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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***

 

 

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awesome!!

Another WIN

Tide is turning really FAST !!

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

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.!!

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

@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.

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

@ 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.

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!)

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… Read more »

@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… Read more »

So was doe v Marshall et.al appeal to the 11 the Circuit? As like Maguire v. Strange?

@Johnny Cade:
“So was doe v Marshall et.al appeal to the 11 the Circuit?”
—–
No. In some ways that’s unfortunate, as it limits the scope of the Opinion. Had the 11th heard it and upheld, it would have helped people across States. Instead it’s now only persuasive (i.e. non-binding) when used elsewhere.

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

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.

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

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.

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.

“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…

@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… Read more »

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

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

@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.

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.

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”.

This is good news and I hope they make some changes fast! I currently live in NYC been living here for 5 years from a charge where someone I met on a gay hook up site lied to me about their age! I got probation but I still had to register. It was even proven that he was lieing to me but Alabama laws are so strict! Even if it’s proven just because you had sex with them you are still guilty! This has ruined my whole life! I live 3,000 miles away from my family and I think I’m… Read more »

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.

@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… Read more »

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?

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 ?

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

I think it could.

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… Read more »

“…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.

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… Read more »

“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!

^ VERY well said

I’m a registered sex offender in Alabama. No matter how u look at it in court it’s so hard once someone has accused you of a offence. Its their word vs yours, once i was convected it was hell to do anything when u had to show your driver’s license. I continue to work by the grace of God for 19 years and was able to retire. Am glad to have this removed from my license.

Can anyone give the current status of the case. The email address etc provision was in limbo last I saw. The state changed licenses to show cv606 but what about providing email addresses? Thanks

@Rich: “The state changed licenses to show cv606 …”

Do you mean that Alabama did not appeal the ruling, and that the state no longer imprints the ID or DL with “CRIMINAL SEX OFFENDER”?

What is cv606? Is that a statute number or something?

@CR

It is the new AL DL code for people on the registry there.

You can read more here in the comments of the article by two folks from AL (including Rich above) who got a new AL DL. https://narsol.org/2019/02/alabama-court-upholds-first-amendment-rights-for-registered-sexual-offenders/

It isn’t much, but see here for more info too: https://www.alea.gov/dps/driver-license/license-and-id-cards/sex-offender-driver-license-designation

It appears the wording will not be there, but some code will be instead which has not been divulged in this posting.

@TS, thank you. I somehow missed all this back in February. It’s good news, although having any kind of mark on the ID or DL is objectionable.

I wonder if someone in OK, which I believe also has marked DL’s, might be able to mount a successful challenge in that state by modeling it after this case.

You’re welcome @CR.

IIRC, I made an OK DL challenge comment on the NARSOL OK DL article page using this case in addition on the AL DL article I posted here. You’d think they could now.

@CR & @TS:
The OK case definitely needs to be tried again with a different tack. I forget the claim they made, but I do recall it (oddly) NOT being compelled speech. Toss in the face-to-face shaming that can happen (hello SCOTUS in Smith?) when one is standing in front of the cashier making sure you’re 21+ for your bottle of Olde English 800 (ah, the cheap drunk of college years)… It’s markedly (yes, intended) more associable with a person than a license plate and its motto. C’mon, man!

@AJ & CR

Here is the OK case outcome on NARSOL website and my mention of a new way forward using Compelled Speech in addition to their replies. Bottom line, a new plaintiff needs to come forward.

https://narsol.org/2017/11/tenth-circuit-coa-upholds-oklahoma-drivers-license-requirement/

“The state changed licenses to show cv606” —– Can someone explain to me how changing the compelled-speech from plain English to “code” means it’s no longer compelled speech? Keep in mind compelled speech is about the Government making me speaks its message. To my knowledge there is no discernment with the method or manner of that message, NOR whether it’s heard by anyone (that would be a separate Free Speech issue for the other person). No right is absolute, so there’s a more than fair chance a court would say this is okay. However I still maintain that the State… Read more »

@AJ

In code or standard writing, there’s no difference, the message is still the same regardless. They’re playing on regular people’s ignorance of the “cv606” code and it’s meaning v AL LE knowledge of it. It’s compelled. Period. Once the definition is out, people will know.

Is espionage any different if info is shared via a three layer code vs standard writing using UV light to show it vs standard ink? No, the info is still the same regardless the message.

Of course.

And the goal of the criminal regime is to force a mark that all the public will recognize so that there can be widespread discrimination and harassment. That is their key goal.

Is it truly outrageous that anyone would think that is acceptable in Amerika.

@TS: I was questioning rhetorically, but thanks for chiming in. 🙂 Yes, all that matters is A) the Government is using me to speak, and B) I disagree. The could do it via rebus or pictogram and it’s still speech. ALEA claims it’s for LE information and use. BS. As we all fully know, no matter the code, lingo, or marking, eventually the public will learn its meaning. Suppose I don’t drive. I haven’t dug into AL law, but from everything I’ve read, it says RCs must have the ID on them at all times. Not so sure about being… Read more »

Would be interesting to hear what the attorneys say. And to help keep the criminal regime more honest. But, I would e-mail the criminal regime (or worse case, snail-mail them). I’ve had great success e-mailing the Registration goons and the county attorneys together. All you would have to do is e-mail something very nice and brief that said something like, “It is my understanding that I am not legally required to Register any of my e-mail addresses. Would you please confirm that.” I’ve been able to correct their illegal behavior many times that way. And they have never had a… Read more »

In the Alabama case, I read that the Atty General had 30 days from the ruling to file papers asking the judge to reconsider or something before being able to appeal. I’ve not been able to find anything since the ruling came out. I’m not an atty and have no idea how to reaearch it. This is in reference to the email and internet identifier requirements. The state apparently gave in when they removed criminal sex offender and replaced it with cv606.

@Rich: “I read that the Atty General had 30 days from the ruling to file papers asking the judge to reconsider or something before being able to appeal. I’ve not been able to find anything since the ruling came out.” —– I ran two searches in the 11th Circuit’s PACER files. One time I used the originating case number, the other time I searched for all cases filed between 1/1/2019 and 6/18/2019 with Marshall as a party. The first query came up empty, the second one yielded four results none involving a Doe as a party. Clearly no appeal was… Read more »

Does anyone know how to conclusively find out if I’m still required to report my email address etc? I’ve thought about emailing the Al Atty Gen’s office and just ask. Surely they would be obligated to give an honest answer, if they did answer.

@Rich:
Does anyone know how to conclusively find out if I’m still required to report my email address etc?
—–
I answered you above, though it was nested: https://all4consolaws.org/2019/02/al-11th-circuit-determines-alabama-laws-to-be-punishment/comment-page-1/#comment-229283

@Rich: I did a little more digging for you regarding your email question. Really all I did was read the Judge’s Opinion and Order which, since AL didn’t appeal, is final. From the Opinion and Order: ***** “Because they chill a wide swath of protected speech under penalty of felony, ASORCNA’s internet-use reporting requirements, Ala. Code §§ 15-20A-7(a)(9), (18), 15-20A-10(e)(1), are facially overbroad in violation of the First Amendment.” ***** Then, in the summary of the Opinion and Order, the judge writes: ***** “5. The State of Alabama’s internet-use reporting requirements, Ala. Code §§ 15-20A(a)(9), (18), 15-20A-10(e)(1), are DECLARED facially… Read more »

Thanks for your researching for me. I have to register next in August so I think I’ll see what intel I can gather then. For those who need a good laugh: I pled guilty to Al 13A-6-110. There was an appeals court decision, Tennyson v. Al, which is almost the same to my situation. Major exceptions being I didn’t travel to meet, was arrested at my home and I didn’t send pics of my genitals. The statute was repealed 13 days after my conviction. If I had money to hire an attorney, one who would do his job, I could… Read more »

@Rich:
“I could file a rule 32 petition and have my conviction set aside thus removing me from the registry.”
—–
The words “pro se” are ringing in my ears. What’s to lose?

I assume pro se means diy. I’ve thought about it, very briefly. Honestly it’s scary as heck. This occurred in a county south of me. One thing I learned is they don’t play by the rules. I suppose I’m just not gutsy enough.

@Rich: Yes “pro se” (“pro per” also gets used) means self-representation. It’s certainly a big step to take. I’m not sure if the case in the county south of you was successful for the RC, but if it was, you have the instruction manual on what to do. You could even cite it as precedent. If it wasn’t successful for the RC, there’s some homework to be done to try to find out how to get through the reasoning of the judge(s). You’re right that the local boys don’t always play by the rules; the appellate courts tend to take… Read more »

In opposition to the AL Federal District ruling is the IA SC: https://www.courtlistener.com/opinion/4607266/state-of-iowa-v-lloyd-aschbrenner/ What a surprise they found just like their IL and MO counterparts do: nothing is ever too much or wrong about anything to do with adult RCs. I hope the RC in this case appeals to SCOTUS (no petition as of 06/27) so we can find where the line is. Then again, I dread SCOTUS denying cert or finding for the State. Something from the Opinion leaped out at me: ***** The district court sentenced [the RC] to a five-year suspended prison sentence, supervised probation, and a… Read more »

Is it true that you (a district attorney) can indict a ham sandwich?

I mention a ham sandwich and the silence is deafening.

@Rich:
“I mention a ham sandwich and the silence is deafening.”
—–
I’m missing what your point or complaint is. Perhaps others were similarly unclear and didn’t reply, resulting in said silence.

Yes, there’s an old saying that a DA could indict a ham sandwich if so inclined. It’s a statement highlighting the extreme (and virtually unchallenged) power a DA holds.

Now….what’s your point?

Sorry for the vagueness. My point was, I was charged with 20 counts of possession of child porn yet the grand jury failed to indict me. Since a ham sandwich can be indicted, did the DA just feel sorry for me? Or perhaps there wasn’t actually child porn on my computer as I said all along.

@Rich: “I was charged with 20 counts of possession of child porn yet the grand jury failed to indict me. Since a ham sandwich can be indicted, did the DA just feel sorry for me?” —– If it went before a Grand Jury, there’s no way the DA felt sorry for you. The only way his/her feeling sorry for you could have been shown would have been by not presenting it to a GJ. What happened was that despite the DA’s best, most-slanted argument and biased presentation of evidence (which is what GJs are all about…the State holding all the… Read more »

Just an fyi for those watching the Alabama laws. I did my quarterly registration yesterday and the email address is still on registration paperwork. I didn’t ask or push the issue since I just don’t have the ability take on any battles right now.

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