The 4th Circuit Court of Appeals rendered an important decision yesterday, Does v. Cooper, that is full of many wonders. We can only hope that this wonder-full decision will serve as a guiding light for additional federal courts, including the U.S. Supreme Court, in the future.
The greatest wonder of the 4th Circuit’s decision was the Court’s insistence that state laws which prohibited some, but not all, registrants from visiting public and private locations must be based upon empirical evidence if those laws could cover locations where people exercise their First Amendment rights of freedom of speech and religion. Such locations include, for example, public parks, public streets, public buildings, and religious institutions. The Court suggested that empirical evidence in support of such laws could include data, social science or scientific research, and legislative findings.
In fact, the Court strongly rejected the assertions of the State of North Carolina that anecdotes, common sense and logic could replace empirical evidence. The Court’s rejection, in fact, emphasized that “(w)ithout empirical data or other similar credible evidence” the State of North Carolina could not justify that its laws were based upon “the State’s legitimate interest in protecting minors from sexual assault.”
Another wonder of the 4th Circuit’s decision is the Court’s determination that one of the laws at issue was overbroad not because it applied to all of the state’s registrants, but because it applied to a smaller group of registrants who had been convicted of a violent sex offense and/or an offense involving a victim less than 16 years old. The Court noted that not all members of even that group “pose a danger to minors or are likely to pose such a danger”.
A third wonder of the 4th Circuit’s decision is the Court’s determination that another of the laws at issue was unconstitutionally vague because “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized”. This part of the decision focused upon language in the law the prohibited registrants from visiting “any place where minors gather for regularly scheduled educational, recreational, or social programs,” without providing examples of such places or other guidance as to what the law requires.
We celebrate the 4th Circuit Court of Appeals decision and remember fondly a similar decision, People v. Nguyen, in a California state appellate court issued in 2014 that reached a similar conclusion albeit for different reasons. It is that decision which helped us, along with 31 cases filed in federal court, to eliminate virtually all presence restrictions in the State of California.
Our holiday hope is that all states in our great nation will soon follow these precedents and eliminate all laws that restrict where registrants may visit. This is particularly important at a time of year when the existence of such laws punish not only registrants but their loved ones by keeping them apart.
— by Janice Bellucci / all Janice’s Journal entries
Related
4th Circuit strikes down North Carolina residency/movement restrictions on sex offenders
Baby Steps
When I saw that yesterday, I suspected this could be good news for not just NC, but for all registrants nationwide. Thank you for confirming this Janice. I’m curious if this decision could be used against the IML considering the IML was also passed with no empirical evidence that registered citizens traveling abroad posed a threat.
“In fact, the Court strongly rejected the assertions of the State of North Carolina that anecdotes, common sense and logic could replace empirical evidence.”
Based upon this statement alone, Research Triangle in NC should be coughing on what the state thought considering they produce empirical evidence using scientific methods to defeat what is thought of as anecdotes, common sense and logic. (The Research Triangle, commonly referred to as simply The Triangle, is a region in the Piedmont of North Carolina in the United States, anchored by North Carolina State University, Duke University, University of North Carolina at Chapel Hill, and the cities of Raleigh and Durham and the town of Chapel Hill. Wikipedia.)
Research = Empirical evidence (aka statistical data)
Next step, provide what are truly worthy empirical evidence generating research methods, e.g. NOT Static-99 solely.
Janice,
Thank you kindly for your overview of the wonders exposed to the light by the Judges of the 4th. Circuit Court. I Give Thanks to The Most High Father in Heaven for the clear Critical Thinking Skills He has given these Judges who now appear to see.
Furthermore I appeal to The Most High in Heaven to bless you as He blessed King Solomon with Divine Wisdom and a Strong Heart. All say amen.
As Yehovah lives, so should we
Janice:
I think the net, net of everything is that folks convicted of a sex offense would put up with and find reasonable a registry that was for law enforcement only. i believe we should advocate for what California had in place for half a century before AWA. If it’s supposed to be civil and serve law enforcement’s purposes then that’s what we should get our heads around and fully support that! Abolish any other SO law, keep it simple and useful, and constitutional…
“Our holiday hope is that all states in our great nation will soon follow these precedents and eliminate all laws that restrict where registrants may visit. This is particularly important at a time of year when the existence of such laws punish not only registrants but their loved ones by keeping them apart.”
Great news and very welcome this holiday season!
The State of North Carolina has been trespassing on a path most wicked which has created evil. They have no compassion for those who repent of their errors but instead seek to destroy those who seek redemption for themselves and the innocent family member who suffer Unjustly with them.
How manny times was The Most High Father in Heaven moved to forgive them their errors because He had compassion and took pity on them? But these wicked servants refuse to forgive their fellow countrymen.
Hypocrites & Sons of Vipers!!!
Matthew 18:21-35 KJVS
[21] Then came Peter to him, and said, Lord, how oft shall my brother sin against me, and I forgive him? till seven times?
[22] Jesus saith unto him, I say not unto thee, Until seven times: but, Until seventy times seven.
[23] Therefore is the kingdom of heaven likened unto a certain king, which would take account of his servants.
[24] And when he had begun to reckon, one was brought unto him, which owed him ten thousand talents.
[25] But forasmuch as he had not to pay, his lord commanded him to be sold, and his wife, and children, and all that he had, and payment to be made.
[26] The servant therefore fell down, and worshipped him, saying, Lord, have patience with me, and I will pay thee all.
[27] Then the lord of that servant was moved with compassion, and loosed him, and forgave him the debt.
[28] But the same servant went out, and found one of his fellowservants, which owed him an hundred pence: and he laid hands on him, and took him by the throat, saying, Pay me that thou owest.
[29] And his fellowservant fell down at his feet, and besought him, saying, Have patience with me, and I will pay thee all.
[30] And he would not: but went and cast him into prison, till he should pay the debt.
[31] So when his fellowservants saw what was done, they were very sorry, and came and told unto their lord all that was done.
[32] Then his lord, after that he had called him, said unto him, O thou wicked servant, I forgave thee all that debt, because thou desiredst me:
[33] Shouldest not thou also have had compassion on thy fellowservant, even as I had pity on thee?
[34] And his lord was wroth, and delivered him to the tormentors, till he should pay all that was due unto him.
[35] So likewise shall my heavenly Father do also unto you, if ye from your hearts forgive not every one his brother their trespasses.
As Yehovah lives, so should we!
Hi Janice,
As a conservative, I believe that more and more conservative judges will see the constitutional rights that all of us understand and applaud. Perhaps the more liberal and progressive judges will find the value of factual evidence instead of “anecdotes, common sense and logic…”
Basing laws on verifiable reality, who ever came up with such a novel concept? Maybe someome has verified whether laws based on verifiable reality in reality, actually, achieve the laws’ intent.
Conversely, Santa Claus is real to those who believe.
@Tired of this
I agree with your statement 110%
this decision is great news im so glad they posted its own thread.
This is heartening to read. I hope the right case can set the stage for a similar act of courage by the 9th Circuit.
The snowball grows! 🙂
Nice to see hope on the horizon.
Happy holidays to all. This is a trying time for most here.
I dream of the politician who runs on the platform of not just upholding the constitution; but getting rid of the financially wasteful registration legislation causing human suffering. — Maybe next Christmas.
Note: the Courts repeatedly informed the NC AG that the State must produce empirical evidence.
Big fail, NC AG!! Your cavalier attitude is greatly appreciated! ☺
I really hope somebody takes these wins and really runs with em…that’s right show us the data in court on a record..that’s my new name it’s fitting for this site..a lot of people have been saying wheres the evidence
These laws that signal out a group or individual are unconstitutional! Everyone should read up on “Bill of Attainder”
Definition: A legislative act that singles out an individual or group for punishment without a trial. The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”
How is SORA, AWA, IML, RESIDENCY RESTRICTION or any law that attacks, sets restrictions against sex offenders an easily identifiable group constitutional?
“A bill of attainder is defined by the Supreme Court as a legislative
act which inflicts punishment on named individuals or members of an
easily ascertainable group without a judicial trial.’ This definition has
its roots in English common law and parliamentary history. At English
common law attainder was an “inseparable consequence” of a death
sentence imposed by the courts.’ The added penalty of attainder pro-
ceeded on the theory that:
when it is … clear beyond all dispute, that the criminal is no longer
fit to live upon the earth, but is to be exterminated as a monster and
a bane to human society, the law sets a note of infamy upon him…
and takes no farther care of him than barely to see him executed.
He is then called attaint, attinctus, stained or blackened . . . . [B]y
an anticipation of his punishment, he is already dead in law.’
The consequences of attainder were the forefeiture of the attainted
person’s real and personal property” and the corruption of his blood,the latter consequence meaning he could not inherit and no one could
inherit from him.” The attainted was “wiped out as if he had never
been born.”‘”
Because acts of Parliament which imposed a death sentence on a
particular individual also carried an attainder, these special statutes were
called acts of attainder. Similar statutes which prescribed a penalty short
of death, such as banishment or loss of office, were called bills of pains
and penalties. The Supreme Court has consistently ruled that the
constitutional proscription of bills of attainder encompasses bills of
pains and penalties, and, unless indicated otherwise, the term bill of
attainder is used in its generic sense in this Comment.”
The Supreme Court’s Bill of Attainder Doctrine: A Need for Clarification – Berkeley Law Scholarship …
https://www.google.com/url?sa=t&source=web&rct=j&url=http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi%3Farticle%3D2958%26context%3Dcalifornialawreview&ved=0ahUKEwjOqcnhnNjQAhVNyWMKHbURDwQQFghgMAY&usg=AFQjCNHT3EG4RfHi7BtzgC9FHmdnF0Q1tQ&sig2=b56KNGdmY90jml_q7gg9qQ
civil rights first those are extremely well articulated post on the bill of attainder claim….after I draft that into my motion we might need to come together and corroborate on how to strengthen this argument in full…excellent post….
another iss ue I need to research better and understand better when it comes to the ex post facto and bill of attainder claim is the fact that during sentencing in june of 2006 the judge stated that I had to register as a sex offender so im not clear on it but it seems on the face that that was part of the punishment that the Court ordered during sentencing…I have to articulate it perfectly in order to relieve me of duty to register as well as all the laws and regulations that were added after my sentencing…
Oral argument of this case:
http://coop.ca4.uscourts.gov/OAarchive/mp3/16-6026-20160921.mp3
Don’t get your ganders in your danders just yet! We have Trump as President. We are seeing the effects of racism only based on some idiots perverse thinking that Trump, when he was elected, gave several fringe, radical groups the view that he is Hitler-incarnate. Though the S.O. Restrictions laws are slowly crumbling in many states, some power out there in the politico realms is developing his/her strategy to stop the courts from deciding in our favor in the future. Will their strategy work? Depends on who Trump removes from the bench and who that replacement will be – from District Courts to Court of Appeals on the Federal level. Well, that is the bad news for now. However… there is good news, too… From these decisions we can learn what the enemies are thinking and planning, and plan our litigation challenges (lawsuits) and develop a core legal strategy both for offensive and defensive purposes. It is actually comical that most all States and their local municipalities use the same legal defenses. The most interesting fact of these court cases is that several of the States failed to present credible evidence and empirical studies with credible statistics to show true recidivism rates based on government studies, university studies, psychological clinical studies, or proffer testimony from actual sex offender therapists. Their main support for their positions is the “common sense approach”… “if we restrict those convicted of sex offense from living near us, then we can protect our children”. Poorly misaligned, misplaced thinking – a waste of good brain cells! Then, based on that premise, these law grew into a goliath beast of harm, cruelty, and punishment purposely to exact a toll on us as an imaginary, feel-good, retribution of some sort. As the “Megan’s Law” took hold throughout the country in each state, each state was enticed by the federal dollars that went with the package; basically… you Mr/Ms State implement these laws and we give you money….Period! There was no historical data in which to use to support the implementation of these laws, because we have not had a “scarlet letter” law on the book for over 100 years, so we all forgot the damage that these laws cause. And, one tid-bit of true facts that were purposely left out when enacting these laws… That most sex crimes are perpetrated by first-time offenders! Now, with that said… In these litigations on our behalf, the most troublesome legal hurdle to get over initially was to get the ACLU backing. They did not want to dance in this arena, initially, because “it was a sex crime” and was taboo to touch or be associated with. But, as you see it now, the ACLU attitude has changed dramatically over the years. Another hurdle was convincing the Courts about the “ex post facto” violations on various levels from viewing these registration laws as punishment, enhancements, and extension of long-expired criminal sentences, to residential boundary and general movement/area visitation restriction municipal ordinances and state statutes, enacted after conviction. Courts are finally applying the ex post facto provision of the constitution correctly now. Believe me, some of the various Court’s previous decisions were bizzaro and made absolutely no legally reasoning sense. However, we are slowly overcoming these hurdles with good Court decisions. So, on that note, we are going to end this year with several positive decisions with Courts finally reviewing these archaic, scarlet letter laws under constitutional scrutiny and the dismantling process is starting! We have come a long way since these laws were enacted. The one interesting thing about this, and Attorney, Ms. Janice Berlucci and I, have discussed this… someone is preparing to challenge the constitutionality of these laws in a new, uncharted direction… (actually, we are getting ready to do this in one of the states) … the legal challenge is that these laws are unconstitutional in the fact that their “preambles” (the reason, letter, spirit and intent) to enact these laws, are based on scare tactics (to put fear in the public) and false facts about sex offenders, sex offenses, and true recidivism rates. Basically, these laws are premised and enacted on false information and facts, thus, opens the door to constitutional challenges. We now have the “empirical data” to show this through many lawsuits brought on our behalf, and most notably, compiled by the efforts of Ms. Berlucci! And… there you have it folks! Lets support ACSOL in its efforts to make this a greater country than even Trump imagined! Al D. (former attorney).
Thanks for sharing Janice. This is great news. I hope these decisions state wide will help in stopping similar city ordinances. It seems to be that this is the trend: cities passing unconstitutional laws restricting RSO’s from public locations. Take for example this story which is very sad:
http://reason.com/blog/2016/11/22/dying-wheelchair-bound-sex-offender-must
I hope these decisions will encourage janice and team to participate in either assisting others or bringing suit herself in a challenge to the justification for these laws and the panoply of constitutional violations that are occurring because of that lack of justification ….those are the real issues and what I have been saying forever now is now being vindicated by decisions such as this…
Our Constitution wins.
Our Constitution is the foundation on this outstanding ruling by the 4th District Court.
Our Constitution has been saying it for over 200 years.
No selfish idiot individual can take credit for that…You idiot.
Anyways,
The license plate motto for n. Carolina: The Unconstitutional state.
Well, I don’t think anyone can argue against a tiered system. It’s a way out. I think most people (including myself) are concerned about (if they hadn’t before) having their info posted on the Megan’s Law Website. Furthermore, I hope the 10 year or 20 year requests to terminate Regiatratuon is black and white. I requested a COR some years back and the Judge stated he couldn’t find one reason to deny the motion, but it wasn’t enough/motion denied? So, this is important.