Another victory in Tennessee

By Larry . . . NARSOL is excited to report on another win in the state of Tennessee. In fact, this is the second favorable decision in Tennessee in recent months. We previously reported on another challenge regarding retroactive application of registration requirements in Tennessee which was decided favorably. See Doe v. Rausch, 3:17-CV-504 (TNEDC). This case, Ronald Reid v. William Lee, is pending in the United States District Court for the Middle District of Tennessee. See Case No. 3:20-cv-00050. On August 5, 2020, an Injunction was granted to challenger/plaintiff Ronald Reid who committed a sexual offense in the state of Tennessee prior to the existence of registration. An injunction is an order of the court awarding a party relief prior to the determination of the case on the merits. The legal standard for a court to grant injunctive relief is exceedingly difficult to meet, which means the prospects are favorable for Mr. Reid as the case moves forward.

Plaintiff Background  

In 1991, Ronald Reid broke into a woman’s home in Shelby County, Tennessee, and raped her. He was sixteen at the time, and she was an adult. He was prosecuted as an adult, and, on February 4, 1992, he pleaded guilty to especially aggravated burglary and rape. He was sentenced to ten years in prison and was released from prison in 1998 based on good time credits. By the time of his release, Tennessee’s first version of registration was operational. Prior to 1994, individuals in Tennessee convicted of sexual offenses faced formal consequences that were mostly similar to those borne by individuals convicted of similarly serious non-sexual offenses. There may have been unique collateral consequences for sexual offenses in some areas, such as in family law proceedings, and defendants convicted of sexual crimes may have suffered especially severe extralegal reputational harms in their communities.

Registration History in Tennessee

In 1994, the Tennessee General Assembly enacted a sexual offender registration and verification information statute. The initial registration system was relatively undemanding and mostly concerned with ensuring the accuracy of registry information. A person convicted of a covered offense was required to register with the Tennessee Bureau of Investigation (TBI) by paper form within ten days of being placed on probation or release from incarceration. At that time, the information in the registry was generally considered confidential, but the TBI or a local law enforcement agency could release relevant information deemed necessary to protect the public concerning a specific sexual offender. After ten years, a registrant could petition a court to order his or her removal from the registry.

In the ensuing decades, however, the Tennessee General Assembly repeatedly returned to the sexual offender registration statutes to change whom they covered, what they required, and the protection allowed to registered offenders’ privacy. Tennessee’s sexual offender registration system progressed from a relatively simple system, dedicated to information gathering and tracking, into a far-reaching structure for regulating the conduct and lifestyles of registered sexual offenders after their punishments were complete and, in many cases, for the rest of their lives.

The Tennessee General Assembly could not help itself, so it continued its pattern of expanding the requirements of the registration regime by amendment, particularly with regard to restrictions related to children, regardless of the age of the offender’s victim. For example, restrictions about entering schools, playgrounds and other facilities were added in 2008. See 2008 Tenn. Pub. Acts, ch. 1164, § 11. Restrictions related to libraries were added in 2011. See 2011 Tenn. Pub. Acts, ch. 287. The Act’s residence restrictions regarding schools and other facilities were extended to offenders whose victims were adults in 2014. See 2014 Tenn. Pub. Acts, ch. 992, § 1. The prohibition on being alone with children other than one’s own in a “private area” were added in 2015. See 2015 Tenn. Pub. Acts, ch. 516.

Plaintiff’s Complaint

Reid complains that he is especially distressed by the ways in which his registration status has interfered with his parenting. For example, he is unable to take his young children to playgrounds, an activity he had done with his older child before the Act was amended to make it unlawful. His children’s principals have been unwilling to grant Reid permission to come onto school premises, so, while he can drop his children off and pick them up, he cannot go inside or attend school events. For that reason, he missed his daughter’s kindergarten graduation and his stepson’s high school graduation last year. His daughter recently wanted to go to a fair, but he was not able to take her because he believed it to be unlawful under the Act. On top of these restrictions, a police detective has informed Reid that he cannot decorate his house for Halloween, cannot take his children trick-or-treating, and cannot hand out candy himself.

The Court concluded that its analysis in this case would be based on the decision in the case Does v. Snyder decided by the United States Court of Appeals for the Sixth Circuit. See Does v. Snyder, 834 F.3d 696 (6th Cir. 2016). The court determined it should conduct its analysis using the Mendoza-Martinez factors. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Those factors are:

[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter(intent), [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

In Does v. Snyder, the court accordingly found that the Michigan law was punitive in effect and could not be imposed retroactively. The Snyder court forcefully explained:

A regulatory regime that severely restricts where people can live, work, and “loiter, ” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by -at best- scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

In this case, the court cautioned, “Reid may want and ultimately need to present a good deal more evidence. For now, however, the court can take judicial notice of some basic facts. For example, while the court has no evidence of the full number of parks, schools, child care facilities, and recreation areas in Nashville, the court can take judicial notice of what anyone else in the city can see: that those locations are numerous and spread throughout at least much of the city.” The court noted, “Reid offered at least three examples of instances in which the Act was used against him, none of which gives any indication of having benefited public safety at all. First, Reid, who appears to have been harming no one, was prosecuted for a simple failure to update his information. Then, later, he was arrested and charged again simply for trying to do a job that required him to be on school premises. Third, he was targeted in Halloween-related restrictions which included demanding that he comply with conditions that the state defendants concede appear nowhere in the Act.” The court noted that the mistaken imposition of Halloween restrictions demonstrates that placement on the registry makes one a potential target for law enforcement scrutiny over and above what the law actually requires. The court also stated, “The undisputed evidence in the record, therefore, supports the conclusion that the punitive effects of the Act outweigh any civil benefit.”

NARSOL is excited about this case because it is another step in building the body of case law, which will help us in our long-term goal of elimination of the nightmare of public registration. It is worthwhile to note that the court in Doe v. Rausch mentioned that the Tennessee Supreme Court had fired a warning shot several years ago which the legislature chose to ignore. The court in Rausch stated, “. . . the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive.” As we stated in our previous article, the lesson for lawmakers would be to stop while you are ahead. Unfortunately, we do not expect that to happen because the political pressure is significant due to widespread public support of registries.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

  • This topic has 12 replies, 1 voice, and was last updated 3 months, 1 week ago by AvatarA Mistake They Made.
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    • #75303 Reply
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      Arne Hesson

      Seems strange, when my sentence was 1983, convicted in wisconsin. Released in 1993. Signed a paper while on parole to register for 10 yrs. Or, length of parole [ended 2012] . But in 2002 was placed on lifetime. Live in Minnesota and register in 2 states, and new rules applied to me by 2 states. Yet this is NOT considered punishment?
      Tried to get someone, anyone to take my case to no avail. I am now 68 yrs old 100% disabled, so am expecting to go to my grave on registry.
      I hope this person wins this case. Before they lose all, as i have

    • #75308 Reply
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      Vito Lombard

      This is a reality that many hope not to have to face. I feel for you. When those few of this society learns what ramifications such a law imposes on its members across the country and that forcing a county to enact law is just as unjustified, maybe we will begin to truly move forward as a people of wisdom. The movement has to have a lasting affect in order to effect change. Thank you for all you are doing.

    • #75309 Reply
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      Tim in WI

      You must fight to win. All good stuff in this piece. The only thing missing is an accounting of legal fees. Few reports are made on those facts.

      All of these same facts do come out in felony FTR cases IF of course you defend yourself, pro se or otherwise, in a jury situation. The only real difference between filing for a federal injunction is about 400$+ cost of production of documents in triplicate. FTR cases cost very little except time. The presumption of innocence and burden are different. Some of us have the advantage, as this case, with being completely ex post (pre94). Naturally I’m happy with this ruling because it proves the minority opinions in Smith V. It also proves with respect the ” use of database infrastructure ” the unconstitutional uses abound to epic proportions. FISA for example, a regime with secret courts for political protections associated with electronic domestic surveillance saints and programs. All advanced of course on the pseudo civil use of SOR and the plain indenture implicit.

    • #75314 Reply
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      Perry

      I’m glad for the guy in TN, but sad for Arne. I feel for you Brother. I too, may end up dying while on The Registry Myself. However; I’m going to try Fighting First, before I go to My Grave. At least I’ll Go Down Swinging! It’s going to take a massive Political Shift in this so-called effort of ‘Criminal Justice Reform’, for any REAL REFORM to take place including Eradication of The Curse of The Registry!
      Done.

    • #75315 Reply
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      WearethePeople

      Thanks Larry, Well written, so the key word for me is Punitive which is intended as a punishment inflicted. I look at the Registration and Punitive as equal, for this man as well as everyone on the Registry. What other crime has this type of restrictions that continue above and beyond. That is the problem I feel, and I am not on the registry. I cannot give out candy or decorate my house for Halloween. I cannot have my grandchildren at my house only the ones that are over 18. This is when my beloved so called SO is in the house I feel for my grandson who cannot see his brothers who are younger. I feel for everyone that is a part of this messed up laws, that are punishment in the highest degree. We will Win, because the more that get put into this soup bowl. The more it opens the eyes of ones that were not aware of the horrors of being labeled a Sex Offender. Good Luck to this young man, and thank for fighting for the rights of us all.

    • #75318 Reply
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      mut

      “[T]ime-consuming and cumbersome in-person reporting” is no doubt laborious and recompensable.

    • #75320 Reply
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      Maestro

      *For example, restrictions about entering schools, playgrounds and other facilities were added in 2008*

      So, for example, these additional restrictions are not because something actually happened on a playground but rather it’s to make the neighborhood busy bodies feel good. So what’s the excuse for not having these restrictions since 1994? There’s a good argument to bring up in a fight against the registry.
      Also, this man’s case and the restrictions of where he cannot go just proves that no one cares what the offense was. This man was a teenager and raped an ADULT. But everyone fears he’s going to molest a child so therefore he cannot go to a playground or a school.

      Just like how the NYC mayor wants to restrict “certain” sex offenders from using the subway system. Yeah . Right. No one cares how petty or severe a sex offense is, it’s a sex offense and anyone who ever encounters a cop for ANY reason (getting mugged or assaulted in the subway by thugs) is going to be treated as if he/she doesn’t belong on the subway trains because he/she has a sex offense conviction.

      What do we do about this nonsense?

    • #75325 Reply
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      David V C

      Praise God!!!!! This is great news and we all need to hear wins like this.
      As I read various sites, and even ‘hate’ related sites, more and more journalists, writers, and common people are beginning to see the facts and statistics about recidivism, and how worthless and punitive the registry really is and the collateral damage it causes, so, praise God!!!!!!

    • #75331 Reply
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      H n H

      Maestro, good question, not sure how to attack stupidity. Before my life incident, I was heavily into repairing aircraft. I was part of a forum online and gave that information to the registry with no problem. Upon my release from prison, my PO asked about online activity. So I was up front with him and told him about the forum I was on. He looked into it and seen what it was all about, homebuilt aircrafts, etc etc. Then told me he didn’t want me on there because there were other people on there and THAT was cause for concern that I may invite a young boy to town to take him flying or something and molest him. Now, I’d been to 2 separate psychological experts who gave me a full review and range of tests before going to prison and was not deemed a pedophile. While in prison, I was again examined by another know it all psychologist who deemed me not to be a pedophile. Then my poly came back and showed I’d passed everything. The court determined I was NOT a predator, yet my nut job PO deems it his responsibility to ban me from looking at planes for “fear” of something completely unfounded and baseless… I was in trouble for a teenage girl who came onto me. Not the other way around. And the trial proved that. Yet since I got out, I’ve learned that my PO deems me as trash and not a human at all. Every move I make has to be monitored and policed, this makes any form of private sexual life a complete waste of time and is just more shame for every time I get aroused. The problem here is not just the registry, but people’s fears about anything sexual. Of course these same men and women all have sexual toys and porn in their house and it’s ok cause they aren’t under the eye of scrutiny. The hypocrisy is beyond words.

      While in prison, the class shoved down our throats the misperceptions of “catastrophizing” situations and making something more than what they were. We were deemed mentally messed up if we showed to be looking for the worst, yet that’s exactly what the state does. When I pointed that out to my PO, his reaction was, don’t argue and don’t let what you want to say keep you from going somewhere you don’t want to be. In other words, it’s the states narrative and that is that I’m a pedophile, the facts and their findings be damned.

      I don’t know where to go with such skewed thinking.

      All I can say is, fighting for freedom from the sex offender stigma (lifetime parole, registry) is like screwing for virginity or fighting for peace. It’s useless. I don’t know what to do with my life anymore, this defines me. My death is the only way out….. 30 more yrs, get here!

    • #75339 Reply
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      perplexed in NC

      I have long asked how one can have a rational discussion with irrational people…
      The politicians function by inciting fear and proposing that they alone can provide security; give them power over your life and all will be well. Yet we know that it doesn’t work. Ask people living in Communist China if bad stuff still happens after the state has all the power.
      I would like to think that if we turn their rhetoric around on them, by using their soundbites on other issues to demonstrate the fallacy of the registry, that we could get them to back off. I am not sure that they care enough about truth to do the right thing, but I think we have to try…

    • #75343 Reply
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      Maestro

      H n H,

      I feel for you man. I am no longer on probation or the registry and I refuse to ever be on either again. And I mean that!
      As for probation, they are puppets doing what they are programmed to do. They know they’re full of crap. Banning you from an aviation group!!! That’s something I would save up money to hire an attorney for. Don’t be afraid to file a complaint about probation. I did it. Hell, I did a 2 page spread interview about their lunacy in a local newspaper. Then another with a Yale college student who was doing an assignment and chose see offenders as her topic.
      I laughed to myself when I walked into my P.O.’s office the following week to see a copy of the newspaper article on her desk. I pissed them off but pissing off a probation officer with your constitutional freedom of speech is NOT violation worthy. And if they DO violate you, it will be something else they use as an excuse which you will hands down win in court.
      I also filed a complaint with the local chapter of then civil liberties union which the guy I spoke to convinced me…. manipulated me… into not continuing with the lawsuit and to just follow their rules until it’s over. Yeah… no! Their probation rules do not make sense. I have always been of the belief that probation is a waste of taxpayer money. If you get sentenced to 10 years but only have to do 2 with the remaining 8 suspended, then leave it at that. If you do something wrong, the court can play with the 8 yrs hanging over your head. There is no need for a probation officer to LOOK for b.s. to send you back to prison. Also, some people’s probation ends before their registration ends. In CT registration is 10 yrs. but there were guys that only had 5 yrs of probation. What’s the point? Also, you can deny plea deals and request a few more years in prison to avoid probation. THAT RIGHT THERE proves that probation is useless.
      I don’t know how I feel about “defund the police” but I would love to defund probation.

    • #75359 Reply
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      A Mistake They Made

      Here is one for our team! Thank You!

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