United States District Court, M.D. Alabama, Northern Division
JOHN DOE 1; JOHN DOE 3; JOHN DOE 7; JOHN DOE 9; and JOHN DOE 10, Plaintiffs,
STEVEN T. MARSHALL, Attorney General of the State of Alabama, in his official capacity; CHARLES WARD, Director of the Alabama Department of Public Safety, in his official capacity; and HAL TAYLOR, Secretary of the Alabama Law Enforcement Agency, in his official capacity, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE
Alabama Sex Offender Registration and Community Notification
Act (ASORCNA) is the most comprehensive and debilitating
sex-offender scheme in the nation. No. other state's
system comes close. ASORCNA applies to adult offenders no
matter when or where they were convicted. It bans them from
living or working within 2, 000 feet of a school or daycare,
even if the offender never harmed a child. Between 10:30 p.m.
and 6:00 a.m., no offender can be in the same house as a
minor niece or nephew - not even for a minute. An
offender's driver's license is branded with
“CRIMINAL SEX OFFENDER” in bold, red letters.
Offenders must report lawful internet activity - such as
connecting to the Wi-Fi at a new McDonald's, or
anonymously commenting on a news article - to the police.
Even a minor violation of any of these provisions may result
in years behind bars. And unless a narrow exception somehow
applies, offenders must comply with ASORCNA for life. See
generally Ala. Code § 15-20A-1 et seq.
State of Alabama says that these restrictions protect the
public, especially children, from recidivist sex offenders.
That is a compelling state interest. But sex offenders are
not second-class citizens. The Constitution protects their
liberty and dignity just as it protects everyone else's.
case is about whether certain ASORCNA provisions violate the
First and Fourteenth Amendments. Plaintiffs are five
registered sex offenders covered by ASORCNA. Their claims are
before the court on cross-motions for summary judgment.
(Docs. # 139, 147, 154.) For the reasons below, Plaintiffs
are entitled to summary judgment on their First Amendment
claims. The branded-identification requirement unnecessarily
compels speech. The internet-use reporting requirements also
go too far, chilling free speech. But the State of Alabama is
entitled to summary judgment on Plaintiffs' Fourteenth
Amendment claims. Though Plaintiffs have made several good
legal arguments, one Fourteenth Amendment claim fails on the
merits, and Plaintiffs lack standing to pursue the rest.
JURISDICTION AND VENUE
court has subject-matter jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 2201. The parties do not contest
personal jurisdiction or venue.
STANDARD OF REVIEW
succeed on a motion for summary judgment, the moving party
must show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The court views the
evidence, and all reasonable inferences drawn from it, in the
light most favorable to the nonmoving party.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th
seeking summary judgment “always bears the initial
responsibility of informing the district court of the basis
for the motion.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). This responsibility includes
identifying the parts of the record that show there is no
genuine dispute of material fact. See Fed. R. Civ.
P. 56(c)(1). “A verified complaint may be used in the
summary judgment context, but verification must be on
personal knowledge alone, not knowledge, information and
belief.” Horne v. Russell Cty. Comm'n, 379
F.Supp.2d 1305, 1323 (M.D. Ala. 2005) (citing Fowler v.
S. Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.
1965)). A movant who does not bear a trial burden of
production may also assert, without citing the record, that
the nonmoving party “cannot produce admissible evidence
to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B).
If the moving party meets its burden, the burden shifts to
the nonmoving party to present evidence of a genuine dispute
of material fact. See Celotex, 477 U.S. at 324. A
genuine dispute of material fact exists when the nonmoving
party produces evidence allowing a reasonable fact-finder to
return a verdict in its favor. Waddell v. Valley Forge
Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
for summary judgment will not, in themselves, warrant the
court in granting summary judgment unless one of the parties
is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” Bricklayers, Masons &
Plasterers Int'l Union v. Stuart Plastering Co., 512
F.2d 1017, 1023 (5th Cir. 1975). Still, cross-motions
“may be probative of the nonexistence of a factual
dispute.” Shook v. United States, 713 F.2d
662, 665 (11th Cir. 1983). If both parties proceed on the
same legal theories and rely on the same material facts,
“the court is signaled that the case is ripe for
summary judgment.” Id.; see Ga. State
Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs, 775
F.3d 1336, 1345 (11th Cir. 2015).
is a comprehensive statute that severely limits how sex
offenders live their lives. It brings together most of the
restrictive features used by other states, adds new
restrictions, and punishes minor violations with years in
prison. Plaintiffs John Doe 1, John Doe 3, John Doe 7, John
Doe 9, and John Doe 10 are registered sex offenders who must
comply with ASORCNA. Their hopscotch numbering reflects that
other plaintiffs have been dropped from this case during the
three years of litigation. Defendants are state officials
charged with implementing and enforcing ASORCNA. Because
Defendants are sued in their official capacities, however,
the court refers to them collectively as “the State of
Alabama” or “the State.”
The Challenged Statutory Provisions
State of Alabama enacted its first sex-offender statute over
five decades ago. See Ala. Act No. 1967-507. That
law merely required offenders to submit their name to their
county sheriff, id. § 1, and only law
enforcement could access that roster, id. § 2.
But over the years, Alabama has repeatedly amended its
sex-offender laws to make them broader and more restrictive.
See McGuire v. Strange, 83 F.Supp.3d 1231, 1236-40
(M.D. Ala. 2015); Doe v. Pryor, 61 F.Supp.2d 1224,
1226- 29 (M.D. Ala. 1999). The current statute, ASORCNA, is
comprised mostly of legislation from 2011, 2015, and 2017.
See Ala. Act No. 2011-640; Ala. Act No. 2015-463;
Ala. Act. No. 2017-414.
applies to adults convicted of any of thirty-three “sex
offenses.” Ala. Code § 15-20A-5. It also applies
to anyone convicted in another jurisdiction of a crime that,
“if it had been committed in [Alabama] under the
current provisions of law, would constitute” a sex
offense. Id. § 15-20A-5(35). It applies
retroactively, sweeping offenders under its control no matter
when they were convicted or their duty to register arose.
Id. § 15-20A-3(a). Unless relieved from its
requirements because of medical need or through one of the
Act's other narrow exceptions, offenders are subject to the
Act's requirements for life. Id. §
must register with law enforcement. Id. §
15-20A-10. When registering, they must provide law
enforcement with their home address, the name and address of
their employer, their vehicle information, their phone
numbers, and more. Id. § 15-20A-7(a)(4)-(8).
Offenders must also report information about their internet
use: 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.” Id. § 15-20A-7(a)(9), (18).
The Act does carve out a small exception: Offenders need not
report an internet identifier if it is “used
exclusively in connection with a lawful commercial
transaction.” Id. § 15-20A-7(a)(9). But
the Act does not define “lawful commercial
transaction” or explain how it differs from other
must “immediately” update their registration
information whenever it changes. Id. §
15-20A-10. “Immediately” means within three
business days. Id. § 15-20A-4(9). Most changes
must be reported in-person. Id. §
15-20A-10(e)(1). Changes to phone numbers, online
identifiers, and internet service providers may be reported
in-person, online, or over the phone, “as required by
the local law enforcement agency.” Id.
sharply limits where sex offenders may live. Offenders may
not “establish” or “maintain” a
residence within 2, 000 feet of a school, childcare facility,
or resident camp. Id. § 15-20A-11(a). Nor may
they establish or maintain a residence within 2, 000 feet of
where their victim, or an immediate family member of their
victim, resides. Id. § 15-20A-11(b). The
exclusion zone is measured “in a straight line from
nearest property line to nearest property line.”
Id. § 15-20A-11(h).
also includes a “minor-cohabitation rule.” Under
that rule, no offender may “reside or conduct an
overnight visit with a minor.” Id. §
15-20A-11(d). “Any presence between the hours of 10:30
p.m. and 6:00 a.m.” counts as an “overnight
visit.” Id. § 15-20A-4(14). The
minor-cohabitation rule generally does not apply if the
offender is the parent, grandparent, sibling, stepparent, or
stepsibling of the minor. Id. § 15-20A-11(d).
In some cases where the offender's victim was a minor,
however, the familial exceptions do not apply. Id.
the statutory meaning of “residence” is no small
feat - it takes several cross-references to pin down the
term's definition. “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). To “reside” is to be
“habitually or systematically present at a place,
” as “determined by the totality of the
circumstances.” Id. § 15-20A-4(20). In
addition to this catch-all definition, the Act gives three
illustrations of when 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 ten days a month; and third, if the person spends any
length of time there and indicates an intent to remain for
the named periods of time. Id. If an offender fails
to notify law enforcement or obtain a travel permit before
spending three or more consecutive days away from his
residence, he is considered to have changed residences and
must report the change to the authorities. Id.
§§ 15-20A-10(e)(2), 15-20A-11(e)(2).
does have limited exceptions from the residency restrictions.
First, it offers a “safe harbor” from the 2,
000-foot exclusion zone in the form of preapproval: If law
enforcement preapproves an address as ASORCNA-compliant
before an offender moves in, his residence there will not
violate the 2, 000-foot rule. Id. §
15-20A-11(g). Second, offenders may petition a state 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
the petitioner poses no substantial risk of engaging in
future sexual misconduct. Id. § 15-20A-23(g).
also limits where offenders may work. Offenders may not
“accept or maintain employment or a volunteer
position” within 2, 000 feet of a school or childcare
facility. Id. § 15-20A-13(b). Nor may they work
within 500 feet of a playground, park, or other place that
“has a principal purpose of caring for, educating, or
entertaining minors.” Id. § 15-20A-13(c).
Finally, they may not work anywhere that provides services
“primarily to children.” Id. §
employment restrictions apply to everyone, even if their
offense did not involve a minor. The exclusion zones are
measured “from nearest property line to nearest
property line.” Id. § 15-20A-13(f).
“Employment” includes volunteer work and
part-time work, but not “time spent traveling as a
necessary incident to performing the work.”
Id. § 15-20A-4(5). There is no preapproval
“safe harbor” for the 2, 000-foot employment
exclusion zone. Offenders may, however, be relieved from that
restriction if a state court finds they pose no substantial
risk of any future sexual misconduct. Id. §
requires offenders to “obtain . . . and always have in
[their] possession, a valid driver license or identification
card issued by the Alabama State Law Enforcement
Agency.” Id. § 15-20A-18(a). These
identification cards must “bear a designation that, at
a minimum, enables law enforcement officers to identify the
licensee as a sex offender.” Id. §
15-20A-18(b)-(c). Offenders must relinquish any non-branded
ID issued “by a state motor vehicle agency.”
Id. § 15-20A-18(d).
bestows on the Secretary of the Alabama Law Enforcement
Agency the exclusive power “to promulgate any rules as
are necessary to implement and enforce” the Act.
Id. § 15-20A-44(c). The Secretary, in turn,
requires the face of the ID cards to bear the inscription
“CRIMINAL SEX OFFENDER” in bold, red letters. The
brand is printed in about the same font size used for the
“endorsements” label, and it is printed directly
beneath the issuance date. (See Doc. # 156-4, at
Penalties for ASORCNA Violations
provisions are enforced by threat of criminal prosecution.
Even a minor violation may constitute a Class C felony.
See, e.g., Ala. Code § 15-20A-10(j). Offenders
are liable only if they “knowingly” violate the
law, however. Id.
baseline term of imprisonment for a Class C felony is
“not more than 10 years or less than 1 year and 1
day.” Id. § 13A-5-6(a)(3). But if the
defendant was convicted before of a Class A, B, or C felony,
he must be sentenced to “not more than 20 years or less
than 2 years.” Id. §§ 13A-5-6(a)(2),
13A-5-9(a). And if he was convicted before of two Class A, B,
or C felonies, he must be sentenced to “life or not
more than 99 years or less than 10 years.” Id.
§§ 13A-5-6(a)(1), 13A-5-9(b).
and 1993, John Doe 1 pleaded guilty to two Wisconsin
misdemeanor charges after he exposed his genitals in public.
Doe 1 served a six-month suspended sentence for each charge.
He did not have to register as a sex offender in Wisconsin.
Nor did he have to register when he moved to Alabama in 1994.
It was only in 2008 that Alabama forced Doe 1 to register.
Since then, he has twice been convicted of violating ASORCNA:
once for failing to report a change of address, and once for
redacting his branded identification. (Doc. # 138, at 8-9,
Doe 3 was convicted of murder in 1968. He was thirteen. In
1985, while in prison, he pleaded guilty to first-degree
sodomy of another adult inmate. Doe 3 registered as a sex
offender upon his release from prison in 2010. He has
committed no crimes since his release. (Doc. # 138, at 10;
Doc. # 156-1, at 4-5, 25.) Doe 3 has a close relationship
with his adult niece. That niece invited Doe 3 to live with
her, but he cannot do so for two reasons. First, his niece
lives within 2, 000 feet of both a school and a childcare
facility. Second, his niece's thirteen-year-old son and
one-year-old grandson live with her. (Docs. # 140-1, 156-2,
Doe 7 pleaded guilty to second-degree sodomy of an adult jail
inmate in 1987. He registered as a sex offender upon his
release from prison in 2011. In 2015, he was convicted of
violating ASORCNA's residency restrictions. In 2018, he
was charged with two more residency violations. (Doc. # 138,
at 11-12, 24-25; Doc. # 150-7; Doc. # 156-4, at 4-5, 29.)
When he was released from prison in 2011, Doe 7 had planned
to live with his sister, but she lives within 2, 000 feet of
a school. His sister's granddaughter (age five) and
great-granddaughter (age eight) also live with her several
nights a week. (Docs. # 140-2, 156-6.) Doe 7 has a close
relationship with his niece, and she is willing to let Doe 7
live with her. But her home is within 2, 000 feet of two
childcare facilities, and her four-year-old daughter lives
with her. (Docs. # 140-3, 140-4, 156-3, 156-7.)
Doe 9 was convicted of sexual battery of an adult female in
2005. He registered as a sex offender in Alabama in 2006.
(Doc. # 138, at 12-13.)
Doe 10 pleaded guilty to second-degree sexual abuse, a
misdemeanor, in 1990. He registered as a sex offender at that
time. In 2009, he went to Kansas for a year-long
drug-treatment program. When he returned home to Alabama, he
was convicted of failing to report that he moved to Kansas.
(Doc. # 138, at 14.)
filed their initial complaint in August 2015. (Doc. # 1.)
They filed amended complaints in November 2015 and August
2016. (Docs. # 39, 81.) The State moved to dismiss both the
first amended complaint and the second amended complaint.
(Docs. # 43, 87.) Those motions were granted in part and
denied in part. (Docs. # 51, 125.) In April 2018, Plaintiffs
moved for leave to supplement their second amended complaint.
(Doc. # 132.) That motion was largely denied, though
Plaintiffs were allowed to make a small addition to one
claim. (Doc. # 137.) As things stand now, Plaintiffs have
four operative claims. (See Doc. # 138.)
One argues that the minor-cohabitation rule violates the Due
Process Clause of the Fourteenth Amendment. This is an
as-applied challenge brought by Doe 3 and Doe 7, who claim
the rule deprives them of their fundamental right to
associate with their family. (Doc. # 81, at 45; Doc. # 138,
at 46.) They previously challenged the 2, 000-foot exclusion
zone under the same family association theory, but that part
of Count One was dismissed in 2016. (Doc. # 51, at 31-33.)
Three claims the residency and employment restrictions are
facially void for vagueness under the Due Process Clause. All
five Plaintiffs bring this claim. (Doc. # 81, at 48; Doc. #
138, at 46.) The supplemental second amended complaint lists
a vagueness challenge to reporting requirements (Doc. # 138,
at 47), but that claim was dismissed (Doc. # 125, at 29), and
leave to amend was not granted (Doc. # 137, at 8-10).
Four and Five raise First Amendment claims. Count Four is an
as-applied challenge to ASORCNA's branded-identification
requirement as applied by the State. According to Plaintiffs,
that requirement compels speech in violation of the First
Amendment. (Doc. # 81, at 49; Doc. # 138, at 47.)
Five is a First Amendment overbreadth challenge to the
internet-use reporting requirements. Plaintiffs claim those
reporting requirements unduly chill free speech. (Doc. # 81,
at 50; Doc. # 138, at 49.)
before the court are cross-motions for summary judgment on
all counts. (Docs. # 139, 147, 154.) Each side has filed
three briefs and several exhibits. (Docs. # 140, 149, 155,
158, 159, 161.) The issues are ripe for summary judgment.
are entitled to summary judgment on their claims that the
branded-identification and internet-use reporting
requirements violate the First Amendment. The court has
already held that Plaintiffs have a cause of action on which
relief may be granted. (Doc. # 51, at 43-48; Doc. # 125, at
33-49.) Undisputed material facts now show that Plaintiffs
are entitled to judgment as a matter of law on those claims.
State is entitled to summary judgment on the Fourteenth
Amendment claims. Though the court found before that
Plaintiffs alleged valid claims under the Fourteenth
Amendment (Doc. # 51, at 21-28, 33-40; Doc. # 125, at 17-20,
24-32), the facts in discovery do not bear out those claims.
Doe 3 and Doe 7 lack standing to challenge the
minor-cohabitation rule because the relatives they want to
live with also live within 2, 000 feet of schools and
childcare facilities. As for the employment exclusion zones,
Plaintiffs have not been affected by any vagueness in that
part of the statute. Some Plaintiffs are disabled, and others