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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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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:… Read more »

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.

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

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… Read more »

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.

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.

I’ll take it!

What a great victory!

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

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… Read more »

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

Good luck, Ankle!

@ 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!

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.

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.”

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… Read more »

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.

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.

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.

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… Read more »

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,… Read more »

@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.

@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… Read more »

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.

“… 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

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/

@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… Read more »

“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… Read more »

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?

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.”… Read more »

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