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.
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.