TN: Win In Tenn – Two registrants successful in Ex Post Facto case
Two plaintiffs were successful in challenging the Tennessee Sex Offender Registry on Ex Post Facto grounds. Below is a link to the 87 page opinion, a more comprehensive breakdown will follow.
I anticipate many people’s initial reaction will be “but it only helped these two people”, which is true, but keep in mind it opens up the path for those who are similarly situated to follow.
Could this be used as a case reference for our ex post facto suit?
Related issues and legal authorities applied in our case? Sorry, I’m not a lawyer and don’t understand much of this. Thanks
Wish washy. No clue if the law as applied to folks without the lifetime
Requirement is bad. Also no indication if the extension of time for registration for out of state registrants move to Tennessee is OK or not. The normal lesser registration requirement in Tennessee was 10 years, but if you had been off sanctions for 10 years and moved to Tennessee you had to wait another five years during which time all of the restrictions applied including the residency restrictions
So what made their case successful?
This is the kind of post that is so frustrating.
The continuous piling on of ever increasing lengths of registration, reporting requirements, presence and residency restrictions along with online id’s, screen names, etc. collectively and retroactively led the court to rule that Tennessee SORMA constitutes ex post violation and punishment. It was an “as applied” ruling, thus relief only to the two plaintiffs.
Expect to see alot of similar legislation in SORNA states.
Litigation , not legislation. My mistake.
I am not an attorney, but I’ve been following the ex post facto issue for 20 years. This successful suite may not affect anyone in the immediate, but it can be used as a precedent in suites filled by others in other states. In other words, every win in court is more ammunition for others in other states.
I know the slow pace is frustrating. It is for me as well. The problem lies in the fact that these legislators see trying to repeal laws that they no do no good as political suicide. But, the tide is SLOWLY turning, but it is turning. The ignoring of the ex post facto, I have to register for life for one low level offense committed over 30 years ago. The first, last, and only offense. I deserved to do some time and I did. I benefited from it. But to have to register for life, when I’m a low risk, because of a bogus article in a lay magazine is beyond frustrating.
I always hate when a judge or judges have to scrutinize such a challenge to the law, when in fact they know using common judgement it is. This is exactly why I can’t stand those who work in law enforcement and the judicial system, because they follow blind leadership like a religious faith. They know they punish people wrongly, but seem to be ok with that, and this is why they deserve a special place in hell just for them.
Sailtime:
What made their case successful was Does v Snyder in Michigan. Michigan is in the 6th Circuit along with Ohio, Kentucky and Tennessee. This decision was a foregone conclusion. The question is what took them so long after the Snyder victory in the 6th Circuit. The bigger question is why registrants and Ohio and Kentucky are silent.
The 6th Circuit Court of Appeals is one of the courts directly below the U.S. Supreme Court. When they issue a decision it is binding on all of the federal courts in Michigan, Ohio, Kentucky and Tennessee. Florida is in the 11th Circuit Court of Appeals which is one of the toughest for registrants.
The reason that it “took so long” and we are still faced with a wishy-washy decision is that basically everyone ignored Snyder. Kind of like when a number of the southern states ignored Brown be Board of Education, in some cases like in some smaller counties in Georgia until the very early 1970s even though the case was decided in 1954. Let’s be honest. How can a court threaten a state? Are they actually going to throw the governor or the Attorney General into jail for contempt? Doubtful. All the court can do is wave an accusatory finger in most cases.
Cherokee Jack:
This decision is persuasive but not binding on Florida courts. The 6th Circuit’s decision in Snyder is more persuasive because it is a higher court. It would behoove registrants to wait until this fully plays out in the 6th Circuit before going to the 11th.
And what has happened with Snyder since it was decided prove that it’s not even persuasive or binding in the Cortone jurisdiction, At least as far as the state of Michigan is concerned. These decisions are wonderful on paper, but I guess we have to celebrate whatever little we get even when it’s damn near nothing. How have these decisions actually impacted the lives of any registrants, even the defendants themselves? It’s kind of like wow, those lawyers mellow very persuasive argument in the death penalty appeal. Too bad they’re client is still dead. LOL
Larry C.
There are 3 levels of courts in the federal system. You have the district court which is the trial court and the lowest court. Then you have the circuit court of appeal that’s above the district court and below the U.S. Supreme Court. There are 12 circuit court of appeals. The D.C. circuit is the smallest and the 9th Circuit is the largest. Florida is in the 11th Circuit Court of Appeals which has jurisdiction over Florida, Georgia and Alabama. The 11th Circuit Court of Appeals is one of the most difficult circuits to appeal to and the primary reason that Florida isn’t doing well in it’s litigation.
In 2016, the 6th Circuit Court of Appeals issued an opinion finding various aspects of the Michigan registry unconstitutional. This decision is binding on Michigan, Kentucky, Ohio and Tennessee because these states are the states that comprise the 6th Circuit’s jurisdiction. The decision in Tennessee that’s alluded to in this article covers no new ground. It only followed the 6th Circuit’s decision in Does v Snyder which it is obligated to do.
Michigan is the state that is the most advanced in this litigation. The good news is that there is more litigation in Michigan in the planning stages, so you will be seeing a lot of good case law coming out of Michigan over the next several years. It’s understandable that registrants would like to see relief in their states today because they are under the stress of these laws. However, it is best that they wait until the litigation is fully played out in Michigan before they litigate an issue in their own state. When they litigate an issue in the 11th Circuit, they only get bad case law that is persuasive in other states. If registrants are most successful in the 6th Circuit, it makes sense to litigate in the 6th Circuit first in order to create positive case law that is persuasive in other states.
That’s pretty much my point, although you said it much better than I did. We just have to let these other suits play out elsewhere and the more the successful outcomes pile up, the more ammo we have in other cases. It’s frustrating and yeah, stressful to the max, especially for this 72 year old who is in bad health, with only one offense, and whose punishment will continue, even though I did my time day for day.
I’ve only got 2 or 3 good years left, if that, and have to spend it worrying about an illegal, unconstitutional law. It’s unconscionable and immoral. Look on the bright side: I’ll miss seeing the good ol’ USofA go down the socialist tube.
But the bottom line-registered citizens are the focal point for hate and scorn. I figure another 10-15 years before attitudes change and mistakes are owned up to.
JoeM:
Brown was a U.S. Supreme Court decision and is binding on every court in the U.S. Snyder is only binding on Michigan, Ohio, Kentucky and Tennessee.
The Snyder litigation is a very significant victory for registrants in Michigan and in the U.S. Once the decision becomes final it is expected to remove more than 10,000 people from the registry in Michigan and give thousands more a date certain for removal. Properly litigated, it will remove thousands more in Kentucky, Tennessee and Ohio. This is a persuasive decision in other courts. You won’t see the full impact of this decision for many years.
The defendants in these cases are the respective states. The registrants in most of these cases are the plaintiffs.
Technically, a federal judge can throw an AG or governor in jail for not following it’s order. More likely, the judge will assess sanctions against the state usually monetary that can be collected. If the court sanctions a state $10,000 a day for violating it’s order, which they have done many times in the past, this will result $1,000,000 in sanctions in only 100 days. The court can, and many courts have, increased sanctions to get a state’s attention. Also, once a decision such as the one in Snyder is rendered, it becomes settled law and attorneys can seek a monetary judgement for the registrants in future cases.
This case doesn’t just look good on paper. It has a real impact on the lives of registrants throughout the U.S. You just have to give it time until it plays out.
LarryC:
I’m sorry that you have had to put up with these laws for decades. I’m only a couple of years younger than you are. I have never been on the registry so don’t know the full stress of what being on the registry entails. I joined the army in the 70’s and served in the military police and military police investigations and worked for a civilian police department afterwards.
I am originally from Detroit. The police in Detroit don’t like the registry. Most won’t do compliance checks and many have to be dragged out to do FTR warrants. The supervisors knows who will and who won’t do compliance checks. In Detroit, registry violations are usually initiated by the state police and the supervisor gets a couple of cooperating officers mostly to back up the state police especially if they have an FTR warrant that is a felony. The Michigan State Police doesn’t do registry violations like what you see currently going on Brevard County. The usual drill in Michigan is that when the police come in contact with someone they think belongs on the registry but don’t have an active warrant, they investigate and get a warrant from a judge before an arrest is made for an FTR. One of my jobs was to place warrants into the system. A murder warrant usually goes in the system within an hour or so after the judge signs the warrant. For low level offenses they get placed in a stack at the court house and wait for a judge to sign the warrants. Then they gather in a stack at the court house and every few days the court sends them to the police to be entered into the computer. At the police department they sit in a stack until someone has the time to enter them which usually takes a few days or a few weeks. Usually, it’s the police on the night shift that enters warrants when things are slow.
As a general rule, the Michigan State Police wait for a warrant before they make an FTR arrest. The Michigan State Police are strictly by the book and I haven’t heard of them arresting anyone for an FTR without a warrant. So far, this seems to be the norm for most police agencies in Michigan.
My old neighbor, Hal Nemecheck was one of the first persons placed on the registry in 1995 and remained on the registry until he died in 2017. He lived in Battle Creek and said the police never came to his door in the 23 years he was on the registry. I know a registrant whose been on the registry for more than 10 years in Saginaw and he states the police never came to his door. The cities that seem to be loathe to do compliance checks are Detroit, Flint and Saginaw. Many county sheriffs do compliance checks and Oakland County seems to be one that takes them seriously. Some cities do compliance checks but I have heard of only a few that do them on a regular basis such as Sterling Heights.
To see the situation in Detroit you can go to MIPSOR. 38% of registrants are listed on the registry as non-compliant, 25% haven’t registered registered in less than 2 years, another 16% haven’t registered in 2-5 years, another 8% haven’t registered in 5-10 years and another 1% haven’t registered in over 10 years. I came up with 50% who haven’t registered in over a year but only 38% are listed as non-compliant. That’s how screwed up the situation is in Detroit. And in Brevard County they are chasing after people for not registering a vehicle in 3 days.
Registrants aren’t the only ones who don’t like compliance checks. a small number of police, usually in hick towns, enthusiastically enforce the registry. Most police are indifferent and have better things to do. I’m sure there are deputies in Brevard County that see this as a waste of taxpayer money.
I wish you didn’t have to go through this crap in your senior years. These court cases may never benefit you but give the younger ones hope.
I appreciate your patience and wish you the best.
Thanks for the reply. I am 35 miles north of Dallas, been on the registry for 10 years and have only had one visit. We had a change of registering officers and shortly after the first time I met with the new detective I got a visit from 2 officers from an SO division located in another city within Denton county. It was a cordial follow-up to double check the same info I had just given the new Det. 2 weeks prior. Made sure I knew about the new registering officers then left. Never could figure out who they were and the purpose of the visit.
Didn’t give them any info that wasn’t already available, but I complied with their questions on the stuff I’d already given and was publicly available.
But I don’t have any problems because I’ve been here 58 years, good prior reputation as to church, job, social standing, a generous amount of whos-who name-dropping, let them know I don’t take any crap off anyone in a nice way. Had some SO blackmail calls and stood up to them, let them know that their childish antics don’t scare me.
One of them actually came to the house to threaten me. Last I saw of him he was running to his car with me and a 65 lb. trained dog on his heels. Funny thing- no more scam calls!
Unfortunately, most other registered citizens dong have my background and training.
But this is for anyone else faced with that. These people are a bunch low-lifes who can be easily scared off, but it takes some guts. Immediately report it to a city councilperson or someone higher up in the police dept. I reported to a city councilman, the mayor and a retired homicide detective who’s wife worked for me at Sears for 20 years, all friends of mine. Bottom line: I didn’t allow them to scare me.
I know this is off topic, but I relate this every chance I get in an effort to stop these chicken #$&–## people preying on the vulnerable. My new registering officers feels that same way. If it hAppens again, I’ll use myself as bait to stop them with the local DPDs help.
The registry useless and misused, and abused. The only advice I can give is stand strong, keep your crap straight, and try to persevere. And pray, pray, pray for our legislators and leaders, especially in our highly divided situation.
Detroit
Just curious what caused you to be a part of FAC if you are not on the registry? Do you have a loved on who is? Just curious. You seem nice but there are some people who come in here also just to stir up problems as it is open to anyone.
Have a great day
Cherokee Jack:
I’m not a part of FAC. One of my friends, Fred Farnsworth, was placed on the registry in 2008 for a 1965 conviction. He was trying to get a group together in Lincoln Park to fight the registry. He asked me to help by starting a group in central Michigan while he was starting a group in the Detroit area. I own several houses and he asked that I buy a fixer-upper to turn into a homeless shelter. Fred was going to fix the place up. I sent out about 2,000 letters to people on the registry to get meetings going and received over 100 responses. In the middle of this effort, Fred was diagnosed with cancer and died. I fell out of the registry thing but registrants kept contacting me because of past efforts so I’ve been in constant contact with them. Fred and I don’t know anything about computers. The only thing we found on the internet was oncefallen. Every time we wanted to know something about the registry we just went to oncefallen and eventually other sites to include this one popped up. I can only take the time to comment because it’s colder than hell outside. When it gets warmer I will have to get back to working on my properties. Fred volunteered for a lot of organizations over the last 50 years so when he died he took a lot of experience with him. This organization thing I’m trying to figure out on my own. I got a guy to do the computer stuff and a small group interested in meetings.
Ironically, I am helping a former neighbor who is in jail right now charged with a sex crime. I haven’t heard from him in 13 years and he had his girlfriend contact me when he got arrested. I sent him some law books and had to contact my attorney to tell the jail to give them to him. He just turned 40 and if convicted on all counts won’t be eligible for parole until he hits 65 and could wind up spending the rest of his in prison. I am hoping that I can get him eligible for parole in under 5 years. His girlfriend keeps saying he’s innocent but they may have DNA evidence to the contrary. If they have DNA evidence, I would consider 5 years to be a victory.
Detroit
First off, thank you SO much for taking the time to respond and explain. It was none of my business and you could have said so. BUT, I am glad you explained because your story really was impactful.
1965 conviction for someone and put on the registry is just INSANE. I was not even born yet. They went retro active on me as well. My Charges were from 1991.
Thanks for all you are doing for people. You are a Saint in my book. The Bible speaks of people like yourself who see the good in people. I will keep you in my prayers and stay blessed my friend. Stay encouraged and keep helping others. Your story renewed my faith in knowing not everyone is a jerk towards us.
‘This opens the door to class action:’ https://www.wrcbtv.com/story/43613573/judge-orders-state-to-remove-men-from-sex-offender-registry