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October 23, 2012

Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"

A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer.  The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée.  It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.  We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.”  The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary.  Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals.  Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer.  On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.

October 23, 2012 at 06:30 PM | Permalink


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Good to read .

Posted by: Anon. #3.14159 | Oct 24, 2012 6:18:36 AM

Compare State v. Strickland, 169 N.C. App. 193, 609 S.E.2d 253 (2005).

Posted by: JD | Oct 24, 2012 10:09:28 AM

Might we say that this decision can be considered for the myriad of sex offender laws triggered by registration, particularly residency, employment, and travel restrictions?

Posted by: Eric Knight | Oct 24, 2012 4:52:47 PM

LOL the problem eric is those getting hit with all those extra little gotcha! are usualy not on probation/parole so have are kind of stuck.

Which of course is probalby a big hint the laws are illegal. Sorry but in my book once any court ordered sentnece is finished. The state has no more right to tell them what to do than they have ot pass a law tomorrow that says "Bill" is now prohibited from living, working, or walking wihin 2,000 feet of any bloog or computer where blog's congregate.

Posted by: rodsmith | Oct 25, 2012 3:24:45 AM

This finding speaks volumes. Most of the current sex offender laws are based not on facts, but on public outcry. The liberal USSC has failed miserably by not overturning SORNA in its entirety. The argument of "regulatory", not "punishment" as regards the SO registry is a weak argument.

Posted by: Oswaldo | Oct 26, 2012 10:14:02 AM

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