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MN: Former sex offender challenges residence restrictions

On Oct. 2, 2017, the U.S. Supreme Court denied a petition for certiorari in Snyder v Doe, a decision from the 6th U.S. Circuit Court of Appeals that said that Michigan’s sex offender registration law violated the Ex Post Facto Clause’s ban on retroactive punishment. The law restricted where former sex offenders could live.

The 6th Circuit is at odds with many other opinions that have rejected constitutional challenges to sex offender laws, but that didn’t convince the Supreme Court to take the case. The court invited the Solicitor General to file a brief, but he declined, saying the case was correctly decided.

Some observers say that Snyder could persuade other courts to take a hard look at sex offender restrictions, particularly since the court expressly recognized scientific studies showing that sex offenders as a group do not pose a significant recidivism risk.

____ ____, now a resident of West St. Paul, is asking the Minnesota District Court to do that very thing. He is suing the city of West St. Paul over its ordinance that prevents him from living within 1,200 feet of a school, child care facility or group home. He secured an ex parte temporary restraining order preventing him from being evicted on Oct. 1 and his request for a preliminary injunction is pending before Judge John Tunheim. Full Article

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  1. AlexO

    Yet another court that basically stated, “We don’t care what the facts are. These laws feel right so they get to stay.”

  2. G4Change

    I hope the 8th Circuit agrees to hear this case and rules for the plaintiff! I know it would be overturning its own precedent, but enough is enough! It’s time!

  3. mike r

    Yeah we are prosecuted,with very little to no evidence because we weren’t privy to a well trained, expensive legal team as citizens, and persecuted for the rest of our lives, while illegal immigrants who kill someone in Frisco gets the top nktch legal services and goes free except for felony possession of a firearm and will most likely be deported for the eighth time just to return over the border and once again rkam the streets unsupervised with no notifications or restrictions. SAD!!!!!

  4. New Person

    This is interesting.

    ======
    8th Circuit precedent. Defendants [8th Circuit] assert that in two decisions, Doe v. Miller and Weems v. Little Rock Police Department, the 8th Circuit has conclusively decided that a residency restriction against a convicted sex offender does not violate the Ex Post Facto Clause.

    Relying on Smith v. Doe, “The Eighth Circuit concluded that in light of the high risk of recidivism posed by sex offenders, the legislature reasonably could conclude that a residency restriction would protect society by minimizing the risk of repeated sex offenses against minors,” defendants said.
    ======

    Note: The 8th is relying on 2003 Smith v Doe information.

    ++++
    The 6th Circuit is at odds with many other opinions that have rejected constitutional challenges to sex offender laws, but that didn’t convince the Supreme Court to take the case. The court invited the Solicitor General to file a brief, but he declined, saying the case was correctly decided.

    Some observers say that Snyder could persuade other courts to take a hard look at sex offender restrictions, particularly since the court expressly recognized scientific studies showing that sex offenders as a group do not pose a significant recidivism risk.
    ++++

    Snyder passed in 2017. So, either Snyder is wrong or 2003 Smith v Doe is wrong with stating the reason for public safety is due to high recidivism rates of registrants. The US agreed with Snyder in 2017. Maybe this case will prompted the SCOTUS to look at it this time around since states are not believing in the Snyder case.

    • CR

      The reliance on false data in Smith v Doe is growing in awareness, and the stark contrast with the recent ruling by the 6th circuit is certainly interesting. It was a remarkable win for our side. Perhaps the “frightening and high” myth is starting to crumble.

      One minor correction to what you said above… The SG did not decline to file a brief on behalf of the United States in Snyder v Does. The brief was filed, and it recommended denying certiorari, which many people found surprising. Here it is:

      https://www.justice.gov/sites/default/files/briefs/2017/07/07/16-768_snyder_ac_pet.pdf

      • New Person

        Anything between “equal signs” and “plus signs” are quotes from the article. So the author of the quote is off. But in my conclusion I did state the US agreed with Snyder (by not looking at it, it stated the Snyder decision was correct).

        And yes, notice how they’re still using the high recidivism rate idea? The appellant should counter with the state needs to provide current statistical information to this idea. If it was using the 2003 Smith v Doe, then Snyder that down. IIRC, Snyder included Prof Ellman and Ellman’s paper as a source that debunked the “frightening and high” recidivism rates.

      • Tim L

        SCOTUS decision in DOE V ALASKA & 6th circuit decision in SNYDER are NOT contrary to each other.

        2003 SCOTUS could not find find punitive INTENT NOR EFFECT! the regulatory regime was brand new.
        2017 Snyder in the 6th, found punitive effect, BANISHMENT. CLEARLY banishing is a form of punishment. The finding came because the clearest proof of the people’s intent cleared the bar.

  5. AJ

    In both cases, the 8th Circuit found that residency restrictions were intended to create a civil, nonpunitive regulatory scheme, defendants assert. “This Court has no reason to conclude otherwise, and it must give deference to the ordinance’s stated intent,” defendants said.
    —–
    Another attempt at sleight-of-hand by the State. Everyone agrees the purported *intent* of the laws…but what about the effects? That is glossed over in this statement.
    =====
    Not only is he unlikely to succeed on the merits, but the cost and inconvenience of moving do not constitute irreparable injuries, defendants argue.
    —–
    Similar costs associated with having to sell and buy homes was considered a Takings violation in case(s) in GA.
    =====
    I really like the commentary from the professor/expert at the end of the article. Hamline is a good law school, and well-respected in that part of the country. He makes rational, valid points…points that may score points.

    This will be an interesting case. As I’ve repeatedly said, it–like all others–will get appealed all the way, as neither side is willing to give an inch on their positions: the State claims it’s a required public-safety regulation; the citizen says it’s a violation of his/her rights.

    For the State to rely on Smith, despite Snyder and Packingham’s parenthetical, is weak and hopefully a losing proposition. Given how civil commitment went in MN, I can easily foresee the District Court agreeing with the RC, 8th reversing…and then sometime in the 2018-19 October Term, SCOTUS fixes the 8th’s mistake. That’s my general opinion anymore: SCOTUS will deny cases like Snyder (and probably Muniz) that put a greater burden on a citizen than Smith allowed. I think they will try to dodge as many as possible, but will accept and overturn a case at some point. Maybe not tomorrow, maybe not next month, but at some point one of these cases will be incorrectly upheld by a COA, and SCOTUS will feel obligated to act. I really see this as a win-win for us: 8th rules for RC, we win; 8th rules against RC, SCOTUS reverses and we win “even more bigly.”

    • CR

      AJ, if the 8th rules against the RC and the RC files for certiorari, SCOTUS could deny it, leaving the 8th’s decision in place, and a COA split. As I’m certain you know, at least four justices must vote to grant cert. Even if there are four justices who want to grant cert to resolve a split, they may not take the first case that comes along. They may skip over a particular case for any number of reasons.

      Denying cert to Snyder v Does, and possibly Muniz in the future, cannot be interpreted to mean that SCOTUS necessarily agrees, in whole or in part, with the lower court’s opinion in those cases. The only thing you can say for certain is that there were not four justices who voted to grant cert.

      • New Person

        ==============
        Denying cert to Snyder v Does, and possibly Muniz in the future, cannot be interpreted to mean that SCOTUS necessarily agrees, in whole or in part, with the lower court’s opinion in those cases.
        ==============

        I’m lost with this quote. There are two results with the cases that go before the SCOTUS:

        1. If the SCOTUS finds there is disagreement with the case (it needs four justices to agree to the case being brought up), then it will take on the case. The outcome is unknown.

        2. If the SCOTUS finds there is nothing to disagree with (less than four justices agree to the case being brought up), then it agrees with the lower court ruling and viewing the case is denied. Whatever the lower court ruling stated stands as the rule of law.

        But what you’re saying is that the SCOTUS denying to look at Snyder means nothing has changed in the law at all? The case going up to the SCOTUS was Snyder was a wrong decision (there is no Ex Post Facto). SCOTUS denied to take up the case, therefore, stating the original decision for Snyder was correct (there is Ex Post Facto).

        ===================
        The only thing you can say for certain is that there were not four justices who voted to grant cert.
        ===================

        That means there were enough justices to find disagreement with the case. They basically passed judgement at that junction because the initial voting designated there aren’t enough votes to provoke a difference on the matter should it be looked it. (Basically, it’s a heat check. Not even votes means it’s a waste of time to look at.) Hence, the majority of the justices agree with the Snyder case. Thus, the justices agree with the lower court rulings.

        Analogy: The justices are a jury panel. If four or more juries have differences to the case presented, then it will be pushed up to be further dissected. If less than four juries have differences to the case presented, then the case has judged at that point.

        Please note that the SG made a distinction for denial – 2003 Smith v Doe is still constitutional. Any law, penalty, or disability above 2003 Smith v Doe is unconstitutional. That’s what the US agreed with. That’s why Michigan residents wanted the denial and many outside of Michigan wanted the US to take up the case. Those outside of Michigan wanted the SCOTUS to re-visit and contest the 2003 Smith v Doe decision.

        The outcome for denial is known. It benefits all Michigan residents who were affected by Ex Post Facto laws. It doesn’t benefit registrants outside of Michigan directly. But this now sets a precedent for registrant laws as it can be used in other lawsuits, possibly by registrants outside of Michigan.

        The outcome for acceptance is unknown. If won, then all of the US registrants win. If lost, then all of the US registrants lose.

        • CR

          Much of what you say is true, but it is not as simple as you describe. The Supreme Court receives thousands of Petitions for a Writ of Certiorari every year, but only grants about a hundred. A denial means that the lower (state supreme or federal appeals) court’s decision stands in that jurisdiction. It does not mean that the court agrees with the lower court’s opinion. The Supreme Court has stated this many times.

          Here is a quote from Wikipedia that lists cases where SCOTUS has said this:

          ===========
          Conversely, the Supreme Court’s denial of a petition for a writ of certiorari is sometimes misunderstood as implying that the Supreme Court approves the decision of the lower court. However, as the Court explained in Missouri v. Jenkins,[22] such a denial “imports no expression of opinion upon the merits of the case[.]” In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and the lower court’s decision is treated as mandatory authority only within the geographical (or in the case of the Federal Circuit, subject-specific) jurisdiction of that court. The reasons for why a denial of certiorari cannot be treated as implicit approval were set forth in Maryland v. Baltimore Radio Show, Inc. (1950), in which the Court explained the many rationales which could underlie the denial of a writ which have nothing to do with the merits of the case.
          ===========

          See these references, which all explain it:

          https://en.wikipedia.org/wiki/Certiorari
          https://www.law.cornell.edu/wex/certiorari
          http://www.techlawjournal.com/glossary/legal/certiorari.htm

      • AJ

        @CR:
        I’m unclear what you were trying to convey to me, as I’m well aware of all you said. I stand by my opinion that SCOTUS seems inclined to throttle back the RC-law-mania that has swept the nation. They explicitly showed concern in Packingham, which bodes quite well for us. Hopefully more judges start toeing that line of concern.

        One minor point of order: it’s only by tradition that it takes 4 Justices to accept a case. There’s nothing in SCOTUS’s rules about it. That said, SCOTUS grooves on tradition (see: required font for filings), so it’s a de facto rule.

        • CR

          AJ I was responding to your last paragraph, and particularly your last sentence, which seems to summarize it:

          ===========
          I really see this as a win-win for us: 8th rules for RC, we win; 8th rules against RC, SCOTUS reverses and we win “even more bigly.”
          ===========

          I agree that if either of the two possibilities you mention occurs, we win. My point is that there are other possibilities. In particular, if the 8th rules against the RC, SCOTUS may deny cert, and the 8th’s decision will stand. That would not be a win.

          • AJ

            @CR:
            Aha, now I got it! 🙂 Yes, a SCOTUS denial could well throw a monkey wrench into my view. To my eyes, that would simply create more confusion and disagreement among the COAs, which is contrary to what SCOTUS “wants” or “likes.” My thought is if SCOTUS is troubled by restrictions on RCs off paper, they are more inclined to start providing guidance to COAs (and lower) either by reversing (thus accepting) cases where restrictions are imposed, or letting stand (denying cert) on those where restrictions are either overruled or not an issue.

            One thing that seems to get ignored over and over is that SCOTUS agreed Smith was okay *because* there were either no or de minimus burdens on a citizen…and even then, it was a 5-4 decision. In fact, Justice Souter only agreed due to the fact that a tie favors the State where rational basis is concerned. Also what gets lost in the arguments made by States is that SCOTUS, in Kebodeaux, backed off of the F&H phrasing, and acknowledged other data exist. (Not a wholesale repudiation of F&H, but a start!)

    • Tim Lawver

      “The court has no reason to believe otherwise ( that the local authorities intended to protect) we must lend deference to the ordinance’s stated intent.”

      There can be no doubt Americans desire to protect their own, however recognition of ordinance as ” law” flows not from either Federal or State bodies but from an local jurisdiction. The constitution only acknowledges TWO AND NOT THREE forms of government. That extra jurisdictional recognition by the court falls outside the constitution’s establishment clause.

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