Cornelio v. Connecticut

• Decision Date: 26 April 2022
• Docket Number: 20-4106-cv,August Term 2021
• Citation: 32 F.4th 160
• Parties: James P. CORNELIO, Plaintiff-Appellant, v. State of CONNECTICUT, Stravros Mellekas, in his official capacity as Commander of the Connecticut Department of Emergency Services and Public Protection (DESPP), Det. Debbie Jeney, John Doe, in his individual capacity, Jane Doe, in her individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

32 F.4th 160

James P. CORNELIO, Plaintiff-Appellant,

v.State of CONNECTICUT, Stravros Mellekas, in his official capacity as Commander of the Connecticut Department of Emergency Services and Public Protection (DESPP), Det. Debbie Jeney, John Doe, in his individual capacity, Jane Doe, in her individual capacity, Defendants-Appellees.^*

No. 20-4106-cv

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: October 7, 2021

Decided: April 26, 2022

James P. Cornelio, pro se, New Preston, CT, for Plaintiff-Appellant.

Robert S. Dearington, Assistant Attorney General (Clare Kindall, Solicitor General, on the brief), for William Tong, Attorney General of the State of Connecticut, Hartford, CT, for Defendants-Appellees.

Before: Jacobs and Menashi, Circuit Judges, and Cronan, District Judge.^†

Menashi, Circuit Judge:

The State of Connecticut, like other states, has a comprehensive sex offender registration law. See Conn. Gen. Stat. § 54-250 et seq. The Department of Emergency Services and Public Protection ("DESPP") and the Sex Offender Registry Unit ("SORU"), a unit of the State Police within the DESPP, administer the law. Two provisions of the sex offender registration law are at issue in this case. The first is a disclosure requirement pursuant to which a registered sex offender must notify the DESPP when he creates a new email address, instant messenger address, or other internet communication identifier. The second is a residence verification provision, which requires that a sex offender verify his residential address every 90 days or on a quarterly basis.

Plaintiff-Appellant James P. Cornelio, a convicted sex offender, filed a pro se federal action in the U.S. District Court for the District of Connecticut against the State of Connecticut, Colonel Stavros Mellekas in his official capacity as commander of the DESPP, and retired Detective Debbie Jeney—a former detective in the SORU—in her individual capacity. Cornelio asserted three claims under 42 U.S.C. § 1983. First, he alleged that the disclosure requirement violates the Speech Clause of the First Amendment, applicable to the states under the Due Process Clause of the Fourteenth Amendment. Second, Cornelio alleged that the residence verification provision violates the Ex Post Facto Clause as applied to him. Third, he alleged that Jeney violated the Fourth Amendment by initiating a malicious prosecution against him when she sought an arrest warrant for Cornelio's alleged failure to disclose one of his email addresses to the SORU.

The district court (Meyer, J.) granted the defendants’ motion to dismiss all three claims. The district court dismissed Cornelio's First Amendment claim for failure to state a claim, holding that although the disclosure requirement burdens protected speech it survives intermediate scrutiny. In so holding, the district court concluded that the disclosure requirement advances important governmental interests and does not burden substantially more speech than necessary to further those interests. The district court dismissed Cornelio's Ex Post Facto Clause claim because the residence verification provision was already in place when Cornelio engaged in the underlying crimes in 2003. Finally, the district court dismissed Cornelio's malicious prosecution claim, holding that Jeney is entitled to qualified immunity. Despite Cornelio's past use of an unregistered email address to communicate with the SORU, the district court explained, Jeney had arguable probable cause to seek the arrest warrant for Cornelio's failure to register that email address.

We reverse the district court's dismissal of Cornelio's First Amendment claim. Assuming intermediate scrutiny is the appropriate standard of review, we conclude that the disclosure requirement plausibly fails intermediate scrutiny and therefore Cornelio has stated a First Amendment claim. We affirm the district court's dismissal of Cornelio's Ex Post Facto Clause claim because the residence verification provision was enacted before Cornelio committed his crimes. We also affirm the district court's dismissal of Cornelio's malicious prosecution claim because Jeney is entitled to qualified immunity. The case is remanded for further proceedings consistent with this opinion.

BACKGROUND

I

The requirements of Connecticut's sex offender registration law apply to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. See Conn. Gen. Stat. §§ 54-251 to -252.

Cornelio was convicted in 2005 in New York State for one count of a criminal sexual act in the second degree, in violation of N.Y. Penal Law § 130.45(1), and for ten counts of possessing a sexual performance by a child, in violation of N.Y. Penal Law § 263.16. The underlying conduct occurred in 2003. Because he is now a resident of Connecticut, Cornelio is subject to Connecticut's sex offender registration law, see Conn. Gen. Stat. § 54-253, and he challenges two provisions of that law.

First, the disclosure requirement mandates that a registered sex offender must provide all of his internet communication identifiers to the DESPP. As part of his initial registration, a registrant must disclose to the Commissioner of the DESPP his "electronic mail address, instant message address or other similar Internet communication identifier" on "such forms and in such locations as the commissioner shall direct." Id. § 54-251(a).¹ The law also imposes a continuing obligation to "notify" the Commissioner of the DESPP "in writing" if the registrant "establishes or changes an electronic mail address, instant message address or other similar Internet communication identifier." Conn. Gen. Stat. § 54-253(b). If a registrant fails to comply with the disclosure requirement he is "guilty of a class D felony" once "such failure continues for five business days." Id. § 54-253(e).

Second, the residence verification provision requires that a registrant verify his residential address every 90 days or on a quarterly basis. Id. § 54-257(c). Under the provision, the DESPP "shall verify the address of each registrant by mailing a nonforwardable verification form" to the registrant's last reported address, and the registrant must return the form by mail within ten days. Id. Failing to return the verification form results in the issuance of an arrest warrant. Id. The residence verification provision was adopted as part of the original enactment of the sex offender registration law in 1998. See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65), § 8(b) (West).

II

This case arises from Cornelio's arrest for his alleged failure to notify the DESPP of his email address. The arrest was executed pursuant to an arrest warrant that issued based on an affidavit submitted by Jeney, who at that time was a detective in the SORU. After recounting Cornelio's sex offense convictions in New York, the affidavit stated that when Cornelio initially registered in March 2008, he was advised of the requirement to notify the SORU "in writing of any electronic mail address, instant messaging address or similar communication identifier that is established, changed, or used" by him. App'x 22. The affidavit further stated that when Cornelio first registered, he provided a single email address.

The affidavit then described how Cornelio emailed the SORU in 2010 and multiple times in 2015 using an email address—ending with "aol.com"—that was different than the one he originally reported. The AOL email address was allegedly not included on the verification form that was sent to Cornelio, and Cornelio's sex offender registry file noted that he "has not reported" the AOL email address. Id. The affidavit concluded that Cornelio's failure to provide a formal notification to the SORU identifying the AOL email address violated the disclosure requirement under § 54-253.

Based on the affidavit, a state court judge issued the arrest warrant. The judge concluded that the affidavit provided probable cause to believe that Cornelio committed an offense that would justify issuance of an arrest warrant. Cornelio was arrested in April 2018. Shortly after the arrest, the case was dismissed.

III

On August 9, 2018, Cornelio filed a pro se action in the U.S. District Court for the District of Connecticut challenging, under 42 U.S.C. § 1983, the disclosure requirement as a violation of the First Amendment, the residence verification provision as a violation of the Ex Post Facto Clause, and Jeney's conduct as a malicious prosecution in violation of the Fourth Amendment. Cornelio sought injunctive relief against the State of Connecticut and Mellekas to prevent the further application to him of the disclosure requirement and the residence verification provision. He sought damages from Jeney based on the malicious prosecution claim. The defendants moved to dismiss Cornelio's complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).

The district court granted the motion to dismiss under Rule 12(b)(6). Cornelio v. Connecticut , No. 19-CV-01240, 2020 WL 7043268, at *1 (D. Conn. Nov. 30, 2020), as amended (Dec. 9, 2020). The district court dismissed Cornelio's First Amendment claim, holding that although the disclosure requirement burdens protected speech it nonetheless survives intermediate scrutiny. Id. at *10. The district court concluded that the disclosure requirement advances important governmental interests unrelated to the suppression of speech and does not burden substantially more speech than necessary to further those interests. Id. The district court dismissed Cornelio's Ex Post Facto Clause claim because the residence verification provision was already in place when Cornelio committed his crimes in 2003. Id. at *6. The district court also dismissed Cornelio's malicious prosecution claim, holding that Jeney was entitled to qualified immunity. Id. at *5. Even though Cornelio had...