Bartlett v Alameida

5-10-2004 California:

Bartlett v Alameida
366 F.3d 1020 (2004)

William Louis Bartlett is a state prisoner serving a 25-year-to-life sentence for failing to re-register as a sex offender pursuant to California's sex offender registration statute, Cal. Pen.Code § 290(a)(1)(A). He contends, in his quest for a writ of habeas corpus, that his conviction violates due process because the state was not required to prove that he had knowledge of the lifelong duty to register. The district court denied Bartlett's petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we reverse and remand.

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IV.
Lambert required the state to prove that Bartlett knew or probably knew of his lifelong duty to register as a sex offender. The trial court erroneously instructed the jury that actual knowledge was not an element of the crime. Because this error was not harmless, and because the state court of appeal unreasonably determined that no Lambert error occurred, the district court erred by not granting Bartlett's petition for writ of habeas corpus. We reverse that decision and remand to the district court with instructions to grant the writ of habeas corpus unless the state grants Bartlett a new trial within sixty days of the issuance of this Court's mandate.
REVERSED and REMANDED.

Lambert v California

WARNING: There is no better case than this to be acquitted of FTR, BUT BUT BUT, as folks know the opposition usually presents the forms signed somewhere to show actual knowledge of duty to register. Use case only if there is absolutely no way for the opposition to prove one had knowledge.

12-16-1957 California:

Lambert v California
355 U.S. 225 (1957)

Section 52.38 (a) of the Los Angeles Municipal Code defines "convicted person" as follows:

"Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony."

Section 52.39 provides that it shall be unlawful for "any convicted person" to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.

Section 52.43 (b) makes the failure to register a continuing offense, each day's failure constituting a separate offense.

Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law.* The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that § 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. Appellant, renewing her constitutional objection, moved for arrest of judgment and a new trial. This motion was denied. On appeal the constitutionality of the Code was again challenged. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. The case is here on appeal. 28 U. S. C. § 1257 (2). We noted probable jurisdiction, 352 U.S. 914, and designated amicus curiae to appear in support of appellant. The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.

The registration provision, carrying criminal penalties, applies if a person has been convicted "of an offense punishable as a felony in the State of California" or, in case he has been convicted in another State, if the offense "would have been punishable as a felony" had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.

We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

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Registration laws are common and their range is wide. Cf. Bryant v. Zimmerman,278 U.S. 63; United States v. Harriss,347 U.S. 612; United States v. Kahriger,345 U.S. 22. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled.

The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, "A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear." Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.

Reversed.

USA v Rudd

11-23-2011 California:

USA v Rudd
(662 F.3d 1257 (2011)

Note: This is the very first case where a Judge questioned residency laws, and has remanded the case ordering lower court to explain.

William Newton Rudd appeals the district court's imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct.

The special condition prohibits Rudd from residing "within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18." We have jurisdiction pursuant to 18 U.S.C. § 3742.

Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction.

COURT: [2] It is unclear, at least from this record, what residency restriction would be sufficient but "involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release." Daniels, 541 F.3d at 924; United States v. Rearden, 349 F.3d 608, 618 (9th Cir. 2003). Would a residency restriction of 1,000, 3,000, or even 5,000 feet each be appropriate without any further explanation solely because of the nature and circumstances of Rudd's conviction? In the absence of any explanation of how the chosen distance furthers the purposes of Rudd's supervised release, the choice of 2,000 feet appears arbitrary. We thus conclude that the district court was required to provide an explanation for choosing the 2,000 foot residency restriction.4

Article: Court to Study Why Pedophile Should Be Kept From Kids

Connecticut Dept Of Public Safety V Doe

3-5-2003 Connecticut:

Connecticut Dept. Of Public Safety V. Doe (Oral Argument)

Among other things, Connecticut’s “Megan’s Law” requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants’ names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices.

Respondent, a convicted sex offender who is subject to the law, filed a 42 U.S.C. § 1983 action on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Fourteenth Amendment’s Due Process Clause. The District Court granted respondent summary judgment, certified a class of individuals subject to the law, and permanently enjoined the law’s public disclosure provisions.

The Second Circuit affirmed, concluding that such disclosure both deprived registered sex offenders of a “liberty interest,” and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be “currently dangerous.”

U.S. Supreme court Held: The Second Circuit’s judgment must be reversed because due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U.S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact–that he is not currently dangerous–that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau, 400 U.S. 433.

Note: A review of both of these cases will show, that, in today's climate of dozens of laws affecting a person's reputation on both the federal and state levels, this is no longer a "mere injury to reputation," now it is equivalent to civil death in society. A second point is, in Paul v Davis there was an exception, it said, if it affects one's employment then it is no longer a "mere injury" and today we see sex offenders laws clearly preventing registrants from any gainful employment.

As the DPS Website explains, the law’s requirements turn on an offender’s conviction alone–a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise. Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment’s protections, and maintains that his challenge is strictly a procedural one. But States are not barred by principles of “procedural due process” from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (plurality opinion). Such claims “must ultimately be analyzed” in terms of substantive due process. Id., at 121. Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles. Pp. 4—6.

271 F.3d 38, reversed.

Smith v Doe

3-5-2003 Alaska:

Smith v. Doe (Oral Argument) (U.S. Supreme Court)

Under the Alaska Sex Offender Registration Act (Act), any sex offender or child kidnaper incarcerated in the State must register with the Department of Corrections within 30 days before his release, providing his name, address, and other specified information. If the individual is at liberty, he must register with local law enforcement authorities within a working day of his conviction or of entering the State. If he was convicted of a single, nonaggravated sex crime, the offender must provide annual verification of the submitted information for 15 years.

If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender’s information is forwarded to the Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards is kept confidential.

The offender’s name, aliases, address, photograph, physical description, driver’s license number, motor vehicle identification numbers, place of employment, date of birth, crime, date and place of conviction, length and conditions of sentence, and a statement as to whether the offender is in compliance with the Act’s update requirements or cannot be located are, however, published on the Internet. Both the Act’s registration and notification requirements are retroactive.

Respondents were convicted of aggravated sex offenses. Both were released from prison and completed rehabilitative programs for sex offenders. Although convicted before the Act’s passage, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with the wife of one of them, also a respondent here, brought this action under 42 U.S. C. §1983, seeking to declare the Act void as to them under, inter alia, the Ex Post Facto Clause, U.S. Const., Art. I, §10, cl. 1.

The District Court granted petitioners summary judgment. The Ninth Circuit disagreed in relevant part, holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause.

U.S. Supreme court Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18.

Doe v State of Alaska

7-25-2008 Alaska:

Doe v State of Alaska
(189 P.3d 999 (2008))

This is 5 years after the U.S. Supreme court Alaska case of Smith v Doe. Given the state supreme court now feels ASORA is unconstitutional is proof that registration is now further punishment, given it is coupled with many other newer laws affecting registrants.

The Alaska statute known as the Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and disclose detailed personal information, some of which is not otherwise public. Most of the disclosed information is publicly disseminated and is published by the state on the internet.1

Does applying ASORA to "John Doe," who committed his crime and was convicted and sentenced before ASORA was enacted, violate the ex post facto clause of the Alaska Constitution? We conclude that it does because ASORA imposes burdens that have the effect of adding punishment beyond what could be imposed when the crime was committed.

We therefore hold that ASORA's registration requirement does not apply to persons who committed their crimes before ASORA became effective, and reverse the superior court order granting final judgment in favor of the state and against Doe.

Article: Offender won't have to register

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