General Comments September 2016

Just an FYI…I know some have asked about background checks in the past so I wanted to add my recent experience.

I was recently offered a promotion by my boss. The promotion (to a management position) requires a background check. My initial employment did not require one. Before offering me the promotion my boss already knew about my offense and status as a registered citizen. My conviction was over 7 years ago so we thought we’d give it a try. The results came back yesterday. My offense did show up on the background check as well as my entry on my state’s Megan’s law website. I guess the old 7 year rule doesn’t hold up anymore. Anyway, I got an email from HR asking me to explain the charges on the report which I did. I’m still waiting to hear back, but I am not optimistic. The company is headquartered in Texas and we all know how registered citizens are treated there…

hello nomore! ,,,and everyone else , my wife has to go to the heart doctor again , I am very worried about ma lady , so if anyone still prays on here please say a prayer for my wife , she prays for each and everyone of you ,”Everyday” my wife love and cares about all of you , she is just that kind of person , and the light she shines on all of us is good , she is always telling me I should be more humble and show more of my positive side to all , she is right , sometimes I just feel so powerless over the things that has been so controlling of my life for over 30 years , and fear what looks to be coming at us at full speed , and I some times forget to stop and smell the roses , I hope at some point that we can get our selfs up Alaska way ! I have looked into it in some depth , and I got to say it has some very positive factors for RSO’s , or anyone else for that matter , right now much of my thinking is going into thinking of my wifes heath, but with some positive prayer as well as some changes in eating habits and exercise we will be on our way , to many things to do and not enough money to do most , but if you want to be just left alone and get into some very good fishing and smell the pines Alaska is the place ! solar power would just be icing on the cake people , and you can protect your self up there as well ! big selling point to me , well I just wanted to say hello to nomore’ and all who reads this , oh yes I did not pay my phone bill this month nomore that’s why I have not called , next month with any kind of luck Bro , everyone stand on your constitution ! and hold on to your amendments for dear life , be seeing you all soon , stand tall , stand united !

I know a lot of you are tired of seeing this but I am trying a different approach…I will post each one of the issues I want to include in my motion one at a time and see if I can get any help from anyone who may be on this site with relevant case law or suggestions on how to strengthen this issue or point out any fallacies…

Facts.

(1) My constitutionally-protected right to reputation is encroached upon by an irrefutable presumption of future offending that is universally untrue.

The United States Supreme Court has previously recognized that a person’s reputation is a protected liberty interest under the federal due process clause. Wisconsin v. Constantineau, 400 U.S. 433 (1971) (hereafter “Constantineau”); Board of Regents v. Roth, 408 U.S. 564 (1972) (hereafter “Roth”).

In Constantineau, the State of Wisconsin authorized the posting of a notice prohibiting the sale or gift of liquor to any person who “‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” On appeal, the Constantineau Court recognized that “[i]t would be naive not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule.” 400 U.S. at 436. The Court therefore held that a protectible liberty interest is implicated “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her.]” Id. at 437.

One year later, the Court again recognized a person’s liberty interest may be implicated by damage to his or her reputation. See Roth, 408 U.S. at 573. The plaintiff in Roth, a university professor, alleged that “the failure of University officials to give him notice of any reason for non-retention and an opportunity for a hearing violated his right to procedural due process of law.” Id. at 569. The Roth Court reasoned that in declining to hire the plaintiff, the state had neither advanced “any charge against him that might seriously damage his standing and associations in the community” nor “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. at 573. The Roth Court noted, however, that “a different case” would have been presented had the state either damaged the plaintiff’s reputation or imposed a stigma on him. Id. at 573-74.

However, in Paul v. Davis, 424 U.S. 693, reh’g denied, 425 U.S. 985 (1976), the Court clarified that “reputation alone, apart from some more tangible interests such as employment, is [n]either ‘liberty’ [n]or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701. The plaintiff in Paul alleged a deprivation of liberty without due process of law after the circulation of flyers publicizing his conviction for shoplifting and labeling him an “active shoplifter.” Id. at 712. According to the Paul Court, because the plaintiff’s harm was not accompanied by the alteration of “a right or status previously recognized by state law,” there was no deprivation of a protectible liberty interest. Id. at 711-12.

Paul has been interpreted to require “stigma plus” in order to establish a constitutional deprivation. See, e.g., Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994). In other words, “an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all the attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right, infringement of more ‘tangible interests’ must be alleged as well”. Borucki v. Ryan, 827 F.2d 836, 842-43 (1st Cir. 1987); see also Marshall v. University of Hawaii, 9 Haw. App. 21, 32, 821 P.2d 937, 948 (1991).

Courts have recognized the serious harm to other “tangible interests” as a result of registration as a sex offender. Potential employers and landlords are reluctant to employ or rent to me once they learn of my status as a “sex offender”. See Pataki III, 3 F. Supp. 2d at 468; W.P. v. Poritz, 931 F. Supp. 1199, 1219 (D.N.J. 1996), rev’d, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1110 (1998) [hereinafter Verniero]; see also In re Reed, 663 P.2d 216 (Cal. 1983) (quoting In re Birch, 515 P.2d 12 (Cal. 1973)). (8). Indeed, the public notification provisions do adversely affect my personal and professional life, employability, associations with neighbors and choice of housing. Noble v. Board of Parole and Post-Prison Supervision, 964 P.2d 990, 995-96 (Or. 1998); State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996), cert. denied, 521 U.S. 1118 (1997); Rowe v. Burton, 884 F. Supp. 1372, 1378 (D. Alaska 1994), appeal dismissed, 85 F.3d 635 (9th Cir. 1996) (personal and professional lives); Artway v. Attorney General, 876 F. Supp. 666, 668 (D.N.J. 1995),aff’d in part and vacated in part, 81 F.3d 1235 (3d Cir.), reh’g denied, 83 F.2d 594 (1996) (employability and associations with neighbors); Robin L. Deems, Comment, California’s Sex Offender Notification Statute: A Constitutional Analysis, 33 San Diego L. Rev. 1195 (1996) (citing Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey’s Megan’s Law, 3 J. L. & Pol’y 569, 580-81 (1995)) (choice of housing). In addition, public disclosure encourages vigilantism and exposes me to possible physical violence. (9)See, e.g., Poritz, 662 A.2d at 430-31 (Stein, J., dissenting); Pataki I, 940 F. Supp. 603, 608-11 (S.D.N.Y. 1996); Doe v. Gregoire, 960 F. Supp. 1478, 1485 (W.D. Wash. 1997). Indeed, [w]hen a government agency focuses its machinery on the task of determining whether a person should be labeled publicly as having a certain undesirable characteristic or belonging to a certain undesirable group, and that agency must by law gather and synthesize evidence outside the public record in making that determination, the interest of the person to be labeled goes beyond mere reputation. . . . [I]t is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and, perhaps, even physical harassment likely to follow from designation.
Noble, 964 P.2d at 995-96.

The Paul Court recognized that, in addition to the interests recognized by state law, “[t]here are other interests . . . protected not by virtue of their recognition by the law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment.” Paul, 424 U.S. at 710 n.5. As an example, in Bohn, 772 F.2d at 1436 n.4, the United States Court of Appeals for the Eighth Circuit found a protectible interest in reputation where the stigma of being identified as a child abuser was tied to the protectible interest in privacy and autonomy of family relationships. See also Poritz, 662 A.2d at 419 (holding that the stigma resulting from notification that petitioner was a sex offender was tied to the protectible interest in privacy inasmuch as he had an interest in his reputation); Neal, 131 F.3d at 830 (holding that Hawaii’s designating of prisoner as “sex offender” without hearing and requiring successful completion of treatment program as precondition for parole eligibility together implicated a liberty interest protected by the right to due process of law).

Additionally, in an oft-quoted dissent in Poe v. Ullman,367 U.S. 497 (1961), Justice Harlan wrote,
[T]he full scope of liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.
Id. at 543 (Harlan, J., dissenting).[4] These words “eloquently” describe the Court’s role in the substantive due process inquiry. Moore v. City of East Cleveland,431 U.S. 494, 501 (1977).

These laws effectively brand me a “sex offender”, i.e., a public danger, for life. See Doe v. Pataki, 3 F. Supp. 2d 456, 467 (S.D.N.Y. 1998) [here in after Pataki III]; Doe v. Attorney General, 686 N.E.2d 1007, 1013 (Mass. 1997) [hereinafter Doe II];see also Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4 (8th Cir. 1985), cert. denied, 475 U.S. 1014 (1986).

Specifically, the public notification provisions imply that I am potentially dangerous, thereby undermining my reputation and standing in the community. Doe v. Poritz, 662 A.2d 367, 419 (N.J. 1995); cf. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (noting that “[o]ne need only look to the increasingly popular ‘Megan’s laws’, whereby states require sex offenders to register with law enforcement officials, who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender”). Indeed, public notification that I am a convicted sex offender implicitly announces that, in the eyes of the State, I present a risk of committing another sex offense. Doe II, 686 N.E.2d at 144.

The sex offender registration and notification laws or Megan’s law is causing irreparable harm to my reputation and professional life, employability, associations with neighbors, and choice of housing.

The sex offender registration and notification laws violate my liberty interest in my reputation by making public my current personal address and current photo which is not public information and which puts me in physical harm every time I enter or leave my home and even while I’m in my home I can not feel safe. This information is also being publicly distributed on the Internet from privately owned and operated websites such as homefacts.com. That information being made public puts not only myself but my families lives and property in danger of physical harm, harassment and vandalism. These claims are not hypothetical situations or exaggerations, these claims are facts and the possibilities of these incidents occurring are real and in fact some have already occurred in my case. The Megan’s law website also displays my criminal record which is only available to authorized individuals who meet certain criteria and have a need to know basis, not to the general public at a click of a computer mouse.
These laws affect and limit employment as very few employers will hire me simply because I am on a sex offender website that is accessible to the general public. These laws also restrict or limit my ability to travel for work or to be employed by local, state or federal agencies and severely affects my ability to obtain a business licence or business loans. They also limit what professions and careers that I can pursue and affect my personal and professional relationships in a severely negative way because of my inclusion on the sex offender registry and the publicly accessible Megan’s law website. These issues are not minor inconveniences but are major obstacles to my financial stability and to my fundamental right to life and liberty for me and my family. It also affects housing because very few property owners or property management organizations will rent to me for fear of vandalism and or the loss of present or potential tenants because of the accessibility to the registry by the general public. I am reluctant to move or purchase property for fear that I may violate some local ordinance or be forced to move because of some new law or ordinance being enacted and applied retroactively. I am also reluctant to move or purchase property for fear that I will be subjected to even worse harassment and vandalism by the community in which I move then I have already endured in my present location. These laws create real fears of being the victim of vigilante attacks, harassment and vandalism which forces me limit my activities to avoid being outside of my residence for fear of being harmed or harassed. I have had to call the police twice due to my family and I being physically threatened in one instance and having threats and profanity written all over our porch on the

See also for collateral damage caused by these laws.

http://sosen.org/blog/2015/05/19/collateral-damage-in-americas-war-on-sex-crimes.html
, http://sosen.org/blog/2015/02/09/spouse-of-registered-citizen-forced-to-quit-job-and-her-three-children-lose-their-home.html
, http://sosen.org/blog/2014/12/01/refugees-usa-families-destroyed-by-the-registry.html
. http://sosen.org/blog/2014/02/25/government-sanctioned-cruelty-to-over-half-1-million-american-children.html

I have a liberty interest protected by the Constitution that entitles me to procedural due process because of: (1) the public disclosure of accumulated and synthesized personal information that would not otherwise be easily available; (2) the harm to my personal and professional life; (3) the foreseeable harm to my reputation; and (4) the statutory branding of me as a public danger, i.e., as a sex offender. I note that the “interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber.” Noble, 964 P.2d at 995.

Re-posting from wrong section per request:

Mike R and anyone fighting this, I’ll try to include some of my favorite bookmarks and issues they address.

This is a great read about how and why challenges failed in courts with cases referenced. CATHERINE L. CARPENTER writes some great stuff. It is a good resource to see how challenges could now be made now that we have lots of evidence that registration is not rationally connected to alternative civil purposes and punitive rather than regulatory. Look at page 343, but go though the entire thing when you can as it shows lost cases for separation of powers, due process, prohibition of cruel and unusual punishment, presumption of innocence and the prohibition of unreasonable search and seizure:

http://texasvoices.org/wordpress/articles/CARPENTERv2.pdf

Page 2 of this below link shows how one law says those on supervised release must follow SORNA, as well as the thing I brought up before about discretionary conditions must be reasonably related to the crime and no greater deprivation of liberty than necessary. It’s funny how SORNA as a mandatory condition apparently doesn’t have to be reasonable or greater deprivation of liberty than necessary like the discretionary conditions.

I especially like this part: “As the Ninth Circuit explained in Weber: We have long held that a term of supervised release is part of a defendant’s sentence. . .and, like imprisonment, restricts a defendant’s liberty and fundamental rights. . . . As a result, when the government seeks to restrict a defendant’s liberty through a term of supervised release, it shoulders the burden of proving that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.”

I find it interesting that supervised release conditions must not deprive greater liberty than needed, but a free person that has completed probation can have rights trampled by legislation without it going through any type of scrutiny.

https://www.fd.org/pdf_lib/WS2011_06/fine_print.pdf

Lots of good arguments in this one:

http://www.hro.house.state.tx.us/focus/sex_offender79-16.pdf

Here is a great analyisis of Connecticut V Doe that will provide good arguments for Substantive Due Process and Equal Protection. It contains “The Court’s decision in Connecticut Department of Public Safety v. Doe indicates that future procedural due process challenges to sex offender registry statutes that turn on an offender’s conviction alone will be unsuccessful. 10 5 However, this statement must be qualified
by the fact that neither a substantive due process nor an equal protection challenge was heard in this case. 10 6 It also must be qualified by the fact that the majority opinion and a concurring
opinion acknowledged, either implicitly or explicitly, that if such a challenge was brought it may succeed”:

http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1147&context=naalj

and this one covers the above stuff even better:

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1212&context=mulr

I’ll keep posting what I’ve come across….hope it helps!

Open Question: Can anyone tell me what information we are actually required, per 290, to provide to law enforcement when they show up for a compliance check? Is it just: 1. confirming who I am, and 2. confirming I reside at this address? I
I ask this b/c I’m tired of their dumbass question every time they come out: Do you own or rent? Who else lives here? Do any children reside here? Is this your car? Do you have a computer? May we look at it? Do you have a cell phone? May we look at it? And etc., etc.
My offense was 20 years ago.
I’m not on parole or probation and haven’t been for 15+ years. I’m getting tired of their dumbass questions every time they come out. So in the future, I just want to say to them, “Yes, I’m Abner Napoleon Doubleday. Yes, I reside here. That’s all 290 requires from me. I’m not willing to answer any non-required questions.”

Janice,
I just recently bought a home and moving in full time this weekend. I went to the local PD to register today, and they said I had to call and make an appt. in order to register. (In years past, I used to just walk-in to the PD and register right then and there.) I contacted the number, which takes you straight to voice message. It said that they only do registrations on the first Tuesday and Wednesday of each month.

My concern is, not only am I a new resident, but my birthday is next Thursday. If I had to wait, I’d be registering 2 weeks beyond my birthday and 3 weeks beyond my move-in date. I don’t want to be out of compliance. All I can do is leave a message and wait for registering officer to return my call.