Note: The beginning of this column was written on Friday, October 27. The end of this column was written on Monday, October 30.
The U.S. District Court, Eastern District of Missouri, got it right today when they granted our motion for a Temporary Restraining Order (TRO). The court looked at the facts presented to them and asked the right questions. In doing so, the court shifted the burden of proof to the government. That is, the court required the government to provide solid evidence that a sign on the front door of a registrant’s home would protect children on Halloween.
Perhaps to a non-lawyer, the importance of shifting a burden of proof is not immediately apparent. Because I am a lawyer, I hope to explain the importance in the next paragraph.
When a party has the burden of proof, he/she/they must provide evidence that something is so. That evidence can be in one of several forms such as written or oral testimony, the production of objects or a subject matter expert. The other party must then refute that evidence which in most cases is much easier to do.
So in the court’s decision today to grant a TRO, the court acknowledged that the government had a “compelling interest” to protect children on Halloween. The court did not accept, however, the government’s assertion that signs on the front doors of registrants’ homes would achieve that purpose. In addition, the court noted that the Halloween signs could cause “irreparable injury” to registrants. That is why when the court balanced the interests of both parties (government and registrants), it determined that the government lost because it had failed to show that the Halloween signs will increase public safety and would place registrants and their families at significant risk of harm.
The court also got it right when it decided to wait more than a week after briefs had been filed in order to issue its decision granting the TRO. That is because today is the last day of the week and most media outlets had already filed their stories, then gone home for the weekend. It’s also because it did not give the government enough time to appeal the court’s decision to grant the TRO before Halloween. The end result is that registrants in Missouri are not required to put a sign on the front door of their home this year.
What about next year? The TRO that has been granted lasts only 14 days. Therefore, the court has scheduled a hearing on November 9 to discuss a possible Preliminary Injunction which could last up to a year, possibly protecting registrants in Missouri for Halloween in 2024. And if a Preliminary Injunction is granted, we can next request a Permanent Injunction.
What’s wrong with the court’s decision? First, the court referred to individuals required to register as “sex offenders.” That is a derogatory term and must be avoided. And it’s a term that cannot be found in our briefing documents, but only the documents filed by the Attorney General.
Second, the court cited cases that we know are based upon fiction, not facts. For example, the court stated that “It has been recognized that ‘sex offenders are a serious threat in this Nation.’” The court also stated that “it is common sense…..that young ‘trick-or-treaters’ are indeed vulnerable to child predators on Halloween.”
Given that we will be briefing this court in the future, we will do our best to highlight these errors and provide the court with multiple studies and reports that cite facts, not myths, about individuals required to register. With luck, the court will learn from its mistakes and correct them in future decisions.
The end of this column was written on Monday, October 30:
The district court’s decision to grant a TRO was upheld today by the 8th Circuit Court of Appeals after a flurry of briefs filed by both the Attorney General of Missouri and the plaintiff. All together the court of appeals had more than 100 pages of briefs to read, however, the court’s decision was issued only an hour after the last brief, a 12-page document, that was filed by the Attorney General. Without disclosing their reason for doing so, the court of appeals denied in a two-sentence decision the Attorney General’s request to overturn the TRO.
We accept this victory with grace knowing that justice has been done in Missouri. Registrants in that state are not required to post a sign on the front door of their homes this year. What’s next you ask? We’re now looking for other states that currently require Halloween signs to be posted so that we can educate courts in those states as well.