Vasquez v. Foxx, 17-1061

• Citation: 895 F.3d 515
• Decision Date: 11 July 2018
• Docket Number: No. 17-1061,17-1061
• Parties: Joshua VASQUEZ and Miguel Cardona, Plaintiffs-Appellants, v. Kimberly M. FOXX, in her official capacity as the State’s Attorney of Cook County, and City of Chicago, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

895 F.3d 515

Joshua VASQUEZ and Miguel Cardona, Plaintiffs-Appellants,

v.Kimberly M. FOXX, in her official capacity as the State’s Attorney of Cook County, and City of Chicago, Defendants-Appellees.

No. 17-1061

United States Court of Appeals, Seventh Circuit.

Argued November 28, 2017

Decided July 11, 2018

Rehearing and Rehearing En Banc^* Denied August 14, 2018

Adele D. Nicholas, Attorney, Law Office of Adele D. Nicholas, Mark G. Weinberg, Attorney, Law Office of Mark G. Weinberg, Chicago, IL, for Plaintiffs-Appellants.

Paul A. Castiglione, Attorney, Office of the Cook County State's Attorney, Federal Litigation Division, Andrea Lynn Huff, Attorney, Office of the Cook County State's Attorney, Chaka M. Patterson, Attorney, Office of the Cook County State's Attorney, Civil Actions Bureau, Chicago, IL, for Kimberly M. Foxx.

Kerrie Maloney Laytin, Attorney, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for City of Chicago.

Before Bauer, Rovner, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

Joshua Vasquez and Miguel Cardona are convicted child sex offenders who live in Chicago and are required to register as sex offenders and comply with state restrictions on where they may live. For example, a child sex offender may not knowingly live within 500 feet of a school, playground, or child-care center. 720 ILL. COMP. STAT . 5/11–9.3(b–5), (b–10). A few years after Vasquez and Cardona were convicted, Illinois added child day-care homes and group day-care homes to the list of places included in the 500–foot residential buffer zone. § 5/11–9.3(b–10). When Vasquez and Cardona updated their sex-offender registrations in August 2016, the Chicago Police Department told them they had to move because child day-care homes had opened up within 500 feet of their residences. The Department gave them 30 days to come into compliance with the statute.

Vasquez and Cardona sued the City of Chicago and Kimberly M. Foxx, the Cook County State’s Attorney,¹ seeking relief under 42 U.S.C. § 1983 based on four alleged constitutional violations. First, they claimed that the amendment to the residency statute imposes retroactive punishment in violation of the Ex Post Facto Clause. Next, they alleged that applying the amended statute to them amounted to an unconstitutional taking of their property in violation of the Fifth Amendment’s Takings Clause. Finally, they asserted two due-process claims, one procedural and one substantive: they complained that the statute is enforced without a hearing for an individualized risk assessment and is not rationally related to a legitimate state interest.

The district judge rejected each claim at the pleadings stage and we affirm. Under Supreme Court and circuit precedent, the amended statute is neither impermissibly retroactive nor punitive, so it raises no ex post facto concerns. The plaintiffs’ claim under the Takings Clause fails for two independent reasons: it is unexhausted and the amendment was adopted before they acquired their homes, so it did not alter their property-rights expectations. The procedural due-process claim is a nonstarter for the straightforward reason that there is no right to a hearing to establish a fact not material to the statute. And the law is not unconstitutional in substance: it easily satisfies rational-basis review.

I. Background

Illinois first adopted residency restrictions for child sex offenders in 2000. Act of July 7, 2000, Pub. Act No. 91–911, 2000 Ill. Laws 2051. As originally enacted the law prohibited child sex offenders from knowingly residing within 500 feet of a "playground or a facility providing programs or services exclusively directed toward persons under 18 years of age." Id. In subsequent years the Illinois legislature amended the statute to add other places to the list. At issue here is a 2008 amendment prohibiting child sex offenders from knowingly residing within 500 feet of a "day care home" or "group day care home." Act of Aug. 14, 2008, Pub. Act No. 95–821, 2008 Ill. Laws 1383. Noncompliance is a Class 4 felony punishable by up to three years in prison. 720 ILL. COMP. STAT . 5/11–9.3(f) ; 730 ILL. COMP. STAT . 5/5–4.5–45(a).

Plaintiff Joshua Vasquez was convicted of child-pornography possession in 2001 and must register as a sex offender for the rest of his life. His conviction also makes him a child sex offender within the meaning of the residency statute. 720 ILL. COMP. STAT . § 5/11–9.3(d)(1). On August 25, 2016, Vasquez visited the Chicago Police Department headquarters to complete his annual sex-offender registration. As of that date, he had lived in his Chicago apartment for three years with his wife and daughter, and his lease continued through August 19, 2017. The Department notified him that a child day-care home had opened 480 feet from his apartment and told him he had to move within 30 days. Vasquez alleges that he has been unable to find suitable and affordable housing that complies with the residency requirements. He also alleges that his daughter’s schooling will be disrupted if the family has to move outside the school district.

Plaintiff Miguel Cardona was convicted of indecent solicitation of a child in 2004.²

Like Vasquez, Cardona’s conviction makes him a child sex offender subject to the requirements of the residency statute. Id. Cardona has lived in his Chicago home for roughly 25 years, but he did not purchase it until 2010 so he cannot claim an exemption for offenders who owned their homes prior to the enactment of the 2008 amendment. § 5/11–9.3(b–10). When Cardona completed his annual sex-offender registration on August 17, 2016, the Chicago Police Department notified him that a child day-care home had opened 475 feet from his residence. Like Vasquez, he was given 30 days to move. Cardona alleges that he cannot afford to move into compliant housing. He also alleges that the day-care home in question has been open since 2014 and his proximity to it has caused no problems.

Vasquez and Cardona challenge the 2008 amendment facially and as applied to them. They sued the City of Chicago and State’s Attorney Foxx seeking declaratory and injunctive relief under § 1983 for violation of the Ex Post Facto Clause, the Fifth Amendment’s Takings Cause, and the Fourteenth Amendment’s Due Process Clause. The judge entered an order enjoining the defendants from forcing the plaintiffs to vacate their homes or otherwise enforcing the amended statute against them while the case was pending.

The defendants moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the judge granted the motion. She held that the 2008 amendment created only prospective legal obligations and thus raised no concerns under the Ex Post Facto Clause. On the takings claim she concluded that the plaintiffs had not suffered an unconstitutional taking of their property under the test announced in Penn Central Transportation Co. v. City of New York , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Finally, the judge ruled that the complaint failed to state a procedural or substantive due-process claim because there is no right to a hearing to establish a fact not material under the statute and the challenged residency restriction is a rational means of protecting children from convicted child sex offenders.

Vasquez and Cardona appealed, and the judge granted their motion to extend her order maintaining the status quo through the pendency of the appeal. In the meantime Vasquez renewed his lease, and Cardona lives in the same home.

II. Discussion

We review the judge’s dismissal order de novo. Roberts v. City of Chicago , 817 F.3d 561, 564 (7th Cir. 2016). Before taking up the merits of the plaintiffs’ constitutional claims, we note that the City is not a proper defendant on any of them, at least not as the claims were pleaded. A municipality is subject to § 1983 liability only if one of its policies caused the constitutional injury. Swanigan v. City of Chicago , 881 F.3d 577, 582 (7th Cir. 2018) (citing Monell v. Dep’t of Soc. Servs. of N.Y. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). The "official policy" analysis isolates ultimate responsibility for a claimed constitutional violation, distinguishing the acts of a municipality from the acts of its employees. Estate of Sims ex rel. Sims v. County of Bureau , 506 F.3d 509, 515 (7th Cir. 2007). A municipality’s enforcement of a state law does not constitute an actionable official policy. See Surplus Store & Exchange, Inc. v. City of Delphi , 928 F.2d 788, 791 (7th Cir. 1991) ("It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing state law.").

The City’s police department did not enforce a Chicago ordinance or other municipal policy; rather, this suit challenges a state law. The City can be held liable only if it has "as a matter [of] policy or custom, enforce[d] the law in a manner or method that caused the constitutional violation." Id. Vasquez and Cardona contend that the City exercises discretion in enforcing the residency statute—for example, by checking for compliance annually when sex offenders register and by giving sex offenders 30 days’ notice to move. But the complaint does not allege a causal connection between the City’s compliance monitoring and the plaintiffs’ constitutional injury. Id. at 790. The plaintiffs do face a continuing threat of prosecution if they fail to comply with the 2008 amendment, but the State’s Attorney is the proper defendant to sue for redress of that injury. For this independent reason, which the City preserved below but the judge did not need to address, the plaintiffs failed to state a claim against the City.

A. Ex Post Facto Clause

The Ex Post Facto Clause³ forbids retroactive punishment—that is, "the imposition of punishment more severe than the punishment assigned by law when the act to be punished...