good morning sorry i was on you may place the cart stenson is adopted a program of lifetime j p s monitoring that is unique in its interests of yes it allows the government to physically insured upon person's body attaching them to under movable monitoring device says twenty four hours a day every day until death generating a precise record of the individual's public movements this monitoring lasts for decades beyond the time of an individual is no longer subject to the supervision of the criminal justice system the district court erred and denying a preliminary injunction to the plaintiffs to halt this serious intrusion into their constitutionally with your original brief our circuit rule thirty makes it crystal clear that a transcript should be included if you're challenging the judge's oral rulings i know you subsequently curate it but the other side has asked that we  circuits clerk's office describe the circumstances and ask for guidance and i was unfortunately given advice that wasn't accurate and i know it's my responsibility to understand the rules and unfortunately i i made a mistake and my understanding is that counsel is no longer seeking a summary a firm and of the decision based on our having now submitted the transcript of course apologize and would obviously not make the same error in the future and it just seems that circuit rule thirty is crystal clear that you have to have a transcript and it sounds like you would agree with that now well of course now i will never make that error again and i fully understand   and he was subject to g p s monitoring under a different section of wisconsin law and then secondly if analyzed under a under the th amendment either applying in totality of the circumstances or a special needs had been subject to civil commitment proceedings and the reason that he was subject to lifetime g p s monitoring under wisconsin law was that he had been released from civil commitment that is a different section of wisconsin law than the one challenge here and mr bolo this court in its follow decision made repeated references to the civil determination that had been made in the civil commitment proceedings law because at that time wisconsin did not subject individuals to lifetime g p s monitoring based solely on their having been convicted of more than one count of a sex offense and indeed subsequent to the decision  volo the u s supreme court and it's packing him decision cast serious doubt on the constitutionality of subjecting an individual all to serious deprivations of their constitutionally protected rights based solely on the fact of their previously having been convicted but is packing them really a political here that was a st amendment case that involved intermediate scrutiny which is not what we have here the court observations are quite broad effect to the fact that individuals who have completed their sentences of incarceration completed any court supervision imposed by the criminal courts presumptively have civil rights and they don't presumptively have a diminished expectation of being able to enjoy their constitutional freedoms based solely on the fact that they have a conviction in their background and i think the same should be true of  constitutional rights involve some form of balancing of the government interests at stake and the individual interests intruded upon and the statute at issue here is unique in it it was counsel laws functioning now is that the i'm sorry but what would what would need to be different and let me tell you where i'm coming from on this as i understand it this statute the regime of supervision is triggered by crimes occurring after two thousand and seven right categorically to this group of offenders so with you at least as near as i can tell with the plaintiffs in this case we don't have any ex post facto problems so why not just think about this supervision as a part of the criminal sentence it is a consequence of the conviction and thought about that way just as an alternative to either longer prison sentences or longer or more intrusive forms of parole i would have difficulty seeing problems with this for example under the supreme court's decision and sansom well this interpretation of wisconsin l what i mean it's surely you don't want your claim to deter be decided based on whether attorney general schimmel was correct or not do you i don't think that's time of their convictions included provisions for this long term supervision correct it clued in a particular sentence of incarceration a particular sentence of supervision and state law included monitoring right yes and g p s monitoring law was in place however at the time of plaintiff's guilty pleas and agreement to accept an offer by the state they had no expectation that they would continue to be monitored beyond the completion of their criminal side and says that that's based upon this in question of state law correct of what constitutes separate occasions that's true but the plaintiffs had every reason to believe that once their period of supervision was over the state's monitoring of them would be over and i think that both in your argument does turn on the attorney general's reinterpretation of the state statute that we're confronted with here as well i think that there are other constitutional questions about the state statute and its constitution ty namely that there is no sound factual basis for the state's presumption that everyone it subjects to lifetime g p s monitoring beyond the term of incarceration to which they are sentenced presents an ongoing decades long threat to public safety the state defense the scheme by reference to the seriousness of the crimes and the state's strong interest in public safety and no one denies those interests but there is no sound basis for a presumption that everyone who has been convicted of a sex offense in the past presents a ongoing decades long risk to public safety that justifies this very serious intrusion into a constitutionally so i think a predicate to that question is that we can't really say that this applies to a certain class of offenders because it's a very heterogeneous group of people that the state subjects to its lifetime g p s monitoring if you're making a challenge to the statute as i understand it you have a backup a supply challenge but that's not what's being advanced here it's of a facial challenge to including offenders who have been convicted more than once of the sex monitoring were imposed as a condition of lifetime supervised release with that comport with men i think that there may be different questions about the constitutionality of such a scheme by the skin that that perhaps you would answer that in the case of a term of life time supervised release that's imposed by a judge as a matter of individual ised sentencing discretion and keep to the facts of the case and the offenders background right and i think that that's a serious problem with wisconsin scheme is that we have law enforcement deciding without any kind of proceeding or standard of proof that the entire large heterogeneous group of people should be subject to this too much discretion on law enforcement your clients are categorically in the program that's true however there is not been any individual lived hearing or determination that these individuals d should be subjected to lifetime g p s monitoring and wisconsin acknowledges that it's possible to have such a proceeding on and allow such a proceeding after someone has been on supervision for twenty years or more when this is just the type of categorical determination that should not be permissible we're talking about the extreme intrusion into individuals bodily integrity their privacy  criminal sentence yes i don't know that it would be whether it be subject to other types of constitutional challenges and i'll reserve the rest of my time for thank you maureen your honor ismay it please the court i'm jody schmelzer an assistant attorney general for the state of wisconsin and i represent the defendant happily kevin carr secretary of the cats and apartment of corrections the state of wisconsin has determined that repeat child sex offenders pose an intolerable risk to public safety and more specifically to the health and well being of our children who are of the most vulnerable members of our society to address this risk wisconsin requires lifetime g p s monitoring who have been convicted and tomorrow cajuns of a qualified sex offense the three plaint just bringing this motion for polygamy junction have done just that they had sexually assaulted children or possessed or in a graphic pictures of young children two and more occasions and have been convicted of those offenses are now subject to lifetime g p s monitoring under wisconsin's law while wisconsin flood does implicate the th amendment it survives constance constitutional scrutiny because it survives such a tell you the circumstances test and it's also a special needs search given that the district court correctly found that the plaintiffs did not have a likelihood of success on the merits of their st amendment claim all do and basically the only difference between mr bliss case and the one that we have here is that mr billow had previously been committed under chapter nine hundred and eighty dollars are involuntary civil commitment who for sex offenders but at the time that mr billow profits case he was no longer committed under under chapter ninety eight dollars he had no longer met the criteria for commitment under chapter and it which is important because he's in the same status as the three plaintiffs here they didn't meet that criteria either yet the courts went on to find that offenders like mr billow had  diminished expectation of privacy and that these states compelling interest in protecting the public and its children outweighed that diminished expectation of privacy that is suppose any all of us would love to see reliable data in this field but let's suppose we got reliable data indicating that the  category of offenders more west than five percent or less than one percent would that undermine the constitutional basis for for this quite intrusive monitoring came out in two thousand and eighteen that case challenge the illinois residency requirements for sex offenders and in that case the same exact challenge was made to the empirical evidence used to support those types of residency restrictions for convicted sex offenders and basically what this court said was that its role is not to nd guess the legislative pouncey judgments by percy in the latest academic studies on  isn't a case where the legislature had nothing they certainly had evidence to support this law and the court in this court in willow recognized that it went through a number of different imperial studies and those types of facts to support the government's interests certainly we have the well recognized premise from the supreme court that's been repeated by this court been floating around a while it's very convenient to use it's been criticised him suppose we have reliable information indicating that we're wrong i of sex crimes against children and as this court recognized in below that can be up to seventy percent for child sexual assaults and up to eighty six percent for sex crimes against adolescence so it's not just those empirical studies but it's also the fact that this group of offenses is under reported to a significant degree and that these types of offenses also leave significant life on psychological scars  and do we have that information we do not have that information you're getting we have information about what the supreme court has acknowledged we have what the court this court in below sometime later that that isn't a full picture in the court says that that low says we can rely on that as a state as a legislature and acknowledge that that is under reporting of these friend on the other side suppose you've got a defendant who is convicted of a qualifying crime or more serious crimes finishes a prison sentence finishes  supervision or parole as imposed by the sentencing court and is walking around in civil society and wisconsin then passes a new statute requiring him to wear an ankle monitor for the sort of twenty four hour yes monitoring would that give you pause constitutionally particularly under the ex post facto clauses what  is in essence having to be criminal sentence still scrutiny given that it would be determined to be a search and that there is a diminished expectation of privacy for these individuals given their repeated criminal convictions were child sex offens and the state's interest in protecting that that vulnerable population i also would note as a follow up your honor to your previous question that the court of blue did acknowledge that there are still there are so the focus and below was on sexual assault and individuals convicted of sexual assault against a minor plaintiff here is differently situated because he was convicted of possession of child pornography does that impact the analysis and is part of that how does chief p s monitoring prevent the possession of child pornography for the assault it's obvious and we discussed it and below that you could track where the individual is going if he's going near a school or some place where minors might be but possession of child pornography can happen in your home on the computer how does monitoring where you are decreased reset of his of with respect to possession of child pornography your honor i think that and we talked about this in our brief that there are studies that show all that and when we look at this from that from the th amendment point of view it's whether or not the government interests here is really going to outweigh someone like mr hawes those keys diminished expectation of privacy so there are studies that show that up to thirty eight percent of people view we child pornography and seventy six percent of persons arrested for child pornography have actually molested a child so there is a connection that can be made there between child pornography and contact offenses i think it also we don't want to diminish i think the state's interest in protecting children from this type of crime because would know if they have downloaded images that in their home that that would be able to be confirmed that they're in their home at that time and knowing that the risk of those contact offenses that we do see five with child pornography that we're dealing with a different class of people that society has determined have a diminished expectation of privacy that these three plaintiffs are subjected to lifetime sex offender registry to the to the  registry where their photographs their addresses their criminal histories of the nature of their crimes are available to anyone searching a geographical area these pop up in front of them and i think that was an important point that below made make time is up your honor but i would i would note that i believe it is still intact that we're talking about a small g p s monitoring device that the court noted was the it was slightly incremental and we're balancing that we have to their past criminal conduct that that and what they are subjected to as far as life can registrants that factors into the so that that was not the case in corporate or that individual did not have this governmental surveillance and i see your point your honor and if you may time is up but just to briefly address that i think we still have to take it into account in the balancing of the privacy i think that i just want to address that last point that was made about seeking to like in g p s monitoring a twenty four hour a day search that generates a record of every where a person goes from registration or housing restrictions this court has upheld lifetime registration the supreme court has upheld lifetime registration and this part is up how residency restrictions but in both of those cases this court found that there was not a constitutional right at stake here is that it constitutional right to live in the location of your choice here i think there is no doubt after the grady decision that the th amendment rights are at stake and they are greatly impacted by this  by g p s monitoring so i just think it's essential to distinguish the nature of the intrusion here all right when you very much think you