McGuire v. Marshall et al
MEMORANDUM OPINION AND ORDER GRANTING in part and DENYING in part defs' 35 MOTION to Dismiss as follows: (1) Defendants' motion to dismiss Count 1, which is a First Amendment overbreadth facial challenge, is GRANTED as it relates to ASORCNA's travel restrictions, employment restrictions, in-person reporting/quarterly reporting and fee-payment provisions, branded identification requirements, community notification provision, internet dissemination provision, and loiteri ng provision, as further set out in order; These aspects of Count 1 are DISMISSED with prejudice. However, Plaintiffs are granted leave to file a motion to amend their complaint, on or before 2/1/2021, as further set out in order; (2) Defendants 9; motion to dismiss Count 1 is DENIED as it relates to ASORCNA's residency and minor cohabitation restrictions; Specifically, Plaintiffs have stated a plausible claim that the residency and minor cohabitation restrictions implicate registran ts' First Amendment rights by restricting their access to forums for expression; (3) Defendants' motion to dismiss Count 2, which is a void for vagueness challenge pursuant to the Fourteenth Amendment Due Process Clause, is DENIED in part b ecause Plaintiffs have stated a plausible claim that ASORCNA's employment restrictions are unconstitutionally vague and KLL has stated a plausible claim that that ASORCNA's loitering provision is unconstitutionally vague. The motion to dismiss Count 2 is GRANTED as to McGuire's and JEB's challenge to the loitering provision because they lack standing to challenge that portion of the statute; (4) Defendants' motion to dismiss Count 3, which is an equal protectio n claim, is GRANTED, and this claim is DISMISSED with prejudice; (5) Defendants' motion to dismiss Count 4, which is a facial ex post facto claim, is GRANTED as it relates to registrants convicted before 7/1/2011 (the effective date for the first iteration of ASORCNA) because such claim is barred by the applicable statute of limitations. Defendants' motion to dismiss Count 4 is also GRANTED as it relates to the branded identification provisions of ASORCNA. These claims ar e dismissed with prejudice; (6) Defendants' motion to dismiss Count 4 is DENIED as it relates to registrants convicted before August 1, 2017 (the effective date for ASORCNA's 2017 amendments) because Plaintiffs have stated a plausible claim for relief that the changes to the residency and travel restrictions violate the Ex Post Facto Clause; (7) Defendants' motion to dismiss Count 5, which is a selective enforcement/class-of-one claim pursuant to the Equal Protection Clause, is GRANTED with prejudice as to McGuire and JEB; (8) Defendants' motion to dismiss Count 5 is DENIED as to KLL; further ORDERING that, to the extent plfs seek to add REL and ALC as additional plaintiffs to this lawsuit, that request is DENIED, as further set out in order. Signed by Honorable Judge William Keith Watkins on 1/7/2021. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL A. MCGUIRE, JEB, and
STEVEN T. MARSHALL, et al.,
CASE NO. 2:19-CV-174-WKW
MEMORANDUM OPINION AND ORDER
For the third time in ten years, the constitutionality of the Alabama Sex
Offender Registration and Community Notification Act (“ASORCNA”)—the most
comprehensive and debilitating sex-offender scheme in the nation—is before the
court. ASORCNA applies to adult offenders no matter when or where they were
convicted and affects virtually every aspect of registrants’ lives. They may not live
or work 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. They may not travel outside of
their county of residence for three or more days without notifying law enforcement
of their exact plans. 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 through 15-
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 interests too.
This case is about whether certain ASORCNA provisions violate the First and
Fourteenth Amendments, are unconstitutionally vague, violate the Constitution’s ex
post facto clause, or are selectively enforced. Plaintiffs are three registered sex
offenders covered by ASORCNA. Before the court are Defendants’ motion to
dismiss (Doc. # 35) and Plaintiffs’ response (Docs. # 43, 52). For the reasons below,
Defendants’ motion to dismiss is due to be granted in part and denied in part.
JURISDICTION AND VENUE
The court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343. The
parties do not dispute personal jurisdiction or venue.
STANDARD OF REVIEW
“To survive a motion to dismiss, a 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)). “A claim has facial plausibility 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. This standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that [the]
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “For
purposes of Rule 12(b)(6) review, . . . a court generally may not look beyond the
pleadings.” United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th
The State challenges the court’s subject matter jurisdiction by arguing that
KLL lacks standing to challenge many of ASORCNA’s provisions. The court also
sua sponte questions JEB and McGuire’s standing to challenge other ASORCNA
provisions. An attack on subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) may be either a facial attack or a factual attack. Lawrence v.
Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990) (per curiam). A facial attack
simply challenges the sufficiency of the plaintiff’s jurisdictional allegations, which
are taken as true. Id. at 1529. Factual attacks challenge “the existence of subject
matter jurisdiction in fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered.” Id. (quoting Menchaca
v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). All questions
regarding Plaintiffs’ standing can be resolved on the face of the complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Michael McGuire, JEB, and KLL bring facial and as-applied claims
to ASORCNA in its entirety and to many of its specific provisions. They invoke the
protections of the First Amendment, void for vagueness doctrine, the Fourteenth
Amendment’s Equal Protection Clause, and the Ex Post Facto Clause. Defendants
move to dismiss based on 1) standing, 2) res judicata (for JEB and McGuire’s
claims), 3) the statute of limitations, 4) the court’s discretion to decline a declaratory
judgment action, and 5) the merits.
A. Statutory Framework
As described in Doe 1 v. Marshall, “the State of Alabama enacted its first sexoffender statute over five decades ago.” 367 F. Supp. 3d 1310, 1319 (M.D. Ala.
2019) (citing Ala. Act No. 1967-507) [hereinafter Doe 1]. “That law required
offenders to submit their name to their county sheriff, and only law enforcement
could access that roster.” Id. (citing Ala. Act No. 1967-507 §§ 1, 2). Since then,
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) [hereinafter McGuire 1]; Doe v. Pryor, 61 F. Supp. 2d 1224, 1226–29 (M.D.
Ala. 1999). The current statute, ASORCNA, comprises mostly 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 of a crime in another
jurisdiction if that jurisdiction “requires that anyone convicted of that crime register
as a sex offender,” id. § 15-20A-5(37), and to “[a]ny offender determined in any
jurisdiction to be a sex offender,” id. § 15-20A-5(38). 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 its other narrow exceptions, offenders are
subject to ASORCNA’s requirements for life. Id. § 15-20A-3(b).
1. Duty to Register and Reporting Requirements
Offenders must register with law enforcement 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 a volunteer position, or attends school. Id. 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. § 1520A-7(a)(4)–(8).
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. § 15-20A10(e)(1). Changes to phone numbers may be reported in-person, online, or over the
phone, “as required by the local law enforcement agency.” Id.
Law enforcement uses this information to establish a registry, which it makes
available to the public. 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.
2. Residency, Travel, 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. Id. § 15-20A11(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-feet exclusion zone is measured in
a straight line from nearest property line to nearest property line. Id. § 15-20A11(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)).
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.1 “Residence” is
defined as “[a] fixed residence . . . or other place where the person resides, regardless
Set out in full, the four relevant provisions read as follows:
(6) FIXED RESIDENCE. A building or structure, having a physical address or
street number, that provides shelter in which a person resides.
(14) OVERNIGHT VISIT. Any presence between the hours of 10:30 p.m. and 6:00
(20) RESIDE. To be habitually or systematically present at a place. Whether a
person is residing at a place shall be determined by the totality of the circumstances,
including the amount of time the person spends at the place and the nature of the
person’s conduct at the place. The term reside includes, but is not limited to,
spending more than four hours a day at the place on three or more consecutive days;
spending more than four hours a day at the place on 10 or more aggregate days
during a calendar month; or spending any amount of time at the place coupled with
statements or actions that indicate an intent to live at the place or to remain at the
place for the periods specified in this sentence. A person does not have to conduct
an overnight visit to reside at a place.
(21) RESIDENCE. A fixed residence as defined by Section 15-20A-4 or other place
where the person resides, regardless of whether the person declares or characterizes
such place as a residence.
Ala. Code § 15-20A-4.
of whether the person declares or characterizes such place as a residence.” Id. § 1520A-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 catchall, 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. §§ 1520A-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(f).
This provision further precludes sex offenders from working at any facility or
organization that provides services primarily to children. Id. § 15-20A-13(a). These
employment restrictions apply regardless of whether the sex offender’s victim was
a minor child. “Employment” includes volunteer work and part-time work, but not
“time spent traveling as a necessary incident to performing the work.” Id. § 15-20A4(5). There is no preapproval “safe harbor” for the 2,000-feet 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).
If a registrant intends to leave his county of residence for a period of three or
more consecutive days, he must complete a travel notification document and provide
the details of his travel plans. Id. § 15-20A-15.
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”
ASORCNA. Id. § 15-20A-44(c). ALEA, in turn, has required the face of the
identification cards to bear the inscription “CRIMINAL SEX OFFENDER” in bold,
red letters. (Compl. ¶ 59.) 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).
They may not “mutilate, mar,
reproduce, alter, deface, disfigure or otherwise change the form of any” state-issued
identification. Ala. Code § 15-20A-18(e).
According to the operative Complaint, the State has initiated partial
voluntarily cessation of this requirement in the wake of this court’s final decision in
Doe 1. (Compl. ¶ 62.) In the final Doe 1 opinion, this court found that the
“CRIMINAL SEX OFFENDER” designations were unconstitutionally compelled
speech as applied to the Doe plaintiffs. Doe 1, 367 F. Supp. 3d at 1324–27. As
alleged, the State has changed its manner of enforcing the branded identification
requirement, allowing the Doe plaintiffs and at least some other registrants,
including McGuire, to exchange their old licenses for new ones that use a numbered
code to signal to law enforcement that the license-holder is a sex offender. (Compl.
ASORCNA prohibits any adult sex offender who has been convicted of a sex
offense involving a minor from loitering “on or within 500 feet of the property line
of any property on which there is a school, childcare facility, playground, park,
athletic field or facility, school bus stop, college or university, or any other business
or facility having a principal purpose of caring for, educating, or entertaining
minors.” Ala. Code § 15-20A-17(a)(1). To loiter is defined as “to enter or remain
on property while having no legitimate purpose or, if a legitimate purpose exists,
remaining on that property beyond the time necessary to fulfill that purpose.” Id. §
15-20A-17(a)(2). The statute is not violated unless the registrant “has first been
asked to leave a prohibited location by a person authorized to exclude the adult sex
offender from the premises.” Id. “An authorized person includes, but is not limited
to, any law enforcement officer, security officer, any owner or manager of the
premises, a principal, teacher, or school bus driver if the premises is a school,
childcare facility, or bus stop, a coach, if the premises is an athletic field or facility,
or any person designated with that authority.” Id.
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 § 15-20A10(j). Offenders are liable only if they “knowingly” violate the law, however. Id.
The 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).
1. Plaintiff Michael McGuire
Once more unto the breach goes Michael McGuire, who is “well known by
this Court as he was the Plaintiff in McGuire I.” (Compl. ¶ 5.) McGuire was the
sole plaintiff in McGuire I, No. 2:11-cv-1027-WKW (M.D. Ala.), which proceeded
to a bench trial and culminated in findings that ASORCNA’s former requirements
1) that homeless registrants who live in municipalities report weekly in-person to
two separate law-enforcement jurisdictions and 2) that all in-town registrants seek
unconstitutional under the Ex Post Facto Clause. McGuire v. Strange, 83 F. Supp.
3d 1231, 1271 (M.D. Ala. 2015). McGuire filed this suit as the sole plaintiff on
March 11, 2019 (Doc. # 1), amended his complaint (Doc. # 9), and then was granted
leave to file a second amended complaint with additional co-plaintiffs (Doc. # 30).
Mr. McGuire is a 64-year-old adult registrant of ASORCNA who lives in the
Middle District of Alabama. In 1985, Mr. McGuire was convicted in Colorado of
sexual assault of his 30-year-old girlfriend. After his release from prison four years
later, McGuire paroled to the Washington D.C. area, where he worked as a musician
and cosmetologist. (Compl. ¶¶ 70–73.) “He was not required to register as a sex
offender after serving his prison sentence and parole. . . . Mr. McGuire returned to
his hometown, Montgomery, Alabama to care for his ailing mother in 2010.”
(Compl. ¶¶ 74, 76.) He moved in with his mother and then voluntarily visited the
Montgomery Police Department to confirm his belief that he was not subject to
Alabama’s sex offender law. The Montgomery Police Department required Mr.
McGuire to register as a sex offender and gave him five days, under felony threat,
to move from his mother’s “non-compliant” home. (Compl. ¶¶ 77–78.)
His complaint alleges a wide variety of injuries under ASORCNA, some of
which will be addressed or elaborated on in later sections. He is currently homeless.
(Compl. ¶ 138.) Because of ASORCNA’s residency restrictions and prohibitions on
overnight visits with minors, he has limited the time spent at his brother’s home, at
family gatherings, and with his wife. (Compl. ¶¶ 88–94.) Because of ASORCNA’s
employment restrictions and its alleged vagueness, Mr. McGuire has turned down
opportunities to engage in musical performances on a paid and volunteer basis.
(Compl. ¶¶ 95–105.)
He alleges that ASORCNA’s residency, travel, and
employment restrictions interfere with his ability to participate in his church’s
ministries. (Compl. ¶¶ 108–14.) The travel provisions limit his ability to engage in
spontaneous weekend trips because he cannot obtain law enforcement permission
on Friday evenings or weekends, and ASORCNA’s twenty-one-day notification
requirement for international travel burdens his ability to visit his brother in
Germany. (Compl. ¶¶ 117–122.) Additionally, he alleges that he encountered
burdensome delays and administrative hurdles during the process of exchanging his
word-branded driver’s license for a code-branded license. (Compl. ¶¶ 123–33.)
2. Plaintiff JEB
JEB is also familiar to this court as John Doe #7 in the Doe 1 litigation.
(Compl. ¶ 6.) He is an adult ASORCNA registrant living in the Middle District of
Alabama. (Compl. ¶ 149.) In 1987, JEB pleaded guilty to second-degree sodomy
of an adult jail inmate and registered as a sex offender upon his release from prison
in 2011. Most of his allegations center on Chilton County Investigator Derrick
Bone, who was not permitted to be joined as a defendant in this action. (Doc. # 30.)
He alleges that Bone harassed him and twice caused him to be arrested in mid-2018
for violating ASORCNA’s residency and reporting provisions. (Compl. ¶¶ 151–68.)
He alleges that he was arrested again due to a legally deficient bond revocation
warrant on October 15, 2018, and that he was eventually released on bond on June
13, 2019. (Compl. ¶¶ 177–82.)
Mr. JEB is afraid that he will be arrested again by law enforcement for
any of the many ways he can be unjustly deemed by Bone to have
violated ASORCNA’s restrictions; for failing to report his daily choices
in people or places he visits; places where he can obtain work; or, any
combination of ASORCNA’s residency, employment, travel and in
person reporting restrictions and requirements.
(Compl. ¶ 183.)
In addition to these arrest-related allegations, JEB alleges that he has turned
down construction work because he does not know where he may obtain
employment. (Compl. ¶¶ 184–87.) “JEB currently carries an Alabama driver’s
license branded with CRIMINAL SEX OFFENDER on its face. He is offended by
the label and wishes to have the brand removed from his license now.” (Compl.
¶ 188.) JEB registers quarterly with his county sheriff’s office and pays $10 during
each registration event. (Compl. ¶ 189.)
3. Plaintiff KLL
Plaintiff KLL is the only plaintiff who, to this court’s knowledge, has not
previously challenged ASORCNA. He is an adult ASORCNA registrant residing in
the Northern District of Alabama. (Compl. ¶ 191.) KLL lived in Louisiana when
he was charged with and convicted of contributing to the delinquency of a juvenile
under La. Rev. Stat. Ann. § 14:92(A)(7)2 for sexual conduct that occurred when he
was 18 and his victim was 16. (Id. ¶¶ 192–96.) KLL pleaded guilty to this charge
in 2012. (Id. ¶ 198.) He alleges that he was not required to register as a sex offender
“after accepting the plea agreement.” (Id. ¶ 198.)
However, he later had his
probation revoked for violations of his probation’s residency terms, and upon his
release from prison in 2014, KLL was required to register under Louisiana’s sex
offender law. (Id. ¶¶ 198–99, 201.)
Throughout their Complaint and Response, Plaintiffs incorrectly refer to KLL’s crime of
conviction as a violation of “La. Rev. Stat. § 14:92(7).” (Compl. ¶¶ 198, 201, 415; Doc. # 43,
at 62, 108.) The correct citation is La. Rev. Stat. § 14.92(A)(7). See La. Rev. Stat. § 14:92(A)(7)
(defining contributing to the delinquency of juveniles as “the intentional enticing, aiding,
soliciting, or permitting, by anyone over the age of seventeen, of any child under the age of
seventeen . . . to . . . perform any sexually immoral act”). This provision is the only subsection (7)
in that code section and accords with KLL’s description of his crime.
KLL was required to register under ASORCNA upon moving to the state in
2015. (Id. ¶¶ 203–04.) He alleges he was required to register under Alabama Code
§ 15-20A-5(38) (id. ¶ 204), which requires anyone determined to be a “sex offender”
under another state’s law to register under ASORCNA. KLL alleges that his offense
conduct would not have been a crime in Alabama, which only criminalizes
consensual sexual behavior with victims under the age of 16. (Id. ¶ 201.)
KLL alleges a variety of injuries under ASORCNA, some of which will be
detailed or elaborated on in subsequent sections. He alleges that until July 2018, he
was required to register both with a city police department and a county sheriff’s
office. (Id. ¶¶ 205–06); see also Ala. Code §§ 15-20A-10(f) (requiring quarterly, inperson registration with “local law enforcement”); 15-20A-4(12) (defining “local
law enforcement” to include both the sheriff of the county and the chief of police of
the municipality where the sex offender resides). However, KLL moved in July
2018 and now registers only with the sheriff of his county. (Compl. ¶¶ 205–07, 231.)
KLL alleges that his county’s sheriff distributed sex offender community
notification flyers in August 2018. (Id. ¶ 209.) “Members of his church received
the flier and one elder in the church subsequently discovered KLL on the ALEA sex
offender website.” (Id. ¶ 210.) KLL alleges that he is injured by the branded
identification requirement because “[t]h[ose] words and codes on my license is one
[sic] the worst parts. I am not a sex offender and do not agree with anyone labeling
me that way.” (Id. ¶ 211.) When family members who have minor children visit
KLL, he sleeps in his vehicle away from his home to avoid violating ASORCNA’s
prohibition on overnight visits with minors. (Id. ¶¶ 213–14.) KLL alleges he is
unsure whether ASORCNA’s employment restrictions permit collecting abandoned
items on the side of the road in restricted areas for refurbishment and that “he avoids
seeking employment when he does not know if the prospective employment
locations are within ASORCNA’s zones of exclusion.”
(Id. ¶¶ 216–18.)
ASORCNA’s employment, travel notification, and general reporting requirements
often prevent him from accepting out-of-town jobs on short notice. (Id. ¶¶ 219–22.)
KLL alleges that his desires to attend and volunteer his skills to his church are
chilled. He fears that his activities might be construed as having established a
“residence” at his church, which is located within 2,000 feet of a high school. He
cannot volunteer as a craftsman at his church due to ASORCNA’s employment
restrictions and travel notification requirements. (Id. ¶¶ 223–26.) Lastly, KLL
refrains from taking his younger brother to ball fields and does not attend sporting
events at local schools because he does not understand and fears violating
ASORCNA’s anti-loitering provisions. (Id. ¶¶ 227–30.)
Defendants Steven Marshall, Alabama Attorney General, and Hal Taylor,
Secretary of the Alabama Law Enforcement Agency, are sued in their official
capacities. Plaintiffs allege that these are proper defendants “in a case challenging
the constitutionality and enforcement of a state statute.” (Id. ¶¶ 8–9.) Additionally,
Secretary Taylor’s office is responsible for administering ASORCNA’s branded
identification provisions, including determining the nature of the “brand” and
determining how and whether registrants may exchange licenses labeling them as
“CRIMINAL SEX OFFENDER[S]” for a less offensively branded license. (See id.
¶¶ 62–65.) The complaint alleges that “Defendant Taylor currently requires that
registrants shall only obtain non-branded identification at certain ALEA offices in
the state, requiring potentially thousands of registrants to travel beyond the usual
locations where they obtain identification often having to travel several additional
miles to exchange their branded identification.”
(Id. ¶ 64.)
specifically allege in Count 5 that Defendant Marshall is responsible for selectively
enforcing ASORCNA against KLL and for selectively enforcing the reporting and
residency requirements against JEB and McGuire. (Id. ¶¶ 413–17.) Because
Defendants are sued in their official capacities, however, the court refers to them
collectively as “the State of Alabama” or “the State.”
C. Procedural History and Claims
McGuire filed this suit as the sole plaintiff on March 11, 2019. (Doc. # 1.)
He amended his complaint on March 19, 2019. (Doc. # 9.) He was granted leave to
file a second amended complaint, the current operative complaint, with additional
co-plaintiffs on October 29, 2019. (Docs. # 30, 31.)
Count 1 alleges that ASORCNA is facially overbroad and impermissibly
infringes upon Plaintiffs’ freedoms of speech and expressive conduct under the First
It seeks to invalidate ASORCNA in its entirety except for its
application to offenders deemed to be sexually violent predators. (Compl. ¶¶ 398–
99.) Count 2 alleges that ASORCNA’s anti-loitering and employment restrictions
are facially void for vagueness because “they contain language that persons of
ordinary intelligence cannot understand; and/or, leave determinations of violations
to the complete discretion of law enforcement.” (Id. ¶¶ 401–06.) Count 3 alleges
that over a dozen ASORCNA provisions facially and as-applied violate the Equal
Protection Clause because they “infringe upon fundamental rights and liberties or
are not rational and apply regardless of whether registrants are no longer subject to
formal punishment, have not harmed minors or pose no discernable threat to children
. . . .” (Id. ¶ 410.) Plaintiffs imply by their allegations that the Equal Protection
Clause requires treating sex offenders who are no longer subject to formal
punishment, have not harmed minors, and do not pose a threat to children the same
as non-sex offenders—or that the Constitution at least requires individualized risk
assessments of the future risk of recidivism before treating such offenders differently
from non-offenders. (Id. ¶¶ 409–10.)
Court 4 alleges this statutory scheme imposes ex post facto punishment on
Plaintiffs. (Compl. ¶¶ 411–12.) While the Complaint does not label this claim as
facial or as-applied, the Complaint seeks quintessentially facial relief: an injunction
of “the State’s enforcement of [ASORCNA] upon registrants whose convictions
predate August 1, 2017 or alternatively, July 1, 2011.” AFSCME Council 79 v. Scott,
717 F.3d 851, 863 (11th Cir. 2013) (“A facial challenge, as distinguished from an
as-applied challenge, seeks to invalidate a statute or regulation itself.” (quoting
United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000) (quotation marks
omitted))); id. (“Where ‘an injunction . . . reach[es] beyond the particular
circumstances of these plaintiffs,’ it ‘must therefore satisfy [the Supreme Court’s]
standards for a facial challenge to the extent of that reach.’” (quoting Doe v. Reed,
561 U.S. 186, 194 (2010)) (alternations in original)).
Count 5 alleges that Defendant Marshall selectively enforces the statute
against KLL by requiring him to register as a sex offender in Alabama for conduct
that is not criminal in Alabama. Count 5 also alleges that Defendant Marshall
selectively enforces the reporting and residency requirements against JEB and
McGuire (Compl. ¶¶ 414–17), seemingly through ASORCNA’s provision requiring
dual reporting for “in-town” registrants (Compl. ¶¶ 368, 369; Doc. # 43, at 103; Doc.
# 52, at 5–6) and through its homeless reporting requirements (Compl. ¶¶ 358–67).
A. Possible Attempt to Add Plaintiffs
Plaintiffs’ Second Amended Complaint includes allegations related to
ASORCNA registrants “REL” and “ALC.” (Compl. ¶¶ 232–266.) These registrants
do not appear in the style of the Second Amended Complaint, nor are they listed as
plaintiffs in the section denoting the parties to this suit. (Compl. ¶¶ 5–7.) Yet, REL
and ALC submit verifications of the allegations they make in the Second Amended
Complaint. (Doc. # 31-1, at 5–6.) Defendants move for dismissal of these parties
to the extent that Plaintiffs may be attempting to add them. Plaintiffs did not respond
to this argument.
“If the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.” Fed. R.
Civ. P. 41(b) (emphasis added). A district court also “has inherent authority to
manage its own docket ‘so as to achieve the orderly and expeditious disposition of
cases.’” Equity Lifestyle Props. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d
1232, 1240 (11th Cir. 2009) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991)); see also id. at 1241 (“A district court need not tolerate defiance of
reasonable orders.”). The court granted McGuire leave to add only JEB and KLL as
additional plaintiffs (Doc. # 30, at 1), not REL or ALC. Thus, REL and ALC will
not be added as additional plaintiffs to this lawsuit.
Because standing is jurisdictional, the court must address it at the outset.
Defendants have focused their arguments on KLL’s standing because they believe
that all of McGuire’s and JEB’s claims are barred by res judicata. However,
jurisdictional issues must be assessed before procedural issues.
McGuire’s and KLL’s standing will be assessed sua sponte.
Because Article III confers federal court jurisdiction only on cases or
controversies, a federal court lacks subject matter jurisdiction over a complaint that
fails to make plausible allegations of standing. Stalley ex rel. United States v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “The
party invoking federal jurisdiction bears the burden of establishing these elements.”
Lujan v. Defenders of Wildlife, Inc., 504 U.S. 555, 561 (1992). The burden of proof
for establishing standing is the same as the general burden of proof at the pleading
stage: plausibility. See id.
The “irreducible constitutional minimum of standing contains three
elements.” Id. at 560. “First, the plaintiff must have suffered an ‘injury in fact’—
an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.” Id. (citations
omitted). Second, “the injury has to be ‘fairly . . . trace[able] to the challenged action
of the defendant, and not . . . the result [of] the independent action of some third
party not before the court.’” Id. at 560–61 (quoting Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26, 41–42 (1976)). Third, “it must be ‘likely,’ as
opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable
decision.’” Id. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26, 38, 43 (1976)). “For an injury to be ‘particularized,’ it must affect the
plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1548 (2016) (quoting Lujan, 504 U.S. at 560 n.1). “A ‘concrete’ injury must be ‘de
facto’; that is, it must actually exist.” Id. (citation omitted) “[A] plaintiff seeking
prospective injunctive relief must ‘allege facts from which it appears there is a
substantial likelihood that he will suffer injury in the future.’” Stevens v. Osuna, 877
F.3d 1293, 1311 (11th Cir. 2017) (quoting Strickland v. Alexander, 772 F.3d 876,
883 (11th Cir. 2014)).
Plaintiffs’ Complaint and Response contain conclusory standing arguments
asserting that all Plaintiffs have standing to challenge every provision of
ASORCNA, including those that apply “to juveniles, youthful offenders and defacto
[sic] registrants of the statute including parents, guardians and custodians of
juveniles; organizations (e.g., churches) who provide services to primarily to
children; and, family members of ASORCNA registrants.” (Compl. ¶¶ 399(a) &
Plaintiffs’ Response asserts that each Plaintiff has
suffered injuries in fact since the enactment of Ala. Act No. 2017-414
(effective August 1, 2017). The 2017 Act was a ‘substantial re-write’
of ASORCNA, significantly revising provisions and adding new
definitions which changes the way the statute is enforced and, under
which Plaintiffs have suffered harm. Importantly, all Plaintiffs suffer
new injuries each day under ASORCNA proscriptions and chilling of
their First Amendment freedoms.
(Doc. # 43, at 101.)
Plaintiffs specifically allege that their injuries give them standing to challenge
the residency, employment, travel, reporting provisions, and the State’s new branded
identification practices. They assert that “even if the Court determines McGuire
and/or JEB lack standing, the defendants have conceded to KLL’s standing on facial
challenges on overbreadth and vagueness grounds.”
(Doc. # 43, at 102–03.)
(Defendants do not so concede.) Plaintiffs allege that “under First Amendment,
third-party standing doctrine, KLL may challenge the entire statute.” (Doc. # 43, at
102–103.) Lastly, they allege that overbreadth and jus tertii doctrine grant them
standing to represent parties not before the court, such as ASORCNA juveniles and
youthful offenders; parents, guardians and custodians of juveniles; organizations;
and close family members of ASORCNA registrants. (See Compl. ¶¶ 399(a) n.11),
410 n.12.) Allegations of standing should be made of sterner stuff.
Plaintiffs lack standing to challenge every provision of ASORCNA, even in
their overbreadth claim. Except as delineated below, Plaintiffs have not alleged
injuries in fact under every provision of ASORCNA, nor could they likely ever assert
an injury under provisions related to juvenile offenders. As Defendants correctly
alluded to in their opening brief, the overbreadth doctrine “is an exception to the
prudential standing prohibition against jus tertii claims” that allows a plaintiff to
bring an overbreadth claim when provisions of a statute that constitutionally apply
to the plaintiff “might be unconstitutionally applied to third parties not before the
court.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270–71
(11th Cir. 2006) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).
However, this doctrine does not relax the core requirements of constitutional
standing: A plaintiff must “establish injury in fact as to each provision, even under
the overbreadth doctrine.” Id. at 1273; see also id. at 1271 (“A plaintiff who has
established constitutional injury under a provision of a statute as applied to his set
of facts may also bring a facial challenge, under the overbreadth doctrine, to
vindicate the rights of others not before the court under that provision.”). Therefore,
even in an overbreadth claim, Plaintiffs may only challenge provisions that injure
Even with respect to the specific ASORCNA provisions that Plaintiffs have
standing to challenge, they may not assert the rights of third parties as part of their
traditional equal protection claims (Count 3). The Supreme Court has permitted
litigants to bring actions on behalf of third parties “provided three important criteria
are satisfied: The litigant must have suffered an ‘injury in fact,’ . . . ; the litigant
must have a close relation to the third party; and there must exist some hindrance to
the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499
U.S. 400, 410–11 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112 (1976)).
For good reason, the Supreme Court has “not looked favorably upon third-party
standing.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004).
First, third-party standing does not broaden the number of provisions under
which Plaintiffs can claim to have suffered an injury in fact. See Singleton v. Wulff,
428 U.S. 106, 112–13 (1976) (first finding that the physician plaintiffs suffered their
own injury under the challenged statute before assessing whether they could assert
the rights of their plaintiffs who suffered a different kind of injury under the statute).
Second, Plaintiffs’ bare assertion that “all plaintiffs have a substantial
relationship with other registrants of ASORCNA, including other adult registrants,
youthful and juvenile offenders, and parents, guardians and custodians of juveniles
not before the Court” strains comprehension. (Doc. # 43, at 103; see also Compl.
¶ 410 n.12.) Except for the two adult non-parties mentioned in the Complaint, whose
relationship to Plaintiffs is unexplained, Plaintiffs do not allege that they know any
other ASORCNA registrants, let alone plausibly allege any substantial relationships.
Unlike lawyers who have asserted the rights of known clients or doctors who have
asserted the rights of known patients, Plaintiffs “before us do not have a ‘close
relationship’ with” other registrants; “indeed, they have no relationship at all.”
Kowalski, 543 U.S. at 131 (holding that attorneys could not invoke the rights of
hypothetical future clients); see also Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 624 n.3 (1989) (permitting a law firm to challenge a drug forfeiture
statute by invoking the rights of an existing client); Singleton, 428 U.S. at 117–18
(permitting abortion-providing physicians to invoke the rights of patients seeking
abortions). This court need not assess whether the other parties Plaintiffs seek to
represent are hindered in their ability to sue. Plaintiffs’ equal protection claim
(Count 3) may only assert their own rights to challenge the specific provisions of
ASORCNA that they have plausibly alleged injured them.
1. KLL’s Standing
As Defendants correctly concede, KLL may challenge ASORCNA’s
community notification and internet dissemination (§§ 15-20A-8, 21), residency
(§ 15-20A-11, 4(14), 4(20)), employment (§ 15-20A-13), travel (§ 15-20A-15 ), and
loitering provisions (§ 15-20A-17). (Doc. # 36, at 27–28.) KLL may also challenge
the branded identification requirement (§ 15-20A-18), (see id. ¶ 211), and the
registration/reporting and fee requirements (§§ 15-20A-10, 22(a)). (See Compl.
¶ 231 (“KLL currently registers with the Sheriff of his county and pays $10 at each
registration event.”).) KLL has alleged injuries in fact under these provisions that
are traceable to the Defendants (as enforcers of ASORCNA) and redressable by
enjoining the provisions.
KLL may challenge ASORCNA’s retroactive application provision (§ 1520A-3(a)), (see Compl. ¶ 388), even though he may not have been injured by it.
Plaintiffs primarily allege that ASORCNA was applied retroactively to registrants
whose convictions pre-date the 2017 amendments. (Id. ¶ 412.) Defendants argue
that ASORCNA was applied retroactively to registrants whose convictions pre-date
ASORCNA’s 2011 enactment and attacks KLL’s ex post facto claim (based on his
2012 guilty plea) on those grounds. (Doc. # 36, at 50–51.) Because the question of
standing is intertwined with the merits of KLL’s claims, the court must “find that
jurisdiction exists and deal with the objection as a direct attack on the merits of the
plaintiff’s case.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d
1256, 1261 (11th Cir. 1997) (quotation marks omitted) (quoting Williamson v.
Tucker, 645 F.2d 404, 415–16 (5th Cir. 1981)). This question will be addressed in
the context of KLL’s ex post facto claim.
KLL has standing to challenge the lifetime registration requirement (§ 1520A-3(b)) even though the Complaint lacks a particularized allegation that it applies
to him. The Complaint repeatedly alleges that ASORCNA applies for life. (Compl.
¶¶ 321, 397, 412, 17.) At this stage, KLL has plausibly alleged standing to challenge
ASORCNA’s lifetime registration because “[a]t the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we ‘presum[e] that general allegations embrace those specific
facts that are necessary to support the claim.’” Lujan, 504 U.S. 555, 561 (quoting
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
Finally, KLL does not allege any particularized injuries that would allow him
to challenge the relief provisions, but this is ultimately immaterial to the merits of
any challenge to this provision.3 KLL does not have standing to challenge the
provisions of ASORCNA relating to homeless registrants because he is not
homeless, nor does he allege an imminent fear of homelessness. He also does not
have standing to challenge the dual reporting requirement for “in-town” registrants.
While he was subject to this requirement until 2018, he now lives out of town, and
he has not alleged that he is likely to be injured by this provision in the future.
(Compl. ¶¶ 206, 231.)
The closest the Complaint comes to explaining how the relief provisions might injure
KLL is the following statement: “Relief provisions are only available to certain registrants of
ASORCNA. ASORCNA provides minimal provisions for relief for some registrants, while failing
to provide even the possibility for relief for others.” (Compl. ¶ 379.) Plaintiffs’ Response adds
[t]he State does not provide sex offender treatment for offenders who are considered
adults. Yet registrants who may not be able to afford expensive treatment, but are
among the very few eligible for relief, will be at the mercy of a judge who may
decide of [sic] her level of risk for future sexual offenses. Here is an additional
problem for the few relief-eligible offenders. The “considerations” the judge may
base granting relief upon are standardless.
(Doc. # 43, at 78.) But these allegations are not connected to any particular Plaintiff, nor does the
Complaint allege that any Plaintiff has sought relief and encountered any of these potential
roadblocks. Plaintiffs clearly know how to specifically allege an injury: the Complaint states that
McGuire is ineligible for relief (Compl. ¶¶ 17 n.2, 147, 379). KLL’s exclusion from these specific
references undercuts his claim for standing.
2. JEB’s Standing
JEB may challenge ASORCNA’s reporting/registration, reporting fee, travel,
residency, employment, retroactive4 and lifetime registration, community
notification, and internet dissemination requirements. (See Compl. ¶¶ 183, 185–87,
189, 380, 391.) He does not have standing to challenge the relief provisions, intown versus out-of-town reporting discrepancy, loitering provisions, or
homelessness provisions because he alleges no injuries under those provisions. A
few of these findings merit elaboration.
JEB narrowly alleges standing to challenge the residency, travel, and some or
most of the reporting requirements. His complaint alleges that Investigator Bone,
who Plaintiffs were not allowed to add as a Defendant, investigated and arrested him
for alleged violations of the reporting and residency provisions. (Compl. ¶¶ 155–
68.) Therefore, it is not readily apparent how his injuries are fairly traceable to these
Defendants. However, given JEB’s history with law enforcement, he states a
plausible fear of future enforcement.
(Compl. ¶ 183.)
Declaring the law
unconstitutional would remove any threat of enforcement. JEB has plausibly alleged
standing to challenge these provisions because Defendants continue to enforce and
JEB does not state his conviction date in this Complaint. However, the Complaint
generally alleges that all Plaintiffs, including JEB, have been “retroactively captured under the
punitive strictures of ASORCNA.” (Compl. ¶ 88; see also Compl. ¶¶ 389, 390, 393.) This general
allegation suffices at this stage of the litigation. See Lujan, 504 U.S. at 561.
legally defend the law and eliminating the law would eliminate his fears of
JEB may not challenge the relief provisions for the same reason as KLL. See
supra, at n.3. The Complaint specifically alleges that McGuire is ineligible to seek
relief, but it does not make the same claim for JEB.
JEB has standing to challenge the branded identification requirements. He
alleges that he “currently carries an Alabama driver’s license branded with
CRIMINAL SEX OFFENDER on its face. He is offended by the label and wishes
to have the brand removed from his license now.” (Compl. ¶ 188.) The practice that
injured him was declared unconstitutional as-applied to him in Doe # 1. Defendants
claim in their opening brief that he has received a new ID, (Doc. # 36, at 17),
however they have not submitted any public records that could be judicially noticed
so as to corroborate this assertion. Discovery will easily resolve this factual dispute;
thus, JEB is not barred at this time from challenging the branded identification
JEB does not have standing to challenge the in-town/out-of-town or homeless
reporting discrepancies, because he lives out of town, does not allege homelessness,
and is therefore not injured by the discrepancies. (Compl. ¶ 189.) His claim in Count
5 appears to rest on this provision. Count 5 alleges that Defendant Marshall
selectively enforces “the reporting requirements and residential zones of exclusion,
Ala. Code §§ 15-20A-10; -11 facially or, in the alternative, as applied to Mr. JEB.”
(Id. ¶ 417.) This claim cannot be based on JEB’s selective enforcement allegations
against Bone because Defendant Marshall was not involved in those transactions.
Plaintiffs’ Response states that, within Count 5, Plaintiffs “validly claim that, even
within the state-created class of ASORCNA registrants, registrants are treated
disparately for no articulable reason at all (e.g. dual registration, reporting and fees
for ‘in town’ registrants).” (Doc. # 43, at 103.) Consequently, the “in-town” and
homeless discrepancies are the only provisions that can be logically connected with
JEB (and McGuire’s) selective enforcement claim. Because these “discrepancies”
do not injure JEB, JEB’s claim in Count 5 is due to be dismissed for lack of standing.
3. McGuire’s Standing
McGuire has standing to challenge ASORCNA’s retroactivity and lifetime
adherence; community notification and internet dissemination; quarterly registration
requirements; employment restrictions; travel notification; branded identification;
and relief provisions. (See Compl. ¶¶ 88, 103, 106, 115, 116, 119, 125, 379, 380,
391, 393.) McGuire is also the only Plaintiff who has standing to challenge the dual
reporting provisions for “in-town” registrants (§§ 15-20A-10, 4(12)). (See Compl.
¶ 115.) He has not alleged any injuries under ASORCNA’s loitering provision. He
does not have standing to challenge § 15-20A-28, a relief provision that only applies
to juvenile offenders.
McGuire’s claim that law enforcement officers have “charged a $10 weekly
fee when he was homeless in the past, and nothing in the statute prevents his local
law enforcement office from charging him a fee in the future, should they so decide”
(Compl. ¶ 116) alleges an injury in fact, but it is not fairly traceable to Defendants.
McGuire alleges that “ASORCNA provides that as a homeless registrant Mr.
McGuire is required to pay a weekly fee of $10 at his homeless registration events.”
(Id. ¶ 116; see also id. ¶ 26 (citing Ala. Code § 15-20A-22(a) as the source of this
requirement); id. ¶¶ 371–76 (alleging that homeless registrants must pay a minimum
of $520 per year).) But this is legally incorrect. Alabama Code § 15-20A-22(a) only
requires a fee at “the first quarterly registration on or after July 1, 2011, and at each
quarterly registration thereafter.” § 15-20A-22(a). The court interpreted this statute
in the same manner during the McGuire 1 litigation. McGuire 1, 83 F. Supp. 3d at
1256. Therefore, McGuire’s allegation suggests that local law enforcement officers
have misinterpreted the law since the litigation of McGuire 1, which would give rise
to a claim against local officers, not these Defendants. A misinterpretation is not
redressable by a declaration of unconstitutionality.
Therefore, McGuire lacks
standing to challenge a non-statutory weekly homelessness fee.
C. Res Judicata
“The purpose behind the doctrine of res judicata is that the ‘full and fair
opportunity to litigate protects [a party’s] adversaries from the expense and vexation
attending multiple lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent decisions.’” Ragsdale
v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (alteration in original)
(quoting Montana v. United States, 440 U.S. 147, 153–54 (1979)). “Res judicata
bars the filing of claims which were raised or could have been raised in an earlier
proceeding.” Id. (emphasis added). “Under res judicata the effect of a judgment
extends to the litigation of all issues relevant to the same claim between the same
parties, whether or not raised at trial.” Olmstead v. Amoco Oil Co., 725 F.2d 627,
632 (11th Cir. 1984) (internal quotation and citation omitted) (emphasis added).
“[A] party may raise a res judicata defense by motion rather than by answer
where the defense’s existence can be judged on the face of the complaint.”
Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982). The court may also
take judicial notice of the pleadings, orders, and judgment entered in McGuire I and
Doe 1 for purposes of Defendants’ res judicata defense without converting their
motion to dismiss into a motion for summary judgment. See Lobo v. Celebrity
Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013); see also Lozman v. City of Riviera
Beach, 713 F.3d 1066, 1075 n.9 (11th Cir. 2013) (holding that the Circuit could
properly consider court documents from a prior state court action when analyzing a
motion to dismiss on res judicata grounds); Ladd v. City of W. Palm Beach, 681 F.
App’x 814, 816 (11th Cir. 2017) (rejecting the “plaintiff’s argument that, because of
the Fed. R. Civ. P. 12(b)(6) posture of th[at] case, the district court improperly took
judicial notice of the prior state court proceedings” when analyzing a res judicata
argument) (alterations added)). Plaintiffs’ Response did not object to the court’s
taking such notice, and it would be hard to see how they could, as Plaintiffs’
Complaint cites the final opinions in both cases, as well as several other Doe 1
“A subsequent suit is barred under the doctrine of claim preclusion when the
following four elements are present: (1) there is a final judgment on the merits,
(2) the decision was rendered by a court of competent jurisdiction; (3) the same
cause of action is involved in both cases; and (4) the parties, or those in privity with
them, are identical in both suits.” Baloco v. Drummond Co., 767 F.3d 1229, 1246
(11th Cir. 2014). The burden of establishing a claim of res judicata rests on the party
raising it. In re Piper Aircraft Corp., 244 F.3d 1289, 1295, 1296 (11th Cir. 2001).
The parties do not dispute that the first, second, and fourth requirements of
this doctrine are met. The third requirement is hotly contested. “Res judicata is no
defense where, between the first and second suits, there has been a[ ] . . . modification
of significant facts creating new legal conditions.” Manning v. Auburn, 953 F.2d
1355, 1359 (11th Cir. 1992) (alteration in original) (quoting Jaffree v. Wallace, 837
F.2d 1461, 1468 (11th Cir. 1988)). Res judicata “turns primarily on the commonality
of the facts of the prior and subsequent actions,” and those facts must be compared
with precision. In re Piper, 244 F.3d at 1295, 1298. It “does not turn on the nature
of a party’s alternative legal theories.” Id.
When determining whether the causes of action are the same for
purposes of res judicata, we consider “whether the primary right and
duty are the same in each case.” Ragsdale, 193 F.3d at 1239. Although
we have described the “rights and duties” test as the “principal” res
judicata test, id., we have stressed that courts must also consider the
factual context of each case along with the “rights and duties” at
issue. See Manning v. City of Auburn, 953 F.2d 1355, 1359 (11th Cir.
1992) (explaining that it is an “oversimplification” to focus on rights
and duties alone and that we must also compare the factual issues in
each case). In general, even if the rights and duties at issue are distinct,
where a case “arises out of the same nucleus of operative fact, or is
based upon the same factual predicate,” as a former action, the two
cases constitute the same “claim” or “cause of action” for purposes
of res judicata. Ragsdale, 193 F.3d at 1239. When applying the “same
nucleus of operative fact” test, we “look to the factual issues to be
resolved [in the second lawsuit between the parties] and compare them
with the issues explored in [the first lawsuit].” Id. We apply a
pragmatic approach to this analysis by comparing the substance of the
actions, not their form. See id. at 1239 & 1239 n.8.
Batchelor-Robjohns v. United States, 788 F.3d 1280, 1285–1286 (11th Cir. 2015)
(alterations in original). If the critical facts underlying Plaintiffs’ present claims
were never discussed in previous opinions or litigated by the parties, that is powerful
evidence that the cases did not involve the same cause of action. In re Piper, 244
F.3d at 1297.
Essentially, JEB and McGuire can defeat Defendants’ res judicata argument
by showing that 1) new material facts arose after their earlier litigation that give rise
to a claim they could not have brought at that time and/or that 2) an amendment to
the law inflicted a new injury upon them. Plaintiffs cannot avoid res judicata by
merely arguing that the provision Plaintiffs are challenging has changed, even if the
change is significant, nor can they rest on the court’s broad statement in Doe 1 that
the 2017 amendments were a “far-reaching rewrite of the challenged ASORCNA
provisions.” Doe 1 v. Marshall, No. 2:15-cv-606, 2018 WL 1321034, at *2 (M.D.
Ala. Mar. 14, 2018).
Defendants bear the burden of establishing this argument, and to the extent
that Defendants’ arguments fail at this time, those arguments may be renewed in a
later dispositive motion with the assistance of additional facts. While it may appear
inequitable that ASORCNA registrants may change their own circumstances and
then bring new claims to “old” provisions (such as McGuire’s new desires to serve
his church), that risk originated when the State enacted a law that regulates virtually
every aspect of registrants’ lives. ASORCNA has nearly boundless potential to
injure old plaintiffs in new ways.
a. Prior Judgment
McGuire’s previous suit, McGuire I, began on December 2, 2011. McGuire
I, No. 2:11-cv-1027-WKW, ECF Doc. 1. The allegations in McGuire I arise from
McGuire’s 1986 sexual assault conviction in Colorado and his relocation to Alabama
in 2010, where he was required to register as a sex offender under ASORCNA’s
predecessor statute, the Alabama Community Notification Act (ACNA). Id. ¶¶ 17–
30. The first complaint alleged that ACNA negatively impacted his ability to find
housing and employment (id. ¶¶ 38–41, 44–46), his ability to live with his wife (id.
¶ 51), the requirement that he carry a “sex offender identification card” (id. ¶¶ 48,
66), and the publication of his information as a registered sex offender (id. ¶¶ 53–
54). McGuire asserted four constitutional claims and sought to be relieved of his
obligations to comply with ACNA. Id. ¶¶ 79–105. As relevant to the present action,
McGuire made similar allegations and constitutional challenges against the State in
his first and second amended complaints. Id., ECF Docs. # 16, 66.
On February 9, 2012, McGuire filed a third amended complaint, which
became his final operative pleading. See McGuire I, No. 2:11-cv-1027-WKW, ECF
Doc. 74. Count II of the third amended complaint alleged that ASORCNA deprived
McGuire of his “fundamental rights to marry, to travel, to carry on familial
relationships and to privacy” because ASORCNA prevented him from living with
his wife, caring for his mother, and obtaining employment in the Montgomery area.
Id. ¶¶ 87, 94–95. McGuire also claimed his equal protection rights were violated
and asserted an as-applied ex post facto challenge to ASORCNA in its entirety. Id.
The court held that the third amended complaint stated an ex post facto claim
but dismissed all other constitutional claims. See McGuire v. City of Montgomery,
No. 2:11-cv-1027-WKW, 2013 WL 1336882, at *3–12 (M.D. Ala. Mar. 29, 2013).
After a bench trial, the court ruled in McGuire’s favor on ASORCNA’s then-existing
dual weekly in-person reporting requirements for in-town homeless registrants and
dual travel permit requirements for in-town registrants and in the State’s favor on all
other claims. See McGuire v. Strange, 83 F. Supp. 3d 1231 (M.D. Ala. 2015). In its
opinion following the bench trial, the court noted, “Mr. McGuire challenges
ASORCNA’s registration, notification, driver’s license inscription, and registrationfee requirements, as well as its residency, employment, and travel restrictions.”
McGuire, 83 F. Supp. 3d at 1243. The court entered a final judgment on February
5, 2015. McGuire I, No. 2:11-cv-1027-WKW, ECF Doc. 284. The case remains on
appeal. Id., ECF Docs. 287, 291. Still, it is final for res judicata purposes because
“a final judgment retains all of its res judicata consequences pending decision of the
appeal.” Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988) (quoting 18
CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. § 4433, at 308 (1981 & Supp.
b. Present Claims
The Eleventh Circuit requires that district courts first address the “rights and
duties” test, even though the answer is not dispositive. At the highest level of
generality, the rights and duties asserted in the prior and present litigation are similar.
McGuire argues that he has a right not to be unconstitutionally burdened and
restrained by ASORCNA and that the State Defendants have a duty to enforce
ASORCNA in accordance with the Constitution. Because both litigations involved
myriad specifically alleged rights and duties against multiple defendants, some that
are similar to rights alleged here and some that are not, the court will proceed to this
Circuit’s dispositive test: the nucleus of operative fact test.
ASORCNA was substantially amended twice after McGuire I, so the question
presented is whether the 2015 or whether the 2017 amendments or changes in
McGuire’s circumstances give rise to new claims. A few claims are plainly barred.
ASORCNA’s internet dissemination, community notification, and quarterly fee
provisions all applied to McGuire at the time of McGuire 1. (McGuire 1, Doc. # 74,
¶¶ 61, 102, 107, 173; see also McGuire 1, Doc. # 283, at 5–6.) The dual reporting
requirements for “in-town” registrants and the weekly reporting requirements for
homeless5 registrants were central to the final opinion in McGuire 1, which struck
down the dual weekly reporting requirement for homeless registrants but kept in
place the dual quarterly reporting requirement for all in-town registrants. (See
McGuire I, Doc. # 283, at 60–63.) All of McGuire’s challenges to those provisions
are barred by res judicata, and his portion of Count 5, which appears to challenge
the dual quarterly registration and weekly homeless registration requirement, must
McGuire’s challenge to the employment provision is not barred by res judicata
at this time. The 2017 amendments deleted a requirement that registrants report
applications for employment, banned registrants from working at amusement or
water parks, and made cosmetic changes to the language regarding “volunteering.”
See ASORCNA 2017 § 15-20A-13. None of these changes inflicted new injuries on
McGuire, and his allegations that he turns down opportunities to play music are
substantially similar to his allegations in McGuire 1. (See McGuire 1, Doc. # 283,
at 16; Compl. ¶ 95 (citing the final opinion in McGuire 1 for the allegation that “Mr.
McGuire is a musician. He currently uses his musical talents to supplement his fixed
McGuire did not allege that he was homeless in his last complaint in McGuire 1.
However, the combination of his deposition testimony and the timeline of his residences given in
that complaint reveal he was homeless by the winter of 2010. (See McGuire 1, Doc. # 74, at 8
(alleging he “moved into the Regency Inn on or about April 27, 2010 and lived there until July 19,
2010”); McGuire 1, Doc. # 166-13, at 22 (testifying he lived with his brother for a couple of months
after leaving the Regency Inn, after which point he was homeless)). His homelessness was
litigated and proved central to the final opinion.
income, earning up to $125 per musical performance.”)). He now alleges that he is
“unsure whether . . . ad hoc, intermittent performances subject him to criminal
penalty pursuant to ASORCNA’s reporting requirements and employment exclusion
zones” and that the employment provisions chill or proscribe his ability to work or
volunteer for a church. (Compl. ¶¶ 103, 114.) But the law has not become vaguer
since McGuire 1. McGuire’s musical performances could have been characterized
as ad hoc at the time of McGuire 1. (Compare McGuire 1, Doc. # 251, at 70
(McGuire testifying that he gets calls to play that are “usually on the spur of the
moment” and testifying that he usually does not get calls to perform at times that
would allow him to apply for a travel permit); id. at 24–25 (McGuire testifying that
he receives weekly invitations to perform and testifying that “a lot of the areas that
I was asked to play at were restricted areas”), with Compl. ¶¶ 96, 98 (alleging that
McGuire receives weekly calls to perform and that he has turned down opportunities
to perform for pay due to ASORCNA)). Still, Defendants bear the burden on their
res judicata arguments, and McGuire is not required to plead every possible injury
in his Complaint. The five-year passage of time between McGuire 1 and the present
day makes it plausible, perhaps even likely, that a modification of significant facts
has occurred during the additional years McGuire was subject to this draconian law.
For instance, McGuire 1 did not involve any allegations related to McGuire’s
religious practices or his desires to work for a church. Therefore, McGuire can
challenge the employment provisions.
McGuire may challenge one of the relief provisions of ASORCNA, § 15-20A23(a). The 2015 amendments added an additional ground under which a registrant
may seek relief from ASORCNA’s residency provision: where “the sex offender has
a debilitating medical condition requiring substantial care or supervision or requires
placement in a residential health care facility.” ASORCNA 2015 § 15-20A-23(a).
The 2017 amendments removed judges’ discretion to deny relief if they found that
a registrant had a qualifying condition.
ASORCNA 2017 § 15-20A-23(g).
McGuire’s equal protection claim appears to challenge the fact that McGuire is
treated differently from other registrants because he is ineligible for relief. (Compl.
¶¶ 379, 410(11).)
At first glance, the amendments do not appear to have materially changed
McGuire’s factual circumstances: He was not able to apply for relief in 2011, and
he does not qualify for relief under the added provision. But viewed in the context
of McGuire’s constitutional claims, the fact that the class of people who are treated
differently from McGuire has increased is a material development.
Defendants did not specifically address the relief provisions in their briefing, they
have not carried their burden of showing that McGuire’s claims against § 15-20A23 are barred. Still, McGuire cannot challenge ASORCNA’s two other provisions
for relief for adult offenders, §§ 15-20A-24 and 25, because amendments to those
provisions did not materially change McGuire’s opportunities for relief. ASORCNA
2017 §§ 15-20A-24, 25 (amending those provisions to remove judges’ discretion to
deny relief if they found that a registrant did not pose a substantial risk of
perpetrating any future sex offense).
McGuire can bring new claims to ASORCNA’s residency restrictions due to
the 2017 amendments’ new definitions of “overnight visit” and “reside.” See § 1520A-4(12), (20). When McGuire 1 was decided, “the residency and employment
restrictions d[id] not prohibit registrants from spending virtually unlimited amounts
of time day or night within the restricted zones.” 83 F. Supp. 3d at 1264. The court
further stated, “[w]hile a registrant would be barred from sleeping at a residence
within 2,000 feet of a school, nothing in ASORCNA would make it a crime for the
registrant to spend all of his or her waking, daytime hours at that same residence
. . . .” Id. (emphasis added).
Due to the aggregate-hours provisions in the 2017 amendments, this is no
longer true. See § 15-20A-4(20). ASORCNA’s 2017 amendments defined an
overnight visit as “[a]ny presence between the hours of 10:30 p.m. and 6:00 a.m.”
ASORCNA 2017 § 15-20A-4(14). Prior to this amendment, overnight visits with
minors were prohibited, but the term was undefined, likely allowing registrants
greater flexibility to visit homes with minors so long as they did not sleep there. See
Ala. Code § 15-20A-11(d) (2011).
McGuire’s Complaint demonstrates how these amendments have inflicted
new injuries that ASORCNA 2011 did not. He is further limited in the time he can
spend at his brother’s home, his wife’s home, his other family members’ homes, and
at his church because of the new aggregate-hours requirements. He also cannot be
present at his brother’s home, where his minor nieces and nephews live, between
10:30 p.m. and 6:00 a.m. (Compl. ¶¶ 88-90, 92-94, 109-111, 114.) Because Mr.
McGuire could not have pursued these claims before the 2017 amendments, his
challenges to these provisions are not barred by res judicata.
The State’s method of branding identifications changed as a result of the Doe
1 litigation. The State has allowed some registrants, including McGuire, to swap
their old driver’s license branded with “CRIMINAL SEX OFENDER” for one with
a numbered code. McGuire alleges that he was substantially hindered in his attempts
to obtain a new license and that he should not be required to carry a code-branded
(Compl. ¶¶ 126–133.)
The switch to a code-branded license is a
modification of significant facts, and he could not have challenged this scheme in
McGuire 1. While the code-branded license may be a lesser evil than the wordbranded license, it still inflicts a new injury upon McGuire, and he may seek recourse
in this litigation.
McGuire may challenge the travel notification provisions.
amendments characterized the state’s system as a “notification,” rather than a
“permitting” system. While this language suggests lighter restrictions, the 2017
amendments added requirements that registrants report their “intended destination
or destinations” and “any other information reasonably necessary to monitor a sex
offender who plans to travel.”
ASORCNA 2017 § 15-20A-15(b).
amendments require that registrants certify “that the information he or she provided
on the travel notification document is true and correct.” ASORCNA 2017 § 15-20A15(d). The amendments add that it is a Class C felony for registrants to knowingly
“provide false information on the travel notification document.” ASORCNA 2017
§ 15-20A-15(d), (h).
McGuire alleges that his church’s music ministry and that other ministries
travel to perform and minister. He alleges that the “exercise of his religious beliefs
is chilled or proscribed due to ASORCNA’s . . . travel permit requirements.”
(Compl. ¶ 114.)
Because the relationship between the travel restrictions and
religious activities was not raised in McGuire 1, this claim is not barred.
Additionally, McGuire alleges that he has been chilled from taking spontaneous
weekend trips, and it is plausible that being required to report “intended
destinations” under felony penalty could add new challenges to his ability to take a
spontaneous road trip. Consequently, McGuire may challenge the travel provisions.
Finally, to the extent that changes in these provisions of the law interact with
ASORCNA’s main in-person reporting (§ 15-20A-10), residence transfer fee (§ 1520A-22(b)), retroactivity, and lifetime adherence provisions, which have not
changed, McGuire may challenge those provisions. At this stage of litigation, it is
difficult to disentangle allegations regarding ASORCNA’s specialized reporting
provisions from these provisions.
Analyzing McGuire’s ex post facto claim for the purposes of res judicata is
trickier considering the breadth of his claim, which challenges “the cumulative,
punitive effects of ASORCNA imposed upon Plaintiffs since August 1, 2017,
coupled with limitless retroactivity and required lifetime adherence . . . .” (Compl.
¶ 412.) Mr. McGuire litigated this exact claim to a final judgment in his earlier suit,
which analyzed the provisions he had standing to challenge individually and as a
whole. McGuire has not sufficiently alleged that he is affected by changes in other
provisions such as would allow him to bring another cumulative claim. Therefore,
his ex post facto claim is limited to the provisions previously discussed.
a. Procedural History
JEB was Plaintiff John Doe # 7 in Doe 1. (Compl. ¶ 6.) Doe 1 began with a
complaint on August 20, 2015, naming then-Attorney General Luther Strange and
ALEA Secretary John Richardson as defendants. In that complaint, JEB alleged he
was subject to ASORCNA’s residency, employment, travel, identification, lifetime
adherence, and quarterly in-person reporting requirements. JEB also alleged in the
Doe 1 suit, among many other claims, that ASORCNA’s residence, employment,
and travel restrictions violated his substantive due process rights, that its
employment and residence restrictions were unconstitutionally vague, that the sex
offender identification requirement unconstitutionally compelled speech, and that
the internet reporting requirements chilled protected speech. From the outset of the
Doe 1 litigation, JEB/Doe # 7 alleged he was harassed and arrested for ASORCNA
violations by Chilton County Sheriff’s Investigator Derrick Bone.
At the motion to dismiss stage, the court permitted JEB/Doe # 7’s as-applied
challenge to ASORCNA’s prohibition on living with minors based on the right to
intimate association, vagueness challenge to ASORCNA’s employment restrictions,
compelled speech claim regarding identifications, and overbreadth challenge to the
internet reporting requirements to proceed to discovery. See Doe 1, No. 2:15-cv606-WKW, 2018 WL 1321034 (M.D. Ala. Mar. 14, 2018). JEB was allowed to
supplement his complaint to add a vagueness challenge to ASORCNA’s residence
restrictions based on arbitrary enforcement. Id., ECF Doc. # 137.
The court resolved all claims in the Doe 1 litigation on the parties’ crossmotions for summary judgment. See Doe 1, No. 2:15-cv-606-WKW, (M.D. Ala.
Feb. 11, 2019), ECF Docs. 164, 165; Doe 1 v. Marshall, 367 F. Supp. 3d 1310 (M.D.
Ala. 2019). The court granted summary judgment for the State on most claims, but
it ruled that the “CRIMINAL SEX OFFENDER” designations on the plaintiffs’
licenses were unconstitutionally compelled speech and that the internet reporting
requirements were unconstitutionally overbroad. Doe 1, 367 F. Supp. 3d at 1324–
b. Present Claims
Res judicata bars JEB from challenging all but four of the ten provisions that
he has standing to challenge.
Plaintiffs’ only argument regarding JEB is a
conclusory statement that “JEB’s challenges assert new and ongoing injuries since
the disposition of Doe v. Marshall.” (Doc. # 43, at 107.) When assessing JEB’s
claims, “claims that ‘could have been brought’ are claims” that were “in existence
at the time the” Second Amended Complaint in Doe was filed on August 22, 2016,
“or claims actually asserted by supplemental pleadings or otherwise in the earlier
action.” Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992).
Therefore, Defendants’ assertion that JEB had a previous opportunity to challenge
any provision of the 2017 version of ASORCNA is not quite true. In Doe 1, the
court assessed the lawfulness of the 2017 version of the law in light of facts that, for
the most part, arose prior to its passage. The court only allowed the Doe 1 plaintiffs
to supplement their vagueness challenge to the residency restrictions with additional
facts regarding uneven enforcement actions taken after the 2017 amendments. (Doe
I, Doc. # 137, at 9.) As a result, JEB introduced factual allegations concerning his
May and June 2018 arrests by Bone, but he could not raise new legal claims based
on these facts. (See ¶¶ 151–173.)
As in McGuire’s case, a “rights and duties” analysis would likely be too
simplistic to shed light on which claims should be barred. Both cases involve
constitutional challenges to ASORCNA, but the precise rights and duties alleged
vary in some respects. The court will proceed to the nucleus of operative fact test.
Some of JEB’s claims regarding provisions he has standing to challenge can
be easily dismissed. ASORCNA’s internet dissemination, community notification,
and quarterly fee provisions all applied to him at the time of the Doe 1 litigation.
(Doe 1, Doc. # 81, ¶¶ 1, 88, 304.) None of the provisions has changed in a manner
that could inflict a new injury, nor has JEB alleged a harm from changes to these
provisions. The internet dissemination requirement has changed only to clarify the
meaning of disseminating information about “internet identifiers” and to bar the
State from disseminating the identity of the sex offender’s internet service providers.
JEB has not alleged that he is harmed by these particular changes. Indeed, he hardly
makes a particularized claim regarding them at all. He could have challenged these
provisions in Doe 1, so these claims are barred.
Additionally, JEB’s factual allegations regarding the employment provisions
are almost identical to the ones he alleged in Doe 1. The Doe 1 Plaintiffs brought a
vagueness challenge to the employment requirements. JEB claimed he had to turn
down construction jobs because he was limited by the employment zones. (Doe
Doc. # 81, ¶ 225.) JEB makes virtually the same claim here:
JEB currently wishes to supplement his fixed income by working
periodically as a general construction laborer.
employment zones of exclusion prevent him from knowing where he
may lawfully work. JEB has, since October 1, 2018 turned down jobs
when he knows the location is restricted by ASORCNA, but also has
turned down intermittent jobs when he is unsure whether locations are
restricted or not. Bone does not provide an employment location
preapproval process which will enable JEB to know where he may
lawfully accept employment.
(Compl. ¶¶ 185–87.) The employment provision was not amended in a manner that
could and did inflict any new injury upon him. And none of the new enforcement
actions alleged by Bone involves the employment provisions. However, in Doe 1,
JEB’s challenge to the employment provisions was not considered on the merits
because he lacked standing at that time. Then, he was disabled, receiving Social
Security disability payments, and admitted “that he proved he was physically unable
to work and that he does not foresee his condition improving enough to work ‘in the
near future.’” (Doe 1, Doc. # 164 at 44.) JEB still alleges that he has recently
received disability payments, but now claims that he is “capable of performing some
intermittent construction work duties.” Res judicata is inappropriate for now, as
discovery may reveal a modification of significant facts regarding JEB’s ability to
work, which in turn could modify the severity of ASORCNA’s impact upon him.
JEB’s only reference to the travel restrictions is that he “is afraid that he will
be arrested again by law enforcement for . . . failing to report his daily choices in
people or places he visits; . . . or, any combination of ASORCNA’s residency,
employment, travel and in[-]person reporting restrictions and requirements.”
(Compl. ¶ 183.) While his “new” arrests did not involve the travel provisions, he,
like McGuire, may be injured by the new ways in which he could be found to have
violated ASORCNA’s travel provisions. At this stage of the proceedings, his claims
are not barred.
Finally, JEB’s new arrests allow him to bring new challenges to ASORCNA’s
residency and reporting requirements. Most of JEB’s grievances are with Bone and
can best be characterized as claims that Bone selectively enforced the residency and
reporting requirements. (Compl. ¶¶ 151–174, 183.) These events occurred after the
Doe 1 plaintiffs filed their motion to supplement the complaint, but the events were
documented in discovery and discussed in the final opinion. The court found that
these claims were not appropriately brought through a vagueness challenge to the
residential restrictions (a legal theory alleged in the Second Amended Complaint in
2016), but due to procedural timing, JEB did not have an opportunity to present any
new legal claims based on these facts.6
JEB also alleges he was arrested for an outstanding bond revocation warrant and
subjected to additional criminal proceedings that were not raised in Doe. (Compl. ¶¶ 177–182.)
All of JEB’s allegations regarding his arrests culminate in the statement that
“Mr. JEB is afraid that he will be arrested again by law enforcement for any of the
many ways he can be unjustly deemed by Bone to have violated ASORCNA’s
restrictions; for failing to report his daily choices in people or places he visits; places
where he can obtain work; or, any combination of ASORCNA’s residency,
employment, travel and in person reporting restrictions and requirements.” While
JEB likely feared unjust enforcement when the Doe Plaintiffs filed their Second
Amended Complaint, which counsels against permitting JEB to challenge the
residency and reporting requirements, the arrests do qualify as “new” facts.
Defendants have not carried their burden of showing that these claims are barred.
Finally, to the extent that changes in these provisions of the law interact with
ASORCNA’s main in-person reporting (§ 15-20A-10), residence transfer fee,
retroactivity, and lifetime adherence provisions, JEB may challenge those provisions
for the same reasons that McGuire may do so.
D. Statute of Limitations
Defendants argue that Plaintiffs’ claims are barred by the statute of limitations
because their injuries accrued at the time each Plaintiff was required to register under
ASORCNA. (Doc. # 36, at 30–32.) McGuire registered in 2010. (Compl. ¶¶ 76–
However, these allegations have little to do with ASORCNA and nothing to do with these
78.) KLL registered in 2015. (Compl. ¶¶ 203–04.) JEB’s registration date is not
contained in the Complaint. However, Plaintiffs allege, “In Doe v. Marshall, JEB
described how he had been previously arrested and convicted for a felony pursuant
to Chilton County Investigator Derrick Bone’s and Chilton County prosecutor’s
selective enforcement of ASORCNA’s residential zones of exclusion provisions.
Doe v. Marshall, doc. 138 ¶¶ 164-196.” (Compl. ¶ 151.) Plaintiffs cite a section of
the Doe 1 plaintiffs’ Supplemental Second Amended Complaint that indicates that
JEB was arrested for violating ASORCNA in 2015, which clearly indicates that he
was an ASORCNA registrant by then. The court may consider this extrinsic
document because it is “(1) central to the plaintiff’s claim, and (2) its authenticity is
not challenged.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337
(11th Cir. 2010); see also Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir.
1999). Additionally, Plaintiffs have not contested Defendants’ allegations that JEB
registered for the first time within two years before filing the instant lawsuit, and
they state in their supplemental brief that his qualifying conviction occurred 34 years
ago. (Doc. # 52, at 10.)
Because Plaintiffs filed a claim under 42 U.S.C. § 1983 in Alabama, they are
subject to a two-year statute of limitations. Ala. Code § 6-2-38(l); McNair v. Allen,
515 F.3d 1168, 1173 (11th Cir. 2008). When that clock starts running is a question
of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). In general, “the statute
of limitations begins to run from the date the facts which would support a cause of
action are apparent or should be apparent to a person with a reasonably prudent
regard for his rights.” Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261
(11th Cir. 2003) (cleaned up).
“But not all injuries are equal. Sometimes, there is one discrete point at which
the injury occurs. Other times, however, the injury happens over and over again.
When the injury occurs determines when the statute of limitations starts running.”
Doe 1, 367 F. Supp. 3d at 1338.
Plaintiffs claim in their first three counts that ASORCNA continuously chills
their speech and expressive conduct, is unconstitutionally vague, and violates their
equal protection rights. In Count 5, KLL alleges that he is constantly discriminated
against—singled out and subjected to ASORCNA—when individuals who engaged
in the same conduct in Alabama would not be subject to enforcement. If the
allegations plausibly state claims for relief, then ASORCNA afflicts a fresh injury
each day that Plaintiffs are subject to the law. In Kuhnle Brothers v. County of
Geauga, for example, the Sixth Circuit held that a claim for the deprivation of the
right to travel accrues every day while the unconstitutional law is in effect. 103 F.3d
516, 522 (6th Cir. 1997); see Hillcrest Prop., LLC v. Pasco Cty., 754 F.3d 1279,
1283 (11th Cir. 2014) (citing Kuhnle with approval). In Beavers v. American Cast
Iron Pipe Co., the Eleventh Circuit held that each week in which a discriminatory
insurance policy was in effect constituted a new Title VII violation. 975 F.2d 792,
798 (11th Cir. 1992); cf. also Montin v. Estate of Johnson, 636 F.3d 409, 416 (8th
Plaintiffs allege they are bound in perpetuity by discriminatory, overbroad,
and allegedly vague laws. Thus, every day dawns a new winter of their discontent.
To the extent the law is enforced, Plaintiffs will suffer new injuries. See Maldonado
v. Harris, 370 F.3d 945, 956 (9th Cir. 2004).
As this court stated in Doe 1:
This in no way conflicts with the Eleventh Circuit’s pronouncements in
Moore v. Federal Bureau of Prisons, 553 F. App’x 888 (11th Cir. 2014)
(per curiam), and Meggison v. Bailey, 575 F. App’x 865 (11th Cir.
2014) (per curiam). In those cases, the plaintiffs alleged that they were
not sex offenders but were wrongly registered as offenders. The
Eleventh Circuit held their injury accrued when they learned that they
had been wrongly registered. Moore, 553 F. App’x at 890; Meggison,
575 F. App’x at 867; see also Cibula v. Fox, 570 F. App’x 129, 136
(3d Cir. 2014); Romero v. Lander, 461 F. App’x 661, 668 (10th Cir.
2012). And in Mims v. Bentley, a district court found that an ex post
facto challenge to a sex-offender registration requirement accrued when
the alleged ex post facto punishment was imposed—that is, when the
plaintiff registered. No. 15-cv-119, 2015 WL 5736829, at *2 (N.D.
Ala. Oct. 1, 2015); see also Smelcher v. Att’y Gen. of Ala., No. 18-cv1099, 2019 WL 142323, at *4 (N.D. Ala. Jan. 9, 2019) (reaching the
same conclusion when another plaintiff attacked the need to register as
[a] sex offender).
But the injury caused by wrongful registration is not the same injury
caused by the constant deprivation of fundamental rights. Yes,
registration triggers ongoing obligations, but the plaintiffs in Moore,
Meggison, and Mims challenged registration itself. That is different
from claiming that certain restrictions on everyday activities violate the
Doe 1, 367 F. Supp. 3d at 1338–39 (alteration added).
At first glance, it would appear that Count 5 should be barred by applying this
distinction. (Compl. ¶ 204; Doc. # 43, at 107.) That appearance is deceiving when
one looks to the nature of KLL’s constitutional claim. KLL claims that ASORCNA
is either selectively enforced against him or that he is in a class of one. Both claims
sound in equal protection. Therefore, KLL’s claim is an argument that each day he
is singled out for enforcement when other similarly situated persons are not. That
discrimination claim represents a continuing violation.
The only statute of limitations question meriting discussion is whether the
2017 amendments reset the clock on some of the provisions challenged in Plaintiffs’
ex post facto claims. A cause of action for an ex post facto claim accrues when the
punishment was imposed. Brown, 335 F.3d at 1261–62. Defendants claim that this
punishment is imposed when one registers under ASORCNA. But that cannot be
per se true without considering how the requirements imposed upon registrants have
changed. Under Defendants’ logic, the State could amend ASORCNA to require
that prior registrants be put in stockades for an hour every week, and persons who
registered more than two years prior would be unable to bring ex post facto
challenges. Because all Plaintiffs registered for the first time more than two years
before filing this suit, any claims to earlier versions of ASORCNA are barred,
leaving only the question of whether the 2017 amendments impose any new
punishments. See id. (“Rather, Brown’s injury, to the extent it ever existed, was
when the Georgia Parole Board applied its new policy, eliminating the requirement
of parole review every three years for Brown, retroactively.”).
The amendments were enacted on August 1, 2017, and Plaintiffs’ motion to
amend the complaint and to add JEB’s and KLL’s claims was timely filed on May
21, 2019. Therefore, the question is the same one raised by Defendants’ res judicata
arguments: Did the amendments impose any new punishments that constitute a new
cause of action? For the reasons stated in the res judicata section, the amendments
to the residency and travel restrictions and the State’s changed brandedidentification practices constitute new causes of action. The employment provisions
and relief provisions are not challengeable because they were not substantially
amended in 2017. The reporting provision is challengeable to the extent that it
intersects with other provisions. The loitering provision, which only applies to KLL,
was not amended in 2017.
All of Plaintiffs’ claims that stem from injuries inflicted by the 2017
amendments would be timely, even if the continuing violations doctrine did not
This includes Plaintiffs’ claims regarding the residency, branded
identification, and travel provisions.
Defendants may reassert their statute of
limitations arguments at later stages in this litigation when the parties have the
benefit of additional facts.
E. Declaratory and Injunctive Relief: Availability of an Adequate
Remedy at Law for KLL
Defendants argue that this court should decline to hear KLL’s suit for
declaratory and injunctive relief because KLL may be able to petition in state court
for relief from some or all of ASORCNA’s provisions. (Doc. # 36, at 32–36.)
Defendants also contend that KLL may qualify for complete relief from
ASORCNA’s provisions under § 15-20A-24 because his offense was only criminal
in Louisiana because of the age of the victim. Defendants further assert that “[e]ven
assuming KLL did not receive complete relief from ASORCNA under that
provision, Alabama Code § 15-20A-25 provides him with a means of obtaining relief
from its employment restrictions.” They add that the court should also decline to
hear KLL’s corresponding claims for injunctive relief. (Doc. # 36, at 35–36.)
Federal courts have discretion to decline to hear claims for declaratory
judgments if there is an adequate alternative remedy.
Although Fed. R. Civ. P. 57 specifically provides that the existence of
‘another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate,’ a court, ‘in the exercise of the
discretion that it always has in determining whether to give a
declaratory judgment, may properly refuse declaratory relief if the
alternative remedy is better or more effective.
Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., Inc., 796 F.2d 384, 387–88
(11th Cir. 1986) (quoting 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY
KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL, § 2758, at 621–23 (2d ed.
1970) (emphasis added)).
Additionally, “courts generally will refuse to grant injunctive relief unless
plaintiff demonstrates that there is no adequate legal remedy.” 11A CHARLES A.
WRIGHT, ET AL., FED. PRAC. & PROC.: CIV. § 2944 (3d ed.). “It is a ‘basic doctrine
of equity jurisprudence that courts of equity should not act . . . when the moving
party has an adequate remedy at law and will not suffer irreparable injury if denied
equitable relief.’” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)
(quoting O’Shea v. Littleton, 414 U.S. 488, 499 (1974)). “[T]he legal remedy must
be as complete, practicable, and efficient as that which equity could afford.” Boise
Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 281 (1909).
KLL is eligible to petition a state court for relief from ASORCNA’s
employment provisions. Section 15-20A-25 permits a registrant to petition for relief
from the employment provisions so long as he is not convicted of rape, sodomy, first
degree sexual abuse, sexual abuse of a child under 12, sexual torture, or any sex
offense involving a child under 12. If the registrant is statutorily eligible, “[t]he
court shall issue an order releasing the sex offender from the requirements of the
employment restrictions pursuant to subsection (b) of Section 15-20A-13 if the court
finds by clear and convincing evidence that the sex offender does not pose a
substantial risk of perpetrating any future sex offense.” The state court may consider
the “nature of the offense, [p]ast criminal history of the sex offender, [t]he location
where the sex offender is employed or intends to obtain employment, or [a]ny other
information deemed relevant by the court.” § 15-20A-25(f).
KLL was convicted of contributing to the delinquency of a juvenile, which “is
the intentional enticing, aiding, soliciting, or permitting, by anyone over the age of
seventeen, of any child under the age of seventeen” to “[p]erform any sexually
immoral act.” LA. STAT. ANN. § 14:92(A)(7). Regarding the events giving rise to
his Louisiana conviction, KLL alleges he was 18 when he engaged in consensual
sexual relations with a 16-year-old girl.
Louisiana’s statutory definition of
contributing to the delinquency of a juvenile, coupled with KLL’s factual
allegations, make clear that his crime did not involve force, lack of consent, or a
child under the age of 12. Hence, KLL’s Louisiana crime is not equivalent to any
of the disqualifying offenses listed in § 15-20A-25(a) that would prevent him from
petitioning a state court for relief from ASORCNA’s employment restrictions.
While this indicates that KLL may have an adequate alternative remedy under § 1520A-25, it makes little sense to decline KLL’s challenges to the employment
provisions while hearing McGuire’s and JEB’s. Therefore, the court will not decline
to entertain KLL’s request for declaratory relief concerning the employment
restrictions at this time. The court likewise will not foreclose equitable relief at this
time. See Adelphia Cable Partners, Inc. v. E & A Beepers Corp., 188 F.R.D. 662,
666 (S.D. Fla. 1999) (“Although equitable relief ultimately may not be awarded
where there exists an adequate remedy at law, Plaintiff certainly may plead
alternative equitable relief.”).
Additionally, under § 15-20A-24(a)(5), KLL’s other potential avenue of
relief, registrants may petition a state court for a complete exemption from
ASORCNA if they were convicted of one of the four delineated Alabama sex
offenses that focus principally on the age of the victim (discussed below) or for
“[a]ny crime committed in this state or any other jurisdiction which, if had been
committed in this state under the current provisions of law, would constitute” one of
the enumerated age-based offenses under Alabama law.
(emphasis added). 7 Defendants’ broader argument that this provision provides an
adequate remedy at law is unavailing for two reasons. First, the statute permits a
judge to award less than complete relief from ASORCNA. See § 15-20A-24(h).
Therefore, this remedy is not as complete or efficient as that which equity could
afford and could result in a multiplicity of suits. Second, Plaintiffs have raised a
To be sure, KLL currently does not have standing to challenge § 15-20A-24. See infra,
at 29 n.3. Specifically, KLL does not allege that he has attempted to petition a state court for relief,
much less been denied said relief, pursuant to § 15-20A-24. Nevertheless, KLL would have
standing to challenge § 15-20A-24 if he petitioned for relief and the state court denied his request
because his Louisiana crime did not precisely meet the first set of requirements spelled out in 1520A-25(a)(1)-(4). In that case, KLL would have grounds to bring an appropriate constitutional
claim, along with any accompanying declaratory judgment claim, directly challenging § 15-20A24.
colorable argument that KLL is ineligible to seek complete relief under § 15-20A24.
Plaintiffs argue that KLL cannot seek relief because his Louisiana crime
would not constitute one of the enumerated offenses in § 15-20A-24(a)(1)–(4).
(Doc. # 43, at 108; Doc. # 52, at 10.) The eligible offenses are rape in the second
degree, sodomy in the second degree, sexual misconduct, and sexual abuse in the
second degree. Rape and sodomy in the second degree are defined as those
respective acts committed by a person over the age of 15 upon a person between the
ages of 12 and 15, provided the perpetrator is at least two years older than the victim.
§§ 13A-6-62, 64. Sexual misconduct criminalizes sexual relations where consent is
obtained by fraud, artifice, or stratagem. § 13A-6-65 & Commentary. Sexual abuse
in the second degree is essentially a catchall provision that criminalizes, among other
acts, “[b]eing 19 years old or older, [and] subject[ing] another person to sexual
contact who is” between the ages of 13 and 15. § 13A-6-67. To obtain relief, the
registrant must also “prove by clear and convincing evidence” that the sex offense
did not involve force, that it was a crime due only to the age of the victim, that the
victim was 13 years of age or older at the time of the offense, and that the registrant
was less than 5 years older than the victim at the time of the offense. § 15-20A24(b).
Because KLL alleges he was 18 when he engaged in consensual sexual
relations with his 16-year-old girlfriend, he easily meets the lack of force and agerelated eligibility requirements for relief. However, he does not precisely meet the
first set of requirements, 15-20A-25(a)(1)–(4), because his crime of conviction in
Louisiana would not be criminal in Alabama. It would be surprising if state courts
could grant relief to registrants convicted of Alabama’s age-related sex crimes but
not to those convicted of age-related offenses that Alabama does not criminalize at
all. Still, courts “should not interpret a statute in a manner inconsistent with the plain
language of the statute, unless doing so would lead to an absurd result.” United
States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). The speculative nature of
Defendants’ argument is cause for hesitation because a literal interpretation of the
statute’s text would find KLL ineligible for relief—undoubtedly an absurd result
given KLL’s unique factual circumstances. Due to the uncertainty surrounding his
eligibility for relief under § 15-20A-24, and the possibility of an absurd result, the
court will exercise its discretion to hear KLL’s declaratory judgment claims.
F. Shotgun Pleading (and Shotgun Briefing)
Plaintiffs’ Complaint bears many of the hallmarks of a shotgun pleading. It
is over 88-pages and 400-paragraphs long. Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001) (holding that a complaint was a shotgun complaint when, among
other issues, the complaint was 58-pages long and contained at least 146 numbered
paragraphs). Within its overbreadth and equal protection counts, Plaintiffs challenge
at least a dozen ASORCNA provisions. Although Plaintiffs’ Second Amended
Complaint is far from a “short and plain statement of the claim(s) showing that [they]
are entitled to relief,” Plaintiffs were granted leave to file their amended complaint
for three reasons. Fed. R. Civ. P. 8(a)(1).
First, ASORCNA is not a short and plain statute. Its enacting act is nearly
100 pages long, Ala. Act No. 2011-640, and the 2017 amending act is over 80 pages
long, Ala. Act. No. 2017-414. Its chapter in the Alabama Code now spans 48
sections. Ala. Code §§ 15-20A-1 through 15-20A-48. Second, Plaintiffs have
legitimate reasons to be concerned that, if they do not bring their constitutional
claims in this action, res judicata and the statute of limitations may prevent them
from bringing future challenges to ASORCNA’s restrictions. Third, paragraphs 267
through 395 provide substantial guidance to Defendants and to this court as to which
factual allegations match which claims. 8 See Hawkins v. Holy Family Cristo Rey
Catholic High Sch., No. 2:18-CV-00638-ACA, 2018 WL 6326485, at *3 (N.D. Ala.
Dec. 4, 2018) (“Despite the shotgun nature of Ms. Hawkins’s second amended
complaint, the court finds that dismissal on this ground is not appropriate because it
is not ‘virtually impossible to know which allegations of fact are intended to support
Of course, Plaintiffs’ legal conclusions in these paragraphs, on their own, cannot state a
claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.”).
which claim(s) for relief.’” (quoting Weiland v. Palm Beach Cnty. Sheriff’s Office,
792 F.3d 1313, 1325 (11th Cir. 2015))).
Defendants, in turn, were able to fashion a response to Plaintiffs’ claims.
(Doc. # 35.) Plaintiffs’ initial Response, however, threatens to carry this case off the
rails. (Doc. # 43.) In it, Plaintiffs use more than 53 pages to address their
overbreadth claim. In those pages, Plaintiffs reveal that their overbreadth challenge
to the State’s branded identification practices and ASORCNA’s community
notification and internet dissemination provisions are more properly characterized
as compelled speech claims. (Doc. # 43, at 57–75.) Some of the provisions that
Plaintiffs argue implicate speech or expressive conduct are hardly alluded to in their
complaint—namely, ASORCNA’s requirement that registrants report any phone
numbers used or changes in their physical descriptions. (Compare Doc. # 43 at 48–
49 & nn.12–13, with Compl. ¶¶ 22, 285 (stating generally that ASORCNA requires
such reporting).) Their overbreadth arguments rely on cases involving substantive
due process rights to interstate travel, substantive due process rights to privacy, and
the free exercise clause. (Doc. # 43, at 39–45.)
Defendants lacked fair notice of these claims. Plaintiffs allege injuries that
may give rise to some as-applied freedom of speech or free exercise claims, but they
ultimately note that Americans’ “lawful expressive conduct is limited largely, only
by that which we can imagine.” (Id., at 50.) Federal courts adjudicate cases and
controversies, not every possible constitutional infringement that Plaintiffs can
imagine. For these reasons, all but one of Plaintiffs’ facial overbreadth claims are
due to be dismissed.
Plaintiffs fashion a serviceable justification of their vagueness claims, but
originally did not respond at all to Defendants’ motions to dismiss Counts 3–5.
While this court could decipher and rule on Plaintiffs’ ex post facto and selective
enforcement claims without further briefing, it could not interpret and rule on
Plaintiffs’ equal protection challenges to over a dozen ASORCNA provisions
without arguments and therefore ordered additional briefing. (Doc. # 50.) Plaintiffs’
supplemental brief incorporated by reference many of the fundamental rights
arguments that Plaintiffs made in the overbreadth section of their initial response.
(See Doc. # 52, at 4–7.) Plaintiffs’ intermingled overbreadth and equal protection
arguments lead the court to question whether Plaintiffs, who are represented by
counsel, fail to comprehend or simply fail to care about what body of law should
apply to their claims. As a result, most of Plaintiffs’ shotgun (bordering on grenadeblast) arguments are unavailing, and most of Plaintiffs claims are due to be
G. Count 1: Overbreadth (Facial)
After traveling through the funnels of Defendants’ jurisdictional and
procedural objections, Plaintiffs are left with the following overbreadth claims. KLL
dissemination, quarterly reporting, residency, employment, travel, loitering, branded
identification, community notification, and fee provisions. 9 JEB may challenge the
travel, employment, and residency provisions. JEB may also challenge the main inperson reporting (§ 15-20A-10), residence transfer fee (§ 15-20A-22(b)),
retroactivity, and lifetime adherence provisions insofar as the provision intersects
with changes to other provisions. McGuire may challenge the provisions that JEB
may challenge. Additionally, McGuire may challenge one relief provision (§ 1520A-23), and the state’s current branded identification practices. No Plaintiff has
standing to challenge the provisions of ASORCNA that apply only to juveniles and
their guardians, so Plaintiffs’ overbreadth claims to those provisions (as delineated
in Doc. # 43, at 90–97) are due to be dismissed. Ultimately, only the residency
provisions plausibly implicate the First Amendment, and discovery is warranted to
determine if the provisions are substantially overbroad. Therefore, all but one of
Plaintiffs’ facial claims fail, but they may move to amend their complaint to bring
an as-applied compelled speech challenge to the branded identification provision as
KLL may also challenge ASORCNA’s catchall provisions (§ 15-20A-5(37), (38)), but
Plaintiffs’ Response suggests that KLL challenges those provisions through his selective
enforcement/class of one claim in Count 5. (Doc. # 43, at 93.)
Analysis of Count 1 “entails a three-part inquiry: First, do the challenged
provisions implicate the First Amendment? Second, if so, what level of scrutiny
should be applied? And third, have Plaintiffs stated a claim that the challenged
provisions fail under the proper standard of review?” Doe #1 v. Marshall, No. 2:15CV-606-WKW, 2018 WL 1321034, at *14 (M.D. Ala. Mar. 14, 2018).
1. Implicating the First Amendment
“The Constitution gives significant protection from overbroad laws that chill
speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free
Speech Coal., 535 U.S. 234, 244 (2002). Though a state may burden speech if it has
a strong enough interest, it cannot overburden speech. Still, this doctrine does not
provide citizens with a basis for challenging every statute that regulates their
activities. “[I]t is the obligation of the person desiring to engage in assertedly
expressive conduct to demonstrate that the First Amendment even applies.” Clark
v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 n.5 (1984).
First Amendment protection extends to protected speech and “to conduct that
is inherently expressive.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,
547 U.S. 47, 66 (2006). “[I]n determining whether conduct is expressive, we ask
whether the reasonable person would interpret it as some sort of message, not
whether an observer would necessarily infer a specific message.” Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). The “overbreadth
doctrine’s concern with ‘chilling’ protected speech ‘attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from ‘pure speech’
toward conduct.’” Hicks, 539 U.S. at 124 (quoting Broadrick v. Oklahoma, 413 U.S.
601, 615 (1973)). “Rarely, if ever, will an overbreadth challenge succeed against a
law or regulation that is not specifically addressed to speech or to conduct
necessarily associated with speech (such as picketing or demonstrating).” Id. at 124.
At the outset, it is worth noting that the 53 pages that Plaintiffs devote to
championing their overbreadth claims are long on legal arguments (many of which
are not overbreadth arguments) and short on references to the three Plaintiffs’
The court must first construe the statute and determine what the statute covers.
United States v. Williams, 553 U.S. 285, 293 (2008). The contours of the challenged
provisions are detailed in the background section above, and the court will further
elaborate in each section.
Most of Plaintiffs’ facial claims fail at the threshold stage of overbreadth
analysis: implicating the First Amendment. None of the provisions that Plaintiffs
are able to challenge directly limits registrants’ speech or “conduct necessarily
associated with speech (such as picketing or demonstrating).” Hicks, 539 U.S. at
124. The provisions do not inevitably single out those “engaged in First Amendment
protected activities for the imposition of its burden.” Arcara v. Cloud Books, Inc.,
478 U.S. 697, 704–705 (1986) (discussing Minneapolis Star & Tribune Co. v.
Minnesota Comm’r of Revenue, 460 U.S. 575 (1983), wherein the Supreme Court
“struck down a tax imposed on the sale of large quantities of newsprint and ink
because the tax had the effect of singling out newspapers to shoulder its burden”).
When their Complaint is stripped of conclusory legal arguments, only a few of
Plaintiffs’ factual allegations allege a desire to engage in speech, expressive
association, or expressive conduct, casting doubt on their arguments that a
substantial number of the statute’s applications violate the First Amendment.
On the whole, each of Plaintiffs’ arguments is analogous to the claim in
Virginia v. Hicks, and all but one fails at the threshold for the same reason. In Hicks,
Mr. Hicks challenged a housing authority policy barring him from entering a housing
authority property after he had twice been convicted of trespassing thereon. 539
U.S. at 117. The Supreme Court unanimously held that the written provision
authorizing the arrest of those who received such a barment notice
certainly does not violate the First Amendment as applied to persons
whose postnotice entry is not for the purpose of engaging in
constitutionally protected speech. And Hicks has not even established
that it would violate the First Amendment as applied to persons whose
postnotice entry is for that purpose. Even assuming the streets of
Whitcomb Court are a public forum, the notice-barment rule subjects
to arrest those who reenter after trespassing and after being warned not
to return—regardless of whether, upon their return, they seek to engage
in speech. Neither the basis for the barment sanction (the prior trespass)
nor its purpose (preventing future trespasses) has anything to do with
the First Amendment. Punishing its violation by a person who wishes
to engage in free speech no more implicates the First Amendment than
would the punishment of a person who has (pursuant to lawful
regulation) been banned from a public park after vandalizing it, and
who ignores the ban in order to take part in a political demonstration.
Here, as there, it is Hicks’ nonexpressive conduct—his entry in
violation of the notice-barment rule—not his speech, for which he is
punished as a trespasser.
Id. at 123.
ASORCNA registrants are akin to barment notice recipients. The basis for
their restrictions (their prior sexual offenses) and the purpose of the restrictions (“to
protect the public, especially children,” § 15-20A-2(4)), are unrelated to the First
Amendment. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–07 (1986) (“[W]e
have not traditionally subjected every criminal and civil sanction imposed through
legal process to ‘least restrictive means’ scrutiny simply because each particular
remedy will have some effect on the First Amendment activities of those subject to
sanction. Rather, we have subjected such restrictions to scrutiny only where it was
conduct with a significant expressive element that drew the legal remedy in the first
place . . . or where a statute based on a nonexpressive activity has the inevitable
effect of singling out those engaged in expressive activity . . . .”). And the challenged
restrictions apply to all of the conduct of all registrants, “not just to those who seek
to engage in expression.” Id. at 123 (“[T]he notice-barment rule . . . appl[ies] to all
persons who enter the streets of Whitcomb Court, not just to those who seek to
engage in expression. The rules apply to strollers, loiterers, drug dealers, roller
skaters, bird watchers, soccer players, and others not engaged in constitutionally
protected conduct—a group that would seemingly far outnumber First Amendment
speakers.”). Plaintiffs have not made a plausible showing that the challenged
provisions, except for the residency provision, prohibit “a ‘substantial’ amount of
protected speech in relation to [their] many legitimate applications” that could allow
them to bring a facial claim. See Id. at 124 (alteration added).
a. Travel and Employment Restrictions
Plaintiffs’ challenges to the travel and employment provisions that fail to state
a claim will be addressed first. Plaintiffs’ claims regarding the travel provisions are
undisguised substantive due process claims combined with an argument that the
provisions affect a prior restraint on expression. ASORCNA’s travel restraints are
serious restraints, but they are not restraints (prior or otherwise) on speech or
expressive conduct. See Alexander v. United States, 509 U.S. 544, 550 (1993) (“The
term prior restraint is used ‘to describe administrative and judicial orders forbidding
certain communications when issued in advance of the time that such
communications are to occur.’ (emphasis in original) (quoting M. NIMMER, NIMMER
FREEDOM OF SPEECH § 4.03, p. 4-14 (1984))). While the travel provisions do
limit registrants’ abilities to leave their county of residence for more than three days,
they do not enable officials to “deny access to a forum for expression before the
expression occurs.” United States v. Frandsen, 212 F.3d 1231, 1236–37 (11th Cir.
2000). Neither the sanction nor its purpose is related to speech, and punishment for
its violation is a punishment for conduct that is not inherently expressive.
Plaintiffs’ allegations center on how the travel provisions restrict their ability
to engage in the nonexpressive conduct of working and leisure traveling. (Compl.
¶¶ 117–21, 219–22.)
And the possibility that there may be “some kernel of
expression” in an activity “is not sufficient to bring the activity within the protection
of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1983). 10 Even
if the travel provisions implicated the First Amendment, Plaintiffs have not plausibly
alleged that any overbreadth is “substantial” enough to warrant discovery on a facial
Plaintiffs do not devote much of their Response to an overbreadth challenge
against the employment provisions. (See Doc. # 43, at 39–41, 48.) To the extent
that they do lodge a facial challenge against these provisions, it fails for the same
reasons their travel-related overbreadth claim fails. The employment provisions can
While the travel provisions incorporate ASORCNA’s definition of residence by
requiring notification before registrants leave their “county of residence,” this language does not
sufficiently tether the travel provisions to the residency provisions such that facial claims against
both provisions must rise and fall together. (Doc. # 43, at 40–41 n.7.) Provisions in ASORCNA’s
residency restrictions (§ 15-20A-11(e)(2)) and general reporting requirement (§ 15-20A-10(e)(2))
define transferring or terminating a residence as “vacat[ing] his or her residence or fail[ing] to
spend three or more consecutive days at his or her residence without previously notifying local
law enforcement or completing a travel notification document.” To the extent that this issue is
material, these provisions are challengable through Plaintiffs’ overbreadth claim against
ASORCNA’s residency restrictions. The employment provisions are likewise untethered from the
conceivably restrict speech or expressive conduct by, in KLL’s and McGuire’s
examples, limiting registrants’ abilities to labor for their church or perform music or
by limiting registrants’ abilities to work for organizations whose missions involve
protected expression, such as political parties or advocacy groups. However, KLL
and JEB chiefly allege being unable to work in the nonexpressive fields of
construction and refurbishment. As in Hicks, the group of registrants engaged in
nonexpressive careers “would seemingly far outnumber First Amendment
speakers.” 539 U.S. at 123.
Neither the employment restrictions nor their purpose is related to speech, and
punishment for their violation is a punishment for conduct that is not inherently
expressive. Even if these provisions implicated the First Amendment, Plaintiffs
have not plausibly alleged that any overbreadth is “substantial” enough to warrant
discovery on a facial challenge.
b. In-Person/Quarterly Reporting and Fee-Payment
Plaintiffs argue that the in-person-reporting and fee-payment requirements
infringe upon their right to privacy (a substantive due process or equal protection
claim), are prior restraints on speech or expressive conduct, and vest law
enforcement officers with vast discretion to regulate expressive conduct. Except for
insofar as these provisions overlap with ASORCNA’s residency restrictions,
Plaintiffs’ arguments are unavailing and do not merit further overbreadth analysis.
Plaintiffs’ Response does identify some reporting requirements that come closer to
implicating speech or expressive conduct: the requirements that registrants quarterly
report any telephone number used (§ 15-20A-7(8)), immediately report any changes
in telephone numbers (§ 15-20A-10(e)), and quarterly and immediately report any
changes in physical description (§ 15-20A-7(11), 10(e)(1)). (Doc. # 43, at 49
& n.13.) However, their 400-paragraph complaint does not allege any concrete
injuries under these provisions and gives Defendants no notice that they should
expect these arguments. (See Compl. ¶¶ 22, 285 (noting the existence of the
telephone reporting provisions).) That the provisions apply to Plaintiffs is not
enough to create an injury in fact, and the court will not adjudicate a hypothetical
claim raised for the first time in Plaintiffs’ Response.
c. Branded Identification, Community Notification, and
Plaintiffs’ overbreadth challenge to the branded identification, community
notification, and internet dissemination requirements are, with one possible
exception, undisguised compelled speech claims. (Doc. # 43, at 57–64; 68–75.)
Plaintiffs could have brought such claims in this action. But they cannot bait
Defendants into responding to overbreadth claims, which are governed by a distinct
body of First Amendment law, and then attempt to defeat a motion to dismiss by
arguing that they had pleaded compelled speech claims. To allow this switch would
undermine the federal system of notice pleading. Plaintiffs’ arguments that these
provisions chill them from freely moving to and about new communities (Doc. # 43,
at 71) only implicate their ability to engage in non-expressive conduct. Therefore,
Plaintiffs shall be granted leave to file a motion to amend their complaint if they
desire to add a compelled speech claim. The proposed amendment must clearly
identify what type of branded identification each Plaintiff currently carries and what
injuries have flowed therefrom.
Plaintiffs’ challenge to ASORCNA’s requirement that registrants not
“mutilate, mar, reproduce, alter, deface, disfigure or otherwise change the form of
any” state-issued identification, Ala. Code § 15-20A-18(e), sounds in overbreadth
but fails for now due to lack of standing. (See Doc. # 43, at 65–68.) Plaintiffs argue
that this provision is similar to the draft card anti-mutilation law analyzed in United
States v. O’Brien, 391 U.S. 367 (1968). The prohibitions are analogous, but the
claims contained in Plaintiffs’ Complaint are not.
In O’Brien, Mr. O’Brien
challenged his conviction for burning his draft registration certificate on the grounds
that his act of burning was itself symbolic speech. Id. at 375. The court assumed
“that the alleged communicative element in O’Brien’s conduct” was sufficient to
implicate the First Amendment and applied a four-part test to determine the statute’s
constitutionality. Id. at 376–77.
Plaintiffs allege that they disagree with being forced to carry and display a
branded license—a compelled speech claim—not that they or others desire to
physically alter their licenses at all, let alone as an affirmative expressive act.
(Compare Compl. ¶¶ 126; 188; 211 (relaying Plaintiffs’ disagreement with the
identifying text and desire to have identifying language removed), with ¶ 303 (noting
the existence of the anti-mutilation restriction).)
The overbreadth doctrine is
concerned with restrictions that prevent or chill citizens from affirmatively
exercising their own rights to speech and expressive conduct. Compelled speech
doctrine is concerned with restrictions that force citizens to engage in speech when
they otherwise would not. Therefore, it does not appear that Plaintiffs are actually
interested in bringing an overbreadth claim in the same vein as O’Brien. And they
lack standing to request prospective injunctive relief when they do not allege a desire
to violate this provision, and they therefore lack a “substantial likelihood that [they]
will suffer injury” under this provision “in the future.” Stevens, 877 F.3d at 1311
(quotation and internal quotation marks omitted).
While a plaintiff may be able to allege a cognizable facial or as-applied claim
under this provision, these Plaintiffs have not alleged qualifying injuries nor did their
complaint put Defendants on notice to expect a claim of this kind. If Plaintiffs have
such injuries, they may seek leave to litigate them in an amended complaint.
d. Loitering Restrictions
The loitering restrictions likewise do not implicate the First Amendment. A
plurality of the Supreme Court explained why a similar anti-loitering statute was not
overbroad in City of Chicago v. Morales,
[T]he law does not have a sufficiently substantial impact on conduct
protected by the First Amendment to render it unconstitutional. The
ordinance does not prohibit speech. Because the term “loiter” is
defined as remaining in one place “with no apparent purpose,” it is also
clear that it does not prohibit any form of conduct that is apparently
intended to convey a message. By its terms, the ordinance is
inapplicable to assemblies that are designed to demonstrate a group’s
support of, or opposition to, a particular point of view.
527 U.S. 41, 52–53 (1999) (plurality op.). Analogously, ASORCNA’s prohibition
on certain registrants remaining in certain places with “no legitimate purpose” does
not have a substantial enough impact on speech or expressive conduct to render it
e. Residency Restrictions
Plaintiffs’ only plausible facial claim rests against the residency restrictions
and minor cohabitation requirement. Plaintiffs claim that the residency restrictions
“infringe upon registrants’ fundamental right to determine their own nuclear and
extended familial associations without governmental interference,” (Doc. # 43,
at 36; see also, e.g., Compl. ¶¶ 85–94, 162–168, 136–139, 290–92 335, 335, 336)
and KLL and McGuire allege that these provisions interfere with their ability to
associate for the purpose of religious expression (Compl. ¶¶ 108–114, 223–226,
The Supreme Court has distinguished individual rights to intimate
association—“choices to enter into and maintain certain intimate human
relationships”—from rights to expressive association—associating “for the purpose
of engaging in those activities protected by the First Amendment—speech,
assembly, petition for the redress of grievances, and the exercise of religion.” See
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). The Eleventh Circuit has
held that the First Amendment protects both forms of association. Gaines v.
Wardynski, 871 F.3d 1203, 1212 (11th Cir. 2017). The Complaint and Response
also implicate registrants’ ability to access and remain in forums for expression.
ASORCNA’s residency and minor-visitation restrictions, in particular
ASORCNA’s new restrictions on spending more than four hours in a location on
three consecutive days or on ten total days within a given month, have a strong
potential to restrict Plaintiffs’ access to both public forums—where they may engage
in pure speech, expressive association, and expressive conduct—and to private
gathering places where they may enjoy their rights to intimate or expressive
association. Plaintiffs allege that “[r]egistrants’ habitual or systematic presence at
locations during their participation in leisurely time at parks (e.g., McGuire’s
volunteer musical performances and KLL’s bonding with his younger brother),
political activities, organizational gatherings, and free associations with other
citizens are chilled because of ASORCNA’s reporting requirements, exclusion zones
and presence restrictions.” (Compl. ¶ 300.)
While the conclusion that expression is chilled is a conclusion of law that may
be disregarded, Plaintiffs plausibly allege that ASORCNA limits registrants’
abilities to attend and participate in demonstrations, associational meetings, and
other expressive activities that the First Amendment protects. See Hodgkins ex rel.
Hodgkins v. Peterson, 355 F.3d 1048, 1059 (7th Cir. 2004) (holding that a law
imposing a nighttime curfew on juveniles implicated the First Amendment because
“[b]eing out in public is a necessary precursor to almost all public forums for speech,
expression, and political activity”); Nunez by Nunez v. City of San Diego, 114 F.3d
935, 950 (9th Cir. 1997) (holding that a minor curfew law implicated the First
Amendment and applying the test for time, place, and manner restrictions); Johnson
v. City of Opelousas, 658 F.2d 1065, 1074 (5th Cir. 1981) (holding that a minor
curfew law was overbroad). Any potential chilling effect from these provisions is
exacerbated by the steep penalties—imprisonment for one to ten years—Plaintiffs
face upon a conviction for violating the residency restrictions. As JEB’s allegations
demonstrate, even the suspicion that a registrant has violated the residency
restrictions can result in months of pretrial detention. (Compl. ¶ 182.) These
provisions plausibly implicate the First Amendment.
Plaintiffs’ specific allegations chiefly implicate the right to intimate
association. McGuire alleges that “time spent with his nieces, nephews and other
minor family members is chilled or proscribed” and that he is limited in his ability
to visit his wife and engaging in “bonding activities” with other family members.
(Compl. ¶¶ 90–94.) JEB alleges that he has been arrested for being present at a
friend’s residence and fears being arrested for violating the residency provisions in
the future. (Compl. ¶¶ 161–68, 183.) KLL, like McGuire, alleges “ASORCNA’s
minor cohabitation restriction chills or prevents KLL from spending important
bonding time with several family members when minors or minor family members
visit his home.” (Compl. ¶ 215.)
At a minimum, the right of intimate association encompasses the
personal relationships that attend the creation and sustenance of a
family—marriage, childbirth, the raising and education of children, and
cohabitation with one’s relatives. Whether the right extends to other
relationships depends on the extent to which those attachments share
the qualities distinctive to family relationships, such as “relative
smallness” and “seclusion from others in critical aspects of the
McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (quoting Roberts, 468 U.S.
at 620) (internal citation omitted).
In this Circuit, the First Amendment right to intimate association often has
been invoked when public employees allegedly have been subject to an adverse
employment action for their familial association with a certain person. See, e.g.,
Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (involving a claim that a woman’s
employment offer was revoked because she was married to another woman);
McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994) (“McCabe’s claim is that
appellees have impermissibly burdened her freedom of association right to be
married to Joel McCabe by conditioning her secretary job on her not exercising that
right.”); Cummings v. DeKalb Cnty., 24 F.3d 1349, 1354 (11th Cir. 1994) (rejecting
an assertion of this right when the plaintiffs could not establish that their association
with a disfavored employee was entitled to special constitutional protection). But
the Supreme Court has held that there is no “generalized right of social association.”
City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (internal quotation marks omitted).
Therefore, it is highly questionable whether Plaintiffs’ claimed right to bonding time
with relatives is constitutionally protected. Moreover, only the minor cohabitation
restriction—not the 2,000-feet rule—implicates Plaintiffs’ rights to cohabitate with
one’s relatives because the 2,000-feet rule only limits where Plaintiffs may
cohabitate, not with whom they may cohabitate.
McGuire’s and KLL’s most weighty accusations are that ASORCNA inhibits
their ability to attend and participate in church activities. “[I]mplicit in the right to
engage in activities protected by the First Amendment [is] a corresponding right to
associate with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Roberts, 468 U.S. at 622 (emphasis and
alterations added). Because a registrant’s house of worship is more difficult to
relocate than a registrant’s own family residence, Plaintiffs’ claims suggest that
ASORCNA-compliant registrants may need to either select their house of worship
with ASORCNA’s 2,000-feet rule in mind or limit their time within it. This state of
affairs puts registrant’s right to expressive association in play. 11
“In two different lines of cases, the Court has acted to ensure that individuals
are not disadvantaged or discriminated against on account of their associational
commitments. In the first line of cases, the Court has held that the government is
prohibited from ‘seek[ing] to impose penalties or withhold benefits from individuals
because of their membership in a disfavored group.’” Scott M. Noveck, The Promise
and Problems of Treating Religious Freedom As Freedom of Association, 45 GONZ.
L. REV. 745, 759 (2010) (quoting Roberts, 468 U.S. at 622); see also id. (“The
government cannot deny employment at a state university or a defense facility, nor
refuse admission to the state bar, simply because of past association with the
Communist party; nor can a state university refuse recognition to a student
association solely because of its affiliation with a disfavored national group.”
(footnotes and citations omitted)). “In a separate line of cases, the Court has held
that the government cannot compel disclosure of association’s membership list
where such disclosure would open a disfavored group to harassment or
Still, for the purpose of a facial claim, a restrictive statute need not “fall in toto because
it [is] capable of some unconstitutional applications . . . .” Broadrick v. Oklahoma, 413 U.S. 601,
intimidation.” Id. Although their allegations do not fit neatly into either of these
categories, Plaintiffs have, at this point in the litigation, stated a cognizable claim
under the Supreme Court’s expressive association doctrine because the residency
provisions create draconian restrictions on where registrants may live and even be
Accordingly, Plaintiffs have stated a plausible claim that the residency and
minor cohabitation restrictions implicate registrants’ First Amendment rights by
restricting their access to forums for expression and restricting their right to
expressive association. Discovery is needed on whether any potential overbreadth
2. Applying Intermediate Scrutiny
The persuasive case of Hodgkins ex rel Hodgkins v. Peterson reinforces the
plausibility of Plaintiffs’ claim and provides guidance on what standard of review to
apply to this facial claim. 355 F.3d 1048. In that case, the minor children brought
an overbreadth challenge against Indiana’s minor curfew law. Id. at 1051, 1056.
The Seventh Circuit found that the law was subject to a facial overbreadth claim
because minors who wished to engage in First Amendment activities were required
“to subject themselves to arrest—including the possibility of breathalyser tests, urine
tests and intrusive questioning about their family life—and then prove at a later time
that the activity they were engaging in fell within the affirmative defense for First
Amendment activity.” Id. at 1056–57.
Similarly, here, registrants who wish to engage in First Amendment activities
must subject themselves to the risk that law enforcement will arrest them upon
suspicions that they were present in a place for more than four hours on three or
more consecutive days or on ten or more days within a month. See § 15-20A-4(20).
JEB’s allegations suggest that registrants face a realistic threat of arrest for merely
not being at their listed address or for being present at a non-residence at the precise
times officers choose to check. (Compl. ¶¶ 159–68 & nn.6, 8); see also Hodgkins,
355 F.3d at 1056 (stating that “[t]he Supreme Court has often noted that a realistic
threat of arrest is enough to chill First Amendment rights” and collecting cases). To
paraphrase Hodgkins, being outside of one’s residence “is a necessary precursor to
almost all public forums for speech, expression, and political activity.” See 355 F.3d
at 1059. Because they face potential felony convictions for failing to register a
residence or for residing at a non-compliant address, registrants have good reason to
avoid even the slightest appearance of habitual presence in any non-residence. This
plausibly chills speech.
“Having determined that the statute is one that is eligible for facial attack, our
next task is to decide through which of the many First Amendment lenses we will
analyze the constitutionality of the curfew law.” Id. at 1057. Plaintiffs ask the court
to apply an intermediate scrutiny test to this claim. (Doc. # 43, at 86–87.) The court
agrees that a law that regulates speech without reference to its content, receives “an
intermediate level of scrutiny.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,
642 (1994). The Supreme Court explained intermediate scrutiny as follows:
Under O’Brien, a content-neutral regulation will be sustained if “it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.” [367
U.S.] at 377. To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government’s interests.
“Rather, the requirement of narrow tailoring is satisfied ‘so long as the
. . . regulation promotes a substantial government interest that would be
achieved less effectively absent the regulation.’” Ward [v. Rock
Against Racism, 491 U.S. 781, 799 (1989)] (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)). Narrow tailoring in this context
requires, in other words, that the means chosen do not “burden
substantially more speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S. at 799.
Id. at 662.
It is undisputed that the State’s interest is a compelling one: protecting the
vulnerable from predatory sex offenders. See § 15-20A-2(4) (“The Legislature
declares that its intent . . . is to assist law enforcement in carrying out their duties
and, most importantly, to protect the public, especially children.”). This interest
cannot be gainsaid. E.g., Doe v. Shurtleff, 628 F.3d 1217, 1223 (10th Cir. 2010)
(“We have no doubt that the State . . . has a compelling interest in investigating
kidnapping and sex-related crimes.”). And, importantly, this interest does not stem
from the suppression of free expression. See O’Brien, 391 U.S. at 377 (rejecting
governmental interests in the suppression of free speech as sufficient to justify a
restriction on speech).
But the hurdle for the State is proving that Alabama narrowly tailored
ASORCNA’s residency restrictions so as to not “burden substantially more speech
than is necessary to further the government’s legitimate interests.” Ward, 491 U.S.
at 799. There are several reasons to doubt such a conclusion.
First, registrants who wish to engage in protected activities outside of the
home for more than the permissible aggregate hours must determine whether the
additional residence would comply with ASORCNA’s 2,000-feet rule.
residence does not comply, then they are definitively limited in the time they can
spend engaging in protected activity in that location. If the residence complies with
the 2,000-feet rule, registrants must determine if their desired expression is worth
the hassle of reporting the residence and potentially paying a $10 fee (if they have
terminated their current residence). To do so would be physically inconvenient and
“undoubtedly chills speech and deters expressive activity.” Doe 1, No. 2:15-CV606-WKW, 2018 WL 1321034, at *16 (M.D. Ala. Mar. 14, 2018).
Second, ASORCNA’s aggregate hour restrictions include no exception for
engaging in First Amendment activities.
The State appears to suggest that
registrants who exceeded their aggregate hours at a church should not fear
prosecution because ASORCNA provides that “[w]hether a person is residing at a
place shall be determined by the totality of the circumstances, including the amount
of time the person spends at the place and the nature of the person’s conduct at the
place.” (Doc. # 36, at 41–42 (quoting § 15-20A-4(20)).) However, the following
sentence introducing the aggregate hours requirement in the Act states, without
The term reside includes, but is not limited to, spending more than four
hours a day at the place on three or more consecutive days; spending
more than four hours a day at the place on 10 or more aggregate days
during a calendar month; or spending any amount of time at the place
coupled with statements or actions that indicate an intent to live at the
place or to remain at the place for the periods specified in this sentence.
§ 15-20A-4(20) (emphasis added). This court sees no reason to depart from its
previous interpretation that the “totality of the circumstances” language is a catchall provision and that the three included examples specify circumstances in which a
registrant will always have established a residence. Doe 1, No. 2:15-CV-606-WKW,
2018 WL 1321034, at *4 n.7 (M.D. Ala. Mar. 14, 2018); see also id. at *4 (“These
three circumstances, as the Act makes clear, are illustrations rather than limitations
of the definition.”). Therefore, the State’s contention is unfounded, and registrants
have a plausible fear of being arrested, for example, while protesting in a public park
for five hours a day, three days in a row.
Third, it is difficult to escape the underlying fact that slip-ups by noncompliant
registrants can result in felony convictions under ASORCNA. “The severity of
criminal sanctions may well cause speakers to remain silent rather than communicate
even arguably unlawful words, ideas, and images.” Reno v. ACLU, 521 U.S. 844,
872 (1997). Finally, the reporting requirements apply for life without regard to risk
Because it chills such a wide swath of protected speech under penalty of a
felony, Plaintiffs have plausibly alleged that the residency requirements “burden
substantially more speech than is necessary to further the government’s legitimate
interests.” Ward, 491 U.S. at 799. 12
H. Count 2: Void For Vagueness (Facial)
Plaintiffs contend in Count 2 that the employment restrictions and loitering
restrictions are unconstitutionally vague. See Ala. Code §§ 15-20A-13, 15-20A-17.
Vague laws trespass on the constitutional guarantee of due process. 13 See Johnson
v. United States, 135 S. Ct. 2551, 2556 (2015). A statutory provision is void for
vagueness if it (1) fails to provide people of ordinary intelligence with fair notice of
what conduct it proscribes or (2) is so unclear that it authorizes or encourages
discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008).
The court has reviewed Plaintiffs’ other arguments and has determined that they do not
merit further discussion because they are poorly briefed and frivolous. (See, e.g., Doc. # 43, at
41–44 (“ASORCNA’s travel permit requirement impermissibly infringes upon registrants’
conduct expressed through interstate travel”).)
Plaintiffs oddly place their vagueness arguments in the midst of the overbreadth section
of their response. (Doc. # 43, at 78–84.) However, their Response and Complaint clearly identify
the correct source of their constitutional arguments: due process. (Doc. # 43, at 79; Compl., at 81.)
To succeed on a void-for-vagueness challenge, the plaintiff must show that the
statutory provision is “impermissibly vague in all of its applications.” Ala. Educ.
Ass’n v. State Superintendent of Educ., 746 F.3d 1136, 1139 (11th Cir. 2014)
(quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495 (1982)). If the statutory provision at issue clearly proscribes some conduct in
which the challenger engages, the challenger cannot complain of the statute’s
vagueness. Id. 1139–40.
Defendants’ motion to dismiss will be addressed as it applies to the
employment restrictions and the loitering restrictions. With respect to Plaintiffs’
claims in Count 2, Defendants’ motion to dismiss is due to be denied.
1. Employment Restrictions and Vagueness
Challenging ASORCNA’s employment provisions as unconstitutionally
vague, Plaintiffs allege that the employment provisions limit registrants “from
seeking and accepting employment because there is no preapproval process available
to registrant[s],” and that the statute does not “make clear whether intermittent
employment within employment zones of exclusion constitutes felonious activity.”
(Compl. ¶ 325.) KLL alleges that “[h]e collects furniture and appliances left for
trash on curbs on streets in his city, restores and repairs the items, and earns money
by reselling those items.” (Compl. ¶ 217.) He alleges that he “is unsure whether he
is violating the law by collecting items from the curb because he does not know
whether the locations are restricted by ASORCNA’s employment zones of
exclusion,” and even if “those locations are prohibited, KLL does not know if the
short time he spends during his pick-ups violate the restrictions.” (Compl. ¶ 217.)
Both JEB and McGuire similarly allege that they have turned down employment
when they do not know if their prospective employment locations are unlawful, and
they complain that ASORCNA does not provide a pre-approval process that would
aid that determination. (Compl. ¶¶ 99–103, 185–87.) Like KLL, McGuire has
turned down ad hoc, intermittent employment because he is unsure whether such
employment subjects him to ASORCNA’s reporting requirements and exclusion
zones. (Compl. ¶ 103.)
Plaintiffs’ allegations indicate that registrants of ordinary intelligence are not
put on adequate notice as to the extent or the effect of the employment exclusion
zones. See Johnson, 135 S. Ct. at 2556. Without a safe-harbor provision or a
publicly available land-use database, registrants can only guess at whether their
place of employment falls within a zone of exclusion. See Doe v. Snyder, 101 F.
Supp. 3d 672, 683 (E.D. Mich. 2015) (striking down geographic exclusion zones in
part because “Michigan has not provided registrants with a map of exclusion zones
or a list of all school properties”). The law also offers no guidance whatsoever for
registrants whose employer is located in a compliant zone (such as KLL’s
residence), but who have to perform service calls or other intermittent work in zones
of exclusion. The allegations also are sufficient to support the reasonable inference
that the employment restrictions allow for arbitrary enforcement. See Williams, 553
U.S. at 304. Defendants’ motion to dismiss is due to be denied as to this portion of
2. Loitering Restrictions and Vagueness
ASORCNA proscribes registrants, like KLL, who were convicted of a sex
offense involving a minor from loitering within 500 feet of “the property line of any
property on which there is a school, childcare facility, playground, park, athletic field
or facility, school bus stop, college or university, or any other business or facility
having a principal purpose of caring for, educating, or entertaining minors.” § 1520A-17(a)(1). The statute defines the term “loiter” to mean “to enter or remain on a
property while having no legitimate purpose or, if a legitimate purpose exists,
remaining on that property beyond the time necessary to fulfill that purpose.” § 1520A-17(b).
KLL alleges that he “likes to take his younger brother to parks and ball fields
to play with him. He also likes sports and wishes to go to high school and college
football, basketball and baseball games.” (Compl. ¶ 226.) He alleges that he “has
no idea what the [sic] constitutes a ‘legitimate purpose.’” (Compl. ¶ 230.) And
“because he does not understand the terms of the loitering proscription, he limits the
time he shares with his brother in public parks and fields and, although he would
like to, he simply does not go to sporting events for fear” he will be arrested for
loitering. (Compl. ¶ 230.)
Defendants correctly argue that the school check-in provisions (§ 15-20A17(b)(1)–(3)) that affect KLL’s ability to attend K-12 school activities are not vague
and clearly inform KLL as to how he may attend high school sporting events.14
However, both parties appear to agree that § 15-20A-17(a) is similar to the loitering
Plaintiffs direct their challenge towards ASORCNA’s “loitering” provisions, even
though KLL’s fear of attending high school sporting events is more properly traceable to
ASORCNA’s school check-in provisions. For clarity, Ala. Code § 15-20A-17(b) declares:
(b)(1) No adult sex offender, after having been convicted of a sex offense involving
a minor, shall enter onto the property of a K-12 school while school is in session or
attend any K-12 school activity unless the adult sex offender does all of the
a. Notifies the principal of the school, or his or her designee, before entering onto
the property or attending the K-12 school activity.
b. Immediately reports to the principal of the school, or his or her designee, upon
entering the property or arriving at the K-12 school activity.
c. Complies with any procedures established by the school to monitor the
whereabouts of the sex offender for the duration of his or her presence on the
school property or attendance at the K-12 school activity. For a public K-12
school, the local school board shall adopt a policy to effectuate this section.
(2) Procedures established to effectuate this subsection are limited to rules that
allow the principal of the school, or his or her designee, to discreetly monitor the
adult sex offender.
(3) For the purposes of this subsection, a K-12 school activity is an activity
sponsored by a school in which students in grades K-12 are the primary intended
participants or for whom students in grades K-12 are the primary intended audience
including, but not limited to, school instructional time, after school care, after
school tutoring, athletic events, field trips, school plays, or assemblies.
statute declared void for vagueness in City of Chicago v. Morales, 527 U.S. 41
In Morales, a Chicago ordinance provided for criminal penalties if 1) a police
officer reasonably “believed that at least one of the two or more persons present in
a public place is a criminal street gang member;” 2) the persons were loitering by
“remaining in any one place with no apparent purpose;” 3) the officer ordered “all
of the persons to disperse;” and 4) a person (regardless of whether they were a gang
member) disobeyed the order. Id. at 47 (alterations, internal quotation marks, and
ASORCNA’s loitering provisions similarly require that the registrant be asked
to leave by an authorized person before he or she may be subject to criminal penalty.
§ 15-20A-17(a)(2); see also id. (“An authorized person includes, but is not limited
to, any law enforcement officer, security officer, any owner or manager of the
premises, a principal, teacher, or school bus driver if the premises is a school,
childcare facility, or bus stop, a coach, if the premises is an athletic field or facility,
or any person designated with that authority.”). ASORCNA also similarly appears
to grant such authorized persons broad discretion to determine what is and is not a
“legitimate” purpose. A plurality of the Supreme Court held that such a “prior order”
requirement was insufficient to save a vague statute.
Although it is true that a loiterer is not subject to criminal sanctions
unless he or she disobeys a dispersal order, the loitering is the conduct
that the ordinance is designed to prohibit. If the loitering is in fact
harmless and innocent, the dispersal order itself is an unjustified
impairment of liberty. If the police are able to decide arbitrarily which
members of the public they will order to disperse, then the Chicago
ordinance becomes indistinguishable from the law we held invalid in
Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965). Because an
officer may issue an order only after prohibited conduct has already
occurred, it cannot provide the kind of advance notice that will protect
the putative loiterer from being ordered to disperse. Such an order
cannot retroactively give adequate warning of the boundary between
the permissible and the impermissible applications of the law. . . . The
Constitution does not permit a legislature to “set a net large enough to
catch all possible offenders, and leave it to the courts to step inside and
say who could be rightfully detained, and who should be set at large.”
United States v. Reese, 92 U.S. 214, 221 (1876). This ordinance is
therefore vague “not in the sense that it requires a person to conform
his conduct to an imprecise but comprehensible normative standard, but
rather in the sense that no standard of conduct is specified at all.”
Coates v. Cincinnati, 402 U.S. 611, 614 (1971).
Morales, 527 U.S. at 58–60 (plurality op.) (cleaned up). The fact that the class of
“authorized persons” includes, “but is not limited to,” persons with certain
institutional roles compounds this provision’s potential vagueness. A registrant who
is “asked to leave” a covered area may even need to guess whether the asker is
authorized. The only significant distinction between ASORCNA’s provision and
the law in Morales, that this statute imposes a scienter requirement of “knowing”
conduct, is not significant enough to save this claim from discovery.
The State invites this court to apply a limiting construction and interpret this
provision “to mean that the sex offender guilty of a sex offense involving a minor
has no reason to be on the property given its intended use and the circumstances
make it objectively reasonable to believe the sex offender is there for the improper
purpose of making contact with potential minor victims.” (Doc. # 36, at 52.) It
invites this invidious interpretation, and seeks to dismiss KLL’s claim without relief.
Such a course of action would be tantamount to a declaration that KLL has correctly
challenged a vague statute but that he should lose because Defendants admit that the
statute is vague.
Defendants correctly note that a state’s highest court may issue a binding
interpretation of state law that saves a statute and thereby may avoid ruling on a
constitutional question. (Doc. # 36, at 52–53). But it is not within a federal court’s
“power to construe and narrow state laws.” Grayned v. City of Rockford, 408 U.S.
104, 110 (1972); see also Gooding v. Wilson, 405 U.S. 518, 520–21 (1972) (facially
overbroad statute that state has not construed narrowly may not be given narrow
construction by federal court); Tunick v. Safir, 209 F.3d 67, 75 (2d Cir. 2000)
(“[B]ecause a state law is at play, only the state court can ultimately determine
whether a saving interpretation is appropriate under the canons of interpretation of
the particular state whose statutes it is called upon to construe.”).
If Defendants are willing and able to bind the State to such a limiting
construction, they must suit their actions to their words, and their words to their
action. See William Shakespeare, Hamlet, Act 3, Sc. 2 (“suit the action to the word,
the word to the action”). Defendants may negotiate with KLL to either settle out of
court or to seek entry of a consent decree, at which point this court would need to
consider whether the statute is susceptible to such a construction and engage in “a
severance inquiry concerning whether the legislature would have enacted the law as
limited.” Mark L. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding
Principles for Constitution Challenges to Uninterpreted State Statutes, 2002 UTAH
L. REV. 381, 468 n.418; see also id. at 468–69; see also United States v. Stevens, 559
U.S. 460, 481 (2010) (“This Court may impose a limiting construction on a statute
only if it is readily susceptible to such a construction. We will not rewrite a law to
conform it to constitutional requirements, for doing so would constitute a serious
invasion of the legislative domain and sharply diminish Congress’s incentive to draft
a narrowly tailored law in the first place.” (cleaned up)). Courts must be cognizant
of their limited role and reserve lawmaking and law enforcement to the branches to
which the people have entrusted those respective powers. 15 For now, discovery will
proceed on KLL’s challenge to § 15-20A-17(a).
I. Count 3: Equal Protection (Facial and As-Applied)
The equal protection claim in Count 3 challenges specific requirements with
which ASORCNA registrants must comply, including the residency, travel, and
Indeed, federal courts have been criticized in other contexts for failing to give the
legislative branch’s express commands their proper weight when presented with contrary
executive interpretations. See John C. Brinkerhoff Jr., FOIA’s Common Law, 36 YALE J. ON REG.
575, 608 (2019).
branded identification requirements. (See Doc. # 31, at 83–84 ¶ 410 a.–l.).) The
discussion of this count addresses KLL separately from McGuire and JEB.
As a threshold issue, only McGuire and JEB are mentioned in Count 3. Unlike
the equal protection claim in Count 5, KLL is not named individually as a Plaintiff
in this count. (See Compl. ¶ 409 (“Registrants like McGuire and JEB are subject to
ASORCNA for life . . . .”).)
The incorporation-by-reference allegation that
introduces Count 3 provides only confusion, rather than clarification, because it is a
quintessential shotgun allegation. See also Strategic Income Fund, L.L.C. v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) (explaining that one
form of a shotgun complaint “contains several counts, each one incorporating by
reference the allegations of its predecessors, leading to a situation where most of the
counts (i.e., all but the first) contain irrelevant factual allegations and legal
conclusions.”). Notwithstanding KLL’s omission from Count 3, it will be assumed
that KLL is a Plaintiff in this count. (See Doc. # 52, in which Plaintiffs argue as if
KLL is included in this count).
The absence of allegations in Count 3 as to KLL makes it difficult to decipher
the contours of his equal protection claim. Considering the totality of the complaint
against the briefing, however, the court makes two specific findings as to KLL’s
claim in Count 3. First, to the extent that his claim in Count 3 challenges his
enslavement to ASORCNA’s restrictions on grounds that his Louisiana conviction
does not subject him to registration under ASCORNA in the first instance, that claim
is repeated in Count 5 and need not be addressed independently here. (See Compl.
¶¶ 415–16.) As discussed infra, based on KLL’s unique facts, his equal protection
“class-of-one” claim in Count 5 (and only his) survives Rule 12(b)(6) review. But
to the extent that KLL’s joins McGuire’s and JEB’s equal protection theory in Count
3—that appears to be that as valid initial registrants of ASCORCNA who no longer
pose a threat to others, they are subject to more than a dozen onerous requirements
without “individualized assessments of future risk of recidivism for any registrant,”
and, thus, are the same as but treated differently than non-registrants—KLL’s claim
fails for substantially the same reason that McGuire’s and JEB’s claims fail.
2. McGuire and JEB
“The Equal Protection Clause requires the government to treat similarly
situated persons in a similar manner.” Leib v. Hillsborough Cty. Pub. Transp.
Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). “[E]qual protection analysis
requires strict scrutiny of a legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
312 (1976) (footnote omitted) (alteration added). “In determining whether a right is
sufficiently ‘fundamental’ to trigger strict equal protection scrutiny,” courts seek
“guidance in substantive due process jurisprudence, in which fundamental-rights
issues arise with some frequency.” Morrissey v. United States, 871 F.3d 1260, 1269
n.7 (11th Cir. 2017). “Where no fundamental right or suspect class is implicated,
courts evaluate equal protection claims under the rational basis test.” Id. at 1268.
As Defendants correctly note, sex offenders are not a suspect class, nor do
various sub-classifications of offenders—based on the offender’s “parental
relationship to victim, status of [the] offender as a minor, insanity or civil
commitment of the offender, [or] release of [the] offender from supervision prior to
enactment of the statute”—divide offenders into suspect classes. Doe v. Moore, 410
F.3d 1337, 1346 (11th Cir. 2005); see also United States v. LeMay, 260 F.3d 1018,
1030 (9th Cir. 2001) (“Sex offenders are not a suspect class.”). Therefore, McGuire
and JEB may only obtain strict scrutiny of their equal protection claims if they can
plausibly allege that they are similarly situated to “any other citizen of the state”
(Compl. ¶ 331) and that ASORCNA’s provisions impermissibly interfere with the
exercise of one or more of their fundamental rights.
To support the argument that strict scrutiny applies to their equal protection
claim, McGuire and JEB allege that (1) ASORCNA’s residency provisions burden
familial and other associational rights; (2) ASORCNA’s residency, employment,
reporting, travel, and loitering restrictions burden rights to religious expression and
other forms of expressive and associative conduct; (3) ASORCNA’s in-person
reporting requirements, including dual in-town and weekly homeless reporting
burden registrants’ rights to liberty and free movement; (4) ASORCNA’s brandedidentification, community notification, flier distribution, and internet dissemination
provisions unduly burden speech and violate their rights to privacy; and
(5) ASORCNA’s travel provisions burden their right to interstate travel.
McGuire and JEB also allege that ASORCNA’s additional fees for in-town
and homeless registrants violate their rights to be free from excessive fines. Only
McGuire has standing to challenge these provisions, and his challenges against them
are barred by res judicata because he could have (and to some degree did) challenge
these provisions in his first suit. See supra, at 40–47. Plaintiffs’ challenges to
provisions that apply only to juveniles and their guardians (Doc. # 62, at 8 (citing
Doc. # 46-1, at 90, 93–94)) are due to be dismissed for lack of standing.
In response, Defendants primarily contend that rational basis review applies
to McGuire and JEB’s equal protection claim because sex offenders are not a suspect
class. As explained below, both the arguments from both sides fail to address the
fundamental flaw concerning Count 3—Plaintiffs are not similarly situated to nonregistrant Alabama citizens.
With some lack of clarity, McGuire and JEB appear to allege that registrants
like them who “are no longer subject to formal punishment, have not harmed minors
or pose no discernable threat to children” are similarly situated and should be treated
the same as non-registrant Alabama citizens. (Compl. ¶ 409; Doc. # 52, at 11 (“[T]he
vast majority of current ASORCNA registrants, including the Plaintiffs, pose risk to
the public and children that is so low, it is indistinguishable from any other citizen
one faces in a random encounter.”).) McGuire and JEB’s averments identifying
other non-registrant Alabama citizens as similarly situated comparators are
insufficient to plausibly state an Equal Protection claim. Here’s why.
The “threshold inquiry in an Equal Protection case is whether the plaintiff and
the proposed comparator are similarly situated, since the Equal Protection Clause
requires that ‘persons similarly situated . . . be treated alike.’” S&M Brands, Inc. v.
Georgia ex rel. Carr, 925 F.3d 1198, 1203 (11th Cir. 2019) (quoting City of
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)); Strickland v. Alderman, 74 F.3d
260, 265 (11th Cir. 1996) (“Different treatment of dissimilarly situated persons does
not violate the Equal Protection Clause.”) (citation omitted). “If the plaintiff has not
been treated differently than a similarly situated comparator, no Equal Protection
violation exists.” Id. (citation omitted). Importantly, to be considered similarly
situated for the purposes of an Equal Protection violation, the plaintiff and the
alleged comparator must be “in all relevant respects alike.” Nordlinger v. Hahn, 505
U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid classifications. It
simply keeps governmental decisionmakers from treating differently persons who
are in all relevant respects alike.”).
Here, McGuire and JEB are not similarly situated in all relevant respects to
other non-registrant Alabama citizens. McGuire and JEB have been convicted of
crimes that require them to register under ASORCNA while their alleged
comparators have not. But they have not identified an Alabama resident who was
convicted of a crime that required registration under ASORCNA, but who was not
required to register. See Biester v. Lanier, 249 F. App’x 782, 783 (11th Cir. 2007)
(holding that the plaintiff could not “establish equal protection violations based on
his status as a sex offender . . . because he ha[d] not shown that sex offenders are
similarly situated to non-sex offenders” (citing Jones v. Ray, 279 F.3d 944, 946–47
(11th Cir. 2001))). McGuire’s and JEB’s status as sex offenders under ASORCNA
is a “relevant” aspect of any difference in treatment they have received as compared
to non-sex offenders in Alabama who are not required to register under ASORCNA.
Nordlinger, 505 U.S. at 10.
McGuire and JEB are attempting to compare themselves to Alabama non-sex
offenders. This key distinction provides a valid basis for the State to treat them
differently from every other Alabama resident who has not been convicted of a sex
offense necessitating registration under ASORCNA. No amount of discovery will
change these unescapable facts. Thus, McGuire and JEB’s equal protection claim is
due to be dismissed on this basis alone.
Even if McGuire and JEB were similarly situated to other non-registrant
Alabama citizens, their equal protection claim would still fail because many of the
challenged provisions of ASORCNA survive rational basis review. 16 Generally, a
successful equal protection claim requires that a plaintiff show he was treated less
favorably than others similarly situated and that the discriminatory treatment was
based on some constitutionally protected interest, such as race. Jones v. Ray, 279
F.3d 944, 946–47 (11th Cir. 2001). Sex offenders are not a suspect class, nor do
various sub-classifications of offenders based on the offender’s “parental
relationship to victim, status of [the] offender as a minor, insanity or civil
commitment of the offender, [or] release of [the] offender from supervision prior to
enactment of the statute” divide offenders into suspect classes. Doe v. Moore, 410
F.3d 1337, 1346 (11th Cir. 2005); see also United States v. LeMay, 260 F.3d 1018,
1030 (9th Cir. 2001) (“Sex offenders are not a suspect class.”). Accordingly, strict
scrutiny will not apply to most of Plaintiffs’ equal protection claims.
Instead, classifications based on sex offender status are subject to rational
basis scrutiny, which asks “whether they are ‘rationally related to a legitimate
governmental purpose.’” Moore, 410 F.3d at 1346 (quoting City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). Here, the Alabama Legislature
To the extent that strict scrutiny applies to certain aspects of Plaintiffs’ equal protection
claim if a similarly situated comparator were properly alleged, the court declines to reach that
laid out ample justification for its sex offender laws, Ala. Code § 15-20A-2(1), and
even if it had not, it is not difficult to imagine the laws’ legitimate governmental
See Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(emphasizing that when applying rational basis scrutiny, “[t]he actual motivations
of the enacting governmental body are entirely irrelevant” (emphasis in original)).
J. Count 4: Ex Post Facto (not labeled as facial or as-applied, but
seeks facial relief)
Count 4 of the Complaint alleges Alabama’s sex offender registration laws
violate the Ex Post Facto Clause when applied to registrants convicted before either
August 1, 2017 (the effective date for ASORCNA’s 2017 amendments) or July 1,
2011 (the effective date for the first iteration of ASORCNA). (Compl. ¶¶ 412.)
While Plaintiffs’ response fails to put forward any argument in defense of their ex
post facto claims, the court is guided by their complaint and the prior opinion in
McGuire I. As indicated in the statute of limitations section of this opinion, only
new punishments imposed by ASORCNA’s 2017 amendments may be challenged.
See supra, at 54. Because the only question at bar is whether ASORCNA’s 2017
amendments impose a retroactive punishment, these provisions have been
retroactively applied to KLL, granting him standing to bring this claim. With one
exception,17 all Plaintiffs may challenge the state’s recently changed branded
JEB does not appear to have standing to challenge the code-branded licenses.
identification practices, the residency and travel provisions, and other ASORCNA
provisions (such as lifetime adherence, the generalized reporting provisions, and
residence transfer fee) insofar as they are intertwined with changes to these
restrictions. Plaintiffs have stated a claim for relief with respect to ASORCNA’s
residency and travel restrictions. However, Plaintiffs fail to plausibly allege an ex
post facto claim concerning the branded identification provision of Act.
Accordingly, Defendants’ motion is due to be denied in part and granted in part.
The United States Constitution prohibits states from passing any “ex post
U.S. Const. Art. I, § 10.
The Ex Post Facto Clause prohibits
criminalizing conduct retroactively—“mak[ing] an action, done before the passing
of the law, and which was innocent when done, criminal.” Calder v. Bull, 3 U.S.
386, 390 (1798) (Chase, J.). In addition to prohibiting retroactive criminalization of
the act itself, the Ex Post Facto Clause prohibits increasing punishment for criminal
acts after their commission. Id.
When a statute applies retroactively, a two-step analysis determines whether
that statute violates the Ex Post Facto Clause.
If the intention of the legislature was to impose punishment, that ends
the inquiry. If, however, the intention was to enact a regulatory scheme
that is civil and nonpunitive, we must further examine whether the
statutory scheme is so punitive either in purpose or effect as to negate
[the state’s] intention to deem it civil.
Smith v. Doe, 538 U.S. 84, 92 (2003) [hereinafter Smith] (internal quotations
omitted). The Supreme Court of the United States has identified a number of
guideposts useful in the second step of that analysis, when considering whether the
effect of a statute is so punitive that it overwhelms a civil purpose. Those guideposts
ask “whether, in its necessary operation, the regulatory scheme: has been regarded
in our history and traditions as a punishment; imposes an affirmative disability or
restraint; promotes the traditional aims of punishment; has a rational connection to
a nonpunitive purpose; or is excessive with respect to this purpose.” Id. at 97 (citing
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)).
Beginning at Smith’s first step, with legislative intent, circumstances suggest
that the legislative intent underpinning ASORCNA was civil, not punitive. When it
enacted the first iteration of ASORCNA, the Alabama legislature intended to protect
“vulnerable populations, particularly children.” Ala. Code § 15-20A-2(5). The
Legislature expressly disclaimed that its intent was to punish; rather, it meant “to
protect the public and, most importantly, promote child safety.” Id. This statement
of intent has not changed.
In addition to the plain language of the statute, “the manner of the statute’s
classification” is also relevant to determining whether the legislative intent was
punitive. United States v. W.B.H., 664 F.3d 848, 854 (11th Cir. 2011). ASORCNA
is codified in Title 15 of the Alabama Code, the title containing the state’s criminal
procedures and other nonpunitive, nonsubstantive provisions for the administration
of criminal law. ASORCNA’s home in Alabama’s criminal procedure code does
not “support a conclusion that the legislative intent was punitive.” Smith, 538 U.S.
at 95 (considering Alaska’s registration law and its codification in that state’s
criminal procedure code). Thus, the analysis continues to Smith’s second step and
the Mendoza-Martinez guideposts.
Smith’s second step asks whether the effect of the law is so punitive that it
overwhelms the legislature’s civil intent. The “second step is a steep one for those
challenging a statute on those grounds.” W.B.H., 664 F.3d at 854 (citing Smith, 538
U.S. at 92). Courts “ordinarily defer to the legislature’s stated intent,” id., and
statutes enjoy a presumption of constitutionality. Smith, 538 U.S. at 110 (Souter, J.,
concurring). “[O]nly the clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty.” Id. at
92; see also W.B.H., 664 F.3d at 855 (“[S]ome evidence will not do; substantial
evidence will not do; and a preponderance of the evidence will not do.”). At this
stage, the parties have had no opportunity to develop proof—clear or otherwise.
Taking the Mendoza-Martinez guideposts in turn to analyze ASORCNA’s effect, the
court finds that Plaintiffs’ ex post facto claim survives Defendants’ motions to
The first guidepost asks “whether the regulatory regime has been regarded in
our national history and tradition as punishment.” W.B.H., 664 F.3d at 855. The
Supreme Court in Smith held that adult sex offender registries, like Alabama’s, have
not been so regarded.
Community notification provisions—which exist to
disseminate accurate and public information about criminal convictions—are unlike
historic practices such as public shaming and branding, which are unquestionably
punitive. Smith, 538 U.S. at 98; see also W.B.H., 664 F.3d at 855 (holding that the
first guidepost did not indicate that the effect of the federal sex offender registry was
To the extent that Plaintiffs allege that the branded identification provisions
amount to public shaming, this claim fails. In Smith, the Supreme Court explored
the historical practice of public shaming in light of Alaska’s sex offender community
notification provisions and recognized that “[s]ome colonial punishments indeed
were meant to inflict public disgrace.” 538 U.S. at 98. However, the Court narrowed
its description of public shaming, noting that such punishments were historically
carried out by holding “the person up before his fellow citizens for face-to-face
Whether their licenses are branded with “CRIMINAL SEX OFFENDER” or
a code, showing such licenses is undoubtedly an embarrassing experience.
However, important differences exist between ASORCNA’s license-labelling
requirement and the “scarlet-letter-type punishment” referenced by the Eleventh
Circuit in W.B.H., 664 F.3d at 855. Offenders have some degree of control over
when and where to present an identification, unlike those during colonial times who
had their transgressions aired publicly at all times, without any power to contain or
control the extent or timing of the humiliation. Thus, while there may be other
constitutional concerns with requiring registrants to carry a branded license, the
court cannot say that the license-labelling provision is closely analogous to the
historical practice of public shaming.
But at this stage, discovery is necessary to determine whether the residency
restrictions amount to banishment, another historically punitive practice. While such
restrictions do not literally “expel” registrants from their communities or prevent
them from accessing prohibited areas except to live or work, they could have,
depending on the facts shown, a practical effect similar to expulsion in some
communities, particularly now that registrants are limited in the total hours that they
can spend in any one place during a given month. See Doe v. Miami-Dade Cty.,
Fla., 846 F.3d 1180, 1185–86 (11th Cir. 2017) (holding that sex offenders had stated
a plausible ex post facto claim against Miami-Dade County’s lifetime ban on certain
sex offenders “residing within 2,500 feet of any school” (alteration omitted)); Does
#1-5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016) (holding that a Michigan law
severely restricting where sex offenders could live, work, or loiter violated the Ex
Post Facto Clause); cf. Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (“Miller”)
(holding that Iowa’s residency restrictions did not amount to a banishment).
The second guidepost asks whether the regulatory scheme “imposes an
affirmative disability or restraint.” Smith, 538 U.S. at 97. “If the disability or
restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 100.
ASORCNA does not require confinement, the prototypical form of punitive
And ASORCNA’s in-person reporting requirements, while
inconvenient for registrants, are not punitive, as they “help law enforcement track
sex offenders and ensure that the information provided is accurate.” W.B.H., 664
F.3d at 857. There is, however, a notable difference between ASORCNA and the
laws approved in W.B.H. and Smith. Unlike ASORCNA, those other laws do not
actively restrict locations where registrants may live. Because convictions are
already a matter of public record, a potential employer or landlord could learn of a
conviction through a routine background check. Smith, 538 U.S. at 101; W.B.H.,
664 F.3d at 857. With the benefit of that information, a potential employer or
landlord may decide not to hire or rent to a registrant. That choice may even be a
likely one, but the choice—under those laws—remains in the hands of the potential
employer or landlord.
By contrast, ASORCNA’s active restriction on where
registrants may live imposes a direct governmental restraint.
It is also possible that ASORCNA’s travel notification requirement amounts
to a direct restraint.
ASORCNA requires registrants to “complete a travel
notification document” when they intend to be away from their home county for
three or more consecutive days. Ala. Code § 15-20A-15. While ASORCNA no
longer allows sheriffs to deny permits, registrants must appear during what may be
limited operating hours (Compl. ¶ 120), provide “dates of travel, the intended
destination or destinations, and temporary lodging information, and any other
information reasonably necessary to monitor a sex offender who plans to travel,”
and certify that such information is true on pain of felony conviction. § 15-20A-15.
Plaintiffs have plausibly alleged that the provisions impose an affirmative disability
or restraint on their ability to travel. (Compl. ¶¶ 117–122, 183, 219, 220, 222.)
The fact that certain provisions may or do impose a direct restraint “does not
inexorably lead to the conclusion that the government has imposed punishment.”
Kansas v. Hendricks, 524 U.S. 346, 363 (1997) (internal quotations omitted)
(holding that Kansas’s civil commitment scheme for sexually violent predators—
though it imposed a direct restraint—did not violate the Ex Post Facto Clause). The
guideposts are “neither exhaustive nor dispositive,” Smith, 538 U.S. at 97, and they
certainly should not be dispositive at this stage, where questions remain.
Consequently, the analysis continues to the third guidepost, which asks
whether the law promotes traditional aims of punishment, namely retribution and
deterrence. W.B.H., 664 F.3d at 858. The Alabama legislature did not mention
retribution but acknowledged deterrence was one purpose of ASORCNA. Ala. Code
§ 15-20A-2(1) (“Registration and notification laws aid in public awareness and not
only protect the community but serve to deter sex offenders from future crimes
through frequent in-person registration.”).
But a deterrent purpose will not
necessarily render a registration requirement punitive, and an incidental deterrent
effect will not do so either. Smith, 538 U.S. at 102. Thus, this court follows the
reasoning of the Supreme Court and the Eleventh Circuit and concludes that
ASORCNA’s deterrent purpose “is not enough to justify a finding that [its] purpose
is punitive” as a matter of law. W.B.H., 644 F.3d at 858 (citing Smith, 538 U.S. at
The fourth—and “most significant”—guidepost asks whether the statute is
rationally connected to a nonpunitive purpose. Smith, 538 U.S. at 102. Again, the
reasoning of the Supreme Court and the Eleventh Circuit is instructive. ASORCNA,
like the statutes considered by those courts, embodies the legitimate, nonpunitive
aim “of promoting public safety ‘by alerting the public to the risk of sex offenders
in their community.’” W.B.H., 664 F.3d at 859 (quoting Smith, 538 U.S. at 103).
The registration requirements, community notification provisions, and residency and
employment restrictions are all connected to the civil, nonpunitive aim “of protecting
vulnerable populations, particularly children.” Ala. Code § 15-20A-2(5).
Finally, the fifth guidepost directs the court to consider whether ASORCNA’s
requirements are excessive with respect to its nonpunitive purpose. Smith, 538 U.S.
at 97. This calls for assessment of the impact of the challenged provisions. The
absence of a particularized risk assessment as to the length of time since the offense
or the likelihood of violence or recidivism does not, alone, make ASORCNA
excessive and therefore punitive. Alabama, like any other state, has the authority to
make a rule of universal classification, “treating ‘convicted sex offenders as a class
rather than requiring individual determinations of their dangerousness.’” W.B.H.,
664 F.3d at 859 (quoting Smith, 538 U.S. at 104 (alterations omitted)). The Ex Post
Facto Clause allows states to make “reasonable categorical judgments that
conviction of specified crimes should entail particular regulatory consequences.”
Smith, 538 U.S. at 103. Nonetheless, the categorical treatment of registrants—
failing to differentiate among registrants based on their offense, requiring lifetime
registration for all registrants—is one factor to consider when assessing
ASORCNA’s reasonableness. The residency restrictions, travel restrictions, and the
lifetime registration period may impose, cumulatively, an onerous and direct
restraint. The Alabama Legislature has determined that 2,000 feet is the appropriate
restrictive radius within which registrants may not live, and such determinations are
“the sort of task for which the elected policymaking officials of a State, and not the
federal courts, are properly suited.” Miller, 405 F.3d at 715. But the reasonableness
of that decision is a determination for the courts. “The excessiveness inquiry of our
ex post facto jurisprudence is not an exercise in determining whether the legislature
has made the best choice possible to address the problem it seeks to remedy. The
question is whether the regulatory means chosen are reasonable in light of the
Smith, 538 U.S. at 105.
Answering the question of
reasonableness requires discovery and a better informed judicial review at summary
judgment or trial. 18 Plaintiffs are entitled to develop facts on which the court may
determine the reasonableness of the restrictions and then weigh reasonableness,
among the other Mendoza-Martinez guideposts, to determine whether Plaintiffs have
provided the clearest proof that the punitive effect of the residency and travel
provisions overwhelms their civil intent.
K. Count 5: Selective Enforcement/Class of One (as-applied against
Count 5 is labeled a Fourteenth Amendment “selective enforcement,” “class
of one” claim on behalf of KLL. 19 (Compl., at 85–86.) The Eleventh Circuit has
Defendants cite this court’s findings in McGuire 1 that McGuire had not proven that
ASORCNA’s 2011 versions of these provisions to argue for dismissal. (Doc. # 36, at 51 (citing
McGuire 1, 83 F. Supp. 3d at 1240–41, 1258–59, 1269).) However, those findings were made
after a four-day bench trial. These claims likewise merit the opportunity for further development.
Although KLL also alleges that he brings Count 5 for a violation of the Fifth
Amendment, the Fifth Amendment provides an equal protection remedy only against the federal
government. See United States v. Houston, 456 F.3d 1328, 1335 n.5 (11th Cir. 2006) (“[T]he
Supreme Court has established that the Due Process Clause of the Fifth Amendment impliedly
imposes the same obligations on the federal government as does the Equal Protection Clause on
the states . . . .”). As this claim is brought against a State of Alabama official, it implicates only
the Equal Protection Clause of the Fourteenth Amendment. See id.
recognized that “[e]qual protection claims are not limited to individuals
discriminated against based on their membership in a vulnerable class.” Campbell
v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). Equal protection also
encompasses “any individual’s right to be free from intentional discrimination at the
hands of government officials.” Id. (citing E&T Realty v. Strickland, 830 F.2d 1107,
1112 (11th Cir. 1987)). In Campbell, the Eleventh Circuit explained that “[t]o
prevail on this traditional type of equal protection claim, basically a selective
enforcement claim, . . . Plaintiffs must show (1) that they were treated differently
from other similarly situated individuals, and (2) that Defendant unequally applied
a facially neutral [law] for the purpose of discriminating against Plaintiffs.” Id.
Campbell also recognized the “newer trend in equal protection law, a ‘class of one
claim’ without a necessary showing of ill will or discriminatory purpose.” Id. (citing
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). In a classof-one claim, “the plaintiff alleges that [he] has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference in
treatment.” Olech, 528 U.S. at 564.
Both tests share the first element: a plaintiff must identify a similarly situated
comparator. “To be ‘similarly situated,’ the comparators must be ‘prima facie
identical in all relevant respects.’” Grider v. City of Auburn, Ala., 618 F.3d 1240,
1264 (11th Cir. 2010) (quoting Griffin Indus. v. Irvin, 496 F.3d 1189, 1202 (11th
Cir. 2007); Campbell, 434 F.3d at 1314 (same); see also Young Apartments, Inc. v.
Town of Jupiter, 529 F.3d 1027, 1045 (11th Cir. 2008) (“[T]he same strict ‘similarly
situated’ standard applies whether an equal protection claim is brought under a ‘class
of one’ theory or a traditional theory of unlawful discrimination (quoting Griffin
Indus. v. Irvin, 496 F.3d 1189, 1204–05 (11th Cir. 2007)). As to the second element
of the tests, the distinctions in application, if any, are less clear under Eleventh
Circuit decisions. The Eleventh Circuit has suggested, though, that the application
of a rational basis standard under the Campbell test is appropriate where, as here, a
non-suspect class is involved. See Young Apartments, Inc., 529 F.3d at 1046 n.8
(“We also note that the district court’s summary judgment ruling applied a rational
basis standard to the second prong of the Campbell test . . . . Campbell, 434 F.3d
at 1314. If Young Apartments is able to reassert its unequal enforcement claims by
offering new evidence of disparate treatment vis-a-vis the landlords of non-Hispanic
tenants, then strict scrutiny of Jupiter’s motivations would, of course, apply.”).
In their briefing, Plaintiffs advanced no arguments in support of Count 5.
While their introductory section states that they “will respond to the State’s motion
to dismiss on counts 3 through 5,” this promise went unfulfilled. (Doc. # 43, at 19.)
Notwithstanding the lack of argument, the allegations in Count 5 have been
construed liberally in Plaintiffs’ favor.
Regarding JEB’s and McGuire’s share of Count 5, Plaintiffs’ shotgun
complaint makes it “virtually impossible to know which allegations of fact are
intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). McGuire appears to allege that
the requirement that in-town registrants register quarterly with and pay $10 to both
city and county law enforcement and the weekly homeless reporting requirement are
selectively enforced against him. (See Compl. ¶¶ 359–60 (“ASORCNA creates a
broad class of similarly situated persons, including homeless registrants, all who are
subject to reporting in-person requirements. But members of the state-created class
(Ala. Code § 15-20A-5) of registrants are treated disparately. Homeless registrants
of ASORCNA are subject to the same residential exclusion zones as registrants with
homes.”); Compl. ¶¶ 361–77, 417.) This claim, though, is barred by res judicata
because McGuire was affected by the homeless and dual in-town reporting
requirements at the time of McGuire 1. To the extent that JEB challenges these same
provisions, as previously discussed, he lacks standing because he lives outside a
municipality at a fixed residence. (Compl. ¶ 189); see supra, at 32–33.
KLL’s selective enforcement/class-of-one equal protection claims are more
substantial. KLL claims that ASORCNA’s restrictions should not apply to him in
the first instance because the consensual sexual relationship he had with his sixteenyear-old girlfriend when he was seventeen years old, although a crime in Louisiana,
is not a crime in Alabama. (Compl. ¶¶ 414–17; see also Compl. ¶¶ 192–96.) Count
5 alleges that there is no rational basis for requiring KLL to register under
ASORCNA where the conduct underlying his Louisiana conviction, see La. Rev.
Stat. § 14:92(A)(7), “is not a crime in Alabama,” while “all other citizens of
Alabama” who engage in a similar sexual act are not required to register under
ASORCNA. (Compl. ¶ 415; see also id. ¶ 146.) In other words, KLL identifies his
comparator as an Alabama resident who committed a sexual act in Alabama similar
to his but who was not required to register under ASORCNA “due to [the] state [of
Alabama]’s designation of non-criminality to the sexual act KLL engaged in” while
in Louisiana. (Compl. ¶ 416.) However, Defendants contend that KLL must
identify an individual “who despite being classified as a sex offender in another state
and required to register as a sex offender by another state does not have to register
as a sex offender in Alabama.” (Doc. # 36, at 63.) Discovery may prove Defendants
correct, but, at the pleading stage, where the allegations are construed in the light
most favorable to KLL, he has set forth allegations that plausibly demonstrate the
existence of a similarly situated comparator.
To begin, Defendants persuasively present that KLL’s comparator must be
measured against the ASORCNA provisions that required his registration. KLL
alleges that the State required him to register under “a catch-all provision of
ASORCNA, § 15-20-5(38).” (Compl. ¶ 204.) Section 15-20A-5(38) provides that
a “sex offense” includes “any offender determined in any jurisdiction to be a sex
offender shall be considered a sex offender in this state.” Defendants agree but say
that KLL also was required to register under § 15-20A-5(37). Section 15-20A-5(37)
provides that a “sex offense” includes “[a]ny crime committed in another state . . . if
that jurisdiction also requires that anyone convicted of that crime register as a sex
offender in that jurisdiction.”20 However, contrary to Defendants’ arguments, using
these ASCORCNA provisions for sizing up a similarly situated comparator, the
court finds that the allegations plausibly plead a comparable comparator that propels
KLL past the pleadings to discovery, even if just barely so.
KLL sets forth allegations that suggest that, when he entered his plea
agreement, he was not an “offender determined in [Louisiana] to be a sex offender,”
see § 15-20A-5(38), and he had not committed a crime for which he was required to
register, § 15-20A-5(37). Specifically, KLL expressly alleges that he “was not
required to register as a sex offender after accepting the plea agreement” on his
conviction for contributing to the delinquency of a minor. (Compl. ¶ 198 (emphasis
added).) This allegation, construed in the light most favorable to KLL, suggests
some sort of a plea deal whereby KLL was absolved from the sex-offender
More specifically, Defendants argue that, as of 1995, Louisiana law required individuals
convicted of KLL’s crime to register as sex offenders. See 1995 La. Sess. Law Serv. Act 1290
(S.B. 818) (West); see also La. Rev. Stat. § 15:541(24)(a) (categorizing a violation of La. Rev.
Stat. § 14:92(A)(7) as a sex offense); id. § 15:542(A)(1)(a) (requiring adults convicted of a sex
offense as defined in § 15:541 to register as a sex offender). Defendants contend, therefore, that,
as a matter of law, § 15-20A-5(37) required KLL to register under ASORCNA.
registration requirement and the designation as a sex offender under Louisiana law.
The propriety of a plea deal that excepted KLL from the strictures of Louisiana’s
law, if that is the case, has not been raised or argued and is premature for resolution
on the allegations. Neither the plea agreement itself nor its specific terms are
incorporated into the complaint. Discovery is necessary to resolve the particulars
surrounding his plea agreement with the State of Louisiana. Whether and how
KLL’s crime of conviction and status under Louisiana’s laws—for reasons of his
plea deal or otherwise—initially relieved him from the strictures of Louisiana’s sex
offender requirements can be sifted during discovery.
Furthermore, as alleged, KLL’s conduct that eventually required his
registration under Louisiana’s sex offender laws was the violation of “the residency
terms of his probation,” not the commission of a sex-offense crime. (Compl. ¶ 199
(emphasis in original).) The court cannot rule on the allegations alone that KLL’s
subsequent violation of state probation, proceedings which traditionally are civil (not
criminal) in nature, constituted a “crime” that required his registration under
Louisiana’s sex offender laws or that labeled him a sex offender. These underlying
factual subtleties, to which Count 5 is tethered, could (or could not) prove significant
but, for now, must be construed in the light most favorable to KLL.
In short, the allegations plausibly suggest that KLL was not convicted of a
crime in Louisiana that required him to register as a sex offender under Louisiana
law and that he was not determined to be a sex offender under Louisiana law. Under
these facts, upon being required to register in Alabama, he was treated differently
from non-sex offenders in Alabama who are not required to register.
Furthermore, if the foregoing allegations are true, then KLL plausibly has
alleged facts from which it can be inferred that Defendant Marshall intentionally
required KLL to register as a sex offender under ASORCNA where he did not
require registration by other similarly situated non-sex offenders and that the
demand that KLL register was irrational. See Olech, 528 U.S. at 565; see also
Carruth v. Bentley, 942 F.3d 1047, 1058 (11th Cir. 2019) (observing that the
Supreme Court has “explained that the class of one theory applies when there is ‘a
clear standard against which departures, even for a single plaintiff, [can] be readily
assessed.” (citing Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 602 (2008)).
Defendant’s argument that it is rational for the State to rely on Louisiana’s ultimate
requirement that KLL register as a sex offender might ultimately prevail but
presently is too generic to defeat the factual nuances of KLL’s unique situation. (See
Doc. # 36, at 66.)
In sum, KLL has plausibly alleged a selective enforcement claim, which is
premised on a non-suspect classification, under a “class of one” theory. KLL’s claim
can be revisited in the summary judgment stage if the discovery process undercuts
For the foregoing reasons, it is ORDERED that Defendants’ motion to dismiss
(Doc. # 35) is GRANTED in part and DENIED in part as follows:
(1) Defendants’ motion to dismiss Count 1, which is a First Amendment
overbreadth facial challenge, is GRANTED as it relates to ASORCNA’s travel
restrictions (§ 15-20A-15), employment restrictions (§ 15-20A-13), in-person
reporting/quarterly reporting and fee-payment provisions (§§ 15-20A-10, 15-20A7(a)(4)-(8)), branded identification requirements (§ 15-20A-18), community
notification provision (§ 15-20A-21), internet dissemination provision (§ 15-20A8), and loitering provision (§ 15-20A-17).
These aspects of Count 1 are
DISMISSED with prejudice. However, Plaintiffs are granted leave to file a motion
to amend their complaint, on or before February 1, 2021, if they desire to add a
compelled speech claim in connection with ASORCNA’s branded identification
requirement. The proposed amendment must clearly identify what type of branded
identification each Plaintiff currently carries and the injuries that have flowed
Defendants’ motion to dismiss Count 1 is DENIED as it relates to
ASORCNA’s residency and minor cohabitation restrictions (§ 15-20A-11).
Specifically, Plaintiffs have stated a plausible claim that the residency and minor
cohabitation restrictions implicate registrants’ First Amendment rights by restricting
their access to forums for expression.
Defendants’ motion to dismiss Count 2, which is a void for vagueness
challenge pursuant to the Fourteenth Amendment Due Process Clause, is DENIED
in part because Plaintiffs have stated a plausible claim that ASORCNA’s
employment restrictions (§ 15-20A-13) are unconstitutionally vague and KLL has
stated a plausible claim that that ASORCNA’s loitering provision (§ 15-20A-17) is
unconstitutionally vague. The motion to dismiss Count 2 is GRANTED as to
McGuire’s and JEB’s challenge to the loitering provision because they lack standing
to challenge that portion of the statute.
Defendants’ motion to dismiss Count 3, which is an equal protection
claim, is GRANTED, and this claim is DISMISSED with prejudice.
Defendants’ motion to dismiss Count 4, which is a facial ex post facto
claim, is GRANTED as it relates to registrants convicted before July 1, 2011 (the
effective date for the first iteration of ASORCNA) because such claim is barred by
the applicable statute of limitations. Defendants’ motion to dismiss Count 4 is also
GRANTED as it relates to the branded identification provisions (§ 15-20A-18) of
ASORCNA. These claims are dismissed with prejudice.
Defendants’ motion to dismiss Count 4 is DENIED as it relates to
registrants convicted before August 1, 2017 (the effective date for ASORCNA’s
2017 amendments) because Plaintiffs have stated a plausible claim for relief that the
changes to the residency (§ 15-20A-11) and travel restrictions (§ 15-20A-15) violate
the Ex Post Facto Clause.
Defendants’ motion to dismiss Count 5, which is a selective
enforcement/class-of-one claim pursuant to the Equal Protection Clause, is
GRANTED with prejudice as to McGuire and JEB.
Defendants’ motion to dismiss Count 5 is DENIED as to KLL.
It is further ORDERED that, to the extent Plaintiffs seek to add REL and ALC
as additional plaintiffs to this lawsuit, that request is DENIED.
DONE this 7th day of January, 2021.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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