SAN ANDREAS COURT OF APPEALS
IN THE MATTER OF
(Represented by Juliette Naviaux, Bar Number: 132)
(Represented by Anthony M. LaGuardia, Bar Number: 138)
REASONS FOR JUDGMENT
- DATE: JANUARY 6TH, 2018
DOCKET #: 17-A005
PRESIDING: HONORABLE DARNELL MURPHY, JUDGE
RULING OF THE LOWER COURT: 17-Z006
RULING OF LOWER COURT ORDERED BY:HONORABLE BRADLEY S. SHARP III, ASSOCIATE JUSTICE
 This case was filed on appeal from the Superior Court, Civil Division. The case was brought to the courts on October 28, 2017 by The People of San Andreas seeking a permanent injunction for a restraining order against Ellson Loomsmith (17-Z006). In this case, The People articulated that Mr. Loomsmith continues to be a coherent danger to minors in the State of San Andreas. Honorable Bradley S. Sharp on November 26th, 2017 ordered that:
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: that judgment is granted in favor of Plaintiff People of the State of San ANdreas and against Respondent Ellson Loomsmith; it is ordered that Respondent not come within 100 ft of any person under the age of eighteen; it is ordered that Respondent not come maintain any social media account nor engage in any online chat. This order has no expiry and may last until the end of Respondent's natural life.
 In 17-Z006, The People cited a previous permanent injunction request against Ellson Loomsmith which was ruled on by Honorable Enrique Basurto in case number 17-Z001. On January 26th, Honorable Basurto issued a restraining order with the following conditions:
DEFENDANT is hereby prohibited from willfully approaching ANY PERSONS UNDER THE AGE OF 18 within 100 feet for the duration of this order. DEFENDANT is also probihited from contacting or communicating with ANY PERSONS UNDER THE AGE OF 18 in any form, including verbal, electronic or written means, over the course of this order. This order applies to both parties under SPECIFIC CIRCUMSTANCES. As such, should law enforcement see DEFENDANT within a 100 feet proximity near ANY PERSONS UNDER THE AGE OF 18 or in contact with ANY PERSONS UNDER THE AGE OF 18, law enforcement is OBLIGATED to inform the PERSON UNDER THE AGE OF 18 of this order. From that point on the PERSON may be SUBJECT TO ARREST, should HE slash HER try to approach or come in contact with DEFENDANT. Neither DEFENDANT or ANY PERSONS UNDER THE AGE OF 18 may intentionally approach within 100 meters of each other or intentionally contact each other through any verbal, electronic or written means.
Furthermore, this Court orders DEFENDANT to undergo a mandatory psychological evaluation, handled by and processed through the LOS SANTOS FIRE DEPARTMENT and their relevant divisions and sub-divisions - within five days of this order. DEFENDANT may be subject to arrest via a bench warrant should DEFENDANT refuse to turn himself in to the Los Santos Fire Department for the said mandatory evaluation,
 On Appeal by Ellson Loomsmith's counsel was submitted on November 28, 2017 alleging that the lower courts judge ignored the plaintiff and issued a punishment that was sought by the Plantiff and violated Mr. Loosmith's constitutional rights, the judge did not afforded Mr. Loomsith's counsel an opportunity in making a closing statement, the courts violated Mr. Loomsith's constitutional rights by not allowing him to see his daughter, the presiding judges punishment is punishing Mr. Loomsmith for something he has already been punished for, violating his constitutional rights, and that the presiding judge acted on a lack of evidence in his ruling because the appellants criminal record was never brought up.
 The defendant alleges that the presiding judge decreed a punishment that was not requested by the plaintiff and ignored the plaintiff, decreeing his own punishment. The defendant asserts that this is not due process and is a violation of the 14th amendment of the United States Constitution. The People however refute this claim and state that they amended their original complaint with approval from the court.
 Mr. Loomsmith's counsel alleges that the lower court did not give adequate time for the defense to submit their closing affidavit. The People claim that this is their own fault.
 The defendant alleges that the presiding judge's ruling makes it illegal for Mr. Loomsmith to see his daughter, which is protected by the 14th amendment of the United States Constitution. The People however claim that if this were the case, every restraining order would in some way be in violation of the Constitution. The People go on to state that the restraining order says he may be in the presence of minors, but may not be in contact and as such, does not violate the constitution.
 The defendant asserts that the punishment is cruel and unusual and is in violation of the 8th amendment of the United States Constitution. The People states it does not violate Mr. Loomsmith's constitutional rights, citing a case named Roe v. McClellan.
 The defendant alleges that Mr. Loomsmith has already been punished for his crime. As such, this violates the double jeopardy clause of the 5th amendment of the United States Constitution. The People content that it does not violate double jeopardy because it is an application of civil standards as opposed to a criminal trial or other criminal charges.
 Lastly, the defendant asserts that the presiding judge acted on a lack of evidence in his ruling by never bringing up the defendant's criminal record, which the defendant claims his vital evidence in such a case. The People argue that the criminal record was indeed submitted to the lower court and this court recognizes it.
 Mr. Loomsmith was arrested while speaking to a minor. The defendant argues that the wording in the lower courts order prevents Mr. Loomsmith from going out in public and going to church due to the wording. The People believe the injunction should remain in effect with slight modifications if at all necessary.
III. ANALYSIS AND DISCUSSION
 Judges are given a wide and broad discretion when deciding and issuing punishments. There is no rule nor law that dictates a judge must follow the petitioners requests or claims. Generally speaking, a judge will usually follow the petitioners request if the petitioner has proven their case. However, a judge can reduce or even exceed the petitioners request based on their own observations. In practical application, we see this in many civil proceedings. The petitioner demands a certain amount of money in their opening claim because they feel they have been wronged in some manor and have suffered some form of anguish. During the trial, the defendant manages to mitigate the damage. The trial judge does not give the money demanded by the petitioner, but in stead gives a lower amount of money because he or she has not proven that amount of damage.
 During a motion to dismiss, the courts took up the point of Mr. Loomsmith's counsel not being afforded the opportunity to issue a closing affidavit. This court reviewed the lower courts records and issued a decision. It was decided that the lower courts did not error in not giving the defendant time to submit a closing affidavit. Per the prescribed rules, the lower exceeded the required time and permitted the defendant seven days to file an affidavit. Honorable Bradley Sharp gave the defendant from November 19 through November 26 to deliver a closing affidavit. During that time, the defendant did not provide any response to the courts. The San Andreas Rules of Court dictate that a response shall be given within 24 hours. Honorable Bradley Sharp provided more than enough time exceeding what is required by the rules.
 The right to see ones own child is a very important right that any law, court, or official entity should take very carefully. It however is not an absolute right. When the courts or an official government entity have reason to believe the child to be in harm; the government should be able to react. The counsel for Mr. Loomsmith cited the fourteenth amendment; specifically the right to life, liberty, and, the pursuit of happiness and due processes. The lower court has restricted Mr. Loomsmith's right to see his children because it deemed him to be a potential threat to ones own child through his continued crimes against minors. This court recognizes that Mr. Loomsmith has committed heinous crimes against minors. The right to life, liberty, and pursuit of happiness is not an absolute right especially when it infringes on the rights of others. Individuals have a right to be free from fear and the government has right to impose fair restrictions when necessary. This court recognizes that studies have been conducted showing a high recidivism rate among sex offenders and committing the same crimes again.
 The order itself is very vague and limited and an in-depth analysis was conducted on rather or not this order is cruel and unusual. The order itself states:
Respondent not come within 100 ft of any person under the age of eighteen; it is ordered that Respondent not come maintain any social media account nor engage in any online chat. This order has no expiry and may last until the end of Respondent's natural life.
During the affidavit proceeding, counsel for Mr. Loomsmith cited that such order is cruel and unusual, stating that Mr. Loomsmith cannot, "appear in a holy place of worship without running the risk of unwillingly being in the presence of a minor". After reading the order, this court agrees with the defendant. Under these restrictions imposed, Mr. Loomsmith would not be able to go to a place of worship, conduct daily activities, or even live in society. A person within 100 feet could walk by Mr. Loomsmith without his knowledge and he would be in violation of this order.
Mr. Loomsmith is also ordered not to maintain any social media account or online chat account. There was not a lot of deliberation in the appeal regarding this order. The court however reviewed this order in length as to rather or not this order is unconstitutional. While the State of San Andreas does not recognize all United States Supreme Court cases, it can refer to particular cases when setting precedent. This court will reference Packingham v. North Carolina which held that a North Carolina statute that prohibited sex offenders from accessing social media websites violated the First Amendment to the United States Constitution. The court affirms the reasoning in Packingham v. North Carolina and as such, believes such order is in violation of Mr. Loomsmith's constitutional rights. The court finds no error in imposing restrictions for someone's own lifetime. It is however recognized that it does not prevent an individual from appealing to the courts for a review. The court will hereby modify the order.
 Double Jeopardy prevents the accused from being tried again on the same or similar charges. Throughout the United States, sex offender laws have been in effect in nearly every state, imposing harsher restrictions on individuals deemed to be a danger to society. It's important to note that Mr. Loomsmith is not being charged with a crime of a similar nature. While the restrictions imposed may be viewed as a form of punishment, they do not fall under the realm of double jeopardy as Mr. Loomsmith can still live his life freely. The restrictions are ultimately not a form of punishment, but imposed as civil guidelines of the courts.
 Exhibit C in the lower courts initial restraining order application which was submitted by The People did include Mr. Loomsmith's criminal record. Most notably, the record was not on display. It's important to uphold the privacy of each individual who comes before this court. In these circumstances, the State of San Andreas does not state if the public can access someones own criminal record; that's a very open interpretation. A trial judge should have broad discretion on which documents, papers, and evidence are available to court observers. These are individuals who wish to observe the court processes, but are not directly related to the case. All judges have access to each persons criminal record.
[Finding 1] This court reaffirms that the lower court followed proper procedural rules. The courts allowed ample time for Mr. Loomsith's counsel to submit a closing affidavit in the lower courts. The lower court is deemed to have utilized the defendants criminal record when making its ruling as it was submitted evidence accessible by the Judge.
[Finding 2] This court reaffirms that it is not a violation of the 14th amendment for the courts to impose restrictions preventing an individual from seeing their daughter when it is for the protection of the child.
[Finding 3] The court does not find the application of a restraining order to be double jeopardy and instead refers to it as civil in nature.
[Finding 4] This could will not make a ruling on Mr. Loomsmith's arrest for a violation of the lower courts ruling. Instead, the courts advise the defendant to submit an internal affairs report to the respective agency showing this verdict and new order. If it is deemed that Ellson had no knowledge, the charges should be dropped.
[Finding 5] The court does find the vague order issued by the lower court to be unconstitutional. Instead of dismissing the order completely, this court submits a modified order:
COURT OF SAN ANDREAS
COURT OF APPEALS
IN THE MATTER OF
PERMANENT RESTRAINING ORDER
EFFECTIVE JANUARY 6TH , 2018:
ELLSON LOOMSMITH is hereby prohibited from WILLFULLY AND KNOWINGLY
engaging with ANY PERSONS UNDER THE AGE OF 18 or being within 100 feet with ANY PERSONS UNDER THE AGE OF 18. ELLSON LOOMSMITH is prohibited from KNOWINGLY
communicating with ANY PERSONS UNDER THE AGE OF 18 in any form, including verbal, electronic or written means. Law Enforcement coming in contact with ELLSON LOOMSMITH in violation of this order should ensure Ellson had knowledge of their age prior to issuing a charge in violation of this order. It is advised that Law Enforcement document all alleged interactions.
Furthermore, this Court orders ELLSON LOOMSMITH to undergo a psychological evaluation, handled by and processed through the LOS SANTOS FIRE DEPARTMENT and their relevant divisions and sub-divisions - within five days of this order if Mr. Loomsmith wishes to be able to visit his daughter. DEFENDANT is not obligated to have an evaluation conducted. The LOS SANTOS FIRE DEPARTMENT shall inform the courts of any risk to Loomsmith's child and shall advise if visitation or custodial rights should be considered. ELLSON LOOMSMITH is ordered not to come in contact with any child he has been a caregiver or had custodial rights over until this court renders a decision.
This order will last indefinitely.
Intentional failure to abide this order by DEFENDANT can result in arrest by law enforcement under the charge of San Andreas Penal Code (4)03. Contempt of Court. First offense is 60 days, second offense is 120 days and third offense would require the handling law enforcement officer to contact Judge Darnell Murphy before proceeding with arrest. Peaceful written contact through a lawyer, court official or law enforcement officer for service of legal papers related to a court case is allowed and does not violate this order, provided that the contact is through an aforementioned authorized third party (lawyer, law enforcement, court official) and is limited to official legal business only.
IT IS SO ORDERED,
(( OOC CLARIFICATION:
60 days = 120 min
120 days = 240 min
Judge Darnell Murphy
Court of Appeals of San Andreas
IT IS SO ORDERED.
Court of Appeals of San Andreas
DELIVERED IN THE CITY OF LOS SANTOS, IN THE STATE OF SAN ANDREAS, ON THIS 6TH DAY OF JANUARY, 2018.