Pittman v. Strange et al
Filing
42
ORDER granting 31 Motion for Summary Judgment; granting 31 Motion for Judgment on the Pleadings as to Plaintiff's "as-applied" ex post facto challenge.; finding as moot 40 Motion for Oral Argument. Signed by Senior Judge Charles R. Butler, Jr on 9/22/2014. copies to parties. (sdb)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
WILLIAM
HENRY
PITTMAN,
Plaintiff,
v.
LUTHER
STRANGE,
in
his
official
capacity
as
Attorney
General
of
the
State
of
Alabama,
and
JOHN
RICHARDSON,1
in
his
official
capacity
as
Acting
Director
of
the
Alabama
Department
of
Public
Safety,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
12-‐00667-‐CB-‐M
ORDER
This
matter
is
before
the
Court
on
a
motion
for
judgment
on
the
pleadings
or,
alternatively,
motion
for
summary
judgment,
filed
by
the
Defendants
(Doc.
31),
Plaintiff’s
response
(Doc.
37)
and
Defendant’s
reply
(Doc.
39).
After
due
consideration
of
all
issues
raised,
the
Court
finds
that
the
motion
is
due
to
be
granted.
I.
Factual
&
Procedural
Background
Plaintiff
William
Henry
Pittman
is
a
convicted
sex
offender.
In
1989,
Pittman
pled
guilty
in
the
United
States
District
Court
for
the
Southern
District
of
Mississippi
1
Pursuant
to
Rule
25(d)
of
the
Federal
Rules
of
Civil
Procedure,
John
Richardson,
Acting
Director
of
the
Alabama
Department
of
Public
Safety
has
been
substituted
as
an
official
capacity
defendant
in
place
of
Hugh
McCall,
former
Director
of
the
Alabama
Department
of
Public
Safety.
to
a
Federal
offense—Transportation
of
a
Minor
for
Sexual
Purposes.2
In
2002,
Pittman
moved
to
Alabama
where
he
opened
a
small
loan
business,
Cash-‐N-‐A-‐Dash.
In
January
2012,
he
was
indicted
in
this
district
for
failure
to
register
as
a
sex
offender,
in
violation
of
the
Federal
Sex
Offender
Registration
and
Notification
Act
(SORNA).
See
Criminal
No.
12-‐00014-‐CG-‐C,
Doc.
1.
In
June
2012,
Pittman
was
also
indicted
on
a
charge
of
possession
of
a
firearm
by
a
convicted
felon.
See
Criminal
No.
12-‐00155-‐WS-‐C.
Pittman
pled
guilty
to
the
latter
charge,
and
the
failure-‐to-‐
register
charge
was
dismissed.
Pittman
was
sentenced
to
10
months
in
prison.
When
he
was
released
from
prison
in
2014,
Pittman
was
forced
to
relocate
his
residence
due
to
its
proximity
to
a
school.3
As
a
convicted
sex
offender,
Pittman
is
subject
to
the
requirements
of
the
Alabama
Sex
Offender
Registration
and
Community
Notification
Act
(ASORCNA),
Ala.
Code
§§
15-‐20A-‐1,
et
seq.
(1975,
as
amended).
In
his
complaint
seeking
declaratory
judgment,
Pittman
challenged
the
constitutionality
of
ASORCNA.
Specifically,
Plaintiff
contested
“the
procedure
used
[by
the
Defendants]
to
determine
the
Plaintiff
.
.
.
to
be
a
‘foreign
jurisdiction
convicted
sex
offender’”
as
well
as
“the
Defendants’
final
determination
that
Pittman
is
non-‐compliant
with
Alabama’s
sex
offender
registry[,]
administrative
code
and
Alabama
statute.”
(Compl.
¶
1,
Doc.
1.)
Defendants
filed
a
motion
to
dismiss
the
complaint
for
failure
to
state
a
claim
on
which
relief
can
be
granted.
The
Court
2
Pittman
devotes
most
of
the
“facts”
section
of
his
summary
judgment
response
to
his
version
of
events
that
led
him
to
plead
guilty
to
the
underlying
offense,
none
of
which
is
relevant
to
the
legal
issues
presented
in
this
case.
3
Pittman
argues
throughout
his
brief
that
ASCORNA
is
punitive
because
it
will
also
force
him
to
relocate
his
business,
but
he
has
not
explained
this
assertion.
Apparently,
the
business
remains
in
its
original
location.
2
granted
the
motion
to
dismiss
as
to
Plaintiff’s
due
process
and
equal
protection
claims
but
denied
the
motion
as
to
Plaintiff’s
ex
post
facto
challenge.
That
claim,
as
set
fort
in
the
compliant,
is:
[
]
The
Defendants
are
attempting
to
enforce
a
law
which
was
enacted
after
Pittman’s
guilty
plea
in
1998.
The
laws
[sic]
sought
to
be
enforced
by
the
Defendants
were
enacted
after
Pittman
leased
his
business
property
in
approximately
2001-‐2002.
It
is
an
ex
post
facto
law.
The
question
becomes
is
it
a
permissible
ex
post
facto
application
of
law?
The
test
of
whether
an
ex
post
facto
law
is
permissible
is
whether
or
not
the
application
of
the
ex
post
facto
law
is
punitive
in
nature
versus
a
function
of
public
safety.
[
]
Plaintiff
can
demonstrate
the
application
of
the
law
to
his
specific
set
of
facts
is
punitive.
The
application
of
law
to
Pittman
will
expose
him
to
criminal
prosecution
for
reported
non-‐compliance.
Additionally
application
of
the
law
by
the
Defendants
will
deprive
Pittman’s
liberty
and
property
to
which
he
was
rightfully
entitled
before
the
law’s
enactment.
Pittman
acted
in
reliance
on
the
law
as
it
existed
at
the
time
he
established
his
business
and
its
location.
If
an
ex
post
facto
law
is
applied
in
such
a
way
as
to
be
punitive
in
nature,
then
it
is
violations
the
[sic]
the
Constitution.
Mir.
Pittman
requests
a
trial
on
the
merits
in
which
he
can
present
evidence
of
the
punitive
effect
of
the
ex
post
facto
law.
(Compl.,
¶¶
19-‐20,
emphasis
added.)
The
Court
interpreted
Plaintiff’s
claim
to
assert
only
an
‘as
applied’
ex
post
facto
challenge
to
ASORCNA.”
(Order
at
11
n.
5,
Doc.
14.)
In
denying
the
motion
to
dismiss,
this
Court
applied
the
Supreme
Court’s
ex
post
facto
analysis
as
set
forth
in
Smith
v.
Doe,
538
U.S.
84
(2003),
a
case
involving
Alaska’s
sex
offender
notification
act:
The
first
part
of
the
Supreme
Court’s
ex
post
facto
analysis
in
Smith
is
purely
legal.
Initially,
the
Court
“’must
ascertain
whether
the
legislature
meant
the
statute
to
establish
civil
proceedings.’”
Smith,
538
U.S.
at
92
(quoting
Kansas
v.
Hendricks,
521
U.S.
346,
361
(1997)).
Obviously,
if
the
intent
was
punitive,
then
the
Ex
Post
Facto
Clause
prohibits
retroactive
application.
Id.
If
the
legislature
intended
to
create
“a
regulatory
scheme
that
is
civil
and
nonpunitive,”
then
the
3
Court
must
determine
whether
the
law
is
“so
punitive
in
either
purpose
or
effect”
as
to
render
it
a
criminal
penalty.
Id.
The
Supreme
Court
has
cautioned
that
“’only
the
clearest
proof
will
suffice
to
override
legislative
intent
and
transform
what
has
been
denominated
a
civil
remedy
into
a
criminal
penalty.’”
Id.
(quoting
Hudson
v.
United
States,
522
U.S.
93,
100
(1997))
(internal
quotations
omitted).
(Order
at
12.)
Applying
that
first
step
of
the
Smith
analysis,
the
Court
concluded
that
the
Alabama
Legislature’s
clear
intent
in
enacting
ASORCNA
“was
to
create
a
regulatory
scheme
to
protect
the
public
and
promote
child
safety.”
(Id.
at
13.)
With
regard
to
the
second
step,
the
Court
reasoned
that
“the
inquiry
also
involves
factual
determinations”
because
“[t]he
existence
of
a
burden
of
proof
implies
the
presentation
of
evidence.”
(Id.
at
14.)
At
the
initial
pleading
stage,
the
Court
found
Plaintiff’s
complaint
stated
a
plausible
“as-‐applied”
ex
post
facto
claim
based
on
the
assertion
that
ASORCNA’s
restrictions
would
require
Plaintiff
to
move
his
home
and
business.
II.
Issues
Presented
Defendants
seek
judgment
on
the
pleadings
because,
they
argue,
“the
case
for
outright
dismissal
of
Pittman’s
ex
post
facto
claim
is
far
more
compelling
an
the
Defendant’s
articulated
in
their
short
motion
to
dismiss.”
(Defs.’
Br.
3,
Doc.
34.)
In
particular,
Defendants
point
out,
first
that
the
factual
component
of
the
ex
post
facto
analysis
must
be
viewed
with
great
deference
to
the
legislative
intent
and,
second,
the
facts
to
be
considered
are
“legislative
facts
of
which
the
Court
may
take
judicial
notice.”
(Id.)
Alternatively
Defendants
argue
that
summary
judgment
is
appropriate
because
the
facts
upon
which
Plaintiff
relies
do
not
satisfy
the
heavy
burden
of
proof
necessary
to
transform
a
civil
regulatory
scheme
into
an
ex
post
facto
criminal
punishment.
4
In
response,
Plaintiff
argues
that
the
motion
for
judgment
on
the
pleadings
is
due
to
be
denied
because
the
pleadings
have
not
changed
since
the
Court
ruled
on
the
motion
to
dismiss.
With
regard
to
the
motion
for
summary
judgment,
Plaintiff
says
there
is
“[a]
mountain
of
evidence”
that
proves
“that
the
application
of
ASORCNA
is
punitive
in
effect
so
as
to
overcome
the
legislative
label
of
‘non-‐
punitive’.”
(Pl.’s
Br.
6,
Doc.
37.)
Further,
Plaintiff
points
out
that
this
case
is
“an
outlier.
It
presents
such
an
unusual
pattern
of
facts
that
a
ruling
in
[Plaintiff]’s
favor
is
almost
certain
not
to
open
the
door
for
cases
to
follow
unless
they
have
similarly
unique
circumstances.”
(Id.
6.)
As
discussed
below,
the
ex
post
facto
claim
Plaintiff
asserted
in
his
complaint
is
actually
different
from
the
ex
post
facto
claim
Plaintiff
has
argued
in
his
summary
judgment
response.
Judgment
on
the
pleadings
is
due
to
be
granted
as
to
the
former,
and
summary
judgment
is
due
to
be
granted
as
to
the
latter.4
III.
Standard
of
Review
A.
Motion
for
Judgment
on
the
Pleadings
A
motion
for
judgment
on
the
pleadings
must
be
granted
“when
there
are
no
material
facts
in
dispute
and
the
moving
party
is
entitled
to
judgment
as
a
matter
of
law.
All
facts
alleged
in
the
complaint
must
be
accepted
as
true
and
viewed
in
the
light
most
favorable
to
the
nonmoving
party.”
Douglas
Asphalt
Co.
v.
Qore,
Inc.,
541
F.3d
1269,
1273
(11th
Cir.
2008).
4
The
Court
does
not
address
Defendants’
argument
that
only
“legislative
facts”
should
be
considered,
judgment
on
the
pleadings
entered,
and
Plaintiff’s
evidence
disregarded.
Even
when
the
facts
proffered
by
Plaintiff
are
considered,
the
evidence
is
insufficient
to
overcome
legislative
intent
to
create
a
civil
regulatory
scheme.
5
B.
Motion
for
Summary
Judgment
Summary
judgment
should
be
granted
only
if
“there
is
no
issue
as
to
any
material
fact
and
the
moving
party
is
entitled
to
a
judgment
as
a
matter
of
law.”
Fed.
R.
Civ.
P.
56(c).
The
party
seeking
summary
judgment
bears
“the
initial
burden
to
show
the
district
court,
by
reference
to
materials
on
file,
that
there
are
not
genuine
issues
of
material
fact
that
should
be
decided
at
trial”
Clark
v.
Coats
&
Clark,
Inc.,
929
F.2d
604,
608
(11th
Cir.
1991).
Once
the
moving
party
has
satisfied
his
responsibility,
the
burden
shifts
to
the
nonmoving
party
to
show
the
existence
of
a
genuine
issue
of
material
fact.
Id.
“If
the
nonmoving
party
fails
to
make
‘a
sufficient
showing
on
an
essential
element
of
her
case
with
respect
to
which
she
has
the
burden
of
proof,’
the
moving
party
is
entitled
to
summary
judgment.”
United
States
v.
Four
parcels
of
Real
Property,
941
F.2d
1428,
1437
(11th
Cir.
1991)
(quoting
Celotex
Corp.
v.
Catrett,
477
U.S.
317
(1986))
(footnote
omitted).
“In
reviewing
whether
the
nonmoving
party
has
met
its
burden,
the
court
must
stop
short
of
weighing
the
evidence
and
making
credibility
determination
of
the
truth
of
the
matter.
Instead,
the
evidence
of
the
non-‐movant
is
to
be
believed
and
all
justifiable
inferences
are
to
be
drawn
in
his
favor.”
Tipton
v.
Bergrohr
GMBH-‐
Siegen,
965
F.2d
994,
999
(11th
Cir.
1992)
(internal
citations
and
quotations
omitted).
“However,
we
draw
these
inferences
only
“’to
the
extent
supportable
by
the
record.’”
Penley
v.
Eslinger,
605
F.3d
843,
848
(11th
Cir.
2002)
(quoting
Scott
v.
Harris,
550
U.S.
372,
381
n.
8
(2007)
(emphasis
omitted)).
Furthermore,
“[a]
dispute
over
a
fact
will
only
preclude
summary
judgment
if
the
dispute
“might
affect
6
the
outcome
of
the
suit
under
the
governing
law.”
Id.
(quoting
Anderson
v.
Liberty
Lobby,
Inc.,
477
US.
242,
248
(1986)).
IV.
ASCORNA
Effective
July
1,
2011,
Alabama
replaced
its
prior
sex
offender
registry
law,
the
Alabama
Community
Notification
Act
(CNA),
Ala.
Code
§
15-‐20-‐20,
et
seq.
(1975),
with
the
Alabama
Sex
Offender
Registration
and
Community
Notification
Act
(ASORCNA),
Ala.
Code
§
15-‐20A-‐1,
et
seq.
(1975,
as
amended).
A
person
subject
to
ASORCNA
must
register
as
a
sex
offender
with
the
Alabama
Department
of
Public
Safety
(DPS),
id.
§
15-‐20A-‐7;
must
register
with
local
law
enforcement,
pay
a
registration
fee,
and
abide
by
certain
reporting
requirements,
id.
§
15-‐20A-‐10
&
§
15-‐20A-‐22;
is
subject
to
residency,
travel,
and
employment
restrictions,
id.
§§
15-‐
20A-‐11,
-‐13,
&
-‐15;
and
is
subject
to
community
notification
requirements,
id.
§
15-‐
20A-‐21.
In
addition,
ASORCNA
requires
that
the
offender
carry
identification.
Id.
§
15-‐20A-‐18.
Of
particular
significance
in
this
case,
an
adult
sex
offender
cannot
establish
or
maintain
a
residence
or
maintain
employment
within
2,000
feet
of
a
school.
Id.
§§
15-‐20A-‐aa(a)
(residence)
&
15-‐20A-‐13(b)
(employment).
However,
exceptions
are
possible
in
some
instances.
Id.
§
15-‐20A-‐11(f)(residence)
&
§
15-‐
20A-‐25(a)
(employment).
An
“adult
sex
offender”
(i.e.
an
adult
who
has
been
convicted
of
a
sex
offense)
is
subject
to
ASORCNA’s
requirements
for
life.
Ala.
Code
§§
15-‐20A-‐3(b),
15-‐20A-‐4(1).
V.
Smith
v.
Doe
and
the
Ex
Post
Facto
Analysis
The
first
step
in
the
ex
post
facto
analysis
set
out
in
Smith
is
not
in
dispute.
Initially,
the
Court
“’must
ascertain
whether
the
legislature
meant
the
statue
to
7
establish
civil
proceedings.’”
Smith,
538
U.S.
at
92
(quoting
Kansas
v.
Hendricks,
521
U.S.
346,
361
(1997)).
In
the
order
addressing
the
motion
to
dismiss,
this
Court
held:
“The
Alabama
legislature’s
expressed
intent
was
to
create
a
civil
regulatory
scheme
to
protect
the
public
and
promote
child
safety.”
(Order
at
13,
Doc.
14.)
Pittman
concedes
this
point.
(Pl.’s
Br.
6,
Doc.
37.)
If
the
legislative
intent
“was
to
enact
a
regulatory
scheme
that
is
civil
and
nonpunitive,”
the
inquiry
“examines
whether
the
statutory
scheme
is
so
punitive
in
either
purpose
or
effect
as
to
negate
[the
legislature’s]
intention
to
deem
it
civil.”
Smith,
538
U.S.
at
97.
As
the
Eleventh
Circuit
has
recognized,
“[this]
second
step
is
a
steep
one
for
those
challenging
a
statute
on
these
grounds
.
.
.
only
the
clearest
proof
will
suffice
to
override
legislative
intent.’”
United
States
v.
W.B.H.,
664
F.3d
848,
853
(11th
Cir.
2011
(quoting
Smith,
id.
at
97
(emphasis
added)).
On
summary
judgment,
Plaintiff
argues
that
his
evidence
is
sufficient
to
meet
this
burden.
The
claim
Plaintiff
actually
pled
in
the
complaint,
however,
is
different.
It
would
add
a
third
level
to
the
ex
post
facto
analysis.
That
is,
an
otherwise
civil
regulatory
scheme
could
be
deemed
ex
post
facto
as
applied
to
a
single
individual.
The
latter
claim,
which
is
clearly
subject
to
judgment
on
the
pleadings,
is
addressed
first
below.
A.
Plaintiff’s
“As-‐Applied”
Ex
Post
Facto
Challenge
The
Supreme
Court
has
flatly
rejected
the
concept
of
an
“as-‐applied”
ex
post
facto
challenge
to
a
civil
statute.5
In
Seling
v.
Young,
531
U.S.
250
(2001),
the
Court
5
“The
Constitution
of
the
United
States,
article
1,
.
.
.
section
10,
lays
several
restrictions
on
the
authority
of
the
Legislatures
of
the
several
states;
and,
among
them,
‘that
no
state
shall
pass
any
ex
post
facto
law.’”
Calder
v.
Bull,
3
U.S.
386,
389
(1789).
An
ex
post
facto
law
is
one
that
makes
criminal
an
act
that
was
not
criminal
8
examined
an
ex
post
facto
challenge
to
Washington’s
State
Community
Protection
Act,
which
provided
for
civil
commitment
of
sexually
violent
predators.
The
Seling
court
reversed
the
Ninth
Circuit’s
ruling
that
a
complaint
“alleging
that
[the
Washington
Act]
was
punitive
as
applied”
stated
a
plausible
claim
for
relief.
Id.
at
261.
The
Court
recognized
that
“the
civil
nature
of
an
Act
cannot
be
determined
“by
reference
to
the
effect
that
an
Act
has
on
a
single
individual.”
Id.
at
262.
Further
“an
‘as
applied’
analysis
would
prove
unworkable.
Such
an
analysis
would
never
conclusively
resolve
whether
a
particular
scheme
is
punitive
and
would
thereby
prevent
a
final
determination
of
the
scheme’s
validity
under
the
Double
Jeopardy
or
Ex
Post
Facto
Clauses.”
Id.
at
263.
In
ruling
on
the
motion
to
dismiss,
this
Court
held
that
the
complaint
stated
a
plausible
claim
for
relief
based
on
an
“as-‐applied”
ex
post
facto
challenge.
As
Seling
makes
clear,
that
is
wrong
because
no
such
claim
exists.
The
posture
of
this
case
is
a
bit
different
from
that
in
Seling.
In
that
case,
the
second
step
of
the
ex
post
facto
analysis—whether
the
legislation
was
so
punitive
in
effect
as
to
render
it
a
criminal
penalty
(“the
effects
test”)—had
already
been
decided
in
favor
of
the
state.
Consequently,
the
Act
was
indisputably
civil,
and
the
only
issue
before
the
Supreme
Court
was
whether
application
of
a
civil
regulatory
scheme
to
an
individual
could
constitute
an
ex
post
facto
violation.6
Plaintiff’s
summary
judgment
response
appears
to
redefine
his
claim
to
address
the
second
when
committed
or
increases
the
punishment
for
a
previously
committed
offense.
Id.
6
The
Seling
court
did
not
prohibit
consideration
of
a
statute’s
effects
on
a
single
individual
as
evidence
of
the
act’s
overall
punitive
effect.
In
other
words,
such
evidence
may
be
considered
in
determining
whether
Plaintiff
has
proved
“by
clearest
evidence
“
that
ASORCNA
is
so
punitive
in
effect
as
to
override
legislative
intent
to
create
a
civil
regulatory
scheme.
Id.
9
step—i.e.,
that
ASORCNA
is
so
punitive
in
“purpose
or
effect”
as
to
render
it
a
criminal
penalty.7
Plaintiff
presents
evidence
of
the
effect
on
him
as
part
of
his
evidence
that
ASORCNA
is
so
punitive
overall
as
to
render
the
statute
(as
opposed
to
the
individual
application
of
the
statute)
an
ex
post
facto
violation.
B.
Plaintiff’s
Attempt
to
Prove
ASORCNA’s
Punitive
Effect
In
Smith,
the
Court
articulated
the
framework
for
determining
whether
a
civil
statute
has
a
sufficiently
punitive
effect
to
overcome
legislative
intent:
In
analyzing
the
effects
of
the
Act
we
refer
to
the
seven
factors
noted
in
Kennedy
v.
Mendoza–Martinez,
372
U.S.
144,
168–169,
83
S.Ct.
554,
9
L.Ed.2d
644
(1963),
as
a
useful
framework.
These
factors,
which
migrated
into
our
ex
post
facto
case
law
from
double
jeopardy
jurisprudence,
have
their
earlier
origins
in
cases
under
the
Sixth
and
Eighth
Amendments,
as
well
as
the
Bill
of
Attainder
and
the
Ex
Post
Facto
Clauses.
Because
the
Mendoza–Martinez
factors
are
designed
to
apply
in
various
constitutional
contexts,
we
have
said
they
are
“neither
exhaustive
nor
dispositive,”
but
are
“useful
guideposts.”
The
factors
most
relevant
to
our
analysis
are
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
(internal
citations
omitted).
Furthermore,
as
previously
noted,
“only
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
(internal
citations
omitted).
As
the
Eleventh
Circuit
said
in
W.B.H.,
“[w]e
take
the
Court
at
its
word:
some
evidence
will
not
do;
substantial
evidence
will
not
do;
and
a
7
Plaintiff’s
argument,
however,
conflates
two
distinct
principles:
Punitive
effect
and
punitive
application.
The
former,
if
proved
“by
the
clearest
evidence,”
may
render
a
civil
statute
an
ex
post
facto
violation.
Smith,
538
U.S.
at
92.
The
latter
will
not.
Seling,
531
U.S.
at
263.
10
preponderance
of
the
evidence
will
not
do.
‘[O]nly
the
clearest
proof’
will
do.”
W.B.H.,
664
F.3d
at
855
(quoting
Smith,
id.
at
97).
It
is
a
heavy
burden,
indeed,
and
one
that
Plaintiff’s
evidence
does
not
come
close
to
satisfying.
1.
Historically
Regarded
as
Punishment
Pittman
argues
that
some
aspects
of
ASORCNA
are
like
traditional
forms
of
punishment.
First,
Pitman
asserts
ASORCNA
travel
restrictions
and
registration
requirements
amount
to
punishment
based
on
his
own
experience,
to
wit:
“’I
have
been
to
prison
…
and
been
on
probation.
I
know
what
it
feels
like
to
be
punished
[and]
.
.
.
[ASORCNA’s
requirements]
are
identical
to
being
on
supervised
probation.’”
(Pl.’s
Br.
12,
quoting
Pl.’s
Aff.)
But
“feels
like
punishment”
is
not
persuasive
evidence,
or
even
persuasive
argument,
that
ASORCNA’s
restrictions
have
been
considered
punishment
throughout
history.
In
Smith
the
Supreme
Court
recognized
“some
force”
to
the
argument
that
a
registration
system
was
akin
to
supervised
release,
but
ultimately
rejected
it.
AS
the
Court
pointed
out,
there
is
a
difference
between
actions
that
must
be
reported
(such
as
ASORCNA’s
requirement
that
travel
plans
be
reported
to
authorities
in
advance)
but
do
not
restrict
movement
and
“[p]robation
and
supervised
release
which
entail
a
series
of
mandatory
conditions
and
allow
the
supervising
officer
to
seek
the
revocation
of
probation
or
release
in
case
of
infraction.”
Smith
538
U.S.
at
101.
Pittman
also
likens
aspects
of
ASORCNA
to
public
shaming,
a
historical
form
of
punishment.
The
Act
requires
that
a
convicted
sex
offender
“obtain,
and
always
have
in
his
or
her
possession,”
“a
driver’s
license
or
identification
card
bearing
a
designation
that
enables
law
enforcement
to
identify
the
licenses
as
a
sex
offender.”
Ala.
Code
§
15-‐
20A-‐18(a),
(d)
(1975,
as
amended).
Pursuant
to
this
statute,
the
Alabama
Department
of
Public
Safety
has
issued
Pittman
a
driver’s
license
bearing
the
words
“Criminal
Sex
Offender”
in
red
letters.
11
Pittman
feels
“’shamed
and
embarrassed’”
whenever
he
is
required
to
show
his
driver’s
license.
(Pl.’s
Br.
at
12,
quoting
Pl.’s
Aff.)
Further
Pittman
points
to
the
embarrassing
effects
of
the
Act’s
notification
requirement,
stating:
“’My
landlord
told
me
that
because
I
was
a
sex
offender
and
the
neighbors
complained,
he
intended
to
periodically
enter
the
rental
house
I
was
living
in
to
.
.
.
make
sure
I
was
not
doing
anything
wrong.’”
(Id.)
As
the
Smith
court
pointed
out,
however,
early
forms
of
punishment
such
as
public
shaming,
humiliation,
and
banishment
involved
more
than
the
dissemination
of
information.”
Smith,
538
U.S.
at
98.
The
practice
of
public
shaming
meant
holding
a
person
up
for
pubic
ridicule.
Id.
“By
contrast,
the
stigma
of
[sex
offender
notification
laws]
results
not
from
public
display
for
ridicule
and
shaming
but
from
the
dissemination
of
accurate
information
about
a
criminal
record,
most
of
which
is
already
public.
Our
system
does
not
treat
dissemination
of
truthful
information
in
furtherance
of
a
legitimate
governmental
objective
as
punishment.”
Id.
Furthermore,
making
information
public
is
not
transformed
into
“public
shaming”
simply
because
the
offender
feels
shame
and
embarrassment.
2.
Affirmative
Disability
or
Restraint
In
a
recent
unpublished
opinion
upholding
ASORCNA,
the
Eleventh
Circuit
discussed
the
application
of
this
factor
as
follows:
As
for
whether
ASORCNA
imposes
an
affirmative
disability
or
restraint,
this
factor
does
not
tip
the
balance
in
favor
of
[the
plaintiff].
In
analyzing
this
issue,
we
must
keep
in
mind
that
“[i]f
the
disability
or
restraint
is
minor
and
indirect,
its
effects
are
unlikely
to
be
punitive.”
As
a
result
we’ve
found
no
punitive
restraining
effect
even
where
the
federal
Sex
Offender
Registration
and
Notification
Act
(“SORNA”)
required
in-‐person
reporting
and
mandated
dissemination
on
the
internet
of
information
regarding
the
whereabouts
of
convicted
sex
offenders.
We
said
that
“[a]ppearing
in
person
may
be
more
inconvenient,
but
requiring
it
is
not
punitive.”
We
also
recognized
that
[a]lthough
the
public
availability
of
information
may
have
a
lasting
and
painful
impact
on
the
convicted
sex
offender,
these
consequences
flow
not
form
the
Act’s
registration
and
dissemination
12
provisions,
but
from
the
fact
of
conviction,
already
a
matter
of
public
record.”
To
the
extent
ASORCNA
imposes
additional
burdens,
we
still
fail
to
find
it
punitive.
Windwalker
v.
Governor
of
Alabama,
et
al.,
No
13-‐11279,
2014
WL
4290604,
*2
(11th
Cir.
Sept.
2,
2014
(Internal
citations
omitted)
(emphasis
added).
Because
Windwalker
is
an
published
opinion,
it
is
not
dispositive.
See
11th
Cir.
Rule
36-‐2.
It
is,
however,
persuasive,
even
with
respect
to
those
“additional
burdens”
about
which
Pittman
complains,
such
as
being
required
to
carry
identification,
to
have
his
photograph
taken
annually,
and
to
not
reside
near
a
school.
These
are
“inconveniences”
which
“’do[
]
not
resemble
the
punishment
of
imprisonment
…
the
paradigmatic
affirmative
disability
or
restraint.’”
United
States
v.
Under
Seal,
709
F.3d,
265
(4th
Cir.
2013)
(quoting
Smith,
538
U.S.
at
100).
3.
Promotes
Traditional
Aims
of
Punishment
“[T]he
traditional
aims
of
punishment
…
[are]
retribution
and
deterrence.”
Kennedy
v.
Mendoza-‐Martinez,
372
U.S.
144,
168
(1963).
Pittman
points
out
that
ASORCNA’s
legislative
findings
list
deterrence
as
one
of
the
aims
of
the
statute.
Those
findings
state,
in
relevant
part:
Registration
and
notification
laws
are
a
vital
concern
as
the
number
of
sex
offenders
continues
to
rise.
The
increasing
numbers
coupled
with
the
danger
of
recidivism
place
society
at
risk.
Registration
and
notification
laws
strive
to
reduce
these
dangers
by
increasing
public
safety
and
mandating
the
release
of
certain
information
to
the
public.
This
release
of
information
creates
better
awareness
and
informs
the
public
of
the
presence
of
sex
offenders
in
the
community,
thereby
enabling
the
public
to
take
action
to
protect
themselves.
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.
Frequent
in-‐person
registration
maintains
constant
contact
between
sex
offenders
and
law
enforcement,
providing
law
enforcement
with
priceless
tools
to
aid
13
them
in
their
investigations
including
obtaining
information
for
identifying,
monitoring,
and
tracking
sex
offenders.
Ala.
Code
§
15-‐20A-‐2(1)
(emphasis
added).
The
statute
acknowledges
a
known
fact,
i.e.,
“[m]ost
civil
regulatory
schemes
have
some
deterrent
effect.”
Smith,
538
U.S.
at
102.
“’To
hold
that
the
mere
presence
of
a
deterrent
purpose
renders
such
sanctions
‘criminal’
.
.
.
would
severely
undermine
the
Government’s
ability
o
engage
in
effective
regulation.”
Id.
Similarly,
a
statute’s
incidental
retributive
effect
does
not
weigh
in
favor
of
finding
the
statute
punitive.
As
the
Eighth
Circuit
held
in
Doe
v.
Miller,
405
F.3d
700
(8th
Cir.
2005),
retributive
effect
“reasonably
related
to”
and
“consistent
with
the
regulatory
objective”
is
permissible
and
“[w]hile
any
restraint
or
requirement
imposed
on
those
who
commit
crimes
is
at
least
potentially
retributive
in
effect,
we
believe
that
[the
residency
restrictions
imposed
on
convicted
sex
offenders
by
Iowa
law]
like
the
registration
requirement
in
Smith
v.
Doe,
8s
consistent
with
the
legislature’s
regulatory
objective
of
protecting
the
health
and
safety
of
children.”
Id.
at
720.
Pittman
asserts
that
ASORCNA
is
retributive
because
he
“lives
in
fear
of
his
neighbors’
wrath
and
landlord’s
invasion
of
privacy.”
(Pl.’s
Br.
14.)
Pittman’s
subjective
fear
of
retribution
is
not
evidence
of
retributive
effect.
Moreover,
even
if
the
actions
Pittman
fears
had
occurred,
incidental
effects
of
the
law
are
not
considered.
See
Doe
v.
Pataki,
120
F.3d
1263,
1279
(2nd
Cir.
1997)
(“unfortunate
incidents
that
have
occurred
in
the
aftermath
of
notification”
are
not
attributable
to
the
law
but
to
private
third
parties”);
E.
B.
v.
Verniero,
119
F.3d
1077,
1104
(3d
Cir.
14
1997)
(increased
risk
of
private
violence
“understandably
of
concern
to
plaintiffs”
but
risk
not
great
enough
to
amount
to
punishment).
4.
Rational
Connection
to
a
Nonpunitive
Purpose
The
Supreme
Court
has
said
that
this
factor—a
statute’s
rational
connection
to
a
nonpunitive
purpose—“is
a
[m]ost
significant
factor”
in
determining
whether
the
statute’s
effects
are
punitive.
Smith,
538
U.S.
at
102.
Pittman’s
argument
with
respect
to
this
factor
is
narrowly
focused
on
one
specific
ASORCNA
requirement,
that
is,
that
the
“criminal
sex
offender
designation
be
printed
on
his
driver’s
license.
He
argues
that
the
only
purpose
of
this
provision
is
to
shame
him
when
he
uses
his
identification
“at
stores,
restaurants,
doctor’s
visits
and
the
like.”
(Pl.’s
Br.
16.)
“The
requirement
of
a
‘rational
connection’
is
not
demanding:
A
statute
is
not
deemed
punitive
simply
because
it
lacks
a
close
or
perfect
fit
with
the
nonpunitive
aims
it
seeks
to
advance.’”
Windwalker,
2014
WL
4290605
at
*2
(quoting
Smith,
id.).
Like
sex
offender
notification
and
residency
requirements
reviewed
by
other
courts,
ASORCNA,
overall,
advances
“a
legitimate
nonpunitive
purpose
of
‘public
safety
.
.
.
by
alerting
the
public
to
the
risk
of
sex
offenders
in
their
community.”
Smith,
id.
at
103
(quoting
Ursery
v.
$405,089.23
in
United
States
Currency,
518
U.S.
267,
290
(1996));
see
also
Doe
v.
Bredesen,
507
F.3d
998,
1007
(6th
Cir.
2007)
(finding
rational
connections
between
residency
restrictions
and
aim
of
protecting
public
from
sex
offenders
who,
as
a
group,
have
a
high
rate
of
recidivism);
Doe
v.
Miller
,
405
F.3d
700,
721
(8th
Cir.
2005)
(reasonable
to
conclude
that
law
imposing
sex
offender
residency
restrictions
“would
protect
society
by
minimizing
the
risk
of
repeated
sex
offenses
against
minors”).
Although
15
the
driver’s
license
“sex
offender”
notation
may
be
a
loose
fit
with
ASORCNA’s
public
safety
purpose,
it
nonetheless
has
a
rational
connection.
As
Defendants
point
out
the
notation
allows
law
enforcement
to
determine
a
person’s
status
quickly
and
easily,
and
it
may
be
of
particular
use
when
computer-‐based
information
is
not
readily
accessible.
5.
Excessiveness
With
Respect
to
Nonpunitive
Purpose
Pittman
contends
that
ASORCNA
is
excessive
with
respect
to
its
public
safety
purpose
for
two
reasons.
First,
he
argues
that
the
lifetime
registration
requirement
is
excessive
in
view
of
the
type
of
offense
for
which
he
was
convicted.
However,
“the
Supreme
Court
has
already
permitted
sex
offenders
to
be
regulated
as
a
class
regardless
of
individualized
risk
assessment.”
Windwalker,
2014
WL
4290604
at
*3.
Next,
he
states
that
“having
to
move
his
home
and
business
is
excessive.”
(Pl.’s
Br.
17.)
While
the
statute
might
be
considered
excessive
in
the
Court’s
judgment
if
it
mandated
relocation
of
a
sex
offender’s
home
prohibited
his
continued
employment,
ASORCNA
does
not
do
that.8
Instead,
it
provides
exceptions
in
certain
situations.
The
residency
restriction
includes
a
“grandfather”
clause
that
allows
offenders
to
maintain
their
residence
while
incarcerated.
See
Ala.
Code
§
15-‐20A-‐11(f).
Relief
rom
employment
restrictions
is
available
pursuant
to
§
15-‐20A-‐25,
which
states:
“A
sex
offender
may
petition
the
circuit
court
in
the
county
where
the
offender
seeks
to
accept
or
maintain
employment
for
relief
from
8
The
evidence
provided
does
not
clearly
explain
Pittman’s
residence
and
employment
situation.
Pittman
has
moved
from
his
Outley
Drive
residence
and,
according
to
Defendants,
was
required
to
do
so
because
of
his
felon-‐in-‐possession
conviction.
Defendants
say
that
had
it
not
been
for
that
conviction,
Pittman
could
have
maintained
his
residence.
Pitman
apparently
has
not
been
required
to
relocate
his
business.
16
the
employment
restrictions
of
[§15-‐20A-‐13]
[unless
the
offender
was
convicted
of
certain
enumerated
sex
offenses].”
Ala
Code
§
15-‐20A-‐25(a).
In
summary,
the
Court
is
not
persuaded
that
ASORCNA’s
residency
and
employment
restrictions
are
excessive.
Even
if
those
restrictions
were
excessive,
this
single
factor
would
not
be
sufficient
to
override
the
legislature’s
intent.
6.
Other
Factors
Pointing
out
that
the
Smith
v.
Doe
factors
are
not
exclusive,
Pittman
urges
the
Court
to
consider
other
“useful
guideposts.”
Pittman
relies
on
two
state
supreme
court
cases
to
introduce
these
additional
guideposts.
However,
those
courts
were
applying
more
favorable
state
ex
post
facto
laws.
In
Doe
v.
Dep’t
of
Pub.
Safety
&
Corr.
Servs.,
430
Md.
535,
62
A.3d
123
(Md.
2013),
the
Maryland
Supreme
Court
held
that
the
state’s
sex
offender
registry
law
violated
the
prohibition
on
ex
post
facto
laws
contained
in
the
Maryland
constitution.
In
so
doing,
the
court
specifically
declined
to
follow
Smith
v.
Doe,
stating:
“We
are
persuaded,
in
the
present
case,
to
follow
our
long-‐standing
interpretation
of
the
xe
post
facto
prohibition
and
depart
from
the
approach
taken
by
the
United
States
Supreme
Court
when
it
analyzed
the
Alaskan
sex
offender
registration
statute
in
Smith
v.
Doe.”
Id.,
430
Md.
at
550,
62
A.3d
at
132.
In
Gonzalez
v.
State,
980
N.E.2d
321
(Ind.
2013),
the
Indiana
Supreme
Court
applied
the
same
guideposts
set
forth
in
Federal
law
to
its
ex
post
facto
review
under
the
state
constitution.
But
the
court
recognized
one
important
difference:
“While
Indiana
courts
have
adopted
an
approach
consistent
with
the
federal
standard
through
use
of
the
intent-‐effects
test,
.
.
.
‘Indiana
does
not
use
the
heightened
standard
of
clearest
proof
…
as
used
by
the
17
United
States
Supreme
Court.
…
Thus,
our
analysis
under
the
intent-‐effects
test
is
independent
from
that
of
the
federal
standard.”
Id.
at
316
n.
2
(internal
citations
omitted).
These
cases
are
of
no
value
in
deciding
the
applicability
of
Federal
constitutional
law.9
VI.
Conclusion
Plaintiff’s
summary
judgment
response
does
not
demonstrate
by
a
preponderance
of
evidence,
much
less
by
“the
clearest
proof,”
that
ASORCNA
is
so
punitive
in
effect
as
to
override
legislative
intent
to
create
a
civil
regulatory
scheme.
For
that
reason,
the
motion
for
summary
judgment
is
GRANTED.
Furthermore,
the
motion
for
judgment
on
the
pleadings
is
GRANTED
as
to
Plaintiff’s
”as-‐applied”
ex
post
facto
challenge.
Defendant’s
motion
for
oral
argument
(Doc.
40)
is
moot.
DONE
and
ORDERED
this
the
22nd
day
of
September,
2014.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
9
Furthermore,
the
“other
useful
guideposts”
Plaintiff
has
gleaned
from
these
cases
have
little
relevance
here.
Two
of
those
factors—whether
the
sanction
applies
to
behavior
that
is
already
a
crime
and
whether
it
comes
into
play
only
on
a
finding
of
scienter—are
factors
that
the
Smith
court
found
not
to
be
relevant.
Smith,
538
U.S.
at
97
(applying
“most
relevant”
Mendoza-‐Martinez
factors).
Plaintiff
admits
that
the
final
“guidepost”
he
proffers—the
availability
of
meaningful
review
of
an
offender’s
future
dangerousness—can
also
be
considered
under
the
“excessiveness”
factor.
18
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