[00:30] Andy: Doing awesome. How are you? I’m all right, man. We have now started with summer weather, and you’ve got to make your grass look pretty and all that. Why can’t we just have rock yards, right?
[00:44] Larry: Well, you could, but your neighbors might not like them there the way they do here.
[00:46] Andy: Is that a problem over there?
[00:48] Larry: Well, it’s encouraged. Do people get pissed off about the rock?
[00:50] Andy: Well, you guys have water problems all the time.
[00:53] Larry: It’s encouraged. They give you an incentive to use desert landscaping here. So could you? Do you have any cacti in your front yard? I don’t, but some people do. That’s part of the desert landscaping.
[01:07] Andy: Of course it is. All right, well, please remember to show your support by hitting like and subscribe and doing the five-star review thing. Of course, you could lie and give us a five-star review even if you hated the program. That would help us out, and I would appreciate it. Should we tell people to do that, Larry?
[01:24] Larry: We should tell people to do that because FYP is going
[01:28] Andy: broke. Oh, I didn’t realize this. All right. And then if you would be so very kind, you can head over to patreon.com/slashregistrymatters and join our community. And then you can do all kinds of fun things in the discord server, like hang out with the deputy and learn about graphics cards. Right? About GPUs. We talked about that on pre show. You don’t remember? I heard GPU, but I didn’t know it was a graphics card.
[01:57] Larry: It’s a graphics processing unit. All right. Well, what do we do? What are you doing tonight? Well, this should be a fun and enjoyable episode because I’m going to be interviewing you about the $375 million verdict handed down against META here in New Mexico. And we have a case from the Fourth Circuit Court of Appeals that is an amazing win for the PFR population. Not so much it’s going to change the trajectory of registration, but in my view, it will send a message to law enforcement. It’s some level that you ought not be playing games.
[02:35] Andy: Very good. Let’s start with this META hit with a $375 million verdict out of New Mexico. And so the jury just handed this down. This was roughly a couple of weeks ago, wasn’t it? Yes. All right. And for those of you that don’t know, META is the parent company of Facebook, Instagram, WhatsApp. And the headlines are screaming about this $375 million verdict. Now, you’ve been chomping at the bit to get into the legal side of this. And so let’s set the table. What happened?
[03:07] Larry: Well, I can tell you a little bit, but not much. So the case is New Mexico versus META Platforms. It was filed in First District, New Mexico District Court in Santa Fe by Attorney General Raul Torres back in December 2023. The legal basis is New Mexico’s unfair practices act. The state alleged two things: first, that META made false or misleading statements about the safety of its platforms, which falls under the definition of an unfair or deceptive trade practice. Second, that META engaged in unconscionable trade practices defined in the relevant section of New Mexico statutes, meaning conduct that takes advantage of a person’s lack of knowledge, ability, or experience to an extreme degree. Both of these are prohibited under Section 57-12-3 of New Mexico statutes annotated.
[04:13] Andy: Who brought the enforcement action? This wasn’t a class action suit by plaintiffs?
[04:23] Larry: It was brought by the Attorney General under the Attorney General’s Enforcement Authority under Section 57-12-3. Under Section 57-12-8, which allows the Attorney General to bring an action in the name of the state when he or she has a reasonable belief that someone is engaging in practices declared unlawful by the act. The penalty provision is in Section 57-12-11 New Mexico statutes annotated, which allows a civil penalty up to $5,000 per violation if the conduct is found to be willful. And that’s apparently where the $375 million comes from.
[05:01] Andy: We could have one of our listeners do that math real quick. What’s $5,000 divided into $375 million? That would tell us how many counts they got hit with. So this wasn’t some kind of crazy abstract theory. This actually involved the government running an undercover operation, almost like a sting?
[05:20] Larry: It was rumored that the Attorney General’s office created fake social media profiles posing as 13-year-old children. According to the original complaint, these accounts were flooded with sexually explicit content and solicitations from adults. That investigation led to actual arrests, three of them. So when this went to trial, the state wasn’t waving around hypotheticals; they had evidence. The trial ran for about seven weeks in Santa Fe before a judge that I cannot begin to pronounce.
[05:51] Andy: I think it’s Bideshide. B-I-E-D-S-C-H-I-E-I-D. Sorry. But it sounds almost too rhythmic, so maybe it’s not right. Anyway, I thought it was really interesting. The jury came back super fast. They deliberated for only one day. That seems unusual to me.
[06:15] Larry: It felt that way to me as well. One day. But they found Mehta liable on both counts. And that’s important. They found the conduct was willful, which triggers the $5,000 per violation, maximum under the statute. The statute defines willfully as intentionally, as the intentional doing of an act with knowledge that harm may result. The jury applied the penalty to approximately 37,500 users, which according to the source, New Mexico’s reporting accounts for roughly one quarter of New Mexico’s teen population based on the most recent census data. That’s how you get to $375 million.
[06:55] Andy: I see. Okay. So 37,500 times 5,000 is 375 million. All right. So let’s put this in perspective because $375 million sounds like a fortune. FYP’s coffers has roughly that amount of money. And however, Mehta reported $160 billion in revenue last year. So this isn’t really even like a rounding error. This is just like, oh, hey, look, there’s a penny on the floor. This is kind of like that to them.
[07:26] Larry: It’s less than a single day’s revenue, and they’ve already stated that they intend to appeal. A Meta spokesperson said they respectfully disagree with the verdict. Imagine that.
[07:39] Andy: So before we get too much into the real meat of this, I feel like you have some opinions about New Mexico and big business. And also, I want to talk about possibly making a comparison with this in the tobacco industry. There was something called the Master Settlement Agreement. Back in the day, because the news coverage is drawing a direct line between this case and Big Tobacco.
[08:03] Larry: Having lived here for my fifth decade, I’ve watched how people think here in New Mexico. The state has a bit of a reputation for being hostile to large corporate defendants and even wealthy individuals. And it’s not entirely undeserved. This is the state that gave us Liebeck versus McDonald’s restaurants. Probably the most famous product liability case in American history. That was the hot coffee case from 1994, tried here in Bernalillo County. A jury found McDonald’s liable and initially awarded two point seven million dollars in punitive damages.
[08:42] Andy: You would think so. And to be fair, a lot of people don’t know the facts around that case. So that woman, Stella Liebeck, which did you pronounce it as? I said Liebeck, but it could go either way. Sure. So Liebeck. She was seventy nine years old. One of your contemporaries. She suffered third degree burns in her pelvic region and needed skin grafts. The coffee was being served at one hundred eighty to one hundred ninety degrees Fahrenheit. McDonald’s had over seven hundred prior burn complaints on file, but they didn’t change anything. She initially asked for twenty thousand dollars to cover her medical bills. McDonald’s offered her a whopping eight hundred bucks. Ha ha ha.
[09:26] Larry: So, well, to be fair, I don’t know the inner workings of McDonald’s, but most of them are franchise operations. So when you talk about McDonald’s as a company, who would have been the responsible party? That’s a topic for another day. But if a guy owns two McDonald’s stores, they don’t have that kind of money. I mean, they might offer eight hundred dollars, while twenty thousand is more than what they can afford. However, the trial judge called McDonald’s conduct willful, wanton, and reckless. But the media turned it into a story about a lady spilling coffee and getting millions. And it became a poster child for tort reform. What people don’t realize is that the judge reduced the punitive damages to four hundred eighty thousand dollars because that was the cap at the time. It ultimately settled for reportedly less than five hundred thousand dollars. But the point is, New Mexico juries are not afraid to impose large penalties on corporations. And that matters here.
[10:26] Andy: Now let’s move over to the tobacco comparison and CNBC’s coverage explicitly compared this wave of social media litigation to the big tobacco suits in the 1990s. The parallels are real. Internal documents showing the company knew its products were harmful—check. Executives ignoring their own safety teams—check. Public statements that contradict internal knowledge—check. The tobacco master settlement agreement in 1998 didn’t just cost the industry two hundred and six billion dollars; it fundamentally changed how tobacco companies could operate, market, and interact with the public. And that’s what New Mexico is going for in phase two of this trial.
[11:06] Larry: Yes, which brings us to why the three hundred seventy-five million isn’t the story. The story is what happens on May 4th. There’s a second phase and it’s a bench trial—no jury. And judge who? That I think that’s going to be a bite shot. Judge bite shot. The state is bringing a public nuisance claim, and the relief they’re asking for goes far beyond money. Attorney Gerald Torres went on CBS and CNBC Squawk Box the day after the verdict and laid it out. He said they’re asking for injunctive relief, mandatory age verification, changes to recommendation algorithms, restrictions on certain design features, and an independent monitor appointed by the court to oversee compliance—just like the tobacco companies got independent monitors.
[11:59] Andy: Now, this is where I’m going to have to jump in and kind of take over a little bit, because when lawyers and politicians say age verification and algorithm changes, I don’t think most people understand what they’re actually talking about technically now. And Larry, I know you’re not really technology is not your forte.
[12:18] Larry: Yes, I’ve told you, I predate the telegraph. I was helping design and lay those lines back in the 1800s.
[12:26] Andy: All right. Well, let me explain what it looks like under the hood. When they say real age verification, they don’t mean clicking a checkbox that says, quote unquote, “I’m over eight” or “I’m over 13.” They mean identity verification, submitting a government issued ID or biometric analysis, which is a fancy way of saying facial recognition or thumbprint or something like that to estimate your age. Some of the proposals floating around require third party age verification services that collaborate and collect and store identifying documents. And that would apply to everyone, not just children, right? You can’t verify that someone is not a minor without verifying who they are. There’s no technical mechanism that checks age without collecting identity. So what you’re really building is a system where every single person who wants to use a social media platform has to hand over government ID or submit to biometric scanning. You’re building an identity verification checkpoint for the internet now.
[13:28] Larry: That’s funny, yeah.
[13:30] Andy: Sure, okay. Funny.
[13:33] Larry: It’s a word we could use. And I would imagine that the data has to be stored somewhere, and then it begs a lot of questions: Who all would have access to it? Could it be marketed? What would they do with it? How would they secure it? What would they do to stop data breaches?
[13:44] Andy: You’re hitting all the cylinders there. It does sound like a massive honeypot, are you familiar with that term?
[13:53] Larry: Okay.
[13:54] Andy: And it isn’t theoretical—in September 2025, Discord, where we’re actually broadcasting this to folks right now, had its third-party customer support provider breached. According to Discord’s own disclosure, approximately 70,000 users had their government-issued IDs exposed; these were photos people had submitted specifically for age verification. The hacker group claimed access to over 2 million ID images and 1.5 terabytes of data. The Electronic Frontier Foundation gave Discord their “We Still Told You So” Breaches Award for the incident, and here’s the kicker: Discord then turned around and announced mandatory age verification for all users starting in 2026 using the same type of infrastructure that just got breached. The EFF has called age verification mandates a censorship and surveillance nightmare, and they’re right.
[14:53] Larry: So the cure might end up being worse than the disease in my opinion. And everybody who rails against big government—well, it’s not the government collecting this but the government mandating that it’s being collected. This is going to be funny when everybody’s data is breached.
[15:09] Andy: That’s right. How could you give access to one group of people without collecting all of it? But we need to think really carefully about what infrastructure we’re building in the name of protecting children’s rights, not just children. Children’s rights, got it? Got it. Because that infrastructure doesn’t disappear once it exists; it gets repurposed. Our audience knows better than most that things get repurposed.
[15:40] Larry: A fair point. Now there’s another development that came out during the trial—I want to bring this up midway through the proceedings—Meta announced that it would remove end-to-end encryption and create a new infrastructure for all users. I don’t fully understand the technical implications, but what does that mean?
[15:59] Andy: Well, this is one that genuinely scares me, and I need to unpack it because there are layers here. So, end-to-end encrypted encryption or e2e means that when you send a message to someone, only you and the recipient can read it—not Meta, not the government, not a hacker who intercepts it in transit. The message is encrypted on your device and decrypted on theirs; nobody in the middle can see the content. By the way, this is the same encryption technology that protects your banking transactions these days when you log into your bank’s website or make an online purchase. That little padlock in your browser tells you that the connection is encrypted so nobody can intercept your financial data. It’s the same underlying principle.
When we talk about weakening encryption, we’re not talking about some niche privacy tool for people with something to hide; we’re talking about technology that secures the entire digital economy. Meta is removing this from Instagram. Yes, they announced during the trial that they would be pulling it. Their spokesperson told CNN that not many people were opting into it, so they’re just removing the option. But the timing is conspicuous—this happened in the middle of a trial where one of the state’s key arguments was that encrypted messaging made it harder for law enforcement to identify information being sent to them and that’s why they didn’t identify predators.
The state presented evidence that changes Meta made to Facebook Messenger’s encryption in 2019 impacted their ability to share information with law enforcement in approximately 7.5 million child abuse reports. So, then to move along here’s where it gets really uncomfortable, and I need for everyone to follow me on this: The stated justification for moving encryption is that you can’t detect CSAM (child sexual abuse material), grooming behavior, or terrorist communications in messages you can’t read. That’s technically true, but the inverse is also true—the only way to scan for that content is to have access to all content: every message, every conversation, every photo, every link from everyone. If you want to find the needle, you have to surveil the entire haystack. Which means that every person who is lawfully communicating—and that’s an overwhelming majority of users—is having their conversations monitored by default.
[18:26] Larry: A significant constitutional concern now. To be fair, it’s not an individual; it’s technology monitoring, but then where does that stuff go after it’s been monitored by high tech?
[18:39] Andy: And it’s an enormous concern and it doesn’t stop at the platform level. Once the data exists in a readable form, it can then be collected, stored, analyzed, and shared. You may have heard of the NSA’s data center in Utah, in Bluffdale. That facility was built specifically for mass data collection and storage. When unencrypted communications flow through platforms at scale, they become available for government collection whether through direct request, court orders, or programs we may not even know about yet. We know from the Snowden disclosures that the government’s appetite for bulk communications data is functionally limitless.
Now, let’s move over to a little bit of First Amendment territory. If the government directly or through regulatory pressure on companies can read every digital conversation, it has a chilling effect on speech. I want to give a concrete example: Back in 1995, do you remember AOL? At the time, that was the dominant online platform. They banned the word “breast” on their platform as part of a content cleanup effort. If you ban the word breast, you understand that 13-year-olds aren’t going around typing in “breast” and seeing pictures of boobs, but breast cancer patients could not communicate with each other either. Support groups were disrupted; people had their profiles deleted for using a medical term because a content filter couldn’t distinguish between medical discussions and something seen. That’s what happens when you build blunt instrument content moderation systems—they don’t distinguish between a predator and a cancer patient; they just flag the keyword.
[20:31] Larry: That’s one of the things I’ve been griping about for a long time. Tech can’t distinguish between different types of conversations, as this example shows. The same logic applies to encryption removal.
[20:43] Andy: Yep, and once you remove encryption so you can scan for CCM, you’re scanning everything. This means that when you and your boss have conversations—whether it’s about finances or a case coming up—all of that stuff gets slurped up. If you were using Instagram’s messaging platform, the tools that scan for illegal content could be retrained to scan for anything: political speech, religious speech, organizing dissent, any sort of minority conversation. I don’t want to say disenfranchised—I’m thinking of trans people and their conversations getting slurped up. I’m no fan of hate groups like the KKK or Christian white nationalists; those people are repugnant to me personally, but they do have a First Amendment right to communicate and assemble.
[21:42] Larry: Settled law
[21:43] Andy: Right, well.
[21:45] Larry: I would agree with you on that. And as distasteful as these people are, you should be willing to defend their speech because when we start having the speech police, your speech is next.
[21:55] Andy: And if every digital communication is readable by default and all of that activity is under potential scrutiny not just because someone got a warrant or because a judge found probable cause, but just because the infrastructure exists and someone decided to look.
[22:13] Larry: Since you know the Fourth Amendment and all the amendments by heart, can you explain the Fourth Amendment connection for our audience?
[22:21] Andy: Sure. So the Fourth Amendment protects us against unreasonable search and seizure. You need a warrant supported by probable cause and issued by a judge to tap someone’s phone or open their mail. That’s foundational stuff. But when a company removes encryption, they’re building a window into every conversation that any government, any hacker, or any rogue employee can look through. You don’t need a warrant to read what was never locked. For a nation that prides itself on constitutional protections against unreasonable search and seizures, the collective indifference to this is staggering.
[23:01] Larry: And so you’re under the misguided belief that we actually value these things. But for our audience specifically, if you’re on the registry, you already live under a degree of government scrutiny that most people can’t even fathom. The idea that digital tools you use to communicate might have surveillance baked in by default should concern you and everyone enormously.
[23:22] Andy: And then it gets worse because there’s another angle here that most people aren’t talking about, and it ties directly into what the writer Shoshana Zuboff has called surveillance capitalism. Your personal data is the raw material being extracted, packaged, and sold for profit. There’s a multi-billion dollar industry of data brokers whose entire business model is collecting your personal information from apps, websites, location services, purchasing history, public records, and packaging it for sale. And here’s the part that should make everyone’s blood run cold: The government can simply buy it, no warrant required. How’s that legal? My understanding is based on something called third-party doctrine—the legal theory is that you’ve voluntarily shared the data with a third party when you agreed to some app’s terms of service that nobody ever reads. You have a diminished expectation of privacy in that data. The Supreme Court narrowed this somewhat in Carpenter v. United States, but the government has been actively purchasing data from brokers to get around warrant requirements. It’s an end run around the Fourth Amendment and it’s happening right now.
[24:36] Larry: Can you connect this back to the Meta decision because
[24:43] Andy: Every piece of safety, quote-unquote, infrastructure that gets ordered by a court—age verification systems, identification and verification systems—are all part of the data being used to protect kids. Now there’s a database linking government IDs to social media profiles. That data can be subpoenaed, it can be breached just like we discussed earlier in Discord. It can be sold, it can be purchased by a government ID, and it can be used by a government agency through a data broker without anyone ever going before a judge. The infrastructure of surveillance capitalism and the infrastructure of child safety are becoming the same infrastructure, and that should terrify everyone.
[25:33] Larry: Everyone, so the surveillance infrastructure that gets built in the name of child safety becomes a tool for monitoring anyone that the government takes an interest in.
[25:42] Andy: That’s it exactly. This isn’t conspiracy talk; this is the documented, observable pattern. We saw it with the Patriot Act and FISA courts—broad surveillance powers get authorized for one stated purpose and then quietly expand every single time.
[26:02] Larry: I wouldn’t believe that the big people pushing the Patriot Act and all that has been used for since then, but in terms of those impacted by the registry, you’re already kept in a category the government has decided warrants extra monitoring. Any expansion of digital surveillance tools hits you first and hardest, right?
[26:25] Andy: I want to bring in some data here because the phrase “protect the children” gets used as though children are being snatched off the streets by strangers in epidemic numbers. Now, let’s look at what the actual numbers say according to the FBI’s Law Enforcement Bulletin using NCMEC data: approximately 200,000 children per year are abducted by family members; an additional 58,000 children per year are abducted by non-family members, primarily people with a known relationship to the child. The number of what the FBI calls “stereotypical kidnappings,” where a stranger abducts a child with the intent to keep ransom or kill, is approximately 115 per year nationwide—115 out of roughly 72 million children in the United States. That’s less than one in a million. Now, to be fair on that—if it’s your child, obviously one is too many—and I’m not trying to discount that—but we’re building this entire infrastructure around that tiny, minuscule number.
[27:36] Andy: Believe that would qualify as the imaginary boogeyman.
[27:39] Larry: The danger is overwhelmingly from people the child already knows and associates with.
[27:43] Andy: Yes, the danger is already in the house. Nick Mix’s 2024 data shows that out of the 29,500 missing children cases they assisted with, 91 were endangered runaways. Non-family abductions were approximately one percent of cases. And the recovery rate, according to Nick Mix, former president, is more than 99% of children reported missing in recent years have come home alive. The FBI’s card team data show that in 70% of child abduction cases, the abductor had a known relationship with the child. One percent or less were strangers. And yet, the entire surveillance apparatus being proposed—age verification, encryption removal, algorithm monitoring, government-appointed guardians—is being justified by the specter of stranger danger. The data does not support the narrative. The narrative supports the infrastructure, and our audience understands that distinction better than almost anyone else, is that right? I think so.
[28:54] Larry: So maybe they would tell me.
[28:56] Andy: Other people might tell us otherwise.
[28:56] Larry: Well, I do want to be clear about something. The state of New Mexico presented a strong case. The jury found metal libel on every count. And about a day later, the evidence of internal knowledge was and willful inaction was compelling. Former matter vice president Brian Boland testified per CNN’s trial coverage that he absolutely did not believe that the abductor had a known relationship with the child. Abductor was guilty of abduction without felonious intent. The judge
[29:30] Andy: has taken steps away from the crime scene. Police have dominated the case, and the indigent in the trial proven guilty to be a misdemeanor. A misdemeanor is not an extenuating offense against the child abductor.
[29:38] Larry: The case is getting even worse. The judge came forward with a case referred to as the child abductor women’s court. I’m going to be civil about it, but he says if it’s being considered a misdemeanor, a misdemeanor is still a misdemeanor. If it’s being considered a misdemeanor, the judge will make a ruling based on an adult in alarming numbers.
[29:54] Andy: Sure, there absolutely is. But the question our audience needs to be asking is not whether something should be done; the answer is obviously yes. The question is what is being done and who else does it affect? Because when A.G. Torres walks into that courtroom on May 4th and asks Judge Beitscheid for mandatory age verification, algorithm oversight, and independent court-appointed monitor, that’s not just about Meta. That’s a template. Just like the tobacco master settlement agreement became a template. And remember, over 40 state attorneys general have similar suits pending against Meta. If New Mexico gets a favorable order on the public nuisance claim, you will see that framework replicated nationwide.
[30:35] Larry: “Protect the children” is a phrase that, as our listeners know, gets attached to legislation and court orders that accomplish far more than their stated purpose.
[30:46] Andy: It’s a skeleton key. It opens every door. Say you’re trying to protect the children. You can do whatever you want. Nobody can vote against it. Just like anything with PFRs. If a legislator says, “Oh, I voted down something that made life worse for PFRs,” they’re going to get outed in the next election. So nobody can argue against it in public without getting destroyed. And then the people who wield it know that. So what should we be watching? What should people be watching for? May 4th is when the bench trial happens. The money is a sideshow, really. Watch what Judge Beidscheid orders in terms of injunctive relief. Watch whether he mandates identity-based verification. Watch whether the independent monitor framework becomes a model other states adopt. And encrypt everything you can while you still can. Use Signal for messaging, use a VPN, use strong passwords, and two-factor authentication. Read the privacy policies. Opt out of data collection wherever you can because the walls are closing in on digital privacy, and they’re closing in fastest on the people who can leave the country. At least afford to lose it. And that’s our people. That’s our audience.
[31:55] Larry: Well said. The full complaint is available on the New Mexico Attorney General’s website at nmag.gov. And the New Mexico courts have been posting the admitted trial exhibits at nmcourts.gov.
[32:13] Andy: And we’ll drop links to the complaint, the statute, and the key news coverage in the show notes. Now, all right. What do you think? Anything else you want to cover on that one?
[32:22] Larry: appreciate all the laborious work. I know you’ve worked on this for hours.
[32:28] Andy: It wasn’t like 10 minutes. All right.
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[33:21] Andy: Then we shall venture over, we’ll jaunt over to North Carolina’s Sheriff Barney Fife. And you have a case you want to talk about, and it’s from the United States Court of Appeals for the Fourth Circuit. Now, while I was cutting the grass today, I thoroughly reviewed the facts, and I have a simple question to begin with. This decision came down in April of 2024, so like two years ago? Why did you wait so long? Because I didn’t know about it until this week. You’re telling me that despite FYP’s research staff and the many tools you have, that you didn’t know about this important case? That’s what I’m telling you. We should probably fire the entire research staff. So the name of the case is Thurston v. Frye. So Kevin Frye and Lee Buchanan appealed the district court’s denial of their motion for summary judgment. Oh, your favorite. They argued that they are entitled to qualified immunity because their arrest of David Thurston did not violate his Fourth Amendment rights. Tell us about Thurston.
[34:25] Larry: Well, he’s a fine gentleman. In 1992, Thurston pleaded guilty to two counts of sexually assaulting minors in Montana. Fast forward to 2015, Thurston moved to Avery County, North Carolina. Frye served as sheriff, and Buchanan was the deputy in charge of PFR registration. So remember, Sheriff Frye and Deputy Buchanan as we go through this case.
[34:48] Andy: All right. So on August 9th, 2016, Thurston informed Sheriff Frye that he had been invited to his nephew’s wedding, which was scheduled for September 17th in Spokane, Washington. But Thurston’s biannual verification was due around the same time. Mindful of these obligations, Thurston sought Sheriff Frye’s advice on how to comply with the law and asked for his permission to attend the wedding. After exchanging texts, Sheriff Frye told Thurston on August 11th that he could go because the sheriff’s office was working on it. All Thurston needed to do, Sheriff Frye explained, was email a copy of Thurston’s Washington visitor registration form within 10 days of his arrival. What is a visitor registration form?
[35:35] Larry: Well, Sheriff Frye told him that he needed to register his stay in Washington because it was going to be an extended period of time.
[35:42] Andy: See. And so Thurston left North Carolina the same day. On his way to Spokane, Sheriff Frye wrote to Thurston asking for the address where he would be staying. Thurston provided his address and arrived in Washington on August 21st. He registered as a visitor and emailed the registration form to Sheriff Frye as instructed. In all, Thurston stayed for over a month, interspersed with excursions to Seattle to visit a friend.
[36:13] Larry: It gets even funnier. On September 9th, while Thurston was away, the sheriff’s office mailed his verification form. His sister in North Carolina told him about it, prompting him to contact Sheriff Frye for guidance. But Sheriff Frye never responded. So Thurston decided to let it die given their prior interactions regarding this. Now, I’m guessing the sheriff did not let it die? You’ve guessed correctly. They did not. Deputy Buchanan began investigating Thurston three times after he left North Carolina. On September 12th, which was the verification deadline, Deputy Buchanan stopped by Thurston’s residence in North Carolina but found no one there since Thurston had already gone to Washington. Concerned, as anybody would be in their right mind, Thurston contacted Deputy Buchanan on October 6th when Spokane County Sheriff’s Office phoned him, informing that Deputy Buchanan was considering getting U.S. Marshals involved due to his prolonged absence. Deputy Buchanan then erroneously told Thurston it was illegal for him to be out of the state for more than 30 days but also said he had spoken with Sheriff Frye and as long as Thurston returned by October 19th, there would be no problem. Thurston met the deadline and returned to North Carolina on October
[37:52] Andy: 19th. It’s interesting that despite all the documented communication, Deputy Buchanan discussed potential criminal liability with an assistant district attorney. The ADA recommended that they pursue charges against Thurston. And then on October 19th, despite knowing that he and Sheriff Frye had given Thurston until that day to return to the state, Deputy Buchanan obtained a warrant from a local magistrate.
[38:35] Larry: Now, I’m going to hold out hope. Can you at least admit that this is funny? You’re a sick individual if you think that this is funny. What happened next? You’re hopeless. You’re never going to laugh. So, on October 21st, Thurston went to the Avery County Sheriff’s Office to deliver his now completed verification form. He was greeted with an arrest. They alleged three different criminal violations from September 19th and October 18th: one, being out of state for more than 30 days; two, willfully failing to return his verification form (remember, he returned it); and three, willfully failing to report in person to the Sheriff’s Office (he showed up there). To me, this is hilarious because the records clearly show that all these allegations are untrue. Right.
[39:14] Andy: So then one year later, Thurston sued the Avery County Sheriff’s Office, Sheriff Frye, and Deputy Buchanan alleging among other things, violation of Thurston’s Fourth Amendment rights. The officers asserted a defense of qualified immunity and moved for summary judgment. What did the district court do?
[39:34] Larry: The district court denied their motion for summary judgment, and this appeal followed.
[39:40] Andy: So then Sheriff Frye and Deputy Buchanan maintained on appeal that they are entitled to qualified immunity. First, they argued that they did not violate Thurston’s Fourth Amendment rights because they had probable cause to seek his arrest. Further, they argued that even if the arrest lacked probable cause, it did not violate clearly established law because it was supported by a warrant.
[40:03] Larry: Well, that last sentence is just shy of accurate. They said because it was supported by a warrant. The warrant was issued as a result of their request based on misleading information that they provided to the magistrate judge.
[40:19] Andy: Now, would there be a situation where the argument that the arrest was based on a warrant be viable?
[40:26] Larry: Yes, there would be. There would be many warrants that law enforcement officers encounter where they didn’t seek the warrants and are merely acting on what’s in an NCIC database. So if an agency is acting on information and arrests someone as a result of an open warrant, they cannot be deemed at fault if the warrant turns out to have been issued improperly. But the problem for these people in Barney Fife’s sheriff’s office is that the warrant would not exist but for their misleading and malicious actions. That’s the difference.
[40:59] Andy: Sounds like you’re saying that the police lie. No, can we dig into the qualified immunity of it? Can you explain what it is and how it is applied?
[41:11] Larry: Well, it’s kind of controversial, but qualified immunity protects government officials from claims of statutory or constitutional violations when they reasonably believed their actions were legal and when they made a reasonable mistake about the legality of their actions. To determine whether Sheriff Fry and Deputy Buchanan are entitled to qualified immunity, we must first answer two questions with a split burden of proof. First, has Thurston established that, viewing the evidence most favorably to him, the officers violated his constitutional rights? If so, then have the officers shown that the asserted rights were not clearly established at the time they made their good faith mistake?
[42:11] Andy: Thurston’s arrest warrant identifies three crimes: failing to register that he would be out of state for 30 days, purportedly in violation of North Carolina General Statute 14-208.11; number two, willfully and feloniously failing to return the form verifying his address to the sheriff’s office within the allotted time, also in violation of subsection 14-208.11; and finally, number three, willfully and feloniously failing to report in person to the sheriff’s office, again in violation of 14-208.11.
[42:47] Larry: Yes, and it’s very interesting that the parties agreed that the officers had probable cause for the first non-existent offense. See, the first one—that you can’t be out of state for 30 days—was totally pulled out of their rectum. So, even the people defending the sheriffs agreed that this was non-existent. But they asserted that there was probable cause for the two other offenses. Thurston argued that these crimes carry a mens rea requirement, which is knowledge or an element of willfulness. According to him, at the time they saw the warrant, the officers had probable cause to believe that he was acting willfully because that’s in the North Carolina statute about PFR registration. It requires willful noncompliance.
[43:35] Andy: The court stated that Deputy Buchanan and Sheriff Fry needed some reason to believe that Thurston either purposefully violated the law or acted with some other improper purpose. How did that go?
[43:47] Larry: Not very well because the district court’s order and findings foreclosed the argument that they viewed the evidence in the light most favorable to Thurston. The district court accepted that both defendants definitely knew that Thurston was eager to comply with the law, which is why keeping that digital footprint of information was so helpful. The district court also accepted that officers knew Sheriff Fry gave Thurston permission to travel and that Thurston followed every instruction given by the sheriff’s office. So concluding, the district court not only accepted these facts about Thurston’s actions but also concluded that the officers had determined based on those actions that Thurston was eager to comply with the law. So who bears the burden of proof then? Well, once the challenger proves a constitutional violation occurred and if the officers want their qualified immunity, the burden is on them. In this case, the officers did not prove that Thurston’s arrest was not contrary to clearly established law. The court stated: “We thus conclude that the officers have failed to carry their burden to show that they are entitled to summary judgment. Though they acted pursuant to a warrant, no reasonable officer would have sought a warrant here.” The district court therefore correctly denied their assertions of qualified immunity.
[45:15] Andy: The court noted that qualified immunity is controversial and criticized but binding, and it provides a powerful defense for officers who perform critical services to society.
[45:32] Larry: And they went on to say, we recognize that the magistrate judge is more qualified than a police officer to make a probable cause determination. Thus, a magistrate’s approval of a warrant application in the average case will be the clearest indication of the officer’s objective reasonableness. And they concluded with “clearest” should not be confused with absolute. In a narrow set of cases where no reasonable officer would have sought a warrant, we cannot treat its issuance as evidence of objective reasonableness. I think this is hilarious.
[46:08] Andy: Tell me something. We didn’t really talk about any kind of compensation. How did that come out in the end here for whoever prevailed? Did they win money?
[46:23] Larry: He didn’t win money, but his legal fees were paid. The award was just over $100,000 to cover legal fees in a relatively small county. And I’m hoping that this gets through their attention, because money usually gets attention. In a county of $17,000, $100,000 is not just a rounding error.
[46:46] Andy: Does that trickle downhill and do the officers get fired? Do they get a bill?
[46:53] Larry: No, there’ll be no consequences for them. If officers were rated in some category of civil rights violations, it might result in a no-hire decision. But they don’t do that. So they’ll just move on with life as if nothing happened because it’s not their money. In North Carolina, the state would settle these cases. In New Mexico, it’d come out of the state’s funds. But in many places, like Georgia, the county has to pay up. For example, the suit we brought against Butts County over the Halloween signs, the county had to cover that cost.
[47:29] Andy: And then they could run around and post on social media saying because of this person on the registry, we don’t have $100,000. Therefore, we can’t do road improvements. That’s what they’ll say. So we need to make these laws tougher so that we can win. Right? You got it. Okay, I got it all figured out. This is the last episode because we’ve figured it out.
[47:52] Larry: Yep. Don’t need me anymore.
[47:55] Andy: Anything else you want to cover before we head on out? No, I think this was the best episode we’ve done in 2026. That could be. Well, that doesn’t really leave us a lot. We’re only a quarter of the way through. Head over to registrymatters.co for show notes and links everywhere you need to go. You can also of course head over to FYP Education for transcripts and blog posts, and that’s also where the shop is at fypeducation.org slash shop. You can email me over at registrymatterscast at gmail.com and I will forward that over to the Larianator and then also leave a voicemail message at 747-227-4477. And of course, please, please, please, please, please head over to patreon.com slash registry matters to show your support for the podcast. I hope you have a fantabulous weekend, Larry, and stay out of trouble and don’t call me at five in the morning. Cause I won’t answer. All right. I’ll wait till six. Please have a great night, everybody. Thanks for coming around and we will talk to you very soon. Take care. Good night.
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