In the most recent step of the legislative process, the Assembly’s Public Safety Committee approved the newest version of the Tiered Registry Bill (SB 384) yesterday. The bill is now moving forward to the full Assembly for a floor vote in a few days where it may pass and if so, then on to the Senate the same day for a concurrence vote.
The newest version of the Tiered Registry Bill was created behind closed doors and was made public only a few days ago. The new bill resembles a monster of Frankenstein its jumbled and sometimes contradictory provisions. The new bill helps some and hurts many others.
The new bill differs dramatically from previous versions of the Tiered Registry Bill (SB 421) in several ways. The most dramatic difference is the assignment of all individuals convicted of felony child pornography (CP) to Tier 3. Due to that difference, there has been a loud hue and cry from registrants and family members who would be affected both directly and indirectly.
Their cry is understandable for many reasons. First, empirical evidence clearly states that those convicted of a CP offense are very unlikely to re-offend. Second, empirical evidence shows that those convicted of a CP offense have not and will not commit a violent or contact offense.
Third, there is a fundamental lack of fairness, logic and rational thinking in requiring an individual convicted once of a non-contact, non-violent offense to register for the same period of time as an individual convicted of multiple violent offenses. For example, a 16-year-old girl who sent nude selfies to her fellow high school students will be required to register for the same period of time as Phil Garrido who sexually assaulted his victim for 18 years. Finally, the expectations of those convicted of CP offenses and their loved ones were not dashed, but were annihilated by the new tier assignment.
During the short time available between the public release and the committee’s consideration of the bill, ACSOL lobbied strongly to revise downward (from Tier 3 to Tier 1) felony CP offenses. Our lobbying efforts failed because the skids of that bill were greased before it became public. That is, it was learned that an agreement had already been reached between members of the legislature and law enforcement, with prompting from the Governor, to move forward the current version of the bill.
The question now is what can we do? What is the path forward?
As difficult as it is, we need to wait. We need to wait to see if the legislature passes SB 384 and if the Governor signs the bill into law. We will know that outcome no later than October 15.
If the bill does become law, there are at least two ways to challenge it – future legislation and litigation. Future legislation is possible because the law would not take effect until January 2021. During the 4-year period between its passage and its effective date, new legislation could be passed that moves felony CP offenses from Tier 3 to Tier 1.
Future litigation is possible only after the law takes effect and could be challenged on many grounds including the equal protection clause of the 14th Amendment to the U.S. Constitution. There may be additional ways to challenge SB 384 and perhaps the entire registry in the future if courts continue to issue favorable decisions, such as Does v. Snyder, Commonwealth v. Muniz and Millard v. Rankin.
In order to succeed on any level, we must Show Up, Stand Up and Speak Up in increasing numbers. Larger numbers of volunteers will be needed to attend legislative hearings, to serve as plaintiffs and to make financial contributions. With that support, we can and will succeed!
— by Janice Bellucci
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Janice thank you for the explanation. I am going to assume the blow up over Fletcher’s comments were related to CP offenses, nonetheless, very misleading.
This is a very thoughtful and sensible response to the bad news about the tiered registry bill. Like many, I have a CP conviction that was moved from tier 1 to tier 2, and then to tier 3 in each successive bill. That is severely disappointing and, I think, inexplicable, but the worst response I can imaging is to disengage from the fight, or to start fighting among ourselves. I will continue to support ACSOL, since it’s one of the few organizations that speaks for us and tries to inject some sanity into this ridiculous system. Thanks to Janice, the board, and their team.
Thank you for the explanation, Janice. Hopefully more than just CP charges are moved out of tier 3. Several non-contact crimes that were previously Tier 1 are now in Tier 3.
Frankly, I don’t want to be involved in another legislative attempt at a tiered registry. I have seen how it has divided registrants. Also we should have known that there are a lot of people like Gonzalez-Fletcher in the legislature that were not going to let the bill pass without having their own flavor of punishment thrown in to show how tough on sexual criminal they can be. I am only surprised they waited ’til the last minute to show it. I am not an expert, but I have seen in my 45 or so adult years seeing politics, that if you start bargaining in the middle with a group that is staunchly opposed to your vision, you are only going to end up with that much less than the minimum you can except.
As for legislators, I think Robert Curtis is on the right track. We can’t hope to change legislator’s minds, we have to change the legislators. There is maybe enough of us to make a slight difference. A slight difference can make a big difference in a contested election. To be honest, I really don’t want to change my job to sharpen scissors, but there must be some other methods we can come up with. We really need a database of registrants so we can get them involved in the system, support candidates and vote (in the states we are allowed). I would rather support positive legislation like getting registrants in other states the vote or non punitive initiatives to lessen sexual violence in the home, church and office, where the main problem is. I have always been adverse to judging who is to be shamed and who is to be left alone. That sort of thinking is the problem. Shaming does not work — unless it is short in duration and you give the shamed an exit route to get back into the good graces of society. I believe that giving the public the green light to shame others has been judged to be cruel and unusual in most cases. It ignites peoples worst instincts and is therefore counter productive. The public just doesn’t know when to stop.
Janice – a while back I think Pam posted about the process and what the next steps were. Is it still possible that the Senate will not accept all the amendments that the Assembly has put into the legislation?
Thanks for explaining everything, That will help us understand a little better. But why 2021? Seems like 4 years after a bill is signed into law is a really long time. I don’t get that.
If this does become law, will ASCOL hold a conference call to help us all understand this?
Since the law is subject to change it can be stretched in all different directions in 3 years, 3 months, 17 days, excluding the end date of Jan. 1, 1921.
Will it even be recognizable?
As soon as the bill is enacted it needs to be challenged. We cannot wait until it takes effect, and according to case law we do not have to wait. I know it is really soon to be making some kind of decision on how your org will proceed after this but I hope that the day this is enacted that you file for immediate injunction relief.
Preliminary Injunction
1 Elements and Case Citations
STATE PROCEDURE
In seeking a temporary or preliminary injunction, a plaintiff must establish “irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.’ The court will consider
1. The likelihood of the moving party’s success on the merits;
2. The possibility of irreparable harm to the moving party if relief not granted; and
3. Extent to which the balance of hardships favors the respective parties.
White v. Davis, 30 Cal. 4th 528, 554 (2003) (also discussing public policy issues in connection with injunctions sought against governmental agencies).
“While the mere possibility of harm to the plaintiffs is insufficient to justify a preliminary injunction, the plaintiffs are ‘not required to wait until they have suffered actual harm before they apply for an injunction, but may seek injunctive relief against the threatened infringement of their rights.’” Costa Mesa City Employees Assn. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012).
Cal. Code Civ. Proc. § 526 identifies the “[c]ases in which injunction may or may not be granted.” See also Cal. Code Civ. Proc. §§ 525, et seq. (“Injunctions”).
FEDERAL PROCEDURE
A plaintiff seeking a preliminary injunction must establish
[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.
Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
It is well established that, to determine whether an injunction is “just and proper,” courts apply the “familiar set of four equitable factors: the movant’s likelihood of success on the merits; the possibility of irreparable injury to the moving party; the extent to which the balance of hardships favors each party; and whether the public interest will be advanced by granting the preliminary relief.”
Small ex rel. NLRB v. Operative Plasterers’ & Cement Masons’ International Assoc., 611 F.3d 483, 489-90 (9th Cir. 2010).
CALIFORNIA STATE COURTS
Supreme Court of California: White v. Davis, 30 Cal. 4th 528, 554 (2003).
California 1st Dist.: People ex rel. Herrera v. Stender, 212 Cal. App. 4th 614, 630 (2012).
California 2d Dist.: Water Replenishment Dist. of Southern California v. City of Cerritos, 220 Cal. App. 4th 1450, 1461-62 (2013).
California 3d Dist.: Prigmore v. City of Redding, 211 Cal. App. 4th 1322, 1333 (2012).
California 4th Dist.: SB Liberty, LLC v. Isla Verde Ass’n, Inc., 217 Cal. App. 4th 272, 280 (2013).
California 5th Dist.: Smith v. Adventist Health System/West, 182 Cal. App. 4th 729, 749 (2010).
California 6th Dist.: Oiye v. Fox, 211 Cal. App. 4th 1036, 1047 (2012), rev. denied, No. S208185, 2013 Cal. LEXIS 1994 (Mar. 13, 2013).
CALIFORNIA FEDERAL COURT
United States Supreme Court: Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
United States Court of Appeal for the 9th Circuit: Herb Reed Enters., LLC v. Florida Enertainment Mgmt., No. 12-16868, 2013 U.S. App. LEXIS 23938, at *16-17 (9th Cir. Dec. 2, 2013); Small ex rel. NLRB v. Operative Plasterers’ & Cement Masons’ International Assoc., 611 F.3d 483, 489-90 (9th Cir. 2010).
Central District: Constr. Laborers Trust Fund for S. Cal. Admin. Co. v. Play Smart Surfacing, Inc., No. EDCV 13-00582-VAP (DTBx), 2013 U.S. Dist. LEXIS 163762, at *16 (C.D. Cal. Nov. 12, 2013).
Eastern District: Manago v. Williams, No. 2:07-cv-02290-TLN-KJN P, 2013 U.S. Dist. LEXIS 174327, at *4-5 (E.D. Cal. Dec. 12, 2013).
Northern District: XimpleWare Corp. v. Versata Software, Inc., No. C 13-05160 SI, 2013 U.S. Dist. LEXIS 172411, at *5-6 (N.D. Cal. Dec. 6, 2013).
Southern District: Mytee Prods. v. Shop Vac Corp., No. 13cv1610 BTM (BGS), 2013 U.S. Dist. LEXIS 158539, at *2-3 (S.D. Cal. Nov. 4, 2013).
My reading earlier today I had me thinking that my original conviction would move me to tier 3 and I will still supported the bill in that situation. Further inquiry led to the finding I probably would be in tier 2. So I feel comfortable in stating that despite the absurd application against viewing of CP I still think it’s good if the bill passes. I think the absurdity of the CP provisions would help fight against them. As a citizen I consider CP to be more in line with a heroin addiction. I think it is something where the individual agrees to get help and be monitored to be sure they are getting help and that moving towards appropriate and healthy behavior is very possible for my fellow citizens. I find it bizarre that addictive viewing of other people’s criminal photographs is considered in the most severe category of human behavior. I think compulsive behavior is more common among young people and those who have not taken a good look at their lives. I don’t wish to use the criminal justice system to punish but to help fellow citizens live more effectively with others.
I think this law is a ploy to get the courts to strike it down, but to also get the court to leisurely or casually address whether the rest of the registry is constitutional thereby making a decision A priori without any challenge in front of the court at that time..This is bigger then just what we are seeing, I know something else is the motive besides just money or vengeance.
On all version of SB 421, I would have been Tier 1, but on this one I’m Tier 3. I was hesitant to support SB 421 because I didn’t think it did enough even though I was one of those who would benefit from it. By the time it had been hacked a few times, I openly encouraged everyone to go against it. Now we get this…the only thing I will support moving forward is complete abolition of the registry.
I hate to say I told you so, but the writing is on the wall, nothing even close to being rational or reasonable comes out of our current legislatures any where any time…..There all insane with the quest for power…..
Also I guess the legislature can just blatantly avoid any type of fact finding anymore when it comes to legislation now days…I believe that they are obligated under some code of ethics or civil codes of procedures to actually do fact findings and consider all relevant evidence when enacting a law….
Thank you Janice…I do feel there could be some hope now. Thank you for explaining. We are going to fight all we need to do the next four years.
I agree if this does pass it needs to be ree done to help more people question is a single count of 288(a) a tier 2 offense or tier 3 offense thanks
A Tier 3 includes more than one separate conviction, so one conviction defaults to Tier 2. Search the bill for 288.
(F) The person was convicted of violating subdivision (a) of Section 288 in two proceedings brought and tried separately.
People keep forgetting that we are all Tier 3 now. This bill will move some away from Tier 3. Hopefully, that will create a framework to move more into Tier 1 or 2, later.
Thank you for helping clear that up
Amazing that the Static 99 score is now locked at time of release. This bill, SB 384, gives even more power to junk science.
Truly great news! Expunged battery. We need to support this bill. Please ignore the ignorant comments. As noted, all registered citizens don’t fall into the same category
There is still no language (that I have found) about registrants convicted in CA who have moved out of state. Petitioning off still refers only to the county in which one is registered. I can’t believe they can’t add a simple like of text that reads “or the county in which the registrant was convicted if registrant currently lives outside of California” or something to that effect.
They are asking for an influx of former offenders back into California, and that’s what they are going to get! Jeez!!!
I could see PRODUCTION of CP being a Tier 3, but NOT mere possession. I honestly feel as though possession shouldn’t even be a registrable offense to begin with. Non-violent, non-contact with no immediate “victim.” That – in an of itself – fully illustrates this schema is about vengeance, not proactive prevention. You damn right it’s punitive.
Reputation and life destroyed over pre-existing images from the INTERNET!
ok thx for laying it out Janice–if you’re adversely affected by it nothing happens or can be done about it until 2021. In fact it’s probably best to have the bill for something new to throw darts at–equal protection under the law looms big time here
In politics, ridiculousness opens up more cracks than being merely extreme on any issue.
Not sure what to make of what they have just vomited up to protect their reputations and/ or careers, but they may have just given us a gift.