People v Michael Diack

2-17-2015 New York:

People v Michael Diack

Kathy Manley, for appellant. Kenneth L. Gartner, for respondent. New York Civil Liberties Union, amicus curiae.

In 2006, Nassau County enacted Local Law No. 4–2006 (Local Law 4), which, as relevant here, prohibits registered sex offenders from residing within 1,000 feet of a school. In recent years, dozens of municipalities in this State have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, daycare centers, parks, youth centers and other areas where children are likely to congregate.1 That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders. Local governments have, understandably, relied on their police power in furthering that interest.

But a local government's police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. We hold that the State's comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4.

I.

In 2001, defendant, a Nassau County resident, was convicted of the crime of possessing an obscene sexual performance by a child (Penal Law § 263.11). He served 22 months in prison and, upon his release from custody, was classified a level one sex offender under the Sex Offender Registration Act (Correction Law art 6–C, § 168 et seq.). Defendant was discharged from parole on August 19, 2004. In July 2008, defendant reported his change of address to the New York State Division of Criminal Justice Services. Upon receiving this information, the Nassau County Police Department determined that defendant had moved to an apartment located within 500 feet of two schools.

Defendant was charged by information with a violation of Nassau County Local Law 4, which is codified in Nassau County Administrative Code § 8–130.6. That provision states, in relevant part, that “[i]t shall be unlawful for any registered sex offender to establish a residence or domicile where the property line of such residence or domicile lies within: (1) one thousand feet of the property line of a school; or (2) five hundred feet of the property line of a park ․” (Nassau County Administrative Code § 8–130.6[a][1], [2] ). The code defines a “registered sex offender” as “a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register with the New York state division of criminal justice services, or other agency having jurisdiction,” pursuant to the Sex Offender Registration Act, regardless of whether the sex offender has actually registered (id . at § 8–230.2).

Defendant moved to dismiss the information on the ground that Local Law 4 and section 8–130.6 are preempted by state law. The District Court of Nassau County granted the motion and dismissed the charge on the ground that Local Law 4 is preempted by New York's “comprehensive statutory scheme for sex offenders.” The Appellate Term reversed and reinstated the information, holding that it could not discern any express or implied intention by the Legislature through the enactment of the Sex Offender Registration Act (and other state laws) to occupy the entire field so as to prohibit the enactment of local laws imposing “residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or ․ seeking public assistance” (41 Misc.3d 36, 39 [App Term, 2d Dept, 9th and 10th Jud Dists 2013] ). A Judge of this Court granted defendant leave to appeal. ..Continued..

---

Courts: New York State Law Trumps Stricter Local Laws in Residency Requirements for Sex Offenders

---

Doe v Bredesen

11-16-2007 Tennessee:

Doe v Bredesen

Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN.CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of TENN.CODE ANN. § 39-13-527. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 ("the Registration Act"), TENN.CODE ANN. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see TENN. CODE ANN. § 40-39-202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation ("TBI") Sexual Offender Registry for the rest of his life, see TENN.CODE ANN. § 40-39-207(g)(1)(B).

The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act ("the Monitoring Act"), TENN.CODE ANN. § 40-39-301 et seq., which became effective July 1, 2004.1 The Monitoring Act authorized the Tennessee Board of Probation and Parole ("the board") to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. TENN.CODE ANN. § 40-39-303. In August 2005, Doe's probation officer notified him that he would be required to wear a global positioning ("GPS") device at all times beginning in September 2005.

Doe brought suit in the United States District Court for the Eastern District of Tennessee ("the district court") alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts' requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against self-incrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under FED.R.CIV.P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe's opposition brief also sought to raise a claim that was not in his complaint — that application of the Registration and Monitoring Acts to him violated his plea agreement.

The district court ruled that Doe's ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed.

For the reasons that follow, we affirm. In doing so, we hold, inter alia, that the Registration Act (TENN.CODE ANN. § 40-39-201 et seq.) and the Monitoring Act (TENN.CODE ANN. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution.

---

See: Severing the Invisible Leash: A Challenge to Tennessee’s Sex Offender Monitoring Act

---

Appeals Court: Amended Michigan Sex Offender Laws Flawed and Unconstitutional

8-26-16 Michigan:

Comment from William Dobbs:

A late summer win! Yesterday a three judge panel (Gilbert Merritt, Alice Batchelder and Bernice Donald) of the US Sixth Circuit Court of Appeals handed down a decision remarkable for what it does, the legal reasoning, and explicit hope for future legal challenges.

Legislators have a habit of imposing new punishments on those already sentenced for sex offenses. The court put a stop to that, declaring the practice “ex post facto” and unconstitutional. Many of Michigan’s 40,000+ registrants will benefit shortly.

Is the registry punishment? Registrants and just about anybody else would say yes. Courts, however, usually say no, viewing the registry as an administrative matter, sidestepping consideration of legal challenges by registrants.

The Sixth Circuit judges took a careful look, got real, and resoundingly declared the registry is punishment—an important holding by a federal circuit court. The 14-page decision ends with tantalizing hope for the future, noting that claims the court did not consider are “far from frivolous and involve matters of great public importance.” The infernal registry is still standing but this is a significant victory for reason and justice.

Decision
Does v. Snyder
US Court of Appeals for the Sixth Circuit, Case Nos. 15-1536/2346/2486

Decision filed Aug. 25, 2016:
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf
Audio of oral argument - Part One--Jan. 27, 2016 .. Part Two--Apr. 27, 2016

---

See also:

Court: Michigan's toughened sex offender rules cannot be retroactive by David Eggert

Appeals Court Says Michigan Sex Offender Law Flawed And Not Working by Rick Pluta

---

Colorado SOMB Approved Standards Revisions Sexual Offense History Questions

8-19-16 Colorado:

Source Colorado SOMB Announcement:

Greetings,

On August 19, 2016, the SOMB approved revisions to the Standards and Guidelines as they pertain to sexual offense history questions, including sexual offense history polygraph questions. These revisions apply to Standards and Guidelines for adult sex offenders and juveniles who have committed sexual offenses.

All current Standards and Guidelines related to requirements for sexual offense history questions, including sexual offense history polygraph questions, are unchanged. The following revisions apply only when an adult sex offender or a juvenile who has committed a sexual offense refuses to answer such questions.

Below you will find three recent court decisions that support a client's right to refuse to answer sexual offense history questions, including sexual offense history polygraph questions. These decisions have necessitated the revised language to the Standards and Guidelines as follows:

"If the offender refuses to answer sexual offense history questions, including sexual offense history polygraph questions, then the provider shall meet with the supervising officer to identify and implement alternative methods of assessing and managing risk and needs. The provider shall not unsuccessfully discharge an offender from treatment for solely refusing to answer sexual offense history questions, including sexual offense history polygraph questions."

The revisions are implemented, where applicable, throughout the Standards and Guidelines for adult sex offenders as well as for juveniles who have committed sexual offenses. You are encouraged to review the attached documents carefully. You are welcome to submit proposed changes to be considered as the revision process moves forward. In addition, as questions arise, please do not hesitate to contact us.

Thank you.

---

People vs. Robertson
People vs. Ruch
US vs. VonBehren

---

USA v Cheever

7-18-2016 Colorado:

USA v Cheever

JOHN L. KANE, Senior District Judge.

This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.

... ... ...

Conclusion.

It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)

The Court of Appeals for the Second Circuit held in United States v. McLaurin, 731 F.3d 258, 260 (2013) that a condition of defendant's supervised release that required him to take penile plethysmograph testing was an "extraordinary invasive condition [that is] unjustified, is not reasonable related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process."

The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected. So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.

Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification

12-13-2015 Massachusetts:

A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:

We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q.

The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence.

In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree.

For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.

..Source..

---

Court Expands Eligibility for Certificates of Rehabilitation

11-13-2015 California:

A California Court of Appeal issued a decision this week that expands eligibility for registrants to apply for a certificate of rehabilitation. The decision, People v. Tirey, states that a registrant who was convicted of PC 288(a) and who completed parole 13 years ago is eligible to apply for a certificate.

“This is an important decision for many registrants,” stated attorney and CA RSOL vice president Chance Oberstein. “It will significantly expand the number of registrants who can apply for a certificate of rehabilitation.”

In this case, the appellate court clarified that it was not making a decision whether Tirey would obtain a certificate. Instead, that decision is to be made by a trial court.

According to the Court, equal protection principles were violated when Tirey was declared ineligible to apply for a certificate. These principles have the possibility of being applied to convictions for similar sex offenses such as PC 288 and 288.5.

In its decision, the Court rejected all arguments offered by the Attorney General who had requested a rehearing of the original case.

“A certificate of rehabilitation currently is the only realistic method for registered citizens to be removed from the sex offender registry,” stated Oberstein.

The decision to grant a certificate of rehabilitation is a discretionary decision by a state judge who faces re-election. In order to maximize the possibility of obtaining a certificate, registrants must provide the court with a psychological evaluation as well as letters of support.

Judge Thompson disagreed with the court’s ruling and in his dissent stated that the court’s decision “will allow thousands of serious sex offenders to escape their lifetime parole and sex offender registration obligations.” ..Source.. by CA-RSOL

---

See Also THESE in State News Blog...

See Also THESE in National News Blog...

---

Tulsa Police Worried About Sex Offender's Legal Victory

9-14-15 Oklahoma:

TULSA - Tulsa Police are worried now that a convicted child molester has won a legal victory against the Tulsa County District Attorney's office.

Stephen Barnes was convicted in 1999 of rape and lewd acts involving a minor. According to Department of Corrections records, he was released in 2012. He's a registered sex offender, but now that he's out of prison, he wants to live with his mother in east Tulsa.

A 2003 Oklahoma law prevents sex offenders from living near schools and daycare centers. In January 2015, Barnes asked the courts for an injunction against the Tulsa County District Attorney's office, Tulsa Police and the Tulsa County Sheriff's Office, arguing that since the law was passed after he committed his crimes, it didn't apply to him.

Earlier this month the judge ruled in his favor, saying he can live wherever he wants.

Tulsa police fear this will lead to a similar situation for many more convicted child molesters.

"The whole premise of the sex offender registry is to protect our children. Safe zones were created for families to at least feel comfortable knowing there were no sex offenders living nearby. The ruling will open the door for sex offenders to file similar lawsuits and be granted the freedom to reside next to an elementary school, if they so choose," said Tulsa Police Sgt. John Adams. ..Source.. by Lori Fullbright

News SJC Ruling Threatens Sex Offender Laws In 40 Mass. Towns

See also: ACLU of Massachusetts article. And the legal documents HERE Note: RSOL joined in Amicus brief)

8-28-15 Massachusetts:

Doe v City of Lynn

BOSTON (AP) — The highest court in Massachusetts upheld a judge’s decision Friday to throw out a local law that severely restricts where sex offenders can live in the city of Lynn, a ruling that could have broad implications for about 40 other communities.

In a unanimous ruling, the Supreme Judicial Court agreed that Lynn had no legal authority to adopt the ordinance in 2011 because it is inconsistent with state laws governing the oversight of sex offenders.

The Lynn ordinance prohibits Level Two and Level Three sex offenders from living within 1,000 feet of parks or public, private or church schools, effectively banning offenders from about 95 percent of the city’s residential properties.

The high court said a package of laws passed by the state Legislature in 1999 establishes clear policies for monitoring sex offenders and notifying the public where they live. The court said there are “grave societal and constitutional implications” of segregating sex offenders.

People v. Gerber

6-8-2011 California:

People v. Gerber
196 Cal.App.4th 368 (2011)

Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen. Code, § 311.11, subd. (a))1 (count one), annoying or molesting a child (§ 647.6, subd. (a)) (count two), furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)) (count three), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353) (counts four and five).

On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. In addition, he asserts that the trial court lacked authority to make its no-contact order.

We hold that the phrase "the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ..." in section 311.11 requires a real child to have actually engaged in or simulated the [196 Cal.App.4th 372] sexual conduct depicted.

We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error.

We also strike the no-contact order.

... ... ...

E. No-contact Order

At sentencing, the trial court ordered defendant to have no contact with the victim or her family. Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.