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October 31, 2019

Federal court finds First Amendment violated by sheriff's plan to place signs of sex offender homes on Halloween

A helpful reader spotlighted a new notable federal court ruling dealing with one example of how some local law enforcement officials sometimes use the Halloween holiday to single out registered sex offenders.  This local newspaper story, headlined "Judge sides with sex offenders in ‘no trick-or-treating’ fight," reports on the basics:

A federal judge on Tuesday said a Georgia sheriff’s plan to post “no trick-or-treating” signs at sex offenders’ homes was unconstitutional.

The ruling comes after three registered sex offenders sued Butts County Sheriff Gary Long to stop his office from the practice, which began last year with deputies planting signs that urged Halloween revelers against stopping. Deputies put up some of the signs while others among the county’s 200 registered sex offenders were told to display one themselves or face unspecified trouble, according to the complaint.

U.S. District Court Judge Marc T. Treadwell’s order applies only to the three plaintiffs, meaning it wouldn’t stop the sheriff’s office from placing signs at other registered sex offenders’ homes. But the judge said Long’s legal authority to place the signs was “dubious at best.”

The sheriff disagreed with the ruling but said he’d abide by it. He said he had deputies put the signs up last year because a popular trick-or-treating event on the square in downtown Jackson was cancelled, leading to an increase in door-to-door visits.

“While the vast majority of us may disagree with the Judge’s ruling, I strongly encourage you to NOT take matters into your own hands this Halloween,” Long wrote on Facebook. “Unfortunately, there is no time to appeal before this Halloween.”

Treadwell said the three men who sued are “by all accounts” rehabilitated and living law-abiding lives.“Yet their Sheriff finds it necessary to post signs in front of their homes announcing to the public that their homes are dangerous for children,” the judge wrote. “The Sheriff’s decision is not based on any determination that the Plaintiffs are dangerous. Nor is the Sheriff’s sign-posting founded on Georgia law.”

The sheriff’s plan to place the signs “run afoul” of the First Amendment because it compels the men to display the message even though they disagree with it. The sheriff said he’d sought legal advice in 2018 before placing the signs and believed it was appropriate.

The full 25-page ruling is available at this link, and here is its introduction:

The Plaintiffs are sex offenders. That is because many years ago they committed offenses that fall within the State of Georgia’s definition of sex offenses.  Since then, they have served their terms of imprisonment and have, as far as the law is concerned, paid their debts to society.  But because they have been classified as sex offenders, they remain subject to Georgia’s lifelong requirement that they register with their local sheriff. But by all accounts, they are rehabilitated.  They live productive, lawabiding lives.  Two of the named Plaintiffs live with their parents; one has a six-year-old daughter living with him.  The State of Georgia, under its system for classifying sex offenders, has not determined that they pose an increased risk of again committing a sexual offense.

Yet their Sheriff finds it necessary to post signs in front of their homes announcing to the public that their homes are dangerous for children.  The Sheriff’s decision is not based on any determination that the Plaintiffs are dangerous. Nor is the Sheriff’s sign-posting founded on Georgia law.  Rather, the Sheriff’s decision is based solely on the fact that the Plaintiffs’ names remain on Georgia’s registry of sex offenders.  Further, Sheriff Long plans, as he has in the past, to ban the Plaintiffs from expressing their disagreement with the signs and the message the signs convey.

The Plaintiffs object and seek relief from this Court.  The question the Court must answer is not whether Sheriff Long’s plan is wise or moral, or whether it makes penological sense.  Rather, the question is whether Sheriff Long’s plan runs afoul of the First Amendment of the United States Constitution.  It does.

October 31, 2019 at 06:44 AM | Permalink

Comments

This type of practice of marking off former sex offenders' homes for the general public actually puts law enforcement personnel at risk to harm against themselves.

I can visualize two such scenarios:

First, the accidental one. When a police officer comes to check on the home of a former sex offender during the night of Halloween, that resident might mistake the sheriff or police officer for a burglar or vigilante and use the "Stand Your Ground" law as justification for shooting at that particular law enforcement individual. Only too late would the former offender realize that he or she shot a police officer by mistake. But the damage is done.

Second, we have the deliberate one. In this scenario, a former sex offender becomes embittered at such measures as our Georgia sheriff wants to implement and decides to booby-trap his or her house with the intention of injuring or killing the law enforcement personnel who set foot upon the property. That former offender may feel that he or she has nothing to lose by killing law enforcement personnel who invite themselves onto his or her property with or without a warrant.

With many of our police departments financially strapped for more personnel, equipment, and funding, I am surprised that the Sheriff would have enough personnel and funding to do this publicity stunt instead of going after real-time crimes (crimes as they immediately happen instead of targeting somebody who MAY commit a crime in the future but who has not already done so).

We have had instances were former sex offenders have been arrested for making terrorist threats against police stations in protest against these laws that target ex-sex offender. One man a few years ago in Augusta, GA, got arrested for making a bomb threat against a law enforcement building. Fortunately, no body was harmed. In another case in Minnesota, an accused sex offender was arrested for making death threats against prosecutors and judges.

If our sheriff is GENUINELY concerned about public safety, he won't pull off cheap publicity stunts that not only give one a false sense of security, but which actually put police and public at greater unnecessary risk.

Posted by: William Delzell | Oct 31, 2019 9:57:36 AM

There seem to be two strands in this decision. Strand one emphasizes that that Sheriff lacks the authority to require these individuals to take these actions: there is no state law on the point (or county ordinance) and the Sheriff's powers do not let him create such regulations. Because the Sheriff lacks the legal power to make new laws, he can't legally ban people (for whatever reason) from giving out candy on Halloween or require people to salute him when he passes in the street or whatever idea of correct and appropriate behavior he personally wants to mandate. Once the finding is made that the Sheriff lacks authority to make this rule, it is legally irrelevant whether such a rule -- if made by others -- would be valid.

The other strand is the potentially more consequential. Unlike this county in Georgia, there are other jurisdictions that have followed the proper legislative process for enacting such provisions governing the conduct of sex offenders on Halloween -- either expressly or implicitly finding that such regulations improve public safety and protect children. This judge's decision seems to imply that such legislation would violate the First Amendment. While this decision is not binding in those other states, I can see this opinion being cited in cases challenging those statutes.

Posted by: tmm | Oct 31, 2019 11:28:02 AM

This is NOT the duty of the Sheriff, it is bad enough when it is posted all month in the local paper. Many are rehabilitated or of no danger to society or they would not have been released. Sex offender list covers many offences, most not violent and should not be a life time thing. One or two years to adjust might be in order but unlikely needed!

Posted by: LC in Texas | Nov 1, 2019 11:16:19 AM

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