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Thursday, April 8, 2010



Sex offender does not have due process claim

I would guess that due process claims are among the hardest to win in the federal courts. Many claims die because the plaintiff does not have a property or liberty interest, the deprivation of which is necessary for the government to provide you fair process. Other cases die because the availability of an Article 78 under New York law (an expedited lawsuit in the state courts) is by itself due process. Sometimes, due process claims arising from reputational damage are allowed to proceed, but the legal requirements for those claims are so difficult that these "stigma plus" claims routinely die an orderly death, probably because the court think these cases are nothing more than routine defamation cases cloaked in constitutional language.

The case is Vega v. Lantz, decided on March 2. No, due process claims are not for everyone, and they sure as hell are not for Vega, an inmate who was sentenced to a very long jail term after a jury convicted him of some of the worst sex-related crimes imaginable. I would imagine that the Court of Appeals (Sack, Parker and Goldberg [D.J.], initially reacted that way when they reviewed the record in this case. Then they realized they are trained professionals and must resolve the case properly.

Stigma-plus cases are a due process offshoot. You can challenge the fairness of government classifications or statements that ruin your reputation. Vega was classified as a sex offender, which "exposed him to harassment from prison officials and other inmates, as well as a denial of access to various programs such as one that permitted him to tutor other inmates." His argument was that he was not actually acquitted of any sexual offense but, instead, assault in the first degree and kidnapping. The district court ruled in his favor, but the Court of Appeals reverses.

As the Second Circuit notes, "while it may be the case that, in certain circumstances, misclassification as a sex offender results in stigma plus, this possibility is of no particular assistance to Vega because he has not established a threshold requirement – the existence of a reputation-tarnishing statement that is false. ... Vega has not alleged that the conduct underlying his conviction for assault – the removal of a teenage girl’s nipple and the forcing her to swallow it – did not occur. Nor has Vega alleged that Department officials were unreasonable in classifying this conviction a 'sexual offense' that involved 'physical conduct.'"

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