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January 21, 2012

Tenth Circuit (grudgingly?) upholds ruling striking down Albuquerque ban on sex offenders in libraries

Late yesterday, a Tenth Circuit panel affirmed in Doe v. City of Albuquerque, No. 10-2102 (10th Cir. Jan. 20, 2012) (available here), a district court's ruling striking down a local ban on registered sex offenders entering public libraries. But, as the start of the ruling hints, it almost seems as though the panel had wished it had the evidence needed to rule the other way:

This appeal presents us with a difficult issue of first impression. John Doe, a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries.  The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of Doe.  The court concluded that the ban burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.  The City appeals both the denial of its motion to dismiss and the grant of Doe’s summary judgment motion.

Complicating our inquiry is the fact that the City, relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to Doe’s summary judgment motion.  Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.  Had the City done so, it is not difficult to imagine that the ban might have survived Doe’s challenge, for we recognize the City’s significant interest in providing a safe environment for its library patrons, especially children.  As an appellate court, however, we are bound by the record and the law.  And in this case they require us to affirm the district court.

January 21, 2012 at 09:25 AM | Permalink

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New Mexico should consider contacting Erika's Icky Perv Solutions for ideas about setting up a special "sex offender" only library which would allow sex offenders to use a library without endangering children. As a special registered sex offender library, it can provide for the special needs of the icky perv patrons much better than a general library.

In a regular library, a middle aged man wearing a trenchcoat reading publications aimed for children or teenaged girls is likely to be chased out with pitchforks. Well, maybe not pitchforks, but clearly will be harshly judged by the non-icky perv patrons and possibly attacked. In the special sex offender library, icky pervs will be able to read teen magazines or children's books without being judged. This will therefore enable icky pervs to be able to access the reading material they want without endangering children and even protect icky pervs.

Yes, it will cost more to have a separate sex offender library - but won't somebody think of the children?

Erika :)

Posted by: virginia | Jan 21, 2012 12:14:01 PM

This is an INCREDIBLE admission by a Federal circuit level opinion, essentially giving the city a blueprint in how they will act if the appeal is redone, which isn't difficult to respond to. The only solace is that the court itself cites erroneous high recidivism rates, which can be easily refuted, UNLESS the justices decided to interpret the statistics using non-conventional methods (such as isolating, and extrapolating, recidivism rates for male homosexual offenders around 20%, as opposed to RSO's as a group, around 3.5%).

It IS interesting to wonder if counsel for the offender tried to introduce the actual rates but was objected to entering them into the court of record, perhaps because in the case of an offender entering a library, that actual point was not relevant. I have seen such actions in courts before, but not in the method of arguing before a Federal circuit court.

Posted by: Eric Knight | Jan 21, 2012 3:46:32 PM

Erika:

I thought separate but equal was struck down by SCOTUS some time ago. Aren't you up to date on your history and law studies?

Posted by: albeed | Jan 21, 2012 8:07:59 PM

albeed: "I thought separate but equal was struck down by SCOTUS some time ago."

me: that was "separate but equal" based upon race - and apparently gender as well - which is a protected class for purposes of Fourteenth Amendment analysis. It was also struck down based upon extensive showings that "separate but equal" facilities weren't anywhere close to equal.

Are you seriously trying to claim that one's status as a sex offender - a classification based upon past criminal actions which demonstrate that a person is a threat to the community - is equal to that of race which is based upon who a person is and is not easy to change and is not based upon any specific action which shows a person is a threat to the community. Therefore, the analysis on whether the separate sex offender library would be based upon police powers because it would be for public safety. Because the court here strongly hints that a total ban would not violate the Fourteenth Amendmnt had Alberquerque did a better job, there is little question that making a separate sex offender library in order to protect the children would be legal as a less restrictive alternative to the total ban.

In fact, the less restrictive alternative is quite important because even assuming argumendo that some enterprising attorney can make an argument that icky pervs are a protected class -- then the city could point out that the separate sex offender library is less restrictive than the library ban. But, I seriously doubt you will find many lawyers willing to argue that being an icky perv is equivilent to gender or race.

albeed: "Aren't you up to date on your history and law studies?"

me: nice insult, how mature of you :P

Erika :)

Posted by: virginia | Jan 22, 2012 7:19:18 AM

Erika:

“At the very core of evil is the process of dehumanization by which certain other people or collectives of them, are depicted as less than human, as non comparable in humanity or personal dignity to those who do the labeling. Prejudice employs negative stereotypes in images or verbally abusive terms to demean and degrade the objects of its narrow view of superiority over these allegedly inferior persons. Discrimination involves the actions taken against those others based on the beliefs and emotions generated by prejudiced perspectives.

Dehumanization is one of the central processes in the transformation of ordinary, normal people into indifferent or even wanton perpetrators of evil. Dehumanization is like a “cortical cataract” that clouds one’s thinking and fosters the perception that other people are less than human. It makes some people come to see those others as enemies deserving of torment, torture, and even annihilation.” (Philip Zimbardo)

I will provide A common joke as an example of demumanization: A lady walks into her local butcher shop and asks if there are any specials. The butcher looks at her and says we have a great price on engineer’s brains at $1.99/pound. How do you cook them she asks? The butcher says just sautee them in butter until their a golden brown,

Well the woman orders 3 lbs of engineers brains, prepares them as directed and her family loves the meal. The next week she walks into her butcher shop and asks if there are any more brains for sale. Her butcher replies that the only brains they have are lawyer’s brains for $199.99/pound. Increduously, the woman asks if they are superior. No the butcher answers, but do you realize how many lawyers we have to kill to get a pound of brains.

I know at least 3 people listed as SO’s who are the kindest, least dangerous people that I know. Two were extremely young men (you know, just old enough) who were caught in adult chatrooms with police pretending to be more experienced underage girls and the real pictures of these young men .resulted in a response that you are the hottest guys on earth and we HAVE TO MEET. Another was a wife/daughter collaboration where divorce was involved.
If I know of these three, there must be many others. These people are not icky pervs and I will fight to the death their characterization as icky pervs. Sometimes, the laws (and politicians) are an ass. It is becoming more common with the dumbing down of amErika.

Posted by: albeed | Jan 22, 2012 2:36:19 PM

albeed: "It is becoming more common with the dumbing down of amErika."

me: did you think of that one all by yourself or did you have help? :P

Erika :)

Posted by: virginia | Jan 23, 2012 5:58:04 AM

Erika:

Yes, that was all me and my thinking.

However, I would have preferred some comment on my other paragraphs.

PS: I don't think you are dumb. I just wish you were kinder with your icky pervs as that comment continues many fallacies.

Posted by: albeed | Jan 23, 2012 10:43:48 AM

@albreed:

While your attempts are admirable, I think that to some people, anyone that at any point in their life has done anything sexually questionable will forever be branded as 'icky pervs' by those who clearly have never done anything wrong, ever. That's true regardless of anything that the 'icky perv' does to change their ways or make amends. (Which, as an aside, makes me kind of wonder if one is always going to be an 'icky perv' no matter what they do, then why bother trying to do anything to change that impression? Doesn't adopting that kind of a mindset actually make society less safe?)

Posted by: Guy | Jan 23, 2012 11:19:33 AM

Guy:

The question is why is Bill Clinton not labeled as an "icky perv" when he is their Poster Child?

There is something deep and irrational going on here.

Posted by: albeed | Jan 23, 2012 2:08:07 PM

Erika: "status as a sex offender - a classification based upon past criminal actions which demonstrate that a person is a threat to the community"

Thus no insidious prejudice of an innate characteristic, but closer to 'fool me once shame on you, fool me twice…'

"Serial rapist caught in Utica murder victim's car" (No worries, no DP in NY)
"Serial rapist Blainey was bypassed for civil confinement"
"Blainey was convicted of rape twice in the 1980s"
"Blainey was convicted of raping a girl under the age of 11 in 1984"
"When the judge called him the coldest man he’s ever seen, Blainey replied, “Thank you.”"

Albeed: Until the murder, did you hold a special place for Robert Blainey in your library and in your heart?

Posted by: Adamakis | Jan 23, 2012 2:33:31 PM

"If I know of these three, there must be many others. These people are not icky pervs and I will fight to the death their characterization as icky pervs. Sometimes, the laws (and politicians) are an ass. It is becoming more common with the dumbing down of amErika."

Adamakis, I agree with your viewpoint which is also based on personal contacts of others labeled as such. If Erika was as intelligent as he or she thought they were, they should have come up a more cost effective approach using special library hours rather than duplicate facilities, NOT ;-O

Posted by: jayz | Jan 23, 2012 6:09:13 PM

Adamakis:

Until your very specific comment, I had no idea who Blainey is/was. Your stupidity is equating every SO with Blainey.

By the way, your rationale is equivalent to everyone who has ever shot someone with a gun (no death) being equivalent to a mass murderer. Seig Heil.

The laws should be more differentiating. You look on the worst and make everyone the worst.

Your internal world must be a living hell!

Talk to me later.

Posted by: albeed | Jan 23, 2012 7:56:31 PM

albeed: As does the law, I differentiate between one who exposes himself and Robert Blainey. Just wanted to enlighten you. I "make everyone the worst"? Wow, I intend to celebrate & protect the innocent, but alas my inner jinn torment me so.

I don't personally know any SOs at all, much less any "kind[ly" ones. I do know my stepfather who escaped Hamburg in 1936, whose cousin (on L. Island) escaped in '39, but who lost about that many to Heil dictator and his countrymen. She showed me a series of photos in which everyone pictured except these cousins was murdered. The DP for the Nazi leaders--which so many today and on this blog would oppose doctrinairily--was just and admirable, BTW.

[Today, the agnostic Hague can't quite manage to achieve the Judeo-Christian justice of Nuremburg.]

guten nacht, krimineller liebhaber

Posted by: Adamakis | Jan 23, 2012 11:38:37 PM

albeed: "These people are not icky pervs and I will fight to the death their characterization as icky pervs."

me: when I use icky pervs, it is a term of art for pedophiles. That is people who go after prepubscent children.

I do not use that term for people who go after teenagers because their actions may or may not be sexually predatory. Its illegal for a 17 year old boy to have sex with a 14 year old girl, but its likely not predatory because chances are that the parties have similar maturity levels. I would not favor having the 17 year old boy in that case listed as a sex offender. It is more likely to be predatory if a 17 year old girl had sex with a 14 year old boy. But, I still would not favor sex offender registry for the 17 year old girl because 17 year old girls are still extremely immature. It is definitely predatory for a 27 year old of either gender to have sex with a 14 year old of either gender - while not an icky perv, the 27 year old definitely is a sex offender and should be listed.

For people with older victims, I use the term rapist if it was a forcible offense or are simply within the overall banner of "sex offender."

erika :)

Posted by: virginia | Jan 24, 2012 6:19:55 AM

guy: "if one is always going to be an 'icky perv' no matter what they do, then why bother trying to do anything to change that impression?"

me: yes, see above that when I used the phrase icky pervs, I am referring to pedophiles who commit offenses against children (child porn, child molestation, child rape, etc.). Now, I am willing to give some leeway to someone who is a child. I mean, if a 7 year old boy slaps a 7 year old girl on her buttocks in school, the 7 year old should not be branded an icky perv. If a 10 year old boy molests a 7 year old girl, I also would favor a wait and see approach before declaring someone an icky perv. However, if a 14 year old boy or older would molest a 7 year old girl, then I would use the "icky perv" term. Once one hits puberty, if you are still going after prepubscent children, society should not have to take a risk with you. But if a 14 year old boy slaps a 14 year old girl on her buttocks in school, he should not be branded an icky perv. That doesn't mean he shouldn't be punished, because he should if it was nonconsensual - but he should not face a life time on the sex offender registry for engaging in forceable sexual activity against a child even though that is the offense he committed.

guy: "Doesn't adopting that kind of a mindset actually make society less safe?"

me: no - once someone has proved themselves to be a pedophile who goes after children, prison is the place where they belong. But if society chooses in its mercy to let them out, society should be able to place restrictions on them. Once someone commits a sexual offense against a child, they give up any chance to claim they are not a risk to children and society in general. In some cases, I would even favor forced castration.

and yes, that does make me cruel for thinking that.

erika :)

Posted by: virginia | Jan 24, 2012 6:34:45 AM

jayz: "a more cost effective approach using special library hours rather than duplicate facilities"

me: and how will that fit into my business plan for Erika's Icky Perv Solutions? Private sex offender only libraries may not be cost effective for the city, but they are definitely cost effective for shady consultant businesses :P

okay, removing my dreams of being able to profit off of the icky perv hysteria, you are actually right. But, before you run around giving away cost effective solutions for free, think of the business opportunities ;)

oh and why don't you pick the name of a better rapper? Jay Z is horribly overrated. and while I am pretty sure that my parents wanted a boy, the a on the end of my name means I'm a she.

erika :)

Posted by: virginia | Jan 24, 2012 6:51:00 AM

albeed:

I completely believe most of the drive behind the SEX OFFENDER witch hunt is about the need for Americans to harm people and feel better about themselves. The mass hysteria about where the non-human “SEX OFFENDERS” live is all because of that. Only a very small part of it is about “protecting children” or “public safety”. For the most part, those are just the lies that they tell to justify their crimes.

The library bans are a great example of it all because they really are useless laws that will do nothing significant except hurt people. Yet “Americans” accept and even support these laws. Those people are bad people.

The fact of the matter is, if you are a parent and you need such a law, you are a terrible parent who should not have children. A law should be created that makes it illegal for you to have children.

And of course we also have the fact that there is not even any discussion at all about having the ban cover all people convicted of serious crimes. That alone proves these “laws” are immoral.

The Registries are pretty good at helping the people who are listed on them dehumanize other people. That is one thing that they do well.

Posted by: FRegistryTerrorists | Jan 24, 2012 8:16:21 AM

erika you want to reference the page of the U.S. CONSTUTION you found this!

"Once someone commits a sexual offense against a child, they give up any chance to claim they are not a risk to children and society in general."

and even more important if it applies to sex criminals that have a 5-15% reoffence rate WHY DOES IT NOT APPLY to other felony's that have upward of 50-60% reoffence rates like DUI, ARMED ROBBERY and so on?

Posted by: rodsmith | Jan 24, 2012 12:23:26 PM

hmm 3 days now and you still haven't found it. I'll let you in on a little secret erika! IT'S NOT THERE! you will NEVER find it!

it's on that same NON-EXISTANT page where so many people keep finding that bit of stupidity about the "People's right to know"

that also DOESN'T EXIST!

Posted by: rodsmith | Jan 26, 2012 10:34:48 AM

What does education often do? It makes a straight-cut ditch of a free, meandering brook.

Posted by: dissertations | Jan 27, 2012 11:07:39 AM

Erica, I find you, after having read your loathsome and scurrilous suggestions, to be the "icky perv"! If I were to knowingly frequent a library with the likes of you, I would voluntarily head for the door. Andrew Cargegie spins in his grave at the uses to which his fortune (public library funding) have been put...

Posted by: David Kennerly | Feb 5, 2012 10:31:44 PM

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