Polygraph Requirement Violates Registrant’s 5th Amendment Rights

In September of 2015 SOSEN printed an article about parole and probation /blog/2015/09/01/probation-and-parole-the-real-story.html. Within that article the author pointed out some of the myths that parole and probation (PNP) and sometimes even the court uses to increase the loss of civil liberties beyond their constitutionally legal boundaries. It pointed out problems probation and even the courts have when placing restrictions on a person’s civil liberties.  Restrictions placed on a person that are conditions of PNP have to be related to the crime that has put the person under the control of the judicial system. While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government the said agency must show proof, not mere conjecture, for the need of a requirement. The court cannot delegate it’s power to fix terms and conditions of probation. ( Whitehead v. United States, 155 F2d 460 (CA6 Tenn 1946). Now another needed court decision has been placed in action by a Federal Court. It has been a long-standing rule that polygraph’s may not be used within the court system. Now the courts have pointed out that parole and probation in conjunction with treatment providers have been stepping outside their legal and constitutional boundaries once again. This decision should place all parole and probation officers on notice that there will be lawsuits if they continue these type of unconstitutional practices.

Posted by fac-admin on May 10, 2016 in Articles
http://floridaactioncommittee.org/ca-polygraph-requirement-violates-registrants-5th-amendment-rights/

The 10th Circuit Court of Appeals issued a decision today stating that a registrant’s Fifth Amendment right to remain silent was violated when the government sought to return him to prison because he refused to answer questions regarding his sexual history during a polygraph exam.

The questions the registrant refused to answer are (1) after the age of 18, did you engage in sexual activity with anyone under the age of 15, (2) have you had sexual contact with a family member or relative, (3) have you ever physically forced or threatened anyone to engage in sexual conduct with you and (4) have you ever had sexual contact with someone who was physically asleep or unconscious?

The court noted that the registrant’s affirmative answer to any one of these questions could have been interpreted as a confession of illegal conduct.  The court also noted that the government’s threat to revoke the registrant’s probation for properly invoking his Fifth Amendment privilege is the type of compulsion the government may not impose.  The court further noted that an individual is compelled “as soon as the government threatens him with a substantial penalty”.

In the case, the registrant was required to successfully complete a sex offender treatment program mandated by the Colorado Sex Offender Management Board.  The registrant was required to sign an agreement that included a requirement to take a sexual history polygraph and allowed his treatment provider to report any sexual crimes discovered during the polygraph exam to appropriate authorities.

When the registrant refused to answer sexual history questions during his polygraph exam, the treatment provider expelled him from the mandatory treatment program.  This expulsion, in turn, subjected the registrant to potential revocation of his supervised release and a prison sentence.

In its decision, the court noted that the terms of the sex offender treatment agreement were non-negotiable.  The court also noted that its decision was based in part upon the registrant affirmatively asserted his Fifth Amendment right to remain silent during his polygraph exam.

As a result of this decision, the registrant is not required to answer questions regarding his sexual history during a polygraph exam.

SOURCE
You can also read the decision here: http://floridaactioncommittee.org/wp-content/uploads/2016/05/Polygraphs-violate-5th-Amendment.pdf

With this decision the treatment provider who reports information to parole officers, or removes people from their programs because they stand for their constitutional rights could be charged with a violation of federal law USC title 18 section 241-245 “conspiracy against rights” denial of a person’s constitutional rights on any grounds outside of the courtroom, (even the judiciary branch has constitutional restraints the punishments that they deal out). With this decision it may be that it opens the door for anyone who has been expelled from treatment and had their probation or parole violated. Because of that may have grounds to sue the treatment provider and the PO’s, and even bring criminal charges against them under title 18, remember they do not have qualified immunity if they violate constitutional standards /blog/2016/04/19/all-government-officials-can-be-sued-for-actions-outside-their-authority.html

7 comments for “Polygraph Requirement Violates Registrant’s 5th Amendment Rights

  1. Sharon
    June 5, 2016 at 3:40 pm

    Once expelled from the treatment program, this man really had no choice but to try to sue once he stood up for his rights and good for him!

    I read all the time about people who are forced to take the polygraph with all sorts of threats to them if they don’t take it VS: being able to do certain things they want to do if they take the polygraph test and pass it. Most people feel that they cannot afford to say no. It’s a sad, sad situation.

    Keep getting the word out.

    • Will Crump
      August 20, 2016 at 8:41 pm

      This new ruling by the 10th Circuit Court of Appeals adds to the list of rulings in favor of the offender. The first really big decision I know of was decided in the 9th Circuit viz.: United States v. Lawrence Antelope. Also look at Dansby v. Texas, another recent decision. All of these rulings state that sexual history polygraphs that ask questions regarding previously undisclosed victims and then subject the offender to violations of supervision for proper invocation of 5th Amendment privilege. (These penalties come in the form of “non-compliance with treatment plan” or “refusing polygraph examination”) All of these decisions assert that offenders should be protected with full-use immunity that is consistent with Kastigar v. United States. This is a convincing ruling that could have implications well outside of Colorado.

      • Will Crump
        August 20, 2016 at 8:42 pm

        This new ruling by the 10th Circuit Court of Appeals adds to the list of rulings in favor of the offender. The first really big decision I know of was decided in the 9th Circuit viz.: United States v. Lawrence Antelope. Also look at Dansby v. Texas, another recent decision. All of these rulings state that sexual history polygraphs that ask questions regarding previously undisclosed victims and then subject the offender to violations of supervision for proper invocation of 5th Amendment privilege are unconstitutional. (These penalties come in the form of “non-compliance with treatment plan” or “refusing polygraph examination”) All of these decisions assert that offenders should be protected with full-use immunity that is consistent with Kastigar v. United States. This is a convincing ruling that could have implications well outside of Colorado.

        • Will Crump
          August 20, 2016 at 8:47 pm

          I hope this ruling, along with the others I’ve listed can be cumulative so as to spell the death knell for all of these treatment/polygraph schemes that seek to circumvent the offenders’ constitutional rights. It’s as if states try to create a legal catch-22 for sexual offenders and that is outrageous and patently illegal.

          (1) United States v. Antelope
          (2) Dansby v. Texas
          (3) People v. Guatney
          (4) People v. Roberson

  2. mike
    June 6, 2016 at 1:21 pm

    mr. bassler or mr. wolf would you be interested in assisting me with completing and or arguing the issues and whatever other issues you suggest with the following motion. I have asked ACLU,RSOL,W.A.R.,PUBLIC DEFENDERS, and cannot get any help.

    thanks for your time.
    Michael

  3. mike
    June 6, 2016 at 1:22 pm

    This court has jurisdiction because ________________________________________________________________

    I the plaintiff ______________________do hereby bring forth this motion for Declaratory and/or Injunction relief.

    Introduction.

    This motion is being brought forth as a as applied challenge to the constitutionality of the sex offender registration and notification laws or Megan’s law (CA Penal Code § 290, Sex Offender Registration Act) as applied to me.

    I am the plaintiff in this case. I am a United States citizen who resides in Sacramento, CA.
    I am a non-violent, non-contact first time ex-offender from a incident that occurred over a decade ago. There was never any physical contact between myself and any victim. I completed my prison sentence and parole supervision without any incidents or violations despite all the obstacles and conditions of parole that were placed on me because of the sex offender designation. I have been arrest free and a completely law abiding citizen since my release. I do not pose any cognizable risk to the public. I was already severely punished for my offense and have been subjected to intensive monitoring and supervision while on parole. I should not be subjected to these registration and notification laws that involve consequences that are severely detrimental to so many aspects of my life.

    Issues.

    (1) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected liberty interest in my reputation which is protected under the federal due process clause in the Fifth and Fourteenth Amendment of the United States Constitution and the California Constitution’s Article I, Section 7 on “due process, equal protection and the right to travel” with an irrefutable presumption of future offending that is universally untrue and which provides no meaningful process to determine such facts.

    (2) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violates the equal protection clause of the Fourteenth amendment of the United States Constitution and the California Constitution’s Article I, Section 7 on “due process, equal protection and the right to travel”

    (3) Sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected liberty interests by infringing on my freedom of movement and my freedom of association which is protected under the Fifth and Fourteenth amendment of the United States Constitution and the California Constitution’s Article I, Section 7 on “due process, equal protection and the right to travel”

    (4) Sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected right to liberty and to be free from unreasonable, arbitrary and oppressive official actions, which is protected under the Fifth and Fourteenth amendment of the United States Constitution and the California Constitution’s Article I, Section 7 on “due process, equal protection and the right to travel”

    (5) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected right to procedural due process which is protected under the federal due process clause in the Fifth and Fourteenth Amendment of the United States Constitution and the California Constitution’s Article I, Section 7 on “due process, equal protection and the right to travel” with an irrefutable presumption of future offending that is universally untrue and which provides no meaningful process to determine such facts.

    Facts.

    (1) My constitutionally-protected right to reputation is encroached upon by an irrefutable presumption of future offending that is universally untrue.

    These laws effectively brand me a “sex offender”, i.e., a public danger, for life. See Doe v. Pataki, 3 F. Supp. 2d 456, 467 (S.D.N.Y. 1998) [here in after Pataki III]; Doe v. Attorney General, 686 N.E.2d 1007, 1013 (Mass. 1997) [hereinafter Doe II];see also Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4 (8th Cir. 1985), cert. denied, 475 U.S. 1014 (1986).

    Specifically, the public notification provisions imply that I am potentially dangerous, thereby undermining my reputation and standing in the community. Doe v. Poritz, 662 A.2d 367, 419 (N.J. 1995); cf. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (noting that “[o]ne need only look to the increasingly popular ‘Megan’s laws’, whereby states require sex offenders to register with law enforcement officials, who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender”). Indeed, public notification that I am a convicted sex offender implicitly announces that, in the eyes of the State, I present a risk of committing another sex offense. Doe II, 686 N.E.2d at 144.

    The sex offender registration and notification laws violate my liberty interest in my reputation by making public my current personal address and current photo which is not public information and which puts me in physical harm every time I enter or leave my home and even while I’m in my home I can not feel safe. This information is also being publicly distributed on the Internet from privately owned and operated websites such as homefacts.com. That information being made public puts not only myself but my families lives and property in danger of physical harm, harassment and vandalism. These claims are not hypothetical situations or exaggerations, these claims are facts and the possibilities of these incidents occurring are real and in fact some have already occurred in my case. The Megan’s law website also displays my criminal record which is only available to authorized individuals who meet certain criteria and have a need to know basis, not to the general public at a click of a computer mouse.
    These laws affect and limit employment as very few employers will hire me simply because I am on a sex offender website that is accessible to the general public. These laws also restrict or limit my ability to travel for work or to be employed by local, state or federal agencies and severely affects my ability to obtain a business licence or business loans. They also limit what professions and careers that I can pursue and affect my personal and professional relationships in a severely negative way because of my inclusion on the sex offender registry and the publicly accessible Megan’s law website. These issues are not minor inconveniences but are major obstacles to my financial stability and to my fundamental right to life and liberty for me and my family. It also affects housing because very few property owners or property management organizations will rent to me for fear of vandalism and or the loss of present or potential tenants because of the accessibility to the registry by the general public. I am reluctant to move or purchase property for fear that I may violate some local ordinance or be forced to move because of some new law or ordinance being enacted and applied retroactively. I am also reluctant to move or purchase property for fear that I will be subjected to even worse harassment and vandalism by the community in which I move then I have already endured in my present location. These laws create real fears of being the victim of vigilante attacks, harassment and vandalism which forces me limit my activities to avoid being outside of my residence for fear of being harmed or harassed. I have had to call the police twice due to my family and I being physically threatened in one instance and having threats and profanity written all over our porch on the second incident simply because my information is on the Megan’s law website. My family and I have had our vehicles vandalized and our life’s threatened because I am subject to these registration and public notification laws. These laws cause me severe psychosocial stresses that cause major mental disorders such as major depression and anxiety disorders which can and do affect my ability to perform job duties or perform normal daily activities and to reintegrate into society. Once again these are not hypothetical, exaggerated incidents that have happened to other people but personal experiences in my case. I cannot move forward or successively reintegrate back into society because of all the collateral consequences caused by the registration and public notification laws.These collateral consequences will continue to cause me irreparable damage to my liberty interest as long as I am subjected to these registration and notification laws.

    I have a liberty interest protected by the Constitution that entitles me to procedural due process because of: (1) the public disclosure of accumulated and synthesized personal information that would not otherwise be easily available; (2) the harm to my personal and professional life; (3) the foreseeable harm to my reputation; and (4) the statutory branding of me as a public danger, i.e., as a sex offender. I note that the “interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber.” Noble, 964 P.2d at 995.

    The Supreme Court has fed the fear of frightening high sex offender recidivism rates that has proven to be universally untrue. It’s become the “go to” source that courts and politicians rely upon for “facts” about sex offender recidivism rates that aren’t true. Its endorsement has transformed random opinions by self-interested non-experts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed. The Court’s casual approach to the facts of sex offender re-offense rates is far more frightening than the rates themselves, and it’s high time for correction.

    The sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.

    I am asking this court to apply the actual facts submitted in reports from the leading authorities and credible experts in the fields such as the following.

    California Sex Offender Management Board (CASOMB)

    Sex offender recidivism rate for a new sex offense is 0.8% (page 30)

    The full report is available online at

    http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf

    .
    Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013

    Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up
    The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates.

    The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf

    Bureau of Justice Statistics
    5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE
    WASHINGTON, D.C.

    Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today.

    The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm

    Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy.

    A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7%

    Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf

    Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009.

    The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05%

    Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf

    These conclusions are virtually the same in the majority of reports on this subject from multiple government agencies and throughout the academic community.

    (2) The sex offender registration and notification laws are discriminating irrationally among classes of ex-offenders which violates the equal protection clauses.

    All sex offenders fall into the classification of felons and felons are a group or classification. The question is, are sex offenders being treated the same as all other felons, do other felons have to register or have the community notified of their presence after they have completed their sentence, are they being denied state and government services, are other felons restricted where they can live, work and recreate, do other felons face criminal prosecution, a felony offense which is punishable by three or more years in state prison, not for engaging in any type of criminal conduct but simply for not providing personal information to the government within a certain time frame? The answer is, no they are not. The courts have found that a distinction among members of the class of offenders is irrational regardless of the importance of public safety consideration underlying the regulations or relevance of prior convictions simply discerning any regulatory reason, however plausible, will not serve to satisfy the rational basis requirement of equal protection; relevant inquiry more properly focuses on whether the means utilized to carry out the regulatory purpose substantially furthers that end.

    These laws do not substantially further the regulatory purpose or the legislative objectives of increasing public safety, reducing sexual abuse or preventing recidivism as evidenced in the following reports and actual facts from the leading authorities on this subject.

    California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13)

    Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety.

    The full report is available online at. http://www.casomb.org/index.cfm?pid=231

    National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America.

    The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual re offending. Neither has it had an impact on the type of sexual re offense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses.

    The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx?ID=247350

    The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483

    Conclusion.
    The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of ineffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates.

    The full report is available online at. http://www.jstor.org/stable/full/10.

    From Justice Policy Institute.
    Estimated cost to implement SORNA
    Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M.

    For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work.

    http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf

    These conclusions are virtually the same in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community.

    (3) The sex offender registration and notification laws violate my right to freedom of movement and freedom of association by severely curtailing my ability to travel both interstate and intrastate and also international travel. With all the different state laws and local ordinances that are in place and the constant introduction of new legislation in the different states and the constantly changing local ordinances in thousands of cities and counties across the country, it makes it virtually impossible for me to travel or visit anywhere in this country without a very real fear and potential for violating one of these laws or ordinances. It is virtually impossible for a person of average intelligence to research, assimilate and abide by all the different state laws and local ordinances that apply to registered sex offenders across the country. I can not visit family or friends without extensive research of local ordinances and state laws and even after extensive research I still fear I could have missed one of these laws or ordinances. I can not attend meetings or protest that occur in places that prohibit registered sex offenders from being present. The laws effectively bar me from attending higher education institutions simply because there are day care centers on most college campuses therefor curtailing my ability to obtain a higher education. The punishments for violating one of these laws or ordinances are severe. The registration and notification laws makes it virtually impossible for me to travel to a multitude of major countries in the world as they are notified by our government of my registration status so therefore I am denied entry. These are not hypothetical situations and are not minor inconveniences of registration but are major violations of my constitutional rights to liberty. These violations will continue to cause me irreparable damage as long as I am subjected to these registration and notification laws.

    (4). The sex offender registration and notification laws violate my right to be free from unreasonable, arbitrary and oppressive official actions. These laws are completely irrational as applied to me in my case since I currently pose no cognizable risk of re offense. Since I am a non-violent, non-contact, first time ex-offender from a incident that occurred over a decade ago there is no rational basis to continue to subject me to these laws that have consequences that destabilize my life, restricts my abilities to reintegrate into society and have been shown to actually increase known risk factors for re-offense while not achieving any legislative objective of preventing sexual abuse, increasing public safety or reducing recidivism. Since these laws have been seen as strictly regulatory in nature and not considered part of the punishment for an offense, there must be some evidence that the regulations actually achieve some legislative objective. These laws were originally designed to give law enforcement a tool to investigate and apprehend sexually violent predators, child abductors/rapist and habitual repeat offenders when such acts have been committed in the community but have since been expanded to the point to make the registration and notification laws useless to law enforcement or the general public. Just because these laws are so popular within the legislature or the public does not mean that there is a rational basis for such laws. With the facts and evidence of all the destabilizing collateral consequences I endure and all the recent research done on this subject there is overwhelming evidence that these laws are completely irrational and counterproductive especially when applied to non-violent, first time offenders such as myself who currently pose no cognizable risk of re-offense.

    (5) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected right to procedural due process with an irrefutable presumption of future offending that is universally untrue and which provides no meaningful process to determine such facts. When “particularly important” interests are involved in a civil proceeding, whether or not physical restraint is threatened, the United States Supreme Court has mandated a clear and convincing evidence standard of proof and stated that, “[n]otwithstanding ‘the state’s “civil labels and good intentions,” ‘ . . . this level of certainty [is deemed] necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ ” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (requiring clear and convincing evidence standard to support termination of parental rights), quoting Addington v. Texas, 441 U.S. 418, 425, 426, 427 (1979) (civil commitment); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization). A registrant’s liberty interest is seriously infringed in the creation of a long-term relationship with the police, in the potential criminal sanctions overshadowing that relationship, and in the stigma of notification – all penalties that are “more substantial than mere loss of money.” Santosky, supra, quoting Addington v. Texas, supra at 424.

    The court also too easily confines the State’s interest to a single dimension. While the primary purpose of the registration statute is to protect the public from sexual predators, the State also has “an interest in ensuring that its classification and notification system is both fair and accurate.” E.B. v. Verniero, supra at 1107. The State has no interest in making erroneous classifications and implementing overbroad registration and notifications. Id. See Doe v. Pataki, supra at (slip op. at 32). Contrary to the court’s conclusion, the burdens on the government are great, without any likely benefit, when it holds hearings for and maintains the registration of thousands of registrants for whom there is no clear evidence that they pose any danger to the public. Requiring the government to assemble and present clear evidence of a sex offender’s dangerousness would ensure that limited adjudicatory and police enforcement resources would be concentrated on those individuals who realistically may pose.threats to young children and other vulnerable populations. As observed in an altogether different context, but oddly apropos of this classification system as well, “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless.” New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring).

    Recently a number of news articles have attempted to use information from a study that said that one in four girls and one in five boys have been sexually abused before the age of 18 as proof of the high re-offense rates for people on the registry and they have used the twisted data mentioned above from the 1997 US Department of Justice study to prove their point, even though that researched conclusion ha been thoroughly debunked.

    First of all the student study on unreported sexual abuse has been called into doubt because of the type questions that were asked and the way that they were asked. They worded the questions on the study to get the answers that they wanted and not the facts or truth. They also biased study by using small numbers of the tested group that were chosen from specific locations that didn’t represent most groups of teenagers.

    But even if the numbers are correct there are a couple of other issue that need to be brought out that are totally being ignored by the yellow journalists that are attempting to make a point by using this information. We now know through multiple studies and lots of number crunching that the re-offense rate for people on the registry is less than 1% in any given year, and that means of the new sex crimes that are committed each year 99% plus are by people that are not on the registry. If there is under-reporting then it also has to follow that particular logical progression and that is if there is a percentage of under-reporting then 99% of those unreported crimes are not done by people on the registry.

    Here is the primary issue that should be pointed out, nowhere in the under-reporting study, or for that matter any accredited study, was there any proof that any portion of the under-reporting was due to people on the registry reoffending. For the media to jump to this conclusion is at the very least biased reporting.

    Therefore attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth.

    Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country.

    Conclusion.

    (1) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act. ) as applied to me, severely violate my fundamental liberty rights to my reputation and to my right to due process.

    (2). The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act. ) violate the equal protection clause.

    (3) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act. ) violate my freedom of movement and freedom of association.

    (4). The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act. ) violate my right to be free from unreasonable, arbitrary and oppressive official actions.

    (5) The sex offender registration and notification laws (CA Penal Code § 290, Sex Offender Registration Act) violate my constitutionally protected right to procedural due process with an irrefutable presumption of future offending that is universally untrue and which provides no meaningful process to determine such facts.

    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).

    Law enforcement already has accessible records of my criminal record, including my DNA, my photograph and my complete set of prints and can easily locate me if they were to implicate me in a crime in the future. That process is the alternative to sex offender registration and notification laws and is the least restrictive measure that is available to the government that is related to the legislative objectives of increasing public safety and preventing recidivism. Furthermore, the government already has a meaningful process to determine if an individual poses a significant risk for re offense before ever releasing the person from custody. It is available in the states civil commitment statues. If a person is found to present a potentially high risk of re offense then that individual is confined under the civil commitment statues until it is determined that they no longer pose a risk to the public.
    It is in the public best interest to grant me this relief as it will increase my ability to reintegrate into society and increase the probability that I will maintain stability in my life and be a law abiding, productive member of society which actually decreases my risk for re-offense even further. It will also allow governmental agencies and law enforcement agencies to re-direct their limited resources to monitor high risk offenders more intensively thereby increasing public safety. It will also save the state tax payer dollars that can be used for policies that have proven to actually be effective.
    These laws will continue to cause me irreparable damage if the court fails to grant me relief.
    No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so.

    Prayer.
    I pray the court grant me Declaratory relief and/or Injunction relief or any other relief the court deems necessary and to enjoin local, state, and federal agencies from requiring me to register as a sex offender and subjecting me to the public notification laws (CA Penal Code § 290, Sex Offender Registration Act. ) .

    I declare under penalty of perjury that the foregoing is true and correct to my knowledge on __________ Signed: _____________________________

    • Will Bassler
      June 7, 2016 at 7:00 am

      I posted your information on SOSENs secure forms (which I would suggest that you join) this is the first response from one of our members.

      Ok, well it is about damn time! Now, we need to get ahold of this individual and get him/her to consider a class action law suit, make sure it isn’t just a writ. He can get recidivism rates from the CDCR website, all their reports are there. As well I can research articles about vandalism and assaults on registered citizens by the public, I know there are cases here I may be able to get on the issue too. Also, needs to include right to redress the government as grounds, and civil rights act of 1968. When you read the discrimination and segregation points of law included in it, it very much applies to us. Also, the state will attempt to claim the supreme court has no authority and they have immunity due to 11th ammendment. However it in itself is unconstitution al as the Constitution specifically empowered the supreme court to settle disputes between the states, federal government, foreign nations and citizens of the states. The 11th ammendment contradicts that premise in an effort by the congress to avert potential lawsuits as even back then the government had become corrupt and would be liable to the people. The whole thing stems on the theory that “the king can do no wrong”, except that is a cintradiction to the declaration of independence and founding if this nation, as it specifically outlines the tyrannies of the king against the colonists. Therefore id the king can do no wrong, this nation should be reverted back to England! The very reason this country exists is because the king can do wrong!!!!

      from Will Bassler one of the main thrusts should be that all the laws across the country are based on the notion of a high re-offense rate there are plenty of studies now to disprove that notion many that have been cited on our front page articles you may have to go back as far as two years to get some of the information off of our front page but it is there I would also add that you need to look at the BANI versus Hawaii case that was before the Hawaiian Supreme Court there are some case sightings in there that you really should add.

      A person’s reputation and standing in the community are a protected liberty interest as described by United States Supreme Court rulings

      The United States Supreme Court has previously recognized that a person’s reputation is a protected liberty interest under the federal due process clause. Wisconsin v. Constantineau, 400 U.S. 433 (1971) (hereafter “Constantineau”); Board of Regents v. Roth, 408 U.S. 564 (1972) (hereafter “Roth”).

      In Constantineau, the State of Wisconsin authorized the posting of a notice prohibiting the sale or gift of liquor to any person who “‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” On appeal, the Constantineau Court recognized that “t would be naive not to recognize that such ‘posting’ or characterizati on of an individual will expose him to public embarrassment and ridicule.” 400 U.S. at 436. The Court therefore held that a protectible liberty interest is implicated “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her.]” Id. at 437.

      One year later, the Court again recognized a person’s liberty interest may be implicated by damage to his or her reputation. See Roth, 408 U.S. at 573. The plaintiff in Roth, a university professor, alleged that “the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law.” Id. at 569. The Roth Court reasoned that, in declining to hire the plaintiff, the state had neither advanced “any charge against him that might seriously damage his standing and associations in the community” nor “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. at 573. The Roth Court noted, however, that “a different case” would have been presented had the state either damaged the plaintiff’s reputation or imposed a stigma on him. Id. at 573-74.

      However, in Paul v. Davis, 424 U.S. 693, reh’g denied, 425 U.S. 985 (1976), the Court clarified that “reputation alone, apart from some more tangible interests such as employment, is [n]either ‘liberty’ [n]or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701. The plaintiff in Paul alleged a deprivation of liberty without due process of law after the circulation of flyers publicizing his conviction for shoplifting and labeling him an “active shoplifter.” Id. at 712. According to the Paul Court, because the plaintiff’s harm was not accompanied by the alteration of “a right or status previously recognized by state law,” there was no deprivation of a protectible liberty interest. Id. at 711-12.

      Paul has been interpreted to require “stigma plus” in order to establish a constitutional deprivation. See, e.g., Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994). In other words,

      an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all the attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringement of more ‘tangible interests’ . . . must be alleged as well.

      Borucki v. Ryan, 827 F.2d 836, 842-43 (1st Cir. 1987); see also Marshall v. University of Hawaii, 9 Haw. App. 21, 32, 821 P.2d 937, 948 (1991).

      For the reasons discussed below, we conclude that Bani has shown substantial injury to both his reputation and other “tangible interests.” This case does not therefore require us to determine whether a person’s reputation alone constitutes a protected liberty interest under the Hawai`i Constitution. Suffice it to say that Bani has established that the public notification provisions of HRS chapter 846E implicate a liberty interest protected by the due process clause of the Hawaii Constitution.

      First, Bani has demonstrated that the public notification provisions of HRS chapter 846E will likely cause harm to his reputation. The statute effectively brands Bani a “sex offender,” i.e., a public danger, for life. See Doe v. Pataki, 3 F. Supp. 2d 456, 467 (S.D.N.Y. 1998) [hereinafterPataki III]; Doe v. Attorney General, 686 N.E.2d 1007, 1013 (Mass. 1997) [hereinafter Doe II];see also Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4 (8th Cir. 1985), cert. denied, 475 U.S. 1014 (1986).

      Specifically, HRS chapter 846E’s public notification provisions imply that Bani is potentially dangerous, thereby undermining his reputation and standing in the community. Doe v. Poritz, 662 A.2d 367, 419 (N.J. 1995); cf. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (noting that ”

      ne need only look to the increasingly popular ‘Megan’s laws,’ whereby states require sex offenders to register with law enforcement officials who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender”). Indeed, public notification that Bani is a convicted sex offender implicitly announces that, in the eyes of the State, Bani presents a risk of committing another sex offense. Doe II, 686 N.E.2d at 144.

      Second, Bani will foreseeably suffer serious harm to other “tangible interests” as a result of registration as a sex offender. Potential employers and landlords will foreseeably be reluctant to employ or rent to Bani once they learn of his status as a “sex offender.” See Pataki III, 3 F. Supp. 2d at 468; W.P. v. Poritz, 931 F. Supp. 1199, 1219 (D.N.J. 1996), rev’d, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1110 (1998) [hereinafter Verniero]; see also In re Reed, 663 P.2d 216 (Cal. 1983) (quoting In re Birch, 515 P.2d 12 (Cal. 1973)). (8) Indeed, the public disclosure provisions of HRS chapter 846E canadversely affect an offender’s personal and professional life, employability, associations with neighbors, and choice of housing. Noble v. Board of Parole and Post-Prison Supervision, 964 P.2d 990, 995-96 (Or. 1998); State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996), cert. denied, 521 U.S. 1118 (1997); Rowe v. Burton, 884 F. Supp. 1372, 1378 (D. Alaska 1994), appeal dismissed, 85 F.3d 635 (9th Cir. 1996) (personal and professional lives); Artway v. Attorney General, 876 F. Supp. 666, 668 (D.N.J. 1995),aff’d in part and vacated in part, 81 F.3d 1235 (3d Cir.), reh’g denied, 83 F.2d 594 (1996) (employability and associations with neighbors); Robin L. Deems, Comment, California’s Sex Offender Notification Statute: A Constitutional Analysis, 33 San Diego L. Rev. 1195 (1996) (citing Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey’s Megan’s Law, 3 J. L. & Pol’y 569, 580-81 (1995)) (choice of housing). In addition, public disclosure may encourage vigilantism and may expose the offender to possible physical violence. (9)See, e.g., Poritz, 662 A.2d at 430-31 (Stein, J., dissenting); Pataki I, 940 F. Supp. 603, 608-11 (S.D.N.Y. 1996); Doe v. Gregoire, 960 F. Supp. 1478, 1485 (W.D. Wash. 1997). Indeed,

      [w]hen a government agency focuses its machinery on the task of determining whether a person should be labeled publicly as having a certain undesirable characteristic or belonging to a certain undesirable group, and that agency must by law gather and synthesize evidence outside the public record in making that determination, the interest of the person to be labeled goes beyond mere reputation. . . . t is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and, perhaps, even physical harassment likely to follow from designation.
      Noble, 964 P.2d at 995-96. Therefore, HRS chapter 846E is highly likely to cause irreparable harm to Bani’s reputation and professional life, employability, associations with neighbors, and choice of housing.

      The Paul Court recognized that, in addition to the interests recognized by state law, “[t]here are other interests . . . protected not by virtue of their recognition by the law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment.” Paul, 424 U.S. at 710 n.5. As an example, in Bohn, 772 F.2d at 1436 n.4, the United States Court of Appeals for the Eighth Circuit found a protectible interest in reputation where the stigma of being identified as a child abuser was tied to the protectible interest in privacy and autonomy of family relationships. See also Poritz, 662 A.2d at 419 (holding that the stigma resulting from notification that petitioner was a sex offender was tied to the protectible interest in privacy inasmuch as he had an interest in his reputation); Neal, 131 F.3d at 830 (holding that Hawaii’s designating of prisoner as “sex offender” without hearing and requiring successful completion of treatment program as precondition for parole eligibility together implicated a liberty interest protected by the right to due process of law).

      Under these circumstances, we are persuaded by the following considerations that Bani has a liberty interest protected by the Hawai`i Constitution that entitles him to procedural due process: (1) the public disclosure of accumulated and synthesized personal information that would not otherwise be easily available; (2) the potential harm to his personal and professional life; (3) the foreseeable harm to his reputation; and (4) the statutory branding of him as a public danger, i.e., as a sex offender. We note that the “interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber.” Noble, 964 P.2d at 995.

Comments are closed.