General Comments December 2017

AJ and others, I posted in the reply so check that.

@Mike R

If you have enough time, try to search when California ruled the registry a punishment, and that you could use 1203.4 to get off the registry. I remember Anonymous Nobody knows the history. So if you can find that particular case, then you can actually show how the registry was punishment to begin with.

I was trying to do a search, but the information is scant. I did find two links that might be worth looking into:

Link 1: http://www.solresearch.org/report/Origin_of_Registry

The registry itself started out tracking mobsters. Then it included sex crimes later on. But there is no registry now for mobsters. Here’s a quote from that link:
=========
And what happened to the gangster law that got the whole thing started? It was annulled by the California Supreme Court in 1960. The court determined that since the state had made laws about registering people for a selected set of crimes, that took jurisdiction to do so away from local governments. Since the state government had decided (and maintains to this day) that registration should only be for sex crimes, the City of Los Angeles and other municipalities are no longer free to impose their own ordinances that require registration by violent felons or any other criminals they wish to keep track of.
=========

So here, I denote how the registry was born and how no other sets of convicts are subject to this registry… or rather, this link pointed that out.
.
.
.
Link 2: http://www.cs.cmu.edu/~burnsm/SOR.html

This one is titled “Do sexual predators have the right to privacy?”

======
Punishment for Violation of An Offender’s Privacy

The final provision for confidentiality in most sex offender registry laws is punishment for violation of that confidentiality. All citizens who access the registry in California are required to sign a statement saying that they understand the proper, intended uses for the information they are to receive. Should they violate any of the rules contained in that statement or in California Assembly Bill 1562, they are subject to the following penalties:

1. Reproduction, distribution, or use of any of information obtained from the registry without permission is a misdemeanor, punishable by both six months jail time and up to $1000 in fines.

2. The use of registry information to commit a misdemeanor is itself a misdemeanor, and adds a fine of between $500 and $1000 to the sentence of the guilty party.

3. Commission of a felony using registry information is itself a felony, punishable by an additional 5 years added to the prison term to which the felon is sentenced.
======

And this quote:
======
Although the most sensitive information is not released to the public, it is accessible to law enforcement agencies, who are just as capable of invading the privacy of a citizen. Mark Kappelhoff, Legislative Counsel for the ACLU, who have traditionally opposed sex offender registries because of the privacy risk they impose, said that “it’s a problem when you put a very vague power in the hands of law enforcement officials.” “The chances for abuse are great, and there appears to be no court oversight,” [7].
======

We have compliance checks in California. It isn’t on any law book, but the state is using our private information to check up on us. In fact, the registry has added home address from it’s original inception.

Remember, according to Megan’s Website, it is a duty to registry. So it is a service only for convicts (and non-convicts) of sex crimes; not to all citizens. The registry isn’t punishment, but it does force one to continued service to the state of California under penalty of law upon a free citizen.

My god I do not know how I do it but this is brilliant. Just from what Chris provided for my starting point, “California DOJ is the Gatekeeper of the California registry” If it was AJ I apologize but you know what I mean, i was able to just run with it and OMG I am really impressed…..
Check it out, short sweet and direct and precise. remember this is just to establish subject matter jurisdiction…Next comes the punishment issue then the exact claims and harms done…..

Argument
Defendant claims that this Court does not have subject matter jurisdiction to hear Plaintiff’s claims Six through Nine, but the Attorney General (AG) is mistaken as to the application of the cases and theory of law that Defendant relies upon to make that claim for two specific but separate reasons.

I. The California Attorney General (AG) carries out the responsibilities of the office through the California Department of Justice (DOJ). It is the DOJ who maintains the State Megan’s Law website and the attached data base. The California DOJ has complete jurisdiction, authority and control over said data base. Therefore the AG does have a direct connection to the alleged claims and this court does have subject matter jurisdiction in all Plaintiffs’ stated claims.
The AG’s interpretation and theory of the law and precedents are erroneous. I am being injured by the local ordinances (i.e. residency and presence bans) and the federal IML(International Megan’s Law) and other state laws outlined below because of the direct actions of the DOJ that establishes the Megan’s Law website and the attached registration data base and who does have direct control over said data base and website.
I am arguing that the Defendant is responsible or at the least has a direct connection to the enforcement or application of those laws; I am arguing that the Defendant is in violation of the Federal Ex Post Facto clause as well as all claims Six through Nine of Plaintiff’s Complaint by Defendant’s direct official actions through the California Department of Justice. The Ex parte Young exception allows “suits for prospective declaratory and injunction relief against state officers, sued in their official capacities, to enjoin an alleged ongoing violation of federal law.” Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000).
The Defendant relies upon the Ninth Circuit case of Long v. Van de Camp in order to attempt to dismiss Plaintiff’s claims for a lack of subject matter jurisdiction but fails to recognize there is a big difference between Plaintiff’s case here and Long v. Van de Camp. In Long there was no connection between the two parties as the AG had no authority over enforcement and had no direct connection to the harms that arose out of the AG’s direct official actions. The district court found that no injury had resulted. Even if a plaintiff had been injured by non-penalty provisions, the injury could not have been traced to the action of the attorney general, against whom relief is sought. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976) (“a federal court [can] act only to redress injury that fairly can be traced to the challenged action of the defendant”). Here there is a direct connection between the Defendant’s actions and the harm by those ordinances and federal statutes that can be traced directly to the Defendant’s official actions.
California DOJ is the Gatekeeper of the California registry and they participate in sending that list to the Federal Government, to other states and to local municipalities for the sole purpose of whatever actions, bans or restrictions the Federal, State and local government deems needed. If California did not violate Plaintiff’s Constitutional liberties as outlined in Claim Six through Nine of the original Complaint by including Plaintiff on the Megan’s Law website and attached data base, Plaintiff would not be subjected to Federal law, bans and restrictions by the other states, cities and local municipality’s ordinances. Those actions taken by other Federal, State and local Government is a direct response from Plaintiff’s inclusion on the California Megan’s Law website and of the Plaintiff’s inclusion in the associated data base. Therefore there is a direct connection between the actions by the Defendant and all claims in the original compliant. For those reasons the Court does have subject matter jurisdiction over all Plaintiff’s Federal, State and local Government claims in the original complaint including claims Six through Nine. It is the connection between the Defendant’s official actions within the DOJ and the harm done. Whoever does the harm doesn’t matter……Under a Substantive Due Process claim Plaintiff need only show a direct connection to the harm being done, and exactly what that harm is.
II. Furthermore, the Attorney General of California is the State Attorney General of California. CALIFORNIA CONSTITUTION ARTICLE 5 EXECUTIVE SEC. 13. Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. “The Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices”. Here in this case, and according to California Constitution, the Attorney General has more than a mere general supervisory role in, and connection between, the actions taken by local authorities who enforce the laws. Through the AG’s official actions of including Plaintiff on the Megan’s Law website and associated data base there is a direct supervisory role in the enforcement of these laws in that the AG, in the AG’s official supervisory role, is implicitly ordering the local authorities to enforce said laws. Without such a connection between the local authorities and the Megan’s Law website and data base there would be no enforcement of said laws.

I. Defendant’s Motion to Dismiss (“Motion”), Defendant states, “settled Supreme Court and Ninth Circuit law [decided] SORA and Megan’s Law are not punitive.” (Motion, p. 1, at 23-24.) In Smith v. Doe (2003), the Supreme Court considered, “the Alaska Sex Offender Registration Act [, enacted] on May 12, 1994.” (“ASORA”) Smith v. Doe, 538 US 89. In a majority Opinion, the Court held the 1994 ASORA was non-punitive and therefore did not violate the Ex Post Facto Clause of the Constitution. (Id. at 84, 105.) Since then, courts, including the Ninth Circuit, have relied on Smith in rendering Opinions involving registration of former sex offenders. However, since the Court’s Opinion, Congress and State Legislatures (including, significantly, Alaska) have enacted laws with burdens beyond those presented to the Court in Smith, and therefore any comparison of present-day SORNA and Megan’s Laws to the facts from Smith is inadequate.
In 1998, Alaska amended ASORA (Session Laws of Alaska (1998), Ch. 106, §§ 10, 12). “In 2004, the California Legislature enacted Penal Code section 290.46, also known as “Megan’s Law.”” (“Section 290”) (Motion, p. 5, at 3-4.) In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act (“AWA”) (https://www.congress.gov/bill/109th-congress/house-bill/4472%5Blast visited December 17, 2017]), which included a federal SORNA. Finding disparity between the 1994 ASORA from Smith, and the Megan’s Laws of today, multiple State Courts of Last Resort (OH, IN, ME, AK, OK, PA, MD) and Federal Courts (D. Colo., 6th Circuit) have found SORNAs punitive in effect. While none of these cases is binding on this court, they are persuasive. Of note, the Supreme Court allowed to stand Does v. Snyder, in which the Opinion of the 6th Circuit Court of Appeals directly contradicted many facets elements and facts of Smith. Further eroding Defendant’s “settled law” claim, in U.S. v Kebodeaux (570 US ___ (2013)), the Court noted, “[t]here is conflicting evidence on the point” of recidvism, and cited research supporting the opposite, and thereby chipped away at the “frightening and high” mantra upon which Legislatures and courts have relied. Finally, in Packingham v. North Carolina (584 US ___ (2017)), the Court remarked upon, “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system.” Similar troubling facts exist for Plaintiff due to Defendant’s implementation and enforcement of SORA.
Plaintiff is asking this Court to recognize what other courts across the country have increasingly found: that the nature of sex offender registration has fundamentally changed since 2003, when the U.S. Supreme Court upheld a registration scheme that imposed only “minor and indirect” restraints on registrants. See Smith v. Doe, 538 U.S. 84, 100 (2003).
Unlike in Smith, the Plaintiff’s burdens here are not “minor and indirect.” (quoting Smith, 538 U.S. at 100). Under the Alaska statute, registrants were “free to move where they wish and to live and work as other citizens, with no supervision,” there was “no evidence that the Act has led to substantial occupational or housing disadvantages,” and “the record contains no indication that an in-person appearance requirement has been imposed.” Smith, 538 U.S. at 100-101.
Here, Plaintiff must frequently and routinely interrupt his pursuit of Plaintiff’s liberty interest for in-person reporting to law enforcement whenever Plaintiff changes residences, changes employment, enrolls (or unenrolls) as a student, changes his name, registers a new email address or other ‘internet identifiers (in a multitude of the Nations States) when Plaintiff wishes to travel for a hodgepodge of different lengths of times or locations, or buys or begins to use vehicles (or cease to own or use a vehicle), or all the other reasons outlined in this motion. See, KEEPING THE REGISTRATION CURRENT.—A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register, 42 USC 16913. Sect. 113(c). Also see, Sacramento, California’s registration form “REGISTRATION REQUIREMENTS” in which there are 18 “conditions of registration” that I must comply with along with the federal or other state statutes. https://www.sacsheriff.com/Pages/Organization/CID/documents/290_requirements.pdf, See, Ca Penal Code sections 290.014-290.024. These “conditions of registration” requirements resemble the 19 general “conditions of parole” as outlined in the CDCR’s Division of Adult Parole Operations, see http://www.cdcr.ca.gov/Parole/Parole_Conditions/index.html and the conditions of sex offender registration even goes much further than those conditions of parole supervision.
Lifetime registration means that Plaintiff will report, at minimum, 25 times in the next 25 years, plus since Plaintiff is enrolled in college, he must report at least 30 more times (each time Plaintiff starts a semester, (fall, spring and summer semesters)) in the next 10 years and for an unknown amount of times for other reasons such as if he visits other states or travels internationally, then we are talking about hundreds of onerous and time consuming in-person reporting and contact with law enforcement over the next 25 years.
Plaintiff is also subject to a myriad of reporting requirements that have been enacted by the Federal Government that apply well after Plaintiff has served his sentence and is no longer subject to State supervision; International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (H.R. 515). In addition to HR 4573, the final version of HR 515 requires a visual “unique identifier” to be placed on the passports of registrants convicted of sex offenses involving a minor. This law also requires covered offenders to notify law enforcement 21 days before traveling abroad with a plethora of reporting requirement elements. “S.1867 – International Megan’s Law to Prevent Child Exploitation Through Advanced Notification of Traveling Sex Offenders”. Congress.gov. 114th Congress (2015-2016). Also, 42 USC 16914(a) (7) Information relating to intended travel of the sex offender outside the United States, including any anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General.
Additionally, despite the legislative statements, or language of the statutes stating there are restrictions associated with the Sex Offender Registration schemes, there are very few restrictions per se, there are however a vast array of prohibitions on where Plaintiff may live, recreate, travel, and with whom Plaintiff may associate with. Plaintiff is subject to a myriad of prohibitions in California from local ordinances well after Plaintiff has served his sentence and subsequent parole and is no longer under state supervision: i.e. residency and presence prohibitions. See 32 pages of local ordinances for California alone, https://all4consolaws.org/wp-content/uploads/2012/04/290CaliforniaOrdinancesCity_20130128.pdf .
Here are just a small portion of the National laws targeting where Plaintiff may reside, work, recreate or be physically present. Plaintiff notes that all these different laws listed here are interpreted in their own way by local law enforcement and have been used as springboards to enact a vast array of different ordinances in each locality by the many different municipalities across each one of these states. (Florida, F.S. sect.775.215, 856.022). (Georgia O. C. G. A. sect. 42-1-12 through 42-1-19 and Ga. Comp. R. & Regs. R. 140-2-18). Idaho, Title 18, Chapter 83, Idaho Code sect. 18-8331, 18-8332). (Virginia, Va. Code Ann. Sect. 18.2-370-3,18.2-370.2). (Illinois, sect. 730 I.L.C.S. sect. 150/8, 720 I.L.C.S. 5/Art.11). (Mississippi, Miss. Code ann. Sect. 45-33-25, 45-33-26). (Missouri, R.S. MO. Sect. 566.145, 566.147.150). (North Carolina, N.C. Gen. Stat. Art. 27A, sect. 14-206-16, 14-208-18). (Oklahoma, 57 Okl. Stat. sect. 57-59, 57-590.1, 21 Okl. Stat. 21-1125). (South Dakota, S.D.C.L. sect. 22-24B-23, 22-24B-24). (Tennessee, Tenn. Code Ann. 40-39-201 through 40-39-306).
Furthermore, Plaintiff is severely and deleteriously prevented in or restricted from directing the care and upbringing of his future children (which Plaintiff and his fiancé are attempting to have), grandchildren, or associating with Plaintiff’s nephews, nieces, cousins, not only by these types of local ordinances but by actual state laws that severely restrict whether he can live with them or interact with them unsupervised, in violation of Plaintiff’s liberty interest in the upbringing of his children or grandchildren and Plaintiff’s liberty interest in familial relationships. See California Family Code sect. 3030. “(a) (1) No person shall be granted physical or legal custody of, or unsupervised visitation with, a child if the person is required to be registered as a sex offender under Section 290 of the Penal Code where the victim was a minor, or if the person has been convicted under Section 273a, 273d, or 647.6 of the Penal Code, (2) No person shall be granted physical or legal custody of, or unsupervised visitation with, a child if anyone residing in the person’s household is required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code.” California Family code sect. 3030, (3) “The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code, shall be prima facie evidence that the child is at significant risk” This makes it literally impossible for me to reside with my children/grandchildren, or even any of my family members or friends, in any residence if they have children. I cannot even enjoy any normal activities with my children, grandchildren, nieces, nephews, etc. unless I am under constant supervision. This makes it impossible for me to have any semblance of a normal relationship with my immediate family, or friends. This also means that Plaintiff’s future wife, children, brothers, sisters, mother-in-law or any other person cannot have physical or legal custody or unsupervised visits if I cohabit with them.
Numerous courts have now recognized that these super sex offender registration schemes, and their associated prohibitions and restrictions, are indeed so severe that they now rise to the level of punishment. Even though many of the court decisions are on grounds that the laws violate the Ex Post Facto clause, nevertheless have concluded the laws are indeed punishment. See, e.g., Alaska Supreme Court, considering the same statute before the Supreme Court in Smith v. Doe, held that the act was so punitive in purpose or effect as to overcome the legislature’s civil intent, and therefore violated the Alaska Constitution. Doe v. State, 189 P.3d 999 (2008). Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016) (holding Michigan Sex Offender Registration Act violates ex post facto clause); U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2009) (finding 42 U.S.C. § 16901 et seq. (SORNA) violates ex post facto clause when applied to juvenile), vacated as moot, 534 U.S. 932 (2011); State v. Williams, 952 N.E.2d 1108 (Ohio 2011) (holding Ohio’s registry scheme violates ex post facto clause); Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (holding Indiana’s registry scheme violates ex post facto clause); State v. Letalien, 985 A.2d 4 (Me. 2009) (holding Maine’s registry scheme violates ex post facto clause); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) (holding that Kentucky’s limitations on where registrant may live violates the ex post facto clause). See also, Doe v. Miami-Dade County,No. 15-14336, —F.3d.—, 2016 WL 5334979 (11th Cir. Sept. 23, 2016) (slip opinion); Doe v. State, 189 P.3d 999 (Alaska 2008).
For these reasons of fact, Plaintiff opposes Defendant’s motion for dismissal of Claims.
This bumped me down to 12 pages so I am going to try to reduce the subject matter jurisdiction down….

@AJ and Mike R

It is getting difficult to keep track of the current update of your reply to the motion to dismiss since this forum only shows dates and not times of posts. I am not sure if you have incorporated AJ’s stuff yet and shortend your arguments.

Would it be possible to update your web site with the latest and put a link to it here again?

In case it gets lost, I did reply up above with source material for the housing assistance denial to sex offenders. It’s pretty blatant how they discriminate since the few other crimes denied can show rehab and get assistance while lifetime registrants cannot.

In your reply to motion to dismiss, are you allowed to simply refer to sections and line numbers of your original complaint to save the limited text space instead of repeating info? I am sure the judge will look more kindly on a short and clear reply.

David, did Kozinski rule on any of our stuff ? By the way I’ve been reading your comments for years and appreciate so many of the things you post !

Although the other story may have been fake news the premise of someone using the registry as a hit list isn’t new.
https://www.theatlantic.com/national/archive/2013/12/the-vigilante-of-clallam-county/281968/

Even in Alaska where it’s non punitive right?
http://www.ktuu.com/content/news/Man-charged-for-attacking-sex-offenders-greeted-as-a-hero-by-some-389097252.html

https://www.vice.com/en_us/article/xdmzk3/paedophile-vigilante-dangers-murder-uk

And in other news. One if the things that keep pushing the stereotype http://www.nbcchicago.com/news/national-international/Antioch-Police-Arrest-Man-in-1980-Cold-Case-Murder-of-Teenage-Girl-463558333.html%3famp=y

If a RC visits California, what are the registration rules? San Diego