[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we love that. We are thankful for the support of our patrons. You make what we do here possible. And always remember, FYP.
[00:22] Andy: Recording live from FYP Studios east and west, transmitting across the Internet. This is episode 363. Happy New Year of Registry Matters. Larry, what’s up? How are you tonight? Oh, doing awesome. It’s a balmy 55 degrees here. Fuck. Are you you’ve got me beat by, like, 40 degrees. It’s cold as anyway. Hey. Show your support. Like and subscribe. Do all those five star ratings. Thumbs up. Follow. Reviews. You know, all those things depending on your platform. I can’t say them all because I don’t know what platform you’re listening on, but we appreciate the love and in return, we’re here to keep delivering the content you enjoy.
[01:03] Larry: So tell me what we’re doing tonight. Well, we had to do an abrupt change of plans. We had a case from New Mexico from the stakeholder appeals dealing with PFR probation of the five to 20, and the guest fell through. Are you whoops. Are you familiar? She didn’t, like, hurt herself, did you? No. But are you familiar with guests guests falling through at the last minute?
[01:28] Andy: I have heard of this and have experienced it. Hell, we had a guest that, like, bailed out middle of the show and haven’t seen him or heard of him since. Who was that? Was it on this program? It was 100% on this program. It was an individual that we were sort of having an interview with, and he was, like, an up and coming
[01:45] Larry: blogger podcaster and, poof, gone. I don’t even remember that. That’s how, you know, I’ve got old timers. Oh, yeah. I knew that already. So what else are we doing? What are we doing? Well, we You had a guest and they bailed. Yeah. So we transitioned to the United States Court of Appeals for the eighth circuit. Very good win to talk about, and we have a couple of listener questions. So this episode probably won’t go for hours and hours like they typically do, but we have a couple of questions, and one of them transitions to an article that you people found.
[02:19] Andy: Fantastic. Alright. Well, I’m gonna read this one as it is. To me, it doesn’t quite go right, but here it is. Anyway, so question one came in by an email from an individual who emails us pretty regularly. And it says, subsection is that what SS is? Is that subsection or statute section? Okay. What is SS? Oklahoma section 21 dash 51.1
[02:40] Larry: a.
[02:42] Andy: And it reads, second offense of rape in the first degree, forcible, sodomy, lewd, molestation, or sexual abuse of a child. Any person convicted of rape in the first degree, forcible, sodomy, lewd, molestation, or sexual abuse of a child after having been convicted of either rape in the first degree.
[02:59] Larry: Anyway, says no three strike law here. What do you people think? Well, it it also says that shall be sentenced to life without parole.
[03:07] Andy: So I probably should’ve added that part. Yeah. So,
[03:10] Larry: so basically, this is the legislature, imposing tying the judicial branch’s hands in terms of what would be an appropriate outcome for an offender. And they’ve decided that they know best collectively, and that’s their prerogative, that’s what the people voted for in Oklahoma. But they’ve decided that there will be no judicial discretion if a person has a prior offense for these enumerated offenses, that they will get life without parole. Now, I’m going to get more and more on my soapbox because it doesn’t seem to do any good. These are the people who promise you when they run for office, particularly in conservative places like Oklahoma, they promise you that they’re watching the public purse like a hawk, and they’re considering every dime they expend, and they’re carefully measuring if it’s the best use of resources. But yet, they mandate that no judicial involvement, that a person will get life without parole, without, it’s like, even if it’s, if you could justify that, after a certain stage of life, a person is no longer capable of doing those offenses. But we’re going to house them and pay for their medical care, the guardians of the purse, for the rest of their life. That’s what I’m pontificating about. But what I think, I think that the people of Oklahoma, like the people in most of the Bible Belt, are very unforgiving, And I think that they are hypocritical, and they say one thing, and they believe another, and the voters are dumb enough to go along with it and elect those people. That’s what I think.
[04:48] Andy: Wow. Hey, tell me what you’re really doing. I mean, total of that.
[04:53] Larry: Damn. Well, I’ve I’ve tried to be gentle for a few years, and people, they don’t seem to draw the connection between what they vote for and what they get. And it’s not just on the conservative side. It’s on the liberal pointy head side. People in California just lost their last refinery. That’s gonna close down in Los Angeles, and they’re already paying the nation’s highest gasoline prices. And they don’t seem to draw the connection between their policies and what they pay at the pump. Are you stupid out there in California as well? Alright then. So Shall we move along? Okay. That’s the best I can to answer Jay’s question is that I think it’s inappropriate, for the judiciary to be, dictated to by the legislative branch. But that’s what the people elected. That’s what the governor signed. That is the law. Unless there’s a successful challenge, these people will die in prison if they have a prior conviction barring any mitigating circumstances. That’s the way it apparently based on what I’m reading in black letter law, unless this is not quoted correctly, it seems like this is what’s gonna happen to people and has been happening to people.
[06:02] Andy: And just, like, it this this probably can’t really happen this way. But if a person got convicted the first time and only served a year, they probably can’t. But if they were 18 years old and they did the first one and 19 when they did the second one, they are presumably going to spend the next, I don’t know, sixty years in prison at $50,000 a year. Probably not in Oklahoma, but that’s a lot of money to put out for the state for that. Not saying that the person that was harmed
[06:29] Larry: I don’t know how you put a price tag on that. I’m just saying that is a mountain of money to pay out. Well, then it gets more expensive as they age because even with the substandard medical care, they do have increasing medical needs. That’s another fact. Very few people make it to 80 years old and stay healthy and never have any problems related to prostate, heart, to you name it. They deal with it in older age, hip replacements, you name it. So you’re running a convalescent center in a prison.
[06:57] Andy: That’s true. Alright. Well, then question number two from Matthew. And, Alton Antrim versus Jay Hoy contests lifetime GPS monitoring for recidivus. I do not have a means to review the briefs or previous decisions in this case. Now as far as I can tell and I’m quoting what the person wrote. As far as I can tell, no opinion has been given on this case yet, but oral arguments have been completed. The oral arguments indicated there have been decisions going both ways on this issue at state supreme courts and federal appellate courts. I don’t know if you have specifically covered this issue in the past, but this might be a good time to review it. And that takes us does the segue over to the article Yes. That you wanna talk about? Yes. This was a very timely question. How about that? So this article was just published in Courthouse News in December on the sixteenth. The headline is convicted PFR challenge Wisconsin’s lifetime GPS tracking at seventh circuit. Now I’ll read a class of convicted PFRs in Wisconsin say the state’s ankle monitor requirement for repeat offenders infringes on their fourth amendment
[08:06] Larry: rights. What is this, about? That’s a very old case. Under the law, the Wisconsin Department of Corrections requires all repeat BFRs at those who have been convicted two or more times. But I I challenged that writing because I believe it’s two or more offenses, even if it’s in the same case, it’s two or more counts. But anyway, the way this is written, two or more times to wear an ankle monitor for life, unless they move out of the state, or if after twenty years, without a new conviction of any kind, they can petition for removal. And this has been under challenge for about six years now, I think.
[08:40] Andy: And okay. So I remember this. A class of registrants challenged the law in 2019 and said the ankle monitor requirement infringes on their fourth amendment rights. The fourth amendment protects people from unreasonable government search and seizure and safeguards privacy rights.
[08:56] Larry: That it does do. But the fourth amendment, does not ask whether a search feels intuitively justified. Meaning, if you just put your finger up in the air and ask a group of people, they would say, sounds pretty good to me. But that’s not what the Fourth Amendment does. It asks whether in light of the evidence, the State has put forth a constitutionally sufficient justification for the search, and that’s according to the plaintiff’s attorney, none other than Adele Nicholas. Assistant Attorney General of Wisconsin Joyce Schmelster agreed the law implicates the Fourth Amendment, but she said it survives constitutional scrutiny under both totality of circumstances, analysis, and under the special needs doctrine. And I think I said it wrong. It’s Jody.
[09:45] Andy: Yeah. And just just to, like, go off script for a moment. The Fourth Amendment protects your your from search and seizure without a court order, without some sort of judiciary oversight that said, here’s the evidence and here’s you can go do these things within this context. Back, I don’t know, what was it, like, fifteen years ago that the Supreme Court ruled that you can’t just drop a GPS monitor on someone’s car? You gotta do the legwork? Correct. Like, that’s your Fourth Amendment. That is correct. And there are rare rare exceptions for that. The, you know, PFRs and Fellows Under Supervision, they, they forfeit a lot of their Fourth Amendment Privacy while they’re under supervision,
[10:21] Larry: but they don’t lose all privacy. And this person is no longer under supervision. They’re just, a registry.
[10:28] Andy: Yeah. Just quote unquote on the registry. Mhmm. Alright. And then the story points out that this isn’t the first time this class action has come before the Seventh Circuit. A lawsuit was initially filed in 2019. Plaintiffs sought a preliminary injunction with federal court denied, which a federal court denied. The seventh circuit affirmed the denial of the injunction in 2022 and sent the case back down to a US district court in Wisconsin, which ultimately ruled in favor of the Wisconsin statute.
[11:00] Larry: Yes. And, at at that time, US district judge Brett Ludwig wrote in his order that the plaintiff’s fourth amendment claim faces an uphill climb because it contradicts how the Seventh Circuit has ruled in similar cases in the past. He particularly pointed out Baloo versus Wall, which was a ’26 Teagan case, where the Seventh Circuit ruled in favor of Wisconsin’s Wisconsin’s lifetime TPS monitoring requirement, calling it a reasonable search in the interest of prevention and not punishment.
[11:31] Andy: I remember So who’s handling this case then? The Oh, go go. I’m sorry. I didn’t hear you. I remember,
[11:36] Larry: reading that at the time, and I’ve had arguments with attorneys in North Carolina and various states. A reasonable search is not reasonable doesn’t become reasonable just because you say it’s reasonable. So You’d have to prove it, kinda sort. Right? Someone has to make that. A judicial officer has to make that. Okay. Go ahead. So who’s handling the case then? Yeah. The, attorney’s name is Adela Nicholas, a very gifted and talented, very communicative attorney out of Chicago. And, she’s a civil rights attorney. She argued before the panel that the district court improperly treated the Ballou versus Wall case as dispositive rather than engaging in the fact sensitive inquiry that the Fourth Amendment, demands.
[12:22] Andy: And miss Nicholas stated, as a result, the district court failed to consider the breadth and heterogeneity of the population the statute applies to, the proof of substantial privacy and dignitary dignitary harms the statute imposes or lack of evidence that long term monitoring of this particular population meaningfully advances the state’s interests.
[12:43] Larry: Also, miss Nicholas said, quote, I’m not sure that’s a fair, character. Nope, she didn’t say that. Nope. Nope. Judge David said that I’m not sure this is a fair characterization of the district court’s thinking. And David Hamilton was appointed by that communist Obama. Then the Obama appointee asked Nicholas specifically about a 2013 Supreme Court case in The United States v. Kibito, which determined that the requirements of the PFR were constitutional. In the context of regime like registration, where an individual is being required to report information about their residence and other demographic information about themselves on a regular basis, categorical regimes have been upheld and the government is allowed to proceed by presumption, Nicholas said. But as we move along this continuum towards restrictions that are much more intense, gee, that sounds familiar, much more intrusive, much more long lasted, and affect constitutional protected interests so much more strongly, then the categorical justification can’t be involved. And that is consistently what the F Y P has said for years. You can do almost anything as long as you don’t try to punish people and restrict their liberty and movements. A registration scheme in of itself is not unconstitutional. But they can’t they can’t stop there.
[14:07] Andy: Who’s paying for the, GPS? Is it the PFR paying for it? Yes. So you are required to spend this $200 a month or whatever it is for
[14:17] Larry: whatever it is for eternity. You gotta pay this couple $100 a month for GPS monitoring for your old life. That’s the way I understand it. If we’re wrong, please correct us out of Illinois. But I think that’s the way it is.
[14:27] Andy: Oh, wait. And this is Illinois. I thought we were talking about Wisconsin. I mean, Wisconsin. I was like, isn’t this the it is Wisconsin. This this is the place that also charges you a $100 a month for your a $100 a year for your registration. Yes. Even when you move away, they send you a bill. US circuit judge Amy St. Eve, a Donald Trump appointee, pushed back on Nicholas’s argument and noted the seventh circuit previously rejected the argument that GPS monitoring is more onerous than registration. Nicholas responded that the court assumed in Belew that GPS monitoring is minimally invasive. But through discovery, she learned it is much more intrusive because all GPS data is treated as public record. We learned a lot on both sides of this equation. Reasonableness under the Fourth Amendment requires a careful fact bound analysis of both those individual interests that are affected, but also the government’s interests, she said. And there was expert discovery in this case that showed this statute in the monitoring of this particular population that is subject to this statute is not really advancing the government’s interest as they put forth.
[15:30] Larry: What will happen next? So I I like the way that this case has been framed. I don’t have any faith that’s gonna win because the court’s been stacked stacked with radical, law and order people. But they’re doing what they need to be doing. You notice expert discovery? You know, what we don’t ever I’ve heard of that. Yeah. That seems kinda rare. So it’s something we don’t ever spend any money on. We actually money got spent this time apparently. And I I know why it got spent because Weird. NARSAL actually paid the expert cost. So Oh. So give kudos to NARSAL. They funded this with your donations. So what happens next? Well, we wait for a decision. US District Judge Diane Sykes, a George Bush appointee, joined Hamilton and Saint Eve on the panel, and they did not indicate when they might rule. It could be months. It could be weeks. It could even be over a year. So we don’t know.
[16:20] Andy: And, obviously,
[16:21] Larry: it would remind me where this is in the, like, the hierarchy. It’s This isn’t the state supreme court, is it? It’s in The US district, Seventh Circuit Court of Appeals, which is one step between the district trial courts and the US Supreme Court.
[16:34] Andy: Okay. So if if the,
[16:37] Larry: if the state loses, if the, the the if if we win, they’re going to appeal and ask for cert, aren’t they? Well, they’re first asked for for on bike review. They’ll they’ll try to bypass the panel. And then if the panel, if the, the a full court review is not granted, then they’ll do a cert petition. Yes. But, I’m not confident we’re gonna win. The merits are good, but the personnel on the court suck. Are you gonna tell me that elections have consequences now? They do. And they have, and they will continue to have for a long, long time after some of us are dead because these people that have been appointed have been appointed at very young ages, and they’re gonna be around for decades.
[17:19] Andy: Somebody in chat says GPS monitoring is public record. I I hadn’t heard that easy either. So anyone can see anywhere you have been, gone, or going
[17:30] Larry: just because you’re a PFR with a GPS model? Well, apparently that was asserted in this case in Wisconsin. I was not aware of that either until I read this from this story. So we’ll have to have Adele on and we can get deeper into this in another episode, but I don’t know. I’m reading from what was reported in courthouse views.
[17:46] Andy: Yeah. I’m with you. I just yeah. I’m with Mike. I’d never heard that it was public record. I I I would have expected that you have the GPS monitoring app, whatever the hell, and that that data is just more or less given to your PO or the PO’s office, whatever. Like, they they have the private login to go see where you have been and notifications of geofencing and whatnot. That’s that’s what I would have expected it all it is. So, well, that would be funny if it’s a discoverable under a public records request, wouldn’t it? Alright. Well, that’s all where all the rest of our fourth amendment protections are going anyway. Alright. Well, then we have this win that came out. I just started seeing it on the listserv in the last handful of days, whatever, from the eighth circuit court of appeals, and this is a Halloween sign case from Missouri. That would be correct. Carl, this is for you, buddy. That would be correct. Tell me again what states are in the eighth circuit. Arkansas,
[18:42] Larry: Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
[18:48] Andy: I think collectively, that’s like 250
[18:51] Larry: people in total that are in those states. Yeah. Tab. Collective. A tad bit more than that. There’s 250 people in South Dakota. Come on. There’s 2,000,000 in Nebraska, 2,000,000 or more in Arkansas, and, millions in Minnesota. There are a couple There’s more cows. There’s, Iowa’s populated. Now, Nebraska I mean, North Dakota and South Dakota are not very well populated. Well, those other states have people. No. Dakota, South Dakota are not very well populated. But those other states have people.
[19:13] Andy: No. Alright. Well, then this means that this is now the law of the land, correct, that we had this eighth circuit court. So this is done. Right? It means it at the moment. It’s indeed the law of the circuit unless it’s overturned.
[19:25] Larry: And, explain on that, please. Well, it it could be a nonblank review by the eighth circuit. So what you do you typically do is you file a motion for reconsideration with the panel or hearing en bloc. And ninety nine, 95% of those are denied because the full court can’t hear all the cases that would defeat the purpose of breaking off in a three judge panels. Sure. Sure. Sure. Sure. They feel from time to time they don’t like what a panel did if there’s if there’s a renegade panel. So the panel could be overturned by the full eighth circuit. But if if the, eighth circuit declines to review the panel, then there are not their other option is to file a cert petition with the US Supreme Court. And if they grant cert, then the the Supreme Court would have the final say.
[20:18] Andy: So it’s a a little bit of a mini check and balance on the individual little panels?
[20:23] Larry: Yes. But like I said, it doesn’t work very often. We’ve covered a couple of cases recently where the full court undid, moved to undo a panel decision, but it doesn’t happen often.
[20:35] Andy: A little side story. I remember we had, an attorney from Louisiana on, and he used that term. And I was like, I don’t know what the heck en banc. It’s spelled e n b a n c. That’s two words. And I was like, I don’t what did you just say en banc? Like, I anyway, I was lost. So there you go. There’s a little history lesson for you. And we discussed this case before, and I I I looked it up in our new search tool, Larry, and it said that it was in episode two seventy nine. And can you set it up for those who may not remember?
[21:05] Larry: Sure. I thought it was in two seventy nine, but I don’t know how to use that tool as effectively as some people around here. It’s easy. Yep. It has to I usually search my transcripts. That’s easy, but it said 279. Anyway, it has to do with the law in Missouri that requires signs to be posted by registrants on Halloween. And a person named Thomas Sanderson challenged the Missouri the Missouri statute a provision that requires all registrars to post a sign at their residence on Halloween stating, quote, no candy or treats at this residence. The district court concluded that that this mandate violates the First Amendment and permanently enjoined its enforcement statewide.
[21:47] Andy: And, of course, the state appealed?
[21:50] Larry: Of course. And I’m gonna pontificate again. Remember, these are the people who promise you that they’re watching every dollar like a hawk. But they magically, they, they, the, the general, the, the state appeals everywhere while at the same time claiming that they’re understaffed and they can’t handle their crushing workload.
[22:12] Andy: And this is this the first, the absolute, the number one time that a Halloween challenge has been successful? No. It is not. The first challenge of this nonsense was undertaken years ago by NARSOL
[22:23] Larry: at my urging. NARSOL, you heard those? The National Association for Rational Sexual Defense Laws. I’ve heard of them. In fact, you sat in on the injunction hearing held at the United States District Court in Macon, Georgia. I did. And I was the lone voice in the wilderness at the time, not another organization on the Left Coast, but I was the one wanting to tackle this stuff. And, NARSAL budgeted the money to pay a an Atlanta based attorney to undertake the challenge in Georgia against two counties. We laid the foundation for this. So, you can pontificate all you want and you can give all the accolades you want to to the Left Coast, but, we set the stage for this.
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[23:54] Andy: Hey. Just another quick little detour. How much threat was I under for delivering the they weren’t subpoenas. They were cease and desist. What were those letters that I delivered?
[24:05] Larry: Well, those those, you were not under a lot of threat. But what we did is we didn’t wanna have to litigate because it’s a last resort. So we wrote letters to the sheriffs and the counties that we targeted, which were Butts and Spalding. Spalding. Yeah. And we had, I think a third county cropped up in Southern Georgia named Ben Hill County, but we, we, we targeted those two counties particularly. We gave them an opportunity to stop doing what they were doing. So, we delivered a letter to them explaining to them how the law was unconstitutional because, A, they didn’t, Missouri at least had it on the books. Georgia invented it out of their recti. There was nothing on the books. It’s just the, the sheriff’s association said do this or something like that. Yes. The Georgia sheriff’s association urged their sheriffs so they could go out and get big PR having news cameras following them around in their 159 counties in the state of Georgia. And they didn’t have any legal authority. Just because you have legal authority doesn’t mean you can do it constitutionally. But what I explain to people is when there’s no legal authority, that makes your cause even easier because we have, a, substance unconstitutional if there were statute, and, b, we have no statute. So
[25:22] Andy: Well, anyway, I drove around the state delivering these things to people while I was still under supervision. And I you know, people are like, I can’t do anything up under you can do stuff. I promise you could do stuff while you’re under supervision. You you not only did that, you went and took a order when you were needing a travel permit to a judge’s office to have it signed. I did. And that could have gotten you in trouble. And I almost got pounced on. If anybody’s seen the movie, Monsters Inc, when they come back and there’s the sock on Sully or whoever’s back and they just freaking jump on them, my god, they were running down the hallway. That was I was terrified. And I’ve been out of, like, I had just gotten out there. I was out for a month, six months by then. Anyhoo, to continue, on page two it states, since 2000, Thomas Sanderson and his family have consistently set up large elaborate Halloween displays involving decorations, sound effects, and fog machines. But when Sanderson was convicted of a PFR type crime in 2006 and ordered to serve a term of imprisonment, those displays ceased. While he was incarcerated, Missouri passed a law restricting registrants from participating in Halloween. After his release from custody, Sanderson asked the Saint Louis County Police Department and later the Hazelwood Police Department if he was required to abide by the Halloween statute given when it was enacted after the date of his conviction. Both assured him that he had been grandfathered in and thus could continue participating in Halloween festivities.
[26:47] Larry: Sounds reasonable. What does the law require? Well, I’m reading from the law as it was as it was presented in the case. Any person, not not listen, lawmakers, please listen to this. You can do all this stuff if you’ll narrowly tailor it. If you’ll stop saying any person and you’ve narrowed down this language, you can do this. But it says, any person required to register as a sexual offender under sections five eighty nine point four hundred to five eighty nine point four twenty five, which is the full, get, the full PFO Registration Act, shall be required on October 31 each year to one, avoid all Halloween related contact with children. It doesn’t even say which children. It doesn’t even talk about your own children. So problem number one Wait. On Halloween, I have to avoid my own child. But under the literal little reading, now remember, these are the people who believe in individual liberties, and they believe in they believe in a family raising a child. A kid needs a father and a mother. These people stand in front of the camera and say that, but they’ve just wrote a law that says you can’t have any contact with children. That’s number one. Remain inside his or her residence between the hours of 5PM and 10:30PM unless required to be elsewhere for just cause, including but not limited to employment or medical emergencies. Three, post assign his or her residence stating no candy or treats at this residence. And four, leave all outside lighting off during the evening hours after 5PM. So you have to unsecure your house, turn turn the lights off, you can’t spend any time with your children, and you have to post a sign. Oh, and these are the people who believe in individually, but keep going.
[28:45] Andy: But you have to kick your kid out because you can’t leave. And if you can’t be in contact with children and you have a child, you have to kick them out. That’s what I’m saying. I’m trying to illustrate to the people who refuse to understand
[29:00] Larry: what they vote for and what they get. And then they scratch their head and they go, How did this happen? It happened because of you. So the subsection that says, unless required to be elsewhere for just cause seems a bit vague. Like, what is just cause? That is indeed vague. And I’m surprised if I had been coordinating this challenge, I would have focused in on that as well, because that’s a section that needs to be stricken. And I might just be cantankerous enough to launch a lawsuit myself if I can find someone, because it is indeed vague. What constitutes just cause? Who determines if it’s just? What are I mean, it it gives to medical emergencies, which sets a pretty high bar. The next highest bar is employment. Those seem justified, but it says, but not limited to those. Okay. What else is it? What else would they be? Sure. But nobody has any My neighbor called me to fix their leaking faucet. Oh, no. That wouldn’t qualify.
[30:00] Andy: And do you have to get a judge involved, or is it just the probation officers or whoever the sheriff? Like, how do you
[30:07] Larry: how do you request this? What’s the process to say I have just cause to be elsewhere? I don’t know. But remember, these are the people who claim that the law should be written in a way that’s understandable and that understandable and that we should not intrude on personal liberties. I’m gonna harp on this until I get kicked off this program because people don’t hold the people they vote for accountable. If you really are serious, you all will be on the phone right now saying, look, you idiots. We’ve spent hundreds of thousands of dollars litigating this totally ridiculously unconstitutional law, and you put your hand on the bible, and you took an oath. Why did you why are you still fighting this? Make sure you encourage the state not to keep fighting this. This is crazy.
[30:49] Andy: So since they had told him he was grandfathered in, then what caused the problem? That’s a good question.
[30:56] Larry: For the next fourteen years, Sanderson’s Halloween contain, displays continued. But in 2022, Hazelwood police received a call that a PFR was participating in Halloween, and Sanderson was consequently arrested and charged and convicted for violating the Halloween statute. Can you admit that’s funny?
[31:17] Andy: That’s not funny.
[31:18] Larry: Could he have done anything of, like, recording them saying he was grandfathered? Could he have gotten it in writing saying he was grandfathered? I doubt it. Here, at least, you when you go to see law enforcement, they take your phones away from you. You can’t take them and record those people with
[31:36] Andy: so Anyway, as usual, you’re not funny. Sanderson brought a facial challenge to the statute under the first amendment. He argued that subsection one pair, sub whatever. Subsection three, the sign mandate, unconstitutionally compelled the speech of all individuals required to register in that state. Just before Halloween twenty twenty four, the district court found Sanderson was likely to succeed on the merits and entered a preliminary injunction. Then after a bench trial, the district court found the signed mandate to be unconstitutional and entered a permanent injunction preventing the state from enforcing it anywhere in Missouri.
[32:11] Larry: What is the standard of review in this kind of case? Well, that was an interesting question. And as I was pulling in the part of the case, there are two different standards in play on this case. The court reviews the legal conclusions de novo, meaning brand new with no deference. But the factual findings, there’s deference and the review is for clear error. The Court stated, under the clearly erroneous standard, we will overturn a factual finding only if it’s not supported by substantial evidence in the record, if it is based on erroneous views of the law, or if we’re left with the, definite and firm conviction that an error was made. So they have two standards in play here. You know, the the, De Novo on on the, one side and then the, the clear error. So so okay. Alright. Well, then do me a favor and facial challenge, what does that mean? Well, all through the years, I’ve generally pontificated that a facial challenge can almost succeed if there’s no set of circumstances where something can be done constitutionally. It appears to be a different in the eighth circuit. Because again, I’m reading from the what they said. They stated a facial challenge is successful only if a law’s unconstitutional applications are substantial compared to its constitutional ones. And I’ve always said that it’s only facial and constitutional if there’s no set of circumstances. They went on to say that the sign mandate has, in effect, one application. Those required to register, regardless of their underlying offense, must post a sign bearing the phrase No candy or treats at this residence. Because the statute does not apply differently to anyone within the category of those required to register, we need only to consider whether the sole application violates the First Amendment. That does make their job a little bit easier because it’s such a broad brush brush.
[34:00] Andy: And and then I need also an explanation on what the first amendment means in the context of this challenge.
[34:08] Larry: Well, the court answered that. According to the court, the first amendment’s protection include both the right to speak freely and the right to refrains refrain from speaking at all. And they based that on the 1977 US Supreme Court and Woolley versus Maynard. So that was way back, what, almost fifty years ago now.
[34:30] Andy: Almost. Yep. Two years shy of it or one year shy of it even. The court stated, in other words, compelling an individual to personally speak the government’s message or host or accommodate another speaker’s message contravenes the first amendment.
[34:44] Larry: And therein lies the problem. The government of Missouri is com is compelling registrants to speak. Now remember, these are the free urban blocks of people.
[34:54] Andy: The court pointed out that the sign mandate is not merely incidental to conduct. It explicitly requires registrants to post a sign bearing a specific message. The other three provisions of the Halloween statute regulate a registrant’s conduct.
[35:09] Larry: I think I, blundered there. That continues with you. Alright. Well then, so well,
[35:15] Andy: and so the court stated we agree with the district court that the sign mandate compels speech and thus is unconstitutional unless it can survive strict scrutiny. What is strict scrutiny?
[35:30] Larry: Well, it’s the most rigid form of scrutiny for the least amount of deference that a court can apply. And the and the side mandate will only survive strict, strict scrutiny if it furthers compelling government interest and is narrowly tailored to achieve that interest. So, you can always get past the first test of nobody is going to argue that protecting the community from offenders is not a government interest. But you have to narrowly tailor. Listen, folks, in Missouri and across the country, you can do almost anything if you narrowly tailor it.
[36:10] Andy: So which, what what did the trial court determine on these two questions?
[36:15] Larry: Well, the district court found that defendants, the state, have established a compelling interest in restricting certain conduct of PFR offenders on Halloween that satisfies the strict scrutiny standard. Neither party challenged that determination, so it is not an issue on appeal. The court moved on to the question of whether the statutory revision is narrowly tailored. In other words, is the side mandate the least restrictive means of achieving the government’s compelling interest that no one contested?
[36:50] Andy: Alright. Well, then, so something tells me that this law was not narrowly tailored? That is correct. They just can’t help themselves.
[37:00] Larry: They have to, placate the law enforcement apparatus, the victim’s apparatus, the news, apparatus, and they have to paint with a broad brush. And you’re gonna keep losing until you learn that lesson. I think you’ve got a clip for for that.
[37:17] Andy: I need to go track it down. I have been slacking. I need to go find that one. But it basically says until you get that through your thick effing skull, you’re gonna keep losing. Yes. So at trial, the state’s witness offered several justifications for the sign mandate. Law enforcement officers testified that the signs were beneficial for enforcement purposes because the signs allow them to be able to ensure that there is compliancy. Compliancy? That’s a weird word. Really? Wouldn’t it just be compliance? Anyway, that’s their writing. Make enforcement of the Halloween statute more efficient, that’s really vague, and provide an extra layer of protection for children. Did they prove those assertions?
[37:59] Larry: Hard hardly, they did not. The evidence presented, however, failed to show that the sign made it achieve these goals. The statute does not set any requirements for the size or the location of the mandated signs. According to what law enforcement Oh, cool. You could make one that’s like the size of a potion stamp. According to what law enforcement were offered, that’s exactly a registrar could put a little bitty post it note on the door. It’s still being applied so long as the note had the correct verbiage. Another law enforcement witness confirmed that the sign, that a compliance sign could be as small as a postage stamp. Now admit that’s funny.
[38:34] Andy: That’s pretty damn funny. So I I I’ll ask a question later. I noticed on page eight, it says officers further testified that under the statute, a registrant would not be in compliance even if the sign was on the back of the door inside the house. That’s awesome. Yes. My sign is right here where no one can see it. Even if a sign could result in greater efficiency for law enforcement and heightened protection for children, a sign that is not invisible to law enforcement or trick or treating children fails to serve either purpose. Well, it sounds like you’ve admitted that’s funny. That’s if you could put it on the back of your door, that is pretty damn funny. Maybe you could put it on a interior door even further. If it just says hang it on your door, doesn’t say it has to be on the exterior front facing door of your domicile or some dumb stuff like that. Right?
[39:23] Larry: That’s correct.
[39:25] Andy: Now I’ve heard you pontificate for years that states could do almost anything
[39:29] Larry: as if they narrowly tailored the restrictions. Could they go back to the drawing board and fix this? Yes. They could. The court practically invited them to do that. They stated, we agree with the state that narrow tail narrow Tailoring does not require perfect tailoring. However, there is insufficient evidence to support the State’s insertion to the signed mandate is the least restrictive means of achieving the goal. Hint hint that tells you to go do a little tailoring and come back to see us. The record does not support the claim that despite the remaining provisions of the Halloween statute, the signed mandate is necessary to further the government’s compelling interest in protecting children on Halloween. And I’ll let you read the conclusion. But, yes, I take this as an invitation that they can clean this up and they can they can have an effect. And I think they could. If they would contact with me, I will write them a very constitutional law, but it’ll only apply to probably 25 people in the whole state.
[40:23] Andy: Now the court stated, quote, accordingly, the sign mandate burdens more speech than necessary and fails strict scrutiny. They cited McClendon versus Long, and that’s a sheriff Gary Long there on that long one. 22 federal four thirteen thirty, concluding that when a local sheriff’s office made signs, carrying messages, no trick or treat at this address and placed them in the registrants yards. So they literally went around to the I don’t remember how many people it was, like, a 100 people or something. And they went out there and they went bunk, bunk, bunk, and then jabbed the sign in the easement
[41:00] Larry: in front of the people’s houses. Yes. And that that was the sheriff that said, I’m gonna take this all the way to supreme court.
[41:07] Andy: That’s what he said. All and everyone’s like, thanks for keeping us safe, sheriff long on Facebook. That’s what they were saying. And as I said earlier, that was Narcel’s case decided,
[41:16] Larry: years ago.
[41:18] Andy: Yeah. I was more than four, Larry. So what happens next?
[41:22] Larry: Well, as I mentioned in the previous segment, the petition for reconsideration and or on blank review. And if that fails, the state can file a petition for cert with the United States Supreme Court. And if the court grants cert? Well, if they were to grant cert, then we will have a decision that is binding nationally on this issue regardless of which way they might rule.
[41:47] Andy: Now so if we, like, let’s just say, like, we stop the clock and this stays where it is. We have two circuits. We have the eleventh down there in Georgia, and we have this one, eighth in Missouri, saying that you can’t do it.
[41:58] Larry: Doesn’t that kinda tell all of the other ones that they shouldn’t do this? It is very powerful. If if I’m in the business, if I’m in the left coast business of doing this, I’m gonna be churning out these cases as fast as I can find these because now I’ve got two decisions from the circuits. I’m gonna try to make a little bit of money and also try to get this crazy nonsensical restriction lifted. And it’s one additional chip of the, in the armor of this registration scheme. Does it end registration? No. But it built This is one of those systems. Just a bullshit inconvenience. It builds momentum. This is dumb. That that we can we can win cases. And everybody thought that we couldn’t win cases. We can win cases. We can win cases in conservative courts. We just have to litigate slightly differently. But, well, the, the Michigan case was decided by a conservative panel in the sixth circuit. You can win cases. I’m just not optimistic of what, what happened to the Supreme court, but if they file cert and it’s granted, we’re gonna be stuck with whatever they decide.
[43:02] Andy: Yeah.
[43:03] Larry: Should they is like, I mean, should we, should we try to push this there? Is it is it in our interest to do it at all? Well, we we don’t have to read it recently. We won. So it’ll be No. I’m I’m with you, but it’ll be the state push. Getting it there. Do we do we get any representation there at that, or is it just them granting certain hearing? Okay. We get to speak or whatever? But but if I’m if I’m, Adele Nicholas, I’m gonna tell them when the state files a cert petition, I’m gonna respond there’s no need for cert. I don’t wanna have to take a chance on the Supreme Court. That’s exactly what they did in Michigan, and that’s exactly what they will do in this case. We’re gonna argue that there’s nothing to see here because you’re running a big risk that they might undo this. And then all of a sudden, two circuits that have proved favorably have been overturned.
[43:45] Andy: I hear you. I gotcha. I understand. Somebody’s complaining, like, haven’t you covered this before? It’s like, yes. But this is the actual decision, not just the case. So Yes. This is Joey. This is the Pipe down. This is the actual decision that counts if
[44:00] Larry: it stands. The trial court was a decision. Yes. But this is the decision that matters because the state is running out of options at this point. They can do a couple of things, but the the funnel is getting narrow and narrow. When you start litigation when you think of a funnel, you’ve got a big wide mouth at the top. You have a lot of options. They’re running out of options.
[44:21] Andy: I gotcha.
[44:22] Larry: Well, alrighty then. Anything that you wanna say before we go? Well, I’m on a snark mood tonight. Those of you who leave messages to have, someone call you with a phone number, Let me give you a little hint. Answer your damn phone when I call you. It’s true. I do not send text messages in advance to make appointments. And I do not leave voice messages because I don’t know who’s gonna be listening to the messages. I don’t know what inconvenience it might cause for you. So if you leave a phone number and you get a a ringing phone, pick it up. If it’s not somebody you wanna talk to, hit the end button. But I’ve there there was a guy left a message weeks ago about, a registration question related to Georgia. And I’ve called him, I think, three times, and I get this goofy voice message. It doesn’t really say anything. Then there’s a little bit of chatter in the background. It sounds like a like an elephant falling off a cliff, and then it’s like and I’m I’m embellishing that. But there’s nothing there that makes you wanna leave a message. So but I don’t I have to I have to call you when I have time. I have a busy day, and I don’t make appointments. I call when an opportunity presents itself. And if you wanna talk to me, pick up your damn phone.
[45:36] Andy: I gotcha. Paul? Larry has spoken. If anybody’s watching, the the, Mandalorian,
[45:43] Larry: Larry has spoken. Well, I I typically Head over to I typically try to call everybody that will request a phone call, but it’s so frustrating because you can’t get anybody anymore. I understand. Well, that’s because we get all the bullshit calls of all the scammers. I get it just as many to answer their phone. I get just as many as you do, and I handle them quite effectively.
[46:00] Andy: I handle them quite effectively too and I don’t answer my phone. So Well, head over to registrymatters.co. Email us at registrymatterscast@gmail.com. Old fashioned voice mail, (747) 227-4477. And thank you to the dozen or so people that were in chat tonight listening live. That is, given to you as a privilege at patreon.com/registrymatters. Also head over to fypeducation.org/shop, and you can find all of our fantabulous merch. And I don’t have anything else. I wish everybody a happy New Year to you too, Larry, and I hope you calm down and step off that soapbox and take some blood pressure medicine, calm down or something.
[46:43] Larry: Well, there are many listeners here next episode. Now we will be having to take off the following week, not this next week, but the following week because of strategic planning. We can function that I have to do once a year. So the the week week after next, we won’t be recording unless we do it at a different time, and I don’t think I’m gonna be up to it. So Sure. That’ll be the seventeenth. So cool. Alright. Alright. Perfect.
[47:04] Andy: Well, take care, my friend, and take care, everybody. And we will see you soon. See you next week. Bye bye night.
[47:10] Announcer: You’ve been listening to FYP.
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