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PA: Appellate Court finds registration violates right to reputation under Pennsylvania Constitution in as applied case

[floridaactioncommittee.org – 10/23/20]

Before you get too excited, this is an as-applied case, meaning the decision only benefits the person challenging and not everyone on the Pennsylvania registry, but it’s a win nonetheless, and a win on a novel argument, so it’s good news.

A Pennsylvania intermediate court found that SORNA violates an individual’s right to reputation under Article I, Section 1 of the Pennsylvania Constitution by creating an irrebuttable presumption that she poses a high risk of committing additional sexual offenses. The law says, “[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.”, but the Court found that when it came down to the circumstances of this case, it was unjust to consider the defendant as “posing a high risk of committing additional sexual offenses” when she hadn’t actually committed a sexual offense in the first place.

Read the full article

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  1. New Person

    A quote from the article link: “First, the court recognized that being on the registry causes damage to one’s reputation.”

    This is a start.

    I wonder if California can piggy back on this notion that the registry causes damage to one’s privacy since California’s constitution specifically identifies the right to privacy is an inalienable right as well as the ability to pursue and obtain it. Call it akin to the right to bear arms. Sure, you can lose it, but you can also regain the right.

    The first threshold to identify the right to privacy restored is in Section 1203.4: “the court shall thereupon dismiss the accusations or information against the defendant.” The registry is violating this court law as it is using dismissed information as current information in the registry scheme.

    • TP

      The 1203.4 shouldn’t matter in CA. The CA constitution guarentees the ability of privacy through expressly stating it. The US constitution implies it and the SCOTUS has said so.

      The registry and Megan’s law violate that right.

  2. David⚜️

    ….If it saves just one person from the Registry. 👍😁

  3. JohnDoeUtah

    https://www.carboncourts.com/Opinions/jnanovic/CommonwealthvsGruver.pdf

    See, Commonwealth v Gruver (PA 2020), “Pursuant to the ‘irrebuttable presumption doctrine’ for evaluating the constitutionality of a statute, a statutory irrebuttable presumption as to a fact in dispute which consequently encroaches upon an interest protected by the due process clause ‘violates due process if the presumption is deemed not universally true and a reasonable alternative means of ascertaining [the] presumed fact is available’…SORNA’s presumption that all convicted sexual offenders are highly likely to reoffend is not universally true based on studies accepted by the parties which evidence that not every person, or even the majority of persons, convicted of a sexual offense are at high risk of committing another sexual offense.”

    • M C

      While these quotes from the decision may not hold as valid in other states they may also convince some other courts somewhere that if the “majority of persons, convicted of a sexual offense are at high risk of committing another sexual offense,”
      The ‘frightening and high’ in the SCOTUS Smith V Doe is no longer a valid assumption.

  4. Brandon

    The registry protects society from
    The monsters; while causing more harm and problems that never existed before these ill conceived laws. Just because something sounds or looks good, doesn’t mean it should be a law. We need a registry for useless lawmakers. Hell the boogeyman aren’t those who have committed sex offenses; it’s the morons that keep pushing these fell good useless laws.

  5. Resident

    I’ll take it!

    What a great victory!

  6. Tired of this

    Well, that’s a start. Precedents like this can only help us. It’s another crack in the dam, even if a small one.

  7. Anklebiter

    Reputation.. dang do I feel it.. every time it comes up in a job interview or with friends. I get sick, depressed.. etc… I’m happy this guy got off! Small victory, but in such tyranny, I’ll take what we can get. Tomorrow I petition for early release from probation. I’ll get to go before a judge with my lawyer in front a full court room, and ask to get off early for a sex offense.. I’m honestly not scared if the judge says yes or no. I’m more scared of all the judgement from the court room. Putting myself in front of everyone… wish me luck.

    • MatthewLL

      @ Anklebiter, I hope you post what happens tomorrow at your court hearing, good or bad. I truly wish you good luck.

    • New Person

      Good luck, Ankle!

    • Underdog

      @ anklebiter- Thomas Jefferson said, “I’m a greater believer in luck, and I find the harder I work the more I have of it.” Considering you have achieved the opportunity to present yourself in court, today, speaks volumes for the efforts you have put forth. May Jefferson’s formula prove valid for you. Good luck!

    • Tim in WI

      Anklebiter,
      Naturally the process is scary and full of anxiety, but in the end you’re going to find it cathartic!
      Win early out or not- you’ll feel better.

  8. What about...

    I’m surprised nobody has ever tried to use Humphries v. LA County (https://caselaw.findlaw.com/us-9th-circuit/1244887.html) in a court challenge. Though it doesn’t outright use the words “irrebuttable presumption” it works off the idea. Isn’t Due Process violated by the inability to get removed earlier than the law says? Humphries seems to say it is. It seems RCs can show that due to being listed “a right or status previously recognized by state law was distinctly altered or extinguished.”

    • New Person

      Interesting.

      It’s a good read. The court goes over the “Stigma Plus” test for this case about a child abuser list. Being on a sex offender registry surely is equal or far worse than being on that abuser list as there are more restrictions included by the sex offender list.

      Here’s a couple of excerpts I like from that case:

      ** “We hold that where a state statute creates both a stigma and a tangible burden on an individual’s ability to obtain a right or status recognized by state law, an individual’s liberty interest has been violated.   A tangible burden exists in this context where a law effectively requires agencies to check a stigmatizing list and investigate any adverse information prior to conferring a legal right or benefit.   As outlined above, California created the CACI via CANRA and explicitly requires agencies to consult the CACI and perform an independent investigation before granting a number of licenses and benefits.   This requirement places a tangible burden on a legal right that satisfies the “plus” test.

      We find that a tangible burden also exists where the plaintiff can show that, as a practical matter, the law creates a framework under which agencies reflexively check the stigmatizing listing-whether by internal regulation or custom-prior to conferring a legal right or benefit.   CANRA appears to create such a legal framework.   CANRA explicitly provides that a variety of agencies will have access to the CACI, and we cannot turn a blind eye to the actions of these other agencies merely because they are not explicitly required by statute to receive CACI information.” **

      The registry list should be referred as the “stigmatizing list”, as identified by this court case.

      **”The Second Circuit explained that “[t]his is not just the intangible deleterious effect that flows from a bad reputation.   Rather, it is a specific deprivation of her opportunity to seek employment caused by a statutory impediment established by the state.”   Id. at 1001.  Valmonte stands for the proposition that to satisfy stigma-plus, a child abuse registry does not need to create a per se bar to employment;  it is sufficient that a child abuse registry, by operation of law, creates a “statutory impediment” or a “tangible burden” to being hired.  Id. at 1001-02.   See also Dupuy v. Samuels, 397 F.3d 493, 503-04, 509-11 (7th Cir.2005) (finding that where “child care workers effectively are barred from future employment in the child care field once an indicated finding of child abuse or neglect against them is disclosed to, and used by, licensing agencies” a protected liberty interest is “squarely implicate[d]” under Paul ).”

      I like this excerpt because it identifies that the statutory scheme produces a “statutory impediment” or a “tangible burden” to being hired. The sex offender registry is a statutory scheme.

      ** “Indeed, on top of the need to protect California’s youth, hiring or giving a license to someone without checking the CACI could potentially lead to tort liability under California law.   See Juarez v. Boy Scouts of Am., Inc., 81 Cal.App.4th 377, 97 Cal.Rptr.2d 12, 24-25 (2000) (“[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.  [T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct.”) (internal citations and quotations omitted).   Once an agency consults the CACI and finds adverse information, CANRA requires the agency to conduct an investigation and come to its own conclusion.  Cal. Penal Code § 11170(b)(9)(A)” **

      In this excerpt, being on the list implies that a person is ‘unfit’.

      For this case, the Humphries were cleared of their accusation, but their accusation triggered being on the registry. For those on the registry that have earned the 1203.4 earned the right to have their accusation/information cleared as specifically stated within the statute: “the court shall thereupon dismiss the accusations or information against the defendant”. (Link to 1203.4 statute: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1203.4. )

      A 1203.4 is a case dismissal, allowing a person to cite he or she were never convicted of a crime, and, thus, helping to improve liberties such as movement, employment, and privacy.

      The problem here is that PC 290 law has an overlay that negates the ability to de-register in recent years with the passing of PC290.5 and PC290.007. The legislators thought that 1203.4 was too easy for registrants to de-register and bumped up the threshold from probation term to at least a 10-year wait and petition to a higher court via Certificate of Rehabilitation (CoR). There was no scientific reason to increase the threshold of de-registering and it conflicts with the government contract within 1203.4. This is postponed justice fits into legal maxim, “Delayed justice is justice denied.”

      The Humphries, in this case link shared, were declared “factually innocent” and their arrest record sealed. None of this had any affect on the CACI listing (Child Abuse Central Index), or the child abuse registry. The court intervened to grant qualified immunity to the Humphries. To use this case, a registrant must be put in a similar situation. A registrant who earns the 1203.4 has been deemed to have not been convicted of a crime, but must continue to be part of the registry. There is an avenue to de-register by waiting 10-years minimum to file a CoR petition, but it is an extra burden beyond what any other person who has earned the 1203.4. Even with the new tiered registry, the 1203.4 means nothing with respect to the registry.

      A 1203.4 is the court telling the world you are rehabilitated. Being on the registry is the state telling the world you are not rehabilitated because you remain unfit. These two laws conflict and it’s possible that this Humphries case can make those convicted of sex crimes and qualify for the 1203.4 be of equal standing to all those who earned the 1203.4 as no registry exists for the non-sex crime individuals.

      The negation of the total benefit of 1203.4 from registrants is a legal form of making rules unequal to one group of individuals, a legal form of segregation.

  9. Bristol BOB

    Sad to say everyone but this is not an intermediate court but the “Court of Common Pleas” which is the lowest rung on the Pennsylvania Judicial System. This decision I am sure will go through the appeal process which in Pennsylvania, the next step would be Pennsylvania Superior Court. After that it would go to the Pennsylvania Supreme Court. As you all know, this could take years before a final decision. At least it is a positive for now.

  10. Tim in WI

    IRREFUTABLE PRESUMPTION

    This is a purpose of the standardized plea & waiver of right that also demands a public admission of guilt to the crime in court. Those similarly situated in Connecticut DPS from 03 fell victim to their own choice.

  11. mike r

    Humphrys is cool and all, but the following is crucial,
    “From all we have said, the Humphries have an interest in not being stigmatized by having their names included in a child abuse database that places a tangible burden on legal rights, >>if they have not committed the acts underlying the reports that led to their inclusion.<>due to an incorrect listing on the CACI.<<"

    I guess they are only rights if you were not convicted of a crime.

    • mike r

      Now privacy is a different story as in CA privacy is a fundamental right. Publication of your home address and your current photo I would think violate that privacy. I also believe a right to bodily integrity is a fundamental right being violated by that dissemination as well as familial relationships after the new tier system takes place as they will be implying a level of dangerousness to my family members that could look at my profile and determine risk based on those designations. There are also procedural due process issues for that designation without a determination hearing to access risk. I do not believe a static conviction based tier system would pass muster. Surely all this would be good fodder in the CA SC.

      • New Person

        The right to privacy as explicitly stated in the CA constitution is one venue that I’m very curious about. In the passing of the right to privacy amendment, citizens of CA have a right to look at their own information on a database to be correct at all times. Why are registrants denied this right?

        But not only that, the loss of privacy is punishment as it is a loss of liberty as defined by the CA Constitution. Thus, when you are no longer under custody, then you should regain said privacy.

        Here, again, 1203.4 restores said privacy right with, “the court shall thereupon dismiss the accusations or information against the defendant.”

        I really want to know the ins and outs of the privacy right today because it hasn’t been addressed all this while. Is losing the right to privacy punishment in California?

    • New Person

      @mike r wrote: “I guess they are only rights if you were not convicted of a crime.”

      1203.4 is the court stating you are no longer convicted of a crime.

    • Tim in WI

      @Mike,
      I think you’re kinda missing the point. Some names contained on n state’s registry are not offenders themselves. Wisconsin SOR forms demand a name for ” emergency contacts ”
      This information IS NOT publicly posted like say the photo, but instead are contained inside the database. That fact lends itself to exposing the mission creep sex offenders registration has factually experienced, by non sex component crimes.. In turn also, clearly undermines stated ” legislative intent” and measured effect behind the initial acts intent.

      Importantly the court called it “a database” and not ” a registry. ” This is a key point in the evolution of judicial thinking. Indeed the decision to NAME the database machine(s) as ” a registry” ( not all states did) was a marketing ploy used to obscure certain facts concerning the plain indenture of man implicit in the database driven regulatory regime.

      • @Tim in Wi

        What reason do they give for needing your emergency contact info? Do they know of some harm that befall you, such as being publicly listed on a hit-list? They have no greater interest in your emergency contact info than that of any other citizen.

  12. Pat

    “… protection of the public from this type of offender is a paramount governmental interest.”

    This statement is used often and it is criminal against offenders who, once they complete their sentence, ARE ALSO MEMBERS OF THE PUBLIC! Due the same equal protection of the law!

    With this statement, and their sex offender laws, the government segregates these ex offenders from being members of the public!

    Not just them but by extension, their families as well! It is a deliberate act of inciting violence, democide on their part! CRIMINALS!
    https://en.wikipedia.org/wiki/Democide

  13. David⚜️

    Here’s more – Reason Magazine: “Pennsylvania Sex Offender Registry Act Unconstitutional as Applied to Low-Risk Non-Sex-Offender”

    https://reason.com/2020/10/25/pennsylvania-sex-offender-registry-act-unconstitutional-as-applied-to-low-risk-non-sex-offender/

  14. mike r

    @Pat, yeah I find it absolutely insane to say that the stated interest in public safety satisfies the rational basis threshold for the law. The court actually stated this in my case and I believe in Smith maybe even. I would have to re-read Smith but I think they stated it as well. If public safety alone meets the threshold for rational basis then we are in serious trouble. Any law can be stated to increase public safety without any proof of said increased safety, therefore any law stating it is for public safety is rational. That is an insane concept and I wish I would have brought it more in the forefront of my case as well. Definitely will be in my state suit when I file it after the tier system takes effect.

  15. mike r

    “They contend, however, that the Act lacks the necessary regulatory connection because it is not ‘narrowly drawn to accomplish the stated purpose.’ [Citation.] A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act’s nonpunitive purpose is a ‘sham or mere pretext.’” (Smith v. Doe (2003) 538 U.S. 84, 102-103 [155 L.Ed.2d 164, 183, 123 S.Ct. 1140], quoting Kansas v. Hendricks (1997) 521 U.S. 346, 371 [138 L.Ed.2d 501, 117 S.Ct. 2072].)”

    “the Act lacks the necessary regulatory connection because it is not ‘narrowly drawn to accomplish the stated purpose.’”

    “The imprecision respondents rely upon does not suggest that the Act’s nonpunitive purpose is a ‘sham or mere pretext.’”

    This is going to be addressed as well. It is not that it is not just not narrowly tailored it is the fact that the entire scheme and Smith and every case that follows is deciding the issue on the sham or pretext of the non-existent “frightening and High recidivism rates”

    Also, I will not be claiming that it is punitive at all but that the laws violate substantive due process for not have a internal mechanism to establish if a person is a risk and at what level before public notification can take place.

  16. Joe123

    Janice or anyone else that can comment:

    What would prevent a low-risk level 1 registrant from challenging the courts on these same legal grounds in their home state? Why wouldn’t the same challenge work for other individuals?

    • JohnDoeUtah

      I’d say you could. Just make sure your situation is one that will not give them a reason to establish bad precedent.

      Take my case, under the UCMJ (2005) my crime was not listed as “non-consensual.” Its also not a “serious violent felony” as defined under federal law. However, SMART would administratively say it is and require life on the registry.

      Also, in 2009, after 2.5 years on the registry I won legal custody to my son, resulting from my crime, against objection of the state. After evaluation and treatment, the judge ruled I was at “minimal risk to re-offend.” Yet, the state still made me register, at one point for life, but released me after 10 years.

      I believe community notification and restrictions are ripe for review under several fronts. We may not be able to get rid of a LE only registry right away. Smith stated we must show by the clearest proof, recidivism studies and individual determinations of risk are that clearest proof rebutting the rational relation to public safety. The burden of proof is on us.

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