Seventh Circuit affirms Wisconsin’s lifetime GPS monitoring

 

By Larry . . . NARSOL is disappointed in the outcome of a GPS challenge just decided by the United States Court of Appeals for the Seventh Circuit from Wisconsin. The case is Benjamin Braam, Alton Antrim, and Dan Olszewski v. Kevin Carr, Wisconsin Secretary of Corrections.

Wisconsin Statute § 301.48(2)(a)(7) requires lifetime monitoring of offenders who have been convicted of a sex offense on two or more separate occasions. The plaintiffs sued alleging that the statute violates their rights under the Fourth Amendment. This tracking continues after the person has completed post-confinement supervision with no opportunity to have the obligation terminated. The tracking data is not monitored in real time; rather, officials review it every 24 hours or so to determine if an offender has been near a school, a playground, or another place that might raise a concern. The program is administered by the Secretary of the Wisconsin Department of Corrections; thus, the Secretary of Corrections was named as the defendant.

NARSOL feels strongly that it is unconstitutional to search a person and seize their private location data unless that person has had some due process. We see it as analogous to permitting search of a person, the person’s vehicle, or their home without any individualized determination that justifies the intrusion after the person is no longer under judicial control. Unfortunately, the Seventh Circuit does not agree with us.

The details provided by the court regarding the plaintiffs are these: Each of the plaintiffs has been convicted of multiple sex offenses involving children, offenses ranging from child molestation to possession of child pornography. The facts of each plaintiff should not matter because they served prison terms and completed their post-confinement supervision. It is only because they have been convicted of sex offenses on two or more separate occasions that they are subject to lifetime GPS monitoring.

The court noted that it has addressed this issue once before in Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016). The Belleau Court upheld a subsection of the statute that imposes lifetime monitoring on sex offenders who have been released from post-prison civil commitment. Applying the Fourth Amendment’s reasonableness standard, they held that the government’s interest in deterring recidivism by these dangerous offenders outweighs the offenders’ diminished expectation of privacy. See Belleau at 935–36. In this case, the court stated, “We begin with the background Fourth Amendment principles. The Fourth Amendment prohibits ‘unreasonable searches,’ and as a general matter, warrantless searches are presumptively unreasonable.” In NARSOL’s opinion, this should have ended the inquiry because there is no warrant requirement. This is simply a blanket statute in Wisconsin that mandates that recidivist offenders be monitored for life. This did not end the inquiry because the United States Supreme Court held in Grady v. North Carolina, 575 U.S. 306 (2015), that warrantless GPS monitoring of sex offenders could be reasonable under the Fourth Amendment, depending on an evaluation of the nature and purpose of the search and the degree of intrusion on reasonable privacy expectations. The narrow question before the Court in Grady was whether satellite-based monitoring of recidivist sex offenders qualifies as a search. In a brief per curiam opinion, the Supreme Court said yes, but it went no further. That is, the Court did not decide whether this type of search is reasonable, but instead remanded for the North Carolina courts to make that determination, with the following instructions: “The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.” See Grady at 310.

In Belleau, the Seventh Circuit had concluded that offenders like Belleau thus pose a significant danger to the public even after they are released from prison or civil commitment. Recognizing the difficulty of distinguishing Belleau from their case, the plaintiffs in this case sought to undermine its foundations. They argued that Packingham v. North Carolina calls Belleau into question. In Packingham the Supreme Court addressed a North Carolina statute that prohibited sex offenders from accessing websites of which minors are members. The Supreme Court held that the statute was impermissibly overbroad in violation of the First Amendment. NARSOL has consistently urged caution regarding Packingham. Too many want to read far more into Packingham than they should. In this case, the court stated, “The plaintiffs’ reliance on Packingham is misplaced. That case involved an application of the First Amendment’s overbreadth doctrine. This is a Fourth Amendment case. As we’ve explained, the application of the Fourth Amendment’s reasonableness requirement has long involved balancing the government’s interests against the individual’s reasonable privacy expectations—not overbreadth analysis. Packingham thus has no relevance here.” See Opinion at 12.

NARSOL will be discussing options in terms of whether a Petition for Certiorari will be filed with the United States Supreme Court.

Larry and Andy discussed this case on Registry Matters 231.

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8 Thoughts to “Seventh Circuit affirms Wisconsin’s lifetime GPS monitoring”

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  1. david

    At what point do fees become punishment? Braam is quoted saying he pays $240/month for GPS service. That’s way more than, say, registering a car in WI ($85/year).

    Thanks for the super article, Larry!

    1. Tim in WI

      Truly always was and has been form of human indentured servitude to state’s proprietary machine property. Suffer the machine device… Or else. Surely the database driven infrastructure has increased criminal activities and done little in the way of real prevention.
      Who would need the people to believe different?

    2. Robert

      I’m on SSDI. So the tax payer takes care of all my “dues”. I will never give the state of Wi one nickel for this intrusion. Maybe the tax payers need to hear that. Instead of putting the money in education, let’s ignore the facts and talk about what never happens, like the BS recidivism crap based on fallacies.
      The truth is that over 90% of children who are kidnapped or sexually assaulted are so by someone they know, fact! So why your GPS is watching SO’s who have been convicted, dad or uncle Charlie are committing assault.

  2. david

    Many on lifetime GPS aren’t even on supervision. After a re-interpretation what “separate occasions” means in 2017, now multiple counts from one act are considered separate occasions. Hundreds of PFR’s in WI were affected by this change.

  3. A Mistake They Made

    So no freedom no life at all for these guys. The answer to this is simple go back to prison and make the state support you.

    1. Robert

      Sexual based crimes are by nature, stationary. Sex offenders are not roaming around the neighborhood snaching kids. They say 700 some thousand children go missing each year. Do you know how many Amber alerts that is per state per month? That is not a fact, its a lie. You keep watching the guy down the street while your brother rapes your kid. That comment is grounded in fact.

  4. Tim in WI

    Larry, as for any sustainable complaint upon 1983 basis substantive 14th claim it would be helpful if any one of those persons cases which the state of WI does not have a signed standard waiver of civil right in it’s possession. Truth is the kind of monitoring by bracelet was available to the judge at the time of sentencing. In the 1990s WI called it “extensive sanction program.” Certainly committal to 980 SVP statute comes with all the substantive protections of trial and representation etc, but that too has been made much easier in scenarios where state has standard waiver in the criminal cases against the person. In terms of rights, a person cannot waive the SVP Processes even if he doesn’t want to contest it. If NARSOL is going to support a claim under the basis of 14th due process, focus on the Congressional error in not including process language in the statutes for attatchment. This is probative in terms of “necessary AND sufficient condition available to the state upon the time of the original conviction. ” California v Stonger highlights this point in the context of statutory limitations & ex post facto laws. But the same logic applies to states Statutes of limitationz and formal due processes. WI has “latches” in statute for post conviction appeals and post commitment appeals. WI Congressional neglect in adherence to those limits disadvantages those being released to its burden precisely because they’re given no opportunity to put the “necessity ” to the people themselves!

  5. Robert

    As a guy affected by this decision, I can tell you that the GPS monitor around my leg is purely a smoke screen to keep the public blind to the reality that the courts and law enforcement don’t give a crap.
    When I went register for the second year, I told the sheriff I was there for my yearly check in, and she told me, ” We don’t keep track of that.” They still have the old picture up. I’m homeless so I have no address, which lets me live wherever.
    The Wisconsin legal system is corrupt, that is why you have lawyers from Illinois filing lawsuits on behalf of Wisconsin residence, plaintiffs. Defense and appellate lawyers play ball with the state.
    Facts in all these sex offender cases are all twisted in a pretzel that ignore the facts and feed on the fear of the public. Recidivism being the spearhead of the nonsense that is spewed from mouth of politicians and those who have no real platform to stand on. Sex offenders are easy targets.
    Political ambition has taken the legal system on a joyride through public fear.
    The GPS monitor around my leg is a total waste of tax money. It is a useless piece of plastic around my leg. It does nothing to protect the community.
    Here is prime example of what I was told when I was released from prison. I can go wherever you want during the day, but have to be back in the country of my conviction by ten PM. So why all the children are at school, playing and so forth I walk and do whatever, but at night when they are at home safe with their families, I have to be in a secured place. Retardated.
    Nobody is going to help us. We have to help ourselves. It would seem they are more afraid of us, then we are of them.
    Perhaps a protest on the grounds of the capital buildings would get a little notice.
    The truth is what the public needs to hear. Like how many government officials have stock in the GPS companies?