Doe v. Gwyn
Filing
25
MEMORANDUM OPINION. Signed by District Judge Thomas W Phillips on 4/25/18. (JBR)
UNITED STATES DISTRIC COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOHN DOE,
Plaintiff,
v.
MARK GWYN, Director of the
Tennessee Bureau of Investigation,
in his official capacity.
Defendants.
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No. 3:17-cv-504
Judge Phillips
MEMORANDUM OPINION
Defendant Mark Gwyn (“Director Gwyn”), Director of the Tennessee Bureau of
Investigation (“TBI”), filed a motion to dismiss the claims against him pursuant to Fed. R.
Civ. P. 12(b)(6) [Doc 9].
Having carefully considered the motion, supporting
memorandum [Doc. 10] and plaintiff’s response [Doc. 20], the motion is ripe for
determination.
I.
Relevant Facts 1
Plaintiff John Doe is a Tennessee resident who challenges the constitutionality of
the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification,
and Tracking Act of 2004, as amended, Tenn. Code Ann. §§ 40-39-201—218 (hereinafter
1
For purposes of a motion to dismiss, the Court takes the factual allegations in the complaint [Doc.
1] as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that, “when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained
in the complaint”).
“the Act”). Director Gwyn is the Director of the TBI and is sued in his official capacity
[Doc. 1 at ¶ 24]. Pursuant to the Act, the TBI is required to: maintain Tennessee’s database
of sex offenders, maintain an Internet-accessible public sex offender registry, register
offenders (along with other law enforcement agencies), develop registration forms, provide
statutorily-required notices to registrants, collect registration fees, and coordinate with
national law enforcement and the national sex offender registry [Doc. 1 at ¶ 25].
In 1999, plaintiff entered an Alford plea to one count of attempted aggravated sexual
battery and nolo contendere to six other counts of sex-based offenses [Id. at ¶ 16]. Plaintiff
completed his sentence on May 21, 2005, and since that time, he has not been subject to
any supervision other than under the sex offender registry laws [Id. at ¶ 17]. Plaintiff has
had no other criminal convictions since 1999, and he has led a productive life since
completing his sentence [Id. at ¶¶ 18—19]. Defendant has been employed as a jeweler
since his conviction [Id. at ¶ 18].
At the time of his guilty plea, Tennessee’s then-current sex offender registry statute,
the Sexual Offender Registration and Monitoring Act, 1994 Tenn. Pub. Laws, ch. 976, as
amended (the “1994 Act”), required plaintiff to register as a “sex offender,” but did not
otherwise restrict his liberty [Id. at ¶ 20]. Further, plaintiff notes that his registration was
private because the 1994 Act made the registry information available only to law
enforcement [Id.]. The 1994 Act also allowed registrants to apply for removal from the
registry ten years after completion of their sentence [Id.].
The repeal of the 1994 Act and adoption of the current Act in 2004, along with
subsequent amendments, has resulted in plaintiff being subject to “numerous, onerous, and
2
vague restrictions on where he can live, work, or go” [Id. at ¶ 21]. For example, plaintiff
is now listed in a public internet database, along with his home and work addresses and
other identifying information, and he is listed as a “violent sexual offender” [Id.]. In 2014,
plaintiff became subject to a lifetime registration requirement [Id.]. Plaintiff must report
to a law enforcement agency each year in the month of his birthday and pay a fee of $150
[Id. at ¶ 22]. Plaintiff claims that the retroactive application of the “increasingly onerous
and punitive” requirements of the Act “encourage law enforcement to treat him like a
pariah and disrupt his and his family members’ lives at any moment, without warning or
reason” [Id.]. Plaintiff contends that, had he known at the time of his guilty plea that he
would be subject to “a lifetime of severe restrictions on his liberty,” he would have
bargained for an alternate disposition or gone to trial [Id. at ¶ 23].
After passage of the 2004 Act, five years after his guilty plea and conviction,
plaintiff became classified as a “violent sexual offender” and subject to lifetime registration
without any individualized determination about his risk or whether lifetime registration is
warranted [Id. at ¶ 45]. Following the 2014 amendment, fifteen years after his guilty plea
and conviction, plaintiff became classified as an “offender against children” and was again
subject to lifetime registration without any individualized determination about his risk or
whether lifetime registration is warranted [Id.]. Plaintiff contends there is no mechanism
under the Act to allow him to have his registration obligations eliminated or reduced [Id.
at ¶ 46].
Plaintiff complains about the reporting, surveillance, and supervision
requirements of the Act [Id. at ¶¶ 50—55]; the impact of the Act’s requirements on his
family [Id. at ¶¶ 56—60]; the limits on his access to housing [Id. at ¶¶ 61—63]; the limits
3
on his employment and educational opportunities [Id. at ¶¶ 64—65]; the restrictions on his
travel [Id. at ¶¶ 66—72], and his Internet usage and public speech [Id. at ¶¶ 73—77]; and
his public stigmatization [Id. at ¶¶ 78—79]. Plaintiff also complains that the restrictions
and obligations of the Act are so vague he is unable to know whether or not he is in violation
of the law and so extensive and pervasive that he is “literally unable to comply with the
law” [Id. at ¶ 80]. Plaintiff argues that the requirements of the Act bear no rational
relationship to the risk that individual registrants pose to the community [Id. at ¶¶ 92—98].
Plaintiff further argues that the “Exclusion Zones” defined by the Act restrict access to
employment, housing, and his ability to engage in normal human activity [Id. at ¶¶ 99—
106]. 2
Plaintiff alleges that the Act: violates the Ex Post Facto Clause of the United States
Constitution [Id. at ¶ 111]; violates his Due Process rights to travel and work [Id. at ¶¶
112—120]; violates his First Amendment right to free speech [Id. at ¶¶ 121—124]; violates
Due Process by imposing retroactive restrictions on him and by breaching his plea
agreement [Id. at ¶¶ 125—130]; violates Due Process by imposing criminal liability
without any proof of actual knowledge of the duty to comply with the law and due to
vagueness and impossibility [Id. at ¶¶ 131—136].
Plaintiff seeks declaratory and
injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 [Id. at ¶¶ 12—13].
2
The “Exclusion Zones” to which plaintiff refers are contained in Tenn. Code Ann. § 40-39-211.
This provision of the Act imposes a variety of geographic restrictions on where registrants may
work, reside, or be present, e.g., “within one thousand feet (1,000’) of the property line of any
public school, private or parochial school, licensed day care center, other child care facility, public
park, playground, recreation center or public athletic field available for use by the general public.
Tenn. Code Ann. § 40-39-211(a)(1).
4
II.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith
v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
[opposing party] fair notice of what the . . . claim is and the grounds upon which it rests,’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Detailed factual allegations are not required, but a party’s “obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a
cause of action will not do,” nor will “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint
in the light most favorable to the plaintiff, accept all factual allegations as true, draw all
reasonable inferences in favor of the plaintiff, and determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted).
“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.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible
claim for relief will [ultimately] . . . be a context-specific task that requires th[is Court] to
draw on its judicial experience and common sense.” Id. at 679.
5
III.
Whether Director Gwyn is a Proper Party Defendant
Director Gwyn first argues that he is not a proper defendant because he has no direct
or specific authority to enforce the provisions of the Act [Doc. 10 at pp. 3—6]. Director
Gwyn argues that the TBI has no general authority as a law enforcement agency to
investigate criminal violations of the Act or violations of the residency or employment
restrictions. Instead, Director Gwyn argues “TBI’s duties under the Act are administrative
only,” such as maintaining the Sexual Offender Registry, creating and distributing forms,
considering requests for removal from the registry, and providing copies of records upon
request [Id. at p. 5]. In short, Director Gwyn contends that plaintiff has failed to satisfy the
requirements of Ex Parte Young, 209 U.S. 123 (1908), for bringing an action against him
for injunctive and declaratory relief.
In response, plaintiff relies on two recent opinions, including one from this Court,
which hold that the TBI Director is a proper defendant for such claims because the TBI has
extensive responsibilities for establishing and operating Tennessee’s sex offender registry
[Doc. 20 at pp. 3—5 (citing Doe & Doe v. Haslam, Nos. 3:16-cv-02862, 3:17-cv-00264,
2017 WL 5187117 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, J.), and Doe v. Haslam, No.
3:17-cv-217, 2017 WL 4782853 (E.D. Tenn. Oct. 23, 2017) (Phillips, J.))]. Thus, plaintiff
urges the Court to refuse Director Gwyn’s “previously made and rejected” arguments [Doc.
20 at p. 4].
The Eleventh Amendment provides sovereign immunity to the states against suits
by its own citizens. U.S. Const. amend. XI. The succinct analysis of the Ex Parte Young
6
exception to Eleventh Amendment immunity in Russell v. Lundergan-Grimes, 784 F.3d
1037 (6th Cir. 2015), properly sets the stage for the arguments in this case:
[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.” Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d
45 (1989). It is a suit against the State itself. Kentucky v. Graham, 473 U.S.
159, 165–66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). The Eleventh
Amendment bars many such suits. Will, 491 U.S. at 66, 109 S. Ct. 2304.
However, there is an exception to States’ sovereign immunity under the
doctrine announced in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.
Ed. 714 (1908), whereby “a suit challenging the constitutionality of a state
official’s action is not one against the State.” Pennhurst, 465 U.S. at 102,
104 S. Ct. 900. “In order to fall within the Ex parte Young exception, a claim
must seek prospective relief to end a continuing violation of federal law.”
Diaz v. Mich. Dep't of Corr., 703 F.3d 956, 964 (6th Cir. 2013). “Young does
not apply when a defendant state official has neither enforced nor threatened
to enforce the allegedly unconstitutional state statute.”
Children's
Healthcare is a Legal Duty v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996).
Russell, 784 F.3d at 1046–47; see McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery,
226 F.3d 429, 437 (6th Cir. 2000) (“[a]n action seeking to enjoin enforcement of an
allegedly unconstitutional statute through a suit against state officials charged with its
enforcement is not barred by the Eleventh Amendment.”). There is no dispute that plaintiff
is seeking prospective relief to enjoin enforcement of the Act.
The Ex Parte Young exception “does not reach state officials who lack a ‘special
relation to the particular statute’ and ‘[are] not expressly directed to see to its
enforcement.’” Russell, 784 F.3d at 1047 (citing Young, 209 U.S. at 157). The Sixth
Circuit has noted that the “[g]eneral authority to enforce the laws of the state is not
sufficient to make government officials the proper parties to litigation challenging the law.”
Id. at 1048 (quoting 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 113 (3rd Cir.
7
1993)). Thus, the requirement of “some connection with the enforcement of the act” means
there must be “a realistic possibility the official will take legal or administrative actions
against the plaintiff’s interests.” Id. (citing Children’s Healthcare is a Legal Duty v.
Deters, 92 F.3d 1412, 1416 (6th Cir. 1996), cert. denied, 519 U.S. 1149 (1997)). Without
a connection to the enforcement of the act, the government official retains Eleventh
Amendment immunity from suit. See Children’s Healthcare, 92 F.3d at 1416.
Director Gwyn argues that he has no authority “to investigate criminal violations of
the Act” and the TBI’s duties under the Act are “administrative” [Doc. 10 at pp. 4—5].
However, the Sixth Circuit has plainly stated “Young’s enforcement element is not
confined to criminal actions,” but may be met “when there is a realistic possibility the
official will take legal or administrative actions against the plaintiff’s interests.” Russell,
784 F.3d at 1048. As set forth in the complaint, it is not merely “a realistic possibility”
that the TBI will take legal or administrative action against Plaintiff Doe’s interests. In
addition to the Act’s many registration requirements implemented by the TBI, plaintiff
claims he “was arrested for allegedly violating provisions of the amended statute that
require him to register all usernames and social media accounts” [Doc. 1 at ¶ 58]. As Judge
Crenshaw noted, “[t]he TBI’s duties in the administration of Tennessee’s statutory scheme
are numerous and significant.” Haslam, 2017 WL 5187117, at *10. Accordingly, the
Court finds plaintiff has alleged a plausible claim for relief against Director Gwyn in his
official capacity.
8
IV.
Whether Plaintiff’s Claims are Time-Barred
Director Gwyn argues that all of plaintiff’s claims are barred by the one-year statute
of limitations for civil rights claims in Tennessee, Tenn. Code Ann. § 28-3-104(a)(3) [Doc.
10 at pp. 6—11]. Director Gwyn contends that plaintiff’s claims accrued when he knew
or should have known he was subject to the Act’s restrictions and potential penalties.
Based on the allegations of the complaint, Director Gwyn contends that plaintiff knew or
should have known that the restrictions of the Act were being retroactively applied to his
conduct as early as May 21, 2005, and at the latest by July 1, 2015. In other words,
beginning with the application of the Act to plaintiff upon his release from incarceration in
2005, he has been affected by each subsequent amendment to the Act, including the July
1, 2015 amendment. Thus, plaintiff’s challenges should have been filed within one year
of the imposition of each of the challenged restrictions. Because this case was not filed
until November 22, 2017, more than two years after the latest amendment to the Act,
Director Gwyn argues that this case is time-barred. Director Gwyn also argues that
plaintiff’s allegations do not constitute a “continuing violation” that would toll the statute
of limitations.
Plaintiff argues that the Act “inflicts retroactive punishment on him every day” and
thus “a new cause of action accrues every day” [Doc. 20 at p. 5]. Plaintiff emphasizes that
he is seeking injunctive relief from future punishment, rather than damages for past
9
punishment [Id. at pp. 5—6]. Plaintiff relies on Judge Crenshaw’s rationale in Haslam in
support of the continuing violation of his constitutional rights [Id. at p. 7]. 3
The statute of limitations for a § 1983 action is the statute of limitations for personal
injury actions under the state law where the claim arises. Eidson v. Tenn. Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). Thus, the applicable limitations
period for § 1983 claims in Tennessee is one year based on Tenn. Code Ann. § 28-3104(a). 4 Id. Although the limitations period is borrowed from state law, the “date on which
the statute of limitations begins to run in a § 1983 action is a question of federal law.” Id.
at 635. “Ordinarily, the limitation period starts to run when the plaintiff knows or has
reason to know of the injury which is the basis of his action,” i.e., “what event should have
alerted the typical lay person to protect his or her rights.” Id.
Although Director Gwyn argues that the plaintiff cannot establish a continuing
violation, he acknowledges that plaintiff complains of “continuing consequences” from the
Act [Doc. 10 at p. 10]. Plaintiff claims he is “suffering daily violations of his constitutional
rights” because of the “ex post facto changes to the Act” [Doc. 20 at pp. 6, 7]. The Court
agrees that plaintiff is asserting a continuing violation, a theory that is “rarely extend[ed]
to § 1983 actions.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003).
3
Plaintiff incorrectly argues, “the statute of limitations poses no obstacle to his claims for
prospective relief” [Doc. 20 at p. 6]. “A request for declaratory relief is barred to the same extent
that the claim for substantive relief on which it is based would be barred.” Int’l Ass’n of Mach. &
Aerospace Workers v. TVA, 108 F.3d 658, 668 (6th Cir. 1997).
4
Tenn. Code Ann. § 28-3-104(a)(1)(A) provides in pertinent part, “the following actions shall be
commenced within one (1) year after the cause of action accrued: [a]ctions for … injuries to the
person.”
10
A continuing violation must meet three criteria:
First, the defendant’s wrongful conduct must continue after the precipitating
event that began the pattern. … Second, injury to the plaintiff must continue
to accrue after that event. Finally, further injury to the plaintiff[] must have
been avoidable if the defendants had at any time ceased their wrongful
conduct.
Eidson, 510 F.3d at 635. “[A] continuing violation is occasioned by continual unlawful
acts, not continual ill effects from an original violation.” Tolbert v. State of Ohio Dep’t of
Transp., 172 F.3d 934, 940 (6th Cir. 2002) (quoting Nat’l Advertising Co. v. City of
Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). Passive inaction by the alleged wrongdoers
does not support a continuing violation. Id. The Sixth Circuit recognizes two categories
of continuing violations. First, the plaintiff can show prior wrongful activity that continues
into the present, or second, the plaintiff can show a longstanding and demonstrable policy
of discrimination. Bowerman v. Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am., 646 F.3d 360, 366 (6th Cir. 2011), cert. denied, 565 U.S. 1060 (2011).
Plaintiff’s argument focuses solely on the first category of continuing violations, prior
wrongful activity that continues into the present.
The Court has found a dearth of authority addressing the statute of limitations for a
challenge such as this. As Judge Crenshaw noted, the claimed injuries are the burdens of
complying with the Act, equally a burden for “registered offenders on the first day [the
Act] was in effect … [and] on the hundredth or thousandth day it was in effect.” Haslam,
2017 WL 5187117, at *11. However, the plaintiff must show that the “wrongful conduct”
is continuing, in addition to suffering continuing injuries from the Act. See Eidson, 510
F.3d at 635. In addition, as Judge Crenshaw also noted, it can be difficult to ascertain what
11
constitutes the defendant’s “wrongful conduct.” Haslam, 2017 WL 5187117, at *11. Is it
the adoption of each amendment to the Act? Or is it the continuing threat of punishment
for offenders who do not comply with the ever-expanding restrictions of the Act? “[T]he
relevant question is whether the Defendant[’s] allegedly wrongful conduct under the [Ex
Post Facto] Clause was merely the initial adoption of the challenged restrictions and
requirements, or whether the wrongful conduct has continued as long as the Plaintiff[] ha[s]
been subject to those restrictions and requirements.” Id. at 12.
The defendant’s argument holds some sway. Plaintiff’s complaint details the
requirements and restrictions on convicted sex offenders pursuant to the 1994 Act and its
subsequent amendments, as well as the adoption of the current Act in 2004 and its
subsequent amendments [see Doc. 1 at ¶¶ 27—37]. Plaintiff does not allege that he was
unaware of each amendment at the time of its adoption or the myriad ways in which he has
been impacted by the Act. Thus, defendant credibly argues that plaintiff knew or should
have known of his injury and the cause of his injury “at many intervals” between the
adoption of the Act and each subsequent amendment [Doc. 10 at p. 8].
In the absence of any controlling Sixth Circuit authority, however, the Court is
persuaded that plaintiff has stated a claim of continuing violation. Much like the plaintiffs
in the Haslam case, the instant Ex Post Facto claim challenges “a punishment that is
inflicted on Plaintiff[] every day and will continue to be inflicted every day in the
foreseeable future.” 2017 WL 5187117 at *13. As Judge Crenshaw noted, plaintiff
“face[s] the very real possibility of criminal prosecution by the State if [he] do[es] not
conform [his] behavior to the requirements of the Act” and “[i]t is this continuing
12
imposition of restrictions allegedly violates the Ex Post Facto Clause.” Id. Indeed, the
plaintiff claims he was arrested for failure to comply with the Act’s requirements on
reporting Internet usernames and social media accounts [Doc. 1 at ¶ 58]. Similarly, the
plaintiff easily meets the other two requirements of the continuing violation test because
his injuries are continuing and “the cessation of the enforcement of the registration regime
would put an end to those harms.” Id. Thus, the Court concludes that plaintiff’s Ex Post
Facto claim (Count I) is timely.
Similarly, the Court agrees that Counts II (Due Process – Travel), III (Due Process
– Work), IV (First Amendment – Free Speech), VII (Due Process – Criminal Liability
Without Actual Knowledge), and VIII (Due Process – Vagueness and Impossibility) are
also timely. Each of these claims alleges a particular restriction or potential criminal
punishment imposed by the Act to which plaintiff is subject. However, the Court agrees
with Judge Crenshaw’s analysis that Counts V (Due Process – Retroactivity) and VI (Due
Process – Breach of Plea Agreement) are time-barred. See 2017 WL 5187117 at *14.
These claims do not challenge a punishment imposed by the ongoing requirements of the
Act, but are a result of the original imposition of those requirements. Thus, these claims
accrued at the time the challenged requirements were initially imposed, more than one year
prior to the initiation of this case. Counts V and VI will be dismissed as time-barred.
V.
Whether the Ex Post Facto Claim States a Claim for Relief
Defendant next argues that Count I (Violation of the Ex Post Facto Clause) fails to
state a claim for relief because the Act’s registration and reporting requirements do not
13
impose punishment [Doc. 10 at pp. 11—16]. 5 In support of his position, defendant relies
on Smith v. Doe, 538 U.S. 84 (2003), Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007), cert.
denied, 555 U.S. 921 (2008), and Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), cert.
denied, 529 U.S. 1053 (2000), which considered and rejected Ex Post Facto challenges to
sex offender registration laws.
The Constitution provides that “No State shall … pass any … ex post facto Law.”
U.S. Const. art. I § 10, cl. 1. An Ex Post Facto law is a “retrospective” law that applies “to
events occurring before its enactment” and “disadvantage[s] the offender affected by it …
by altering the definition of criminal conduct or increasing the punishment for the crime.”
Lynce v. Mathis, 519 U.S. 433, 441 (1997). Upon consideration of a motion to dismiss,
the Court must determine whether plaintiff’s Ex Post Facto challenge to the Act states a
plausible claim for relief. Iqbal, 556 U.S. at 678.
In Smith, the Supreme Court considered whether the registration and notification
requirements of Alaska’s sex offender registry law violated the Ex Post Facto Clause. 538
U.S. at 89. In doing so, the Supreme Court established the framework for considering such
challenges by adopting what has been described as an “intent – effects” test: (1) did the
legislature intend to impose punishment; and (2) if not, is the statutory scheme “so punitive
in either purpose or effect as to negate [the State’s] intention to deem it civil.” Id. at 92;
Does #1-5 v. Snyder, 834 F.3d 696, 700 (6th Cir. 2016), cert. denied, 138 S. Ct. 55 (2017);
5
Defendant also makes this argument as to Counts V and VI, i.e., that they fail to state a claim for
relief because the Act does not impose punishment. However, in light of the Court’s conclusion
that Counts V and VI are untimely, supra, the Court need not address this argument as to these
claims.
14
Millard v. Rankin, 265 F. Supp. 3d 1211, 1223 (D. Colo. 2017); see Cutshall, 193 F.3d at
477.
The Smith Court noted, “‘only the clearest proof’ will suffice to override legislative
intent and transform what has been denominated a civil remedy into a criminal penalty.”
538 U.S. at 92 (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)). As set forth in
the Act, “in making information about certain offenders available to the public, the general
assembly does not intend that the information be used to inflict retribution or additional
punishment on those offenders.” Tenn. Code Ann. § 40-39-201(b)(8). Plaintiff does not
argue that the Act was intended to impose punishment, but that its provisions “can
cumulatively be punitive” [Doc. 20 at p. 7 (emphasis in original)]. Therefore, in the
absence of any evidence or argument to the contrary, the Court accepts for purposes of the
instant motion that the Act was not intended to impose punishment. See Hoffman v. Village
of Pleasant Prairie, 249 F. Supp. 3d 951, 958 (E.D. Wis. 2017) (citing Smith, 538 U.S. at
92—93) (“The Court must defer to that statement of intent”).
In analyzing the effects of the Act, the Supreme Court has instructed the Court to
consider five, non-exhaustive factors:
(1)
Does the law inflict what has been regarded in our history and
traditions as punishment?
(2)
Does it impose an affirmative disability or restraint?
(3)
Does it promote the traditional aims of punishment?
(4)
Does it have a rational connection to a non-punitive purpose?
(5)
Is it excessive with respect to this purpose?
15
Snyder, 834 F.3d at 701 (citing Smith, 538 U.S. at 97). After considering the Alaska statute
in light of these factors, the Supreme Court concluded that the respondents could not show,
“much less by the clearest proof, that the effects of the law negate Alaska’s intention to
establish a civil regulatory scheme. The Act is nonpunitive, and its retroactive application
does not violate the Ex Post Facto Clause.” Smith, 538 U.S. at 105—06.
Defendant Gwyn argues that the same reasoning in Smith applies to the Act and
notes that the Act’s registration and reporting requirements have been upheld against
previous Ex Post Facto challenges [Doc. 10 at p. 13 (citing Bredesen and Cutshall)].
Defendant also argues that plaintiff has not pled any factual allegations that the Act has a
punitive effect on him [Id. at p. 15]. In response, plaintiff relies on the more recent Sixth
Circuit case of Snyder, in which the Sixth Circuit held that the Michigan sex offender
registry statute was effectively punitive and an unconstitutional Ex Post Facto law. 6 834
F.3d at 705.
In Snyder, the Sixth Circuit reviewed 2006 and 2011 Amendments to Michigan’s
sex offender registry law, which prohibited registrants from living, working, or “loitering”
within 1,000 feet of a school. 834 F.3d at 698. The law classified registrants into three
tiers based on the crime of conviction and required registrants to appear in person to update
6
Defendant argues that the Snyder opinion cannot be relied upon because it did not overrule the
prior Sixth Circuit decisions Bredesen and Cutshall, or abrogate the Supreme Court’s decision in
Smith [Doc. 10 at p. 14]. This argument is without merit. The Bredesen and Cutshall decisions
reviewed and denied challenges to prior versions of Tennessee’s sex offender registry law, while
Snyder reviewed a challenge to Michigan’s sex offender registry law. Thus, Snyder did not
overrule Bredesen and Cutshall. Further, it is elemental that the Sixth Circuit cannot overrule or
abrogate a United States Supreme Court decision.
16
registry information. Id. Further, the 2006 and 2011 Amendments applied retroactively to
all who were required to register. Id. The Sixth Circuit analyzed the Michigan statute
pursuant to the “intent – effects” test outlined in Smith and concluded that the statute was
effectively punitive. Id. at 705.
The instant complaint alleges that plaintiff “is subjected to constant supervision by
law enforcement officers; required to report in person every calendar quarter and for
numerous other reasons on forty-eight hours’ notice; banned from living or working in
many areas; restricted as to when he can travel; limited in his rights to free speech; publicly
labeled as a “violent sexual offender” and “offender against children”; hindered from
maintaining normal family relationships; and subjected to a vast array of state-imposed
restrictions that encompass virtually every facet of his life” [Doc. 1 at ¶ 3]. As a result of
the current Act, plaintiff is listed in a public internet database, along with his home and
work addresses and other identifying information [Id. at ¶ 21]. The 2014 amendments to
the Act made plaintiff subject to lifetime registration requirements [Id.]. Plaintiff must
report each year in the month of his birthday to an office of the Knox County Sheriff’s
Office and pay a fee of $150 [Id. at ¶ 22]. Plaintiff was arrested for allegedly violating
provisions of the amended statute that require him to register all Internet usernames and
social media accounts [Id. at ¶ 58]. Plaintiff is prohibited from residing or working within
1,000 feet of a school, day care or child care facility, public park, playground, recreation
center or public athletic field [Id. at ¶¶ 61, 64]. Plaintiff must provide at least 21 days’
advance notice before traveling out of the country [Id. at ¶ 66]. Plaintiff must provide law
enforcement with all electronic mail addresses, instant message addresses, log-in names,
17
or other identifiers used in Internet communications or postings [Id. at ¶ 73]. In short,
plaintiff has alleged a number of affirmative disabilities or restraints imposed on him by
the Act and some of these restrictions could be considered traditional forms of punishment.
On the bare allegations of the complaint, the Court cannot determine whether these
restrictions have a rational connection to a non-punitive purpose or if they are excessive
with respect to such purpose.
It is worth noting that Snyder involved a review of “a handful of opinions, including
an opinion following from a Rule 52 bench trial.” 834 F.3d at 698. This Court has only
the complaint and the pleadings on the instant motion to review. Accordingly, accepting
the allegations of the complaint as true, the Court concludes that the plaintiff has alleged a
plausible claim that the present version of the Act is so punitive in effect as to violate the
Ex Post Facto Clause. See Doe v. Miami-Dade Cty., 846 F.3d 1180, 1185—86 (11th Cir.
2017). The Court does not, however, express any opinion at this time as to the ultimate
merits of plaintiff’s Ex Post Facto claim.
VI.
Whether Count II (Violation of the Due Process Clause – Travel) States a
Claim for Relief
Count II of the Complaint alleges that the Act, specifically Tenn. Code Ann. § 40-
39-204(h), violates plaintiff’s right to travel in violation of the Due Process Clause [Doc.
1 at ¶¶ 66—72, 112—115].
Defendant correctly argues that the travel reporting
18
requirements of Tenn. Code Ann. § 40-39-204(h) only apply to international travel. 7
Because international travel, as opposed to interstate travel, is not a fundamental
constitutional right, defendant argues that Count II does not state a Due Process claim [Doc.
10 at pp. 17—18]. Plaintiff has not responded to this argument.
“Freedom to travel throughout the United States has long been recognized as a basic
right under the Constitution.” Attorney General of N.Y. v. Soto-Lopez, 476 U.S. 898, 901
(1986) (quoting Dunn v. Blumstein, 405 U.S. 330, 338 (1972)). “The constitutional right
of interstate travel is virtually unqualified… By contrast, the ‘right’ of international travel
has been considered to be no more than an aspect of the ‘liberty’ protected by the Due
Process Clause of the Fifth Amendment. As such this ‘right,’ the Court has held, can be
regulated within the bounds of due process.” Califano v. Aznavorian, 439 U.S. 170, 176
(1978) (citations omitted); see Beydoun v. Sessions, 871 F.3d 459, 467 (6th Cir. 2017) (“the
freedom to travel outside the United States must be distinguished from the right to travel
within the United States”) (emphasis in original) (quoting Haig v. Agee, 453 U.S. 280, 306
(1981)). Thus, “the freedom to travel abroad … is subject to reasonable governmental
regulation.” Id.
The Act’s restriction on international travel requires all registrants to provide at least
twenty-one (21) days’ advance notice before traveling out of the country. The notice period
7
This section provides “[e]ach offender shall report to the designated law enforcement agency at
least twenty-one (21) days before traveling out of the country; provided, that offenders who travel
out of the country frequently for work or other legitimate purpose, with the written approval of the
designated law enforcement agency, and offenders who travel out of the country for emergency
situations shall report to the designated law enforcement agency at least twenty-four (24) hours
before traveling out of the country.” Tenn. Code Ann. § 40-39-204(h).
19
can be shortened to twenty-four (24) hours’ notice for those registrants who travel out of
the country frequently for work or other legitimate purpose. Plaintiff has not alleged any
specific facts that these regulations have impaired his ability to travel outside of the country
or that he has attempted to travel outside of the country. Indeed, the allegations related to
this provision of the Act are all couched in hypothetical language: “[i]f Doe travels”;
“[d]epending on how long he travels”; “if Doe goes on vacation”; and “the requirement
under Tennessee law that Doe register as a sex offender will likely bar him from traveling
anywhere else in the world.” [Doc. 1 at ¶¶ 68—69, 72]. Plaintiff has presented no
allegation or legal argument that the advance notice requirement of Tenn. Code Ann. § 4039-201(h) is an unreasonable governmental regulation. See Haslam, 2017 WL 5187117,
at *16 (“Insofar as the Court recognizes a constitutional right to international travel, that
right is not so highly protected that it is violated by the passage of a 21-day notification
requirement based on the important public purposes underlying the Act”).
The complaint also alleges that, if he travels, plaintiff must comply with the sex
offender laws in other jurisdictions and he may have to register as a sex offender in other
jurisdictions [Id. at ¶68]. Plaintiff further hypothesizes as to the complications he might
face in trying to comply with the sex offender laws in Florida if he were to vacation there
[Id. at ¶ 69]. First, these allegations are purely speculative and do not allege a plausible
claim for relief. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (“[f]actual allegations
must be enough to raise a right to relief above the speculative level”). Second, as noted
above, the cited provision of the Act only concerns international travel and plaintiff has
presented no allegation or legal argument as to how a provision on international travel
20
could impair his right to interstate travel. Further, plaintiff has presented no allegation or
legal argument as to how this defendant can be liable for plaintiff’s inability to comply
with the laws of other states.
Finally, plaintiff complains that a recent federal law, Int’l Megan’s Law to Prevent
Child Exploitation & Other Sexual Crimes Through Advanced Notification of traveling
Sex Offenders, Pub. L. No. 114-119, 130 Stat. 15 (2016), requires registered offenders to
report information on intended international travel and authorizes the United States
government to notify foreign countries when a registered offender is traveling to that
country [Id. at ¶ 71]. Thus, “[i]t is almost certain” he will be prohibited from entering
another country and he will likely be barred from traveling anywhere else in the world
[Id.]. Again, this claim is purely speculative. And again, plaintiff has presented no
allegation or legal argument as to how this defendant, responsible for enforcing a
Tennessee statute, can be liable for the effects of a federal statute.
In short, the Court agrees that plaintiff has failed to state a plausible claim for
violation of his Due Process rights as to travel. Count II will be dismissed.
VII.
Whether Count III (Violation of Due Process – Work) States a Claim for Relief
Defendant argues that Count III, which alleges that the Act substantially interferes
with his ability to work by creating a “wholesale barrier to employment” without
individualized consideration, fails to state a claim for relief [Doc. 10 at pp. 19—20].
Defendant correctly notes that plaintiff has not alleged an inability to find employment and,
in fact, plaintiff claims he has been employed as a jeweler since his conviction [see Doc. 1
21
at ¶ 18]. Further, defendant argues that plaintiff cannot assert a right to private employment
and he has not asserted any effort to obtain government employment. Plaintiff has not
responded to this argument.
The complaint alleges that the Exclusion Zones in Tenn. Code Ann. § 40-39211(a)(1) bar plaintiff from working within 1,000 feet of any “public school, private or
parochial school, licensed day care center, other child care facility, public park,
playground, recreation center or public athletic field available for use by the general
public” [Doc. 1 at ¶ 64]. 8 Plaintiff complains that this makes “a substantial number of
employments unavailable as a matter of law” [Id.]. However, as defendant argues, plaintiff
alleges that he has been productively employed as a jeweler since his conviction [Id. at ¶
18] and has not alleged any job which he has sought and been denied. As defendant notes,
there is no general right to private employment and plaintiff has not alleged a termination
of government employment. See Cutshall, 193 F.3d at 479. Plaintiff has simply not alleged
a plausible claim for relief that the Act has violated his Due Process rights with respect to
employment. Count III will be dismissed.
VIII. Whether Count IV States a Claim for Relief for Violation of Plaintiff’s First
Amendment Rights
8
Pursuant to 2018 Tenn. Pub. Acts 643 and effective July 1, 2018, the Act now defines
“playground” as “any indoor or outdoor facility that is intended for recreation of children and
owned by the state, a local government, or a not-for-profit organization, and includes any parking
lot appurtenant to the indoor or outdoor facility.”
22
In Count IV, plaintiff claims that the Act violates his First Amendment rights to free
speech because he is required to report information about his Internet accounts and activity
[Doc. 1 at ¶¶ 121—123]. The complaint alleges that plaintiff “is concerned about using
the Internet” because it is unclear which online accounts he must report and he “is afraid”
that his Internet use will be monitored [Doc. 1 at ¶¶ 74—75]. Because he must report all
of his email addresses or usernames, plaintiff cannot engage in anonymous political speech
on the Internet [Id. at ¶ 76]. Further, plaintiff claims the Act violates his right to attend
traditionally public forums because he cannot attend a public meeting at a public school or
participate in a public assembly if a child is present [Id. at ¶¶ 76—77, 124].
Defendant argues that plaintiff has failed to state a First Amendment claim because
the Act does not prohibit, restrict, or seek to suppress the content of his speech [Doc. 10 at
pp. 21—22]. Further, the Act does not require plaintiff to disclose the content of his
Internet communications, only that he disclose any online identities. Defendant also argues
that the restriction on plaintiff’s presence in public parks only applies when children are
present [Id.].
In response, plaintiff relies on Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), in which
a similar California statute was held to violate the First Amendment [Doc. 20 at pp. 9—
10]. Plaintiff summarily argues that the same conclusions should apply to the instant claim.
Tenn. Code Ann. § 40-39-203(i)(17) requires registrants to provide the TBI with
“[a] complete listing of the offender’s electronic mail address information, including
usernames, any social media accounts the offender uses or intends to use, instant message,
other Internet communication platforms or devices, and the offender’s username, screen
23
name, or other method by which the offender accesses these accounts or web sites.”
Registrants must report any changes to such information within three (3) days. Tenn. Code
Ann. § 40-39-203(a)(7). Relevant to Count IV, the Act prohibits registrants from being on
the premises or grounds of a public school, public park, or recreation center “when the
offender has reason to believe children under eighteen (18) years of age are present.” Tenn.
Code Ann. § 40-39-211(d)(1)(A).
Defendant is correct that the reporting requirements of the Act are content-neutral,
that is, they do not restrict certain viewpoints or modes of expression. See Turner
Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (“regulations that are unrelated
to the content of speech are subject to an intermediate level of scrutiny”); Planet Aid v.
City of St. Johns, MI, 782 F.3d 318, 326 (6th Cir. 2015). However, the requirements of the
Act are broad and conceivably reach any form of Internet communication, whether
personal, political, commercial, or work-related. Assuming for purposes of the instant
motion that the Act’s requirements on Internet identifiers are subject to an intermediate
level of scrutiny, the restrictions must be “narrowly tailored to serve a significant
governmental interest, and leave open ample alternative channels for communication of
the information.” Crookston v. Johnson, 841 F.3d 396, 403 (6th Cir. 2016).
The Court is simply unable to resolve this issue at this time. It is worth noting that
the Ninth Circuit had the benefit of reviewing a lower court ruling on a motion for
preliminary injunction following briefing and a hearing. Harris, 772 F.3d at 569. Faced
only with the bare allegations of the complaint and the Act’s language, the Court is unable
to determine how much of a burden the Act imposes on plaintiff’s rights to free speech.
24
See Haslam, 2017 WL 5187117, at *18; see also Ward v. Rock Against Racism, 491 U.S.
781, 799 (1989) (“[g]overnment may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals”).
Accordingly, the Court will not dismiss Count IV.
IX.
Whether Counts VII (Due Process -- Criminal Liability Without Actual
Knowledge) and VIII (Due Process – Vagueness and Impossibility) State a
Claim For Relief
Count VII claims that the Act violates Due Process because it imposes criminal
liability without requiring proof of actual knowledge of the duty to comply with the Act,
specifically the Act’s provisions on working, loitering, or residing within an Exclusion
Zone [Doc. 1 at ¶¶ 131—132]. Count VIII claims that the Act violates Due Process because
it is unconstitutionally vague and impossible to comply with, also specifically focusing on
the provisions regarding working, loitering, or residing within an Exclusion Zone [Id. at ¶¶
133—136].
Defendant argues that the challenged provisions of the Act are not so vague that a
person of ordinary intelligence can understand what conduct is prohibited and do not lead
to arbitrary enforcement [Doc. 10 at pp. 22—26]. Defendant contends that the Exclusion
Zone provisions of the Act are specific in describing the prohibited conduct and do not
punish passive behavior as plaintiff claims [Id at pp. 24—25]. Defendant also notes that
these provisions of the Act are not so impossibly vague because plaintiff has complied with
them for many years [Id. at p. 26]. Relying on Doe v. Cooper, 842 F.3d 833 (4th Cir.
25
2016), plaintiff contends that the Exclusion Zone provisions are so vague as to violate Due
Process [Doc. 20 at pp. 10—11].
The parties seem to agree that the standard of review for these claims is set out in
Johnson v. United States, 135 S. Ct. 2552, 2556 (2015). That is, whether these provisions
of the Act fail to give a person of ordinary intelligence fair notice of the conduct punished
or they are so standardless that they invite arbitrary enforcement. Id. However, as Judge
Crenshaw concluded in Haslam, this argument is simply too fact-dependent to be resolved
at this stage. See Haslam, 2017 WL5187117 at *18-19. Plaintiff has not yet presented any
evidence that these provisions of the Act have led to arbitrary enforcement. Similarly, the
Court cannot determine whether the Exclusion Zone restrictions are impossible to comply
with in the absence of a factual record. Id. at 19 (“Without a full picture of how extensive
those Zones are and how greatly they burden a registered offender’s ability to engage in
ordinary, unavoidable life activities, the Court cannot rule on [this claim]”). Accordingly,
the Court will not dismiss Count VII or VIII.
X.
Conclusion
For the reasons set forth herein, the defendant’s motion to dismiss [Doc. 9] will be
GRANTED in part and DENIED in part. An appropriate order will be entered.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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