Belleau v. Wall

• Citation: 811 F.3d 929
• Decision Date: 29 January 2016
• Docket Number: No. 15–3225.,15–3225.
• Parties: Michael J. BELLEAU, Plaintiff–Appellee, v. Edward F. WALL, et al., Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

811 F.3d 929

Michael J. BELLEAU, Plaintiff–Appellee,

v.Edward F. WALL, et al., Defendants–Appellants.

No. 15–3225.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 2016.

Decided Jan. 29, 2016.

Laurence Jacques Dupuis, Attorney, American Civil Liberty Union of Wisconsin, James A. Walrath, Attorney, Milwaukee, WI, Benjamin Robert Good, Attorney, Nathan Freed Wessler, Attorney, American Civil Liberties Union, New York, NY, for Plaintiff–Appellee.

Anthony D. Russomanno, Attorney, Abigail C.S. Potts, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendant–Appellant.

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

In 1992 the plaintiff, who was then 48 years old, was convicted in a Wisconsin state court of having sexually assaulted a boy repeatedly for five years beginning when the boy was eight years old. (The plaintiff was and is a resident of that state and his crimes occurred there.) Oddly, he was given only a year in jail and probation for these assaults, but before the period of probation expired he was convicted of having in 1988 sexually assaulted a nine-year-old girl. Sentenced to 10 years in prison for that crime, he was paroled after 6 years. But his parole was revoked a year later after he admitted that he had had sexual fantasies about two girls, one four years old and the other five, and that he had "groomed" them for sexual activities and would have molested them had he had an opportunity to do so.

Scheduled to be released from prison in 2005, instead he was civilly committed to the Sand Ridge Secure Treatment Center in 2004 as a "sexually violent person," Wis. Stat. ch. 980, after a civil trial in which he was found to be "dangerous because he ... suffers from a mental disorder that makes it likely that [he] will engage in one or more acts of sexual violence." Wis. Stat. §§ 980.01(7), 980.06 ; see id. §§ 980.01(2), (6). He was released in 2010 on the basis of the opinion of a psychologist that he was no longer more likely than not to commit further sexual assaults. But in 2006 Wisconsin had enacted a law requiring that persons released from civil commitment for sexual offenses wear a GPS monitoring device 24 hours a day for the rest of their lives. Wis. Stat. § 301.48. The statute applied to any sex offender released from civil commitment on or after the first day of 2008 and thus applied (and continues to apply) to the plaintiff. And therefore ever since his release from civil commitment he has been forced to wear an ankle bracelet that contains a GPS monitoring device.

His suit, which is against officials of the Wisconsin Department of Corrections who administer the monitoring statute, claims that the statute violates both the Fourth Amendment to the Constitution and Article I, § 10, cl. 1 of the Constitution, the latter being the prohibition of states' enacting ex post facto laws—laws that either punish people for conduct made criminal only after they engaged in it or increase the punishment above the maximum authorized for their crime when they committed it. (In the district court he also argued that he'd been denied equal protection of the laws, but he's abandoned that argument on appeal.) The district judge held the Wisconsin monitoring statute unconstitutional on both grounds, precipitating this appeal by the defendants (in effect by the state). Although the judge wrote a long opinion, it omits what seem to us the crucial considerations in favor of the constitutionality of Wisconsin's requiring the plaintiff to wear the ankle bracelet for the rest of his life.

Anyone who drives a car is familiar with GPS technology, which enables the driver to determine his geographical location, usually within a few meters. The GPS ankle bracelet (more commonly referred to as an ankle monitor or anklet monitor; we'll use the latter term), shown below, likewise determines the geographical location of the person wearing it, within an error range of no more than 30 meters. The most common use of such monitors is to keep track of persons on probation or parole; the device that Wisconsin uses is advertised specifically for those purposes. But such devices are also used by some parents to keep track of their kids or elderly relatives and by some hikers and mountain climbers to make sure they know where they are at all times or to track their speed.

The type of anklet worn by the plaintiff is waterproof to a depth of fifteen feet, so one can bathe or shower while wearing it. It must however be plugged into a wall outlet for an hour each day (while being worn) in order to recharge it. There are no restrictions on where the person wearing the anklet can travel, as long as he has access to an electrical outlet. Should he move away from Wisconsin, he ceases having to wear it. And while he's supposed to pay a monthly fee to compensate for the cost of the anklet, the plaintiff in this case does not pay it and the Department of Corrections appears not to have tried to compel him to do so.

?

When the ankleted person is wearing trousers the anklet is visible only if he sits down and his trousers hike up several inches and as a result no longer cover it. The plaintiff complains that when this happens in the presence of other people and they spot the anklet, his privacy is invaded, in violation of the Fourth Amendment, because the viewers assume that he is a criminal and decide to shun him. Of course the Fourth Amendment does not mention privacy or create any right of privacy. It requires that searches be reasonable but does not require a warrant or other formality designed to balance investigative need against a desire for privacy; the only reference to warrants is a prohibition of general warrants. And although the Supreme Court has read into the amendment a qualified protection against invasions of privacy, its recent decision in Grady v. North Carolina, ––– U.S. ––––, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015) (per curiam), indicates that electronic monitoring of sex offenders is permitted if reasonable, cf. Samson v. California, 547 U.S. 843, 848–50, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ; Vernonia School District 47J v. Acton, 515 U.S. 646, 652–53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ; Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 618–24, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) —and that standard is satisfied in this case.

Having to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than being in jail or prison, or for that matter civilly committed, which realistically is a form of imprisonment. The plaintiff argues that because he is not on bail, parole, probation, or supervised release, and so is free of the usual restrictions on the freedom of a person accused or convicted of a crime, there is no lawful basis for requiring him to wear the anklet monitor. But this misses two points. The first is the nature of the crimes he committed—sexual molestation of prepubescent children. In other words the plaintiff is a pedophile, which, as the psychologist who evaluated him explained, "predisposes [the plaintiff] to commit sexually violent acts.... [I]t is well understood in my profession that pedophilia in adults cannot be changed, and I concluded that Mr. Belleau had not shown that he could suppress or manage his deviant desire." The compulsive nature of such criminal activity is recognized in Rules 414 and 415 of the Federal Rules of Evidence, which in contrast to the rules governing cases involving other crimes allow evidence of the defendant's other crimes, or acts, of sexual molestation of children to be introduced in evidence in a criminal or civil case in which the defendant is accused of such molestation.

The plaintiff in our case is about to turn 73, however, and he argues that he has "aged out" of pedophilic acts. There is evidence that the arrest rate of pedophiles declines with age, and from this it can be inferred that pedophilic acts probably decline with age as well, though there are no reliable statistics on the acts, as distinct from the arrests for engaging in the acts. There is no reason to think that the acts decline to zero. Most men continue to be sexually active into their 70s, and many remain so in their 80s and even 90s. Stacy Tessler Lindau et al., "A Study of Sexuality and Health among Older Adults in the United States," 357 New England J. Medicine 762–74 (Aug. 23, 2007). And even if not physically capable of the common forms of male sexual activity, older men can still molest and grope young children.

The psychologist who recommended that the plaintiff be released from civil commitment opined that the risk of the plaintiffs being charged or convicted of further sex crimes against young children had been 16 percent when he was released from civil commitment and could be expected to be about 8 percent at the time of the district judge's summary judgment order this past September. It is important to understand however that such estimates, based on personal characteristics, such as age, number of past convictions, and type of victim, pertain only to the odds that the released offender will subsequently be arrested for or convicted of—in short, detected—committing further sex crimes. Gregory DeClue & Denis L. Zavodny, "Forensic Use of the Static–99R: Part 4. Risk Communication," 1 Journal of Threat Assessment & Management 145, 149 (2014). In the words of the psychologist, "actuarial scales ... underestimate the risk an offender will commit an offense over [his] lifetime."

There is serious underreporting of sex crimes, especially sex crimes against children. A nationwide study based on interviews with children and their caretakers found that 70 percent of child sexual assaults reported in the interviews had not been reported to police. David Finkelhor, Heather Hammer, & Andrea J. Sedlak, "Sexually Assaulted Children: National Estimates & Characteristics," Juvenile Justice Bulletin 8 (August...