[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we don’t take direction from anyone else. We’re thankful for the support of our patrons. You make what we do here possible. And always remember, FYP.
[00:19] Andy: Recording live from FYP Studios East and West, transmitting across the internet, this is episode 392 of Registry Matters. Larry, happy Saturday, how are you?
[00:30] Larry: Doing awesome, glad to join you again.
[00:33] Andy: Fantastic. Please head over to your favorite podcast app and subscribe. Share it with your buddy at the treatment provider and on YouTube too. We’re close to a milestone number on YouTube.
[00:53] Larry: We are, we’re at 987 this morning. Reaching 1,000 is a very important milestone. We need to hit that in the next two weeks.
[01:01] Andy: Two weeks? Brian has to leave for dinner. All right, let’s continue. What are we doing tonight?
[01:09] Larry: We have a case from the Eighth Circuit Court of Appeals that originated in Missouri, or rather, it’s from Missouri. And also, we have a listener comment to share; the comment is actually good news to balance all the gloom and doom that I can bring to the program.
[01:27] Guest 1: An appeals court just said a father has a fundamental right to live with his own children, even after a conviction. Alabama had a lifetime ban saying otherwise, and kept losing. Registry Matters breaks it all down. Even $1 a month makes you a patron, and unlocks everything, because this is a non-profit about the cause, not the tier. Become a patron at patreon.com/registrymatters.
[01:52] Andy: Well, let us begin right off with this listener comment. It says, “I am a Tier Two registrant in Pennsylvania and a relatively new listener to your podcast. Welcome, thank you. I really look forward to new episodes. I had two experiences that all happened close together that I would like to share with you. I’ve been on the registry since 2018. I’ve lost a few friends and feel like some neighbors know because they stopped talking to me, but really have had no issues. Sorry, it is a lot. I have an eight-year-old son, and he has two friends that live within my neighborhood. The one group of two brothers started coming over a lot, so my wife felt like it was a good idea to let the parents know. And this is the text I sent to one of the parents: ‘Hey, Courtney, this is Jonathan, Gary’s dad. I need to discuss something very important with you. I don’t want this to come back to hurt Gary.’ She responded, ‘Of course, please let me know.’ I stated, ‘This is very difficult to talk about, and I apologize in advance for how it will make you feel. I suffered most of my life with abuse and addiction. I would use what I could to escape a life I did not like. One of my biggest crutches was prawn [presumably meant “porn”]. I would download thousands of videos and images of every type, not seeking out anything in particular. And so he went on to explain that I am on the PFR registry because of that. I’ve never done or had a desire to do anything inappropriate to children. I did years of things, but I’ve never had a desire to do anything inappropriate to children. I felt this is very important that you know this because your sons are always coming over. If need be, we can discuss this more in person and set up any boundaries you feel are necessary.’ Okay, Larry, what do you think so far?
[03:46] Larry: I think it’s bold and novel, and I certainly would not have suggested it. I’m old-fashioned and believe in face-to-face communication. I think it’s a wonderful conversation, but as we go through this, it seems to have done the job.
[04:12] Andy: All right. And then so she wrote back, “I really appreciate you for this. No judgment over here at all. If I can be totally honest with you, we’ve known about it all along. However, we never like to jump to conclusions or judge. We’ve seen how well you treat Gary and how much of a devoted father you are to him. It did take us a while to start to be comfortable with it, but knowing how often I am in community with Amy, and again, also seeing how you truly are with Gary, we ultimately decided that we were totally comfortable with our kiddos hanging out at the house.” She went on, “I honestly can’t thank you enough for being so forthcoming and honest. I’m so sorry for everything that you’ve had to go through in life, but knowing you got out of it and have had a chance to give your family a different life is absolutely commendable. Please know that we will never judge and are always going to be a safe place for open communication.” I would never in a million years have said that to my neighborhood. And so he had a second point and then we’ll cover maybe in a future episode, but holy moly, I never, ever, ever, ever, ever would have sent that to a neighbor like that. Oh my God, no.
[05:21] Larry: I would have been very leery of doing that, but what it tells us is that unlike Alabama, he’s in a state where they have a little bit more enlightenment. Isn’t that what I would deduce from that? Yes, that they’re the enlightened ones. Yes, for sure. So yes, it’s quite a nice outcome that you can be a father and have your kids be accepted. Your kid, because it usually blends into the child’s life. They’re shunned because of something apparent. But that seems to be having no impact on Gary. Wow.
[06:02] Andy: That’s true, yeah. I struggle with that all the time. How long, in your opinion, Larry, do you think someone should keep letting it impact them? I’m coming up on 20 years since my event happened. So how long do you live with it? He said 2018, but he’s still coming up on 10 years past his conviction. How long do you keep living with it?
[06:26] Larry: Well, forever in this country. They won’t let you put it behind you. It’s funny; they tell you to move on in life, but they will not let you. Do you find something ironic about that?
[06:38] Andy: Yes, I do. I find something very ironic about it.
[06:44] Guest 2: 20,000 names gone from Michigan’s registry in one court ruling. That is nearly half the list. But Larry warns lawmakers are already sharpening their pencils to try to get them out of court. Try again. Registry Matters is a non-profit and your support literally funds the fight that makes wins like this one possible. Stay ahead of the next round. Become a patron at patreon.com/slash registry matters.
[07:11] Andy: Okay, then everybody on the planet wants to talk about this case from the Eighth Circuit Court of Appeals. The name of the case is Jane Doe’s and too many other names versus Eric Olson, Superintendent, Missouri State Highway Patrol. Number 25-1892. Is that the year you were born? Is it 1892?
[07:34] Larry: I was actually born before that. I was serving in government in the Lincoln administration.
[07:38] Andy: Oh, yes. I mean, you were born 50 years before that. Okay, sorry. I had 1792 perhaps? Or maybe 1831. Okay. And this opinion was released just five days ago on October 5th. I’ve read it so many times that I’m dizzy. It does not look like we won in this case.
[08:00] Larry: Oh, it is not a win. That is correct.
[08:02] Andy: But while I was reading, some things the court stated sounded to me like they were criticizing the attorney. Did you pick up on that sentiment?
[08:11] Larry: I did.
[08:14] Andy: So do you want to elaborate on that?
[08:18] Larry: No, I don’t. Not at this point, but maybe we will as we’re going through this.
[08:23] Andy: Very well. All right. So let me set up the case. This is an appeal. That’s probably an important point to make from the start. From the United States District Court of the Western District of Missouri. Is it Missouri? I think that’s how those people pronounce it. Carl, you’re here. Tell me how we pronounce it.
[08:41] Andy: And so on appeal, Doeze asserted that the district court erred in the following ways. First, when it found Missouri SORA is not punitive and denied their eighth amendment and ex post facto clause claims. Second, when it did not accept their assertions as true and applied the wrong standard to their due process and equal protection claims. Third, when it found their first amendment overbreadth claim was inadequately pled and refused to consider it. Fourth, when it rejected their claim that the provision of Missouri SORA requiring reporting of online identifiers is unconstitutionally vague. And lastly, fifth, when it dismissed sui sponte the family member’s claims. Remind us on our legal definitions, what is sui sponte?
[09:32] Larry: It means a decision made by a court without a request from either of the parties. So the court, when they do that, it’s called sui sponte.
[10:46] Andy: All right. Well, then how did I do setting up with the five points there?
[10:51] Larry: You did a fantastic job explaining the case. So you really don’t need me here.
[10:55] Andy: Well, we really don’t, but we feel sorry for you. So we keep having you back anyway. Since you are here, do you mind if we go through how the district court handled the case? And that might help the audience better understand the appeal.
[11:08] Larry: Sure. I’ll tell you what the district court did. The district court resolved all claims in three sequential orders. First, an order on the Missouri Highway Patrol’s and their defendants’ motion for judgment on the pleadings. Second, an order on the parties’ cross summary judgment motions. And third, an order of judgment following a two-day bench trial on some of the claims. The district court dismissed the family members’ claims because they were not required to register or take any action under Missouri SORA. Now imagine that. The district court also declined to consider the effects of Missouri SORA on family members, finding their situations irrelevant to the issue of whether Missouri SORA is punishment within the meaning of the Eighth Amendment or the Excessive Fines Clause. So you gotta be subject to the law before you can be a party. Wouldn’t that be like having
[12:07] Andy: Standing? Sort of, yes.
[12:24] Larry: Possibly. Possibly. That’s what they did. But it’s certainly clear that they did not like the Adam Walsh Act. The plaintiffs challenged Missouri SORA’s current scheme which categorizes PFRs into tiers based on the statute of their conviction for the underlying offense that triggers the registration obligation. No individual risk assessment is undertaken, and that’s how a categorical approach works. Different tiers set forth the length of time an individual must remain on the registry and the frequency at which they must register. They must report in person to law enforcement officials to verify their information. Tier one offenders remain on the registry for 15 years; they’re eligible for a five-year discount, but Missouri didn’t include that provision in their law, and they must report annually. Tier two offenders remain on the registry for 25 years and must report at least twice a year. They can report monthly if required by the state for AWA compliance. And tier three offenders register for life and report every 90 days. That’s how the tier system works. It’s pretty well aligned with AWA, except they failed to provide the five-year reduction for tier one.
[13:35] Andy: Okay, and so the plaintiffs also contended that Missouri SORA infringes on their constitutional rights by imposing unnecessary burdens and unreasonable restraints, which cause traceable injury and harm to their family members.
[13:52] Larry: That was a definite novel claim.
[13:56] Andy: I also noted that the court seemed a bit unsure and confused regarding what type of challenge was being brought. Did you pick up on that?
[14:03] Larry: I did. The district court noted in its final order that there had been significant discussion as to whether the plaintiffs were asserting facial challenges to Missouri SORA or as applied challenges, or both. The Missouri Highway Patrol defendants reiterated this confusion and blending of issues in their appeal brief, contending that even at this stage of litigation, the plaintiffs have not clearly indicated which arguments relate to which counts and which issues on appeal pertain to an as-applied challenge versus a facial challenge. Now, this is basic law: You have to plead with sufficient specificity so that the other side can respond appropriately. You can’t leave it vague and hope they guess what you’re doing.
[14:53] Andy: So I read it correctly. They were also confused?
[14:58] Larry: You read it correctly. The plaintiffs tried to clarify by stating in a footnote that they were asserting both as-applied and facial challenges, but offered no clarifying explanation, contending instead that the label used by a litigant is not what matters. It’s the remedy employed by the court that matters. I’m struggling with that. The court stated it finds this contention mystifying but does not need to resolve the imprecision and confusion because the plaintiffs have failed to establish that Missouri SORA violates any of their associated constitutional rights, either in its general application or in particular circumstances, which would be an as-applied challenge.
[15:38] Andy: In their complaint, the plaintiffs alleged harms related to family members not named as parties in this action. As to those that are named, the alleged harms include loss of friendships, social ostracism, and fear about community reprisals. In particular, the children alleged they were shunned by other families and neighbors due to their parent’s status on the registry. They were harassed by fellow students. They missed out on having their mom and dad attend their activities because schools refused to allow sex offenders on school property. One spouse alleges she lost a job opportunity after the employer discovered she lives at the same address as a PFR. Another spouse alleges she suffers extreme stress from dealing with their children’s activities and tasks alone. I mean, it sounds legitimate. What did the court say to all that?
[16:35] Larry: Well, the problem is you didn’t call those people as witnesses and put them on the stand. You didn’t create an evidentiary record. The problem is that the record does not support the Dole’s claim that the district court sua sponte dismissed without explanation. During the proceedings, the district court noted that most of the evidence from the family members focused on location restrictions for registered PFRs, which is not governed by any provision in Missouri SORA. The court found that the impact registration has on family members is irrelevant because the analysis must focus on the person directly affected by Missouri SORA. Since Missouri SORA has no provisions directed at family members of PFRs, the court further explained that the incidental effects on family members are immaterial to the constitutional issues before the court. The court also highlighted that the Dole’s had not cited any authority suggesting that the effects on a registered PFR’s family is a factor to be considered when analyzing the constitutionality of Missouri SORA.
[17:40] Andy: Now, to be honest, that sounds a bit critical to me. It could
[17:45] Larry: be interpreted that way. To me, it sounds more like a litigant putting forth a theory and a constitutional challenge that lacks foundational support and hoping it will somehow work.
[17:55] Andy: It would seem to me that the ex post facto claim would have merit though, don’t you think?
[18:02] Larry: No. As to Dole’s ex post facto claims, the district court concluded that their Eighth Amendment and ex post facto claims were not cognizable because Missouri SORA is not punitive.
[18:14] Andy: Hold on, wait, wait, wait, stop. Are you saying that they failed to prove that Missouri SORA is punitive?
[18:21] Larry: I’m saying that the court did not have evidence beyond rhetoric that the registry is punitive. They did not have evidence. After holding a bench trial, the district court granted judgment in favor of the Missouri Highway Patrol defendants on the Dole’s Eighth Amendment claim. The court determined that Missouri SORA is not punishment and that the Dole’s failed to allege this in their complaint. The statute is barbaric, and none of the evidence presented at trial persuaded the court that Missouri SORA is sufficiently disproportionate.
[18:54] Andy: Now, now I’m going to take the role of being cantankerous because I can’t let you out of this quite so easily. I want you to keep a straight face and tell our 20,000 listeners that the registry is not punitive. Can you do that for me, please? Well, I’m not saying that. I’m saying that they did not prove it. It might be punitive, but you have to go into court with proof. All right, well, the Eighth Amendment prohibits excessive bail, excessive fines and cruel and unusual punishment, perhaps like injecting someone with chemicals to try to end them and then not working. But under the U.S. Constitution’s Eighth Amendment.
[19:39] Larry: Well, to begin with, you have to prove that Missouri SORA is punitive before you can get to that next threshold. Then for punishment to qualify as cruel and unusual, it must be barbaric or grossly disproportionate to the offense committed. The court stated the first three issues in the Doe’s statement of issues concerned whether Missouri SORA is punitive, as the term is understood under the Eighth Amendment. We do not believe that Missouri SORA is punitive when considered in such a light. But to violate the Constitution, the Dole’s must show that both the law is punitive and it is cruel and unusual within the meaning of the Eighth Amendment. The U.S. Supreme Court has identified two categories of punishment that meet the Eighth Amendment’s cruel and unusual standard. Now, injecting people doesn’t do it. Putting people in electric chairs don’t do it. Putting people in front of a firing squad don’t do it. But they say modes or acts of punishment considered cruel and unusual at the time the Bill of Rights was adopted. And they cited a case called Ford versus Wainwright from 1986. And two, modes of punishment which are inconsistent with modern standards. That is to violate standards of decency as demonstrated by objective evidence of how society views a particular punishment today. I don’t think if you polled the average person and asked, what do you think about the PFR registry? Is it barbaric? Very few people, unless they’re on it, are going to say it’s barbaric.
[21:07] Andy: I’m inclined to agree with you. But so I zeroed in on something they say, which is on page 12. They stated the Doe’s cannot satisfy either step in the process. They have not shown the existence of a national consensus against PFR registration and notification schemes like the one at issue here or even any likelihood that such a trend may emerge. Nor have they convinced us that we should exercise our judgment and find Missouri SORA violates the Eighth Amendment.
[21:49] Larry: The court found the phrase “other identity information” is not unconstitutionally vague. Now, I’m having a little problem with that one because the Missouri Highway Patrol form expressly lists the information that must be furnished, but still, I’m not sure I’m in alignment with them on that one.
[22:07] Andy: What about the due process and equal protection claim?
[22:10] Larry: The court found that those failed to adequately plead a cognizable due process or equal protection claim, so that went away.
[22:18] Andy: What about the prohibition on using online identifiers before they are registered with law enforcement? Isn’t that an unconstitutional prior restraint on speech in violation of the First Amendment?
[22:31] Larry: It probably would have been, except the problem is that the parties accepted the court’s proposed remedy to order modification of the highway patrol form to remove that requirement. So that was solved without a need for judicial intervention.
[22:44] Andy: Would it be okay if we circled back to the ex post facto argument? What does it take to prevail in that kind of claim?
[22:53] Larry: You would have needed to consider that the Missouri Supreme Court had recently ruled in 2024, after their tiered system became operational, that it does not run afoul of the Ex Post Facto Clause. So this court stated they have carefully reviewed the analysis performed by the Missouri Supreme Court as it applies to Missouri’s SORA and find that the court has made the analysis thorough and persuasive, adopting its reasoning as their own. Concluding that the DOES have not demonstrated that Missouri’s SORA violates the prohibition of ex post facto laws. The SORA is reasonable in light of its non-punitive objectives. So one thing you do is look at recent case law and say, “Hmm, as the federal court, they’re going to defer to the state’s highest tribunal unless I have demonstrated it is blatantly contrary to a U.S. constitutional provision.” And then if you’re going to try to go down that path, you would come in with evidence showing a blatant violation of the U.S. Constitution because otherwise, the Missouri Supreme Court is going to control this and they did now.
[24:02] Andy: I’m getting kind of pessimistic that you will ever admit that the registry is punishment. What date do we need to get through that soft skull of yours? Even the South Carolina Supreme Court held that lifetime registration with no opportunity for relief is unconstitutional, well…
[24:18] Larry: They actually argued that, and the court responded to that argument. The court stated that this does point us to the South Carolina Supreme Court’s decision in Powell versus Keel, which we discussed on this program. This involves a dissimilar PFR registration scheme. When Powell was decided, South Carolina’s SORA imposed lifetime registration on everyone with biannual reporting for all PFRs. The court upheld the constitutionality of the initial mandatory lifetime registration requirement but found that the lifetime registration requirement for all registrants without any opportunity for judicial review to assess the risk of reoffending violated due process concerns. The concerns identified in Powell were ameliorated when the legislature tailored the scheme so that not all PFR offenders are treated the same and required to register for life. Notably, after Powell was decided, South Carolina’s legislature amended its SORA to create a three-tiered scheme which they’re griping about here, setting forth registration duration and removal procedures. Following the amendment, the South Carolina Supreme Court expressly rejected a substantive due process challenge against the tiered registry. You would probably want to take that into consideration before you put forth that as an argument that it’s been upheld by the South Carolina Supreme Court.
[25:44] Andy: I read a comment online that said the court of appeals failed to understand the claims, and I did too. So I think I’ve seen that comment.
[25:56] Larry: The court stated at no time in the proceedings below did the DOES contest or seek to correct a mischaracterization of their claims when those sought summary judgment as to counts 11 and 12 and 13, which are the first amendment claims. They did not understand the claims they were making regarding their right to anonymous speech and subjects registrants to government and third-party surveillance of all online speech. So uh, the court stated it, I didn’t say it.
[26:31] Andy: But the DOES claimed Missouri SORA was broad, invasive, and onerous in terms of the information required and the time allowed to provide it. Why did they not gain any trust from the court? Do you think the court did not gain any trust in their actions?
[26:45] Larry: Because the district court found there was no allegation in the complaint that would provide notice that the DOES were alleging Missouri SORNA is overbroad because it requires registrants to report too much information or impairs registrants’ access to the internet or related services. The DOES did not dispute the district court’s findings below. You have to preserve the stuff for it to go up on appeal, so what would happen next? Well, you could file a motion for reconsideration or a motion for rehearing as it’s called, or a motion to hear the case en banc asking the full court to hear the case. That’s what you could do; it’s not going to work but you could do that.
[27:34] Andy: And of course, we have to then bring up what about the Supreme Court of the United States? Could they apply for cert with them?
[27:42] Guest 2: I fail to see what purpose that would serve.
[27:47] Larry: They could, but such a move would be ill-advised.
[27:52] Andy: And what do you predict would happen if they did do that?
[28:03] Larry: So I don’t know, but uh, by the way, you really do a fantastic job reading without stuttering and balancing my gloom and doom.
[28:14] Guest 1: I agree with you entirely. That is why I am here.
[28:18] Andy: You designated me a long time ago as the reader, and as the reader, I will read.
[28:25] Larry: So this is a sad outcome for the PFR community because it really does put ice on us for a long time to come. Could you expand on that, please?
[28:39] Larry: The three judges appointed on the panel were all in unanimity. Two of them were George W. Bush appointees. One was a Donald Trump appointee. So you’ve got a very weak claim for rehearing because you can’t cite to anything. You normally would use your dissent. That’s one of the great things to use a dissent for. You say, wow, this is some great stuff. Look at this brilliant analysis that Justice so-and-so did. But we don’t have that, and there’s no dissent. So then you would have to analyze the makeup of the Eighth Circuit. If somebody wants to Google how many total judges are on there, you’ve got to convince enough of those that they want to step into this in a unanimous opinion. And I just don’t see that they’re going to do that. So it’s going to be denied. And then the only other option is a cert petition to the U.S. Supreme Court.
[29:30] Andy: And yeah, just to go over that, this was not the Missouri State Supreme Court. This was the Eighth Circuit, which encompasses some number of states. I don’t know which ones.
[29:43] Larry: Or the rehearing. Yes. Or the reconsideration. But, like I say, none of that is going to work. This circuit is not going to grant a rehearing or reconsideration. If the Highway Patrol had lost and they were asking for it, they would have a better chance. But PFRs just have a very weak record. That’s putting it nicely. And I don’t think that they would even consider it seriously. The case is dead unless they do a cert petition to the Supreme Court. And that would be ill-advised. Because this could rapidly become the law of the land if they were to uphold it in the Supreme Court, rather than just being persuasive authority. Right now, this is the law of the circuit. So any state in this circuit is stuck with this ruling. It’s going to be at least 10 years before there can be a significant change in the makeup of the circuit. Unless the Supreme Court sees something differently, other circuits will say, What a beautiful, brilliant analysis this is. And they’ll use it to shoot down PFRs’ claims. So this is really bad news.
[30:50] Andy: And so the 8th Circuit is Arkansas, Iowa, Missouri, Minnesota, Nebraska, and North and South Dakota.
[30:58] Larry: So not a heavy population center for sure. I mean, Missouri would be one of them, and Minnesota would be the largest states, right.
[31:06] Andy: But basically the center of the country.
[31:09] Larry: So yeah, I feel very bad about the case because it’s such a knockout for our cause. It really is.
[31:23] Andy: Okay. I mean, I guess I could come up with questions. I don’t see anything from anybody in the peanut gallery over there. But is there anything else you want to talk about before we shut this down?
[31:37] Larry: Well, there is one thing I want to talk about. I hit the start button on Audacity, but I don’t see it open right now. So I hope you’ve got a good recording.
[31:44] Andy: I hope so too. And I don’t have a backup. Well, we could be recording this again tomorrow.
[31:50] Larry: We could be. All right.
[31:53] Andy: I have a copy on my end.
[31:54] Larry: All right.
[31:56] Andy: Well, head over to registrymatters.co for show notes. You can email us at registrymatterscast at gmail.com. Leave an old-fashioned voicemail at 747-227-9800. And please support us on Patreon at patreon.com/registrymatters. Larry, have a great night. Have a great weekend. I will talk to you very soon.
[32:16] Larry: Take care.
[32:17] Andy: Good night.
[32:20] Introduction: You’ve been listening to Registry Matters.