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OK: Tenth Circuit COA upholds Oklahoma driver’s license requirement

[NARSOL]

By Robin . . . Unpersuaded by the court-appointed counsel’s encouragement to read a prison inmate’s pro se lawsuit liberally enough to include a First Amendment complaint, the Tenth Circuit has affirmed a lower Court’s judgment dismissing a challenge to Oklahoma’s requirement that citizens convicted of an “aggravated sex offense” must have their driver’s licenses (and state-issued identification cards) stamped with the words “Sex Offender.”

The National Association of Rational Sexual Offense Laws (NARSOL), represented by John J. Korzen (Wake Forest School of Law) was joined by its state affiliate, Oklahoma Voices, in filing an amicus brief on behalf of the plaintiff-appellant, Ray Carney, an OK inmate scheduled to be released in January, 2018. The ACLU of Oklahoma, represented by Brady R. Henderson, filed a separate amicus brief also supporting the plaintiff-appellant.

Mr. Carney, who filed the original complaint and proceeded below without the benefit of counsel was represented on appeal by Atty. Andrew D. Barr. It was Attorney Barr who approached NARSOL in the Spring of 2017 about submitting an amicus brief 1) demonstrating that recidivism rates among convicted sex offenders are lower than generally accepted and 2) providing statistical support dispelling any connection between odious requirements (such as the driver’s license law) and a reduction or prevention of repeat offenses.

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  1. Agamemnon

    Next they’ll require all registrants to wear pink triangles on their clothing or face “Failure to Notify” criminal charges.

    • TXSO4Life

      They have already try to pass a law on a pink licence plate several yrs ago in ohio, but pink for breast cancel group protest the pink color, so the bill did not pass. I will not be suprised there will be a different version of the bill at some time in the future. Just google pink license plate for SO. You will see ton of articles about it.

    • Matt

      For those of you who say that I am crazy to believe that RFID chips are coming, just wait. They are. As soon as all passports are labeled, and then all driver’s licenses, the chips will come. If we don’t get together as one national group, and get in the fight right now, it’s only a matter of time. I give it less than five years.

      • TS

        @Matt

        You mean the e-passports already on hand at DHS with biometric data, etc? They are already in use.

        • Matt

          TS, I am talking about any new technology that will be used against us. At some point, sooner than later, I think we can expect to be monitored in real time, 24 hours per day. Those bulky ankle monitors that some are forced to wear while on supervised release will be a thing of the past. At some point, all of us will wind up with a chip, implanted, etc., that we are forced to submit to. Because remember, “It’s just monitoring”.

          • AJ

            @Matt:
            You may want to consult case law. GPS tracking of someone who is not under supervision or without a warrant has been found unconstitutional in various courts, including when it comes to RCs. As a side note, every citizen–RC or not–should be closely watching Carpenter (https://www.oyez.org/cases/2017/16-402), argued on the 11/29/2017. It’s the Court’s next big step into Digital Age rulings. Gorsuch’s angle on it was interesting, and reinforced my beliefs he’s a strong Originalist and wary of Government.

            • David Kennerly

              Oddly, the Oyez page seems to be strangely vacant on Carpenter vs. U.S. Here’s the audio: https://www.supremecourt.gov/oral_arguments/audio/2017/16-402
              and here is Scotusblog: http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2

              What is missed is the fantastic Oyez feature which identifies each speaker as you’re listening to arguments as well as transcribes it in real time. I’m less enamored of “originalism” by the way.

              • CR

                I went looking for the Oyez page this morning, and found it. The audio and transcript link from this page is working for me:

                https://www.oyez.org/cases/2017/16-402

                Maybe they were late in getting it up, or the link from scotusblog is bad.

                I’m with you as regards originalism, btw.

              • AJ

                Originalism has its place, just like anything else. I’m more enamored with Gorsuch’s seeming mistrust of Government and its use of power. That, I believe, may play in our favor. Actually, Originalism may as well, given the writers (the original Originalists 🙂 ) of the Constitution didn’t seem to think one should keep paying and paying and paying for a crime.

                • David Kennerly

                  Yeah, well notice how it didn’t seem to work to the advantage of us, or gays, or criminal justice, for that matter, when it came to most of Scalia’s or Thomas’ rulings. Yes, there were exceptions but they tended to be federal vs. state authority issues in which they joined with state authority over federal authority.

                • David Kennerly, Haven't Gun, Can't Travel

                  Here’s a timely piece, from Reason, of course:

                  “It is libertarians (such as Randy Barnett) who have consistently espoused “principled judicial activism” over the conservatives’ beloved “judicial restraint.” Principled judicial activism is the maxim that judges should refuse to defer to the people’s legislatures when freedom is at stake. It is otherwise known as the presumption of liberty.”

                  The article can be found here: “Libertarianism Has Nothing to Offer Populist Authoritarians” ______
                  http://reason.com/archives/2017/12/03/libertarians-and-the-right?utm_medium=email

                  • AJ

                    Thanks for this, fellow libertarian. I find it odd that, for the most part, humans as individuals interact in libertarian ways, yet when formed into groups, tend to want to impose some sort of way of life on others.

                    • Tim Moore

                      I don’t understand this one bit. Individuals interacting with each other is a group.

      • David Kennerly

        Well, passports for the last ten years HAVE had an RFID chip in them. It is clearly visible on the passport. RFIDs are little circuits that, when illuminated by an interrogating device located immediately nearby with electromagnetic waves, spits out data that can then be received by that device. The RFID requires no power source itself getting its power inductively from the interrogating device.

  2. AlexO

    It’s constantly disappointing that LE and courts are not subject to the same guidelines as private citizens.

    “But the federal courts, thus far, have seemed to suggest that “harmful and damaging” is not enough to outweigh the supposed benefit of greater public safety. Judge Kelly expresses the sentiment thusly:

    “There are several rational reasons why Oklahoma enacted this law, principally among them the safety of the community. We therefore find that the license requirement is not unconstitutional . . .”

    The court has no data other than that it sounds good. And because it sounds good screw the constitution. Imagine if the general public were able to act on things that sound good without repercussions.

    • Registry Rage

      It all boils down to just a bunch of old white men in black robes circling the wagon around this profitable, security theater boondoggle know as Megan’s law.

      They are dismissive and indifferent to any logic and reason.. but anyone with an ounce of sense knows that the “benefits” of community notification will always be baseless and void of merit.

      • C

        Old “white”men? If they do happen to be white, what does their color have do with anything? Do you also complain about the old white men on your money? If so, please send it to Janice and free yourself of the burden of carrying images of geriatric, slave-owning, Anglo racists around with you. Otherwise, GFY.

        • David Kennerly, Temporarily Grounded?

          Both the right and the left among us wants to blame the other for the sex hysteria industrial state. It just doesn’t work; the base for hysteria is much broader than either one individually. The right is, however, more responsible for the worst excesses. However, both are extraordinarily intolerant and willing to use the levers of government to oppress others.

  3. AJ

    Something that caught my eye–and should the eye of ANYone suing: “The outcome serves as a useful lesson about the need to preserve ALL possible claims at the initiation of a lawsuit even where some of them, as expected, are likely to be rejected. Failing to mention a claim renders it virtually impossible to recover on appeal…even despite the very best efforts of competent and capable attorneys.” So, just as mike r has done, one must throw every single thing into the initial suit, or face a high risk of losing because of this or that.

    It’s sad that he wasn’t able to raise the “easiest” item to attack: compelled speech (1st Amendment). Given how 1st-Amendment-centric the Roberts SCOTUS is, that would seem to be the best angle. The courts may still find it acceptable, but being compelled speech would require the State to show compelling interest, and would need to narrowly tailor the law to achieve the goals. Given they must also use the least burdensome means, I don’t see how they can claim a marked DL does that–they already have a thing called ML that is less burdensome (and under the control of the State, not the citizen!).

    There have been so many Due Process failures, it almost doesn’t seem like it’s worth using…but then again, you have to include it, just in case.

    All in all, a troubling setback for not only marked DLs/IDs, but passports.

    • TS

      @AJ

      Excellent commentary. Landmines known now for other efforts to mark DLs, etc

      Couple of thoughts: 1) The door is open then for a First Amendment challenge in OK I would think from the outset by someone then and rerun the lawsuit. Yes? 2) A non-aggravated RC could run the suit from other perspectives. Yes?

      • AJ

        @TS:
        Thanks for the kudos. Yeah, I agree with you on both points. Someone could take Carney’s filing, polish it up, add Compelled Speech, and give it a whack. Being a “regular” RC would help…but only if they, too, have a marked DL. I haven’t read OK law or the Opinion, but the article gave me the impression only “aggravated” RCs get the special treatment.

        The Equal Protection rationale the 10th used seems circular. Let’s use a pre Brown v Bd. of Educ. example and change a few words and phrases:
        “Mr. Carney, an [African-American citizen], cannot state an equal protection claim because he is not similarly situated to ordinary [citizens] and others that are required to [use separate but equal facilities]. He also has not shown that he is being treated differently than other [African-American citizens]. Thus, he cannot make an equal protection claim under the Fourteenth Amendment because he cannot satisfy the similarly situated requirement.”

        • TS

          @AJ

          From a OK lawyer website:

          “In Oklahoma, if you are convicted of a Level 3 sex offense as an aggravated or habitual offender, you will have SEX OFFENDER emblazoned on your driver’s license. “

  4. David Kennerly

    A pink license plate! That can’t be a coincidence now, can it? It tells you much about the barely concealed contempt for homosexuality that underlies much of the animus for sex offenders.

  5. Tim Moore

    Screw the legal system. It was unable to end slavery, it will be unable to end public shaming by government. Words are simply twisted to serve the status quo. Before you can shed light on human suffering you must burn the Constitution.

    • New Person

      The Constitution isn’t bad, but the people who manipulate it to deviate from its original purpose are bad. As much as registrants are bashed, Peckingham happened. NC said it was constitutional. NC was wrong. The Constitution held.

    • Alec

      That’s the funny part of it though, isn’t it? For slavery to end, it wasn’t the Constitution that had to burn, but rather nearly everything else.

      Stepping outside of SO laws for a second, the US is building a society that looks strikingly like that of 1859 antebellum USA. The trenches are dug, the positions are armed, and nowhere the twain shall meet. It only takes a spark for everything to burn. I am not encouraging this. Simply observing that it is inevitable.

      • Tim Moore

        Well the Constitution did have to be modified after to keep the Union. It was nothing but a barrier to healing the rift.

        • New Person

          Then let’s hope it can be modified again… or re-emphasized!

          ** The relevancy for this article is at the end. **

          The parenthetical quote made by justice Kennedy queries why someone who is no longer under custody still subject to restriction/supervision?

          “Involuntary servitude is prohibited unless to punish a crime.”

          For all registrants no longer under criminal custody, then they are no longer subject to any type of custody, or I call it service. Under Megan’s law, it states specifically it is a registrant’s duty to register. If you do not register, then it is considered a crime.

          That domineering aspect runs contrary to Involuntary servitude is prohibited. As a free person, you can quit any job, or let us call it service. As a free person, a registrant cannot quit the service to the state(s).

          The registry isn’t punishment. Thus, the registry cannot force a free person to continue to serve the state in any capacity!

          Four aspects involuntary servitude:
          1. Contract. (There was no contract. It was part of the type of crime.)
          2. Length. (Anything stating a life time term is a RED FLAG!)
          3. Compensation. (We don’t get compensated for our continued service to the state. Which, btw, brings in revenue to those people who run the registry. Without registrants, then those occupations are no longer needed.)
          4. Domineering. (You can’t quit the registry. You will be hunted down, tried, and put back to service.)

          Remember, the Preamble stated that all men were created equal. It took a long while for the US to apply that to all human beings such as the right to vote.

          Since the registry isn’t punishment, then it cannot force any free person into any type of service nor domineer them with the use of law to keep them in service.

          Again, use the fact the SCOTUS stated the registry is not punishment. And throw it right back in their faces.

          “Involuntary servitude is prohibited, unless to punish a crime.”

          Recall the old adage of “you do the crime, you pay the time”? Once you’re no longer under custody, you don’t owe the state any more time. Yet, with the registry, you do and it is supported under penalty of law that if you do not continue doing this “time”, then you will be subject to criminal consequences and then returned back to continue your “time”.

          There was an article recently posted up here about non-resident registrants and collateral damages. If a non-resident registrant stays longer than a certain amount of time in another state, then that registrant *must* register with that state or be subject to a “failure to register” crime, which could be a felony.

          How can the USA force a free person into service when the service isn’t to punish a crime? One cannot use the public threat idea here for several reasons. Involuntary servitude law cannot be supersede should be the top reason (compelling a free person into service). When a person is punished, then they do the time. No other convict group is a public threat to society? There many other convict groups whose recidivism rates are quite higher than registrants. Oh, the myth of “frightening and high” recidivism rates have been debunked by PHD’s Ellman and Ellman.

          Megan’s Law states it is a duty to registry for registrants. It cannot be any more blatant than that to identify the registry is a service to the state still. Yet the registry isn’t punishment. Thus, there’s a conflict here. The US and CA constitution states the same law:

          “Involuntary servitude is prohibited unless to punish a crime.” The registry isn’t punishment. So therefore, by law, I can walk away from this service without penalty aside from loss of wage or loss of job. But it is in law that if I do not register, then I am committing a crime for not doing said service. These two laws run contrary to one another.

          Maybe we should re-emphasize what the laws are supposed to mean. It took how long for other subsections of the population outside of caucasian males to be treated equally with the right to vote and be counted as a whole person?

          The registry is involuntary servitude upon a free person empowered by threat of law for not doing said service. No one thinks involuntary servitude exists today b/c it’s difficult to fathom such malice. Yet, here the registry stands.

          Back to the relevancy of the article, the Sex Offender denotation on the driver’s license is the State informing all that the free individual is owned by the state. The free individual is forced to register with the State. The free individual is forced to comply with the many restrictions endorsed by the State.

          That’s odd. The only time you are owned by the state is if you are in probation/parole, jail, or prison. If you quit probation or parole, then you go to jail or prison. And you can’t quit jail or prison. The registry isn’t punishment, but why does it share the same trait as being in jail or in prison? Instead of wearing prison garb to signify you’re owned by the state, you’re forced to wear “Sex Offender” on your driver’s license. Your driver’s license is something you’re supposed to have on you at all times, just like your prison garb outside of your cell.

          The “Sex Offender” marking on your driver’s license isn’t about informing the public that you’re a public threat, but that you’re owned by the State, just like wearing prison garb letting all know, including yourself, that you’re owned by the state. But you’re no longer under custody and the registry isn’t punishment. Why are you still owned by the state again?

  6. mike r

    My god I am glad I read the briefs in this case…This is incredibly value citations and legal theory laid out by the breifs and the decision..This guy never stood a chance for every sound reasoning the justices pointed out. A cruel and unusual punishment claim. Ha the attorney appointed and even the amicus attorneys should be disbarred for arguing such a claim on such a weak constitutional right, if not having a mark can somehow even be considered some kind
    of rjght》》》????, Not bringing the first amendment claim, fatal mistake….he probably could have corrected that mistake if he would have acted immediately with some type of amendment. but relying on weak connections to equal protection and cruel and unusual punishment claims. Two of the hardest scrotus precedents to overcome to even be considered violated. Another one lost before words ever hit paper…immense amounts of citations and incredibly articulated law theory made out by the justices just for me …I can hardly believe this…

  7. JohnDoeUtah

    Even if the First Amendment claim was asserted in this case, properly, it would have been a non-starter. This is the Court of Doe v. Shurtleff, and they have already ruled that sex offenders do not enjoy absolute rights under the First Amendment, as long as the restriction is “rational.”

    • TS

      @JohnDoeUtah

      Freedom from compelled government speech is an absolute right on any sort of ID.

      • JohnDoeUtah

        Tell them that. I tried in 2008 and they said no. And, then SCOTUS let it stand.

    • AJ

      @JohnDoeUtah:
      Please clarify this statement: they have already ruled that sex offenders do not enjoy absolute rights under the First Amendment, as long as the restriction is “rational.”

      1. There are no absolute rights in the Constitution, whether for RCs or “normal” citizens. SCOTUS has long, and rightly, limited some in order to allow society to function.
      2. If one makes a First Amendment speech challenge, it’s subject to intermediate or strict scrutiny, not rational-basis.

      As for compelled speech, I think it behooves all of us to keep close tabs on what SCOTUS says in Masterpiece Cakeshop. The outcome may well add some case law to what the Government can and cannot force one to say. Hopefully it further limits the State on compelled speech.

  8. mike r

    You are correct TS, but this guy has been adjudicated as a aggravated offender and they never actually his situation at all other then to try and situate him in the same circumstances as non aggravated offenders for equal protection…They would have to show that those who are considered more dangerous or have more serious offenses are treated with lesser punishments or apications of law. Sure as helllll not the other way around as thet did in this case. Like I said the attorneys should be disbarred, once again in another case, for being completely inept and incompetent, or at the least an order to show cause why they used language and arguments that seem to be so blatantly inept. While making incredibly articulated sound reasoning of law without stating obvious constitutional violations and issues. Like I stated, either completely incompetent or unethical, one or the other. No ambiguity about it either.

  9. Randall Saunders

    I am thinking about filing a lawsuit against Federal and State Governments for Defamation of Character, Slander/Libel – Is this possible? email answers to ranjaysaunders@outlook.com

    • David Kennerly

      It’s possible if they are, indeed, slandering, defaming or libeling you and not just saying something which is clearly factual such as stating that you have been convicted of a sex crime. However, even if they are saying something untrue about you, good luck getting any traction in court.

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