Shaw v. Patton
2016 U.S. App. LEXIS 9047
| 10th Cir. | 2016Background
- In 1998 Juston Shaw was convicted in Texas of sexual assault; about a decade later he moved to Oklahoma and became subject to Oklahoma’s Sex Offenders Registration Act as amended in 2009 and 2014.
- Under Oklahoma law as applied to Shaw he must: regularly report in-person to local police, may not live within 2,000 feet of schools/playgrounds/parks/child-care centers, and may not loiter within 500 feet of those locations.
- Shaw sued the Director of the Oklahoma Department of Corrections asserting the retroactive application of those rules to his 1998 conviction violated the Ex Post Facto Clause (as-applied challenge).
- The district court held the retroactive application was nonpunitive; the Tenth Circuit reviewed de novo whether the challenged provisions have the punitive effect required to trigger the Ex Post Facto Clause.
- The court limited review to the provisions actually applied to Shaw (reporting, residency, loitering); several other statutory provisions were not implicated by Shaw’s facts.
Issues
| Issue | Plaintiff's Argument (Shaw) | Defendant's Argument (State / DOC) | Held |
|---|---|---|---|
| Whether Oklahoma’s reporting, residency, and loitering rules are retroactive | Application of post-1998 statutes to Shaw’s 1998 conviction is retroactive and thus subject to Ex Post Facto analysis | Statute didn’t apply until Shaw moved to Oklahoma, so not retroactive | The court treated the laws as retroactive (they govern conduct predating enactment) and proceeded to Ex Post Facto analysis |
| Whether the reporting and residency requirements are punitive in effect under Smith v. Doe tests | The requirements resemble traditional punishment (probation/banishment), impose affirmative disabilities/restraints, and are excessive and retributive | The provisions are civil, regulatory, and rationally related to public-safety objectives; plaintiff must show clearest proof of punitive effect | Reporting and residency requirements are nonpunitive as applied to Shaw; each Smith factor weighed against finding punishment |
| Whether the loitering restriction is punitive | Loitering bans amount to an affirmative punitive restraint | State argued Shaw forfeited or failed to adequately press the loitering claim | Court declined to reach the merits: Shaw forfeited the loitering argument and did not develop all Smith factors on appeal |
| Whether state-court (Oklahoma) analysis controls federal Ex Post Facto inquiry | Shaw urged deference to Oklahoma Supreme Court’s Starkey analysis under state constitution | Federal courts decide for themselves whether a state law violates the U.S. Constitution’s Ex Post Facto Clause | Tenth Circuit did not defer to Starkey on the federal constitutional question and applied federal precedents |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (2003) (sets the intent-effects test and five-factor framework for assessing whether sex-offender regulations are punitive for Ex Post Facto purposes)
- Stogner v. California, 539 U.S. 607 (2003) (defines retroactive application as governing conduct that preceded a statute’s enactment)
- Kansas v. Hendricks, 521 U.S. 346 (1997) (explains when particularly severe civil restraints require individualized findings to avoid being punitive)
- United States v. Salerno, 481 U.S. 739 (1987) (supports civil preventive detention regimes where individualized dangerousness determinations justify restraint)
- United States v. Knights, 534 U.S. 112 (2001) (recognizes probation as punishment but distinguishes non-supervisory registration requirements)
- United States v. Hinckley, 550 F.3d 926 (10th Cir. 2008) (rejected argument that in-person reporting converts a registration regime into punishment)