McGuire v. Marshall

Citation512 F.Supp.3d 1189
Decision Date07 January 2021
Docket NumberCASE NO. 2:19-CV-174-WKW
Parties Michael A. MCGUIRE, JEB, and KLL, Plaintiffs, v. Steven T. MARSHALL, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. Middle District of Alabama

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

Brad A. Chynoweth, James William Davis, Brenton Merrill Smith, State of Alabama Office of the Attorney General, Montgomery, AL, for Defendants.



For the third time in ten years, the constitutionality of the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA")—the most comprehensive and debilitating sex-offender scheme in the nation—is before the court. ASORCNA applies to adult offenders no matter when or where they were convicted and affects virtually every aspect of registrants’ lives. They may not live or work 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. They may not travel outside of their county of residence for three or more days without notifying law enforcement of their exact plans. 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 through 15-20A-48.

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 interests too.

This case is about whether certain ASORCNA provisions violate the First and Fourteenth Amendments, are unconstitutionally vague, violate the Constitution's ex post facto clause, or are selectively enforced. Plaintiffs are three registered sex offenders covered by ASORCNA. Before the court are Defendantsmotion to dismiss (Doc. # 35) and Plaintiffs’ response (Docs. # 43, 52). For the reasons below, Defendantsmotion to dismiss is due to be granted in part and denied in part.


The court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343. The parties do not dispute personal jurisdiction or venue.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that [the] defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "For purposes of Rule 12(b)(6) review, ... a court generally may not look beyond the pleadings." United States ex rel. Osheroff v. Humana Inc. , 776 F.3d 805, 811 (11th Cir. 2015).

The State challenges the court's subject matter jurisdiction by arguing that KLL lacks standing to challenge many of ASORCNA's provisions. The court also sua sponte questions JEB and McGuire's standing to challenge other ASORCNA provisions. An attack on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be either a facial attack or a factual attack. Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir. 1990) (per curiam). A facial attack simply challenges the sufficiency of the plaintiff's jurisdictional allegations, which are taken as true. Id. at 1529. Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (quoting Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980) ). All questions regarding Plaintiffs’ standing can be resolved on the face of the complaint.


Plaintiffs Michael McGuire, JEB, and KLL bring facial and as-applied claims to ASORCNA in its entirety and to many of its specific provisions. They invoke the protections of the First Amendment, void for vagueness doctrine, the Fourteenth Amendment's Equal Protection Clause, and the Ex Post Facto Clause. Defendants move to dismiss based on 1) standing, 2) res judicata (for JEB and McGuire's claims), 3) the statute of limitations, 4) the court's discretion to decline a declaratory judgment action, and 5) the merits.

A. Statutory Framework

As described in Doe 1 v. Marshall , "the State of Alabama enacted its first sex-offender statute over five decades ago." 367 F. Supp. 3d 1310, 1319 (M.D. Ala. 2019) (citing Ala. Act No. 1967-507) [hereinafter Doe 1 ]. "That law required offenders to submit their name to their county sheriff, and only law enforcement could access that roster." Id. (citing Ala. Act No. 1967-507 §§ 1, 2). Since then, 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) [hereinafter McGuire 1 ]; Doe v. Pryor , 61 F. Supp. 2d 1224, 1226–29 (M.D. Ala. 1999). The current statute, ASORCNA, comprises mostly 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 of a crime in another jurisdiction if that jurisdiction "requires that anyone convicted of that crime register as a sex offender," id. § 15-20A-5(37), and to "[a]ny offender determined in any jurisdiction to be a sex offender," id. § 15-20A-5(38). 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 its other narrow exceptions, offenders are subject to ASORCNA's requirements for life. Id. § 15-20A-3(b).

1. Duty to Register and Reporting Requirements

Offenders must register with law enforcement upon (1) release from incarceration (or at the time of conviction if not incarcerated), or (2) upon entering the state. Id. § 15-20A-10. ASORCNA requires an in-person appearance before local law enforcement of the county in which the sex offender resides, accepts employment or a volunteer position, or attends school. Id. 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 "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 may be reported in-person, online, or over the phone, "as required by the local law enforcement agency." Id.

Law enforcement uses this information to establish a registry, which it makes available to the public. Id. § 15-20A-8. ASORCNA also requires local law enforcement to notify the community of a sex offender's presence by distributing flyers to nearby residents. Id. § 15-20A-21.

2. Residency, Travel, and Employment Restrictions

ASORCNA strictly limits the areas in which sex offenders may live and work. The residency provision proscribes the establishment or maintenance of a residence within 2,000 feet of a school, childcare facility, or resident camp. Id. § 15-20A-11(a). ASORCNA also prohibits sex offenders from establishing or maintaining a residence within 2,000 feet of the property on which a victim's immediate family members reside. Id. § 15-20A-11(b). The 2,000-feet exclusion zone is measured in a straight line from nearest property line to nearest property line. Id. § 15-20A-11(h). Those sex offenders who were released or convicted and established a residence within an exclusion zone prior to ASORCNA's effective date were not required to relocate. See, e.g., id. § 15-20A-11(a) ("No adult sex offender shall ... maintain a residence after release or conviction ... within 2,000 feet of the property ...." (emphasis added)).

In addition to imposing geographical limitations on living arrangements, ASORCNA prevents sex offenders from residing with certain minor children (the "minor-cohabitation rule"). No sex offender may "reside or conduct an overnight visit with a minor." Id. § 15-20A-11(d). The Act defines "overnight visit" as "[a]ny presence between the hours of 10:30 p.m. and 6:00 a.m." Id. § 15-20A-4(14). The minor-cohabitation rule generally does not apply if the sex offender is the parent, grandparent, sibling, stepparent, or stepsibling of the minor. Id. § 15-20A-11(d). Under certain circumstances in which the sex offender's victim was a child, however, even these familial exceptions do not apply. Id. § 15-20A-11(d)(1)(5).

Deciphering the statutory meaning of "residence" is no small feat—it takes four statutory cross-references to pin down the term's definition.1 "Residence" is defined as "[a] fixed residence ... or other place where the person resides, regardless of whether the person declares or characterizes such place as a residence." Id. § 15-20A-4(21). ASORCNA then defines the operative term "reside" as "be[ing] habitually or systematically present at a place," a matter which "shall be determined by the totality of the circumstances." Id. § 15-20A-4(20). In addition to this catch-all, the Act specifies three circumstances under which a person resides at a place:...

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    ... ... the property. The Court takes judicial notice of the ... pleadings, orders, and judgments entered in those cases ... McGuire v. Marshall , 512 F.Supp.3d 1189, 1212-13 ... (M.D. Ala. 2021) (a court may “take judicial notice of ... the pleadings, orders, and ... ...
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    ... ... the property. The Court takes judicial notice of the ... pleadings, orders, and judgments entered in those cases ... McGuire v. Marshall , 512 F.Supp.3d 1189, 1212-13 ... (M.D. Ala. 2021) (a court may “take judicial notice of ... the pleadings, orders, and ... ...
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