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.

John Doe v New Hampshire

2-124-2015 New Hampshire:

John Doe v. New Hampshire

Petitioner John Doe appealed a superior court order granting summary judgment to the State on his declaratory judgment action. In that action, petitioner sought a ruling that RSA chapter 651-B was unconstitutional as applied to him, because it violated the prohibition against retrospective laws and the due process clause of the State constitution.

Petitioner pled guilty to two counts of aggravated felonious sexual assault which occurred in 1983 and 1984. On January 1, 1994, the petitioner became subject to registration as a sex offender. According to the petitioner, he was not aware of this requirement until 2004, but since then he has complied with all of the registration requirements.

Since an injury in 2006, the petitioner has been permanently disabled. He must use a cane to get around and he must use a scooter to travel any significant distance. Due to his injury and subsequent disability, the petitioner’s physicians have recommended that he obtain public housing in order to meet his medical needs. The petitioner sought housing through the Manchester Housing Authority and was initially approved. However, his approval was revoked because of his status as a registered sex offender.

Upon review, the Supreme Court found that RSA 651-B was intended by the Legislature as regulatory, but due to petitioner's disability and difficulties with housing, the statute exceeded "simply burdening or disadvantaging the petitioner, and we can no longer find that the effects are 'de minimus.'" "Absent the lifetime-registration-without-review provision, [the Supreme Court] would not find the other effects of the act sufficiently punitive to overcome the presumption of its constitutionality."

The Supreme Court further concluded that the act could be enforced against petitioner consistently with the constitutional prohibition against retrospective laws only if he was promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he was permitted to demonstrate that he no longer posed a risk sufficient to justify continued registration.

The Court therefore affirmed in part, reversed in part, and remanded for further proceedings.

In A Victory For Fundamental Fairness, The NH Supreme Court Rules That Retroactive, Lifetime Registration Requirement Is Unconstitutional As Applied To ACLU Client

2-12-2015 New Hampshire:

CONCORD – In a victory for fundamental fairness, the New Hampshire Supreme Court held today that New Hampshire’s law requiring the registration of certain criminal offenders is unconstitutional as applied to an ACLU client because the law retroactively imposes lifetime restrictions on individuals who were convicted before these lifetime restrictions were enacted. The case was brought by the American Civil Liberties Union of New Hampshire (“ACLU”), and the petitioner was represented by William Chapman of Orr & Reno, P.A. and Gilles Bissonnette and Barbara Keshen of the ACLU.

The Court held that Chapter 651-B’s retroactive, lifetime registration requirements were “punitive in effect” and therefore unconstitutional as applied to the petitioner. As the Court explained, “the act as currently constituted is excessive” and certain aspects of the act “serve no readily-apparent non-punitive purpose.” The Court added, “[w]e find the lifetime duration of the registry in particular to be excessive, when considered with all of the act’s other impositions. If in fact there is no meaningful risk to the public, then the imposition of such requirements becomes wholly punitive.”

Thus, the Court concluded: “The statute has changed dramatically since [1994] to the point where the punitive effects are no longer ‘de minimus.’ No one amendment or provision [since 1994] is determinative, but the aggregate effects of the statute lead us to our decision. Although there is a presumption in favor of a statute’s constitutionality, here this presumption has been overcome because we are convinced that the punitive effects clearly outweigh the regulatory intent of the act.”

The Court went on to specifically explain how New Hampshire’s registration statute negatively impacts lifetime registrants and is punitive. For example, the Court noted that the broad public dissemination of registrants’ personal information “stigmatizes registrants and can lead to further harm, such as ‘vigilante justice.’”

The Court added that lifetime quarterly in-person reporting, as well as “the frequent reporting and checks by the authorities at the [petitioner’s] residence do entail a level of oversight by the State to which few citizens,” including other convicted individuals, “are subject.” Thus, the Court explained: “For the [petitioner] these requirements will continue for the rest of his life.

Notably, there is no way for the [petitioner] to be relieved of the requirements, even though he has not reoffended in 30 years, has completed counseling, was discharged from probation early, and is currently permanently disabled.”

Conviction of man who admitted having child porn thrown out

12-24-2013 New Hampshire:

The state Supreme Judicial Court has overturned the guilty plea, conviction and 2-15 year prison sentence of a man who police said admitted possessing child pornography.

David Latagne agreed to plead guilty to a reduced charge of attempted possession of child pornography last year and was sentenced to 2-15 years in state prison.

But the plea deal came only after a judge refused to throw out Latagne's admission to police that he possessed child porn and the results of a search of his computer. The agreement allowed him to remain free while he appealed that ruling.

Salem police arrested Lantagne at Canobie Lake Park in July, 2013 on disorderly conduct charges after getting complaints that he was taking pictures of young girls' backsides as they emerged from a water ride.

In a unanimous decision, the justices said since the disorderly conduct charge did not meet the legal standard for that crime, the arrest was "unlawful" and prosecutors could not use statements made when he was questioned while police were holding him on that charge.

The court said Lantagne was arrested after a woman complained to a security guard that Lantagne made her "nervous," and the guard observed Lantagne positioning his cell phone on the side of his leg and aiming at young girls clad in swim suits.

The officer said Lantagne admitted taking the pictures and saying that he had an attraction to young girls, calling it "a problem.

Convicted sex offender gets new child pornography charges thrown out

8-31-2013 New Hampshire:

NASHUA – Years ago, Roger Chadwick convicted Thomas Richards on child pornography charges. This week, he helped Richards defeat new child porn charges.

A judge tossed out evidence that Richards, 52, a convicted sexual offender, possessed child pornography and ruled that police conducted an illegal search based on online tips.

Chadwick, Richards’ defense attorney, was the assistant county attorney who convicted Richards on eight counts of child pornography in 2005.

On Friday, Hillsborough County Superior Court Judge Diane Nicolosi suppressed evidence police seized during a search of Richards’ home, including two computers containing suspected images of child pornography. She ruled that police did not have probable cause to search the home because they included only “vague generalities” regarding the images in a search warrant affidavit.

In all likelihood, the ruling kills the state’s case. Hillsborough County Attorney Patricia LaFrance said her office will review the decision but isn’t likely to appeal.

“Moving forward, we use this as a learning experience, and unfortunately, it comes at the expense of this case,” she said. “It is unfortunate, but not every case is perfect.”

In a hearing earlier this week, Chadwick argued police were only led to Richards’ home in Milford by uncorroborated tips submitted anonymously online.

The tips reported to police indicated someone at a certain IP address appeared to be trading child pornography. Police got what is known as a subscriber warrant to determine to whom the IP address belonged. But unconfirmed tips from unknown people, who were in Australia and Maryland, aren’t enough to establish probable cause, Chadwick argued Monday.

“Somebody has to do that independent analysis,” he said. “Someone has to take a look.”

Assistant Hillsborough County Attorney Nicole Thorspecken said police were right to take the anonymous tips seriously because, for one thing, they came in at the same time from two independent sources with no connection to Richards.

Once police used the subscriber warrant to determine the IP address belonged to Richards, the names of some of the files, along with his history and other factors, were enough to establish probable cause to search his home, Thorspecken said.

“Making sense is enough to reach probable cause because probable cause is an adjustable concept,” she said.

Nicolosi ruled police had enough probable cause for the subscriber warrant, but that the names of the images – including 6YO and 10YO – aren’t enough to establish probable cause for the search warrant because even if the numbers do refer to children, they do not establish that the children are engaged in sexual acts and police never viewed the images.

Instead, they “relied on vague descriptions and generalities provided by the untrained eye of a tipster, who admittedly did not observe any of the pictures himself in any detail,” Nicolosi said.

The state’s sex offender registry shows Richards was convicted of eight counts of child pornography on Feb. 28, 2005, in Hillsborough County Superior Court in Nashua, as well as duty to report on Jan. 11, 2011. ..Source.. by JOSEPH G. COTE, Staff Writer

Horner v State

6-19-2008 New Hampshire:

Horner v State

The plaintiff, Philip S. Horner, appeals an order of the Superior Court (Smukler, J.) denying his petition for a writ of prohibition to enjoin the State from enforcing RSA 651-B:11 (2007 & Supp. 2007), which mandates the collection of a sex offender registration fee. We affirm.

The plaintiff was convicted in 2000 of five counts of felonious sexual assault, see RSA 632-A:3 (2007). Every sex offender and offender against children is required to register with the New Hampshire Division of State Police (division) which maintains the sex offender registry. RSA 651-B:2, I (2007), :11, I (Supp. 2007). Upon release from prison, sex offenders must inform the division where they intend to reside and the division enters this information into the law enforcement name search system. RSA 651-B:3, I (Supp. 2007). When the division is notified by law enforcement that a sex offender has moved to New Hampshire, the division must locate the offender, serve notice of duty to register and enter the offender’s information in the system. RSA 651-B:3, II (Supp. 2007). On a semi-annual basis, the division is required to verify the offender’s address by sending a letter by certified mail to the offender. RSA 651-B:3, III (2007). Offenders must register in person on a semi-annual basis, be photographed and provide specific information about their appearance, employment and vehicles. Id.; RSA 651-B:4, I(a)(2)-(3) (2007).

Pursuant to the statute, sex offenders must pay “a fee of $17 semi-annually.” RSA 651-B:11, I. The plaintiff brought a petition for a writ of prohibition contending that the statute violates the prohibition against disproportionate taxation in Part I, Article 12 and Part II, Article 5 of the State Constitution. Following a hearing, the trial court denied the petition, ruling that the plaintiff failed to establish that RSA 651-B:11 imposes a tax.

On appeal, the plaintiff argues that the sex offender registration fee “is in reality a disproportionate tax, being an enforced contribution to fund a public safety measure (the registry) which benefits all citizens, not just registrants.” The State argues that the charge is a fee because the statute serves a regulatory purpose and the fee helps to defray the cost of maintaining the registry.

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We hold that the $17 semi-annual charge imposed upon sex offenders is not intended to raise additional revenue but, rather, is used solely to support a governmental regulatory activity made necessary by the actions of those who are required to pay the charge. As the trial court found, the sex offender registration fees “are applied directly to regulatory services that would not be necessary if there were no sex offenders.” There is no evidence that the fee does not “bear a relationship to and approximate the expense” of maintaining the sex offender registry, see D’Antoni, 153 N.H. at 658, nor is there evidence that the fee is not incidental to regulation but is rather “primarily for the purpose of producing revenue.” Appeal of Ass’n of N.H. Utilities, 122 N.H. 770, 773 (1982) (quotation omitted). Accordingly, the $17 semi-annual charge is properly characterized as a fee and not a tax.

Czyzewski v New Hampshire Department of Safety

6-7-2013 New Hampshire:

Czyzewski v New Hampshire Department of Safety (PDF Copy)

In Czyzewski v. New Hampshire Department of Safety, decided today, the Court provided a classic example – and a very defensible example – of how Courts will literally ignore the language of a statute in order to reach a desired result.

Czyzewski tried to induce a 13 year old who he met on the internet to engage in sexual activity with him – a serious sex crime. It is a serious crime, even though there was no 13 year old. The “child” was a police officer engaged in a sting operation, chatting away online and pretending he was a sexually-vulnerable 13 year old.

After conviction for the crime of attempted sexual assault, the State of New Hampshire ordered defendant to register as a sex offender. Czyzewski fought this Order in Court, seeking a declaratory judgment that he did not have to register because the registration statute required sex offender registration for the crime of sexual assault only “‘where the victim was under [the age of] 18 at the time of the offense.” Czyzewski argued that because there was no victim, but rather an adult police officer who was not under the age of 18, he should not have to register under the plain language of the statute.

The unanimous Court disagreed, essentially ignoring the language of the statute, based on the reasoning that the legislature could not possibly have meant what it said because the legislature also criminalized attempt crimes that do not involve any actual victim.

The Court, in my opinion, is right. Contrary to the view of Justice Scalia that Courts should limit themselves to so-called “textual” analysis… and contrary to the famous and simplistic claim of Chief Justice Roberts that Judges merely “call balls and strikes” … Courts have a difficult job. Courts must determine the intent of the legislature in enacting a law. Courts must use their judgment, not just mindlessly adhere to the “plain language” of a law, because legislative bodies cannot possibly anticipate every fact pattern that might arise in the future. In this case, the Court’s decision is sensible and without doubt adheres to the legislative intent in enacting the sex offender registry law, even if it strays from the literal language the legislature chose. ..Source.. by Ted Lothstein.

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NH court says convicted sex offender must register

6-5-2013 New Hampshire:

The New Hampshire Supreme Court says a man convicted of attempted sexual assault must register as a sex offender, rejecting his argument that there wasn’t an actual assault or victim.

Justin Czyzewski, 28, was convicted in October 2009 based on online conversations with an undercover detective he believed to be a 13-year-old girl.

New Hampshire law requires all persons convicted of sex crimes involving victims under age 18 to register as sex offenders wherever they live. Czyzewski now lives in Drexel Hill, Pa., and is listed in that state’s sex offender registry.

Czyzewski appealed the trial judge’s ruling denying his request for a declaration that he does not have to register. The Supreme Court’s unanimously upheld that ruling in its decision released Wednesday.

Czyzewski argued that he doesn’t fall within the registration requirements because his attempt involved a police officer and not an actual child.

The court ruled the law was not intended to give a break to convicts who take ‘‘a substantial step in targeting an ‘actual victim’ but do not complete the crime.’’

‘‘There is no indication in the statute that the legislature intended either to categorize attempt crimes in this way or to benefit a category of manifestly dangerous criminals for no other reason that the fortuitous fact that their intended victims turned out to be undercover police officers,’’ Justice Gary Hicks wrote.

Czyzewski’s lawyer, Philip Desfosses, did not immediately return a call seeking comment. ..Source.. by Boston.com