California court halts SORNA rule that violates due process, First Amendment

Los Angeles; January 18, 2023: A California court last week blocked the Department of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the First Amendment.

“The DOJ almost never loses these cases. That they lost here goes to show just how far out on a limb the DOJ is with this rule,” said Caleb Kruckenberg, an attorney at Pacific Legal Foundation. “The rule clearly violated due process and free speech protections. And while the court felt bound by precedent to conclude that the rule didn’t violate the constitutional separation of powers, we will continue to press this issue in the hopes that the Supreme Court will finally enforce constitutional limits on the executive branch.”

The rule required anyone who had been convicted of a sex crime to register as a sex offender in their state, even if—as in the case of our client, John Doe*—their conviction had been expunged and they were not even allowed by their state to register. Because John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible—an affirmative defense that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require John, or anyone else, to affirmatively prove their innocence only after being arrested and charged.

U.S. District Judge Jesus G. Bernal noted in his order the profound threat the rule posed to justice: “For individuals like Plaintiffs, at least some of whom allege a remarkable record of rehabilitation and positive contributions to society following convictions in the distant past, the prospect of being returned to prison for up to 10 years due to circumstances beyond their control is a particularly disturbing one.”

The court also found the rule’s requirement that registrants disclose their internet usernames likely violated the First Amendment by making it impossible for them to protest anonymously on issues of public concern, like the DOJ rule.

Finally, the court ruled it was bound by Ninth Circuit precedent to reject a challenge to the DOJ’s power to issue any rules at all, but the order noted the “significant, even disturbing” threat to the separation of powers that arose from the rule.

With this order, the DOJ’s SORNA rule is now unenforceable in California and could be vacated nationwide in the judge’s final decision. The case is John Doe v. Department of Justice.

*Our client is using the pseudonym John Doe to protect the life and reputation he has built in the decade-plus since his record was fully expunged.