Federal judge rules Tennessee sex offender law punishes retroactively
A federal judge has ruled that parts of Tennessee’s sex offender registration act should not be applied retroactively to two offenders who sued over the law.
Monday’s ruling in the U.S. District Court for the Middle District of Tennessee was narrowly written to apply only to the two plaintiffs. But it could open the door to more lawsuits and a broader ruling in the future.
The plaintiffs claimed that the law’s restrictions have forced them to move out of their own homes and lose jobs and prevented them from spending time with their children and attending school events.
Richardson has yet to make a specific ruling as to which parts of the law should not apply to the two men. In his ruling, he asked the parties for more information on what they think should be the scope of the injunction. He added that he would rule later.
I want to bring a little context to this decision. Tennessee is divided into 3 separate districts, the eastern, middle and western districts. There isn’t always a single court in each district and there may be several district courts in different cities but they are all in the same district. A judge in one courthouse may rule one way and another may rule the opposite even in the same courthouse. How one judge rules is not binding on other judges in the district. Tennessee is in the 6th Circuit court of Appeals. Any decision in the 6th Circuit Court of Appeals is binding on all federal trial courts in Tennessee, Michigan, Ohio and Kentucky. This decision is out of the middle district. There was a case out of the eastern district that ruled the same (Doe v Rausch, 383 F Supp 783, 2019 and 461 F supp 747).
In 2016, the 6th Circuit Court of Appeals ruled that various aspects of Michigan’s registry was unconstitutional in Does v Snyder. This decision is binding in these 4 states in any identical factual situation. A district court in the 6th Circuit must follow Snyder unless there is a different set of facts. The registry in Tennessee is not identical to the registry in Michigan so the trial court must make an individual determination if Tennessee’s registry is sufficiently similar to Michigan’s. Both trial courts determined the laws are sufficiently similar to find Tennessee’s registry law a violation of the ex post facto law. That’s the good news.
As you read these various cases on this and similar websites, you notice they report the good but overlook the bad if a case offers some hope. The downside to this case is that the litigants lost on their First Amendment claim because they didn’t show how the registry affected registrants in relation to their First Amendment claim. They should have prevailed on the First Amendment issue as well. But this claim was not properly presented to the trial court. This gets to a point I repeatedly raise and that is proper trial preparation. The litigants in this case won on the ex post facto issue because of the 6th Circuit’s decision in the Does v Snyder litigation. This issue was a slam dunk thanks to Snyder so it didn’t require much trial preparation because Snyder is settled law in the 6th Circuit. However, their attorneys didn’t put forth any meaningful argument in respect to how the registry affects registrants in the First Amendment sense and lost that part of the decision due to their lack of trial preparation on this issue. This is an issue that can be won but registrant’s attorneys must properly prepare this issue.
When I point out this flaw in litigation strategy on these websites I get a lot of flack. I am not disrespecting registrants for their efforts. I’m pointing out a failure of their litigation strategy. Being prepared for any endeavor is important and doubly so when you go to court. Registrants raise $20,000 and shop for an attorney to litigate a specific issue. This is flawed thinking. You raise enough funds to get into court but not enough funds to properly prepare a case for trial or to appeal if you lose in the trial court. Trial preparation alone in these cases usually takes years and costs more than $20,000 before your complaint is even filed. If you have circuit court precedent that is favorable in your circuit, you have a good chance of winning but their is no precedent on this issue in the 11th Circuit. You are trying to create a new rule of law in your circuit and this requires significant resources to be committed in the pretrial stage. The litigants in this case lost on their First Amendment claim because they weren’t properly prepared.
From the previous post there is a lot of confusion. The binding precedent in the 6th Circuit is Does v Snyder. The court alluded to Does v Snyder more than 100 times in this decision so you can understand the importance of the Snyder litigation. This case and Doe v Rausch can be argued as persuasive in any Florida court. The most compelling case to cite is Does v Snyder because it was decided by a higher court.
I have repeatedly advised that the tide is turning. Trial preparation is underway in other cases in Michigan so more positive case law should be coming out of that state. Be patient.
Does v Snyder is good news for anyone who lives in Michigan, Tennessee, Kentucky and Ohio. Registrants in Tennessee are finally taking advantage of this decision. Now it is up to Ohio and Kentucky to get on board. Registrants lose more than 80% of the issues they bring to court. The tide is finally turning in the 6th Circuit. The quickest way to get off of the registry in Florida or any other state is to get behind registrants in the 6th Circuit and push. If we can push together as a group we can turn the tide in other circuits as well.
Detroit:
Isn’t Packingham vs North Carolina 1st Amendment precedent? The 9th circuit also has Doe vs Harris.
Just dont see the broad sweep of internet ID’s, etc. legal except for parole or probation conditions.
In any other broad requirement it violates 1st amendment.
Here is an excerpt from a Federal District court ruling in Alabama, Does vs Marshall;
The internet-use reporting requirements are facially overbroad.
“The Constitution gives significant protection from overbroad laws that chill
speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002). Though a state may burden speech if it has a strong enough interest, it cannot overburden speech. ASORCNA’s internet-use
reporting requirements unduly chill protected speech, so they are unconstitutional.
This is 11th circuit. Interestingly enough, this opinion also includes an explanation of registration is a continuing violation. An injury occurs daily. Thus, any argument for dismissal due to statute of limitations fails.
Perhaps food for thought in the Florida Does vs Swearingen case.
This was cited in the Does v Swearingen case.
After your post I read the dismissal order. “Muddy waters ” in my opinion. I suppose the dividing line is if a plaintiff challenges registration as a whole or if they argue continuing violations of fundamental rights. The Marshall court stated:
But the injury caused by wrongful registration is not the same injury caused by the constant deprivation of fundamental rights. Yes, registration triggers ongoing obligations, but the plaintiffs in Moore, Meggison, and Mims challenged registration
itself. That is different from claiming that certain restrictions on everyday activities violate the First Amendment. Plaintiffs here are repeatedly compelled to speak and forced to report internet use. They suffered those injuries within two years of suing
(and continue to suffer them), so their claims are timely.
I understand why statute of limitations exist, but if it entails an continuous infringement of a constitutional right statute of limitations must yield.
“Equity will not suffer a wrong to be without a remedy.
When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium (“where there is a right there must be a remedy”).”
Detroit: You repeatedly state how poorly the 1st Amdt. topic was prepared and argued yet you never even hint at a solution for the failure you observe. What topics and/or points were missed and should have been made?
I’m sorry that this is off this topic, but was anyone told they would have to start in-person registration next time? My registration is January. And September
BoomSHOCKA:
You have to mention the state you are in and the city or county that you report to.
In Michigan, the registry is suspended due to covid. In many states, one city or county is requiring in person reporting while the next city or county over isn’t.
Anything they want will pass and it’s going to get worse sorry to say.There are some things that’s coming that way out if line but I don’t want to add to anyone’s burden but they’re coming soon like I said I pled out in 1991 while in my junior year in highschool I’m now 47 years old and my plea was 4 years of probation I was 18 and they allowed me to go to college in another state while on probation.Now it’s 2021 I’m back on probation. From the same charge a technical violation and that’s the only charge I ever had 1count one charge.I gave up long time ago I’m tired of reading other states remedies so I’m just waiting to get off this and my family and I are leaving because you haven’t seen what’s coming and all the ex posto facto talk seem like nothing.I was going to leave a long time ago but didn’t because I thought this was going to pass but guess what I’m still waiting get over it folks the only remedy for everyone is to leave the state.Im sorry but it is what it is
AJ:
At page 79 the court points out that the litigants didn’t provide detailed information on how the registry affects them. This requires more than conclusory statements and the court even pointed this deficiency out to them. Also, registrants have won a series of First Amendment claims that don’t seem to have been raised by the attorneys, i.e., Doe v Prosecutor, 705 F3d 694 (7th Cir., 2013); Doe v Nebraska, 898 F Supp 1086 D. NE, 2012); Doe v Shurtleff (D. UT, 2008); Harris v State, 985 NE2d 767 (2013) and perhaps about a dozen other cases.
In the context that this claim was presented to the court, how the registry affects the registrants are affected by the registry is important. The court repeatedly stated that the plaintiffs presented their claims in a confusing manner so the trial court was forced to decipher their claims. This shows that the whole complaint was incredibly poorly prepared.
On a side note. It appears that FAC is compiling registrant experiences on how the registry affects them. It can take attorneys months or even years to identify suitable claimants for litigation. This is a benefit of an organization such as FAC. They can compile experiences over several years. When their attorneys need to raise an in issue, they don’t have to chase down claimants and examine all of their claims. FAC has already done that for them. Giving their attorneys a list of claimants and their claims saves a lot of time so they can focus on litigation and it also helps them get into court faster. My sense is that FAC is collecting these experiences for any future litigation. If this is what FAC is doing they need as many registrants as possible to share their experiences. The larger the pool of registrants the better the chance the attorneys will get the factual situation they are looking for.
Detroit: Thank you for your post. I already suspected where your thoughts were on the case. I just felt it important to say something more than “they screwed up.” (I really dislike when someone points out a problem but offers no solution. Clearly one must have a possibility in mind or else there’d not be a problem found!) Helping others know how and where a case got screwed up or undersold can only be helpful to others’ increased understanding. I’m with you on it, brother! Again, thank you.
CJ:
Packingham is binding on every court in the U.S.
Packingham of course had nothing to do with registering internet IDs.
Jacob:
Yes sir. “The devil is in the details.” However, the SCOTUS opinion not only addresses the law of prohibition, but further argues more broadly in part, such as:
“This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” McCullen v. Coakley, 573 U.S”.
Is collection of internet ID’s, email, screen names, etc. from EVERYONE narrowly tailored?
The opinion further states:
“First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. ”
and:
” (the prohibition) from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U.S., at 870, 117 S.Ct. 2329.
Certainly Packingham can be at minimum cited in challenges to 1st amendment infringements, even if the statute does not prohibit a Facebook account or the like.
They really said/wrote this?? Case closed!! Done deal!!! We’re all free!!
. . .. speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U.S., at 870, 117 S.Ct. 2329.
Yes. This is quoted from the SCOTUS opinion.
I don’t understand how SORA is declared to punish retroactively if it’s civil. Then It shouldn’t punish at any time. Wtf
Indeed.
Since 2003 Smith vs Doe this horse is of a completely different hue. In particular when it went world wide web.
They’ve dog piled on additional burdens above and beyond the “price club card” version.
The 6th circuit Does vs Snyder (denied cert) opinion explains this trend perfectly.
Everyone should read that 14 page opinion.
I’m in a SORNA state. It’s more rigorous than the probation I completed.
Anonymous:
In Smith, SCOTUS said dissemination of “mostly public” information regarding RCs was civil and thus not punishment. Anything and everything above and beyond since then has been decided below SCOTUS (State courts, Federal District and Circuit courts), with mixed outcomes. IMO the constantly building caselaw is reaching critical mass and eventually one of these cases will land at SCOTUS and they will finally grant review. What happens after that, who knows? I would like to hope SCOTUS sees what a nasty, messy, sh-tstorm they’ve made and that the burdens spread far and wide beyond the RCs themselves to spouses, families, and children. I’m 100% confident there will be a plethora of amici who chime in with real recidivism data. Sadly for us, the wheels of justice turn very slowly.