Thursday, January 7, 2010

Neb. Lawsuit Filed on Sex Offender Law Lindemeier challeges constitutionality of new sex offender requirements.

North Platte attorney Bob Lindemeier filed a complaint in Lincoln County District Court seeking to permanently bar enforcement of Nebraska’s new sex offender registry laws. The lawsuit, filed Jan. 4 on behalf of “John Doe”, was granted an ex-parte order by Judge John Murphy. The order effectively enjoins the entirety of LBs 97 and 285 from going to into effect in Nebraska until a hearing can be held. The hearing is scheduled for 8:30 a.m. on Jan. 14.

“We’re saying enough is enough,” Lindemeier said of the new requirements for registrants. “There’s some real problems with the law when you have individuals who are nearing the end of their periods of having to register, and haven’t re-offended, now being told they have to continue registering.”

Lindemeier said in the lawsuit that what he referred to as the “New Act” is tantamount to making crimes greater than at the time they were committed. The lawsuit states that the New Act is punitive and constitutes additional punishment for offenders, which violates the Nebraska Constitution’s protections against double jeopardy. It also violates offender’s protection against cruel and unusual punishment, the suit said.

By requiring offenders to authorize law officers to search their electronic devices at any time with no cause, Lindemeier wrote, the New Act also violates constitutional rights barring unreasonable search and seizure.

Questions of due process are also raised. Lindemeier wrote that the New Act is vague and fails to define who is subject to the new regulations, what information is required to be reported, and other requirements. The suit states, “The New Act violates Substantive Due Process by infringing on the fundamental right to defend one’s reputation, the integrity of a family, right to travel, right to earn a living, and the right to privacy of information, without adequate justification.”

Another constitutional concern is intrusion on freedom of speech, he said. Lindemeier wrote that the New Act suppresses and criminalizes speech in advance on social networking sites, instant messages, and chat rooms.

Legislative action that alters previous judicial orders constitutes a violation of the separation of powers, according to the suit's seventh cause of action.

By discarding the old sex offender classifications system, the New Act effectively classifies all offenders as Tier III (high-level to re-offend), Lindemeier said in the lawsuit. The New Act also treads upon plea agreements, according to the action.
“John Doe” entered a plea agreement, Lindemeier wrote, with the understanding that the plea would lead to the likelihood of a lesser sentence and only having to register for 10 years. If Doe had known that he would be required to continue registering for an additional 15 years, the suit said, he likely would have not plead and contested the whole matter.

Lindemeier is seeking a permanent injunction to prevent the New Act from being enforced.

Summary of new act

The requirements for registration of sex offenders were changed in order for Nebraska to become compliant with the 2006 federal Adam Walsh Act, according to the Nebraska State Patrol website. Under the amended law, in addition to current registration data, offenders would be required to submit email addresses and other digital account information (Facebook and MySpace accounts, etc.) along with school information, professional licenses or certificates, travel and immigration documents, a DNA sample, and palm prints, among other things. Failure to report all Internet communication identifiers, as well as failure to report any changes to those identifiers within 24 hours, could constitute a felony offense, according to the website.

The durations of required registration will also change. Offenders convicted of misdemeanor offenses must register for 15 years, felony offenders for 25 years, and aggravated or repeat offenders for life. Currently, offenders must register for either 10 years or life.

All currently registered sex offenders and previously registered offenders must comply
(retroactive), the website said.
The new system will junk the currently-utilized “risk level classification” and inform the community of all registered sex offenders, not just the ones considered at high risk to repeat, according to the website. With those changes come alterations to the verification process too. Offenders reporting for 15 years must verify their addresses in person annually; 25 year reporters bi-annually and life reporters quarterly. The law also expands registration requirements to all offenders convicted of sex crimes, not only those considered at high risk to re-offend.

Lindemeier’s lawsuit names the following parties as defendants: State of Nebraska, Nebraska State Patrol, Attorney General Jon Bruning, Col. Bryan Tuma, Superintendent of the Nebraska State Patrol, Lincoln County Attorney Rebecca Harling, County Sheriff Jerome Kramer, North Platte Police Chief Martin Gutschenritter.