Vol. 14 No. 12- Current Status of Megan’s Law

California Lawyer October 1999

BRANDED

Chris Harrison Decker was just another tenant at the 531 W Wilson Street apart– ment complex in the Orange County city of Costa Mesa. He paid the $795-a- month rent for his two-bedroom apartment on time and got along with his neigh- -bors. “There was peace in rny life,” Decker recalls. But on September 8, 1998, several Costa Mesa police came by the complex with a stack of flyers that named Decker as a high-risk sex offender, convicted in 1977 of the rape of a 31-year-old Garden Grove woman. The flyer said, “The purpose of this release of information is to allow members of the public to protect themselves and their children from sex offenders.” The police included Decker’s mug shot and listed his tattoos, a bug and a flower on his chest.

The following day, Decker found a 30-day eviction notice nailed to his door. He had served eight years at the California Institute for Men in Chino and had moved to Costa Mesa to start over, pursuing his calling as a minister to street people. Now he found himself living what seemed to be a modern-day version of Nathaniel Hawthorne’s The Scarlet Letter.

FIVE YEARS AGO, WHEN SEVEN-YEAR-OLD MEGAN KANKA WAS MURDERED BY A parolee living in her New Jersey neighborhood, that state drafted “Megan’s Law” to notify communities of the sex offenders in their rnidst. Very quickly the law spread to other states. California, which has long had a sex offender registration statute, added a public hotline in 1994 and provisions for police notification of the community in 1996. From 1996 to 1997 the police distributed flyers for some 300 high-risk or other sex offenders who met certain criteria. High-risk individuals are those who have been adjudged as sexually violent predators or have been convicted of three sex offenses, at least two of which have been tried separately and at least one of which has been vio lent. Pen C §290(n)(1). Other sex offenders are those who have been adjudged mentally disordered or who have been convicted of rape, sodomy, vari- ous lewd acts, sexual assault or battery, or another enumerated sex crime. Pen C §290(a)(2). The state Department of Justice says that about 7,500 flyers have been printed in California, and last year 90,000 people accessed the state’s registered sex offender database–either through a CD-ROM at police stations or by calling a 900 phone number.

Such highly charged information has the power to make some people feel safe: Knowing where a convicted sex offender lives, they can conduct their lives accordingly. For others, the information engenders fear, which can some- times take the form of vigilantism. Police officers say notifi- cation is also forcing many offenders to go underground rather than comply with the registration law, a phenome- non dubbed “Megan’s Flight.” Neither problem will be solved by attacking the law constitutionally; challenges brought by the American Civil Liberties Union on behalf of individual offenders have been uniformly rejected. “[T]he Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose,” the New Jersey Supreme Court ruled in a key case. Doe v Poritz (1995) 662 A2d 367,372.

In the only published case arguably affecting California, the Ninth U.S. Circuit Court of Appeals upheld the constitu- tionality of Washington state’s Megan’s Law. Russell v Gregoire (1997) 124 F3d 1079.

With the constitutional issue settled, Megan’s Law, it seems, is something everyone just has to live with. But Decker and his lawyer, T Matthew Phillips of Hollywood, believe they’ve found a flaw in the statute. In an Orange Count), Superior Court suit filed in May, Phillips is challenging the implementation of Megan’s Law, claiming Costa Mesa police violated Decker’s due process rights by releasing his criminal record to residents of the apartment complex without a reasonable basis to do so. Decker i, City of Costa Mesa, Civ No. 809313.

“I did my time,” says Decker. “How can society just keep digging in?’

SOCIETY HAS BEEN DOING A LOT OF DIGGING IN. Perhaps more than any other measure, Megan’s Law reflects the belief that some people are simply beyond redemption. “For people who sexually abuse children, there is no cure,” insists activist Susan Carp enter-McMillan, executive director of the Women’s Coalition in Pasadena.

The New Jersey law has three levels of notification (high, moderate, low) depending on the risk of reoffense by the offender. If the risk is moderate to high, community notifica- tion is mandatory. If the offender, for example, is classified as a “moderate risk to reoffend,” community organizations such as schools will be notified. If the offender is classified as a “high risk to reoffend,” the general public that is likely to encounter the offender will be alerted. In Doe v Poritz the NewJersey high court also established due process safeguards to “ensure that deprivations of [privacy] interests occur only when justified by the risk posed by the offender’ “A prenoti- fication court hearing is required for moderate- and high- risk offenders. 662 A2d at 421.

In California, legislators mandated “passive” notification, that is, making available the database of 82,000 registered sex offenders to the public on CD-ROM. Pen C 5290.4. Active notification was left entirely to the discretion of police agen- cies. “As long as your actions are discretionary, you [the police officer] have immunity from civil liability,” explains attorney Martin J. Mayer of Mayer & Coble in Long Beach, who helped draft the law. Under Penal Code section 290(m)(1), a police officer who “reasonably suspects” that someone is at risk from a sex offender convicted of a serious crime may provide information about the offender to schools, day-care centers, organizations serving people likely to be -victimized, and community members at risk. For the state’s 68,000 “serious” sex offenders, there is no due process beyond whatever investigation the officer conducts. Penal Code section 290(n) covers the state’s 1,500 high-risk sex offend- ers and permits notice to the general community.

The statute’s first application generated a storm of con- troversy. In December 1996 police in the Orange County city of Placentia distributed flyers to neighbors of Sidney Landau, who had been paroled after serving a nine-year sentence for molesting an eight-year-old boy. According to Mayer, an attorney for the city, officers deemed Landau a risk in part because he told his parole agent he still fantasized about young boys.

Although Megan’s Law prohibits republishing information, harassing offenders, or denying them any benefits, Placentia residents demonstrated in front of Landau’s home with signs and bullhorns. They handed printed flyers to children at crosswalks. A handful of police officers were concerned about the public’s reacti . on, figuring it would only encourage other offenders to go underground. “We want them, as best they can, to assimilate back into society,” a Placentia detective said. Within weeks, Landau left the city and embarked on a strange odyssey through northern Orange County, flyers and protests fol- lowing at his heels.

Along the way, attorney Phillips contacted Landau, offering to represent him pro bono. “I thought, ‘My God, this is The Scarlet Letter,’ ” recalls Phillips. He interceded with police agencies in Placentia, Fullerton, and the city of Orange, trying to persuade them not to circulate flyers on Landau. Phillips’s efforts were to no avail. In April 1997 Landau was arrested for assaulting a news cameraman film- ing him as he left an Orange motel. “He was just desper- ate:’ says Phillips.

After Landau was sentenced to six months in prison for violating his parole, Phillips filed a federal civil rights Suit against Placentia, alleging, among other things, that Megan’s Law violates the Constitution’s double jeopardy and ex post facto clauses. A judge in Santa Ana dismissed the case in October 1998-a demurrer to an amended complaint is now pending. Landatt v Placentia (CD Cal) Civ No. SACV 97-857. In the meantime, Phillips also started fighting the law on behalf of Chris Decker.

BRASH AND BOYISH, PHILLIPS, 38, IS NOT CUT FROM the usual legal cloth. A professional musician, he pursued law as a second career, obtaining his degree from the University of La Verne College of Law. Since passing the bar in 1993 he has focused on discrimination and landlord-tenant cases. Eschewin ‘s, the standard leather briefcase, he carries his paper- work in a blue, metal case. As a headline in the Costa Mesa newspaper put it, “This attorney marches to a different beat.”

In the march against Megan’s Law, Phillips has pretty much been on his own. Although the ACLU has brought challenges in other states, it has been quiet in California. “One has to pick the plaintiff and choose the legal issue very carefully,” says Associate Director Elizabeth Schroeder of the ACLU of Southern California. “It’s something that should not be done lightly”

Russell Markvardsen, a Sonoma County offender who brought a civil rights claim against the Sonoma County Sheriff’s Department, the state attorney general, and the California Department of justice, obtained representation from a private attorney because a judge ordered it. Earlier this year Markvardsen voluntarily dismissed his case. “He wanted to put the case behind him:’says his former attorney, who asked not to be identified. Markvardsen has since moved to another state. Markvardsen v Lungren (ND Cal) No. C-97-3197-TEH.

Phillips acknowledges some people might perceive him in a less-than-flattering light. “They probably believe I’m here to promote’Love a Child MolesterWeek: ” he says. Some might also say he has found a way to make a name for himself. But Phillips insists that he is genuinely disturbed by the threat he says Megan’s Law poses to the due process and privacy rights that even sex offenders have. “There’s no island of lost souls where you can send these people:’says Phillips. “They have a right to live amongst LIS.”

At the Wilson Street apartments there was no refuge for Decker. After he ,vas identified as a high-risk offender, he says he was “spit on, cussed at, and threatened ‘ ” Some of his neighbors referred to him as a child molester, even though no crimes against children -~vere listed on the flyers. Decker could have joined Megan’s Flight. Instead, he chose to fight.

Decker contacted Phillips after hearing news reports on Landau’s case. Phillips filed an urilawful detainer suit, arguing that Decker’s landlord, Robert Stellrecht, acted simply on the basis of the flyers, and that that was a retaliatory action pro- hibited under Megan’s Law by Penal Code section 290.4(e).

But after a bench trial in January, Orange County Superior Court Judge Geoffrey T Glass found that the section applies only to information obtained through the 900 number or CD-ROM. “There is a fundamental difference between a registered sex offender and one who is considered an overt risk to the public,” he ruled. Stcllrecht v Decker (Jan. 15) Civ No. 98HC5109.

Decker, who, in any case, was sentenced to four months in prison in December 1998 for violating his parole by using drugs, lost his apartment. But the unlawful detainer laid the groundwork for Phillips to go ahead with a more far-reaching attack on the very process by which law enforcement decides who is a risk to the public.

Phillips claimed that Costa Mesa police acted without the reasonable suspicion required by the law, essentially outing” Decker on the basis of nothing more than his rap sheet. Reasonable suspicion, ar,,Lied Phillips, should require that an offender be engaged in suspicious activity. And whatever a police department decides, the offender, as in New Jersey, Should be allowed a prenotification hearing. “As a threshold mechanism, there has to be a judicial deter- mination,” says Phillips.

At a hearing in July, Orange County Superior Court judge Michael H. Brenner sustained the city’s demurrer, ,,vhich argued, in part, that the reasonable suspicion standard did not apply to high-risk offenders and, even if it did, the officers’ discretionary actions were immune frorn liability. But Phillips has amended the complaint and still believes he, has a test case. “I’m going all the way with this,” he promises. “This is the one. Hey-I wrestled a $17,000 engagement ring from Gloria Allred after two years of litigation. Changing Megan’s Law will be a piece of cake.”

EVEN THE SUPPORTERS AND ENFORCERS OF Megan’s Law adni=it it is far from perfect. They are troubled by the outbreaks of vigilantism toward offenders. In July 1998 Michael Patton, an offender who had just had flyers put out on him by Santa Rosa police, hanged himself from a redwood tree. A neighbor in the apartment complex where Patt6n had lived for three years described him as a “gentleman.”

Concerned about Megan’s Flight, some police depart- ments have adopted a flexible approach to enforcement. In La Habra, just northwest of Placentia, Police Captain John Rees says his officers notify the public about a serious offender orily as a last resort. “As long as they’re doing the things we expect them to do, we’re willing to withhold noti- fication,” he explains. They use the law as leverage. “We tell them to behave, or well put a flyer out on you.”

“We will lose Megan’s Law if it’s abused,” Nvarns Mayer. But Mayer doesnt think much of the safeguards favored by Ph-illips.Judges will be “very reluctant” to get into prenoti- fication hearings, he says. And such a procedure would also inipair the ability of officers in the field to use the la-,v. For example, if a sex offender is pulled over on a traffic viola- tion, officers may notify a female passenger of his record. “It would really interfere with field observations:’Mayer says.

Activist Carpenter-McMillan, who has campaigned for cheni=ical castration of some sex offenders, believes the prob- leni with Megan’s Law is that it has not been implemented enough. The offenders so far subjected to notification repre- sent less than 0.004 percent of the registered population. “Any person convicted of child molestation poses a danger to the community,” she protests. To combat harassment she suggests educating the public. “If you drive [the offender] out of your community, you wont know where he is; if you know where lie is, you can protect your children from him.”

No one is predicting a quick resolution to the issues that Megan’s Law raises. Maybe enforcement of the law’s anti- retaliation provisions would help. But what elected district attorney is going to file charges against someone who harasses the sex offender next door? Legislative action seems equally ui-Aikely “Although a legislator may think Megan’s Law is bad policy, it’s almost political suicide to propose Irernediall legislation notes the ACLUs Schroeder.

For Decker, then, privacy remains a tenuous privilege. He has moved to a new community, which he declines to dis close. The local police department, he reports, has been “very professional,” but he still lives in fear of his past catching up ,,vith him once again. “Every day I drive into the apartment 0′ complex I wonder,’Has the news leaked out?”