U.S. v Shannon

2-18-2014 7Th Cir:

U.S. v Shannon

While on supervised release for possessing child pornography, Ralph Shannon violated the conditions of his release by attaching a web camera to his computer without prior permission. He also viewed several websites involving sexually explicit images, purportedly of teenage girls.

Those actions led the district court to revoke Shannon's supervised release despite Shannon's contention that the websites contained disclaimers that the sites did not actually depict any minors.

In this appeal, Shannon contests the district court's imposition of a special condition for his life term of supervised release: a ban on the possession of any sexually explicit material. This ban was not restricted to material involving minors. Nor was it limited to visual depictions. And it was not discussed before or during the hearing, by anyone including the judge, before the judge imposed it.

In light of the lack of findings or explanation for the lifetime ban on the possession of all sexually explicit material, we vacate the condition and remand this case to the district court for further proceedings.

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Here, in contrast, the district court did not at all explain the tie between the possession of any material containing sexually explicit conduct, even legal material depicting adults, and Shannon's conduct. And it gave no reason or explanation for the ban on even legal adult pornography. Cf. United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (finding fifteen-year ban on "pornography of any kind" plainly erroneous where there was no explanation or apparent basis in the record for a connection between lawful sexually explicit materials and the defendant's conviction for engaging in sexual conduct with a nine-year old girl).

In light of the lack of findings, we vacate Special Condition No. 10 and remand this case to the district court for further consideration. See Adkins, 2014 WL 325254 at *15; Goodwin, 717 F.3d at 524-25.

III. CONCLUSION.

We VACATE Special Condition No. 10 of Shannon's supervised release and REMAND for further proceedings consistent with this opinion.

State v William Dinkins Sr

The essence of this case is, a person cannot be released from prison unless they have an residence (address), but finding one when in-prison is impossible. The state's position is absurd, the inmate needs to be released to find a residence..

3-12-2012 Wisconsin:

State v. William Dinkins, Sr. (Supreme court)

1 The State seeks review of a published decision of the court of appeals that reversed a judgment and order of the circuit court finding William Dinkins, Sr. guilty of knowingly failing to comply with the sex offender registration statute.[1] That statute required Dinkins to provide the Department of Corrections (DOC) with "the address at which [he] . . . will be residing" at least ten days prior to his release from prison.[2] The circuit court found that Dinkins attempted to comply with the registration requirements but was unable to find housing for himself prior to his release. Nevertheless, relying on the testimony adduced at the preliminary hearing, the circuit court adjudged Dinkins guilty of a Class H felony.

2 The State asserts that the court of appeals erred in reversing the circuit court's judgment. It contends that homelessness is not a defense to failing to comply with the registration requirements and that Dinkins could have complied with the statute by listing a park bench or other on-the-street location as the place he would be residing.

3 We agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements. However, we disagree that Dinkins was capable of complying with the statute by listing a park bench or other on-the-street location.

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7th Circuit upholds $100 annual sex offender registry fee

1-24-2014 Wisconsin:

Mueller v Raemisch
740 F.3d 1128
Court Docket

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This decision overturns
Doe v Raemisch

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Personally I find this decision disgusting, the judge fails to recognize one "having a choice to use a service (passports)" -vs- "being forced against one's will into and pay for a public governmental system (registries).

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The $100 that Wisconsin sex offenders must pay every year for being listed on a registry is not an unlawful fine, a federal appeals court has ruled. But the court did not address other lifetime conditions of Wisconsin sex offender registration because it found the challengers lacked standing.

The decision by the 7th U.S. Circuit Court of Appeals reversed a ruling by a Green Bay federal judge, and also thwarted the plaintiffs' request to proceed as unnamed. Instead, the court added their names to the case.

U.S. District Judge William Griesbach had ruled the $100 fee amounted to a fine and therefore was an unlawful "ex post facto" punishment for the two plaintiffs, who had been convicted before Wisconsin adopted the sex offender monitoring law.

Tobin Mueller and Gregory Deangelis remain subject to not only the annual $100 fee, but also many other lifetime requirements and restrictions of the sex offender registry, even though they now live in Connecticut and Florida, respectively, and never intend to return to Wisconsin.

Mueller was convicted in 1993 and served four years in prison plus six years of probation. Deangelis was convicted in 1985 and served five years, then again in 1993 and served one year. Each is now subject to lifetime registry in Wisconsin.

But if that's true, the court wrote, they would likely never face any real consequence of violating those restrictions, such as changing their name, or photographing children, or not reporting a change of address, because Wisconsin admits it has never tried to enforce completely out-of-state violations of the restrictions.

Mueller and Deangelis do have standing to complain about the annual re-registration and fee, but the court said those aspects of the law are not punitive, and therefore not prohibited "ex post facto" law. Judge Richard Posner wrote the opinion for a panel that included Judge Diane Sykes and Judge Frank Easterbrook.

"The fee is intended to compensate the state for the expense of maintaining the sex offender registry," Posner wrote. "The offenders are responsible for the expense, so there is nothing 'punitive' about making them pay for it, any more than it is 'punitive' to charge a fee for a passport."

On the issue of the plaintiffs' request for anonymity, the court noted that while the plaintiffs contend they've been subjected to shunning and harassment for being on the offender registry, which is public, the court generally opposes secrecy. In this case, judges didn't see how any additional harm from being named as plaintiffs could outweigh the disruption to their personal lives they say they already have suffered. ..Source.. by Bruce Vielmetti

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Google Scholar

Leagel

Doe v Raemisch

1-4-2013 Wisconsin:

Doe v Raemisch
895 F.Supp.2d 897 (2012)
Court Docket

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This decision was overturned on appeal in
Mueller v Raemisch

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Readers need to realize, that this case was NOT a class action, therefore the decision applies ONLY to the two fellows who filed this case. Everyone one else must still pay the fees or file their own action and get a decision, hopefully in their favor.

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Plaintiffs John Doe of Connecticut (Doe I) and John Doe of Florida (Doe II) are each adult males who were previously convicted of sex crimes in Wisconsin and are subject to Wisconsin's sex offender registration and notification statutes, Wis. Stat. §§ 301.45, 301.46 (2009-10)[1]. Plaintiffs filed this action against the Wisconsin Department of Corrections (DOC), its secretary and the director of the DOC's Sex Offender Program, alleging that the application and enforcement of the Wisconsin sex offender registration requirements against them constituted punishment in violate the ex post facto clauses of the United States and Wisconsin constitutions.

Plaintiffs also allege that subjecting them to these laws violated their constitutional rights to equal protection and substantive due process and unconstitutionally impaired their respective plea agreement contracts. Finally, Plaintiffs claim the website that posts their registration violates their right to privacy under Wis. Stat. § 995.50, and that the rule requiring them to disclose their email accounts, internet user names and addresses, and websites violates their First Amendment rights. The parties have filed cross-motions for summary judgment (ECF Nos. 21, 26) and the case is now ripe for resolution. 901*901

For the reasons discussed below, Plaintiffs' motion (ECF No. 26) will be granted in part as to the $100 annual assessment § 301.45(10) imposes. In all other respects, Plaintiffs' motion is denied and Defendants' motion (ECF No. 21) will be granted.

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Conclusion

Plaintiffs' affidavits explain in detail the difficulties and embarrassment they and their families have endured as a consequence of complying with these new restrictions, even though their convictions are now almost twenty years in the past and they have led completely law-abiding, if not exemplary, lives in the interim. Their stories raise substantial questions as to the wisdom and fairness of subjecting them and similarly situated individuals to lifetime registration and notification requirements with their attendant obligations and restrictions. But given the previous decisions addressing the issues Plaintiffs raise, I conclude that the relief, if any, must come from the legislative branch. With one limited exception, the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. For the most part, the amendments to the Wisconsin sex offender registry system do not depart in any meaningful way from the systems already found to be constitutional by the Bollig and Smith Courts.

The lone exception I find to this is the $100 fine provision, which I have concluded cannot be constitutionally imposed on them. With this exception, Defendants' motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED. The Clerk is directed to enter judgment declaring that imposition of the $100 annual fee on Plaintiffs pursuant to Wis. Stat. § 301.45(10) constitutes punishment in violation of their rights under the ex post facto clauses of the United States and Wisconsin constitutions and enjoining Defendants from assessing or collecting such amount from Plaintiffs. All other claims against Defendants are dismissed with prejudice.

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Doe v. Raemisch et al - Document 86
Court Description:
DECISION AND ORDER granting 68 Motion for Attorney Fees, signed by Chief Judge William C Griesbach on 03/29/2013. Plaintiffs are awarded attorney fees and costs in the amount of $23,616. See Decision and Order for full detail. (cc: all counsel) (Griesbach, William) ..Source.. (Note: Detail is available at link)

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As the result of the above decision another fellow tried to get a refund on fees he was charged and paid. In essence the court held "It is a state matter not federal." So look to state courts assuming he continued the fight.

Court upholds sex offender residency rule

3-13-2013 Wisconsin:

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

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

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

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

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

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.

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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.

City of South Milwaukee v Todd J. Kester

3-13-2013 Wisconsin:

City of South Milwaukee v Todd J. Kester

Todd J. Kester was convicted of sexually assaulting a child in 2000. In April 2010, Kester moved into a residence in the City of South Milwaukee that was within 1000 feet of an elementary school. The City has an ordinance that prohibits child sex offenders such as Kester from living within 1000 feet of elementary schools. Kester was told by the City that he had to move. Kester refused. The City filed an action in circuit court, asking the court to declare Kester’s residency a public nuisance and to enjoin him from living in the home. The circuit court granted the injunction and ordered Kester to move.

Kester appeals, arguing that his residency should not have been declared a nuisance without an individual determination of his dangerousness, that his right to procedural due process was denied as he was not permitted to show he did not pose a risk of harm to children, that the City’s ordinance is preempted by state law, and that the City’s ordinance as applied to him violates the Double Jeopardy and Ex Post Facto Clauses of the United States and Wisconsin Constitutions. We disagree and affirm the circuit court.

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Article: Court upholds sex offender residency rule

Wisconsin v Smith

3-19-2010 Wisconsin:

Wisconsin v Smith
780 N.W.2d 90 (2010)

This is a review of a published decision of the court of appeals,1 which affirmed the decision of the Brown County Circuit Court, Richard J. Dietz, Judge. The circuit court concluded that Wis. Stat. § 301.45 (2005-06),2 Wisconsin's sex offender registration statute, was constitutional as applied to Smith and denied Smith's motion to dismiss the charge of failure to comply with sex offender registration. Smith appealed and the court of appeals affirmed the circuit court's decision. Smith petitioned this court for review, which we accepted. We affirm the court of appeals' decision.

¶ 2 This case requires us to decide whether Wis. Stat. § 301.45, Wisconsin's sex offender registration statute, is unconstitutional as applied to Smith on the grounds that it violates his substantive due process and equal protection rights. We conclude that Wis. Stat. § 301.45 is constitutional as applied to Smith because requiring Smith to register under § 301.45 is rationally related to a legitimate governmental interest. Smith has failed to prove that the registration requirements of § 301.45 as applied to him are unconstitutional beyond a reasonable doubt.

On March 12, 2001, Smith pled guilty to the charge of false imprisonment in violation of Wis. Stat. § 940.30 (1999-2000).3

According to the criminal complaint, Smith and others forced a minor to ride around with them in a vehicle in order to collect a drug debt from the minor's friend. Even though the complaint alleges that Smith and at least one other person physically threatened the minor in order to force him to assist in the search, there is no allegation that the false imprisonment entailed anything sexual.

However, under the unambiguous language of Wis. Stat. § 301.45, Smith is required to register as a sex offender because he was convicted of false imprisonment of a minor.4 Because he failed to so register, Smith was charged on December 14, 2005, with violating Wis. Stat. § 301.45(2)(g).5