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Doe v. Marshall

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

March 14, 2018

JOHN DOE #1, et al., Plaintiffs,
STEVEN T. MARSHALL, Attorney General of the State of Alabama in his official capacity, et al., Defendants.



         With an eye toward protecting its citizenry from recidivist sex offenders, Alabama imposes a registration scheme on all state residents who have been convicted of certain sex crimes. The Alabama Sex Offender Registration and Community Notification Act (“ASORCNA, ” or the “Act”), Ala. Code § 15-20A-1 et seq., is one of the most “comprehensive, debilitating” sex offender statutes in the country. McGuire v. Strange, 83 F.Supp.3d 1231, 1236 (M.D. Ala. 2015). Protecting the vulnerable from the depredations of sexual predators is a laudable legislative goal-this much is beyond cavil. But the State, in setting out to achieve this goal, must stay within the boundaries of liberty and dignity enshrined in our constitutional tradition. Plaintiffs, five anonymous ASORCNA registrants, brought this action to challenge the portions of the Act that allegedly trespass on their constitutional protections.

         Before the court is the motion to dismiss filed by Defendants Steven Marshall, Charles Ward, Hal Taylor, John Richardson, and Stan Stabler (collectively, the “State”).[1] (Doc. # 87.) The State seeks, for the second time, total dismissal of Plaintiffs' challenge to ASORCNA. Upon consideration of the pleadings, the arguments of counsel, and the relevant law, the motion is due to be granted in part and denied in part. Given this resolution, Plaintiffs' motions for leave to file a third amended complaint are due to be denied at this time. (Docs. # 118, 119.)


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


         A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). The court need not, however, accept mere legal conclusions as true. Id. at 1325.

         To survive a 12(b)(6) motion, the 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint is facially plausible 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.


         The facts, procedural history, and statutory scheme at issue were spelled out in depth in the Order disposing of Defendants' first motion to dismiss. (Doc. # 51.) The court will not rehash all the facts of this case, which, save for a few exceptions to be discussed below, remain largely the same. After the State's motion to dismiss the first amended complaint was granted in part and denied in part, Plaintiffs obtained leave to again amend their complaint. Plaintiffs filed their second amended complaint on August 22, 2016, adding three claims to the three that survived Defendants' first motion to dismiss. (Doc. # 81.) Four weeks later, on September 12, 2016, Defendants filed their second Rule 12(b)(6) motion to dismiss, asking the court to dismiss all six counts of the operative complaint. (Doc. # 87.)

         While this second motion to dismiss awaited resolution, the statutory landscape shifted dramatically. On March 14, 2017, the Alabama Senate introduced SB 301, a far-reaching rewrite of the challenged ASORCNA provisions. Once it passed both chambers of the Alabama Legislature, the bill was christened Alabama Act No. 2017-414 (the “Amendment”) and signed into law by Governor Kay Ivey. The parties filed supplemental briefs regarding the Amendment's impact on the State's pending motion to dismiss. (Docs. # 110, 113, 114.)

         A brief overview of these statutory and factual changes is in order before addressing the parties' legal arguments.

         A. The Challenged Statutory Provisions

         ASORCNA inserts the State into various aspects of registrants' daily lives. The current version of ASORCNA applies to adult offenders convicted of any of thirty-three infractions designated as sex offenses under Alabama law. Ala. Code § 15-20A-5. It also makes its provisions applicable to any adult offender convicted in another jurisdiction of a crime that, “if it had been committed in [Alabama] under the current provisions of law, would constitute” an enumerated offense. Id. § 15-20A-5(35). The statute applies retroactively such that it sweeps offenders under its control regardless of when the conviction occurred or the duty to register arose. Id. § 15-20A-3(a). Unless they are relieved from its requirements due to medical need or through one of the Act's other narrow exceptions, [2] qualifying offenders are subject to the statute's requirements for life. Id. § 15-20A-3(b).

         1.Duty to Register and Reporting Requirements

         A sex offender must register with certain law enforcement agencies 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 attends school. Id. When registering, sex offenders must provide law enforcement with their residential address, the name and address of their employer and/or the school they attend, the license number and registration for any vehicle they own, and all telephone numbers they use. Id. § 15-20A-7(a)(4)-(8). Registrants must also provide information relating to their internet communications. Namely, email addresses, instant-message usernames, “designations or monikers used for self-identification in Internet communications or postings, ” and “any and all Internet service providers used by the sex offender” must be reported. Id. § 15-20A-7(a)(9), (18). The Amendment carves out a small exception: An internet identifier need not be reported if “used exclusively in connection with a lawful commercial transaction.” Id. § 15-20A-7(a)(9). ASORCNA does not define “lawful commercial transaction, ” or how such internet use differs from a registrant's typical internet access.

         Registrants have an enduring obligation to update their registration, in person, at the time of any change in residence, employment, or educational enrollment. Id. § 15-20A-10(b), (c). Changes to phone numbers, internet identifiers, or internet service providers (“ISPs”) may be reported in person, online, or over the telephone, “as required by the local law enforcement agency.” Id. § 15-20A-10(e). All updates must be made “immediately, ” which the Act defines as within three days. Id. § 15-20A-4(9). ASORCNA further requires homeless registrants to report in person to local law enforcement on a weekly basis. Id. § 15-20A-12(b).

         Law enforcement uses this information to establish a registry, which it makes available to the public.[3] 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. If a registrant intends to leave his county of residence for a period of three or more consecutive days, he must complete a travel permit[4] request and provide the details of his travel plans. Id. § 15-20A-15.

         2.Residency 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.[5]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-foot exclusion zone[6] 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)). Plaintiffs contend that the geographical residency restrictions preclude registrants from residing in over eighty percent of the available housing in Montgomery, Alabama.

         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.[7] “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: first, if the person spends four hours there on three consecutive days; second, if the person spends four hours there on ten days out of a month; and third, if the person spends any length of time there and has indicated an intent to remain for the named periods of time. Id. These three circumstances, as the Act makes clear, are illustrations rather than limitations of the definition. Id. Should a registrant fail to notify law enforcement or obtain a travel permit prior to “spend[ing] three or more consecutive days” away from his residence, he will be deemed to have changed residences and will be required to report the change to law enforcement. Id. §§ 15-20A-11(e)(2), 15-20A-10(e)(1).

         The statute does allow for a limited reprieve from these restrictions. As of August 1, 2017, ASORCNA offers registrants a safe harbor in the form of residential preapproval. Id. § 15-20A-11(g). Should law enforcement preapprove an address as ASORCNA compliant before a registrant moves in, his residence there will not violate the residential-exclusion rules. Id. Registrants also may petition a state circuit court for relief based on terminal illness, permanent immobility, or other debilitating medical condition. Id. § 15-20A-23(a). To grant this relief, the state court must find that the petitioner does not pose a substantial risk of engaging in future sexual misconduct. Id. § 15-20A-23(g).

         The employment provision, like the residency provision, imposes a geographical limitation on sex offender activity. No sex offender may “accept or maintain employment or a volunteer position” within 2, 000 feet of a school or childcare facility. Id. § 15-20A-13(b). Registrants also may not accept or maintain employment within 500 feet of a playground, park, or athletic facility with a principal purpose of serving children. Id. § 15-20A-13(c). The exclusion zone is measured from nearest property line to nearest property line. Id. § 15-20A-13(h).

         This provision further precludes sex offenders from working at any facility or organization that provides services primarily to children. Id. § 15-20A-13(a). Plaintiffs allege, with respect to the Montgomery area, that ASORCNA's employment restrictions render eighty-five percent of jobs unavailable to sex offenders. These employment restrictions apply regardless of whether the sex offender's victim was a minor child.

         3.Branded Identification Requirement

         To ensure easy identification of registrants, ASORCNA requires all sex offenders to carry branded identification cards. Specifically, the statute provides that a sex offender must “obtain . . . and always have in his or her possession, a valid driver license or identification card issued by the Alabama State Law Enforcement Agency.” Id. § 15-20A-18(a). These registrant-specific driver's licenses must “bear[ ] a designation that enables law enforcement officers to identify the licensee as a sex offender.” Id. § 15-20A-18(b), (c). The Alabama Legislature delegated to the Secretary of the Alabama Law Enforcement Agency (“ALEA”) the exclusive power “to promulgate any rules as are necessary to implement and enforce” the Act. Id. § 15-20A-44(c). The ALEA, in turn, has required the face of the identification cards to bear the inscription “CRIMINAL SEX OFFENDER” in bold, red letters. Registrants must also relinquish any other identification previously issued to them “by a state motor vehicle agency” that does not bear the sex offender inscription. Id. § 15-20A-18(d).

         4.Penalties for ASORCNA Violations

         ASORCNA's various duties and limitations are enforced under penalty of criminal prosecution. A violation of its requirements may constitute a Class C felony. See, e.g., id. § 15-20A-11(i). The statute does impose a scienter requirement, however, such that registrants are only liable for knowing violations of any provision. See id.

         B. The Parties

         1. Plaintiffs

         Plaintiffs John Doe 1, John Doe 3, John Doe 7, John Doe 9, and John Doe 10 (“Doe 1, ” “Doe 3, ” etc.) wish to proceed anonymously in this action; their hopscotch numbering reflects former Plaintiffs who have since been dropped from the case. (See Doc. # 41.) Each Plaintiff's experience as an ASORCNA registrant has already been summarized, except for Doe 10, who was joined as a Plaintiff in the second amended complaint. (Doc. # 51, at 10-17; see Doc. # 81.)

         Doe 10 is an adult ASORCNA registrant living within the Northern District of Alabama. A long-time drug addict, Doe 10 visited his children at their mother's house in 1990 while he was under the influence of drugs. When the children's mother refused entry to Doe 10, he kicked in the door and got into a fight with her. The police were called, Doe 10 was arrested and charged, and he ultimately pled guilty to sexual abuse in the second degree, a misdemeanor. Doe 10 was sentenced to twelve months' imprisonment and required to register under ASORCNA's predecessor statute, the now-repealed Alabama Community Notification Act.

         After unsuccessfully fighting his demons for two decades, Doe 10 decided to seek professional help for his addiction. He received that help in 2009, in the form of a twelve-month, free-of-charge inpatient program in Kansas.[8] On his return to his hometown in Alabama, Doe 10 was arrested for, and convicted of, a felony violation of ASORCNA: He had failed to report to local law enforcement his relocation from Alabama to Kansas.

         Once he served his time, Doe 10 resumed residency with his mother in an ASORCNA-compliant zone. But the city soon condemned their home, and Doe 10's mother could not find affordable housing outside of ASORCNA's zones of exclusion. Doe 10 was left homeless, subject to the weekly reporting requirement, until he found temporary housing in an ASORCNA-compliant area in late 2015. After failing to report his updated address within the three-day period mandated by ASORCNA, Doe 10 was charged with violating the Act's immediate in-person reporting requirement. After pleading guilty to this violation, Doe 10 finally found permanent housing in February 2016 that was approved by local law enforcement as ASORCNA compliant-though this approval may have been accidental, owing to a nearby, decades-old childcare facility. Thus, Doe 10 may currently be living in a zone of exclusion.

         Doe 10 enjoys traveling, especially on fishing trips. But his friends often schedule their fishing trips on less than a day's notice, forcing Doe 10 to decline invitations for fear of violating ASORCNA's requirement of immediate in-person reporting of his travel. Similarly, Doe 10's girlfriend will soon retire from her job, and he hopes to travel with her when she does. Doe 10's precarious living situation also puts him at risk of homelessness and the weekly reporting requirement, should local law enforcement revoke the approval of his residence.

         2. Defendants

         Plaintiffs bring their first five claims against Defendants Steven Marshall, Charles Ward, and Hal Taylor in their official capacities as Attorney General of the State of Alabama, Director of Alabama Department of Public Safety, and Secretary of ALEA, respectively.[9] Plaintiffs' sixth claim seeks damages against Defendants John Richardson and Stan Stabler, former secretaries of ALEA, in their individual capacities.

         C. The Causes of Action Plaintiffs' second amended complaint names six causes of action against Defendants. They allege as follows:

1. The residency restriction violates Plaintiffs' substantive due process right to family association, see Ala. Code § 15-20A-11(a)-(e), (g);
2. ASORCNA creates an irrebuttable presumption of dangerousness in violation of the Fourteenth Amendment through its restrictions on residency, id. § 15-20A-11(d), employment, id. § 15-20A-13(a)-(b), and travel, id. § 15-20A-15(a), (b), (d); the weekly reporting requirement for the homeless, id. § 15-20A-12(b); and the community-distribution provision, id. § 15-20A-21(b), (d);
3. The residency exclusion zones, id. § 15-20A-11(a)-(e), (g), employment exclusion zones, id. § 15-20A-13(b), (d), (f), and reporting requirements, id. §§ 15-20A-7(a)(5)-(9), (18); 15-20A-10(a)-(c), (e), are void for vagueness;
4. The branded-identification requirement unconstitutionally compels speech, id. § 15-20A-18(d);
5. The reporting requirements are overbroad in violation of the First Amendment, id. §§ 15-20A-7(a)(8)-(9); 15-20A-10(e); and
6. Defendants Richardson and Stabler are liable in their individual capacities under 42 U.S.C. § 1983 because their use of the “CRIMINAL SEX OFFENDER” inscription violates Plaintiffs' clearly established constitutional rights.

Counts 1, 3, and 4 are substantially similar to claims in Plaintiffs' first amended complaint that survived the State's first motion to dismiss.[10] (See Doc. # 39.) Counts 2, 5, and 6 were newly alleged in the second amended complaint. (Doc. # 81.)


         Defendants seek dismissal of the second amended complaint in its entirety. Each count of the complaint will be analyzed in turn to determine whether Plaintiffs have stated a cognizable claim. More broadly, the court divides ...

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