Doe v. Marshall
Doe v. Marshall
Opinion of the Court
The Alabama Sex Offender Registration and Community Notification Act (ASORCNA) is the most comprehensive and debilitating sex-offender scheme in the nation. No other state's system comes close. ASORCNA applies to adult offenders no matter when or where they were convicted. It bans them from living or working within 2,000 feet of a school or daycare, even if the offender never harmed a child. Between 10:30 p.m. and 6:00 a.m., no offender can be in the same house as a minor niece or nephew - not even for a minute. An offender's driver's license is branded with "CRIMINAL SEX OFFENDER" in bold, red letters. Offenders must report lawful internet activity - such as connecting to the Wi-Fi at a new McDonald's, or anonymously commenting on a news article - to the police. Even a minor violation of any of these provisions may result in years behind bars. And unless a narrow exception somehow applies, offenders must comply with ASORCNA for life. See generally
The State of Alabama says that these restrictions protect the public, especially children, from recidivist sex offenders. That is a compelling state interest. But sex offenders are not second-class citizens. The Constitution protects their liberty and dignity just as it protects everyone else's.
This case is about whether certain ASORCNA provisions violate the First and Fourteenth Amendments. Plaintiffs are five registered sex offenders covered by ASORCNA. Their claims are before the court on cross-motions for summary judgment. (Docs. # 139, 147, 154.) For the reasons below, Plaintiffs are entitled to summary judgment on their First Amendment claims. The branded-identification requirement unnecessarily compels speech. The internet-use reporting requirements also go too far, chilling free speech. But the State of Alabama is entitled to summary judgment on Plaintiffs' Fourteenth Amendment claims. Though Plaintiffs have made several good legal arguments, one Fourteenth Amendment claim fails on the merits, and Plaintiffs lack standing to pursue the rest.
I. JURISDICTION AND VENUE
The court has subject-matter jurisdiction under
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court views the evidence, and all reasonable inferences drawn from it, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez ,
A party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for the motion." Celotex Corp. v. Catrett ,
"Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed." Bricklayers, Masons & Plasterers Int'l Union v. Stuart Plastering Co. ,
III. BACKGROUND
ASORCNA is a comprehensive statute that severely limits how sex offenders live their lives. It brings together most of the restrictive features used by other states, adds new restrictions, and punishes minor violations with years in prison. Plaintiffs John Doe 1, John Doe 3, John Doe 7, John Doe 9, and John Doe 10 are registered sex offenders who must comply with ASORCNA. Their hopscotch numbering reflects that other plaintiffs have been dropped from this case during the three years of litigation. Defendants are state officials charged with implementing and enforcing ASORCNA. Because Defendants are sued in their official capacities, however, the court refers to them collectively as "the State of Alabama" or "the State."
A. The Challenged Statutory Provisions
The State of Alabama enacted its first sex-offender statute over five decades ago. See Ala. Act No. 1967-507. That law merely required offenders to submit their name to their county sheriff,
ASORCNA applies to adults convicted of any of thirty-three "sex offenses."
1. Reporting Requirements
Offenders must register with law enforcement.
Offenders must "immediately" update their registration information whenever it changes.
2. Residency Restrictions
ASORCNA sharply limits where sex offenders may live. Offenders may not "establish" or "maintain" a residence within 2,000 feet of a school, childcare facility, or resident camp.
ASORCNA also includes a "minor-cohabitation rule." Under that rule, no offender may "reside or conduct an overnight visit with a minor."
Deciphering the statutory meaning of "residence" is no small feat - it takes several cross-references to pin down the term's definition. "Residence" is defined as "[a] fixed residence ... or other place where the person resides, regardless of whether the person declares or characterizes such place as a residence."
*1321
ASORCNA does have limited exceptions from the residency restrictions. First, it offers a "safe harbor" from the 2,000-foot exclusion zone in the form of preapproval: If law enforcement preapproves an address as ASORCNA-compliant before an offender moves in, his residence there will not violate the 2,000-foot rule.
3. Employment Restrictions
ASORCNA also limits where offenders may work. Offenders may not "accept or maintain employment or a volunteer position" within 2,000 feet of a school or childcare facility.
These employment restrictions apply to everyone, even if their offense did not involve a minor. The exclusion zones are measured "from nearest property line to nearest property line."
4. Branded Identification
ASORCNA requires offenders to "obtain ... and always have in [their] possession, a valid driver license or identification card issued by the Alabama State Law Enforcement Agency."
The Act bestows on the Secretary of the Alabama Law Enforcement Agency the exclusive power "to promulgate any rules as are necessary to implement and enforce" the Act.
5. Penalties for ASORCNA Violations
ASORCNA's provisions are enforced by threat of criminal prosecution. Even a minor violation may constitute a Class C felony. See, e.g. ,
The baseline term of imprisonment for a Class C felony is "not more than 10 years or less than 1 year and 1 day."
*1322B. The Plaintiffs
In 1992 and 1993, John Doe 1 pleaded guilty to two Wisconsin misdemeanor charges after he exposed his genitals in public. Doe 1 served a six-month suspended sentence for each charge. He did not have to register as a sex offender in Wisconsin. Nor did he have to register when he moved to Alabama in 1994. It was only in 2008 that Alabama forced Doe 1 to register. Since then, he has twice been convicted of violating ASORCNA: once for failing to report a change of address, and once for redacting his branded identification. (Doc. # 138, at 8-9, 22, 32-33.)
John Doe 3 was convicted of murder in 1968. He was thirteen. In 1985, while in prison, he pleaded guilty to first-degree sodomy of another adult inmate. Doe 3 registered as a sex offender upon his release from prison in 2010. He has committed no crimes since his release. (Doc. # 138, at 10; Doc. # 156-1, at 4-5, 25.) Doe 3 has a close relationship with his adult niece. That niece invited Doe 3 to live with her, but he cannot do so for two reasons. First, his niece lives within 2,000 feet of both a school and a childcare facility. Second, his niece's thirteen-year-old son and one-year-old grandson live with her. (Docs. # 140-1, 156-2, 156-3.)
John Doe 7 pleaded guilty to second-degree sodomy of an adult jail inmate in 1987. He registered as a sex offender upon his release from prison in 2011. In 2015, he was convicted of violating ASORCNA's residency restrictions. In 2018, he was charged with two more residency violations. (Doc. # 138, at 11-12, 24-25; Doc. # 150-7; Doc. # 156-4, at 4-5, 29.) When he was released from prison in 2011, Doe 7 had planned to live with his sister, but she lives within 2,000 feet of a school. His sister's granddaughter (age five) and great-granddaughter (age eight) also live with her several nights a week. (Docs. # 140-2, 156-6.) Doe 7 has a close relationship with his niece, and she is willing to let Doe 7 live with her. But her home is within 2,000 feet of two childcare facilities, and her four-year-old daughter lives with her. (Docs. # 140-3, 140-4, 156-3, 156-7.)
John Doe 9 was convicted of sexual battery of an adult female in 2005. He registered as a sex offender in Alabama in 2006. (Doc. # 138, at 12-13.)
John Doe 10 pleaded guilty to second-degree sexual abuse, a misdemeanor, in 1990. He registered as a sex offender at that time. In 2009, he went to Kansas for a year-long drug-treatment program. When he returned home to Alabama, he was convicted of failing to report that he moved to Kansas. (Doc. # 138, at 14.)
C. Procedural History
Plaintiffs filed their initial complaint in August 2015. (Doc. # 1.) They filed amended complaints in November 2015 and August 2016. (Docs. # 39, 81.) The State moved to dismiss both the first amended complaint and the second amended complaint. (Docs. # 43, 87.) Those motions were granted in part and denied in part. (Docs. # 51, 125.) In April 2018, Plaintiffs moved for leave to supplement their second amended complaint. (Doc. # 132.) That motion was largely denied, though Plaintiffs were allowed to make a small addition to one claim. (Doc. # 137.) As things stand now, Plaintiffs have four operative claims. (See Doc. # 138.)
Count One argues that the minor-cohabitation rule violates the Due Process Clause of the Fourteenth Amendment. This is an as-applied challenge brought by Doe 3 and Doe 7, who claim the rule deprives them of their fundamental right to associate with their family. (Doc. # 81, at 45; Doc. # 138, at 46.) They previously challenged the 2,000-foot exclusion zone under the same family association theory, but that part of Count One was dismissed in 2016. (Doc. # 51, at 31-33.)
*1323Count Three claims the residency and employment restrictions are facially void for vagueness under the Due Process Clause. All five Plaintiffs bring this claim. (Doc. # 81, at 48; Doc. # 138, at 46.) The supplemental second amended complaint lists a vagueness challenge to reporting requirements (Doc. # 138, at 47), but that claim was dismissed (Doc. # 125, at 29), and leave to amend was not granted (Doc. # 137, at 8-10).
Counts Four and Five raise First Amendment claims. Count Four is an as-applied challenge to ASORCNA's branded-identification requirement as applied by the State. According to Plaintiffs, that requirement compels speech in violation of the First Amendment. (Doc. # 81, at 49; Doc. # 138, at 47.)
Count Five is a First Amendment overbreadth challenge to the internet-use reporting requirements. Plaintiffs claim those reporting requirements unduly chill free speech. (Doc. # 81, at 50; Doc. # 138, at 49.)
Now before the court are cross-motions for summary judgment on all counts. (Docs. # 139, 147, 154.) Each side has filed three briefs and several exhibits. (Docs. # 140, 149, 155, 158, 159, 161.) The issues are ripe for summary judgment.
IV. DISCUSSION
Plaintiffs are entitled to summary judgment on their claims that the branded-identification and internet-use reporting requirements violate the First Amendment. The court has already held that Plaintiffs have a cause of action on which relief may be granted. (Doc. # 51, at 43-48; Doc. # 125, at 33-49.) Undisputed material facts now show that Plaintiffs are entitled to judgment as a matter of law on those claims.
But the State is entitled to summary judgment on the Fourteenth Amendment claims. Though the court found before that Plaintiffs alleged valid claims under the Fourteenth Amendment (Doc. # 51, at 21-28, 33-40; Doc. # 125, at 17-20, 24-32), the facts in discovery do not bear out those claims. Doe 3 and Doe 7 lack standing to challenge the minor-cohabitation rule because the relatives they want to live with also live within 2,000 feet of schools and childcare facilities. As for the employment exclusion zones, Plaintiffs have not been affected by any vagueness in that part of the statute. Some Plaintiffs are disabled, and others concede that desired jobs are within an exclusion zone. Finally, Plaintiffs fail to trace arbitrary enforcement of the residency restrictions to any vagueness in the text of the law.
A. Plaintiffs are entitled to summary judgment on their First Amendment claims.
The First Amendment prohibits governments from "abridging the freedom of speech." U.S. Const. amend. I. ASORCNA's branded-identification and internet-use reporting requirements violate that fundamental liberty.
*13241. The branded-identification requirement is compelled speech and does not survive strict scrutiny.
In Wooley v. Maynard , the Supreme Court affirmed that the First Amendment protects "both the right to speak freely and the right to refrain from speaking at all."
Plaintiffs rely on Wooley and its progeny to argue that printing "CRIMINAL SEX OFFENDER" on state-issued identification cards is unconstitutional. Plaintiffs are correct. The branded-ID requirement compels speech, and it is not the least restrictive means of advancing a compelling state interest.
a. The branded-identification requirement compels speech.
The first step in a Wooley -style analysis is to determine whether the state has, in fact, compelled speech. This is a four-part test. There must be (1) speech; (2) to which the plaintiff objects; (3) that is compelled; and (4) that is readily associated with the plaintiff. Cressman v. Thompson ,
First, just as the Court in Wooley "had no trouble" finding that "Live Free or Die" was speech, neither does this court have trouble finding that "CRIMINAL SEX OFFENDER" is speech. Cressman ,
The State tries to distinguish Wooley as a case about ideological speech. Yet the words here call to mind philosophical and moral messages about crime, victims, retribution, deterrence, and rehabilitation. And even if they did not - even if the words here were purely factual with no ideological implications - the compelled speech doctrine would still apply. As the Supreme Court explained in Riley v. National Federation of the Blind , "cases cannot be distinguished because they involve compelled statements of opinion while here we deal with compelled statements of 'fact': either form of compulsion burdens protected speech."
Just as Wooley applies to compelled statements of fact, it also applies to *1325government speech. The message here is indeed government speech. After all, the State issues the ID cards and controls what is printed on them. See Mech v. Sch. Bd. of Palm Beach Cty. ,
Second, Plaintiffs do not agree that they are "criminal sex offenders." Though even a minor disagreement with a message is enough for constitutional purposes, see United States v. United Foods, Inc. ,
I have never felt so embarrassed and ashamed in all of my life. I would not wish showing this [branded identification] on my worst enemy. It makes me not want to go places where I have to show it, and I try not to go places where I know I will have to [show the branded license]. But every week, there is some places that ask me to show it, and every time, I get them evil looks from people - like I'm a murderer or something. I done paid for what I did over 25 years ago. Nobody should have to carry this [branded license]. It ain't right, but I don't have a way out.
(Doc. # 138, at 34.) Doe 3, Doe 7, and Doe 9 describe similar experiences with, and thus their disagreement with, the State's message. (Doc. # 138, at 13, 33; Doc. # 156-1, at 10-11; Doc. # 156-4, at 13.)
Third, Plaintiffs are compelled to display the offensive message. Plaintiffs are legally required to keep their ID "in [their] possession" at all times.
The State of Alabama contends that Plaintiffs are not compelled to show their branded IDs to anyone. Instead, the State says, Plaintiffs could use a passport. But a passport is a poor substitute for a state-issued
Fourth, the message on the branded IDs is "readily associated" with Plaintiffs.
The State likens the words on Plaintiffs' IDs to the national motto, "In God We Trust," on U.S. currency. Several courts recently held that engraving that motto on currency is not compelled speech, reasoning that the motto is attributed only to the government and that no one must display currency. New Doe Child # 1 v. United States ,
b. The branded-identification requirement fails strict scrutiny.
Because it compels speech, ASORCNA's branded-identification requirement "is a content-based regulation of speech." NIFLA v. Becerra , --- U.S. ----,
The State has a compelling interest in enabling law enforcement to identify a person as a sex offender. See
Because Alabama has not used the least restrictive means of advancing its interest, Alabama Code § 15-20A-18, as applied by the State, is unconstitutional.
2. The internet-use reporting requirements are facially overbroad.
"The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere." Ashcroft v. Free Speech Coal. ,
a. The internet-use reporting requirements burden free speech.
ASORCNA implicates the First Amendment because it requires "a narrow class of individuals to notify the government" within three business days of engaging certain online activity. Doe v. Harris ,
These requirements burden an offender's "ability and willingness to speak on the Internet." Harris ,
The Act is also far-reaching. An offender must report to the police every time he connects to a Wi-Fi spot at a new McDonald's, every time he uses a new computer terminal at a public library, every time he borrows a smartphone to read *1328the news online, and every time he anonymously comments on a news article. Every time he walks into a new coffee shop, he must determine whether opening his laptop is worth the hassle of reporting. The Act is not limited to unlawful internet activity. To the contrary, "just as the Act burdens sending child pornography and soliciting sex with minors, it also burdens blogging about political topics and posting comments to online news articles." Harris ,
The State argues that "if a sexual predator is changing online identities and email addresses so often that it becomes a burden, one must wonder why he is going through such efforts to change his online identity." (Doc. # 155, at 52.) "Normal internet usage," it says, "would not require so many different online identities that reporting would be such a burden that it chills anyone's speech." (Doc. # 155, at 53.) But that argument has several flaws. One is that it incorrectly assumes the Act applies only to "sexual predators." Not every offender is a "predator," and the State poisons the well by implying otherwise. Another flaw is that it assumes one must report several times before reporting is a burden. In reality, offenders experience a burden each time they must report their online activity. And finally, the State plainly understates ASORCNA's true impact. ASORCNA burdens speech.
b. Strict scrutiny applies because the law is not content neutral.
Once a court finds that a law burdens speech, the next step is to determine what level of scrutiny applies. The level of scrutiny hinges on content neutrality. "Content-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Reed , 135 S.Ct. at 2226. Under strict scrutiny, a law is invalid unless it uses the least restrictive means of furthering the compelling interest. Playboy ,
ASORCNA is a content-based law because it singles out commercial speech for special treatment. See Playboy ,
c. The internet-use reporting requirements do not survive even intermediate scrutiny.
The State has a compelling interest in protecting its citizens from predators. See
First, under ASORCNA, "anytime registrants want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of" immediately reporting the change to law enforcement. Harris ,
Second, the Act applies to broad swaths of lawful speech. A state "may not suppress lawful speech as the means to suppress unlawful speech." Ashcroft ,
Third, ASORCNA grants local law enforcement significant discretion. There is no objective limiting principle to prevent arbitrary or discriminatory enforcement. The sheriff of one county could require offenders to report in-person each time they create a new online identifier, while the sheriff of a neighboring county could let offenders report such changes over the phone. Indeed, nothing keeps police officers from requiring one offender to report in-person while allowing others to report over the phone. The effect of this discretion *1330is that offenders may fear retribution if they criticize the police online. That conflicts with the need for "stringent protection of First Amendment rights." Cate v. Oldham ,
Fourth, violating ASORCNA can lead to a felony conviction and years behind bars. This "may well cause speakers to remain silent rather than communicate." Reno ,
Finally, the reporting requirements apply for life without regard to risk. Doe 1, for example, was convicted twenty-six years ago of what was basically indecent exposure. Doe 3 and Doe 7's convictions, while for more serious crimes, are over three decades old. No Plaintiff used the internet in any capacity to facilitate their crimes. No Plaintiffs' crimes involved minors. Yet every offender must report when they connect to a new Wi-Fi spot.
The failure to account for risk is a problem throughout ASORCNA. Not all sex crimes are the same. Nor are all offenders the same. Instead, as Dr. Karl Hanson explains (Docs. # 159-1, 159-2, 159-3), one can classify sex offenders based on their risk of committing another sex offense ("sexual recidivism").
*1331Because they chill a wide swath of protected speech under penalty of felony, ASORCNA's internet-use reporting requirements,
B. Defendants are entitled to summary judgment on Plaintiffs' Fourteenth Amendment claims.
The Fourteenth Amendment's Due Process Clause provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. That promise has procedural and substantive components. Procedural due process "guarantees that a state will not deprive a person of life, liberty, or property without some form of notice and opportunity to be heard." Doe v. Moore ,
1. Doe 3 and Doe 7 lack standing to challenge the minor-cohabitation rule.
The Constitution "protects the sanctity of the family." Moore v. City of East Cleveland ,
Doe 3 and Doe 7 claim that the minor-cohabitation rule,
On summary judgment, though, it is not enough to rely on allegations. Actual facts matter. Fed. R. Civ. P. 56(e). And during discovery, facts came out that keep Doe 3 and Doe 7 from advancing their claims.
A plaintiff must have standing throughout his case. CAMP Legal Def. Fund, Inc. v. City of Atlanta ,
The Eleventh Circuit applied this rule in KH Outdoor, L.L.C. v. Clay County ,
This principle keeps Doe 3 and Doe 7 from advancing their challenge to the minor-cohabitation rule. That is because each of the relatives that Doe 3 and Doe 7 identified live within a residential exclusion zone.
Doe 3 and Doe 7 do not currently challenge the 2,000-foot exclusion zones as violating the right to familial association. They brought such a challenge at first, but it was dismissed almost three years ago. (Doc. # 51, at 31-33.) Because the 2,000-foot rule does not directly infringe on the right to family association, and because it is rationally related to Alabama's interest in protecting its citizens, it does not violate substantive due process. McGuire v. City of Montgomery , No. 11-cv-1027,
In short, a valid law - the 2,000-foot exclusion zone - independently keeps Doe 3 and Doe 7 from living with their desired relatives. Doe 3 and Doe 7 thus lack standing to challenge the minor-cohabitation rule. See Covenant Media of N.C., L.L.C. v. City of Monroe ,
*13332. Plaintiffs cannot prevail on their vagueness claims.
Count Three of Plaintiffs' complaint alleges that ASORCNA's residency and employment restrictions - specifically, the 2,000-foot exclusion zones - are void for vagueness. The State is entitled to summary judgment on those claims. To see why, it helps to first overview the void-for-vagueness doctrine.
a. The Fourteenth Amendment prohibits vague laws.
A basic principle of procedural due process is that laws are void for vagueness if their prohibitions are not clearly defined. Wollschlaeger v. Governor of Fla. ,
A statute can be vague for either of two "connected but discrete" reasons. F.C.C. v. Fox Television Stations, Inc. ,
Whether the focus is on lack of notice or lack standards for enforcement, the vagueness doctrine keeps people from having to guess what the law prohibits. But the issue is not that "close" or "hard" cases might arise. See United States v. Nelson ,
For example, the Supreme Court has held that laws banning "indecent" or "annoying" actions - both subjective judgments, neither statutorily defined - were vague. Reno ,
*1334
But courts do not apply these principles to hypotheticals. "Litigants may not comb the statute books for poorly drafted laws and sue to enjoin their enforcement." Bankshot ,
Again, though, litigants cannot argue that a law is vague based on how it might apply to a hypothetical scenario. Instead, courts "consider whether a statute is vague as applied to the particular facts at issue." Holder v. Humanitarian Law Project ,
The Eleventh Circuit recently enforced this limitation in Stardust, 3007 LLC v. City of Brookhaven ,
Finally, arbitrary and discriminatory enforcement is relevant in vagueness cases. A statute cannot leave police officers free to decide, case-by-case, what is illegal. See Morales ,
It is now time to apply these principles to Plaintiffs' claims.
b. The residency restrictions are not unconstitutionally vague.
The court previously found that ASORCNA's residency exclusion zones are *1335not void for vagueness. (Doc. # 125, at 24-28.) That was for three reasons. First, the Act defines key terms, especially the word "reside."
Plaintiffs later sought leave to supplement their complaint to allege that the residency restrictions are "enforced in a shockingly arbitrary and nonsensical manner by local law enforcement." (Doc. # 134-1, at 2.) The court granted leave to supplement the complaint, but it did not judge the merits of Plaintiffs' addition. (Doc. # 137, at 9; see Doc. # 125, at 28 n.13.) The court now finds that any arbitrary or discriminatory enforcement does not result from vagueness in ASORCNA's text. The State is thus entitled to summary judgment on this issue.
Plaintiffs claim that two phrases in ASORCNA's legislative findings lead to arbitrary enforcement. One is a statement that offenders have a "reduced expectation of privacy," and the other is a reference to "monitoring and tracking" offenders.
Sex offenders, due to the nature of their offenses, have a reduced expectation of privacy. In balancing the sex offender's rights, and the interest of public safety, the Legislature finds that releasing certain information to the public furthers the primary governmental interest of protecting vulnerable populations, particularly children. Employment and residence restrictions, together with monitoring and tracking, also further that interest. The Legislature declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public and, most importantly, promote child safety.
Plaintiffs point out that local police conduct "home checks" to see if offenders live at their reported address. Home checks are unannounced and warrantless. (Doc. # 150-1, at 5, 7-8; Doc. # 150-2, at 4, 8; Doc. # 150-3, at 4, 17.) At least one police officer uses the Act's reference to a "reduced expectation of privacy" to justify home checks. (Doc. # 150-1, at 5.) And during home checks, officers sometimes violate the Fourth Amendment, demand that offenders prove their residence by producing mail or clothing, and treat lawful behavior as evidence of wrongdoing. (See Docs. # 150-1, 150-2, 150-3, 150-4, 150-5.)
Plaintiffs try to turn these problems into evidence of vagueness, arguing that ASORCNA does not "provide clear guidance as to the boundaries under which law enforcement shall conduct themselves." (Doc. # 149, at 5.) That misses the point. The vagueness doctrine is concerned with ambiguity in what a law prohibits. It does not require statutes to lay out how police officers may (or may not) investigate potential violations. The problems raised by home checks are "addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt,"
*1336Williams ,
Plaintiffs present evidence that four offenders (each of whom committed offenses against minors) live at noncompliant addresses even though Plaintiffs (none of whom committed offenses against minors) cannot live in exclusion zones. The court refers to the offenders living at noncompliant addresses by their initials: J.B. (Doc. # 150-2, at 39-41, 50; Doc. # 150-9); T.D. (Doc. # 150-1, at 13-14; Doc. # 150-2, at 14-15, 38); F.W. (Doc. # 150-2, at 56); and H.B. (Doc. # 150-2, at 57; Doc. # 150-10; Doc. # 150-14). But the evidence about J.B., T.D., F.W., and H.B. does not show that the residency restrictions are vague. Plaintiffs' attorney deposed police officers responsible for enforcing the law against those four men. Counsel asked whether J.B., T.D., F.W., and H.B. should have been allowed to live at noncompliant addresses. The officers admitted they should not have been allowed to live at noncompliant addresses. (Doc. # 150-1, at 14, 17, 19; Doc. # 150-2, at 18-20; Doc. # 150-11, at 6.) That police officers made mistakes does not mean that the law is vague. In fact, the fact that Plaintiff could tell that four offenders lived at noncompliant addresses is evidence that the law has a discernable meaning.
Doe 3 also presents evidence that local police denied his request to move to a noncompliant address. The police explained that his chosen address was "approx. 850 feet" from an elementary school. (Doc. # 150-13.) In fact, the house is 750 feet from the school. (Doc. # 150-10, at 3.) Because the address is "clearly" noncompliant, Doe 3 cannot use the police's denial to "complain of the vagueness of the law as applied to the conduct of others." Hoffman ,
Finally, Doe 7 has been the subject of ongoing enforcement efforts in Chilton County. (See generally Docs. # 150-3, 150-7, 150-8, 150-9, 159-6.) But he has not shown how those legal troubles arise from any vague provision in the text of the law. He instead argues that, based on the facts of his case, he never violated the residency restrictions. That is not an appropriate argument for a facial vagueness challenge. See Fla. Businessmen for Free Enter. v. City of Hollywood ,
c. Plaintiffs cannot prevail in their challenge to the employment restrictions.
Plaintiffs challenge the employment exclusion zones based not on selective enforcement, but on the text of the law itself. The court previously allowed their claim to proceed, stating that "registrants can only guess at whether their place of employment falls within a zone of exclusion" and that "the employment restriction remains confoundingly opaque." (Doc. # 125, at 28-29.) That was at the motion to dismiss stage, however. On summary judgment, Plaintiffs must back up *1337their claims with evidence. But Plaintiffs have presented no evidence that they ever had to guess whether a potential employer was in an exclusion zone. There is no evidence that Plaintiffs cannot tell what the law requires. Most Plaintiffs are disabled. And there is no evidence at all about Doe 1's employment status. The State is therefore entitled to summary judgment.
Only three Plaintiffs - Doe 3, Doe 7, and Doe 9 - describe their attempts to find jobs. Their descriptions show that at least some of their desired places of employment are "clearly proscribed" by the exclusion zones. Hoffman ,
In the complaint, Doe 3 states that he "inquired about working at several auto body and paint [shops] in his city." "None" were ASORCNA-compliant "because of the zones of exclusion." (Doc. # 138, at 30.) In his deposition, Doe 3 described his efforts to get a job at two auto body shops. But rather than state that he was not sure whether the shops were ASORCNA-compliant, he testified that the shops turned him away because of his branded identification. (Doc. # 156-1, at 14-15.)
The complaint states that Doe 7 must "turn down many roofing, framing, brick masonry, and construction clean-up jobs" because he "may only work in areas allowed by ASORCNA's employment zones." (Doc. # 138, at 30.) That statement implies Doe 7 turns down jobs because he knows some construction sites are within 2,000 feet of a school or childcare facility.
Finally, Doe 9 alleges that "ASORCNA prohibits [him] from working in the vast majority of businesses in his hometown because of the employment zones of exclusion." (Doc. # 138, at 31.) Once again, this shows that the exclusion zones are not vague as applied to Plaintiffs.
There is another problem with Plaintiffs' vagueness claim: Doe 3, Doe 7, and Doe 10 are disabled and receive Social Security disability payments. Doe 3 admits that disability payments are his sole source of income, that he proved he was physically unable to work to get those payments, and that he does not foresee his condition improving enough to obtain work. (Doc. # 156-1, at 7-8.) Doe 7 likewise admits that he proved he was physically unable to work and that he does not foresee his condition improving enough to work "in the near future." (Doc. # 156-4, at 7.) The only evidence about Doe 10's employment status is that he "is disabled" and receives disability payments. (Doc. # 138, at 15.) Doe 3 does claim he can work as an auto body painter and that he would accept reduced disability benefits if he could work. (Doc. # 156-1, at 14.) Doe 7 also testifies that he cleans construction sites one or two days a week. (Doc. # 156-4, at 12.) But as explained above, those facts do not allow Plaintiffs to bring a vagueness challenge.
Finally, the complaint alleges that some offenders are allowed to work in exclusion zones, even if their crimes were against children. (Doc. # 138, at 42-43.) But there is no evidence supporting that statement.
*1338There is no way to tell if it is based on personal knowledge. And again, one "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Hoffman ,
None of this is to say that ASORCNA's employment restrictions are clear in every respect. The statute still lacks a preapproval process. It still does not address what happens when a worker makes a service call, performs intermittent work at different sites across town, or drives a car for a living. But those ambiguities must wait until another day. See Holder ,
C. Plaintiffs' claims are not barred by the statute of limitations.
One more thing. The State twice moved to dismiss the claims at issue here. (Docs. # 44, 87.) In neither motion did it argue that these claims are barred by the statute of limitations. So it is a surprise to see the State now argue that every claim in the operative complaint is untimely. (Doc. # 155, at 17-25.) But in the end, the State's heel-dragging does not matter. Plaintiffs' claims are not time-barred.
Because Plaintiffs filed a claim under
But not all injuries are equal. Sometimes, there is one discrete point at which the injury occurs. Other times, however, the injury happens over and over again. When the injury occurs determines when the statute of limitations starts running.
Plaintiffs claim that ASORCNA is unconstitutionally vague and violates their fundamental rights. If that is true, then ASORCNA afflicts a fresh injury each day that Plaintiffs are subject to the law. In Kuhnle Brothers v. County of Geauga , for example, the Sixth Circuit held that a claim for the deprivation of the right to travel accrues every day while the unconstitutional law is in effect.
Plaintiffs have an ongoing duty to report their internet activity. They must repeatedly show their branded identification to random strangers. They are forever barred from living with their nieces and nephews. They are bound in perpetuity by allegedly vague laws. Thus, each new day is a new injury. And so far as the law is enforced, Plaintiffs will suffer new injuries. See Maldonado v. Harris ,
This in no way conflicts with the Eleventh Circuit's pronouncements in *1339Moore v. Federal Bureau of Prisons ,
But the injury caused by wrongful registration is not the same injury caused by the constant deprivation of fundamental rights. Yes, registration triggers ongoing obligations, but the plaintiffs in Moore , Meggison , and Mims challenged registration itself. That is different from claiming that certain restrictions on everyday activities violate the First Amendment. Plaintiffs here are repeatedly compelled to speak and forced to report internet use. They suffered those injuries within two years of suing (and continue to suffer them), so their claims are timely.
V. CONCLUSION
Alabama can prosecute sex offenses to the full extent of the law. It can also act to protect its citizens from recidivist sex offenders. But the State denies that ASORCNA is designed to "punish" offenders. And once a person serves his full sentence, he enjoys the full protection of the Constitution. Harris ,
It is therefore ORDERED that:
1. Plaintiffs' first Motion for Partial Summary Judgment (Doc. # 139) is GRANTED as to Counts Four and Five and DENIED as to Counts One and Three.
2. Plaintiffs' second Motion for Partial Summary Judgment (Doc. # 147) is DENIED.
3. Defendants' Motion for Judgment on the Pleadings, or, in the alternative, Motion for Summary Judgment (Doc. # 154) is GRANTED as to Counts One and Three and DENIED as to Counts Four and Five.
4. The State of Alabama's branded-identification requirement,Ala. Code § 15 -20A-18, is DECLARED unconstitutional as applied to Plaintiffs.
5. The State of Alabama's internet-use reporting requirements,Ala. Code §§ 15 -20A-7(a)(9), (18), 15-20A-10(e)(1), are DECLARED facially unconstitutional.
DONE this 11th day of February, 2019.
For example, ASORCNA offers limited relief for juvenile offenders,
In McGuire v. Strange , the court found that the branded-identification requirement is not "punishment" and thus is not an ex post facto law.
See Stolen Passports: A Terrorist's First Class Ticket: Hearing Before the H. Comm. on Int'l Relations , 108th Cong. 1 (2004) (statement of Rep. Henry J. Hyde, Chair, H. Comm. on Int'l Relations) ("A stolen passport may be worth more than its weight in gold."); Rey Koslowski, Smart Borders, Virtual Borders, or No Borders: Homeland Security Choices for the United States and Canada , 11 L. & Bus. Rev. Am. 527, 536 (2005) (recognizing the demand for stolen passports).
Other states use more discrete labels. Delaware, for example, uses the letter "Y" to denote sex-offender status. Del. Code tit. 21, § 2718(e) (2018). Florida divides offenders into categories: most have a code ("943.0435, F.S.") on their ID, while a "sexual predator" label is used for the most serious offenders.
To be sure, ASORCNA puts only a minimal restriction on the right to anonymous speech. Standing alone, knowledge that speech may be monitored does not unconstitutionally burden speech. See Laird v. Tatum ,
Data discussed in Dr. Hanson's report is published in academic journals. See, e.g. , R. Karl Hanson et al., Reductions in Risk Based on Time Offense-Free in the Community: Once a Sexual Offender, Not Always a Sexual Offender , 24 Psychol., Pub. Pol'y & L. 48, 53-57 (2018) ; R. Karl Hanson et al., High-Risk Sex Offenders May Not Be High Risk Forever , 29 J. Interpersonal Violence 2792, 2796-2802 (2014). The court, however, relies solely on the reports. The State did not challenge whether Dr. Hanson is an "expert" under Federal Rule of Evidence 702 or Daubert v. Merrell Dow Pharmaceuticals, Inc. ,
The State's expert, Dr. Nicholas Scurich, does not contradict the discussion above. Dr. Scurich's report (Doc. # 156-8) focused on how often recidivists "crossover" to different types of victims. He reports that 11% of recidivists have both adult and child victims. (Doc. # 156-8, at 8-9.) But Dr. Scurich describes those who, by definition, have more than one victim. "Instead of concluding that 1-in-10 individuals with a history of sexual crime will offend against both adults and children, the studies reviewed by Dr. Scurich actually state that if the individuals were to reoffend sexually , there is a 1-in-10 chance that it would be against a victim in a different age category." (Doc. # 159-3, at 2.) The court focuses on "the risk of sexual recidivism generally" (Doc. # 156-8, at 12), which Dr. Hanson addresses and which Dr. Scurich largely ignores.
In his deposition, Doe 7 mentioned a third relative. The parties later stipulated that, on summary judgment, "Doe 7 shall not base any alleged infringement of his right to intimate association" on his right to live with that third relative. (Doc. # 156-5, at 2-3.)
See, e.g. , Delta Constr. Co. v. E.P.A. ,
Under the Fourth Amendment, police officers "not armed with a warrant" may "approach a home and knock." Florida v. Jardines ,
At best, Doe 7's statement is ambiguous, failing to specify whether he knows that some jobs are within exclusion zones or whether he avoids some jobs out of an abundance of caution. To the extent the latter interpretation is reasonable, it still does not prevent summary judgment. Walker v. Darby ,
Reference
- Full Case Name
- John DOE 1 John Doe 3 John Doe 7 John Doe 9 and John Doe 10 v. Steven T. MARSHALL, Attorney General of the State of Alabama, in his official capacity Charles Ward, Director of the Alabama Department of Public Safety, in his official capacity and Hal Taylor, Secretary of the Alabama Law Enforcement Agency, in his official capacity
- Cited By
- 20 cases
- Status
- Published