Long awaited news from Colorado is disappointing

By Larry . . . NARSOL is extremely disappointed to announce the long-awaited decision from the United States Court of Appeals for the Tenth Circuit.

To refresh your memory since this case has been pending for several years, U.S. District Judge Richard Matsch found that Colorado’s sex offender registration scheme was unconstitutional back in August, 2017. The state appealed Judge Matsch’s decision  to the Court of Appeals. NARSOL filed an amicus, and a group of legal scholars filed a separate brief. Unfortunately, the three-judge panel reversed Judge Matsch and remanded the case.

NARSOL will be providing a more detailed analysis in the next few days. In the meantime, you can read the opinion here. Also, the case will be discussed this Saturday of the Registry Matters Podcast. The podcast is distributed on Monday via YouTube or you can sign up for notification at registrymatters.co.

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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 23 replies, 1 voice, and was last updated 1 month ago by AvatarBrian.
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    • #75408 Reply
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      Arne Hesson

      One is blind to the idea that the registry is not punishment, or our lawmakers are really quite stupid. If even 1 of them ever receives a threat, or has their personal information leaked to the public, they cry and scream of THEIR RIGHTS.
      The judge who found on this case is a complete and total idiot.

    • #75427 Reply
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      Lovecraft

      I would say I hope they appeal, but I just don’t know if the supreme court can make the right decision. Justice Kennedy was pretty vocal against the current registry scheme in the Packingham case, but he is retired now. Man what a tough blow.

    • #75447 Reply
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      mut

      split in the circuits could prompt certiorari and Thomas may have a different take on mandatory in-person reporting, like he hinted in Smith.

    • #75446 Reply
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      Dustin

      @ Lovecraft:

      Kennedy actually penned the “frightening and high” lie in McKune v. Lyle. You’re thinking of Alito’s comment about the registry in Packingham, and he’s still there.

      If appealed, I’m pretty sure it would be to the full 10th Circuit Court instead of SCOTUS, adding a few more years to litigation (correct me if I’m wrong). Would think the resources of the petitioners are a pretty big consideration in whether to appeal or not. Maybe a gofundme campaign would be in order?

    • #75443 Reply
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      Allen

      Honestly….. I’m not surprised. No one wants to be the one to put their name on the line when related to sex offenders. This stuff is punishment and it never stops. I’ve been on the registry for 17 years and all they ever do is just keep adding more and more restrictions. Ex post de facto does not apply, invasion of privacy does not apply. Your right to travel freely has been removed from you. It just doesn’t matter they will never stop. To stop would mean they would have to admit they have been lying. And they waited and drug this out for two years for what? So the attention would go away from it and to just waste more of all of our time and.

    • #75442 Reply
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      H n H

      Arne, the lawmakers know with 100% clear and unmistakable certainty that absolutely positively unequivocally without any thought or reserve of any other potential answer, the registry is definitely punishment. Everyone knows it, so stop arguing that they are stupid. They are wise in their legislative doublespeak and the God forbidden Supreme Court decision that said the registry was “legislative” and not punitive was a clear travesty of justice.

      Look, the courts have found a legal loophole in this registry scheme claiming the difference between punishment and paperwork isn’t punishment. Noone is going to reverse the decision based on reality because they DON’T WANT TO! The truth is, Noone has any integrity to stand up for these terrible laws, and Noone ever will until, as in Germany, the entire scheme comes crashing down around them.

      Our country is in some serious financial trouble, and when reality comes home to these clowns in high offices, their petty schemes will NOT have the money to maintain themselves. I sincerely believe that will be the end of the registry and lifetime parole….. Financial collapse. And it’s coming.

    • #75439 Reply
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      Thomas & Sophie

      It is the 9th Circuit Court that is always the hope of those seeking civil rights, the ruling are always more fair than the other circuits.

      The 5th Circuit, calls the 9th Circuit “The Hippy Circuit” because they are the more enlightened while the 5th… what is the right world, that would be opposite of enlightened?

    • #75436 Reply
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      ALD

      Pennsylvania is still alive on this issue. We are not dead-in-the-water there yet… just a bit slowed down right now on the latest PA Supreme Court decision. There are still state grounds based on the state constitution that have not been challenged yet. Additionally, many potential plaintiffs are looking for a federal question based on the federal constitution there. Michigan is good right now, and Tennessee might have a chance. There is still hope. We are removing the wall… brick by brick! Keep fighting, get people to vote!

    • #75432 Reply
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      freedomwriter

      People fail to realize how it opens all of society to these same laws.

    • #75431 Reply
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      Ed C

      Wow, that was exhausting to read!

      The Tenth Circuit shot down the district court on every one of its findings. All this still leaves open the question of when a particular registry implementation crosses the line to becoming punishment. Granted Colorado is fairly benign compared to states like Florida. But when do registry requirements resemble “traditional forms of punishment”, or are no longer “rationally related” to legitimate civil goals, or are “in effect” sufficient to constitute punishment?

      Under current precedent, all a legislature need do is to state that its intent was non-punitive. A plaintiff is then required to demonstrate the “clearest proof” that the effects of the law constitute punishment. That is an extraordinarily high bar with very nebulous criteria. Even though all research shows a low recidivism rate, and that registries do little or nothing to protect the public, they are still considered to be “rationally” related to a public good. Just what the hell does “rationally” mean in this context?

      I am not surprised by the decision, but my head is still spinning.

      Veritas.

    • #75462 Reply
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      Steven Peterson

      Terrible news to wake up to. How any sane person can consider CSORA or similar laws to be “not punishment” and “rational”, etc. is beyond me. I am a resident of Pennsylvania, where the State Supreme Court ruled against retroactive application of Adam Walsh and consequently I was released from the registry. I have considered moving to Colorado but this is a strike against that decision. No way will I return to the registry and have to endure the humiliation, risk of attack by vigilantes, restrictions on where I can live and work, travel, etc., none of which is punishment according to our wise elders.

    • #75464 Reply
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      Perry

      I’m with H n H on this: When the MONEY for this entire BS Registry and Community Notification Crap gets to the point of being Critical to Maintain, then Legislators-State AND Federal-are going to have some tough choices to make. Add to that COVID-19 Round-Two coming up within the next two or three months, and a Presidential Election sure to be contested somehow and someway, and you’ve got a recipe for nothing but Trouble All The Way Around! Here’s a For-Instance: When Vaccination Time comes, look for these Knuckleheads to suddenly decide that ONLY People with NO Sex Offense Histories get a Vaccination Shot while WE still have to suffer! Never mind whatever Circuit Court may or may not hear this revisited in another two or three years. The Pharisee Politicians know or believe anyway that enough of Us could Die Off due to Corona 2.0, which is outright murder on their part. They’ll argue once more: ‘Hey, It’s not Punishment.’ And they’ve always got the Vigilantes to fall back on if nothing else. So it seems to me, that MONEY will drive their will to either keep this up or see it all Crash and Burn. I’m Betting on the Crash & Burn. THEN, we’ll see if they can Fund a Registry or anything at all!!
      Done.

    • #75470 Reply
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      Ed C

      You are right, Dustin. The next step would be to request reconsideration by the full court at the 10th Circuit. That normally does not happen unless there was an obvious flaw or conflict with existing binding precedent. Beyond that, the only recourse is the U.S. Supreme Court.

      The SC could grant certiorari to resolve a split between various circuits. However, that is itself a long shot. One problem is that the question has no bright line, but revolves around a matter of degree. When do registry requirements become so onerous that it tips the scale to legally constitute punishment? Three turns verses two turns of the thumb screws?

      Somebody had the idea that a wife or child could raise a lawsuit based on tangible collateral harm. That might be a workable approach if one could get past the question of standing. They would also be afforded more sympathy. This needs to be a worst-case situation. We need to find a family in a very oppressive state–like Florida– that became homeless due to the father’s registration causing a loss of income and/or due to residency restrictions. Also it is best if the registrant is on the registry for some “minor” sex crime long ago. I would contribute what I could to that legal approach.

      Veritas.

    • #75475 Reply
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      TS

      @Dustin

      An “en banc” review (entire bench, not just panel of three) reviewing it is an interesting thought before considering SCOTUS. I’d be up for that to give time to help settle SCOTUS because there could be a seat or two opening soon enough if one listens to the winds from WDC. It would certainly be an interesting guess as to the final decision and the impact it could have. (Would @Robin, et al, @NARSOL be willing to opine in this section on seeking “en banc” review of this decision before going to SCOTUS?)

      Speaking of SCOTUS, as mentioned, look up online and read this SCOTUSBlog posting about precedent, stare decisis, and justices sticking to their decisions…or not: Empirical SCOTUS: Precedent: Which justices practice what they preach (no link per website policy)

      I bring that up because Roberts would probably not want to hear Smith v Doe (AK 2003) being challenged again in this case and thus, votes “no” on hearing it; however, the politics of the court and our nation today needs to be considered in whether it is time to appeal there. The 90 day clock started yesterday (21 mos 2 days after oral arguments and nearly 3 years (31 Aug 2017) after Judge Matsch ruled.

    • #75477 Reply
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      Government

      The government’s real job is maintaining the population. Giving in the light, and taking in the shadow. There is only so much food, water, and land. Starvation means losing control over the populace, so a balance must be maintained. If the populace rebels, the powerful lose control. Money itself is a rigged system, channeled outwardly to those who do their bidding, and taxed back to the source. Stay quiet, stay afraid, stay compliant, stay distracted, stay asleep, just don’t focus on the powerful, the ones pulling the strings, because they might lose control if you do. Don’t work together against the powerful, because they don’t want to lose power. The courts are those that put you in this situation, do you really think appealing to their good nature will change anything? You have been selected for systematic destruction.

      Rise up together, or die alone.

    • #75481 Reply
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      Lovecraft

      Kennedy said this in the Packingham opinion “Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court”

      It felt like Kennedy was trying to right a wrong from the McKune v Lyle before retiring.

      Alito, Thomas, and Roberts also ruled in favor of Packingham, but did not join the opinion because they thought it left the states “powerless to restrict even the most dangerous sexual predators.”

      The colorado case was in the 10th circuit court so im pretty sure if its appealed its appealed to supreme court.

    • #75513 Reply
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      Dustin

      I really think everyone should stop thinking in terms of overturning Smith v. Doe. Smith specifically detailed what made Alaska’s registry “regulatory” at the time, all of which was negated by every single legislature in the country. Residence, employment, and presence restrictions, more onerous reporting requirements, higher fees for doing so in many places, mandatory community notification – all of which was detailed in Smith, yet even courts won’t read anything past “civil, not punitive.” In short, lawmakers have already overturned it.

      Further, the current registry is not “publishing information already public.” Names, cases, and convictions are public information and available to anyone who wants to go to the courthouse to get it (a very small population). Addresses, phone numbers, email identifiers, and employment are not.

    • #75512 Reply
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      H n H

      Lovecraft, the simple answer to the issue you bring up: Kennedy said this in the Packingham opinion “Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court”….

      The states solution to this is to blanket any crime deemed sexual in nature with lifetime parole if a prison sentence is carried out. In that case it leaves no way to fight a conviction withouttthe result leading to being a ward of the state for life thus forcing anyone accused of a crime into taking a plea bargain to get probation. The courts have a vested interest in finding people guilty, they’re all in it together, the legislators, senators, congressmen, judges, da’s, attorneys, bail bondsmen, probation / parole officers, counselors, everyone has a motive to find people guilty as their livelihood depends on it.

      This nations freedoms are but a passing thought.

    • #75511 Reply
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      Alexander C. Miles

      Intelligent comment re doublespeak which is commendable: The government only wants to do what’s best for Nigel the Mo – Nigel needs a helping hand!
      But – in the collapsing Third Reich the trains to the extermination camps kept on going until almost the last moment when the Russians overran the camps and the skeletons had to be buried hastily.
      No matter how bancrupt the U.S. will be, it will similarly prioritize the persecution of sex offenders.
      When folks are pushing around wheelbarrows filled with trillion dollar bills to buy a loaf of bread, sex offenders will still be persecuted. It is because of the necessity of eradicating humanoids with certain perceived incurable proclivities.

    • #75510 Reply
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      David V C

      If you look for it, in the judgment it is openly confessed that the public can ( and does) punish us and the legislative branch cannot be held responsible because it can only be ‘punitive’ in the court if it is done by the government.
      In other words, as long as it is only the public punishing us and our families, and not the government, the courts will not take our side.

    • #75508 Reply
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      Jonathon

      I would recommend Georgia to any registrant who conviction occurred before 2005.
      No restrictions and no annual fees.
      Once a year registration.
      Moved here in 2017
      Been happy to have moved from SouthCarolina.

    • #75541 Reply
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      Tim in WI

      It is not only disappointing, it is ugly. We can again thank the Rehnquist courts’ leadership on the issue of utilizing the database driven machines infrastructure to attack the convicted. Naturally the people follow their leadership and use it to attack from every angle.Naturally war will ensue against such a police state. A product of the course of things to maintain a nation with 25T in debt. You must reintroduce slavery as means to pay the interest on it. Resistance is futile you must comply.

    • #75558 Reply
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      Brian

      I wonder why all of these cases come down to a final decision on election years it seems, it’s as if, it’s all scheduled and plotted for this to happen, knowing that these, pos politicians and judges will not decide in the offenders favor, even if they have to violate their oath it seems.

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