MEMORANDUM & ORDER
Table of Contents
I.Background.............................................................285
A. Plaintiffs...........................................................286
1. Troy Wallace ....................................................286
2. Marcello Aiello, Jr................................................287
3. Robert Blunt ....................................................287
4. Earl Calloway....................................................287
5. Jehovah Colon...................................................287
6. Joshua Factor ...................................................288
7. Richard Geoffrion...................‘.............................288
8. Charles McLaurin................................................288
9. Angel Tirado.....................................................288
B. The Laws...........................................................288
1. State Registration Requirements...................................288
2. The State, County, and Town Residency Restrictions..................291
i. State.....................................................291
ii. County ...................................................291
iii. Town....................................:................292
C. Procedural History and Claims .......................................293
II. Discussion...............................................................294
A. Standard of Review..................................................294
B. Article III Standing..................................................295
1. Standing to Challenge the State Registration Requirements............296
2. Standing to Challenge the State Residency Restrictions...............297
3. Standing to Challenge the County and Town Residency Restrictions....................................................300
4. Standing to Challenge the County’s Trailer Program..................301
C. The State’s Motion to Dismiss.........................................302
1. Statute of Limitations.............................................302
2. Eleventh Amendment Immunity....................................303
3. Failure to State a Claim...........................................305
i. Ex Post Facto Claim Relating to the Current State Registration Requirements................................306
ii. Ex Post Facto Claim Relating to the State Residency Restrictions.............................................311
D. The Other Parties’ Motions to Dismiss .................................321
1. Preemption Claims Regarding the County and Town Residency Restrictions....................................................321
2. Failure to State a Claim...........................................322
i. Ex Post Facto Claims Relating to the County and Town Residency Restrictions....................................322
ii. Equal Protection Claim Relating to the County’s Trailer Program................................................329
III. Conclusion....................... ......................................332
In this case (“Wallace ”),
Defendants—the State of New York (the “State”)
I. Background
The Court takes the following facts from the allegations in the Wallace Complaint, which are assumed to be true for purposes of Defendants’ motions, and otherwise judicially-noticeable information. See Brass v. Am. Film Techs., Inc.,
In construing the claims in this case, the Court recognizes that, because Plaintiffs, as pro se litigants, are to be afforded “special solicitude,” the Wallace Complaint “must be construed liberally and interpreted to raise the strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons,
A. Plaintiffs
As an initial matter, the Wallace Cоmplaint is incomplete, in terms of its allegations as to (i) when, or if, Plaintiffs were convicted of a sex offense, released from prison, placed on probation or parole, and/or classified as a specific risk-level
1. Troy Wallace
Plaintiff Troy Wallace committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 15-year old female in October 1991. (Ex. A.) Wallace was convicted in April 1992, and is classified as a risk-level two sex offender. (Id.) Although Wallace was originally sentenced to six months in prison and five years of probation, his probation was revoked in August 1992, and he was resentenced to 18-54 months in prison. (Am. Compl. ¶¶4-6.) In November 1995, Wallace was released on parole; his maximum expiration date for parole was May 1997. (Id. ¶ 7.) Wal
2.Marcello Aiello, Jr.
Plaintiff Marcello Aiello, Jr. committed third-degree rape (N.Y. Penal Law § 130.25) of a 16-year old female in February 2007. (Ex. B.) Aiello was convicted in December 2009, and is classified as a risk-level two sex offender. (Id.) Aiello was sentenced to three years in prison, and has been released on parole with a maximum expiration date of January 13, 2027. (Id.) Aiello has (i) listed an address in Yaphank in the Town of Brookhaven, Suffolk County (Dkt. No. 5-1), and (ii) registered a primary residence at a correctional facility in the Town of Collins, Erie County (Ex. B).
3.Robert Blunt
Plaintiff Robert Blunt committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 64-year old female in November 1999. (Ex. C.) Blunt was convicted in February 2000, and is classified as a risk-level three sex offender and a “[s]exually [v]iolent [offender.” (Id.) Blunt was sentenced to seven years in prison, and has been released on parole with a maximum expiration date of September 25, 2017. (Id.) Blunt has (i) listed an address in West Babylon in the Town of Babylon, Suffolk County (Dkt. No. 5-2), and (ii) registered a primary residence at a correctional facility in the Town of Malone, Franklin County (Ex. C).
4. Earl Calloway
Plaintiff Earl Calloway committed first-degree rape and first-degreе sexual conduct against a child (N.Y. Penal Law §§ 130.35, 130.75) in March 1999; the victim was a 10-year old female. (Ex. D.) Calloway was convicted in August 2000, and is classified as a risk-level three sex offender and a “[sjexually [v]iolent [offender.” (Id.) Calloway’s sentence was eight years in prison; he has been released, but is not on parole. (Id.) Callo-way has (i) listed a P.O. Box in Holbrook in the Towns of Islip and Brookhaven, Suffolk County (Dkt. No. 5-3),
5. Jehovah Colon
Plaintiff Jehovah Colon (incorrectly appearing as “Cobin” on the docket)
6.Joshua Factor
Plaintiff Joshua Factor committed a second-degree criminal sex act (N.Y. Penal Law § 130.45) against a 14-year old male in August 2007. (Ex. F.) Factor was convicted in March 2008, and is classified as a risk-level two sex offender. (Id.) Factor was sentenced to three years in prison, and has been released on parole with a maximum expiration date of December 3, 2015. (Id.) Factor has (i) listed an address in Farmingville in the Town of Brookha-ven, Suffolk County (Dkt. No. 5-5), and (ii) registered a primary residence at a correctional facility in the Town of Marcy, Oneida County (Ex. F).
7. Richard Geoffiion
Plaintiff Richard Geoffiion committed a felony sex offense, outside of New York State, against a 15-year old female in September 2000. (Ex. G.) Geoffiion was convicted out-of-state in June 2001, and sentenced to one year of probation. (Id.) Geoffiion is classified as a risk-level three sex offender. (Id.) Geoffrion has (i) listed an address in Holbrook in the Towns of Brookhaven and Islip, County of Suffolk (Dkt. No. 5-6), and (ii) registered a primary residence in Coram in the Town of Brookhaven, Suffolk County (Ex. G).
8. Charles McLaurin
Plaintiff Charles McLaurin (incorrectly appearing as “McLauren” on the docket)
9.Angel Tirado
Plaintiff Angel Tirado committed forcible touching (N.Y. Penal Law § 130.52) of a 14-year old female in September 2003. (Ex. I.) Tirado was convicted in January 2005, and is classified as a risk-level two sex offender. (Id.) Tirado’s sentence was six months in prison; he has been released, but is not on parole. (Id.) Tirado has (i) listed an address in the Bronx (Dkt. No. 5-8), and (ii) registered a primary residence at a correctional facility in the State of Pennsylvania (Ex. I).
None of the above information suggests that Plaintiffs reside, or have ever resided, in trailers for homeless sex offenders, operated by the County DSS pursuant to a program known as “the County DSS’s overnight placement facility.” (Am. Compl. ¶¶ 45-46; County Defs. Br., at 1.) The Wallace Complaint, however, does allege that Plaintiffs were transported to the “secured premises of the property of Suffolk County jail in Riverhead where such trailer program is located,” whereupon, like “prisoners,” they did not enjoy the same rights as “other free men.” (Am. Compl. ¶¶ 45-46 (emphasis added).)
B. The Laws
1. State Registration Requirements
On January 21, 1996, the State’s Sex Offender Registration Act (“SORA”), codified as N.Y. Correct. Law § 168 et seq., took effect. SORA, 1995 NY. Sess. Laws Ch. 192 (S.ll-B) (1995) (McKinney).
The preamble to SORA states:
. The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders. The system of registering sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community. 1995 N.Y. Sess. Laws Ch. 192 (S.ll-B), § 1.
SORA’s registration requirements (the “State registration requirements”) apply to any “sex offender” convicted, in prison, or on probation or parole, as of January 21, 1996. Id. § 2 (adopting N.Y. Correct. Law §§ 168—f, 168—g). As originally adopted, the requirements provided, among other things, that the period of annual registration would be:
• 10 years for a “sex offender”; and
• at least 10 years, with mandatory verifications every 90 days, for a “sex offender” who is designated a “sexually violent predator,” then-defined as a sex offender (i) convicted of a “sexually violent offense,”14 (ii) suffering a “mental abnormality,” or (iii) classified as a risk-level three sex offender.
Id. (adopting N.Y. Correct. Law §§ 168-a, 168-h, 168—Z). The requirements also provided that “[a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court.” Id. (emphasis added) (adopting N.Y. Correct. Law § 168-o).
On March 11, 2002, the State registration requirements were amendеd. Act of Mar. 11, 2002, 2002 N.Y. Sess. Laws Ch. 11 (S.6263-A), § 24 (2002) (McKinney). In particular, the period of annual registration was amended to reflect several newly-defined terms:
• 10 years for a “sex offender” (i) who is not designated (a) a “sexually violent offender,” defined as a sex offender convicted of a “sexually violent offense,” (b) a “sexual predator,” defined as a sex offender convictedof a “sexually violent offense” and suffering from a “mental abnormality or personality disorder,” or (c) a “predicate sex offender,” defined as a sex offender previously convicted of another offense, or (ii) who, as of March 11, 2002, is classified as a risk-level one or two sex offender;
• lifetime for a designated “sexually violent offender” or “predicate sex offender”; and
• lifetime, with mandatory verifications every 90 days, for a designated “sexual predator” or a sex offender who, as of March 11, 2002, is classified as a risk-level three sex offender.
Id. §§ 1-2, 4, 13 (amending N.Y. Correct. Law §§ 168-a, 168—h). The right to petition for relief from “any further duty to register” was also amended to apply only to a sex offender who, as of March 11, 2002, is classified as a risk-level three offender and has been registered for at least 13 years. Id. § 22 (amending N.Y. Correct. Law § 168-0).
Finally, on January 18, 2006, the State registration requirements were amended again. Act of Jan. 18, 2006, 2006 N.Y. Sess. Laws Ch. 1 (S.6409, A.9472), § 6 (2006) (McKinney). The amendments, which remain in place today, apply to any sex offender (i) “registered or required to register immediately prior to” January 18, 2006, i.e., individuals still subject to the requirements as amended in March 2002; or (ii) “required to register on or after” January 18, 2006. Id. As amended, the period for annual registration is:
• 20 years for a “sex offender” who is not designated a “sexually violent offender,” “sexual predator,” or “predicate sex offender,” and is classified as a risk-level one sex offender; and
• lifetime for a sex offender (i) who is designated a “sexually violent offender,” “sexual predator,” or “predicate sex offender,” or (ii) who is classified as a risk-level two or three sex offender.
N.Y. Correct. Law § 168-h. The right to petition for relief from “any further duty to register,” as amended, applies only to a risk-level two sex offender who is not designated a “sexually violent offender,” “sexual predator,” or “predicate sex offender,” and has been registered for at least 30 years. N.Y. Correct. Law § 168-o.
To summarize, the State registration requirements changed after SORA was adopted. Starting in January 1996, the State required that convicted sex offenders register for 10 years, or—if designated a “sexually violent predator,” for instance, due to a risk-level three classification— more than 10 years. All sex offenders could petition for relief.
As of March 2002, sex offenders classified as a risk-level one or two offender, who were not designated a “sexually violent offender,” “sexual predator,” or “predicate sex offender,” were still required to register for 10 years; only sex offenders classified as a risk-level three offender, or those falling within one of the aforementioned designations, were required to register for life. The right to petition for relief was limited to a subset of risk-level three sex offenders.
Since January 2006, sex offenders still subject to the requirements as amended in March 2002, or subsequently required to register, havé an extended 20-year duty to register, if they are classified as a risk-level one offender; or a lifetime duty, if they are either classified as a risk-level two or three offender or designated a “sexually violent offender,” “sexual predator,” or “predicate sex offender.” Only specific risk-level two sex offenders retain the right to petition for relief.
i. State
The State’s Sexual Assault Reform Act, which went into effect off February 1, 2001, enacted new provisions, codified as N.Y. Exec. Law § 259—c(14) and N.Y. Penal Law § 65.10(4—a). Sexual Assault Reform Act, 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), §§ 7-8, 57 (2000) (McKinney). These provisions, when originally adopted, only prohibited the presence of certain sex offenders “within the real property boundary line” of schools. Id. §§ 7-8 (adopting N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a), both of which only incorporated “paragraph (a)” of the definition for “school grounds” in N.Y. Penal Law § 220.00(14)); N.Y. Penal Law § 220.00(14)(a). The original provisions, in short, did not operate to preclude, such individuals from residing near schools. Additionally, these provisions only applied to sex offenders sentenced to probation or released on parole for an offense defined in Articles 130 (“Sex Offenses”), 135 (“Kidnapping, Coercion and Related Offenses”), 235 (“Obscenity and Related Offenses”), or 263 (“Sexual Performance by a Child”), or Section 255.25 (“Incest in the third degree”), of the New York Penal Law, where the victim of the offense was “under the age of eighteen at the time.” 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), §§ 7-8.
Eventually, as of September 1, 2005, the above provisions were amended to also prohibit the presence of certain sex offenders—and, in effect, to preclude their residence—within 1,000 feet beyond the “real property boundary line” of schools during sehool hours. Act of Aug. 19, 2005, 2005 N.Y. Sess. Laws Ch. 544 (A.8894), §§ 1-2, 4 (2005) (McKinney) (amending N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a) to incorporate the whole definition for “school grounds” in N.Y. Penal Law § 220.00(14)); see N.Y. Penal Law § 220.00(14) (defining “school grounds” to include “any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school”).
The September 2005 amendments also extended the State residency restrictions to cover any sex offender probationer or parolee who:
• is convicted of an offense identified in the original provisions; and
• either (i) commits the offense against a victim “under the age of eighteen at the time” or (ii) is classified as a risk-level three sex offender.
2005 N.Y. Sess. Laws Ch. 544 (A.8894), §§ 1-2. In other words, after September 2005, a sex offender probationer or parolee is subject to these restrictions not only if he is convicted of a specific offense against a child, but also if he is convicted of a specific offense and classified as a risk-level three offender. These restrictions remain in effect today.
ii. County
The residency restrictions in the County Code Ch. 745, Art. 1 (originally Ch. 428, Art. 1) (the “County residency restric
... This Legislature hereby finds and determines that sex offenders pose an unreasonable threat to the safеty and well-being of children.
... This Legislature also- finds and determines that the County of Suffolk has gone to great lengths to protect the children of this County from sex offenders, such as requiring certain sex offenders to wear ankle bracelets so that law enforcement can determine their whereabouts.
... This Legislature further finds and determines that information is currently available to the public regarding these high-risk offenders, which information is available through the Internet and other sources.
... This Legislature finds that it is imperative that the County of Suffolk takes all steps necessary to protect the most vulnerable residents of the County.
Id. § 745-1.
Specifically, the County residency restrictions prohibit any convicted sex offender, as long as they are subject to the State registration requirements, from residing “within 1/4 mile
iii. Town
The residency restrictions in the Town Code Ch. 215, Art. 1 (the “Town residency restrictions”), were adopted on October 23, 2007 (Loe.L. No. 51-2007), and subsequently amended on December 11, 2007 (Loc.L. No. 60-2007). Town of Southampton, N.Y., Code (“Town Code”) ch. 215, art. 1, available at http://ecode360.com/ 8696165. The enacting legislation cites the County residency restrictions, and suggests that the Town’s reasons for implementing its own restrictions are similar and that the Town’s restrictions make up for perceived deficiencies in the County’s restrictions:
... The Town Board hereby finds and determines that sex offenders, as defined in this chapter, pose an unreasonable threat to the safety and well-being of children within the Town of Southampton because their risk of repeat offense has been determined to be either high or moderate.
... The Town Board hereby finds and determines that there are certain areas of the town where large numbers of children learn, play, congregate and travel and these areas are particularly in need of protection from the unreasonable threat of sex offenders.
... The Town Board further finds and determines that information is currently available to public safety agencies and the general public regarding the locations of the residences and places ofemployment of sex offenders, which information is available through the State of New York sex offender registry, the internet and other sources.
... The Town Board further finds and determines that Suffolk County has already enacted restrictions preventing all registered sex offenders from residing within one quarter mile of any public or private nursery, elementary, middle or high school, licensed day-care center, or playground.
... The Town Board further finds and determines that Suffolk County’s law has certain limitations, among them, that the Suffolk County law does not provide the level of protection to the children of the Southampton Town who live in school districts that do not offer and fund transportation services for all students living within one (1) mile of their respective school that the Town Board finds necessary for the protection of those children.
The Town Board finds and determines that the purpose of this Chapter is not to punish sex offenders, but rather to provide a regulated system that prevents sex offenders from residing in areas where large numbers of children learn, play, congregate and travel.
(Dkt. No. 68-2 (Law of Oct. 23, 2007, Loc. L. No. 51-2007, § 1 (2007) (adopting Town Code ch. 215, art. 1)).)
The Town residency restrictions apply to any risk-level two or three sex offenders, as long as they are subject to the State registration requirements. Town Code ch. 215, art. 1, §§ 215-1, 215-2. Under these restrictions, it is unlawful for such sex offenders to take up residence within (i) one mile of a school that does not transport students residing in a one-mile radius thereof; (ii) 2,000 feet of a school that does transport these students; and (iii) 2,000 feet of a “child-care facility or municipal recreational facility.” Id. § 215-2. Like the County, the Town exempts prior-established residences from these restrictions, including residences established before October 23, 2007. Id. § 215-3.
C. Procedural History and Claims
On November 26, 2012, the original complaint was filed in Wallace by Plaintiff Wallace and other unnamed plaintiffs. (See Dkt. No. 1 (listing “Troy C. Wallace, et al.” as the plaintiffs).) Two days later, the same complaint was re-filed, styled as an “amended” complaint. (Am. Compl., at 1.) The amended complaint,, which is the operative Wallace Complaint, was signed by all Plaintiffs (id. at 20), and it attached, and incorporated by reference, form complaints from each of the Plaintiffs except for Wallace, whose individualized allegations were set forth in the body of the amended complaint. (Dkt. Nos. 5-1-5-8).
In the Wallace Complaint, Plaintiffs claim, pursuant to 42 U.S.C. § 1983 (“Section 1983”), that:
• the State registration requirements violate the Ex Post Facto Clause because they impose a duty to register on “those,, convicted of qualifying offenses before the passing of the law” and, as amended in 2006, lengthen the duty from “ten years” to “lifetime duration” after those individuals’ convictions (Am. Compl. ¶¶ 1-2, 15, 37);
• the State, County, and Town residency restrictions also amount to ex post facto violations, in that these restrictions impose a restraint, and sometimes “uproot[] offenders from their communities,” based on a “past • conviction” (id. ¶¶ 3, 27, 29, 37, 41); and
• the County’s trailer program—which Defendant Westergaard operates and for which Defendant Alexander furnishes transportation, in their official capacities—deprives sex offenders, forced into homelessness through the above restrictions, of the same conditions that “other free men” enjoy, e.g., access to “therapeutic programming, schooling, employment and ... regular showering,” in violation of the Fourteenth Amendment’s Equal Protection Clause (id. ¶¶ 45-46).
Plaintiffs also claim that the County and Town residency restrictions are preempted by state law in an area of regulation, ie. “sex offenders,” that the State intended to occupy (id. ¶¶ 3, 39). With respect to their Section 1983 and supplemental state law claims, Plaintiffs are seeking compensatory damages and up to $25 million in punitive damages, as well as declaratory and injunctive relief. (E.g., Dkt. No. 5-1, at 5.)
On March 8, 2013 and April 2, 2013, Judge Joseph F. Bianco, who was previously assigned to this case, ordered that 13 pending cases, see supra note 1, and any future cases relating to the above requirements and restrictions, be consolidated with, and considered related to, Wallace as the lead case. (See Dkt." Nos. 27; 40.) Judge Bianco also directed that any submissions in these consolidated cases should be docketed in Wallace. (Ibid.)
On April 19, 2013, Wallace was reassigned to the Court. Shortly thereafter, the Court consolidated two subsequently-filed cases with Wallace, consistent with Judge Bianco’s orders.
Between September 24, 2013 and October 7, 2013, Defendants filed four fully-briefed motions to dismiss the claims in Wallace.
On May 13, 2014,. the Court held limited oral argument on the impact of the County and Town residency restrictions on where convicted sex offenders may live, and subsequently ordered the Town to submit information on where within its geographical boundaries convicted sex offenders are permitted to live pursuant to these restrictions. (Minute Entry, dated May 13, 2014.) The Town submitted this information on June 24, 2014 and August 5, 2014. (Dkt. Nos. 94-1; 96.)
II. Discussion
A. Standard of Review
Even with the “special solicitude” to which their complaints are entitled, and the assumption that any reasonably-inferred factual allegations contained therein are true, pro se plaintiffs must still satisfy the “plausibility standard” of pleading claims for which relief may be granted, pursuant to Ashcroft v. Iqbal (“Iqbal”),
Under Iqbal/Twombly, a claim may only survive such a motion, if the complaint does more than recite the legal “elements” of the claim and, with respect to the claim, makes “factual allegations” which sufficiently “raise a right to relief above the speculative level.” Iqbal,
[3] Ordinarily, “the court should not dismiss [pro se complaints] without granting leave to amend at least once.” Cuoco v. Moritsugu,
B. Article III Standing
Although the State and Epley are the only ones to contest Plaintiffs’ standing (State Br., at 13-14; Epley Br., 5-8), the Court has an “independent obligation” to analyze the issue of standing, as it implicates the Court’s jurisdiction to consider the relevant challenges to the registration requirements, residency restrictions, and trailer program. FW/PBS, Inc. v. City of Dallas,
“[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact—ai&invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.]’ Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Defenders of Wildlife,
With respect to the injury-in-fact element, the injury is (i) “concrete,” if it is “capable of resolution through the judicial process” and not “too abstract,” Raines v. Byrd,
The burden of proving the above elements belongs to the plaintiff, and depends on the “manner and degree of evidence required at the successive stages of the litigation.” Defenders of Wildlife,
1. Standing to Challenge the State Registration Requirements
First, the Court considers whether Plaintiffs have standing to challenge the original State registration requirements, as adopted in 1996, and the current ones, as amended in 2006. The immediate injury for sex offenders, as a result of these requirements, is the fact that they impose a “disability” through annual registration—which, as to some individuals, lasts their whole lives.
That Plaintiffs must adhere to these requirements, and will invariably suffer the disability that these requirements impose on their lives, is sufficient to establish that the alleged injury actually exists. No speculation is necessary, as the “actual” nature of the injury is apparent. Id. at 560,
There is “little question” about the remaining two elements, causation and re-dressability. Id. at 561-62,
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs’ challenge to the State registration requirements. Only Plaintiffs Wallace, McLaurin, and Geoffrion, however, have standing to challenge the original requirements, as adopted in 1996. All Plaintiffs have standing to challenge the current requirements, as amended in 2006.
2. Standing to Challenge the State Residency Restrictions
Second, the Court considers whether Plaintiffs have standing to challenge the State residency restrictions. These restrictions are allegedly injurious, because they prevent sex offenders from living in specific areas
As shown before, the information on the State’s sex offender registry website supports a preliminary assessment of which Plaintiffs are, in fact, affected by the alleged injury that stems from the State residency restrictions. Only Plaintiffs Aiello, Blunt, and Factor appear to be subject to these restrictions, because they were sex offenders released on parole after September 2005 and convicted of an offense against a child under 18-years old or classified as a risk-level three offender. See supra Sections I.A & I.B.2.L Plaintiff Wallace was released on, and completed, parole for his sex offense before these restrictions were adopted. Id. Plaintiffs Calloway, Colon, McLaurin, and Tirado were never on parole. Id. Plaintiff Geof-frion was convicted, and sentenced to probation, out-of-state, and his probation ended prior to the adoption of these restrictions. Id. Accordingly, Plaintiffs Aiel-lo, Blunt, and Factor are the only ones whom the State residency restrictions could injure in a “particularized” way, in that they, and not the other Plaintiffs, are subject to these restrictions. Defenders of Wildlife,
The fact that Plaintiffs Aiello, Blunt, and Factor do not claim that they attempted to reside in particular areas within the State, but were prevented from doing so by the State residency restrictions, does not deprive them of standing to challenge these restrictions. These Plaintiffs can establish standing on the basis that they definitely would be prevented from doing so in the future. The continued residence of these Plaintiffs within the State-—-in “geographical proximity” to the areas specified by these restrictions—suffices to show their “imminent” inability to reside in certain areas, without additional proof as to their “past [residential] use” of those areas. Ecological Rights Found, v. Pac. Lumber Co.,
As an example, in Village of Arlington Heights, one of the plaintiffs alleged an injury based on his inability to pursue the disputed “housing opportunity he desires” in a village where he worked, but had never resided.
Indeed, in-state residence is a more “tangible, continuing connection to any particular location affected by the challenged decision,” i.e., the State residency restrictions, than mere residence “halfway around the world” from that location. Id. at 184,
The fact that these three Plaintiffs fail to allege that they own property—in areas restricted by the State, the County, or the Town (Epley Br., at 7)—does not defeat the imminence of the alleged injury that results from the various restrictions. See Vill. of Arlington Heights,
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the State residency restrictions, specifically brought by Plaintiffs Aiello, Blunt, and Factor. All other Plaintiffs lack standing, because they have not alleged an injury-in-fact as a result of these restrictions.
3. Standing to Challenge the County and Town Residency Restrictions
Third, the Court considers whether Plaintiffs have standing to challenge the County and Town residency restrictions. The same alleged injury inflicted by the State residency restrictions—that is, the inability for sex offenders, to reside in, and their possible displacement from, specific areas—is attributable both to the County residency restrictions and, though inartfully pleaded, to the Town residency restrictions. (Am. Compl. ¶¶ 20, 27, 29-30 & at 19; see also id. ¶ 44 (imputing the same allegations to the Town residency restrictions).) Additionally, the County residency restrictions, in confining the residence of sex offenders to particular areas within the County, allegedly leave such individuals without housing options and, thus, potentially homeless. (See Am. Compl., at 20; Pis. Opp., at 6.) There is no reason why the. alleged injury from the County and Town residency restrictions is any less “concrete” than that of the State residency restrictions. Raines,
Plaintiffs, except for Plaintiff Tirado, allegedly reside or have resided in the County. See supra Section I.A. Mere “geographical proximity” to particular areas, affected by the County residency restrictions, is sufficient to establish “imminent” injury. Ecological Rights Found.,
As for the Town residency restrictions, none of the Plaintiffs appear to live in the Town; however, all but Plaintiff Tirado live or have lived in the County, where the Town is located. See supra Section I.A. Although Epley argues that the absence of evidence that these Plaintiffs ever previously resided or presently reside in the Town refutes the existence of any “actual or imminent” injury (Epley Br., at 6-7), the Supreme Court, in Village of Arlington Heights and Laidlaw, held the exact opposite: in those cases, it concluded that a plaintiff, who lived outside of the town or village in which the affected area was located, also alleged an injury-in-fact with respect to particular actions pertaining to that area. See Laidlaw,
Because these Plaintiffs allege that they actually have been and/or imminently will be injured, in a concrete and particularized fashion, by the County and Town residency restrictions, they have established the injury-in-fact element. Defenders of Wildlife,
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the County and Town residency restrictions by Plaintiffs. The only exception is that Plaintiff Tirado has not pleaded enough to demonstrate his injury-in-fact from these restrictions, and, thus, he does not have standing.
4. Standing to Challenge the County’s Trailer Program
Finally, the Court considers whether Plaintiffs have standing to challenge the County’s trailer program. This program purportedly leaves otherwise homeless sex offenders to tolerate living conditions, at a level below that of “other free men.” (Am. Compl. ¶¶ 45-46.) The alleged injury to such individuals through this program—the inability to enjoy the same living conditions as everyone else—is “concrete” enough to support their injury-in-fact. Raines,
Plaintiffs, except for Plaintiff Tirado, are allegedly sex offenders who face or have faced the possibility of becoming homeless within Suffolk County, because of the various residency restrictions to which they are subject. See supra Sections II.B.2 & II.B.3. Based on this allegation, it is plausible that this program covers these Plaintiffs and, thus, that the alleged injury perpetrated by this program affects them personally. In short, the injury is sufficiently “particularized.” Defenders of Wildlife,
The above finding is borne out through other generalized allegations of these Plaintiffs’ coverage by this program in the past, and their resulting treatment as “prisoners,” rather than “free men,” see supra Section I.A. At least two Plaintiffs, Wallace and Calloway, allege that they continue to be homeless in Suffolk County, id., and, thus, could be covered by this program again. In other words, the injury that allegedly arises from this program is not only personal to these Plaintiffs, but also actually occurring and/or imminently bound to occur. Defenders of Wildlife,
Having alleged an “actual” and/or “imminent” injury that is “concrete and particularized,” id., these Plaintiffs have established the injury-in-fact element with respect to the County’s trailer program. These Plaintiffs have also established the causation and redressability elements, because the cause of, and basis for redressing, the injury-in-fact is this program and
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs’ challenge to the County’s trailer program, with the exception of Plaintiff Tirado.
C. The State’s Motion to Dismiss
Having held that there is standing to substantiate the challenges to the registration requirements, residency restrictions, and trailer program at the pleading stage, the Court turns to the specific arguments for dismissal in Defendants’ respective motions, starting with the State’s motion.
1. Statute of Limitations
The State argues that, pursuant to Section 1983, the ex post facto claims—relating to (i) the original and current State registration requirements and (ii) the State residency restrictions—started to accrue when these requirements and restrictions took effect. Thus, the claims brought against the State in 2012—six years after the last effective date of these requirements and restrictions—are time-barred based on the applicable three-year statute of limitations. (State Br., at 14-16.)
Indeed, the applicable statute of limitations for Section 1983 claims is the State’s “general or residual statute of limitations governing personal injury actions,” which is three years. Owens v. Okure,
However, an exception to the ordinary accrual rule exists, one that several other Circuits have recognized and this Circuit has not expressly rejected: the clock on any challenge to the constitutionality of a statute, whose continued application works an ongoing constitutional violation, starts to run anew, every day that the statute applies. The accrual exception-embraces the idea that “continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations.” Va. Hosp. Ass’n v. Balites,
In Kuhnle Brothers, Inc. v. County of Geauga,
[The law] barred [the plaintiff] from using the roads in question on an ongoing basis, and thus actively deprived [theplaintiff] of its asserted constitutional rights every day that it remained in effect. A law that works an ongoing violation of constitutional rights does not become immunized from legal challenge for all time merely because no one challenges it within two years of its enactment. ...
[The plaintiff] suffered a new deprivation of constitutional rights every day that [the law] remained in effect[.] ... Since the last alleged deprivation occurred less than two years before [the plaintiff] filed its complaint, [the plaintiffs] action is not time-barred.
Id. at 522. See also Maldonado v. Hams,
The Court adopts the accrual exception recognized in the above-cited cases. Even under this more expansive approach, however, some of Plaintiffs’ claims regarding the State’s sex offender regime must be dismissed. The original State registration requirements became effective in 1996 and stayed in effect until their amendmеnt in 2002. See supra Section I.B.l. Accordingly, any claim challenging these requirements began to accrue no later than 2002, and should have been brought within three-years, not ten years, thereof.
The accrual exception, however, salvages Plaintiffs’ claims challenging the State’s current sex offender regime. Although the current State registration requirements and residency restrictions took effect more than three years before this case was filed, they remain in effect today. See supra Sections I.B.l & I.B.2.Í. These claims are continually accruing, and, thus, their statute of limitations has not begun to run.
Therefore, based on the accrual exception, the Court declines to dismiss, as time-barred, the ex post facto claims challenging the current State registration requirements and residency restrictions, but dismisses the claim challenging the original State registration requirements.
2. Eleventh Amendment Immunity
The State also argues that the Eleventh Amendment immunizes it from the ex post facto claims for “monetary, injunctive and declaratory relief.” (State Br., at 12-13 (emphasis added).)
Eleventh Amendment immunity ultimately shields the State from any federal lawsuit against it “in its own name regardless of the relief sought,” unless “[it] has waived its Eleventh Amendment immunity or Congress has overridden it.” Graham,
Ordinarily, the same immunity extends to State officials sued in their official capacities. See Pennhurst,
Here, the State has Eleventh Amendment immunity from the ex post facto claims against it, which are dismissed in their entirety. However, given the official-capacity exception to Eleventh Amendment immunity, Plaintiffs could simply amend the Wallace Complaint to name specific officials of the State, against whom those claims, insofar as they seek prospective injunctive or declaratory relief, can be asserted without the shield of immunity. Logically, such officials would be individuals who have implemented the State statutes that supposedly violate the Constitution, ie., its registration requirements and residency restrictions. See CSX Transp., Inc. v. N.Y. Office of Real Prop. Servs.,
Therefore, the Court dismisses Plaintiffs’ ex post facto claims against the State based on its Eleventh Amendment immunity. Because these claims could have been brought against State officials who enforce the State’s sex offender regime, and the Wallace Complaint could be so amended, the Court proceeds to consider the State’s other asserted grounds for dismissal.
3. Failure to State a Claim
The State argues that Plaintiffs fail to plausibly allege that the current State registration requirements
The Ex Post Facto Clause prohibits any “penal statute!]” that applies “retroactively,” ie., that either (i) “makes an action done before the passing of the law, and which was innocent when done, criminal!,] and punishes such action”; (ii) “aggravates a crime, or makes it greater than it was, when committed”; (iii) “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”; or (iv) “alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Collins v. Youngblood,
In the context of “restrictive measures on sex offenders,” the Supreme Court, in Smith v. Doe,
i. Ex Post Facto Claim Relating to the Current State Registration Requirements
a. Retroactivity
Because the retroactive application of the current, ie., post-January 2006, State registration requirements is a necessary predicate to the ex post facto claim, the Court begins by ascertaining whether these requirements apply retroactively to Plaintiffs. Based on the information discussed supra at Sections I.A & I.B.l, it appears that these requirements retroactively impose a longer, lifetime duty on Plaintiffs Wallace, Tirado, and McLaurin, and deny the right to petition for relief to Plaintiffs Blunt, Calloway, Colon, Geoffrion, and McLaurin. The only Plaintiffs to whom these requirements do not apply retroactively are Plaintiffs Aiello and Factor, who committed their offenses one to two years after these requirements took effect in 2006. See supra Sections I.A & I.B.l.
b. Non-Punitive Intent of the State Registration Requirements
In assessing whether a sex offender’s duty to register for life without the possi
Since Smith, countless federal courts, including this one, have rejected similar ex post facto challenges to sex offender registration requirements. See, e.g., Anderson v. Holder,
Although the Second Circuit has not opined on the State registration requirements, as applied to risk-level two and three sex offenders,
While the Court could find, based on the abundance of clear and consistent precedent, that the current State registration requirements do not violate the' Ex Post Facto Clause, the Court nonetheless conducts its own analysis of these requirements, using the framework established in Smith and applying the Second Circuit’s reasoning in Pataki.
First, the legislative intent behind the current State registration requirements is nonpunitive. In 2006, the current requirements replaced the old ones as part of SORA, an act whose original aims in codifying these requirements were public protection and the improvement of law enforcement with respect to the “dangers posed by convicted sex offenders” after their release. Id. at 1285. Like the preamble to the original SORA legislation, the preamble to the legislation enacting the current requirements also indicated that these requirements are intended to “enhance public safety and provide better tracking and monitoring of sex offenders.” 2006 N.Y. Sess. Laws Ch. 1 (S.6409, A.9472), § 1. The expression of such non-punitive objectives “in the statutory text itself’ suffices to establish that the legislature, in enacting these requirements, did not intend for them to punish sex offenders. Smith,
Because the non-punitive legislative intent is borne out so expressly by the text of the enacting legislation for these requirements, the fact that the legislative history, or at least some of it, reflected oral “comments of some legislators” that evinced hostility toward sex offenders is not enough to implicitly contradict such intent. Pataki,
Nor do other “formal attributes” to the enactment negate the finding of non-punitive legislative intent. Smith,
c. Norir-Punitive Effect of the State Registration Requirements
No secondary factors suffice to counteract the non-punitive intent and purpose behind these requirements by clearly proving that they are punitive in effect. Id. at 92, 97,
Second, these requirements do not result in any “affirmative” restraint for purposes of punishment, in that they neither (i) impose the “paradigm[]” of imprisonment on sex offenders nor (ii) render sex offenders unable to “change jobs or residences.” Smith,
Third, the fact that these requirements happen to prevent future sex offenses— and, thus, serve the same deterrent function as criminal punishment—is inadequate to prove that these requirements constitute punishment. “Any number of governmental programs might deter crime without imposing punishment.” Smith,
Nor does the basis of these requirements on risk-level classifications that take into account a sex offender’s conviction mean that these requirements turn on the “extent of [the offender’s] wrongdoing” and, thus, like other punishments, seek retribution. Smith,
Finally, the State registration requirements are related and proportional, i.e., not excessive, in relation to their two non-punitive purposes. It is accepted that having sex offenders identify themselves through registration reasonably relates to the State’s interests in improving the ability of law enforcement to protect the public, where a “high rate of recidivism among convicted sex offenders” poses a real concern. Id. at 103,
In light of the relevant analytical framework and reasoning set forth in Smith and Pataki, Plaintiffs cannot plausibly allege any facts to establish the “clearest proof’ needed to overcome the State legislature’s non-punitive intent in enacting the current State registration requirements, or to “transform what has been denominated a civil remedy into a criminal penalty.” Smith,
ii. Ex Post Facto Claim Relating to the State Residency Restrictions
a. Retroactivity
As before, the threshold issue is retroactivity.. Among those with standing to bring the challenge to the State residency restrictions, only Plaintiff Blunt is subject to these restrictions retroactively: the commission of his offense occurred before these restrictions were introduced in 2005. See supra Sections I.A & I.B.2.Í. Plaintiffs Aiello and Factor, on the other hand, committed their offenses afterward. Id.
b. Norir-Punitive Intent of the State Residency Restrictions
Because Plaintiff Blunt’s claim survives on the issue of retroactivity, the Court now considers whether his claim establishes that these restrictions equate to punishment. Although the Supreme Court in Smith did not assess whether sex offender residency restrictions were nonpunitive in nature, its framework for evaluating ex post facto claims is equally instructive here. Nearly all federal courts to confront these claims have applied the framework from Smith and held that such restrictions
At the state level, only a single lower-level trial court in New York has concluded that these restrictions do not comport with the Ex Post Facto Clause, in part, due to the alleged punitive intent with which they were enacted. See Berlin v. Evans,
In determining whether the State residency restrictions are punitive, for purposes of the Ex Post Facto Clause, the Court is guided by Smith and the myriad of federal courts that have extended Smith’s framework to sex offender residency restrictions around the country.
The sponsor’s introductory statement for the amendments in 2005 to the State’s sex offender regime indicated that these amendments were intended “to protect the youngest and most vulnerable members of our society,” in view of the fact that sex offenders “pose the most risk to children.” Bill Jacket, L.2005, ch. 544 (A. 8894).
On their face, the State residency restrictions were intended to prevent certain individuals convicted of serious sex offenses from having access to children. The Supreme Court has reasoned that “an imposition of restrictive measures on sex
The remaining “attributes” of the legislation that instituted these restrictions, such as the “manner of [their] codification,” do not otherwise suggest that these restrictions were intended to punish sex offenders. Smith,
Even if these restrictions are extensions of probation or parole, they are, at most, nonpunitive conditions that merely attach to the alternative punishments and not punishments themselves. See Fischer,
Second, although the enacting legislation partly codified these restrictions in the New York Penal Law, or cross-referenced thеse restrictions with other provisions contained therein, see Berlin,
Furthermore, the appearance of these restrictions in an article of the New York Penal Law relating to probation, as well as an article of the New York Executive Law relating to parole, is equally consistent with their exclusive application to sex offender probationers and parolees, which, as stated above, supports a non-punitive purpose. Because these restrictions only apply in this manner, it makes sense that they are codified in sections on probation and parole. Such placement serves only to inform the affected individuals that they may be subject to these restrictions during that period of their release, and does not transform these restrictions into punitive measures. Accord Valentine,
c. Nonr-Punitive Effect of the State Residency Restrictions
The effect of the State residency restrictions, analyzed using the Smith factors, neither contradicts, nor transforms, their non-punitive intent and purpose. See Smith,
Additionally, banishment, as traditionally understood, entailed the inability to ever return to the place from which an individual had been banished. Smith,
Second, although the State -residency restrictions result in an “affirmative” restraint on convicted sex offenders (Am. Compl. ¶ 43), the degree of restraint imposed by these restrictions does not rise to the level of being punitive in effect. See Smith,
Third, to the extent that these restrictions promote deterrence, consistent with
Fourth, these restrictions themselves are not retributive in nature: they do not serve the “traditional aim[ ]” of punishing a sex offender for his “wrongdoing,” bub rather they regulate his “risk” to children. Smith,
While “any restraint or requirement imposed on those who commit crimes is at least potentially retributive in effect,” the “potentially retributive” effect of the State residency restrictions is incidental to the criminal punishment and not itself retributive. Miller,
The final inquiry, into the relationship and proportionality of the State residency restrictions to their intended purpose, also indicates that these restrictions are not punishment. See Miller,
Credible data, suggesting that “concerns” over the recidivism risk among convicted sex offenders might be misplaced or overstated (see Am. Compl. ¶ 33 (citing a study by the United States Department of Justice, alleging that “95% of new sex crimes are committed by people other than registered sex offenders”)
Having concluded that the State residency restrictions are reasonably related to their nonpunitive purpose of protecting children, the Court considers whether these restrictions are reasonably proportional with respect to achieving this purpose. See Smith,
The State residency restrictions apply to sex offender probationers and parolees convicted of an offense against a child under 18-yеars old, and all risk-level three sex offender probationers and parolees. N.Y. Exec. Law § 259—c(14); N.Y. Penal Law § 65.10(4-a). These restrictions, therefore, are limited in their application to two, possibly overlapping, populations of sex offenders that the legislature has assessed as presenting the severest threat to children. Notably, sex offenders in risk-levels one and two who have not committed an offense against a child are not subject to these restrictions. With respect to risk-level three sex offenders, although they might not have originally committed an offense against a child, their classification as a risk-level three entails an individualized determination that the offender, especially during his immediate release on probation or parole, poses the highest risk of re-offending against a child or adult victim. See Williams,
The same conclusion can be drawn about the application of these restrictions to sex offenders who have committed an offense against a child, even though it does not entail the same individualized determination. (Am. Compl. ¶41 & at 19.) Although these restrictions apply to any sex offender probationer or parolee whose crime involved a child, regardless of the offender’s risk-level, the fact that he was originally convicted of an offense against a child is adequate to justify this particular application. A conviction of such an offense demonstrates that the offender is capable of harming children and, thus, poses precisely the threat that these restrictions seek to neutralize, during the offender’s probation or parole. See Miller,
Accordingly, because the intent, purpose, and effect of the State residency restrictions are non-punitive, the Court dismisses, with prejudice, Plaintiffs’ ex post facto claim relating to these restrictions.
D. The Other Parties’ Motions to Dismiss
The Court now turns to the arguments for dismissal made by the County Defendants, the Town, and CHI.
1. Preemption Claims Regarding the County and Town Residency Restrictions
As an initial matter, the Court declines to consider Plaintiffs’ supplemental state law claims of preemption relating to the County and Town residency restrictions prior to addressing the ex post facto claims relating to these restrictions. In making this decision, the Court is mindful of the principle that “dispositive state law claims pendent to federal constitutional claims” should be decided first, where deciding the former would resolve the whole case “without reference to” the latter and, thus, entirely avoid “constitutional adjudication” when it is “not absolutely essential” to the ease. Hagans v. Lavine,
Here, however, resolution of the preemption claims would not be “dispositive” of the federal constitutional claims. Hagans,
Furthermore, as the Second Circuit recently confirmed in Carver v. Nassau County Interim Finance Authority,
2. Failure to State a Claim
i. Ex Post Facto Claims Relating to the County and Town Residency Restrictions
Like the State, the County Defendants and the Town contend that Plaintiffs have failed to state an ex post facto claim with respect to the County and Town residency restrictions, in light of the Supreme Court’s ruling and relevant framework in Smith. (See County Defs. Br., at 3-14; Epley Br., at 10.) The Court agrees.
a. Retroactivity
As an initial matter, all eight Plaintiffs with standing to challenge these restrictions—Plaintiffs Wallace, Aiello, Blunt, Calloway, Colon, Factor, Geoffrion, and McLaurin—are subject to their retroactive application, except that the County
b. Non-Punitive Intent and Effect of the County and To%m Residency Restrictions
For the most part, the Court’s reasoning as to the State residency restrictions, see supra Section II.C.3.Ü, applies equally to the County and Town residency restrictions, in support of the conclusion that these restrictions are not punitive in their intent, purpose, and effect. There are, however, three ways in which the analyses for these restrictions differ, thus warranting further discussion but the same conclusion.
(1) Legislative Intent
First, in terms of their non-punitive legislative intent, the County and Town residency restrictions stand on stronger footing than the State residency restrictions. In contrast to the State legislature, the County and Town legislatures “expressed,” on the face of the enacting legislation, a regulatory aim for adopting their own residency restrictions. Smith,
Because the County’s and the Town’s enacting legislation incorporated express statemеnts that they intended their residency restrictions to protect and not punish, the Court need not also look to the legislative history behind the enactments to impute such intent.
(2) Retributive Effect
Second, although the County and Town residency restrictions are not as narrowly tailored as the State residency restrictions, they are not retributive in nature. The County residency restrictions prevent any convicted sex offender who is required to register, pursuant to the State registration requirements, from living within a 1/4 mile of a school, nursery, licensed daycare, playground, amusement park, or the residence or place of employment of the offender’s victims. Cnty.Code §§ 745-2, 745-3. The Town residency restrictions prevent any risk-level two or three sex offender, subject to registration, from living within one mile of a school that does not transport students who live within one mile thereof, 2,000 feet of a school that
The application of the County residency restrictions to all convicted sex offenders might suggest a retributive effect. These restrictions, however, do not apply with equal, or even commensurate, force to all offenders. The duration of these restrictions depends on whether an individual is classified as a risk-level one sex offender required to register for 20 years, or a risk-level two or three sex offender required to register for life. See supra Sections I.B.1 & I.B.2.Ü. These restrictions apply only as long as a sex offender is required to register under the State’s sex offender regime, which, in turn, is based on an assessment of various factors, including but not limited to the offense for which the offender was convicted. See supra Section II.C.3.L Conceivably, a sex offender convicted of a more serious offense but assessed as a risk-level one offender could be subject to these restrictions for a shorter period of time than a sex offender convicted of a less serious offense but assessed as a risk-level two or three offender. In other words, the length of time for which these restrictions apply does not correspond directly with the “extent of [an individual’s] wrongdoing,” but rather to the “extent of [his] risk,” which, thus, weakens the inference that these restrictions are retributive. Smith,
Any retributive effect attributable to the County and Town residency restrictions is also undercut by the grandfather clauses contained in each, which exempt the prior-established residences of sex offenders otherwise required to comply with these restrictions. Cnty.Code § 745-4; Town Code § 215-3. In other words, these restrictions seek to avoid being retributive by depriving a sex offender of, or taking from him, his preexisting property rights based solely on his conviction. These clauses all but ensure that these restrictions will not be applied uniformly to convicted sex offenders who are identical in terms of. their offenses: one may be allowed to occupy a prior-established residence in a restricted area, while the other, absent such a residence, may be required to leave that area. The above scenario ultimately contradicts the suggestion that these restrictions “affix culpability” for “wrongdoing.” Smith,
(3) Proportionality
Compared to the State residency restrictions, the County and Town residency re
The County and Town residency restrictions are comparable to restrictions that other federal courts have found to satisfy the proportionality inquiry. See, e.g., Weems,
The fact that these restrictions apply for life to risk-level two and three sex offenders (Pis. Opp., at 20) does not render them disproportionate to their cause. On the contrary, it is reasonable for these restrictions to dovetail the lifetime registration requirement, because the registration requirement rests on the State’s determination that a risk-level two or three sex offender poses a perpetual threat of re-offending. This determination informs the County’s and Town’s decisions to restrict the offender’s residence for the same duration. Because the State registration requirements, and, by extension, the County and Town residency restrictions, rely on a “particularized risk assessment” to ensure that the “length and extent of’ such regulations are tailored to this end, they are “not excessive.” Weems,
Moreover, any excessiveness relating to the lifetime application of these restrictions to risk-level two and three sex offenders is further mitigated by the grandfather clauses exempting an offender’s prior-established residence. Snyder,
With respect to the County residency restrictions, their application to all convicted sex offenders, regardless of their risk-level (Am. Compl. ¶ 29 & at 19), does not render these restrictions disproportionate. See Snyder,
Rather, the same individualized risk assessment that imposes a lifetime registration requirement on risk-level two and three sex offenders and a 20-year registration requirement on risk-level one sex offenders throughout the State triggers the co-extensive and commensurate residency restrictions in the County and the Town. The fact that imposing such restrictions on risk-level one sex offenders might not be the “best choice” does not make it unreasonably disproportionate to the aim of protecting children. Smith,
The Supreme Court’s guidance in Smith is instructive:
The Ex Post Facto Clause does not preclude a State [or municipality] from making reasonable categorical judgments that conviction of specified crimesshould entail particular regulatory consequences. We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment.... The ... determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.
Finally, the more significant aspect relating to the effect of the County residency restrictions is that, as alleged by Plaintiffs, these restrictions have, at times, rendered, and are capable of rendering, them and other sex offenders homeless, see supra Sections II.B.2 & II.B.3. There is, however, no support for Plaintiffs’ allegation that these restriсtions directly cause forced or de facto homelessness among the County’s registered sex offenders. Plaintiffs do not allege that these restrictions leave offenders with practically no place to live within the County. (See, e.g., Am. Compl. ¶¶ 29, 43 (only alleging that the County residency restrictions “restraint] [registered sex offenders] from living in certain areas” and that these restrictions “oftentimes uproot[] offenders from their communities”) (emphasis added).) Nor can Plaintiffs allege as much. Among those with standing to challenge these restrictions, Plaintiffs Colon, Geoffrion, and McLaurin have registered primary residences in the County on the State’s sex offender registry website (Exs. E; G; H),
While Plaintiffs do not expressly allege that the Town residency restrictions also leave them and other sex offenders homeless, they do allege that these restrictions amount to ex post facto violations. (Am. Compl. ¶ 3.) As such, the Court similarly considers whether the effect of these restrictions, by creating a larger buffer zone around schools and child-related facilities within a smaller geographical area than the County, raise genuine concerns regarding forced or de facto homelessness
Having concluded that the County and Town residency restrictions are not so disproportionate in their effect as to cause the homelessness of registered sex offenders residing therein, the Court need not engage in further line-drawing as a constitutional matter. Whether narrower geographical restrictions than the ones currently imposed by the County and the Town would achieve a greater balance is an inquiry reserved for government officials or legislators, not the Court. See Miller,
In sum, although the analysis for the County and Town residency restrictions involves other considerations regarding legislative intent, retribution, and proportionality, the conclusiоn remains: like the State residency restrictions, the County and Town residency restrictions are not so punitive in fact as to plausibly overcome the non-punitive intent with which these restrictions were first enacted. Accordingly, the Court dismisses with prejudice the ex post facto claims relating to the County and Town residency restrictions.
a. Against the County
The County Defendants posit that Plaintiffs’ equal protection claim relating to the County’s trailer program should be dismissed under rational basis review. (Dkt. No. 69-8 (“County Defs. Reply”), at 1-2.) The Court agrees.
“Social and economic legislation ... that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.” Hodel v. Ind.,
Here, the claim is that the County established a trailer program which ultimately exposed homeless sex offenders to unequal living conditions, by providing them with less access to education, employment, therapy, and showers than “other free men.” (Am. Compl. ¶¶ 45-46.) This claim, as it stands, fails to allege any “fundamental rights” that the trailer program might have contravened. Hodel,
This claim also fails to allege that the trailer program involved “suspect classifications.” Hodel,
Absent allegations that the trailer program either infringed on “fundamental rights” or entailed “suspect classifications,” the equal protection claim is only subject to rational basis review. Hodel,
b. Against Roberts
Because the Court finds that Plaintiffs have failed to state an equal protection claim based on the County’s trailer program, it also concludes that Roberts, on behalf of CHI, could not, in fact, have committed, or conspired to commit, a violation of the Equal Protection Clause by furnishing transportation to the County trailer site. See, e.g., Spear v. Town of W. Hartford,
Accordingly, the Court dismisses with prejudice the entirety of the equal protection claim.
3. Pendent Jurisdiction
Having dismissed the federal constitutional claims over which it had original jurisdiction, the Court declines to assert pendent jurisdiction over the supplemental state law claims of preemption with respect to the County and Town residency restrictions. See 28 U.S.C. § 1367(c)(3) (providing that “district courts may decline to exercise supplemental jurisdiction,” if “the district court has dismissed all claims over which it has original jurisdiction”). “It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right.... Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs,
Furthermore, where, as here, the supplemental state law claims “raise[] a
Accordingly, in the Court’s discretion, the preemption claims are dismissed without prejudice.
III. Conclusion
The Court, therefore, GRANTS Defendants’ motions in Wallace. Plaintiffs’ ex post facto and other federal constitutional claims are DISMISSED vnth prejudice, and their state law preemption claims are DISMISSED without prejudice. The Clerk of the Court is directed to enter judgment accordingly.
Notes
. This matter is comprised of 15 other separately-filed lawsuits that have been consolidated with the lead case, Wallace: 13-CV-154, 13-CV-1301, 13-CV-1303, 13-CV-1310, 13-CV-1501, 13-CV-1503, 13-CV-1504, 13-CV-1505, 13-CV-1506, 13-CV-1631, 13-CV-1633, 13-CV-1634, 13-CV-1636, 13-CV-2646, and 13-CV-2647. Briefing on motions to dismiss in these consolidated cases was stayed pending the resolution of the Wallace motions to dismiss.
. The Amended Complaint in Wallace (the "Wallace Complaint”) also names the Commissioner of the New York State Department of Social Services as a Defendant. (Am. Compl., at 1.) The Court accepts as true the State’s representation, which Plaintiffs do not dispute, that, as of 1997, that department ceased to exist. (Dkt. No. 79-1 (“State Br.”), at 1 n. 1.) The New York State Department of Social Services, therefore, is dismissed from this case.
. The caption on the docket suggests that Westergaard is being sued individually and in her official capacity; the Wallace Complaint, however, indicates that Westergaard is being sued only in her official capacity (see Am. Compl. ¶ 45 ("Ms. Westergard [sic] has acted in her official capacity[.]”)). The Clerk of the Court should amend the caption accordingly.
The official-capacity claim against Wester-gaard is, substantively speaking, a claim against the County DSS. See Ky. v. Graham (“Graham"),
.The parties believe that the County DSS and its former commissioner, Gregory Blass, in his official capacity, are named separately in the Wallace Complaint. (Dkt. No. 69-4 ("County Defs. Br.”), at 1; see also Dkt. No. 67 ("Pis. Opp.”), at 1, 6 (referencing the "[Suffolk County] Department of Social Services” as one of the "named defendants,” and alleging that "[t]he Department of Social Services, by and through its former Commissioner Gregory Bias [sic] implemented Suffolk Coun
. The caption on the docket suggests that Epley is being sued individually and in his official capacity; although the Wallace Complaint does not provide any contrary indication that Epley, like Westergaard, is being sued only in his official capacity, Plaintiffs’ opposition brief does {see Pis. Opp., at 2 (characterizing the ex post facto claim as against ”[t]he Town of Southampton by and through its mayor, Mark Epely [sic]”) (emphasis added)). See Graham,
Because the claim against Epley is an official-capacity claim, it ought to be construed as a claim against the Town. See supra note 3; see also Schubert v. City of Rye,
A separate, though related, issue is that Plaintiffs mistakenly name Epley as the May- or of the Town, rather than the Mayor of the Village of Southampton. (Dkt. No. 68-7 ("Epley Br.”), at 1 n. 1.) Even if this is the case, Plaintiffs plainly intended to name the individual in charge of the Town, in his official capacity. Were Plaintiffs to correct the mistake by amending the Wallace Complaint, their claim would still be an official-capacity claim with respect to the Town. Cf. Delgado-Brunet v. Clark,
. Contraiy to what the parties believe {see Epley Br., at 1; Pis. Opp., at 1), the Southampton Town Police was terminated as a Defendant on November 28, 2012, according to the docket. Assuming the Southampton Town Police is still a Defendant, it should be dismissed from this case, because it is an administrative arm of the Town, incapable of being sued separately. See, e.g., Santos v. Zabbara,
. Under the State’s sex offender regime, convicted sex offenders are assigned a risk-level of one, two, or three (from least to greatest risk), based on a set of factors, including the offense for which they were convicted. N.Y. Correct. Law § 168—Z.
. The information on this website, of which the Court takes judicial notice, is appended to the Court's decision as Exhibits A-I, because it may later become unavailable. See Adam Liptak, In Supreme Court Opinions, Web Links to Nowhere, N.Y. Times, Sept. 23, 2013 (reporting on the issue of “ephemeral” citations to internet sources, rather than citations to “static, permanent sources,” and noting that the Ninth Circuit retains an archive of internet citations “in the PDF format”).
. The towns in Suffolk and Nassau Counties are comprised of multiple villages, such as Ronkonkoma in the Town of Islip, Suffolk County. Some villages straddle more than one town, such as Holbrook in the Towns of Islip and Brookhaven, Suffolk County.
. At the May 13, 2014 oral argument, Plaintiff Wallace alleged that, despite any address that he might have listed or registered, he has remained, in effect, homeless in Suffolk County. (Transcript of Oral Argument, dated May 13, 2014 ("Oral Argument Tr.”), at 9:18-10:11.)
. Like Plaintiff Wallace, Plaintiff Calloway, who also appeared for the May 13, 2014 oral argument, alleged that he is effectively homeless in Suffolk County. (Oral Argument Tr., at 11:10-12:13.)
. The Clerk of the Court is directed to amend the docket accordingly.
. The Clerk of the Court is directed to amend the docket accordingly.
. As presently defined, a “sexually violent offense" includes, among other things, a conviction for any offense under N.Y. Penal Law §§ 130.35, 130.65, 130.75.
. See also Williams v. Dep’t of Corr. & Cmty. Supervision {'‘Williams ”),
. One-quarter mile is equivalent to 1,320 feet.
. Defendant CHI, which is not named in Wallace, and Defendant Roberts also filed a fully-briefed joint motion to dismiss in one of the consolidated cases (13-CV-154). (Dkt. No. 73.) The Court will address that motion in a separate decision.
. As the dismissal of Plaintiffs' claims will make clear, there is no indication that Plaintiffs have any "claim that [they] inadequately or inartfully pleaded” in the Wallace Complaint, such that a plausible one "might be stated” with additional facts. Cuoco, 222 F.3d at 112 (quotations omitted). For instance, even if Plaintiffs allege facts to overcome the standing or Eleventh Amendment immunity issues, they cannot sufficiently allege the claimed constitutional violations. See infra Sections II.C & II.D.
. According to Plaintiffs, these requirements also indirectly result in "financial and emotional consequences,” such as the inability to find employment or threats by others in the community, based on one's status as a registered sex offender. (Am. Compl. ¶¶ 20, 24-26.)
. As to whether these requirements apply to Plaintiffs retroactively, this issue constitutes part of their ex post facto claim, and not their standing to challenge these requirements in the first place. See Flast,
. As alleged, only the inability to reside in certain areas, based on the County residency restrictions, have injured Plaintiffs by previously rendering them homeless. (See Am. Compl., at 20 (“forced homelessness of the
. Plaintiffs also allege that these restrictions incidentally result in other "social disadvantage[s]" for sex offenders, such as the inability to interact with others in the community. (Am. Compl. ¶ 29.)
. The concept of "use” included “studying” or “work[ing] with” an animal. Defenders of Wildlife,
. Although not raised by the State, the Court notes that another argument supporting the dismissal of Plaintiffs' Section 1983 claims against the State is that “a State is not a 'person' within the meaning of § 1983.” Will v. Mich. Dep’t of State Police,
. The Court construes the State’s res judica-ta and collateral estoppel arguments, premised on its allegation that Plaintiffs' ex post facto claim and related issues were already litigated “within the Doe v. Pataki cases” (State Br., at 16-17), as an argument that Pataki precludes the ability of Plaintiffs to plausibly state a claim regarding the current State registration requirements. While the res judicata and collateral estoppel arguments could have applied to the already-dismissed claim about the original requirements, Pataki did not involve identical claims or issues with respect to the current requirements. See Doe v. Pataki,
. Indeed, the New York Court of Appeals has concluded that these requirements, along with the risk-level classifications on which they rely, are "nonpenal consequences that result from the fact of conviction for certain crimes.” People v. Gravino,
. The Second Circuit, however, recently rejected an ex post facto challenge to the State registration requirements, as applied to ris/clevel one sex offenders. See Doe v. Cuomo,
. Although the Wallace Complaint only raises an ex post facto claim relating to the registration requirements, Plaintiffs, at the end of their opposition brief, appear to add a claim relating to the notification provisions associated with these requirements. (See Pis. Opp., at 21-22.) Insofar as Plaintiffs are now pursuing such a claim, the Court adopts the reasoning in Smith and Pataki, concluding that the public notification of a sex offender’s registration is not punishment. See Smith,
. Several courts were presented with, but declined to address, these claims. See King v. McCraw,
. See also Weems v. Little Rock Police Dep’t.
. To date, the Second Circuit has not directly addressed an ex post facto claim regarding the State residency restrictions.
. Neither the New York Court of Appeals, nor the Appellate Division, has ruled on an ex post facto challenge to the State residency restrictions. The decision in Berlin was never reviewed by either court, because the appeal was abandoned after the plaintiff passed away. See Berlin v. Evans,
. By contrast, the 2006 legislation enacting the current State registration requirements stated that one purpose of these requirements was to protect the public. 2006 N.Y. Sess. Laws Ch. 1 (S.6409, A.9472), § 1.
. While the "isolated statements” of other individual legislators—and, more so, non-legislators.—contained within the legislative history cannot establish legislative intent, Pataki,
.Plaintiffs appear to concede that the legislative history behind the State residency restrictions reflects a regulatory aim to protect children from convicted sex offenders. (See Am. Compl. ¶ 23.)
. See also Snyder,
. Even if the legislature could have minimized such contact without restricting the residence of sex offenders near schools, the “lack[][of] a close or perfect fit with the non-punitive aims [these restrictions] seek[] to advance” does not defeat their "rational connection.” Smith,
. Although the accuracy of Plaintiffs’ representation about the Department of Justice’s study does not affect the above reasoning, it appears that Plaintiffs mistakenly translated the 5.3% “re-offense rate” among convicted sex offenders, documented in the study, to mean that "95% of new sex crimes are committed by people other than registered sex offenders.” (Am. Compl. ¶ 33); see Cunningham,
. Of course, however, if there, in fact, exists credible data indicating a low rate of recidivism among convicted sex offenders, that would be a factor that the State and municipal legislatures could consider in evaluating the efficacy of, and reconsidering the need for, the sex offender residency restrictions. See Miller, 405 F.3d at 715 ("The legislature is institutionally equipped to weigh the benefits and burdens of various distances [for sex offender residency restrictions], and to reconsider its initial decision in light of experience and data accumulated over time.”) (emphasis added).
. As with the State residency restrictions, Plaintiffs again appear to concede that a non-punitive intent prompted the County and Town residency restrictions. (See Am. Compl. ¶ 27.)
. Under its sex offender regime, the State “establish[es] and maintain[s] a file of individuals required to register,” including information on their "home address and/or expected place of domicile.” N.Y. Correct. Law § 168-b.
. These statistics on the State's sex offender registry website, appended as Exhibit J, are also judicially-noticeable information, because they are based on the other information of which the Court has already taken notice. See supra Section I.A & note 8.
. The Court takes judicial notice of the Town’s map, which was produced in response to the Court's request during the May 13, 2014 oral argument, as a depiction of the habitable geographical areas that are, and are not, covered by the Town residency restrictions. Cf. Boyce Motor Lines, Inc. v. U.S.,
. The geographical area of the Town is approximately 140 square miles in total, but 52 square miles are uninhabitable by anyone. (Dkt. No. 94-1.)
. In a letter submitted by the Town after its production of the map, it acknowledged that 1.5% of the habitable land lies on the Shinne-cock Indian Nation reservation, and is, thus, only habitable by members of the Shinnecock Indian Nation. (Dkt. No. 96); cf. W. Mohegan Tribe & Nation,
. Indeed, the County and Town legislatures may wish to “reconsider” the application of their residency restrictions, the scope and complexity of which make it difficult for registered sex offenders to find suitable places to live within those jurisdictions. Miller,
. To the extent that Plaintiffs vaguely allude to claims that the State, County, and Town residency restrictions violated "substantive due process” (Am. Compl. ¶ 44), such claims are also unavailing. With respect to such claims, there are no "fundamental liberty interests” implicated by these restrictions, which warrant strict scrutiny. Reno v. Flores ("Flores ”),
First, although Plaintiffs reference the right to "live wherever they so choose” (Am. Compl. ¶ 23), this right is not fundamental to our constitutional order. See Stone v. Pamoja House,
Therefore, these restrictions are solely subject to rational basis review, pursuant to which the Court has already concluded that these restrictions are reasonably related to a legitimate purpose. See supra Sections II.C.3.ii & II.D.2.i; Flores,
. Tellingly, Plaintiffs do not even address the equal protection claim in their opposition brief. Rather, with respect to the County's trailer program, Plaintiffs vaguely allude, for the first time, to the claim that the trailer program, which was “physically located” on the secured grounds where “the county jail was also located,” constituted false imprisonment in violation of the Fourth Amendment. (Pis. Opp., at 6.) Such a claim is also unavailing. There is no indication that homeless sex offenders, who had nowhere else to go, "did not consent” to receiving shelter through the trailer program, which required them to set foot on prison grounds. Shain v. Ellison,