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Litmon v. Harris

United States Court of Appeals, Ninth Circuit

October 14, 2014

DAVID LITMON, JR., Plaintiff-Appellant,
v.
KAMALA D. HARRIS, Attorney General, Defendant-Appellee

Argued and Submitted, San Francisco, California: August 12, 2014.

Page 1238

[Copyrighted Material Omitted]

Page 1239

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-cv-03894-EMC. Edward M. Chen, District Judge, Presiding.

SUMMARY[*]

Civil Rights

The panel affirmed the district court's dismissal of an action brought pursuant to 42 U.S.C. § 1983 challenging California Penal Code § 290.012(b), which requires that " every person who has ever been adjudicated a sexually violent predator" to appear before local law enforcement every 90 days for the rest of their lives to verify certain identifying information.

Citing United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), the panel held that the district court properly dismissed plaintiff's claim that the registration requirement violates the fundamental right to be free from physical restraint by requiring sexually violent predators to appear in person every 90 days to register. Absent a fundamental right, the panel held that strict scrutiny was inapplicable. Applying rational basis review, the panel concluded that the in-person registration requirement survived. The panel held that it was not irrational for the California legislature to conclude that requiring those who have been convicted of sexually violent offenses to register in person every 90 days may deter recidivism and promote public safety.

Citing Smith v. Doe I, 538 U.S. 84, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the panel held that the district court properly dismissed plaintiff's ex post facto claim that " the cumulative burden of the [registration] requirement . . . makes it an unconstitutionally retroactive punishment." The panel further held that plaintiff's equal protection claim was also properly dismissed because neither mentally disordered offenders nor mentally disordered sex offenders are similarly situated to sexually violent predators.

The panel held that plaintiff's void-for-vagueness challenge was waived because he failed to present it to the district. The panel further held that plaintiff's argument that the California Department of Justice's failure to issue formal regulations governing the manner of registration under section 290.012(b) violated the California Administrative Procedure Act was also waived.

Skye D.Y. Langs (argued), Craig E. Stewart, pro bono appointment, Jones Day, Palo Alto, California, for Plaintiff-Appellant.

Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Nelson R. Richards (argued), Deputy Attorney General, San Francisco, California, for Defendant-Appellee.

Before: Alex Kozinski, Chief Judge, Barry G. Silverman and Richard R. Clifton, Circuit Judges. Opinion by Chief Judge Kozinski.

OPINION

Page 1240

KOZINSKI, Chief Judge:

California law requires " every person who has ever been adjudicated a sexually violent predator" to appear before local law enforcement every 90 days for the rest of their lives to verify certain identifying information. See Cal. Penal Code ยง 290.012(b). We consider ...


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