CA Court Blocks DOJ’s new SORNA Rule Because it Violated Due Process and First Amendment

Los Angeles: A California court last week blocked the Department of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the First Amendment.

“The DOJ almost never loses these cases. That they lost here goes to show just how far out on a limb the DOJ is with this rule,” said Caleb Kruckenberg, an attorney at Pacific Legal Foundation. “The rule clearly violated due process and free speech protections. And while the court felt bound by precedent to conclude that the rule didn’t violate the constitutional separation of powers, we will continue to press this issue in the hopes that the Supreme Court will finally enforce constitutional limits on the executive branch.”  

The rule required anyone who had been convicted of a sex crime to register as a sex offender in their state, even if—as in the case of our client, John Doe*—their conviction had been expunged and they were not even allowed by their state to register. Because John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible—an affirmative defense that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require John, or anyone else, to affirmatively prove their innocence only after being arrested and charged.

U.S. District Judge Jesus G. Bernal noted in his order the profound threat the rule posed to justice: “For individuals like Plaintiffs, at least some of whom allege a remarkable record of rehabilitation and positive contributions to society following convictions in the distant past, the prospect of being returned to prison for up to 10 years due to circumstances beyond their control is a particularly disturbing one.”

The court also found the rule’s requirement that registrants disclose their internet usernames likely violated the First Amendment by making it impossible for them to protest anonymously on issues of public concern, like the DOJ rule.

Finally, the court ruled it was bound by Ninth Circuit precedent to reject a challenge to the DOJ’s power to issue any rules at all, but the order noted the “significant, even disturbing” threat to the separation of powers that arose from the rule.

With this order, the DOJ’s SORNA rule is now unenforceable in California and could be vacated nationwide in the judge’s final decision. The case is John Doe v. Department of Justice.

*Our client is using the pseudonym John Doe to protect the life and reputation he has built in the decade-plus since his record was fully expunged.


Download the PDF file .


Related posts

Notify of
We welcome a lively discussion with all view points - keeping in mind...  
  1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
  2. Please keep the tone of your comment civil and courteous. This is a public forum.
  3. Swear words should be starred out such as f*k and s*t
  4. Please stay on topic - both in terms of the organization in general and this post in particular.
  5. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
  6. Please take personal conversations off this forum.
  7. We will not publish any comments advocating for violent or any illegal action.
  8. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address.
  9. Please refrain from copying and pasting repetitive and lengthy amounts of text.
  10. Please do not post in all Caps.
  11. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links.
  12. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
  13. We will not publish any posts containing any names not mentioned in the original article.
  14. Please choose a short user name that does not contain links to other web sites or identify real people
  15. Please do not solicit funds
  16. If you use any abbreviation such as Failure To Register (FTR), or any others, the first time you use it please expand it for new people to better understand.
  17. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
  18. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  

Inline Feedbacks
View all comments

Fantastic! Thank you for the rundown. It feels like this house of cards is finally starting to collapse with all the rulings across the nation as well as ALI’s full backing. Maybe someday soon – really soon – this will all end for those that have served their time.

WHOOO HOOOO!!! WAY TO GO LEGAL TEAM!!! Score one for Justice! Every victory, in every case, in every court of law is another nail in the coffin of the abomination. You folks just added a great big one!

Thank you all who helped make this moment, and all the moments that proceeded this, and all the moments yet to come, possible! May all that is good and true bless you and keep you well.

Praise God!!!!!!!! Thanks belong also to PLF and ACSOL for their diligence in such a huge win!!
Let us all hope this will become nationwide!!

A great leap in the right direction and kudos to Janice and the legal team for their passion, perseverance and perspective!!! Well done!

Thank you PLF, Thank you ACOL, You guy’s are a blessing to so many, men, woman, and Family’s, who face this awful SORNA that holds back so many dreams you guys really do make a differance. I am in Missouri and these victory’s you guys get in Ca. Will one day roll accross the Nation and crush S.O.R.N.A
Thanks Again,

Hoping this will be vacated nationwide as it violates our constitutional rights.

Well, I am pleasantly surprised and very glad to be wrong in my assessment of why they did not include oral arguments. Way to go PLF hopefully this is just the beginning of the end of this nightmare called SORNA.

Reading this court ruling was a breath of fresh air. Thank you PLF and ACOL for working so hard to restore some sanity in the legal system. The SORNA beast may yet one day die as it is relentlessly attacked and starved. Here’s looking forward to a brighter future…for all of us.

What a fantastic piece of news to start off this year! Yeah, I know we’re halfway past the month but it’s still January! Thank you everyone that has worked hard on this – you are GREAT PEOPLE!

As I recently stated: THIS JUDGE GETS IT! I’m very encouraged! Thank you Janice, ACSOL, PLF, and everyone else involved.

This is wonderful progress! The federal government’s ambitions to limit the rights of individuals in individual states – which clearly have sole discretion in administering those laws – is being beaten back. The states are bad enough, as we all know, but it’s clear that the feds want to limit the effect of any reforms which are bubbling up from within the states. They must be frustrated in that effort but I’m disappointed that the non-delegation issues were not taken up by this judge. That’s now the thing to watch.

Thanks for the Macro view. The Macro view reveals a significant win DoJ transgressions upon due process and first amendment rights.

As for separations of powers, there are conflicting decisions. Gundy is for the DoJ, but the EPA lost a case too. Here’s a quote from Chief Justice Roberts on the EPA case:

——– quote ————
In “certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there,” Roberts writes. “To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”

—— end quote ——–

Are there any other  SORNA rule is now unenforceable in California ?

THANK YOU. I am in Illinois and teared up reading the judge’s words. Finally a reasonable human being addressing this situation. We are all forever grateful for the hard work and dedication of PLF and ACSOL. Bless you all.

`Question?? Does this mean we do not have to give travel notices??

Now that PLF has issued its press release, ACSOL can make statements regarding the court’s decision issued on Friday. We are grateful to PLF and attorney Caleb Kruckenberg for devoting all necessary resources to this case. It is our understanding that PLF is ready, willing and able to take this case all of the way to the U.S. Supreme Court. They are seeking a decision from that court regarding the nondelegation doctrine. ACSOL is seeking a way to protect registrants and their families. We will continue to work together to meet both goals.

I’m confused as to how this comes up. If your record has been expunged, how would they know that you didn’t register?

1203.4 was not interpreted correctly by PLF judge, imo.

From PC 1203.4:

However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.

From on what 1203.4 will do.

  1. Result in a new entry in the court record showing the dismissal of the case;
  2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
  3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.

The PLF judge says DOJ is trying to prove an impossibility if a CA defendant who no longer registers cannot register in CA b/c CA courts will not recognize that individual to register.

Similarly, if a CA defendant who earned a 1203.4 cannot have the conviction used against them in court if forced to testify they were convicted of a crime, provided there is no subsequent offense. It is impossible to prove a 1203.4 recipient is convicted in court because CA law states specifically no one can use the conviction to impeach you. The PLF judge stated that all 1203.4 recipients are convicts to impeach them in court as witnesses in John Does 1, 2, and 3!

IMO, the PLF judge neglected to understand that dismissed case only becomes a conviction “when there is a subsequent prosecution” and not before it. The PLF judge is breaking CA law right in front of us in this decision.

What an absolute statement of a victory!

“The court also found the rule’s requirement that registrants disclose their internet usernames likely violated the First Amendment by making it impossible for them to protest anonymously on issues of public concern, like the DOJ rule.”

If what you are protesting is truth, then why be anonymous? I have no problem disclosing my internet IDs an protesting in the open with the state of Wisconsin and the people who run their DOC. In fact, I hope those criminals and clowns read the stuff I write about them on my twitter account. I’ve been doing it for months, and they know they’re powerless to do anything about it. I often challenge anyone at the WI DOC to come up with a reason for releasing violent thugs into the community without an ankle bracelet, while forcing others to have to wear one for offenses involving no contact or communication with a victim. I give them a chance to explain how their ‘protecting the children’ of Wisconsin by requiring former residents to update their info half way around the world. Don’t ever let these clowns bully you into not exercising your free speech. Peace (except to all the haters)

James Brown

You get the feeling that California should be included as a Schengen country! People are much safer here than most other states. Still have pockets of insanity, but getting better.

Be sure to send a thank you to the PLF on their website.