Surprise ruling from Louisiana Supreme Court ends “Scarlet Letter” ID

By King Alexander . . . This week the Louisiana Supreme Court handed the forces of onerous registration an unexpected defeat on federal First Amendment grounds. The court in a six-to-one ruling struck down two statutes requiring registrants to carry state identification bearing at bottom center the words “SEX OFFENDER” in orange block letters, on grounds that the statutes impermissibly compel content-based speech. State v. Tazin Ardell Hill (La. 10/20/2020).

Last year a district judge in the 15th Louisiana Judicial District in Lafayette Parish held the statutes unconstitutional on those grounds and dismissed a criminal prosecution against Mr. Hill for having cut the “Scarlet Letter” notice out of his ID. His public defender properly raised the constitutional issue, particularly on federal First Amendment grounds. He argued that First Amendment rights are fundamental so that strict constitutional scrutiny applies, and the state in this instance did not use the least restrictive option available, which is required only in certain situations; therefore, the statutes were invalid. The court pointed out that if any notification on an ID at all were legitimately needed for law enforcement purposes, it could have been done by a discreet code on the back of the card such as used for other limitations like eyesight-corrective lenses for some drivers.

Will This Ruling Be Appealed?

The Hill decision cannot be appealed because the Louisiana Supreme Court is the court of last resort in Louisiana. Under the state constitution, the state has the right to appeal directly to the Louisiana Supreme Court from any district court ruling that holds a state statute unconstitutional. Thus the district attorney was able to skip the Louisiana Third Circuit Court of Appeals and go straight to the Supreme Court where he undoubtedly expected to win a reversal and continue the prosecution. Otherwise, he would not have appealed a district court decision that would not have been binding on any other court in the state.

Because the court predicated its holding on the federal First Amendment and federal jurisprudence interpreting it, rather than on the free speech provisions of the Louisiana Constitution, the Lafayette Parish District Attorney or the Louisiana Attorney General could apply for a writ of certiorari to the United States Supreme Court to review the federal question. However, it is very unlikely that SCOTUS would grant any such application.

The public defender who achieved this victory all by himself is Michael Gregory, now at the Louisiana Capital Assistance Center in New Orleans, a non-profit organization to whose leadership the entirety of the Louisiana criminal defense bar is indebted for many things. Mr. Gregory is being nominated for an award by the Louisiana Association of Criminal Defense Lawyers this year for his outstanding service to the indigent accused.

Because of the Hill decision, all Louisiana registrants should get new state identification cards and drivers licenses that do not bear the “branded identification card.” The law enforcement arms of the state government have not always been quick to comply with the clear implications of court rulings, so it remains to be seen whether further litigation will be necessary to bring into line the state Bureau of Criminal Identification and Information (minder of the state registry, under the Louisiana State Police), the state Office of Motor Vehicles, and law enforcement and prosecutors throughout the state.

Attorney Nishi Kumar and others at the Promise of Justice Initiative (PJI) in New Orleans have been preparing for over a year a civil impact suit to challenge the “Scarlet Letter” ID requirement for persons adjudicated as juveniles. Juveniles received no trial by jury and were not even notified in advance of trial or plea that branded identification would be required. Although “juvenile life” for detention purposes ends at age twenty-one, all juvenile registration, because it is for Tier 3 offenses, is for natural life.

This was brought to the attention of the Louisiana Supreme Court in State in the Interest of K.L.A. (La. 2015). The constitutional issues that succeeded in Hill were raised, but the court had a duty to decide the case, if it could, on non-constitutional grounds, and it did. It found that the ID statutes as then written did not explicitly include persons adjudicated for juvenile offenses but referred only to “convictions” which, as a matter of clear state law, juvenile adjudications are not. The applicant got relief, but the court was able to confine their ruling to that litigant only, saying that his registration was a matter of the plea agreement rather than compelled by the offense alleged in the petition. Consequently, K.L.A. got relief, but no one else did, until now.

The habit of Louisiana prosecutors is that any time they are defeated on a point of law, they run to the legislature in the next regular session and get the law changed. That’s what they did after K.L.A. In the 2015 regular session they got the ID statutes changed to refer explicitly to juvenile adjudications. The amendment modified only the ID statutes, with the result that the statutory Notice to Sex Offenders that must be given upon conviction by plea or trial still does not list among the various consequences of adjudication the fact that a “Scarlet Letter” ID would be required, and for natural life. They did this because they knew that if they amended the notification provision, which is in the Children’s Code, such a bill would have drawn the scrutiny of juvenile nonprofit organizations and those committees of the criminal defense bar that track such legislation. As done, it escaped notice and thus any opposition in the pertinent legislative committees.

Now with the Hill decision, there is really no way to resurrect the branded ID requirement legislatively. PJI can broaden the scope of its planned civil impact litigation to enforce the rule of Hill for all Louisiana registrants in the event that the state’s law enforcement arms including the OMV, BCII, and other arms balk at providing unbranded ID cards and respecting the right of every registrant to carry IDs that lack the ignominious notice. PJI is also currently preparing to file a class action against the state of Louisiana for its persistent over-detention of prisoners beyond the expiration of their sentences.

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King Alexander

E. King Alexander, Jr. is Senior Co-Chair of the Amicus Committee of the Louisiana Association of Criminal Defense Lawyers. Admitted in Louisiana, California, Texas, and eight federal courts, he serves as trial counsel for indigent people indicted for life-without-parole offenses in Louisiana’s Fourteenth Judicial District.

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    • #77583 Reply
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      TS Rohnevarg

      Accordingly, why is it then not unconstitutional compelled speech to be subjected to public defamation by the state labeling you an “offender (which, by definition, means ‘someone who offends, i.e., at present’)?”

      • #78364 Reply
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        TIMOTHY Miller

        Its time to challenge the Adam Walsh act and the act requiring the identifier on passports to the supreme court. thease act ar violations of our right in the constitution including the right to liberty and the persuit of happyness

    • #77590 Reply
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      Perry

      Good for them. Finally, SOMETHING that’s gone right for US at least once. Of course; that District Attorney will go crying to The Legislature come next session because he lost-Waa, Nanna Waaaa-and he’ll get the whole things changed in such a fashion that, The State Supreme Court will end up having to be FORCED to agree with him the next time. They’ll never stop until they get what they Ultimately want: All Our Deaths!
      Done.

    • #77600 Reply
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      Johnny Chambers

      They also need to change the fact that all S. O. ‘s have to carry an I. D. that has to be renewed annually, regardless if you have a Drivers License which also has to be renewed annually. Louisiana has just found a way to make more money.

    • #77601 Reply
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      Tim in WI

      @All,
      The forces of onerous registration are those who in the early 1990s tactically demanded unfettered potential use of the database driven infrastructure in the first case. Who benefits most from enslavement of human citizens to database machine property…if not database manufacturers? Section 230 US CODE examples precisely the same general attitude towards BIGTECH CASH versus individual sovereignty. Sex offender registries were the key that unlocked the gate to affirmative restraint by database. Speech right is implicated by the demand for Control information demanded n registration forms. In effect SOR forms are tantamount to answering questions by cops. Speech wasnt raised by anyone in the advocacy groups complaint in the 03 doe decisions. And by avoiding that question the Rehnquist court failed the people’s republic in favor of database machine.

    • #77603 Reply
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      Anon

      Hopefully all registration is ruled unconstitutional based on first amendment and compelled speech (speak or go to jail).

      Congrats for a win on LA.

    • #77604 Reply
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      Al

      This is awesome! My license is up for renewal in November, so you can bet I’ll be watching this closely!
      Now, to get them to rescind me having to pay a 4 year license fee for a one year license, and carry both a state ID card, AND a driver’s license at the same time.
      Louisiana has some stupid laws. It’s time we attack them all.

    • #77605 Reply
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      G money

      Will they still only be valid for one year? Do we have to request a non branded DL or is that even an option yet? Will we still be required to have 2 forms of ID? So many questions, so few answers.

    • #77607 Reply
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      Jim Coghill

      I’m still waiting for the constitutional ruling that shoots down the registry itself. When it happens in one state (and it will) the remaining states will fall like a house of cards. I can only guess that the right case and the right attorney’s are not on the scene yet. It seems like that’s how these cases go. That only the right cases and the right lawyers get any traction out of the millions of cases out there. There’s no way that falls even close to the definition of justice.

    • #77616 Reply
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      Daphne Thomas

      This is a step in the right direction. I do not understand how any of the stuff that is done to RSOs and their families is deemed constitutional!

      Jim Coghill, I hope you are right. That’s what I keep praying for every day!!!! Until then, I’m going to continue to fight for the RSO’s rights!!!!

    • #77618 Reply
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      Maestro

      *it could have been done by a discreet code on the back of the card such as used for other limitations like eyesight-corrective lenses for some drivers*

      This is troublesome because had this been the case, they wouldn’t have ruled against it. But people with corrective lenses don’t get harassed by cops during a traffic stop. It should be a problem for everyone in this country that any judge or even the lawmakers themselves think it’s ok to permanently mark people. This is a HUGE problem. When will someone challenge it as it needs to be and stop with the stereotypical legal banter that attorneys always use?
      What penalties is a ballsy attorney going to face for coming right out and saying: “Your honor(s), branding people for crimes they paid their price for is unconstitutional no matter how it’s done. Front of the ID, back of the ID, public registries or private registries. We don’t do this to any other criminal act and if we did, there would be a lot of people on such a list and a lot of uproar to get it abolished.”

      Just come right out and say it! Damn it all!

    • #77621 Reply
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      Jeremy from Indiana

      I heard about this law a few years ago and was wondering when it was going to finally get challenged. It’s sad that our justice system takes 3-5 years to correct a blatantly unconstitutional law. In Indiana, the only ID issue is that we have to have our current address on our ID within 30 days of moving or it’s a violation. I think the code on the back of the license was actually a suggestion for the legislature, but what bugs me is why do they think it’s needed? LE can look up your info in a traffic stop or any other legal detainment anyways, so they don’t need it. Who else could possibly need that information?

      The issue that I find the most annoying is the multiple county registering in person crap. I live in one county and work on the edge of the next county over. Every time something changes that I have to report, I have to register in person at both county offices (the one I work in, the county seat is about 20 farther than my work and only open during business hours). The funny thing is when I register in the second place, the computer system is already updated with my info from the first place! So why did I have to take time off of work again? The county I work in also has their annual registration take place on their schedule which is in April and my annual is due in November, so now I have to do an annual registration twice a year… read that again!

      I swear the arbitrary laws are designed to make it easier for them to violate us for frivolous reasons. I’m glad I only have a few years left, but I’ll never stop fighting for this cause!

    • #77622 Reply
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      GeorgeS

      I hope that this could be used to change the law where it puts the word “SEX OFFENDER” on all US Passports, that law is stupid and needs to be changed, especially if your sex offense is not a crime in the country you plan to visit, that would be like telling the Netherlands that this person has possession of Hashish offense, think that they would care, or does it show that you are a danger to anyone int that country?

    • #77656 Reply
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      LoveTheBillOfRights

      Why do police need this? What exactly does it do for them that they don’t already get? They run your car plates before they even stop you so they know it is associated with a registered person. They run your driver license and it shows who you are and that you are a registered person. They could check your name just as fast against the registry. So why do they “need” this? Are they more afraid to approach a registered person than a murderer, gun dealer, drug dealer, spouse abuser, etc.? This is NOT a so-called tool for law enforcement. It is clearly meant to shame and nothing more. Further, changing to an obscure code “only police know” will not help as cops will immediately post the code online for all to act like heroes. I also see no reason to limit driver licenses of registered persons to only one year. Failure to update your address change on you license is a crime for every person and with all the constant check-ins with police and S.W.A.T. teams banging on doors to check on registered persons, this nonsense is hardly necessary.

    • #77676 Reply
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      A Mistake They Made

      This is what happens when the Judge follows the constitution and makes a judgement without there personal bias. We just got another Constitutional first Judge in the Supreme Court Of The USA this week now is a good time to take our case to the big court!

    • #77787 Reply
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      Crash

      -GeorgeS

      The SO designation on passports is to further put a noose around the necks of SOs. It is simply to have them live in such a way, as to when they were caught up with the justice system (i.e. a restrictive life with constant exposure of their status, missed opportunities, etc).

      The lawmakers in their pretense, have passed the passport laws over “concern” for minors in other countries. Countries that are sovereign and that they have nothing to do with. The majority of them would never even bother to give to charities which help the unfortunate minors in those countries or go to those countries and help those minors themselves, as they enjoy their expensive TV with cable in their expensive home with air conditioning, as well as Netflix, their smartphones, good restaurants, and many other things.

      There are no other crimes for which the price can linger for such a long time and in so many ways than the SO ones. An arsonist or murderer would never have to have a passport which designates would sort of crime(s) they did (or in some cases falsely accused and forced into a deal or losing at trial). Not even a parent who severely physically assaulted their underage son or daughter.

      Isn’t it funny, how in American society, SOs are hated with a passion and most people want bad things to happen to them, but when it comes to the SOs actually leaving and “making their neighborhoods safer,” the lawmakers and thus the people that they represent, have worked to hinder or prevent SOs from leaving in the 1st place?

    • #77797 Reply
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      Mig

      Here is what is currently on the HOME page of the Louisiana Office of Motor Vehicles –

      The Louisiana Office of Motor Vehicles is aware of the October 20th Supreme Court ruling relating to the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” However, the OMV cannot remove any sex offender designation from a driver’s license or ID card until the 14-day window for rehearing delays has expired.

      Does this mean that there is going to be some last minute rehearing request? How come court rulings for other things have an immediate impact (i.e. gay marriage) but any ruling in the SO favor ends up delayed?

    • #77837 Reply
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      Crash

      -Mig

      Your question: “How come court rulings for other things have an immediate impact (i.e. gay marriage) but any ruling in the SO favor ends up delayed?” was good.

      The overall reason for this is because most Americans have a fear, bitterness, and hatred towards SOs. Anything that disfavors them (like the amendment or change to laws in FL which would allow prosecutors to “upgrade” certain charges to a higher degree, over things that actually don’t have much to do with anything) comes quickly and anything that favors them would go slow. It is “better” for society if SOs are disfavored at all costs.

      Gay/lesbian marriage is something that a large number of people, including politicians, legislators, and judges have accepted and embraced. It is an “acceptable evil,” at least if you are someone that considers themself a Christian. The gay/lesbian marriage laws exist because things took time, little by little, through the influences of the media and entertainment (as in certain shows and movies), the changing minds of the public, and the approval and acceptance of the legislators and people that they represent. Such a thing cannot happen with laws that favor SOs as that would also require the influence of the media and entertainment, overall viewpoint of the public, and the acceptance and approval of the people.

      Is is not the just gay/lesbian marriage laws that exist because things took time, and little by little, through the influences of the media and entertainment, the changing minds of the public, and the approval and acceptance of the legislators and people they represent but also parenting involving gays and lesbians, parenting involving 3 or 4 people, and minors taking hormone blockers and living as if they were the opposite gender.

      Laws that favor SOs cannot sweep the nation as have other things. It is unfortunate but things would just have to take more time I guess.

    • #77900 Reply
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      Ellis Kitchen

      Appreciate everything being done.. I am sitting here in a little efficient Apt. Waiting to be arrested for not being able to pay registration fee for being Evicted. I am on fixed income. This Registration stems from 1985. Four sentence Please, someone HELP

    • #78176 Reply
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      Kevin

      Hope this will have an affect on both the way AZ does their yearly SO drivers Lic, and also on the Label on the Passports of us citizens, which our country condems and tortures by the denial of equal treatment based on the type of offense it is, (even when non contact}, versus murder.. No Equal Treatment by far….

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