Braam et al v. Carr

Filing 107

ORDER signed by Judge Brett H Ludwig on 3/11/25 that Defendant Jared Hoy's Motion for Summary Judgment 81 is GRANTED and the case DISMISSED. Plaintiff Alton Antrim's Motion for Summary Judgment 88 is DENIED. Defendant's Motion to Exclude Expert Testimony 86 and Motion to Strike 91 and Plaintiff's Motion to Strike 92 are DENIED as moot. (cc: all counsel)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALTON ANTRIM, individually and on
behalf of all others similarly situated,
Plaintiff,
v.

Case No. 19-cv-0396-bhl

JARED HOY, in his official capacity as
Secretary of the Wisconsin Department
of Corrections,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANT
______________________________________________________________________________
After nearly six years of litigation, this class-action lawsuit has been whittled down to a
single Fourth Amendment claim challenging Wisconsin’s lifetime GPS monitoring of certain
repeat sex offenders. Both parties have moved for summary judgment, offering competing
research on the recidivism rates of sex offenders and the efficacy of Wisconsin’s statutory
monitoring scheme. While this social science might be relevant to policymakers deciding whether
to enact such a scheme, it does not alter binding Seventh Circuit precedent confirming the
reasonableness of Wisconsin’s GPS monitoring program in a very similar context. Under that
precedent, which Plaintiff Alton Antrim has failed to distinguish, the statute is constitutional as
applied to him.

Accordingly, Defendant’s motion for summary judgment will be granted,

Plaintiff’s motion denied, and judgment entered in Defendant’s favor.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Alton Antrim is a 67-year-old widower and resident of Kenosha, Wisconsin. (ECF
No. 98 ¶118.) He is also a lifetime sex offender registrant and diagnosed pedophile. (ECF No.
102 ¶¶13, 17.) Antrim has sued Defendant Jared Hoy in his official capacity as Secretary of the
Wisconsin Department of Corrections (DOC), the state agency responsible for overseeing
Wisconsin’s statutory GPS monitoring program for certain sex offenders. (ECF No. 5 ¶¶14–15;
ECF No. 81 at 1 n.1.)

Antrim was twice convicted of first-degree sexual assault of a child, first in January 1991
and again in April 1999. (ECF No. 102 ¶¶1, 4.) He admits to molesting a total of 8 victims, all
between 5 and 10 years of age. (Id. ¶12.) In October 2018, Antrim was discharged from extended
supervision and is no longer under any form of criminal supervision. (ECF No. 98 ¶120.) Despite
having been released from criminal supervision, Antrim is subject to lifetime 24-hour GPS
monitoring under Wis. Stat. § 301.48 while he continues to reside in Wisconsin.
Wis. Stat. § 301.48 requires the DOC to maintain lifetime GPS tracking of people who
have committed serious sex offenses, including offenses against children. Individuals subject to
the statute must wear an ankle monitor at all times. (ECF No. 98 ¶¶1, 4.) The monitor is
unobtrusive and fits under clothing. (ECF No. 102 ¶¶105–07.) The DOC does not track subject
individuals on a real-time basis but instead analyzes their location every 24 hours to check whether
the offender was present at or near schools, playgrounds, or other places that might arouse
suspicion. (Id. ¶¶80, 84–90.) Tracking is terminated if a subject moves out of state. § 301.48(7m).
An individual can also petition to terminate tracking after 20 years of monitoring. § 301.48(6).
Antrim is subject to GPS tracking under subsection 301.48(2)(a)(7). This portion of the
statute requires GPS monitoring of individuals who are subject to law enforcement bulletin notices
under Wis. Stat. § 301.46(2m)(am). As relevant to this case, Antrim falls within the ambit of
subsection 301.46(2m)(am) because he has admittedly been convicted of qualifying sex offenses
on two or more occasions. (ECF No. 62 at 3–4.)
On March 18, 2019, eight Named Plaintiffs filed this lawsuit challenging the
constitutionality of Wis. Stat. § 301.48 under both the Fourth and Fourteenth Amendments. (ECF
No. 1.) Those Plaintiffs also moved for a preliminary injunction. (ECF No. 3.) They amended
both their complaint and preliminary injunction motion the next day. (ECF Nos. 5 & 7.) On May
1, 2019, Defendant moved to dismiss Counts II–IV of the amended complaint. (ECF No. 14.)
On December 17, 2019, after briefing was completed, Judge Pamela Pepper, to whom the
case was then assigned, held a hearing to address both motions. (ECF Nos. 31 & 32.) At the
hearing, the Court granted Defendant’s motion to dismiss and denied Plaintiffs’ request for
preliminary injunctive relief. (ECF No. 32.) As a result of the ruling, only Count I, a Fourth
Amendment claim, remained to be litigated. (Id.)
Plaintiffs immediately appealed the denial of their preliminary injunction motion. (ECF
No. 33.) On September 23, 2020, while the appeal was pending, the case was subject to a judicial

reassignment. Almost two years later, on June 21, 2022, the Seventh Circuit affirmed the denial
of Plaintiffs’ request for preliminary injunctive relief, concluding that Plaintiffs could not show a
likelihood of success on the merits of their Fourth Amendment claim. Braam v. Carr, 37 F.4th
1269 (7th Cir. 2022).

The Court of Appeals explained that Plaintiffs’ claim was largely

indistinguishable from Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016), which upheld a challenge to
Wis. Stat. § 301.48 as it applied to sex offenders released from post-prison civil commitment.
Braam, 37 F.4th at 1274–75. Based on Belleau, the Seventh Circuit agreed that Plaintiffs were
unlikely to succeed on the merits of their claim and returned the case to this Court for further
proceedings. Id. at 1274–77.
On remand, this Court gave the parties the opportunity to weigh in on how the Seventh
Circuit’s decision affected Plaintiffs’ remaining claim. (ECF No. 43.) On December 7, 2022, the
Court concluded Plaintiffs’ Fourth Amendment claim was not precluded as a matter of law and
directed the parties to propose a schedule for moving the case forward. (ECF No. 47.) The Court
then issued a Scheduling Order following a February 27, 2023 Scheduling Conference. (ECF Nos.
50 & 51.) On July 13, 2023, Plaintiffs moved for class certification. (ECF No. 52.) The Court
held an October 3, 2023 hearing on the motion at which the parties agreed that changes in state
law had rendered the claims of Named Plaintiffs Benjamin Braam and Daniel Olszewski moot,
leaving Antrim as the sole remaining Named Plaintiff. (ECF No. 58.) On December 13, 2023, the
Court certified a class of those individuals who, like Antrim, are subject to lifetime GPS
monitoring under Wis. Stat. § 301.48(2)(a)(7) because they have been convicted of qualifying
sexual offenses on two or more separate occasions. (ECF No. 62.) According to the parties’ most
recent figures, the class consists of 680 individuals subject to lifetime monitoring. (ECF No. 98
¶2.)
On May 31, 2024, the parties filed cross-motions for summary judgment. (ECF Nos. 81 &
88.) Both parties have also moved to strike or exclude portions of the evidence provided by the
other side in support of the summary judgment motions. (ECF Nos. 86, 91, 92.) 1
LEGAL STANDARD
Summary judgment is appropriate if the record shows there are no genuine issues of
material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
The evidence contested by both parties is irrelevant to the Court’s analysis. Because Defendant is entitled to
summary judgment irrespective of the challenged evidence, the Court will deny both parties’ motions as moot.

1

56(a). The Court must determine whether “there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is “material” if, under
the governing law, it could influence the outcome of the lawsuit. Id. at 248; Contreras v. City of
Chicago, 119 F.3d 1286, 1291–92 (7th Cir. 1997). A dispute over a material fact is “genuine”
only if a reasonable trier of fact could find in favor of the non-moving party on the evidence
presented. Anderson, 477 U.S. at 248.
The moving party bears the burden of proving the absence of any genuine issues of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). To survive a properly supported
summary judgment motion, the opposing party must “submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932,
937 (7th Cir. 2010) (citations omitted). If the parties assert different views of the facts, the Court
must view the record in the light most favorable to the nonmoving party. EEOC v. Sears, Roebuck
& Co., 233 F.3d 432, 437 (7th Cir. 2000).
Federal courts operate within a “vertical hierarchy.” United States v. Glazer, 14 F.3d 1213,
1216 (7th Cir. 1994). Thus, decisions of the United States Supreme Court and the Seventh Circuit
are “binding” on this Court in deciding matters of federal law. Id. When the Seventh Circuit has
decided a question of federal law, the Court “must follow” that decision. Id.
ANALYSIS
Antrim’s sole remaining claim is that Wisconsin’s lifetime GPS monitoring of sex
offenders under Wis. Stat. § 301.48(2)(a)(7) violates the Fourth Amendment. This argument faces
an uphill climb. As noted above, in Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016), the Seventh
Circuit considered and rejected a Fourth Amendment challenge to a different portion of Wis. Stat
§ 301.48, subsection 301.48(2)(b)(2). And in Braam v. Carr, 37 F.4th 1269 (7th Cir. 2022), the
Seventh Circuit confirmed Belleau’s applicability to Antrim’s challenge to subsection
301.48(2)(a)(7). In Braam, the Court of Appeals also specifically rejected many of the arguments
Antrim makes now. Although Braam did not finally decide the merits of Antrim’s challenge, the
Seventh Circuit explained why Antrim and his co-plaintiffs were unlikely to succeed on the merits.
The Court has now reached the time for deciding the merits of Antrim’s claim. To survive
summary judgment, he must explain why the GPS monitoring regime is an unreasonable search as
applied to him and distinguish his claim from the plaintiff in Belleau and as interpreted in Braam.

Because Antrim has not overcome these hurdles, his claim fails as a matter of law. Defendant’s
motion for summary judgment will therefore be granted and Antrim’s motion denied.
I.

In Belleau and Braam, the Seventh Circuit Held that Wis. Stat. § 301.48 Does Not
Violate the Fourth Amendment in Most Applications.
In Grady v. North Carolina, 575 U.S. 306 (2015), the Supreme Court confirmed that GPS

monitoring of sex offenders constitutes a search under the Fourth Amendment. In so holding,
however, the Court recognized that a GPS monitoring program for sex offenders could still pass
constitutional muster, if it was “reasonable.” Grady, 575 U.S. at 310 (explaining that the Fourth
Amendment only bars “unreasonable searches”).

Whether a search is reasonable requires

consideration of “the totality of the circumstances, including the nature and purpose of the search
and the extent to which the search intrudes upon reasonable privacy expectations.” Id. In
analyzing these considerations, courts must balance the individual privacy interests at stake against
the legitimate state interests in performing the search. Braam, 37 F.4th at 1273 (citing Birchfield
v. North Dakota, 579 U.S. 438, 476 n.8 (2016)).
In Belleau, the Seventh Circuit applied this test to Wis. Stat. § 301.48(2)(b)(2), a subsection
of Wisconsin’s lifetime GPS monitoring statute that applies to sex offenders released from postprison civil commitment. 811 F.3d at 931–32. In that case, the plaintiff was twice convicted of
sexually assaulting a child. Id. at 930–31. Following his second conviction, he was sentenced to
ten years in prison but then paroled after six years in custody. Id. at 931. His parole was later
revoked after he admitted to having sexual fantasies about two young girls. Id. When he was
about to be released from prison, the state arranged for his civil commitment at a treatment center
after a court found him to be a “sexually violent person.” Id. (citing Wis. Stat. ch. 980). After five
years of civil commitment, he was released from all supervision “on the basis of the opinion of a
psychologist that he was no longer more likely than not to commit further sexual assaults.” Id.
He then learned that he would nevertheless continue to be subject to lifetime 24-hour GPS
monitoring under subsection 301.48(2)(b)(2).

Id.

He responded by suing the Wisconsin

Department of Corrections in federal court, claiming that the statutory monitoring scheme violated
the Fourth Amendment as applied to him. Id. The district court agreed with him, but the Seventh
Circuit reversed. Id. at 931–38.
In upholding subsection 301.48(2)(b)(2) as constitutional, the Seventh Circuit emphasized
that the state had a strong interest in monitoring sex offenders and confirmed that lifetime

monitoring was a legitimate means of advancing Wisconsin’s strong interest in protecting the
public from recidivism by sex offenders. Id. at 932–36. The Court of Appeals noted that the
plaintiff’s crimes demonstrated that he was both a pedophile and predisposed “to commit sexually
violent acts.” Id. at 934. It acknowledged that expert testimony suggested his particular risk of
reoffending was somewhat low—between 8% and 16%—but noted that “[t]here is serious
underreporting of sex crimes, especially sex crimes against children.” Id. at 933. The Court then
concluded that convicted sex offenders like the plaintiff pose a sufficiently significant danger to
the public even after they are released from prison or civil commitment and that lifetime
monitoring is an effective deterrent of recidivism. Id. at 934, 936. It then balanced the state’s
strong interests against the program’s encroachment on the plaintiff’s privacy interests. It noted
that the GPS anklet was unobtrusive and did not identify the plaintiff’s actions, only his locations.
Id. at 932, 936. The Court also emphasized that GPS monitoring created only a modest incremental
burden on his privacy interests because, as a convicted sex offender, he was required to register
and remain listed on the public sex-offender registry, which provides public access to his criminal
records and home addresses in any event. Id. at 934–35. Given the “slight . . . incremental loss of
privacy from having to wear the anklet monitor,” the Court held that the burden on the plaintiff’s
privacy did not outweigh the substantial public interest served by the monitoring program. Id. at
936. Because the balance of interests weighed in the state’s favor, the Seventh Circuit upheld
Wisconsin’s GPS monitoring program as reasonable under the Fourth Amendment. Id. at 936–37.
In affirming this Court’s denial of injunctive relief in this case, the Seventh Circuit
reaffirmed Belleau and applied its reasoning to Antrim’s claim here. Braam, 37 F.4th at 1274–76.
In doing so, the Court of Appeals rejected several attempts to distinguish the claim in this case
from the plaintiff’s claim in Belleau. Id. at 1274–75. With respect to the state’s interest in the
GPS monitoring scheme, the Court reiterated that Wisconsin “has a strong public-safety interest
in monitoring repeat sex offenders for deterrence purposes.” Id. at 1275. The Court of Appeals
declined the invitation to use social-science research to weigh in on the efficacy of the program,
noting that the courts’ “role is not to second-guess the legislative policy judgment by parsing the
latest academic studies on sex-offender recidivism.” Id. (quoting Vasquez v. Foxx, 895 F.3d 515,
525 (7th Cir. 2018), overruled on other grounds by Koch v. Village of Hartland, 43 F.4th 747 (7th
Cir. 2022)). The Court also reaffirmed Belleau’s recognition that sex offenders have diminished
privacy interests even after being discharged from prison and post-confinement supervision and

rejected Plaintiffs’ attempts to “undermine [Belleau’s] foundations.” Id. Based on the totality of
these circumstances, the Court of Appeals agreed with this Court that Plaintiffs could not establish
a likelihood of success on the merits of their Fourth Amendment claim.
II.

Antrim Has Not Distinguished His Claim from the Seventh Circuit’s Analysis in
Belleau.
The holdings and analyses in Belleau and Braam are major obstacles for Antrim. Indeed,

Defendant contends that Antrim’s Fourth Amendment claim is foreclosed by the Seventh Circuit’s
holdings in both cases. (ECF No. 82 at 22–25.) Defendant points out that the Court of Appeals in
Belleau upheld portions of the same GPS monitoring law against a Fourth Amendment challenge
brought by a repeat child sex offender. (Id. at 22.) Defendant further observes that, in Braam, the
Court reaffirmed Belleau and applied it to Antrim’s similar Fourth Amendment claim in the
context of a preliminary injunction motion. (Id. at 25.) Thus, Defendant argues, those precedents
require this Court to reject Antrim’s claim.
Antrim offers three main attempts to avoid the holdings in Belleau and Braam. (ECF No.
101 at 24–28.) First, he argues that this Court’s decision not to dismiss the case immediately upon
remand means the Court has already rejected the argument that Belleau and Braam are dispositive
of his claim. (Id. at 24.) This contention overstates the Court’s prior ruling. As already
emphasized, Braam involved an appeal from the denial of a preliminary injunction. In affirming
that denial, the Court of Appeals relied upon Belleau to conclude that Judge Pepper had correctly
concluded that Plaintiffs could not show a likelihood of success on the merits of their Fourth
Amendment claim. Braam, 37 F.4th at 1274–76. After the mandate was returned to this Court,
the parties briefed whether Plaintiffs’ Fourth Amendment claim remained viable in light of the
Seventh Circuit’s decision. (ECF Nos. 44–46.) The Court rejected Defendant’s contention that
the law of the case doctrine required dismissal of the remaining claim, explaining that the Seventh
Circuit had decided only that Plaintiffs’ claim was unlikely to succeed on the merits. (ECF No. 47
at 1–2.) Because Defendant made no other arguments against the viability of Plaintiffs’ claim, the
case was allowed to continue. (See id. at 2.) The Court did not hold that Belleau and Braam were
not obstacles to Antrim’s claim; it simply allowed Antrim the opportunity to develop the record to
try to distinguish his claim from the analyses in those decisions. The Court in no way suggested
that Antrim had already prevailed in that opportunity.

Antrim next contends that his claim is distinguishable from Belleau on the facts. (ECF No.
101 at 25.) Several of these efforts amount to little more than attacks on Belleau’s reasoning and
thinly-veiled criticisms of the Seventh Circuit’s ruling itself. He insists, for example, that the Court
of Appeals made erroneous assumptions in rejecting the plaintiff’s claim in that case. (See id.)
But this is not a basis for this Court to disregard precedent. Even if Antrim believes the Court of
Appeals’ assumptions in Belleau were wrong, that case remains binding on this Court. See Glazer,
14 F.3d at 1216. Antrim also argues that because this case involves a different statutory subsection
than the provision at issue in Belleau, a different result is justified. (ECF No. 101 at 25.) He
argues that the subsection at issue here, Wis. Stat. § 301.48(2)(a)(7), “applies to a broad and
heterogenous group of people, many of whom present a low risk of reoffending.” (Id.) He
contrasts this with subsection 301.48(b)(2), the provision at issue in Belleau, which he describes
as applying only to persons released from civil commitment and previously determined to be
sexually violent and likely to engage in future acts of sexual violence. (Id.) Antrim insists that
subsection 301.48(2)(a)(7) requires GPS monitoring of individuals who have merely been
convicted of possession of child pornography and may be at a low risk of reoffending, unlike the
plaintiff in Belleau, who had a documented inability to “suppress or manage his deviant desire.”
(Id. (quoting Belleau, 811 F.3d at 933); see also ECF No. 88 at 13–15.) This argument fails for a
number of reasons, but primarily because it does not apply to Antrim. Antrim is not subject to
lifetime GPS monitoring because of a conviction for merely possessing child pornography. He
has twice been convicted of first-degree sexual assault of a child. He cannot win relief for the
class he represents by arguing facts that do not apply to him. See Rakas v. Illinois, 439 U.S. 128,
133–34 (1978) (“Fourth Amendment rights are personal rights which . . . may not be vicariously
asserted.” (quoting Brown v. United States, 411 U.S. 223, 230 (1973)). Antrim’s argument is,
essentially, that the challenged statute is overbroad, but the overbreadth doctrine is a First
Amendment doctrine and has no application to a Fourth Amendment case. Braam, 37 F.4th at
1276. To warrant relief for himself and the class he represents, Antrim must show that Wis. Stat.
§ 301.48 is unconstitutional as applied to him, not to unidentified potential members of the class.
He has failed to do so. Like the plaintiff in Belleau, Antrim has twice been convicted of sexually
assaulting young children and is a diagnosed pedophile subject to lifetime placement on the sex
offender registry. As the Seventh Circuit explained in Braam, the reasoning in Belleau applies
with equal force to Antrim’s claim.

Antrim’s third and final argument is that the Court should “reconsider the persuasive force
of Belleau.” (ECF No. 101 at 26–28.) This misunderstands the role of precedent and the hierarchy
of the federal courts. Decisions of the Seventh Circuit (and Supreme Court) are binding on this
Court. See Glazer, 14 F.3d at 1216. Even if it were so inclined, the Court has no authority to
“reconsider the persuasive force of Belleau.” Antrim’s block quotation of Justice Gorsuch’s
concurrence in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), on the limitations of
stare decisis is inapposite. (See ECF No. 101 at 26.) The Supreme Court, as this nation’s highest
court, has authority to overrule not only the decisions of the lower courts, but also its own prior
decisions. Similarly, the Seventh Circuit may overrule its own prior decisions. This Court does
not have the authority to overrule or disregard the decisions of its superior federal appellate courts.
Accordingly, Antrim has not marshaled evidence sufficient to survive summary judgment.
In sum, even viewing the record in the light most favorable to Antrim, the Court concludes that he
has not presented sufficient evidence to distinguish his claim from Belleau and show that there is
a genuine issue for trial. See Siegel, 612 F.3d at 937. Accordingly, Defendant’s motion for
summary judgment is granted and Antrim’s denied.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Defendant Jared Hoy’s Motion for Summary Judgment,
ECF No. 81, is GRANTED and the case DISMISSED. The Clerk is directed to enter judgment
accordingly.
IT IS FURTHER ORDERED that Plaintiff Alton Antrim’s Motion for Summary
Judgment, ECF No. 88, is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Exclude Expert Testimony,
ECF No. 86, and Motion to Strike, ECF No. 91, and Plaintiff’s Motion to Strike, ECF No. 92, are
DENIED as moot.
Dated at Milwaukee, Wisconsin on March 11, 2025.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge