Reply Brief — James J. Kaufman, Petitioner v. Scott Walker, et al.

Supreme Court briefSep 17, 2019

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No. 18-1111

IN THE

Supreme Court of the United States

JAMES J. KAUFMAN,

Petitioner,

TONY EVERS, Governor of Wisconsin;

JOSH KAUL, Attorney General of Wisconsin;

DENISE SYMDON, Administrator,

Wisconsin Dept. of Corrections,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

ADELE D. NICHOLAS

LAW OFFICE OF ADELE D.

NICHOLAS

5707 W. Goodman Street

Chicago, Illinois 60630

(847) 361-3869

adele@civilrightschicago.com

Counsel of Record

MARK G. WEINBERG

LAW OFFICE OF MARK G.

WEINBERG

3612 N. Tripp Avenue

Chicago, Illinois 60641

(773) 283-3913

Counsel for Petitioners

TABLE OF CONTENTS

Page

Table of Contents ................................................... ii

Table of Authorities ............................................... iii

ARGUMENT .......................................................... 1

The Split in Authority Is Clear and Has

Recently Deepened .......................................... 1

II. The Court’s ‘Special Needs’ Jurisprudence

Is in Disarray ................................................... 4

III. This Case Warrants the Court’s

Intervention ..................................................... 7

CONCLUSION ....................................................... 8

iii

TABLE OF AUTHORITIES

Cases

Bd. of Educ. v. Earls,

536 U.S. 822 (2002) ............................................... 4

Belleau v. Wall,

811 F.3d 929 (7th Cir. 2016)............................. 3, 6

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ............................................. 4, 5

Colorado v. Bertine,

479 U.S. 367 (1987) ............................................... 4

Commonwealth v. Feliz,

481 Mass. 689, 119 N.E.3d 700 (Mass. 2019) ...... 2

Doe v. Coupe,

143 A.3d 1266 (Del. Ch. 2016) .............................. 3

Doe v. Coupe,

158 A.3d 449 (Del. 2017)....................................... 3

Ferguson v. City of Charleston,

532 U.S. 67 (2001) ................................................. 4

Kaufman v. Walker,

2018 WI App 37, 382 Wis. 2d 774,

915 N.W.2d 193 (2018) ......................................... 6

Nat'l Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989) ............................................... 4

Park v. State,

305 Ga. 348, 825 S.E.2d 147 (Ga. 2019)........... 1, 4

State v. Grady,

___ N.C. ___, No. 179A14-3,

2019 N.C. LEXIS 799 (Aug. 16, 2019)......... passim

State v. Ross,

423 S.C. 504, 815 S.E.2d 754 (S.C. 2018)............. 1

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ............................................... 4

Statutes

Cal. Penal Code §3004(b) (West 2016) ..................... 3

Fla. Stat. §948.012(4) (2016)...................................... 3

Ga. Code Ann. § 42-1-14(e) (2016) ............................. 4

Kan. Stat. Ann. §22-3717(u) (2016) .......................... 3

La. Rev. Stat. Ann. §15:560.3(A)(3) (2016)................ 3

Md. Code Ann., Crim. Proc.

§11-723(d)(3)(i) (LexisNexis 2016) ....................... 3

Mich. Comp. Laws §750.520n (2016)......................... 3

Mo. Rev. Stat. §217.735(4) (2016).............................. 3

N.C.G.S. §§14-208.40A(c),–208.40B(c) ...................... 3

Or. Rev. Stat. §§137.700, 144.103 (2016) .................. 4

R.I. Gen. Laws §11-37-8.2.1 (2016)............................ 4

S.C. Code Ann. §23-3-540 (Supp. 2018)..................... 4

Wis. Stat. §301.48 (2016) .................................. passim

Other Authorities

Edwin J. Butterfoss,

A Suspicionless Search And Seizure

Quagmire: The Supreme Court Revives

The Pretext Doctrine and Creates Another

Fine Fourth Amendment Mess,

40 Creighton L. Rev. 419, 421 (2007) .................. 5

Joshua Dressler,

Understanding Criminal Procedure

(3rd Ed. 2002) ....................................................... 5

R. Karl Hanson, et al., Reductions in Risk

Based on Time Offense-Free in the

Community: Once a Sexual Offender,

Not Always a Sexual Offender,

24 Psychol. Pub. Pol’y & L. 48 (2018)................... 7

Antoine McNamara,

The “Special Needs” of Prison, Probation,

and Parole,

82 N.Y.U. L. REV. 209 (2007) .............................. 5

Stephen J. Schulhofer,

On The Fourth Amendment Rights of the

Law-Abiding Public,

1989 Sup. Ct. Rev. 87 (1989) ................................ 5

Sarah K. S. Shannon, et al.,

The Growth, Scope, and Spatial

Distribution of People With Felony

Records in the United States,

Demography (2017)............................................... 8

Jacob Sullum, ‘I’m Appalled,’ Says

Source of Phony Number Used to

Justify Harsh Sex Offender Laws,

Reason, Sept. 14, 2017 .......................................... 7

ARGUMENT

I. The Split in Authority Is Clear and Has

Recently Deepened

Wisconsin insists that certiorari should be denied

because there is not a “meaningful lower court conflict.” BIO at 6. But the decision of the Wisconsin

Court of Appeals cannot be reconciled with the decisions of the high courts of Georgia, South Carolina and

Massachusetts, all of which have found that the government may not categorically apply GPS monitoring

to individuals who are not under the supervision of the

criminal justice system.

•

Park v. State, 305 Ga. 348, 825 S.E.2d 147 (Ga.

2019): The Georgia Supreme Court found that

a state law authorizing lifetime satellite-based

monitoring of individuals who have been convicted of sex offenses violates the Fourth

Amendment on its face because such individuals do not have a diminished expectation of privacy after completing their criminal sentences;

•

State v. Ross, 423 S.C. 504, 815 S.E.2d 754 (S.C.

2018): The South Carolina Supreme Court

found that automatic imposition of lifetime

electronic monitoring on individuals who had

been convicted of qualifying sex offenses violated the Fourth Amendment. Electronic monitoring could only be ordered after a judicial determination that monitoring was reasonable

based on the totality of the circumstances of an

individual case; and

•

Commonwealth v. Feliz, 481 Mass. 689, 119

N.E.3d 700 (Mass. 2019): Massachusetts’ Supreme Court found that automatic imposition

of GPS monitoring violated the state constitution’s search and seizure provision because

“GPS monitoring will not necessarily constitute

a reasonable search for all individuals convicted of a qualifying sex offense.”

The split in authority has recently deepened with

the August 16, 2019, decision of the North Carolina

Supreme Court in State v. Grady, ___ N.C. ___, No.

179A14-3, 2019 N.C. LEXIS 799 (Aug. 16, 2019)

(“Grady II”). In Grady II, the North Carolina Supreme

Court found the state’s GPS monitoring program “unconstitutional as applied to all individuals who … are

subject to mandatory lifetime [monitoring] based

solely on their status as a ‘recidivist.’” Id. at *4. Like

the Supreme Courts of Georgia, Massachusetts, and

South Carolina, the North Carolina Supreme Court

ruled that individuals who are no longer under criminal justice supervision cannot categorically be subjected to GPS monitoring based solely on their history

of having been convicted of sex offenses.

Wisconsin attempts to distinguish these decisions

by pointing to insignificant factual differences (e.g.,

Wisconsin allows individuals to seek relief from lifetime monitoring after twenty years while Georgia

does not; the plaintiff in Feliz had been convicted of

child pornography while petitioner was convicted of

assault). BIO at 11–13. Notwithstanding surface differences, the reasoning and conclusions of these various decisions are in conflict. That is, the high courts of

Georgia, South Carolina, Massachusetts and North

Carolina have all determined that the Fourth

Amendment prohibits governments from forcing individuals who are no longer under the supervision of the

criminal justice system to wear tracking devices—at

least not without an individualized judicial determination that such tracking is reasonable. Wisconsin

and the Seventh Circuit Court of Appeals have

reached the opposite conclusion. See App. XI-1; Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016).1

Wisconsin suggests that the conflict should be allowed to further “percolate” before this Court weighs

in. BIO at 8. But there is no reason for delay. There is

already a deep split in authority with six conflicting

decisions—two

upholding

lifetime

monitoring

schemes and four rejecting them. The lower courts are

in urgent need of guidance because this issue is certain to recur. Thirteen states have passed laws calling

for lifetime monitoring of individuals who have been

convicted of sex offenses. 2 The Fourth Amendment

rights of tens of thousands of individuals are at stake.

Wisconsin claims that Delaware’s high court “agrees with the

decision below.” BIO at 10, citing Doe v. Coupe, 143 A.3d 1266,

1274–81 (Del. Ch. 2016) (aff’d by Doe v. Coupe, 158 A.3d 449 (Del.

2017)). But Coupe concerned GPS monitoring of individuals who

were on parole or probation for sex offenses. Parolees and probationers have a diminished expectation of privacy by virtue of

their status within the criminal justice system. Samson v. California, 547 U.S. 843, 850 (2006); U.S. v. Knights, 534 U.S. 112,

119 (2001). This case is thus of limited relevance here.

These states are California, Florida, Kansas, Louisiana, Maryland, Michigan, Missouri, North Carolina, Oregon, Rhode Island, South Carolina, Wisconsin, and Georgia. Cal. Penal Code

§3004(b) (West 2016); Fla. Stat. §948.012(4) (2016); Kan. Stat.

Ann. §22-3717(u) (2016); La. Rev. Stat. Ann. §15:560.3(A)(3)

(2016); Md. Code Ann., Crim. Proc. §11-723(d)(3)(i) (LexisNexis

2016); Mich. Comp. Laws §750.520n (2016); Mo. Rev. Stat.

§217.735(4) (2016); N.C.G.S. §§14-208.40A(c),–208.40B(c); Or.

II. The Court’s ‘Special Needs’ Jurisprudence

Is In Disarray

A core source of conflict in the decisions below is the

ambiguity in the Court’s pronouncements concerning

the “special needs” doctrine. This Court has described

the special needs doctrine as “an exception to the general rule that a search must be based on individualized suspicion of wrongdoing” which authorizes “certain suspicionless searches performed for reasons unrelated to law enforcement.” City of Indianapolis v.

Edmond, 531 U.S. 32, 54 (2000). It is, however, far

from clear what constitutes a search “unrelated to law

enforcement.”3

Rev. Stat. §§137.700, 144.103 (2016); R.I. Gen. Laws §11-37-8.2.1

(2016); S.C. Code Ann. §23-3-540 (Supp. 2018); Wis. Stat. §301.48

(2016). The Georgia Supreme Court found Georgia’s lifetime

monitoring statute, Ga. Code Ann. § 42-1-14(e) (2016), unconstitutional on its face. Park, 305 Ga. 348, 360–61, 825 S.E.2d 147,

158. See Grady at *10 n.2 (summarizing statutes).

This Court has used inconsistent language to describe the situations in which it is proper to apply a special needs analysis. In

various cases, the Court has suggested that the special needs doctrine does not extend to searches conducted for “law enforcement

ends” (Ferguson v. City of Charleston, 532 U.S. 67, 74 (2001));

searches conducted for the “primary purpose” of detecting “evidence of ordinary criminal wrongdoing” (Edmond, 531 U.S. at

41); searches that serve a “purely investigatory purpose” (Colorado v. Bertine, 479 U.S. 367, 372 (1987)); searches related to the

“ordinary needs of law enforcement” (Nat'l Treasury Employees

Union v. Von Raab, 489 U.S. 656, 666 (1989)); searches conducted to “discover evidence of criminal wrongdoing” (Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)); and searches

“in any way related to the conduct of criminal investigations.”

(Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002)).

Scholars have long identified the lack of clarity

about what constitutes a “law enforcement purpose”

as a source of confusion and inconsistency in the lower

courts. See, e.g., Joshua Dressler, Understanding

Criminal Procedure, 323 (3rd Ed. 2002) (“the line between … a criminal investigation and … searches and

seizures designed primarily to serve noncriminal law

enforcement goals, is thin and, quite arguably, arbitrary.”); Edwin J. Butterfoss, A Suspicionless Search

And Seizure Quagmire: The Supreme Court Revives

The Pretext Doctrine and Creates Another Fine Fourth

Amendment Mess, 40 Creighton L. Rev. 419, 421

(2007) (“[Edmond] only adds to the jurisprudential

mess in this area, creating nothing less than a suspicionless search quagmire.”); Antoine McNamara, The

“Special Needs” of Prison, Probation, and Parole, 82

N.Y.U. L. REV. 209, 245 n.235 (2007) (“[T]he doctrinal

distinction between law enforcement and non-law enforcement needs is somewhat tenuous.”); Stephen J.

Schulhofer, On The Fourth Amendment Rights of the

Law-Abiding Public, 1989 Sup. Ct. Rev. 87, 88-89

(1989) (describing “doctrinal incoherence” related to

what constitutes a non-law-enforcement objective).

One need look no farther than the conflicting decisions in the lower courts concerning GPS monitoring

to see the consequences of the Court’s confusing and

inconsistent pronouncements on this topic. The courts

cannot agree on the simple question of whether “solving crime” constitutes a law enforcement purpose.

In Grady II, the North Carolina Supreme Court

wrote as follows:

[T]he primary purpose of [satellite based monitoring] is to solve crimes. … Because the State

has not proffered any concerns other than crime

detection, the “special needs” doctrine is not applicable here.

Grady II, 2019 N.C. LEXIS 799 at *30 (internal citations omitted).

The Wisconsin Appellate Court reached the exact

opposite conclusion:

The Fourth Amendment’s “special needs” doctrine also applies to Wis. Stat. §301.48. Wisconsin’s GPS tracking program effectively serves

the recognized “special needs” of deterring future crimes and gathering information needed to

solve them.

Kaufman v. Walker, 2018 WI App 37, ¶39, 382 Wis.

2d 774, 792, 915 N.W.2d 193, 202; App. XI-11.4

This case presents an ideal vehicle for the Court to

explain what is meant by a “law enforcement purpose”

in the context of special needs searches and to bring

The Wisconsin Court of Appeals relied on Judge Flaum’s concurrence in Belleau v. Wall, in which he wrote that Wisconsin’s

GPS monitoring program should be upheld under a “special

needs” analysis. See Belleau, 811 F.3d at 940 (Flaum, J., concurring). While acknowledging that GPS monitoring “creates a repository of information that may aid in detecting or ruling out

involvement in future sex offenses,” Judge Flaum concluded that

a special needs analysis was still appropriate because “these

goals are not focused on obtaining evidence to investigate a particular crime.” Id. (“Wisconsin’s GPS program is also designed to

serve a special need. … Information gathered from this program

may, at some later time, be used as evidence in a criminal prosecution, but that is not the primary purpose of the program.”).

uniformity to this doctrine, which has become untenably open-ended and manipulable.

III. This Case Warrants the Court’s

Intervention

The implications of this case are far reaching and

alarming. If a past conviction for a sex offense, standing alone, constitutes a legitimate basis for the government to deprive a citizen of his Fourth Amendment

right to be free from suspicionless searches beyond the

completion of his or her sentence, there will be nothing

to stop state governments from placing broad swaths

of the population under permanent electronic surveillance. There is no principled basis on which to distinguish individuals convicted of sex offenses from individuals convicted of other felonies.5 People with felony

convictions “account for 8 percent of the overall [U.S.]

population and 33 percent of the African-American

Wisconsin repeatedly references the “frightening and high”

rates of recidivism of persons who have been convicted of sex offenses as a justification for lifetime GPS monitoring. See BIO at

20 (citing McKune v. Lile, 536 U.S. 24, 33 (2002)). But that dramatic phrase was grounded on casual opinion, not data, and has

since been disavowed by the very source the Court relied upon in

making it (see Jacob Sullum, ‘I’m Appalled,’ Says Source of Phony

Number Used to Justify Harsh Sex Offender Laws, Reason, Sept.

14, 2017, available at: http://reason.com/blog/2017/09/14/im-appalled-says-source-of-pseudo-statis). Moreover, the claim has

been thoroughly debunked by reliable, peer-reviewed research.

The most recent scientific study of re-offense, for example, found

that “there is no evidence that individuals who have committed

such offenses inevitably present a lifelong enduring risk of sexual

recidivism.” R. Karl Hanson, Andrew J. R. Harris, Elizabeth

Letourneau, Leslie Maaike Helmus, & David Thornton, Reductions in Risk Based on Time Offense-Free in the Community: Once

a Sexual Offender, Not Always a Sexual Offender, 24 Psychol.

Pub. Pol’y & L. 48, 59 (2018).

male population.”6 Under the Wisconsin Court of Appeals’ logic, all such individuals can be subjected to

GPS monitoring for the rest of their lives without any

need for a judicial determination that such monitoring

is reasonable. This Court should grant review to provide guidance to the courts below.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,