MEMORANDUM OPINION AND AMENDED ORDER
THIS MATTER comes before the Court on the Motion for Summary Judgment (Qualified Immunity), filed September 28, 2012 (Doc. 22)(“MSJ”). The Court held a hearing on May 20, 2013. The primary issues are: (i) whether Defendant Regina Chacon violated Plaintiff James Kvech’s rights protected under the Fourteenth Amendment to the Constitution of the United States of America by not removing his name from the New Mexico sex offender registry and sending a letter to Kvech telling him that he needed to continue registering as a sex offender; (ii) whether federal law protecting Kvech’s liberty interest and establishing his procedural due-process rights was clearly established at the time of Chacon’s actions in 2006 to 2010; and (iii) whether federal statutory immunity protects Chacon. The Court concludes that Chacon’s conduct infringed on Kvech’s constitutionally protected liberty interest, because her conduct in not removing Kvech’s name from the New Mexico sex offender registry amounted to a false, derogatory, and stigmatizing statement that injured Kvech’s reputation, and altered his legal status in New Mexico, and that she did not provide Chacon a hearing or opportunity to challenge her conclusion that his Colorado conviction was an equivalent offense under New Mexico law. The Court also concludes, however, that the law at the time was not clearly established; it was not clear that any hearing was necessary to determine that an out-of-state conviction was equivalent to a sex offense, when the person who had been convicted of a sex offense in another state was required to register as a sex offender in that other state. The Court will grant the motion for summary judgment, because Chacon is protected by qualified immunity. Although the qualified immunity issue disposes of the case, the Court notes that, under the statutory immunity analysis, the Court would deny the motion, because there is a disputed question whether Chacon acted in good faith.
FACTUAL BACKGROUND
The affidavits and exhibits demonstrate that the following facts are undisputed. There are factual issues, but they are not material.
The State of New Mexico Department of Public Safety (“the DPS”)
On October 30, 2006, Kvech pled guilty to misdemeanor Unlawful Sexual Contact, Colo.Rev.Stat. § 18-3^04(l)(a), which says that a person is guilty of unlawful sexual contact if the “actor knows that the victim does not consent”; the statute does not include as an element force or age. Response ¶ 1, at 4 (setting forth this fact). See Reply ¶ 1, at 7 (not disputing this fact). By Judgment of Conviction and Sentence entered on November 6, 2006, Kvech was convicted in the District Court of Arapahoe County, Colorado, of what the judgment described as “Sex Assault 3.” Second Chacon Aff. ¶ 5, at 2. See MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). The Colorado Judgment of Conviction and Sentence states that Kvech pled guilty to “Sex Assault 3— unspecified,” a misdemeanor, contrary to Colo.Rev.Stat. 18-3-404; it does not state any findings of fact regarding the victim’s age or if force was used. Judgment of Conviction and Sentence at 1, filed September 28, 2012 (Doc. 22-2 & 29-4)(“Colo. Judgment”). See Response ¶ 3, at 5 (setting forth this fact); Reply ¶ 3, at 7 (not disputing this fact). Colo.Rev.Stat. § 18-3-404(2)(b) defines unlawful sexual contact as a class 4 felony “if the actor compels the victim to submit by use of such force, intimidation, or threat”; Kvech was not, however, convicted of the class 4 felony that would have required force as an element to the crime. See Colo. Judgment at 1; Response ¶4, at 5 (setting forth this fact); Reply ¶4 (not disputing this fact). The Colorado court sentenced Kvech to 198 days of time served and two years of
Kvech’s written condition of probation, which Kvech and his Colorado probation officer signed, included requirements that Kvech must register as a sex offender; that he was not allowed to leave the State of Colorado without his probation officer’s written permission; and that, if he received permission to move, he must re-register as a sex offender within five business days following his move. See Second Chacon Aff. ¶ 7, at 2; Conditions of Probation, filed September 28, 2012 (Doc. 22-2 at 2)(“Conditions”); MSJ ¶ 5, at 10 (setting forth these facts); Response ¶ 5, at 3 (not disputing these facts).
The Colorado Department of Probation gave Kvech permission to move to Rio Rancho, Sandoval County, New Mexico. See Second Chacon Aff. ¶ 9, at 3; MSJ ¶ 7, at 10 (setting forth this fact);
Kvech registered with the Sandoval County Sheriffs Office as a sex offender on November 16, 2006, ten days after the entry of the Colo. Judgment. See Second Chacon Aff. ¶ 14, at 5; Sandoval County Sheriffs Office Sex Offender Registration 90 Days Verification at 1, signed February 15, 2007, filed September 28, 2012 (Doc. 22-2 at ll)(“Feb. 15, 2007 Verification”); MSJ ¶ 12, at 12 (setting forth this fact); Response at 4 (not disputing this fact). Masereñas registered Kvech and processed the paperwork according to N.M. Stat. Ann. § 29-llA-4(B), including Kvech’s legal name and any other names used, date of birth, social security number, current address, place of employment, a complete set of fingerprints, a DNA sample, Kvech’s photograph, and identifying physical information. See Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 12-13 (setting forth these facts); Response at 4 (not disputing these facts). Kvech signed and acknowledged that he was required to renew his registration with the Sheriffs Office by February 15, 2007, and again by May 16, 2007, August 16, 2007, and November 16, 2007. See Feb. 15, 2007 Verification at 1; Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 13 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriffs Office entered Kvech’s name on the Sandoval County local registry of sex offenders, pursuant to N.M. Stat. Ann. § 29-11A-5(a), and forwarded his registration information to the DPS’s Law Enforcement Records Bureau under N.M. Stat. Ann. § 29-llA-5(B)(l). See Second Chacon Aff. ¶ 15, at 5; MSJ ¶ 13, at 13 (setting forth this fact);
After Kvech did not renew his registration on August 16, 2007, Mascereñas filed a Criminal Complaint and Affidavit for Arrest Warrant, and on September 5, 2007, a Magistrate Court in Sandoval County found probable cause and issued an arrest warrant against Kvech for failing to renew his registration. See Second Chacon Aff. ¶ 18, at 6; Warrant for Arrest at 13, filed September 28, 2012 (Doc. 22-2 at 12); MSJ ¶ 16, at 13-14 (setting forth this fact); Response at 4 (not disputing this fact). The Magistrate Court bound over Kvech, and a grand jury indicted him for failing to register with the Sheriff pursuant to N.M. Stat. Ann. § 29-llA-4(N); the criminal prosecution proceeded as State v. Kvech, Thirteenth Judicial District Court Cause No. D-1329-CR-07-618. See Second Chacon Aff. ¶ 19, at 6; Bind-Over Order, filed in Sandoval County Magistrate Court November 16, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 19); Grand Jury Indictment, filed in Sandoval County Clerk’s Office November 15, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 20); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). The District Court appointed counsel for Kvech and ordered him released from custody on his own recognizance; the District Attorney prosecuted the case. See Second Chacon Aff. ¶ 19, at 6; Order of Appointment, filed in Sandoval County Magistrate Court September 12, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 17); Order of Release, filed in Sandoval County Magistrate Court September 26, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 18); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). Chacon and the DPS were not involved in Kvech’s criminal prosecution for failing to register, but the Sandoval County Sheriffs Office provided to the DPS copies of the criminal complaint, arrest warrant affidavit and warrant, and subsequent notification that Kvech had been arrested and incarcerated on the charge. See Second Chacon Aff. ¶ 20, at 6-7; MSJ ¶ 18, at 14 (setting forth this fact); Response at 4 (not disputing this fact). On November 7, 2007, the State of [New Mexico]
On January 7, 2008, the Arapahoe County, Colorado Sheriffs Office notified the DPS that Kvech was released from the Colorado jail for time served and was relocating back to Sandoval County; the Arapahoe County Sheriffs Office also sent by facsimile transmission a form that Kvech signed, stating that he understood and acknowledged his duty to register as a sex offender pursuant to Colorado law, and informing Kvech that he must register within five business days of being released with the local law enforcement agency where he lived. See Second Chacon Aff.
In the criminal case against Kvech for failing to renew his registration, Kvech filed a motion to dismiss; the Honorable Louis P. McDonald, Division V, Judge of the Thirteenth Judicial District, State of New Mexico, held a hearing on the motion on October 23, 2008, which Chacon attended. See Transcript of Proceedings at 2, 9, taken October 23, 2008, in the Thirteenth Judicial District Court, County of Sando
1)That on October 30, 2006 in Arapahoe County, Colorado, the defendant plead [sic] guilty to Unlawful Sexual Contact contrary to Section 18-3-404(l)(a), D.R.S., a misdemeanor,
2) That defendant’s conviction for Unlawful Sexual Contact is not a “sex offense” or “equivalent” offense that requires him to register as a sex offender pursuant to the New Mexico Sex Offender Registration and Notification Act (SORNA), § 29-11A-1 et seq. NMSA1978.
3) That Defendant’s Motion to Dismiss is well taking and shall be granted.
Order on Defendant’s Motion to Dismiss at 7, filed in the Thirteenth Judicial District, County of Sandoval, State of New Mexico on November 20, 2008, filed in federal court September 28, 2012 (Doc. 22-3 at 7)(“Judge McDonald’s Order”). See Second Chacon Aff. ¶ 29, at 9; MSJ ¶ 27, at 16-17 (setting forth these facts); Response ¶27, at 4 (not disputing these facts).
Kvech renewed his registration as a sex offender with the Sandoval County Sheriffs Office on February 12, 2009, and the Sheriffs Office notified the DPS of the renewal; Kvech renewed his registration without the Sheriffs Office or anyone at the DPS taking affirmative action telling him to do so. See Second Chacon Aff. ¶ 31, at 9-10; MSJ ¶29, at 17 (setting forth this fact);
On March 6, 2009, Gonzales filed a Criminal Complaint and Affidavit for Arrest Warrant in the Magistrate Court of Sandoval County, charging Kvech with failing to re-register under the New Mexico SORNA within ten days after being released from custody. See Second Chacon Aff. ¶ 35, at 10; MSJ ¶ 33, at 18 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriffs Office sent to the DPS copies of the Criminal Complaint and Affidavit, and a copy of a signed, but unfiled, Arrest Warrant, which the DPS received on March 16, 2009; the Sheriffs Office made the decision to charge Kvech and did not send any other documents to the DPS regarding the charge. See Second Chacon Aff. ¶ 36, at 10; MSJ ¶ 34, at 18 (setting forth this fact); Response ¶ 34, at 4 (not disputing this fact).
After Chacon received and reviewed Judge McDonald’s Order, Chacon studied the facts, circumstances, and elements of Kvech’s Colorado crime conviction, compared them with the essential elements of the statutory list of New Mexico offenses that are listed in the New Mexico SORNA as “sex offenses,” and determined whether it was an “equivalent” crime under the New Mexico SORNA:
I determined that what the Colorado judgment described as “Sex Assault 3” was, in fact, “Unlawful Sexual Contact” in violation of Section 18 — 3—404(l)(a), C.R.S., and I reviewed the statute and the charge. The charge to which Plaintiff pled guilty alleged that Plaintiff “unlawfully and knowingly subjected [victim] to sexual contact, and the defendant [Plaintiff] knew the victim did not consent[.]” See Exhibit A-14. I obtained copies of the court file related to the Colorado criminal proceedings and all of the police reports from the criminal investigation conducted by the Glenwood Village, Colorado Police Department that led to Plaintiffs arrest and conviction of Unlawful Sexual Contact. I determined that the evidence utilized to charge Plaintiff, and to which Plaintiff had pleaded guilty, established that Plaintiff had used force to penetrate the victim’s vagina with his penis, against the victim’s will; for example, the victim’s statement to police included the facts that on the date and time charged, the victim was “afraid” and had “tried to pull away from [Plaintiff]” but that Plaintiff had “pinned her down on the bed with one hand holding both of her wrists above her head” as he penetrated her. I also determined that the victim was 17 years old at the time of Plaintiffs sexual assault on her, and therefore was a minor under New Mexico law. See excerpts from Affidavit of Probable Cause for Arrest Warrant, Exhibit A-15.
Second Chacon Aff. ¶ 37, at 11-12 (citing People’s Added Count(s), filed in the District Court of Arapahoe County, Colorado, on October 30, 2006, filed in federal court September 28, 2012 (Doc. 22-3 at 17), as Exhibit A-14; and Affidavit of Probable Cause for Arrest Warrant in Arapahoe County, Colorado, filed September 28, 2012 (Doc. 22-3 at 21)(“Affidavit of Probable Cause for Arrest Warrant”), as Exhibit A-15). See MSJ ¶ 35, at 18-19 (setting forth these facts); Response ¶ 35, at 4 (not disputing these facts).
On June 3, 2010, Chacon sent a letter to Kvech stating that, based on her review, Kvech was still required to register under the New Mexico SORNA; Kvech did not register with the local county sheriff.
PROCEDURAL BACKGROUND
On January 24, 2012, Kvech filed his Complaint of Damages for Violation of Civil Rights, filed in the First Judicial District, County of Santa Fe, State of New Mexico, filed in federal court March 14, 2012 (Doc. l-l)(“Complaint”) against Defendants the State of New Mexico Department of Public Safety, Regina Chacon, and John Does 1-10. The Complaint alleges that the Defendants, acting under color of state law, deprived Kvech of life, liberty, and property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States of America. Kvech brought his due process claim pursuant to 42 U.S.C. § 1983. See Complaint ¶¶ 27-32, at 6-7. The Court dismissed with prejudice the 42 U.S.C. § 1983 claim against the DPS and all of the state-law tort claims against both Defendants. See Stipulated Order Dismissing with Prejudice Parts of Complaint, filed May 8, 2012 (Doc. 12). Chacon moves the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter summary judgment in her favor as to the remaining claims set forth in the Com
Under her qualified immunity argument, Chacon argues that the “stigma plus” requirement means a person must suffer more than having his of her reputation stigmatized, such as the loss of employment, licensure, or another tangible benefit. MSJ at 21-22. In the context sex offender registries, the Supreme Court of the United States has said that requiring sex offenders to register does not violate a cognizable liberty interest, because, at least under the Connecticut registry requirements at issue in the case, the convicted offender already had a “procedurally safeguarded opportunity to contest” the conviction. MSJ at 22-24 (citing Connecticut Dep’t of Public Safety v. Doe,
Chacon argues that the undisputed evidence shows that Kvech was convicted of a sex offense in Colorado, Unlawful Sexual Contact, in violation of- Colo.Rev.Stat. § 18-3-404(l)(a), and was afforded all thé procedural safeguards attendant to a conviction; that the Colorado district court required Kvech to register as a sex offender in Colorado, which Kvech did; that the Colorado authorities sent Kvech’s sex offender information to the national sex offender registry; and that the Colorado court and probation authorities allowed Kvech to move to New Mexico on the condition that he register as a sex offender in New Mexico if New Mexico officials required registration. See MSJ at 26. Chacon contends that the “only issue” is whether Kvech’s Colorado conviction constitutes an “equivalent” offense to one of the New Mexico statutory sex offenses under the New Mexico SORNA that would compel Kvech to register, and that this is a matter of statutory interpretation and methodology of which “reasonable minds may differ.” MSJ at 26-27. Looking to the elements of the Colorado statute under which Kvech was convicted — that the defendant unlawfully and knowingly subjected the victim to sexual contact knowing that the victim did not consent — Chacon acknowledges that the “statutory definition, standing alone,” would not constitute a sex offense under the New Mexico SORNA, but she contends that the evidence from his conviction demonstrate that Kvech’s Colorado conviction was an “equivalent” of the New Mexico sex offense of Criminal Sexual Penetration in the third degree, in violation of N.M. Stat. Ann. § 30-9-ll(F) — defined as “criminal sexual penetration perpetrated through the use of force or coercion.” MSJ at 27. Chacon asserts that the New Mexico SORNA requires a person to register as a sex offender in New Mexico if that person has been convicted of a statutorily listed sex offense in New Mexico or an equivalent offense in any other jurisdiction, but that the New Mexico SORNA does not define the “key phrase ‘their equivalents in any other jurisdiction,’ ” give any guidelines on how to determine whether a particular criminal conviction in another state is equivalent to a New Mexico offense, or specify whether to look at the statutory elements alone or to consider the facts and circumstances of the crime. MSJ at 28.
While Chacon admits that Tenth Circuit law is clearly established “that a state
that a state official cannot look behind the face of the statute — to consider such documents as indictments, plea agreements, grand jury testimony, police reports, etc. — to determine whether an out-of-state sex offense of which an offender has been convicted and ordered to register is ‘equivalent’ to one of the New Mexico sex offenses.
MSJ at 28. She argues that the law was not clearly established that she had to make the determination whether Kveeh’s Colorado conviction was equivalent to a New Mexico sex offense under the New Mexico SORNA based solely on the statutory elements rather than on the underlying facts and circumstances; regardless, a § 1983 claim requires the violation of the United States Constitution or a federal law, and not simply the violation of a state statute. See MSJ at 29.
Chacon also argues that she is protected through statutory immunity under 42 U.S.C. § 16929, part of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-16962. See MSJ at 29-30. Chacon contends that Congress requires states to maintain a jurisdiction-wide sex offender registry, specifies the sex offenses requiring registration, specifies the frequency of registration, requires the states to notify convicted sex offenders of the registration requirements, and mandates that the states submit registration information to the FBI and the DOJ Department of Justice, among other things. See MSJ at 30. Congress provided that “[t]he Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall be immune from liability for good faith conduct under this subchapter.” MSJ at 30 (quoting 42 U.S.C. § 16929). Chacon argues that she acted in good faith based on her understanding of the facts and applicable law, and therefore, that she is immune from liability based on statutory immunity. See MSJ at 30-31.
Kvech responds that Chacon is not entitled to qualified or statutory immunity, because she disregarded Judge McDonald’s order “that clearly stated Plaintiff was not required to register as a sex offender and his Colorado misdemeanor conviction is not an ‘equivalent’ offense” under the New Mexico SORNA, and because Chacon “usurped her power and added elements to Plaintiffs conviction and increased his registration requirements, a clear violation of Plaintiffs procedural due process rights.” Response at 1. Regarding the qualified-immunity defense, Kvech argues that it is well established that being wrongly placed on a sex offender registry is a legitimate infringement on a person’s constitutional right to liberty, invoking procedural due process protections and satisfying the stigma plus test, “because it couples governmental defamation with an alteration in legal status.” Response at 8 (citing Brown v. Montoya,
Kvech contends that he did not receive the appropriate level of process when Chacon classified him as a sex offender under the New Mexico SORNA, because Chacon relied on “allegations outside of the Colorado record, without affording Plaintiff an opportunity to respond to and defend himself against the allegations.” Response at 11. In his view, Gwinn v. Awmiller and Brown v. Montoya set the floor for the process Chacon owed him, which include “notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Response at 10-11. “Defendant Chacon relied upon allegations outside of the record without providing Plaintiff an opportunity to present evidence in his defense, an opportunity to respond to the allegations or an explanation of the decision, and thus violated Plaintiffs procedural due process protections.” Response at 11. Kvech argues that, under these same authorities, his procedural due-process constitutional right was clearly established at the time Chacon classified him as a sex offender under the New Mexico SORNA. See Response at 12. He asserts that it is not necessary to find a decision declaring the specific action unlawful, so long as the contours of the right were sufficiently clear so that a reasonable official would understand that his or her actions violated the right. See Response at 12. Kvech argues that his situation is closely related to Gwinn v. Awmiller, where the Tenth Circuit held that placing a person who had not been convicted of a sex offense on the sex offender registry was “sufficient damage to his reputation” and “significantly altered his status as a matter of law to implicate his liberty interest.” Response at 13. The plaintiff in that case had not been convicted for a sex offense — he had been charged with sexual assault and robbery, but the charge for sexual assault was dropped after he pled guilty to robbery— but the “factfinder relied upon a written report containing allegations outside of the record in order to require Mr. Gwinn to register as a sex offender outside the prison walls.” Response at 13. Kvech argues that Chacon likewise improperly viewed facts outside his record of conviction, making his case analogous to Gwinn v. Awmiller. See Response at 13-14. Similarly, he points to Brown v. Montoya, where the Tenth Circuit held that the plaintiffs constitutional right was clearly established: the probation officer required the plaintiff to register as a sex offender, even though the plaintiff pled guilty to two counts of false imprisonment, which is not a sex offense under the New Mexico SORNA, because the probation officer used his own understanding of the New Mexico SORNA and acquired information outside the record of conviction to determine that the plaintiff should register. See Response at 15. The probation officer removed the plaintiff from the sex offender registry after a criminal court issued a written ruling that the plaintiff should be removed from the registry. See Response at 15. Kvech argues that Chacon also relied on allegations outside the record and used her own interpretation of the New Mexico SORNA to require him to register as a sex offender, but that, unlike the officer in Brown v. Montoya, did not remove Kvech from the sex offender registry when the criminal court’s written ruling stated that Kvech’s Colorado conviction was not equivalent to a sex offense under the New Mexico SORNA. See Response at 15-16. Kvech distinguishes his case from Connecticut Department of Public Safety v. Doe, where the plaintiffs were “convicted sex offenders and unquestionably subject
Kvech argues that Chacon is not entitled to statutory immunity, because she acted in bad faith by considering “allegations not in the record” when determining that Kvech’s Colorado conviction was the equivalent of a New Mexico sex offense, requiring him to register as a sex offender. Response at 17. Kvech points specifically to that Chacon did not remove Kvech from the registry and told him that he needed to continue to register, even after she received Judge McDonald’s ruling that Kvech was not required to register as a sex offender in New Mexico. See Response at 17-18.
Chacon’s Reply emphasizes that Kvech was convicted in Colorado for Unlawful Sexual Contact, that the offense “unquestionably constitutes a ‘sex offense’ under Colorado law, requiring registration as a sex offender in Colorado,” and that Kvech registered as a sex offender in Colorado before moving to New Mexico. Reply at 1 & n. 1. Chacon argues that the issue is not whether the Colorado offense is an equivalent of a sex offense in New Mexico — the issue upon which Judge McDonald ruled— but the issue is whether the law was clearly established at the time that a state official would violate an individual’s constitutional due process rights by determining without a subsequent hearing that the individual’s sex offense conviction in one state also constituted a sex offense under the law of a different state. See Reply at 1-2.
The issue here is not whether Ms. Chacon was correct or incorrect as a matter of substantive New Mexico law, or whether Judge McDonald was correct; or whether Ms. Chacon needed .to base her 'determination solely upon the statutory elements of the offense (as opposed to using police reports, witness statements, etc.); or whether it might have been better, wiser or more fair for the New Mexico legislature in SORNA to create a process, with notice and the right to be heard, for resolving such questions of statutory interpretation. Rather, the issue is whether the law was clearly established regarding the constitutional due process rights allegedly violated.
Reply at 2. Chacon argues that the law was not clearly established, be cause at the time she was making the determination, there was one Tenth Circuit opinion on the issue—Gwinn v. Awmiller—and that case involved a prisoner who had never been convicted, in any forum, of any sex offense. See Reply at 3. Chacon asserts that Brown v. Montoya is irrelevant to the “clearly established” analysis, because the Tenth Circuit issued the opinion on November 8, 2011-after Chacon’s acts in 2006-10. Reply at 3 n. 3.
After Chacon notified the Court that briefing on the MSJ was completed, she submitted the Notice of Supplemental Authority, filed January 16, 2013 (Doc. 33)(“Supp.”), attaching State v. Hall,
The Court held a hearing on May 20, 2013. Chacon stated that Congress set out the basic framework for state sex offender registries, requiring states to create a registry, to obtain certain information from convicted sex offenders including identifying marks and a DNA sample, and to publish the registry on the Internet; included in the federal statute is that the officers, employers, and agents shall be immune from liability for good faith conduct under the act. See Tr. at 3:23-45:3 (Dickman). Chacon asserted that she is protected under statutory immunity, but that the Court may not need to address that point, because her qualified immunity argument would make the issue moot. See Tr. at 5:5-10 (Dickman). Although the federal statute sets out the basic framework, Chacon said that each state’s laws differ in terms of what offenses are characterized as registrable sex offenses. See Tr. at 5:11-25 (Dickman). Chacon explained that, in New Mexico, the sex offender must register with the local county Sheriff, who is then responsible for obtaining information from the sex offender, maintaining a registry for that county, and sending the information to the DPS in Santa Fe, which publishes the statewide sex offender registry on the Internet. See Tr. at 6:9-21 (Dickman). Each state determines how often sex offenders must update their registration information-some states require every ninety days, like New Mexico, while others require updates once a year, after ten years, or otherwise. See Tr. at 6:25-7:6 (Dickman). In New Mexico, Chacon explained, it is a fourth degree felony for a sex offender to fail to register. See Tr. at 6:22-25 (Dickman).
Reviewing the facts of the case, Chacon emphasized that Kvech was convicted for a sex offense in Colorado, which meant he was required to register as a sex offender in Colorado, see Tr. at 8:24-9:10 (Dick-man), and that, after Kvech stopped registering, the Sheriff filed a criminal complaint against Kvech: “[I]t’s undisputed that Ms Chacon was not involved” in filing the criminal complaint, obtaining the arrest warrant, arresting Kvech, or procuring the grand jury indictment, Tr. at 10:7-15. Chacon noted that she and the DPS were not parties to the criminal case against Kvech for failing to register, and, thus, that court did not have personal jurisdiction over them; she argued that, in other situations when a person thinks that his or her out-of-state conviction is not equivalent to an offense under the New Mexico SORNA, the person can file a declaratory action naming the DPS and the Sheriff, giving the court personal jurisdiction over those parties. See Tr. at 11:3-11 (Dickman). Chacon also noted that, although Judge McDonald dismissed the criminal complaint against Kvech, a subsequent ease from the Supreme Court of New Mexico reveals that Judge McDonald’s approach — comparing only the elements of the Colorado crime with the statutory elements of New Mexico sex offenses — is incorrect, and that the correct approach looks beyond the elements to consider whether a defendant’s actual conduct, had it occurred in New Mexico, would have constituted a registrable offense under the New Mexico SORNA. See Tr. at 11:19-12:6 (Dickman)(citing State v. Hall). The Court asked whether Chacon said that Judge McDonald “got it wrong” because he came to the wrong conclusion about Kvech’s offense, or because he did not use the correct analysis, Tr. at 13:7-10 (Court); Chacon said Judge McDonald did not apply the correct analysis and that, if Kvech’s motion to dismiss
The Court noted that most of the facts were not in dispute and asked Kvech whether there were any issues of material fact that would preclude summary judgment. See Tr. at 26:3-12 (Court). Kvech responded that a triable fact included whether Chacon’s actions, especially in disregarding Judge McDonald’s opinion, were made in bad faith. See Tr. at 26:16-21 (Dominguez). When the Court asked about the role of Judge McDonald’s opinion, Kvech said that, because Chacon disregarded the opinion, Kvech had to disclose his status as a sex offender to his employer for an additional year and a half. See Tr. at 26:22-27:8 (Court, Dominguez). The Court asked whether being convicted for failing to register and being required
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Schs.,
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc.,
To deny a motion, for summary judgment, genuine factual issues must exist that “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.,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc.,
RELEVANT LAW REGARDING 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,....
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand,
must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom!,] or usage, of any State or Territory or the District of Columbia.
Martinez v. Martinez, No. CIV 09-0281 JB/KBM,
Liability requires a showing that such policies were a “deliberate or conscious choice.” Barney v. Pulsipher,
In a “narrow range of circumstances,” however, deliberate indifference may be found absent a ■ pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring .situations, thus presenting an obvious potential for constitutional violations.
Barney v. Pulsipher,
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald,
Under § 1988 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388 [91 S.Ct. 1999 ,29 L.Ed.2d 619 ] (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of them duties,” Anderson v. Creighton,483 U.S. 635 , 638 [107 S.Ct. 3034 ,97 L.Ed.2d 523 ] (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald,457 U.S. 800 , 818 [102 S.Ct. 2727 ,73 L.Ed.2d 396 ] (1982). That means a court can often avoid ruling on the plaintiffs claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiffs claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene, — U.S. -,
Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan,
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.”
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis: When (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (v) tackling the first element “may create a risk of bad decisionmaking” because of inadequate briefing; (vi) discussing both elements risks “bad decision-making,” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Kerns v. Bader,
2. Clearly Established Rights in the Qualified Immunity Analysis.
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist.,
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran,
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd,
The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.”
3. Factual Disputes in the Qualified-Immunity Analysis.
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the
[Bjecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir.2008)(quoting Scott [v. Harris],550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex rel. Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir.2008).
Thomson v. Salt Lake Cnty.,
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris,550 U.S. 372 , 377,127 S.Ct. 1769 ,167 L.Ed.2d 686 (2007). “[TJhis usually means adopting ... the plaintiffs version of the facts,” id. at 378,127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380,127 S.Ct. 1769 . In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events.550 U.S. at 379 ,127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor,490 U.S. 386 , 395-96,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller,
LAW REGARDING PROCEDURAL DUE-PROCESS RIGHTS
The Fourteenth Amendment states: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis,
“The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee,
“[O]nce it is determined that the Due Process Clause applies, ‘the question remains what process is due.’ ” Cleveland Bd. of Educ. v. Loudermill,
“the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment.
[T]he pretermination “hearing,” though necessary, need not be elaborate. We have pointed out that “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” In general, “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill,
The Supreme Court ... explained that procedural due process is a flexible standard that can vary in different circumstances depending on “ ‘the private interest that will be affected by the official action’ ” as compared to “the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing greater process.” Hamdi v. Rumsfeld,542 U.S. 507 , 529,124 S.Ct. 2633 , 2646 [159 L.Ed.2d 578 ] (2004) (quoting Mathews v. Eldridge,424 U.S. at 335 ,96 S.Ct. 893 ). A court must carefully balance these competing concerns, analyzing “ ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and the ‘probable value, if any, of additional or substitute safeguards.’ ” Id. (quoting Mathews v. Eldridge,424 U.S. at 335 ,96 S.Ct. 893 ).
United States v. Abuhamra,
1. Stigma-Plus Claims Generally.
The Supreme Court explained in Paul v. Davis:
While we have in a number of our prior cases pointed out the frequently drastic effect of the “stigma” which may result from defamation by the government in a variety of contexts, this line of cases does not establish, the proposition that reputation alone, apart from some more tangible interests such as employment, is either “liberty” or “property” by itself sufficient to invoke the procedural protection of the Due Process Clause.
The Tenth Circuit’s stigma-plus standard requires a plaintiff to demonstrate:
[ (i) ] the government made a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and [ (ii) ] the plaintiff experienced some governmentally imposed burden that significantly altered [his or] her status as a matter of state law.
Kennedy v. Smith,
[ (i) ] to be actionable, the statements must impugn the good name, reputation, honor, or integrity of the employee[; (ii) ] the statements must be false[; (iii) ] the statements must occur in the course of terminating the employee or must foreclose other employment opportunities[; a]nd [(iv)] the statements must be published. These elements are not disjunctive, all must be satisfied to demonstrate deprivation of the liberty interest.
Evers v. Regents of Univ. of Colo.,
An alleged defamatory or stigmatizing statement by a government actor, standing alone, is insufficient to state a due-process claim. See McGhee v. Draper,
Because stigma plus is a species within the phylum of procedural due process claims, however, it is not enough that the plaintiff has demonstrated the deprivation of her liberty interest; in order to bring a successful stigma-plus claim, the plaintiff also must demonstrate that her liberty was deprived without due process of law. Stated differently, the availability of adequate process defeats a stigma-plus claim.
Due-process concerns may be implicated only when the subject of the stigmatizing statement is denied a hearing to clear his or her name. See Gwinn v. Awmiller,
A plaintiff who fails to assert his or her right to a due-process hearing cannot assert a stigma-plus due process claim. See Winskowski v. City of Stephen,
The law requires a tangible injury to support a stigma-plus claim. See Phelps v. The Wichita Eagle-Beacon,
In Workman v. Jordan,
To state a stigma-plus, due-process claim, a plaintiff must establish that the allegedly stigmatizing information was published. See Workman v. Jordan,
In order for plaintiff to satisfy the ‘publication’ requirement, [the] plaintiff must plead that the defendants published the allegedly false and stigmatizing information to the public. [The p]laintiff has not so alleged. [The p]laintiff has alleged only that the information was disseminated within her department and to law enforcement departments in the course of the investigation of plaintiffs activities. This is not sufficient.
Other circuits have held that placement of false and stigmatizing information in an employee personnel file may constitute publication if the file is either available to the public or likely to be disclosed to prospective employers.... [T]he Tenth Circuit appears to require dissemination in lieu of a more lenient ‘likely to be disseminated’ or ‘available to the public’ standard.
Bell v. Bd. of County Com’rs of Jefferson County,
In Goss v. Lopez,
2. Stigma-Plus Claims Related to Sex Offender Registries.
“ ‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name.” Gwinn v. Awmiller,
(1) the government made a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and (2) the plaintiff experienced some govern-mentally imposed burden that “significantly altered [his or] her status as a matter of state law.”
Gwinn v. Awmiller,
In Connecticut Department of Public Safety v. Doe, the Supreme Court reviewed the Second Circuit’s decision to enjoin the public disclosure of Connecticut’s sex offender registry; Respondent John Doe filed a 42 U.S.C. § 1983 claim, on behalf of himself and other similarly situated sex offenders, against the state agencies and officials responsible for compiling the sex offender registry , and posting it on the Internet, alleging that Connecticut’s “Megan’s Law”
Since Connecticut Department of Public Safety v. Doe, the Tenth Circuit has twice addressed procedural due-process claims in the context of sex offender registries. In Gwinn v. Awmiller, the plaintiff was charged in Colorado state court in 1987 with robbery, aggravated robbery, and sexual assault; he pled guilty to robbery, and the sexual assault charge was dismissed. See
The plaintiff also argued that his parole officer violated his due process rights by requiring him to register as a sex offender after he was released from prison, because “he will be forced to live in a society labeled and stigmatized as a sex offender though he has never been convicted in a court of law for any sexual offenses, and that he has been denied employment and admission into substance abuse programs because of the registration requirements.”
In Brown v. Montoya,
Analyzing the plaintiffs due-process claim under the deferential motion to dismiss standards, the Tenth Circuit said that “assuming the facts alleged in his Complaint are true, Mr. Brown (1) had a liberty interest in not being placed on sex offender probation or on the sex offender registry; (2) he was deprived of that interest; and (3) he received inadequate process before the government imposed such a deprivation.”
LAW REGARDING FEDERAL AND NEW MEXICO SEX OFFENDER REGISTRATION AND NOTIFICATION ACTS
The Supreme Court has stated that “[s]ex offenders are a serious threat in this Nation. The victims of sex assault are most often juveniles, and when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault.” Connecticut Dept. of Public Safety v. Doe,
By 2006, every state had enacted a sex offender registration law, see United States v. Gibson,
“provide a criminal penalty” for a sex offender’s failure to register, [42 U.S.C.] § 16913(e); “make available on the Internet ... all information about each sex offender in the registry,” id. § 16918(a); and “provide the information in the registry ... about that offender” to various national and local law enforcement agencies and community organizations, id. § 16921(b).
United States v. Gibson,
New Mexico has adopted the New Mexico SORNA: the act’s purpose is to assist law enforcement agencies in protecting their communities by:
(1) requiring sex offenders who are residents of New Mexico to register with the county sheriff of the county in which the sex offender resides;
(2) requiring sex offenders who are residents in other states, but who are employed in New Mexico or who attend school in New Mexico, to register with the county sheriff of the county in which the sex offender works or attends school;
(3) requiring the establishment of a central registry for sex offenders; and
(4) providing public access to information regarding certain registered sex offenders.
N.M. Stat. Ann. § 29-llA-2(B). A “sex offender” means a person who “has been convicted of a sex offense pursuant to state, federal, tribal or military law,” and (i) is a New Mexico resident, (ii) changes residence to New Mexico, (iii) lives in a shelter, halfway house, transitional living facility, or multiple locations in New Mexico; or (iv) is a resident of another state but works or attends school in New Mexico. N.M. Stat. Ann. § 29-llA-3(H). “Conviction” means “a conviction in any court of competent jurisdiction,” and “sex offense” is defined as one of the thirteen listed New Mexico offenses — such as aggravated criminal sexual penetration or criminal sexual penetration in the first, second, third or fourth degree, criminal sexual contact in the fourth degree, criminal sexual contact or a minor in the second, third or fourth degree, false imprisonment when committed with the intent to inflict a sexual offense, aggravated indecent exposure — “or their equivalents in any other jurisdietion[.]” N.M. Stat. Ann. § 29-llA-3(B, I).
A sex offender who is a New Mexico resident must register with the county sheriff for the county in which the sex offender resides no later than five business days after being released from custody; a sex offender who “changes his or her residence to New Mexico” must register with the county sheriff for the New Mexico county in which he or she resides no later than five days after his or her arrival in New Mexico. N.M. Stat. Ann. § 29-11A-4(A, B). The sex offender must provide certain registration information, such as his or her legal name, date of birth, social security number, address, place of employment, sex offense conviction, electronic-mail addresses, and telephone numbers; the county sheriff is to obtain the sex offender’s photograph, a set of fingerprints, physical description of the offender, and a DNA sample to include in the sex offender DNA identification system. See N.M. Stat. Ann. § 29-llA-4(B, E). Depending on the sex offense conviction, a sex offender must verify and update registration information with the county sheriff every ninety days for the sex offender’s natural life or every six months for ten years; an out-of-state registrant — defined as a person who “establishes a residence in New Mexico while the person is required to register as a sex offender in another state or territory,” N.M. Stat. Ann. § 29-11A-3(F) — is to verify registration information for the longer of “(a) the duration of time remaining in the registrant’s convicting jurisdiction and at the same frequency as required in that state or territory, but no less than once every six months; or (b) the duration of time remaining that would be required for the equivalent offense in New Mexico,” N.M. Stat. Ann. § 29-llA-4(L).
if the defendant’s actual conduct that gave rise to the out-of-state conviction would have constituted one of the- twelve enumerated offenses requiring registration pursuant to SORNA. When the defendant’s out-of-state conviction results from a plea agreement, courts may look to the charging documents, the defendant’s written plea agreement, and the transcript of the plea hearing to determine the defendant’s actual conduct and whether such conduct would have constituted one of the twelve enumerated offenses.
State v. Hall,
We read SORNA to mean that the defendant’s offense in the foreign state, rather than the statute under which the defendant was convicted, must be the equivalent of an enumerated registrable offense in New Mexico. To determine equivalence, courts must look beyond the elements of the conviction to the defendant’s actual conduct. To hold otherwise would be to undermine the legislative intent of SORNA and allow sex offenders convicted in other jurisdictions to avoid registration, even when their conduct would have supported a registrable conviction in New Mexico. This is not to say that the elements of the out-of-state offense are entirely irrelevant. When the elements of the out-of-state sex offense are precisely the same elements of a New Mexico sex offense, the inquiry is at an end. However, even when the elements are dissimilar, courts should consider the defendant’s underlying conduct to determine whether the defendant’s conduct would have required registration in New Mexico as a sex offender.,
The question whether a person with an out-of-state conviction must register as a sex offender in.New Mexico came before the New Mexico court in State v. Hall through a motion to dismiss a charge of failing to register as a sex offender, see
Section 29-llA-3(A) defines a “conviction” as “a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge.” This definition very clearly exempts conditional discharges and only conditional discharges. The doctrine of expressio unius est ex-clusio alterius — the expression or inclusion of one thing indicates exclusion of the other — is applicable here. The statute by negative implication simply does not include dispositions similar to conditional discharges, like conditional discharges, or akin to conditional discharges. Petitioner’s argument urges for a redefining of what is already defined as a conviction by Florida and by implication in New Mexico.
ANALYSIS
Chacon moves the Court to enter summary judgment in her favor on Kvech’s claim that she, acting under color of state law, deprived him of life, liberty, and property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, brought pursuant to 42 U.S.C. § 1983. Chacon argues that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law, because qualified immunity and statutory immunity protect her. Kvech argues that Chacon violated his constitutional rights when Chacon disregarded Judge McDonald’s order that said Kvech’s Colorado conviction was not an equivalent offense under the New Mexico SORNA when she continued requiring Kvech to register as a sex offender for over one year, and when she added the “force” element to his conviction without providing an opportunity for him to defend himself. The undisputed evidence shows that, while Chacon violated Kvech’s constitutional rights, Chacon is entitled to qualified immunity and judgment as a matter of law, because the law was not clearly established what process, if any, was due a person who had been convicted of a sex offense in state A, was required to register as a sex offender in state A, and moved to state B with different sex offender registration requirements. Chacon is not, however, entitled to statutory immunity, because a factual question exists whether she was acting in good faith after she received Judge McDonald’s opinion, stating that Kvech’s Colorado conviction was not equivalent to a sex offense under the New Mexi
I. QUALIFIED IMMUNITY PROTECTS CHACON BECAUSE, ALTHOUGH CHACON VIOLATED KVECH’S CONSTITUTIONALLY-PROTECTED LIBERTY INTEREST WITHOUT PROVIDING THE PROPER PROCEDURAL PROTECTIONS, THE LAW WAS NOT CLEARLY ESTABLISHED AT THE TIME.
When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman,
In the Complaint, Kvech argues that the Defendants, under the color of state law, deprived Plaintiffs life, liberty and property without due process of law by falsely accusing, harassing, causing injury to, arresting and jailing Plaintiff under the pretense that he was a sex offender despite actual knowledge that by law and order of the Honorable Louis P. McDonald of the Thirteenth Judicial Court Plaintiff was not a sex offender and not subject to registration and publication and other associated laws.
Complaint ¶29, at 6-7. The Court has dismissed the claims against all of the Defendants except for Chacon; the undisputed facts show that she was not involved in arresting or jailing Kvech for failing to register as a sex offender.
The facts also show that Chacon had the authority to remove Kvech from the sex offender registry consistent with the DPS policy; that she did not remove Kvech’s name from the state sex offender registry after she received Judge McDonald’s opinion, which Judge McDonald issued on October 23, 2008, which dismissed Kvech’s criminal charges for failing to register, and which stated that the Colorado conviction was not equivalent to a sex offense in New Mexico; that she sent a letter to Kvech directing him to register as a sex offender on June 3, 2010; and that, after the DPS policy changed, she sent a final letter on July 12, 2010 stating that Kvech did not have to register as a sex offender. Chacon’s actions violated Kvech’s liberty interest, but the law was not clearly established during the time of her actions that a person’s liberty interest would be implicated when that person had been convicted of a sex offense in state A, was required to register as a sex offender in state A, and then moved to state B; it was also not clearly established what process was required in such a situation.
The undisputed facts show that Kvech was convicted of a sex offense in Colorado and was required to register as a sex offender in Colorado. Under Colorado law, he was required to register for ten years, and then he could petition to remove his name from the registry. When he moved to New Mexico, he registered as a sex offender for about a year, and after he stopped registering, he was charged with failing to register as a sex offender. He moved to dismiss the charges against him, arguing that his Colorado offense was not equivalent to one of New Mexico’s enumerated sex offenses. Judge McDonald dismissed the charges after reviewing the statutory elements of the Colorado conviction and comparing it to the statutory elements of the New Mexico offenses, concluding that the Colorado conviction was not an equivalent offense. Although Judge McDonald said Kvech did not need to continue registering as a sex offender, Kvech registered once more, but then never again. Kvech’s attorney sent a letter to Chacon, requesting that she remove Kvech from the sex offender registry; she did not do so. Chacon reviewed Kvech’s file and concluded that Kvech’s conviction was a equivalent to a sex offense in New Mexico, and sent a letter directing Kvech to renew his registration as a sex offender; he did not do so. After the DPS policy changed, Chacon then sent a second letter, stating that Kvech did not need to register
“ ‘Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,’ a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name.” Gwinn v. Awmiller,
(1) the government made a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and (2) the plaintiff experienced some govern-mentally imposed burden that “significantly altered [his or] her status as a matter of state law.”
Gwinn v. Awmiller,
The first requirement of a procedural due-process stigma-plus claim is that “the government made a statement about him ... that is sufficiently derogatory to injure his ... reputation, that is capable of being proved false.... ” Gwinn v. Awmiller,
a. The Statement that Kvech is a Sex Offender in New Mexico is False.
While it is undisputed that Kvech was convicted for a sex offense in Colorado, the Court must determine if, under New Mexico law, his offense is an equivalent offense in New Mexico, requiring him to register as a sex offender in New Mexico. The Supreme Court of New Mexico has rejected the “narrow, elements-based approach” that Judge McDonald used, and opts instead for “a broader approach that examines the offender’s actual conduct.” State v. Hall,
When a defendant enters a plea of guilty or nolo contendere, the charging document, plea agreement, or transcript of the plea hearing should establish the factual basis for the plea. A New Mexico court should consider the facts stated in such documents when determining whether the conduct underlying the plea would have constituted a violation of one of the twelve enumerated SORNA offenses that require sex offender registration. In essence, the question is whether the out-of-fact-finder necessarily must have found facts that would have proven the elements of the New Mexico registrable offense.. If so, the alleged sex offender has committed the equivalent of an enumerated New Mexico sex offense.
State v. Hall,
in some cases, such as a guilty plea in which there was no allocution, there will be no factual findings for a New Mexico court to review. In that instance, the court will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA. In some cases, this will mean that out-of-state sex offenders will not have to register in New Mexico, even for serious offenses. If the Legislature is disturbed by this possibility, it is free to amend SORNA once again. Several states have passed laws requiring out-of-state sex offenders to register for any offense that was registrable in the state of conviction.
State v. Hall,
When Chacon reviewed Kvech’s file, she relied on the Colorado officer’s Affidavit of Probable Cause for Arrest Warrant — not on a charging document, plea agreement, or transcript of the plea hearing. The Supreme Court of New Mexico did not state whether a court may consider documents besides the “charging document, plea agreement, or transcript of the plea hearing,” but said “the question is whether the out-of-state fact-finder necessarily must have found facts that would have proven the elements of the New Mexico registrable offense.” State v. Hall,
When a court cannot rely on the underlying documents, and therefore has no factual findings to review, it “will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA.” State v. Hall,
A. Criminal sexual contact is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday, or intentionally causing another who has reached his eighteenth birthday to touch one’s intimate parts.
C. Criminal sexual contact in the fourth degree consists of all criminal sexual contact perpetrated:
(1) by the use of force or coercion that results in personal injury to the victim;
(2) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons; or
(3) when the perpetrator is armed with a deadly weapon.
Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-9-12(A, C). Unlike Colorado’s Unlawful Sexual Contact stat
b. The Statement that Kvech is a Sex Offender in New Mexico is Derogatory and Injures Kvech’s Reputation.
Generally, having one’s name on a sex offender registry, especially in light of the public access to this information, has a severe stigmatizing effect: “[T]here can be no doubt that the widespread public access to this personal and constantly updated information has a severe stigmatizing effect.” Gwinn v. Awmiller,
New Mexico’s requirement that the out-of-state conviction must be an “equivalent” to a listed sex offense before the person must register as a sex offender is not unique, but it is also not the only approach states have taken. Sixteen jurisdictions use an external approach: “external approach states require registration if the foreign jurisdiction where the conviction occurred required registration, regardless of whether it would warrant registration in the forum.” Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. Pa. L.Rev. 257, 287 (2005). The Supreme Court of New Mexico has recognized that New Mexico’s legislature could adopt this approach, if it wanted:
Several states have passed laws requiring out-of-state sex offenders to'register for any offense that was registrable in the state of conviction. See, e.g., Ind. Code Ann. § ll-8-8-5(b)(l) (West 2012) (The term “sex or violent offender” includes “a person who is required to register as a sex or violent offender in any jurisdiction.”); Mont.Code Ann. § 46-23-502(9)(b) (2007) (A “sexual offense” includes “any violation of a law of another state, a tribal government, or the federal government that is reasonably equivalent to a violation listed in subsection (9)(a) or for which the offender was required to register as a sexual offender after an adjudication or conviction.” (emphasis added)). This type of provision is an option for New Mexico as well. If the Legislature is concerned about adopting other states’ registry requirements wholesale, it could also allow an affirmative defense for sex offenderswhose actual conduct in the foreign state would not have constituted a registrable offense in New Mexico.
State v. Hall,
2. By not Removing Kvech from the Sex Offender Registry, Chacon’s Actions Imposed a Burden that Significantly Altered Kvech’s Legal Status in New Mexico.
The stigma-plus standard requires that there is an alteration in the person’s legal status, and the Tenth Circuit has held that requiring a person to register as a sex offender significantly alters one’s status. See Gwinn v. Awmiller,
3. Chacon Did Not Provide Kvech with Proper Procedural Protections.
In Connecticut Dept. of Public Safety v. Doe, the Supreme Court held that, under
New Mexico is one of nineteen states that employ a compulsory approach, “which requires that offenders satisfying statutory, offense-related criteria be subject to registration and notification, affording offenders no right to a prior hearing on the eligibility determination.” Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J.Crim. L. & Criminology 1167, 1175 (1999). Had Kvech been convicted of a sex offense listed in the New Mexico SORNA, Connecticut Department of Public Safety v. Doe would foreclose any argument that he deserves an additional hearing, because he would have received his due process at the time he was convicted. Kvech was not, however, convicted under one of the listed sex offenses in New Mexico; he was convicted for a sex offense in Colorado, and he argues that, when he came to New Mexico, he was not given any opportunity to contest the determination that his Colorado offense was equivalent to a New Mexico sex offense. Unlike the situation in Connecticut Department of Public Safety v. Doe, where the plaintiff wanted a hearing on his current dangerousness, an issue that would • not have made a difference under Connecticut’s sex offender registry statute, the question Kvech seeks to resolve makes a difference under the New Mexico SORNA.
Although Gwinn v. Awmiller and Brown v. Montoya do not involve precisely the same facts, because the plaintiffs in those cases were not convicted of any sex offenses in any jurisdiction, the process that those plaintiffs argued they deserved is similar to the process Kvech argues he deserves. In those cases, the plaintiffs wanted an opportunity to challenge the determination that their convictions required them to register as sex offenders; Kvech likewise argues he deserved the opportunity .to challenge the determination that his Colorado conviction required him to register in New Mexico.
The Court must determine the appropriate level of process “through an analysis of ‘the risk of an erroneous deprivation’ of the private interest if the process were reduced and ‘the probable value, if any, of additional or substitute procedural safeguards.’ ” Brown v. Montoya,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge,
Chacon argues that people with out-of-state convictions who are told to register as sex offenders in New Mexico may file declaratory judgments to challenge their classification in New Mexico as sex offenders. This procedure does not alone, however, satisfy due process. While it is true that there are situations when providing a post-determination hearing satisfies due process, see Gilbert v. Homar,
As part of the analysis whether a defendant has violated the plaintiffs procedural due process rights, the Tenth Circuit has stated that, to overcome qualified immunity, a plaintiff must show that the défendant acted with the requisite state of mind: “[A] plaintiff must show that the defendant was more than simply negligent to make out a procedural due process claim.” Brown v. Montoya,
Kvech argues that Chacon acted “at least recklessly if not intentionally or maliciously” when she did not remove Kvech from the sex offender registry and directed him to renew his registration, because she had “knowledge of Judge McDonald’s ruling that [Kvech] was not required to register as a sex offender in New Mexico.” Response at 17. Whether Chacon acted recklessly, intentionally, or maliciously is a factual question, and the parties have produced evidence that would allow a factfinder to come to either conclusion; because this issue comes before the Court in a motion for summary judgment, the Court must construe all disputed facts in favor of the non-moving party, and, thus, a reasonable jury could find that Chacon acted with the requisite mental state.
B. THE LAW WAS NOT CLEARLY ESTABLISHED THAT A PERSON WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN STATE A WOULD BE ENTITLED TO THE SAME PROTECTION AS A PERSON WHO DID NOT HAVE A PREVIOUS SEX OFFENSE CONVICTION IN ANY STATE.
The Court must next determine whether the law was clearly established at the time of Chacon’s actions, between 2006 and 2010. “Whether a right is ‘clearly established’ is an objective test: ‘The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Brown v. Montoya,
The Tenth Circuit held in Kerns v. Bader that, although “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing case law,” the law is not clearly established where “a distinction might make a constitutional difference.” Kerns v. Bader,
Kvech argues that the law was clearly established that a government official could not look outside the court records to determine whether a person was subject to sex offender registry requirements, but the cases he cites do not clearly establish that point. In Gwinn v. Awmiller, the Tenth Circuit upheld a hearing panel’s decision to classify a prisoner as a sex offender based on a statement in the presentence report, and for purposes of classification inside the prison, this foundation was enough evidence to support the hearing panel’s conclusion. See
Nor does Brown v. Montoya state that an officer may not consult documents outside the court record. In Brown v. Montoya, the officer who classified the plaintiff as a sex offender moved to dismiss the case on the basis of qualified immunity. The officer directed the plaintiff to register as a sex offender, because the plaintiff was convicted for false imprisonment, and the officer believed that the victim was a minor: under the New Mexico SORNA, false imprisonment is not a sex offense unless the victim is a minor. The plaintiff argued that the officer had no basis for concluding that the victim was a minor, because the plaintiff had pled guilty to the portion of the false imprisonment statute that did not include as an element that the victim is a minor; the indictment did not allege that the victim was a minor; the state court did not state that the victim was a minor during sentencing; and nei
Unlike Brown v. Montoya, Chacon had a factual basis for believing that Kvech’s conduct in the Colorado offense constituted a sex offense in New Mexico: the Affidavit of Probable Cause for Arrest Warrant provided evidence of Kvech’s conduct, including that he used force against the victim. Chacon did not make an independent determination without any evidentiary support. Further, New Mexico law was unsettled at the time as to how to make a determination that an out-of-state conviction is a equivalent to a New Mexico sex offense. Although Judge McDonald determined that Kvech’s offense was not equivalent to a New Mexico sex offense by way of comparing the elements of the offenses, the Supreme Court of New Mexico subsequently confirmed that courts should look to the underlying facts of the conviction, when that record is available. That is the analysis Chacon performed, although she relied on a document that the Supreme Court of New Mexico did not explicitly authorize as part of that factual review. It was not clearly established that relying on the Affidavit of Probable Cause for Arrest Warrant would not be proper, and the Supreme Court of the United States and the Tenth Circuit have not clearly stated what documents may be considered in making this determination.
It was also not clearly established what process would be due a person who had been convicted of a sex offense in another state. At the time Chacon made her determination, it was clear that a person who had not been convicted of any sex offense deserves certain protections — “notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action,” Brown v. Montoya,
The Court concludes that the law was not clearly established at the time that Chacon made her determination, because it was not clear what process was due, if any,, to someone who had been convicted of a sex offense in a different state and was required to register as a sex offender in that state.
II. STATUTORY IMMUNITY DOES NOT PROTECT CHACON, BECAUSE THERE IS A DISPUTED FACT WHETHER CHACON ACTED IN GOOD FAITH WHEN SHE IGNORED JUDGE MCDONALD’S OPINION.
Chacon asserts that she is protected by statutory immunity, under 42 U.S.C. § 16929, which states: “The Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall
The Court concludes that Chacon violated Kvech’s constitutionally protected liberty interest, but that the law was not clearly established at the time, thus entitling Chacon to qualified immunity. The disputed fact — Chacon’s mental state — does not affect the Court’s decision to grant summary judgment for qualified immunity, because the Court’s decision rests on the clearly established prong of qualified immunity, and there are no disputed facts that affect that analysis. Disputed facts regarding whether Chacon acted in good faith preclude the Court from granting summary judgment on her statutory immunity defense. Because the Court will grant Chacon’s MSJ for qualified immunity, it disposes of all Kvech’s remaining claims against Chacon.
IT IS ORDERED that the Defendant Regina Chacon’s Motion for Summary Judgment (Qualified Immunity), filed September 28, 2012 (Doc. 22), is granted in part and denied in part.
Notes
. The Court entered an Order, filed September 30, 2013 (Doc. 39), granting the Motion for Summary Judgment (Qualified Immunity), filed September 28, 2012 (Doc. 22)("MSJ”), and stating: "The Court will ... issue a memorandum opinion more fully detailing its rationale for this decision.” Order at 1 n. 1. This Memorandum and Amended Order contains the promised opinion, and it amends the Order to grant the MSJ in part and deny it in part.
. The DPS is a named defendant, but the Court previously disposed of the claims against the DPS. See Stipulated Order Dismissing with Prejudice Parts of Complaint, filed May 8, 2012 (Doc. 12).
. Kvech did not respond to every fact. In the Response, Kvech said: "In order to keep our Response concise and to the point we are only going to respond to the material facts offered by Defendant Chacon.” Response at 2. Kvech then responded to only certain facts that Chacon set forth in the MSJ; because Kvech has not responded to nor disputed the other facts, the Court deems these facts as undisputed. D.N.M.LR-Civ. 56.1(b) provides in relevant part:
The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted. The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the nonmovant relies.
D.N.M.LR-Civ. 56.1(b). For the facts that Kvech did not specifically dispute, the Court will cite the page of the Response where Kvech would have enumerated a response had he disputed that fact.
. The MSJ additionally states that Kvech was under “Sex Offender Intensive Supervision Probation,” MSJ ¶ 5, at 10, but Kvech disputes this fact, because he did not sign that portion of the Conditions, see Response ¶ 5, at 3; Conditions at 3. Kvech did not dispute the other facts in this sentence.
. In the Second Chacon Aff., Chacon says: “On information and belief, Colorado the DPS likely would have submitted Plaintiff's registration information to the national sex offender registry that is administered by the F.B.I. and the United States Department of Justice.” Second Chacon Aff. ¶ 8, at 3. Although Chacon indicates that she does not have personal knowledge of what actions Colorado the DPS took after Kvech registered as a sex offender, Kvech has not disputed that Colorado the DPS submitted the registration information, and the Court therefore finds this fact undisputed.
.In the Second Chacon Aff., Chacon says: "Apparently, the Colorado Department of Probation gave permission for Plaintiff to move to Rio Rancho, New Mexico.” Second Chacon Aff. ¶ 9, at 3. Although Chacon indicates that she does not have personal knowledge of whether the Colorado Department of
. Chacon said in the affidavit: “On information and belief, the Sheriffs Office entered Plaintiff’s name on the Sandoval County local registry of sex offenders....” Second Chacon Aff. ¶ 15, at 5. Although Chacon indicates that she does not have first-hand knowledge of this fact, Kvech has not disputed it; the Court therefore finds this fact undisputed.
. Chacon stated that "the State of Colorado extradited Plaintiff to Colorado,” MSJ ¶ 19, at 14, Second Chacon Aff. ¶21, at 7, but the meaning of "extradite” requires two jurisdictions: "1. To surrender or deliver (a fugitive) to another jurisdiction. 2. To obtain the surrender of (a fugitive) from another jurisdiction.” Black's Law Dictionary 520 (9th ed.2010). Neither party explained why Kvech was extradited to Colorado, but the Court suspects that the charge against Kvech for failing to register in New Mexico was a parole violation, and so New Mexico extradited him to Colorado for the Colorado courts to address the parole violation.
. Chacon stated in the affidavit: "On information and belief, the Sheriff's Office entered Plaintiff’s name on the Sandoval County local registry of sex offenders....” Second Chacon Aff. ¶ 25, at 8. Although Chacon indicates that she does not have first-hand knowledge of this fact, Kvech has not disputed it; the Court therefore finds this fact undisputed.
. Because Kvech attached the New Mexico Transcript in six different documents, the page numbers will refer to the numbers listed at the bottom right hand corner of the transcript pages, rather than to the numbers added to the documents through filing them in CM/ECF.
. Kvech did not file a supplemental response to address this fact, or dispute it at the hearing before the Court. The Court thus finds it undisputed.
. Kvech's proposed undisputed fact states: "Defendant Chacon had actual knowledge that in New Mexico, misdemeanor contact is not a registrable offense." Response ¶ 15, at 6-7. Chacon disputes the characterization of the testimony and quotes from the testimony: "Plaintiff misstates the testimony, which testimony was that Ms. Chacon admitted that 'under New Mexico law, our statute does not require registration for misdemeanor contact.’ ” Reply ¶ 15, at 9. Kvech offers no further evidence to support his broader statement; accordingly, the Court will accept as true only the testimony. The Court thus quotes directly from the transcript, to avoid misstating the testimony.
. Kvech states that "the assertion that Judge McDonald's findings that Unlawful Sexual Contact was not a 'sex offense' or 'equivalent' under SORNA in New Mexico is contrary to Section 18 — 3—404(l)(a) C.R.S.” Response ¶ 27, at 4. Chacon noted that the "Plaintiff disputes Material Fact No. 27, which is a summary of Judge McDonald’s order; the Court will determine its accuracy based on the order itself.” Reply at 6. Neither party disputes that Judge McDonald made these findings; the Court thus finds this fact undisputed.
. Kvech did not file a supplemental response to address this fact or dispute it at the hearing before the Court. The Court thus finds it undisputed.
. Chacon states in her affidavit:
On February 12, 2009 Plaintiff apparently went to the Sandoval County Sheriff's Office and renewed his registration as a sex offender with Deputy Gonzales, and the Sheriff's Office notified the DPS of such renewal. Based on my review of the records, Plaintiff’s registration on February 12, 2009 was undertaken by Plaintiff without any affirmative action having been taken by the Sandoval County Sheriff’s Office or by anyone at the DPS including me.
Second Chacon Aff. ¶ 31, at 9-10. Although Chacon’s statement qualifies her knowledge, stating that Kvech "apparently” went to the Sandoval County Sheriff’s Office, Kvech does not dispute this fact; the Court therefore finds it undisputed.
. The parties did not discuss this discrepancy, but provided evidence for two different dates. See Second Chacon Aff. ¶ 33, at 10 (“On February 14, 2009, Plaintiff was arrested by the Rio Rancho Police Department for Disorderly Conduct....”); New Mexico Sex Offender Registration Update Form at 5, dated March 9, 2009, filed November 26, 2012 (Doc. 29-l)("Update Form”)("On February 13, 2009, James Lloyd Kvech was arrested by the Rio Rancho Police Department for Disorderly Conduct.”).
.Kvech states that he disputes this fact, because the "Plaintiff was also arrested and charged for failing to register as a sex offender on February 14, 2009.” Response ¶ 31, at 4. Kvech cites the New Mexico Sex Offender Registration Update Form, dated March 9, 2009, filed November 26, 2012 (Doc. 29-1), but this document does not state that Kvech was arrested on February 14, 2009, for failing to register as a sex offender. Neither party attached documents that reveal if, or when, Kvech was arrested for failing to register as a sex offender in 2009 or after. Because Kvech has not introduced competent evidence disputing Chacon’s factual assertion, the Court will accept Chacon’s statement of this fact as uncontroverted.
. Neither party set forth facts explaining the gap in time between February 13 or 14, 2009, when Kvech was arrested for disorderly conduct, and March 6, 2009, when Gonzalez filed a Criminal Complaint and Affidavit for Arrest Warrant, and why Gonzales apparently believed Kvech was required to re-register as a sex offender. Both parties attached the Affidavit for Arrest Warrant, however, and so the Court finds as undisputed the facts from the Affidavit for Arrest Warrant.
. Kvech does not dispute this fact, but further states that "Defendant Chacon fails to note that had she complied with Judge McDonald's order by removing his name from the sexual offense registry and releasing him from the registration requirements, the Sandoval County Sheriff's Department would never have filed a Criminal Complaint and Affidavit for Arrest Warrant in the Magistrate Court, and the Magistrate Judge would never have signed the Arrest Warrant." Response ¶ 34, at 4. Kvech did not reference any evidence to support this fact, which the Court understands to be legal argument.
.Although Kvech attached a Warrant for Arrest, dated March 6, 2009, filed November 26, 2012 (Doc. 29-2), he did not set forth as an undisputed fact or provide evidence that he was arrested for failing to re-register as a sex offender following his release from custody for disorderly conduct.
. Kvech does not dispute this fact, but further states:
However, it seems that Defendant Chacon did not consider Judge McDonald's Order, or the witness statements that show Plaintiff was a victim of false allegations because she does not list them in this offered fact. Moreover, Defendant Chacon does not list that she took into consideration that Plaintiff pled to a misdemeanor in which force or age are not elements of his conviction. See 18-3-404(l)(a) C.R.S.
Response ¶ 35, at 4 (emphasis in original). The Court views Kvech's comments on this undisputed fact as legal argument.
. The parties do not indicate where Kvech was residing at this time; if he was still residing in Sandoval County, he would have been required to renew his registration with the Sandoval County Sheriff's Office.
. Although the Hon. William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States, dissented in Celotex Corp. v. Catrett, this sentence is widely understood to be an accurate statement of the law. See 10A C. Wright & A. Miller, Federal Practice & Procedure § 2727, at 470 (3d ed.1998)("Although the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary judgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.”).
. In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified immunity test before agreeing’’ with the plaintiff that the qualified immunity defense did not protect the officer.
Because we agree with Sheriff White on the latter (clearly established law) question, we reverse without addressing the former (constitutional violation) question. And we pursue this course because doing so allows us to avoid rendering a decision on important and contentious questions of constitutional law with the attendant needless (entirelyavoidable) risk of reaching an improvident decision on these vital questions.
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions, the Court is troubled by this statement and the recent trend of the Supreme Court's hesitancy in § 1983 actions to address constitutional violations. A Reconstruction Congress, after the Civil War, passed § 1983 to provide a civil remedy for constitutional violations. See Mitchum v. Foster,407 U.S. 225 , 238-39,92 S.Ct. 2151 ,32 L.Ed.2d 705 (1972). In Mitchum v. Foster, the Supreme Court explained:
Section 1983 was originally § 1 of the Civil Rights Act of 1871 ... and was enacted for the express purpose of "enforcing) the Provisions of the Fourteenth Amendment.” ... The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.
407 U.S. at 238-39 ,92 S.Ct. 2151 . Congress did not say it would remedy only violations of "clearly established” law, but that
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, exception that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray,386 U.S. 547 ,87 S.Ct. 1213 ,18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violation where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the "clearly established" prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer "acted with such an impermissible motivation or with such disregard of the [individual's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland,420 U.S. 308 , 322,95 S.Ct. 992 ,43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See457 U.S. at 818 ,102 S.Ct. 2727 ("We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations — presumably the rights of innocent people — and discourage case law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, "[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in” exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 390-91 (1999)("Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving____These theories also suggest that a judicially administered damages regime ... would fare significantly better at changing behavior at an officer level.”); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan, 547 U.S. 586 ,126 S.Ct. 2159 ,165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amend1 ment when they fail to knock and announce their presence before entering. See547 U.S. at 596-97 ,126 S.Ct. 2159 . Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens’ civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases.
Kerns v. Bd. of Comm’rs,
. In Kerns v. Board of Commissioners,
While the Court is, of course, obligated to follow faithfully the Supreme Court’s decisions and opinions, the Court has always been unenlightened and even troubled by Justice Elena Kagan's comments in Camreta v. Greene about "large” and "small” cases.131 S.Ct. at 2032 . As a trial judge, the Court has tried assiduously to avoid thinking about or categorizing some cases as "large” and some as "small." It usually is not mentally healthy for a judge to put all his or her energy into "large” cases and slight "small cases”; to the litigants, their case is the most important case on the Court’s docket, and it is usually wise for the judge to treat each case on which he or she is working — at that moment — as the most important case at that moment. Getting the decision “right,” i.e. getting the law and facts correct and accurate, is obviously important, but getting it right is only one-half of a judge’s task, particularly a trial judge's job. The other half of dispensing justice is the appearance of justice — did the Court listen to the litigant’s arguments, wrestle with those arguments, and deal with them in an intellectually honest way. Americans are pretty good about accepting a judicial decision — even an adverse one — and cease obsessing over an issue, if they are convinced that an authority figure has dressed up, taken them seriously, listened patiently and politely, wrestled with the arguments, addressed them, and accurately stated the facts. The Court believes that, if it starts looking at some cases before it as "large” and some as "small,” it begins a slippery slope that does not accomplish both halves of the task of dispensing justice. The justice system depends so much on the nation respecting and accepting the courts' proceedings and decisions, because courts have very little “power” that does not depend on that acceptance. Thus, Justice Kagan’s comments are not only not self-defining, but they are disturbing,
If, perhaps, a "large” case is a Supreme Court case or one that comes from the East Coast or California, rather than one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards, - U.S. -,132 S.Ct. 2088 ,182 L.Ed.2d 985 (2012); (ii) Filarsky v. Delia, - U.S. -,132 S.Ct. 1657 , 182 L.Ed.2d662 (2012); and (iii) Messerschmidt v. Millender, - U.S. -, 132 S.Ct. 1235 ,182 L.Ed.2d 47 (2012). In Reichle v. Howards, the Supreme Court determined that secret service agents were entitled to qualified immunity for arresting a protestor who touched the Vice President and held that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. See132 S.Ct. at 2092, 2097 . In Filarsky v. Delia, the Supreme Court held that a private individual that the government hires to do its work, an internal affairs review, is entitled to seek qualified immunity for Fourth and Fourteenth Amendment violations. See132 S.Ct. at 1660, 1668 . In Messerschmidt v. Millender, the Supreme Court held that police officers in Los Angeles, California were entitled to qualified immunity when they relied on an invalid warrant to search a home, because a reasonable officer would not have realized the error. See132 S.Ct. at 1241, 1250 . The Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez,540 U.S. 551 ,124 S.Ct. 1284 ,157 L.Ed.2d 1068 (2004), where it held that an officer unreasonably relied on a deficient warrant. See540 U.S. at 565 ,124 S.Ct. 1284 . The Court does not think those presumably "large” cases (they are Supreme Court cases, after all) are any different — substantively, legally, or factually — than this case involving the search of a citizen’s home after someone shot down a police helicopter and then detained that suspect for nine months until the United States realized that J. Kerns could not have shot down the helicopter.
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants-that only big cases deserve the Court’s attention. A trial judge can overwork a "large” case. It is better to treat even "large” cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court’s docket, and realize that the scarcity of judicial resources applies to them too.
. Rhoads v. Miller is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) ("Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. The United States Court of Appeals for the Third Circuit described the origins of "Megan's Law” in E.B. v. Verniero,
On July 29, 1994, Megan Kanlca, a seven year old child, was abducted, raped, and murdered near her home. The man who confessed to Megan's murder lived in a house across the street from the Kanka family and had twice been convicted of sex offenses involving young girls. Megan, her parents, local police, and the members of the community were unaware of the accused murderer’s history; nor did they know that he shared his house with two other men who had been convicted of sex offenses.
E.B. v. Verniero,
. Although the Court will analyze both prongs of the qualified immunity analysis, it recognizes that the Supreme Court and the Tenth Circuit has stated that district courts should proceed directly to the clearly established prong in seven circumstances, and the Court must follow that guidance faithfully and fully. See Pearson v. Callahan,
. At the hearing, Kvech argued that, even though he did not renew his registration after February 12, 2009, he had to disclose his status as a sex offender to his employer for the additional year and a half, until Chacon removed his name from the registry. Although Kvech did not produce evidence on this point, the Court notes that the New Mexico SORNA places these requirements on registered sex offenders and that this condition also changed Kvech's legal status, satisfying the "plus” for the stigma-plus standard.
. This Memorandum Opinion disposes of all remaining claims and parties. The Court previously dismissed all the claims against DPS, and dismissed the state-law claims against Chacon. See Stipulated Order Dismissing with Prejudice Parts of Complaint, filed May 8, 2012 (Doc. 12). Although the Court has not addressed the remaining claims against "John Does 1-10,” the Court may disregard fictional defendants when determining dispositive motions. See Armijo v. New Mexico, No. CIV 08-0336 JB/ACT,