Corbin v. Chitwood

• Decision Date: 17 May 2001
• Docket Number: No. CIV. 01-93-P-H.,CIV. 01-93-P-H.
• Citation: 145 F.Supp.2d 92
• Parties: John Davies CORBIN, Plaintiff v. Michael CHITWOOD, et al., Defendants
• Court: U.S. District Court — District of Maine

Page 92

145 F.Supp.2d 92

John Davies CORBIN, Plaintiff v. Michael CHITWOOD, et al., Defendants

No. CIV. 01-93-P-H.

United States District Court, D. Maine.

May 17, 2001.

Michael J. Waxman, John Davies Corbin, Pro Se, Portland, ME, for Plaintiff.

Edward R. Benjamin, Jr., Thompson & Bowie, Portland, ME, for Defendants.

MEMORANDUM DECISION AND ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

HORNBY, Chief Judge.

This case pits privacy and other individual rights against a community's interest in knowing that a convicted sexual offender against children is in its midst. I conclude that the police notification to the community of the sexual offender's presence violated no constitutional rights.

I. FACTS

The plaintiff, John Davies Corbin, is a convicted sex offender now living in Maine. Compl. ¶ 6. In 1986, he pleaded guilty in California to two counts of nonviolent lewd and lascivious acts with minors under the age of fourteen and one count of indecent exposure. Id.; Aff. of Det. Scott B. Dunham ¶ 5. (According to Corbin, he pleaded guilty to exposing his private parts while minors were in his apartment and to touching the minors while they were clothed. Compl. ¶ 6.) As a result of the conviction. Corbin was required to register as a sex offender while residing in California. Corbin Aff. ¶ 12; Dunham Aff. ¶ 4. The California Violent Crime Information Center ("VCIC") and the FBI's National Crime Information Center ("NCIC") maintain information concerning Corbin and his convictions. Compl. ¶¶ 8-10; Dunham Aff. ¶¶ 4-5; Aff. of Portland Police Chief Michael J. Chitwood ¶¶ 1-2.

On July 8, 1999, the Social Services Director at the Portland YMCA filed a report alleging that on May 6, 1999, Corbin engaged in inappropriate sexual gestures and remarks in the public shower in the presence of three minor boys. Dunham Aff. ¶ 2, Ex. A. (According to Corbin, he did not make inappropriate sexual gestures. As for any remarks, he says the young boys were not offended. Corbin Aff. ¶¶ 5-6.) An arrest warrant was issued, charging the plaintiff with disorderly conduct for the incident. Corbin Aff. ¶ 6; Dunham Aff. ¶ 3; Chitwood Aff. ¶ 3. On December 12, 2000, a criminal complaint for sexual aggression toward a child was filed against Corbin for the YMCA incident. Corbin Aff. ¶ 7; Chitwood Aff. ¶ 4, Ex. B. This charge and the disorderly conduct charge are currently pending in the Maine state courts. Corbin Aff. ¶ 7; Aff. of Attorney Peter Rodway (Corbin's defense lawyer in the state court proceedings) ¶¶ 2-4.

As a result of the arrest warrant for disorderly conduct, two Portland police officers located Corbin at his Maine residence, 263 Cumberland Avenue in Portland. Dunham Aff. ¶ 6; Chitwood Aff. ¶ 4. This residence is in close proximity to the Portland Boys and Girls Club and Portland High School. Corbin Aff. ¶ 16; Dunham Aff. ¶ 8; Chitwood Aff. ¶ 5. The officers spoke with Corbin and informed him of the outstanding warrant. Dunham Aff. ¶ 6; Chitwood Aff. ¶ 4. They stepped into his apartment while Corbin put on his shoes and prepared to go with them. Dunham Aff. ¶ 6; Chitwood Aff. ¶ 4. While the officers were inside the apartment, they observed on Corbin's computer screen an image of two boys (the age of the pictured boys is disputed; Corbin states they were clearly fourteen, Corbin Aff. ¶ 8; the officers say six or seven, Dunham Aff. ¶ 6) pulling down their underwear to expose their backsides. Dunham Aff. ¶ 6. The officers thereafter obtained a search warrant from a justice of the peace to search for sexually explicit materials, including photographs and computer images. Rodway Aff. ¶ 5; Dunham Aff. ¶¶ 6-7; Chitwood Aff. ¶ 4.

Police officers executed the search warrant and seized Corbin's computer, some floppy disks, a camera and undeveloped film. Dunham Aff. ¶ 7. On this record. I cannot determine what the materials contained, Corbin denies there was any "kiddie porn." Corbin Aff. ¶ 9. The police say only that a "review of images stored on the computer showed images of young boys, some in positions and/or acts best described as `sexually explicit.'" Dunham Aff. § 7. Corbin has now been charged in state court with possessing sexually explicit materials. Corbin Aff. ¶ 11; Dunham Aff. ¶ 7; Chitwood Aff. ¶ 4.

Detective Dunham contacted Cathy Okubo, a criminal intelligence specialist with the State of California's Department of Justice. Dunham Aff. ¶ 4. Okubo provided the Portland Police Department with a copy of Corbin's registry file kept by the VCIC. Dunham Aff. ¶ 4, Ex. B. Okubo stated that Corbin was not in violation of the California sex registration law; that California recognizes Corbin as a mentally disordered sex offender; and that the Sexual Habitual Offender Program ("SHOP") has identified Corbin as "high risk." Dunham Aff., Ex. B. Corbin's records from VCIC state that he is a serious sex offender for the purposes of Megan's Law (a sexual offender registry and community notification law prompted by the rape and murder of seven-year-old Megan Kanka by a convicted sex offender). Id. The records describe Corbin's offenses of conviction as "crimes against children/lewd or lascivious," "commitment (90 days) as a mentally disordered sex offender (MDSO)," "oral copulation" and "indecent exposure." Id. The records also contains detailed descriptions of the offenses. Id.

Based on this information and the pending criminal charges against Corbin, the Portland Police Department determined that Corbin's activities constituted a public safety problem. Compl. ¶¶ 13-14; Dunham Aff. ¶ 9; Chitwood Aff. ¶ 6. On November 29, 2000, in the area of Corbin's Cumberland Avenue residence, they distributed a Neighborhood Policing Bulletin, identifying Corbin and including a photograph. Compl. ¶¶ 13-14; Dunham Aff. ¶ 9, Ex. D; Chitwood Aff. ¶ 6. The Bulletin revealed Corbin's date of birth, height, weight, physical description and home address. Dunham Aff., Ex. D. It stated that:

John Corbin has been convicted of various child sexual crimes in California starting in 1980, which include Child Sexual Misconduct, Indecent Exposure and Oral Copulation. Corbin registered as a sex offender with the State of California in 1995. The State of California recognizes Corbin as a sex offender. The California Sexual Habitual Offender Program (SHOP) has identified Corbin as a "High Risk." Corbin's victims have been young males. Corbin is not to have contact with anyone under 17 years of age.

Dunham Aff., Ex. D (emphasis in original). Local news media covered the notification, and Chief Chitwood responded to questions concerning Corbin and why he was considered a public safety risk. Corbin Decl. ¶ 3; Compl. ¶¶ 3, 16-17; Chitwood Aff. ¶ 6.

Corbin disputes much of the information contained in the Neighborhood Policing Bulletin and the information in the VCIC. He states that he never used drugs or threats of force to coerce sexual contact with boys. Corbin Aff. ¶ 1. He claims that he did not perform oral copulation. Id. ¶ 2. He also denies that he is currently classified by California as a MDSO. Id. ¶ 14. He also claims that the California state courts invalidated a number of his sex offense convictions. Id. ¶¶ 4, 14, 15.

II. PROCEDURAL POSTURE

Corbin seeks a temporary restraining order¹ to prevent the defendants, the Chief of the Portland Police Department, the City of Portland and unnamed police officers and employees of the City, from any further community notification of his prior criminal record and home address. Corbin wants to prevent the defendants from repeating the November 29, 2000 publicity event at any new residence he establishes. Corbin claims that: (1) the defendants' distribution of a flyer containing his address and arrest record violates his constitutional right to privacy; (2) the community notification subjects him to an unconstitutional ex post facto law; and (3) the defendants violate his substantive and procedural due process rights in not giving him notice and a hearing concerning the public notification before it occurs.²

III. ANALYSIS

In considering an application for a temporary restraining order or preliminary injunctive relief, this court must weigh the (1) the likelihood of success on the merits; (2) the potential for irreparable harm to the person seeking relief; (3) the balance of the hardship if relief is denied versus the other party's hardship if relief is granted; and (4) the effect of the decision on the public interest. Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 673 (1st Cir.1998); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 15 (1st Cir.1996); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop, 839 F.Supp. 68, 70 (D.Me.1993). Likelihood of success on the merits is the most important factor in the analysis, see Philip Morris, 159 F.3d at 674; Ross-Simons, 102 F.3d at 16. Because I conclude that Corbin has no likelihood of success on the merits, his motion is DENIED.

A. The Constitutional Right to Privacy

Corbin argues that the defendants violated his constitutional right to privacy by distributing information about him on a flyer. Specifically, Corbin argues that the defendants violated his privacy rights by (1) disclosing his criminal record from California; (2) notifying the community about this information in a sensationalist and inflammatory manner; (3) disclosing false and inaccurate material in the flyer; and (4) disclosing his home address.

(1) Disclosure Alone

Based on the current record, I conclude that the Portland Police Department was entitled to view Corbin's criminal history information. Both the FBI's National Crime Information Center ("NCIC") and the California Violent Crime Information Center ("VCIC") permit disclosure of an individual's criminal record to law enforcement agencies. See 28 U.S.C.A. § 534(a)(4) (West 1993) ("The Attorney General shall — (4) exchange such records and information with, and for the official use of, the authorized officials of the Federal...