Petition for Writ of Certiorari — Kenneth Daywitt, et al., Petitioners v. Jodi Harpstead, Commissioner, Minnesota Department of Human Services, in her Individual and Official Capacity, et al.

Supreme Court briefJan 15, 2025

Ask Donna

What actually matters in this document.

Text

■

24-681 3

V. ^Uv^VOu^VuV ;u>

— v-

No.

3ln tfje

Supreme Court of tJje (Llmti't) States

1—TOED

JAN 1 5 2025

I W«?g

Kenneth Daywitt, Steven Hogy, Michael

Whipple, Russell Hatton, Peter Lonergan,

Petitioners,

JODI HARPSTEAD, ET AL„

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Peter Lonergan, et al.,

1111 Highway 73

Moose Lake, MN 55767

Petitioners Propria Persona

— 1 —

QUESTIONS PRESENTED

Should Court Specifically Address Whether Access to Internet and

Technology-Based Speech Must Extend First Amendment Protection?

Do federal courts have a duty to citizens of the United States of

America to apply established legal standards, to freedom of religion,

freedom of speech, freedom to vote intelligently, and related First

Amendment claims?

Can the courts of the United States, through bias, undermine

justice and circumvent well established Supreme Court standards of

legal doctrine, the doctrinal standards established in the circuit courts

as a whole, based upon tyrannical and predisposed prejudicial political

ideals that operate outside the United States Constitution?

Did

Court

err,

disposing

the

case

per

curiam,

without

memorandum, where disposition opposes this Court’s Ruling in

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)?

Does ruling create paper-tiger application of Court Rules? Are

Petitioners harmed where they have a right to free exercise, to vote

intelligently, to participate in society; which is reduced to paper-tiger

rights with no enforcement?

-11 —

PARTIES TO THE PROCEEDING

Petitioner Kenneth Daywitt is in St. Peter Minnesota, Petitioners

Steven Hogy, Michael Whipple, Peter Lonergan, and Russell Hatton,

are in Moose Lake Minnesota; all are serving orders of civil

commitment to a Shadow Prison parading as a hospital; and all are

plaintiffs in the district court and appellants in the Eighth Circuit

Court of Appeals.

Respondents Jodi Harpstead, Marshall Smith, Nancy Johnston,

Jannine Hebert, and Terry Kniesel, in their individual and official

capacities are government agents, operating Minnesota’s beleaguered

International

Human

Rights

Violation,

infamously,

known

Minnesota Sex Offender Program (MSOP), being defendants in the

district court and appellees in the Eighth Circuit Court of Appeals.

— Ill -

STATEMENT OF RELATED PROCEEDINGS

Daywitt v. Harpstead, No. 24-1138 (October 7th, 8th Cir. 2024) (pet.

rehearing denied)

Daywitt v. Harpstead, No. 24-1138 (September 19th, 8th Cir. 2024)

Daywitt v. Harpstead, Case No. 20-cv-1743-NEB-ECW (D. Minn.,

January 9, 2024, 2024) (Order on Motion for Amended or Additional

Findings and Relief from Judgment and Motion to Amend Order to

Communicate).

Daywitt v. Harpstead, Case No. 20-cv-1743-NEB-ECW (D. Minn., Sept.

28, 2023) (Final Order & Judgment)

Daywitt v. Harpstead, Case No. 20-cv-1743-NEB-ECW (D. Minn., July

28, 2023) (Report & Recommendation).

Daywitt v. Harpstead, Case No. 20-cv-1743-NEB-ECW WL 2210521

(D. Minn., June 1st 2021) (Order on Motion to Amend, Motion to

Dismiss, and Motion for a Temporary Restraining Order).

— IV —

TABLE OF CONTENTS

Questions Presented

Parties to the Proceeding

Statement of Related Proceedings

Table of Contents

Table of Authorities

Petition for a Writ of Certiorari

Opinions Below

Jurisdiction

Constitutional and Statutory Provisions

Introduction

Statement Of The Case

Reasons For Granting Petition................................................

Court Has Never Specifically Addressed Whether

First Amendment Protection Must Extend Access to

Internet and Technology-Based Media...........................

II. The Eighth Circuit Court of Appeals, as well as other

Circuit Courts Disagree with the Judgment Because

the Minnesota District Court and Appellate Panel

Failed To Follow Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993)....................................................

A. How Daubert Factors are Applied...............................

B. Courts’ Opinion of Internet Access Across the

United States Judiciary.................................................

III. The Eighth Circuit Court of Appeals Ruled Contrary

to It’s Own Circuit Doctrine, That of the Other

Circuits of Our Great Nation, and in Violation of This

Court’s Doctrine?..................................................................

A. First Amendment Argument.........................................

B. Expert Exclusion..............................................................

-V-

C. Application of the First Amendment Free Exercise

Claims..................................................................................

IV. Does the Eighth Circuit Court of Appeals Hold a

General Bias Toward Any Person Labeled “Sex

Offender?”...............................................................................

Did Court err, disposing the case per curiam, without

memorandum, where disposition opposes this Court’s

Ruling in Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579 (1993)?....................................................................

VI. Does Ruling Create Paper-Tiger Application of Eighth

Circuit Rules? Are Petitioners Harmed Where They

Have a Right to Free Exercise, to Vote Intelligently,

to Participate in Society; Which is Reduced to PaperTiger Rights with No Enforcement?.................................

Conclusion

Index to Petitioners Appendix

— VI —

TABLE OF AUTHORITIES

SUPREME COURT

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..................

Ashcroft v. Iqbal, 556 U.S. 665 (2009)..............................................

Banks v. Dretke, 540 U.S. 668 (2004)...............................................

Bell v. Wolfish, 441 U.S. 520 (1979)..................................................

Biden v. Knight First Amendment Institute at Columbia Univ.,

141 S. Ct. 1220 (2021)..............................................................

Brockett v. Spokane Arcades, Inc., 472 US 491 (1985).........

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011).......

Carpenter v. United States, 585 U.S. 296 (2018)...........

Church of the Lukum Babalu Aye v. City of Hialeah,

508 US 520 (1993).............................................................

Cruz v. Beto, 405 U.S. 319 (1972)......................................

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993)........................................................... 5, 14, 16, 19, 32

DeShaney v. Winnebago Soc. Serv., 489 US 189 (1989)

Edenfield v. Fane, 507 U.S. 761 (1993)............................

Foucha v. Louisiana, 504 U.S. 71 (1992).........................

Fulton v. City of Philadelphia, 593 U.S. 522 (2021)......

Gitlow v. New York, 268 U.S. 652 (1925)........................

Glossip v. Gross, 576 U.S. 863 (2015)...............................

17, 19

Griswold v. Connecticut, 381 U.S. 479 (1965)................

Holt v. Hobbs, 574 U.S. 352 (2015)...................................

Kansas v. Hendricks, 521 U.S. 346, 358 (1997).............

Kingsley v. Hendrickson, 576 U.S. 389 (2015)...............

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)....

Linmark Assoc., Inc. v. Willingboro Tp., 431 U.S. 85 (1977)

Los Angeles v. Preferred Communications, Inc.,

476 U.S. 488 (1986)...................................................................

Moody v. NetChoice, 144 S.Ct. 2383 (2024).............................

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)....................

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).................

Packingham v. North Carolina, 582 U.S. 98 (2017)............... 27, 28, 30

Pell v. Procunier, 417 U.S. 817 (1974)......................................

Perry Ed. Assn. v. Perry Local Ed. Assn., 460 US 37 (1983)

Reno v. ACLU, 521 U.S. 844 (1997)..........................................

27, 30

Riley v. California, 573 U.S. 373 (2014)...................................

Sable Communications v. FCC, 492 U.S. 115 (1989)............

25, 26

Schneider v State (Town of Irvington), 308 U.S. 147 (1939)

- Vll -

Snyder v. Phelps, 562 U.S. 443 (2011)...........................................

Texas v. Lesage, 528 U.S. 18 (1999)..............................................

Turner Broadcasting System, Inc. v. FCC 512 U.S. 622 (1994)

Turner v. SafLey, 482 U.S. 78 (1987)..........................

4, 9, 13, 23

U.S. v. Treasury Employees, 513 US 454 (1994)....

U.S. v. Williams, 553 U.S. 285 (2008).......................

Ward v. Rock Against Racism, 491 U.S. 781 (1989)

Whitney v. California, 274 U.S. 357 (1927).............

Wisconsin v. Yoder, 406 US 205 (1972)....................

CIRCIUT COURTS

Andrews v. Schafer, 888 F.3d 981 (8th Cir. 2018)..............................

Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc.,

125 F.3d 1176 (8th Cir. 1997)......................................... ....................

Artis v. Santos, 95 F.4th 518 (7th Cir. 2024).......................................

Beaulieu v. Ludeman, 690 F.3d 1017 (8th Cir. 2012)........................ 11, 23

Branson v. Piper, No: 23-1160 (8th Cir. 2019)....................... ............

Clark v. Heidrick, 150 F.3d 912 (8th Cir. 1998)..................................

Foust v. United States, 989 F.3d 842 (10th Cir. 2021)......................

Gordon v. Arcanum Investigations, Inc.,

646 Fed. Appx. 18 (2nd Cir. N.Y., Apr. 15, 2016)............................

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).........

Hartley v. Dillard’s, Inc., 310 F.3d 1054 (8th Cir. 2002)...................

Hogy v. Ludeman, No: 23-1177 (8th Cir. Minn., June 22, 2023)....

Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 975 (8th Cir. 1995)

In re: SemCrude L.P., 648 Fed. Appx. 205 (3rd Cir. 2016).......

Independence of the Disabled v. Metro. Transp. Auth.,

11 F.4th 55 (2nd Cir. 2021)..........................................................

Karsjens v. Harpstead, 74 F.4th 561 (8th Cir. 2023)................. 11, 36, 37

Karsjens v. Harpstead, WL 5920137 (8th Cir. Sept. 12, 2023)

Karsjens v. Lourey, 988 F.3d 1047 (8th Cir. 2021)....................

28, 37

Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017)..........................

11, 37

Kinder v. Acceptance Components Inc. Cos.,

423 F.3d 899 (8th Cir. 2005)........................................................

Lauzon v. Senco Prods., Inc., 270 F.3d 681 (8th Cir. 2001)......

Lawes v. CSA Architects & Eng’rs LLP, 963 F.3d 72 (1st Cir. 2020).... 17

McAllen Grace Brethren Church v. Salazar,

764 F.3d 465 (5th Cir 2014).......................................................

Mead v. Palmer, 794 F.3d 932 (8th Cir. 2015)........... ................

Patel v. U.S. Bureau of Prisons, 515 F.3d 807 (8th Cir. 2008)

Phelps-Roper v. City of Manchester, Mo.,

697 F.3d 678 (8* Cir. 2012).............................................

— Vlll -

Piasecki v. Court of Common Pleas, 917 F.3d 161 (3rd Cir. 2019)

Polski v. Quigley Corp., 538 F.3d 836 (8th Cir. 2008).....................

Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096 (8th Cir. 2006)... 14, 32

Senty-Haugen v. Goodno, 462 F.3d 876 (8th Cir. 2006)....

Serna v. Goodno, 567 F.3d 944 (8th Cir. 2008)...................

Smith v. BMW N. Am., Inc., 308 F.3d 913 (8th Cir. 2002)

Strutton v. Meade, 668 F.3d 549 (8th Cir. 2012)................

11, 37

Thomas v. Gunter, 32 F.3d 1258 (8th Cir. 1994)................

U.S. v. Ali, 508 F.3d 136 (3«* Cir. 2007)..............................

U.S. v. Arthur, 51 F.4th 560 (5th Cir. 2022).......................

U.S. v. Becerra, 977 F.3d 373 (5th Cir. 2020).....................

17, 18

U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005)......................

18, 21

U.S. v. Duke, 788 F.3d 392 (5th Cir. 2015)..........................

U.S. v. Eaglin, 913 F.3d 88 (2nd Cir 2019).....................

U.S. v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011).........

U.S. v. Greenberg, 2021 WL 5373355 (6th Cir. 2024).....

U.S. v. Holm, 326 F.3d 872 (7th Cir. 2003).....................

U.S. v. Norris, 62 F. 4th 441 (8th Cir. 2023)......................

U.S. v. Peterson, 248 F.3d 79 (2nd Cir. 2001).....................

U.S. v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015).......

U.S. v. Ullmann, 788 F.3d 1260, 1261 (10th Cir. 2015)...

U.S. v. Vesey, 338 F.3d 913 (8th Cir. 2003)........................

U.S. v. Zafar, 291 Fed. Appx. 425 (2nd Cir. 2008).............

Van Orden v. Stringer, 937 F.3d 1162 (8th Cir. 2018).....

Van Orden v. Stringer, 937 F.3d 1162 (8th Cir. 2019)......

Voigt v. Coyote Creek Mining Co., LLC,

980 F.3d 1191 (8th Cir. 2020)............................................

14, 15, 33

21, 22

Willet v. Smith, 627 Fed. Appx. 580 (8th Cir. 2015)......

DISTRICT COURTS

Consulnet Computing, Inc. v. Moore,

2008 U.S. Dist. LEXIS 10132 (E.D. Pa., Feb. 12, 2008).................

Daywitt v Harpstead, Case No. 20-CV-1743 (NEB/ECW).................

Doe v. Neb., 898 F. Supp. 2d 1086 (D.Neb. 2012)...............................

Gering v. Geo Group Inc.,

Case No: 2:16-cv-267-FtM-99MRM (D. Fla. 2017)...........................

Ivey v. Ludeman, No. 05-2666 (JRT/FLN) (D. Minn. Feb. 12, 2007)

Lonergan v. Ludeman,

Civil No. 16-02066 (JRT/LIB), (D. Minn., Dec. 29, 2022)...............

Mainstream Loudoun v. Brd. of Trustees of the Loudoun Cty. Lib.,

2 F. Supp. 2d 783 (E.D. Va. 1998).......................................................

— IX —

Marconi Wireless Telegraph Co. v. Kilbourne & Clark Mfg. Co.

235 F. 719 (Ca. D. 9th Cir. 1916)...................................................

White v. Dayton, No. ll-cv-3702 (NEB/DJF)................................

UNITED STATES CODE

28 U.S.C. § 1254..............

42 U.S.C. § 1983..............

42 U.S.C. §§ 2000bb.........

FEDERAL RULES

Eighth Circuit Rule 47B

FOREIGN AUTHORITIES

European Convention on Human Rights

CONSITUTIONAL PROVISIONS

U.S. Const, Preamble.........................

U.S. Const, amend. I............................

U.S. Const, amend. XIV, § 1..............

OTHER AUTHORITIES

29 Charles A. Wright & Victor J. Gold, Federal Practice and

Procedure: Evidence § 6268.1 (2d ed. Apr. 2023 Update)................ 33

www.mitchellhamline.edu/sex-offense-litigation-policy, Sex Offense

Civil Commitment, Minnesota’s Failed Investment and the $100

Million Opportunity to Stop Sexual Violence..................................... 8

-1-

PETITION FOR A WRIT OF CERTIORARI

Kenneth Daywitt, Steven Hogy, Michael Whipple, Russell Hatton,

and Peter Lonergan respectfully petition for a writ of certiorari to the

United States Court of Appeals for the Eighth Circuit in Daywitt v.

Harpstead, Case No. No. 24-1138 (8th Cir. Sept.19, 2024) rehearing

denied, (8th Cir. Oct. 29, 2024).

OPINIONS BELOW

The Judgment, Findings of Fact, Conclusions of Law, and Order of

the United States District Court of Minnesota related to the issues on

appeal are not reported at Daywitt v Harpstead, Case No. 20-CV-1743

(NEB/ECW) (D. Minn. Sept. 28, 2023) and reproduced in the appendix

(“Pet.App.”) hereto, at 103-152.

The Opinion of the United States Court of Appeals for the Eighth

Circuit is at Pet.App. 2. The Order Denying Petition for Rehearing En

Banc in the United States Court of Appeals for the Eighth Circuit is at

Pet.App. 1.

JURISDICTION

The United States Court of Appeals for the Eighth Circuit denied

Petitioner’s petition for rehearing en banc and rehearing on October

-229, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1); and Rule 10 of Rules of this Supreme Court.

The Eighth

Circuit Court of Appeals “has entered a decision in conflict with the

decision of another United States court of appeals on the same

important matter; Q has so far departed from the accepted and usual

course of judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s supervisory power.

Id.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const, amend. I, “Religious and political freedom. Congress

shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.”

U.S. Const, amend. XIV, § 1 - “[N]or shall any State deprive any

person of life, liberty, or property, without due process of law.”

42 U.S.C. § 1983 - “Civil Action for Deprivation of Rights - Every

person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other

-3person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.”

Eighth Circuit Rule 47B - “Affirmance or Enforcement without

Opinion. A judgment or order appealed may be affirmed or enforced

without opinion if the court determines an opinion would have no

precedential value and any of the following circumstances disposes of

the matter submitted to the court for decision: (1) a judgment of the

district court is based on findings of fact that are not clearly erroneous;

(2) the evidence in support of a jury verdict is not insufficient.”

INTRODUCTION

This case represents whether a novel, but fundamental free speech

right must include internet access for all people under the First

Amendment, whom desire internet access.

Interned Petitioners are

banned from all internet access, including any possession of computers,

cellphones, tablets, etc... without any due process of law.

-4This Court has upheld the premise that ALL citizens enjoy the

freedom to communicate with society; worship God in a meaningful

way; and have the ability to make intelligent choices when voting, as

applicable to a fundamental First Amendment Right. The biggest of

these: there is one God, who is worshipped by and through differing

distinct standards/doctrines. Petitioners’ announce they do not enjoy

any of these, being citizens in good standing; due to the restrictions by

Respondents, as described previously and herein.

It is the Petitioners position they are denied these First

Amendment rights by Respondents; with blessing from the Eighth

Circuit.

Respondents hold unwarranted animus and irrational suspicion

toward Petitioners; too autocratic to allow Petitioners into the modern

age, due to the irrational suspicious fears/resulting animus, under the

guise of public safety; hiding behind this Court’s narrow ruling in

Turner v. Safley, 482 U.S. 78 (1987), the oft misapplied/abused “go-to”

for these respondents.

White v. Dayton, No. ll-cv-3702 (NEB/DJF)

(“Courts of this District have long applied a modified version of the test

established in [Turner] to evaluate such claims when raised by MSOP

clients.”); first case Ivey v. Ludeman, No. 05-2666 (JRT/FLN) (D. Minn.

-5Feb. 12, 2007) (analyzing plaintiffs First Amendment claims under

Turner analysis); see Pet.App. 217.

The Eighth Circuit in this case (see Pet.App. 2), departed

dramatically from itself and other circuits, in a per curiam ruling,

affirming the District Court with one paragraph. Id. When District

Court excluded Petitioners’ expert witness, it did so directly against

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Pet.App.

17-20; 34-52;87-89.

district

court,

Based upon the expert witness exclusion, the

applying

the

wrong

doctrinal

standard,

denied

Petitioners Summary Judgment and granted Summary Judgment to

Respondents. The Eighth Circuit failed to apply the correct Daubert

standard with a memorandum opinion, but instead gave a per curiam

ruling; affirming the District Court, even though there are disputed

facts. Pet.App. 52-64.

All circuits uniformly hold that the prevailing standard of law to be

applied to expert witness is Daubert, because the federal court has a

duty to apply the correct law, as this Court interprets it. U.S. v. Ali,

508 F.3d 136, 144 n.9 (3rd Cir. 2007) (“While a party can waive his or

her ability to appeal a ruling for failure to object, there can be no

waiver here of the Judge’s duty to apply the correct legal standard.”).

-6This case represents five individual religious distinctions.

Our

First Amendment claims respect for them all. If plaintiffs’ retain a

right to “free exercise” under the First Amendment, “government shall

not substantially burden a person’s exercise of religion even if the

burden results from a rule of general applicability, unless the

government demonstrates that application of the burden to the person

(1) is in furtherance of a compelling governmental interest; and (2) is

the least restrictive means of furthering that compelling governmental

interest.” Holt v. Hobbs, 574 U.S. 352, 357 (2015) (cleaned up); quoting

42 U.S.C. §§ 2000bb Respondents herein, and the United States courts

above have not produced valid justification how internet restrictions to

petitioners’ serves a compelling government interest; and failed to

implement the least restrictive means.

The Eight Circuit failed to apply Youngberg’s professional

judgment standard to Petitioners’ case about how civil commitment

must avoid punishment.1

Petitioner’s argued the professional

judgment doctrine to no avail. Id. Pet.App. 26-27; and 90-93. The one

See Karsjens v. Harpstead, 74 F.4th 561 (8th Cir. 2023), certiorari

denied Feb. 20, 2024) (proclaiming professional judgment can be

waived/supporting arbitrary government action); Beaulieu v.

Ludeman, 690 F.3d 1017, 1031 (8th Cir. 2012) (protection from

arbitrary governmental action, quoting Youngberg v. Romeo, 457 U.S.

307, 316 (1982).

- 7(1) paragraph outcome in this case is particularly egregious, because

the factual record is in dispute.

Respondents freely admit their acts/restrictions, claiming they are

authorized to commit these unconstitutional acts for public safety

(misusing Turner. supra), but then failed to produce one IOTA of

credible

evidence

support

their

claim.

The

International

Community has determined that the treatment Petitioners receive at

the hands of Respondents amount to Human Rights violations under

the European Convention on Human Rights. Pet.App. 160-162.

Philosophically, anytime “MSOP Clinicians” have attempted to

treat patients with any sort of decency, any professional judgment was

expressly countermanded either by MSOP leadership, Minnesota’s

Legislature, or Minnesota’s Governor; due to lack of political support

from divergent political leaders.

Pet.App. 234 generally.

Thus,

although exercising professional judgment to the facts of this case,

indicate petitioners can safely navigate online services, respondents do

nothing to implement any necessary form of internet access—and in

fact, deliberately restrict it with blanket policy—to deny any First

Amendment protection for petitioners.

-8Litigation with the MSOP is nearly constant, which has now

spanned more than three (3) decades with approximately 55 appeals

before the Eighth Circuit.

According to these appeals, the Eighth

Circuit has only once ruled to protect Petitioners’ constitutional rights;

a case later lost in further litigation.

All while various reports

authored by relevant professionals, organizations, and countries,

continuously regard MSOP as constitutionally deficient.

One such

report recently published by www.mitchellhamline.edu/sex-offenselitigation-policy, (Pet.App. 163), describes the essence of petitioners’

civil commitment to MSOP; with the dismal statistic that petitioners

are “five times more likely to die at MSOP than be released.” Id. at

166.

As United States citizens in good standing, Petitioners’ deserve to

have the Court apply the proper legal standard to their claims and

make a merit-based determination, regarding their fundamental right

to free speech, free exercise of religion, and political freedom through

current/modern/necessary communication models, as determined by

two Presidents of the United States and the United Nations. Pet.App.

93. Each has explicitly detailed Rights of Petitioners in this case. Id.

(White House claims internet has become a “pillar,” is “fundamental,”

and is “essential” to free speech and active participation in society. * *

-9* «

High-speed Internet service is no longer a luxury—it’s a necessity.”);

Id. (“President Barack Obama, who in 2015 said that ‘today, high

speed broadband is not a luxury, it’s a necessity.’”); and Id. (“Since

2012, the United Nations considers access to the internet as a human

right, stating every individual has the right to freely connect and

express themselves on the internet.”).

Such denial of rights should prompt Supreme Court scrutiny, to

determine what rights petitioners fundamentally retain as Americans.

STATEMENT OF THE CASE

Petitioners’ position is: They retain a First Amendment Right to

access the internet while hospitalized at MSOP; where petitioners are

five times more likely to die in captivity than be released by the

Shadow Prison.2 Pet.App. 166. Respondents were never required to

prove Turner concerns. This case is literally the result of the Eighth

Circuit’s refusal to issue proper memorial opinion on the merits of a

pro se civil case.

It’s petitioners’ belief this is due to intolerance

toward any citizen labeled sex offender within the Eighth Circuit’s

jurisdiction. The term sex offender itself, is a derogatory political term

used by unsavory politicians, government agents, and the American

2 www.thevoicesofocean.net

-10press to describe any citizen ever accused or convicted of a sexual

crime; but holds no rational description beyond the prejudicial political

defamation.

It is petitioners claim that the Eighth Circuit failed to write an

opinion on the merits, because petitioners obtained victory over the

respondents, under law, at every turn of the litigation.

Petitioners

aver they lost their case due to the political status—sanctioned

government animus—they are burdened with as citizens, whose

distant past include convictions for sexual offenses within the United

States.

For this case, Petitioners not only contracted an IT Expert to

support their First Amendment claims, but contracted an expert whom

literally developed and implemented some of the earliest security

software for internet applications; and continues to write internet

security software and applications to this very day. See Pet.App. 407;

484-525.

Mr. O’Leary has worked for 13 corporations, including major

airlines and the Santa Fe Railroad.

Pet.App. 462-63.

expert also recently earned his “JD law degree.”

Id.

Petitioners

Petitioners’

produced this quality case, while Respondents produced nothing to

-11support

their

claims,

but

empty

prejudicial

animus-driven

declarations, without any expert/factual support.

Notwithstanding the above, the District Court Granted a Motion to

Exclude petitioners’ expert and dismissed their case.

Petitioners’

appealed to the Eighth Circuit Court of Appeals and did not receive a

memorial opinion, but a one (1) paragraph, two (2) sentence per

Curiam ruling denying relief; demonstrating a judicial bias that has

existed for an extended period. See Karsjens v. Harpstead, 74 F.4th

561 (8th Cir. 2023); Van Ordenv. Stringer, 937 F.3d 1162 (8th Cir. 2018)

(endorsing paper-tiger procedures); Karsjens v. Piper, 845 F.3d 394

(8th Cir. 2017); Mead u. Palmer, 794 F.3d 932 (8th Cir. 2015); Willet v.

Smith, 627 Fed. Appx. 580 (8th Cir. 2015); Strutton v. Meade, 668 F.3d

549, 557 (8th Cir. 2012); Beaulieu v. Ludeman, 690 F.3d 1017 (8th Cir.

2012); Serna v. Goodno, 567 F.3d 944 (8th Cir. 2008); and SentyHaugen v. Goodno, 462 F.3d 876 (8th Cir. 2006); to name a few of more

than 55 appeals from these Shadow Prisons playing loose with the

United States Constitution.

The sheer number of litigations—both

frivolous and not—ought to demonstrate something is wrong with

these Shadow Prison programs.

-12What warrant’s this case to receive oversight?

This Court has

never ruled specifically whether internet access extends First

Amendment protection fundamentally.

If the United States of

America and it’s Constitution still means any Thing, then this

Supreme Court should Grant Certiorari, appoint counsel, and

determine what constitutional rights United States Citizens on the

bottom rung of American society retain under the First Amendment.

REASONS FOR GRANTING PETITION

Court Has Never Specifically Addressed Whether First

Amendment Protection Must Extend Access to Internet

and Technology-Based Media.

Justice Thomas acknowledged there are issues that “highlight!] the

principal legal difficulty that surrounds digital platforms-namely, that

applying

old

doctrines

straightforward.”

new' digital

platforms

rarely

Biden v. Knight First Amendment Institute at

Columbia Univ., 141 S. Ct. 1220, 1221 (2021) (Justice Thomas,

concurring).

The Court has addressed Internet-related cases on approximately

50 specific occasions.

But it has never answered directly, whether

First Amendment protection is extended to access the Internet and

constitutes a free speech right. But historically, as our society evolves,

-14II.

The Eighth Circuit Court of Appeals, as well as other

Circuit Courts Disagree with the Judgment Because

the Minnesota District Court and Appellate Panel

Failed To Follow Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993).

How Daubert Factors are Applied.

In numerous rulings prior to the instant one, the Eighth Circuit

has acknowledged, under Rule 702, the trial judge acts as a

gatekeeper, screening evidence for relevance and reliability. Polski v.

Quigley Corp., 538 F.3d 836, 838 (8th Cir. 2008) (internal marks

omitted); quoting Daubert, 509 U.S. at 589.

“Rule 702 reflects an

attempt to liberalize the rules governing the admission of expert

testimony.” Id. “The rule clearly is one of admissibility rather than

exclusion.” Id.; also see Robinson v. GEICO Gen. Ins. Co., 447 F.3d

1096, 1100 (8th Cir. 2006) (Rejection of expert testimony is “the

exception rather than the rule.”); U.S. v. Finch, 630 F.3d 1057 (8th Cir.

2011) (resolving doubts about the usefulness of expert testimony in

favor of admissibility). “The exclusion of an expert’s opinion is proper

only if it is so fundamentally unsupported that it can offer no

assistance...” Id.

District court’s gatekeeper “role should not, [j invade the province

of the jury, whose job it is to decide issues of credibility and to

-15determine the weight that should be accorded evidence.” U.S. u. Vesey,

338 F.3d 913, 917 (8th Cir. 2003).

“Expert testimony should be

admitted if it is based on sufficient facts, it is the product of reliable

principles and methods, and the witness has applied the principles and

methods reliably to the facts of the case.” Id.

Petitioners’

expert,

Mr.

O’Leary

“read

transcripts

[depositions/declarations] and reviewed documents that related to the”

case establishing “fundamental support” for his opinion. Vesey, at 917;

also see Finch, 630 F.3d at 1062; Hartley v. Dillard’s, Inc., 310 F.3d

1054, 1060-61 (8th Cir. 2002) (“[T]he factual basis of an expert opinion

goes to the credibility of the testimony, not the admissibility, and it is

up to the opposing party to examine the factual basis for the opinion in

cross-examination.”); Smith v. BMWN. Am., Inc., 308 F.3d 913, 920-22

(8th Cir. 2002) (describing case-specific information expert used to

support his opinion); Lauzon v. Senco Prods., Inc., 270 F.3d 681, 685693 (8th Cir. 2001) (same); Clark v. Heidrick, 150 F.3d 912, 914 (8th Cir.

1998) (same); Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d

1176, 1183 (8th Cir. 1997) (same); Hose v. Chicago Nw. Transp. Co., 70

F.3d 968, 975 (8th Cir. 1995) (same).

-16This Court has determined “specific factors, such as testing, peer

review, error rates, and ‘acceptability’ in the relevant scientific

community, some or all of which might prove helpful in determining

the reliability of a particular scientific ‘theory or technique.’” Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999); quoting Daubert. 509

U.S. at 593-594.

“Daubert’s general holding-setting forth the trial

judge’s general gatekeeping obligation-applies [] to testimony based on

technical and other specialized knowledge.” Id.

Court “endorses trial court discretion in choosing the manner of

testing expert reliability is not discretion to abandon the gatekeeping

function. I think it worth adding that it is not discretion to perform

the function inadequately.

Rather, it is discretion to choose among

reasonable means of excluding expertise that is fausse and science that

is junky. Though, as the Court makes clear today, the Daubert factors

are not holy writ, in a particular case the failure to apply one or

another of them may be unreasonable, and hence an abuse of

discretion.” Id. Kumho, 526 U.S. at 159 (Justice Scalia concurring).

The doctrine of Rule 702 is shared throughout the United States

Judiciary:

-17Lawes v. CSA Architects & Eng’rs LLP, 963 F.3d 72, 98-99 (1st

Cir. 2020); Independence of the Disabled v. Metro. Transp. Auth.,

11 F.4th 55 (2nd Cir. 2021); Foust v. United States, 989 F.3d 842,

846 (10th Cir. 2021); U.S. v. Arthur, 51 F.4th 560 (5th Cir. 2022);

Artis v. Santos, 95 F.4th 518 (7th Cir. 2024); In re: SemCrude

L.P., 648 Fed. Appx. 205, 213 (3rd Cir. 2016); and Mainstream

Loudoun v. Brd. of Trustees of the Loudoun Cty. Lib., 2 F. Supp.

2d 783, 793-97 (E.D. Va. 1998).

This case was not a close call, District Court clearly abused it’s

discretion. Glossip v. Gross, 576 U.S. 863, 890 (2015) (“District Court’s

conclusion that his testimony was based on reliable sources is reviewed

under the deferential abuse-of-discretion standard.”)

Courts’ Opinion of Internet Access Across the United

States Judiciary.

When it comes to technology and internet access, all United States

courts are in agreement with petitioners. Just a sample of the several

circuits across the nation that have clearly stated:

U.S. v. Becerra, 977 F.3d 373, 379 (5th Cir. 2020) (“We have

repeatedly emphasized that ‘access to computers and the

Internet is essential to functioning in today’s society;”’ quoting

U.S. v. Sealed Juvenile, 781 F.3d 747, 756 (5th Cir. 2015) (“The

Internet is the means by which information is gleaned, and a

critical aid to one’s education and social development.”); U.S. v.

Holm, 326 F.3d 872, 878 (7th Cir. 2003) (a ban on all Internet

use “renders modern life Q exceptionally difficult”); U.S. v.

Peterson, 248 F.3d 79, 83 (2nd Cir. 2001) (per curiam) (vacating a

special condition imposing restrictions on computer ownership

because, in part, “[cjomputers and Internet access have become

virtually indispensable in the modern world of communications

and information gathering”); U.S. v. Eaglin, 913 F.3d 88, 98 (2nd

Cir 2019) (“access to the Internet is essential to reintegrating

-18supervisees into everyday life k k k when imposing the sweeping

Internet ban challenged here, the District Court did not address

on the record the likely adverse impact of isolating Eaglin from

these important positive uses of the Internet or engage in any

explicit balancing of these competing interests.”); Becerra, 977

F.3d at 380 (affecting Petitioners’ “substantial rights because of

the ubiquity and importance of the Internet to the modern

world.”); Piasecki u. Court of Common Pleas, 917 F.3d 161, 170,

n. 73 (3rd Cir. 2019) (“in a time where the daily necessities of life

and work demand not only internet access but internet fluency,

0 courts need to select the least restrictive alternative for

achieving their □ purpose.”); U.S. v. Ellis, 984 F.3d 1092, 11041105 (4th Cir. 2021) (“the majority of circuits have held that a

complete ban on internet access is overbroad even where the

record contains evidence of non-contact child pornography

activity, or similar conduct, on the internet, k k k ...it is unclear

whether any internet restriction could be established as

reasonably necessary Q, let alone a complete ban.”); U.S. v.

Crume, 422 F.3d 728, 733 (8th Cir. 2005) (“We are not convinced

that a broad ban from such an important medium of

communication, commerce

and information-gathering is

necessary given the absence of evidence demonstrating more

serious abuses of computers or the Internet.”); U.S. u. Ullmann,

788 F.3d 1260, 1261 (10th Cir. 2015) (An absolute Internet ban

prohibits “a means of communication that has become a

necessary component of modern life.”); U.S. u. Duke, 788 F.3d

392, 400 (5th Cir. 2015); U.S. v. Greenberg, 2021 WL 5373355, at

* 3 (6th Cir. 2024) (“We acknowledge that the internet’s

ubiquitous nature in today’s modern life is practically

unavoidable.”); and United States v. Holm, 326 F.3d 872, 878

(7th Cir. 2003) (“Various forms of monitored Internet use might

provide a middle ground between the need to ensure that Holm

never again uses the Worldwide Web for illegal purposes and the

need to allow him to function in the modern world.”).

The above-cases repeatedly cited the ideals of the Judiciary

regarding this case.

The Eighth Circuit’s inability to apply the

doctrine of the Judiciary, or even it’s own doctrine, means the Eighth

Circuit has abused it’s reviewable power.

-19Patrick O’Leary’s been admitted as an internet expert by other

courts.

Consulnet Computing, Inc. v. Moore, 2008 U.S. Dist. LEXIS

10132 (E.D. Pa., Feb. 12, 2008) Case No. 04-3485 (“The court will

admit testimony from O’Leary in the area of website programming and

development.”); Gordon v. Arcanum Investigations, Inc., 646 Fed.

Appx. 18 (2nd Cir. N.Y., Apr. 15, 2016) (Mr. O’Leary “who was an

expert in credit-card vending transactions.”); and U.S. v. Zafar, 291

Fed. Appx. 425, 426, n. 1 (2nd Cir. 2008) (“...limiting the testimony of

his computer expert, Patrick O’Leary k k k district court did allow

O’Leary to offer a more general expert opinion...”).

At most, Court could have restricted some subject-matter of Mr.

O’Leary’s testimony, but it was an abuse of discretion to exclude it

altogether. Daubert, 509 U.S. at 590 (“Proposed testimony must be

supported by appropriate validation-i.e., ‘good grounds,’ based on what

is known. In short, the requirement that an expert’s testimony pertain

‘scientific knowledge’

establishes

standard of evidentiary

reliability.”); also see Glossip, 576 U.S. at 890 (“we are not persuaded

[[testimony should have been rejected because of some of the sources

listed in his report.

k k k

[whereas court determined expert was] ‘well-

qualified to give the expert testimony that he gave’ and that ‘his

-20testimony was the product of reliable principles and methods reliably

applied to the facts of this case.”’).

Does America practice one set of ideals for haves and a different set

of ideals for the have not’s? The Eighth Circuit is just wrong! The

Eighth Circuit needs to be reigned in and told they are wrong to hold

these apparent distinctions.

Petitioners deserved, but were instead

denied by the Eighth Circuit “the opportunity to have the facts of their

case considered in the light of the constitutional protection that 42

USC § 1983 is meant to provide.” DeShaney v. Winnebago Soc. Serv.

489 US 189, 213 (1989) (Justice Blackmun, dissenting.)

Our Constitution literally and proudly proclaims: “We the People of

the United States, in Order to form a more perfect Union, establish

Justice, insure domestic Tranquility, provide for the common defence,

promote the general Welfare, and secure the Blessings of Liberty to

ourselves and our Posterity, do ordain and establish this Constitution

for the United States of America.”

added).

U.S. Const, Preamble (emphasis

It does not proclaim “only the people we like” nor does it

proclaim “the people we hold no animus toward.”

includes everyone - even Petitioners.

The Constitution

-21III.

The Eighth Circuit Court of Appeals Ruled Contrary to

It’s Own Circuit Doctrine, That of the Other Circuits of

Our Great Nation, and in Violation of This Court’s

Doctrine?

First Amendment Argument.

The total ban on modern technology / internet clearly and

unmistakably

violates

the

First Amendment

and

Fourteenth

Amendment rights of Petitioners. There are several disputed facts,

contrasting Respondents characterization of them being undisputed;

which have been presented to both the District Court and the Eighth

Circuit Court of Appeals, to no avail. Pet.App. 24-28.

This case deserves supervisory oversight, because the Eighth

Circuit is outside of it’s own long-held doctrinal position of the instant

issues and is, therefore, just prejudicial against petitioners.

The Eighth Circuit made an “observation nearly two decades ago

that the internet is an ‘important medium of communication,

commerce, and information-gathering,’ (id. Crume, 422 F.3d at

733) has by now become an understatement. Using the internet

for such basic tasks as paying bills, finding directions, checking

the weather, scheduling medical appointments, or searching and

applying for a job is not just commonplace. It is, in many

respects, the norm. Accordingly, prohibitions on the use of the

internet and internet-capable devices that are more restrictive

than necessary to protect the public and achieve the other goals

of [rehabilitative services] might very well end up being counter

productive, creating needless obstacles to defendants’ ability to

re-enter, and become productive and engaged members of, their

-22communities.” U.S. v. Norris, 62 F. 4th 441, 454 (8th Cir. 2023);

Judge Kelly concurring.

The

Eighth

Circuit

also

said:

“Computer-and

internet-use

restrictions, [] cannot be categorically imposed on all sex offenders, but

instead must be justified by ‘an individualized inquiry into a particular

offender’s circumstances.’” Id. (emphasis added).

Respondents literally submitted/averred blank assertions without

proof was not enough for the District Court to grant Summary

Judgment. Pet.App. 24-28, 55-57. Nor could the appellate court fail to

reverse the District Court where such clear and pointed error exists

this was not a close case—Petitioners’ soundly beat Respondents

motion for summary judgment. Pet.App. 63-64. The Eighth Circuit

credited “a legal conclusion couched as a factual allegation” or “naked

assertions devoid of further factual enhancement.” Ashcroft u. Iqbal,

556 U.S. 665, 678 (2009) (cleaned up); also see Pet.App. 67-68;72-78.

In evaluating factual issues, the court is to view the evidence in the

light most favorable to the non-moving party and draw all permissible

inferences in the non-moving party’s favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986).

Petitioners’ deposed Respondents, gleaned several controversial

theories, that only proves Summary Judgment was inappropriate for

-23this case. Texas v. Lesage, 528 U.S. 18, 20 (1999) (per curiam); also see

Pet.App. 51-63. Depositions established Respondents are only acting

upon fear, laziness, and suspicion; not evidence of any fact and there

exists questions, which hang in the balance.

legitimate,

individual

and/or

therapeutic

Therefore, no actual

interests

have

been

established. Contrary to the result of the Court and the averments of

Respondents: “The right of freedom of speech and press includes not

only the right to utter or to print, but the right to distribute, the right

to receive, the right to read and freedom of inquiry, freedom of thought

and freedom to teach.” Griswold v. Connecticut, 381 U.S. 479, 482

(1965).

This Court has held that “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner, Safley, 482 U.S. at

89. However, Petitioners are not in a “prison,” but rather a “hospital,”

or shadow prison. Therefore, finding penological application of Turner

factors are inappropriate. The Eighth Circuit wrongfully applied these

factors to Petitioners. The appellate court relied upon a case where the

parties both chose to say Turner factors applied. Beaulieu, 690 F.3d at

1039. Petitioners never once agreed those factors apply, yet the Court

-24enforced

them

with

impudence;

lacking

proper

jurisdiction,

inappropriately. Pet.App. 65-68.

This Court agrees that even when the government has a

compelling interest in restricting one channel of speech, there must be

“ample alternative channels” left open.

Ward u. Rock Against

Racism, 491 U.S. 781, 791 (1989) {emphasis added).

The Supreme

Court uses the word “ample” not as an afterthought, but as a real

safeguard. See, e.g., Linmark Assoc., Inc. u. Willingboro Tp., 431 U.S.

85, 93 (1977).

Petitioners do not have ample First Amendment

alternatives. Petitioners’ right to receive information, practice their

religious faith, or conduct other important First Amendment activities

appropriately is at stake here, all of which are being denied. Pet.App.

14-16.

In sum, if the restriction were narrowed to only those individuals

who committed their crimes using one of the banned technologies, or if

the policy were purged of its breadth and vagueness, MSOP could still

allow Petitioner’s the opportunity to use modern technologies upon the

individual’s voluntary consent to the installation of monitoring

software.

By doing so, Respondents could cure the “narrowing”

problem while leaving open sufficient channels of communication.

-25There is not the slightest reason to believe that such a simple solution

is insufficient to address MSOP’s legitimate, rather than speculative,

concerns for potential “abuses.” See Pet.App. 273-275;393;454;536.

Respondents may effectuate a compelling interest only “by

narrowly drawn regulations designed to serve those interests without

unnecessarily interfering with First Amendment Freedoms.” Sable

Communications v. FCC, 492 U.S. 115, 126 (1989). Yet, Respondents

are

doing the

exact opposite,

not leaving ample

alternatives

synonymous with what is available via modern technology.

MSOP must choose “the least restrictive means to further the

articulated

interest.”

Id.

Sable,

Court

considered

the

constitutionality of a statute regulating “sexual expression which is

indecent but not obscene,” a form of speech protected by the First

Amendment.

Id.

It is not enough to show that [MSOP’s] ends are

compelling; the means must be carefully tailored to achieve those

ends.” Id.

In Sable, the Court declared unconstitutional a statute banning all

“indecent” commercial telephone communications.

The Court found

that the government could not justify a total ban on communication

that is harmful to minors, but not obscene, by arguing that only a total

-26ban could completely prevent children from accessing indecent

messages. Id. at 128. The Court held that without evidence that less

restrictive means had “been tested over time,” the government had not

carried its burden of proving that they would not be sufficiently

effective. Id. at 128-29.

To satisfy strict scrutiny, Respondents must do more than

demonstrate that it has a compelling interest; they must also

demonstrate that the policy is necessary to further that interest.

“When the government defends a regulation on speech as a

means to redress past harms or prevent anticipated harms, it

must do more than simply ‘posit the existence of the disease

sought to be cured.’ It must demonstrate that the recited harms

are real, not merely conjectural, and that the regulation will in

fact alleviate these harms in a direct and material way.” Turner

Broadcasting System, Inc. v. FCC 512 U.S. 622, 664 (1994).

“As Justice Brandeis reminded us a ‘reasonable’ burden on

expression requires a justification for stronger than mere

speculation about serious harms. ‘Fear of serious injury cannot

alone justify suppression of free speech and assembly. Men

feared witches and burnt women.... To justify suppression of

free speech there must be reasonable ground to fear that serious

evil will result if free speech is practiced.” U.S. v. Treasury

Employees, 513 US 454, 475 (1994); quoting Whitney v.

California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring));

see also Edenfield v. Fane, 507 U.S. 761, 770-771 (1993); Los

Angeles v. Preferred Communications, Inc., 476 U.S. 488,496

(1986) (“This Court may not simply assume that the [policy jwill

always advance the asserted state interests sufficiently to justify

its abridgement of expressive activity”) (internal quotation

marks omitted).

-27Respondents

bear

this

burden

because

“[t]he

interest

encouraging freedom of expression in a democratic society outweighs

any theoretical but unproven benefit of [restriction].” Reno v. ACLU,

521 U.S. 844, 885 (1997).

This Court took a similar approach in Packingham v. North

Carolina, 582 U.S. 98, 104-105 (2017) recognizing both the “vast

potential” and serious risks connected with the “revolution of historic

proportions” wrought by new communicative technologies. Id.

Respondents failed to satisfy that the policy will further a

compelling interest of the state. In summary, Respondents asserted a

broad right to restrict the expressive activity of the receipt and

communication of information through the internet with a policy that

supposedly (1) address a compelling government interest but is not

necessary to further such interest; (2) is not narrowly tailored; and (3)

fails to employ the least restrictive means available to further that

interest. The policy offends the guarantee of free speech in the First

Amendment and this court in Perry Ed. Assn. v. Perry Local Ed. Assn.,

460 US 37, 45 (1983).

Petitioners are not subject to the controls of parole or probation. In

fact, they may not be “punished at all.” Kingsley v. Hendrickson, 576

-28U.S. 389, 400 (2015).

The Eighth Circuit agreed “civilly committed

individuals may [not] be punished.” Karsjens v. Lourey, 988 F.3d 1047

• 1052 (8th Cir. 2021); citing Bell v. Wolfish, 441 U.S. 520, 535 (1979).

MSOP’s total ban on modern technology does not leave open ample

alternative channels for communication of information despite the

Respondents attempts to say they do, refer to Daywitt’s Second and

Third Declarations for Summary Judgment. TH|4-9 (second declaration).

7-17 (third declaration).

This Court reiterates, “cell phones and the services they provide

are ‘such a pervasive and insistent part of daily life’ that carrying one

is indispensable to participation in modern society.” Carpenter u.

United States, 585 U.S. 296, 298 (2018); quoting Riley v. California,

573 U.S. 373, 385 (2014); see also Packingham, supra. Petitioners are

serving a lifetime of civil commitment and confinement to Minnesota’s

Shadow Prison.

Pet.App. 166 (“MSOP constitutes an unofficial, but

very real, life sentence.”); also see Pet.App. 234 (Minnesota Governor:

“civil commitments have turned into virtual life sentences.”).

The First Amendment has long been made applicable to the states,

and “its protections are at the core of our democratic society.” PhelpsRoper v. City of Manchester, Mo., 697 F.3d 678, 686 (8th Cir. 2012);

-29citing Gitlow v. New York, 268 U.S. 652, 666 (1925). “Our nation has a

“profound national commitment to the principal that debate on public

issues should be uninhibited, robust, and wide-open.” N. Y. Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964).

Respondents continued to make averments that Petitioners will

misuse the internet, however, never gave any proof whatsoever,

beyond conjecture and speculation.

Pet.App. supra.

Respondents’

restrictive ban to use any website and essentially criminalize a

substantial amount of protected speech—from associating with friends,

family or businesses over the Internet—the most common method of

communication in the modern age—the restriction is overbroad. U.S.

v. Williams, 553 U.S. 285, 297 (2008).

“In those cases, an individual whose own speech or expressive

conduct may validly be prohibited or sanctioned is permitted to

challenge a statute on its face because it also threatens others

not before the court-those who desire to engage in legally

protected expression but who may refrain from doing so rather

than risk prosecution or undertake to have the law declared

partially invalid. If the overbreadth is substantial, the law may

not be enforced against anyone, including the party before the

court, until it is narrowed to reach only unprotected activity,

whether by legislative action or by judicial construction or

partial invalidation.” Brockett v. Spokane Arcades, Inc., 472 US

491, 503-04 (1985).

This “Court struck down an ordinance prohibiting any First

Amendment activities at Los Angeles International Airport

because the ordinance covered all manner of protected,

-30nondisruptive behavior including talking and reading, or the

wearing of campaign buttons or symbolic clothing.”

Packingham, 582 U.S. at 108-09 (internal marks and citation

omitted). “If a law prohibiting all protected expression at a

single airport is not constitutional, it follows with even greater

force that the State may not enact this complete bar to the

exercise of First Amendment rights on [internet activity,]

integral to the fabric of our modern society and culture. Id.

“[W]hatever the challenges of applying the Constitution to everadvancing technology, the basic principles of freedom of speech and the

press, like the First Amendment’s command, do not vary when a new

and different medium for communication appears.” Brown v. Entm’t

Merchants Ass’n, 564 U.S. 786, 790 (2011) (internal marks omitted);

quoting Burstyn v. Wilson, 343 U.S. 495, 503 (1952); also see Moody v.

NetChoice, 144 S.Ct. 2383 (2024).

“While there are numerous other examples of the incoherence of

the [position], the foregoing examples make the point starkly.

The

[respondents position] is expansive and unclear, even after good

defense lawyers tried to make sense out of it.

In short, it is not

narrowly tailored.” Id Doe v. Neb., 898 F. Supp. 2d 1086, 1117 (D.Neb.

2012). “[0]ne is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be exercised in

some other place.” Reno, 521 U.S. at 880; quoting Schneider v State

(Town of Irvington), 308 U.S. 147, 163 (1939).

- 31 As established by vast amounts of evidence gained through

Defendants’ depositions, none could give one iota of valid evidence that

internet

not

appropriate.

Pet.App.

54-55.

Respondents

demonstrated “evidence of intentional falsity,” and the petitioners’

should have been able to “survive summary judgment.”

Kinder v.

Acceptance Components Inc. Cos., 423 F.3d 899, 906 (8th Cir. 2005).

Because “[i]t has long been established that Qdeliberate deception of a

court Qby the presentation of known false evidence is incompatible

with rudimentary demands of justice.” Banks v. Dretke, 540 U.S. 668,

694 (2004). That occurred here.

Respondents produced no material evidence why Petitioners are

unable to have access to the internet. Pet.App. 54-55. Respondents'

unsubstantiated statements that Petitioners’ are going to commit acts

of nefarious conduct if they obtain access to modern technology is all

that is in the record. Pet.App. 26-28. Unsubstantiated statements just

are not good enough.

In light of the constitutional protections of the First Amendment,

this Court has “often recognized that such speech occupies the highest

rung of the hierarchy of First Amendment values and merits special

protection.”

Snyder v. Phelps, 562 U.S. 443, 452 (2011) (internal

-32marks/citations omitted). Yet denial of this exact thing is what courts

did in this instance.

In summary, the courts burdened substantially more speech than

necessary to further the government’s legitimate interests. The denial

of internet, violates the First Amendment.

Expert Exclusion.

Respondents argued petitioner’s Expert lacked the necessary

requirements to serve as an expert, and then moved for his exclusion.

The proper analysis is Daubert, 509 U.S. 579 (1993).

The District

Court abused it’s discretion and excluded Patrick O’Leary as an expert.

Where this runs afoul? It is not in line with any case law that

governs this issue.

This issue has been heavily litigated in several

cases, both within and outside Eighth Circuit and there exists clear

consensus. District Court failed to employ those standards; and the

Eighth Circuit Court of Appeals failed to properly address the issue at

all in it’s one paragraph, two sentence per curiam ruling.

The Eight Circuit has repeatedly ruled “the rejection of expert

testimony is ‘the exception rather than the rule.’” Perry, 61 F.4th at

605; quoting Robinson, 447 F.3d at 1100; also see Finch, 630 F.3d at

-331062 (resolving doubts about the usefulness of expert testimony in

favor of admissibility); also see above citations.

Petitioner’s expert holds two Bachelor’s degree, one in Electrical

Engineering and the other in Computer Science.

additionally

holds

seven

separate

Pet.App. 251. He

information

Technology

Certifications which includes: Certified Information Systems Security

Professional (CISSP), Certified Ethical Hacker, Certified Hacking

Forensic Investigator, ICS2 (qualifying O’Leary to certify CISSP

results).

Pet.App.

461-462.

“Generally speaking,

an expert’s

methodology should be deemed reliable when that expert derives

[their] courtroom opinions using the same level of rigor that

characterizes practice in the relevant field of expertise.” 29 Charles A.

Wright & Victor J. Gold, Federal Practice and Procedure: Evidence §

6268.1 (2d ed. Apr. 2023 Update).

Eighth Circuit went against it’s own well-established doctrinal

principles.

Petitioners’ can only adopt the supposition of some non

judicial reason for the Judgment; such as bias, or prejudice; to help

Minnesota keep it’s secret of the Shadow Prison and subsequent

human rights abuses by oppressing Petitioners’ speech.

-34C.

Application of the First Amendment Free Exercise

Claims.

The Shadow Prison policies place a substantial burden on

Plaintiffs’ ability to practice religion. Patel v. U.S. Bureau of Prisons,

515 F.3d 807, 813 (8th Cir. 2008). For this claim, “substantial burden”

constitutes a denial of Plaintiffs’ “reasonable opportunities to engage in

those activities that are fundamental to [Plaintiffs’] religion.”

Id.

(internal quotation and citation omitted).

No petitioner has proper access to their respective religion. These

First Amendment restrictions serve no purpose other than to hinder

Petitioners’ faith in God, as they understand their God. Cruz v. Beto,

405 U.S. 319, 322 (1972) clearly states Plaintiffs retain First

Amendment protections, including its directive that no [policy] shall

prohibit the free exercise of religion; also see Thomas v. Gunter, 32

F.3d 1258,

1260-61

(8th Cir.

1994), holding that unelaborated

assertions between a facilities regulation of First Amendment activity

and the facilities interest in security were insufficient to support

granting summary judgment. Id] see O’Lone v. Estate of Shabazz, 482

U.S. 342, 358 (1987) (holding that “if a regulation merely restricts the

time, place, or manner in which [patient] may exercise a right, a

[facility] regulation will be invalidated Q if there is no reasonable

-35justification for official action”). Here there is no justification for the

action, as there is software that is available to do the very thing

respondents say they need to do.

“The essence of all that has been said and written on the subject is

that only those interests of the highest order and those not otherwise

served can overbalance legitimate claims to the free exercise of

religion.” Wisconsin v. Yoder, 406 US 205, 215 (1972). See Fulton v.

City of Philadelphia, 593 U.S. 522, 540-41 (2021), quoting Church of

the Lukum Babalu Aye v. City of Hialeah, 508 US 520, 546 (1993), in

turn quoting Yoder 406 US at 215; McAllen Grace Brethren Church v.

Salazar, 764 F.3d 465, 472 (5th Cir 2014) (quoting Yoder).

IV.

Does the Eighth Circuit Court of Appeals Hold a

General Bias Toward Any Person Labeled “Sex

Offender?”

When it comes to petitioners, the Eighth Circuit has ruled:

“Persons who have been involuntarily committed are entitled to more

considerate treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish;” Pet.App.

58;86; see Serna, 567 F.3d at 949; quoting Youngberg 457 U.S. at 321322.

Considering the realized “more considerate treatment” offered

-36-

convicted criminals in the Eighth Circuit, there is definitely something

wrong with the application of law in Minnesota.

Even the Chief Judge for the District of Minnesota, has now

publicly warned these respondents of what—it want’s to rule—is

wrongful activities, in an attempt to thwart the despotically

administrated Shadow Prison. Pet.App. 231. The Honorable John R.

Tunheim so eloquently acknowledges, the Minnesota District Court is

denying “claims because the Eighth Circuit significantly narrowed the

scope of a Fourteenth Amendment claim for confinement conditions at

MSOP in the Karsjens litigation.” Id.

What Judge Tunheim is really saying is the unwritten Rule of

Might in Karsjens, from the Eighth Circuit, has taken over the District

Court in Minnesota; and left citizens inside this Circuit in

unconstitutional peril, exposed to the whimsical policies of the animus

laden Shadow Prison; without regard to constitutional ideals, because

it does not like those citizens.. Karsjens u. Harpstead, 74 F.4th 561

(8th Cir. 2023), rehearing denied by Karsjens v. Harpstead, WL

5920137 (8th Cir. Sept. 12, 2023), certiorari denied by Karsjens v.

Harpstead, (U.S., Feb. 20, 2024); see also Gering v. Geo Group Inc.,

Case No: 2:16-cv-267-FtM-99MRM, n. 4 (D. Fla. Fort Myers Div. March

-371, 2017) (The Eighth Circuit “appears to run afoul of the Supreme

Court’s statements in Foucha and Hendricks.”) (citations omitted.) See

Foucha v. Louisiana, 504 U.S. 71, 80 (1992) and Kansas u. Hendricks,

521 U.S. 346, 358 (1997) (both holding that proof of dangerousness

must be coupled with a finding of mental illness to justify continued

civil detention); compare Karsjens 845 F.3d at 411 (finding no

constitutional infirmity in the Minnesota SVP statute).

The Eighth Circuit Court of Appeals dismal record when it comes

to protecting civilly committed citizens labeled as “Sexually Violent

Predator” or “SVP’ is paramount here. The level of bias engaged for

any case promoting civil commitment of people suspected or labeled

SVP is evident. Karsjens u. Harpstead, 74 F.4th 561 (8th Cir. 2023)

cert denied (U.S., Feb. 20, 2024); Karsjens u. Lourey, 988 F.3d 1047 (8th

Cir. 2021); Branson v. Piper, No: 23-1160 (8th Cir. 2019), dismissed;

Lonergan v. Ludeman, Civil No. 16-02066 (JRT/LIB), (D. Minn., Dec.

29, 2022), appeal dismissed; Hogy v. Ludeman, No: 23-1177 (8th Cir.

Minn., June 22, 2023); Van Orden v. Stringer, 937 F.3d 1162 (8th Cir.

2019); Andrews v. Schafer, 888 F.3d 981 (8th Cir. 2018); Karsjens v.

Piper, 845 F.3d 394 (8th Cir. 2017), cert denied (U.S., Oct. 2, 2017);

and Strutton u. Meade, 668 F.3d 549 (8th Cir. 2012), cert denied (U.S.

Oct. 1, 2012).

-38Defendants’ sold the idea to the district court: That Plaintiffs’

should “be driven from the field [of litigation], not by the rule of right,

but rather by the power of might.” Marconi Wireless Telegraph Co. v.

Kilbourne & Clark Mfg. Co., 235 F. 719, 722 (Ca. D. 9th Cir. 1916).

Justice may be better served if “it involves the exchange of an

‘independent

decisionmaker’

for

‘avowedly

politicized

administrative agent seeking to pursue whatever [political] whim may

rule the day.’” Voigt v. Coyote Creek Mining Co., LLC, 980 F.3d 1191,

1204 (8th Cir. 2020); quoting Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1153 (10th Cir. 2016) (Gorsuch, J., concurring).

On the field of battle here, Petitioners repeatedly exceeded the

legal expectations to gain summary judgment or proceed to trial by a

jury of their peers. Pet.App. 52-64. The un-refuted evidence produced

exceeds that which is required to proceed for trial.

Therefore

certiorari is necessary to preserve the notion of a fair and impartial

judiciary, applying American ideals, which made this country great.

Without Supreme Court intervention, petitioners’ quite literally

have no constitutional rights—being members of the union, on the

lowest ladder-rung of American society.

-39V.

Did Court err, disposing the case per curiam, without

memorandum, where disposition opposes this Court’s

Ruling in Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579 (1993)?

Court disposed of this case Per Curiam, even though the ruling

conflicts with this court’s holding in Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. at 588-590. Mr. O’leary’s Reports (Pet.App. 229-598) and

testimony (Pet.App. 23, 33, 40) satisfies the “standard” established in

Daubert to proceed. Id. For the short complaint: It is the improper

exclusion of petitioners’ expert that disposed of a case the Minnesota

District Court did not want to adjudicate at trial. The Eighth Circuit,

with it’s per curiam ruling, declined to give review of this issue with a

memorandum at all.

This constitutes misuse of the appellate

procedure and deserves Court intervention to correct.

VI.

Does Ruling Create Paper-Tiger Application of Eighth

Circuit Rules? Are Petitioners Harmed Where They

Have a Right to Free Exercise, to Vote Intelligently, to

Participate in Society; Which is Reduced to Paper-Tiger

Rights with No Enforcement?

On paper, petitioners have certain rights, which may be reduced

with proper application of Professional Judgment.

Youngberg, 457

U.S. at 321-322. Court has now read the case, petitioners’ think the

answer obvious. Either we are a people of law, or not.

-40-

CONCLUSION

Where decades of established jurisprudence is being ignored, or

otherwise circumvented, Petitioners respectfully request that the

Court issue a writ of certiorari to resolve the present conflict,

demonstrated animus throughout the Eighth Circuit; hold that proper

standards must prevail here; compel the Eighth Circuit to apply the

legal standards as proclaimed by this Court.

Respectfully Submitted,

Kenneth Daywitt

100 Freeman Dr.

St. Peter, MN 56082

1111 H

Moose Lake, MN 55767

tnirUL ujLl

Steven Hogy

1111 Hwy. 73

Moose Lake, MN 55767

PeterLonergan

Nil Hwy. 73

Moose Lake, MN 55767

Michael Whipple

Nil Hwy. 73

Moose Lake, MN 55767

-41 —

INDEX TO PETITIONERS APPENDIX

Eighth Circuit Court of Appeals Rehearing En

Banc................................................................................

PA1

Eighth Circuit Court of Appeals Per Curiam

Order...............................................................................

PA2-3

Petitioners Appeal Brief.............................................

PA4-71

Petitioners Reply Brief................................................

PA72-102

District Court Order On Motion For Amended Or

Additional Findings And Relief From Judgment.......PA103-107

District Court Order Adopting R&R Judgment.....

PA108-119

District Court Magistrate Report and

Recommendation...........................................................

PA120-152

Sullivan v. Government of the United States of

America, Neutral Citation Number: [2012] EWHC

1680 (Admin); Case No: CO/1672/2011.....................

PA153-162

www.mitchellhamline.edu/sex-offense-litigationpolicy, Sex Offense Civil Commitment,

Minnesota’s Failed Investment and the $100

Million Opportunity to Stop Sexual Violence

(April, 2024)....................................................................

PA163-213

Ivey v. Ludeman, No. 05-2666 (JRT/FLN)...............

PA214-223

Miles v. Harpsteadt.......................................................

PA224-233

Letter to Governor Dayton to DHS Commis.

describing life sentence status...................................

PA234-236

Plaintiffs’ Expert Initial.Affidavit/Report................

PA229-404

Plaintiffs’ Expert Rebuttal to MTE

Affidavit/Report..............................................................

PA405-598

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.