The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals means untold numbers of people convicted before the 2007 law was passed are subject to registration and law enforcement notification requirements.
AB579 was passed to comply with a federal law that was part of the Adam Walsh Child Protection and Safety Act of 2006, named after a 6-year-old boy who was abducted from a Florida shopping mall in 1981 and later found dead.
The American Civil Liberties Union sued on behalf of 12 sex offenders, arguing that many rehabilitated, low-risk offenders would be re-classified under the law and subject to public ostracism, even though they’ve remained out of trouble for years.
ACLU lawyers argued the law mixes serious sex offenders with people convicted of misdemeanors such as public nudity and could subject them to violence from neighbors who see their names and photos.
In 2008, U.S. District Judge James C. Mahan issued an injunction preventing the law from being applied retroactively. At the time, he expressed concerns that if Nevada posted its list of nearly 5,000 people convicted of sex crimes since 1956, there would be no way to restore their privacy if the law was later found to be flawed.
The attorney general’s office appealed, and on Friday, Attorney General Catherine Cortez Masto applauded the 9th Circuit’s ruling.
“It has been a long and necessary fight,” Mast said in a statement. “It creates a system that requires sex offenders to be subject to rigorous reporting requirements. We owe it to our community to do our best to protect our citizens, particularly those most vulnerable, from adult sex offenders.”
ACLU attorney Allen Lichtenstein said his office was reviewing the decision and has not ruled out appealing the panel’s decision to the full court.
He said a vast majority of less serious offenders convicted before the law took effect have “served their time and haven’t gotten into trouble again.”
He also questioned whether the state, given years of budget cuts, has the resources to enforce the law retroactively.
“I certainly wonder whether they can handle it and why they think it’s going to do good to have someone who’s been out of the system for decades and stayed out of trouble to have to go register,” he said.
Jennifer Lopez, spokeswoman for the attorney general’s office, said the Department of Parole and Probation “was prepared to move forward with implementation and has had the capacity to do so since 2007.”
She said the AG’s office has spoken with officials at the state criminal history repository and will meet with parole and probation administrators on how to proceed.
Another law passed in 2007, SB471, bars certain sex offenders from residing with 1,000 feet of a school or daycare facility and was also appealed by the ACLU. But the appeals court said that issue was moot after state lawyers stated it would not be applied retroactively.