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August 1, 2017

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 at 05:31 AM | Permalink


11 years old at the time of the offense. Wow.

Posted by: federalist | Aug 1, 2017 7:58:14 AM

Philosophically I think the court got to the correct result but I worry that it will have some negative unintended consequences. If the term "sex offender" does not apply to juveniles adjudicated as delinquent then it makes it more likely that prosecutors will avoid juvenile court when they can. In other words, this ruling might spare some very young offenders from being put on the registry because these very young offenders would be adjudicated delinquent in any event but the cost will be that in the case of older defendants such as 16 year olds--where prosecutors have greater latitude as to whether the case goes to adult or juvenile court--prosecutors will avoid juvenile courts so to make sure such people get put on the registry. I don't see offering an incentive to prosecutors to try more teenagers in adult court as a positive development.

Posted by: Daniel | Aug 1, 2017 8:27:49 PM

The opinion notes that Minnesota regulates "juvenile delinquents" here too but less harshly, including in a way that is more confidential. I think the P&I / Equal Protection concern in the footnote probably can be addressed with mild adaption. The rule in place can also be expanded so that "juvenile delinquents" are covered, not just "sexual offenders," which is sort of a tangent to Daniel's concern.

Posted by: Joe | Aug 1, 2017 9:13:00 PM


Just keep fiddlin and diddlin and picking nits while America burns from a lack of rationality. Then you won't have to wonder, "How did this madness come to be?"

Posted by: albeed | Aug 1, 2017 11:53:19 PM

They just keep polishing their turd like it's going to be something useful one day. The only thing it is doing is giving jobs to a bunch of losers.

Neutralize the Registries today. Do everything legally possible today to retaliate because the Registries exist. Do everything legally possible today to harm people who support the Registries. Remember that they aren't Americans.

Posted by: FRegistryTerrorists | Aug 7, 2017 10:22:10 AM

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