Hughley v. King et al (INMATE2)

Filing 5

REPORT AND RECOMMENDATIONS re MOTION for Preliminary Injunction filed by Johnny Hughley; The Motion for preliminary injunction doc. 1 ) filed by plaintiff be denied; 2) This case be referred back to the undersigned for additional proceedings; Objections to R&R due by 4/8/2009. Signed by Honorable Terry F. Moorer on 3/27/09. (vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ J O H N N Y HUGHLEY, #10208-002, Plaintiff, v. T R O Y KING, ATTORNEY GENERAL, e t al., D e f e n d a n ts . ____________________________ * * * * * 2:09-CV-219-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is is a 42 U.S.C. § 1983/Bivens1 action in which Plaintiff, a federal inmate and co n v icted sex offender, asserts that the Alabama Community Notification Act, Ala. Code 1 9 7 5 § 15-20-20, et seq. (1975, as amended) [hereinafter "the Act" or "ACNA"], is u n c o n stitu tio n a l as applied to him. Specifically, Plaintiff complains that application of the A c t infringes upon his constitutional right to due process. This case is currently before the co u rt on Plaintiff's motion for preliminary injunction in which he requests that the court proh ibit enforcement of the Act's registration and community notification provisions pending re so lu tio n of this lawsuit. For the reasons set forth below, the court concludes that

1 A § 1983 suit challenges the constitutionality of the actions of state officials; a Bivens suit challenges the constitutionality of the actions of federal officials. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). "The effect of Bivens was, in essence, to create a remedy against federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials." Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980). Thus, courts generally apply § 1983 law to Bivens cases. E.g., Butz v. Economou, 438 U.S. 478, 500 (1978).

P la in tif f 's motion for preliminary injunction should be denied. I. THE COMPLAINT P la in tif f complains that Defendants, who "are not lawyers and ha[ve] little or no s p e c ia liz e d training in the law[,]" have determined that he is subject to the ACNA. Plaintiff m a in ta in s that the process by which state law enforcement officials have determined that he is subject to the Act is constitutionally inadequate as he has never received notice or a h e a rin g that he is subject to the Act's provisions and further contends that Act is applied on a n "ad hoc" basis. (Doc. No. 1.) II. DISCUSSION A . The Alabama Community Notification Act T h e ACNA became effective in 1996 but has since been amended on several o c c as io n s to address various constitutional challenges presented to the Act itself and similar v e rs io n s of Megan's Laws adopted by other states.2 The ACNA nevertheless remains one o f the most far-reaching and restrictive sex offender registration laws in the United States as it requires adults convicted of various sex offenses, regardless of the date of their

"In response to the 1994 abduction, rape, and murder of a seven-year-old girl, Megan Kanka, by her neighbor, a convicted sex offender, Congress along with all 50 states enacted laws requiring sex offenders to register their residence with local law enforcement. See Smith v. Doe, 538 U.S. 84, 89-90, 123 S.Ct. 1140, 1145, 155 L.Ed.2d 164 (2003). Concerned by Megan's murder and the high number of repeat sex offenders, states enacted these laws for the purpose of notifying the public about local sex offenders and to aid law enforcement in identifying and locating potential suspects in local sex-related crimes. See Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4 (2003)." Doe v. Moore, 410 F.3d 1337, 1340 (11th Cir.), cert. denied, John Doe I v. Moore, 546 U.S. 1003 (2005). The Community Notification Act is Alabama's version of such a law.

2

2

c o n v ic tio n (s ), to register with law enforcement officials prior to their release into society,3 A la . Code § 15-20-22, and upon a change in their legal residence. Ala. Code § 15-20-23. T h e Act also mandates that law enforcement officials notify members of the public whenever a registered offender establishes a residence in their community.4 Additionally, the Act p la c e s significant restrictions on where and with whom a registrant may live and work. Ala. C o d e § 15-20-26. i. Applicability of Act " A person convicted of a criminal sex offense [listed in § 15-20-21(4)], including a p e rs o n who has pleaded nolo contendere to a criminal sex offense, regardless of whether a d ju d ic a tio n was withheld" is considered an adult criminal sex offender under Alabama law su b jec t to the Act's registration, notification, residency and employment provisions upon his

3 The Act defines release as "[r]elease from a state prison, county jail, or municipal jail, or release or discharge from the custody of the Department of Youth Services or other juvenile detention, or placement on an appeal bond, probation or parole or aftercare, or placement into any facility or treatment program that allows the offender to have unsupervised access to the public." Ala. Code § 15-20-21(10).

Alabama law likewise requires that "any person, except a delinquent child, ... residing in Alabama, [who] has heretofore been convicted, or shall be convicted in any state or municipal court in Alabama, or federal court, or so convicted in another state in any court having jurisdiction similar to the jurisdiction of state and municipal courts in Alabama for [any act of sexual perversion involving a member of the same or the opposite sex, any sexual abuse of any member of the same or the opposite sex, rape, sodomy, sexual misconduct, indecent exposure, promoting prostitution, obscenity, incest or the attempt to commit such offenses], ... shall, upon his or her release from legal custody, register with the sheriff of the county of his or her legal residence within seven days following such release.... For purposes of this article, a conviction includes a plea of nolo contendere, regardless of whether adjudication was withheld. Any person having been so convicted shall upon moving his legal residence from one county to another register with the sheriff of the county to which he has moved within seven days after such removal." Ala.Code 1975 § 13A-11200(b)-(c). The Community Notification Act does not "preclude any criminal sex offender from registering in accordance with Section 13A-11-200" but directs that "such registration unless otherwise proscribed by this article does not trigger public notification." Ala. Code § 15-20-33(c).

4

3

re le a s e into society. Ala. Code § 15-20-21(1).5 The statute identifies "criminal sex offense" a s any of the following offenses: rape, sodomy, sexual torture, sexual abuse, enticing a child f o r immoral purposes, promoting prostitution, violation of the Alabama Child Pornography A c t,6 kidnapping of a minor (except by a parent), incest (when the offender is an adult and th e victim is a minor), and soliciting a child by computer for purposes of committing a sexual a c t and transmitting obscene material to a child by computer in violation of the criminal code. Ala. Code § 15-20-21(4)a-j. "Any solicitation, attempt, or conspiracy to commit any of the [ a f o re m e n tio n e d ] offenses" is likewise a "criminal sex offense" under the Community N o tif ic a tio n Act, Ala. Code § 15-20-21(4)k., as is "[a]ny crime committed [in another] ju ris d ic tio n , which, if it had been committed in this state under the current provisions of law, w o u ld constitute an offense" defined in the Alabama Community Notification Act as a c rim in a l sex offense. Ala. Code § 15-20-21(4)l. Additionally, the Act provides that "[t]he f o re g o in g notwithstanding, any crime committed in any jurisdiction which, irrespective of th e specific description or statutory elements thereof, is in any way characterized or known a s rape, sodomy, sexual assault, sexual battery, sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking

The Act does not exempt convictions based on their date of imposition and therefore applies to any person previously convicted of a criminal sex offense regardless of when the sex offense conviction occurred.
6 The Alabama Child Pornography Act proscribes: (1) the dissemination or public display of child pornography, 1975 Ala.Code § 13A-12-191; (2) the possession of, and possession with intent to disseminate, child pornography, id. § 13A-12-192; and (3) the production of child pornography, id. § 13A-12-196 and § 13A-12-197. This Act defines a child as a person under the age of 17 years.

5

4

in d e c en t liberties with a child, or molestation of a child" is considered a "criminal sex o f f e n s e " for purposes of applying the Community Notification Act to an offender. Ala. Code § 15-20-21(4)m (emphasis added). If a person is deemed to have committed a criminal sex offense under the concomitant ju ris d ic tio n provision set forth in § 15-20-21(4)l., he is provided an administrative hearing to challenge that determination. Ala. Code § 15-20-38(a). However, once the Alabama D e p a rtm e n t of Public Safety "set[s] forth a listing of offenses from other jurisdictions that a re to be considered criminal sex offenses under Section 15-20-21(4)l. [as directed by the A c t] ... any individual convicted of any offense set forth in the listing shall immediately be s u b je c t to this article and shall not be entitled to an administrative hearing as [previously] p ro v id e d ...." Ala. Code § 15-20-38(b). Application of the Act's provisions is unlimited in d u ra tio n to an adult criminal sex offender. Ala. Code § 15-20-33(a) ("Any adult criminal sex o f f en d e r shall be subject to this article for life."). With respect to a juvenile criminal sex o ff en d er residing in this state, the offender is "subject to this article for a period of ten years f ro m the last date of release. A juvenile criminal sex offender who is subsequently convicted a s an adult criminal sex offender within the ten-year period shall be considered solely an a d u lt criminal sex offender." Ala. Code § 15-20-33(b). ii. Registration of Criminal Sex Offenders F o rty-fiv e days prior to release from custody, a criminal sex offender must "declare in writing or by [approved] electronic means . . . the actual address at which he or she will

5

re s id e or live upon release and the name and physical address of his or her employer, if any.7 A n y failure to provide timely and accurate declarations shall constitute a Class C felony. A n y adult criminal sex offender in violation of this section shall be ineligible for release on p ro b a tio n or parole." Ala.Code § 15-20-22(a)(1). The Act requires that the responsible agency notify law enforcement officials of the re g is te re d sex offender's address. Ala. Code § 15-20-22(a)(2)-(3). "The notification shall in c lu d e all information available to the responsible agency which would be necessary to iden tify and trace the adult criminal sex offender, including, but not limited to, the offender's d e c la re d places of residence and employment, each sex offense history or pre-sentence in v e stig a tio n of the sex offense, fingerprints, and a current photograph of the adult criminal s e x offender." Id. Registration also applies to criminal sex offenders who are convicted after th e effective date of the Act but who are not sentenced to a term of incarceration. Ala. Code § 15-20-22(b). If a sentencing court does not impose a sentence of incarceration for a c rim in a l sex offense, the court itself must register the offender with law enforcement officials w ith in 24 hours of release. Id. The Act requires a registered sex offender to verify his address shortly after release a n d then annually thereafter. Ala. Code §15-20-24(a). Within 10 days of receipt of a v e rif ica tio n form sent by the Alabama Department of Public Safety, an offender "shall p re se n t in person the completed verification form" to appropriate local law enforcement
According to records maintained by the Bureau of Prisons, Plaintiff is due to be release from federal custody on September 13, 2009. Available at http://www.bop.gov.
7

6

o f f ic ia ls "who shall obtain fingerprints and a photograph...." Ala. Code § 15-20-24(b). All a d u lt criminal sex offenders are required to notify law enforcement officials of their intent to transfer legal residence or place of employment at least 30 days prior to any change in e ith e r such status. Ala. Code § 15-20-23 and Ala. Code § 15-20-23.1. iii. Community Notification T h e Act provides for mandatory community notification upon release of a criminal s e x offender and upon receipt by law enforcement officials of the required notice that an o f f e n d e r intends to change his or her legal residence. Ala. Code § 15-20-25(a). The c o m p r e h e n s i v e n e ss of the required notice varies by location. In Birmingham, Huntsville, M o b ile and Montgomery, notice of the sex offender's residence must go out to all residences " w ith in 1,000 feet of the declared residence of the adult criminal sex offender" and to all s c h o o ls and childcare facilities within three miles of such residence. Ala. Code §

1 5 -2 0 -2 5 (a )(1 ). "In all other cities in Alabama with a resident population of 5,000 or more, [ th e designated law enforcement official] shall notify all persons who have a legal residence w ith in 1,500 feet of the declared residence of the adult criminal sex offender and all schools a n d childcare facilities within three miles of the declared residence of the adult criminal sex o f f en d e r, that the adult criminal sex offender will be establishing his or her residence." Ala. C o d e § 15-20-25(a)(2). In all other areas of the state, "the sheriff of the county in which the a d u lt criminal sex offender intends to reside shall notify all persons who have a legal re sid e n c e within 2,000 feet of the declared residence of the adult criminal sex offender, and

7

a ll schools and child care facilities within three miles of the [sex offender's] declared re sid e n c e, that the adult criminal sex offender will be establishing his or her residence." Ala. C o d e § 15-20-25(a)(3). Notification occurs by distribution of a "community notification flyer" via "regular m a i l or hand delivered to all [requisite] legal residences.... In addition, any other method re a so n a b ly expected to provide notification may be utilized, including, but not limited to, p o s tin g a copy of the notice in a prominent place at the office of the sheriff and at the police s ta tio n closest to the declared residence of the released criminal sex offender, publicizing the n o tic e in a local newspaper, or posting electronically, including the Internet, or other means a v a ila b l e ." Ala. Code § 15-20-25(b). The community notification flyer "shall include the f o llo w in g information on the criminal sex offender: Name; actual living address; sex; date o f birth; complete physical description, including distinguishing features such as scars, birth m a rk s, or any identifying physical characteristics; and a current photograph. This

n o tif ic a tio n shall also include a statement of the criminal sex offense for which he or she has b e e n convicted, including the age and gender of the victim, the geographic area where the o f f e n se occurred, and the date upon which the criminal sex offender will be released. This n o tif ic a tio n shall also include a statement that the same information is on file [with local law e n f o rc e m e n t officials], and that the information will be available to the general public for in s p e c tio n and identification purposes during regular business hours." 1 5 -20 -21 (3). Ala. Code §

8

iv . Legislative Intent In an amendment to the ACNA effective September 1, 1999, with the last paragraph a d d e d by amendment on October 1, 2005, the Alabama legislature expressed its intent in p a s s in g the Act. Ala. Code § 15-20-20.1. This section, in pertinent part, states that: T h e Legislature finds that the danger of recidivism posed by criminal sex o f f e n d e r s and that the protection of the public from these offenders is a p a ra m o u n t concern or interest to government. The Legislature further finds th a t law enforcement agencies' efforts to protect their communities, conduct in v e stig a tio n s , and quickly apprehend criminal sex offenders are impaired by th e lack of information about criminal sex offenders who live within their ju risd ictio n and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend, a n d prosecute criminal sex offenders. T h e system of registering criminal sex offenders is a proper exercise of the s ta te 's police power regulating present and ongoing conduct. Comprehensive re g is tra tio n and periodic address verification will provide law enforcement w ith additional information critical to preventing sexual victimization and to re so lv in g incidents involving sexual abuse and exploitation promptly. It will a llo w them to alert the public when necessary for the continued protection of th e community. P e rs o n s found to have committed a sex offense have a reduced expectation of p riv a c y because of the public's interest in safety and in the effective operation o f government. In balancing offender's due process and other rights, and the in te re sts of public security, the Legislature finds that releasing information a b o u t criminal sex offenders to law enforcement agencies and, providing a c ce ss to or releasing such information about criminal sex offenders to the g e n e ra l public, will further the primary government interest of protecting v u ln e ra b le populations and in some instances the public, from potential harm. T h e Legislature further finds that residency and employment restrictions for c rim in a l sex offenders provide additional protections to vulnerable segments o f the public such as schools and child care facilities. *** T h e re f o re , the state policy is to assist local law enforcement agencies' efforts 9

to protect their communities by requiring criminal sex offenders to register, re c o rd their address of residence, to be photographed, fingerprinted, to a u th o riz e the release of necessary and relevant information about criminal sex o f f e n d e rs to the public, to mandate residency and employment restrictions u p o n criminal sex offenders, and to provide certain discretion to judges for a p p lic a tio n of these requirements as provided in this article. T h e Legislature declares that its intent in imposing certain reporting and m o n ito rin g requirements on criminal sex offenders and requiring community n o tific a tio n of the residence and workplace of criminal sex offenders is to p r o te c t the public, especially children, from convicted criminal sex offenders. B . The Plaintiff A tta c h ed to Plaintiff's complaint is a copy of his guilty plea transcript entered in State o f Alabama v. Johnny Hughley, CC-87-116. The transcript shows that Plaintiff entered a p lea of guilty to second degree rape on November 30, 1988 in the Circuit Court for Chambers C o u n ty. The trial court imposed on Plaintiff a three-year term of imprisonment. (Doc. No. 1 at attachments.) This conviction subjects Plaintiff to the Alabama Community Notification A c t upon his release from prison. C . Standard of Review T h e decision to grant or deny a preliminary injunction "is within the sound discretion o f the district court...." Palmer v. Braun, 287 F.3d 1325, 1329 (11 th Cir. 2002). T h is court may grant a preliminary injunction only if Plaintiff demonstrates each of the f o llo w in g prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial th re a t of irreparable injury will occur absent issuance of the injunction; (3) the threatened in ju ry to Plaintiff outweighs the potential damage the requested injunction may cause the

10

n o n - m o v i n g parties; and (4) the injunction would not be adverse to the public interest. P a lm e r, 287 F.3d at 1329; McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 Cate v. O ld h a m , 707 F.2d 1176 (11 th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 6 9 7 F.2d 1352 (11 th Cir. 1983). " In this Circuit, `[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the "burden of persuasion"' as to the four r e q u i s it e s ." McDonald's, 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda M e m o r ia l Hospital, Inc., 887 F.2d 1535, 1537 (11 th Cir. 1989) (a preliminary injunction is iss u e d only when "drastic relief" is necessary); Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 1 7 9 (5 th Cir. 1975) (grant of preliminary injunction "is the exception rather than the rule," a n d movant must clearly carry the burden of persuasion). The moving party's failure to d e m o n s tra te a "substantial likelihood of success on the merits" may defeat the party's claim, re g a rd le s s of the party's ability to establish any of the other elements. Church v. City of H u n tsv ille , 30 F.3d 1332, 1342 (11 th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163, 1 1 7 6 (11 th Cir. 2000) (noting that "the absence of a substantial likelihood of irreparable in ju ry would, standing alone, make preliminary injunctive relief improper"). "`The chief f u n c ti o n of a preliminary injunction is to preserve the status quo until the merits of the co n tro v ersy can be fully and fairly adjudicated.' Northeastern Fl. Chapter of Ass'n of Gen. C o n tr a c to rs of Am. v. City of Jacksonville, Fl., 896 F.2d 1283, 1284 (11 th Cir.1990)." S u n tr u s t Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11 th Cir. 2001).

11

It is clear from the requested relief that Plaintiff does not seek issuance of a p re lim in a ry injunction to preserve the status quo of the parties until the merits of his claims h av e been completely adjudicated - which constitutes the limited purpose of a preliminary in ju n c tio n . Suntrust Bank, 268 F.3d at 1265; University of Texas v. Camenisch, 451 U.S. 3 9 0 , 395, 101 S.Ct. 1830, 1834 (1981). Rather, Plaintiff requests preliminary injunctive re lie f to alter the status quo and seeks to obtain relief properly sought upon adjudication of th e merits of the issues presented in this cause of action but prior to such adjudication. i. Likelihood of Success on the Merits P lain tiff challenges application of the ACNA on the ground that its application to him su b jec ts him to a denial of due process. The Due Process Clause of the Fourteenth A m e n d m e n t to the United States Constitution provides that "no State shall ... deprive any p e rs o n of life, liberty, or property, without due process of law." "This provision has been in ter p re ted to have both a procedural and substantive component when reviewing state a c tio n ." Doe v. Moore, 410 F.3d 1337, 1342 (11 th Cir. 2005). Under the facts of this case, th e court finds that Plaintiff has failed to demonstrate a substantial likelihood of success on th e merits of his claims that the Act deprives him of a constitutionally protected interest in v io la tio n of either his procedural or substantive due process rights. Plaintiff asserts that the process by which state law enforcement officials determined th a t he was subject to the ACNA is constitutionally inadequate inasmuch as he was not af fo rde d notice, a hearing, or an opportunity to be heard with respect to the Act's a p p lic a b ility to him. Plaintiff contends that such conduct effectively deprives him of his right

12

to life, liberty, and/or property. Plaintiff further appears to contend that it was the fact of his s u b s e q u e n t incarceration on an offense unrelated to his second degree rape conviction which trig g e re d application of the ACNA to him. (Doc. No. 1 at 4-5.) a. Procedural Due Process "The more common procedural component [of the Due Process Clause] guarantees th a t a state will not deprive a person of life, liberty, or property without some form of notice a n d opportunity to be heard. See Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-49, 1 5 9 L.Ed.2d 578 (2004)." Doe, 410 F.3d at 1342. To succeed on a procedural due process c la im , Plaintiff must establish that (1) the Community Notification Act deprives him of a p rotec ted liberty interest, and (2) the procedures accompanying the deprivation are c o n s titu tio n a lly inadequate. Kentucky Department of Corrections v. Thompson, 490 U.S. 4 5 4 , 460 (1989). Any procedural due process argument Plaintiff seeks to make before this court is f o re c lo s e d by Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7 (2003) as the o n ly relevant fact, i.e., Plaintiff's conviction of a criminal sex offense, is not in dispute. Doe, 4 1 0 F.3d at 1342. Specifically, with respect to an adult's prior conviction for rape and a p p lic a tio n of the restrictive provisions of the Act based on such conviction, any procedural d u e process required prior to deprivation of life, liberty, property or the pursuit of happiness is met through the original proceedings that resulted in the conviction. b. Substantive Due Process T h is substantive component protects fundamental rights that are so "implicit

13

in the concept of ordered liberty" that "neither liberty nor justice would exist if they were sacrificed." See Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S .C t. 149, 152, 82 L.Ed. 288 (1937); McKinney v. Pate, 20 F.3d 1550, 1556 ( 1 1 th Cir.1994) (en banc). Fundamental rights protected by substantive due p r o c e ss are protected from certain state actions regardless of the procedures th e state uses. See Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2 2 5 8 , 2268, 138 L.Ed.2d 772 (1997); McKinney, 20 F.3d at 1556. When a s ta te enacts legislation that infringes fundamental rights, courts will review the la w under a strict scrutiny test and uphold it only when it is "narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302, 113 S .C t. 1439, 1447, 123 L.Ed.2d 1 (1993). The Supreme Court has recognized th a t fundamental rights include those guaranteed by the Bill of Rights as well a s certain "liberty" and privacy interests implicit in the due process clause and th e penumbra of constitutional rights. See Glucksberg, 521 U.S. at 720, 117 S .C t. at 2267; Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1166, 47 L .E d .2 d 405 (1976). These special "liberty" interests include "the rights to m a rry, to have children, to direct the education and upbringing of one's c h ild re n , to marital privacy, to use contraception, to bodily integrity, and to a b o rtio n ." Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267 (citations omitted). T h e Court, however, is very reluctant to expand substantive due process by re c o g n iz in g new fundamental rights, explaining: w e "have always been reluctant to expand the concept of s u b s tan tiv e due process because guideposts for responsible d e c is io n m a k in g in this unchartered area are scarce and o p e n -e n d e d ." By extending constitutional protection to an a ss e rte d right or liberty interest, we, to a great extent, place the m a tte r outside the arena of public debate and legislative action. W e must therefore "exercise the utmost care whenever we are a sk e d to break new ground in this field," lest the liberty p ro tec ted by the Due Process Clause be subtly transformed into th e policy preferences of the members of this Court. G lu c k s b e r g , 521 U.S. at 720, 117 S.Ct. at 2267-68 (citations omitted). D o e , 410 F.3d at 1342-1343. S u b stan tiv e due process does not appear to be implicated with respect to Plaintiff's c h a lle n g e to the dispersal of information as he has failed to demonstrate the existence of a leg itim a te privacy interest in preventing compilation and dissemination of accurate

14

inf o rm atio n that is already, albeit less conveniently, available in the public domain. In re a ch in g this conclusion, the court relies on the Supreme Court's reasoning in Smith v. Doe, 5 3 8 U.S. 84 (2003). "Although the issue presented in Smith was whether Alaska's internet re g is try constituted an impermissible ex post facto statute and the registrants did not raise any p riv a c y claims, the Supreme Court's views as to disclosure of Megan's Law information via th e internet were made abundantly clear. In rejecting the registrants' argument that posting th e ir information on the internet constituted punishment, the Court stated: `[t]he purpose and th e principal effect of notification are to inform the public for its own safety, not to humiliate th e offender. Widespread public access is necessary for the efficacy of the scheme, and the atten d an t humiliation is but a collateral consequence of a valid regulation. 538 U.S. at [99], 1 2 3 S.Ct. at 1150.' " A.A. ex rel. M.M. v. New Jersey, 341 F.3d 206, 213 (3 rd Cir. 2003). T h e Smith Court likewise determined that any negative consequences resulting from a p p lic a tio n of the registration and notification provisions at issue arose from the actions of th e registrants themselves. "Although the public availability of the information [provided u n d e r the provisions of the Alaska Act] may have a lasting and painful impact on the c o n v ic te d sex offender, these consequences flow not from the Act's registration and d i s se m in a t io n provisions, but from the fact of conviction, already a matter of public r e c o r d . The State [merely] makes the facts underlying the offenses and the resulting c o n v ic tio n s accessible so members of the public can take the precautions they deem n e c es s a ry before dealing with the registrant." Smith, 538 U.S. at 101 (emphasis added). The C o u r t further noted that the nature of the process mitigated against the offenders'

15

c o n s titu tio n a l concerns. Although the Alabama Act allows for personal notification via regular mail or hand d e liv e re d notices to those persons living within extremely close proximity to the convicted s e x offender, "any other method reasonably expected to provide notification may be utilized, in c lu d in g , but not limited to, posting a copy of the notice in a prominent place at the office o f the sheriff and at the police station closest to the declared residence of the released c rim in a l sex offender, publicizing the notice in a local newspaper, or posting electronically, in c lu d in g the Internet, or other means available.... Nothing in this article shall be construed a s prohibiting the Department of Public Safety, a sheriff, or a chief of police from providing c o m m u n ity notification under the provisions of this article electronically or by publication o r periodically to persons whose legal residence is more than the applicable distance from th e residence of an adult criminal sex offender." Ala. Code § 15-20-25(b)-(c). Thus, the vast m a jo rity of "individual[s] seeking the information must take the initial step of going to the D e p a rtm e n t of Public Safety's Web site, proceed to the sex offender registry, and then look u p the desired information. The process is more analogous to a visit to an official archive o f criminal records than it is to a scheme forcing an offender to appear in public with some v isib le badge of past criminality. The Internet makes the document search more efficient, c o st effective, and convenient for [the State's] citizenry." Smith, 538 U.S. at 99. The Alabama legislature articulates its reasoning for the Community Notification as " th e protection of the public from [recidivist criminal sex] offenders.... The system of re g is te rin g criminal sex offenders is a proper exercise of the state's police power regulating

16

p re se n t and ongoing conduct. Comprehensive registration and periodic address verification w ill provide law enforcement with additional information critical to preventing sexual v ic tim iz a tio n and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the c o m m u n ity." Ala. Code § 15-20-20.1. In explaining its rationale for disseminating information about convicted sex offenders a n d establishing residency/employment restrictions, the legislature stated that "[p]ersons f o u n d to have committed a sex offense have a reduced expectation of privacy because of the p u b lic 's interest in safety and in the effective operation of government. In balancing o ff en d er's due process and other rights, and the interests of public security, the Legislature f in d s that releasing information about criminal sex offenders to law enforcement agencies a n d , providing access to or releasing such information about criminal sex offenders to the g e n e ra l public, will further the primary government interest of protecting vulnerable p o p u la tio n s and in some instances the public, from potential harm. The Legislature further f in d s that residency and employment restrictions for criminal sex offenders provide ad d ition al protections to vulnerable segments of the public such as schools and child care f a cilitie s." Ala. Code § 15-20-20.1. Finally, the legislature specifically expressed "that its inten t in imposing certain reporting and monitoring requirements on criminal sex offenders a n d requiring community notification of the residence and workplace of criminal sex o f f e n d e rs is to protect the public, especially children, from convicted criminal sex offenders." Id.

17

I n light of the express intent of the legislature, this court finds that the ACNA is ra tio n a lly related to a legitimate government interest and is, therefore, constitutional. Doe, 4 1 0 F.3d at 1345 ("It has long been in the interest of government to protect its citizens from c rim in a l activity and we find no exceptional circumstances in this case to invalidate the la w ." ). Accordingly, the court concludes that there is a not a substantial likelihood that P la in tif f will succeed on the merits of a substantive due process claim. III. CONCLUSION P l a i n tif f fails to establish a substantial likelihood of success on the merits of his c la im s for relief. The pleadings before the court, therefore, fail to demonstrate that Plaintiff m e e ts each of the prerequisites necessary for issuance of a preliminary injunction. A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The motion for preliminary injunction (Doc. No. 1) filed by Plaintiff be DENIED.

2 . This case be referred back the undersigned for additional proceedings. It is further O R D E R E D that on or before April 8, 2009 the parties may file objections to the R e c o m m e n d a ti o n . Any objection must specifically identify the findings in the

R e c o m m e n d a tio n to which a party objects. Frivolous, conclusive or general objections will n o t be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings in the Recommendation

18

sh a ll bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report a c c e p t e d or adopted by the District Court except upon grounds of plain error or manifest in ju s tic e . Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds S e c u ritie s, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1 2 0 6 (11 th Cir. 1981) (en banc), adopting as binding precedent all decisions of the former F if th Circuit issued prior to September 30, 1981. D o n e , this 27 th day of March 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

19