Doe v. PryorDoe v. Pryor
OPINION
Pseudonymous plaintiff John Doe claims in this lawsuit that the 1996 Alabama Community Notification Act, as amended,
The lawsuit is currently before the court on the plaintiffs motion for a preliminary injunction prohibiting enforcement of the Act’s community-notification provisions against him pending resolution of this lawsuit. For the reasons set forth below, the motion will be granted. The court does not reach at this time the issues of the constitutionality of the Act on its face or as applied to the plaintiff in all respects but rather makes the limited preliminary holding that the process by which state officials found the plaintiff (who was convicted of a federal and not an Alabama offense) to be
I. BACKGROUND
A. The Act
The Community Notification Act is Alabama’s version of ‘Megan’s Law.’ 1 It is among the broadest and most restrictive of such laws in the nation. 2 It requires individuals convicted of certain offenses to register with law enforcement officials, and it requires those officials to notify members of the public whenever a registrant moves into their community. It also places significant restrictions on where and with whom a registrant may live and work.
The Alabama Legislature first passed the Community Notification Act in 1996 and has since amended it twice. The original Act went into effect on May 29, 1996. See Ala. Act No. 96-793. The first amendment went into effect on August 1, 1998. See Ala. Act No. 98-489. The 1998 amendments expanded the Act to reach certain child pornography offenses. The second amendment, passed earlier this year, will go into effect on September 1, 1999. See Ala. Act No. 99-572. Except as otherwise noted below, no differences between the 1998 and 1999 amendments are relevant here.
1. Persons to Whom the Act Applies
Any person convicted of a “criminal sex offense” as defined by the Act is a “criminal sex offender” subject to the Act’s registration, notification, residency, and employment provisions. “Criminal sex offense” includes rape, sodomy, sexual torture, sexual abuse, incest (when the offender is an adult and the victim is a minor), enticement and promoting prostitution.
See
Although the Community Notification Act is not expressly retroactive, it contains no language limiting its application to those convicted of a criminal sex offense after the Act was passed. The Alabama Attorney General has interpreted it to apply to individuals convicted prior to the Act whenever they establish a new residence within the State.
See
Op.Ala. Att’y
The Act is also unlimited in duration. The current version contains no language limiting its prospective or retrospective application to a specified length of time. Thus, the Act applies with equal force to a person convicted of a criminal sex offense in 1999 as it does to a person convicted in 1909, and a person subject to the Act today is subject to it for life. The 1999 amendment limits the scope of the Act to 25 years from the date of release unless the person was convicted of more than one criminal sex offense or a criminal sex offense involving more than one victim.
See id.
§ 3 (to be codified at
2. Residency and Employment Restrictions
The Act prohibits criminal sex offenders from establishing a residence or accepting employment “within 1,000 feet of the property on which any public school, private or parochial school, licensed daycare center, or any other child care facility is located.”
The Act also prohibits criminal sex offenders from establishing a residence “or any other living accommodation” where a minor resides unless the offender is the minor’s parent.
The Act places additional limitations on the criminal sex offender’s contact with his or her former victims. First, it prohibits criminal sex offenders from establishing a residence or any other living accommodation “within 1,000 feet of the property on which any of his or her former victims, or the victims’ immediate family members reside....”
Finally, the Act prohibits an offender from changing his or her name.
See
Any knowing violation of the residency restrictions is a Class C felony.
See
Thirty days prior to release from state or local custody, criminal sex offenders must declare in writing the address at which they intend to reside upon release.
See
The Act requires the State Board of Pardons and Paroles to register criminal sex offenders who were on probation or parole as of June 30, 1998, and to order the offenders to report to the appropriate law enforcement agency for fingerprinting and photographing.
See
Registration also applies to criminal sex offenders who are convicted after the effective date of the Act but who are not sentenced to custody.
See
The Act requires registrants to verify their address shortly after release and then annually thereafter.
See
All persons subject to the Act are required to notify law enforcement officials at least 30 days prior to any change in residence.
See
With one small exception, any knowing violation of these registration requirements is a Class C felony.
See id.
§ 15-20-24;
but see
4. Community Notification
The Act provides for mandatory community notification upon the release of a criminal sex offender and upon receipt by law enforcement officials of the required notice that an offender intends to change his or her legal residence.
See
The breadth of the required notice varies by location. In Birmingham, Huntsville, Mobile and Montgomery, notice must go out to all residences within 1,000 feet of the offender and to all schools and childcare facilities within three miles.
See
Notification occurs by distribution of a “community notification flyer.”
“Name; actual living address; sex; date of birth; complete physical description, including distinguishing features such as scars, birth marks, or any identifying physical characteristics; and a current photograph. This notification shall also include a statement of the criminal sex offense for which he or she has been convicted, including the age and gender of the victim, the geographic area where the offense occurred, and the date upon which the criminal sex offender will be released. This notification shall also include a statement that the same information is on file [with law enforcement officials], and that the information will be available to the general public for inspection and identification purposes during regular business hours.”
B. The Plaintiff
The plaintiff pled guilty in December 1996 to one count of receiving child pornography in interstate commerce in violation of
The plaintiff had lived in the same apartment with his wife in Montgomery, Alabama, for the past five years until he was recently forced to move due to a pending divorce. He is now living in a new apartment not far from his prior residence.
When the plaintiff informed his federal probation officer of his need to move, the officer told him that he was subject to the Alabama Community Notification Act, and, in accordance with
II. DISCUSSION
The Eleventh Circuit Court of Appeals has established a four-prong test for the district court to apply when determining whether a preliminary injunction should issue. Under this test, the movant must demonstrate: “(1) a substantial likelihood she will ultimately prevail on the merits; (2) that she will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that if issued, the injunction would not be adverse to the public interest.”
Baker v. Buckeye Cellulose Corp.,
A. Likelihood of Success
The plaintiff challenges the Community Notification Act on six grounds: (1) procedural due process; (2) substantive due process; (3) the overbreadth doctrine; (4) the equal-protection clause; (5) the ex-post-facto clause; and (6) the bill-of-attainder clause. For purposes of the preliminary injunction, however, he raises only those claims which might affect the enforcement of the notification provisions of the Act against him.
1. Procedural-Due-Process Claim
To succeed on his procedural-due-process claim under the fourteenth amendment to the United States Constitution as
a. The Liberty Interest
The plaintiff argues that community notification under the Act will deprive him of a liberty interest in reputation as defined by the Supreme Court in
Wisconsin v. Constantineau,
In
Constantineau,
the Court struck down a Wisconsin law that authorized government officials to post in liquor stores a notice prohibiting the gift or sale of alcohol to persons listed on the notice whom the officials deemed to be a danger to themselves, to their families or to their communities though excessive drinking. The statute provided such persons with no notice or opportunity to be heard prior to the officials’ determination that their drinking made them a danger. Finding that this determination attached a “badge of infamy” to persons fisted on the notice, the Court concluded that due process was required and that the Wisconsin statute was unconstitutional on its face.
The next year, in
Roth,
the Court considered the claim of a non-tenured professor at a state university who was not rehired after his one-year contract expired. The Court held that the State had not deprived the professor of a liberty interest in his reputation because the university had not given any reasons for its decision “that might seriously damage his standing and associations in his community.”
In
Paul,
two police chiefs distributed to local retail stores a flyer with the mug shots of persons considered to be ‘active shoplifters.’ The plaintiff, whose name and photograph appeared in the flyer even though he had not been convicted of shoplifting, sued in federal court for defamation as a violation of the due-process clause under
Expressing concern that the plaintiff “would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,” the Court in
Paul
found that its prior decisions “do[ ] not
The Court concluded that its prior decisions had established “no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”
Id.
at 702,
Courts have generally interpreted
Paul
as setting forth a ‘stigma-plus’ test: to establish that he or she has been deprived of a liberty interest in reputation sufficient to implicate the procedural protections of the due process clause, a plaintiff must show stigma plus the alteration or extinguishment of some other right or status.
See, e.g., Valmonte v. Bane,
The plaintiff here is likely to succeed in showing, as a matter of fact, that community notification under the Act will seriously damage his reputation and standing in the community. While it might seem that a convicted felon could have little left of his good name, community notification in this case will inflict a greater stigma than would result from conviction alone. Notification will clearly brand the plaintiff as a “criminal sex offender” within the meaning of the Community Notification Act- — a ‘badge of infamy’ that he will have to wear for at least 25 years — and strongly implies that he is a likely recidivist and a danger to his community. The plaintiff is therefore likely to pass the first part of the stigma-plus test.
The plaintiff is also likely to succeed in showing the existence of at least three well-recognized ‘plus-factors.’
First, like the law struck down in
Con-stantineau,
the Community Notification Act deprives the plaintiff of rights previously held under State law. By virtue of having been deemed a ‘criminal sex offender’ within the meaning of the Act, the plaintiff no longer has the right establish a new residence without giving prior notice to government officials.
See
Second, the plaintiff is likely to succeed in showing, as the plaintiff in
Roth
could not, that the Community Notification Act will foreclose his freedom to take advantage of housing and employment opportunities well beyond those expressly forbidden. There can be little doubt that prospective employers and sellers or lessors of real estate will think twice before doing business with an individual deemed to be a likely recidivist and a danger to his community, and, because the Act allows government officials to notify communities through the local media and the Internet, it is likely that at least some of these prospective business partners will become aware of the State’s warning. To the extent that such opportunities are foreclosed, the plaintiff will have satisfied the ‘plus’ part of the stigma-plus test.
See, e.g., Cutshall v. Sundquist,
Third, and finally, the Community Notification Act will deprive the plaintiff of a legitimate privacy interest in his home address.
8
The Act mandates disclosure of the plaintiffs home address when notifying his community,
see
b. The Process Due
The plaintiff next argues that the process by which state law-enforcement officials determined that he is subject to the Community Notification Act — and therefore subject to community notification— was constitutionally inadequate. He demands notice and a hearing.
The plaintiffs private interests here are substantial. Community notification under the Act will likely affect his interests in reputation, employment, free movement and privacy, as explained above, and it will continue to do so for the next 25 years. As a result, the plaintiff has a weighty interest in an accurate determination of whether the Act applies to him.
See, e.g., E.B. v.. Verniero,
The risk here of an erroneous deprivation is also substantial. Community notification depends upon, among other things, a determination that an individual is subject to the Act. For an individual like the plaintiff, who was not convicted in an Alabama state court, this determination involves an administrative finding that the individual has committed a crime “which would constitute an offense listed” in the Act.
Just how this finding is to be made and who is to make it is not clear from the text of the Act. In this case, according to the defendants, it was made by an employee at the Alabama Department of Public Safety after comparing the elements of the crime to which the plaintiff pled guilty with the elements of the crimes listed in the Act. This employee is not a lawyer and has little or no specialized training in the law or law enforcement. He made the comparison without the benefit of any objective standards and did not explain or justify his decision in writing. The plaintiff received no notice and no opportunity to be heard either before or after the determination was made. The procedure followed throughout is apparently unwritten and is applied on an ad-hoc basis.
Under these circumstances, the risk of error is both substantial and apparent, and so is the likely value of additional or substitute procedures. Statutory interpretation is no easy task. Identifying the elements of a crime can vex even the most competent and experienced jurists.
See, e.g., Jones v. United States,
— U.S. -,
In this case, for instance, the relevant federal law defines “child pornography” as a “visual depiction” of “a minor engaging in sexually explicit conduct,”
To be sure, in order to show that the plaintiffs case falls squarely within the coverage of the comparable state child pornography law, the defendants have now submitted to this court an affidavit by the Customs Agent who investigated the plaintiffs case, setting forth the factual details of the plaintiffs case. This affidavit, however, dramatically demonstrates the need for some type of open factfinding procedure. The issue of whether the plaintiffs conduct falls within the coverage of the comparable state child pornography law is for the State, not this federal court, to decide, but with adequate procedures to comply with the due process clause.
Finally, the State obviously has a substantial interest here, too. The function involved is among the core functions of government — the protection of its citizens from potential danger — and the administrative burden and other public costs that might be associated with additional or substitute procedures will not likely be insignificant. The extent of this added burden, however, is not clear. The court has no information at this time as to how many could be affected by this decision, but the court expects that this number will not be overwhelming. Moreover, the court does not anticipate any additional or substitute procedures to be unduly costly.
Weighing these factors, the court finds that the procedures used here are constitutionally inadequate. Due process is not a fixed concept, but central to its command is the right to prior notice and an opportunity to be heard.
See, e.g., United States v. James Daniel Good Real Property,
2. Other Claims
Likely success on his procedural due process claim fully entitles the plaintiff to the injunction he seeks as long as he can satisfy the other preconditions for equitable relief. Consideration of the plaintiffs other claims is therefore unnecessary and unwarranted at this time.
See Bowen v. United States,
B. Irreparable Harm
The plaintiff contends that he will suffer irreparable harm to his reputation, psyche and personal associations if community notification is allowed to proceed. Such harms, by their very nature, are not easily measured or redressed by money damages and are thus “common venues for the issuance of a preliminary injunction.”
McDonald’s Corp. v. Robertson,
The equities in this case weigh in favor of granting a preliminary injunction. The plaintiff faces irreparable harm in the absence of a preliminary injunction, whereas the defendants will suffer little or no harm by a delay in notification. The injuries that would be inflicted on the plaintiff by community notification thus outweigh the damage, if any, that the preliminary injunction might cause the defendants.
D. The Public Interest
In assessing whether the requested injunction would be adverse to the public interest, the court’s inquiry “is necessarily confined to that [harm] which might occur in the interval between ruling on the preliminary injunction and trial on the merits.”
United States v. Lambert,
III. CONCLUSION
Although the plaintiff here has been convicted of a deplorable crime, he should still receive the benefit of due process under law — not just for his own sake but for the sakes of us all.
“[Sir Thomas] More: And go he should, if he was the Devil himself, until he broke the law!
“[William] Roper: So now you’d give the Devil benefit of law!
“More: Yes. What would you do? Cut a great road through the law to get after the Devil?
“Roper: I’d cut down every law in England to do that!
“More: Oh? And when the last law was down and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
Robert Bolt, A Man for All Seasons Act I (1962).
An appropriate order will be entered.
Notes
. Megan Kanka was the seven-year old victim of a sexual assault and murder in New Jersey in 1994. The circumstances of her death prompted that State and many others to enact registration and notification laws for criminal sex offenders.
.
See State v. CM. et al.,
CR-98-0447,
. The Alabama Child Pornography Act proscribes: (1) the dissemination or public display of child pornography,
.While an opinion of the Attorney General is not binding authority in Alabama, it may constitute persuasive authority.
See Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co.,
. The Alabama Department of Public Safety maintains an online database of registered criminal sex offenders. See <http://www.gsi-web.net>. The site allows anyone with access to the world wide web to search for registrants by name, city, county or zip code. Users can view the community notification information for each offender and can even display a detailed map showing the location of the offender's home address.
. The court notes that the Alabama Constitution specifically protects an individual’s interest in reputation.
See
1901
. In
Bonner v. Prichard,
. Although the ‘right to privacy’ is often found to be rooted in the concept of liberty set forth in the due process clauses of the fifth and fourteenth amendments,
see, e.g., Roe v. Wade,