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McGuire v. Strange

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

February 5, 2015

LUTHER STRANGE in his official capacity, et al., Defendants

For Michael A. McGuire, Plaintiff: Joseph Mitchell McGuire, LEAD ATTORNEY, McGuire & Associates LLC, Montgomery, AL; Elizabeth Peyton Faulk, The Law Offices of E. Peyton Faulk, LLC, Montgomery, AL.

For Kevin J. Murphy, Chief of Police, in his official and individual capacities, Todd Strange, Mayor of the City of Montgomery, Defendants: Jason Cole Paulk, LEAD ATTORNEY, City Attorney's Office, Montgomery, AL.

For D. T. Marshall, Sheriff of Montgomery County, Alabama Sheriff's Office, in his official and individual capacities, Defendant: Thomas T. Gallion, III, LEAD ATTORNEY, Constance Caldwell Walker, Haskell Slaughter Young & Gallion, LLC, Montgomery, AL.

For Hugh B. McCall, Colonel, Director of the Alabama Department of Public Safety, in his official and individual capacities, Defendant: Joseph Haran Lowe, Jr., LEAD ATTORNEY, Alabama Department of Public Safety Legal Unit, Montgomery, AL; Frank Timothy McCollum, State of Alabama Department of Public Safety Legal, Montgomery, AL.

For Luther Strange, Attorney General for the State of Alabama, in his official and individual capacites, Defendant: Winfield James Sinclair, LEAD ATTORNEY, Office of the Attorney General, State of Alabama, Montgomery, AL; Peter John Smyczek, Alabama Office of the Attorney General, Montgomery, AL.

For City of Montgomery, a muncipal corporation of Montgomery County of Alabama, Defendant: Jason Cole Paulk, City Attorney's Office, Montgomery, AL.




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.


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


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, 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.



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. § 15-20A-3. 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. § 15-20A-15(h). Class C felonies in Alabama carry a sentence from one to ten years. Id. § 13A-5-6.[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 community, but serve to deter sex offenders from future crimes through frequent in-person registration. Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.
(3) Homeless sex offenders are a group of sex offenders who need to be monitored more frequently for the protection of the public. Homeless sex offenders present a growing concern for law enforcement due to their mobility. As the number of homeless sex offenders increases, locating, tracking, and monitoring these offenders becomes more difficult.
(5) Sex offenders, due to the nature of their offenses, have a reduced expectation of privacy. In balancing the sex offender's rights, and the interest of public safety, the Legislature finds that releasing certain information to the public furthers the primary governmental interest of protecting vulnerable populations, particularly children. Employment and residence restrictions, together with monitoring and tracking, also further that interest. The Legislature declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public, and most importantly, promote child safety.

Id. § § 15-20A-2(1), (3), (5). With regard to the branding of one's sex-offender status on the ASORCNA-required driver's license or official identification card, the Legislature intended " a designation that enables law enforcement officers to identify the licensee as a sex offender" but did not specify the method of notice on the license. Id. § 15-20A-18.

B. Mr. McGuire's Experience

Mr. McGuire turned 60 years old during the course of this trial. He is a sex offender under ASORCNA, and, as a result, he is required to register with the City of Montgomery Police Department and the Montgomery County Sheriff's Department on a regular basis. Mr. McGuire is one of more than 500 registered sex offenders residing in Montgomery County, over 430 of whom live within the Montgomery city limits.

Mr. McGuire's registry information has been available to the public via the Alabama and federal sex-offender registries since May of 2010. Additionally, pursuant to ASORCNA's community-notification provision, persons within the statute's prescribed proximity to Mr. McGuire's registered residence were notified by flyer in June of 2010 that Mr. McGuire is a registered sex offender. During each quarterly registration at the Montgomery Police Department and the Montgomery County Sheriff's Office, Mr. McGuire is supposed to pay a $10 fee. Due to his " homeless status," however, Mr. McGuire's fee has been waived. (Doc. # 251, at 40:12-14.)

Mr. McGuire is currently one of three homeless offenders in Montgomery County, and he lists his residence as being under a bridge in the City of Montgomery. Mr. McGuire's wife of eleven years is not homeless; she lives in the house that the couple rents from Mr. McGuire's brother. Because the house is not in an ASORCNA-compliant area, Mr. McGuire is prohibited from residing in the house with his wife. He may, however, stay in the house not more than two consecutive nights, not to exceed nine nights a month. Id. § 15-20A-11(e).

Mr. McGuire asked local law enforcement about the suitability of fifty to sixty other homes in the City, but none complied. It is undisputed that Mr. McGuire and his wife lived in the Regency Inn from April 27, 2010, until July 19, 2010, paying a weekly rent. Eventually, however, he depleted his savings, and the couple moved out. The testimony of Mr. McGuire's expert established that, conservatively, 80 percent of the city's housing stock was not ASORCNA-compliant, thereby creating a large, residential " zone of exclusion." The City of Montgomery has over 96,000 parcels of real estate. (Trial Tr. I, at 61.) The precise extent of the zone of exclusion is an ever-moving target, changing almost daily with the ebb and flow of real estate transactions. It is undisputed, however, that much of the City's housing is not available for sale or rent at any one time, and Mr. McGuire's expert testified that some of the available housing stock is in expensive neighborhoods and some is in undeveloped rural areas. The expert testified that 76.8 percent of the parcels " are off limits to people subject to ASORCNA" and that " 80 percent of where the people are actually living in the city is off limits to people subject to the statute." (Trial Tr. I, at 46.) Accurately accounting for housing availability for sex offenders is, in short, an unresolvable nightmare for law enforcement. For registrants, who bear the burden of locating such housing under the penalty of several felony offenses should they make the wrong decision, keeping track is impossible, period. Nevertheless, all but three of the more than 430 sex offenders registered in the City of Montgomery have found compliant homes, are grandfathered into non-compliant areas, or no longer reside in the City.

Because Mr. McGuire is homeless, he registers quarterly and weekly with both the Montgomery County Sheriff's Office and the Montgomery City Police Department. The two offices are located five miles apart. On occasion, Mr. McGuire has had to walk as far as twenty miles to register with both jurisdictions.

Before moving to Alabama in 2010, Mr. McGuire was employed as a hair stylist and musician. Since moving to Alabama, ASORCNA has prevented Mr. McGuire from accepting or applying for a number of jobs, including music-related engagements.[7] He is occasionally able to arrange to play in a compliant zone, for which he is paid $125 per event. As a result of the employment restrictions, Mr. McGuire lives mostly on a fixed income comprised of disability benefits.

Mr. McGuire is subject to other ASORCNA requirements as well. For example, he has had to replace his driver's license with a new ASORCNA-compliant license. On the front of his new license is the inscription " CRIMINAL SEX OFFENDER" in red lettering. Mr. McGuire has also had to limit his travel -- a hobby he enjoyed prior to moving to Alabama -- because of the three-day travel permit requirement. Applying for the permit requires registration at two jurisdictions for all in-town offenders, homeless or not.


A. Proper Defendants

In challenging ASORCNA, Mr. McGuire brought this lawsuit against a number of individuals and governmental entities. The viability of his claims against each Defendant will be addressed in turn.

1. City of Montgomery, the Mayor, and the Chief of Police

Mr. McGuire's § 1983 ex post facto claims for injunctive and declaratory relief remain pending against the City of Montgomery, the Mayor in his official capacity, and the Chief of Police in his official capacity. For the reasons that follow, the claims against the City, the Mayor, and the Chief of Police are due to be dismissed.

a. Official-Capacity Suit Against the Mayor and the Chief of Police

For purposes of § 1983, suits against the Mayor and the Chief of Police in their official capacities are suits against the City itself. See McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 n.2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); see also Cooper v. Dillon, 403 F.3d 1208, 1215 (11th Cir. 2005) (noting that a § 1983 suit against a municipal police chief is " the same as a suit against the municipality" ). Because the City is also a defendant, the § 1983 ex post facto claims against the Mayor and Chief of Police in their official capacities are due to be dismissed as redundant.[8] See Gray v. City of Eufaula, 31 F.Supp.2d 957, 965 (M.D. Ala. 1998) (dismissing as redundant a § 1983 official-capacity claim where the plaintiff also brought a § 1983 claim against the city).

b. City of Montgomery

For a city to be liable under § 1983, " the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom." Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (defining " custom" and " policy" ). " 'Only those officials who have final policymaking authority may render the municipality liable under § 1983.'" Id. (quoting Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996)).

In Cooper, the Eleventh Circuit addressed whether a city could be held liable under § 1983 for a police chief's enforcement of an unconstitutional state statute. Id. at 1222. In that case, the police chief had ordered the arrest of the plaintiff, who was a newspaper publisher, for publishing news articles " disclosing . . . information he obtained as a participant in an internal investigation." Id. at 1213. The court determined that the state statute under which the publisher was arrested was " an unconstitutional abridgment of core First Amendment rights," id. at 1219, and that " state law demonstrate[d] that [the police chief] was the ultimate policymaker for police procedure" for the city." Id. at 1222. Rejecting the police chief's argument that the city could not " be liable for enforcing an unconstitutional state statute," the Eleventh Circuit held that the city had " adopt[ed] the unconstitutional proscriptions [of the statute] as its own" by enacting an ordinance that made it unlawful to commit a state-defined offense within the city limits. Id. Hence, the Eleventh Circuit held that the city, " through the actions of [its police chief], adopted a policy that caused the deprivation of [the plaintiff's] constitutional rights which rendered the municipality liable under § 1983." Id. at 1223.

Unlike in Cooper, Mr. McGuire presents no evidence indicating that a City of Montgomery official has final policy-making authority over the provisions of ASORCNA. Rather, the Alabama Legislature delegated the interstitial policy-making function of ASORCNA to the Director of the Department of Public Safety. Additionally, no evidence has been offered indicating that any City official has discretionary authority over the promulgation of rules associated with ASORCNA, or that any such rules have been promulgated by the City. Because there is no evidence that the City has " consciously chosen [the methods in which ASORCNA has been implemented] from among various alternatives," City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), there has been no showing that any of the alleged actions in this case were a result of a city custom or policy. Accordingly, the City of Montgomery is due to be dismissed.

2. State Officials

Mr. McGuire also seeks prospective injunctive and declaratory relief against the State Attorney General, the Montgomery County Sheriff, and the Alabama Department of Public Safety Director in their official capacities (" State Officials" ). As explained in the September 9, 2013 Order (Doc. # 134), these are viable avenues of relief under § 1983. See generally Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999) ( The Eleventh Amendment, by application of the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), does not bar § 1983 official-capacity suits for " prospective equitable relief to end continuing violations of federal law." ). Accordingly, Mr. McGuire's lawsuit proceeds only as to his § 1983 claims seeking to enjoin the State Officials[9] in their official capacities from continuing to enforce an allegedly ex post facto law and for corresponding declaratory relief.

B. Standing

Mr. McGuire challenges ASORCNA's registration, notification, driver's license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions. Of those challenges, the State[10] argues that Mr. McGuire lacks standing to challenge the employment and travel restrictions and the registration-fee requirements.[11]

The State argues that, because Mr. McGuire does not have definite plans to travel and has not tried to travel in the recent past, he has suffered no injury with regard to ASORCNA's travel-permit requirement. Similarly, the State argues that, because Mr. McGuire admitted at the hearing that he was not currently seeking employment, he does not have standing to challenge the employment restrictions. Finally, the State contends that Mr. McGuire cannot challenge the registration-fee requirement because ...

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