John Doe v. Settle

• Decision Date: 28 January 2022
• Docket Number: No. 20-1951,20-1951
• Parties: John DOE, Plaintiff - Appellant, v. Colonel Gary T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

24 F.4th 932

John DOE, Plaintiff - Appellant,

v.Colonel Gary T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police, Defendant - Appellee.

No. 20-1951

United States Court of Appeals, Fourth Circuit.

Argued: September 23, 2021

Decided: January 28, 2022

ARGUED: Kenton Craig Welkener, Jr., BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Timothy P. Bosson, BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Mark R. Herring, Attorney General, Michael A. Jagels, Acting Deputy Attorney General, Holli Reeves Wood, Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitors General, Jessica Merry Samuels, Assistant Solicitor General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.

RICHARDSON, Circuit Judge:

Two months after he turned 18, John Doe was caught having sex with his 14-year-old girlfriend. Given the facts of his arrest, Doe may well have been charged with "carnal knowledge of a child," a Class 4 felony that prohibits sex with 13- and 14-year-old children. But instead he was charged with and pleaded to a lower-class felony, "taking indecent liberties with children," which only prohibits behavior like propositioning a child for sex. Doe's plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia's sex-offender registry. Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule. When an offender is less than 5 years older than his victim, he may be removed from the registry in time. But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties. So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry. Because of that oddity, Doe will spend the rest of his life on Virginia's sex-offender registry with no hope for relief.

Doe—now in his 30s—sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens. Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles. In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe's actual charge. In his Eighth Amendment claim, Doe asks us whether a lifelong registration requirement is an appropriate sanction for a single nonviolent crime committed by a high-school student.

Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry. That is not our place. When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document. And Virginia's sex-offender registry complies with the Eighth and Fourteenth Amendments. So we affirm the district court's dismissal.

I. Background

A. Facts

When John Doe was 17 years old, he began dating a girl at his high school. She was 14. Months later, the two were caught having sex in a parked car behind the local middle school. But by then, Doe was 18 years old—18 years and 2 months, to be exact—and the girl was still 14—98 days from her 15th birthday. That is criminal under Virginia law, so Doe was arrested. Doe could have been prosecuted for a violation of "carnal knowledge of a child between thirteen and fifteen," a Class 4 felony under Va. Code § 18.2-63 with a minimum sentence of 2 years. But he was allowed to plead to "[t]aking indecent liberties with children," a lesser Class 5 felony under Va. Code § 18.2-370(A) with a minimum sentence of only 1 year.

According to Doe, his attorney advised him to plead guilty to the charge, and Doe did so in 2008. He was sentenced to 3 years in prison but only served 4 months; the rest of the sentence was suspended. Doe alleges that no one mentioned the sex-offender registry to him before his plea. So only later did Doe realize he would have to register as a sex offender for the rest of his life.

B. Virginia's Sex-Offender Registry

To assist law enforcement and to help communities protect themselves from repeat sex offenders, Virginia created a sex-offender registry. See Va. Code § 9.1-900. The Sex Offender and Crimes Against Minors Registry separates offenders into three tiers based on the seriousness of their offenses, with Tier III status being reserved for the worst crimes, including rape and murder. § 9.1-902.¹

The registry requires extensive information from all offenders: photographs, fingerprints, DNA samples, home address, employer information, vehicle information, and internet usage information like email addresses and other online identities. § 9.1-903. Virginia State Police are then charged with publishing much of that information on the internet: name and address, employment, a photograph, and "such other information as the State Police may from time to time determine is necessary to preserve public safety." § 9.1-913. And this is not a one-time deal; offenders must continually verify and reverify that information. Tier III offenders like Doe must verify their information every three months to start, with the chance of less frequent reporting over time. § 9.1-904. If an offender fails to verify his information on time, he can be charged with a felony and then required to verify his information even more often. §§ 9.1-904, 18.2-472.1.²

And those are only the periodic requirements: Certain other changes to a registered sex-offender's personal information demand almost immediate notification to the authorities. See §§ 9.1-903(D)–(F) (requiring notification 3 days after a changed name, residence, employment, or vehicle registration), 9.1-903(G) (requiring notification 30 minutes after a change in email or other internet identification), 9.1-903(D) (requiring notification 10 days after a move to another state). Virginia State Police must physically verify an offender's registration information twice a year and can get a warrant for further investigation when they have probable cause to believe some registration violation has occurred. § 9.1-907(C). In Doe's case, he reports to a sex-offender investigative officer who has been permanently assigned to him and who performs what Doe describes as "random home checks" every 6 months.

Beyond simply providing information, other consequences flow from an offender's status on the registry. Tier III offenders cannot enter a school during school hours without court-ordered permission. § 18.2-370.5. And offenders on the registry are not eligible for certain commercial driver's licenses, cannot drive a tow-truck, and cannot work as rideshare drivers for companies like Uber or Lyft. §§ 46.2-116, 46.2-341.9, 46.2-2099.49.

Not every negative consequence of having committed a sex crime is a part of the registry though. Take § 18.2-370.2, which prohibits a sex offender from loitering within 100 feet of any place that they know or have reason to know is a school, daycare, playground, athletic facility, or gym. That criminal statute does not refer to the registry or its tiers. Rather, it restricts such loitering "as part of [an offender's] sentence." Id. And because this restriction is imposed as a part of the sentence and not as a part of the registry, it presumably still applies to sex offenders who eventually get off the registry. For example, kidnapping under § 18.2-47(A) is a Tier I offense that would allow a perpetrator to get off the registry in 15 years, but which also triggers the lifelong no-loitering restriction. §§ 18.2-370.2, 9.1-902. Other restrictions on sex offenders are similarly tied to the conviction and not the registry. See § 63.2-1205.1 (forbidding those who have "been convicted of an offense requiring registration" under Chapter 9 from adopting); § 18.2-370.4 (prohibiting certain people from working or volunteering at schools based on their sex offenses, without reference to the registry); § 22.1-296.1 (requiring applicants for public teaching positions to certify that they have not committed certain sexual offenses and punishing false statements). Even with these clarifications, the registry is a serious imposition.

For some, there is a chance to get off the registry in time. After 15 years, most Tier I offenders can petition a court to be removed from the registry. § 9.1-910(A). The offender must have completed all court-ordered counseling and treatment and paid restitution to his victims. § 9.1-910(B). "If, after such hearing, the court is satisfied that such person no longer poses a risk to public safety, the court shall grant the petition." Id. Tier II offenders must wait 25 years to petition for removal. § 9.1-910(A). But for everyone else—Tier III offenders like Doe, repeat offenders, and murderers—the registry is for life with no exception. See §§ 9.1-908, 9.1-910. The best Doe can hope for is to have his reverification duty limited to once a year. § 9.1-909.

As we have said, the offense determines an offender's tier on the registry, and two offenses are relevant here: "[c]arnal knowledge of a child between the ages of thirteen and fifteen years of age" under § 18.2-63(A) and "[t]aking indecent liberties with children" under §...