Thursday, March 3, 2016

Parents For Megan's Law is a "state actor" and can be sued, according to US Disctrict Court

Scroll down to the other article I posted today, and you'll see it didn't take long for someone to sue PFML.

http://www.newyorklawjournal.com/id=1202750067373/Groups-Monitoring-of-Sex-Offenders-Called-State-Action

Group's Monitoring of Sex Offenders Called 'State Action'
Mark Hamblett, New York Law Journal
February 19, 2016  


A private group hired by Suffolk County to increase monitoring of registered sex offenders is a state actor and can be sued for civil rights violations, a federal judge has ruled.

Eastern District Judge Joanna Seybert said representatives of Parents for Megan's Law were acting under color of state law in 2013 when they went to the home of a man convicted of sex offenses, questioned him about his addresses and the car he drives, demanded to see his driver's license, and threatened to show up at his job with no notice.

The plaintiff, John Jones, was convicted of rape and sodomy in 1992. He was released from prison in the late 1990s and now lives in Suffolk County with his wife and children. As a convicted sex offender, Jones has been required to abide by the reporting procedures in the New York Sex Offender Registry Act (SORA).
SORA classifies offenders on three levels, with Level 1 being those who pose the lowest risk of re-offending. Jones was classified as Level 1, which still requires him to fill out an annual registration form, visit his local police station every three years for a new photo, and notify police or the state, within 10 days, of any changes in his address, educational enrollment or "Internet identifiers."

In 2013, Suffolk County passed the Community Protection Act, Local Law 10-2013, which was intended to toughen sex offender monitoring and verification. The law allowed the Suffolk County Police Department to enter into a three-year contract with Parents for Megan's Law to verify residency and monitor offenders already under the requirements of SORA.

Agents of Parents for Megan's Law, who are required to be former law enforcement officers under the contract, knocked on Jones' door, asked him questions and then followed him closely down the front walk to the street where his car was parked. He handed them his license, which they kept for several minutes while asking about his employment. The agents then told him they might make later, unannounced visits to his place of employment to conduct additional inquiries.

Two agents returned to his home in July 2014 and three more agents followed up a week later, again taking his license and asking him questions.

In Jones v. County of Suffolk, 15-cv-0111, Jones alleged deprivation of his constitutional rights under the Fourth and Fourteenth Amendments. He claimed that Parents for Megan's Law, which advocates requiring sex offenders to live far away from population centers, has left him and his family in fear that the neighbors will find out about the visits. Jones also said he has been less active in the community and in his children's activities.

Suffolk County and Parents for Megan's Law moved to dismiss, saying the private group was not a state actor, and there was no constitutional violation nor any municipal liability.

Seybert said the fundamental question in the different tests for determining state action, whether it be the "close nexus" or "joint action" test is whether the actions of the private entity can be "fairly attributable" to the state.

"Although the mere existence of a contract between the state and a private entity does not create state action, additional factual allegations that the state 'insinuated itself' into the management of the organization are sufficient to confer state actor status at the pleading stage," she said.

Here, the judge said, Suffolk County "retained the power to actively manage the home verification program," as the police department "proscribed the number of visits each registrant was scheduled to receive, and Parents for Megan's Law was required to submit a schedule of its in-home verifications" to the department, which could then modify the schedule.

And the department also created the appearance of joint action when it sent registered sex offenders, including Jones, a letter saying they needed to show personal identification and employment information to Parents for Megan's Law (PFML) agents.

"In addition, Jones sufficiently alleges that the county delegated to PFML the inherently public function of monitoring registered sex offenders," she said, and the "monitoring program was described in the contract as a 'law enforcement initiative' and it required PFML to use ex-law enforcement personnel to perform the work."

Having found the private group was a state actor, Seybert declined to dismiss a Fourth Amendment claim, turning aside the defendants' contention that the Parents for Megan's Law agents were doing no more than a "knock and talk" with Jones.

"[T]he allegations in the complaint raise questions about whether a reasonable person in Jones' position would feel free to terminate his interactions with the PFML," she said. "The questioning here did not take place in an open field, or a Greyhound bus (other situations in which courts have held police inquiries and seizures did not violate the Constitution) but rather within Jones' curtilage—an area afforded heightened Fourth Amendment protection."

Christopher Dunn and Erin Harrist of the New York Civil Liberties Union and Jennifer Spirn and Lawrence Spirn of Spirn & Spirn in Hauppauge represent Jones.

Harrist said the decision vindicates the view "that the suspicionless home investigations that Suffolk County is running violate the Constitution."

"Instead...the county should be investing services that really help people and help registrants find stable housing and employment. That's the best way to ensure public safety," she said.
Assistant County Attorney Marlene Budd represents the county.

Michael Miranda and Richard Epstein of Miranda Sambursky Slone Sklarin Verveniotis in Mineola represent Parents for Megan's Law.

See the court decision HERE: 

http://nylawyer.nylj.com/adgifs/decisions16/021916seybert.pdf

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