United States District Court, D. Kansas
MEMORANDUM AND ORDER
GWYNNE
E. BIRZER UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on United States' Motion for
Clarification and Reconsideration of Magistrate Judge's
Order Setting Conditions of Release (ECF No.
11) and Defendant's Response (ECF No. 18). After
careful consideration, the Court GRANTS the
United States' request for clarification, but
DENIES the request for reconsideration.
I.
Background
On
April 23, 2019, the Defendant was indicted on three counts of
transportation of child pornography, using Microsoft's
Bing Image search engine, in violation of 18 U.S.C. §
2252A(a)(1) and one count of possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2).[1] These offenses are alleged to have
occurred in May, October, and November of 2018 and January of
2019.[2]
On May
1, 2019, Defendant made his initial appearance before the
undersigned Magistrate Judge.[3] After the initial appearance, the
undersigned conducted a detention hearing pursuant to 18
U.S.C. § 3142 (referred to herein as “§
3142”), and ordered the Defendant released on
bond.[4] As will be relevant here, the undersigned
also ordered Defendant to abide by the following additional
conditions of release: (1) no travel outside the District of
Kansas or Western District of Oklahoma without permission of
the Court or U.S. Probation Office; (2) no contact with any
minors without direct supervision of a responsible adult; (3)
no possession of any form of pornographic material; and (4)
submit to computer monitoring by the Probation Office and
follow the Probation Office's policies
restricting/prohibiting computer, cell phone and internet
usage.[5]
The
undersigned declined to order conditions of electronic
monitoring and curfew as requested by the United
States.[6] These conditions became mandatory under
§ 3142(c)(1)(B) for individuals charged with certain
child pornography offenses[7] when the Adam Walsh Child Protection
and Safety Act (“Adam Walsh Act”)[8] was enacted in
2006. But, based on previous caselaw from this District and
the factual situation presented to the Court, the undersigned
found mandatory imposition of these conditions
unconstitutional and unnecessary as applied to
Defendant.[9] The United States takes issue with the
Court's authority to make this finding.
II.
Adam Walsh Act Amendments to 18 U.S.C. § 3142
The
release or detention of a defendant pending trial is governed
by § 3142. If a defendant is not detained pending trial,
he must be released on personal recognizance or on an
unsecured bond unless the court determines these conditions
are insufficient.[10] In that event, the court is obligated to
fashion a bail package consisting of the “least
restrictive further condition, or combination of conditions,
that such judicial officer determines will reasonably assure
the appearance of the person as required and the safety of
any other person and the community.”[11] The statue
then provides a list of optional conditions at §
3142(c)(1)(B).[12]
As
stated above, Congress enacted the Adam Walsh Act in 2006.
That Act, among other things, amended § 3142(c)(1)(B) to
mandate specific conditions for the release of persons
charged with certain crimes involving minors, such as the
child pornography offenses at issue here (referred to herein
as the “Adam Walsh Amendments”).[13] Thus, under
the Adam Walsh Amendments, “[i]n any case that involves
a minor victim under section . . . of this title, any release
order shall contain, at a minimum, a
condition of electronic monitoring” and, as is relevant
here, the condition that the defendant “comply with a
specified curfew.”[14] Here, as explained above, the United
States takes issue with the Court's declination to impose
these mandatory electronic monitoring and curfew conditions,
and in particular, its authority to determine whether a
statute, or certain provisions of a statute, is
unconstitutional.
III.
United States' Motion for Clarification and
Reconsideration of Magistrate Judge's
Order Setting Conditions of Release (ECF No. 11).
A.
Requests for Clarification
In its
Motion, the United States seeks clarification regarding (1)
the “Court's authority to declare a statute, or
provisions of a statue,
unconstitutional;”[15] and (2) the identity of “what
constitutional provisions are violated by the statute, and
[the Court's] authority for so
holding.”[16] Each will be addressed in turn below.
1.
Court's Authority
The
United States questions the undersigned's authority to
opine the Adam Walsh Amendments to § 3142, which, as
explained above, mandates specific release conditions for
persons charged with certain crimes involving minors, is
unconstitutional. As the United States correctly points out,
federal magistrate judges, unlike federal district judges,
are creatures of statute.[17] Thus, magistrate judges only
have the jurisdiction and authority granted to them by
Congress, which is set out in 28 U.S.C. §
636.[18]
Section
(a)(2) of 28 U.S.C. § 636 specifically gives magistrate
judges jurisdiction and authority to “issue orders
pursuant to section 3142 of title 18 concerning release or
detention of persons pending trial.” Thus, the
undersigned's jurisdiction and authority to opine certain
provisions of § 3142 are unconstitutional in issuing her
order concerning release of Defendant pending trial comes
directly from 28 U.S.C. § 636(a)(2). This is borne out
by cases in this District, and across the country, where
numerous magistrate judges have thoroughly analyzed the issue
and found the Adam Walsh Amendments
unconstitutional.[19] While the magistrate judges'
findings of unconstitutionality have been questioned on
appeal, their authority to so opine has not
been.[20]
The
United States also argues the undersigned's ruling is
comparable to granting a motion for injunctive relief, which
per 28 U.S.C. § 636(b)(1)(A), is an issue reserved for
district judges. This argument lacks merit. As explained
above, the undersigned's jurisdiction and authority to
find the Adam Walsh Amendments unconstitutional comes
directly from 28 U.S.C. § 636(a)(2), which allows
magistrate judges to rule on § 3142 release issues. The
authority does not come from 28 U.S.C. § 636(b)(1)(A),
which, as the United States correctly points out, does
normally restrict a magistrate judge from ruling on motions
for injunctive relief.[21]
For the
same reason, the United States' argument the
undersigned's order is akin to ruling on a dispositive
issue must also be disregarded. This Court, with full
knowledge of its authority, is well aware magistrate judges,
pursuant to 28 U.S.C. § 636(b)(1), generally do not
decide issues which could dispose, partially or entirely, of
the case.[22] The United States does not explain how
the Court's order releasing Defendant on certain
conditions pending trial is dispositive. And, the Court sees
nothing case dispositive about its release order,
particularly where the Court issued the least restrictive
conditions based on the facts presented to it. As stated
above, the undersigned's authority to issue release
orders comes directly from 28 U.S.C. § 636(a)(2), and
not from 28 U.S.C. § 636(b)(1), which dictates what
matters magistrate judges cannot rule on without a referral
from the district judge.
In
conclusion, because 28 U.S.C. § 636(a)(2) is the
authority which gives magistrate judges jurisdiction over
§ 3142 release and detention issues, the undersigned has
authority to opine that provisions of § 3142 relating to
mandatory release conditions are
unconstitutional.[23]
2.
Constitutional Provisions and Authority
As a
second point of clarification, the United States asks the
Court to identify what constitutional provisions are violated
by the Adam Walsh Amendments, and its authority for so
holding. During the May 1, 2019 hearing, the Court referenced
case law in this District finding mandatory imposition of
curfew and electronic monitoring
unconstitutional.[24] However, the Court did not specify the
constitutional provisions violated or provide case cites. As
such, it is appropriate for the Court to indulge this request
for clarification.
The
Court finds mandatory imposition of electronic monitoring and
curfew conditions violates Defendant's Fifth Amendment
right to procedural due process. This is because the
conditions are based solely on the crime charged, and applied
without an opportunity for Defendant to be heard regarding
imposition of the conditions and an independent judicial
determination of whether those conditions are really the
least restrictive means to ensure Defendant's future
appearance and safety of the community.[25]In so holding,
the Court relies on four previous decisions from this
District reaching the same conclusion.
In
United States v. Vujnovich, [26] the defendant
was charged with receipt and possession of child pornography.
At the initial appearance, Magistrate Judge David J. Waxse
ordered defendant released on an unsecured bond and imposed
electronic monitoring.[27] However, Judge Waxse made no specific
findings as to the necessity of electronic monitoring
because, given the crimes charged, the Adam Walsh Amendments
mandated monitoring as a condition of release.[28] The defendant
then filed a motion to modify his conditions of release,
asking for removal of the electronic monitoring condition and
arguing the Adam Walsh Amendments' mandatory imposition
of the condition was unconstitutional.[29] After review,
Judge Waxse agreed. He found the Adam Walsh Amendments
violated the defendant's Fifth Amendment right to
procedural due process and removed the electronic monitoring
requirement without a further hearing.[30] District
Judge Carlos Murguia affirmed the constitutional aspects of
Judge Waxse's order in a separate written opinion, but
did set a hearing to determine whether electronic monitoring
was necessary:
The Magistrate Judge's determination that he must impose
electronic monitoring as a condition of defendant's
pretrial release based solely on the crimes charged
effectively created an irrebuttable presumption that
defendant's appearance at trial and the safety of the
community could not be assured without subjecting defendant
to electronic monitoring. . . . [The] defendant's arrest
alone cannot establish his dangerousness; it merely triggers
the ability to hold a hearing during which such a
determination may be made. . . . “[I]f a defendant is
to be released subject to bail conditions that will help
protect the community from the risk of crimes he might commit
while on bail, the conditions must be justified by a showing
that defendant poses a heightened risk of misbehaving while
on bail.” . . . The arrest itself is insufficient to
establish that pretrial release conditions are required.
Because the Magistrate Judge did not determine whether it was
necessary to impose the pretrial release conditions in order
to secure defendant's appearance or the safety of other
persons or the community, the application of the Adam Walsh
Amendments in this case eliminated an independent judicial
determination as to the necessity of the release conditions.
This violated defendant's right to procedural due
process.[31]
In
United States v. Deppish, [32] the defendant was also
charged with certain child pornography offenses. At his
initial appearance, Magistrate Judge Gary Sebelius imposed
electronic monitoring and curfew conditions pursuant to the
Adam Walsh Amendments.[33] Defendant subsequently filed a motion
seeking removal of these conditions based on the
unconstitutionality of the Adam Walsh Amendments-namely that
the conditions were imposed without a hearing regarding their
necessity to assure community safety and defendant's
appearance in court.[34] Judge Sebelius agreed and found the Adam
Walsh Amendments “violate the Due Process Clause of the
Fifth Amendment to the extent they require the imposition of
certain conditions of pretrial release without affording the
defendant an opportunity to contest whether those conditions
are necessary to assure his appearance in court or the safety
of persons or the community.”[35] Judge Sebelius then
granted defendant a hearing to determine whether the
conditions were necessary.[36]
Similarly,
in United States v. Rogers, [37] the defendant
was also charged with crimes mandating imposition of
electronic monitoring and curfew as conditions of
release.[38]Magistrate Judge Kenneth G. Gale,
pursuant to the Adam Walsh Amendments, imposed those
mandatory conditions at defendant's detention hearing
without conducting an individual determination of whether the
conditions were necessary.[39] The defendant did not object
to the conditions at that time.[40] However, the defendant
later moved to have the conditions removed, arguing the
imposition of mandatory conditions are unconstitutional under
the Fifth Amendment's due process clause because they
must be imposed without a judicial finding that the
conditions are necessary to ensure defendant's presence
for trial or community safety.[41]
Judge
Gale agreed with defendant. First, Judge Gale found that
submitting to 24hour government monitoring of a person's
movements through a supervised curfew and electronic
monitoring is a substantial restriction on
liberty.[42] Next, Judge Gale analyzed what
“due process” procedures accompanied this
deprivation of liberty.[43] Judge Gale found there were none:
The only requirement in the statute for the mandatory
imposition of the conditions is that the case “involves
a minor victim” under the specified provisions, or that
the case involve a failure to register offense. 18 U.S.C.
§ 3142(c)(1)(B). There is no procedure of any kind,
other than for the Court to read the government's claim
in the charging document. The charge itself, which of course
proves nothing, is the only predicate for imposing the
conditions. Although not dispositive, this provision does not
even require a finding that there is probable cause to
believe the Defendant committed the offense, which is
required to activate the procedural presumption of detention
for these same offenses under 18 U.S.C. § 3142(e)(3)(E).
While the conditions at issue are less onerous than
detention, the due process provided here, which is none, is
insufficient to deprive the Defendant of even that degree of
liberty.[44]
Finding
defendant's due process rights were violated when curfew
and electronic monitoring were imposed without any individual
determination of whether those conditions were necessary to
assure appearance at trial or community safety, Judge Gale
granted defendant a hearing on the matter.[45]
In the
instant case, the Court, based on the above cases and their
holdings an individual determination regarding the necessity
of electronic monitoring and curfew was constitutionally
required for those defendants, informed the parties during
the May 1, 2019 hearing it believed mandatory imposition of
the conditions were violative of Defendant's
constitutional rights. The Court then proceeded to conduct an
individual determination during the hearing to determine
whether electronic monitoring and curfew were the least
restrictive means to ensure Defendant's future appearance
and community safety, as required by § 3142(c)(1)(B). As
explained more fully in Section III.B.1. below, the Court
found these conditions unnecessary for this Defendant.
Finally,
the undersigned notes Judge Gale also specifically found the
Adam Walsh Amendments facially violative of the Fifth
Amendment's right to procedural due
process.[46]A facial challenge to a statute considers
only the text of the statute itself, not its application to
the particular circumstances of an individual.[47] An as-applied
challenge, on the other hand, requires an analysis of the
facts of a particular case to determine whether the
application of a statute, even one constitutional on its
face, deprived the individual to whom it was applied of a
protected right.[48] “The legal dynamics between the
two types of constitutional challenges are consequential. If
a facial constitutional challenge is granted, the Government
cannot enforce it under any circumstances, unless a court
narrows the application; whereas, if it held that a statute
is unconstitutional as applied to a particular set of facts,
the Government can enforce it differently under dissimilar
situations.”[49] The undersigned clarifies that during
the May 1, 2019 hearing, she only found the Adam Walsh
Amendments unconstitutional based on procedural due process
as applied to this Defendant. As such, a facial challenge to
the Adam Wash Amendments need not be addressed in this Order.
Additionally,
the Court is aware of District Judge Eric F. Melgren's
recent order reversing Judge Gale's finding the Adam
Walsh Amendments are facially unconstitutional.[50] The Court
distinguishes Judge Melgren's order from the instant case
because, as stated above, the undersigned is only making an
as-applied finding of unconstitutionality. However, based on
the Judge Melgren's order, the undersigned clarifies she
finds the constitutionally protected liberty interest at
stake is Defendant's right to freedom of movement among
locations and the right to remain in a public place,
i.e., the right to travel.[51]
“The
Supreme Court has recognized that the ‘right to remove
from one place to another according to inclination' is an
‘attribute of personal liberty' protected by the
Constitution.”[52] Indeed, an individual's decision to
remain in a public place of his choice is as much a part of
his liberty as the freedom of movement inside frontiers that
is “a part of our heritage.”[53] Thus, the
mandatory electronic monitoring and curfew of the Adam Walsh
Amendments implicate a liberty interest by curtailing
Defendant's ability to move from one place to another and
to remain in a place of choice when, [54] as explained
in Section III.B.1. below, the Court finds these conditions
unnecessary to ensure Defendant's future appearance and
community safety.[55] The Court realizes it did restrict
Defendant's travel outside of Kansas and Oklahoma without
prior permission, but believes constant electronic monitoring
and a curfew is a much more substantial liberty infringement
given Defendant's minimal flight risk and danger to the
community.
In
conclusion, the undersigned agrees with, and incorporates,
the reasonings in the above decisions from this District
finding the Adam Walsh Amendments violates the Fifth
Amendment's right to procedural due process on an
as-applied basis.[56]
3.
Eighth and Ninth Circuit Opinions
The
United States points out that the Vujnovich and
Deppish opinions above predate three cases from the
Eighth and Ninth Circuits, which found the Adam Walsh
Amendments constitutional. Of course, these Eighth and Ninth
Circuit opinions are not binding on this District and do not
overturn Vujnovich and Deppish. Nor did the
Circuit opinions overturn United States v. Crowell,
[57]
which Vujnovich and Deppish heavily relied
upon. However, this Court will address these Circuit
opinions.
In
United States v. Stephens, [58] the Eighth Circuit only
addressed a facial challenge to the Adam Walsh Amendments,
and expressed no view as to any as-applied
challenge.[59]Because the undersigned finds the Adam
Walsh Amendments unconstitutional on an as-applied basis
only, Stephens is not relevant to the case at hand.
However,
in United States v. Kennedy[60] and United States v.
Peeples, [61] the Ninth Circuit did address as-applied
challenges, and found the Adam Walsh Amendments
constitutional in those particular cases. In both cases, the
Ninth Circuit found that because the Adam Walsh Amendments
did not define electronic monitoring or curfew, district
courts could exercise their discretion, to the extent
practicable, in determining how these conditions could be
applied.[62] For example, the Court noted the Adam
Walsh Amendments do not mandate courts to require electronic
monitoring in specific locations or during specific time
periods, or set curfew at a certain time of day or night or
number of hours per day.[63] Thus, the Ninth Circuit held that
because the defendants were entitled to a detention hearing
and a large number of individualized determinations-including
an individualized determination as to the extent of any
mandatory conditions of release, procedural due process was
not violated.[64]
However,
the undersigned takes a different view in its analysis than
the Ninth Circuit. In this Court's view, the Ninth
Circuit places undue emphasis on the fact that the mandatory
conditions imposed by the Adam Walsh Amendments are
undefined. This allowed the Ninth Circuit to rewrite the
language of the Adam Walsh Amendments[65] in order to
avoid the very issue presented-that is, whether it was
constitutional for Congress to impose the automatic
conditions upon mere charging. The nature of the
constitutional challenge is not the parameters of the
implementation of conditions, but whether due process was
granted during the imposition of conditions.
The
Ninth Circuit's analysis is also extratextual, as the
Adam Walsh Amendments make plain the enumerated conditions
are imposed automatically upon maintenance of a mere
charge.[66] There is no discretion regarding whether
the conditions should be imposed. Thus, the Ninth
Circuit's opinions ask district courts to read out the
mandatory language of the Adam Walsh Amendments to save the
statute. They do so by claiming that “mandatory”
actually means “discretionary.”[67]
Furthermore,
the Ninth Circuit's opinions do not address situations
like the present where the undersigned, as explained more
fully below, finds any imposition
of electronic monitoring and curfew unnecessary to prevent a
defendant's risk of flight or danger to the community. In
such an instance, a court would be imposing these conditions,
without an opportunity for defendants to contest the same,
merely because the Adam Walsh Amendments require
them.[68] Whether a court were to impose
electronic monitoring 24 hours a day or only during specific
time periods, the condition would still be imposed without a
defendant having the opportunity to contest its imposition or
the court having an opportunity to decide if it is truly the
least restrictive means necessary.[69] This is the
constitutional violation the undersigned finds
concerning.[70]
In this
Court's view, the Adam Walsh Amendments should not be
construed to abandon the principles of the Bail Reform Act of
1984. In the legislative history of the Bail Reform Act of
1984, Congress reiterated that in federal courts, judges are
vested with the authority to make pretrial release
decisions.[71] Congress observed that courts must have
“adequate authority to make release decisions that give
appropriate recognition to the danger a person may pose to
others if released.”[72] This is shown by §
3142(c)(1)(B), which allows courts to order the pretrial
release of persons “subject to the least restrictive
further condition, or combination of conditions, that such
judicial officer determines will reasonably assure the
appearance of the person as required and the safety of any
other person and the community.”
The
Court understands the government's interest in the Adam
Walsh Amendments is to prevent crimes and attacks against
children by those arrested.[73] The Court also acknowledges
that safeguarding the physical and psychological well-being
of a minor is a compelling and a legitimate governmental
interest, especially with regard to child
pornography.[74] Yet, protecting the community safety,
and children in particular, does not create a per se rule
that this government interest always outweighs the
constitutional right of liberty.[75] If that conclusion were
perpetually so, then it would deny due process.[76]Rather, that
interest is in no way diminished by conducting an individual
evaluation of the need for a curfew and electronic
monitoring. Pursuant to § 3142, proceedings are already
conducted to determine whether a defendant should be detained
or released on bail, the amount of bail, and the need for
conditions of release other than those required by the Adam
Walsh Amendments.[77] Thus, the additional burden of requiring
an individualized determination of the need for a curfew and
electronic monitoring would be minimal, and in line with the
Bail Reform Act of 1984's directive that courts be vested
with adequate authority to make pretrial release
decisions.[78]
B.
Request for Reconsideration
The
United States' entire Motion, save the last sentence, is
directed at asking this Court for clarification. In the very
last sentence of the Motion, the United States “asks
the Court [to] reconsider its order and impose the conditions
of electronic monitoring and curfew, particularly where no
objection to the conditions was made by the defendant as part
of his release.”[79] Before addressing this request for
reconsideration, the Court will explain its decision to not
impose the electronic monitoring and curfew conditions.
1.
Decision to not Impose Electronic Monitoring and
Curfew
After
suggesting the Adam Walsh Amendments violate Defendant's
procedural due process rights, the Court, pursuant to §
3142(c)(1)(B), proceeded to hear arguments at the May 1, 2019
hearing regarding whether electronic monitoring and curfew
would be “the least restrictive further condition, or
combination of conditions, that . . . will reasonably assure
the appearance of the person as required and the safety of
any other person and the community.”[80]
The
Court explained that based on the information before it --
the Indictment and bond report -- it was not inclined to
order ...