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Doe v. Marshall

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

February 11, 2019

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.



         The 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.

         The 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.

         This 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.


         The court has subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue.


         To 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 Cir. 2010).

         A party 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).

         “Cross-motions 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).


         ASORCNA 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.”

         A. The Challenged Statutory Provisions

         The 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.

         ASORCNA 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, [1]offenders are subject to the Act's requirements for life. Id. § 15-20A-3(b).

         1. Reporting Requirements

         Offenders 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 internet use.

         Offenders 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.

         2. Residency Restrictions

         ASORCNA 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).

         ASORCNA 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. § 15-20A-11(d)(1)-(5).

         Deciphering 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).

         ASORCNA 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).

         3. Employment Restrictions

         ASORCNA 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. § 15-20A-13(a).

         These 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. § 15-20A-25(f).

         4. Branded Identification

         ASORCNA 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).

         The Act 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 28.)

         5. Penalties for ASORCNA Violations

         ASORCNA's 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.

         The 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).

         B. The Plaintiffs

         In 1992 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, 22, 32-33.)

         John 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, 156-3.)

         John 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.)

         John 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.)

         John 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.)

         C. Procedural History

         Plaintiffs 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.)

         Count 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.)

         Count 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).

         Counts 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.)

         Count 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.)

         Now 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.


         Plaintiffs 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.

         But the 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 concede ...

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