Kvech v. State

• Decision Date: 30 November 2013
• Docket Number: No. CIV 12–0267 JB/KBM.,CIV 12–0267 JB/KBM.
• Parties: James KVECH, Plaintiff, v. State of NEW MEXICO DEPARTMENT OF PUBLIC SAFETY, Regina Chacon, and John Does 1–10, Defendants.
• Court: U.S. District Court — District of New Mexico

987 F.Supp.2d 1162

James KVECH, Plaintiff,

v.State of NEW MEXICO DEPARTMENT OF PUBLIC SAFETY, Regina Chacon, and John Does 1–10, Defendants.

No. CIV 12–0267 JB/KBM.

United States District Court,

D. New Mexico.

Nov. 30, 2013.

Paul M. Dominguez, Dominguez Law Firm, Albuquerque, NM, for Plaintiff.

Michael Dickman, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND AMENDED ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion for Summary Judgment (Qualified Immunity), filed September 28, 2012 (Doc. 22)(“MSJ”). The Court held a hearing on May 20, 2013. The primary issues are: (i) whether Defendant Regina Chacon violated Plaintiff James Kvech's rights protected under the Fourteenth Amendment to the Constitution of the United States of America by not removing his name from the New Mexico sex offender registry and sending a letter to Kvech telling him that he needed to continue registering as a sex offender; (ii) whether federal law protecting Kvech's liberty interest and establishing his procedural due-process rights was clearly established at the time of Chacon's actions in 2006 to 2010; and (iii) whether federal statutory immunity protects Chacon. The Court concludes that Chacon's conduct infringed on Kvech's constitutionally protected liberty interest, because her conduct in not removing Kvech's name from the New Mexico sex offender registry amounted to a false, derogatory, and stigmatizing statement that injured Kvech's reputation, and altered his legal status in New Mexico, and that she did not provide Chacon a hearing or opportunity to challenge her conclusion that his Colorado conviction was an equivalent offense under New Mexico law. The Court also concludes, however, that the law at the time was not clearly established; it was not clear that any hearing was necessary to determine that an out-of-state conviction was equivalent to a sex offense, when the person who had been convicted of a sex offense in another state was required to register as a sex offender in that other state. The Court will grant the motion for summary judgment, because Chacon is protected by qualified immunity. Although the qualified immunity issue disposes of the case, the Court notes that, under the statutory immunity analysis, the Court would deny the motion, because there is a disputed question whether Chacon acted in good faith.

FACTUAL BACKGROUND

The affidavits and exhibits demonstrate that the following facts are undisputed. There are factual issues, but they are not material.

The State of New Mexico Department of Public Safety (“the DPS”) ² has employed Chacon since 2000. See Second Affidavit of Regina Chacon ¶ 1, at 1, executed September 26, 2012, filed September 28, 2012 (Doc. 22–1) (“Second Chacon Aff.”); MSJ ¶ 1, at 9 (setting forth this fact); Plaintiff's Response to Defendant's Motion for Summary Judgment at 2–3, filed November 26, 2012 (Doc. 29)(“Response”)(not disputing this fact).³ Since 2007, Chacon has served as the Assistant Bureau Chief of the DPS' Law Enforcement Records Bureau, which is responsible for maintaining the central registry under Section 29–11A–5(c) of the New Mexico Sex Offender Registration and Notification Act, N.M. Stat. Ann. §§ 29–11A–1 to 29–11A–10 (“the New Mexico SORNA”). Second Chacon Aff. ¶ 1, at 1; MSJ ¶ 1, at 9 (setting forth this fact); Response at 3 (not disputing this fact). Chacon is not a law enforcement officer. See First Affidavit of Regina Chacon ¶ 4, at 1, executed March 16, 2012, filed March 20, 2012 (Doc. 5–1)(“First Chacon Aff.”); MSJ ¶ 2 (setting forth this fact); Response at 3 (not disputing this fact).

On October 30, 2006, Kvech pled guilty to misdemeanor Unlawful Sexual Contact, Colo.Rev.Stat. § 18–3–404(1)(a), which says that a person is guilty of unlawful sexual contact if the “actor knows that the victim does not consent”; the statute does not include as an element force or age. Response ¶ 1, at 4 (setting forth this fact). See Reply ¶ 1, at 7 (not disputing this fact). By Judgment of Conviction and Sentence entered on November 6, 2006, Kvech was convicted in the District Court of Arapahoe County, Colorado, of what the judgment described as “Sex Assault 3.” Second Chacon Aff. ¶ 5, at 2. See MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). The Colorado Judgment of Conviction and Sentence states that Kvech pled guilty to “Sex Assault 3—unspecified,” a misdemeanor, contrary to Colo.Rev.Stat. 18–3–404; it does not state any findings of fact regarding the victim's age or if force was used. Judgment of Conviction and Sentence at 1, filed September 28, 2012 (Doc. 22–2 & 29–4)(“Colo. Judgment”). See Response ¶ 3, at 5 (setting forth this fact); Reply ¶ 3, at 7 (not disputing this fact). Colo.Rev.Stat. § 18–3–404(2)(b) defines unlawful sexual contact as a class 4 felony “if the actor compels the victim to submit by use of such force, intimidation, or threat”; Kvech was not, however, convicted of the class 4 felony that would have required force as an element to the crime. See Colo. Judgment at 1; Response ¶ 4, at 5 (setting forth this fact); Reply ¶ 4 (not disputing this fact). The Colorado court sentenced Kvech to 198 days of time served and two years of probation. See Second Chacon Aff. ¶ 5, at 2; MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). As an express part of the Colo. Judgment, the Colorado District Court imposed conditions of release on Kvech, including that he must not have contact with “children under the age of 18 unless authorized by Probation”; that he must “register as a sex offender” in Colorado within five days after entry of judgment; that he was allowed to transfer his probation supervision to New Mexico from Colorado; and that, if he moved to New Mexico, he must, if required by local law, register as a sex offender in New Mexico. Second Chacon Aff. ¶ 6, at 2. See MSJ ¶ 4, at 9 (setting forth this fact); Response at 3 (not disputing this fact). Pursuant to Kvech's Colorado conviction, Colorado law required him to register as a sex offender once a year for ten years; he could then petition the court to release him from his registration requirement. See Facsimile Transmission from Karen l/n/u at the Arapahoe County Sheriff's Office to Teresa Hernandez, Sex Offender Coordinator in New Mexico at 1–2, sent September 17, 2010, filed November 26, 2012 (Doc. 29–3); Response ¶ 2, at 5 (setting forth this fact); Reply ¶ 2, at 7 (not disputing this fact).

Kvech's written condition of probation, which Kvech and his Colorado probation officer signed, included requirements that Kvech must register as a sex offender; that he was not allowed to leave the State of Colorado without his probation officer's written permission; and that, if he received permission to move, he must re-register as a sex offender within five business days following his move. See Second Chacon Aff. ¶ 7, at 2; Conditions of Probation, filed September 28, 2012 (Doc. 22–2 at 2)(“Conditions”); MSJ ¶ 5, at 10 (setting forth these facts); Response ¶ 5, at 3 (not disputing these facts).⁴ Kvech was not subject to Colorado's Sex Offender Intensive Supervision Probation. See Conditions at 3; Response ¶ 5, at 3 (setting forth this fact); Reply at 5–6 (not disputing this fact). Pursuant to the Colorado court's order, Kvech registered as a sex offender with the State of Colorado Department of Public Safety, and the Colorado the DPS submitted the information to the national sex offender registry that the Federal Bureau of Investigation and the United States Department of Justice administers. See Second Chacon Aff. ¶ 8, at 3–4; MSJ ¶ 6, at 10 (setting forth this fact); ⁵ Response at 3 (not disputing this fact).

The Colorado Department of Probation gave Kvech permission to move to Rio Rancho, Sandoval County, New Mexico. See Second Chacon Aff. ¶ 9, at 3; MSJ ¶ 7, at 10 (setting forth this fact); ⁶ Response at 3 (not disputing this fact). On November 15, 2006, Kvech's probation officer in Colorado sent by facsimile transmission Kvech's sentencing information to Deputy Jessica Mascereñas of the Sandoval County Sheriff's Office, to inform her that Kvech was moving to Sandoval County, New Mexico, and was required to register as a sex offender in Colorado; was allowed to transfer his probation supervision to New Mexico; and that he was required to register as a sex offender in his community of residence in New Mexico if that community so required. See Second Chacon Aff. ¶ 10, at 3; Facsimile Transmission from Patrick B. Duran, Probation of Colorado, to Jessica Mascereñas, New Mexico Sheriff's Office, sent November 15, 2006, filed September 28, 2012 (Doc. 22–2 at 5)(“Duran Fax”); MSJ ¶ 8, at 10–11 (setting forth these facts); Response ¶ 8, at 3 (not disputing these facts). The documents that Kvech's probation officer sent to Mascereñas indicated that the charge of “Sex Assault–Overcome Victim's Will” was dismissed. Duran Fax at 6. See Response ¶ 8, at 3 (setting forth this fact); Reply at 5–6 (not disputing this fact).

Kvech registered with the Sandoval County Sheriff's Office as a sex offender on November 16, 2006, ten days after the entry of the Colo. Judgment. See Second Chacon Aff. ¶ 14, at 5; Sandoval County Sheriff's Office Sex Offender Registration 90 Days Verification at 1, signed February 15, 2007, filed September 28, 2012 (Doc. 22–2 at 11)(“Feb. 15, 2007 Verification”); MSJ ¶ 12, at 12 (setting forth this fact); Response at 4 (not disputing this fact). Masereñas registered Kvech and processed the paperwork according to N.M. Stat. Ann. § 29–11A–4(B), including Kvech's legal name and any other names used, date of birth, social security number, current address, place of employment, a complete set of fingerprints, a DNA sample, Kvech's photograph, and identifying physical information. See Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 12–13 (setting forth these facts); Response at 4 (not disputing ...