By Robin . . . Unpersuaded by the court-appointed counsel’s encouragement to read a prison inmate’s pro se lawsuit liberally enough to include a First Amendment complaint, the Tenth Circuit has affirmed a lower Court’s judgment dismissing a challenge to Oklahoma’s requirement that citizens convicted of an “aggravated sex offense” must have their driver’s licenses (and state-issued identification cards) stamped with the words “Sex Offender.”
The National Association of Rational Sexual Offense Laws (NARSOL), represented by John J. Korzen (Wake Forest School of Law) was joined by its state affiliate, Oklahoma Voices, in filing an amicus brief on behalf of the plaintiff-appellant, Ray Carney, an OK inmate scheduled to be released in January, 2018. The ACLU of Oklahoma, represented by Brady R. Henderson, filed a separate amicus brief also supporting the plaintiff-appellant.
Mr. Carney, who filed the original complaint and proceeded below without the benefit of counsel was represented on appeal by Atty. Andrew D. Barr. It was Attorney Barr who approached NARSOL in the Spring of 2017 about submitting an amicus brief 1) demonstrating that recidivism rates among convicted sex offenders are lower than generally accepted and 2) providing statistical support dispelling any connection between odious requirements (such as the driver’s license law) and a reduction or prevention of repeat offenses.
Having forfeited a First Amendment argument below for failing to advance such a claim (and failing to convince the Court of Appeals that it was ripe on review), Carney appealed the District Court’s dismissal of his Eighth and Fourteenth Amendment claims. Under the Eighth Amendment, Carney argued that the driver’s license requirement was cruel and unusual, an argument that Judge Paul Joseph Kelly, Jr., writing on behalf of the three-judge panel, dismissed outright:
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. Because the license requirement is not cruel and unusual, we need not consider whether it is penal in nature.
Under the Fourteenth Amendment, Carney argued that the driver’s license requirement violated the Equal Protection Clause because “as an aggravated sex offender, [he] has received a harsher punishment than those who are similarly situated to him, namely non-aggravated sex offenders, and others who must register after committing various violent crimes and methamphetamine-related crimes.” Judge Kelly wrote:
Mr. Carney, an aggravated sex offender, cannot state an equal protection claim because he is not similarly situated to ordinary sex offenders and others that are required to enroll in public registries. He also has not shown that he is being treated differently than other aggravated sex offenders. Thus, he cannot make an equal protection claim under the Fourteenth Amendment because he cannot satisfy the similarly situated requirement.
While NARSOL would have preferred a more favorable outcome, the hope of this case really rested on the possibility of getting the First Amendment argument inserted at the appellate level. The outcome serves as a useful lesson about the need to preserve ALL possible claims at the initiation of a lawsuit even where some of them, as expected, are likely to be rejected. Failing to mention a claim renders it virtually impossible to recover on appeal…even despite the very best efforts of competent and capable attorneys.
The outcome of this case is also an important barometer of how great a challenge we face where federal courts are asked to consider policies requiring government-issued identification cards to be “marked” in such a way to indicate a citizen’s prior criminal history. This is not slam-dunk territory, by any means. And it is worth evaluating this outcome in view of prospective challenges to IML passport requirements. We all agree that these types of requirements are extremely harmful and damaging. But the federal courts, thus far, have seemed to suggest that “harmful and damaging” is not enough to outweigh the supposed benefit of greater public safety. Judge Kelly expresses the sentiment thusly:
There are several rational reasons why Oklahoma enacted this law, principally among them the safety of the community. We therefore find that the license requirement is not unconstitutional . . .