987 F. Supp. 2d 1162
D.N.M.2013Background
- Regina Chacon, an Assistant Bureau Chief in New Mexico DPS, reviewed whether Colorado Unlawful Sexual Contact translated to a New Mexico SORNA offense.
- Kvech pleaded guilty in Colorado in 2006 to Unlawful Sexual Contact, and Colorado required him to register as a sex offender there.
- Kvech moved to New Mexico; he registered in New Mexico and Colorado, with DPS and Sandoval County involved in processing, per NM SORNA.
- Judge McDonald of New Mexico ordered in 2008 that Kvech’s Colorado conviction was not an equivalent NM sex offense, and he was not required to register in NM.
- Chacon continued to enforce NM SORNA registration against Kvech, sending a June 3, 2010 letter; after DPS policy changed, she issued a July 12, 2010 letter stating NM registration was not required.
- Kvech filed §1983 civil rights claims; the court held Chacon violated liberty interests but qualified immunity shielded her.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chacon violated due process by not removing Kvech from NM registry | Kvech argues stigma-plus violation and denial of hearing after McDonald ruling | Chacon asserts no clearly established right requiring pre-removal hearing | Chacon liable for liberty interest loss, but qualified immunity applies |
| Whether the law was clearly established that NM official must provide process in out-of-state conviction cases | Kvech contends rights were clearly established by Gwinn Brown Doe line | Chacon contends law not clearly established; relied on state-equivalence approach | Not clearly established during 2006–2010; qualified immunity applies |
| Whether Chacon is protected by statutory immunity under 42 U.S.C. § 16929 | Kvech asserts bad faith and misapplication of law defeating immunity | Chacon claims good faith immunity under § 16929 | Statutory immunity disputed fact; summary judgment granted in part for qualified immunity, denial for statutory immunity |
Key Cases Cited
- Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (U.S. 2003) (conviction-based registry not entitling hearing when not necessary)
- Gwinn v. Awmiller, 354 F.3d 1211 (10th Cir. 2004) (stigma-plus framework; pre-deprivation process outside prison)
- Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011) (procedural due process for outside-prison sex-offender registration; clear establishment depends on facts)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (decision to address prongs of qualified immunity; not mandatory to follow Saucier sequence)
- Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-step qualified immunity framework (pre-Pearson modification))
- Reichle v. Howards, 132 S. Ct. 2088 (U.S. 2012) (clarified clearly established prong; pre-existing precedent required beyond debate)
- State v. Hall, State v. Hall, 2013-NMSC-001 (N.M. 2013) (New Mexico approach to equivalence look beyond elements to conduct)