David Litmon, Jr. v. Kamala Harris
2014 U.S. App. LEXIS 19706
| 9th Cir. | 2014Background
- Litmon, Jr. was adjudicated a sexually violent predator under California law after prior sexual offenses and committed for treatment in 2000.
- Upon release in 2008, Litmon has continuously reported to a local police station every 90 days to register under Cal. Penal Code § 290.012(b).
- Section 290.012(b) requires in-person registration every 90 days listing address, place of employment, and employer information.
- Litmon sued under 42 U.S.C. § 1983, challenging the in-person 90-day registration as unconstitutional, including due process and equal protection theories.
- The district court dismissed Litmon’s claims; Litmon amended and appealed, asserting equal protection and related theories.
- The Ninth Circuit affirmed, holding the registration scheme constitutional under rational basis review and addressing ex post facto and equal protection arguments as to why they fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does in-person, 90-day registration violate due process as a fundamental right? | Litmon asserts a fundamental-right burden due to in-person appearances. | Registration is not a fundamental right and is rationally related to public safety. | Not a fundamental-right issue; rational basis review applied, upheld. |
| Does lifetime in-person registration violate the Ex Post Facto or Double Jeopardy Clauses? | Registration constitutes retroactive punishment. | Existing Supreme Court precedent sustains life-long in-person registration without violating ex post facto. | Ex Post Facto/Double Jeopardy claims fail; consistent with Smith v. Doe I and related decisions. |
| Are sexually violent predators similarly situated to mentally disordered offenders for equal protection purposes? | Both groups should face the same registration requirements. | SVPs are distinguishable due to conviction type and risk factors; rational basis supports stricter requirements. | SVPs are not similarly situated to mentally disordered offenders; equal protection upheld. |
| Are vagueness or APA claims preserved for review? | Section 290.012(b) lacks standards and fails APA/regulatory process. | Vagueness and APA claims were waived and not properly raised below. | Waived; remaining APA/vagueness challenges not considered. |
Key Cases Cited
- United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012) (in-person, 90-day registration not a fundamental right)
- Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004) (no fundamental right to registration schemes)
- Smith v. Doe I, 538 U.S. 84 (U.S. 2003) (ex post facto analysis for sex offender registration)
- ACLU of Nevada v. Masto, 670 F.3d 1046 (9th Cir. 2012) (in-person, 90-day registration not ex post facto)
- Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2003) (California in-person, annual, lifetime registration not ex post facto)
- Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999) (registration does not constitute custody for habeas purposes)
- In re Mortgage Elec. Registration Sys., Inc., 754 F.3d 772 (9th Cir. 2014) (waiver/adequacy of APA claim considerations in civil cases)