Litmon v. Harris

• Decision Date: 14 October 2014
• Docket Number: No. 12–15261.,12–15261.
• Citation: 768 F.3d 1237
• Parties: David LITMON, Jr., Plaintiff–Appellant, v. Kamala D. HARRIS, Attorney General, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

768 F.3d 1237

David LITMON, Jr., Plaintiff–Appellant,

v.Kamala D. HARRIS, Attorney General, Defendant–Appellee.

No. 12–15261.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 12, 2014.

Filed Oct. 14, 2014.

Skye D.Y. Langs (argued), Craig E. Stewart, pro bono appointment, Jones Day, Palo Alto, CA, for Plaintiff–Appellant.

Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Nelson R. Richards (argued), Deputy Attorney General, San Francisco, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of California, Edward M. Chen, District Judge, Presiding. D.C. No. 3:10–cv–03894–EMC.

Before: ALEX KOZINSKI, Chief Judge, BARRY G. SILVERMAN and RICHARD R. CLIFTON, Circuit Judges.

OPINION

KOZINSKI, Chief Judge:

California law requires “every person who has ever been adjudicated a sexually violent predator” to appear before local law enforcement every 90 days for the rest of their lives to verify certain identifying information. SeeCal.Penal Code § 290.012(b). We consider various constitutional challenges to this registration requirement.

I. Background

David Litmon, Jr., admitted to raping four women and severely beating another in the 1970s. Upon his release from prison, he sexually assaulted two underage girls. After serving his second sentence, he was adjudicated a “sexually violent predator” pursuant to California Welfare and Institutions Code § 6600(a)(1), and committed for treatment in 2000. Since his release in 2008, Litmon has been reporting to his local police station every 90 days to fill out a registration form pursuant to California Penal Code § 290.012(b). The section provides in relevant part:

[E]very person who has ever been adjudicated a sexually violent predator, as defined in Section 6600 of the Welfare and Institutions Code, shall, after his or her release from custody, verify his or her address no less than once every 90 days and place of employment, including the name and address of the employer, in a manner established by the Department of Justice.

A sexually violent predator is “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” Cal. Welf. & Inst.Code § 6600(a)(1). The California Department of Justice requires all sex offenders to fill out a form entitled “Sex Registration / Change of Address / Annual or Other Update.” The form lists as a “registration requirement” that registration be completed in person and provides blanks for information such as physical characteristics, vehicle identification and work and home addresses. Those adjudicated as sexually violent predators must fill out this form in person every 90 days.

In 2010, Litmon, pro se, sought injunctive relief from the registration requirement under 42 U.S.C. § 1983. His original complaint against the Attorney General of California alleged that the registration requirement violated the Double Jeopardy Clause and due process. The district court initially dismissed this complaint with prejudice for failure to state a claim, but then reconsidered its judgment and granted Litmon leave to amend “only to the extent [he] seeks leave to assert a cause of action for violation of the Fourteen[th] Amendment Equal Protection clause.” Litmon's first amended complaint realleged his due process claim and added an equal protection claim. The district court struck the due process claim because it had already been dismissed, and granted Litmon leave to replead only the equal protection claim in order to “explain the basis on which other persons received preferential treatment.” Litmon's second amended complaint, which alleges a single equal protection claim on the basis that two other classes of offenders received more favorable treatment, was dismissed with prejudice. Litmon appeals.

II. Discussion

We review the dismissal of Litmon's section 1983 claims de novo. See Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir.2011). We construe pro se complaints liberally, especially in civil rights cases. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010). “However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992) (internal quotation marks and brackets omitted).

A. Substantive Due Process Claims

The district court properly dismissed Litmon's claim that the registration requirement violates the fundamental right to be free from physical restraint by requiring sexually violent predators to appear in person every 90 days to register. In United States v. Juvenile Male, 670 F.3d 999 (9th Cir.2012), we held that a similar in-person, 90–day registration requirement for certain juvenile sex offenders didn't implicate any fundamental rights protected by substantive due process. See id. at 1012 (“None of the [ ] [fundamental] rights [identified by the Supreme Court] are, or could be, asserted by defendants in this case. Nor do any of defendants' rights that are potentially at stake appear to be so rooted in the traditions and conscience of our people as to be ranked as fundamental....”) (internal quotation marks omitted). And in Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.2004) (per curiam), we held that “persons who have been convicted of serious sex offenses do not have a fundamental right to be free from the registration and notification requirements set forth in” an Alaska statute requiring those convicted of multiple aggravated sex offenses to register every 90 days, though not in person.

That the registration period in Juvenile Male may be reduced from life to 25 years in limited circumstances, see670 F.3d at 1005, is not a material distinction. Litmon cannot cite any authorities suggesting that the registration requirement implicates the fundamental right to be free from restraint and relies on inapposite cases in the habeas context. Even if we could analogize to habeas cases, we held in Henry v. Lungren, 164 F.3d 1240 (9th Cir.1999), that “[r]egistration, even if it must be done in person at the police station, does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner ‘in custody’ for the purposes of federal habeas corpus relief.” Id. at 1242.

Absent a fundamental right, strict scrutiny is inapplicable. We therefore apply rational basis review and conclude that the in-person registration requirement survives. The California legislature found that “[s]ex offenders pose a potentially high risk of committing further sex offenses after release from incarceration or commitment,” seeCal.Penal Code § 290.03(a)(1), and determined that the statutory scheme for “risk assessment, supervision, monitoring and containment for registered sex offenders residing in California communities is necessary to enhance public safety and reduce the risk of recidivism posed by these offenders,” see id. § 290.03(a). It is not irrational for the California legislature to conclude that requiring those who have been convicted of sexually violent offenses to register in person every 90 days may deter recidivism and promote public safety. See Juvenile Male, 670 F.3d at 1009 (“We have held that protecting our communities is a legitimate legislative purpose.”).

Litmon further alleges in his original complaint that his “liberty and freedom of movement have been so restricted and infringed upon that [he] has been unable to obtain employment as a truck driver, since such employment could likely cause him to miss the 90–day appearance at the police station.” He argues that this violates his “fundamental right to work.” But “[t]he [Supreme] Court has never held that the ‘right’ to pursue a profession is a fundamental right, such that any state-sponsored barriers to entry would be subject to strict scrutiny.” See Dittman v. California, 191 F.3d 1020, 1031 n. 5 (9th Cir.1999). “[A] restriction on the conduct of a profession will run afoul of substantive due process rights only if it is irrational.” In re Crawford, 194 F.3d 954, 961 (9th Cir.1999). We've already concluded that the registration requirement is rational. See pp. 1241–42, supra.

At oral argument before the panel, Litmon mentioned that local police have been harassing sex offenders during the registration process, causing him to spend upwards of six hours at the police station. Nothing in the district court's order dismissing Litmon's due process claims against the Attorney General precludes Litmon from raising an as-applied substantive due process claim against local law enforcement based on allegations of police misconduct.

B. Ex Post Facto Claim

The district court properly dismissed Litmon's claim that “the cumulative burden of the [registration] requirement ... makes it an unconstitutionally retroactive punishment.” In his original complaint, Litmon alleged a violation of the Double Jeopardy Clause, and only on appeal did he recharacterize the claim as alleging a violation of the Ex Post Facto Clause. The Attorney General does not object to this change, and nor do we, as the inquiry into whether a law constitutes retroactive punishment in violation of the Double Jeopardy Clause is identical to that with respect to the Ex Post Facto Clause. See Smith v. Doe I, 538 U.S. 84, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

The Supreme Court's decision in Smith v. Doe I, supra, is instructive. There, the Court held that an Alaska statute requiring those convicted of aggravated sex offenses to...