Evenstad v. City of West Saint Paul et al

Filing 56

MEMORANDUM OPINION AND ORDER granting 13 Plaintiff's Motion for Preliminary Injunction (Written Opinion). Signed by Chief Judge John R. Tunheim on January 25, 2018. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THOMAS WAYNE EVENSTAD,
Civil No. 17-4067 (JRT/DTS)
Plaintiff,
v.
CITY OF WEST ST. PAUL, JENNY
HALVORSON, JOHN DOES 1-10, and
JANE DOES 1-5,

MEMORANDUM OPINION
AND ORDER GRANTING
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION

Defendants.

Adele D. Nicholas, LAW OFFICE OF ADELE D. NICHOLAS, 5707
West Goodman Street, Chicago, IL 60630; Mark. G. Weinberg, 3612
North Tripp Avenue, Chicago, IL 60641; and Peter J. Nickitas, 431 South
Seventh Street, Suite 2446, Minneapolis, MN 55415, for plaintiff.
Monte A. Mills and Clifford M. Greene, GREENE ESPEL PLLP, 222
South Ninth Street, Suite 2200, Minneapolis, MN 55402, for defendants.

Plaintiff Thomas Wayne Evenstad filed a motion for a preliminary injunction in
this constitutional challenge against the City of West St. Paul, its mayor, and several Doe
defendants (collectively, “the City”). Evenstad argues that a West St. Paul ordinance
restricting sex offenders from residing within 1200 feet of schools, day care centers, and
group homes (the “Ordinance”) violates the Ex Post Facto Clause. 1 The City’s response

1

Evenstad’s initial pro se Complaint also alleged that the Ordinance violates the Equal
Protection Clause and his procedural and substantive due process rights. Because Evenstad did
not advance these arguments in support of this motion, the Court declines to consider them at
this time, but does not consider them waived.

that Eighth Circuit precedent forecloses Evenstad’s argument is unavailing, because the
Ordinance is significantly more restrictive than those upheld by the Eighth Circuit.
Because Evenstad shows that the equities are strongly in his favor and that he is likely to
succeed on the merits, the Court will grant his Motion for a Preliminary Injunction.
BACKGROUND
The West St. Paul City Council passed the Ordinance in December 2016 by a
unanimous vote. (Decl. of Peter J. Nickitas (“Nickitas Decl.”) ¶ 3, Ex. 1, Sept. 29, 2017,
Docket No. 17.) The findings and intent section of the Ordinance states:
Repeat predatory offenders, predatory offenders who use
physical violence and predatory offenders who prey on
children and vulnerable individuals are predators who present
a threat to the public safety. . . . It is the intent of this chapter
to serve the city’s compelling interest to promote, protect and
improve the health, safety and welfare of the citizens of the
city by creating areas around locations where children and
vulnerable individuals regularly congregate wherein certain
predatory offenders are prohibited from establishing a
primary or secondary address.
IX West St. Paul City Code (“City Code”)) § 97.01.
The public record surrounding enactment of the Ordinance, as made available by
the City, is largely consistent with its stated intent. A memo prepared by the City’s
police chief in advance of the first reading of the Ordinance contrasted “the Council’s
desire to establish a business and residential growth direction” with forces that “tend to
change neighborhood character overnight,” including group residential housing and
predatory offenders. (Decl. of Ben Boike (“Boike Decl.”) ¶ 2, Ex. 2 at 22, Oct. 27, 2017,
Docket No. 39.) The memo focused on the safety threat posed by “a rapid influx of

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predatory offenders,” and noted the chief’s concern “about what is on the horizon when
the state begins to deinstitutionalize those offenders currently being held in [civil]
confinement.” (Id.) The chief proposed “a safe-zone around those institutions where
potential victims are likely to congregate,” and explained that he had “considered varying
differences including 1,000, 1,500 and 2,000 feet and found 1,200 feet to be a good
balance in protecting the public’s interest while still allowing areas where predatory
offenders may reside.” (Id. at 23.)
At the first reading of the Ordinance, the police chief’s presentation included a
“detailed account of predatory offenders and the risks and danger to our community.”
(Boike Decl. ¶ 1, Ex. 1 at 13.) Three council members spoke – one supporting of the
Ordinance, and two wondering if it could be stricter – and a fourth voted to second the
motion to approve the reading. (Id.) There was an opportunity for public comment at the
second reading, but no one spoke. (Boike Decl. ¶ 3, Ex. 3 at 29.) The Ordinance was
approved without further deliberation. (Id.) Neither the memo nor the meeting minutes
reflect the City’s reasoning for including group homes in the Ordinance or discussion of
including offenders who victimized adults without individualized risk assessment.
As enacted, the Ordinance prohibits any designated offender from living within
1200 feet of schools, licensed day care centers, and state licensed residential care or
housing with services establishments. (City Code § 97.03(A).) It also prohibits renting
to such an offender.

(Id. § 97.04.)

Violations of the Ordinance may result in “a

misdemeanor or administrative citation.” (Id. § 97.03(D).) It excepts certain offenders –
minors, those who offended and were convicted as minors, those living with family, those
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domiciled in a restricted area prior to the Ordinance’s enactment, and those domiciled in
an area that becomes restricted due to a new facility. (Id. § 97.03(E).) Based on a map
provided by the City, Evenstad estimates that the restrictions cover approximately 90% of
the total area and as much as 95% of the residential area of the city. (See Nickitas Decl.,
Ex. 1 at 5.) The City submits that there are 69 rental units in unrestricted areas. (Second
Decl. of Ben Boike (“2d Boike Decl.”) ¶ 5.) The City does not dispute Evenstad’s claim
that 60 of those units are in a building that, as a matter of policy, does not rent to felons.
The Ordinance does not define “designated offender,” but it defines “predatory
offender” 2 by reference to two other sources:
Any person who [1] is required to register as a predatory
offender under [Minnesota Statute] § 243.166, or [2] has been
convicted of a designated sexual offense, regardless of
whether the adjudication has been withheld, in which the
victim of the offense was less than 16 years of age.
(City Code § 97.02.) Thus, the first category includes anyone who is required by the
state of Minnesota to register as a sex offender. Notably, the Minnesota registration
requirement applies to offenders who victimized adults. See Minn. Stat. § 243.166, subd.
1b. The Minnesota registration requirement generally persists for ten years after an
offender’s release from confinement; as such, the Ordinance’s residency restrictions
apply to individuals in this category for ten years after their release. See Minn. Stat.

2

The prohibition on residency applies to “any designated offender.” (City Code §
97.03(A).) So does the provision that applies to landlords. (Id. § 97.04(C).) But the exceptions
section exempts certain “predatory offender[s].” (Id. § 97.03(E).) And the City Council’s
summary of the Ordinance says it applies to “new predatory offenders.” (Nickitas Decl., Ex. 1 at
4.) The City stated at the hearing on this motion that the difference is of no legal significance.

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§ 243.166, subd. 6. The second category includes anyone convicted of a “designated
sexual offense” against a victim less than 16 years of age. The Ordinance defines
“designated sexual offense” to include several state crimes, including first through fourth
degree criminal sexual conduct, solicitation of children, incest, indecent exposure, or any
of three child pornography crimes. (City Code § 97.02.) There is no time limitation for
individuals in this category; as such, the Ordinance’s residency restrictions for offenders
who victimize children under 16 apply for life. See id.
Evenstad, 52, falls into the first category: he was convicted in 1999 of First
Degree Criminal Sexual Conduct using force or coercion and causing personal injury to
an 18-year-old victim. (Nickitas Decl. ¶ 3, Ex. 2 (Decl. of Thomas Evenstad (“Evenstad
Decl.”)) ¶ 2, Sept. 29, 2017, Docket No. 17.) On August 21, Evenstad was released from
jail and moved into an apartment in a West St. Paul residence. (See id. ¶ 3.) Three days
later, City police informed Evenstad’s landlord that Evenstad was prohibited from living
there and warned both that they would be subject to criminal charges if Evenstad did not
vacate by September 5. (Id. ¶¶ 5-6.) The building is within 1200 feet of at least one day
care center and two group homes. (See Nickitas Decl. ¶ 3, Ex. 3 at 1.)
On August 31, Evenstad filed a pro se complaint and motion for preliminary
injunction. (Compl., Aug. 31, 2017, Docket No. 1; Mot. for Prelim. Inj., Aug. 31, 2017,
Docket No. 3.) The next day, police agreed to give Evenstad until September 30 to
vacate the duplex. (Evenstad Decl. ¶ 11.) After obtaining counsel, Evenstad filed the
Motion for a Temporary Restraining Order and Preliminary Injunction that is now before
the Court. (Ex Parte Mot. for Prelim. Inj., Sept. 29, 2017, Docket No. 13.)
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DISCUSSION
I. STANDARD OF REVIEW
The Court considers four factors in determining whether to issue a preliminary
injunction: (1) the likelihood that the moving party will succeed on the merits, (2) the
threat of irreparable harm to the moving party, (3) the balance of harms as between the
parties, and (4) the public interest. See Grasso Enters., LLC v. Express Scripts, Inc., 809
F.3d 1033, 1036 n.2 (8th Cir. 2016) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 114 (8th Cir. 1981) (en banc)). “At base, the question is whether the balance of
equities so favors the movant that justice requires the court to intervene to preserve the
status quo until the merits are determined.” Dataphase, 640 F.2d at 113.
II. LIKELIHOOD OF SUCCESS ON THE MERITS
“In balancing the equities no single factor is determinative.” Dataphase, 640 F.2d
at 113. As such, likelihood of success “must be examined in the context of the relative
injuries to the parties and the public.” Id. However, likelihood of success on the merits
is the most significant factor in considering a preliminary injunction. S.J.W. ex rel.
Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012).
A. Required Showing
The likelihood of success factor ordinarily requires the moving party to prove only a
“fair chance of prevailing,” which may mean “something less than fifty percent.” Planned
Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 730 (8th Cir. 2008) (en banc).

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When the matter at issue is a law that was the product of “government action based on
presumptively reasoned democratic processes,” however, the moving party must show that
they are “likely to prevail on the merits.” Id. at 732-33. With a city ordinance, the question
is “to what extent the challenged action represents ‘the full play of the democratic
process.’” Id. at 732 n.6 (quoting Able v. United States, 44 F.3d 128, 131-32 (2d Cir.
1995)); see also Johnson v. Minneapolis Park & Rec. Bd., 729 F.3d 1094, 1098 (8th Cir.
2013) (applying the “likely to prevail” standard to a park board’s speech restriction).
Evenstad alleges that the Ordinance was passed by a unanimous vote of the City
Council, signed by the previous mayor, and enforced under the current mayor, and that
others in the City’s government assisted in developing it. (Compl. ¶¶ 12-14.) The City
submits evidence of the first and second readings of the Ordinance at council meetings
and documents circulated prior to the first reading. (Boike Decl. ¶¶ 1-3, Ex. 1-3.) The
Court finds that the Ordinance was enacted pursuant to a “presumptively reasoned
democratic processes,” if not a terribly deliberative one. As such, Evenstad bears the
burden of showing that he is “likely” to prevail on the merits.
B. The Ex Post Facto Clause
In support of his Motion for Preliminary Injunction, Evenstad argues that the
Ordinance’s restrictions on all “designated offenders,” regardless of date of offense, are
retroactive punishment prohibited by the Constitution’s Ex Post Facto Clause.
Sex offender registration laws do not violate the Ex Post Facto Clause if they
establish civil proceedings rather than criminal punishment. Smith v. United States, 538

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U.S. 84, 92 (2003). To determine whether a law is civil or criminal, the court must ask:
(1) Did the City intend to impose punishment? (2) If not, is the law “so punitive either in
purpose or effect” as to negate the City’s intention that it be civil? Id. (quoting Kansas v.
Hendricks, 521 U.S. 346, 361 (1997)) (internal quotation marks omitted). Five factors,
though neither exhaustive nor dispositive, are relevant to analysis of whether a law is
punitive in effect. Id. at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169
(1963)). Courts must 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.
1. The Eighth Circuit
The Eighth Circuit has twice applied Smith to resolve Ex Post Facto challenges to
sex offender residency restrictions, in both instances upholding the challenged laws.
First, in Doe v. Miller, the Eighth Circuit upheld an Iowa statute prohibiting sex
offenders who had victimized minors from residing within 2000 feet of a school or day
care. 405 F.3d 700, 704 (8th Cir. 2005). It concluded that the statute was not punitive
because the legislature’s intent was to protect the health and safety of Iowa citizens. Id.
at 718-19. It then applied the five Smith factors to conclude that the law was not so
punitive in effect as to negate the legislature’s intent. Id. at 719-23. First, it rejected the
argument that the residency restrictions amounted to the historical punishment of
“banishment” because they did not “expel” offenders from the restricted areas altogether.

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Id. at 719-20. It did so despite the fact that the record showed that “the restricted areas in
many cities encompass the majority of the available housing,” and in smaller towns even
a single facility “can cause all of the incorporated areas of the town to be off limits” to
offenders. Id. at 706 & n.2. Second, it found that the statute’s goal of “protecting the
health and safety of children” outweighed its deterrent or retributive effects. Id. at 720.
Third, it noted that the restrictions imposed less disability or restraint than a civil
commitment scheme the Supreme Court had approved. Id. at 721. Fourth, it found that
the restrictions had a rational connection to a nonpunitive purpose. Id. Lastly, it found
that the restrictions were not excessive. Crediting trial testimony that “convicted sex
offenders as a class were more likely to commit sex offenses against minors than the
general population,” the court stated that “[t]he absence of a particularized risk
assessment [] does not necessarily convert a regulatory law into a punitive measure.” Id.
at 721.
Second, in Weems v. Little Rock Police Department, the Eighth Circuit upheld an
Arkansas statute prohibiting certain sex offenders from residing within 2000 feet of a
school or day care. 453 F.3d 1010, 1012 (8th Cir. 2006). The court began by looking to
Miller, finding that:
The Iowa statute differed from the Arkansas law in two
principal ways. The Iowa statute was narrower in that it
applied only to offenders convicted of sex offenses against
minors, while the Arkansas law applies to some sex offenses
in which adults were victimized. The restrictions of the Iowa
statute affected offenders more broadly, however, because
they applied to every sex offender convicted of an
enumerated offense, without any individualized assessment.

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Id. at 1015.

Specifically, the Arkansas law applied to offenders who received an

individually-assigned risk level of three (“high risk”) or four (“sexually violent predators”).
Id. at 1012-13. Risk levels are assigned by expert examiners, and, for level four offenders,
by a sentencing court. Id. An offender has a right to request an administrative review and,
if unsuccessful, to challenge an assigned risk level in court. Id. at 1013. The Court
concluded that the legislature’s intent was not punitive, in part because the restriction was
passed as part of the state’s overall registration scheme. Id. at 1017. And it concluded that
the case-by-case risk assessment process put the Arkansas law “on even stronger
constitutional footing than the Iowa statute.” Id. at 1017. The court specifically noted that
this “fine-tuning of the restriction addresses the principle concern of the dissenting judges
who believed the Iowa statute violated the Ex Post Facto Clause.” Id.
2. Persuasive Authority
Lacking direct support in the Eighth Circuit, Evenstad turns to analogous cases
decided elsewhere in the intervening decade since Miller and Weems to argue that he is
likely to prevail here. While none of these cases are controlling, they offer persuasive
authority in support of the proposition that courts are skeptical of schemes that are stricter
than those upheld in Miller and Weems.
First, Evenstad cites a Sixth Circuit case holding that Michigan’s sex offender
statutory regime (which, as relevant here, prohibited registered sex offenders from living,
working, or loitering within 1000 feet of a school) violated the Ex Post Facto Clause.
Does #1-5 v. Snyder, 834 F.3d 696, 698, 706 (6th Cir. 2016), reh’g denied (Sept. 15,

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2016), cert. denied sub nom. Snyder v. John Does #1-5, No. 16-768, 2017 WL 4339925
(U.S. Oct. 2, 2017). Like the Arkansas statute in Weems, the Michigan law applied to
offenders who victimized adults – but the court was concerned that the restrictions were
based entirely on the crime of conviction rather than individualized assessment. Id. The
court expressed particular concern that the classifications were not appealable. Id. at
702-03. It was also concerned about the restrictions on working and loitering, id. at 703,
and the lack of evidence as to the efficacy of such restrictions, id. at 704-05.
Second, Evenstad discusses a Wisconsin district court case considering an
ordinance that restricted offenders who had victimized children from living within 3000
feet of a prohibited location (including schools, day cares, parks, trails, playgrounds,
places of worship, and athletic fields used by minors) and 500 feet of each other.
Hoffman v. Vill. of Pleasant Prairie, 249 F. Supp. 3d 951, 954 (E.D. Wis. 2017). Those
not already living in the Village were banned altogether. Id. The court called the
ordinance “nigh unprecedented in its punitive effect,” id. at 958, comparing it
unfavorably to the Iowa and Arkansas statutes. Id. at 959-60 (noting in particular the
lack of individualized assessment, lack of exemptions, and lifetime ban on residency).
Third, Evenstad turns to the Eleventh Circuit that considered a law prohibiting
offenders who had victimized someone under sixteen from living within 2500 feet of a
school. Doe v. Miami-Dade Cty., Fla., 846 F.3d 1180, 1182-83 (11th Cir. 2017). The
court affirmed denial of a motion to dismiss an Ex Post Facto challenge because the
complaint sufficiently alleged that the county law created an affirmative disability
(plaintiffs alleged that their homelessness resulted from the residency restriction) and
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because the law was excessive in relation to its stated purpose (it contained no
individualized assessment and applied for life). Id. at 1185-86. The court distinguished
the ordinance from a less-severe, time-limited state residency restriction. Id. at 1186.
Finally, Evenstad cites two state supreme court cases. In Commonwealth v. Baker,
the Kentucky Supreme Court overturned a state law barring all registered offenders from
residing within 1000 feet of a school, playground, or day care. 295 S.W.3d 437, 439-441,
447 (Ky. 2009). The Baker court was similarly troubled that the statute covered all
offenders, regardless of their victim’s age, and that it did not contain any sort of
individualized risk assessment. Id. at 444, 446. And in Starkey v. Oklahoma Dep’t of
Corr., the Oklahoma Supreme Court held that retroactive application of a state-law
restriction on residency within 2000 feet of locations including schools, playgrounds, parks,
and day cares violated the state constitution’s Ex Post Facto Clause, in part because the
extension took place without any individualized risk assessments. 305 P.3d 1004, 1026,
1028-30 (Okla. 2013). That said, the Tenth Circuit reached the opposite conclusion based
on the federal Constitution. See Shaw v. Patton, 823 F.3d 556, 576-77 (10th Cir. 2016).
That court was not troubled by the lack of individualized assessment, in part because the
plaintiff “has not shown that his own risk of recidivism is particularly low.” Id.
C. Analysis
1. Intent
To discern intent, courts “consider the statute’s text and its structure to determine
the legislative objective.” Smith, 538 U.S. at 92. “[C]onsiderable deference must be

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accorded to the intent as the legislature has stated it.” Id. at 93. Here, the Ordinance
states that its purpose is “to serve the city’s compelling interest to promote, protect and
improve the health, safety and welfare of the citizens of the city,” with a particular focus
on “children and vulnerable individuals.” City Code § 97.01. Moreover, while the
legislative record shows generalized discussion of the safety risks posed by offenders, it
does not show consideration of the specific risks posed by offenders who victimized
adults or specific dangers posed to vulnerable adults. 3 (Boike Decl. ¶¶ 1-2, Ex. 1 at 13,
Ex. 2 at 22-23.) The Ordinance is triggered solely by underlying criminal offenses and
may result in a criminal misdemeanor, but it is situated in the “General Regulations” title
of the City Code. On the record before the Court, it appears that the intent of the City
Council was to create a civil, nonpunitive regime.
2. Effects
The Court therefore turns to the Ordinance’s effects to determine whether they are so
punitive in nature as to negate the City’s stated intent. Although the City argues that the
1200-foot restriction in the Ordinance makes it “less onerous” than the 2000-foot
restrictions upheld in Miller and Weems, the Eighth Circuit’s comparison of the Iowa and
Arkansas statutes shows that the Court’s analysis must go beyond the distance covered by
the restriction. See Weems, 453 F.3d at 1015. The City’s Ordinance is in actuality stricter

3

Curiously, before turning to public safety, the police chief described predatory offenders
and Group Residential Housing facilities together as “forces which . . . tend to change
neighborhood character overnight,” and noted the “adverse impact” of the “growing number” of
such facilities. (Boike Decl. ¶¶ 1-2, Ex. 1 at 13, Ex. 2 at 22-23.)

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than either of the two statutes the Eighth Circuit upheld because it consolidates multiple
categories of offenders into one and applies an across-the-board restriction on residency
near schools, day care centers, and group homes to each. As such, new analysis is required.
a. Historically Regarded as Punishment
Under Smith, the first factor is whether the nature of the Ordinance has been
regarded in our history and traditions as punishment.

Miller forecloses Evenstad’s

argument that the residency restriction is banishment. The Eighth Circuit focused on the
fact that the residency restriction in Miller did not prohibit offenders from being present
during the day to hold that it was unlike banishment. 405 F.3d at 719-20. Evenstad
acknowledges that the Ordinance does not prohibit him from being present in the
restricted areas, only from living in them.
b. Traditional Aims of Punishment
A related factor is whether the Ordinance promotes traditional aims of
punishment. Evenstad says that it advances all three traditional aims of punishment:
incapacitation (because it keeps offenders away from certain locations), retribution
(because its application is based on prior acts, not current assessments of danger), and
deterrence (because the goal is to avoid recidivism). His arguments as to deterrence and
retribution are foreclosed by Miller, which acknowledged that residency restrictions
could have a deterrent or retributive effect, but are nonpunitive to the extent that they are
intended to protect the public rather than to reduce the offender’s incentive to reoffend
through imposition of negative consequences. See 405 F.3d at 720; see also Smith, 538

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U.S. at 102. Evenstad’s incapacitation argument is unique, but fails in part for the same
reason and in part because offenders are not restricted from mere presence.
c. Affirmative Disability or Restraint
The next factor is whether the Ordinance imposes an affirmative disability or
restraint. The court in Miller explained that the degree of any disability or restraint must
be considered in light of the law’s “countervailing nonpunitive purpose” – the greater the
legitimate objective, the more restraint is allowed. 405 F.3d at 720-21. The court
acknowledged that the Iowa statute “does impose an element of affirmative disability or
restraint,” but linked this factor together with the fourth and fifth factors to determine
whether its degree was permissible. Id. Although the Ordinance includes group homes
on the list of restricted facilities, its overall coverage (and therefore restraint) is not
necessarily greater than what was at issue in at least some cities and towns in Miller. The
Court will therefore consider this factor together with the next two factors.
d. Rational Connection to Nonpunitive Purpose
The final two factors, which are closely related, are whether the Ordinance has a
rational connection to a nonpunitive purpose, and whether its restrictions are excessive
with respect to this purpose.

Evenstad argues that the Ordinance lacks a rational

connection to its stated purpose (because it does not target offenders who victimized
minors and is not supported by evidence) and is excessive with respect to the stated
purpose (because the restrictions do not allow for individualized assessment). To the
extent that the Ordinance is coextensive with those upheld by the Eighth Circuit in Miller

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and Weems, his argument must fail. But the Ordinance at issue here is broader in
important ways: it is intended to protect more than just minors, it restricts offenders who
victimized adults without an individualized case-by-case assessment, and it restricts
residency near group homes. As such, though Miller and Weems certainly guide the
Court’s analysis of these factors, they do not command an outcome.
The stated purpose of the Ordinance is “to serve the city’s compelling interest to
promote, protect and improve the health, safety and welfare of the citizens of the city,”
particularly “children and vulnerable individuals.” City Code § 97.01. The record shows
that the Ordinance was designed to address the City’s concerns that predatory offenders
“tend to change neighborhood character overnight,” and that a “rapid influx” of such
offenders “can quickly degrade a community’s sense of safety.” (Boike Decl. ¶ 2, Ex. 2
at 22.) This focus on “character” and “sense of safety” rather than actual safety is
questionable, and even the reasonable goal of protecting vulnerable adults and the
community writ large is significantly broader than the nonpunitive purpose of the statutes
affirmed by the Eighth Circuit in Miller and Weems.

See Miller, 405 F.3d at 721

(“minimizing the risk of repeated sex offenses against minors”); Weems, 405 F.3d at
1017 (“minimizing the risk of sex crimes against minors”). 4

4

Cf. Vasquez v. Foxx, No. 16-CV-8854, 2016 WL 7178465, at *5 (N.D. Ill. Dec. 9, 2016)
(“protecting children from convicted sex offenders”); Duarte v. City of Lewisville, 136 F. Supp.
3d 752, 775 (E.D. Tex. 2015), aff’d sub nom. Duarte v. City of Lewisville, Texas, 858 F.3d 348
(5th Cir. 2017), cert. denied sub nom. Duarte v. City of Lewisville, Tex., No. 17-303, 2017 WL
3719031 (U.S. Oct. 30, 2017) (advancing “public safety and protection of the City’s most
vulnerable citizens, its children”).

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Admittedly, however, it is similar to a purpose affirmed as legitimate in Smith:
“public safety, which is advanced by alerting the public to the risk of sex offenders in
their communit[y].” 538 U.S. at 103. And states may make “reasonable categorical
judgments that conviction of specified crimes should entail particular regulatory
consequences,” including registration and notification. Id. But the City has pointed to no
case – in the Eighth Circuit or anywhere else – where a court held that residency
restrictions were rationally connected to so broad a purpose as “promot[ing], protect[ing]
and improv[ing] the health, safety and welfare of the citizens of the city.”
Perhaps it is possible to read a more limited purpose to the Ordinance: protecting
the safety of “children and vulnerable individuals.” 5 But even this more limited purpose
is broader than that of the statutes in Miller and Weems – and the City has not cited any
cases where a court upheld a law restricting offenders from residing near group homes.
Nor did the City consider any evidence that the same sort of “temptation and
opportunity” posed by contact between children and sex offenders who victimized
children, see Miller, 405 F.3d at 720, is posed by contact between vulnerable adults and
sex offenders of all types.

5

The City advanced this more limited purpose at the hearing on this motion, noting that
an individual may be convicted of first degree criminal sexual assault under one of twelve
subcomponents if he or she causes personal injury to a victim and knows or has reason to know
that the victim is mentally impaired, mentally incapacitated, or physically helpless. See Minn.
Stat. § 609.342(e)(ii). But the Ordinance does not distinguish the subcomponents of Section
609.342, or of any other predicate crime. As such, it is hard to see how the subcomponents of
any particular crime of conviction play any role in determining whether the Ordinance’s acrossthe-board restrictions on all offenders are rationally connected to the purpose of protecting
vulnerable adults.

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But with all that said, the Supreme Court has noted that a law “is not deemed
punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to
advance.” Id. (distinguishing cases where the nonpunitive purpose is a “sham or mere
pretext”). Evenstad does make a colorable argument that there is no rational connection
between the stated nonpunitive purpose of protecting children and vulnerable individuals
and the Ordinance’s across-the-board residency restrictions, particularly in light of the
City’s consideration of “neighborhood character.” But he has not demonstrated that he is
likely to prevail in making the case that the City’s stated purpose is a sham or pretext.
e. Excessive in Relation to a Nonpunitive Purpose
Evenstad’s case that the Ordinance is excessive in relation to its stated purpose,
however, is strong. First, like the Arkansas statute in Weems, the City’s Ordinance is
harsher than the Iowa law because it includes offenders who victimized adults. Second,
like the Iowa statute in Miller, the City’s Ordinance is broader than the Arkansas law
because it applies to every sex offender convicted of an enumerated offense without any
individualized assessment. Third, unique among the laws considered in the cases cited
by the parties, the Ordinance includes group homes among the restricted facilities.
With regard to the first two points, it is true that Weems forecloses Evenstad’s
suggestion that the Ordinance is excessive merely because it restricts offenders who
victimized adults. See 453 F.3d at 1015. But it is also true that a crucial aspect of
holding such a restriction constitutional is that an individualized assessment is required.
Id. This is particularly relevant in an Ex Post Facto challenge, because an across-the-

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board restriction is directly tied to an offender’s prior conviction, not to any present threat
to community safety.

That is why the Arkansas law’s appealable individualized

assessment, and the resulting application of restrictions to only the most dangerous
offenders, put it “on even stronger constitutional footing” than the Iowa statute. Id. at
1017. Like the Eighth Circuit, other circuit courts have stressed the importance of
individualized assessment, treating laws containing across-the-board restrictions with
skepticism. See Miami-Dade Cty., 846 F.3d at 1185; Snyder, 834 F.3d at 702, 705.
Indeed, of the four persuasive cases the City cites for support, only two (both from New
York) discuss laws restricting offenders who victimized adults – and those laws included
individualized assessments. Wallace v. New York, 40 F. Supp. 3d 278, 325 (E.D.N.Y.
2014) 6; Matter of Devine v. Annucci, 150 A.D. 3d 1104 (N.Y. App. Div. 2017). 7
The Minnesota sex offender regime already requires an end-of-confinement risk
assessment to determine whether an offender has a low, moderate, or high risk of
reoffense. Minn. Stat. § 244.052, subd. 3. Offenders have a limited right to request
review of the assessment, though not to appeal it to a court. See id. at § 244.052,
subd.3(i). It is undisputed that the Ordinance does not take that assessment into account.

6

“Because the State registration requirements, and, by extension, the County and Town
residency restrictions, rely on a ‘particularized risk assessment’ to ensure that the ‘length and
extent of’ such regulations are tailored to this end, they are ‘not excessive.’” Id. (quoting
Weems, 453 F.3d at 1017).
7

At the hearing on this motion, the City cited Devine as an example of a court upholding
the application of a residency restriction to a level-one offender against an Ex Post Facto
challenge, but the offender at issue there victimized a minor and the state law that applied to him
restricted only offenders who victimized minors and level-three offenders who victimized adults.
150 A.D. 3d at 1105; N.Y. Exec. Law § 259-c(14).

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The City argued at the hearing on this motion that even offenders assigned the lowest risk
level pose at least some safety risk, but under Minnesota law all released offenders must
be assigned to one of these three risk levels. See id. As such, the fact that an offender is
not adjudicated zero-risk is a direct result of the crime of conviction. Even though the
Ordinance does except certain offenders from its restrictions, neither the Ordinance nor
the record of its enactment reflect any consideration of whether or how the City should
take into account the state’s risk assessment. The fact that the Ordinance does not do so –
let alone the fact that the City did not even consider whether it should – cuts strongly in
Evenstad’s favor.
With regard to the third point, including group homes among the restricted
facilities significantly increases the degree of restraint. The City’s map of restricted areas
reveals that there are 36 such facilities in the City and six more within 1200 feet of its
boundaries. Entire swaths of the City are restricted only due to group homes, not schools
or day care facilities. As such, this factor expands the restraint on offenders in a manner,
if not a degree, that has not been considered by the Eighth Circuit. Although the Miller
court acknowledged that the Iowa statute severely restricted living options for offenders,
it did so as a side effect of its necessary operation. Here, by contrast, the Ordinance’s
restrictions on residency near group homes are outside the traditional operation of these
sorts of statutes – and the resulting expansion in coverage is more reminiscent of the
complete ban in Pleasant Prairie than the incidental effect in Miller or Weems. Again,
neither the Ordinance nor the record of its enactment reflect any consideration of whether

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or how the City should take into account the unique nature of group homes. This fact,
too, cuts in Evenstad’s favor.
Relatedly, the fact that Smith, Miller, and Weems all deal with state statutes and
not city ordinances is worthy of mention. Again, in each instance the restrictions were
part and parcel of the state’s broader regularly regime – not a piecemeal addition layered
on top. The Weems court specifically cited the fact that the residency restriction was
enacted as part of a bill relating to registration as evidence of its nonpunitive nature. 453
F.3d at 1017. And the persuasive authority reviewed above reveals that courts are
generally more skeptical of local restrictions than statewide restrictions.

See, e.g.,

Miami-Dade Cty., 846 F.3d at 1185-86 (distinguishing a more-restrictive county
ordinance from the state regime and overturning it); cf. Wallace, 40 F. Supp. 3d at 324-25
(distinguishing more-restrictive county and town restrictions from the state regime and
upholding them). This fact also cuts narrowly in Evenstad’s favor.
Finally, the Court notes that Evenstad has submitted some recent evidence that sex
offender residency restrictions are ineffective at preventing recidivism. The City is of
course correct that such research is insufficient to justify a holding that Evenstad is likely
to prevail in an effort to overturn the state regimes upheld by the Eighth Circuit. But the
evidence does lend support to Evenstad’s case that the City’s more restrictive Ordinance
is excessive in relation to its stated purpose.
***
In sum, although the two factors related to whether the Ordinance takes the form
of traditional punishment cut in favor of the City, the three factors related to whether the
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Ordinance’s restrictiveness is rationally related to its purpose cut in favor of Evenstad.
Although it is a close call], the Court finds that Evenstad is likely to prevail on the merits.
III.

OTHER FACTORS
The other three factors the Court considers in determining whether to grant a

preliminary injunction are: (2) the threat of irreparable harm to the moving party, (3) the
balance of harms, and (4) the public interest. Dataphase, 640 F.2d at 114.
Evenstad argues that he will suffer irreparable harm absent an injunction because
he will likely be forced into homelessness, may lose his job, and could even go back to
prison for a probation violation. The City concedes that eviction can be an irreparable
injury when a party faces “the real threat of homelessness,” Greer v. Mehiel, No. 15-CV6119, 2016 WL 828128, at *9 (S.D.N.Y. Feb. 24, 2016), but disputes that such a threat
exists here. In support, it submits evidence that there are 69 rental properties in the City
available to designated offenders. (2d Boike Decl. at ¶ 5.) That fact nicely makes
Evenstad’s case that there are few places for him to live. Evenstad takes it further by
noting that he contacted the 60-unit building the City lists as available and found that, in
addition to being cost-prohibitive, it does not allow convicted felons to rent. The Court
finds that Evenstad has shown he would suffer irreparable harm absent an injunction.
Next, Evenstad argues that the balance of harms is in his favor because the City
would not suffer any harm from an injunction because his homelessness would be worse
for the City than his residency there. The City responds that barring it from enforcing the
Ordinance against Evenstad would undermine not only its health and safety goals, but its

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very authority to govern. 8 Because the Court believes Evenstad has shown that he is
likely to prevail on the merits, it finds that the balance of harms cuts narrowly in
Evenstad’s favor.
Similarly, the public interest factor turns almost entirely on resolution of the
merits – Evenstad says that all citizens have an interest in overturning unconstitutional
laws, while the City says that the public has an interest in enforcing those that are
constitutional. The City additionally quotes Weems for the straightforward proposition
that the public has an interest in protecting children from predatory offenders. Even
though that case says nothing about vulnerable adults, this point is sufficient for the Court
to find that the public interest factor cuts narrowly in favor of the City.
Due to the risk of irreparable harm absent an injunction, however, the Court finds
that these equities are strongly in Evenstad’s favor.

Because Evenstad is likely to

succeed on the merits and the equities are strongly in his favor, the Court will grant his
Motion for a Preliminary Injunction.
IV.SECURITY
Federal Rule of Civil Procedure 65(c) states that the Court “may issue a
preliminary injunction . . . only if the movant gives security in an amount that the court
considers proper to pay the costs and damages sustained by any party found to have been

8

The City also argued that Evenstad would not suffer harm absent an injunction because
the unit he was living in was an illegal rental unit. Evenstad does not dispute that this was the
case at the time of the City’s filing, and the City does not dispute that it is no longer true.
Because Evenstad is legally in the unit now, the Court considers this fact of no moment.

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wrongfully enjoined or restrained.” The “amount of the bond rests within the sound
discretion of the trial court and will not be disturbed on appeal in the absence of an abuse
of that discretion.” Stockslager v. Carroll Elec. Coop. Corp., 528 F.2d 949, 951 (8th Cir.
1976). “Courts in this circuit have almost always required a bond before issuing a
preliminary injunction, but exceptions have been made where the defendant has not
objected to the failure to require a bond or where the damages resulting from a wrongful
issuance of an injunction have not been shown.” Richland/Wilkin Joint Powers Auth. v.
U.S. Army Corps of Engr’s , 826 F.3d 1030, 1043 (8th Cir. 2016) (citations omitted). The
City has not objected to waiver of the bond requirement nor demonstrated any costs or
monetary damages that may result from issuance of the injunction. Moreover, Evenstad
seeks to vindicate an important constitutional right. Under the circumstances, the Court
will exercise its discretion to waive Rule 65(c)’s bond requirement. If the City wishes to
object, the Court will consider its motion and argument.
V. CONCLUSION
This case presents a close call, primarily because of the Eighth Circuit precedents
that guide the Court in this case. But the Court finds simply that West St. Paul has gone
too far in the sweep of its Ordinance. No one disputes that a city has a strong interest in
protecting its citizens. Indeed, a more narrowly drawn ordinance would likely pass
constitutional muster. The addition of group homes to the restricted areas and the lack of
individualized assessments as to risk, in the Court’s view, severely impact the rights of
Evanstad and others affected by the Ordinance and doom this set of restrictions.

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Motion for Preliminary Injunction [Docket No. 13] is GRANTED.
2. The security requirement of Federal Rule of Civil Procedure 65(c) is waived.

DATED: January 25, 2018
at Minneapolis, Minnesota.

_______
______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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