state supervision.”

“Local ordinances that ban sex offenders from living in a particular community provide a false sense of security,” said Mark Silverstein, ACLU Legal Director. “As the State Sex Offender Management Board has noted, these ordinances don’t prevent sex offenses and they don’t increase safety. Instead, they make communities less safe by interfering with offenders’ efforts to reintegrate into safe, stable, and supportive environments. And when town after town enacts similar restrictions, it poses the risk that sex offenders are driven underground and disconnected from treatment and supervision.”

State v Packingham

8-20-2013 North Carolina:

State v Packingham

UPDATE 11-5-2015: North Carolina supreme court upholds ban on sex offenders using Facebook

Update 9-8-2014: NC Supreme court heard Oral Arguments this date. See article

Update 9-6-2013: See highlighted notes in this article

Update 8-28-2013: NC Sup ct issued a stay. Accordingly NC RSOs SHOULD NOT USE Facebook type social networks. Wait for next Sup ct notice! see HERE

Update 8-22-2013: North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court.

Lester Gerard Packingham (defendant), a registered sex offender, appeals from a judgment entered upon a jury conviction for accessing a commercial social networking Web site, pursuant to N.C. Gen. Stat. § 14-202.5 (2011). Defendant challenges the statute as unconstitutional. For the reasons stated herein, we agree. Accordingly, we vacate the judgment of the trial court.

... ... ...

III. Conclusion
In sum, we conclude that N.C. Gen. Stat. § 14-202.5 is not narrowly tailored, is vague, and fails to target the “evil” it is intended to rectify. Instead, it arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. The statute violates the First Amendment’s guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court’s judgment.

See Informational Post HERE and Article: North Carolina appeals court strikes social media ban for sex offenders

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Note: Louisiana did modify its law following their unconstitutional ruling. see "New Louisiana law: Sex offenders must list status on Facebook, other social media." Absolutely absurd, registrants are supposed to punish themselves for merely being on a social media site? Esp. given there is no way to comply with the law for most social media sites. Where do we get lawmakers whose only thoughts are further punishment? Hopefully some registrant will challenge this in court....

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Court upholds sex offender residency rule

3-13-2013 Wisconsin:

MADISON — A state appeals court has upheld a city ordinance that prohibits child sex offenders from living near schools.

Convicted child sex offender Todd Kester moved into a South Milwaukee residence that was within 1,000 feet of Lakeview School in 2010, violating a city ordinance that prohibits child sex offenders from living that close to an elementary school. A Milwaukee County judge ordered him to move.

Kester argued he wasn’t given a chance to show he poses no danger to children. He also contended the ordinance unconstitutionally creates additional punishment.

The 1st District Court of Appeals ruled Wednesday Kester has no right to an individual risk assessment and the regulations are designed to protect the community, not punish offenders.

Kester’s attorney, Jacques Laurence Dupuis, had no immediate comment. ..Source.. by LaCrossee Tribune

US v Lundsford

8-5-2013 Missouri:

US v Lundsford

Robert Lunsford, a sex offender subject to the requirements of the Sex Offender Registration and Notification Act (“SORNA”), entered a conditional plea of guilty to a charge of failing to update his registration after he moved from Missouri to the Philippines.

He appeals the district court's denial of his motion to dismiss the indictment, arguing that SORNA did not require him to update his registration in Missouri to reflect his move out of the country.

Because the text of SORNA does not extend registration requirements to Lunsford's situation, we conclude that the motion to dismiss was meritorious, and we therefore reverse.

... ... ...

For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded with directions to dismiss the indictment.

State v Kenneth Dale Stark

8-10-2011 South Dakota:

State v Kenneth Dale Stark

Kenneth Dale Stark appeals his conviction on two counts of loitering in a community safety zone in violation of SDCL 22-24B-24. Stark appeals, raising four issues:

• (1) that the South Dakota statutes prohibiting sex offenders from loitering in a community safety zone are unconstitutional;
• (2) that the trial court erred by allowing the State to amend the Part II Information to include the correct location of his prior felony conviction;
• (3) that there was insufficient evidence to establish that his primary purpose for remaining in the community safety zone was to observe or contact minors; and
• (4) that the trial court abused its discretion by admitting evidence that an individual in a white mini-van registered to him was seen in a community safety zone the day before the charged conduct occurred.

We affirm on all issues.

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Also, read this Harvard Law Review paper (Adobe pp 229-245): Next-Generation Sex Offender Statutes: Constitutional Challenges to Residency, Work, and Loitering Restrictions by Chiraag Bains

Also: Whitaker v Perdue And HERE Overview of GA SO laws.

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Convicted Sex Offender Wants State Job Back

7-22-2004 New Mexico:

SANTA FE, N.M. -- The state Supreme Court has ruled that a convicted sex offender who was fired from his job as a state employee can have his job back. Fired from his job as a supervisor with the state Transportation Department, James Sanchez said he couldn't find work anywhere.

"To get blackballed out of any employment was very hard," Sanchez said. "I had to file bankruptcy, came very close to losing my mortgage. It was very hard times." Gov. Bill Richardson fired Sanchez because he is a convicted sex offender accused of sexual misconduct.

But the state Supreme Court recently reversed the governor's decision, saying Sanchez should not only be rehired, but earn back pay. In a statement to Action 7 News, the governor's office said the decision by the administration of former Gov. Gary E. Johnson to hire Sanchez was a mistake and the Richardson administration disagrees with the Supreme Court's decision and vows never to hire a sexual predator.

Nancy Richards, who represents Sanchez, said not only was her client blackballed, but his being fired violated his civil rights. "You can't just say, 'Sex offenders, you can't work for state government.' There are laws involved here," Richards said. ..more.. : by New Mexico Channel