Summaries of Selected Opinions, 0218 COBJ, Vol. 47, No. 2 Pg. 78

Position::Vol. 47, 2 [Page 78]

47 Colo.Law. 78

Summaries of Selected Opinions

Vol. 47, No. 2 [Page 78]

The Colorado Lawyer

February, 2018


No. 16-6276. Carney v. Oklahoma Department of Public Safety. 11/28/2017. W.D.Okla. Judge Kelly. Sex-Offender Driver’s License—Claim Forfeited and Waived—First Amendment—Eighth Amendment—Fourteenth Amendment—Cruel and Unusual Punishment—Equal Protection. Based on his conviction for sexually abusing a child, plaintiff, an inmate, must register as an aggravated sex offender upon his release. Under Oklahoma law, this means he will have to acquire a driver’s license indicating he is a sex offender. Plaintiff fled suit, claiming this requirement violates the Eighth and Fourteenth Amendments. The district court dismissed the claims.

On appeal, plaintiff argued that the license requirement violates the First Amendment because it is compelled speech. The Tenth Circuit determined that plaintiff forfeited this claim because he had not mentioned the First Amendment in district court. Further, his failure to argue for plain error waived the argument in the appellate court.

Plaintiff also contended that the license requirement violates the Eighth Amendment because it constitutes cruel and unusual punishment. The Tenth Circuit compared the requirement with much harsher sentences that were held to be constitutional and found that the district court correctly dismissed this claim.

Lastly, plaintiff contended that the license requirement is unconstitutional under the Fourteenth Amendment. He argued that as an aggravated sex offender he has received a harsher punishment than others similarly situated, namely non-aggravated sex offenders and others who must register after committing various violent crimes and methamphetamine-related crimes. The Tenth Circuit determined that this equal protection claim fails because plaintiff cannot satisfy the similarly situated requirement. Moreover, even if he could satisfy this requirement, plaintiff could not prevail under rational basis review because the Oklahoma legislature’s findings provide a rational basis for the license requirement. And the license requirement does not trigger heightened rational basis review; it is not an aberrational law indicative of hostile lawmaking. Therefore, the license requirement is not unconstitutional under the Fourteenth Amendment.

The dismissal was affirmed.

No. 16-3305. United States v. Bagley. 12/18/2017. D.Kan. Judge Bacharach. Search and Seizure—Scope of “Protective Sweep” Doctrine.

Defendant was named in an arrest warrant charging him with violating the terms of his supervised release. Deputy U.S. marshals obtained a search warrant allowing entry into the house defendant occupied solely to locate and...

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