Wednesday, October 15, 2014
Court Upholds In-Person Reporting Requirement for Sex Predators
By KENNETH OFGANG, Staff Writer
A statute requiring some sex offenders to report to police in person every 90 days for the rest of their lives does not violate the constitutional right to be free from personal restraint, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed a district judge’s order dismissing David Litmon Jr.’s 42 U.S.C. §1983 action against state Attorney General Kamala Harris. Litmon, who in two prior cases admitted to raping four women and severely beating another and sexually assaulting two underage girls. Litmon sued to block the state from enforcing Penal Code §290.12, which provides that “every person who has ever been adjudicated a sexually violent predator” appear before local law enforcement every 90 days for the rest of their lives to verify certain identifying information.
Litmon, who represented himself in district court, and the pro bono counsel who argued his appeal, contended that the statute deprived him of due process and equal protection. U.S. District Judge Edward Chen of the Northern District of California dismissed for failure to state a claim.
Chief Judge Alex Kozinski, writing for the Ninth Circuit, cited United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), in which the court upheld an Alaska requirement that certain juvenile sex offenders in Alaska register every 90 days, although not in person. The court said the law did not violate any fundamental right and passed the rational-basis test.
Applying that test to §290.12, Kozinski concluded that it passes muster because the Legislature could rationally conclude “that requiring those who have been convicted of sexually violent offenses to register in person every 90 days may deter recidivism and promote public safety,” just like the Alaska statute challenged in Juvenile Male.
Kozinski also rejected the argument that the law violates Litmon’s “fundamental right to work,” because its requirement has blocked his employment as a trucker, since driving assignments might well prevent him from getting to the police station every 90 days. There is no such fundamental right, the chief judge said, so any restriction on an offender’s ability to pursue employment is still subject to rational-basis review.
May Sue Police
The chief judge acknowledged another argument made by Litmon, that because of police harassment, he has had to spend up to six hours or more at the station while registering. “Nothing in the district court’s order dismissing Litmon’s due process claims against the Attorney General precludes Litmon from raising an as-applied substantive due process claim against local law enforcement based on allegations of police misconduct,” Kozinski wrote.
The jurist went on to reject Litmon’s ex post facto and equal protection claims.
The statute is not an ex post facto law, he said, citing several prior cases dealing with sex offender registration requirements. And the equal protection challenge fails, he wrote, because mentally disordered offenders and mentally disordered sex offenders, who are not subject to the requirement, are not similarly situated to sexual predators, as those classes are defined by California law.
Unlike those in the other classifications, the chief judge noted, sexual predators must be convicted of violent offenses.
“In any event, the California legislature has a rational basis for imposing more frequent reporting requirements on sexually violent predators given their criminal history of sexual violence and their higher risk of recidivism,” Kozinski wrote.
The case is Litmon v. Harris, 12-15261.
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