A lawsuit was filed today in federal district court challenging an ordinance recently adopted by the City of
Grover Beach. The ordinance prohibits California sex offenders (“registrants”) from living within 2,000 feet of any school, park, or day care center. This is the first lawsuit to be filed challenging a city’s residency restrictions after the California Supreme Court’s decision which declared such restrictions unconstitutional.
Civil rights attorney Janice Bellucci filed the lawsuit on behalf of Frank Lindsay, who has resided in Grover Beach for 18 years. According to Bellucci, the city’s residency restrictions effectively “banish” registrants from Grover Beach and violate the First, Fifth, and Fourteenth Amendments, the Ex Post Facto Clause of the United States Constitution.
Plaintiff Lindsay is also the victim of a violent vigilante attack in 2010 at his Grover Beach home during which he suffered serious wounds. Due to that attack, Lindsay desires to move from his current residence and establish a new residence in Grover Beach.
In the lawsuit, Bellucci states that the ordinance imposes burdens on the families of registrants, does not protect children, fails to provide sufficient notice to registrants, and is “a politically motivated act… in response to popular sentiments, based upon misinformation, which seeks retribution against ‘a socially outcast minority.’”
The lawsuit states that, of the land parcels in Grover Beach that are not included in the residency restrictions (about three percent of the city), “well over half of that land is zoned ‘Retail Commercial,’ ‘Open Space,’ ‘Urban Reserve,’ or some other non-residential use” leaving registrants with very few, if any, locations in which to reside. Combined with landlords’ reluctance to house registrants, many would go homeless. According to findings of the California Sex Offender Management Board (CASOMB), homeless registrants pose a greater risk and utilize more law enforcement resources than registrants with residences and employment.
Penalties for a single violation of the new Grover Beach law include “a misdemeanor punishable by a fine of up to $1,000 or by imprisonment for up to one year or both” and additional offenses – one-per-day – if a registrant has not relocated after thirty days of notification.
To justify the new restrictions, the Grover Beach City Council relied upon false information including that “sex offenders have recidivism rates as high as forty-five percent.” This information is inconsistent with state and federal government statistics which state that registrants on parole re-offend at a rate of only 1.8% and 5.3% overall.
A recently released CASOMB report cites Dr. Karl Hanson, the preeminent researcher of sex offenses, stating that a registered citizen who has not re-offended in 17 years is no more likely to commit a sex offense than someone who has never been convicted of a sex offense. In Lindsay’s case, that time period has expired.
The California Supreme Court recently decided that residency restrictions could not be applied to all registered citizen on parole because their blanket application violated the U.S. Constitution. Specifically, the Court ruled that residency restrictions may not be imposed in a manner that deprives registrants of their liberty interests, including the right to be free from arbitrary, oppressive, and unreasonable laws that bear no rational relationship to the state’s goal of protecting residents. (Taylor, 60 Cal. 4th 1019, 1042)
Subsequent to the Court’s decision, the County of Riverside as well as the Cities of Downey and El Monte have begun the repeal of their residency restrictions.
Related Media
Lawsuit Filed against Grover Beach for City Ordinance – keyt
Grover Beach sued for sex offender restrictions – Santa Maria Times
Finally… the venue of the person in which it first started…FRANK’S HOME! Congratulations.
In addition, by involving the Northern District Court, CA RSOL probably has the unique distinction of having different cases pending in all four California Federal Circuit courts at the same time, with not a loss in the bunch. Double Congratulations!
Here is the man who continues to take one for the team – this time in his own home town.
http://www.sanluisobispo.com/2011/05/02/1585455/man-gets-13-years-in-prison-for.html
I have met Frank Lindsay – and am honored to have done so. Hey Frank, come live next to me any day!
All the best wishes to Janice and Frank. Let us all hope & pray for a clear, direct, unequivocal ruling by this Federal court stating that residency restrictions are unconstitutional. Unconstitutional!! Period!
Is there a case number..I would like to read it….is there anyway to link that lawsuit document to read..?…thank you.
First and foremost, I’m glad he is okay. In addition, he certainly lives in a nice area, probably pays a lot of taxes, paid his debt to society and yet people are continuing to punish him. I hope you win BIG TIME!!!
Is it true that frank sold over 1.75 million copies of his book? I’m just curious because that is what it seems to state on amazon. If so great because he truely deserves to be compensated and honored as a true patriot and real soldier for the cause. I don’t know if I could be able to put myself out there like he does. It takes great strength and hopefully he is finaincialy secure so as not needing to ever work again. Once again THANK YOU FRANK your a true American.
Go get them !!
Thanks , Janice & Frank
Frank is one BRAVE soul! All us 290’s owe our freedom to him. I hope he can win one that will actually pay compensatory damages.
I don’t understand why frank hasn’t filed for injunction relief based on the fact that there is no rational basis to require him to register anymore he is the perfect candidate to challenge the registry since he is such an upstanding citizen and has been arrest free for over thirty years there is no rational basis to continue to subject him to this unreasonable, arbitrary and oppressive official action. I don’t see how a court could conclude otherwise. Am I missing something.
Our client, who had been convicted of statutory rape and indecent assault and battery on a person under 14 over twenty years ago, came to us having been classified as a Level Two offender in 2003, over a decade ago. Representing our client on a petition for reclassification, we argued that our client currently poses no cognizable risk of re-offense and should be relieved of the obligation to register. SORB agreed that our client poses no cognizable risk of re-offense, but nonetheless issued a Level One classification, claiming the statute bars complete relief for those convicted of a sex offense involving a child. We argued before the Superior Court that where a petitioner poses no cognizable risk of re-offense the petitioner must be relieved regardless of the offense of conviction. Recognizing the likelihood of success on the merits of that argument, the Superior Court issued a preliminary injunction ordering the SORB to grant relief from registration throughout the remainder of the pending Superior Court proceedings.
This is such a plausible and obvious argument that I am dumbfounded that CARSOL and the ACLU have not persued this in court. Please someone explain why it hasn’t happened.
Yes if successful it could be used by the majority of rso in CA. It seems that no reasonable mind could conclude that people such as Frank and thousands of others pose any cognizable risk for reoffense therefore they can not be subjected to this arbitrary oppressive official action. With all the current data and reports from the gov. Own agencies stating that registration laws are useless and even counterproductive and the fact that all these laws where enacted using false statistics exaggerated language no reasonable person could conclude that almost all rso don’t need to be subjected to these draconian laws that don’t achieve any legislative objectives.
If articulated correctly this type of argument can force the court to create new precedence and force the court to disregard earlier precedence that was set on false statistics and misinformation. It could change the tables for future litigation concerning any and all sex offender laws.
Sorry didn’t mean to imply that I was the attorney in that case. I copy and pasted from an attorney site.
Well if no .one is going to help me I will continue on my own. Here is just a beginning of adding case law a precedence in my motion.
The Constitution’s provision that “[n]o state shall . . . deprive any person of life, liberty, or property without due process of law,” U.S. Const. amend. XIV, § 1, guarantees more than just fair process; it “cover[s] a substantive sphere as well, ‘barring certain government actions regardless of the fairness of the procedures used to implement them,'” Cnty. of Sacramento v. Lewis,523 U.S. 833, 840 (1998) (quoting Daniels v. Williams,474 U.S. 327, 331 (1986)). The core of the Due Process Clause, therefore, is the protection against arbitrary governmental action. Id. at 845. Substantive due process in particular protects against the arbitrary infringement of “fundamental rights that are so ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed.'” Doe v. Moore,410 F.3d 1337, 1343 (11th Cir. 2005) (quoting Palko v. Connecticut,302 U.S. 319, 325-26 (1937), overruled on other grounds by Benton v. Maryland,395 U.S. 784 (1969)).
The State’s continuous requirement for me to register as a sex offender and continuously subjecting me to public notification on the Megan’s law website violates my fundamental right to liberty and “to be let alone. I have a right even as a convicted sex offender who has been released from prison and not serving a parole or probationary term to be free from registration and public notification for the rest of my life absent a demonstration that I am likely to reoffend.
Various members of the Supreme Court have voiced their views that the government has a very limited ability to infringe on one’s liberty. Louis Brandeis, before he became a Justice, wrote in a law review article,
[T]here came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, – the right to be let alone; the right to liberty secures the exercise of extensive civil privileges . . . .
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy,4 Harv. L. Rev. 193, 193 (1890). After he joined the Supreme Court, Justice Brandeis noted that the Founding Fathers
recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.
Olmstead v. United States,277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled in part by Berger v. New York,388 U.S. 41 (1967) and Katz v. United States,389 U.S. 347 (1967).
Additionally, in an oft-quoted dissent in Poe v. Ullman,367 U.S. 497 (1961), Justice Harlan wrote,
[T]he full scope of liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.
Id. at 543 (Harlan, J., dissenting).[4] These words “eloquently” describe the Court’s role in the substantive due process inquiry. Moore v. City of East Cleveland,431 U.S. 494, 501 (1977).
The court has previously relied on false statistics and misinformation presented in previous litigation on sex offender registration and notification laws that stated there was a need for the laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. I want this court to rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following.
This is going to be the hardest to refute.
Numerous courts, including this Court, have routinely held that convicted sex offenders do not have a fundamental liberty interest to be free from registration requirements. E.g., Doe v. Mich. Dep’t of State Police,490 F.3d 491, 500 (6th Cir. 2007); Doe v. Tandeske,361 F.3d 594, 597 (9th Cir. 2004); Ark. Dep’t of Corr. v. Bailey, 247 S.W.3d 851, 861 (Ark. 2007); State v. Germane,971 A.2d 555, 584 (R.I. 2009); Hendrix v. Taylor,353 S.C. 542, 552, 579 S.E.2d 320, 325 (2003); McCabe v. Commonwealth,650 S.E.2d 508, 512 (Va. 2007).
Although I am not arguing that have have a fundamental interest to to be free from registration directly but am arguing that I have a fundamental interest to be free from the arbitrary application of it.I think that might be the avenue to persue.
This following is exactly what can be and needs to be refuted with current facts and reports.
The court then applied the rational basis test and held that the Supreme Court’s determination in Smith v. Doe, that the Alaska statute served a “`legitimate nonpunitive purpose,'” and that the categories of crimes and “`corresponding length of the reporting requirement'” were “`reasonably related to the danger of recidivism'” and were “`consistent with the regulatory objective,'” compelled the conclusion that the reporting requirement was valid, although the petitioners did “possess liberty interests that are indeed important.” Tandeske, 361 F.3d at 597 (quoting Smith, 538 U.S. at 102-03, 123 S.Ct. 1140).
The following can be applied to all rso.
Pennsylvania’s highest court recently ruled that lifetime registration of juveniles under the Pennsylvania Sex Offender Registration and Notification Act (SORNA) is unconstitutional.
In affirming the ruling of York County Senior Judge John C. Uhler, the Supreme Court on December 29, 2014 held that SORNA’s registration requirementsviolate juvenile offenders’ due process rights by utilizing the irrebuttable presumption that all juvenile offenders “pose a high risk of committing additional sexual offenses.”
Grounding its opinion in the due process guarantee of the Fourteenth Amendment and key provisions of Pennsylvania’s Constitution, Justice Max Baer, writing for the majority, ruled that the juveniles’ constitutionally-protected right to reputation is encroached upon by an irrebuttable presumption of future offending that is not universally true and where a reasonable alternative means exists for determining the presumed fact.
While adult sexual offenders have a high likelihood of reoffense, juvenile sexual offenders exhibit low levels of recidivism.
“While adult sexual offenders have a high likelihood of reoffense, juvenile sexual offenders exhibit low levels of recidivism… many of those who commit sexual offenses as juveniles do so as a result of impulsivity and sexual curiosity. [T]he vast majority of youth are unlikely to recidivate,” wrote Justice Baer. Relying on both state and national data to support its holding, the Court also noted that this research is corroborated by recent U.S. Supreme Court precedents, finding that children are distinctly different from adults. The Court reasoned that in the area of sexual offenses “many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminalist.”
The Court determined that the juveniles’ right to reputation is protected by the Pennsylvania Constitution and designation as a juvenile sex offender impinges that right. As the majority observed, “[T]he common view of registered sexual offenders is that they are particularly dangerous and more likely to reoffend than other criminals,” and that “SORNA explicitly declares that sexual offenders, including juvenile offenders ‘pose a high risk of committing additional sexual offenses.’” In a single dissent, Justice Correale Stevens stated that “SORNA does not per se violate a juvenile’s constitutionally protected interest in his or her reputation, for SORNA does not speak to an individual’s likeliness to reoffend.”
The Court found that the label also negatively affects children’s “ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate,” noting the onerous reporting requirements necessary for youth on the registry. Although the law provides for the child to petition for removal from the registry after twenty-five years, the Court held that is not a “meaningful opportunity” to challenge the presumption.
Next, the Court held that the presumption that sexual offenders pose a high risk recidivating is not “universally true” when applied to juvenile offenders. The Court held that this violated due process by establishing an irrebuttable presumption about future dangerousness. The Court relied upon prior holdings, including a Pennsylvania Commonwealth Court case in which Juvenile Law Center successfully challenged the automatic exclusion of juveniles returning from delinquency placement from regular public school classrooms. In D.C. v. School District of Philadelphia, the Commonwealth Court agreed that the students’ due process rights were violated absent a meaningful opportunity to challenge the presumption that students who returned from delinquency placement posed a threat to the traditional classroom setting.
The Court also reasoned that SORNA contradicts the Juvenile Act’s specified purpose. Specifically, Pennsylvania courts are “mandated to always be watchful of juveniles’ rehabilitation, while also providing accountability to the victim and society,” but “SORNA’s automatic registration removes the juvenile judges’ ability to consider the rehabilitative prospects of individual juvenile sexual offenders.”
Finally, the Court determined that a reasonable alternative means exists to ascertain whether a child poses a high risk of recidivism. Already explicit in SORNA, youth adjudicated delinquent of specified crimes who are committedto an institution nearing their twentieth birthday must be individually assessed to determine whether continued commitment is necessary. The Court also notes that the Oklahoma legislature has a risk evaluation model for juveniles, which requires the district attorney to petition for a specific juvenile to be included in the registry, an independent evaluation, and then a court determination of whether the child must register.
Grounding its opinion in the due process guarantee of the Fourteenth Amendment and key provisions of Pennsylvania’s Constitution, Justice Max Baer, writing for the majority, ruled that the juveniles’ constitutionally-protected right to reputation is encroached upon by an irrebuttable presumption of future offending that is not universally true and where a reasonable alternative means exists for determining the presumed fact.
Surely an adult has the same constitutionaly protected right to reputation