UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN, NEW JERSEY

 

 

ROBERT EDWARD FORCHION                                                       October 6, 2003

P.O. Box - 1302,

BROWNS MILLS, N.J. 08015-1302

 

HONORABLE JUDGE IRENAS

1 GERRY PLAZA

CAMDEN, N.J. 08101

 

ROBERT EDWARD FORCHION, Jr :                     EMERGENT

                                              Plaintiff,            :  MOTION FOR INJUNCTIVE RELIEF,

                                                                        : to ex-post fact law, imposing DNA testing

                                                                        : as unconstitutional in violation of Article I,              

                        Vs                                            : section 9 of the U.S. Constitution as well

                                                                        : as being inviolation of 4th Amendment and

INTENSIVE SUPERVISION PROGRAM,    :  6th Amendment protections.      

State of New Jersey, et. al.                               :

                                    Defendants                   :          CIVIL ACTION NO.- 02-4942

 

AMENDED MOTION

 

Honorable Judge Irenas,

 

The Plaintiff Robert Edward Forchion, Jr. who currently is enrolled in the (ISP) Intensive Supervision Program by injunctive order issued by this court on Jan. 24th, 2003 now moves for issuance of INJUNCTIVE RELIEF to Ex-Post Facto Law L. 2003, c. 183 signed into New Jersey Law on September 22, 2003 by New Jersey Governor McGreevy. This new, New Jersey Law L. 2003, c. 183 Plaintiff argues is a “unconstitutional” violation of Article 1 Section 9 and should not be imposed on Plaintiff or any similarly situated citizen.  Under the present injunction issued by this court the State of New Jersey must give a 48 hour notice to this Plaintiff if ISP is to violate Plaintiff (Attachment 1).        -             (http://lawlibrary.rutgers.edu/fed/html/ca02-4331-1.html)

 

On September 29th, 2003 the Plaintiff received in the mail a letter ordering Plaintiff to submit to DNA testing and to pay for the cost of DNA testing or be jailed for refusing so. (Attachment 2) Upon receiving attached letter Plaintiff immediately contacted his ISP officer Shirley Lennon and verbally stated to her he was refusing to abide by the new conditions imposed by ISP/State of New Jersey placed on him per L. 2003, c.183 on CONSTITUTIONAL grounds. Plaintiff states the new conditions are unconstitutional and anticipates his imminent arrest for failing to comply, similar to how Plaintiff was arrested for refusing to comply with “unconstitutional” directives of ISP previously; in regards to his exercise of first amendment rights which this court is well aware of.

FACTS

On Dec. 1st, 2000 Plaintiff was convicted of violating  N.J.S. 2C:35-5a(1) and 2C:35-5b(10) (first degree), and “conspiracy,” contrary to N.J.S. 2C:5-2 (second degree) in Camden County Superior Court and sentenced to 10 years flat. After 17 months in prison Plaintiff was admitted into the ISP on April 3rd, 2002. None of the 38 rules/directives Plaintiff signed required DNA testing or payment. Nowhere in ISP rules or regulations is DNA required. On June 6th, 2002 thru 10th 2002 Plaintiff was incarcerated by ISP for exercising his FREE SPEECH RIGHTS. Again on August 19th, 2002 Plaintiff was arrested by ISP for exercising his 1st Amendment Rights to FREE SPEECH. Plaintiff was held for 5 months in the Burlington County Jail until the Honorable Judge Irenas issued a injunction on Jan 24th, 2003 ordering Plaintiff back into the ISP.

At no time prior to Sept 22nd, 2003 was Plaintiff by law ordered to submit to DNA testing or the penalty of payment for such testing. Neither of Plaintiffs co-defendants were ordered to such testing or monetary penalties. On Sept 30th, 2003 the Plaintiff filed a Pro Se motion for INJUNCTIVE RELIEF before this court and now moves to Amend.

 

 

LEGAL ARGUEMENTS

 

It is no question that taking DNA from a unconvicted citizen, parolee, probationer, or prisoner against his will constitutes a search for 4th Amendment purposes. All of the following arguments are based upon the U.S. Supreme Courts ruling that “prison walls do not form a barrier separating prison inmates from the protections of the constitution.” TURNER Vs SAFLEY, 482 U.S. at 84, 107 S.Ct. at 2259, 96 L.Ed.2d at 75 (1987). "Constitutional provisions for the security of person and property should be liberally construed." Boyd v. U.S., 116 US 616 (1886) "...and it is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Byars v. U.S., 273 US 28 (1927)

 

 

A.)   L. 2003, c. 183 is “unconstitutional” as applied to this defendant and others similarly situated in that it attempts to apply punishments retroactively as a Ex Post Facto Law. Ex post facto laws are prohibited by Article I, Section 9 of the U.S. Constitution.

 

Legal definition of a Ex Post facto law: a law that retroactively alters a defendant's rights esp. by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) afforded the defendant by the law as it existed when the act was committed. “Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878) (emphasis supplied)

 

            Plaintiff asserts that at the time of his 12/1/2000 negotiated Plea bargain agreement no such requirement for DNA testing existed. Additionally, no statutory law existed requiring Plaintiff to pay the cost of any DNA testing. Plaintiff is in the last month of his 20 month statutorily required ISP enrollment. None of the laws Plaintiff was convicted of (N.J.S. 2C:35-5a(1) and 2C:35-5b(10) (first degree), and conspiracy, contrary to N.J.S. 2C:5-2 (second degree)) impose any of the penalties described by L. 2003, c. 183 – Thus plaintiff asserts  L. 2003, c. 183 is a Ex Post Facto punishment. It is clear Constitutional Law that state Legislatures, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light, is an additional bulwark in favour of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation

 

 

B.)  L. 2003, c. 183 is “unconstitutional” as applied to this defendant as in violation of the 14th Amendments “equal protection clause”.

 

The Plaintiff had two co-defendants, neither of his co-defendants are punished by this new legislation. This is inviolation of equal protection doctrine. The defendants were all convicted of the same crimes yet, now this defendant/plaintiff is being punished additionally for no reason at all.

 

C.)  L. 2003, c. 183 is “unconstitutional” as applied to this defendant and others similarly situated in this new law attempts to apply punishments without Due Process. Inviolation of 6th Amendment Doctrine of “innocent until proven guilty at a fair trial”.

 

 

L. 2003, c. 183 – unquestionably is defective in that this new law punishes persons, citizens for crimes not yet committed. This new law is designed with the “Orwellian” thought that over-all persons who’ve been convicted of crimes (including petty ones) will commit others so this law allows/permitts the seizing of ones body parts (DNA), without “probable cause” of a crime committed but for possible future crimes! Which fly in the face of the U.S. Supreme Court decisions. “Before a law enforcement officer may lawfully take a blood sample without consent or a warrant, he or she must have probable cause to believe that the suspect has committed an offense of which the current state of one’s blood will constitute evidence.”United States Vs Chapel, 55 F.3d 1416, 1419.

This is a country founded to protect individual rights yet this law attempts to “collectively categorize citizens” into suspicious persons worthy of body parts collection. This violates every principle of freedom this country was founded on. In America for over 230 years it has been the rule of law that one is innocent until proven guilty. In America your not supposed to be punished until Due Process has been rendered. There is no doubt this new law is infact a “punishment” and those who refuse to comply are slated for punishment. ((See attachment 2) – “…failure to comply with this order may result in a warrant being issued for your arrest.”) -  “As a general rule, a search – even one that may be lawfully conducted without a warrant — must be based upon probable cause.” New Jersey Vs T.L.O., 469 U.S. 325, 340 (1985) – This new Law flagrantly violates this general rule and ignores the 4th and 6th Amendments to the U.S. Constitution.

 

 

D.)   L. 2003, c. 183 is “unconstitutional” as applied to this defendant and others similarly situated in that this new law attempts to violate a citizens privacy rights. Inviolation of 4th Amendment Doctrine of “The right of the people to be secure in their persons”and “unreasonableness”.

 

 

 

This new law forces the surrender of DNA upon the most cherished and fundamental American traditional preserve of privacy; the human body. “that a compelled intrusion into the blood for blood…must be deemed a Fourth Amendment search; Schmerber Vs California, 384 U.S. 757, 767 (1996). As this court has noted previously “prison walls do not form a barrier separating prison inmates from the protections of the constitution.” TURNER Vs SAFLEY, 482 U.S. at 84, 107 S.Ct. at 2259, 96 L.Ed.2d at 75 (1987). The expection of privacy of a parolee, who is released to live at home, in preparation for reincarnation into society, is even greater. Sepulveda Vs Ramirez, 967 F.2d 1413, 1413, 1416 (9th Cir. 1992) – The “integrity of an individuals’s person is a cherished value of our society,” and a preeminent zone of constitutionally recognized privacy.” Schmerber, 384 U.S. at 772. " The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." … "The essential purpose of the proscriptions of the Fourth Amendment is to impose a standard of "reasonableness"* upon the exercise of discretion by government officials, including law enforcement agents, in order 'to safeguard the privacy and security of individuals against arbitrary invasions...'"** Delaware v. Prouse, 99 S.Ct. – UNREASONABLE: The reasonableness of a parole search is determined by “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests” United States Vs Knight, 122 S.Ct at 591 (quoting Wyoming Vs Houghton, 526 U.S. 295, 300 (1999)- “we conclude that reasonable suspicion must exist before the government may compel parolees to submit to the extraction of blood from their bodies contrary to their wishes” United States Vs Kincade, 9th Cir. Docket No.- 02-50380, D.C. No.- CR-93-00714-RAG-01 (decided Oct. 2rd 2003)    Thus it is not only unconscionable that the Governor of New Jersey would sign this new bill into law but this law is boldly  “unconstitutional”.

 

E.)   L. 2003, c. 183 is “unconstitutional” as applied to this defendant and others similarly situated in that this new law attempts to change the conditions of accepted Plea Agreements without provisions for defendants to withdrawal pleas.

 

It is absolutely clear that enforcement of L. 2003, c. 183 provisions and cost onto previously “plea agreement” convicts would be a change in the plea agreement and would justify allowing the defendant to withdrawal from said plea based on the states change in sentence – retroactively.

 

INCONCLUSION

 

The plaintiff begs the Court to issue a temporary INJUNCTION barring  defendants from seizing DNA or testing body fluids from Plaintiff. It is clear Plaintiff will be arrested for refusing to provide body fluids to the State of New Jersey a plaintiff in this case. The plaintiff also begs the court to take into consideration that just two days after the Plaintiff wrote the original brief the 9th Circuit Court of Appeals ruled in United States Vs Kincade, 9th Cir. Docket No.- 02-50380, D.C. No.- CR-93-00714-RAG-01 (decided Oct. 3rd 2003) that this very action (forced DNA TESTING of convicts) is unconstitutional.

 

________________________________

ROBERT EDWARD FORCHION, Jr.

Aka- NJWEEDMAN