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Nebraska Fed Court Injunction on Sex Offender Law

December 31, 2009

WOWT.com (Nebraska): Judge Blocks Parts of Sex Offender Law.

A federal judge on Wednesday blocked portions of Nebraska’s new sex offender registry law, including provisions that sought to monitor convicted sex offenders’ computer usage and prevent them from visiting certain Web sites.

Judge Richard Kopf did leave other parts of the law intact, saying it came close to meeting criteria set for the state by Congress.

Kopf said lawmakers may have gone too far in two areas – both provisions that weren’t required under the federal legislation. Those provisions prohibit sex offenders from using social networking sites used by children, like MySpace and Facebook. They also require sex offenders have hardware or software installed on their computers and other electronic communication devices to monitor their activities and to consent to such searches.

Sex offenders who have completed their criminal sentences and are not on probation, parole or court-ordered supervision won’t be subject to those provisions, according to Kopf’s ruling, which granted a limited preliminary injunction.

The case stems from a federal lawsuit Dornan filed Dec. 16 on behalf of 20 sex offenders, their relatives and employers. It sought to stop the law from taking effect. Dornan argued the new law would allow for retroactive criminal punishment, amount to double jeopardy, permit unreasonable searches and seizures, and violate the rights to due process and free speech.

Nebraska lawmakers changed the law earlier this year, saying the revision was needed to comply with federal legislation passed in 2006. That legislation said that if Nebraska and other states don’t publicly register all people convicted of sexual offenses and make other adjustments, they could lose out on federal grant dollars for local law enforcement.

Read complete ruling here: http://drop.io/nebraskainjunction

JOHN DOE and JANE DOE 1 through 20, JOHN DOE and JANE DOE A through K, DOE 12 on behalf of DOES H and K, minors, and DOE G on behalf of DOE I, minor, Plaintiffs,
v.
STATE OF NEBRASKA, et al., Defendants.
Case No. 8:09CV456
30 Dec 2009

Court Order Excerpts:

“In Two Respects, Nebraska Has Probably Gone Too Far. By adding two provisions to the registry framework that are entirely foreign to SORNA, Nebraska has come perilously close to voiding the entire law for offenders who have served their time and who are no longer subject to probation, parole, or other court-ordered supervision. These two provisions, when taken together, threaten to take a civil regulatory scheme and turn it into a punitive endeavor. For those that have done their time, the Ex Post Facto Clause of the Constitution very likely bars retroactive application of these changes. Moreover, and looking at each amendment separately, one change unquestionably violates the Fourth Amendment (as Nebraska concedes), and the other has the potential to adversely implicate the First Amendment.”

“Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled

with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who

are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.””

“Conclusion:

I am not a fan of laws like this one. If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional. I am pretty sure that this enactment will divert attention and money from policing the monsters.  I also worry that this law will incite a virulent form of vigilantism against the hapless. But, my likes and dislikes don’t matter.

In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, “[i]f the people want to go to Hell, I will help them. It’s my job.”12 Let’s get at it!”

“Defendants (Nebraska) are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).”

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