Thursday, September 20, 2012
But when the state, county or police ask an ex-sex offender for their online ID's and passwords, it's all of a sudden constitutional?
Earlier this month, a U.S. District Court in Minnesota ruled that a student’s online privacy is protected under the first and fourth amendments, and any school officials who require the disclosure of a student’s password is violating their privacy rights. The case concerns a 12-year-old in Minnesota who wrote negative remarks about an employee at her school on her Facebook page. She was disciplined by the school for her posts, and the school forced her to hand over the passwords to her Facebook and personal email pages.
According to the Wall Street Journal, the court ruled that statements made away from school “are protected under the First Amendment and not punishable by school authorities unless they are true threats or are reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption in that environment.”
The ruling has been hailed by experts as a promising first step in guaranteeing privacy rights for online content.
“Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment,” wrote Bradley Shear, an attorney who has helped states deal with issues of privacy and social media.
As usual, this bill contains a lot more than just 25 years in prison! See the links below to read the entire bill.
Trenton - Legislation sponsored by Senators Tom Kean, Jr. and Steve Oroho that would require violent child sexual predators to serve a minimum of 25 years in prison has been approved by its second Senate committee.
The “Jessica Lunsford Act” (S-380 | PDF, Allen/Kean/Oroho) mandates a sentence of 25 years to life for those convicted of aggravated sexual assault of a child under 13 years of age. The bill’s namesake, Florida 9 year old Jessica Lunsford, was abducted and slain by a convicted sex offender.
“It has taken too long for this legislation to move this far,” Kean (R- Union) said “but I am pleased that the Senate President was willing to work with us to move it along this year. Aggravated sexual assault of a young child is a heinous crime that demands a long sentence in all circumstances. There are no mitigating factors that could warrant a sentence of less than twenty five years behind bars.”
“Jessica Lunsford was assaulted by a repeat offender, as was New Jersey’s own Megan Kanka,” said Oroho (R- Sussex). “Keeping child predators incarcerated for extensive periods of time will help to prevent tragedy like that experienced by the Lunsford family from happening again.”
The bill now awaits consideration by the full Senate.
Corey Rayburn Yung (University of Kansas School of Law) has posted Symposium: Preventative Detention: Sex Offender Exceptionalism and Preventive Detention (Journal of Criminal Law and Criminology, Vol. 101, No. 3, July 2011) on SSRN. Here is the abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.
Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.
By Mary E. Arata (Facebook, Twitter)
AYER - A newlywed couple filed suit Sept. 5 in Middlesex Superior Court against the Town of Ayer and Ayer Police Chief William Murray. [name withheld], 39, a convicted Level 3 sex offender, and his wife [wife name withheld], pregnant with the couple's first child, have leveled multiple tort and civil rights claims against Ayer.
Married March 9 and expecting a baby in late October, the [name withheld] are living in the basement of [wife name withheld]'s parents' Harvard home. The [name withheld] will be in Middlesex Superior Court on Mon., Oct. 1 seeking a preliminary injunction to prevent the Ayer Police from enforcing the town's newly-enacted Sex Offender Residency By-Law against [name withheld] and allow him to live on [address withheld] in Ayer.
The [name withheld] seek damages against Murray and the Town for loss of consortium, mental anguish and emotional distress and embarrassment, damage to reputation, and compensation for [name withheld]'s criminal defense following his May arrest by the Ayer police. The [name withheld] seek costs and attorneys' fees for their civil suit.
The [name withheld] also are asking the court to strike down Ayer's Sex Offender Residency By-Law as unconstitutional.
Overwhelmingly approved at Fall Town Meeting on October 24, 2011, the Ayer Sex Offender Residency By-Law aims to prohibit Level 2 and 3 sex offenders from establishing residence within 1,000 feet of several types of locations, including public parks, senior housing projects, and school bus stops. Offenders living within those zones before the bylaw was enacted are grandfathered, or exempted, within their current residence address unless they re-offend.
Before a town bylaw can take effect, it must undergo review by the Attorney General's Office (AGO). The AGO issued a seven page letter on Feb. 21 in which it struck no portion of the Ayer bylaw.
However, the AGO warned Ayer town counsel that it conducts only a "facial review" of such bylaws. The AGO advised that sex offender restricting bylaws may still face federal or state constitutional challenge.
"No Massachusetts appellate court has yet reviewed sex offender restrictions similar to what Ayer proposes," wrote Assistant Attorney General Kelli Gunagan. "It should also be noted that the Supreme Judicial Court has repeatedly held that the Massachusetts Constitution puts greater restrictions on the exercise of police powers than the United States Constitution. Thus, it is possible for sex offender restrictions to be found constitutional under the federal Constitution, but unconstitutional under the Massachusetts Constitution."
Town counsel Joyce Frank echoed the AGO's warning in her two page cover letter addressed to then-selectmen Chair Gary Luca and the members of the board. "If challenged in court and subject to factual scrutiny as to its application, any such bylaw could be subject to disapproval as violative of constitutional rights."
"The court is the branch that's tasked with saying what is and is not constitutional," said the [name withheld]' lawyer, Eric Tennen of Swomley & Tennen in Boston. "The AG's Office gives advice. If the town wants to rely on that, that's fine."
[name withheld] claims he properly notified the Ayer Police on April 19 that he intended to move into [address withheld] in Ayer. The house was purchased by his in-laws for [wife name withheld]'s use in June 2011.
State law requires offenders to provide advance notice to police departments in communities where they intend to live or work. Tennen said [name withheld] filled out the necessary form and satisfied the advance notice requirements on April 19, 2012.
Tennen calls Murray's actions thereafter "stall" tactics. The [address withheld] home is within 1,000 of both Pirone Park and the Pond Street elder housing project. But Tennen says Murray also knew the town's Sex Offender Residency By-Law was not yet in full effect.
On the final page of the AGO's letter, a bold-typed note advises the town that the bylaw does not take effect until it's properly posted. The posting hadn't yet occurred. Murray lobbied the selectmen in a strongly-worded April 20 email.
Murray referenced a man who visited the department the day before. Without naming [name withheld], Murray's description of the man matched [name withheld]'s physical characteristics as posted on the state's Sex Offender Registry Board's (SORB) website. Murray noted the man was a white male, with brown hair and green eyes, 6 feet, 6 inches tall and 300 pounds (the SORB site now notes [name withheld] weighs 225 pounds).
Murray also implored that "this man" has a history of "violent/property crimes!"
"The neglect of the town clerk has seriously jeopardized the safety of this community and the officers of the police department," wrote Murray. "We now have a behemoth of a Level 3 offender with violent and unpredictable tendencies living at [address withheld]!"
"This offender may have moved to town regardless of the bylaw but having it in place would certainly have given him pause to consider his choice and would have reduced the choices of where he could reside," wrote Murray.
Tennen said the stall tactic to delay [name withheld] was Murray's request that [name withheld] produce two postmarked letters indicating [name withheld] had established [address withheld] as his residence. Tennen blasted the request as nonsensical since [name withheld] didn't yet live at [address withheld].
"If you're homeless you can still register. If the police said 'OK I need you to verify you're homeless - with what? So obviously that cannot be a prerequisite to register," said Tennen. "They were trying to make him jump through hoops that you're not supposed to go through so they can say 'the law's now there and you can't live where you want to live."
Ultimately, Ayer Town Clerk John Canney posted the bylaw in five public places, triggering the bylaw on April 24. While [name withheld] indicated to Murray that he now had the postmarked letters requested in-hand, [name withheld] claims Murray "unlawfully and wrongly" advised [name withheld] that the town had enacted the town's restrictive bylaw earlier that day and that [name withheld] would now be prohibited from living at [address withheld].
Asked if he thinks Murray's email to the selectmen illustrates a malicious intent to keep [name withheld] out of the house, Tennen said "I think it shows intent and how he's dealing with [name withheld]. I certainly think it's relevant."
Murray's email was published by Nashoba Publishing this spring. Tennen said the email will be among his discovery requests to be filed at a later date.
On May 1, Murray told the selectmen during an open meeting that he'd "dodged the bullet" with the enactment of the bylaw.
[name withheld] was subsequently arrested by the Ayer Police on May 15 for allegedly residing at [address withheld] in violation of the state's SORB law. Tennen declined to comment on that open criminal matter but did offer that, while there is some area of "overlap," the lawsuit stands separately from the criminal matter.
[name withheld]'s address on the SORB website is cited as [address withheld] in Harvard - a home owned by [wife name withheld]'s parents - [parents name withheld]. The [parents name withheld] also own the [address withheld] Ayer address as trustees of the "SBAJ Realty Trust."
No dollar amount has been demanded at this point. Tennen said his clients' greatest concern at this point is to move into their Ayer home before their baby arrives in late October.
"I don't know if you have any children. If you do you know what it's like to get ready for, and have, a child," said Tennen. "And then to do that in the basement of a home without a working bathroom under the spotlight that this has all brought to them? Those aren't conditions in which to raise a newborn- it's just awfully stressful to even think about having to be there."
"Their home in Ayer - which is only one mile away - has space and rooms for a family," said Tennen.
Tennen argues the risk of harm to the town is "negligible" when compared against the harm to his clients. Furthermore Tennen said such bylaws often miss the intended mark.
"Sex offender residency restrictions are not effective at reducing sex crimes, do not protect children, and may actually serve to undermine public safety by destabilizing former offenders so that they become homeless," wrote Tennen In his pleadings.
Tennen said there's no evidence to suggest such bylaws result in reduced recidivism in offenders. "In fact, the evidence we have points in the other direction. Residency restrictions create all sorts of problems that don't help anyone."
Tennen said the bylaws spark homelessness, separation from families, increased instability and stressors that could provoke a convicted offender to be literally and figuratively pushed to the fringes of society.
"A great example is this case. Ayer says no Level 2 or 3 offenders can live within pretty much most parts of town," said Tennen. "So for [name withheld], the bylaw drives them to live in another place. He's living a mile away from his home. So does Ayer really think they've now achieved some safety just by his move a mile away?"
Instead, Tennen said the public would have been better served to have [name withheld] live in town, abiding by the state's registration laws. "You'd think his registration would give everyone notice."
But Tennen said even the Sex Offender Registration Board public notice system causes problems. "These laws or bylaws are usually directed at protecting children. If that's the case, you want to target those who've offended against children," said Tennen. And for [name withheld], Tennen says, "That's not his past."
The SORB website states [name withheld] was convicted in 2001 of rape and indecent assault and battery on a person "aged 14 or older." Tennen said the title of the conviction applies to crimes where the victim is aged "14 to infinity."
"That's part of the problem with creating any law that generalizes and does not make individual determinations. But that's what you're left with - a wide sweeping thing putting people in a net who shouldn't be there," said Tennen.
Nashoba Publishing sought comment on Tuesday from Town Administrator Robert Pontbriand, selectman Chairman Jim Fay and Police Chief William Murray. Fay had no comment and referred questions to Pontbriand who didn't immediately respond.
Randy Douglas, the town of Jay supervisor, is spearheading a Tri-county effort to better protect children from sex offenders. Douglas says the current laws are too soft.
We agree, and it's not just in the UK, it's world wide. Click here and here for more examples.
By Sandra Laville
Sexual predators in the police service must be treated as corrupt officers and rooted out by their senior supervisors, the police watchdog has said.
The Independent Police Complaints Commission (Facebook, Twitter, YouTube) said the service was not doing enough to stop suspect sexual behaviour by officers. Instead, it was treating individual cases as isolated, and failing to carry out reviews and learn lessons to prevent such abuse taking place again, the IPCC said in a report published on Thursday.
It warned that failure to stop such behaviour could lead to an escalating scale of sexual abuse against members of the public, or police staff, or both. "This is supported by what is known about how the behaviour of sexual offenders can escalate over time," the IPCC said.
The report highlights failings that in some cases have allowed individuals with a history of inappropriate behaviour to continue targeting vulnerable women and men they meet while on duty.
Dame Anne Owers, the chair of the IPCC, said more work was needed to identify the scale of the problem. "We do not know precisely how many people have been victims of police officers or staff abusing their powers; we are only aware of the individuals who have had the confidence to come forward," the report said.
"There is no evidence to suggest it is commonplace. However, the police service does have a responsibility to recognise it as a distinct area of corruption and take steps to reduce its occurrence, identify it as soon as it occurs."
The report, "The abuse of police powers to perpetrate sexual violence", comes after a Guardian investigation into the scale of sexual harassment and abuse by officers documented cases of sexual assault, harassment and rape by police officers against women, men and children they met in the line of duty.
The IPCC's report, a joint study with the Association of Chief Police Officers, began after the jailing in January 2011 of Stephen Mitchell, a Northumbria police officer, for a number of serious sex attacks on women he met through his job. The IPCC was further alarmed by what it says were a spate of cases of abuse and harassment by police officers referred to the watchdog.
Owers said: "The behaviour in this report has parallels with abuses carried out by other professionals such as those in healthcare and social work and the clergy. All are people who are in a privileged position of power – and trust – within society. In the context of the police service, however, this behaviour is also a form of corruption, and it should be dealt with as such."
The cases examined by the IPCC identified serious failures in whistleblowing systems, with colleagues failing to report suspect behaviour, and in one case failing to report an admission of rape.
"It is essential that a culture of reporting improper behaviour is nurtured and supported by providing staff with an opportunity to voice any concerns they may have confidentially," the report said.
Other areas of concern include:
- A failure to properly vet officers, particularly those in sensitive posts such as child abuse and domestic violence.
- Lax supervision of officers, especially those who have displayed suspect behaviour in the past.
The report also identified a tendency for the police not to believe vulnerable individuals – most of whom are women – when they reported sexual assaults by police officers. "It is likely that this is the reason they were targeted by the perpetrator in the first place," the report said.
Owers called on senior officers to "root out this kind of abuse of power" and called for a new code of conduct.
In one case highlighted by the IPCC, a police constable pleaded guilty to one count of misconduct in public office in May this year. He was investigated after a woman said she had been raped by him. The woman, who was known to be vulnerable, made a number of calls to report the attack, but they were not acted on. The officer was suspended and while off work contacted several colleagues admitting that a sexual act had taken place. The report says: "None of the officers reported what they had been told."
Another murder over "abuse allegations" which may be true, or not, but now we will never know, because the accused is dead, murdered in cold blood by two vigilantes. Hopefully they will be in prison for life now. The victim cannot speak to defend himself, so it's all allegations, nothing more. This is just sending a message saying "Hey, I don't like you, so I'm going to kill you, then claim you molested someone!"
By Luke Moretti
Suspect suggests victim molested young child
FREDONIA (WIVB) - Family members of the suspects charged with a deadly shooting in Chautauqua County claim there's much more to the weekend shooting death.
Forty-five-year-old Theodore Wickham and 27-year-old Christopher Grant are charged in the shooting death of 72-year-old [name withheld] A preliminary hearing on Wednesday for Wickham uncovered some of the evidence prosecutors have gathered in the case out of Fredonia.
"I don't see any reason why they would do that. I can't figure any reason at all. Like I said, they don't even go to bars and get into fights or anything. They're both non-violent people," said Robert Wickham, Theodore Wickham's brother.
Authorities have charged Grant and Wickham with second degree manslaughter. They say both men were at [name withheld]'s home late Friday night and at some point, Grant and [name withheld] argued.
Chautauqua County DA David Foley said, "[It] ultimately ending up in Mr. [name withheld] removing himself to his bedroom. A couple of shotguns were removed from the room, and later on it's alleged that Mr. Wickham went up to the bedroom and fired the weapon."
According to a statement Wickham made to police, the shot was fired to scare [name withheld]. But Grant and Wickham's family members say there's more to the story.
Grant's mother, Rebecca Fisher, said, "These two wouldn't do this just because they felt like doing it. There's a reason behind this."
Foley says there's an allegation that [name withheld] inappropriately touched Grant's son, prompting a confrontation before the shooting.
- But that is only accusations. Even if the man did, it doesn't give them the right to murder him in cold blood.
"If indeed any of these allegations are true or not true, it doesn't justify the actions taken by an individual in taking someone else's life," Foley concluded.
Chautauqua County public defender Nathaniel Barone, who's representing Wickham, considers the allegation an important part of the case.
"In a situation like this, it's important to know who your victim is, who the victim was. What the victim may have done or didn't do in a situation that involves a shooting," Barone noted.
Both suspects are being held on $50,000 cash bail. Foley says the next likely step is to present the case to a grand jury.
By Ed Reilly
LOCKPORT (WKBW-TV) The Niagara County Legislature has scheduled a public meeting for October 2nd at 6:45pm to discuss plans to repeal the county's tough sex-offender law.
The move comes after recent court rulings said local laws cannot be more strict than the one enacted by New York State.
Under the New York State law, level-3 sex offenders, convicted of sexual offense against a minor, cannot live within 1,000-feet of schools, playgrounds, or places where children gather while the offender is on probation or parole.
Niagara County added to the law prohibiting Level 2 offenders as well.
Concerns over lawsuits forced the City of Lockport to repeal its 6-year old sex-offender law which was even more restrictive than Niagara County's.
"It's frustrating," commented Lockport Mayor Michael Tucker.
"We certainly don't want to pay out some frivolous lawsuit to a sex-offender, so we backed off," added Tucker.
"These interest groups, like the ACLU (American Civil Liberties Union) have taken these to court and had them struck down though what I consider to be a legal loophole," said New York State Senator George Maziarz.
This fall, Senator Maziarz says he plans to introduce new legislation that would give more power to local governments to regulate sex-offenders, thus freeing them from worries about lawsuits due to unenforceable buffer zones.
"We are not going to stop. We are going to continue to try and make it as restrictive as possible," said the Senator.
- So this one statement basically proves the laws are about punishment, ex post facto, so the law will surely be knocked down as well?
It's about time. This is something that we've said needed to be done for many years now. Education is the key to putting a dent in sexual abuse, not draconian unconstitutional laws trampling on others rights.
By Dennis Owens
HARRISBURG (WHTM) - The numbers are staggering: one in four girls and one in seven boys will be sexually abused by the age of 18.
State Representative Mauree Gingrich's bill would require schools, beginning in kindergarten, to teach kids how to recognize sexual abuse and tell someone about it. She knows it's a tough topic for parents.
"All I have to do to move me off the dime to have that conversation is think about some predator rubbing the leg of my granddaughter or six-year-old grandson," Gingrich said.
The legislation is named Erin's Law after Erin Merryn, of Illinois, who was abused by a cousin and an acquaintance as a little girl. She kept their secrets but is now on a mission to help victims find the voice she never could.
"They're getting the message from predators, 'we keep this a secret,'" Merryn said. "They're not getting the other message, 'tell, don't keep this a secret."
The bill (HB-2318) would require age appropriate training for K-8 students in public and private schools. The content would be added to existing and state required health classes so the cost would be minimal. Merryn points out the cost of doing nothing, as Penn State proves, could be far greater.
"In the end, this curriculum on teaching kids how to tell, protecting them before they're even abused, will end up saving millions of other children because as we know these sexual predators do not stop after abusing one kid. They'll get as many kids as they can possibly get until they're caught," she said.
By Jessica Dye
NEW YORK (Reuters) - A New York appeals court on Wednesday dismissed a lawsuit from the Town of Southampton, New York, seeking to stop Suffolk County from placing trailers to house homeless registered sex offenders within the town's borders.
In a unanimous ruling, the Appellate Division, Second Department, held that Southampton had waited too long to file its lawsuit, which was subject to a four-month statute of limitations under CPLR Article 78, a statute used for challenging decisions made by administrative agencies and public officials. Instead, the lawsuit had been brought as an order to show cause seeking permanent injunctive relief.
The suit has pitted Southampton against Suffolk County in a battle that has drawn considerable attention from local media. It also reflects the difficulties that some local governments have faced in finding places to house registered sex offenders without violating local laws or upsetting residents.
Southampton, a resort town on the eastern end of Long Island, brought suit in 2009 to keep Suffolk County from using a trailer to provide temporary housing to registered sex offenders each night. In 2010, the town amended its lawsuit to include a second trailer. Both trailers, which housed between eight and 20 registered sex offenders, were located on county-owned land in Southampton.
The town asked the court to enjoin the county from continuing to use or expanding both trailers. Attorneys for Southampton argued that the trailers violated a number of local rules and regulations, including zoning and environmental statutes.
The county said it is obligated by law to provide temporary emergency housing for homeless registered sex offenders, and said it was exempted from having to comply with the local statutes because it enjoyed government immunity.
The county said the suit should have been brought under Article 78, which has a four-month statute of limitations. That meant the suit should have been filed within four months of the second trailer opening in May 2007, the county argued.
In 2010, Suffolk County Justice Thomas Whelan granted the town's request for a preliminary injunction. But in October 2011, the Second Department vacated the injunction, saying the town had failed to establish the likelihood it would prevail on the merits.
Wednesday's ruling addressed the county's motion to dismiss the complaint as time-barred.
In the ruling, the appeals court sided with the county and found that the case should have been brought as an Article 78 proceeding, instead of as an action seeking a permanent injunction. Consequently, the town's claims were time-barred, the ruling stated.
The appeals court rejected the town's argument that it should have received an extension to file the suit because it was undergoing settlement discussions with the county.
The panel included justices Reinaldo Rivera, Randall Eng, Plummer Lott and Robert Miller.
Southampton County Attorney Tiffany Scarlato said the town was "obviously disappointed" by the ruling. The town board will meet Thursday to decide whether to appeal the ruling, she said.
An attorney for Suffolk County did not immediately return calls for comment Wednesday afternoon.
The case is Town of Southampton v. County of Suffolk, Supreme Court of the State of New York, Appellate Division, Second Department, No. 19533/2009.