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Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode 214 of Registry Matters. Again, Larry, happy Saturday night. How are you, sir?
Awesome. Thanks for having me back one more time.
I went down my whole roster of people to invite and everyone said No. And then I got to you as the last resort. And so that’s how you got invited back.
Well, it’s better to be the last resort than not to be invited back to FYP for the massive audience that we reach.
That is true. We have a decent sized audience. It could certainly be better, I would say.
It’s about 10,000 right now, that’s not bad.
No, that’s totally not bad at all. Um, I believe, sir, that you have something that you want to share about just another general practice of living, I guess you could say.
Indeed, I do. I became aware of a case this past week of behavior that I would not encourage a person to engage in. So it involves shooting from a motor vehicle at another motor vehicle, but we could just narrow it down to say, shooting, period. But I learned last week about a person who shot from a motor vehicle in the direction of another motor vehicle, and the person was on felony supervision. So even though I don’t encourage to ever shoot at a motor vehicle unless one’s in a defensive posture, and they their life is legitimately in danger. Certainly while you’re on felony probation, you shouldn’t be shooting because you’re not really allowed to own a weapon in most states. So you’re going to have the compound effect of the charge of shooting at a motor vehicle, and it could be charged as an attempted murder. And then you’re going to have the possession of a firearm by a prohibited person or felon in possession, however they title that. Then you’re gonna have possible federal charges on top of the state charges. So it’s just not a good practice. If you’re on supervision and someone is tailgating you or doing something to irritate you, a solution would be to try to exit yourself, extract yourself from that confrontation rather than firing upon the other vehicle.
I can’t imagine where you come up with these ideas Larry. Of course, everyone runs around- this is like Mad Max. Everyone has shotguns and machetes and machine guns in their vehicles. And if you need to get out some of that road rage, you have the tools available to you to execute your road rage. I don’t think there’s anything wrong with that.
Well, apparently not. Many more states are becoming open-carry and our state is one that’s always been open-carry since I’ve been here for 40 years now. So you can have open-carry and as long as you’re not a felon, you don’t need a permit to carry here as long as it is in the open. And your car, it doesn’t have to be in the open because your car is an extension of your home. But that does not entitle you to fire at people who irritate you.
Love it. Love it. That’s funny. All right, then. What kind of time do you get? Is it state dependent of a felon carrying a firearm?
Absolutely. It’s pretty low here. I think it’s a fourth-degree felony here, which is a basic sentence of 18 months. But in some states, it would be a habitual criminal application in most states, which I don’t believe that was applicable here because it is a different type of offense. There are certain things that we don’t subject to habitual prosecution, but the shooting at the motor vehicle, if this person that I became aware of should be convicted of that, that’s going to be serious enough. And that will qualify for habitual enhancement. So they will get the conviction for the felon in possession. They will get the conviction for firing at the motor vehicle. And they’ll be enhanced. There will be additional time. It’s a percentage of the overall sentence. He’ll be spending some time in the state prison system. He’ll have some time to think about his anger issues. And hopefully when he comes out of prison the next time, he will figure out better ways to manage that anger. When we are driving, we have things that irritate us all the time. Improper lane changes, no signals. People are going to tailgate. They just think somehow that gets them where they’re going faster. They’re going to do that. I mean, it’s going to happen. You just have to learn to cope with people driving in ways that you don’t approve of.
Well, on that note, can you give me a brief synopsis of what we’ll be covering on this evening?
Sure. We’ve got some questions. I think we’ve got one question from behind the walls of prison. We have got some submissions from outside in the free world. We’ve got a case out of the Sixth Circuit Court of Appeals. We’ve got a few stories if we have time; news articles, I should say. And we’ve got a little bit of analysis about why the ACLU does and does not do things that would make our people happier if they did.
Okay. Hmm. All right. That sounds great. Well, let’s roll things out of the gate here. And super patron Mike, he sent me a text message a little while ago. And he says, As I gathered around the family radio this last week with my family to listen to the latest Registry Matters podcast, I was shocked. Normally, the show is wholesome, and family friendly. But this past week, Andy, who’s clearly angry, said the words shit show several times and he actually blanked it out. So I should be S-symbol-symbol-T show several times. That’s not okay for my underage children to hear. Also, how dare Larry tell us what the outcome of recent cases are and not sugarcoat it? You should make it sound like it’s a win-win for all PFRs rather than telling us the truth. The fact that you guys are clearly angry and hate your jobs is becoming more evident. I don’t like bad news and you should work harder to not give me any. I think you guys should do more to help the millions of Patreon members live in denial. Until you tell me what I want to hear, I will no longer support you or your show. I’m going to switch over to that other podcast about the registry. As soon as I find one. And of course, I’m kidding. I love the show. And I love how you guys tell us the truth. And if anyone can’t take the registry information from FYP studios, they aren’t going to like it with the way the state delivers it to you. As always FYP. (Larry: Awesome.) He’s a super good, dude, man.
Yes. I’ve met him on my journey through the southeastern part of the United States.
Very good. He’s a good dude. He sent me a picture today. He was out helping homeless on this day helping pass out some food and other necessities to them. He’s a really good dude. He lives the way that I think many more people should aspire to be I guess that would be the way to put it. And let’s, uh, let’s continue on to comment from a listener. So here’s an interesting story. About a month ago, my boss’s son got in a bit of trouble. He was accused of something with an underage girl. My boss called me ASAP, and said, Hey, what do I do? He was flipping out. This was like, day one, I said, you and your son, do not talk to the police. And call an attorney now. He did that. Now they dropped it. Not enough to get a case. He knows just how easy it is to get in there from here. So we’re gonna have a segment coming up later that we’ve been covering about don’t talk to the police. And so they did that and told this boss that and so they dropped the case. They dropped moving forward with it.
Well, I’m amazed that they didn’t talk to the police before the attorney got involved. That often, unfortunately, is the way it usually unfolds. (Andy: That’s true. I think you’re right there.) The person talks to the police, and then they can’t undo the damage. Trying to suppress those statements is virtually impossible.
Do you have any idea- this is going to be a complete speculation, I bet- if everyone were to lawyer up beforehand, what level of convictions and prosecutions would happen in that?
You’re right, it would be a speculation. There would be fewer prosecutions because, without any extensive research, we can figure out the reason why the police generally want to talk to you is because they do not have a solid enough case with what they have already. If they had a solid enough case, they would simply just come out, put the handcuffs on you and say I don’t need to ask you anything. I’ve got a super strong case already. Have a great time in jail. The reason why the police talk to you is because they need to solidify missing gaps in the case. Obviously, if you didn’t talk to the police and fill those gaps, there would be fewer convictions, but I don’t know how many fewer. And there may be still convictions but for less serious charges because they would not be able to make the tougher charges stick without your admission.
Right. Yeah, we have a segment on don’t talk to the police. Maybe the next one, I forget which one it is. It’s either this one or the next one where they talk about that you may unwittingly give out information that is partially not true. And that can sink your case.
Well, and it could also get you another prosecution.
Well true. All right. Yeah. All right, well, then we’ll keep moving along this one. This one I pulled up scrolling through Reddit. There’s a very useful forum on Reddit if you can go there. I know that not all of our people can get there. But there’s a subreddit is what it’s called. It’s called Sex Offender support. And I would strongly encourage you to get over there. And there’s, I don’t know, there’s 2500 people over there. So it’s a good place to be. And I read this one and I thought it was worthwhile to bring it over here to cover it. It says, It’s been a while since I posted here. I’m in Ohio, and I was serving four years for having a relationship with a 15 year old girl. I was accountable. And I pled guilty to exactly what I did. I spent three years in state prison and was released on judicial release and had five years of probation. With this type of release, I was under the scrutiny of the sentencing judge instead of the parole authority. I hit the streets in January of 2020 just before COVID screwed the world up. One of my conditions was no internet period. I’m sorry. That’s ridiculous. I chose to get a smartphone off the record. Larry pay attention to that particular point. I knew it was a risk. While I didn’t do anything remotely illegal or questionable with it, just having it was a violation. My PO was waiting at my door one day for a home visit. The phone was in my pocket. The judge violated me and I had to finish out the last 12 months of my sentence. It was a conscious decision. And I’m not complaining about the result. I finished my time and am now on what the state calls PRC, post release control. Here is the rant. My conditions of release caused me to not have a camera on my phone. No problem. Camera removed. A minor inconvenience. But oh well. Another is I cannot be on social media sites were minors frequent. I asked for a list of banned sites, and was told if there are pictures, you can’t to be on it. including LinkedIn? what the- I’ll skip that other word. No zoom, no MS (Micrsoft) teams or Skype for job interviews? The other major one, which is a non-issue, is the unwanted search and seizure, blah, blah, blah. Yeah, I know this site is likely a violation. The real issue is the fact that every time I turn around my PO is placing more and more restrictions on me. And none of this is in writing. It culminated recently with her denying me a job for which I’m perfectly qualified. It was a good paying job with a reputable company. The company knew of my status because I told them up front, and they did not care. That hadn’t happened to me before. Her reasoning: I would have access to a computer she couldn’t monitor. I’m so pissed off. Nowhere does it say that my internet is to be monitored. I’m in the process of working with an organization, not the ACLU, to see if my rights are being violated. I just want to move on with what semblance of life I have left. This one size fits none approach doesn’t work. We all know that we pay our debt, but are never truly free ever again. Now they’re messing up my ability to make a living. The line has been drawn somewhere. Thanks for listening. So Larry, if you end up on some kind of supervision, and you violate something like having the phone that you’re not allowed to have, and then when you get released again, I got to think that it just seems logical that they’re going to really enhance their supervision.
That would be a good logical expectation. That’s exactly what they would do. I would actually like to have a dialogue with this person. I read it after you provided it to me. And I would actually like to have a dialogue. I’m intrigued by the relationship with a 15-year-old. Who was the 15-year-old? What was the relationship? Was it inside the home, meaning a family member or an extended family member? Or did he find this 15-year-old through the utilization of internet? That changes the dynamics completely in terms of reasonableness of these conditions that he’s talking about. So I would like to know the answer. Who was the 15-year-old? How did he come to know about the 15-year-old? And was there any internet involvement whatsoever in the commission of that offense? If there was, then the condition is going to be a lot tighter that’s imposed on him, and the courts are going to look more favorably on the condition. If merely because of the 15-year-old that was inside the home or inside the circle of relationships, and he did not use the internet, this condition could probably be successfully challenged. Because a blanket prohibition- it sounds like he can’t have the internet. So that’s his two big points I see in this are the internet restriction and declining the job. Again, based on the answers to the questions that I just posed, I would like to know about the job because it ties together. The computer access, depending on if he was hitting up minors on the internet and he established a relationship with one, it would be far more reasonable for the probation department to have a great deal of consternation about a computer that they cannot monitor, other than it just being a one size fits all. If they if they say you can’t have a job with computer we can’t monitor, that would be, in my humble opinion, too broad of a condition. So this one would need some further development in terms of whether he has anything to complain about. And of course, I don’t know what organization he’s working with. I just know which organization he is not working with.
Because I’m thinking of the, I think it was last week, that we talked about the case from Virginia, I think, with the guy that had the relationship, and only then when they had the text messages, did he get screwed into lifetime registration. These were highschool sweethearts of some sort, and that’s the relationship you’re trying to ask about.
Yeah, I’m trying to figure out what’s underlying this conviction, and how the relationship came to be. And if there’s a connection between the commission of the offense and the internet, and if there is, they’re gonna be in a stronger position to tell him that he’s going to have extreme restrictions. But a total ban is very problematic. You know, the courts all over the country have told us that. You just can’t allow or disallow someone from having any access to the internet. It’s become integral to modern life. It really has.
I will try to reach out to the person on behalf of Registry Matters and see if the individual is open to have a dialogue with you.
Yeah, we might even want to have a future episode as a guest with some kind of disguise so that we can talk about it.
Yeah, totally. I am perfectly okay with that. Let’s go to the written letter that came from inside prison. This is from Rick. I am writing to you at this time to pose a question that others convicted of sexual wrongdoing may need an answer to. A few years ago, another prisoner informed me that if a person pleads guilty, the victim or others cannot protest this person’s parole. In the state of Texas, there are many convicted of a sexual offense, and many on the outside will protest this person’s parole. My question is, in the state of Texas, if a person pleads guilty, can another person on the outside protest this person’s parole consideration? And I believe I’m gonna miss the queue for this one, Larry, but I’ll do it anyway. laugh track It was a little hard to read at a part of it. So can people protest whether you’re going to get paroled?
Well, I’m going to try to dodge Texas-specific because I didn’t do the research. This question just arrived yesterday. So I’m going to talk in general rules. And I can’t imagine- here’s how I’ll tell you how to figure that Texas would not likely be any different. As a general rule, the very process of granting parole is open to public scrutiny. And victims are required by statute, as a general rule, to be notified that a person may be released. The reason being that if a victim has a lot of anxiety about a person, that anxiety level generally goes down when they’re in custody because they assume that barring an escape that they they’re not able to hurt them. When they’re going to be released back into the community where that protection no longer exists, the presumption is they could hurt them. So as a general rule, there is a notification that takes place that a person may be released. In many states beyond that, they’re asked if they would like to comment, and if so, here’s the date of the hearing. You can sign up in states to be notified of any pending parole action on an individual. I don’t know about Texas-specific, but many states you can sign up for email notifications of a hearing. So it would be very surprising if a conservative state like Texas where they tend to want to protect victims and promote law and order, it would be very surprising to me- not impossible- but it’d be very surprising to me if Texas would have a provision that says a victim cannot be notified and have any comment about parole. That would just be the most bizarre thing I’ve ever heard of. I would much more expect that in Texas, they would be notified if a person is going to be released from prison in advance of their mandatory out date when they served all their time. I would expect that they would be notified, and they would be given the opportunity to comment. I just don’t think that that’s the way it would exist in Texas. I would be so shocked if it is.
What was my question I was just going to ask you that just vanished out of my brain. Crap. Oh, Marsy’s Law. Is this related to that at all?
Yes, yes. That’s a part of the bill of rights. When a person is in prison, a victim has certain rights throughout the whole process, including release from prison, and in some cases, including release from registration, which is a, quote, civil regulatory scheme. But they still have to consult victims. So just without doing any research, if anybody out there in our massive listening audience can find anything that suggests that we are speculating wrong, that Texas says a person who was pled guilty that the victim cannot come in and comment on parole, I would really like to see that because I don’t think it exists.
All right. We talked about something along these lines, that a victim is just- I don’t want to really, like downgraded this low and make it impersonal, but they’re a piece of evidence, so to speak. And so now it is the case of the state against the person that is accused of a crime, and they are going to bring in that individual as a piece of evidence. So then why do they end up having some kind of say in how the sentencing would then go?
Well, that’s part of what has evolved with the victims advocacy effort is that the system is so impersonal it doesn’t consider them. But we designed it- and I say we, the people who existed before you and I did, who thought this through very carefully. A person who’s been victimized by a crime- and depending on the type of crime, it can be very devastating to them as an individual because people react differently. Sometimes a person’s house being burglarized was so devastating they may not be able to work for months. Yeah, some of us could say, Gee, I wish they hadn’t done that and they could go on with life. But society decides to make the rules in terms of making sure that there’s a measured and appropriate response of a sentence disregarding the person’s desires that is very emotional. When someone does something ugly to you, you’d be an unusual person who didn’t have a very harsh reaction about that. I know I did. I got physically assaulted one time, and I wanted the person to be punished far more seriously than what they probably deserved. So that’s the reason why you are not supposed to decide the punishment. You get to give your input about how it affected you. I have no problem with making sure the court understands, because both sides should be able… the state should be able to put on evidence of how the person was adversely impacted by the criminality. And the defense should be able to put on any mitigating evidence it has. But you should not be able to demand a particular outcome.
I’m thinking of like parenting advice where you should never like punish your kid when you’re angry at them. Because then you’re going to really bring out both barrels, and you should take a little while, maybe a few hours, and you should calm down and think about things more rationally. Yes, you’re angry at them, but you shouldn’t then execute punishment on them while you’re angry at them. And that’s why we would have a judge to be more tempered and rational and hear evidence and weigh both sides and see the level of character. Are you a piece of crap? Are you a decent person and you just made a mistake, etc. for you to then have someone impartial-ish to execute your sentence?
Well, I agree with you except for when the judge’s hands are tied. I mean, you’re making a great point. (Andy: Right. Mandatory minimums.) But when you have society through the victims’ advocacy tying the court’s hand saying you will impose this sentence. And after the victim has spoken… It’s very powerful when you’ve got a sentencing in a high profile case, particularly when sentencing is taking place. And I don’t want to pick a recent high-profile case, because I haven’t- I don’t wanna take sides on these things. But a high-profile case puts an enormous amount of pressure on a court because the media market in that city is watching. The voters are watching if judges are elected, which they commonly are at the state court level. And this is pressure that’s not supposed to be there. It’s supposed to be a total neutral determination of the appropriate and measured response for that behavior. And it’s not that way. It’s often distorted by the advocacy efforts that take place on behalf of victims. Terrible things happen to people all the time. They really do. And we can’t minimize that. But what you would like as an outcome may not be what is a just and appropriate outcome. So therefore, sometimes we have to tell you, No, you’re wrong. That is not proper for this individual.
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I think it’s probably time for us to move over to the feature segment that you provided for us. That’s going to be sort of like a double twisted thing here that we’re going to talk about two subjects that are going to get intertwined. And I was reading on the NARSOL affiliates list. And so I’ll read a piece of this verbatim. It’s related to the ACLU. Says, I’m writing to see if you can help me with my ACLU question. I’m currently starting a grassroots movement in Iowa to fight the injustice of the registry with the help of my other Iowa NARSOL contact Nancy. With that said, I’ve reached out to my state’s ACLU about up some upcoming legislation regarding harsher sentences for PFRs. The lady I reached out to acknowledged the current legislation would negatively affect those on the registry, but conveniently declined wanting to get involved in the 2022 legislation session regarding SO laws. I did not accept her answer, and tactfully replied, challenging her decision along with making an impression of how we need to build a relationship, including sharing about the recent gains made by the state of Michigan with the help of the ACLU. So my question is, are there other states where the ACLU has been a key player in getting laws revised for registered citizens? If so, how can I find out the gains made so I can share the information with the ACLU of Iowa? There’s so much information on the internet, but it’s challenging to find the gains made in the different states, which is why I’m contacting the NARSOL affiliates. What do you people have to say in response to this?
Well, we’ll need to break it down into spoon size bites. The most crucial point to understand is that the ACLU is a business. And our advocates need to accept this very important fact. They are not funded by the government to advocate for or against anything in particular.
So what does this mean when you say they are business?
I mean exactly what I say. They have overhead to cover to remain operational. They have rent, staff, salaries, benefits, and all the routine expenses of running a law firm as well as their public policy advocacy expenses. They often advocate in state capitals for and against legislation. And those things cost money to do. You cannot recruit volunteers that have the sufficient capacity to do litigation and legislative advocacy at the level that the ACLU does it without expenses. So they have a business operation. And that’s what I mean. They are a business.
And before we go into how they select the areas of advocacy in their cases, can we talk about how- where do they get their money from?
Sure. They are funded primarily from membership dues and donations, and attorney’s fees that they are awarded as a prevailing party in civil rights litigation. So they have those primary sources of funds.
The final one you said there, that would be similar to the attorney in Georgia and the Butts County case?
That would be correct.
Okay. I see. So they have three primary sources of revenue to stay afloat. Do PFRs generally support the ACLU?
You can hit the clip right there.
Oh, that’s where I’m supposed to hit the clip. I thought it was supposed to somewhere else. Laughing track I’m shocked that we’re playing the laughter track. Shocked.
Generally speaking, they do not. PFRs tend to lean conservative politically, and the ACLU tends to lean more liberal which does not appeal to the majority of PFRs. For example, the ACLU is derided by conservatives for a number of things they have litigated and their public policy choices. They have challenged the indefinite detention of foreigners at Guantanamo, remember? They have challenged the placement of nativity scenes on public property. They have challenged school-led Christian prayers. They challenged the ban on same sex marriage. They’ve advocated for permitting gays to hold leadership positions in the Boy Scouts of America. These are not popular positions to win the support of conservatives. So therefore, since I believe from my very unscientific research that the majority of people that we encounter tend to lean conservative, this is not something they’re going to gravitate to, the ACLU. They’re just not.
Are you saying that their positions dissuade conservatives? Are you saying that this pushes them away from supporting them?
Yes, I’m saying that. But it runs much deeper than that. The ACLU decides based on a number of other factors as well. An organization, since it is indeed a business, must determine how its decisions will impact existing revenue streams. Remember, you don’t want to give up a revenue stream when you don’t have an alternate revenue stream to replace it. Would you agree with that? (Andy: Yeah.) Okay, so the ACLU does poll its members on their priorities. In addition, it must choose litigation where it believes that the likelihood of success is reasonable, and whether the litigation will alienate its existing support. And those are the primary driving things. What’s our likelihood of winning? And if we undertake this challenge, are we going to alienate our existing support? And it’s really that simple. But other than First Amendment challenges, the likelihood of success related to our issues has been very low. Now it’s getting better. But it’s been very low. And in addition the ACLU believes that their existing donors do not support the deployment of resources for such challenges that we would like to see made. So therefore, that’s why they make the decisions they make. It’s a business decision for them.
I guess, possibly, if all of the million PFRs would work to donate money to their local ACLU chapter, then their analysis would change?
It could. They would have to know that that’s where the money is coming from. And they would have to know that those people have different priorities. I mean, it wouldn’t just magically- if they receive 10,000 donations without any explanation, it wouldn’t magically translate that. But when, if 5000 people in the state of Georgia were members of the ACLU, and when they send out their surveys, and when they have that little box out there that nobody wants you to put anything into, if you wrote in that box, and all of a sudden they started getting hundreds of those back, they would have a consultation with the brass, whoever the people are in their executive towers, saying we’re getting a lot of inquiries about this stuff from our members now.
C-suite is a term that’s used these days.
So yeah, that’s it. So yes, it absolutely could have if these people that are complaining so much, if they were perceived as being a significant source of financial support for the ACLU, it could very well change them. But they don’t see that at all. They see them as being absolutely of no support to them. And they see that as being detrimental to their existing supporters. As by and large people who are members of the ACLU- and I know this from personal experience- when you start talking about stuff related to what we want to do, they all of a sudden say, Well, you know, not so fast here. You know, I’ve got children. I don’t know that I want these kind of people out in my community. All of a sudden, that liberalism goes down quite a bit.
I’ll trip you up just for a second. I suppose if those million people were to also then or instead of donate money to NARSOL or their local affiliate, or whichever organization you want to go after, then we also may be able to move mountains and not need the ACLU.
That would be correct. That’s what I’ve been saying. I would really like if we would quit feeling entitled to be supported by organizations that we despise. And we would actually support the organizations that advocate for what we try to achieve. That’s where, to me, the simple solution rests. Quit complaining about what people don’t do, and start supporting the organizations that do do.
Well, before we move on, the writer also posed this question. As I’ve had to do with our lawmakers, I am spoon feeding them information as to start a discussion. I want to do the same approach with the ACLU of Iowa. So they are concerned to get involved, whether they want to or not, having dodged this topic until my outreach. I believe sharing the gains made in each state might help me to get a foot in the door with the ACLU of Iowa. I’m not going to take their convenient no as an answer. But I also don’t want to shoot myself in the foot as I reach out to them. Is this something anyone can help me with from the ACLU in your state providing web links, PDFs, or anything else I can forward to our ACLU? What do you have to say to that, Larry?
This sounds like she’s trying to corner them. And you’re not going to corner them or force them to become involved. The best strategy, not that she’s asking me, but the best strategy is to dialogue with them in terms of the likelihood of success on certain challenges. For example, we will be talking about a case in Ohio that had the support of the ACLU of Ohio when the issue was first amendment related. All PFR challenges are not likely to succeed on the merits simply because what they’re doing is wrong. So you would want to try to say, look, as your business model requires you to stay in business, some of these challenges that we would like you to do are eminently winnable, and they’re being won. But trying to embarrass them is not an effective strategy. But trying to win them over with a business plan that they see that might work for them is more effective.
And before we move on beyond that, can you tell me what the ACLU stands for? Like, can we emphasize these four words.
American Civil Liberties Union.
So American Civil Liberties. The civil liberties of Americans. And First Amendment, I think, is probably one of their hot buttons. So it seems like they would have been piling on the Butts County thing because that was a First Amendment issue.
Well, we didn’t pursue them too vigorously because the ACLU in Georgia is not particularly powerful. We don’t hear a lot out of them in terms of- but they probably would have considered it. We had our own plans. We meaning NARSOL. And our attorney team, we had our own plans about that. But I’ll tell you this. If any Sheriff within the three state region of the 11th circuit court, now that that’s a binding decision- it’s binding for the moment unless it’s appealed and overturned- but I will assure you this, if the ACLU of Florida, or the ACLU of Georgia, or the ACLU of Alabama, if they receive an inquiry now about forced placement of signs, they will magically have a lot of receptivity to that because they have a binding precedential decision that will guide any of the district court judges in those three states. And the likelihood of them collecting attorney’s fees are exponentially higher now because we have done the heavy lifting for them. So absolutely, you would find the ACLU of any of those three states, and even maybe in other states beyond the eleventh circuit, will magically be interested now because there has been litigation that was successful and there’s a precedential decision out there.
I hope I’m not jumping too far out on a limb. Isn’t there a term for when the rights are violated? And the plaintiffs are awarded for civil liberties violations or constitutional violations? I hope you can fill in the gaps. Isn’t there a title of those kinds of damages?
Well, in most cases, there are not gonna be individual damages. But we do typically recover the fees and costs related to the litigation. But in damages, it’s very difficult because most people have to show how they’ve been harmed and there’s no presumptive damages in terms of reputation without showing that in most states. In some states, there may be presumptive damages.
Yeah, that’s not what I meant, though. I mean, there’s a term used for when the state violates the civil liberties, and it’s a constitutional challenge. And the plaintiffs are awarded- and damages wasn’t the right word. We don’t have to dwell on this one. I just seem to remember there’s a term for it, like a legal term or constitutional term or something like that when the government pays out because civil liberties were violated.
Well, we will collect the prevailing party attorney’s fees and cost assuming that the case is not overturned by the Supreme Court or by a full review of the 11th circuit. It’s still early yet. We don’t know what they’re going to do. But those costs will come back to us. It’ll be a nice compensation for the legal team.
Very good. Are you ready to move on to the next segment of this piece?
I am. Let’s see what you have in mind.
This one’s funny, though. Okay, you people put this case in here from the Sixth Circuit Court of Appeals. This one, I don’t believe it is at all registry related, but it’s funny. And I’m going to preempt this. And if you don’t know what FYP studios stands for, I think this will get you really, really close. Is that fair, Larry?
I think that’s fair. Yes.
The name is Matthew Wood v. Chad Eubanks and a huge list of other names. I’ve read it. I can’t imagine how it’s relevant to our work. I’m guessing you have some ridiculous reason for putting it in.
I do indeed. It’s an issue about speech and one’s right to express themselves. Go ahead and read the next segment, and that’ll help set it up.
Okay, do you want me to actually say these words because I don’t want to get filtered.
Well, you can use judicious discretion as you say.
Alright, I’m going to use a common word that I hear on some sci fi shows. But you’ll know exactly what it is. Okay. On July 29th 2016, Michael Wood went to the Clark County Fair wearing a shirt that said frack (F***) the police. Wood explained that he wore the shirt because he has the constitutional right to do so. While Wood said he had no ill will against law enforcement in general, he took issue with how some of the county’s officers had treated him in the past. Specifically, he said that Sergeant Chad Eubanks had previously stopped him for a traffic infraction and said something along the lines of “I’ll mess you up.” He also stated that he believed the Clark County Sheriff’s Office was a cesspool because so many officers who were not honorable servants had been fired. Wood also filed a Freedom of Information Act request regarding a big fiasco about an interoffice affair in the department. It sounds as though he was a thorn in their side. Larry, what happened next?
Well, what happened next is police officers ordered him to leave the county fair and escorted him from the fairgrounds because of his shirt. And while leaving, Wood made his pleasure known through numerous coarse insults levied at the police and the fairgrounds administration. The defendants then, being the police, arrested Wood for disorderly conduct. After the charge was dismissed, Wood filed his title 1983 action against the officers alleging false arrest and retaliation. The district court granted summary judgment against him and for the police, for the defendants.
Before we get into the nuances Larry, let me read the interaction with the police. By the time officers engaged him, Wood was no longer wearing the profane shirt and officer Blair asked if he had changed. Wood did not answer, but he asked Blair and the officers if he had committed a crime or was being detained. Blair replied that he wanted Wood to leave, that Wood was not welcome, and that Wood needed to get off the fairgrounds. Wood agreed to leave if the $3 entrance fee was refunded. Blair gave Wood $5 and told him to keep the change and never come back. Wood replied, I have change for you, sir. But Blair refused to accept the money telling Wood that he wouldn’t take his money and didn’t want him around. It gets better, though. Wood then ask Blair whether he realized that what Wood was doing was a constitutionally protected activity. Blair replied, “not in my home.” Wood responded, “not in your home? This is in your home. This is public property.” Eventually Blair asked the officers, “what do I have to say to him?” And reiterated to Wood, “Get off my grounds.” Wood responded, “very well. I’ll be talking to my attorney about this.” I’m guessing that they thought he was bluffing.
I’m sure they did. Because most of the time, people lack the resources to assert a constitutional challenge. Fortunately, this is a first amendment claim, which is one that has a reasonable probability of success on the merits, which we were discussing in the earlier segment.
And ultimately, they arrested him did they not?
They did. They arrested him because he wanted to go out the back gate, the gate he had entered, and the officers wanted him to exit through the front gate. They arrested him for defiance of their orders.
I note that the defendants move for summary judgment. Oh, that’s another one of your favorite things in the world, Larry. The magistrate judge recommended granting the motion as to all but two of Woods’ claims, unlawful arrest and First Amendment retaliation. I haven’t heard of First Amendment retaliation. The District Court disagreed in part, concluding that the officers were protected from qualified immunity on the false arrest claim, and that there was insufficient evidence of retaliation. So the court granted summary judgment to the defendants on all claims. Wood timely appealed the dismissal of his false arrest and retaliation claims. The court stated that summary judgment is proper if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, and that the courts review the evidence and draw all reasonable inferences in favor of the non-moving party. Opinion at page eight. They reversed the grant of summary judgment. Why did they do that?
Well, because they determined that the officers are actually not entitled to qualified immunity when the constitutional right they violated was, quote, clearly established. That’s the standard at the time that challenge conduct occurred, and we’ve had a discussion about that. If that right is not clearly established, they still get qualified immunity. But they cited a case called Ashcroft versus al-Kidd. And that was the 2011 decision from the US Supreme Court. And according to the court, Wood’s right to be free from arrest under these circumstances was clearly established at the time. And that’s on page 15 of the opinion. So they didn’t get to duck with qualified immunity. Now remember, there’s a bunch of liberal do-gooders out there trying to throttle back qualified immunity because that’s an invented thing. It’s not in the Constitution. That’s something that’s been invented. And our state just took a big step towards doing that. But in the meantime, you have to operate within the framework of the law. But this Court of Appeals said. Nope. No qualified immunity.
So remind me what qualified immunity is.
It’s where the officer and the departments they represent- the law enforcement apparatus cannot be held liable if they didn’t know the right exists. It has to be a clearly established right. You can do crummy things. But if it’s not clearly established that you’re violating either a constitutional right, or something that’s required by law, then the officers are immune because they act in good faith, of course. No officer would ever act in bad faith. So you have that invented thing of qualified immunity, that officers get the benefit of the doubt unless they’re clearly trampling an existing right that’s clearly established. And that’s what qualified immunity is.
Wood also asserted a First Amendment retaliation claim. According to the court, in order to prevail on that claim, Wood must demonstrate three elements. That he engaged in constitutionally protected speech, that he suffered an adverse action likely to chill a person of ordinary firmness from continuing to engage in protected speech and then that the protected speech was a substantial or motivating factor in the decision to take the adverse action. The district court granted summary judgment to the defendants, after concluding that Wood had not suffered an adverse action, and there was no evidence of retaliatory animus from defendants based on plaintiffs’ t-shirt. What did the Court of Appeal say about the lower court’s analysis?
They said, quote, “that Wood used strong language to criticize the defendants,” meaning the police. “One of the prerogatives of American citizenship is the right to criticize public men and measures and means, not only informed and responsible criticism, but the freedom to speak foolishly and without moderation. The First Amendment recognizes, wisely, we think,” I’m quoting, “that a certain amount of expressive disorder, not only as inevitable in a society committed to individual freedom but must itself be protected if that freedom would survive. Woods’ speech, while coarse, was constitutionally protected.” And they said, “We reverse the grant summary judgment and remand the case for further proceedings consistent with this opinion.” So it was a clean sweep.
I wonder, when you put your freedom of speech thing out there in public like that, particularly at like a fairground or something like that, it feels like you can’t just run around. We’ll go right to the bomb thing. There is some sort of line, and I don’t know where that line is. It’s like the Supreme Court says, we don’t know when it’s actually porn, but you know it when you see it. And this is obviously some vulgar message that parents generally, around their kids, they would say like, “I don’t want my kid to see that.” So where does the line get crossed, Larry, from your constitutionally protected free speech, from the government infringing upon it, versus what is in the interest of the community itself?
And there’s the fine line that we have to… It’s like Justice Scalia said about the Second Amendment about the right to firearms. It’s not an unlimited right. We’ll have to wait and see. Apparently, that in the Sixth Circuit, just using the F word is not enough. You haven’t crossed any lines. I would agree it’s distasteful. We have the right in a free country to do distasteful things and say distasteful things. And this is one of the things where I have great trepidation with my liberal friends who want to be politically correct. I have the right to say things that you do not like. I have the right to be insensitive to you. You may choose not to be friends with me but I have every right to do that. I have the right to offend you.
I’m with you. I look at it even in my world where I want to plaster all kinds of certain kinds of bumper stickers, but because of the area that I live in, I will not put them because I fear retaliation. And not fear- just whatever. I don’t want to have myself get targeted for anything. So in a way, that’s my first amendment right being squelched because of the general community.
You don’t think anyone in the great Peach State of Georgia would do that, do you?
Oh, I totally do. If I put some of the stickers that I want to on my car, yes. I personally believe that I would have backlash.
We had a segment earlier about why the ACLU seldom becomes involved with our issue. They did file an amicus brief in support of Wood in this matter. I’m guessing that you want to tie this together. Is that one of your reasons for talking about this case?
Yes, it’s one of them for sure. The ACLU got involved with us because they determined that the probability of success on the merits was high because it was a good clean First Amendment challenge. You don’t get much cleaner than this. We had verbatim what the shirt said. They had video of the interaction at the fairgrounds from the body cam of how it went down. And the other reason I put this in was because it’s another case of a large body of case law in terms of freedom to speak, and even an unpopular message. No person in America has an obligation to conform their speech because it’s offensive. We have the right to be offensive, including to offend another one and even the police. And I think that, as we litigate going forward with our issue, we can continue to hang our hat on cases like this. Though, it’s not a real strong connection. But there is some connection. You can say things and the courts are likely to uphold speech, because that seems to be a cherished constitutional right that has been protected quite… Conservative and liberal courts have been reasonably good and protecting the First Amendment rights. That panel in Georgia was supposed to be very conservative, that on the 11th circuit, and we got a good strong decision about Halloween signs .This is a good strong decision in terms of, Yep, you get to offend the police. So it may be that the PFRs, as they look for strategies, it may be that this case will be helpful. Because it may be that they may want to establish a police officer’s registry for misconduct of police. And they’d have every right to do that. I think somebody tried that a few years ago didn’t they.
I was gonna say, now that sounds way too familiar that with police officers that have been shuffled around, almost like the Catholic priests have, they get shuffled from this department, or from this police station to another one in another state. And no one knows about their record. They just know that they’re a police officer, and they must be golden if they’re a police officer. Perfectly pure is the wind-driven snow, as you would say.
Absolutely. Well, this may be another piece of case law that can be helpful to us as we litigate in the area First Amendment. But that’s how I tried to tie it together. The ACLU does get involved. The ACLU got involved in Michigan, but they also got involved with a very well-funded Michigan school of law clinical law program. It was not just an ACLU effort standing alone. They got involved in the case of Louisiana; dealt with, again, with First Amendment issues. The ACLU does get involved in our issues, but it’s only in cases where they feel like the probability of success is reasonable or even good. And unfortunately, our cases don’t fare so well. We talk about more losses on this program than we talked about wins. Would you agree with that?
I think so. I mean, just, I would also then say that there aren’t a whole lot- slim pickings, I guess- of cases to even pick through. It’s not like we have 10 that we can pick through every week and try and find the good or the bad. I mean, when one shows up, we talk about it.
Absolutely. When we have a whim, we talk about it. But a lot of cases don’t go so well. I mean, the case of Richard Gladden from the Texas Supreme Court didn’t go very well.
Right. Right. And what I meant was, though, I mean, whether it’s a good or a bad case, they’re just that few cases that spring up across the how many states did Obama say it was? 57?
Well, we could have more adverse decisions, but people would get mad because they don’t want to hear bad things. But we can actually talk about more losing cases, if you’d like.
Well, should I go back and read what super patron Mike said about this?
He said, No. Don’t do it.
He did not say that. He’s said he appreciates hearing the good and the bad. And honestly, from my point of view, I am happy to hear about the bad because I know how sh*tty this issue is. And we need to have better cases get better, more well developed before we bring them because maybe it would be a winning issue if it were better developed.
So well, how many of these articles can we cover? Can we cover any?
I think we have time for at least one. We’re at 50 Almost 54. And so I think we had he wanted to do the Los Angeles Sheriff’s one.
Well, I can do that one and that one is really for information and for debate and discussion. I don’t know the answer this. This is where the Los Angeles sheriff has decided and declined to enforce a county ordinance relating to masking of county employees, including sheriff’s deputies. He said he would lose a percentage of the sheriff’s deputy force if he were to do that. And he’s just not going to enforce it. Well, now the answer from the county is that they’re going to strip him of certain enforcement powers. And I’m not sure they can do that. I mean, they can certainly pass ordinances that he should be obligated to enforce. But to strip him of any of his constitutional powers that he has that’s been granted by the constitution of California, or by California Legislature, I’m not sure they can do that. So this would appear to possibly be setting up a separation of powers argument between him. He’s duly elected. That office of the sheriff is duly elected by the people. And there are certain powers delegated to the Office of Sheriff and I don’t believe that the county board of supervisors can take those powers away because they find it offensive. I don’t believe they can do that. So we shall see.
And separation of powers. Let’s dig into that just for a minute that we have 47 branches of government and they all operate together in collusion.
That’s correct. It’s actually 49 branches.
Oh, my bad. So the three branches, that’s a three legged stool, and there is executive, legislative and judicial branch. And one group makes the rules and the other one enforces. And then another one judges whether they were executed appropriately. I think that’s a way I could word it simply.
That’s correct. And this one gets nuanced because the County Board of Supervisors, they do have some powers to pass ordinances. But can they strip away powers that have been delegated to the office of the sheriff by the State of California constitution, or by the State of California Legislature? That is the unknown unknown here in terms of the separation of powers. And I’m not sure they can do that. I’m not sure because you don’t like what the sheriff refuses to do that you can strip any powers away from the sheriff.
Very good. That one came from- all I see is MSN. But msn.com is where that article came from. And so I think we could cover one more, maybe one even after that. Do you want to cover the one about these two child porn crimes don’t require PFR registration?
Sure. Those are both out of Kansas. And I put this in here mainly because I want to illustrate. If you look at article number one, can you just read the headline of that?
I will as soon as it comes up. It says victims advocate lawmakers to force convicted peeping suspects onto PFR registry.
So on Thursday, the Kansas Senate is set to hear- on Tuesday. Boy, that’s why you’re the reader here- On Tuesday, the Kansas Senate is set to hear a PFR topic in Topeka. Kansas Senate Bill 385 would require people convicted of certain breach of privacy laws like peeping to register as a PFR. This is something victims and advocates have been fighting for after several high-profile peeping cases in the Kansas City area. Folks, I hate to break it to you. We’re not on the same side with victims. Get over it. Okay, next article.
The other one is, uh, these two child porn crimes don’t require a PFR registration. Which I just realized is actually saying person forced to register register. But a Kansas bill would then change that. What do you want to cover in here?
Well, this is one of those where I’m even shocked that such a loophole would exist. And, but again, Kansas Attorney General is pushing for this. And I’m sure that Senate Bill 368 will have broad bipartisan support, but they’re not very many Democrats in Kansas. It’s going to have to the extent they’re any Democrats in Kansas in the urban areas, they’re going to support this because you cannot not have people that are convicted of these serious crimes not being required to register as PFRs.
How would we know where they are, Larry, if they’re not on the registry?
I don’t know. But folks in Kansas if you want to push back, now’s the time to push back because this proposal is apparently set to be heard Tuesday, so be there. Speak up.
Do we even have any advocates in Kansas?
We do. Or we did. I’m pretty sure we still do. Yes.
I can’t think of anybody. I mean, like I know people from the other states that have any level of activity. I’ve not heard of Kansas, but I apologize if you exist and you’re a listener to the program.
Yeah, there’s a couple people over there. I don’t know how active they are right now. But yes, actually, they’re pretty good people. They actually know quite a bit about how processes work.
Oh, well, alright, then. Shows you what I know. Um, I am going to play, at the same time of going to look up who actually wrote in first, this is a… we’ll move on to Who that Speaker? I think we’re at right shy of an hour. And I think that’s about where we should shut it down. Is there anything you want to say before we close things out and finish up the show?
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Very good. All right. Well, last week, I really didn’t think anybody was going to get this one. But this is what I played.
New Mexico governor Gary “Puff” Johnson 1:00:36
What would you do if you were elected? About Aleppo? About Aleppo. And what is Aleppo? You’re kidding. No. Aleppo was in Syria.
I really got a kick out of the TV show hosts. Goes, Okay, tell me about Aleppo. Aleppo? He like really enunciates very clearly saying Aleppo. Anyway, that was- I’ll give you the privileges there Larry. Who was that?
That was former New Mexico governor Gary “Puff” Johnson when he was running for president.
Why was he “Puff” Johnson?
Well, I make this joke about him because in his two terms as governor, when he ran for reelection for his second term which would have been 1998, he ran on a law and order platform, which he was a member of the Republican Party. He’s more of a libertarian, but the Libertarian party didn’t have the potential to elect the governor. So he ran as a Republican. And he promised law and order and to crack down on crime. And he said, in his campaign commercials, that they should serve every stinking day. And then surely thereafter, he had an epiphany. And he started looking at the cost of the Corrections Department. He started realizing that a lot of people were in prison that were serving every stinking day for stuff that probably didn’t really need to be criminalized, and his libertarian tendencies started to kick in. And he started talking about the legalization of drugs, which I, in some aspects, agree with him on that. Not completely, but in some portions, I agree with him. And he, all the sudden when he was no longer subject to- you can only serve two terms as governor- he all of a sudden had an epiphany. Epiphanies are good. But he all of a sudden became known as “Puff” Johnson because he was advocating for repeal of drug laws, particularly marijuana.
I see. All right. Well, it looks like the first person that wrote that one in was Jonathan. So thank you very much, Jonathan. There’s your 15 seconds of fame. Also, last week, we played another clip, and Brian wrote in and got that one about the Postmaster General, what was his name?
Let’s play that again. Because that is just such a beautiful clip.
Oh, you had to ask me to do that one. Yes, I do have it.
Unknown Speaker 1:02:56
How much longer are you planning to stay?
Postmaster General Robert DeJoy 1:02:59
A long time? Get used to me.
Alright, so that’s you. We got to get used to you.
Yeah, that’s postmaster DeJoy. And that was that was in response to- he was at a House of Representatives congressional hearing, and he was asked about… He was first improperly told that he was a holdover appointee, and he corrected. He was not a holdover appointee. He was appointed by a bipartisan commission. And then the member proceeded asked him well, how long do you plan to stay? That’s where that comes from.
I see. So we have to get used to you, which means we all need a lot more chilling us out beverages?
That’s correct. Get used to me.
Alright, so this week um, now look, I personally believe that this one is super recognizable because I remember when this happened. And so I modified the voice a little bit. Larry couldn’t hear it the first way I did it. So I modified it again. And I hope you can hear clearly. I’ll play it twice. But you get to tell me who this is.
Who’s that Speaker?
And again, the audio is really shitty because it’s somebody had a phone camera on a table and it was a covert recording being done. And so there’s some noise in the background. Even in like the video, you can see like a waiter or busboy or somebody moving past the screen. I will play it again and listen carefully.
Who’s that Speaker?
It’s funny to me, Larry, like as far as audio goes, like the first time it takes you a minute to like, get the car to get into gear and then maybe the second or third time you like, oh, yeah, that’s what I actually hear him saying. You have to like, get yourself ready and used to listening to it before you can hear the words and so forth. Any ideas?
I have no idea. So I’m stumped.
All right. Um, okay. Well, I think we are about ready to close it all down, sir. Is there anything? Let’s see. Tell me something really quick. You got, like 30 seconds. Tell me really quick about an article you sent me about the economy.
You talking about the budget deficit? (Andy: That’s the one.) Yeah, well, the budget deficit for the first four months of the fiscal year that we’re in starting October 1 is down precipitously. We ran $163 billion surplus in January.
Surplus means like putting money in the bank, right?
Yep. Means we collected more in federal revenue than we expended in the month of January. First time that’s happened in a long time where we’ve had a monthly surplus. Doesn’t happen very often. It normally happens in tax collection months like April. But the deficit for the first four months of the fiscal year is down dramatically, folks.
Someone says wrap it up, Larry, DQ (Dairy Queen) cannot wait. Is it possible that you’re reading into this like with some sort of filters on? That there’s other conditions? Is it because of like the job market? Like there are 475,000 jobs last month or something like that? I mean, is it related to that?
Well, it is related to the robust recovery we’ve had in the economy, which is about to stall. But we’ve had a robust economy for the last year, year and a half. The recovery started under President Trump. But you know, when we hit 15% unemployment in the early stage of the pandemic. There was robust recovery taking place in the latter part of the Trump term. But it’s continued. And despite all the naysayers, it has continued. So we’ve got 11 million unfilled jobs. We’ve got tax revenue coming in at unexpected levels. And we have a labor shortage that is going to continue to get worse, I think, because the demographics of the country are just not good. And so we’re going to continue to have a shrinking labor pool. And the economy will eventually stall because we have too many dollars competing for production that’s just simply not there. We don’t have the ability to do things with a shortage of workers. You can’t build houses, you can’t build office buildings, you can’t build apartments, you can’t run factories, you can’t run restaurants, you can’t run truck lines. You can’t do all these things if you don’t have workers, folks.
Very true. Yeah. All the supply shortage issue, the supply chain issue, that is amazing on what a little 50 cent chip is halting production on factory floors. I find that to be fascinating that you can have a factory in Taiwan that’s producing chips, and they can’t produce them fast enough. Or they have shut down from COVID. And that is making a $40,000 truck on a Ford assembly line just sit there waiting for an ABS sensor or something like that.
Longer range, this isn’t good because the economy will stall like an airplane that can’t get lift. The economy, when you don’t have workers, you will eventually stall because you can’t produce. And that’s where we are. We cannot continue to expand production. Either we have to do automation, which some jobs just don’t automate well, or production just lags because we can’t meet demand.
Um, I did want to say one thing. A comment came across in chat, I gotta find it. So one of our long, long, long, long time listeners, he said, burying our heads in the sand is partially how things got to where they currently are. Knowing the bed helps to improve our angle of argument. I think that’s awesome. So we need to cover more defeats too Larry.
Absolutely. All right.
All right. Well, that is all we have for the program tonight, Larry. You can find all of the show notes and everything that you want to find over at fypeducation.org Leave us voicemail, (747)227-4477. firstname.lastname@example.org. Oh, for the Who’s that Speaker thing, send that email to there and put who’s that speaker in the subject line. And then of course, you can support us over at patreon.com/registrymatters. And then also I’ll plug the FYP education site to find printed transcripts that you can send into your loved ones in prison. And I’ll let you finish up that whole thought on the FYP site.
Awesome. You can also find the summaries of state statutes requiring various things for PFRs. And hopefully we will expand that inventory as we figure out how to do it; what we can feasibly place on the FYP Education website. Hopefully there’ll be some listing of court decisions. Right now, you have to go through the transcript to try to find them, but we’re hoping to make that simpler for folks. So the FYP Education website is going to get better and better over time.
Very good. Well, that is all I have, Mr. Larry, and I hope you have a splendid rest of your weekend. And I’ll talk to you very soon. Have a great night, my friend.
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