Weems v. Little Rock Police Dept.

• Decision Date: 13 July 2006
• Docket Number: No. 05-1152.,05-1152.
• Citation: 453 F.3d 1010
• Parties: Donald WEEMS; Michael Briggs, Plaintiffs/Appellants, Tony Allen Lampkin, Plaintiff, v. LITTLE ROCK POLICE DEPARTMENT, Defendant, Lawrence Johnson, In his official capacity as Chief of Police, Little Rock Police Department, Defendant/Appellee, Pine Bluff Police Department, Defendant, Daniel Moses, In his official capacity as Chief of Police, Pine Bluff Police, Defendant/Appellee, Arkansas Department of Correction, Sex Offenders Assessment Committee and Sex Offender Screening and Risk Assessment, Defendant, Larry B. Norris, In his official capacity as Director, Arkansas Department of Correction; Paula Stitz, In her official capacity as Chairperson of the Arkansas Sex Offenders Assessment Committee; G. David Guntharp, In his official capacity as Director of Arkansas Department of Community Correction; Sheri Flynn, In her official capacity as administrator of Sex Offender Screening and Risk Assessment (originally sued as John Doe), Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1010

453 F.3d 1010

Donald WEEMS; Michael Briggs, Plaintiffs/Appellants Tony Allen Lampkin, Plaintiff, v. LITTLE ROCK POLICE DEPARTMENT, Defendant Lawrence Johnson, In his official capacity as Chief of Police, Little Rock Police Department, Defendant/Appellee Pine Bluff Police Department, Defendant Daniel Moses, In his official capacity as Chief of Police, Pine Bluff Police, Defendant/Appellee, Arkansas Department of Correction, Sex Offenders Assessment Committee and Sex Offender Screening and Risk Assessment, Defendant, Larry B. Norris, In his official capacity as Director, Arkansas Department of Correction; Paula Stitz, In her official capacity as Chairperson of the Arkansas Sex Offenders Assessment Committee; G. David Guntharp, In his official capacity as Director of Arkansas Department of Community Correction; Sheri Flynn, In her official capacity as administrator of Sex Offender Screening and Risk Assessment (originally sued as John Doe), Defendants/Appellees.

No. 05-1152.

United States Court of Appeals, Eighth Circuit.

Submitted: October 10, 2005.

Filed: July 13, 2006.

Robert D. Kelly, Fort Smith, AR (Gregory T. Karber, Fort Smith, on the brief), for appellant.

C. Joseph Cordi, Jr., argued, AAG, Little Rock, AR (Nicana C. Sherman, AAG appeared on the brief), for appellee Norris, Stitz, Guntharp and Flynn.

David C. Schoen of Springdale, AR (Nga Ostoja-Starzewski, Thomas M. Carpender, on the brief), for appellee Moses and City of Pine Bluff, Lawrence Johnson.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Donald Weems and Michael Briggs, registered sex offenders living in Arkansas, brought this action pursuant to 42 U.S.C. § 1983. They challenged provisions of the Arkansas Sex Offender Registration Act that require sex offenders to register with the State as well as a criminal statute that prohibits certain registered sex offenders from living within two thousand feet of a school or daycare center. The district court¹ granted defendants' motions to dismiss for failure to state a claim and denied plaintiffs' motion for class certification. We affirm.

I.

In 1997, the Arkansas General Assembly enacted the Sex & Child Offender Registration Act. The General Assembly determined that "sex offenders pose a high risk of reoffending after release from custody," that "protecting the public from sex offenders is a primary governmental interest," that "the privacy interest of persons adjudicated guilty of sex offenses is less important than the government's interest in public safety," and that "the release of certain information about sex offenders to criminal justice agencies and the general public will assist in protecting the public safety." Ark.Code Ann. § 12-12-902. The Act, now titled the Sex Offender Registration Act, id. § 12-12-901, requires registration by any person adjudicated guilty of, or serving a sentence for, a "sex offense" as defined in § 12-12-903(12); any person who has committed a sex offense but was institutionalized or acquitted on grounds of a mental disease; and any person previously required to register under the Habitual Child Sex Offender Registration Act. Id. § 12-12-905(a). A person who sustained a conviction for a sex offense in another State and subsequently moved to Arkansas is likewise required to register. Id. § 12-12-906(a)(2)(A). Sex offenders required to register must provide name and address, employment information, a statement of the crime or crimes committed, and other demographic data. Id. § 12-12-908(b).

In 1999, the legislature amended the Sex Offender Registration Act to provide for the establishment of a Sex Offender Assessment Committee, a committee appointed by the governor and charged with "promulgat[ing] guidelines and procedures for the disclosure of relevant and necessary information regarding sex offenders to the public." Id. § 12-12-913(c)(1)(A); see id. § 12-12-921. The guidelines and procedures are to regulate the scope of information disclosed to the community, depending upon the sex offender's level of dangerousness, the sex offender's pattern of offending behavior, and the extent to which the information will enhance community safety. Id. § 12-12-913(c)(2)(B).

The 1999 Amendments also require sex offenders to undergo a risk assessment designed to predict future risk that the offender will recidivate. The Committee is charged with identifying "factors relevant to a sex offender's future dangerousness and likelihood of reoffense or threat to the community." Id. § 12-12-913(c)(2)(A). The guidelines promulgated by the Committee define four levels of risk: low, moderate, high, and sexually violent predator. The Sex Offender Guidelines & Procedures for Implementing Risk Assessment & Cmty. Notification Regarding Sex Offenders, at 13-14 (hereafter "Guidelines"), reprinted in J.A. at 50-51. The Guidelines provide for broader disclosure of information to the public as the risk level increases. Id. at 19-21.

Examiners performing risk assessments for sex offenders consider "actuarial analyses, information obtained from interview, psychological testing and evaluation, review of relevant records and historical data, and [a] polygraph or penile plethysmograph." Id. at 9. Using information gathered from the assessment, examiners determine the applicable level of risk, with one exception. Ark.Code Ann. § 12-12-917(b)(1), (e). Examiners do not have authority to categorize sex offenders as Level 4, sexually violent predators. This categorization can be made only by the sentencing court, id. § 12-12-918, with the examiner's role limited to providing a report recommending to the court whether to categorize the offender as a sexually violent predator. Id. § 12-12-917(a)(1).

Offenders may challenge their assigned risk level by submitting a written request for administrative review. Id. § 12-12-922(b)(1)(A). Under this procedure, the offender may request copies of all documents generated by the examiners, a listing of all documents that may be available from other agencies, and a copy of the tape of the interview. Id. § 12-12-922(b)(1)(B). A member of the Committee is assigned to conduct the administrative review within 30 days of receiving a request for review. Id. § 12-12-922(b)(6)(A). The member may set aside the assigned risk level if it is not supported by substantial evidence, if the governing rules and procedures were not properly followed, or if there is new information that has a bearing on the risk that the sex offender poses to the community. Id. § 12-12-922(b)(3)(B). Until administrative review is completed, notification to the community of an offender's assigned risk status shall be made "only at the level immediately below the level upon which review has been requested." Id. § 12-12-922(b)(5). Community notification commences five calendar days after the Committee mails the finding of the administrative review to the offender. Id. § 12-12-922(7)(A)(i)

If the administrative review does not alter the assigned risk level, the sex offender has the right to file a petition for judicial review in an Arkansas circuit court, pursuant to the Arkansas Administrative Procedure Act. Id. § 12-12-922(b)(7)(A)(ii). The filing of a petition does not automatically stay community notification, but the reviewing court "may do so upon such terms as may be just." Ark. Code Ann. § 25-15-212(c). The Arkansas APA provides that the court may reverse or modify the decision of the Committee if it is in violation of constitutional or statutory provisions, in excess of the agency's statutory authority, made upon unlawful procedure, affected by other error or law, not supported by substantial evidence in the record, or arbitrary, capricious, or characterized by abuse of discretion. Id. § 25-15-212(h).

In 2003, the Arkansas General Assembly enacted a residency restriction for Level 3 "high risk" offenders and Level 4 "sexually violent predators." Offenders in these classes are not permitted "to reside within two thousand feet (2,000') of the property on which any public or private elementary or secondary school or daycare facility is located." Ark.Code Ann. § 5-14-128(a). The statute excludes from the residency restriction any Level 3 or 4 offender residing in a property he owned and occupied before the school or daycare center opened or before July 16, 2003. Id. § 5-14-128(b)(1), (c)(1). But if an offender who satisfies one of the exceptions commits another sexual offense either after July 16, 2003, or after a new school or daycare center opens, he is no longer exempt. Id. § 5-14-128(b)(2), (c)(2). A sex offender who is required to register and knowingly violates the residency restriction is guilty of a Class D felony. Id. § 5-14-128(d).

Weems was found guilty of indecent exposure in Pulaski County, Arkansas, on March 7, 2000. Indecent exposure is a sex offense that subjects Weems to the registration and assessment requirements, and an examiner assessed Weems as a Level 3, high risk offender. After serving a one-year prison term, Weems moved into housing in Little Rock in May 2001. Weems received a letter dated February 28, 2004, from the Chief of Police in Little Rock, advising him that he was in violation of the 2000-foot residency restriction, and ordering him to relocate.

Briggs was found guilty of first-degree rape in Hartford County, Maryland, in 1986. In March 2001, after serving fifteen years of his sentence, Briggs moved into his mother's house, located in Pine Bluff, Arkansas, and established permanent residence there. Pursuant to the Registration Act, Briggs registered and underwent a risk assessment, after which he was assessed as a Level 3 risk. On April 8, 2004, Briggs received notice that by living in his mother's home, he was in violation of the residency restriction and was required to relocate.

Weems and Briggs challenge the constitutionality of both the Registration Act and the residency restriction. They alleged in ...