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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..

I came across it today also in the Relist Watch section of 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 prison in Maryland, to another prison in Pennsylvania, and thence to a halfway house in New York. He didn’t register in Maryland or in New York as required by SORNA, and was subsequently arrested for FTR.

He lost at Federal district court level and the appeals court. Frankly, I doubt he has much hope of having his petition for certiorari granted.

I don’t see why he would have needed to register in Maryland, since he was in custody there, but it does seem like he should have registered when he arrived in New York.

What I mainly wondered when reading the opinion of the 2nd circuit, is what does “travel in interstate commerce” mean? Do we “travel in interstate commerce” when we travel for personal, non-commercial reasons, such as when traveling for pleasure, or vacation?

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.”

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. (

Here’s an answer to my own question about how one could be made whole from a 4th Amdt. violation:

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):
Then again, there’s this:

In related news:
While doing a search on the above, I stumbled across a news piece from 2016. It’s a sad, though not surprising, turn of events. What got me was the blistering dissent from J. Sotomayor–you go, girl!

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 or no reason at all, follow the Jardines/King process, and be perfectly legal.

Apparently knock and talk can be a pretty effective method: How shocking that walking the beat–though in a perverse manner–finds and reduces crime. What a novel concept. And here I thought driving around in Ford Explorers (or unmarked Durangos in the case of the USMS I had by) all day was how it’s always been….

If pressing them on it, I would ask for the department policy on knock and talk or something along that line. Methods, procedures, etc.

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

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:

[A] limited constitution [is] one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

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 legitimate regulation of conduct.” Id. at 476 n. 40, 97 S.Ct. 2777.”

A finding that a law is a BOA would do more good for more of us than finding that it constitutes ex post facto punishment. But EPF is better understood by lawyers and by the courts, and has more case law behind it than BOA, so it is the route more likely to be argued against a challenged law.

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 if it’s not a job field of interest, is considered a deprivation of a liberty interest for a B of A claim. That’s where traction might be made. Barring from occupations also is significantly more than anything addressed in Smith, so any governmental reliance on it for support falls flat.

I kind of think if one can make an argument that RCs are just the latest trumped up “social danger”, something could be achieved. After Reconstruction, it was the CSA sympathizers and veterans; in the early 20th Century, the “uppity” Blacks trying to have integration and equality; in the 1950’s it was the Commies; now, it’s the RC bogeyman, snatching up kids at will from every park and playground.

I’m of the mind that the EPF argument is gaining more traction, but has limited, and reducing, reach due to convictions happening post-enactment of whatever scheme. Thankfully, Snyder and Muniz have at least established that SORAs *can be* punishment. Getting that crack in the foundation was huge, and that crack can grow. No longer can the Government automatically say it’s regulatory; they actually have to come up with an argument, and not merely sound like a parrot screeching out the same old line, “Smith v. Doe, Smith v. Doe!”

@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 PDF (page 222 of the original publication). “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ ” The author then goes on to explain that what Harlan and Kennedy are saying is that “… government may pass laws classifying conduct — if you do act A, you suffer consequence B — but may not create classes among citizens on the basis of who they are rather than what they do.”

Kennedy seemed to have forgotten this when he wrote the majority opinion in Smith v Doe. At first blush, one might say that neither Harlan’s words nor Kennedy’s use of them apply to SO laws because SO laws appear to be based, not on who we are, but on what we did. But in the case of punitive laws, any such classification must be prospective, not retrospective. If a law classifies us based on what we did, then it should be understood, in actual fact, to classify us based on who we are (members of a group of people who committed a designated offense at some time in the past). That makes many SO registration laws, presence and vocational restrictions, and other curtailments of liberty seem to fit the definition of a Bill of Attainder.

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.

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 this is going to be his and my strongest argument.

In Count II, Plaintiff alleges that NRS 213.1243 violates his substantive due process
rights because the conditions imposed on him will infringe on his fundamental right to travel and
live with his family.
Substantive due process protects individuals from arbitrary and unreasonable government
action which deprives a person of life, liberty or property. Kawaoka v. City of Arroyo Grande, 17
F.3d 1227, 1234 (9th Cir. 1994). Plaintiff may proceed with a substantive due process claim.

This is kind of crazy that we even have to go through this motion to dismiss process and than have to go and re argue it over and over again just in different ways and adding or getting rid of crap. It’s stupid and a waste of tax payer dollars and time and resources. Just let somebody file a Complaint, make the Defendants answer the complaint and decide on it already. Guess that would be to easy and the average Joe might get a shot.

Here’s the case out of NV that mike r is referencing: 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: 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 in these operations if they don’t receive proceeds to cover their costs?” they ask.
What incentive? Umm, how about IT’S YOUR JOB AND SWORN OATH! Public safety? Sure, but only if it’s profitable for us…

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 with a poor tax base.

Senators Push To Defund Jeff Sessions’ Civil Asset Forfeiture Expansion

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


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.

Sexting increasing among teenagers, new research finds–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.

Someone said more registries here, soooo…

Early warning sign? More states consider animal abuser lists

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 or instead.


“Keep violent sex offenders locked up”

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 that among them is the right to ‘Liberty.’”

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 noted “For example, mandatory notification is required only for offenders who are deemed to pose a high risk to the community” Id.

This is what I wrote.
No steps have been taken to narrowly tailor the State statutes as applied to Plaintiff. The Henry and Clark courts were dealing with a completely different set of facts then what we have in Plaintiff’s case.

Plaintiff is far from being high risk and in fact scores on the very low end of low-moderate on the State’s own Static 99R test. See attached Static 99R score- two points at EXHIBIT H. That test doesn’t consider time offense free in the community (approx. 12 years). Plaintiff is extremely low (to no) risk to re-offend according to the government’s own reports and sources. See Supra.
Plaintiff has submitted extensive out of state government reports (EXHIBIT K) and Academic empirical evidence (EXHIBIT J) which conclude (or at the least very persuasive) that sex offender registration and notification is ineffective and may even be counterproductive, which undermines Defendant’s claims even further that registration serves a compelling regulatory or civic purpose.

Then check out Hatton.
Hatton v. Bonner, 356 F.3d 955 (9th Cir.2004) which was decided right before CA passed their Internet publication law and places emphasis that the registry was not available through the Internet.

“Unlike other states that post their entire registries on Internet websites, California limits the circumstances in which law enforcement agencies may disseminate information from the registry, id. § 290.45, and regulates public inquiries to the registry, id. § 290.4. Agencies may disseminate certain information about serious offenders only when they reasonably suspect that an offender poses a risk, and only to institutions and community members that are likely to be at risk.4  Id. § 290.45(a).”

“California allows public inquires to the registry in only two ways:  through toll calls to a telephone number or in person at a local police station.   See id. § 290.4(a)(3)-(4).   The California statute requires members of the public to satisfy certain conditions in order to obtain access, and it restricts what information will be released to members of the public.” See id.

Sure seems as though the 9th is and was concerned about the dissemination of personal info for anyone not deemed high risk.

@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

[ &

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 []

or 290.46(2)(2)(l)(1)

A person is authorized to use information disclosed pursuant to this section only to protect a person at risk []

This phrase falls under who may use the data and how it cannot be used, e.g. for felony or misdemeanor actions; checking on yourself if an RC.

The way I read it is one person who has a need for the registry data can retrieve the data to protect one person and that person has to be at risk (even if it is for themselves only or a parent to protect a child, for example). Does that sound right? If this is true, then the companies who post the data can be in violation of the law because it does not say protect people, but one person, a person at risk (which begs who is a person at risk?) and the companies are not a person, but an entity. If the argument becomes the company owner is doing this, then they must state who that person is they are protecting, why that person is at risk, the person requesting the data, and possibly perform multiple requests broken out by person. If one person is getting this data and giving it to the companies to post who in-turn post it, it would seem to me they are all in violation. A program to scrape the database and publish it would seem to be in violation too.

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 some sort of weird, at-risk “person”–that would be one thing. But they are doing what, to my limited knowledge of CA law and 290, is illegal: mass and indiscriminate reproduction and dissemination of the information without just cause.

It would probably requires a bit of stealth to get the DA/LEA interested in pursuing any sort of ML violation (other than a RC using it, of course, because screwing a RC to the wall is fun!). But if they can be cajoled into thinking it’s someone out tossing flyers around and giving out info indiscriminately, maybe some traction could be had. Maybe.



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, they can’t exactly stop the flow of information from over state lines where it should not be seen (or I suppose they could depending on the routing ISP addresses).

2) Someone tossing out flyers is as simple as the neighborhood watch or people gathering and passing out flyers in their meeting, which then could be copied and passed out even further (similar to non-consensual photographic distribution). It is one person (or maybe two) who gather the data and pass’em out which is also in violation of CA law as written. The DA taking on the case would have to do something they wouldn’t want to do, but then again, you can follow up with cease and desist letter than follow by an injunction.

CA Assy would hear of this and try to amend the law so it isn’t “one for one” before the real fight starts on the non-punitive purpose and how it should be, intent, spirit, protection, redemption, etc. IMO, it could mushroom rather quickly and the entire scheme is questioned.

@mike r – apologies if this appears to hijack your thread. Not the intent. You posted an interesting post.

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 least 16 years of age or older at the time of the commission of the offense.” My conviction was in another state 12 years ago. I know I would have to register when visiting CA. Should I talk with a lawyer before coming to the state?

@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 position and it’s worked well for me.

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 deems anyone unworthy of forgiveness.”

Bruce Norris is a brilliant and sensitive playwright, and from the description it sounds like this will be a sympathetic portrayal. I guess it’s a measure of how our plight is beginning to get recognition in the courts, news opinion pages, and now the theater. But, somehow it will be very unnerving to watch.

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. ”

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

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