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National

AL: District Court Determines Alabama Laws to be Punishment

Doe v. Marshall – decided February 11, 2019

Conclusion: Alabama can prosecute sex offenses to the full extent of the law. It can also act to protect its citizens from recidivist sex offenders. But the State denies that ASORCNA is designed to “punish” offenders. And once a person serves his full sentence, he enjoys the full protection of the Constitution. Harris, 772 F.3d at 572; accord Packingham, 137 S. Ct. at 1737.

Sex offenders are not second-class citizens, and anyone who thinks otherwise would do well to remember Thomas Paine’s wisdom: “He that would make his own liberty secure, must guard even his enemy *49 from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

Decision: Doe v. Marshall – Alabama – Feb 2019

Related Media

Initial Commentary

Some Alabama sex offender registration laws are unconstitutional, federal judge rules

‘Sex Offenders Are Not Second-Class Citizens,’ Says Judge While Nixing Alabama Rules on First Amendment Grounds (Reason.com)

 

 

Note: edited headline to reflect correct jurisdiction ***Moderator***

 

 

Join the discussion

  1. Cool CA RC

    awesome!!

    Another WIN

    Tide is turning really FAST !!

  2. AO

    Awesome that marking ID’s and requiring notification of internet use are unconstitutional. Boo that residency restrictions are okay because of stupid semantics.

    • Timothy

      SirAO,
      I continue about your state but Mine has statute that states “In force in Cities and villages.”
      Residency restrictions are voided because they conflict with sovereign state law. Be the first in your state.!!

  3. KM

    Link is for District decision, is there a Circuit one?

    • AJ

      @KM:
      No. This is a mis-titled topic. This is a District, not CoA, Opinion. It’s now (of course) on to the 11th CCoA.

      • E

        Indeed; this will get appealed and take another 2 years to impact anything… but a first step is good.

        • David

          @ E: Two years, you surmise? I am okay with waiting if it ends up with the result we want. Besides with the positive trend we are seeing Maybe by 2 years time the wave will a built enough to give the 11th circuit courage to call it unconstitutional.

        • E @ David

          Agreed. I’m just impatient. And especially impatient awaiting the 10th Circuit’s decision on Judge Matsch’s ruling in CO! Oral arguments were in November… I wish they would type faster so it can get appealed to USSC. It would be nice if the new AG in CO (now a Dem) would take Dana Nessel’s briefs as his own when that happens. (That would be hilarious. Whoever appeals, the state files amicus briefs against its own lawyers defending the existing law!)

      • TS

        To add to @AJ’s point: if you recall, there’s a 60 day window before the appeal to 11th CCOA has to be known to be filed, based upon what the CO AG did with Millard. She took the entire window. So, book that on your calendars.

        Also, looking at the recent NC decision that was in the favor of the registrant, it’s next step is the 4th CCOA. However, if you read the article at the national office’s website on this decision, there was a point made by Robininbthe comments about whether that was a good strategic move by the state since it could broaden the reach of the decision. Of course, we want it to be appealed higher for obvious reasons, but will the state do that? One has to wonder.

        • AJ

          @TS:
          The State is kind of screwed either way. If they appeal, it’s broadened; if they don’t appeal, it’s case law that can be persuasively used in other Districts (especially within the State)–and any conflicting decision can be appealed to the 4th for clarity and resolution. If it doesn’t appeal, I feel the State is merely slowing the inevitable progression.

          As I say, large or small, a win is a win is a win. I am resolute in my belief that the combination of rabidly passed laws and true recidivism data are converging upon the courts and they are finding in our favor–if and when it’s a judge who takes his or her job seriously and not subject to popular whims.

  4. Timothy

    Take that Mr. Sessions. Let me see you recuse yourself from that. Sorry, but I’m bitter.

  5. AJ

    This was NOT a decision by the 11th Court of Appeals. It was “only” a decision by a District Court Judge. As some of you know, I’ve been following this case for some time. Though not overly surprised at the ruling, I’m nevertheless quite pleased with it. Another crack in the facade.

    Now for the case to head to the 11th, because you know the home state of former Reichsfuhrer Jefferson Beauregard Sessions III still “knows” it’s right and needs this.

  6. Jack

    Hmm. Seems like Judge Matsch might’ve been quite the trendsetter. Thank goodness for us he happened to be a republican.

    • E

      Indeed. This was another R appointee, by W. Bush.

      Combined with MI AG Nessel, we’re seeing it from both sides… maybe overarching political philosophy doesn’t have to trump (nyuk nyuk) reason.

  7. BM

    Compelled speech is interesting and been kicked around here a lot. Passports anyone?

    I do not share @AJ the same pleasure in this unfortunately. As we know, we do not enjoy the full protection of the constitution once sentence is fulfilled. And though it he may have erred on the side of caution in regards to residence and employment restrictions, his tone did not suggest he felt it punishment at all IMO. There are substantive due process violations all over this case.

    • ma.concerned.citizen

      “Compelled speech is interesting and been kicked around here a lot. Passports anyone?”

      I was thinking the same thing. I wonder if this can be used at all for IML at some point…

    • AJ

      @BM:
      You are certainly more than welcome and free to have a different satisfaction than I. What pleasure do you derive from this ruling? As I’ve said before, I’m pleased with any and every movement in our favor, however grand or small. That the State won on some Counts speaks not so much to the validity of the law, but to the poor angle (facial vagueness) the Plaintiffs’ attorneys took. I think they realized their mistake midstream and tried to amend and correct, but were denied. (From what I recall of the docs I read, the judge explicitly stated the case had already dragged on and on due to this or that change, and he was of no mind to allow it to pretty much go back to square one.)

      The judge rightly posed the question of, “how can you claim vagueness when you yourselves can discern who and what is within the ‘vague’ zones?” His hands were also tied when there were overlapping laws and only one of the laws was challenged. To me, the judge hinted at selective enforcement being a possible foothold. I foresee that as being tricky, but who knows.

      Having read many of the documents in this case, I feel this judge did a very good–and fair–job here based on the Claims *as presented* to him.

      =====

      Re: IML and compelled speech.
      I believe it’s a tougher challenge than a ID/DL one, but possible. Of slight interest, in at least one of the earlier docs for this case the judge briefly addressed it when shooting down the State’s use of the first dismissed IML suit. He only addressed the difference in ubiquity between a ID/DL and a passport, and never dug deeper into the speech aspect of it. However, the amount of times a person must speak is not the deciding factor (as this judge noted), it’s that it happens at all. The big question is, how injurious would a court find the IML marker? Would it reach the threshold of being sufficiently tailored? Given this judge’s indication of perhaps a less obtrusive indicator being okay, it’s tough to say. Just like here, just like in Wooley v. Manyard, it’s government speech on a government “document” (including license plates). If it’s wrong there, it would seem to be wrong here. After all, the Government already has an established system to get that message to other sovereigns who inspect the passport: Ang3l W@tch and Green Notices. I believe that same argument could be made about having *any* marking on an ID/DL: the State already has an established, narrowly tailored system via ML registries and notifications.

      • Tim

        Each state broadcast is available to the World Wide Web Community No?
        IML as “duplicitous” ?

  8. Jason

    It is a GREAT decision!!! They don’t do this to any other group of arrested individuals because it would be unconstitutional……..

    • BM

      @AJ / @Jason

      Other than some comments: “But the State denies that ASORCNA is designed to “punish” offenders. And once a person serves his full sentence, he enjoys the full protection of the Constitution.” the actual decision leaves a lot to be desired. Am I missing something?

      We are second class citizens. Residency restrictions were upheld and the more disturbing inability to live with family between certain hours was also upheld. Not sure I share everyone else’s enthusiasm where someone doesn’t have to register their McDonalds wifi usage vs the other crap that was struck down here.

      • Chris f

        I believe those other decisions were lost either for lack of standing because the plaintiffs would not have been able to live there for other reasons, or were not argued correctly.

        I didnt see anything that looked like they ruled against us that worried me but maybe I missed it. I think a properly brought challenge to those other issues could also succeed.

        • Henry

          I am feeling the same. I look at this as a “How To Win” for other/lower courts. No ambiguity and no condemnation from this judge. In fact, he sounds like “he gets it”.

  9. Chris f

    Someone correct me if I am wrong, but if the court declares any part of it punishment, that should open registration up to challenging how the legislature is not allowed to dictate punishment as the judiciary has that role.

    • AJ

      @Chris f:
      In this case, the judge didn’t find any element of the law punitive; he found two items in violation of the RCs 1st Amdt rights. Even if there had been something found punitive, it would have been found so by effect, and the legislature’s purported intent would remain. (“Honestly, Your Honor, we here in the Legislature absolutely only intended it to save just one child.”) Even if something were found punitive in effect, severability* would simply excise that part from the law and the rest of the “well intentioned” stuff would remain.

      *Severability is going to be something to watch in the MI cases. The AG’s amicus says the 2006 and 2011 Amendments are inextricably enmeshed, rendering severability as nearly or truly impossible. THAT my friends, to use an oooold Windows term, probably means a BSOD for MI’s SORA. (BSOD = Blue Screen Of Death, i.e. full crash.) Of course no court is going to allow that, so I strongly suspect that if severability isn’t feasible, MI SC will probably somehow strong-arm the State to get the Legislature to get off its duff and write a “proper” SORA. Then again, they may bitch-slap the Legislature and make them do it in response to their rendered Opinion. As someone else said, the MI case bears watching.

  10. Tired Old Man

    why is this stuff not equal protection under the law. if convicted drunk drivers don’t have any of this bs on their lic. no driving while school is in session, etc… then why should convicted SO’s have this BS?

  11. Dram

    Wow, I have never heard a more beautiful thing.

    “Under strict scrutiny, a law is invalid unless it uses the least restrictive means of furthering the compelling interest.”

    A decision by a State Supreme Court, decided on Constitutional Grounds a couple of days ago.

    Why does this make my heart happy ?

  12. Dram

    Just wondering whether deciding against branding of a drivers license, might reach to passports?

    I think it could.

  13. JW

    I’m confused about the rationale for alerting police that the drivers license holder is a registered person. Isn’t that the entire justification for the registry itself? Wouldn’t the police only need to know a citizen is registered if it is relevant somehow? At any rate isn’t it something that comes up when they run your license? Whether it is big bold red letters or a tiny asterisk what does that inform the cop looking at the license?

    The big bold red letters on a license are proof the registry is not used for its stated purpose. It is NOT a tool for the police, they require marks on the license to know if a person is registered.

    • Henry

      “…alerting police that the drivers license holder is a registered person.”

      In the same vein of thought, why does a police officer NEED an identifying letter or mark on the state license as they have the means to communicate via radio to check a license with their home office/NCIC database.

      The answer is that there is NO NEED to have any identifying mark on our license at all. We live in an age where communication and information is instantaneous. The identifying mark is not necessary any more.

  14. Dustin

    A quick short fix to the internet identity law:

    Have all registrants create 10 new dummy email addresses with the password 1234abcd$ and have the list available to all Alabama (or any other state that mandates it) registrants subject to email identifier disclosure for them to register the entire list, ideally 5000 or so. Then giggle at the looks you get from whoever has to input them into their registry. Give them a new list a month later and repeat.

    It’s a modified version of a suggestion I made to respond to a Florida law requiring registration of “every vehicle a registrant has access to”; then I suggested not only every vehicle in the family, but every vehicle at every rental agency, used car lot, etc. (if you can rent or buy it, you have access, right?). The idea was to flood the registry with (more) nonsense. But of course, that was Florida and they want their registry as ridiculously overinflated as they can make it.

  15. G4Change

    “The best way to get a bad law repealed is to enforce it strictly. ”

    Abraham Lincoln

    These laws have gotten so ridiculous that more and more court decisions are going to continue to strike them down. Smith v. Doe seemingly gave these politicians unlimited rope. Now it’s time for a hanging!

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