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General Comments February 2018

Comments that are not specific to a certain post should go here, for the month of February 2018. Contributions should relate to the cause and goals of this organization and please, keep it courteous and civil.

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Does anyone here aware there’s a new SO case currently distributed for conference at SCOTUS? The case deals with several registration issues regarding Sorna. I happened to stumble accross it a few mins ago as I searched SCOTUS docket. The case came from 2nd Circuit Court of Appleal. Case is Gundy v. United States . See SCOTUS link..
http://www.scotusblog.com/case-files/cases/gundy-v-united-states/

I came across it today also in the Relist Watch section of scotusblog.com. I had not heard of it before today. He has several claims. The one I found most interesting was “(3) whether a defendant travels in interstate commerce for purposes of 18 U.S.C. § 2250(a) when his only movement between states occurs while he is in the custody of the Federal Bureau of Prisons and serving a prison sentence” For this complaint, he is appealing his conviction and sentence on a failure to register charge after traveling, partly in custody and partly on his own recognizance, from a… Read more »

Personable pleasurable vacation tourism is an industry and part of commerce.

“Interstate commerce refers to the purchase, sale or exchange of commodities, transportation of people, money or goods, and navigation of waters between different states. Interstate commerce is regulated by the federal government as authorized under Article I of the U.S. Constitution.” Definitions.uslegal.com

He was transported by USG so technically, it appears, he was by definition part of Interstate commerce.

A paper titled, “Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders” makes an interesting (though at times tough to grasp) argument that SORAs could and should adhere to the proportionality review of other civil sanctions. It’s certainly a novel–and probably quite difficult–way to try to eliminate the “one size fits all” SORAs in existence. (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2416595)

Here’s an answer to my own question about how one could be made whole from a 4th Amdt. violation: https://www.quora.com/What-happens-if-a-police-officer-violates-a-constitutional-amendment-during-duty-For-example-if-a-police-officer-makes-an-unwarranted-search The way this reads to me, it sounds as though the officer could be sued personally. Wouldn’t that be sweet! One or two cases won like that, and I’m guessing they’d act a bit more proper. But, from this HuffPost article, it sounds as though neither the LEO nor the municipality can be sued (see Item 3): https://www.huffingtonpost.com/evan-bernick/is-the-fourth-amendment-i_b_7309308.html Then again, there’s this: https://www.onenewsnow.com/legal-courts/2017/09/15/court-deputies-violated-4th-amendment-rights In related news: While doing a search on the above, I stumbled across a news piece from… Read more »

AJ ~ So does the Terry Stop ruling no longer hold true with the latest case you cited? Also, California is not a stop and Id state, so you do not have to show ID. That really is not the point, though in case of a “compliance check”. It is nowhere in the 290 regulations that require these harassment visits. I don’t see them being a local policy either, and I would like to ask for that policy if it came up again.

@someone who cares: Terry won’t apply on one’s own private property. It applies for LEOs briefly detaining someone in public (or someone else’s property) to ask some questions. So Terry is still good law, but it’s for a different setting and situation. —– As for 290–or any law–requiring the visits, that’s moot. There is nothing that prohibits anyone, LE or otherwise (Girl Scouts was the example Scalia used), from a knock and talk visit to your door. That they are doing it because of a RC list doesn’t change that. Anyone can walk up to any house, for any reason… Read more »

Here’s a nice Bill of Attainder case from the 2nd Circuit. Maybe mike r can use it in his suit…in his suit. 😉

https://openjurist.org/292/f3d/338/consolidated-edison-company-of-new-york-inc-v-e-pataki-o-j-d-d-n-l

Amazing find AJ! Very good read. I love how it uses “reading of the legislative history” to help it reach the Bill of Attainder issue. While it does state that the offhand comments of a few legislators does not reach the level needed to declare the intent punitive, I think that if one were to look at the legislators’ records regarding sex offender legislation they would find more than enough to declare it so. Lots of great references, and even good quotes of the Federalist Papers: Alexander Hamilton’s reflection on the function of judicial review in Federalist 78: 59 [A]… Read more »

Thanks. I was quite happy when I found this case. Every other instance I’ve skimmed or read has found against a BofA claim.

I particularly like paragraphs 34-39, and 48, with special attention to the end of 35 (“It would be archaic to limit the definition of `punishment’ to `retribution.'”) and the start of 48 (“Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct.”)

Thanks again for the reference, AJ. I read it. I agree that the sections you highlighted are interesting and pertinent to BOA analysis of SO laws. Making a good argument, good enough to convince a judge, that many SO laws are Bills of Attainder will still be quite a task, I think. You’d need an excellent argument and an unbiased or perhaps even a sympathetic judge to win. This statement taken from item 36 shows the difficulty of the task: “The party challenging the statute has the burden of “establish[ing] that the legislature’s action constituted punishment and not merely the… Read more »

@CR: You’re welcome, and I wholly agree with the difficulty of the sentence you cited. Where it gets “easy” is when there are things prohibited not by being a convicted felon/misdemeanant, but by being on the registry. For example, in CA there are a number of specific occupations which one cannot pursue or in which one cannot continue due to 290, i.e. due to ML, not due to a conviction of any sort. In fact, one could get the conviction set aside, still be required to register, and still be barred from those occupations. Barring from specific job fields, even… Read more »

@AJ, you left out gays from the list of trumped up social dangers. The period would be from time immemorial to the present, more or less, but in contemporary history from roughly the ’40s until quite recently. I’m still reading the 1996 Yale Law School article you mentioned in another post that explores the BOA underpinnings of the Romer v Evans decision in 1996. There are many good references, and a great deal of enlightening commentary. For example, the author discusses Kennedy’s words in Romer v Evans, quoting Justice Harlan’s dissent from Plessy v Ferguson on page 20 of the… Read more »

If anyone can provide a URL for or copy of “Gaines v. Buford, 31 Ky. 481 (Ky.1833)”, I’d appreciate it. It may also be cited as “Gaines v. Buford, 1 Dana 481 (Ky.)”. My usual sources come up empty.

Los Angeles is now making it illegal for anyone to sleep in a car or RV parked on any residential street between 9pm and 6am or within one block ( 500 yards) of a park, daycare, or school .

Sounds like presence restrictions for the homeless.

https://www.zerohedge.com/news/2018-02-23/la-has-criminalized-poverty-making-it-illegal-sleep-cars-and-rvs

I am fine with no strangers sleeping in motorhomes on residential streets.

But they can park in residential areas away from a park. If I were homeless I would wish to be next to a park because of bathrooms, water and a place to walk not in front of someone’s private property. I guess they want the homeless to not use public facilities and just have to relieve themselves in your shrubs.

hell ya that’s a good find. Just makes me feel better that came from an order of the court I really like a couple of the quotes. A dismissal should not be without leave to amend unless it is clear from the face of the complaint that the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissed as frivolous); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). And I think… Read more »

Here’s the case out of NV that mike r is referencing: https://www.courtlistener.com/docket/6056248/corzine-v-laxalt/. Dcoument #4 is the original Complaint.

Here’s a paper that talks about a SCOTUS case that is essentially an “implied Bill of Attainder” situation:
http://digitalcommons.law.yale.edu/fss_papers/936/. You gotta stick with it a while before it all comes into focus, but he makes an interesting argument.

I don’t know about this case. Is it standing law? If so they cannot ever dismiss a complaint under a motion to dismiss.

“A complaint will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover.” JOHN EDWARD CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE OF PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958)

At least if it is cognizable.

Just like how lawmakers sometimes slip up and go off script, admitting RC laws are punishment, so apparently have an AL Sheriff and DA regarding civil asset forfeiture: ***** Sheriff Dave Sutton and District Attorney Brian McVeigh, however, claims the laws shouldn’t change. They argue both that forfeiture is essential to effectively fighting crime and that police need a monetary incentive to do the procedures. “Sending the proceeds of forfeiture to the state’s General Fund would result in fewer busts of drug and stolen property rings. What incentive would local police and sheriffs have to invest manpower, resources and time… Read more »

They are already on the clock and the equipment is already paid for so what other expense do you have to worry about? Alabama is also the state where the senior Senator Richard Shelby said that civil forfeiture should be continued because it was a profitable way to fund the federal law enforcement agencies and the state and local law enforcement agencies, even if the person is not guilty in the end. His former colleague the junior Senator from Alabama Jeff sessions, now the current Attorney General of the United States, agrees also. It must truly be an Alabama thing… Read more »

You mean Jefferson (as in, CSA President Jefferson Davis) Beauregard (as in, CSA General P.G.T. Beauregard) Sessions III (as in, “three generations of imbeciles are enough” –Oliver Wendell Holmes)? Or as I’m fond of calling him: Reichsfuhrer Sessions.

Let’s see…George Wallace, Jeff. Sessions, Richard Shelby, Roy Moore. That’s some fine people AL churns out.

The City of Coalinga and Coalinga State Hospital leans on State Representative Arambula of Fresno County to carve-out an exception forbidding civilly-committed Detainees from voting in the county of their actual domicile which is Fresno.

He introduced into the Legislature AB2839

<< http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2839

So they want the hospital to be part of their city but not have the residents there be citizens. How can one annex a neighborhood but not its residents?

Glad this guy is going away for awhile. One less vigilante us registered citizens have to worry about. https://floridaactioncommittee.org/ak-man-who-attacked-sex-offenders-sentenced-to-23-years/

Sexting increasing among teenagers, new research finds

https://www.yahoo.com/gma/sexting-increasing-among-teenagers-research-finds-221204148–abc-news-topstories.html

“Almost 27 percent of teens are receiving sexts and almost 15 percent are sending them, according to findings in the Journal of the American Medical Association (JAMA) Pediatrics.”

“Twelve percent of teens have forwarded a sext without consent – sending sexually explicit material on without asking permission of those involved, and 8.4 percent had one of their own sexts forwarded without their consent.”

How will legislation keep up?

Sexting is on the rise among teens: ~27% get nudes, other racy messages
But researchers found no gender differences in sending and receiving rates.

https://arstechnica.com/science/2018/02/sexting-is-on-the-rise-among-teen-27-get-nudes-other-racy-messages/

Someone said more registries here, soooo…

Early warning sign? More states consider animal abuser lists

http://journalstar.com/lifestyles/early-warning-sign-more-states-consider-animal-abuser-lists/article_0c9b8281-75cd-529c-81b1-267e5760e35a.html

I wonder if all this crap is coming out of ALEC. They are almost always who is behind legislative activities in multiple states that seem suspiciously similar. I refuse to post their URL. Check out https://www.theatlantic.com/politics/archive/2012/04/exposing-alec-how-conservative-backed-state-laws-are-all-connected/255869/ or https://www.alecexposed.org/wiki/ALEC_Exposed instead.

Also: https://www.youtube.com/watch?v=5zQfgJkzQfQ

“Keep violent sex offenders locked up”

http://www.sacbee.com/opinion/op-ed/soapbox/article201464089.html

This morning in an opinion authored by Samuel Alito that Immigrants detained for removal proceedings may be held indefinitely and are not entitled to a bail hearing. The ruling means that immigrant detainees, who are sometimes held for months and years on end, have no recourse to challenge their confinement. I know this may be a bit of base, but justice breyer was so upset that he stand up and read his dissent by saying “We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and… Read more »

Hear, hear! Thank you Justice Breyer! And damn you Alito.

Check out a couple of cases the CA AG relies upon in support of their Motion to Dismiss. This is only the two go to cases and the others are just as bad for them as well. The Ninth Circuit made note in Clark v Ryan 836 F.3d 1013, 1017 (9th Circuit 2016) citing State v. Henry, 228 P.3d 900, 904 (Ariz. Ct. App. 2010) when considering if registration was an affirmative disability “In Henry the court reasoned that the Arizona legislature “has taken steps to tailor the statutes to serve more precisely their nonpunitive ends.” Id. The Clark Court… Read more »

@mike r’s paragraph on inquiries spawned this thinking. My thinking may be off on this, but offer this up for discussion @AJ, et al, and maybe it can be fruitful for @mike r in his efforts. I have a question regarding this section CA 290.4(d)(1): A person is authorized to use information disclosed pursuant to this section only to protect a person at risk [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=290.4. & http://codes.findlaw.com/ca/penal-code/pen-sect-290-4.html%5D and Section 290.46(2)(2)(j)(1): A person is authorized to use information disclosed pursuant to this section only to protect a person at risk [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=290.46.&lawCode=PEN] or 290.46(2)(2)(l)(1) A person is authorized to use information disclosed… Read more »

@TS: In law, companies/corporations are indeed “persons” (Mitt Romney had it right, but delivered it poorly). If they weren’t, there would be nothing to prevent the government from telling them what to say or not say, nothing to keep the government from raiding their offices without warrants, nothing to protect them from implicating themselves in court, nothing preventing the government from taking assets without compensation, etc., etc. To your point though, it does seem a tough argument for the “outing” sites to make that they are protecting a person at risk. If the site was getting the data for itself–as… Read more »

@AJ Thanks. Several thoughts: 1) Would a simple cease and desist letter from ACSOL or other atty followed by an injunction from a Judge after a court action (which would invariably happen) to these companies for those in CA impacted by these company actions be possible? This is not simply First Amendment publishing of Public Info given the way CA law is written, i.e. one person asking to protect one person. Since the company is a person, then who is the one person they’re going to choose to protect the way CA law is written? Unless they have CA servers,… Read more »

How hard is it to get excluded from the public registry in CA? I I am thinking about visiting a friend who lives in a condo community. He knows about me, but I would not want to alert/alarm his neighbors. I read that if you were convicted of CP possession, you can apply, if victim was 16 or older. My yearly registration forms say that, but I don’t know if I can come up with a “certified copy of a probation report filed in court that clearly states that all victims involved in the commission of the offense were at… Read more »

@Illinois – how long were you planning on visiting and where in the state will you be traveling to? If you are not renting a car or obtaining a hotel room in your name my personal feeling is to not do anything at all as long as your stay is for a relatively reasonable amount of time say 10 days or less. Keep your head down mind your own business stay out of trouble and you should not have an issue. I know everybody has a different opinion on a how to handle interstate travel but that’s always been my… Read more »

Between the 9th’s decisions and language in Packingham it would appear to be a slam dunk. It MUST be narrowly tailored to pass constitutional muster. The AG straight lies that Juvenile Male found these laws constitutional. It most certainly did not and the AG should be held accountable for misleading the court.

Just received my season subscription renewal for the Steppenwolf Theatre in Chicago and look what the first play of the season is: “Downstate” by Bruce Norris September 20 – November 4, 2018 “In downstate Illinois, four sex offenders sharing a group home in a neighborhood that doesn’t want them, and they must negotiate their place in a society that doesn’t want to forgive them. A man shows up to confront his childhood abuser–but does he want closure or retribution? This provocative new play by Pulitzer Prize-winning ensemble member Bruce Norris pushes moral boundaries as it questions what happens when society… Read more »

I’ve just made a donation to the ACSOL and wishing them the best of luck in their battle against the IML. 🙂

“The Case for the “Self-Driven Child” “In a new book, an argument for giving children more of a sense of control over their lives”

“Research on motivation has suggested that a strong sense of autonomy is the key to developing the healthy self-motivation that allows children and teens to pursue their goals with passion and to enjoy their achievements. ”

https://www.scientificamerican.com/article/the-case-for-the-ldquo-self-driven-child-rdquo/

West St. Paul (MN) easing tight restrictions for convicted sex offenders

https://www.twincities.com/2018/02/28/west-st-paul-easing-tight-restrictions-for-convicted-sex-offenders/

“After sexual predators swung an election, new law would change California voting rules”

http://www.fresnobee.com/news/politics-government/politics-columns-blogs/political-notebook/article202682219.html

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