We require convicted child pornographers to register with the government, stay away from schools, and live in certain mandated areas. But according to a magistrate judge in the Southern District of New York, requiring defendants indicted on child pornography charges to wear electronic-monitoring devices and observe mandatory curfews is a violation of their due process rights under the Fifth Amendment. These defendants also are now entitled to individual hearings as to whether they must surrender their firearms before trial.

This decision comes on the heels of District of Columbia v. Heller, the controversial Supreme Court decision creating a “protectable liberty interest” in personal possession of firearms. To avoid the risk of erroneously depriving a suspected child pornographer of his constitutional rights, a magistrate judge in the Southern District of New York has decided that each such defendant is now entitled to a personal hearing to explain his particular and individualized circumstances. In overturning the portion of the so-called Adam Walsh Amendments, which initially imposed the electronic-monitoring and weapons-surrender requirements, the court noted an undue restriction on the defendant’s right to travel.

One does wonder, given the stated and legitimate government interest in protecting the public, and minors in particular, why an individualized hearing was found to be required in cases of child pornography, and exactly how far the Heller case will extend. Since individual hearings related to the surrender of firearms were found to be appropriate in these cases, might such hearings eventually be considered to be a constitutional right of every defendant? Honestly, that’s a scary thought.

–Laura Keane

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One Response to Innocent (and Armed) Until Proven Guilty

  1. hb says:

    First of all, one also has to wonder why such a story as this appears on a website ostensibly devoted to “entertainment and technology” law.

    Secondly, indictments are not finding of guilt. Is it not possible that one could actually be innocent? Given the nature of the alleged crimes and the stigma attached to the alleged perpetrator, there are those who would seek to do the alleged perp some harm. Why should an innocent person not be allowed to defend themselves?

    I suspect however, that it’s just a lot easier to lump all those “gun lovers” into one basket.

    Nice graphic by the way.