McGuire v. Strange

• Decision Date: 05 February 2015
• Docket Number: Case No. 2:11–CV–1027–WKW.
• Citation: 83 F.Supp.3d 1231
• Parties: Michael A. McGUIRE, Plaintiff, v. Luther STRANGE in his official capacity, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

83 F.Supp.3d 1231

Michael A. McGUIRE, Plaintiff

v.Luther STRANGE in his official capacity, et al., Defendants.

Case No. 2:11–CV–1027–WKW.

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

Signed Feb. 5, 2015.

Joseph Mitchell McGuire, McGuire & Associates LLC, Montgomery, AL, Phil Telfeyan, Equal Justice Under Law, Washington, DC, Elizabeth Peyton Faulk, The Law Offices of E. Peyton Faulk, LLC, Montgomery, AL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, Chief Judge.

I. INTRODUCTION

Michael A. McGuire was born in Montgomery, Alabama, where he graduated from high school in 1971. Eventually, he left the community for many years. In 2010, at the age of 57, he and his wife returned to his hometown to be with his aging mother and other family in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation of the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”). Ala.Code § 15–20A–1 et seq.

Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and otherwise assaulted his 30–year–old girlfriend of five years. In May 1986, he was convicted of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison and a fourth year on parole, successfully completing his prison sentence. He then had a multi-decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother's words, “a free American.” (Trial Tr. I, at 14.)

After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama's sex-offender laws, hoping to confirm his belief that he would not be subject to the state's restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriff's Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.

The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

II. JURISDICTION AND VENUE

Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue.

III. PROCEDURAL HISTORY

Mr. McGuire filed his complaint challenging ASORCNA on December 2, 2011. Over the course of litigation, Mr. McGuire amended his complaint four times. In its final iteration, Mr. McGuire's Third Amended Complaint brought claims under federal law (Counts I–VII) and state law (Counts VIII–IX). It alleged liability under 42 U.S.C. § 1983 for an assortment of federal constitutional violations, including deprivations of due process and liberty, violations of equal protection, the application of ex post facto laws, and illegal seizure, and under state law for claims that included, among others, false imprisonment, false arrest, and negligence.¹

Motions to dismiss the Third Amended Complaint were filed by all Defendants as to each of Mr. McGuire's claims. After a thorough period of briefing, the court reviewed each of Mr. McGuire's twelve causes of action as to each of the six remaining Defendants. On March 29, 2013, 2013 WL 1336882, a Memorandum Opinion and Order was issued, granting in part and denying in part Defendants' motions to dismiss, ultimately leaving only Mr. McGuire's ex post facto challenge to proceed. The six remaining Defendants are the City of Montgomery, Montgomery Police Chief Ernest Finley in his official capacity, Montgomery Mayor Todd Strange in his official capacity, Montgomery County Sheriff Derrick Cunningham in his official capacity, Acting Director of the Alabama Department of Public Safety John Richardson in his official capacity, and Alabama Attorney General Luther Strange in his official capacity.²

On March 31, 2014, through April 3, 2014, a four-day bench trial was held on Mr. McGuire's ex post facto challenge to ASORCNA. At the close of trial, all parties were ordered to submit additional briefing on certain topics. After considering the briefs filed in connection with pretrial motions, the post-trial briefs, and the arguments and evidence presented at trial, the court finds that judgment is due to be entered in favor of Mr. McGuire on his challenge to ASORCNA's provisions requiring dual weekly registration for in-town homeless registrants and dual travel permit applications for all in-town registrants, and in favor of Defendants on the remaining ex post facto claims.

IV. FINDINGS OF FACT

A. ASORCNA

On July 1, 2011, ASORCNA became effective and repealed all prior iterations of Alabama's sex offender registration and notification laws. 2011 Ala. Acts, No. 640. ASORCNA's provisions apply to adult offenders convicted of one of thirty-one offenses defined as a sex offense under Alabama law, as well as those convicted in another jurisdiction of a crime that, “if it had been committed in [Alabama] under the current provisions of law, would constitute” one of the enumerated offenses. Ala.Code § 15–20A–5(33). The entire scheme is retroactive, capturing any enumerated or similar offense regardless of when it was committed.

ASORCNA restricts where a registrant may live and work,³ id. §§ 15–20A–11, –13, requires the distribution of community-notification flyers to those living near a registrant's residence, id. § 15–20A–21, and provides for a “public registry website maintained by the Department of Public Safety.” Id. § 15–20A–8. The website is required to include specific information regarding each registrant. Registrants must “appear in person to verify all required registration information” quarterly. Id. § 15–20A–10(f). The law also requires each registrant to “obtain, and always have in his or her possession, ... a driver's license or identification card bearing a designation that enables law enforcement officers to identify the licensee as a sex offender.” Id. §§ 15–20A–18(a), (d).

Additionally, ASORCNA requires registrants who intend to be away from their county of residence for three or more consecutive days to “report such information in person immediately prior to leaving” and to complete a travel permit form providing “the dates of travel and temporary lodging information.” Id. §§ 15–20A–15(a), (b). The permit form explains the duties of the registrant regarding travel, and registrants must sign the form, acknowledging their duties, or “the travel permit shall be denied.” Id. § 15–20A–15(d). When a registrant obtains a permit, the registrant's local sheriff must “immediately notify local law enforcement” in the registrant's destination. Id. § 15–20A–15(e). Importantly, registrants who reside in municipalities (“in-town registrants”) must obtain travel permits from both the local police and county sheriff. The forms for obtaining travel permits, which were developed by the Alabama Department of Public Safety, are virtually identical for the local police and the sheriff.

ASORCNA's provisions apply for life and without regard to the nature of the offense, the age of the victim, or the passage of time since the underlying sex offense. Id. § 15–20A3. ASORCNA does contain three general relief provisions, none of which is applicable to Mr. McGuire.⁴ A violation of ASORCNA's requirements potentially subjects the offender to one of 115 Class C felonies, 82 of which are applicable to Mr. McGuire.⁵ See, e.g., id. § 1520A–15(h). Class C felonies in Alabama carry a sentence from one to ten years. Id. § 13A5–6.⁶

ASORCNA's registration scheme requires offenders to register in-person four times a year, both with “[t]he sheriff of the county and the chief of police if the location subject to registration is within the corporate limits of any municipality.” Id. §§ 15–20A–4, –10. For homeless offenders who reside within the city limits of any municipality, the registration requirement is enhanced to once a week with both law enforcement jurisdictions (“dual registration”). Id. §§ 15–20A–4(13), –12(b). Thus, in-town homeless offenders must register in-person a minimum of 112 times a year. The county and city forms to be completed by homeless registrants are substantively identical. Montgomery currently has three homeless offenders out of roughly 500 registrants.

Finally, the Legislature delegated rule-promulgating authority for ASORCNA to the Director of the Alabama Department of Public Safety. Id. § 15–20A–44. This accounts for the strong similarity in the ASORCNA forms used by local police departments and county sheriffs.

The Alabama Legislature made the following findings relevant to its intent in enacting the scheme:

(1) Registration and notification laws are a vital concern as the number of sex offenders continues to rise. The increasing numbers coupled with the danger of recidivism place society at risk. Registration and notification laws strive to reduce these dangers by increasing public safety and mandating the release of certain information to the public. This release of information creates better awareness and informs the public of the presence of sex offenders in the community, thereby enabling the public to take action to protect themselves. Registration and notification laws aid in public awareness and not only protect the

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