823 F.3d 556 (10th Cir. 2016), 15-6106, Shaw v. Patton

Docket Nº:15-6106
Citation:823 F.3d 556
Opinion Judge:BACHARACH, Circuit Judge.
Party Name:JUSTON SHAW, Plaintiff - Appellant v. ROBERT PATTON, in his official capacity as Director of the Oklahoma Department of Corrections, Defendant - Appellee
Attorney:Brady R. Henderson (Ryan Kiesel, with him on the briefs), American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, for Plaintiff-Appellant. Justin P. Grose, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendant-Appellee.
Judge Panel:Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
Case Date:May 18, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

In 1998, Juston Shaw was convicted in Texas state court on a charge of sexual assault. Roughly ten years later, he moved to Oklahoma. When he did, his sexual-assault conviction triggered application of the Oklahoma Sex Offenders Registration Act. Shaw challenged his registration obligation, arguing the Oklahoma Act constituted unconstitutional retroactive punishment. The district court disagreed, ... (see full summary)

 
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Page 556

823 F.3d 556 (10th Cir. 2016)

JUSTON SHAW, Plaintiff - Appellant

v.

ROBERT PATTON, in his official capacity as Director of the Oklahoma Department of Corrections, Defendant - Appellee

No. 15-6106

United States Court of Appeals, Tenth Circuit

May 18, 2016

Page 557

[Copyrighted Material Omitted]

Page 558

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:14-CV-00124-W).

Brady R. Henderson (Ryan Kiesel, with him on the briefs), American Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Justin P. Grose, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.

OPINION

Page 559

BACHARACH, Circuit Judge.

In 1998, Mr. Juston Shaw was convicted in Texas state court on a charge of sexual assault. Roughly ten years later, he moved to Oklahoma. When he did, his sexual-assault conviction triggered application of the Oklahoma Sex Offenders Registration Act. Under this statute, Mr. Shaw incurred an obligation, as long as he lived in Oklahoma, to o regularly report to a local police department in Oklahoma,

o refrain from living within 2,000 feet of a school, playground, park, or child care center, and

o refrain from loitering within 500 feet of a school, playground, park, or child care center.1

Okla. Stat. tit. 57, § § 583(C)(3), 584, 590 (Supp. 2009); Okla. Stat. tit. 21, § 1125(A) (Supp. 2014).

In Mr. Shaw's view, these obligations constitute retroactive punishment in violation of the U.S. Constitution's Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1.2 Thus, Mr. Shaw sued the Director of the Oklahoma Department of Corrections, who is responsible for enforcing the sex-offender regulations.[3] After a bench trial, the district court entered judgment against Mr. Shaw, holding that the statute's retroactive application did not amount to punishment.

On appeal, we ask: Do Mr. Shaw's restrictions on reporting, residency, and loitering constitute retroactive punishment in

Page 560

violation of the Ex Post Facto Clause? We conclude that these restrictions do not constitute punishment. Thus, enforcement of these restrictions does not violate the U.S. Constitution.4

I. The Oklahoma statute was enforced retroactively against Mr. Shaw.

The defendant denies that the Oklahoma statute was enforced retroactively, arguing that the statute was inapplicable to Mr. Shaw until he entered Oklahoma. In our view, however, the statute was enforced retroactively.5

It is true that Mr. Shaw was not subject to the Oklahoma statute until he moved to Oklahoma, but the date of his move does not affect whether the statute is being enforced retroactively. A statute is enforced retroactively if it governs conduct that preceded the statute's enactment. Stogner v. California, 539 U.S. 607, 612-13, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). That is the case here: Mr. Shaw is subject to statutes enacted in 2009 and 2014 for conduct that took place in 1998.

In 1998, when Mr. Shaw was convicted, Oklahoma did not have any residency or loitering restrictions for sex offenders. Oklahoma did require reporting for sex offenders in 1998, but that requirement would already have expired for Mr. Shaw. See Act of May 27, 1997, ch. 260 § 4, 1997 Okla. Sess. Laws 1423-24 (codified as amended at Okla. Stat. tit. 57, § 583(C) (Supp. 1997) (reporting requirement for ten years)); Act of May 20, 2003, ch. 223, 2003 Okla. Sess. Laws 948-49 (codified as amended at Okla. Stat. tit. 57, § 590 (Supp. 2003)6 (enacting residency restrictions)). Thus, Mr. Shaw is subject to restrictions on reporting, residency, and loitering only because Oklahoma changed its laws years after Mr. Shaw's criminal conduct. By definition, these restrictions are being retroactively applied to Mr. Shaw. The resulting issue is whether these restrictions constitute punishment.

II. We consider only the statutory provisions applicable to Mr. Shaw's circumstances.

Mr. Shaw challenges the application of Oklahoma's sex-offender requirements to his circumstances. Thus, we consider only the provisions that affect Mr. Shaw. See Reno v. Flores, 507 U.S. 292, 300, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (explaining that an as-applied challenge is limited to review of how a statute has been " applied in a particular instance" ). Thus, we must determine which of the challenged provisions were applied to Mr. Shaw's circumstances.

Mr. Shaw challenges six statutory provisions applicable to sex offenders. Three of the provisions (reporting, residency, and loitering) affect him. But the other three provisions do not: 1. Sex offenders cannot provide services to children, work on school grounds, or work for a person who

Page 561 contracts for work to be performed on school grounds. Okla. Stat. tit. 57, § 589(A) (Supp. 2009).

2. Sex offenders generally cannot live with another convicted sex offender in a single dwelling (subject to certain exceptions). Okla. Stat. tit. 57, § 590.1(A) (Supp. 2009).

3. Aggravated or habitual sex offenders with an Oklahoma driver's license must have the words " Sex Offender" appear on their driver's licenses, and these offenders must renew their driver's licenses every year. Okla. Stat. tit. 47, § 6-111(D) (Supp. 2009).

First, Mr. Shaw did not present evidence of a restriction on his employment opportunities, for he has not tried to work with children, work at a school, or work for a company that conducts business on school grounds.7

Second, Mr. Shaw did not present evidence that the statute has actually prevented him from living with another convicted sex offender. Mr. Shaw lives with his common-law wife, and he has not presented any information suggesting that his common-law wife is a convicted sex offender.

Third, the driver's license requirements have not been applied to Mr. Shaw because o he has not obtained an Oklahoma driver's license and

o he has not alleged or proven designation as an aggravated or habitual sex offender.8

Because Mr. Shaw's circumstances do not trigger these restrictions, we need not decide whether they constitute punishment.

III. The statutory restrictions on reporting and residency do not constitute punishment of Mr. Shaw.

Mr. Shaw challenges the reporting and residency restrictions based on the U.S. Constitution's Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. Because Mr. Shaw does not allege a punitive intent, we consider only whether the statutory restrictions have a punitive effect. This inquiry is guided by five factors; because each factor weighs against a finding of punitive effect, we conclude that application of the reporting and residency restrictions does not constitute punishment under the Ex Post Facto Clause.

A. We engage in de novo review of the district court's application of the intent-effects test.

To determine whether Oklahoma's sex-offender regulations served to punish Mr. Shaw, we apply the intent-effects test discussed in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Though the district court applied this test, we engage in de novo review. Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008).

Page 562

In engaging in de novo review, we begin with the legislature's stated intent. If the legislature intended to impose punishment, our inquiry ends. Smith, 538 U.S. at 92. But if the legislature expressed an intent to enact a regulatory scheme that is civil or non-punitive, Mr. Shaw must provide the " clearest proof" of a punitive effect. Id.

B. Mr. Shaw does not argue that the legislature's stated interest is punitive.

We ordinarily start with the legislature's stated intent. But Mr. Shaw has not argued that the Oklahoma legislature's stated intent is punitive. See Appellant's Opening Br. at 20 (" In the present case, Mr. Shaw has not attempted to prove that [the Oklahoma statute's] stated legislative intention was punitive, due to ambivalent evidence." ). Thus, we express no view on the Oklahoma legislature's intent in enacting the sex-offender requirements.

C. Mr. Shaw has not provided the " clearest proof" that the Oklahoma statute has a punitive effect.

Instead, we consider whether Mr. Shaw has provided the clearest proof of a punitive effect. For this inquiry, the Supreme Court considered five factors in Smith v. Doe :

1. Do the statutory requirements resemble traditional forms of punishment?

2. Do the statutory requirements impose an affirmative disability or restraint that is considered punitive?

3. Do the statutory requirements promote the traditional aims...

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