Doe v. Marshall

• Decision Date: 11 February 2019
• Docket Number: CASE NO. 2:15-CV-606-WKW
• Citation: 367 F.Supp.3d 1310
• Parties: John DOE 1; John Doe 3; John Doe 7; John Doe 9; and John Doe 10, Plaintiffs, 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, Defendants.
• Court: U.S. District Court — Middle District of Alabama

367 F.Supp.3d 1310

John DOE 1; John Doe 3; John Doe 7; John Doe 9; and John Doe 10, Plaintiffs,

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, Defendants.

CASE NO. 2:15-CV-606-WKW

United States District Court, M.D. Alabama, Northern Division.

Signed February 11, 2019

Joseph Mitchell McGuire, McGuire & Associates LLC, Montgomery, AL, for Plaintiffs.

Brad A. Chynoweth, James Roy Houts, Winfield James Sinclair, State of Alabama Office of the Attorney General, Frank Timothy McCollum, Alabama Department of Public Safety, Montgomery, AL, Joseph Haran Lowe, Jr., Montevallo, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, UNITED STATES DISTRICT JUDGE

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 Ala. Code § 15-20A-1 et seq.

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 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue.

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 , 627 F.3d 816, 820 (11th Cir. 2010).

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 , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This responsibility includes identifying the parts of the record that show there is no genuine dispute of material fact. See Fed. R. Civ. P. 56(c)(1). "A verified complaint may be used in the summary judgment context, but verification must be on personal knowledge alone, not knowledge, information and belief." Horne v. Russell Cty. Comm'n , 379 F.Supp.2d 1305, 1323 (M.D. Ala. 2005) (citing Fowler v. S. Bell Tel. & Tel. Co. , 343 F.2d 150, 154 (5th Cir. 1965) ). A movant who does not bear a trial burden of production may also assert, without citing the record, that the nonmoving party "cannot produce admissible evidence to support" a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the moving party meets its burden, the burden shifts to the nonmoving party to present evidence of a genuine dispute of material fact. See Celotex , 477 U.S. at 324, 106 S.Ct. 2548. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact-finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs. , 276 F.3d 1275, 1279 (11th Cir. 2001).

"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. , 512 F.2d 1017, 1023 (5th Cir. 1975). Still, cross-motions "may be probative of the nonexistence of a factual dispute." Shook v. United States , 713 F.2d 662, 665 (11th Cir. 1983). If both parties proceed on the same legal theories and rely on the same material facts, "the court is signaled that the case is ripe for summary judgment." Id. ; see Ga. State Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs , 775 F.3d 1336, 1345 (11th Cir. 2015).

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, id. § 1, and only law enforcement could access that roster, id. § 2. But over the years, Alabama has repeatedly amended its sex-offender laws to make them broader and more restrictive. See McGuire v. Strange , 83 F.Supp.3d 1231, 1236–40 (M.D. Ala. 2015) ; Doe v. Pryor , 61 F.Supp.2d 1224, 1226–29 (M.D. Ala. 1999). The current statute, ASORCNA, is comprised mostly of legislation from 2011, 2015, and 2017. See Ala. Act No. 2011-640; Ala. Act No. 2015-463; Ala. Act. No. 2017-414.

ASORCNA applies to adults convicted of any of thirty-three "sex offenses." Ala. Code § 15-20A-5. It also applies to anyone convicted in another jurisdiction of a crime that, "if it had been committed in [Alabama] under the current provisions of law, would constitute" a sex offense. Id. § 15-20A-5(35). It applies retroactively, sweeping offenders under its control no matter when they were convicted or their duty to register arose. Id. § 15-20A-3(a). Unless relieved from its requirements because of medical need or through one of the Act's other narrow exceptions,¹ offenders are subject to the Act's requirements for life. Id. § 15-20A-3(b).

1. Reporting Requirements

Offenders must register with law enforcement. Id. § 15-20A-10. When registering, they must provide law enforcement with their home address, the name and address of their employer, their vehicle information, their phone numbers, and more. Id. § 15-20A-7(a)(4)–(8). Offenders must also report information about their internet use: email addresses, instant-message usernames, "designations or monikers used for self-identification in Internet communications or postings," and "any and all Internet service providers used by the sex offender." Id. § 15-20A-7(a)(9), (18). The Act does carve out a small exception: Offenders need not report an internet identifier if it is "used exclusively in connection with a lawful commercial transaction." Id. § 15-20A-7(a)(9). But the Act does not define "lawful commercial transaction" or explain how it differs from other internet use.

Offenders must "immediately" update their registration information whenever it changes. Id. § 15-20A-10. "Immediately" means within three business days. Id. § 15-20A-4(9). Most changes must be reported in-person. Id. § 15-20A-10(e)(1). Changes to phone numbers, online identifiers, and internet service providers may be reported in-person, online, or over the phone, "as required by the local law enforcement agency." Id.

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. Id. § 15-20A-11(a). Nor may they establish or maintain a residence within 2,000 feet of where their victim, or an immediate family member of their victim, resides. Id. § 15-20A-11(b). The exclusion zone is measured "in a straight line from nearest property line to nearest property line." Id. § 15-20A-11(h).

ASORCNA also includes a "minor-cohabitation rule." Under that rule, no offender may "reside or conduct an overnight visit with a minor." Id. § 15-20A-11(d). "Any presence between the hours of 10:30 p.m. and 6:00 a.m." counts as an "overnight visit." Id. § 15-20A-4(14). The minor-cohabitation rule generally does not apply if the offender is the parent, grandparent, sibling, stepparent, or stepsibling of the minor. Id. § 15-20A-11(d). In some cases where the offender's...