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.

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

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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.

Doe v. Annucci

6-18-15 New York:

Doe v. Annucci
No. 14 Civ. 2953 (PAE).

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim.

For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

... ... ... ...

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Doe v Foster et al

This action is in court right now, no decision yet.

4-21-15 New Hampshire:

In April 2015, the ACLU of New Hampshire filed a lawsuit to block enforcement of RSA 651-B:4-a – a law passed in 2009 that restricts the legal and constitutionally-protected speech of all registered sex offenders in New Hampshire. Similar laws in California, Nebraska, Georgia, and Michigan have been struck down.

RSA 651-B:4-a requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor lewdness and people whose offenses were not related to the Internet – to turn over a list of all their online identifiers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments — all innocent online speech that has nothing to do with criminality. Under the law, more than 2,700 Granite staters must immediately provide this information to law enforcement, and must report any new accounts before they are even used, even if the new screen name is their own real name. Violations can result in years in prison.

Judge: Parts of state's sex offender law unconstitutional

see 10-26-15 Bill Would Reinstate Michigan's Ban on Sex Offenders Near Schools. Lawmaker tries to override court decision.

4-7-2015 Michigan:

Doe v Snyder:
(3 Decisions)

A) 9-3-15 JOHN DOE #1-5 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants.

B) 3-31-15 JOHN DOES #1-5 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants.

C) 3-31-15 JOHN DOES 1-4 and MARY DOE, Plaintiffs, v. RICHARD SNYDER and COL. KRISTE ETUE, Defendants. (Motion in limine Mapping Expert)

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Final Orders from each of the 3 decisions

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A) III. CONCLUSION

IT IS ORDERED that Plaintiffs' Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART, consistent with the court's previous orders.

IT IS FURTHER ORDERED that Defendants' Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART, consistent with the court's previous orders.

IT IS FURTHER ORDERED that Mich. Comp. Laws § 28.725a(7) is declared unconstitutional and its enforcement is enjoined, as applied to John Doe #4.

IT IS FURTHER ORDERED that the retroactive incorporation of the lifetime registration requirement's incorporation of the requirement to report "[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system," Mich. Comp. Laws § 28.727(1)(i), is declared unconstitutional and its enforcement is enjoined.

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B) For the reasons stated above,

IT IS ORDERED that Plaintiffs' Rule 52 Motion for Judgment on the Papers (Dkt. # 96) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants' Rule 52 Motion for Judgment on the Papers (Dkt. # 97) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the Sex Offender Registration Act, Mich. Comp. Laws §§ 28.721 et seq., shall be construed consistently with this opinion.

IT IS FURTHER ORDERED that SORA's geographic exclusion zones provisions, Mich. Comp. Laws §§ 28.734, 28.735, are declared unconstitutional and their enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the requirement "to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . begins to regularly operate any vehicle," Mich. Comp. Laws § 28.725(1)(g), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the requirement "to report in person and notify the registering authority . . . immediately after . . . [t]he individual establishes any electronic mail or instant message address, or any other designations used in internet communications or postings," Mich. Comp. Laws § 28.725(1)(f), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[a]ll telephone numbers . . . routinely used by the individual," Mich. Comp. Laws § 28.727(1)(h), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual," Mich. Comp. Laws § 28.727(1)(I), is declared unconstitutional and its enforcement is enjoined.

IT IS FURTHER ORDERED that the requirement to report "[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual," Mich. Comp. Laws § 28.727(1)(j), is declared unconstitutional and its enforcement is enjoined, as applied to Plaintiffs.

IT IS FURTHER ORDERED that the court reserves judgment on whether Mich. Comp. Laws § 28.725a(7) is unconstitutional as applied to John Doe #4 and will request additional briefing in a forthcoming order.

IT IS FURTHER ORDERED that the court reserves judgment on whether it is constitutional for the lifetime registration requirement's incorporation of the requirement to report "[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system," Mich. Comp. Laws § 28.727(1)(i), to be applied retroactively and will request additional briefing in a forthcoming order.

IT IS FURTHER ORDERED that the court reserves judgment on Plaintiffs' request for costs and attorneys' fees pursuant to 42 U.S.C. § 1988 and Mich. Const. Art. 9, § 32, pending the resolution of the remaining issues in this case.

IT IS FURTHER ORDERED that judgment is entered in Defendants favor in all other respects.

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C) The court declines to exclude the answers of law enforcement that Poxson and Granzotto collected.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants' motion in limine (Dkt. #87) is DENIED.

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News Article:

Michigan's Sex Offender Registry law is so vague that parts of it are unconstitutional, including the requirement that offenders stay at least 1,000 feet from schools, a federal judge has ruled.

U.S. District Judge Robert Cleland, in a 72-page ruling, struck down several reporting requirements of the 1994 law, which has been amended several times by state lawmakers to make requirements stricter.

Regarding the 1,000-foot school safety zone, he said offenders are left to guess where the zones were and are not provided with enough information from the state to abide by the restriction.

And he struck down several other requirements, including a mandate that offenders report in person new e-mail and instant messaging addresses and notify authorities of all telephone numbers "routinely used by the individual."

The vagueness of the law "leaves law enforcement without adequate guidance to enforce the law and leaves registrants of ordinary intelligence unable to determine when the reporting requirements are triggered," Cleland wrote in his ruling.

The lawsuit was filed in 2012 by the American Civil Liberties Union of Michigan against Gov. Rick Snyder and Michigan State Police Director Kriste Etue, on behalf of six Michigan residents who are convicted sex offenders required to register. The University of Michigan Clinical Law Program also participated.

The residents argued that the law, and its many amendments, are impossible to follow. Regarding the 1,000-foot rule, they said, "the zones are not physically marked and registrants are not provided with maps demarking the boundaries."

McGuire -v- Strange

2-12-2015 Alabama:

McGuire -v- Strange

Michael A. McGuire was born in Montgomery, Alabama, where he graduated from high school in 1971. Eventually, he left the community for many years. In 2010, at the age of 57, he and his wife returned to his hometown to be with his aging mother and other family in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation of the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA"). Ala. Code § 15-20A-1 et seq.

Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and otherwise assaulted his 30-year-old girlfriend of five years. In May 1986, he was convicted of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison and a fourth year on parole, successfully completing his prison sentence. He then had a multi-decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother's words, "a free American." (Trial Tr. I, at 14.)

After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama's sex-offender laws, hoping to confirm his belief that he would not be subject to the state's restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriff's Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.

The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

... ... ... ...

VII. CONCLUSION

For the foregoing reasons, it is ORDERED and DECLARED that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires

• (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and
• (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13).

It is further ORDERED that the Attorney General's oral Motion to Strike and Defendants' oral Motions for Judgment as a Matter of Law are DENIED AS MOOT.

A.A. v New Jersey

Research into this 2001 case is ongoing, so be aware of that until further notice which we will post here when research is done.

12-6-2001 New Jersey:

A.A. v New Jersey

The litigation before the Court is the most recent constitutional challenge to New Jersey's "Megan's Law." Plaintiffs, all of whom have been convicted of sex offenses in New Jersey and are subject to registration and community notification pursuant to N.J.S.A. 2C:7-1 et seq. (collectively referred to as "Megan's Law"), instituted this suit on October 15, 2001 challenging the constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution and recent amendments to Megan's Law authorizing the development and maintenance of "a system for making certain information in the central registry ... publicly available by means of electronic Internet technology." P.L.2001, Ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to - 19) (hereinafter referred to as the "Internet Registry Act").

Soon after filing an initial complaint, Plaintiffs submitted an application for preliminary injunctive relief seeking to prevent the implementation of New Jersey's Internet sex offender registry, which is statutorily authorized to become effective on January 1, 2002. P.L. 2001, c. 167 § 10.1

For purposes of this motion, Plaintiffs' claims can be divided into two categories.

• First, Plaintiffs allege that the Internet Registry Act, by allowing unlimited public access to certain information collected pursuant to Megan's Law's registration provisions, violates their constitutional right to privacy in: (1) their home addresses; and (2) the totality of the information assembled and posted in the Internet sex offender registry.
• Second, Plaintiffs contend that the retroactive application of the Internet Registry Act to those members of the plaintiff class whose underlying sex offense was committed prior to the law's enactment violates the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution.2

For the reasons stated below, the Court will grant, in part, and deny, in part, Plaintiffs' motion for preliminary injunctive relief.

... ... ...

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OF THE INTERNET REGISTRY ACT, N.J.S.A. §§ 2C:7-12 — 19

This matter having appeared before the Court upon Plaintiff's motion for a preliminary injunction, and the Court having reviews the submissions of the parties and having heard oral arguments, for the reasons set forth in an opinion issued by this Court, which findings of fact and conclusions of law are incorporated herein by reference, and for good cause appearing,

IT IS on this 6th day of December, 2001,

ORDERED THAT: Plaintiffs' motion for a preliminary injunction preventing the implementation of P.L. 2001, ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to -19) is DENIED provided that the Internet Registry MUST EXCLUDE information identifying the home or apartment number, street, zip code, and municipality in which Plaintiffs' reside.

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As to "Home Addresses" see also Schiller v INS

US v Sterba

8-13-1998 Florida:

US v Sterba

The grand jury indicted James R. Sterba (Sterba) for allegedly violating 18 U.S.C. § 2422(b)1 by soliciting a minor for an unlawful sexual encounter.2 Sterba allegedly utilized a computer and the services of one of the adult "chat rooms" of America Online (AOL) to contact and persuade a putative minor to engage in sexual activity with him at an agreed time and place. A "chat room" is a service, available through the much-discussed "Internet," by which a participant sends to and receives messages from an unseen person who presumably shares some particular enthusiasm, in this instance, sexual intercourse.

After both the United States and Sterba completed their trial presentation and rested their respective cases, Sterba interposed a motion for mistrial based upon both the government's misidentification of a material witness and the consequent infringement of Sterba's sixth amendment right to confront the witnesses against him. I granted the motion. Sterba now seeks dismissal of the indictment based upon his fifth amendment immunity from being "for the same offence ... twice put in jeopardy ...", a right commonly called his immunity from "double jeopardy."

... ... ...

Conclusion:

By a course of intentional misconduct, discovered serendipitously by the defense during trial, the prosecution goaded the defense into moving for a mistrial. The defendant's fifth amendment immunity from double jeopardy precludes another trial and, therefore, requires the dismissal of the indictment.

The defendant's motion to dismiss the indictment is GRANTED.

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See Prosecutorial Misconduct Registry

And this 2013 article:

The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them

NEW ORLEANS -- Some questions seem particularly prone to set John Thompson off. Here's one he gets a lot: Have the prosecutors who sent him to death row ever apologized?

"Sorry? For what?" says Thompson. The 49-year-old is lean, almost skinny. He wears jeans, a T-shirt and running shoes and sports a thin mustache and soul patch, both stippled with gray. "You tell me that. Tell me what the hell would they be sorry for. They tried to kill me. To apologize would mean they're admitting the system is broken." His voice has been gradually increasing in volume. He's nearly yelling now. "That everyone around them is broken. It's the same motherfucking system that's protecting them."

He paces as he talks. His voice soars and breaks. At times, he gets within a few inches of me, jabbing his finger in my direction for emphasis. Thompson pauses as he takes a phone call from his wife. His tone changes for the duration of the conversation. Then he hangs up and resumes with the indignation. "What would I do with their apology anyway? Sorry. Huh. Sorry you tried to kill me? Sorry you tried to commit premeditated murder? No. No thank you. I don't need your apology."

The wrongly convicted often show remarkable grace and humility. It's inspiring to see, if a little difficult to understand; even after years or decades in prison, exonerees are typically marked by an absence of bitterness.

Not Thompson, but you can hardly blame him. Even among outrageous false conviction stories, his tale is particularly brutal. He was wrongly convicted not once, but twice -- separately -- for a carjacking and a murder. He spent 18 years at the Louisiana State Penitentiary, 14 of them on death row. His death warrant was signed eight times. When his attorneys finally found the evidence that cleared him -- evidence his prosecutors had known about for years -- he was weeks away from execution.

But what most enrages Thompson -- and what drives his activism today -- is that in the end, there was no accountability. His case produced a surfeit of prosecutorial malfeasance, from incompetence, to poor training, to a culture of conviction that included both willfully ignoring evidence that could have led to his exoneration, to blatantly withholding it. Yet the only attorney ever disciplined in his case was a former prosecutor who eventually aided in Thompson's defense.

"This isn't about bad men, though they were most assuredly bad men," Thompson says. "It's about a system that is void of integrity. Mistakes can happen. But if you don't do anything to stop them from happening again, you can't keep calling them mistakes."

Over the last year or so, a number of high-profile stories have fostered discussion and analysis of prosecutorial power, discretion and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the Obama administration's unprecedented prosecution of whistleblowers; the related Department of Justice investigations into the sources of leaks that have raised First Amendment concerns; and aggressive prosecutions that look politically motivated, such as the pursuit of medical marijuana offenders in states where the drug has been legalized for that purpose. In May, an 82-year-old nun and two other peace activists were convicted of "sabotage" and other "crimes of violence" for breaking into a nuclear weapons plant to unfurl banners, spray paint and sing hymns. Even many on the political right, traditionally a source of law-and-order-minded support for prosecutors, have raised concerns about "overcriminalization" and the corresponding power the trend has given prosecutors.

Most recently, the Justice Department came under fire for its investigation of leaks to the media, including a broad subpoena for phone records of the Associated Press, and for obtaining the phone and email records of Fox News reporter James Rosen. In the Rosen case, Attorney General Eric Holder personally signed off on a warrant that claimed that merely publishing information that had been leaked to him made Rosen a criminal co-conspirator. Many have pointed out that such a charge would make it a crime to practice journalism.

President Obama has since expressed his dismay at the Rosen warrant, but his response was curious. He asked Holder to investigate the possible misconduct that not only occurred under Holder's supervision, but in which Holder himself may have participated.

In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could: Prosecutors are relied upon to police themselves, and it isn't working. A growing chorus of voices in the legal community says the problem is rooted in a culture of infallibility, from Holder on down. And it's against this backdrop -- this environment of legal invincibility -- that we get the revelations of massive data collection by the National Security Agency, government employees who lie to Congress with no repercussions, and government investigators, courts and prosecutors operating in secret. ..Continued..

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.”

Audrey Doe v Bobby Jindal

3-29-2012 Louisiana:

Audrey Doe v Bobby Jindal
851 F.Supp.2d 995 (2012)

At issue in this case is a first and defining principle of our struggle as a nation that finally resolved in the Fourteenth Amendment to the Constitution: Equal Protection before the Law. As two writers1 have observed:

The idea was to distinguish between legislation for the common benefit and legislation that benefitted or burdened the few.... It was an appeal to notions of reciprocity in governance: law's generality was important, not simply in a formal sense but because it forced lawmakers to stand in the shoes of those they represented. The principle of class legislation was terraced in both directions — it not only aimed to prevent class privilege but also invidious oppression.

Section 1 of the Fourteenth Amendment instructs that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws."

At the outset, it must be underscored that the issue presented in this case is not about approval or disapproval of sexual beliefs or mores. It is about the mandate of equality that is enshrined in the Constitution.

In Louisiana, the solicitation of oral or anal sex for compensation can be prosecuted under two different statutes: the solicitation for compensation provision of the Prostitution statute, and the Crime Against Nature by Solicitation statute.2 Nine anonymous plaintiffs, all of whom were convicted of violating Louisiana's Crime Against Nature by Solicitation statute based on their agreement to engage in oral sex for compensation prior to August 15, 2011, bring this civil rights suit. They challenge that statute's requirement that, as a result of their conviction, they must register as sex offenders under Louisiana's sex offender registry law. They complain that if, instead, they had been convicted of solicitation of sex for money under the state Prostitution law, they would not have been required to register as sex offenders.3 It is the State's more lenient treatment of those convicted under the solicitation provision of the Prostitution statute, they urge, compared to those convicted under the Crime Against Nature by Solicitation statute, that anchors their civil rights claim in which they advance their constitutional challenge under the Fourteenth Amendment to the U.S. Constitution. They sue several State officials and one municipal official.

... ... ...

For all of these reasons, stripped of all political theater and with a concern solely to fidelity to the simple and clear injunction of the Fourteenth Amendment, the Court finds that the plaintiffs have demonstrated that the record, taken as a whole, leads to no rational basis for what the state legislature has done.30 The record discloses no genuine dispute as to any material fact: the plaintiffs have shown that they are entitled to judgment as a matter of law that they have been deprived of equal protection of the laws in violation of the Fourteenth Amendment to the U.S. Constitution.

Accordingly, the plaintiffs' motion for summary judgment is GRANTED. The plaintiffs shall submit a proposed judgment within five days consistent with this Order and Reasons.

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Hundreds to be stricken from Louisiana sex offender registry after class-action suit's settlement

6-13-2013 Louisiana:


Hundreds of people who were convicted of soliciting oral or anal sex for money under Louisiana's "crime against nature by solicitation" law will have their names removed from the state's sex offender registry following the settlement of a class-action lawsuit.

U.S District Judge Martin Feldman on Tuesday approved the settlement agreement between the New York-based Center for Constitutional Rights and Louisiana Attorney General James "Buddy" Caldwell's office.

Feldman ruled last year that nine plaintiffs who were convicted of the offense must be stricken from the registry. Plaintiffs' lawyers argued the ruling should be applied to roughly 700 others in the same position.

Alexis Agathocleous, one of the lead plaintiffs' lawyers on the case, said the registration requirement for people convicted of violating the law disproportionately punished black women and lesbian, gay, bisexual and transgender people.

"We are gratified that the state has agreed to vindicate the rights of hundreds of people who continued to be unconstitutionally registered as sex offenders," he said in a statement.

The settlement doesn't apply to people convicted of soliciting sex from a minor or anyone who was convicted of another sex offense subject to registration. State officials have up to 30 days to make an initial determination of who is entitled to be removed from the registry.

Feldman ruled last year that state lawmakers had no "rational basis" for requiring people to register as sex offenders if they were convicted of violating the law. The judge said the plaintiffs wouldn't have had to register if instead they had been convicted of soliciting sex for money under the state prostitution law.

The state Legislature amended the 200-year-old law in 2011 so that anyone convicted of a "crime against nature by solicitation" no longer will be required to register. But the legislative change didn't apply to hundreds who already were registered.

During a hearing in December 2012, a lawyer representing Caldwell's office argued that the recent change in state law leaves the potential class members without any valid claims. Feldman refused to dismiss the class-action suit, however, and expressed frustration at the pace of the process for deciding whether people already had a right to have their names removed from the registry

"I am incredulous and very concerned about why this process has been dragged out against the backdrop of politics for so long," the judge said. ..Source.. by MICHAEL KUNZELMAN

US v Myers

12-9-2008 Florida:

US v Myers
591 F.Supp.2d 1312 (2008)

Unfortunately Myers was overturned on appeal see US v Myers (584 F.3d 1349 (2009)) full details below.

And also: US v Powers
544 F.Supp.2d 1331 (2008)

Unfortunately Powers was overturned on appeal see US v Powers (584 F.3d 1349 (2009)) see link.

THIS MATTER is before the Court upon Defendant Edward Myers's Motion To Dismiss Indictment (DE 18). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.

Defendant Edward Myers is charged in a one-count Indictment (DE 7) with failure to comply with the registration requirements of the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16901, et seq. & 18 U.S.C. § 2250 (2006) (hereinafter "SORNA"). He seeks to dismiss the Indictment on several grounds, the most compelling of which is that both § 2250 and the registration requirements found at § 16913 exceed Congress's Commerce Clause power and are therefore unconstitutional.1

This Order centers upon the constitutionality of two statutes within the Adam Walsh Act. The thrust of the discussion centers on Congress's Commerce Clause power, where the intricacies of the law are divorced from any value judgment as to whether and how society should protect itself from sex offenders. Sex offenders have undermined the decency once assumed in our fellow man and made us think twice before sending our children and grandchildren outside for a day of carefree play; they have paralyzed our families with fear. The crimes the Adam Walsh Act is meant to prevent are among the most heinous anyone can imagine. To that end, no lawful measure is too great and few punishments are too severe to protect society from sex offenders. While this sentiment reflects the undersigned's personal feelings on the matter, it does not alter Congress's inability to bring about a manifold good through means it has been denied by the Founding Fathers. See Keller v. United States,213 U.S. 138, 144, 29 S.Ct. 470, 53 L.Ed. 737 (1909).

... ... ...

With statutes like those at issue here, Congress's desire to aid in the protection of society against sexual predators is understandable and laudable. However, "the powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803). Specifically, the grant of power made under the Commerce Clause is limited. Lopez, 514 U.S. at 552-553, 115 S.Ct. 1624 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 189-95).

Therefore, the statutes challenged herein cannot be upheld. Section 16913 transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw. Section 2250 also exceeds that grant of power made to Congress under the Commerce Clause. It is in no way a regulation of persons in interstate commerce but an exertion of a general police power through an illusory and impermissible jurisdictional nexus. Thus, the Court declares that § 16913 is unconstitutional in that Congress lacks the power to enact the same under the Commerce Clause. Because an unconstitutional law is no law at all, Defendant Edward Myers shall go hence without day.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. The Court hereby declares 42 U.S.C. § 16913 and 18 U.S.C. § 2250 as unconstitutional for the reasons expressed above;

2. Defendant Edward Myers's Motion To Dismiss Indictment (DE 17) be and the same is hereby GRANTED; and

3. That Defendant Edward Myers be discharged to go hence without day for return and exonerated of bond, if any, as to the Indictment hereinabove specified.

DONE AND ORDERED.

---

---

On Appeal: US v Myers
The Government appeals the district court's order dismissing an indictment that charged Edward Myers with traveling in interstate commerce and failing to register as sex offender as required by the Sex Offender Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250(a). The district court concluded that both § 2250 and SORNA's sex-offender registration requirements found in 42 U.S.C. § 16913 exceeded Congress's authority under the Commerce Clause. United States v. Myers,591 F.Supp.2d 1312, 1316 (S.D.Fla.2008).

We recently upheld against a Commerce Clause challenge both the failure-to-register offense in 18 U.S.C. § 2250(a) and the registration requirements in 42 U.S.C. § 16913. See United States v. Ambert,561 F.3d 1202, 1210-12 (11th Cir.2009). Myers concedes that the district court's order dismissing the indictment is contrary to Ambert but challenges the reasoning of that panel's decision on appeal. We are bound by that decision unless overruled by the Supreme Court or this Court sitting en banc. See United States v. Vega-Castillo,540 F.3d 1235, 1236 (11th Cir.2008).1 Accordingly, we vacate the district court's order and remand for reinstatement of the indictment. See United States v. Powers,562 F.3d 1342, 1344 (11th Cir.2009).

VACATED AND REMANDED.

John Does of Connecticut and Florida v Raemisch et al

This is by far the oddest case, start with its Title, then this case is Both UNFAVORABLE and FAVORABLE (Fees), really wild, must read to understand.

1-3-2013 Wisconsin:

John Does of Connecticut and Florida v Raemisch et al
Case No. 10-C-0911.

Plaintiffs, both individuals who had previously been convicted of sexual assault in Wisconsin, brought this action challenging the constitutionality of Wisconsin's sex offender registration and notification statute, Wis. Stat. §§ 301.45, 301.46 (2009-10), as applied to individuals whose convictions preceded the statute's effective date. Although constitutional challenges to the retroactivity of similar statutes had been previously been rejected by other courts, including the United States Supreme Court, plaintiffs brought a broad-based challenge against the entire statutory framework. Plaintiffs claimed that the statutes impose punishment in violation of the ex post facto clauses of the United States and Wisconsin constitutions, and that the laws violate plaintiffs' constitutional rights to equal protection and substantive due process. On August 28, 2012, the Court issued an order rejecting in full all but one of plaintiffs' claims. On the parties' cross motions for summary judgment, the Court granted the plaintiffs' motion in part, finding the § 301.45(10) requirement that plaintiffs pay a $100 annual assessment constituted an unconstitutional ex post facto fine. In all other respects, the Court denied plaintiffs' motion and granted defendants' motion. Pursuant to Federal Rule of Civil Procedure 59(e), both parties have now filed motions for reconsideration of the Court's decision as to the ex post facto and equal protection issues. For the reasons that follow, both motions will be denied.

Plaintiffs move the Court for reconsideration on several grounds, contending first that the Court erred in failing to find that Wisconsin imposes in-person reporting requirements that make Wisconsin's sex offender registration law materially different than the Alaska law considered in Smith v. Doe, 538 U.S. 84 (2003), and as a result Smith is not controlling. Rather, plaintiffs argue the in-person reporting requirements amount to physical restraints similar to criminal sanctions. Plaintiffs contend that the Court relied on an erroneous characterization of plaintiffs' Statement of Proposed Findings of Fact in concluding that plaintiffs failed to put forth proof of physical restraints on their liberty such that the law's execution is punitive. Second, plaintiffs argue the Court "misapprehended the arbitrariness" of Wisconsin's sex offender registration law with regard to its application to offenders based on the statute's effective date. (Pls.' Recons. Br. 7, ECF No. 61.) As such, plaintiffs contend the Court's conclusion that plaintiffs failed to demonstrate that they were similarly situated to the favored class and that plaintiffs failed to establish there was no rational basis for disparate treatment under the law was erroneous.

In addition, defendants seek reconsideration of the Court's decision granting summary judgment in favor of plaintiffs as to the unconstitutionality of the $100 annual assessment. Defendants contend that the "specific fee issue addressed by the court was not squarely raised prior to the summary judgment decision" and is therefore appropriate for reconsideration. (Defs.' Recons. Br. 2, ECF No. 59.) Defendants assert that the Court incorrectly applied the law in concluding the $100 annual assessment imposed under § 301.45(10) constitutes an unconstitutional ex post facto fine.

... ... ...

Defendants also contend that the Court misapplied the law in analyzing Taylor v. State of Rhode Island, 101 F.3d 780 (1st Cir. 1996). Defendants suggest that Taylor counsels in their favor, arguing that the Court should follow Taylor in holding that retroactively imposing a "modest" fee in order to recoup the costs of a supervisory program is reasonable and nonpunitive. However, as already discussed, Taylor assessed a fee imposed to offset costs of services provided to offenders serving parole and probation sentences. 101 F.3d at 783-84. Defendants insist that the principles applied in Taylor are relevant here. However, here, the fee applies even after registrants have completed their sentences, and the registrants receive no benefits from their payment. Rather, the payment of the annual assessment is intended solely to benefit the public by funding a public safety regulatory regime. As such, I remain convinced that the $100 annual fee can only be seen as punitive.

CONCLUSION
In sum, I remain convinced that the $100 annual assessment imposed by Wis. Stat. § 301.45(10) constitutes an unconstitutional ex post facto fine, but that the other constitutional defects plaintiffs allege are without merit. The parties' motions for reconsideration fail to show a need to correct manifest errors of law or fact. While the parties generally re-argue their original positions on the constitutional issues and raise several points of disagreement with the Court's analysis, they have not established errors requiring reconsideration.

Accordingly, both plaintiffs' motion for reconsideration (ECF No. 60) and defendants' motion for reconsideration (ECF No. 58) are DENIED.

Sipple v US

6-8-2010 Ohio:

Sipple v US
726 F.Supp.2d 813 (2010)

This matter is before the Court on Petitioner Lawrence Sipple's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 22). For the reasons that follow, Petitioner's motion is well-taken and is GRANTED.

... ... ...

Waucaush also establishes that Petitioner's guilty plea in this case was not knowing and intelligent and that, therefore, his conviction and sentence should be vacated. In Waucaush, the Court determined that the petitioner's guilty plea was not intelligently given because he pled guilty to a set of facts which did not constitute a crime. Id. at 260. The Court, therefore, concluded that Waucaush's plea was not intelligent and vacated his conviction. Id. at 263.

Similarly, in this case, new case law from the Sixth Circuit changed the legal significance of the facts to which Petitioner pled guilty, namely, that they no longer constituted a violation of SORNA. Therefore, Petitioner's guilty plea to the indictment was not intelligent and must be vacated. See id.

Accordingly, for the reasons stated, Petitioner's motion to vacate, set aside or correct sentence is well-taken and is GRANTED. Petitioner's conviction and sentence on Count 1 of the indictment are VACATED. Additionally, because the indictment is based on conduct occurring before the effective date of the SMART regulations, Petitioner's motion to dismiss the indictment is well-taken and is GRANTED. See Utesch, 596 F.3d at 312-13; Cain, 583 F.3d at 424.
IT IS SO ORDERED.

US v Waybright

NOTE: Both Waybright (below) and US v. Powers,544 F.Supp.2d 1331, 1333-36 (M.D.Fla.2008) are in agreement, that, 42 USC 16913 is unconstitutional, and both, have dismissed charges brought against defendants. Neither case has been appealed, but, all other courts simply say "we disagree with Waybright and Powers" and decide otherwise. i.e., that 42 USC 16913 is constitutional. See one explanation in US v Vardaro 575 F.Supp.2d 1179 (2008). So be aware of these circumstances.

6-11-2008 Montana:

US v Waybright
561 F.Supp.2d 1154 (2008)

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act ("SORNA" or the "Act"). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends:

• (1) Congress exceeded its power under the Commerce Clause in enacting SORNA's registration requirements and making it a federal crime to fail to register;
• (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA;
• (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state;
• (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively;
• (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment;
• (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and
• (7) Waybright's conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright's motions took place on June 4, 2008.

No court of appeals has addressed Waybright's arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons.

In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit. I agree with Waybright's claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the Constitution.

I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

... ... ...

IV. Conclusion
For the reasons set forth above,

IT IS HEREBY ORDERED that Defendant Waybright's Motion to Dismiss Based Upon APA, Tenth Amendment, and Right to Travel Violations (dkt # 13) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Montana's Failure to Implement SORNA, Due Process Violation, and Violation of the Non-Delegation Doctrine (dkt # 15) is DENIED.

IT IS FURTHER ORDERED that Defendant Waybright's Motion to Dismiss Based Upon Commerce Clause Violations (dkt # 11) is GRANTED IN PART and DENIED IN PART. The motion is DENIED with respect to 18 U.S.C. § 2250(a) because Congress did not exceed its power under the Commerce Clause in enacting this provision. The motion is GRANTED with respect to 42 U.S.C. § 16913. Congress exceeded is power in enacting 42 U.S.C. § 16913, and thus, the provision is unconstitutional.

IT IS FURTHER ORDERED that the Indictment against Defendant Waybright is DISMISSED WITHOUT PREJUDICE.

Article: Molloy: Sex offender registry rule unconstitutional

Miller v Skumanick

3-30-2009 Pennsylvania:

Miller v Skumanick
605 F.Supp.2d 634 (2009)

Before the court is plaintiffs' motion for a temporary restraining order (TRO). Having been briefed and a hearing having been held, the matter is ripe for disposition.

Background
At issue in this case is the practice of "sexting," which has become popular among teenagers in recent years. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 7). According to the plaintiffs, this is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." (Id.). Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. (Id. at ¶ 8). That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. (Id. ¶ 9). This practice is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it. (Id. ¶ 10).

Images and Threatened Prosecutions
In October 2008, Tunkhannock, Pennsylvania School District officials confiscated several students' cell phones, examined them and discovered photographs of "scantily clad, semi-nude and nude teenage girls." (Id. at ¶ 12). Many of these girls were enrolled in the district. (Id.). The School District reported that male students had been trading these images over their cell phones. (Id. at ¶ 13).

The School District turned the phones over to Defendant Skumanick, the District Attorney of Wyoming County, Pennsylvania. (Id. at ¶ 13). Skumanick began a criminal investigation. (Id.). In November 2008, Skumanick stated publically to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, 18 PENN. STAT. § 6312, or criminal use of a communication facility, 18 PENN. STAT. § 7512. (Id. at ¶ 15). Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. (Id. at ¶ 16). Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania's Registration of Sexual Offenders Act ("Meghan's Law"), 42 P.S. § 9791, for at least ten years and have their names and pictures displayed on the state's sex-offender website. (Id. at ¶ 17).

... ... ...

The court agrees with the plaintiffs that the public interest would be served by issuing a TRO in this matter as the public interest is on the side of protecting constitutional rights. This factor too supports issuing a TRO.

Conclusion
Upon balancing the TRO factors, we find that each factor weighs in favor of granting the TRO. Accordingly, we will grant the plaintiffs' motion for a temporary restraining order. An appropriate order follows.

ORDER
AND NOW, to wit, this 30th day of March 2009, the plaintiffs' motion for a temporary restraining order (Doc. 2) is hereby GRANTED. The defendant, Wyoming County District Attorney George Skumanick, and his officials, employees, agents and assigns, are hereby ENJOINED from initiating criminal charges against plaintiffs Marissa Miller, Grace Kelly and Nancy Doe for the two photographs at issue. This order shall be effective immediately.

A hearing on plaintiffs' request for a Preliminary Injunction will be held on June 2, 2009. A scheduling order will follow.

Plaintiffs' motion for leave to file the original complaint and proceed under pseudonyms and for a protective order (Doc. 3) is hereby GRANTED.

Plaintiffs' motion to compel the defendant to produce the photographs in question (Doc. 4) is hereby DENIED as moot. The defendant has supplied plaintiffs with the photographs.

Article: 3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography

ACLU of Nevada v Cortex Masto

UPDATE 2-1-2014: This case is NOT OVER see what is happening now in 2014.

UPDATE 9-15-2012: According to a Sep't 2012 ACLU Memo, this 2008 Injunction has been overturned, so we are keeping this here for documentation of what has happened. See ACLU 2012 Memo for more info(also copied below).

10-7-2008 Nevada:

ACLU of Nevada v Cortex Masto
719 F.Supp.2d 1258 (2008)

On September 10, 2008, a hearing was held before Hon. Judge James C. Mahan on Plaintiffs' Motion for Summary Judgment. Appearing for plaintiffs the American Civil Liberties Union and Does 1 through 8 were Margaret McLetchie and Allen Lichtenstein. Robert Langford appeared for Plaintiffs Does A through S. Binu Palal and Kimberly Buchanan appeared for defendants.

Plaintiffs filed their complaint on June 24, 2008, requesting that this court declare A.B. 579 and S.B. 471 unconstitutional and to issue an injunction prohibiting the enforcement of changes to various N.R.S. provisions to be modified by the implementation of A.B. 579 and S.B. 471. Plaintiffs stated several causes of action, including that the laws violated:

(1) Procedural Due Process under the U.S. Constitution;

(2) the Ex Post Facto Clause under the U.S. Constitution;

(3) the Double Jeopardy Clause under the U.S. Constitution;

(4) the Contracts Clause under the U.S. and Nevada Constitutions;

(5) the Separation of Powers under the Nevada Constitution; and

(6) the prohibition against Vague and Ambiguous laws under the U.S. Constitution.

... ... ...

In July of 2007, the Nevada Legislature passed A.B. 579 which mandated that its restrictions, notification provisions, and potential criminal penalties apply retroactively, not just to pedophiles, but to anyone who has committed any offense that involves "any sexual act or sexual conduct with another"—no matter how minor the sexual offense was—and to offenses committed as long ago as July 1, 1956. In July of 2007, the Nevada Legislature also passed S.B. 471, which imposed G.P.S. monitoring and movement and residency restrictions on certain sex offenders. Plaintiffs submitted declarations, uncontroverted by the defendants, making clear that the Parole and Probation Department was applying S.B. 471's provisions retroactively.

Together, A.B. 579 and S.B. 471 redefine who is considered a "sex offender," the way in which sex offenders are classified and monitored, and what restrictions apply to which sex offenders. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological assessments focusing on whether the offenders pose a risk to society and are likely to re-offend. The statutes mandated that sex offenders would henceforth be automatically classified based on one factor, the crime committed. Because of the changed standards, numerous people: (1) whose crimes were committed in the distant past; (2) who have been determined by the state of Nevada to be unlikely to re-offend; and (3) who have complied with the law, attended counseling, and who have not committed additional crimes would be thrown back into the system or be subject to more onerous monitoring and residency requirements.

A.B. 579 and S.B. 471 do not provide any procedural due process protections, leaving even people who believe that they have been miscategorized as sex offenders with no means to challenge the application of A.B. 579 and S.B. 471.
The application of these laws retroactively is the equivalent a new punishment tacked on to the original sentence—sometimes years after the fact—in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions. Moreover, because they do not provide any procedural protections from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the U.S. Constitution.

For these reasons, the Court hereby grants Plaintiffs' Motion for Summary Judgment, making the June 30, 2008 Preliminary Injunction enjoining the enforcement of A.B. 579 and S.B. 471 a Permanent Injunction.

IT IS SO ORDERED.

---

ACLU Letter (to preserve):

Ninth Circuit Rules on Nevada's Sex Offender Laws

September 10, 2012

The battle over the changing face of laws concerning sex offenders in Nevada seems to have come to an end. The ACLU of Nevada has been working on protecting the rights of convicted offenders since the passage of Assembly Bill 579 and Senate Bill 471 during the 2007 legislative session.

A.B. 579 and S.B. 471 drastically changed how Nevada deals with sex offenders. A.B. 579 retroactively changed the categorization of sex offenders, so regardless of the crime, offenders who committed misdemeanors with any sexual element since July 1, 1956 would fall within the purview of registration and some notification requirements. Many rehabilitated, low risk offenders whom the state of Nevada determined were unlikely to re-offend could be retroactively classified as "high risk" offenders based solely on their conviction. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological evaluations focusing on whether the offenders pose a risk to society and are likely to re-offend. S.B. 471 prohibited some offenders from “knowingly being” within 500 feet of certain locations, and was also being applied retroactively.

In 2008, the ACLU of Nevada filed suit against the implementation of these laws, and in April 2012, the Ninth Circuit Court of Appeals issued a ruling in the case. The Ninth Circuit upheld A.B. 579 as constitutional, including its retroactive application. The permanent injunction issued by the District Court in 2008 was lifted and A.B. 579 has gone into effect. However, the Ninth Circuit stated that the laws concerning certain residency requirements cannot be applied retroactively, and has upheld the injunction against S.B. 471.

This case was fundamentally about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was concerned that if the Nevada legislature was allowed to impose laws retroactively in this context, it could pass other laws that take effect retroactively, violating the Constitution.

The ACLU continues to monitor and fight against the imposition of laws like these. Even though the outcome of this important case was not completely what we had hoped, it is encouraging to know that our efforts do not go unnoticed and the mission of the ACLU of protecting the rights of all Nevadans continues to be successful.

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Doe v Harris

Now see Doe v Harris 7-1-2013 (California Sup Ctr)

1-11-2013 California:

Doe v Harris (Order Granting Preliminary Injunction) No. C12-5713 TEH.
On Appeal see below:

This matter came before the Court on December 17, 2012, on Plaintiffs' motion for a preliminary injunction. Plaintiffs challenge several provisions of the Californians Against Sexual Exploitation Act ("CASE Act" or "Act") that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. Having carefully considered the parties' written and oral arguments, the Court now GRANTS preliminary injunctive relief for the reasons explained below.

On November 6, 2012, California voters approved the CASE Act, which appeared on the ballot as Proposition 35, with approximately 81% of the vote. Ex. D to Intervenors' Req. for Judicial Notice at 1.1 Plaintiffs John Doe, Jack Roe,2 and the non-profit organization California Reform Sex Offender Laws filed this action on behalf of present and future California sex offender registrants the following day, when the Act was to take effect.3 See Cal. Const. art. II, § 10(a). They contend that California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act, violate Plaintiffs' First Amendment rights to free speech and free association. They further contend that the provisions are void for vagueness under the Fourteenth Amendment.

California's sex offender registration program is governed by California Penal Code section 290 et seq. The CASE Act added the following items to the list of information registrants must provide "upon release from incarceration, placement, commitment, or release on probation":

(4) A list of any and all Internet identifiers established or used by the person.

(5) A list of any and all Internet service providers used by the person.

(6) A statement in writing, signed by the person, acknowledging that the person is required to register and update the information in paragraphs (4) and (5), as required by this chapter.

Cal. Penal Code § 290.015(a). In addition, items (4) and (5) must be reported as part of the annual registration process. Id. § 290.012(a).

The Act defines "Internet service provider" as "a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet," except for any "business, organization, or other entity that provides only telecommunications services, cable services, or video services, or any system operated or services offered by a library or educational institution." Id. § 290.024(a). "Internet identifier" is defined as "an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication." Id. § 290.024(b).

The CASE Act also added a provision that requires registrants to notify law enforcement within 24 hours of any changes in the Internet information subject to registration:

If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.

Id. § 290.014(b). This section further requires all registrants to "immediately provide" the required information to law enforcement upon the effective date of the Act. Id.

...(Additional facts are long but interesting, should be reviewed), ...

Accordingly, with good cause appearing for the reasons stated in this order, Plaintiffs' motion for a preliminary injunction is GRANTED. IT IS HEREBY ORDERED that:

1. Defendant Kamala Harris and her officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her, are enjoined from implementing or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act.17

2. Defendant Harris shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statutes or from otherwise collecting registered sex offenders' information. The government shall file a declaration establishing proof of such notice on or before January 28, 2013. Alternatively, the parties may file on or before that date a stipulation and proposed order that local law enforcement will not enforce the enjoined provisions even in the absence of receiving actual notice.

IT IS SO ORDERED.

---

On Appeal: No. 09-17362.
We certify to the California Supreme Court the question set forth in Part II of this order. All further proceedings in this case are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this Court. The parties shall notify the Clerk of this Court within three days after the court accepts or rejects certification, and again within three days if the court renders an opinion. The panel retains jurisdiction over further proceedings.

I
Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court a question of law concerning the interpretation of California plea agreements. The decisions of the Courts of Appeal of the State of California provide no controlling precedent regarding the certified question, the answer to which may be determinative of this appeal. We respectfully request that the California Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court's consideration of the case. We agree to follow the answer provided by the California Supreme Court. If the Supreme Court declines certification, we will resolve the issue according to our perception of California law.

II
The question of law to be answered is:
Whether, under California law, the default rule of contract interpretation is

• (a) that the law in effect at the time of a plea agreement binds the parties, or
• (b) that the terms of a plea agreement may be affected by changes in law.

...continued...

Woe v Spitzer

8-4-2008 New York:

Woe v Spitzer
571 F.Supp.2d 382 (2008)

The court held:

This is a civil rights action in which Plaintiff, referred to herein only by the pseudonym, "Alan Woe" ("Plaintiff") alleges a deprivation of his right to due process of law as guaranteed by the United States Constitution. Plaintiff seeks to have this court hold a provision of the New York State Sex Offender Registration Act of 1995, codified at Section 168-h(1) of the New York State Correction Law ("SORA"), unconstitutional.1 Presently before the court is Defendants' motion, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the complaint. For the reasons set forth below, the motion is granted and the complaint is dismissed.

The relevant facts supporting Plaintiff's claim are not in dispute and are set forth below.

Plaintiff is a designated sex offender pursuant to the terms of SORA. At the time of his designation, Plaintiff was required to register as a sex offender with law enforcement authorities for a period often years. That period began as of the date of enactment of SORA, January 21, 1996. Three days before the ten year period was set to expire, SORA was amended to provide for a twenty year period of registration for sex offenders classified within Plaintiff's category of risk. Thus, instead of Plaintiffs registration period expiring on January 21, 2006, it is now set to expire on January 21, 2016.

Plaintiff does not challenge the Constitutionality of SORA as a whole. Instead, this action is limited to the claim that the statutory amendment extending the registration period from ten to twenty years has deprived Plaintiff of his right to procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiff argues that the newly amended statutory scheme deprives him of the procedural right to petition for relief from the twenty year registration requirement.

Doe v Nebraska

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."


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Earlier Filings:

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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

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PDF 12-30-2009