CHICAGO (CN) - A class of convicted sex offenders in Wisconsin maintained to a Seventh Circuit panel Tuesday that the state's lifetime GPS monitoring requirement runs afoul of the Fourth Amendment.

The Wisconsin Department of Corrections requires all repeat sex offenders (those who've been convicted two or more times) to wear an ankle monitor for life unless they move out of the state or if, after 20 years without a new conviction of any kind, they successfully petition for its removal.

A class of convicted sex offenders appealed that law in 2019 and said the ankle monitor requirement infringes on their Fourth Amendment rights. The Fourth Amendment protects people from unreasonable government search and seizure and safeguards privacy rights.

"No one denies the seriousness of sexual offending or the state's strong interest in combating it, but the Fourth Amendment does not ask whether a search feels intuitively justified. It asks whether - in light of the evidence - the state has put forth a constitutionally sufficient justification for the search," plaintiffs' attorney Adele Nicholas said.

Assistant Attorney General of Wisconsin Jody Schmelzer agreed the law implicates the Fourth Amendment, but she said it survives constitutional scrutiny under both a totality of circumstances analysis and under the special needs doctrine.

This isn't the first time this class action has come before the Seventh Circuit. After the lawsuit was initially filed in 2019, plaintiffs sought a preliminary injunction, which a federal court denied. The Seventh Circuit affirmed the denial of the injunction in 2022 and sent the case back down to a U.S. District Court in Wisconsin, which ultimately ruled in favor of the Wisconsin statute.

U.S. District Judge Brett Ludwig wrote in his order that the plaintiffs' Fourth Amendment claim faces an uphill climb because it contradicts how the Seventh Circuit has ruled in similar cases in the past. He particularly pointed out Belleau v. Wall, a 2016 case in which the Seventh Circuit ruled in favor of Wisconsin's lifetime GPS monitoring requirement, calling it a reasonable search in the interest of prevention, not punishment.

Chicago-based civil rights attorney Nicholas argued before the panel that the District Court improperly treated the Bealleau v. Wall case as dispositive, rather than engaging in the fact-sensitive inquiry that the Fourth Amendment demands.

"As a result, the district court failed to consider the breadth and heterogeneity of the population the statute applies to; the proof of substantial privacy and dignitary harms the statute imposes; or the lack of evidence that long-term monitoring of this particular population meaningfully advances the state's interests," she said.

But the panel of judges wasn't so certain of Nicholas' characterization of Ludwig's decision.

"I'm not sure that's a fair characterization of the district court's thinking," U.S. Circuit Judge David Hamilton said.

The Obama appointee then asked Nicholas specifically about 2013 Supreme Court case United States v. Kebodeaux, which determined that the requirements from the Sex Offender Registration and Notification Act were constitutional.

"In the context of a regime like registration, where an individual is being required to report information about their residence and other demographic information about themselves on a regular basis, categorical regimes have been upheld, and the government is allowed to proceed by presumption, essentially," Nicholas said. "But as we move along this continuum toward restrictions that are much more intense, much more intrusive, much more long-lasting and affect constitutionally protected interests so much more strongly, the same categorical justification can't be involved."

U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, pushed back on Nicholas' argument and noted the Seventh Circuit previously rejected the argument that GPS monitoring is more onerous than registration.

Nicholas responded that the court assumed in Belleau that GPS monitoring is minimally invasive, but through discovery, she learned it is much more intrusive because all GPS data is treated as public record.

"We learned a lot on both sides of this equation. Reasonableness under the Fourth Amendment requires a careful fact-bound analysis of both those individual interests that are affected, but also of the government's interests," she said. "And there was expert discovery in this case that showed this statute in the monitoring of this particular population that is subject to this statute is not really advancing the government interests as they put forth."

Hamilton pressed Nicholas further on her argument regarding public records.

"Suppose we were to disagree with you on the overall Fourth Amendment problem here, but thought that there's a problem with treating these sorts of information as public records. Is there a remedy that would be available to you or to your client or the class?" he asked.

Nicholas responded that the public records problem is highly relevant to the court's analysis of whether the Wisconsin law violates the Fourth Amendment.

Hamilton also asked Schmelzer about the public records question - whether this information would be readily available to anyone who might ask for it.

She called the public records problem "a bit of a red herring." Schmelzer noted that the records could be disclosed to the public, but only after a balancing test is applied. She added that the public records provision shouldn't be determinative, given that all of the expectations of privacy are the same in this case as they were in Belleau.

U.S. Circuit Judge Diane Sykes, a George W. Bush appointee, joined Hamilton and St. Eve on the panel, which did not indicate when it might rule on the matter.

Source: Courthouse News Service