Fifth Circuit Tosses Child Porn Conviction, Holds Image Wasn’t ‘Patently Offensive’

Whether a nude image of a minor is considered illegal depends on whether it’s “obscene.” But what does that mean? For decades, what has amounted to obscenity has never been clearly established by the courts. The Supreme Court did set some guidelines for obscenity cases – 50 years ago – but it still left the door open to different interpretations. This has resulted in numerous challenges to obscenity cases, including child pornography cases, with the outcome hinging largely on where the case lies and what society there thinks is obscene.

That’s why it was a surprise to me when a divided panel of the U.S. Court of Appeals for the Fifth Circuit recently held that a depiction of a minor in a sexual setting was not obscene, tossing the conviction and the attached 24-year sentence. That court is one of the most conservative in the country. Here’s how it happened.

The case arose when law enforcement found numerous drawings and stories that the defendant had been collecting and trading online for almost 30 years. The grand jury eventually charged a total of nine counts, and a jury convicted him of all those counts at trial. He was sentenced to 40 years in prison, by judge Walter David Counts III in the Western Dist. of Texas, and he appealed.

On appeal, the Fifth Circuit tossed one conviction for possession of a drawing of a minor engaged in solo sexual activity. A drawing of a nude minor is illegal under federal law if it:

depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value.

18 U.S.C. § 1466.

The Court cited the Supreme Court’s definition of “obscenity” in Miller v. California, 413 U.S. 15 (1973), and found that this particular drawing was not illegal. There are three factors a court must consider, under Miller, in deciding whether a depiction is “obscene”:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appealed to the prurient interest,

  • whether the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed, and

  • whether the work, taken as a whole, lacked serious literary, artistic, political, or scientific value.

The Fifth Circuit concluded that, while the other convictions involved minors being forced to perform sexual acts, this count of conviction did not:

[T]he charged image in Count 1 is a simple black and white pencil or charcoal drawing with minimal detail depicting an adolescent girl alone, [performing a solo sexual act]. Importantly, unlike the children depicted in the images in Counts 8 and 9, there is no indication that the subject of the image in Count 1 is being forced to perform a sexual act. The drawing is simple and utterly lacking in violent depictions. Our independent constitutional review of the image charged in Count 1 leads us to the conclusion that it is not obscene under Miller.

The takeaway is that a conviction under § 1466 requires there to be some use of force or violence in the depictions, coupled with the sexual activity. A mere depiction of a nude minor, even if sexually suggestive, is not enough, the Fifth Circuit held in this case. The Court remanded the case back to the district court to dismiss the conviction. See United States v. Arthur, 2022 U.S. App. LEXIS 28430, __ F.4th __ (5th Cir. Oct. 12, 2022).

While this result may not be helpful to the defendant in this case, since he has several other charges that could still amount to a lengthy prison sentence, it’s rather instructive for those charged under this offense on exactly what’s required for the government to obtain a conviction. Convictions for drawings of nude minors has always been a questionable topic, but I think this case sets a higher bar for the government to clear when going after these kinds of cases. Mere nudity and sexual activity in the drawing isn’t enough.

Doe v Swearingen: Federal Court Revives Lawsuit Against Florida’s Sex Offense Registry

Otober 21, 2022: Doe v. Swearingen, No. 21-10644 (11th Cir.)

Reviving a lawsuit against Florida’s sex offender registry, the U.S. Court of Appeals for the Eleventh Circuit (overseeing the federal courts in Florida, Alabama, and Georgia) held on Friday that the federal district court in the Southern District of Florida’s dismissal of the lawsuit as “untimely filed” was wrong and sent the case back to the district court for a ruling. Here’s some of the Eleventh Circuit’s opinion, followed by the full opinion in pdf format for downloading.

The Court began with a little background:

The Commissioner of the Florida Department of Law Enforcement maintains a sex-offender registry that lists identifying information about registrants. The Commissioner obtains this information directly from the registrant either when he registers, which he must do in person at least twice a year, or when any of his registration information changes, which triggers an in-person report that must take place within forty-eight hours. The plaintiffs here, whose offenses predate the registry, have been subject to this reporting structure since the registry law was enacted in 1997.

Over the past twenty-five years, however, the Florida legislature amended the registry law more than a dozen times. The information collected by the Commissioner now ranges from basic identifying information like a registrant’s permanent address to details like the license tag number of his roommate’s car. Any change to this information triggers a registrant’s duty to report, and failure to comply is a third-degree felony. 

The plaintiffs allege that the reporting requirement became intolerable in 2018, when Florida again amended the registry law. Registrants are now required to report any absence from their permanent residence, for any reason, that lasts more than three days. And the Florida legislature imposed a new mandatory-minimum term of supervision for violations of the registry law. The plaintiffs sued the Commissioner of the Florida Department of Law Enforcement in his official capacity, contending that the registry law’s previously manageable burdens were rendered unconstitutional by the 2018 amendments.

The constitutionality of the registry law is not before us- we must determine whether the plaintiffs’ claims are timely. The plaintiffs sued to remedy various injuries, some caused by the 2018 amendments and some arising from other provisions that have been on the books for several years. The district court dismissed the plaintiffs’ claims, agreeing with the Commissioner that the plaintiffs’ injuries stem from one-time acts: the enactment of each provision that allegedly injures them. Therefore, under the applicable statute of limitations, they were required to sue within four years of the date that each provision that imposed the challenged burdens was enacted.

We disagree. Although the plaintiffs’ injuries undoubtedly originated when the challenged provisions permitted the Commissioner to first injure them, the district court failed to consider  whether the plaintiffs, who are subject to the registration requirements day after day, were continually injured by the requirements within the statutory period.

The statute of limitations that the district court relied on had a four-year limit for any claims. The time limit for filing a federal lawsuit is based on whatever the time limit is under state law for the same type of claim. The Court then analyzed how the constant requirement that the plaintiffs adhere to the harsh Florida sex offender registry was an on-going injury that rendered their lawsuit timely-filed:

Because the enforcement of an unconstitutional statute causes an injury, a person can challenge a statute enacted long ago based on a new threat of enforcement; conversely, he cannot challenge a statute enacted yesterday if there is no threat of enforcement against him today. 

The Court ended with this conclusion, which allowed the lawsuit to continue in the district court:

We believe, however, that these time-barred claims are saved under the continuing violation doctrine. The plaintiffs argue that the Commissioner’s enforcement of certain provisions continues to harm the plaintiffs’ reputations on an ongoing basis. Because the Commissioner sends officers to the plaintiffs’ neighborhoods to verify where they live on an ongoing basis, the plaintiffs contend that this enforcement sends a continuing signal to their neighbors that they are dangerous people, inflicting reputational harm. The plaintiffs further allege that the Commissioner must continue to take these actions regularly to comply with his duties under the statute.

Brother of Little Rock Mayor Required to Register as Sex Offender After Stealing Car with Kids in it

Zen Law Guy

The brother of Little Rock, Arkansas, mayor Frank Scott Jr. was ordered by the Arkansas Supreme Court to register as a sex offender for stealing a car that had two kids in it, even though there was no sexual motive and no harm done to the kids.

Darrell Lamont Scott went on a four-hour crime spree in July 2020. Authorities said he vandalized the property of his neighbors and got into a drunken car wreck, before stealing a truck and going shoplifting at the local mall. The truck was parked outside a Little Rock hospital with two kids in it, ages 4 and 11, their aunt inside the hospital using the bathroom. She got a text from the older child that a man was driving them to the mall. That man, Darrell, even got on the phone and reportedly told the aunt, “Don`t worry! I`m the mayor`s brother.”

The cops…

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What’s it like inside a prison bus?

Ever wonder what it’s like inside a prison bus? While they all look a little different, the common theme is dirty, overcrowded, and uncomfortable. Here’s a look inside a prison bus operated by a private, for-profit prison company.

A look inside a prison bus

Inmates transported in these buses are shackled, with their hands cuffed to a chain around their waist and their feet chained together. Sometimes a black box is put around the handcuffs to prevent a prisoner from moving their hands at all. It’s called being “black boxed” and it’s painful. You can’t eat, drink, or use the toilet properly — yet they will give you food and water and offer a toilet on the bus.

So, this video is not a true representation of what it’s like in a prison bus because we were just using it as a way to evacuate Tampa due to Hurricane Ian Sept 27, 2022.

Doing Time as a Sex Offender: Residency Restrictions for Sex Offenders

Numerous studies show that laws restricting where sex offenders may live have done nothing to make children safer, and experts say these proximity laws, as they`re called, have actually increased the chances a sex offender will reoffend. Here we take a look at the current status of sex offender residency restrictions.

Laws Restricting Where a Sex Offender Can Live

Many states have laws restricting where a sex offender may live, often being some arbitrary distance from places where children gather. See United States v. Rudd, 662 F.3d 1257 (9th Cir. 2011) (reviewing some of these laws). Probably the most notorious state for its sex offender laws is Florida, where a qualifying sex offender cannot live within 1,000 feet of any child care facility, park, playground, or school. Fla. Stat. sec 775.215(1). This distance is measured in a straight line from the person`s property line to the property line of those locations. New York`s law is similar but says that a sex offender may not “enter” school grounds, which it defines as 1,000 feet around the school`s property line. N.Y. Exec. Law sec 259(c)(14).

Some states, like FL, have a statewide sex offender residency restriction, but also allow local municipalities to create their own restrictions that exceed state law. For example, Florida has numerous counties where the residency restriction is 2,500 feet, or half a mile. See Pasco Co. Ords. 66-67, et seq.

Even where there is no statewide restriction, local ordinances might still limit where a sex offender may live. See, e.g., Doe v. County of L.A., 2015 U.S. Dist. LEXIS 200109 (C.D. Cal. Mar. 13, 2015) (L.A. County`s 300-foot ordinance), Valenti v. Hartford City, 225 F. Supp. 3d 770 (N.D. Ind. 2016) (explaining an Indiana city`s 300-foot ordinance).

The be clear, there is no federal 1,000-foot rule for sex offenders. With that said, federal judges may restrict where a person may (or may not) live while on supervised release. 18 U.S.C. sec 3563(b)(13). But this restriction must “further the purpose of the defendant`s supervised release” and be “no greater than necessary” in doing so. United States v. Hernandez, 510 Fed. Appx. 591 (9th Cir. 2013). Even if a federal judge imposes the same residency restriction of the state where the person will live, this is not a valid reason for supervised release purposes. The person might move to another state without a residency restriction, and that would make the judge-imposed restriction unreasonable. See United States v. Collins, 684 F.3d 873 (9th Cir. 2012).

Not Every Sex Offender Qualifies Under the Residency Restrictions

In New York, only level three sex offenders have the statewide 1,000-foot rule. N.Y. Exec. Law sec 259(c)(14). And in Florida, not every sex offense qualifies: The victim must be younger than 16, and the offense (even if out of state) must match those listed in the statute. Fla. Stat. sec 775.215(3).

Most states also limit the restriction to offenses that occur after the date the restriction is enacted to avoid an ex post facto violation, the part of the U.S. Constitution that forbids retroactive punitive laws. See, e.g., Does 1-5 v. Snyder, 834 F.3d 696 (2016) (declaring Michigan`s retroactive sex offender residency restriction unconstitutional).

Some states, but not all, also “grandfather” in sex offenders who were living in an area before the restriction was created, and some also don`t require a sex offender to move if a forbidden location pops up by their house. See, e.g., Fla. Stat. sec 775.215(2).

Being Homeless as a Sex Offender

Supreme Court Justice Sotomayor has voiced her concerns that residency restrictions on sex offenders can lead to homelessness, saying New York`s “within-1,000-feet-of-a-school ban makes residency for [sex offenders] practically impossible in New York City.” Ortiz v. Breslin, 142 S. Ct. 914 (2022) (statement of Sotomayor, J., respecting denial of certiorari). The Rudd court also had the same concerns about residency restrictions:

Research suggests that residency restrictions decrease employment opportunities for offenders and increase transience and homelessness.

To deal with homeless sex offenders because of residency restrictions, some state have turned to keeping them in prison until they can find suitable housing. Thankfully, courts have struck down such laws. See Ortiz (collecting cases). In states where sex offenders are allowed to be homeless, they are closely monitored. Fla. Stat. sec 1943.0435(b)1, 2 (requiring registry updates every 30 days for homeless sex offenders).

Moving or Traveling as a Sex Offender

The Supreme Court has held that moving to a location that`s not covered by the Sex Offender Registration and Notification Act (SORNA) is not a violation of federal law. Nichols v. United States, 578 U.S. 104 (2016). In that case, a sex offender moved from Kansas to the Philippines and the government charged him with failure to register under SORNA. The court, however, overturned the conviction because the Philippines wasn`t a “jurisdiction” under SORNA. Had he moved to another state and not registered, that would have been a SORNA violation.

But that`s federal law. Going back to Florida, the most restrictive state, the sex offender registry requires a 48-hour notice when someone intends to move to another state or country. If they change their mind, they must let the state know within 48 hours or it`s a second-degree felony (up to 15 years in prison). Fla. Stat. sec 1943.0435(7), (8).

A sex offender in Florida who wants to travel outside the country for more than 4 days, must let the state know “at least 21 days before” the date of travel, or “as soon as possible” if it`s sudden. They must provide departure dates and times, and flight or cruise information, plus the state notifies local authorities at the destination. Id. This means it may not be a violation of federal law to leave a state, like Florida, but it`s surely a violation of state law.

Sex Offenders Living with Others

People, even sex offenders, have a “fundamental right to familial association.” United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012). In that case, the court held that a sex offender could live with his children, even though he wasn`t married to their mother.

But there are exceptions to the rule. In McClamma v. Remon, 561 Fed. Appx. 787 (11th Cir. 2014), the federal court of appeals held that the right to be with family is not an “absolute” right. The probation officer in that case had applied a no-contact rule for all children, including the sex offender`s own children. The court held that this didn`t violate any “clearly established” rule by the Supreme Court. However, in Doe v. Lima, 270 S. Supp. 3d 684 (S.D.N.Y. 2017), a federal court held in a similar case that a complete ban on a sex offender`s children, without less-restrictive alternatives, violated “well-established” law. Both of these cases are instructive on how to challenge such a restriction.

Residency Restrictions Increase the Risk of Re-Offense by Sex Offenders

It`s one thing to say that residency restrictions have proven to do nothing to protect children from sex crimes, but it`s quite another to say that these restrictions have been shown to increase the risk of a sex offender reoffending against a child. Justice Sotomayor cited some studies in her statement in Ortiz and made this point:

Scholars have explained that by banishing returning individuals to the margins of society, residency restrictions may lead to homelessness, unemployment, isolation, and other conditions associated with an increased risk of recidivism.

Citing even more studies, the court in Rudd extensively criticized the negative effect of residency restrictions on sex offenders:

There remains significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism.

More specifically, the Minnesota Dept. of Corrections looked at 224 sex offenses committed by sex offenders and found that not one of them would have been deterred by a residency restriction. [1] And when Jacksonville, FL, increased its residency restriction to 2,500 feet, a study showed it did absolutely nothing to curb sex offenses against children there. [2]

Public Support for Residency Restrictions on Sex Offenders

The public overwhelmingly supports residency restrictions on sex offenders, despite the mountain of evidence showing that they don`t do anything to protect children from sex offenses. In her book Sex Crime, Offenders, and Society, Professor Christina Mancini cites several studies she conducted with other scholars that showed 82% of Florida residents supported residency restrictions, and over 80% of Michigan residents supported them.

IN CONCLUSION, despite the fact that residency restrictions on sex offenders do more harm than good, the public embraces them and sex offenders must be aware of them. It`s critical that sex offenders understand these laws, lest they end up in prison.

Footnotes:

[1] G. Duwe, Residency Restrictions and Sex Offender Recidivism: Implications for Public Safety, 2 Geography & Pub. Safety 6, 7 (May 2009).
[2] Nobles, M.R., et. al, Effectiveness of Residency Restrictions in Preventing Sex Offense Recidivism, Crime and Delinquency, 58, 491-513 (2012).

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