858 F.3d 348
5th Cir.2017Background
- Aurelio Duarte was convicted in 2006 of online solicitation of a minor; his sentence was ultimately discharged in June 2010 and he must register as a child sex offender under Texas law.
- Lewisville’s ordinance bars registered child sex offenders from residing within 1,500 feet of places “where children commonly gather,” effectively excluding the majority of the city from Duarte.
- The ordinance incorporates exemptions paralleling a Texas statutory rule that allows judicial waiver of a 1,000-foot restriction for certain offenders on community supervision; those discharged or never on supervision (like Duarte) cannot obtain that state waiver and thus cannot access the ordinance’s parallel exemption.
- Duarte and his family sued under the Due Process and Equal Protection Clauses and other theories; after procedural briefing and a prior standing reversal, the district court granted summary judgment for Lewisville, which the Fifth Circuit affirmed here.
- Duarte sought a hearing to show he is not currently dangerous and claimed the ordinance also infringed the family’s consortium rights; he also argued unequal treatment between offenders on community supervision and those who are not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordinance denies procedural due process by depriving Duarte of a liberty interest without a hearing to prove current dangerousness | Duarte: He has a liberty interest to live where he chooses and is entitled to a hearing to show he is not dangerous | Lewisville: No hearing required because the ordinance’s relevant fact is conviction-based registration, not current dangerousness | Held: No due process violation — even assuming a liberty interest, due process does not require a hearing to prove a fact immaterial under the statute (citing Conn. Dep’t of Pub. Safety v. Doe) |
| Whether the family is entitled to a pre-deprivation hearing on family consortium grounds | Duarte: Family should have hearing to contest Duarte’s dangerousness before being deprived of consortium | Lewisville: Same as above; family claims depend on the same immaterial fact | Held: Same as individual due process claim — no hearing required because the fact sought to be proven is not material under the ordinance |
| Whether the ordinance violates equal protection by treating offenders on community supervision differently from those not on supervision | Duarte: Classification arbitrarily grants exemptions to those on supervision (who can seek judicial waivers) but bars discharged/never-supervised offenders from the same process | Lewisville: Classification rationally defers to existing court orders and avoids conflicting judgments; exemptions mirror state statutory waiver regime | Held: Classification reviewed under rational-basis and upheld as rationally related to legitimate government interests (reliance on court orders and administrability) |
| Whether a stricter level of scrutiny applies (suspect class/fundamental right) | Duarte: Argues for heightened review (cursory on appeal) | Lewisville: No suspect class implicated and plaintiff waived substantive due process banishment argument | Held: Court limited review to rational basis; appellants failed to show plain error or to brief stricter scrutiny; substantive/strict-scrutiny issues not reached |
Key Cases Cited
- Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003) (due process does not require a hearing to establish facts immaterial under a registration/residency statute)
- Meza v. Livingston, 607 F.3d 392 (5th Cir. 2010) (no additional process due to sex-offender status following conviction)
- Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (upholding residency restriction applying to all convicted offenders regardless of individualized dangerousness hearings)
- Matthews v. Eldridge, 424 U.S. 319 (1976) (test for adequacy of procedural protections)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (equal protection principle that similarly situated persons be treated alike)
- Nordlinger v. Hahn, 505 U.S. 1 (1992) (rational-basis review and protection of reliance interests can justify classifications)
- Heller v. Doe, 509 U.S. 312 (1993) (rational basis standard for legislative classifications)
- F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) (challenger must negate any conceivable rational basis)
- Romer v. Evans, 517 U.S. 620 (1996) (legitimate public policies can justify incidental disadvantages)
- McGowan v. Maryland, 366 U.S. 420 (1961) (existence of exemptions does not automatically create equal protection violation if valid reasons exist)