Federal Court Allows Case Challenging Constitutionality of Idaho’s Sex Offender Registry to Proceed

Ruling casts doubt on the constitutionality of registration for thousands of Idahoans.

BOISE – Today the federal district court for Idaho allowed Does v. Labrador, a lawsuit challenging the retroactive application of Idaho’s Sexual Offenders Registration Notification and Community Right-to-Know Act (SORA), to proceed. The ruling, issued by federal Judge David Nye, questioned whether Idaho’s sex offender registration scheme has become so onerous that it amounts to punishment. The ex post facto clause of the constitution prohibits retroactive punishment for crimes.  

“Today’s ruling recognizes that the state cannot change the terms of the punishment for a crime years after that person has been sentenced,” said Matthew Strugar, attorney for the challengers. “Year after year, the Idaho legislature has ratcheted up the restrictions and extended the duration of sex offender registration. Today’s ruling is in line with other recent court orders finding that such increased restrictions amount to punishment, including a Montana Supreme Court decision earlier this month.”

The plaintiffs in this case accepted plea agreements to sex offenses between 1988 and 2004. During that time, the sex offender registry was mostly just a law enforcement database and offenders were only made to register for ten years. By repeatedly amending SORA, Idaho has transformed the law from a list of convictions in a police database to today’s complex system of reporting and control. The law now bans registrants from living, working, or being in many areas; restricts when they can travel; hinders them from maintaining normal family relationships; requires them to frequently report to law enforcement in person; and subjects them to a vast array of state-imposed restrictions that encompass virtually every facet of their lives. Today’s ruling allows the challengers to prove that the restrictions amount to unconstitutional retroactive punishment.

The court’s order can be accessed here.

Court Denies City's Attempt to Censor Police Accountability Website

This is one of the wilder cases my office has been involved in. Here’s the setup. A journalist with Knock LA, Ben Camacho, made a public records request for roster information on LAPD officers, including their headshot photographs. The City denied his request, he sued, and the City agreed to settle with him. It agreed to provide roster and photographs for all LAPD officers except undercover officers. And they gave him a flash drive with those files

Since they’re public records, Camacho shared them, including with the Stop LAPD Spying Coalition. The Coalition then used those records to create a searchable database of LAPD officers: Watch the Watchers.

The police union hit the roof. The called the City’s own release of public records a “leak.” It cried that every officer in on the force was in danger if they can’t operate as a secret police force. It claimed that every police officer is essentially undercover because they could get an undercover assignment in the future. And they sued the City demanding that the City file suit against Camacho and the Stop LAPD Spying Coalition to censor the website and destroy their copies of these public records.

The City then decided to carry the police union’s water. It brought suit against Camacho and the Coalition demanding they “return” the City’s “property” and destroy all copies of the records.

The problem is, these records are already everywhere.

My office, along with the Law Office of Shakeer Raham, represents the Coalition. This morning we succeeded in defeating the City’s request for a temporary restraining order against maintaining the website or further “transferring” the photographs. We also file an anti-SLAPP motion asking the Court to strike the entire lawsuit as one seeking to punish the Coalition for its critical speech and advocacy against the LAPD.

I would try to link the media that has covered this story, like I typically do, but there have simply been too many stories on this. I’ll update this site with any further developments.

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Fifth Circuit Declares Mississippi Sodomy Prohibition Unconstitutional

In a fight my office has been litigating since 2015, the Fifth Circuit Court of Appeal today declared Mississippi’s “Unnatural Intercourse” (sodomy) statute unconstitutional.

Mississippi’s Unnatural Intercourse law purports to make it illegal for anyone to have oral or anal sex in the state. While modern day prosecutions are rare or non-existent, the state continues to insist that the law is still valid. And it continues to make approximately 30 people register as sex offenders for convictions from the 1970s, 1980s, and 1990s.

Today’s ruling from the Fifth Circuit confirms that my office has been saying since 2015: Mississippi can no longer cling to its homophobic, antiqued law. It is unconstitutional and has been for two decades. Enough is enough.

Court Stops Harassment of Journalist Who Reported on Celebrity Divorce and Custody Proceedings

Today the Los Angeles Superior Court stopped an attempt by a celebrity musician to drag a journalist into court to reveal her sources in a celebrity divorce case.

Queens of the Stone Age frontman Josh Homme is going through a tough divorce from Brody Dalle, frontwoman of the Distillers. A judge ordered their children to go to a “reunification camp” with Homme and when one of the kids refused to get in the car with Homme on the sidewalk outside the courthouse, someone videotaped it. It was a scene. That source then provided the video to a well-known blogger and advocate who posted it as part of a longer piece criticizing these “reunification camps.”

In response, Homme hit the journalist with five subpoenas trying to force her to reveal her source for the video. And when the First Amendment Coalition tried to reason with Homme’s attorneys, informing them that both state and federal law protects journalists from discovery seeking to force them to reveal their sources, Homme’s attorneys told them to pound sand.

So my office moved to quash the subpoenas. We argued that California’s Reporter Shield Law provides an absolute privilege for journalists and publishers against being made to reveal their sources, and the First Amendment provides an additional qualified privilege that also protects them. And the California Court of Appeal has found those protections extend to nontraditional journalists and publishers like bloggers.

Today the Los Angeles Superior Court granted our motion and quashed Homme’s subpoenas “for all the reasons stated in the motion.”

It feels good to help independent journalists standing up to bullying by millionaire celebrities!

Federal Court Strikes Down LA County Metro's Prohibition on Noncommercial Advertising

Today the U.S. District Court for the Central District of California invalidated LA Metro’s prohibition on noncommercial advertising as violating the First Amendment.

I wrote a bit about the background of this case here. In short, Metro purported to prohibit noncommercial advertising on Metro buses and rail because it did not want to be dragged into the “culture wars” by running advocacy issues. But in reality, Metro ran all kinds of noncommercial advertising, much of which addressed hot button “culture war” issues, including abortion, homelessness policy, LGBTQ Issues, COVID policy and vaccination, teachers’ unions and policing.

But for whatever reason, running this ad from PETA was a bridge too far:

The constitutional problems with Metro’s policy and practice were compounded by Metro’s exception to its policy: Metro would allow noncommercial advertising if the noncommercial advertiser got approval from a government agency for the ad. So speakers who the government agreed with could advertise, but those who the government didn’t agree with were censored.

All of this violated the First Amendment, the federal court found. Even though the court found Metro’s advertising space was a limited public forum – where the government has the strongest ability to restrict speech it doesn’t like – Metro’s prohibition failed even the low standards that apply in such spaces. The prohibition on noncommercial advertising was unreasonable because Metro showed it could run such ads – and in fact ran them quite often. And Metro allowing in only speech that the government approves is both viewpoint discrimination and unreasonable.

The ruling is here if you’d like to read more.

Idaho Settles Lawsuit Challenging Idaho’s Use Sex Offender Registry for People Who Had Oral or Anal Sex

Today the state of Idaho settled Doe v. Wasden, a lawsuit my office brought with the ACLU of Idaho and Boise-firm Nevins Benjamin & McKay, challenging enforcement of the state’s “Crime Against Nature” law. The state required three men to register as sex offenders in Idaho for engaging in consensual oral and anal sex. The state’s enforcement of the law has historically been used to condemn and punish LGBGT+ people. 

The settlement, finalized today, requires the state to remove the three men from the Idaho Sex Offender Registry and to create a policy for removing other individuals who may have similar claims. 

Last year, a federal judge ruled that the registration requirement was likely unconstitutional and required the state to remove two of the three men from the registry. Judge Winmill wrote that the public interest tips in these men’s favor and “[t]he State can have no legitimate interest in requiring [the plaintiffs] to register as sex offenders for engaging in private, consensual sexual acts.” After that ruling, the state of Idaho appealed. In oral argument, the Ninth Circuit Court of Appeals strongly suggested Idaho settle the case. 

“As Judge Winmill ruled last year, our clients have demonstrated irreparable harm: the State of Idaho has ruined their lives by labeling them as ‘sex offenders’ for engaging in consensual sex. Where our clients live, work, and travel have been restricted; they have lost jobs and family connections. The state settled this case because they knew we would ultimately prevail after our win in federal court last year; there was no reason to drag on a losing battle that would cost taxpayers even more money defending unconstitutional laws.” said Aadika Singh, ACLU of Idaho legal director, representing plaintiffs.  

Last July, Michigan Law school professor J.J. Scott issued a report as a part of expert testimony which found that sex offender registration and notification laws “do not serve their purpose of lowering the risk of recidivism, reducing the number of total sex offenses or making communities safer.” The report concluded, “existing evidence suggests that it is likely that, far from reducing sex offense recidivism, Idaho’s notification law is actively increasing the total number of sex offenses each year in the state.” 

“It is shocking that as late as 2022, Idaho was still putting people convicted of having oral or anal sex on the sex offender registry,” said Matthew Strugar. “This settlement provides a remedy not just for our two clients, but also for a third man who has also been a victim of this decades-long, state-sanctioned homophobia.”  

“Our clients and other Idahoans have been unfairly required under threat of incarceration to register as sex offenders and this settlement changes that,” said Debra Groberg of Nevin Benjamin & McKay, one of the attorneys representing the plaintiffs.  “While justice delayed is usually justice denied, this lawsuit prompted the repeal last year of Idaho’s unconstitutional Crime Against Nature law and ensures that others in the future will not have to endure the same discriminatory punishment.”  

In 2003, the U.S. Supreme Court decision in Lawrence v. Texas found that anti-sodomy laws, including Idaho’s Crimes Against Nature statute, violate constitutional protections under the Fourteenth Amendment. Despite this, Idaho was one of three states that continued to enforce its anti-sodomy Crime Against Nature law by requiring people with convictions to register as sex offenders. From 1955 to 1957, Idaho’s Crime Against Nature statute was the primary legal tool for the “The Boys of Boise” affair—one of the most virulent anti-gay witch hunts in American history. Idaho’s Crimes Against Nature Statute remains virtually unchanged since its inception in Idaho’s territorial days. The ACLU’s lawsuit finally puts an end to this unconstitutional legal regime, said Aadika Singh, ACLU of Idaho legal director, and an attorney for the plaintiffs. 

“We are glad to have another victory for LGBTQ+ equality in Idaho, following on the heels of our settlement with the City of Boise, which fired our client Jax Perez for sharing their LGBTQ+ identity at work. These cases should not have to be litigated but, unfortunately, given the anti-LGBTQ+ sentiment of the Idaho legislature and some communities—even the most progressive ones—we are bracing for even more attacks on minority communities in Idaho. But we’ll be here, as we always have been, fighting for people,” said Aadika Singh, ACLU of Idaho legal director.  

This is the third victory for my office in these types of cases. In 2018, my office secured removed for 28 women who were on Mississippi’s sex offender registry after being found guilty of having had oral or anal sex, and earlier this year we secured removal from South Carolina’s sex offender registry for men convicted of South Carolina’s ban on gay sex (known as “Buggery).

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Advocacy Groups Urge California Supreme Court to Review Dangerous anti-SLAPP Ruling

Today some of the country’s largest advocacy groups, including the First Amendment Coalition, Greenpeace, the Sierra Club, PETA, Earthrights International, and the ACLU of Northern California, asked the California Supreme Court to review a decision from the California Court of Appeal that threatens to devastate political association rights in the state.

The lower court’s decision held that when someone else does something illegal as part of a protest or social justice movement, the target of that movement can sue everyone involved in the movement – not just the wrongdoer – and evade California’s anti-SLAPP law by pleading no facts about everyone else’s liability.

This is how the lower court’s rule would work in practice: take a Black Lives Matter march down that 100 people attend. Someone spraypaints a shop window. The shop owner then sued all 100 people, BLM the organization, and the newspaper. The plaintiff details everything each person did — they marched, they organized, they chanted. And the plaintiff has a boilerplate allegation of a bunch of different vicarious liability theories, pleaded on information and belief and unsupported by any facts. Under the First District’s rules, the defendants would have no recourse to California’s law designed to weed out exactly these kinds of lawsuits.

The advocacy groups warn the Supreme Court that the “ruling exposes anyone who organizes, attends, or reports on a protest to the threat and burden of defending meritless litigation. Left unreviewed, the Court of Appeal’s decision would make a mockery of the central purpose of the anti-SLAPP statute: screening out meritless claims that arise from protected activity, before the defendant is required to undergo the expense and intrusion of discovery.”

Major Victory for Protesters' Rights in the California Supreme Court!

Today, in a long-fought dispute, the California Supreme Court ruled that California’s anti-SLAPP statute protects a protest outside of the home of the CEO of a major “fix-and-flip” company.

My office represents an immigrant family who lost their house to foreclosure after the financial crisis. Wedgewood—the nation’s largest “fix and flip” operation—bought it. When the family regained employment and tried to buy it back, Wedgewood first led them on and then ignored them.

The family enlisted the help of the Alliance of Californians for Community Empowerment Action (ACCE)—one of the state’s largest housing rights organizations. Neighbors came to the family’s aid, holding protests in the front yard. La Opinón—the country’s largest Spanish-language newspaper—twice covered the family’s efforts to keep their home. Huffington Post covered it, too.  

But Wedgewood moved forward with the eviction. The night the family was evicted, together with ACCE, they picketed outside Wedgewood CEO Greg Geiser’s $3M Manhattan Beach house. About thirty people attended. They sang songs, gave speeches, and chanted. The whole thing lasted an hour. Police observed and didn’t even issue a warning or a single instruction to the protesters.

Two days later, CEO Geiser sued the family and ACCE’s Los Angeles director Peter Kuhns, asking the court prevent the family and ACCE from protesting outside his office or home. Geiser was, of course, represented by a big Century City law firm.

Geiser also wrote to the dean of Occidental College, trying to get the author of the Huffington Post piece fired or reprimanded, in an effort to intimidate him into taking the piece down. Thankfully neither the college nor author was intimidated.

When the family and ACCE refused to agree to refrain from criticizing Wedgewood in the future, Geiser dismissed the suit in a fit of spite. But before serving the dismissals, Wedgewood issued a press release about the dispute and the settlement breakdown to get in front of the story in the media.

A spokesman for Wedgewood also published this hit piece on ACCE and the family in the alt-right Breitbart News, trying to tie them to voter fraud, tax increases, “the early release of criminals,” and (the irony!) “millionaires and hedge-fund managers.”

Despite the media attention and dozens of people participating in the protest, the lower courts all denied the anti-SLAPP motions saying there was no connection to an issue of public interest. According to the court, all the media attention and other protesters focused on a “purely private” dispute.

Today, after six years of appeals, The California Supreme Court unanimously held that the anti-SLAPP statute protected the protester’s activity. “The Court of Appeal erred in holding that the demonstration outside Geiser’s home did not constitute speech in connection with a public issue under the anti-SLAPP statute’s catchall provision,” Justice Goodwin Liu wrote for the unanimous court.

Adopting our argument, the Court found that speech about private disputes can often implicate broader issues, so it doesn't really matter that speech is about a single dispute.

We argued all along that #MeToo was essentially a million stories about private experiences that nonetheless implicated much broader issues of rampant sexual harassment. The Court adopted that analogy.

And while the Court of Appeal also criticized us for not putting in the record exactly what the protesters' signs said, or what their chants were, to establish a sufficient level of abstraction tying their speech to a broader, more academic type issue, we argued that type of content isn't always going to exist because some speech is symbolic. We argued that a black arm band itself doesn't have "content," but we know what it means in its context because we know who Mary Beth Tinker is and we know her story. The Court adopted that, too.

This decision puts some guardrails on the risk of judges determining an issue narrowly or broadly to reach the outcome the judge wants to reach. Because it’s easy to do so. If you wanted to really be cynical about it, you could say Rosa Parks had a personal dispute with her bus driver. But of course that is nonsense.

The Court today says you can't do that. You have to look to the context and take a broader view of what the "issue" is to determine whether the anti-SLAPP statute applies. So a judge can't get rid of the motion by defining the "issue" overly narrowly.

I’m thrilled with this win, especially as a vindication of six years of appellate litigation.

Los Angeles Activists Sue Rick Caruso Companies for Illegally Suppressing Criticism of Caruso Campaign at the Grove

Los Angeles activists today filed a civil rights lawsuit against companies owned by Rick Caruso that manage the Grove, a 750,000 square foot shopping mall.  Rick Caruso is a billionaire real estate developer running for Mayor of Los Angeles.  His campaign is headquartered at the Grove, which has also been the site of numerous public events promoting his candidacy.

The Grove is silencing efforts to criticize Caruso’s policies and political platform.  For decades, California law has been clear that shopping malls are public spaces that must allow avenues for free expression, without discriminating against a speaker’s viewpoint.  Shopping malls are today’s public squares, and Caruso himself has described the Grove as “a Main Street for a City that doesn’t have one.”

Caruso is leveraging his ownership of the Grove to suppress speech critical of his mayoral campaign, while also using the mall’s public spaces to promote his agenda and host large events supporting the campaign.  Grove employees even distribute signs promoting Caruso’s campaign to mall visitors and allow them to march around the mall holding up the signs, but any similar expression critical of the campaign is banned.

“It’s becoming a familiar story,” said attorney Matthew Strugar. “A billionaire developer enters politics and celebrates people who praise him while trying to shut down those who criticize him.”

The lawsuit’s plaintiffs Gina Viola, Sim Bilal, and Youth Climate Strike Los Angeles asked the Grove for permission to plan small-scale marches through the Grove’s public thoroughfares this month.  The Grove denied the applications at the same time that it facilitates similar speech boosting Caruso’s political agenda. 

Gina Viola is an organizer with the LAPC Fails Coalition, a group that educates the public about the failures of the Los Angeles Police Commission (which Caruso has been president of) to address police violence in Los Angeles.  Viola ran against Caruso in the mayoral primary, focused on the homelessness crisis and policing.  She won nearly 7% of the citywide vote despite her campaign spending just around $50,000, while Caruso spent over $40 million (at least four times as much as all 11 other candidates combined) to place second in the primary, with under 36% of the vote. “Los Angeles is not for sale!” Viola said. “If Rick Caruso was sincere in his call to end homelessness, he could have done that decades ago many times over. In this election he didn’t even show up for the official debate that was devoted to homelessness. He keeps running from and silencing questions he can’t answer.”

Sim Bilal is an organizer with Youth Climate Strike Los Angeles, a group that confronts climate change, environmental racism, and systemic inequality. "Los Angeles is on the frontlines of the climate crisis,” Bilal said. “We witness the devastation of climate inaction every day: pollution is worsening, our kids are developing lifelong health conditions, and wildfires are burning down our neighborhoods. Caruso refuses to even acknowledge the climate crisis in his platform, so of course he won’t allow us to raise this urgent concern. We must not reward his resistance to reality."

“The Grove is part of Rick Caruso’s plan to purchase plutocratic rule of Los Angeles,” said attorney Shakeer Rahman. “In an election where policing and displacement are among the lead issues, this billionaire is illegally using his control over a massive public space to muzzle his critics.”

Not only does the Grove discriminate against speakers based on their views on Rick Caruso, just about all the Grove’s restrictions on speech violate the legal requirements for freedom of expression in malls and similar public spaces.  Anyone wishing to exercise their freedom of expression in the Grove must submit a paper application to an office that has been behind a locked door for years; political expression must be limited to 7 people and a 100 square foot corner of the mall (0.00035% of the Grove’s total area), away from nearly all foot traffic; and any fliers or petitions must be individually approved by Caruso’s employees.

The lawsuit can be read here. And you can read our brief asking the court for a preliminary injunction here.

$300,000 Settlement on Behalf of 62-Year-Old Black Man Strapped to Hospital Gurney and Suffocated by LAPD Officer

Today my office, along with civil rights law firms Hadsell Stormer Renick & Dai, announced a $300,000 settlement from the Los Angeles Police Department for arresting, beating, and suffocating Michael Moore, a then-62-year-old legally blind Black man.

In early 2019, officers from the Los Angeles Police Department tackled, beat, and arrested Mr. Moore in the doorway of his home in South Los Angeles. Mr. Moore was then transported to California Hospital Medical Center in downtown Los Angeles for medical care. While Mr. Moore lay strapped to a hospital gurney with his arms and legs completely immobilized and surrounded by half a dozen hospital security guards and multiple LAPD officers, LAPD Officer Justin Choi pulled a towel over Mr. Moore’s face and cupped his hands over Mr. Moore’s mouth and nose, blocking Mr. Moore’s airway. Mr. Moore cried out, “I can’t breathe!  I can’t breathe!!  I can’t breathe!!!” Ignoring Mr. Moore’s frantic pleas, Officer Choi continued suffocating Mr. Moore, covering Mr. Moore’s face for a full minute even after Mr. Moore lost consciousness. This shocking incident was recorded on another officer’s body-worn camera.

Since regaining his freedom, Mr. Moore has worked with a community organization he founded prior to his arrest to organize neighborhood cleanups and provide job opportunities for at-risk adults.  Mr. Moore named his organization Katie Moore Neighborhood Development after his mother, who is in her 90s. 

Attorney Brian Olney stated, “Police officers are sworn to protect and serve, not torture and abuse. The officer’s abuse of authority in this case was truly sickening. This settlement sends a powerful message that the LAPD is not above the law.”

Attorney Matthew Strugar said, “Five years after ‘I can’t breathe’ ignited a national uprising against police violence, these officers were filmed nearly suffocating another Black man desperately yelling those very same words. Mr. Moore suffered immensely—and might very well have died—at the hands of these officers. To prevent police violence in the future is to impose penalties for such violence in the past.”