From the coastal view, where most admirals can be found, one might believe that the scorched cornhusk-strewn earth far below the airplanes wings is a chaste and desolate place. Not true. And not without its potential for some schadenfreude.
The Nebraska State Patrol has for years forced female recruits to submit to invasive, medically unnecessary pelvic exams performed by a male doctor before they can be hired, according to a new federal lawsuit that has prompted a criminal investigation.
State Trooper Brienne Splittgerber filed the lawsuit Tuesday against the patrol, the state of Nebraska, two former patrol heads and various other people, accusing them of creating a hostile work environment for women.
Apparently, lady-parts held a peculiar fascination for the State Patrol, requiring their wimmin-troopers to drop trou and submit to consensual genital inspection before being allowed to protect and serve. Not guys, mind you, but only women. Not that this has anything to do with the unpleasant transition of having females join the troops.
Certainly there must be a good reason, a damn good reason, to require female trooper-wannabes to spread their thighs, right? The reason, according to the State, was hernias. Surely nobody wants women out there on the roads, facing down bad hombres with hernias.
Dr. Karen Carlson, an OB-GYN with Nebraska Medicine in Omaha, said it would be highly unusual to conduct a pelvic exam for a possible hernia. Pressing the abdomen with a hand would be standard for such a check, she said.
“There would be no reason to look in the genital or anal area,” Carlson said. “We might have them loosen their pants, but I wouldn’t think there would be any need to disrobe.”
But if women are checked for hernias with their pants on, then nobody can see or touch their vaginas.
“Immediately upon learning of these allegations in June, the Governor instructed his Chief Human Resources Officer to review this matter, which has subsequently resulted in a criminal investigation by the State Patrol,” Taylor Gage, a spokesman for Gov. Pete Ricketts, said in a written statement Wednesday.
Good for Gov. Ricketts, but this means there will be some frustrated troopers on the road in Nebraska.
On the other hand, the Eighth Circuit conducted de novo review of a certain mean old robed rider’s* refusal to put a boy, 11 years of age at the time he was declared “delinquent” and 13 by the time he found his way to the federal courthouse, on the Nebraska sex offender registry.
The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court’s grant of summary judgment to A.W. and A.W.’s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska’s Sex Offender Registration Act (SORA). That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, “[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States.” We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.
Was this a hard case, a stretch for the circuit to let this child escape humiliation and restriction? No. Not really.
3 We note that even if we found “sex offender” to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court. We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.
Of the events triggering application of SORA under NSP regulations–residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02–it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution, see generally Saenz v. Roe, 526 U.S. 489, 502-04 (1999) (describing strict standard of review for state discrimination against newly arrived citizens); Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (“A state law implicates the right to travel . . . when it uses ‘any classification which serves to penalize the exercise of that right.'” (quoting Dunn v. Blumstein, 405 U.S. 330, 340 (1972)), as well as under the Equal Protection Clause, Soto-Lopez, 476 U.S. at 904.
Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 (“The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons.” (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))).
Given the choice between two reasonable constructions, we will generally avoid a construction that raises “grave and doubtful constitutional questions.” Union Pac. R.R. Co. v. United States Dep’t of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013) (quoting United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)); see also Norman, 808 N.W.2d at 58 (“It is the duty of a court to give a statute an interpretation that meets constitutional requirements if it can reasonably be done.”).
The downside is that the Nebraska sex offender registry will be short one child. The upside is that there’s now more room to include the names of the Nebraska State Troopers who desperately seek vaginas. Weird how things even out, even in deepest darkest flyover country.
H/T Jake (whose last name must not be mentioned)
*Doug Berman found the affirmance first, and wrote about it at Sentencing Law and Policy. Since Doug saw no reason to name the district court judge whose decision was affirmed, I will follow his lead, as there must surely be an extremely good reason for concealing the identity of the judge. Probably for his protection, lest this child eventually go out on a date and be accused of unwanted hand-holding or pizza without consent. Do they have pizza in Nebraska?