12-21-17 Indiana:
Three men have filed a lawsuit over an Indiana requirement that they register as sex offenders when moving to the state.
They say they're being treated differently than other residents in similar situations.
The men were convicted out of state, and before the Indiana Sex Offender Registration Act was enacted.
The lawsuit says that the state typically doesn't require sex offenders to register if they were convicted before the act took effect, and if they haven't moved to Indiana from another state.
However, the state does require offenders who have temporarily left Indiana or are moving to the Hoosier state to register. ..Source..
Showing posts with label .Indiana. Show all posts
Showing posts with label .Indiana. Show all posts
December 21, 2017
Lawsuit over Indiana sex offender registry requirement
October 24, 2017
COA: Churches aren’t school property; sex offenders can attend
Three convicted Boone County sex offenders can return to their church congregations after the Indiana Court of Appeals determined that churches are not considered “school property,” so state statute cannot prohibit the offenders from going to church, even when children are present.
The appellate court handed down that decision Tuesday in John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. The case dates to 2015, when the Indiana General Assembly passed the “unlawful entry by a serious sex offender” statute, Indiana Code section 35-42-4-14. That statute prohibits “serious sex offenders” from accessing school property.
According to the statute, “school property” is defined as any “nonprofit program or service operated to … benefit children who are at least three years of age and not yet enrolled in kindergarten.” Based on that language, the Boone County prosecutor sent a letter to all registered sex offenders in the county informing them they could only attend church if their churches do not offer classes or services for young children. ..Continued..
October 17, 2017
Sex offender class for prisoners violates U.S. Constitution, federal judge rules
10-17-17 Indiana:
A federal judge has ruled that Indiana's mandated sex offender classes for prisoners who oppose them violates the constitutional right to be free from self-incrimination.
The Sept. 28 ruling in the class-action lawsuit filed in the Southern District of Indiana will affect all convicted, incarcerated sex offenders who opt out of the Indiana Sex Offender Monitoring and Management, or SOMM, program. Three of the plaintiffs will be eligible for release from prison.
The Indiana attorney general's office has filed an emergency request to temporarily halt the case pending an appeal, saying the decision could put the public at risk by putting convicted sex offenders back on the streets.
A spokesman for Attorney General Curtis Hill confirmed that the office will file an appeal by the Oct. 30 deadline.
The ruling in the four-year-old case overrules an Indiana Supreme Court decision from 2014 that found the classes to be constitutional.
The dispute hinges on what the classes require.
In May 2013 Donald Lacy, Lawrence Greer-Bey, Frederick Holmes-Bey and Allan Kirkley filed a lawsuit against the state, then-governor Mike Pence, the Indiana Department of Correction and officials at the Plainfield and New Castle correctional facilities in Indiana.
The plaintiffs, all convicted of sex crimes, argued that since they pleaded not guilty to the crimes they were convicted of, they should not be forced to attend the SOMM program.
The program, instituted by the Indiana Department of Correction in 1999, forces participants to confess guilt in the crimes for which they are charged, give written consent to disclosure of confession and submit to a polygraph test.
Specifically, the program requires participants to disclose the details of the crimes for which they were convicted and confess to any past acts of sexual violence.
Jeff Cardella, a criminal law professor at Indiana University's Robert H. McKinney School of Law, says the requirement to confess other crimes for which they were not adjudicated or convicted is a clear violation of the Fifth Amendment.
"The criminal defendant could potentially face additional charges as a result of that confession," he says. "They're being ordered to confess to crimes the state might otherwise not be aware of," he told IndyStar.
If prisoners do not participate in the program, they could stay in prison longer than they otherwise might.
Punishment for not participating in the classes includes loss of good-time credit, loss of credit-earning class time and loss of "life, liberties and freedom for refusing to admit to an act they denied at trial," plaintiffs allege in the original complaint.
U.S. District Court Judge Richard Young ultimately sided with the prisoners.
"It is undeniable that prison authorities may, in the interest of rehabilitation, impose penalties for failing to participate in sex offender treatment programs," Young wrote in his opinion. "But the SOMM program at issue in this case provides significant penalties, in the form of lost earned food time credits and demotion in credit class, or choosing to remain silent."
He added that prisoners should be able to earn credit toward their sentences without incriminating themselves, "like any other convicted prisoner."
Representatives from New Castle and Plainfield correctional facilities declined to comment on the lawsuit.
An attorney for the Indiana attorney general's office filed a motion to stay, pending an appeal of the case.
"In the absence of a stay pending appeal, unquestionable and irrevocable harm to government actors, as well as the citizenry of Indiana will be sustained, the consequence of which greatly outweighs the harm to the limited persons affected by the Judgment," wrote Jonathan P. Nagy, deputy attorney general.
"If the Court’s Judgment is not stayed pending appeal, various convicted sex offenders, including three of the class representatives, are eligible for immediate release."
The case is expected to be appealed to the 7th District Court of Appeals in Chicago. ..Source..
September 7, 2017
COA considers whether ban on sex offenders attending church violates RFRA
Three Boone County men convicted of serious sex offenses are looking to the Indiana Court of Appeals to determine if they can return to their churches as the court considers whether a ruling that the men cannot attend church when children’s programming is in session violates their rights under the Religious Freedom Restoration Act.
That legal dilemma came before the appellate court Thursday morning in the case of John Doe, et al. v. The Boone County Prosecutor, et al., 06A01-1612-PL-02741, which the ACLU of Indiana brought on behalf of John Does 1, 2 and 3. Each of the three men have been convicted of serious sex offenses that, under Indiana Code 35-42-4-14, prohibits them from entering school property.
Based on that statute, known as the serious sex offender law, the Boone County Sheriff sent letters in 2015 to the Does and all serious sex offenders in the county informing them they could not enter a building that provides programming for children under three years of age, including churches, as these buildings met the definition of “school property.” Upon further inquiry, John Doe 2 was allegedly told by another Boone County Sheriff’s Office employee that under the statute, he could not attend any church in Boone County because all county churches offered children’s programming.
The Does, who each regularly attended church, ceased attending and instead brought suit seeking declaratory and injunctive relief. The Boone Superior Court ultimately agreed that churches are considered “school property,” but only when children’s programming was in session. However, because each of the Does’ churches offered children’s programs simultaneously or almost simultaneously, they argued on appeal that the trial court’s ruling prohibits them from attending church at any time. ..Continued..
April 11, 2017
Judge orders 3 off sex offender registry
Three men who moved to Indiana and were required to put their names on the state’s sex offender registry are likely to win their lawsuit that claims they wouldn’t face that requirement had they lived in Indiana all their lives, a judge ruled, ordering their names removed.
Judge Richard Young last week ruled in favor of Brian Hope, Gary Snider and Joseph Standish, holding they are likely to prevail in their federal lawsuit in the U.S. District Court for the Southern District of Indiana. Young granted a preliminary injunction barring authorities from enforcing the Indiana Sex Offender Registration Act against the plaintiffs.
The suit brought by the American Civil Liberties Union of Indiana argues that SORA’s application to them violates the Equal Protection Clause of the 14th Amendment and implicates the right to travel, and Young found the plaintiffs are likely to prevail on those claims. He did not reach the plaintiffs’ ex post facto argument.
Based on their crimes, the Department of Correction determined each plaintiff was an offender against children and a serious sex offender, and that Snider and Standish qualified as sexually violent predators.
Indiana’s Sex Offender Registry dates to 1994, and each of the plaintiffs’ convictions came prior to the registry’s enactment, or was an offense that didn’t require reporting at the time of conviction. Young wrote that had the plaintiffs not crossed state lines, they would not be required to register under Wallace v. State, 905 N.E.2d 371 (Ind. 2009), which prohibited the application of SORA to offenses predating the registry.
Hope was convicted of an Indiana offense and the other two plaintiffs were convicted in Michigan. After Hope left the state and returned, and the other two men moved to the state, they were told they would have to register as sex offenders for life. Young rejected the Department of Correction’s argument that finding for the plaintiffs would make Indiana a “safe haven” for sex offenders.
“Defendants’ proposed justification — preventing persons from relocating to Indiana in order to avoid registration requirements — has absolutely no applicability to (plaintiffs). SORA is therefore overbroad with respect to this interest,” Young wrote.
“When the Plaintiffs arrived in Indiana they were not afforded the same status as persons who had resided in Indiana all along. As a result of the DOC’s policies, long-term Indiana residents who have never travelled out of state are treated differently than new Indiana residents. This differential treatment offends the fundamental right to travel,” he wrote.
“Plaintiffs have a strong likelihood of success on the merits of their Equal Protection and right-to-travel claims.”
The case is Brian Hope et al. v. Commissioner of the Indiana Department of Correction, et al., 1:16-cv-02865. ..Source.. by IL Staff
February 15, 2017
Supreme Court reverses requirement for juvenile to register as a sex offender
A juvenile sex offender will not be required to add his name to Indiana’s sex offender registry after the Indiana Supreme Court decided Wednesday that the state had not met the requirements for juvenile registration.
After suffering through sexual abuse and the death of close family members during his childhood, J.D.M was diagnosed with ADHD, oppositional defiant disorder and bipolar disorder in 2012. That same year, J.D.M.’s older brother found him and a 9-year-old boy lying in a provocative position in his bedroom, both with their pants removed. J.D.M. was 15 at the time of the incident.
J.D.M. was subsequently charged with being a delinquent child for committing child molestation, which would be a Class C felony if committed by an adult. After a comprehensive diagnostic evaluation, the Wernle Youth and Family Treatment Center determined that J.D.M. was suffering with traumatic grief and was likely to re-offend.
The court ordered J.D.M. to remain in treatment at Wernle, where he underwent treatment for sexually maladaptive behavior. A Fayette County probation officer recommended his continued treatment before discussing probation, and the court agreed to that plan.
As his 18th birthday neared, the juvenile court held a sex offender registration hearing in October 2014 and Wernle reported that he still posed a “high risk of sexual recidivism” due to his continued viewing of pornography and his continued traumatic grief. At a subsequent hearing in August 2015, while J.D.M. was still at Wernle but making progress, the juvenile court ordered him to register as a sex offender, finding that the state had presented clear and convincing evidence that he was likely to reoffend.
The Indiana Court of Appeals affirmed the Fayette Circuit Court’s decision in May 2016, but the Indiana Supreme Court reversed the order for J.D.M. to register as a sex offender in J.D. M. v. State of Indiana, 21S01-1702-JV-84.
Justice Mark Massa, writing for the unanimous court, first wrote in the decision that under the Indiana Sex Offender Registration Act, a sex or violent offender must register for 10 years after the offender is released from a penal facility or secure juvenile detention facility or is placed on parole, probation or in a community transition program. Further, when dealing with juveniles, SORA requires that a court may only order the juvenile to register if he or she is on probation, has been released from a secure facility and has been expressly proven to likely reoffend.
The juvenile court agreed not to address the conditions of J.D.M.’s probation until after he completed his treatment, Massa wrote, so for the purposes of SORA, he was not considered to be on probation. Thus, the court failed to prove under Indiana Code 11-8-8-19(a) and 11-8-8-5(b)(2) that the conditions had been met to require J.D.M. to register.
Further, Wernle is a non-secure facility, so even if J.D.M. had been released, his release would not be enough to satisfy the registration requirement conditions, Massa wrote.
“Until J.D.M. is actually released and placed on probation, the possibility of his continued rehabilitation at Wernle exists, and should be allowed to develop,” the justice wrote. “Indeed, the court reports and testimony reveal that J.D.M.’s risk of sexual recidivism decreased in between the two sex offender registry hearings in this case.” ..Source.. by Olivia Covington
December 13, 2016
COA keeps man’s name on sex offender registry
A man who has been convicted of multiple sex offenses must keep his name on the Indiana Sex Offender Registry for now after the Indiana Court of Appeals found Tuesday that he had failed to present a proper petition to keep his name off of the registry.
In State of Indiana v. Douglas Woods Johnston, 49A02-1606-CR-1222, Douglas Johnston filed a motion in October 2015 requesting his removal from the Indiana Sex Offender Registry, writing that he had been found guilty but mentally ill in 2006, when he was convicted for the first time of child molesting as a Class C felony. Johnston further wrote that he was eligible for relief because he was 59 years old and was willing to get continued treatment for his mental illness.
During the hearing in January 2016, Johnston’s counsel told the Marion Superior Court that Johnston had also been convicted of child molesting in 1997 and had been arrested in 2013, though that charge was dropped. Johnston then testified that he had been getting treatment for his mental illness and told the court that he faced hardships when trying to comply with the Indiana Sex Offenders Registry Act.
The state, however, objected that the petition was inadequate and argued that Johnston had failed to meet his burden of proof. But the trial court ultimately found that Johnston should be required to register only until July 28, 2016, 10 years after his conviction. The Indiana Department of Correction filed a motion to intervene and motion to correct error, but failed to appear before the Marion Superior Court, so the motion to correct error was denied.
The state appealed, and in a Tuesday opinion a panel of the Indiana Court of Appeals unanimously reversed the decision to deny the motion to correct error. In the majority opinion, Judge Mark Bailey wrote that there were allegations that Johnston’s most recent victim was 6 years old, that Johnston had been classified as a sexually violent predator and that state statute in effect in 2006 required that, “A sex or violent offender who is convicted of at least two unrelated offenses … is required to register for life.”
“Thus, by all indications, Johnston was subject to life-time reporting requirements when he petitioned for relief,” Bailey wrote.
Johnston’s petition for relief came under Indiana Code section 11-8-8-22, which provides a mechanism for relief for sex offenders if, among other things, the petition is submitted under penalties of perjury and lists each criminal conviction. But Johnston’s petition was not submitted under penalties of perjury and one of his convictions was omitted, Bailey wrote.
Further, Bailey wrote that there was no indication that notice of the hearing was sent to the Department of Corrections or the Attorney General, as required by state statute. Finally, the appellate judge pointed out that Johnston’s counsel had not argued that he had satisfied his statutory burden of proof. Instead, Johnston argued that he had been “implicitly” found to be subjected to an ex post facto punishment, another provision of the statute.
But Bailey wrote that Johnston had not presented an ex post facto punishment argument and instead made an appeal for compassionate relief. Thus, the appellate panel found that Johnston had failed to produce a proper statutory-based petition for relief, so the Marion Superior Court should have granted the state’s request for dismissal.
The case was remanded with instructions to dismiss the matter with prejudice, subject to further proceedings if Johnston filed a new petition. ..Source.. by
December 12, 2016
Child molester’s failure to register conviction vacated
A convicted child molester will not also have a conviction of failure to register as a sex offender after the Indiana Court of Appeals found Monday that his arrest was premature.
In Richard Dobeski v. State of Indiana, 49A02-1603-CR-440, Richard Dobeski was convicted of Class C felony child molesting in 2008 and was subsequently required to register as a sex offender upon release from prison. When he was released July 16, 2015, a transportation van carrying Dobeski left the prison at 9:30 a.m. and arrived in Indianapolis at 11:15 a.m.
When a sergeant in the Marion County Sheriff’s Office checked the sex offender registry sometime after 1 p.m. on July 23, he found that Dobeski had not yet registered, so he was arrested sometime between 2 and 2:30 p.m.
At trial, the state argued that a full seven days had elapsed between Dobeski’s release and arrest and that “days” referred to full 24-hour periods beginning with the moment Dobeski was released. Thus, he was required to register by 11:15 a.m. on July 23, and his failure to do so justified the arrest that occurred after 2 p.m. But Dobeski argued that state statute gave him seven calendar days to register, so he had until midnight on July 23 to do so.
The Marion Superior Court found in favor of the state, so Dobeski appealed. The state presented two arguments on appeal – first, that a “day” constitutes a 24-hour period, and second that if a “day” means a calendar day and Dobeski’s day of release was included, then he only had until midnight on July 22 to register.
But in a Monday opinion, the Indiana Court of Appeals wrote that both of the state’s arguments were deficient and reversed Dobeski’s conviction of failure to register.
Judge Robert Altice, writing for the majority panel, pointed out that Indiana Code and trial rules explicitly state that the time within which an act must be done, such as registering as a sex offender, excludes the first day. In this case, that means that Dobeski’s seven-day window did not begin on the day of his release.
Further, Altice wrote that Indiana caselaw traditionally defines a “day” as a 24-hour period and that the state pointed to no evidence to suggest otherwise.
Thus, the state’s arrest of Dobeski was premature, the appellate court wrote, so the case was remanded with instructions to vacate his conviction. ..Source..
December 6, 2016
Judge Strikes Part of Indiana Sex-Offender Ordinance
FORT WAYNE, Ind. (CN) – A federal judge in Indiana ruled that the loitering ban in a city’s sex-offender ordinance retroactively punishes convicted sex offenders in violation of their 14th Amendment rights.
The ruling arises from a federal class action filed by the American Civil Liberties Union of Indiana last year on behalf of convicted sex offender and Indiana resident Brian Valenti, and any convicted sex offenders who may live in, travel to, or simply visit someone in Hartford City, Ind.
Hartford City Ordinance 2008-01, titled “regulation of sex offenders,” prohibits the presence of sex offenders near parks, schools and other places children most commonly frequent. “Child safety zones,” as designated by the town, also include libraries, bowling alleys, child care facilities and youth centers.
Valenti, who was convicted by a California court in 1993 of lewd and lascivious acts with a child under 14 years of age, moved to Indiana in 2014. Upon establishing Indiana residence, he complied with state law and registered as a sex offender.
Valenti claims Hartford City’s ordinance prevents him from being an effective parent because he cannot enter his child’s school, take her to the library, drop her off or pick her up at child care, or attend youth center activities with her, among other restrictions.
At the center of the 2015 lawsuit is the loitering ban included in the ordinance. As written in 2008, the ban makes it an offense for registered sex offenders to “knowingly loiter on a public way within 300 feet of a child safety zone.”
U.S. District Judge Theresa Springmann ruled Thursday that the loitering ban is unconstitutionally vague.
“There is no indication of how long a person must be standing or sitting, or remaining in an area, before he is in violation of the ordinance,” Springmann wrote in a 32-page opinion. “The subjective standard is not tied to any other objective criteria by which enforcement would be required to rely upon before finding a violation.”
Springmann used a practical example to illustrate her point.
“For example, the YMCA in Hartford City, which is a child safety zone, is within 300 feet of a grocery store and a restaurant. Normal community activity would include sitting at a table in the restaurant, or even sitting in a car waiting for a take-out order,” the judge wrote. “Both restaurants and parking lots are included in the definition of a ‘public way’ where loitering (sitting idly) is prohibited. Whether sitting in the restaurant is a violation of the ordinance depends on how a police officer would subjectively choose to characterize the purpose.” (Parentheses in original.)
After the ACLU filed the lawsuit in 2015, Hartford City amended its definition of “loiter” to “remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.”
But Springmann ruled that the intent of the sex-offender registry ordinance – public safety – does not offset its unconstitutional effects.
Ordinance 2008-01, she said, is “so punitive in effect that it has been transformed into a criminal penalty despite its regulatory intent.”
“Considered as a whole, the ordinance imposes substantial affirmative restraints on [Valenti] that he did not have fair warning of when he committed his offense in 1988, or was convicted in 1993,” the judge wrote.
“Whether a person who is remaining within 300 feet of a Child Safety Zone is attempting to ‘locate’ a ‘potential victim’ would invite police officers to guess at the person’s intent, potentially without the benefit of any action other than sitting in proximity to children,” Springmann said. “The ordinance thus fails to provide adequate guidance and authorizes arbitrary and discriminatory enforcement.”
Thursday’s ruling only applies to Hartford City’s loitering provision and does not enjoin all enforcement of the sex-offender registry in Indiana.
“It is only the inclusion of the loitering prohibition that creates a due process violation. Thus Hartford City is enjoined from enforcing it against plaintiff Valenti. The remainder of the ordinance has not been challenged, and remains intact and enforceable,” Springmann ruled. ..Source.. by MARCIE SHIELDS
December 5, 2016
Two Federal Courts Call BS on Banning Sex Offenders From 'Child Safety Zones'
Rulings deem Indiana and North Carolina laws unconstitutionally vague and unjustifiably wide.
A couple of years ago, Brian Valenti, a registered sex offender who lives in Hartford City, Indiana, received a citation for sitting in his brother's car. The car was parked outside his brother's house, which happens to be across the street from a school. By sitting in it, Valenti violated a local ordinance prohibiting anyone convicted of a sex offense involving a minor from entering a long list of "child safety zones"—including schools, parks, libraries, swimming pools, athletic complexes, movie theaters, and bowling alleys— or "loitering" within 300 feet of those locations. Because of Hartford City's ordinance, Valenti, who committed a sex offense 28 years ago in California, was not allowed to visit his daughter's school, go to the library with her, visit local parks, join the YMCA, enroll his daughter in activities there, go bowling with his family, or vote at his designated polling place.
Under a similar law in North Carolina, registered sex offenders whose crimes involved minors or violence are forbidden to venture within 300 feet of "any place intended primarily for the use, care, or supervision of minors." They are also required to stay away from "any place where minors gather for regularly scheduled educational, recreational, or social programs." Five sex offenders who challenged the law said it prevented them from attending church, visiting their children's schools, participating in adult softball games, going to events at the North Carolina State Fairgrounds, eating at fast food restaurants with play areas, attending town council meetings held near a library, and visiting the state legislature, which meets in a building near a natural history museum that attracts children. The plaintiffs also worried that they were committing felonies by working on construction projects within a 300-foot zone or by going shopping or commuting to work, since they could easily drive by forbidden locations on the way. ..Continued.. by Jacob Sullum
December 2, 2016
Hartford City sex offender ordinance unconstitutionally vague
See earlier post HERE12-2-16 Indiana:
A 2008 Hartford City ordinance that restricted registered sex offenders from entering or loitering within 300 feet of broadly defined “child safety zones” is unconstitutionally vague, a federal judge has ruled.
Brian Valenti challenged a 2008 ordinance after he moved to the Blackford County community in 2014 with his wife and minor child. Valenti was required to register as a sex offender for his 1993 California conviction of a sex offense involving a child under the age of 14.
The Hartford City ordinance, which was amended in 2015, imposed a fine of up to $200 per offense for registered sex offenders who entered or loitered within 300 feet of parks, schools, public libraries, arcades, amusement centers, swimming pools, child care facilities, athletic complexes, crisis centers or shelters, skate parks or rinks, movie theaters, bowling alleys, scouting facilities or the office of protective services.
Valenti argued the local ordinance caused him to curtail activities with his child. He said he was given a citation while a passenger in his brother’s car while the car was parked at his brother’s house across the street from a school.
Judge Theresa Springmann in the District Court for the Northern District of Indiana, Fort Wayne Division, granted Valenti summary judgment in part, finding the ordinance violates Indiana’s ex post facto law as applied to Valenti, and that it’s unconstitutionally vague.
The ordinance “encouraged arbitrary enforcement by failing to describe with sufficient particularity what activity violated the ordinance” and was “unconstitutionally vague on its face,” Springmann wrote in an order issued Thursday.
Though Springmann wrote that she was troubled by the amended ordinance that sought to clarify who could be subject to fines and further define prohibited loitering, she stopped short of striking the revised city code. She did forbid Hartford City, though, from ordering fines under the amended ordinance, finding its language also violates the 14th Amendment.
Springmann said a future conference will be set to consider Valenti’s damages. The case is Brian Valenti et al. v. Hartford City, Indiana, 1:15-cv-63. ..Source.. by IL Staff
February 2, 2016
County to pay $40K to injured inmate, child molester
See earlier: Disabled sex offender allowed to sue sheriff2-2-16 Indiana:
The Tippecanoe County Sheriff's Office will pay $40,000 to settle a federal lawsuit filed in 2014 by a disabled inmate, an attorney said Monday.
A settlement was reached last month to cover medical treatment and legal fees incurred by Anthony Scott Overla, a convicted sex offender whose right leg is amputated below the knee, said Doug Masson, an attorney who represents Tippecanoe County.
Despite his disability, Overla was assigned a top bunk at the county jail, according to a civil complaint filed by the American Civil Liberties Union of Indiana. After making dozens of oral complaints, the suit alleges, jail staff never provided Overla with the proper grievance forms. As a result, he sustained an injury March 31, 2013, jumping from the top bunk, which wasn’t equipped with a ladder, according to the suit.
Masson emphasized that last month's settlement isn't an admission of guilt, but an avenue to avoid a jury trial and a larger settlement cost. Although jail staff contend they weren't aware of Overla's situation and there is no physical documentation of his requests, "none of the lawyers were there and neither was the court.
"So you just have to make the settlement decisions based on the idea that the jury could find either side credible and order a verdict," Masson said.
During court proceedings, Masson argued that Overla was ineligible to proceed with the lawsuit because he failed to exhaust all administrative remedies available at the jail. But U.S. District Judge Joseph Van Bokkelen found that Overla had likely done everything he could to complain about his living conditions.
Kenneth Falk, legal director for the ACLU of Indiana, was not available for comment Monday.
Overla was incarcerated at the time of his alleged injury for failing to register as a convicted sex offender. He pleaded guilty and was sentenced to six years in the Indiana Department of Correction, with an earliest possible release date of September.
But he was arrested again in November for failure to register, and he was sentenced to serve the remainder of his probation in the DOC. ... ..Source.. by Joseph Paul
November 11, 2015
Indiana judge dismisses suit targeting new sex offender law
INDIANAPOLIS (AP) — An Indiana judge has dismissed a lawsuit that argued a new state law wrongfully barred two registered sex offenders from attending church services because their churches have schools on their grounds.
The American Civil Liberties Union of Indiana and the state's attorneys sought the dismissal after the state determined the law does not in fact bar the two men from attending their respective churches.
An Elkhart County judge dismissed the suit Oct. 22 and ordered the two sides to pay their own costs and attorneys' fees.
The ACLU of Indiana argued that the law that took effect in effect in July and bans many sex offenders from going onto school property at any time also barred the men from attending their churches because they have schools on their grounds. ..Source.. by The News Dispatch
ACLU: RFRA must let sex offenders worship at churches with schools
7-2-2015:
The American Civil Liberties Union of Indiana filed Wednesday what appears to be the first lawsuit that invokes the state's new new Religious Freedom Restoration Act.
Their clients? Registered sex offenders who believe their religious freedom is being denied by another new law that bans them from attending any church located on the same property as a school.
"This is a prime example as a place where people's religious rights are being burdened, and therefore under RFRA the state has to justify that," said ACLU of Indiana legal director Ken Falk. "It makes no sense to ban people on a Sunday if there are kids there on a Thursday."
For example, that would be the case with church preschools or parochial schools with adjacent churches.
Serious sex offenders include sexually violent predators and those convicted of crimes such as child molestation, possession of child pornography or sexual misconduct with a minor.
The lawsuit was filed in Elkhart Superior Court, on behalf of two unnamed sex offenders, against the prosecutors and sheriffs of Allen and Elkhart counties. When reached by The Indianapolis Star, the sheriff's departments declined to comment.
Indiana's new religious freedom law, which went into effect Wednesday, says if the government imposes an undue burden on the religious rights of individuals, businesses or religious organizations, it must prove a compelling interest and that it is using the least restrictive means possible.
"I think this is exactly the kind of case RFRA was about," said Indiana University law professor David Orentlicher. "You've got this sex offender law that's designed to protect children. It wasn't passed with the intent to interfere with religious practice, but it turns out there are a fair number of schools on church grounds. These people now can't go to pray without running afoul of the law."
Some in Indiana — including the ACLU — opposed the state RFRA, arguing that the law would allow discrimination against lesbians, gays, bisexuals and transgender individuals. That led to a "fix" to the law to clarify that an RFRA defense could not be used to trump local and state civil rights laws.
But with the heated debate over how RFRA would apply in wedding services for same-sex couples, "what got lost was there are a lot of good reasons for these statutes," Orentlicher said.
"That's what this case should remind us — that RFRAs can be misused, but we don't want to throw the baby out with the bathwater," he added.
Falk of the ACLU said the lawsuit uses RFRA "as it was originally contemplated" to protect religious freedoms.
"We're not going to pretend it doesn't exist now," Falk said. "It does exist. The legislature said it wants to protect religious liberties, and that's exactly what we're trying to do."
Still, state Senate President Pro Tempore David Long, a Fort Wayne Republican, criticized the ACLU for the lawsuit.
"The ACLU used to be a staunch supporter of religious liberty," he said in a statement. "Now they've reduced themselves to making a mockery of it. On top of this, they also support endangering our children while championing the rights of sex offenders. It's a sad day for the ACLU."
State Rep. Christina Hale, D-Indianapolis, co-sponsored the law prohibiting sex offenders from school grounds and reacted to the ACLU lawsuit by slamming the religious freedom law: "Clearly nobody had thought through what all the negative ramifications might be for people."
"I think that we have to keep in mind that Indiana is one of the very worst states in the nation when it comes to protecting our children from sexual violence," she added, citing national health statistics and recidivism rates. "We're second only to Wyoming. And we have to do whatever it takes to protect our kids. ... Any time we can keep a sexual predator away from a child, that's a small victory."
But Orentlicher made the point that the case may not be so simple. For sex offenders who have served their time, religion may be instrumental to their rehabilitation, he said: "If your goal is to protect kids, with these people, you want to maximize their chances for rehabilitation."
As an example, the lawsuit notes that one of the unnamed plaintiffs had his parole officer approve the church he chose after being released from jail. The lawsuit says he is now "deeply spiritually involved" with the church — one that doubles as a preschool and is adjacent to a religious school.
In addition, the ACLU argues for sex offenders to have access to the worship services when schools aren't in session. And the lawsuit says it's "not rational" that serious sex offenders can still go to church services where children are present if there's no school attached.
Orentlicher said other states, such as Missouri, have carved out religious exemptions to allow sex offenders to attend church when school is not in session.
"They're just saying, 'Let us pray when the kids aren't there,' " Orentlicher said. by Stephanie Wang
November 6, 2015
Indiana Supreme Court scrutinizes sex offender registration requirement
INDIANAPOLIS | Indiana law, since 2006, has required sex offenders who must register in their home states to also register in Indiana if they relocate to the Hoosier State.
But does a new Hoosier who committed a sex crime elsewhere prior to 2006 still have to register in Indiana? Or is that an unconstitutional "ex post facto" law that imposes a punishment that didn't exist when the crime was committed?
The Indiana Supreme Court wrestled with those questions during oral arguments in two cases Thursday, including one that could put a Merrillville man at risk of three years in prison for failing to register as a sex offender.
Sidney Tyson, now 27, was adjudged a juvenile delinquent as a 13-year-old in Texas for sexually assaulting a 10-year-old. He served two years probation and was required to register as a sex offender in Texas until 2014.
Tyson moved to Indiana in 2009.
In 2012, he was stopped by Merrillville police for driving a vehicle with an expired license plate and ultimately arrested for failing to register as a sex offender in Indiana, as required by the 2006 statute.
His trial on that Class D felony charge is on hold while his challenge to the law is pending. In March, the Indiana Court of Appeals ruled 3-0 that Tyson's trial should go forward.
At the Supreme Court, Tyson's attorney, Kristin Mulholland, argued it is unconstitutional for Indiana to require Tyson to register since his 2002 conviction preceded the 2006 law mandating registration of out-of-state sex offenders who move to Indiana.
"You need to look at the date the offense was committed to determine if the law is ex post facto," she said.
However, Deputy Attorney General J.T. Whitehead countered that what matters is the date Tyson moved to Indiana.
In 2009, Tyson had plenty of notice that under the 2006 Hoosier law he would be required to register in Indiana until his Texas registration requirement ended, Whitehead said.
That argument appeared to resonate with Justice Mark Massa, who suggested Indiana's registration requirement for newly-arrived sex offenders is no more burdensome than their obligations to their home states.
But Justice Robert Rucker, a Gary native, seemed to believe the Indiana law clearly is being applied retroactively and further analysis is needed to determine whether it is unconstitutionally punitive.
Chief Justice Loretta Rush and Justice Steven David both wondered whether that will require Indiana courts to review the convictions of every sex offender who moves to the state.
Or, if the law is found to be ex post facto, whether Indiana will become a haven for unregistered sex offenders.
Separately, Mulholland claimed the Indiana registration requirement only applies to juvenile sex offenders who were at least 14 years old at the time of their crimes, and as a result would not apply to Tyson.
Whitehead told the five justices that is a misreading of the statute, and since Tyson came to Indiana after turning 14 the out-of-state registration requirement absolutely applies.
A ruling by the state's high court is expected early next year. ..Source.. by Dan Carden
September 11, 2015
Judge will order Zach Anderson to be removed from sex offender registry
ST. JOSEPH - A Berrien County Judge will issue an order to remove Elkhart teen Zach Anderson from the sex offender registry as part of the re-sentencing in his underage sex case.
Anderson appeared in court before Judge Angela Pasula Friday morning in St. Joseph for a bond hearing after his sentence was vacated earlier this week. Berrien County Judge Dennis Wiley originally sentenced Anderson, 19, to three months in jail, five years of probation and 25 years on the sex offender registry, along with significant restrictions to his computer access for having sex with a 14-year-old girl, who claimed in court that she told Anderson she was 17.
Now, Pasula says she will start from scratch with a new sentence for Anderson. He will be allowed to use a computer for work and education only, and Pasula says she will issue an order remove his name from the sex offender registries in Michigan and Indiana. Anderson will be removed from the Michigan registry once State Police receive the order, but the process to remove him from the Indiana registry is still ongoing.
Anderson remains banned from all social media use or contact with the victim, and will still have a curfew beginning at 9:00pm and lasting until 7:00am everyday. His bail has been set at $20,000 or $2,000 bond.
A re-sentencing hearing has been scheduled for Oct. 21 at 2:00pm at the Berrien County courthouse in St. Joseph. ..Source.. by James Fegan
September 8, 2015
Elkhart 19-year-old Zach Anderson's sentence thrown out in criminal sexual conduct case involving Michigan teen
See also: Zach Anderson officially removed from Michigan sex offender registry9-8-15 Michigan, Indiana:
Zach Anderson and his parents have been fighting what they say is an unduly harsh sentence in the case
The sentence against an Elkhart teen convicted of criminal sexual conduct for having sex with another teen in Michigan who lied about her age has been tossed, his lawyer said Tuesday.
Zach Anderson remains on the sex offender registries in Indiana and Michigan, Les and Amanda Anderson said Tuesday on the Facebook page they created to advocate for their son. “But good news today!!” they said.
The 19-year-old’s lawyer, Scott Grabel of Lansing, Mich., said the judge in the case, Dennis Wiley of Berrien County, Mich., Trial Court, vacated the sentence against his client last Thursday. He didn’t learn of the decision until Tuesday.
“He’s going to be resentenced in front of a different judge,” Grabel said by phone.
Zach Anderson pleaded guilty March 4 to misdemeanor criminal sexual conduct in Berrien County Trial Court for having sex late last year in Niles, Mich., with a teen. She said she was 17, but she was actually 14, younger than the age of consent.
He and his parents subsequently asked to withdraw his guilty plea in a bid to fight the conviction, which they say was unduly harsh. Notwithstanding the decision to toss the April 27 sentence against Anderson, Grabel, too, said he thinks Anderson remains on the sex-offender registry, though he needs to clarify that point.
As part of the sentence, Anderson was placed on the sex offender registry in Michigan for 25 years, a particular point of contention for him and his parents.
However, Anderson’s probation no longer applies, Grabel said, and he’s to return to court on Friday to re-set bond terms, pending a new sentence.
Anderson had sought leniency in the April 27 sentencing under Michigan’s Holmes Youthful Training Act. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.
Grabel, Anderson and his parents say he’s not a threat and that listing on the sexual offender registry isn’t merited. Grabel said prospects are "exceptionally good" his client will get leniency under HYTA. ..Source.. by Tim Vandenack
August 27, 2015
Controversial Sex Offender Law Being Challenged
8-27-15 Indiana:
An Indiana state law that prevents sexual offenders from entering school buildings will be challenged in court. The basis of the lawsuit argues the law inhibits certain individuals from the right to vote. The lawsuit was filed by the American Civil Liberties Union of Indiana.
While the law may seem to serve an important public interest, it could also easily be seen as an undue burden affecting a person’s constitutional rights. The aim of the original law was to prevent certain offenders from access to places where children frequent; however, children are not allowed in polling locations unless accompanied by an adult.
Opponents of the lawsuit claim sexual offenders’ right to vote is unaffected due to absentee voting. While this may seem like a logical assertion, voting via absentee ballot often requires separate applications and does not offer the in-person assistance that is available at the actual polling locations. In addition, opponents feel those convicted of sex crimes should not possess the privilege and right to be on school property. This is an interesting argument because by preventing this class of citizens from voting, fundamental rights are being directly violated.
The act of physically voting is fundamental to our rights as Americans and this law unfairly discriminates against a select class of individuals. These individuals have already paid their debt to society, and in many cases, are still doing so in the form of registering as sex offenders. It is unfair to prevent a free citizen from exercising the same rights and privileges afforded to everyone else. ..Source.. by The attorney’s at Bleile, Witte & Lape are extremely knowledgeable in the field of criminal defense throughout the State of Ohio and the Commonwealth of Kentucky. If you seek the best possible representation, hire a law firm that puts the client first and fights hard to protect their rights. Contact us today for a completely confidential consultation at 513-564-0088.
August 19, 2015
Sex offender's second suit attacks absentee ballots
8-19-15 Indiana:
Seeks class-action status in 2nd claim filed this year
Recent changes to state law prohibit sex offenders from being on school properties. Because many polling places are located in schools, or in churches with schools, state officials will allow registered sex offenders to vote by absentee ballots.
But a Blackford County man argues in a recent federal lawsuit that the absentee ballot process is “inferior” and prone to error and fraud.
The lawsuit filed Tuesday in U.S. District Court in Indianapolis names the Indiana secretary of state, individual members of the Indiana Election Commission, the superintendent of the Indiana State Police and the Blackford County prosecutor as defendants.
Plaintiff Brian Valenti is seeking class-action status for the lawsuit, which is his second this year attacking ordinances and state laws designed to keep registered sex offenders from entering school properties.
In 1993, Valenti was convicted in California of lewd or lascivious acts with a child under 14 years old. In 2014, he moved with his family to Blackford County, according to court documents.
Valenti sued Hartford City in March in the U.S. District Court in Fort Wayne over “child safety zones” created in the small city that prohibit registered sex offenders from going anyplace where children may congregate, from bowling alleys to public parks and movie theaters.
Valenti claimed in his lawsuit, filed with assistance from the American Civil Liberties Union, that Hartford City’s ordinance is vague, arbitrary, irrational and violates the due process clause of the 14th Amendment to U.S. Constitution.
He alleged that the ordinanance represents unconstitutional retroactive punishment, violating the U.S. Constitution as well as the Indiana Constitution.
Valenti’s new lawsuit, also filed with the ACLU’s assistance, takes aim at the state law that keeps registered sex offenders out of school properties.
He alleges that the absentee ballot process is inferior in many ways to traditional, location-based polling, according to court documents.
Voters must apply for absentee ballots, which must be mailed back to the election board before specific times, and the process encourages early voting, documents say.
“By voting early, absentee voters are deprived of any information pertinent to their vote that surfaces in the late stages of the election campaign, which could affect how they vote,” according to court documents.
He contends that there is no reason why his right to in-person voting should be “burdened by prohibiting him from voting in-person,” the documents say.
Valenti seeks an injunction prohibiting the law’s enforcement on Election Day; a declaration that the law is unconstitutional; and costs and fees, according to court documents.
“The right to vote is fundamental in a democracy,” said Jan Mensz, ACLU of Indiana staff attorney in a new release Tuesday. “Therefore, any attempt to impinge on that right must be justified by sufficiently weighty government interests. This statute does not meet that test.” ,,Source.. by Rebecca S. Green
August 18, 2015
Suit: Law impedes sex offender’s voting rights
8-18-15 Indiana:
HARTFORD CITY – The Indiana Civil Liberties Union of Indiana on Wednesday filed a federal class action lawsuit on behalf of a Hartford City man concerned that a change in state law might impede his ability to vote.
A new law went into effect July 1 that prohibits “serious sex offenders” from entering school property.
“One of the consequences of this is that these persons will be prohibited from voting at their designated polling place if it is located on school property,” the ACLU’s suit, filed in U.S. District Court in Indianapolis, contends.
In 1993, Valenti was convicted of “lewd or lascivious acts with a child under 14 years” in California, drawing an eight-year sentence, according to the Indiana Sex and Violent Offender Registry.
According to the lawsuit, Valenti’s crime occurred in 1988, and he has not been convicted of “any other sex offenses against children either before or after that time.”
Valenti — who moved to Hartford City in 2014 — will be required to register with local authorities as a sex offender for the rest of his life, at least so long as he remains in Indiana.
“Mr. Valenti is registered to vote and intends to vote in future elections, including the upcoming municipal election on Nov. 3,” the suit states. “The polling place for Mr. Valenti’s precinct, however, is located on school property.”
The suit — filed by ACLU attorneys Kenneth Falk and Jan Mensz — acknowledges Valenti has the option of voting by absentee, but calls that an “onerous” process.
The lawsuit also says Valenti “would like to talk to people, including electioneers and candidates, outside of polling places.”
The Hartford City man “views voting in person on Election Day as a celebration of his right to vote and... something that should be shared publicly with his community.”
Defendants in the suit are Indiana Secretary of State Connie Lawson, the Indiana Election Board, Blackford County Prosecutor Kevin Basey and Doug Carter, superintendent of the Indiana State Police.
Valenti and the ACLU filed another federal suit in March, questioning the legality of a Hartford City ordinance concerning “child safety zones.”
That suit alleges the ordinance prevents Valenti from taking his child to the local library or area parks, visiting her school or attending church. ..Source.. by Douglas Walker
August 12, 2015
Indiana sex offender's pornography ban tossed out by appeals court
Federal panel's ruling grants Indiana man access to 'legal adult pornography,' which is protected by First Amendment
A federal appeals court panel has overturned a lower court's order banning an Indiana sex offender from viewing adult pornography.
The panel of judges from the U.S. Court of Appeals for the 7th Circuit ruled Thursday that a probation requirement barring convicted sex offender Jeffrey P. Taylor of Logansport from accessing "legal adult pornography" was not supported by evidence in his criminal case.
The decision, however, has little actual impact on Taylor. His probation period ended Friday — the day after the appeals court decision was issued.
"Since the service of his sentence is over, we anticipate no further proceedings," said Chad Hunter, a spokesman for the U.S. Attorney for the Northern District of Indiana.
Still, the ruling could have an impact on similar sentencing orders in other cases.
Taylor, 46, was charged in federal court after he masturbated on two occasions during a series of Internet webcam conversations with a law enforcement officer posing as a 13-year-old girl.
He was convicted in 2012 for the "transfer or attempted transfer of obscene material to a person under the age of 16," according to court records. As a condition of his probation — by the time of his conviction, Taylor already had spent more than four years in prison — the judge imposed the no-porn condition.
"The defendant shall not knowingly view or listen to any form of pornography which contains adults engaging in sexual intercourse, oral sex, sex with objects or animals, acts of masturbation, or the lascivious exhibition of genitalia," the probation order said. "Additionally, the defendant shall not knowingly patronize or visit any such establishment or Internet site/location where the above materials are sold, or available for viewing."
But after Taylor appealed that order, the appellate panel found "the record does not support a ban on viewing legal adult pornography," the appeals opinion said.
"Adult pornography did not facilitate or lead to Taylor's offense here, and there is no evidence or finding that viewing otherwise legal pornography would increase the likelihood he would recidivate," the opinion said.
The judges noted that "adult pornography, unlike child pornography, enjoys First Amendment protections, and so we must be especially cautious when considering a ban on possessing adult pornography."
But the panel didn't slam the door completely on similar bans in other cases.
"We are not saying a court could never impose a special condition prohibiting the possession of even legal adult pornography; there may be times when a sentencing court is justified in imposing such a condition," the opinion said. "Here, however, the record does not justify the ban." ..Source.. by Tim Evans
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