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California

CA: Federal Judge Grants Injunction in Favor of Registrant

U.S. District Court Judge Dean Pregerson issued today a preliminary injunction (PI) ordering the CA Department of Corrections and Parole (CDCR) to allow a registrant to attend and participate in church services as well as to access social media. The judge’s decision followed a hearing on December 11.

According to court documents, CDCR prohibited the registrant from attending and preaching at church services although he is an ordained minister. In addition, CDCR prohibited the registrant from accessing social media.

In its decision regarding the registrant’s access to social media, the court cited Packingham v. U.S., a recent U.S. Supreme Court decision which determined that the government’s prohibition of a registrant’s access to social media violated the First Amendment. In this case, the court recognized that while the state has an interest in enforcing parole conditions “that promote the goals of deterrence and public safety”, these interests did not justify the “sweeping prohibitions” in the registrant’s challenged parole condition.

In its decision regarding the registrant’s ability to attend and preach at church services, the court determined that the First Amendment “safeguards his ability to engage in religious activity”.

“This is a significant victory for registrants as well as the ACLU that represented him,” stated ACSOL Executive Director Janice Bellucci. “We are pleased that the ACLU of Southern California has won an important battle in its first case representing a registrant.”

In addition to ruling on access to social media and attendance at church services, the Court ordered CDCR not to take “any retaliatory or discriminatory measures or other adverse actions” against the registrant. In its decision, the Court noted that CDCR officials threatened to harm the registrant because he requested assistance from the ACLU. In one statement included in the court’s decision, a CDCR official told the registrant that if he kept communicating with the ACLU, “it will be your worse nightmare”.

Decision

Join the discussion

  1. Shawn

    This is fantastic news. Will all currently on parol benefit from this court decision, or will we each have to fight the same fight individually? I would hope that the CDCR would simply lift the conditions rather than deal with the fight, but that is probably just wishful thinking.

    • Agamemnon

      As a current parolee, I too am interested in whether or not this ruling allows all registrants under parole to congregate in church and on social media.

      • AlexO

        I think like residency restrictions, it’ll have to be moved to a case-by-case bases rather then a general rule across the board. Like, if you’re crime was stalking people on social media or abusing people in the church, then they’d have a strong case to bar you from those things. But if your crime was something completely unrelated, then they’d have no good cause. Also, Packingham dealt with restrictions post supervision. Prior to the ruling, some states had a blanket no social media for registrants, period.

        I’m sure we’ll hear more about this case, and I think it’ll be favorable to parole’s.

      • Nicholas Maietta

        If social media or churches were not a nexus to your criminal offense, then parole has no legal ability to restrict you. This can be contested with a 602. I was restricted from computer access or any device connected to the internet due to my hacking incident back in 1995 as a teenager. Since that was not a nexus to my criminal offense, it had to be tossed. I used a 602 form and waited more than a year to get that condition removed from my record.

    • AJ

      It’s doubtful this will help anyone right now, as it’s an injunction, not a decided lawsuit. It does point favorably for RCs though, as injunctions are granted when it appears the party will prevail (i.e. the facts indicate the RC will win). Also, the suit itself will probably be an as-applied challenge, since class-action suits fall flat. (Funny how we’re a heterogeneous group when it comes to class-action suits, but homogeneous when it comes to “regulations.”) In short, one will have to wait for the outcome of this lawsuit, and then will probably need to use it in another as-applied lawsuit.

  2. AlexO

    Awesome ruling! The last part with CDCR threatening him is scary. I hope someone actually gets reprimanded for that. Someone seeking legal assistance should never be threatened for doing exactly just that.

    I’m also curious how far the Packingham actually reaches? Like, what’s really covered by the First Amendment? Would schools prohibiting RC’s from being there for an official function (meetings, children activist like sports and plays, etc) be in violation of this? I don’t have kids of my own, but I have a young nephew who’ll be starting school next year and I’d love to be there for all his big moments. I know parents/guardians can go as long as they get permission, but since I’m neither I don’t believe I can go at all.

    • HOOKSCAR

      I have a 15 year old that is a thespian. I go see his plays and have NEVER asked anyone “permission” to see my son. I am a parent and NOBODY will ever inhibit my duties as such.

      • AlexO

        All its going to take is someone to recognize and report you. And then you’re off to prison and years of legal battles. That’s happened to numerous people across the country.

      • Lake County

        You’re not doing your son any favors if you end up missing him growing up while you’re in prison.

  3. Michael

    You can have your church and attend it too in CA now. Whoo-hoo?

    ….

  4. G4Change

    God Bless you, Janice, and all at ACSOL and (I can’t believe I am able to say this) at the ACLU for defending this man’s rights!!!
    I am so glad that the ACLU seems to be getting involved more and more in defending the rights of registered citizens.
    I pray that the pendulum is finally starting to swing in the other direction. Lord, hear my prayer!

  5. mike r

    Yep the judges are tired of all this crap and are anxious to kill the registry. Watch, they just need a good argument to come before them, hence my nine claim arguments. This is fantastic, now come on UCLU and any and all other civil rights organizations, come join my case and file briefs and collect evidence to support my claims.

  6. James

    I applaud the petitioner for his bravery and tenacit and for standing up for his rights. I also applaud the ACLU Socal for getting involved and representing this person regardless of his status as an RC and all the social stigmas that go with it. In my eyes, he’s a modern day hero. I’m glad he’s part of our community albeit involuntarily.

  7. Jeff

    Its Great, Looks like the EVIL CDCR has been brought to its knees by this. The CDCR a.k.a parole THUGS (San Diego) Continue to break the LAWS ALL THE TIME and make threats… I know been there done that ! #1 im not on parole anymore and #2 I always beat them at their own game !! SUCKERS !!!!!!!!!!!!

    • James

      In light of these recent developments where CDCR DAPO has been exposed by a federal court judge in terms of their practice of denying free speech, the free exercise of religion, and the free petitioning to the courts without fear of retaliation, I wonder how the governor is going to respond to this and if there’s gonna be changes within the department itself.

  8. David

    God bless this man for what he has endured and continues to endure. No, the retaliation and abuse have not stopped. I hope he does not become a martyr.

  9. Jason Shelton

    I don’t really see how this helps much when Facebook terms of use explicitly exlude RSOs. I’ve been off parole for 8 years now and I’m still not allowed to use Facebook or any of the social media sites they own.

    • Cool CA RC

      Then we will need a class action lawsuit against fb

      • Jason Shelton

        I have tried petitioning the ACLU about it, but never got a response. I don’t have the finances to even think about bringing suit myself, so I just keep waiting, hoping somebody will eventually see it as important enough to do something

      • AJ

        I disagree about a class-action against FB. FB is free to associate with and listen to whomever it chooses, so long as that choice isn’t based or shown to be due to the other’s protected-class status. If anything, a suit against the Feds for giving a de facto blacklist to social media sites would be the route to go. What the Feds are doing is clearly restriction of one’s speech. It’s not the Government’s job–nor, dare I say, their Constitutional ability–to interfere with the speech and/or association of two “people” (FB is a person where the law is concerned). Yet this is exactly what the Feds are doing. Add in that Packingham decided social media is the modern day “public square,” and the argument gets even stronger.

        • Chris F

          I agree with AJ. Never fight those that use the registry to restrict us, fight the government that created the leper list. People have an expectation that the government wouldn’t warn us against someone being a threat if that person didn’t have due process for them to reach that determination. Little does anyone know, there is no Substantive Due Process granted to anyone who plead guilty or no contest to anything legislation decided to be a sex crime, and the lengths of time on the leper list are arbitrary. Those two things should be easy to understand and unquestionably unconstitutional, but judges use any excuse not to rule that way.

    • Agamemnon

      What this injunction (and the Carolina ruling) states is that the government cannot prohibit citizens from accessing social media services. However, Facebook is a private company who has the right to refuse service to whomever they choose (just like shops and restaurants).

      • CR

        Right. FB is not a public accommodation and registered sex offenders are not a protected class, so FB or any other business can deny us service because we are registrants, if they so choose.

        It’s relatively easy for online businesses that host social communities, like FB and Nextdoor and AirBnB, to detect and exclude registrants. Once facial recognition becomes sufficiently widespread to be common in brick-and-mortar retail businesses large and small, I expect we’ll be denied service in far more venues than we are today. Some, of course, will simply want our money and won’t care who we are. Others will find it very important to their business model to exclude us.

        We, as a class, can be legally discriminated against. Expect more.

      • Tim Moore

        Like private lunch counters refusing to serve you because of skin color?

        • CR

          Similar, yes, in that the discrimination is based on being part of an identifiable group. Different in that public accommodations are prohibited under the Civil Rights Act and the Americans with Disabilities Act from discriminating on the basis of race, gender, ethnicity, religion, or disabilities. They are not prohibited from discriminating on the basis of being a registered sex offender.

          What is a public accommodation? Generally, it is considered to be any business that is open to the public. But this typically includes only businesses that have a physical place in which they conduct business. Several court decisions have determined that websites are not public accommodations because they operate only in cyberspace, and do not have a physical presence.

          So FB can discriminate against anyone they choose.

        • California Law may differ from Federal Law

          FB cannot legally deny their business services REGARDLESS of if those services are a public accommodation, to California registrants. PC 290 does not mention public accommodation. It mentions services to registrants are not to be denied because of Megan’s Law information.

        • Tim Moore

          So how can facebook prove I am on their site if it doesn’t exist?

    • Mr. ASDF

      See California Penal Code Section 290.4(d)(2):

      “(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
      (A) Health insurance.
      (B) Insurance.
      (C) Loans.
      (D) Credit.
      (E) Employment.
      (F) Education, scholarships, or fellowships.
      (G) Housing or accommodations.
      (H) Benefits, privileges, or services provided by any business establishment.”

      It seems to me that Facebook would fall under (H), as it is a “service provided by any business establishment.” In light of Packingham, it would certainly be interesting to see a lawsuit against Facebook. But I don’t know who has the resources to fight such a battle, given that there is much to be done (i.e. fighting IML, fixing flaws in tiered registry). Nevertheless, I find that being banned from Facebook is a blessing in disguise. Facebook is a complete waste of time.

      • New Person

        (G) Housing or accommodations

        Oddly enough, no CA registrant can get federal HUD help.

  10. Nondescript

    Well, i`m not certain if facebook can legally exclude registrants or people who have been convicted of a past sexual crime, but the fact is, they don`t ban them all. Roman Polanski and a certain sports figure registrant currently have active and popular f.book pages. Were they granted an exemption because they bring more traffic to the site for advertisers- or a banning of them would bring a public outcry/debate about it? I`m curious about the hypocrisy.

    • Tim Moore

      Maybe there is a moral hypocrisy, but I think it is just capitalism. Having that ban in the terms makes people feel safe, more comfortable people more customers, but the waivers like you said bring in the advertising dough. That both ways makes them money.

  11. Dph

    Good! What about Edu?
    Education, even CMC won’t allow ANY in a classroom, no matter Male OR Female College Instructors/Prof.
    Denial of Education when others could go and would NOT allow coursework in cell or outside Classroom any opportunity, no one wanted my Lawsuit for that.
    Of Course, that was decades ago…no online then or social media around except our mouths and hands!
    Denied, denied and denied Chapman Orange Coast College and Questa College as the CDC DENIED RSO’s inhouse learn or even further their education except for Prison Industries on how to make Jeans and Shoes.
    Wow, what happended to fairness and equal rights? Hmmm
    GOOD FOR THIS GUY
    LOCKDOWN for us

    • NPS

      I know quite a few RCs on this site who have mentioned being currently in college. I recently met an RC who is attending UC Berkeley. I earned my MA degree at SFSU while I was on probation. I’m back in a graduate program at CSUEB. Both are California State Universities.

      So how is it that you are being denied education?

      Post Script: I just realized you mentioned parole. I didn’t realize they were denied education. Wow.

  12. Mr. ASDF

    Disappointed that Sharper Future wasn’t included in the lawsuit. $50 says that they might be part of any past/current/future retaliation against the pastor. But I guess we’ll see…

  13. i can't wait to die

    For all the great minds –
    I can’t think of the proper way to phrase this so i’ll just say it.

    how is it fair/legal that the gov. tells the public openly about certain people convicted of a crime (the hit list) but yet if I’m the president of a bank and want to employ Joe Shmoe i would have to pay for background screening as Joe’s past Larceny conviction is not openly published like an SO’s is.
    so is the gov. discriminating on people by what crimes they have not committed by not openly publishing their past convictions?

    • Tim Moore

      The answer is yes, not only that, but we must provide current information about our physical residence, what car(s) we drive and in some states what internet sites we visit. It is not about the crime past, but the crime they think we will commit. And they are spending millions to keep the system going without any proof it works.

      • i can't wait to die

        Tim,

        My thought is a 100% spin, instead of attacking that SO’s are being discriminated upon, it could be that other criminals that is not publicly shamed and are on an extremely public list being discriminated upon. 🙂

    • New Person

      yup

      immunity programs are supposed to be equal for all, but not when it comes to registrants.

      In Ca, statute 1203.4 is suppose to relieve one of all penalties and disabilities from the conviction as it is set aside. No where in this statute does it state Registrants cannot have this immunity. But outside of that statute, 290 states registrants must continue to register even if you get 1203.4.

      That’s a violation of equal immunity protections in the Ca constitution. Either all get the immunity or none that qualify. All registrants who do qualify only get to say, “My case is dismissed.” That’s it. Every other penalty or disability still applies. So there really is no distinction between a registrant who qualifies for 1203.4 and those who don’t.

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