Comments that are not specific to a certain post should go here, for the month of March 2018. Contributions should relate to the cause and goals of this organization and please, keep it courteous and civil.
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civil commitment isn’t considered punitive, disbarment maybe??? I don’t know man. What I have to prove the law isn’t civil in nature???? No way, the Colorado case was an individual, Millard was an individual, Packingham was an individual. There we go now I am getting somewhere right??? That might be the right approach.
Look at this.. This has to be bad law or else those other cases where it has been found punitive would of never prevailed.. In an 8-1 opinion even. HMMMM
In an 8-1 opinion delivered by Justice Sandra Day O’Connor, the Court held that because the Washington Community Protection Act of 1990 had been found to be civil, it could not be deemed punitive as applied to Young for the purposes of double jeopardy and ex post facto challenges. Justice O’Connor wrote for the majority that an “as-applied” analysis would be “unworkable” because it would “never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme’s validity under the Double Jeopardy and Ex Post Facto Clauses.” Justice John Paul Stevens dissented.
I think I am on the right track with the following..
Leave to Amend
Plaintiff objects the MFR assertion page 18 at 25-26 that Seling v. Young, 531 U.S. 250, 267 (2001) and Smith somehow forecloses any as applied challenges to other state SORAs because Smith has established that Alaska’s ASORA was civil in nature and non-punitive. California’s SORA is distinguishable from Alaska’s “and” California’s SORA have not been deemed civil in nature by the United States Supreme Court, so Seling v. Young does not foreclose an as-applied challenge of California’s SORNA including, California Family Code § 3030, et seq., Complaint pp 5-6 ¶¶ 17-18, see also Opposition pp 11-12 at 9-7, California’s Sex Offender Registration Act (SORA) Penal Code § 290 et seq., Complaint pp 11 ¶ 42, and the Megan’s Law Internet Website (Megan’s Law) Penal Code § 290.46 et seq., Complaint pp 21 ¶ 85. These laws alone distinguish this case from Smith.
SORA also imposes other affirmative disabilities or restraints that are greater than those
deemed “minor and indirect” by the Supreme Court in Smith. There, the Court expressly noted
that the law under consideration did not have an in-person reporting requirement, and further
stated that the record contained “no evidence that the Act has led to substantial occupational or
housing disadvantages for former sex offenders that would not have otherwise occurred.” Smith,
538 U.S. at 100.
Here, Plaintiff is subject to: (1) Documented vigilante attacks on Plaintiff’s wife, his stepson, and Plaintiff (Opposition at EXHIBIT A-E) (along with large amounts of evidence showing an incredible amount of violent incidents around the country); (2) the mental and physical impacts on both Plaintiff’s wife and Plaintiff’s health (she has chronic heart issues so these episodes could kill her); (3) CA onerous in-person reporting (14 times in the last three years (add three more times from changing vehicles)); (4) IML (International Megan’s Law) and all its reporting requirements (complete itinerary, 21 day advance notice); (5) all the other states reporting requirements; (6) CA’s 7 year background check limit law (Ca. Civil Code § 1786.18), also Plaintiff’s present address and photo are not public records, and background checks, if done, are not easily obtained public records, one can’t just walk in and get a background check on someone. One has to pay and give rigorous detailed personal info; (7) all the presence and residency restrictions (which also directly interferes in Plaintiff’s: (a) field of employment; (b) freedom association; (c) religion; (d) right to protest; (e) right to gain knowledge, i.e. libraries, places of higher education; (f) associate with family and friends, and associates.); (8) CA law stating Plaintiff (or his wife) can’t cohabit or have unsupervised visits with their own kids or grandkids, or other minor age family members; (9) unchecked surveillance monitoring, and compliance checks; (10) CA registration is applied for a lifetime indiscriminately.
This is a very different situation than in Smith. Plaintiff’s criminal record or personal information is not subject to criminal background checks in California since California’s seven-year background limit law prohibits background checks for convictions older than seven years. Plaintiff’s conviction occurred over 12 years ago.
Although Plaintiff sees no reason to amend if the court takes judicial notice of EXHIBITS A-E and of the government’s own Static 99R risk assessment tool, along with the government reports, Complaint pp 43 -44 ¶¶ 174-176 as well as pp 24-25 ¶¶ 100-102, pp 4 ¶ 12; or at minimum enter those documents into the record for appeal.
If the following statement by the Magistrate was true then any and all courts considering any laws that resemble any SCOTUS decisions would be foreclosed, end of discussion. No I really think she is grasping at straws. That logic would be absolutely insane. I know insane is common in this country but I don’t think that would even fly with the constitutionalist in this country and every other suit against Sex offender laws would just be one statement, foreclosed, see Seling v. Young, 531 U.S. 250, 267 (2001) end of argument.
“In this case, granting leave to amend would be futile because plaintiff’s claims six through
nine cannot be saved by the allegation of additional facts. Because the challenged statutes are not
punitive as a matter of law, and do not impose involuntary servitude, the claims cannot be cured
by amendment. The court has considered whether the complaint could state a claim if it included
allegations of fact consistent with the affidavits that plaintiff submitted in opposition to dismissal.
These affidavits, ECF No.16 at 26-45, Ex. A-E, describe acts of harassment experienced by
plaintiff and those close to him. Plaintiff argues that these experiences demonstrate the reality of
vigilantism to which he is subjected by SORA and Meghan’s Law, and which thus demonstrate
the punitive effect of those laws. However, statutes found to be civil in nature cannot be deemed
punitive “as applied” to a single individual. Seling v. Young, 531 U.S. 250, 267 (2001).
Accordingly, plaintiff’s proffer of facts about the consequences of registration to him do not
affect the analysis. For the reasons already explained, California’s regulatory scheme is not
punitive in its “necessary operation.” See Smith, 538 U.S. 97. This conclusion follows from the
language, history and context of the statutes. Because amendment therefore would be futile,
dismissal of plaintiff’s claims six through nine should be without leave to amend.”
Claims 1-5 will continue. This is a hell of a coincidence that the court clerk sent me a letter for a pro se help day at McGeorge School of Law, someone I have tried for years to get help from, right around the time when I can use them the most. My new date for status conference is scheduled for May 16 and I have an appointment with McGeorge on April 20. Interesting….
Wow, mike r! So, I guess the Magistrate believes the cops can beat us with batons if they wish, because “California’s regulatory scheme is not punitive in its “necessary operation.””
No, it’s just punitive in the daily reality of all of us subjected to it! 😡
What’s up New Person, finish it up. LOL.. add the case law because I will use it like it is. Whenever you just write and go straight to the point like that you do good man. That’s the type of comments I can use my friend..Here’s what i have with your work as well. It sounds good.
Finally, Plaintiff objects MFR assertion, page 17 at 3-4, that Megan’s Law’s et seq. “compelled actions is not “service.”” Plaintiff contends the compelled actions are “service” and that “service” is synonymous with duty; “jury duty” is synonymous with “jury service” and as outlined on the Megan’s Law Website, it is a “duty to register.”
Also of note, the SCOTUS based a large part of the claim on a “frightening and high” recidivism rate of 80%. That runs contrary to the actual CASOMB research of under 1% recidivism rates.
—————-
Involuntary servitude bit has not been disproven for this case. There are no comparables between the registry singled out for only those convicted of sex crimes compared to military duty applied to all, tax reporting applied to all, jury duty applied to all, and road work applied to all. The registry isn’t “applied to all”, but only a small group of convicts.
The registry enforces compulsory work under penalty of law upon a free person and that compulsory work has no compensation in California. Again, this is only “applied to those convicted of sex crimes”. For involuntary servitude, we must look at four classical components:
1) Contract
2) Compensation
3) Term
4) Domineered
—- Responses to four classical components of involutary servitude —
1) The registry was put upon a registrant due to a conviction of a sex crime. That is when the contract is born. You have to be convicted of a crime.
2) There is no compensation for all the compulsory work levied upon a free person.
3) The compulsory work, which includes abiding by all sex offender laws, restrictions, as well as in-person reporting at a college’s PD, is set for a lifetime term upon a free person. A lifetime term upon a free person that a person cannot walk away from.
4) Domineered. If a registrant wanted to quit registering, then the registrant will be punished for not doing the said compulsory work required of the registry under penalty of law. The state is punishing a free person for not doing compulsory work for the state as a part of their continued custody after concluding punishment custody.
The State of CA is believing that involuntary servitude cannot exist in today’s era despite the four classical factors identifies this is a involuntary servitude because the registry was born out of a conviction.
Involuntary servitude is prohibited unless to punish a crime.
Convicts lose rights and are not free, but are subjected to involuntary servitude. Whether one is in maximum state prison, county jail, or on parole/probation, they are subjected to the rules, restrictions, and validation of your presence. Once free of custody, they no longer need to abide by any rules, restrictions, or validation of presence, except if you are a registrant. You must still continue to abide by any rules, restrictions, or validation of presence AFTER completing your custody to the state from your conviction.
Actually I’ll probably use it for appeal. We made a good argument in the Complaint so I am keeping it short and sweet as possible in this objection. I have to refute that Individual comment but I think I know what’s going on there. Correct me if I am wrong.
“However, statutes found to be civil in nature cannot be deemed
punitive “as applied” to a single individual. Seling v. Young, 531 U.S. 250, 267 (2001).”
The way I am reading that case: I am still working this out.
Plaintiff objects the MFR assertion page 18 at 25-26 that Seling v. Young, 531 U.S. 250 forecloses any as-applied claims. In Seling the court noted that “Respondent contends that the Ninth Circuit’s “as-applied” analysis comports with this Court’s precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 (citing Hendricks, supra, at 363; Reno v. Flores, 507 U. S. 292, 301-302 (1993); United States v. Salerno, 481 U. S. 739, 747-748 (1987); Allen v. Illinois, supra, at 373-374; Schall v. Martin, 467 U. S. 253, 269273 (1984)). All of those cases, however, presented the question whether the Act at issue was punitive. Permitting respondent’s as-applied challenge would invite an end run around the Washington Supreme Court’s decision that the Act is civil in circumstances where a direct attack on that decision is not before this Court.” Id.
If the MFR insists that Smith, Hatton, or Elk Shoulder is controlling in this case, Plaintiff has demonstrated that he is directly attacking those decision as applied to him if necessary. Smith was concerning an Alaska ASORA and both the Ninth Circuit Court of Appeals and the Alaska Supreme Court have come to contrary conclusions as Smith whereas the Washington civil commitment statute at issue in Seling was adjudicated and found “civil in nature” by the Washington Supreme Court, and affirmed in the Ninth Circuit; and the United States Supreme Court had already decided it was similar enough in multiple previous cases: see Hendricks, supra, at 363; Reno v. Flores, 507 U. S. 292, 301-302 (1993); United States v. Salerno, 481 U. S. 739, 747-748 (1987); Allen v. Illinois, supra, at 373-374; Schall v. Martin, 467 U. S. 253, 269273 (1984)) that the Court had already reviewed several times and found “civil in nature” to foreclose any attempt, either in federal or state courts, to any future as-applied challenge.
SORA also imposes other affirmative disabilities or restraints that are greater than those
deemed “minor and indirect” by the Supreme Court in Smith. There, the Court expressly noted
that the law under consideration did not have an in-person reporting requirement, and further
stated that the record contained “no evidence that the Act has led to substantial occupational or
housing disadvantages for former sex offenders that would not have otherwise occurred.” [Through a routine background checks] Smith, 538 U.S. at 100.
Plaintiff is subject to: (1) Documented vigilante attacks on Plaintiff’s wife, his stepson, and Plaintiff (Opposition at EXHIBIT A-E) (along with large amounts of evidence showing an incredible amount of violent incidents around the country); (2) CA onerous in-person reporting (14 times in the last three years (add three more times from changing vehicles)); (3) CA law stating Plaintiff (or his wife) cannot cohabit or have unsupervised visits with their own kids or grandkids, or other minor age family members; (4) unchecked surveillance monitoring, and in home compliance checks; (5) CA registration is applied for a lifetime indiscriminately with no possibility for relief.
This case is also a very different situation than in Smith, Hatton, Elk Shoulder because Plaintiff’s criminal record or personal information is not subject to criminal background checks in California since California’s seven-year background limit law prohibits background checks for convictions older than seven years. Plaintiff’s conviction occurred over 12 years ago.
Plaintiff sees no reason to amend if the court rejects Defendant’s Motion to Dismiss and takes judicial notice of EXHIBITS A-E and of the government’s own Static 99R risk assessment tool and the government reports, Complaint pp 43 -44 ¶¶ 174-176 as well as pp 24-25 ¶¶ 100-102, pp 4 ¶ 12; or at minimum enter those documents into the record for appeal.
Unjust Sexual Offense Laws: Insanity and Hope
https://www.criminallegalnews.org/news/2018/feb/16/unjust-sexual-offense-laws-insanity-and-hope/
I am really pissed that the Magistrate tried to pull her little out of her a**(&^ tech trick. It’s wrong and very deceitful.
Plaintiff further objects that the MFR assertion that Seling precludes any further analysis to determine the punitive nature of a declared civil in nature statute. It is well known settled law what the requirements are when dealing with an as-applied to the civil intent-effect of any statute. See, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Using any technicality such as Seling to dismiss this cause of action is dubious at best and downright duplicitous at worst and does not provide Plaintiff with a fair and just adjudication of his claims
No your not supposed to attack the other side like that so scratch that. Man I have to file this by Friday just to play it safe. Damn..This sounds better.
Plaintiff further objects that the MFR assertion that Seling precludes any further analysis to determine the punitive nature of a legislatively declared “civil in nature” statute. It is well known settled law what the requirements are when dealing with an as-applied challenge to the intent-effect of any civil statute. See, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). Using any technicality such as Seling to attempt to dismiss this cause of action does not provide Plaintiff with a fair and just adjudication of his claims. Plaintiff should not be expected to digest and analyze such complex issues of law that are not relevant to his case.
Yeah I got rid of all that part..I went with the following instead..Thanks though it is nice to get feedback.
It is well settled law what the requirements are when dealing with an as-applied challenge in constitutional claims such as in this case, it is the intent-effect analysis in Kennedy v. Mendoza-Martinez, Plaintiff contends and reiterates California’s: (1) SORA (Penal Code 290, et seq.); (2) Megan’s Law Internet Website (Penal Code 290.46); (3) California Family Code section 3030 et seq.; (4) and all the collateral-probative “effects” outlined in his Complaint are punitive as applied when analyzed under the Mendoza-Martinez factors.
@ Mike R,
Let me get this straight. First, the AG states the registry a legal form of involuntary servitude to the likes of Jury Duty, Military Service, Tax Reporting, and Road Work. But your rebuttal was that the registry isn’t applied to all free California Citizens like jury duty, military service, tax reporting, or road work; also the registry is only born out of conviction.
Now, the AG is stating it is not involuntary servitude, compelled service, compulsory work? But you caught the AG very sharply in identifying Jury Duty is a service and Megan’s Law states it is a “duty to register”. Also, it is your duty to turn in your passport to force to pay for a new passport which “compels you to identify you’ve been convicted of a sex crime with a minor”.
Either way, you just caught the AG flip-flopping. Does the AG know the law or not?
————————————————————–
Here’s a link to the Kozminski case:
https://supreme.justia.com/cases/federal/us/487/931/case.html
Here is a quote between US 492 and US 493
Page 487 US 492 and 493
+++
While the general spirit of the phrase “involuntary servitude” is easily comprehended, the exact range of conditions it prohibits is harder to define. The express exception of involuntary servitude imposed as a punishment for crime provides some guidance. The fact that the drafters felt it necessary to exclude this situation indicates that they thought involuntary servitude includes at least situations in which the victim is compelled to work by law.
+++
If you are under custody of the state due to a conviction, then you are compelled to whatever the State says you need to comply with. For example, if your Probation term lists you spend some of your service at County Jail for a few months, then you abide. You are required to serve the state with in-person reporting once a month or the consequences are more punishment.
Involuntary servitude or compulsory service is constitutional to punish a crime. That is the only exception. When a person successfully completes custody, then they no longer need to serve the state in any capacity as a free person. Yes, once out of custody, you must continue to do in-person reporting service to the state at a minimum of once a year. You are required to do in-person reporting at any college or university you attend, and that reporting varies per school. You are required to report any changes in your living arrangement, acquisition of a vehicle, volunteer, or gain employment. Reporting is a service, is a duty, as specifically emphasized and defined on Megan’s Law.
————
In Bailey vs Alabama, the Court went on to hold that “involuntary servitude” existed whenever there was “compulsory service.”
———–
The four classical factors come from this link, page 2024:
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1073&context=facpubs
The citation says “See infra Part III.B.” I have no idea what that means.
~~~~~~~~~~~~
Conclusion
Registry is born out of conviction, but all registrant must maintain their duty as a registrant everyday by adhering to all the rules, regulations, restriction, and reporting after punishment custody has ended.
13th Amendment: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The only exception to involuntary servitude is punishment. A conviction induces punishment. The registry is deemed not punishment by 2003 Smith v Doe. Every registrant in California has a duty to register as well as abide by all rules, regulations, restrictions, and reporting everyday – essentially still serving the State of California as if still under custody. Thus any compulsory service that is not punishment is unconstitutional.
If you do not report, then you are threatened by law with punishment. This goes for one’s annual reporting, school reporting, new housing reporting, new residency reporting, new vehicle reporting, new volunteering reporting, or new employment reporting.
If you were convicted of a sex crime with a minor, it is your duty to report you working with minors to the Police Department and who you work for.
Also, if you were convicted of a sex crime with a minor, the State of California is complicit in enhancing the contract of the registry to now force a registrant to surrender their passport and pay for a new passport with a demarcation the compels a registrant admit a) they have a sex conviction, b) the conviction was against a minor, and c) they are a plausible threat travelling. The State of California is the entity that provides such information to the federal IML.
The 13th amendment specifically states when custody ends, which is to punish a crime. Once that punishment is completed, then so does any form of custodial service to the state. All convicts no longer under custody do not have continued service to the state, just registrants. The registry isn’t applied to all California citizens nor all California convicts. The registry applies only to sex crime convicts. As a free person no longer under custody, why am I compelled to service the state as it is written in law, Megan’s Law, “it is a duty to registry.”
Words have meaning. So to do the words of the 13th amendment. “Involuntary Servitude is prohibited unless to punish a crime.” The registry isn’t punishment, but all registrants are threatened under punishment of law to follow rules, regulations, restrictions, and reporting that no other California free citizen or California convict not convicted of a sex crime is subjected to that are no longer under custody.
“Westminster child abuse accuser ‘Nick’ is charged with paedophile offences”
“In 2014, Nick told Scotland Yard that a VIP paedophile ring, operating in Dolphin Square in Westminster, had raped, abused and even murdered young boys.” “He claimed the group included; the late former Prime Minister, Sir Edward Heath; the former head of the Army, Field Marshall Lord Bramall; the former Home Secretary, Lord Brittan and the former Tory politician, Harvey Proctor.”
And he was believed, despite all signs that he was a serial fantasist.
“The Metropolitan Police described his sensational claims as “credible and true”, and launched its disastrous Operation Midland investigation, which cost £2.5 million and traduced the reputations of a number of high profile figures.”
https://www.telegraph.co.uk/news/2018/02/06/westminster-child-abuse-accuser-nick-charged-paedophile-offences/
I think I will just keep it short and sweet for my objections and just leave it for appeal if they want to dismiss. After all we made a good argument in the Complaint and in the Opposition. Here is all I am including on these subjects in the objection. If we can add short to the point references then I will add them otherwise whatever you write I will save for appeal. Here is what I have.
Bill of Attainder
Plaintiff objects to MFR assertion, page 16 at 14-15, that the Bill of Attainder challenge fails simply because the court has found the laws to be non-punitive. As explained throughout the Complaint and the Opposition the Plaintiff has shown very persuasive evidence of punitive intent and effects and has presented a colorful argument that he is subject to an unconstitutional Bill of Attainder, Plaintiff’s claims must survive a Motion to Dismiss.
Separation of Powers
Plaintiff objects to MFR not addressing the Separation of Powers issue at all. Plaintiff contends that it is beyond the authority of the legislative branch to impose mandatory punishment beyond the statutory sentence allowed by law. Plaintiff served his maximum sentence allowed by law. Plaintiff is being tried, convicted, and sentenced through the legislative branch for the erroneous and illusionary “high risk of recidivism.” Plaintiff further contends that the feared characteristic that the legislature is attempting to prevent “recidivism” is the key element of the punitive sex offender statute so therefore that element must be proven beyond a reasonable doubt in a court of law and the Plaintiff must retain full rights to object, present evidence, and to the appeals process.
Involuntary Servitude
Finally, Plaintiff objects MFR assertion, page 17 at 3-4, that Megan’s Law’s et seq. “compelled actions is not “service.”” Plaintiff contends the compelled actions are “service” and that “service” is synonymous with duty; “jury duty” is synonymous with “jury service” and as outlined on the Megan’s Law Website, it is a “duty to register.” Plaintiff has once again made a colorful argument of involuntary servitude in his Compliant and Opposition and the claim must survive a Motion to Dismiss.
Every time I ready about tiered registries in other states (usually SORNA states), the tiers are always refereed to as “higher tiers are more likely to re-offend”. When it comes to CA new tiered registry, is that how they’re selling it as well? If so, I would think that would be ripe for thousands of law suites under the 14th Amendment since it’s 100% based of the offense code and not any actual evaluation. They can’t possibly state that someone convicted of X code is inherently more likely to re-offend than someone else. I mean, someone with a history of lifelong criminal record could easily be tier 1 while someone who’s never done anything wrong prior to their offense or since be tier 3.
More spectral evidence from Salem, the home of the witch hunt:
“The lowest level of convicted sex offenders would be required to register with local police and face increased scrutiny under plans to expand the state’s registry.”
http://www.salemnews.com/news/local_news/sex-offender-registry-changes-sought/article_e5b740d4-0090-5746-8bbe-34d5ffa7facd.html
I was browsing TMZ (don’t judge) — and saw that American’s Most Wanted’s John Walsh wants a registry for “mentally ill people looking to buy guns.”
http://www.tmz.com/2018/03/11/john-walsh-americas-most-wanted-host-mental-illness-registry-florida-gun-law-parkland-shooting/
I listened to the NARSOL call on the IML last night. They talked about sometimes it was better to wait to file legal action because if you got an adverse ruling, the effects could last for years and used the Smith case and the “frightening and high” description as an example. I understand all of that. That was 15 years ago. Since that time, there has been a mountain of evidence published that the basis for the need for the registry, the very high recidivism rate, has been factually debunked. Couple that with the super registration scheme with regard to the debate over whether or not the registry is punishment and there should be enough to satisfy the the Mendoza test to illustrate that now the registry is punishment. Why wait? will recidivism go any lower?
Man Floridah is sure experiencing a lot of tragedies. I wonder how much of that is caused by the collective karma theory and argument I made. Check out this intent argument against Smith. This is just intent and nothing else yet. Comments welcome…
Punitive Intent
In Hendrix, a civil commitment statute, the court stated, “an imposition of restrictive measures on sex offenders adjudged to be dangerous is “a legitimate nonpunitive governmental objective and has been historically so regarded.” 521 U. S., at 363 (emphasis added). Plaintiff has not been “adjudged to be dangerous” by any due process in any separate proceedings in court such as was the case in Hendrix. The entire case in Hendrix was predicated on the fact that the individual was afforded due process in separate hearings and proceedings so any comparison other to show the necessity of further due process is not cognizable. Hendrix just strengthens Plaintiff’s position.
The Smith court reasoned “The legislature found that “sex offenders pose a high risk of reoffending,” and identified “protecting the public from sex offenders” as the “primary governmental interest” of the law. 1994 Alaska Sess. Laws ch. 41, § 1. Id. at 98.” The Defendant’s claims that recidivism rates and the effectiveness of the registry are not relevant is erroneous. The reports relied upon by the legislature were and are antiquated academic studies from 1994 and 1997 that were unreliable and reasonably questionable even at that the time. Plaintiff has provided extensive recent empirical governmental and academic research that strongly suggest that there is universal consensus that the rate of re-offense for sex offenders is at or below 5% at release and drops to under 1% after as little as two years after release. The reports demonstrate that at least 90% of the re-offenses occurred within the first three years of release from incarceration. And the leading governmental and academic studies further show that over 90% of sexual assaults on children occur not by strangers but by people close to the victim.
The Smith court goes on “The legislature further determined that “release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.” Ibid. Plaintiff has provided extensive academic and governmental research that at the very minimum is very persuasive (if not definitive) that sex offender registration is counterproductive and certainly does not have any positive impact on public safety.
The fact the legislature was very aware as far back as 1994, according to Defendant’s own assertion, and have been repeatably informed by their own appointed government entities (especially in California as demonstrated in Plaintiff’s reports) that the risk of recidivism is exponentially lower than what was stated in the legislative text and language in the legislative findings should be very disturbing. The usually defers to the legislature but Plaintiff has provided an enormous amount of evidence and has cognizable arguments strongly suggestion there may have been punitive intent there.
Also, in Smith the court made comparison to gun laws. When articulated correctly there can be no cognizable comparison to gun laws since gun laws only require an individual not to own or possess firearms. The simple act (albeit a major constitutionally questionable infringement) of forfeiture of firearms to individuals convicted of certain crimes goes no further. Plaintiff is subject to extensive obligation, regulation, and prohibition. In United States v. 89 Firearms the court noted that the goal was “plainly more remedial than punitive,.” 465 U. S., at 364. There has been extensive empirical research that has universal consensus that firearms in the hands of criminals is a widespread public safety issue and restricting second amendment rights creates a substantial benefit on public safety. There are no such studies or consensus that sex offenders pose a significant risk to the public, nor does the research suggest that sex offender registration and Internet publication increases public safety. There is however a large body of scientific governmental research and evidence concluding sex offender re-offense rates are in the low single digits and there is growing empirical evidence that strongly suggest registration and Internet dissemination very well may be counterproductive. This analysis suggest strongly that the goal is not “plainly” more remedial than punitive.
As the court noted in Smith “Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent.” Smith id. at 94. “In this case these factors are open to debate.” Ibid. Although statutory labels and provisions do not by themselves transform a civil remedy into a punitive law, the fact that California’s sex offender statutes are found exclusively in the penal codes is probative of legislative intent when combined with the other factors.
The legislature repeatably state in the text of the statute (and practically every law aimed at this class of offenders) that it is not meant to be punitive, so the only logical conclusion is that the legislature was at least aware of the punitive nature of these laws when enacting them. Also, there are disclaimers on the website outlining penalties for misuse of the information, which do absolutely nothing to protect a registrant as claimed, is further evidence that the legislature was aware of the punitive effects the laws would have. That leads Plaintiff to infer and contend that the legislature may have envisioned the Act to be civil but was very aware of the punitive implications. Once again, this factor alone is not dispositive, but it is certainly persuasive of punitive intent when combined with the other factors in this case.
The statute’s language of repeated declarations that the laws are not punitive, and warnings and penalties for misuse of the information, when combined with the stated legislative findings of the erroneous “frightening and high” recidivism rates, and that the legislature was knowledgeable of the low re-offense rates but stated in legislative findings to the contrary is also very concerning and points to something more than public safety.
The fact that there is a growing body of consensus that the laws are ineffective but the legislature and locals, even armed with that knowledge, keep piling on more and more onerous laws is strongly suggestive of punitive intent. There was also some very suggestive legislative language on the floor such as “we need to paint the streets red in front of their homes” and “if we make the laws so onerous then they will want to leave the state,” that should be concerning as well. Plaintiff has provided all these studies and reports, including citations to the legislative floor statements, in his Complaint; see infra. Although none of these elements standing alone would be sufficient to prove legislative punitive intent “by the clearest proof”, when combined, Plaintiff makes a colorful argument that there is real evidence of punitive intent.
The Justices in Smith who were clear that they were on the fence on the legislative intent issue would have surely been more strongly persuaded under these conditions of punitive intent.
Man that is some righteous data you guys are throwing around. We need complete list of citations and actual absolute recidivism rates from back in the 80s, 90s, and 2000s. I need an entire list with citation connected to the data. If I could compile a list of 100 studies all showing the same thing there is no way that they could refute the results. I think I already have it covered but the bigger the list from before and after implementation would be solid. I am definitely putting every cited report in a single doc and saving it to go through. Good work guys…
Hey this is a major equal protection issue AJ, I never even contemplated it before, nice…..That is a solid argument…Hell Janice should be jumping on that. There isn’t even any real way to fix it either. I am racking my brain and there is NO way to fix it. Either figure out how you are going to put them people on there with a frigging address or take me off. It is that simple. Slam dunk and easy pickings for Janice et al. There are so many arguments and violations going it is almost inconceivable. Damn it AJ here is my equal protection argument that I have been searching for…..nice…I don’t know how I can bring that in to play since it isn’t in my complaint unless I amend which at this point isn’t practicable really. I don’t know I will have to wait and see how the district court rules on the partial motion to dismiss. I have to fully digest this I am sure I can get it in there. I might be able to do it somehow with the following I will have to think about that.
Fed. R. Civ.72. (b)(3) states that “The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” (emphasize added). Plaintiff thus submits these detailed objections to preserve matters for this Court’s review as well as for subsequent review. Plaintiff further request the District Court Judge “receive further evidence” from Plaintiff’s Opposition EXHIBITS A-E and EXHIBITS F-M of Plaintiff’s Memorandum of Points and Authorities for this Court’s review as well as for subsequent review.
“There are 2,879 sex offenders registered as transient (homeless), and therefore are not listed on any Megan’s Law website because they do not have a residence address. (Since sex offenders are placed on the Megan’s Law website with the street address being the controlling variable, not having an address eliminates them from the database.)”
Yeah, that is way out how something called a loophole is actually a major equal protection issue. Who would of thought.
It is as simple as >>
While all laws require that they are applied equally that is not the case with sex offender registration at all.
An Assessment of Current Management Practices of Adult Sex Offenders in California (CASOMB)
“There are 2,879 sex offenders registered as transient (homeless), and therefore are not listed on any Megan’s Law website because they do not have a residence address. (Since sex offenders are placed on the Megan’s Law website with the street address being the controlling variable, not having an address eliminates them from the database.)” , “” (http://casomb.org/docs/SOMBReport1.pdf) page 53.
Plaintiff suffers all the disabilities of sex offender registration including most importantly the fact that his private current photo and address being on the Megan’s Law Internet Website simply because Plaintiff maintains a residence with an address while other similarly situated individuals that maintain homelessness avoid all the disabilities of having their personal private information on the Internet website. This is a major flaw in the systems that has no no way of being rectified besides removing everyone from the Internet site. You can not severe any part of the Internet provisions from the statutes and you cannot force the homeless to provide an address they do not have and have no ability to acquire. This has been called a loophole for these homeless offenders when in actuality it is a deep flaw in the unconstitutional regime. Sooner or later an unconstitutional statute will not survive and this very well maybe a historic turning point. There is NO solution to this issue short of removing every registered person from the online Megan’s Law Website period or to provide every homeless sex offender with a residence and reportable address.
This has really piqued my interest now.
I know there has to be a loophole in the rules where a Plaintiff can add evidence that was not known to him at the time of filing. It just makes sense and the rules seem to be pretty sensible at least those that I have encountered. I shouldn’t have to amend my entire complaint in situations like that.
still an equal protection issue. A lot of the damage is being done simply because our current address is online. Even if they posted transient status with last known address, zip, city what have you it still does not negate the fact that I am suffering at the hands of neighbors and face ridicule, shame and even violence when my family I leave my apartment whereas being homeless you can avoid all that. Even if they posted them it would be like a separate list and IDK it just seems like a serious equal protection issue to me somehow since I would be rewarded and receive major relief if I give up residence and go homeless. If I wasn’t married I would of already done it. I would definitely rather live in the back of my truck or in a camper and avoid publication. I really do not see any way of balancing this out. Maybe I am wrong but I do not think so. I really believe this might be a major issue.