11th US Ct of Appeals sends sex offender suit back to court

This is the longer and more detailed version of yesterday's headline.

http://blog.al.com/spotnews/2010/08/federal_appeals_court_reverses.html

Federal appeals court reverses ruling on sex offenders' lawsuit

Published: Thursday, August 12, 2010, 8:30 AM

KENT FAULK, BIRMINGHAM NEWS

A federal appeals court has reversed a U.S. District Court judge's decision to throw out a lawsuit filed by four sex offenders who say Jefferson County's sheriff should not be allowed to hold them after serving their sentences just because they are poor and don't have a place to

call home.

Alabama's Community Notification Act requires that before convicted sex offenders can be freed at the end of their sentences, they must provide an address where they will live after their release. The residence must meet certain requirements, including not being within a certain distance of a school.

If an inmate completes a sentence but can not provide an approved address, he or she can be held by the local sheriff in jail indefinitely, according to the state law.

U.S. District Court Judge Scott Coogler in February 2009 threw out the four sex offenders' lawsuit.

The four men appealed the judge's decision to the 11th Circuit Court of Appeals. Last week two of the three judges on the appeals panel issued an order reversing the judge's decision.

"The district court failed to appreciate that this claim, if successful, would not affect the validity of their conviction nor the resulting sentence imposed, and would not necessarily result in immediate release," according to the 11th Circuit Court of Appeals ruling.

One of the three judges had agreed that the judge had made the right decision in dismissing the case.

The lawsuit now goes back to Coogler, unless Hale or the State of Alabama seeks a rehearing before the appeals court.

"All this does really is let us proceed with this case," said Kira Fonteneau, attorney representing the sex offenders. "It's a great first step ... It (the appeals ruling) doesn't determine anything as to what is going to happen with the case."

Sheriff's officials said they will not appeal the ruling and will continue to fight the case in the lower court.

They feel strongly about it, Sheriff Mike Hale said, because victims of sexual assault and sexual abuse have a very difficult time putting their lives back together, if ever, especially victims who are children.

"The argument that these offenders have paid their debt carries little weight with us," Hale said. "The laws involving sex offenders were created with one thing in mind and that is to protect others from becoming victims."

"We strongly believe they are trying to create a loophole in that law by claiming to be indigent so they may go about in society unmonitored," Hale said. "We will fight that vigorously and look forward to the case being considered by the lower courts."

Closing a loophole

The sheriff said he will ask the state legislators to strengthen the law closing any such loophole possibility.

"We agree with the state of Alabama that they must provide a legitimate address before being released back into our society," he said.

Chief Deputy Randy Christian said investigators would have little success doing that if a sex offender was released without authorities having the ability to warn the public about who they are, what they look like and where they intend to live.

"Our job is to be advocates for crime victims and protect potential victims. Not only is that the right thing to do, but Sheriff Hale demands it," Christian said.

The four men -- Sidney Gipson, William McGuirk, Timothy Guthery and James Sasser -- had sued in 2008. Their lawsuit asks that a procedure be put in place to determine if they are indigent. If they are deemed indigent, provisions would be made for them to comply with the law without being indefinitely held in jail.

Lack of a process

If the state is going to require people to get housing then there ought to be some process for people who can't afford to get housing, Fonteneau said. "The law does not provide a process for law enforcement or the individual to deal with it ... There's just nothing there," she said.

Gipson and McGuirk remain in the Jefferson County Jail, while Guthery and Sasser have been released.

Fonteneau said she doesn't know exactly how many inmates in the Jefferson County jail are in the same position as the four men who filed the lawsuit.

Christian said Wednesday there were six inmates in the county jail who have provided addresses, but they aren't compliant with the law, so they haven't been released. Either the addresses don't exist or they fail to meet with guidelines, for example, being too close to a school, he said. One inmate continues to be held because he hasn't provided any address at all, he said.

E-mail: kfaulk@bhamnews.com