Case 2:11-cv-01027-WKW-CSC Document 1 Filed 12/02/11 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT
FORTHE r.
MIDDLE DISTRICT OF ALABAMA

MICHAEL A. MCGUIRE, PLAINTIFF,

H--'-
Case No2.)_tJCAi\D23
Demand for Jury Trial

V. CITY OF MONTGOMERY POLICE DEPARTMENT,

a municipal corporation of the City

of Montgomery, State of Alabama, KEVIN J. MURPHY, Chief of Police,

in his official and individual

capacities, DETECTIVE R.B. GORDON,

)

in her official and individual

capacities, DETECTIVE T.A. LACHANCE, in

her official and individual capacities, DETECTIVE R.L. DUCKETT, in her official

and individual capacities, DETECTIVE A.L ) SAVELL, in her official and individual capacities, MONTGOMERY COUNTY SHERIFF'S DEPARTMENT, a municipal

corporation of Montgomery County

of Alabama, D.T. MARSHALL, Sheriff of

Montgomery County, Alabama Sheriff's

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Office, in his official and individual capacities, LIEUTENANT LEIGH PERSKY, Deputy Sheriff of the Montgomery County, Alabama Sheriff's Office, in his official and individual capacities, COLONEL HUGH B. MCCALL, Director of the Alabama Department of Public Safety, in his official and individual capacities, LINDSEY CLEMENTS, Attorney of the Alabama Department of Public Safety, in her official and individual capacities, LUTHER STRANGE, Attorney General for the State of Alabama, in his official and individual capacities, United States Attorney General, ERIC HOLDER, in his official and individual capacities,
DEFENDANTS.
PLAINTIFF' S COMPLAINT PaND APPLICATION FOR INJUNCTIVE RELIEF
Complaint for Declaratory and Injunctive Relief and Damages
INTRODUCTION
Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, to obtain declaratory, injunctive and monetary relief to redress the injuries and damages he suffered, and continues to suffer, as a direct and proximate result of the conduct of Defendants that violated rights
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secured to him by the United States Constitution including, but not limited to, the Fifth and Fourteenth Amendments, in violation of 42 U.S.C. § 1983, as will more fully appear herein below.
Plaintiff also seeks attorney's fees and costs pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988.
JURISDICTION This action is brought pursuant to in both 42 U.S.C. § 1983 and 1988, as well as the Fifth and Fourteenth Amendments of the United States Constitution. Jurisdiction is founded on 28 U.S.C. § 1331 and 1343 and the aforementioned statutory and constitutional provisions. This Court has jurisdiction to grant the declaratory relief requested pursuant to 28 U.S.C. § 2201 and F.R.Cv.Pr. 57.
Venue lies properly in this Court pursuant to 28 U.S.C. §1391(b), because all named defendants reside in the same state, Alabama.
PARTIES 1. Plaintiff, Michael Atchison McGuire, is an individual, over the
age of 19 and a citizen of the State of Alabama. 2. Defendant, City of Montgomery Police Department is the primary law
enforcement body for the City of Montgomery, in the State of Alabama, with its principal place of business located at 103 North Perry Street, Montgomery, Alabama 36104.
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3. Defendant, Kevin J. Murphy, Chief of Police of the City of Montgomery Police Department, in the State of Pilabama, and is being sued in his official and individual capacities. Defendant Murphy may be served at his place of employment, City of Montgomery Police Department, 103 North Perry Street, Montgomery, Alabama 36104.
4. Defendant, Detective R.B. Gordon, is a detective with the City of Montgomery Police Department, in the State of Alabama, and is being sued in her official and individual capacities. 1-\t all times relevant in this matter, defendant Gordon was employed as a detective in the Criminal Investigations Division/Special Victims Unit. Defendant Gordon may be served at her place of employment, City of Montgomery Police Department, 103 North Perry Street, Montgomery, Alabama 36104.
5. Defendant, Detective T.A. LaChance, is a detective with the City of Montgomery Police Department, in the State of Alabama, and is being sued in her official and individual capacities. Pit all times relevant in this matter, defendant LaChance was employed as a detective in the Criminal Investigations Division/Special Victims Unit. Defendant LaChance may be served at her place of employment, City of Montgomery Police Department, 103 North Perry Street, Montgomery, Alabama 36104.
6. Defendant, Detective R.L. Duckett, is a detective with the City of Montgomery Police Department, in the State of Pilabama, and is being sued in her official and individual capacities. Pit all times relevant in this matter, defendant Duckett was employed as a detective in the Criminal Investigations Division/Special Victims
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Unit. Defendant Duckett may be served at her place of employment, City of Montgomery Police Department, 103 North Perry Street, Montgomery, Alabama 36104. 7. Defendant, Detective A.L. Savell, is a detective with the City of Montgomery Police Department, in the State of Alabama, and is being sued in her official and individual capacities. At all times relevant in this matter, defendant Savell was employed as a detective in the Criminal Investigations Division/Special Victims Unit. Defendant Savell may be served at her place of employment, City of Montgomery Police Department, 103 North Perry Street, Montgomery, Alabama 36104. 8. Defendant, Montgomery County Sheriff's Office, is the primary law enforcement body for the County of Montgomery, in the State of Alabama, with its principal place of business located at 115 South Perry Street, Montgomery, Alabama 36104. 9. Defendant, D. T. Marshall, Sheriff of Montgomery County, Alabama Sheriff's Office is being sued in his official and individual capacities. Defendant Marshall is the Chief Law Enforcement Officer of Montgomery County, in the State of Alabama. Defendant Marshall may be served at his place of employment, Montgomery County Sheriff's Department, 115 South Perry Street, Montgomery, Alabama 36104. 10. Defendant, Lieutenant Leigh Persky, is employed with the Montgomery County Sheriff's Office, and is being sued in his official and individual capacities. At all relevant times in this matter, defendant Persky was employed within the Administrative
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Division of the Montgomery County, Alabama Sheriff's Office with responsibility for processing and administering registration and monitoring of persons subject to the Alabama Community Notification Act. Defendant Persky may be served at his place of employment, Montgomery County Sheriff's Department, 115 South Perry Street, Montgomery, Alabama 36104. 11. Defendant, Colonel Hugh B. McCall, is the Director of the Alabama Department of Public Safety, and is being sued in his official and individual capacities. Defendant McCall may be served at his place of employment, Alabama Department of Public Safety, 301 South Ripley Street, Montgomery, Alabama 36104. 12. Defendant, Lindsey Clements, is an Attorney for the Alabama Department of Public Safety, and is being sued in her official and individual capacities. Defendant Clements may be served at may be served at her place of employment, Alabama Department of Public Safety, 301 South Ripley Street, Montgomery, Alabama 36104. 13. Defendant, Luther Strange, is the Attorney General for the State of Alabama, and is being sued in his official and individual capacities. Defendant Strange may be served at his place of employment, Office of the Attorney General, 501 Washington Avenue, Montgomery, Alabama 36104. 14. Defendant, United States Attorney General, Eric Holder, is being sued in his official and individual capacities. Defendant Holder may be served at his place of employment, U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001.
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15. All Defendants named herein were acting within the course and scope of their employment, and under color of Alabama and/or Federal law, for their respective governmental agencies at all relevant times hereto.
ADMINISTRATIVE REMEDIES 16. Plaintiff was denied any administrative remedies, whatsoever and
subjected to the Alabama Community Notification Act and the Sex Offender Registration and Notification Act before bringing his claims in this action. Plaintiff alleges he was not subject to the Alabama Act No. 507 (1967), the 1996 Community Notification Act, et. seq., or to the Sex Offender Registration and Notification Act at the time the original Complaint in this action was filed.
GENERAL FACTUAL ALLEGATIONS 17. Plaintiff, Michael Atchison McGuire (hereinafter "Plaintiff")
was convicted of sexual assault in the State of Colorado on or about May, 1986. On or about November 1989, Plaintiff was released from a Colorado prison, having served his prison sentence.
18. Plaintiff was not required to register as a sex offender by the State of Colorado.
19. At the time of Plaintiff's 1986 Colorado conviction, the State of Alabama's sex offender registration requirements were set forth in the Alabama Legislative Act No. 507 (1967) (See Plaintiff's Exhibit 1)
20. Alabama Act 507 (1967) was enacted to "prescribe the punishment for willful failure or refusal to so register" (emphasis added) 7

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21.

Plaintiff's 1986 conviction in Colorado constitutes final

judgment on the crime he committed.

22.

On or about Ipri1 14, 2010, Plaintiff, a disabled Veteran of

the United States Armed Forces, returned to his hometown of

Montgomery, Ilabama due to failing health, to live and work close to

his mother, who was 80 years old at the time, and to associate more

closely with the rest of his family, many of whom reside in

Montgomery, Ilabama.

23.

Plaintiff had previously heard of Ilabama's "tough sex offender

laws", and upon arrival to Montgomery, I-\labama on or about Ipril 14,
2010, Plaintiff immediately and voluntarily visited the Montgomery

Police Department to inquire about the "sex offender" laws, and to

confirm his belief that he was not subject to those laws, including

the registration and restrictions under the Ilabama Community

Notification Pict.

24.

On or about Ipril 14, 2010, upon arriving at the Montgomery,

Ilabama Police Department, Plaintiff was directed to the Criminal

Investigations Division, Special Victims Unit, where he encountered

Defendants Gordon, LaChance, Savell and Duckett ("Defendant

Detectives")

25.

In response to Plaintiff's inquiry with Defendant Detectives,

Plaintiff was questioned by the detectives about his past crimes,

the timeframe in which the crimes were committed and the State in

which he committed the crimes. Plaintiff cooperated with the

questioning and provided the requested information asked for by the

Defendant Detectives.

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26. After approximately an hour, Plaintiff asked Defendant

Detectives Gordon and LaChance if he could leave and if they would

call him or contact him by mail to inform him of their findings.

27.

Defendant Detectives would not allow Plaintiff to leave the

building, but required him to remain in a confined area of the

Special Victims Unit of the Montgomery Police Department. Plaintiff

avers that Defendant Detectives of the Montgomery Police Department

kept Plaintiff in custody for several hours.

28.

During the period in which Plaintiff was in custody, he was

placed in constant fear and intimidated by Defendant Detectives

Gordon, Lachance and Savell. Defendant Detective Gordon asked

Plaintiff, "Who said you could live there? You can't live there!"

(Referring to Plaintiff's mother's address where Plaintiff informed

the detectives he would reside in Montgomery)

29.

Defendant Detective Lachance told Plaintiff, "You broke federal

Law by moving from Colorado to Virginia and from Virginia to D.C.,

and that's a . felony". Defendant Detective Savell stated, "That's

Federal, we need to get the D.A. on him." Plaintiff was extremely

frightened by the verbal tactics of Defendant Detectives.

30.

Defendant Detectives Gordon, LaChance and Savell caused

Plaintiff to be fingerprinted, photographed and required Plaintiff

to register with the Montgomery Police Department as a sex offender.

(See Plaintiff's Exhibits 2 and 3)

31.

Detective Savell gave Plaintiff a copy of the then current

Alabama Sex Offender laws, which included living and work

restrictions, registration requirements, reporting duties, and said

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to him, "This is your Bible. Keep it with you at all times, because if you violate what's in your Bible, you will be charged with a felony." (see Plaintiff's xhibit 4).

32. After several hours in custody, Plaintiff was finally told he was

being released and was escorted to the Montgomery Police Department

exit by Defendant Detective Gordon.

33.

As Defendant Detective Gordon was escorting Plaintiff to the

exit, Plaintiff stated to Defendant Gordon, "Ma'am, all I wanted to

do was confirm that I was not supposed to be under Alabama Sex

Offender law. I don't want to do anything to break the law."

Detective Gordon responded, "You already broke Alabama law."

34.

Defendant Gordon then told Plaintiff, "You have five (5) days

to move from Darien Drive and find a compliant address. You must

report back to me in five days with your new address, and it better

be in a compliant area of Montgomery, or you will be arrested and

charged with a felony." (See Plaintiff's Exhibit 5)

35.

Defendant Detective Gordon further ordered Plaintiff to

register with the Montgomery County Sherriff's Department

immediately.

36.

Out of fear of being arrested for a felony, Plaintiff

desperately began searching for places he could live, while being

compliant with the Defendant Detectives explicit directives.

37.

Plaintiff had several telephone discussions with Detectives

Gordon and LaChance between April 15, 2010 and April 18, 2010, in

which Plaintiff inquired about the prospect of living at a minimum

of 20 (twenty) prospective residences, and was informed by

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Defendants Gordon and LaChance that Plaintiff could not live at

either, as the prospective homes were not compliant areas per the

A]abama Community Notification Act.

38.

Plaintiff returned to the Montgomery Police Department on or

about April 18, 2010 to express his concern that there was nowhere

for him to live in the City of Montgomery.

39.

Both Defendant Detectives Gordon and Lachance reviewed a map

of the City of Montgomery posted in the Special Victims Unit that

detailed a few parts of town in which, they told Plaintiff,

convicted sex offenders subject to the Alabama Community

Notification Act could reside.

40.

Defendant Detective Gordon suggested that Plaintiff move to

the Regency Inn, since many sex offenders had previously held

residency at that location.

41.

The Regency Inn is a motel located at 1771 Dickinson Drive

in Montgomery, Alabama, and was deemed to be in a compliant area of

the city in which sex offenders who were subject to the Alabama

Corrimnunity Notification Act could reside.

42.

Defendant Detectives Gordon and LaCharice reiterated that

Plaintiff was required to move imrimnediately or be charged with a

felony. During the April 18, 2010 meeting at the Montgomery Police

Department, Plaintiff requested from both Detectives Gordon and

Lachance "the due process hearing I am entitled to." Detective

Lachance informed Plaintiff that she "would arrange for your due

process hearing imnmnediately", pursuant to Plaintiff's request.

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43.

Plaintiff moved into the Regency Inn on or about April 27, 2010

and lived there until, July 19, 2010. (See Plaintiff's Exhibit 6).

44.

Plaintiff is a disabled veteran who currently lives on a fixed

income. After depleting all of his savings on living arrangements

at the Regency Inn, Plaintiff had to move, as he could no longer

afford to pay the weekly rental rates at Regency Inn. Plaintiff

could not find employment due to the work restrictions placed upon

him when he was subjected to the Alabama Community Notification Act.

Plaintiff moved to his current residence on July 20, 2010.

45.

On or about April 27, 2010, Plaintiff went to the Montgomery

County Sherriff's Department to provide information of his compliant

address as ordered by Defendant Detectives of the Montgomery Eolice

Department.

46.

On or about April 27, 2010, Plaintiff met with Defendant

Lieutenant Persky, of the Montgomery County, Alabama Sherriff's

Office. Defendant Persky interviewed Plaintiff and recorded the

details of Plaintiff's 1986 conviction, provided by Plaintiff.

47.

Defendant Persky told Plaintiff that he was required to comply

with Alabama Sex Offender law and the Community Notification Act.

Defendant Persky had Plaintiff "processed" as a sex offender,

requiring Plaintiff to have his photograph, fingerprints, and DNA

taken.

48.

Plaintiff was issued a ''sex offender identification card" and

was told to keep the card on his person at all times. Defendant

Persky stated to Plaintiff, v1f you ever get stopped by the police,

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you must show them this card, or be charged with a felony". (See

Plaintiff's Exhibit 7).

49.

Defendant Persky instructed Plaintiff of his periodic in-person

registration requirements and informed Plaintiff that his Deputy

Sheriffs would periodically visit the address that he listed as his

residence. Defendant Persky told Plaintiff that if it was not

confirmed by his Deputy Sheriffs that the Plaintiff was living at

the place he listed as his residence, or the residence was not

compliant with the Alabama Community Notification Act, he would be

arrested and charged with a felony. Plaintiff was extremely

frightened by the verbal tactics of Defendant Persky.

50.

On or about June 25, 2010, P]aintiff complied with the

restrictions of the Alabama Community Notification Act by informing

the City of Montgomery's Police Department and the Montgomery County

Alabama Sherriff's Office of his change of address. Plaintiff did

so in fear of being arrested and charged with a felony. (See

Plaintiff's Exhibits 8-13)

51.

Plaintiff is unable to live with his wife of eleven years,

given that she is domiciled in the only home in which she and

Plaintiff could afford to pay rent from his fixed income. The home

in which Plaintiff's wife lives is in an area of the City of

Montgomery, Alabama deemed to be non-compliant for sex offenders

under the Alabama Community Notification Act. Plaintiff was and is

currently required to comply with the Alabama Community Notification

Act, or be charged with a felony.

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52. On or about May, 2010, Defendant Hugh B. McCall, Defendant

Lindsey Clements and the other named Defendants, individually and

collectively, caused Plaintiff's name, address, Colorado conviction

and other personal information to be released to one or more

entities, who published this information on the internet, and in

other media, labeling Plaintiff as a registered "sex offender". (See

Plaintiff's Exhibit 14)

53.

On or about May, 2010, Defendant Hugh B. McCall, Defendant

Lindsey Clements, Defendant United States Attorney General Eric

Holder and the other named Defendants, individually and collectively

have intentionally posted and intentionally caused to be posted,

Plaintiff's name, address and other personal information about

Plaintiff on the Alabama and Federal Registries for Sex Offenders,

labeling Plaintiff as a "sex offender". (See Plaintiff's Exhibits 15

and 16)

54.

On or about June, 2010, Defendant Hugh B. McCall and Defendant

Lindsey Clements caused a "community notification flyer" to be

distributed, by mail and other means, in and about the Montgomery,

Alabama area, for the purposes of warning the public of Plaintiff's

presence in Montgomery, Alabama, and labeling Plaintiff as a

convicted "sex offender". (See Plaintiff's Exhibit 17).

55.

Since April 14, 2010, Defendants individually and collectively,

have subjected Plaintiff to the onerous restrictions of the Alabama

Community Notification Act and to the Sex Offender Registration and

Notification Act ("SORNA"), without providing any notice or

opportunity for Plaintiff to be heard, or any process whatsoever,

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regarding the applicability of said Act, to Plaintiff. Plaintiff

has been required to register a total of four (4) times, since

returning home to Montgomery.

56.

Plaintiff waited eighteen (18) months to receive his due

process hearing, to no avail. Plaintiff was denied any process

whatsoever, notwithstanding the fact that the State of Alabama

currently has and at all times relevant to this matter had

administrative code that provides due process for persons convicted

of a purported sex crime in a foreign jurisdiction. (See

Plaintiff's Exhibit 18).

57. On or about October 15 2011, Plaintiff called the Department of

Public Safety to inquire about his due process hearing before an

Administrative Law Judge, as set for in Alabama administrative law

and supported by Attorney General opinions (See e.g., Plaintiff's

Exhibit 19)

58.

Plaintiff was informed that Defendant, Lindsey Clements was the

attorney employed with the Alabama Department of Public Safety

responsible for matters regarding his hearing and informed his

"hearing had already been denied".

59. On or about October 19, 2011, Plaintiff's attorney called

Defendant Lindsey Clements regarding her office's unilateral

determination to deny any process whatsoever with regard to

Plaintiff's 1986 foreign jurisdiction conviction, and to discuss

application of the Alabama Community Notification Act to Plaintiff.

60.

Plaintiff's attorney scheduled a meeting with Defendant

Clements. The meeting took place on October 20, 2011 at 2 p.m. at

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Defendant's Clements' office at the Department of Public Safety in

Montgomery, Alabama.

61.

During the meeting with Defendant Clements, Plaintiff's counsel

reviewed the facts of Plaintiff's Colorado offense, the timing of

the offense, and expressed Plaintiff's belief that Alabama Community

Notification Act was not applicable to Plaintiff. Defendant

Clements summarily dismissed any notion that Plaintiff's position

could be correct.

62.

Upon Plaintiff counsel's inquiry as to why a due process

hearing was not provided Plaintiff, Defendant Clements stated, "Our

office makes that determination, we denied his hearing and there is

nothing further we can do for him."

63. When Plaintiff's attorney asked Defendant Clements why

Plaintiff was not notified of the unilateral determination by

Alabama Department of Public Safety that no process was due,

Defendant Clements stated, "I notified the Montgomery Police

Department many months ago".

64. When Plaintiff's attorney reiterated that Plaintiff was not
notified of this determination, and has not been afforded an

opportunity to appeal the unilateral determination of no process

whatsoever, Defendant Clements said, "There is nothing else that can

be done. Alabama has had registration requirements since 1967. I

don't know what Colorado law is, but there is nothing else that can

be done. He is subject to the Alabama law."

65.

Plaintiff was required to register, once again by October 31,

2011 in compliance with the Alabama Community Notification Act.

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Prior to registering, Plaintiff learned of the recent changes in

Alabama law with regard to sex offenders. As a result, Plaintiff

called the Montgomery, Alabama County Sheriff's department on or

about October 29, 2011. Plaintiff was told that new law would

require Plaintiff to suffer additional restrictions under Alabama

Sex Offender law and the Alabama Community Notification Act.

66.

Specifically, in addition to the living, work and other

restrictions Plaintiff was already subjected to, Plaintiff would

have to relinquish his current Alabama driver's license for one

"labeled" with a specific designation for sex offenders. Plaintiff

would also be required to pay the State of Alabama a fee going

forward in order to properly maintain his compliant "status" as a

sex offender under the Alabama Community Notification Act, and in

order to avoid violation of the law.

67.

Plaintiff was arbitrarily and capriciously subjected to the

Alabama Community Notification Act and SORNA by named Defendants

herein, under the color and authority of Alabama State and Federal

law, without any type of hearing before a fair and impartial hearing

body and without any opportunity to be heard regarding the matter

before being so subjected.

68.

Plaintiff suffered stigmatizing consequences from being

labeled, identified and classified as a sex offender that imposed a

typical and significant hardship on him in relation to the ordinary

convicted criminals whose rights as citizens have been fully

restored, including, but not limited to, the following:

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(a) The loss of reputation and moral standing in the

estimation of his peers based upon Defendants

affirmative acts to stigmatize Plaintiff;

(b) The excitement of derogatory opinions against him that

caused his peers to hold him in contempt and caused him

to be in constant fear for his safety.

(c) The shame, mortification and humiliation of being

subjected to the onerous restrictions and affirmative

labeling of the Alabama Community Notification Act and

SORNA.

(d) The scorn, ridicule and contempt of his peers to which

sex offenders are subjected to in his community;

(e) The mandatory and automatic denial of citizenship

attendant to a full restoral of his rights as a United

States citizen, and a citizen of Alabama following the

service of his prison sentence and parole in a foreign

jurisdiction, and

(f) The consideration of the sex offender label,

identification and classification by the Defendant

McCall and all Defendants when determining the terms,

conditions and level of supervision to which he would be

subj ected.

69.

Since the arrest and intimidation that occurred at Montgomery

Police Department on April 14, 2010, and subsequent arrest and

intimidation at the Montgomery County Sheriff's Office, Plaintiff

sleeps for only brief moments at a time each night, constantly

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awakened with fears of being arrested and taken to jail by law

enforcement. Plaintiff does not engage in activity afforded the

average citizen in Alabama, fearing arrest by law enforcement.

70.

On or about October 30, 2011, Plaintiff filed a Temporary

Restraining Order and Preliminary Injunction in the Fifteenth

Judicial Circuit Court of Montgomery, Alabama, against defendants

named herein, seeking redress on the Defendants' violation of

procedure set forth in Alabama Administrative code.

71.

The Temporary Restraining order was granted October 30, 2011

and on or about November 16, 2011, ordered null and void as it did

not meet the requirements of Rule 65 of Alabama Civil Procedure.

The court further ordered a hearing on the matter, set for November

30, 2011.

72. On or about November 23, 2011, Defendant, Attorney General

Strange, through an employee Alabama Administrative Law Judge, sent

an Order and Notice of an Administrative Law Judge Hearing to

Plaintiff via his counsel, "...regarding DPS's proposed action, to

apply the offender notice requirements and restrictions, of the 1996

Alabama Community Notification Act..." to Plaintiff. The order also

states, "The hearing is being held based upon Mr. McGuire's right to

procedural due process." (See Plaintiff's Exhibit 20).

73.

Plaintiff avers that post-deprivation process is not effective.

Plaintiff submits that Defendants Attorney General Strange and

Defendant Hugh B. McCall's proposed post-deprivation hearing, set

for December 14, 2011, now being offered to Plaintiff is not a

gratuitous governmental accommodation.

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74.

Defendants, Attorney General Strange and Hugh B. McCall's

current attempt to provide a post-deprivation hearing constitutes explicit admission that process was due, and unilaterally denied

beginning on April 14, 2010 and ongoing, in violation of Plaintiff's

Constitutional rights.

It is indisputable that Plaintiff has

already been subjected to the classification of "sex offender" and

the attendant restrictions and requirements of the 1996 Alabama

Community Notification Act, as amended, and to SORNA.

75.

Plaintiff reasonably fears that, inherent in the proposed post-

deprivation hearing, there is necessarily actual bias on the part of

the Administrative Law Judge. The administrative body conducting the proposed post-deprivation hearing is the Alabama Attorney

General's office, a defendant in the Fifteenth Judicial Circuit

matter, and in this matter. The Judge presiding over the post-

deprivation hearing is employed by Defendant, Attorney General

Strange. Furthermore, the Alabama Attorney General's office serves

as counsel for Defendant Hugh B. McCall in the proposed post-

deprivation hearing.

76. On or about November 25, 2011, and in order to seek adequate

remedy for all of Plaintiff's colorable claims in this Court,

Plaintiff filed a motion to dismiss the action in the Fifteenth

Judicial Circuit, Montgomery, Alabama, without prejudice.

On

November 29, 2011, Plaintiff's Motion to Dismiss, without prejudice

was granted by the Fifteenth Judicial Circuit of Alabama. (See

Plaintiff's Exhibit 21).

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77.

Defendants, and each of them, were personally involved in the

wrongful labeling, identification and classification of Plaintiff as

a sex offender and/or the refusal to record or remove the sex

offender label, identification and classification; and each of them,

by, arresting, confining, intimidating and subjecting Plaintiff to

the onerous restrictions of the Alabama Community Notificat±on Act

and SORNA, acted with reckless disregard for the truth, with

deliberate indifference to Plaintiff's rights and with an utterly

intolerable callousness that was beyond all bounds of decency in a

civilized society.

78.

Plaintiff has been forced to incur reasonable attorneys fees

and costs in this action, including, but not limited to those

contemplated by 42 U.S.C. § 1988.

WHEREFORE, Plaintiff prays relief as is more fully enumerated below.
FIRST CLAIM FOR RELIEF (42 U.S.C. § 1983)
Deprivation of Plaintiff's Fifth and Fourteenth Amendment Due Process Rights Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 79. Plaintiff was denied and deprived of his right to due process of law, as guaranteed by the Fifth and Fourteenth Amendment of the U.S. Constitution, in violation of 42 U.S.C. § 1983, when

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Defendants, under the color of law, arbitrarily and capriciously labeled, identified and classified him as a sex offender, and subjected Plaintiff to the onerous restrictions of the Alabama Community Notification Act and the Sex Offender Registration and Notification Act without notice, a hearing before a fair and impartial hearing body and any opportunity to be heard, whatsoever. 80. Defendants have subjected Plaintiff to the onerous restrictions of the 1\labama Cortununity Notification Act and SORNA, without proving that he was in fact subject to the Acts, and without providing him with an opportunity to challenge the accuracy of their unilateral actions; all without legitimate or reasonable purpose or goal. 81. Defendants knew, or should have known, that their above-described conduct prior to providing Plaintiff due process violated rights secured to Plaintiff by the Fifth and Fourteenth Amendments of the U.S. Constitution, in violation of 42 U.S.C. § 1983. 82. Plaintiff suffered, and continues to suffer, injuries and damages as a direct and proximate result of the above-described conduct of Defendants, as will more fully appear at trial.
WHEREFORE, Plaintiff prays relief as is more fully enumerated below.
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SECOND CLAIM FOR RELIEF (42 U.S.C. § 1983)
DEPRIVATION OF LIBERTY
Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 83. Plaintiff was never subject to any form of the Alabama Community
Notification Act, as Act No. 507, enacted in 1967 was unconstitutional and repealed, and subsequent codified Acts were and are inapplicable to Plaintiff. 84. Plaintiff was convicted in the State of Colorado in 1986. Plaintiff was not required by the State of Colorado to register as a sex offender upon his release from prison. The Colorado conviction constituted a final judgment ten years before the State of Alabama codified the 1996 Alabama Community Notification Act, et. seq. 85. Furthermore, the 1996 Alabama Community Notification Act, at the time of enactment, was void of any mention of how, or even if it would be applied to persons convicted in a foreign jurisdiction. The 1996 Alabama Community Notification Act was not amended to add language addressing convictions in a foreign jurisdiction for purported sex crimes until 2005. Therefore, the 1996 Alabama Community Notification Act, as amended, is inapplicable as applied to Plaintiff.
23

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86. The Colorado final judgment that did not require Plaintiff to

register as a sex offender upon his release from prison and/or

parole was not offensive to Alabama law.

There was no

constitutional Alabama law requiring Plaintiff to register as a sex

offender at the time of Plaintiff's conviction.

87. Plaintiff is entitled to the protections of Article IV, Section 1

of the United States Constitution, which states, "Full Faith and

Credit shall be given in each State to the public Acts, Records,

arid judicial Proceedings of every other State."

88. By subjecting Plaintiff to the registration and personal

restrictions of the Alabama Community Notification Act, Defendants,

individually and collectively, under color of law, deprived

Plaintiff of his Constitutional protections under Article IV and

the Fourteenth Amendment of the United States Constitution, in

violation of 42 U.S.C. §1983.

89. By subjecting Plaintiff to the Alabama Community Notification

Act, Defendants, individually and collectively, under color of law,

deprived Plaintiff of his fundamental right to travel.

90. By subjecting Plaintiff to the Alabama Community Notification

Act, Defendants, individually and collectively, under color of law,

deprived Plaintiff of his fundamental right to marry.

91. By subjecting Plaintiff to the Alabama Community Notification

Act, Defendants, individually and collectively, under color of law,

deprived Plaintiff of his fundamental right to carry on familial

relationships.

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92. By subjecting Plaintiff to the Alabama Community Notification Act, Defendants, individually and collectively, under color of law, deprived Plaintiff of his fundamental right to free from affirmative stigmatization by defendants. WHEREFORE, Plaintiff prays relief as is more fully enumerated
below. THIRD CLAIM FOR RELIEF (42 U.s.c. § 1983)
VIOLATION OF PLAINTIFF'S RIGHT TO EQUAL PROTECTION Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 93. The sex offender registration, reporting and public dissemination
requirements of the Alabama Community Notification Act work an unequal result upon Plaintiff in a number of ways in violation of the Fourteenth Amendment of the United States Constitution. 94. Specifically, Plaintiff is being treated unequally by the State Alabama relative to all persons who had been found guilty of statutorily defined crimes, were released from or had completed prison and probation requirements in a foreign jurisdiction to the State of Alabama, whose rights as United States citizens have been fully restored, arid were not subject to to registration and permitting public disclosure as to their status, before valid statutes were enacted defining "sex offender" and further defining registration requirements.
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95. Plaintiff is being treated unequally under the laws of Alabama. 96. The Plaintiff has constitutionally protected interests in being
treated equally under the law and in not being subjected to unequal treatment without justification. 97. The Plaintiff's interest in such equal treatment arises from the Fourteenth Amendment of the United States Constitution. 98. The conduct of the Defendants arresting, detaining, requiring Plaintiff to register as a sex offender, requiring the Plaintiff to report as a sex offender, and disseminating information through the use of the Internet, as well as other methods of public notification, pursuant to the Alabama Community Notification Act, has treated and continues to treat the Plaintiff in an unequal manner as to others who are similarly situated, without legal justification or any factual basis for such unequal treatment, in violation of 42 U.S.C. §1983 and Plaintiff has no adequate remedy at law.
WHEREFORE, Plaintiff prays relief as is more fully enumerated be]ow.
FOURTH CLAIM FOR RELIEF
APPLICATION OF EX POST FACTO LAWS
Plaintiff hereby incorporates by reference all allegations contained in all nuithered paragraphs of this Complaint as if set forth fully here. 99. Plaintiff was convicted of sexual assault in 1986. The State of
Alabama's legislative Act 507 (1967), that set forth the
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registration requirements for sex offenders, who were convicted in a foreign jurisdiction, was unconstitutional. 100. The express language of the 1967 Act requiring sex offenders to register was "...to prescribe punishment for willful failure or refusal to so register." (Emphasis added) It is well settled, that legislative intent to employ a statute for the purpose of punishment of past crimes is unconstitutional, as it is an ex post facto law. 101. Defendants Department of Public Safety and Attorney General Strange now seek to provide a post-deprivation hearing to determine if the 1996 Alabama Community Notification Act, as amended is applicable to Plaintiff. 102. Since Alabama had registration requirements that were unconstitutional at the time of Plaintiff's conviction in Colorado, and Alabama did not enact subsequent legislation until 1996 which imposes criminality upon individuals subject to the Act that "knowingly fail to rogister", the 1996 Alabama Community Notification Act, et. seq., as applied to Plaintiff is per se, ex post facto and deprives Plaintiff of his Constitutional rights, in violation of 42 U.S.C. § 1983. 103. The United States Constitution protects criminal defendants against the ex post facto application of laws. Despite this protection, Defendants, Attorney General Strange, McCall, Clements, United States Attorney General Holder and the other Defendants have intentionally subjected Plaintiff to the subsequently created Alabama Community Notification Act of 1996 and/or SORNA after acknowledging a change in the law. Such actions by Defendants
27

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should preclude the application of qualified and sovereign, immunity, respectively, and should further relieve Plaintiff from these onerous conditions. 104. By requiring Plaintiff, under threat of criminal penalty, to endure more restrictions than required by the terms of his prison sentence and subsequent full restoral of rights as a United States citizen, Defendants, individually and collectively, under color of law, infringed upon Plaintiffs protection against the application of
ex post facto of laws.
105. The effective date of the Sex Offender Registration and Notification Act (SORNA") as to pre-SORNA predicate convictions is the statutory enactment date, July 27, 2006. SORNA makes it a crime to violate its registration requirements. The Act provides that a person who is (1) "required to register under" SORNA, (2) "travels in interstate or foreign commerce" or is a sex offender under federal, tribal, D.C., or U.S. territoria] law, and (3) "knowingly fails to register or update registration as required by [SORNA] shall be fined" and/or imprisoned for up to ten years. 18 U.S.C. § 2250(a). Since Plaintiff's conviction date was in 1986, the application of any registration requirements and the posting of Plaintiff's name, picture, address and any other information about Plaintiff to the Federal Sex Offender Registry, or prosecution of Plaintiff for failure to register are inapplicable as to Plaintiff,
as it is an ex post facto law. In subjecting Plaintiff to the
registration requirements and restrictions of SORNA, with ramifications of criminal prosecution, Defendant, United States
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Attorney General Eric Holder, applied an ex post facto law to Plaintiff, in violation of 42 U.S.C. §1983.
WHEREFORE, Plaintiff prays relief as is more fully enumerated below.
FIFTH CLAIM FOR RELIEF (42 U.S.C. § 1983) FALSE IMPRI SONMENT
Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 106. The Defendants, City of Montgomery Police Department, Detectives
R.B. Gordon, T.A. LaChance, R.L. Duckett, R.L. Savell, Montgomery County, Alabama Sheriff's Department and Defendant Leigh Persky, acting under color of law, caused the Plaintiff to be arrested, detained and imprisoned on and after April 14, 2010, even though they were devoid of any justifiable basis and lacked probable cause for said arrest, detention and imprisonment in violation of the Fourth Amendment of the United States Constitution. The Defendant Officers' and deputy sherrif's false imprisonment of the Plaintiff constituted an unlawful seizure. 107. The aforementioned actions of the Defendants proximately caused the Plaintiff to be deprived of his Fourth Amendment right to be free from arrest and imprisonment lacking probable cause and caused him to be unlawfully detained and imprisoned against his will, causing the Plaintiff damage, in violation of 42 U.S.C. §1983. The Plaintiff was aware of this unlawful detention and imprisonment.
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WHEREFORE, Plaintiff prays relief as is more fully enumerated

below.

SIXTH CLAIM FOR RELIEF

(42 U.S.C. § 1983) UNLAWFUL ARREST

Plaintiff hereby incorporates by reference all allegations contained

in all numbered paragraphs of this Complaint as if set forth fully

here.

108. The Defendants, City of Montgomery Police Department, Detect±ves

R.B. Gordon, T.A. LaChance, R.L. Duckett, R.L. Savell, Montgomery

County, Alabama Sheriff's Department and Defendant Persky, acting

under color of law did detain, arrest, fingerprint, and photograph

Plaintiff. Defendant Persky also took DNA samples from Plaintiff.

109. The aforementioned actions of the Defendants proximately caused

the Plaintiff to be deprived of his Fourth Miendment right to be

free from arrest and imprisonment lacking probable cause and caused

him to be unlawfully detained and imprisoned against his will,

causing the Plaintiff damage, in violation of 42 U.S.C. §1983. The

Plaintiff was aware of this unlawful detention and imprisonment. WHEREFORE, Plaintiff prays relief as is more fully enumerated

below.

SEVENTH CLAIM FOR RELIEF

(42 U.S.C. § 1983) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 110. Defendants, individually and collectively, and in their official capacities, under color of state law, intentionally and deliberately inflicted emotional distress on Plaintiff by maliciously prosecuting Plaintiff, or by abusing the lawful process by unlawful purpose, or by violating Plaintiff's constitutional rights, or by falsely arresting and imprisoning the plaintiff, by conspiring against Plaintiff, or by interfering with Plaintiff's civil rights by threats, coercion, or intimidation, or knew or should have known that emotional distress was the likely result of their conduct. 111. Defendants' conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community. 112. The actions of the Defendants were the cause of Plaintiff's distress. 113. Plaintiff is a reasonable man. 114. The emotional distress sustained by Plaintiff was severe and of a nature that no reasonable man could be expected to endure. 115. As a result of the Defendants' extreme and outrageous conduct, Plaintiff was, is, and, with a high degree of likelihood, will continue to be emotionally distressed due to the intentional exclusion. 116. Defendants City of Montgomery Police Department, Defendant Murphy, Defendant McCall, Montgomery County Sheriff's Department,
31

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and Defendant Marshall are also liable under the doctrine of
respondea t superior.
117. As a result of the Defendants' extreme and outrageous conduct, Plaintiff has suffered and will continue to suffer mental pain and anguish, severe emotional trauma, embarrassment, and humiliation. WHEREFORE, Plaintiff prays relief as is more fully enumerated below. EIGHTH CLAIM FOR RELIEF (42 U.S.C. § 1983)
ABUSE OF AUTHORITY
Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 118. This is a claim against all Defendants individually and
collectively, pursuant to 42 U.S.C. § 1983. 119. The actions of the Defendants were taken in concert concurrently
with one another, under color of law. The above-described actions subjected Plaintiff to a deprivation of rights and privileges secured to Plaintiff by the Fourth and Fourteenth Amendments of the Constitution of the United States as protected by 42 U.S.C. § 1983. 120. As a direct and proximate result of the above-mentioned unconstitutional acts of all Defendants, Plaintiff sustained severe mental anguish, emotional trauma, loss of consortium, loss of capacity for the enjoyment of life, loss of the ability to earn money in the future and other expenses. In addition, Plaintiff has incurred substantial expenses including attorneys' fees and costs.
32

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WHEREFORE, Plaintiff prays relief as is more fully enumerated

below.

NINTH CLAIM FOR RELIEF

(42 U.S.C. § 1983)

REFUSING OR NEGLECTING TO PREVENT

Plaintiff hereby incorporates by reference all allegations contained

in all numbered paragraphs of this Complaint as if set forth fully

here.

121. At all times relevant to this Complaint, Defendants Gordon,

LaChance, Savell and Duckett as police detectives, were acting under

the direction and control of Defendants Murphy and the City of

Montgomery, Alabama Police Department.

122. Defendant Persky, as deputy Sheriff, was acting under the

direction and control of Defendants Marshall and the Montgomery

County, Alabama Sheriff's Office.

123. Defendant Clements as Attorney for the Alabama Department of

Public Safety, was acting under the direction and control of

Defendant McCall.

124. Acting under color of law and pursuant to official policy or

custom, Defendants McCall, Marshall, Murphy, the Montgomery, Alabama

Police Department and the Montgomery County, Alabama Sheriff's

Office knowingly, recklessly, or with gross negligence failed to

instruct, supervise, control, and discipline on a continuing basis

Defendant police officers in their duties to refrain from:

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(a) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(b) unlawfully and maliciously arresting, imprisoning, assaulting and prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(c) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States by subjecting him to the onerous restriction of the Alabama Community Notification Act, and
(d) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities. 125. Defendants McCall, Marshall, Murphy, the Montgomery, Alabama Police Department and the Montgomery County, Alabama Sheriff's Office had knowledge or, had they diligently exercised their duties to instruct, supervise, control, and discipline on a continuing basis, should have had knowledge that the wrongs conspired to be done, as heretofore alleged, were about to be committed. Defendants McCall, Marshall, and Murphy had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with gross negligence failed or refused to do so. 126. Defendants McCall, Marshall, and Murphy, the Montgomery, Alabama Police Department and the Montgomery County, Alabama Sheriff's Office directly or indirectly, under color of law, approved or
34

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ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of Defendants police detectives, deputy sheriff and attorney heretofore described. 127. As a direct and proximate cause of the negligent and intentional acts of Defendants McCall, Marshall, and Murphy, the Montgomery, Alabama Police Department and the Montgomery County, Alabama Sheriff's Office as set forth in the paragraphs above, Plaintiff suffered loss of income and severe mental anguish in connection with the deprivation of his constitutional and statutory rights guaranteed by the Fifth and Fourteenth mendments of the Constitution of the United States and protected by 42 U.S.C. sec. 1983.
WHEREFORE, Plaintiff prays relief as is more fully enumerated below.
(42 U.s.c. § 1983) FAILURE TO TRAIN Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 128. The acts of the detectives of Defendants, Montgomery, Alabama Police Department as described above deprived Plaintiff of clearly established rights secured by the United States Constitution and laws of the United States, including but not limited to his Fourth and Fourteenth rmendment rights to not be arrested falsely and
35

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without probable cause; and not to be maliciously prosecuted, and to not be subjected to onerous restrictions of liberty. 129. The acts of the deputy sheriff of Defendants, Montgomery County, Alabama Sheriff's Department as described above deprived Plaintiff of clearly established rights secured by the United States Constitution and laws of the United States, including but not limited to his Fourth and Fourteenth Amendment rights to not be arrested falsely and without probable cause; and not to be maliciously prosecuted, and to not be subjected to onerous restriction of liberty. 130. The acts of the attorney of Defendant McCall as described above deprived Plaintiff of clearly established rights secured by the United States Constitution and laws of the United States, including but not limited to his Fourth and Fourteenth Amendment rights to not be arrested falsely and without probable cause; and not to be maliciously prosecuted, and to not be subjected to onerous restriction of liberty. 131. All of the actions undertaken by Defendants', as described in the preceding paragraphs of this claim for relief, officers, agents or employees, were under color of law and pursuant to the official custom, course and policy of said Defendants. 132. As a result of the unlawful and/or unreasonable and/or malicious attempt to deprive Plaintiff of his rights guaranteed to by the laws of the United States, the Defendants named in the above paragraphs of this claim for relief are each liable under 42 U.S.C. section 1983 because of a policy of custom of their respective agencies.
36

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133. Specifically, Defendant City of Montgomery, IUabama Police Department's policy-maker is the Police Chief, Defendant Murphy, and he delegates final policymaking authority of the police department to subordinate detectives who pursued de facto policies, practices and customs that were a direct and proximate cause of the unconstitutional arrest and detention of Plaintiff and the other deprivations described herein and were the moving force behind the deprivations Plaintiff suffered.
134. Defendant Montgomery County, Alabama Sheriff's Office's policymaker is the Sheriff, Defendant D. T. Marshall, and he delegates final policymaking authority of the Sheriff's department to subordinate deputy sheriffs who pursued de facto policies, practices and customs that were a direct and proximate cause of the unconstitutional arrest and detention of Plaintiff and the other deprivations described herein and were the moving force behind the deprivations Plaintiff suffered.
135. Defendant McCall is the Alabama Department of Public Safety's policy-maker, and he delegated final policymaking authority of the his department to an attorney who pursued de facto policies, practices and customs that were a direct and proximate cause of the unconstitutional prosecution of Plaintiff and the other deprivations described herein and were the moving force behind the deprivations Plaintiff suffered. These policies, practices and customs as applied to Defendants named in the preceding paragraphs of this claim for relief include:
37

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a. Defendants, through the highest ranking available supervisory personnel, or designee, approved of, acquiesced to and/or condoned the violations in general, thereby ratifying and approving the wrongful acts of their agents and employees in their respective governmental agencies. Specifically, decision-makers should not have allowed its agents and employees to seek and obtain Plaintiff's arrest and subject Plaintiff to the onerous conditions of the Alabama Community Notification Act in the course thereof. The Defendants, respectively, ratified the conduct of its subordinates and those actions therefore became policy.
b. Defendants named in the preceding paragraphs of this claim for relief failed, through knowing and/or reckless and/or deliberate and/or conscious indifference, to instruct, supervise, control and discipline, on a continuing basis, the duties of personnel and officials to refrain from unlawful actions leading to the arrest, intimidation and detention applied against Plaintiff. Specifically, Defendants do not train and/or instruct and/or control its officers properly because its officers would not otherwise seek and obtain Plaintiffs arrest, detention, to intimidate and to subject Plaintiff to the onerous restrictions under the facts of this case. These deficiencies were the moving force behind Plaintiff's claim.
c. Defendants named in the preceding paragraphs of this claim for relief failed to properly train its personnel
38

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despite actual knowledge of their deficiencies and/or through deliberate indifference to those deficiencies. Specifically, Defendants do not train and/or instruct and/or control its officers because its officers would not otherwise seek and obtain Plaintiff's arrest and subject Plaintiff to aforementioned onerous restrictions. The failure to train was the moving force behind Plaintiff's claim.
d. Defendants named in the preceding paragraphs of this claim for relief had the power to prevent or aid in preventing the commission of the aforementioned violations and could have done so by reasonable diligence.
e. Instead, Defendants knowingly, recklessly and with deliberate and/or conscious indifference failed or refused to correct the constitutional violations and/or tacitly approve such wrongs. WHEREFORE, Plaintiff prays relief as is more fully enumerated below.
DECLARATORY RELIEF Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here 136. Plaintiff brings this claim for declaratory relief under Federal Rule of Civil Procedure 57 and 28 U.S.C. §22Ol, 2202. 137. Plaintiff requests a declaratory judgment establishing that:
(a) Defendants were required to provide Plaintiff with notice and a hearing before a fair and impartial hearing body
39

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at which Defendants were required to prove he was subject to the Alabama Community Notification Act and/or SORNA before Defendants were permitted to subject Plaintiff to the onerous restrictions of said Acts;
(b) The failure of Defendants to provide him with notice and a hearing before a fair and impartial hearing body in which Defendants presented evidence to prove that Plaintiff was subject to the onerous restrictions of any form of the Alabama Community Notification Act and/or SORNA and before labeling and classifying him as a sex offender, deprived Plaintiff of his right to due process of law, as guaranteed by the Fifth and Fourteenth Imendments of the United States Constitution, in violation of 42 U.S.C. § 1983; and,
(c) Defendant, Attorney General Strange, through his employee, Administrative Law Judge, is now willing to provide a post-deprivation hearing at the request of the Defendant Hugh B. McCall. This action is dispositive that Plaintiff's constitutional right to due process was due on or about April 14, 2010, and summarily and unilaterally denied by Defendants, individually and collectively, depriving Plaintiff of his Constitutional right to due process, in violation of 42 U.S.C. § 1983. 138. The Plaintiff has suffered and will imminently suffer continuous harm due to the actions of the Defendants. WHEREFORE, Plaintiff prays relief as is more fully enumerated below.

Case 2:11-cv-01027-WKW-CSC Document 1 Filed 12/02/11 Page 41 of 46

INJUNCTIVE RELIEF

Plaintiff hereby incorporates by reference all allegations contained

in all numbered paragraphs of this Complaint as if set forth full

here.

Request for Preliminary Injunction

139. Plaintiff has and will suffer irreparable injury if Defendants

are not enjoined during the pendency of this lawsuit from subjecting

Plaintiff to the onerous restrictions and continuous affirmative

stigmatization attendant to the Alabama Community Notification Act,

as amended and of the Sex Offender Registration and Notification

Act. The nature of Plaintiff's injuries include a deprivation of

fundamental rights to travel, to marry, to carry on familial

relationships, to be free from affirmative stigmatization, and his

right to privacy. There is no adequate remedy at law for

Defendants' actions. {Sampson v. Murray, 415 U.s. 61, 88-89, 94 5.

Ct. 937, 952-53 (1974); Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 417 (4t Cir. 1999)}

140. There is a substantial likelihood that plaintiff will prevail on

the merits because Plaintiff was never subject to the 1996 Alabama

Community Notification Act and/or SORNA, and has already and/or

continues to be deprived of his constitutional rights to due

process, equal protection and from the application ex post facto

laws. {U.5. v. Microsoft Corp., 147 F.3d 935, 943 (D.C. Cir. 1998); DSC Comm Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5t Cir. 1996)}

141. The threatened harm to plaintiff outweighs the harm a

preliminary injunction would inflict on defendants. Specifically,

41

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the onerous restrictions of Plaintiff's fundamental liberties are outweighed by a enjoining the defendants' continuing affirmative deprivation of said liberties. {See Hoechst, 174 F.3d at 417; Microsoft, 147 F.3d at 943} 142. Issuance of a preliminary injunction is in the public interest because the effect that the preliminary injunction would have on the public interest will serve as deterrence for defendants and ensure that citizens are not arbitrarily and capriciously prosecuted, detained, arrested and subjected to onerous restrictions of liberty, without first, being provided Constitutional due process rights which are afforded citizens of the United States and of every State. 143. Plaintiff is willing to post a bond in the amount the court deems appropriate. 144. Plaintiff asks the court to set his application for preliminary injunction for hearing at the earliest possible time and, after hearing the request, issue a preliminary injunction against defendants.
Request for Permanent Injunction 145. Plaintiff respectfully requests this Court to set his application
for injunctive relief for a full trial on the issues in this application and, after the trial, to issue a permanent injunction against defendants as follows: 146. Issue a permanent injunction requiring Defendants to expunge from all the files and records of the State and Federal Registries for Sex Offenders and any other entities to which Defendants caused Plaintiff's information to be posted, any and all documents
42

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pertaining to or referencing in any manner the classification of Plaintiff as a sex offender and requiring those documents be provided to Plaintiff for destruction. 147. Permanently restrain Defendants from subjecting Plaintiff to any further requirements and/or restrictions, whatsoever, of the Alabama Community Notification Act of 1996, et. seq. 148. Permanently restrain Defendants from subjecting Plaintiff to any further requirements and/or restrictions, whatsoever, of the Sex Offender Registration and Notification Act ("SORNA") 149. Stay the administrative hearing proposed by Defendant Attorney General Strange, via his employee, the Administrative Law Judge, and Defendant McCall pending resolution this Court.
HERFORL Plaintiff prays relief as is more fully enumerated below.
DEMAND FOR JURY TRIAL Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 150. Defendants will please take notice that Plaintiff hereby demands a trial by jury on all issues in this matter.
PRAYER WHERZFORZ Plaintiff prays judgment against Defendants, and each of them, as follows: 1. For general and special damages in an amount to be more
precisely proven at trial;
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2. For permanent injunctive relief as described herein; 3. For declaratory relief as specifically requested herein; 4. For attorney's fees and costs of suit necessarily incurred; 5. For trial by jury; 6. For leave to amend this Complaint should additional facts
become known to Plaintiff; and 7. For such other and further relief as this Court may deem just
and appropriate in the premises.

Respectfully submitted this 2 day of December, 2011.
/ iidi7A

McGuire & Associates, LLC

31 Clayton Street

Montgomery, AL 36104

Office: (334) 517-1000

Fax:

(334) 517-1327

J

1

Gui e, ASB-8317-S69M

Attor ey for Plaintiff

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Case 2:11-cv-01027-WKW-CSC Document 1 Filed 12/02/11 Page 46 of 46

Index for Exhibits

McGujrc v. City of Montqomery et al

1.

Alabama Legislative Act No. 507 (1967)

2.

Copy of Mr. McGuire's 4/14/10 Registration

3.

Copy of Sexual Offender I.D. Card

4.

Copy of page 1 of the Alabama Corrimunity Notification Act given to

Plaintiff on 4/14/10

5.

Copy of Document given to Plaintiff by Defendant Gordan

6.

Mr. McGuire's registration record for Regency Inn

7.

Sex Offender I.D. Card given to Plaintiff by Defendant

Persky

8

Sex Offender Management Community Notification Tct

requirements given to Plaintiff by Montgomery County

Sheriff's office

9

Plaintiff's sex offender registration at Montgomery County

Sheriff's office on 6/25/10

10

Plaintiff's registration at Montgomery Police Dept. on

6/25/10

11.

Restrictions given to Plaintiff by Montgomery County

Sheriff's office

12.

Sex Offender I.D. Card given to Plaintiff by Montgomery

Count y Sheriff's office on 10/7/10

13

Sex Offender I.D. Card given to Plaintiff by Montgomery

Police Dept.

14

Internet posting caused by defendants

15

Internet posting on Alabama Department of Public Safety's

website

16

Internet posting on Federal Sex Offender website

17

Community Notification flyer distributed by Defendants

McCall and Clements

18.

Alabama Administrative Code r. 760-X-1--.21

19.

Attorney General's Opinion from June 11, 2008

20.

Order of Notice of Hearing

21.

Order granting Plaintiff's Motion to Dismiss

 
 Case 2:11-cv-01027-WKW-CSC Document 15 Filed 12/13/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE,

)

)

Plaintiff,

)

)

v.

) CASE NO. 2:11-CV-1027-WKW

)

CITY OF MONTGOMERY POLICE )

DEPARTMENT, et al.,

)

)

Defendants.

)

ORDER

Before the court is Plaintiff Michael A. McGuire’s Motion for Tem porary

Restraining Order (Doc. # 6). For the reasons discussed below, the motion is due to

be denied.

Plaintiff’s suit arises from his name being posted on the Alabam a “State and

Federal sex offender registries .” (Doc. # 6 ¶ 3.) Plain tiff alleges that Defendants

determined his sex-offender status “without notice” and “a hearing before a fair and

impartial hearing body” beforehis name was posted on the registries. (Doc. # 1 ¶ 79.)

After Plaintiff filed suit in an Alabam a state court, a post-deprivation hearing for

Plaintiff was set before an Alabama administrative law judge. Plaintiff now seeks to

enjoin the post-deprivation hearing, which is currently set for December 14, 2011.

Case 2:11-cv-01027-WKW-CSC Document 15 Filed 12/13/11 Page 2 of 3
A temporary restraining order may be issued without notice only if (A) specific facts in an affidavit ora verified complaint clearly show that immediate and irreparable in jury, lo ss, or dam age will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts m ade to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65(b)(1). A temporary restraining order also requires the same four elements as a prelim inary injunction, and the m ovant bears the burden of demonstrating that they are present. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). 1 Plaintiff has not dem onstrated the requirements for Rule 65(b) relief. First, Plaintiff has not shown that he will suffer im mediate and irrep arable injury if Defendants are given an opportun ity to respond to the m otion. Plaintiff argues that notice should not be given to Defendants because the administrative law judge has been unwilling to stay the hearing and “previous efforts to stay the [postdeprivation hearing] have been fruitless.” (Doc. # 6 ¶ 10.) Plaintiff has not shown how the fact that the administrative law judge denied Plaintiff’s previous requests to
1 These four elements are “(1) a substantial likelihood of success on the merits, (2) a threat of irreparable injury, (3) that [movant’s] own injury would outweigh the injury to the nonmovant, and (4) that the injunction would not disserve the public interest.” Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir. 1999).
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stay the post-deprivation hearing demonstrates that Defendants should not be given an opportunity to be heard on this matter.
Second, Plaintiff has not dem onstrated that a tem porary restraining order is necessary to preven t irreparable injury. Plaintiff argues that he “has no adequate remedy at law because he wasdenied any ability to appealthe [D]efendants’ unilateral determination that the 1996 Community Notification Act, as amended, applie[d] to” him. (Doc. # 6 ¶ 5.) Plaintiff fails to identify an injury. Moreover, Plaintiff has been given the ability to appeal Defendants’ unilateral determination. A post-deprivation hearing for Plaintiff has been scheduled, the very hearing that Plaintiff now seeks to enjoin.
Third, Plaintiff’s counsel has failed to provide “specific facts inan affidavit or a verified complaint” showing irreparable injury will occur before Defendants can be notified. Fed. R. Civ. P. 65(b)(1)(A) (emphasis added).
Accordingly, it is ORDERED that the Motion for Tepmorary Restraining Order (Doc. # 6) is DENIED.
DONE this 13th day of December, 2011. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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 Case 2:11-cv-01027-WKW-CSC Document 74 Filed 02/09/12 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL A. McGUIRE,

)

)

Plaintiff,

)

)

v.

)

Civil Action No.:2:11-CV-1027-WKW

)

CITY OF MONTGOMERY, et al.,

)

)

Defendants.

)

THIRD AMENDED COMPLAINT AND MOTION FOR INJUCTIVE RELIEF AND

DECLARATORY JUDGMENT

INTRODUCTION

Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, to obtain declaratory, injunctive and

monetary relief to redress the injuries and damages he suffered, and continues to suffer, as a

direct and proximate result of the conduct of Defendants that violated rights secured to him by

the United States Constitution including, but not limited to, the Fifth and Fourteenth

Amendments, in violation of 42 U.S.C. § 1983, as will more fully appear herein below. Plaintiff

also seeks attorney's fees and costs pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988.

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JURISDICTION AND VENUE

1. Plaintiff files this Complaint and invokes the jurisdiction of this Court under and by virtue of

the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States, 42 U.S.C.

§ 1983, 42 U.S.C. § 1985, 42 U.S.C. § 1986, 42 U.S.C. § 1988, 28 U.S.C. § 1331, 28 U.S.C. §

1343, 28 U.S.C. § 2201, 28 U.S.C. § 2202, and the doctrine of supplemental jurisdiction to

obtain declaratory relief and compensatory and punitive damages. Defendants violated

Plaintiff’s rights as guaranteed by the Constitution of the United States, by Federal law, and by

the laws and Constitution of 1901 of the State of Alabama.

2. The violations of Plaintiff’s rights as alleged herein occurred in Montgomery County,

Alabama, and were committed within the Northern Division of the Middle District of the State of

Alabama.

PARTIES1

3. Plaintiff Michael McGuire (hereinafter, “McGuire” or “Plaintiff”) is over the age of 19 years,

and is and at all times material hereto was a citizen of the United States and the State of

Alabama, residing in Montgomery County, Alabama.

4. Defendant City of Montgomery (hereinafter, “City”) is a municipal corporation located in

whole or in part in Montgomery County, Alabama.

5. Defendant Kevin J. Murphy (hereinafter, “Murphy”), a better denomination of whom is

presently unknown to Plaintiff, is a natural person believed to be over the age of 19 years, is or

was at all times material hereto an employee, officer or agent of the City and is a person whose

conduct proximately and directly harmed Plaintiff. Murphy is the City of

1 All Defendants named herein were acting within the course and scope of their employment, and under color of Alabama and/or Federal law, for their respective governmental agencies at all relevant times hereto.
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Montgomery Police Chief, and is being sued in his official and individual capacities. 6. Defendant Todd Strange (hereinafter, “Mayor”), a better denomination of whom is presently unknown to Plaintiff, is a natural person believed to be over the age of 19 years, is or was at all times material hereto an employee, officer or agent of the City and is a person whose conduct proximately and directly harmed Plaintiff. Strange is the Mayor of the City, and is being sued in his official and individual capacities. 7. Defendant D.T. Marshall (hereinafter, “Marshall”), a better denomination of whom is presently unknown to Plaintiff, is a natural person believed to be over the age of 19 years, is or was at all times material hereto an employee, officer or agent of the Montgomery County Sheriff’s Department and is a person whose conduct proximately and directly harmed Plaintiff. Marshall is the Sheriff of Montgomery County, and is being sued in his official and individual capacities. 8. Defendant the Alabama Department of Public Safety (hereinafter "ADPS") is an agency of government of the State of Alabama sited in Montgomery County, Alabama. 9. Defendant Colonel Hugh B. McCall (hereinafter, “McCall”), a better denomination of whom is presently unknown to Plaintiff, is a natural person believed to be over the age of 19 years, is or was at all times material hereto an employee, officer or agent of the Alabama Department of Public Safety (ADPS) and is a person whose conduct proximately and directly harmed Plaintiff. McCall is the Director of the Alabama Department of Public Safety, and is being sued in his official and individual capacities. 10. Defendant Luther Strange (hereinafter, “Attorney General”), a better denomination of whom is presently unknown to Plaintiff, is a natural person believed to be over the age of
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19 years, is or was at all times material hereto an employee, officer or agent of the State of Alabama and is a person whose conduct proximately and directly harmed Plaintiff. Strange is the Attorney General for the State of Alabama, and is being sued in his official and individual capacities.
ADMINISTRATIVE REMEDIES 11. Plaintiff was denied any administrative remedies whatsoever, and subjected to Alabama and federal Sex Offender law before bringing his claims in this action. Plaintiff alleges he was not subject to the Alabama Act No. 507 codified in 13A-11-200 et seq. (1967) (Hereinafter, “Act 507), the 1996 Alabama Community Notification Act, codified in 15-20-20 (2010), et seq. (Hereinafter, “ACNA”), the Alabama Sex Offender Registration and Community Notification Act, codified in 15-20A-1 et seq. (Hereinafter, “ASORCNA”), or to the Sex Offender Registration and Notification Act (Hereinafter, “SORNA”) codified at 42 U.S.C. §16913 et seq., at the time the original Complaint in this action was filed. Plaintiff was provided a post deprivation hearing on December 14, 2011, which is ineffective and moot because there were Alabama procedures set forth pursuant to the Alabama Procedures Act and Alabama administrative code that defendants intentionally failed to follow before depriving Plaintiff of his constitutionally guaranteed rights. Specifically, Defendants subjected Plaintiff to community notification, monitoring, and tracking provisions of ACNA, ASORCNA and SORNA, as well as onerous and punitive residency, employment and travel restrictions of ACNA and ASORCNA without providing Plaintiff any process whatsoever. Defendants only offered a post deprivation hearing after being sued for violating Plaintiff’s due process rights. Thus, the December 14th, 2011 post deprivation hearing and subsequent final order issued on January 25, 2012 is
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ineffective and moot. Plaintiff is not required to exhaust any state of Alabama court or administrative remedies, given the nature of the claims presented herein.
GENERAL FACTUAL ALLEGATIONS 12. Plaintiff was convicted of sexual assault in the State of Colorado on or about May, 1986. On or about November 1989, Plaintiff was released from a Colorado prison, having served his prison sentence. 13. Plaintiff was not required to register as a sex offender by the State of Colorado. 14. At the time of Plaintiff’s 1986 Colorado conviction, the State of Alabama’s sex offender registration requirements were set forth in the Act No. 507 (1967). 15. Act 507 was enacted to “prescribe the punishment for willful failure or refusal to so register” (emphasis added). 16. Plaintiff’s 1986 conviction in Colorado constitutes final judgment on the crime he committed. 17. On or about April 14, 2010, Plaintiff, a disabled Veteran of the United States Armed Forces, returned to his hometown of Montgomery, Alabama due to failing health, to live and work close to his mother, who was 80 years old at the time, and to associate more closely with the rest of his family, many of whom reside in Montgomery, Alabama. 18. Plaintiff had previously heard of Alabama’s “tough sex offender laws” and upon arrival to Montgomery, Alabama on or about April 14, 2010, Plaintiff immediately and voluntarily visited the Montgomery Police Department to inquire about the sex offender laws, and to confirm his belief that he was not subject to those laws. On April 14, 2010 Plaintiff had no custodial relationship with any jurisdiction and his rights as a U.S. citizen had been fully restored.
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19. On or about April 14, 2010, upon arriving at the Montgomery, Alabama Police Department, Plaintiff was directed to the Criminal Investigations Division, Special Victims Unit, where he encountered Detectives Gordon, LaChance, Savell and Duckett. 20. In response to Plaintiff’s inquiry with the detectives, Plaintiff was questioned by the detectives about his past crimes, the timeframe in which the crimes were committed and the State in which he committed the crimes. Plaintiff cooperated with the questioning and provided the requested information asked for by the detectives. 21. After approximately an hour, Plaintiff asked detectives Gordon and LaChance if he could leave and if they would call him or contact him by mail to inform him of their findings. 22. The detectives would not allow Plaintiff to leave the building, but required him to remain in a confined area of the Special Victims Unit of the Montgomery Police Department. Plaintiff avers that detectives of the Montgomery Police Department kept him in custody for several hours. 23. During the period in which Plaintiff was in custody, he was placed in constant fear and intimidated by detectives Gordon, Lachance and Savell. Detective Gordon asked Plaintiff, “Who said you could live there? You can’t live there!” (Referring to Plaintiff’s mother’s address where Plaintiff informed the detectives he would reside in Montgomery). 24. Detective Lachance told Plaintiff, “You broke federal Law by moving from Colorado to Virginia and from Virginia to D.C., and that’s a felony.” Detective Savell stated, “That’s Federal, we need to get the D.A. on him.” Plaintiff was extremely frightened by the verbal tactics of the detectives. 25. Detectives Gordon, LaChance and Savell caused Plaintiff to be fingerprinted, photographed and required Plaintiff to register with the Montgomery Police Department as a sex offender
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pursuant to Act 507 and ACNA. The Detectives had no official confirmation of Plaintiff’s Colorado conviction at any time on April 14, 2010. 26. Detective Savell gave Plaintiff a copy of the then current Alabama sex offender laws, which included living and work restrictions, registration requirements, reporting duties, and said to him, “This is your Bible. Keep it with you at all times, because if you violate what’s in your Bible, you will be charged with a felony.” 27. After several hours in custody, Plaintiff was finally told he was being released and was escorted to the Montgomery Police Department exit by detective Gordon. 28. As detective Gordon was escorting Plaintiff to the exit, Plaintiff stated to detective Gordon, “Ma’am, all I wanted to do was confirm that I was not supposed to be under Alabama sex offender law. I don’t want to do anything to break the law.” Detective Gordon responded, “You already broke Alabama law.” 29. Detective Gordon then told Plaintiff, “You have five (5) days to move from Darien Drive and find a compliant address. You must report back to me in five days with your new address, and it better be in a compliant area of Montgomery, or you will be arrested and charged with a felony.” 30. Detective Gordon further ordered Plaintiff to register with the Montgomery County Sheriff’s Department immediately. 31. Out of fear of being arrested for a felony, Plaintiff desperately began searching for places he could live, while being compliant with the detectives’ explicit directives. 32. Plaintiff had several telephone discussions with detectives Gordon and LaChance between April 15, 2010 and April 18, 2010, in which Plaintiff inquired about the prospect of living at a minimum of 20 (twenty) prospective residences, and was informed by detectives Gordon and
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LaChance that Plaintiff could not live at either, as the prospective homes were not compliant areas per the ACNA. 33. Plaintiff returned to the Montgomery Police Department on or about April 18, 2010 to express his concern that there was nowhere for him to live in the City of Montgomery. 34. Both detectives Gordon and Lachance reviewed a map of the City of Montgomery posted in the Special Victims Unit that detailed a few parts of town in which, they told Plaintiff, convicted sex offenders subject to the ACNA may reside. 35. Detective Gordon suggested that Plaintiff move to the Regency Inn, since many sex offenders had previously held residency at that location. 36. The Regency Inn is a motel located at 1771 Dickinson Drive in Montgomery, Alabama, and was deemed to be in a compliant area of the city in which sex offenders who were subject to the ACNA could reside. 37. Detectives Gordon and LaChance reiterated that Plaintiff was required to move immediately or be charged with a felony. During the April 18, 2010 meeting at the Montgomery Police Department, Plaintiff requested from both detectives Gordon and Lachance "the due process hearing I am entitled to.” Detective Lachance informed Plaintiff that she “would arrange for your due process hearing immediately”, pursuant to Plaintiff’s request. 38. Plaintiff moved into the Regency Inn on or about April 27, 2010 and lived there until July 19, 2010. 39. Plaintiff is a disabled veteran who currently lives on a fixed income. After depleting all of his savings on living arrangements at the Regency Inn, Plaintiff had to move as he could no longer afford to pay the weekly rental rates at Regency Inn. Plaintiff could not find employment
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due to the work restrictions placed upon him when he was subjected to the ACNA. Plaintiff moved to his current residence on July 20, 2010. 40. On or about April 27, 2010, Plaintiff went to the Montgomery County Sheriff’s Office to provide information of his compliant address as ordered by detectives of the Montgomery Police Department. 41. On or about April 27, 2010, Plaintiff met with Lieutenant Persky, of the Montgomery County Sheriff’s Office. Persky interviewed Plaintiff and recorded the details of Plaintiff’s 1986 conviction, provided by Plaintiff. 42. Persky told Plaintiff that he was required to comply with the ACNA. Persky had Plaintiff “processed” as a sex offender, requiring Plaintiff to have his photograph, fingerprints, and DNA taken. Persky had no official confirmation of Plaintiff’s Colorado conviction on April 27, 2010. 43. Plaintiff was issued a “sex offender identification card” and was told to keep the card on his person at all times. Persky stated to Plaintiff, “If you ever get stopped by the police, you must show them this card, or be charged with a felony.” 44. Persky instructed Plaintiff of his periodic in-person registration requirements and informed Plaintiff that his Deputy Sheriffs would periodically visit the address that he listed as his residence. Persky told Plaintiff that if it was not confirmed by his Deputy Sheriffs that the Plaintiff was living at the place he listed as his residence, or there residence was not compliant with the ACNA, he would be arrested and charged with a felony. Plaintiff was extremely frightened by the verbal tactics of Persky. 45. On or about June 25, 2010, Plaintiff complied with the restrictions of the ACNA by informing the City of Montgomery’s Police Department and the Montgomery County Sheriff’s
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Department of his change of address. Plaintiff did so in fear of being arrested and charged with a felony. 46. Plaintiff is unable to live with his wife of eleven years, given that she is domiciled in the only home in which she and Plaintiff could afford to pay rent from his fixed income because the home is in an area of the city of Montgomery, Alabama deemed to be non-compliant for sex offenders under the ACNA and ASORCNA. The defendants have informed Plaintiff that he was and is currently required to comply with the ACNA and ASORCNA, or be charged with a felony. Pursuant to the employment restrictions of Alabama sex offender law, Plaintiff is prevented from applying for most jobs in the city of Montgomery, as it is a felony for him to do so. 47. On or about May, 2010, McCall and the other named Defendants, individually and collectively, caused Plaintiff’s name, address, Colorado conviction and other personal information to be released to one or more entities, who published this information on the internet, and in other media, labeling Plaintiff as a registered “sex offender.” 48. On or about May, 2010, McCall and the other named Defendants, individually and collectively have intentionally submitted and intentionally caused to be posted, Plaintiff’s name, address and other personal information about Plaintiff on the Alabama and federal registries for sex offenders, and labeling Plaintiff as a “sex offender.” 49. On or about June, 2010, McCall caused a “community notification flyer” to be distributed, by mail and other means, in and about the Montgomery, Alabama area, for the purposes of warning the public of Plaintiff’s presence in Montgomery, Alabama, and labeling Plaintiff as a convicted “sex offender.”
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50. Since April 14, 2010, Defendants individually and collectively, have subjected Plaintiff to the onerous restrictions of the ACNA, ASORCNA and to SORNA, without providing any notice or opportunity for Plaintiff to be heard, or any process whatsoever, regarding the applicability of said Acts, to Plaintiff. Plaintiff has been required to register a total of four (4) times since returning home to Montgomery. 51. Plaintiff waited eighteen (18) months to receive his due process hearing, to no avail. Plaintiff was denied any process whatsoever, notwithstanding the fact that the State of Alabama currently has, and at all times relevant to this matter had, an administrative code that entitles persons convicted of a purported sex crimes in a foreign jurisdictions notice, hearing and an opportunity to be heard. 52. On or about October 15, 2011, Plaintiff called ADPS to inquire about his due process hearing before an ALJ, as set for in Alabama administrative law and supported by Attorney General opinions. 53. Lindsey Clements was the attorney employed with the ADPS responsible for matters regarding his hearing and she informed him that his “hearing had already been denied.” 54. On or about October 19, 2011, Plaintiff’s attorney called Lindsey Clements regarding her office’s unilateral determination to deny any process whatsoever with regard to Plaintiff’s 1986 foreign jurisdiction conviction, and to discuss application of the ACNA to Plaintiff. 55. Plaintiff’s attorney scheduled a meeting with Clements. The meeting took place on October 20, 2011 at 2 p.m. at Clements’ office at the ADPS in Montgomery, Alabama. 56. During the meeting with Clements, Plaintiff’s counsel reviewed the facts of Plaintiff’s Colorado offense, the timing of the offense, and expressed Plaintiff’s belief that ACNA was not
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applicable to Plaintiff. Clements summarily dismissed any notion that Plaintiff’s position could be correct. 57. Upon Plaintiff counsel’s inquiry as to why a due process hearing was not provided Plaintiff, Clements stated, “Our office makes that determination, we denied his hearing and there is nothing further we can do for him.” 58. When Plaintiff’s attorney asked Clements why Plaintiff was not notified of the unilateral determination by ADPS that no process was due, Clements stated, “I notified the Montgomery Police Department many months ago.” 59. When Plaintiff’s attorney reiterated that Plaintiff was not notified of this determination, and has not been afforded an opportunity to appeal the unilateral determination of no process whatsoever, Clements said, “There is nothing else that can be done. Alabama has had registration requirements since 1967. I don’t know what Colorado law is, but there is nothing else that can be done. He is subject to the Alabama law.” 60. Plaintiff was required to register, once again by October 31, 2011, in compliance with the ACNA. Prior to registering, Plaintiff learned of the recent changes in Alabama law with regard to sex offenders. As a result, Plaintiff called the Montgomery County Sheriff’s Department on or about October 29, 2011. Plaintiff was told that new law would require Plaintiff to suffer additional restrictions under Alabama Sex Offender law. 61. Specifically, in addition to the registering, monitoring, tracking, living, employment and travel restrictions Plaintiff was already subjected to, Plaintiff would have to relinquish his current Alabama driver’s license for one “labeled” with a specific designation for sex offenders. Plaintiff would also be required to pay the State of Alabama a fee going forward in order to
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properly maintain his compliant “status” as a sex offender under Alabama sex offender law in order to avoid violation of the law. 62. Plaintiff was arbitrarily and capriciously subjected to the ACNA and SORNA by named Defendants herein, under the color and authority of Alabama State and Federal law, without any type of hearing before a fair and impartial hearing body and without any opportunity to be heard regarding the matter before being so subjected. Without providing any process whatsoever, Attorney General and the other defendants have informed Plaintiff that he is now subject to ASORCNA, because he presumably waived his constitutional right to due process by voluntarily subjecting himself to ACNA. Attorney General also cites an illusive, unwritten procedure that presumably required Plaintiff to ask the Attorney General directly for the due process hearing he was entitled to on April 14, 2010 as proof that Plaintiff waived his constitutional rights. 63. Plaintiff suffered and continues to suffer stigmatizing consequences from being labeled, identified and classified as a sex offender that imposed a typical and significant hardship on him in relation to the ordinary convicted criminals whose rights as citizens have been fully restored, including, but not limited to, the following:
a. The loss of reputation and moral standing in the estimation of his peers based upon Defendants affirmative acts to stigmatize Plaintiff;
b. The excitement of derogatory opinions against him that caused his peers to hold him in contempt and caused him to be in constant fear for his safety.
c. The shame, mortification and humiliation of being subjected to the onerous and punitive restrictions and affirmative labeling of the ACNA, ASORCNA and SORNA.
d. The scorn, ridicule and contempt of his peers to which sex offenders are subjected
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in his community; e. The mandatory and automatic denial of citizenship attendant to a full restoral of his
rights as a United States citizen, and a citizen of Alabama following the service of his prison sentence and parole in a foreign jurisdiction, and f. The consideration of the sex offender label, identification and classification by the McCall and all Defendants when determining the terms, conditions and level of supervision to which he would be subjected 64. Since his arrest and intimidation that occurred at Montgomery Police Department on April 14, 2010, and subsequent arrest and intimidation at the Montgomery County Sheriff’s Department, Plaintiff sleeps for only brief moments at a time each night, constantly awakened with fears of being arrested and taken to jail by law enforcement. Plaintiff does not engage in activity afforded the average citizen in Alabama, fearing arrest by law enforcement. Plaintiff fears contact with any members of law enforcement and has avoided contact with law enforcement since April, 2011. 65. On or about October 30, 2011, Plaintiff filed a Temporary Restraining Order and Preliminary Injunction in the Fifteenth Judicial Circuit Court of Montgomery, Alabama, against defendants named herein, seeking redress on the Defendants’ violation of procedure set forth in Alabama Administrative code. 66. The TRO was granted October 30, 2011 and on or about November 16, 2011, ordered null and void as it did not meet the requirements of Rule 65 of Alabama Civil Procedure. The court further ordered a hearing on the matter, set for November 30, 2011.
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67. On or about November 23, 2011, Attorney General, through an employee, Administrative Law Judge, sent an Order and Notice of an ALJ Hearing to Plaintiff via his counsel, “…regarding DPS’s proposed action, to apply the offender notice requirements and restrictions, of the 1996 ACNA…” to Plaintiff. The order also states, “The hearing is being held based upon Mr. McGuire’s right to procedural due process.” 68. Plaintiff avers that postdeprivation process is not effective. Plaintiff submits that Attorney General and McCall’s post deprivation hearing that took place on December 14, 2011, and offered only after Plaintiff sued defendants for violating his due process rights, was not a gratuitous governmental accommodation. 69. Attorney General and McCall’s post deprivation hearing constitutes explicit admission that process was due, and unilaterally denied beginning on April 14, 2010 and ongoing, in violation of Plaintiff’s Constitutional rights. It is indisputable that Plaintiff was subjected to the classification of “sex offender” and the attendant restrictions and requirements of Alabama sex offender law and to SORNA without any process and before the illusory post deprivation hearing provided by Attorney General and McCall. 70. On or about November 25, 2011, and in order to seek adequate remedy for all of Plaintiff’s colorable claims in this Court, Plaintiff filed a motion to dismiss the action in the Fifteenth Judicial Circuit, Montgomery, Alabama, without prejudice. On November 29, 2011, Plaintiff’s Motion to Dismiss, without prejudice was granted by the state court. 71. On or about December 14, 2011, Plaintiff attended the post deprivation hearing as ordered by the Attorney General’s office. The ALJ stated at the beginning of the meeting that “the purpose was to determine if the elements of Mr. McGuire’s crime were similar to sex crimes under Alabama law” (paraphrasing). Plaintiff’s counsel disagreed and referred the court to her
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order stating the purpose of the hearing as to the “applicability of the 1996 Alabama Community Notification Act, to Mr. McGuire.” 72. In a brief in support of his argument that Plaintiff was subject to the ACNA, Defendant ADPS conceded, “Alabama gives full faith and credit to Colorado’s conviction. The fact that Colorado did not require him to register is irrelevant.” 73. Plaintiff received the ALJ’s final order on January 25, 2012, one day before this Court conducted a status hearing on the matter. The ALJ held that Plaintiff was required to register under Alabama sex offender law and was now subject to the 2011 Act. The ALJ, in her final order, made brief mention of Plaintiff’s contention that Alabama sex offender law violated the ex post facto clause of the United States Constitution, but the ALJ offered no relevant analysis on that issue. The ALJ cited Article I, Section 9 of the United States Constitution as the controlling ex post facto law. The ALJ relied on her contention that Alabama sex offender registration requirements are “functionally indistinguishable” from federal sex offender law (SORNA) in supporting ADPS’s contention that the ASORCNA is a civil and not a punitive statute. The ALJ made no mention whatsoever of the employment, residency, travel restrictions and prohibitions or the voluminous criminal provisions contained in ASORCNA which is not only distinguishable from, but non-existent in the provisions of SORNA. 74. Defendants, each of them, were personally involved in the wrongful labeling, identification and classification of Plaintiff as a sex offender and/or the refusal to record or remove the sex offender label, identification and classification; and each of them, by, arresting, confining, intimidating and subjecting Plaintiff to the onerous restrictions of the ACNA and SORNA, acted with reckless disregard for the truth, with deliberate indifference to Plaintiff's rights and with an utterly intolerable callousness that was beyond all bounds of decency in a civilized society.
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75. The policies, practices and customs as applied to Defendants named herein include: a. Defendants, through the highest ranking available supervisory personnel, or designee, decision makers and/or policy makers, approved of, acquiesced to and/or condoned the violations in general, thereby ratifying and approving the wrongful acts of their agents and employees in their respective governmental agencies. Specifically, decision makers/policy makers designed the policies that allowed its agents, subordinates, and employees to seek and obtain Plaintiff’s arrest and subject Plaintiff to the onerous conditions of the ACNA in the course thereof. Defendants, respectively, ratified the conduct of its subordinates and those actions therefore became policy and/or created and instituted the policies themselves. b. Defendants named herein failed, through knowing and/or reckless and/or deliberate and/or conscious indifference, to instruct, supervise, control and discipline, on a continuing basis, the duties of personnel and officials to refrain from unlawful actions leading to the arrest, intimidation and detention applied against Plaintiff. Specifically, Defendants do not train and/or instruct and/or control its officers properly because its officers would not otherwise seek and obtain Plaintiffs arrest, detention, to intimidate and to subject Plaintiff to the onerous restrictions under the facts of this case. c. Defendants named herein failed to properly train its personnel despite actual knowledge of their deficiencies and/or through deliberate indifference and/or negligence to those deficiencies. Specifically, Defendants do not train and/or instruct and/or control its officers because its officers would not otherwise seek and obtain Plaintiff's arrest and subject Plaintiff to aforementioned onerous restrictions.
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d. Defendants named herein had the power to prevent or aid in preventing the commission of the aforementioned violations and could have done so by reasonable diligence.
e. Instead, Defendants knowingly, recklessly and with deliberate and/or conscious indifference failed or refused to correct the constitutional violations and/or tacitly approve such wrongs.
76. Defendants City, Murphy, Mayor and Marshall have negligently, knowingly, or intentionally created and instituted policies that deny due process rights as described above. 77. The State Defendants are responsible for providing the due process hearing. The state Defendants have knowingly and intentionally condoned and ratified the other Defendants’ policies, thus they participated in and caused the denial of due process. The hearings that out of state offenders are provided are always post deprivation hearings by the State Defendants because of the policies and practices of the state and county Defendants. 78. Plaintiff has been thus damaged as described herein.
CAUSES OF ACTION 79. As to each of the counts herein below set forth, Plaintiff expressly adopts as if fully set forth herein the allegations of the foregoing paragraphs.
COUNT I – Deprivation of Plaintiff's Fifth and Fourteenth Amendment Due Process Rights (42 U.S.C. § 1983)
80. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 81. At all times material hereto, Defendants, or each or all of them, were acting as state, county, and municipal agents pursuant to state statutes and the ordinances, customs, and policies of the City of Montgomery, Montgomery County, and the State of Alabama.
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82. Plaintiff was denied and deprived of his right to due process of law, as guaranteed by the Fifth and Fourteenth Amendment of the U.S. Constitution, in violation of 42 U.S.C. § 1983, when Defendants, under the color of law, arbitrarily and capriciously labeled, identified and classified him as a sex offender, and subjected Plaintiff to the onerous restrictions of the ACNA, the ASORCNA and the SORNA without notice, a hearing before a fair and impartial hearing body and any opportunity to be heard, whatsoever. 83. Defendants have subjected Plaintiff to the onerous restrictions of the ACNA, ASORCNA and SORNA, without proving that he was in fact subject to the Acts, and without providing him with an opportunity to challenge the accuracy of their unilateral actions; all without legitimate or reasonable purpose or goal. Plaintiff requested a hearing from officials to whom responsibility was delegated in enforcing Alabama sex offender law on or about April 18, 2010. There are no State procedures describing the method or manner which persons who may be subject to Alabama sex offender law are to request and receive due process hearings. The law in affect at the time Plaintiff’s constitutional rights to due process were deprived “entitled” him to notice, a hearing and opportunity to be heard prior to being subjected to community notification and the onerous deprivations of his fundamental liberties pursuant to Alabama sex offender law. 84. Defendants knew, or should have known, that their above-described conduct prior to providing Plaintiff due process violated rights secured to Plaintiff by the Fifth and Fourteenth Amendments of the U.S. Constitution, in violation of 42 U.S.C. § 1983. 85. Plaintiff suffered, and continues to suffer, injuries and damages as a direct and proximate result of the above-described conduct of Defendants, as will more fully appear at trial.
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COUNT II-DEPRIVATION OF LIBERTY (42 U.S.C. § 1983) 86. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 87. Plaintiff was never subject to any form of the Alabama Community Notification Act, as Act 507, ACNA and ASORCNA deprive Plaintiff of his fundamental rights to marry, to travel, to carry on familial relationships and to privacy. Because of the residency restriction of ACNA and ASORCNA, Plaintiff cannot legally live with his wife. Because of the employment restrictions, Plaintiff cannot even seek employment in most of Montgomery. Because of the restrictions, Plaintiff is prevented from carrying on close family relationships. Because of the travel restrictions, Plaintiff cannot move freely interstate or intrastate without first seeking a travel permit from the State of Alabama. Plaintiff is subject to these restrictions and eliminations of fundamental liberties for life and under threat of felony arrest and conviction by defendants. 88. Furthermore, Alabama sex offender law infringes upon Plaintiff’s fundamental right to be free from affirmative stigmatization by the State. The distribution of community notification flyers, labeling Plaintiff as a sex offender and providing personal information constitutes affirmative shaming by the McCall and the other defendants. The requirement that Plaintiff’s driver’s license bear a “sex offender” designation infringes on Plaintiff’s right to privacy. 89. Plaintiff was convicted in the State of Colorado in 1986. Plaintiff was not required by the State of Colorado to register as a sex offender upon his release from prison. The Colorado conviction constitutes a final judgment ten years before the State of Alabama codified the 1996 ACNA. 90. The Colorado final judgment that did not require Plaintiff to register as a sex offender upon his release from prison and/or parole was not offensive to Alabama law. There was no
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constitutional Alabama law requiring Plaintiff to register as a sex offender at the time of Plaintiff’s conviction. Alabama’s unconstitutional Act 507 cannot serve as a predicate upon which Plaintiff is being deprived his fundamental liberties pursuant to purportedly valid Alabama law created many years after Plaintiff was released from all custodial requirements. 91. Plaintiff is entitled to the protections of Article IV, Section 1 of the United States Constitution, which states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” 92. By subjecting Plaintiff to the registration and personal restrictions of ACNA, and ASORCNA, Defendants, individually and collectively, under color of law, deprived Plaintiff of his Constitutional protections under Article IV and the Fourteenth Amendment of the United States Constitution, in violation of 42 U.S.C. §1983. 93. By subjecting Plaintiff to the ACNA, ASORCNA and SORNA, Defendants, individually and collectively, under color of law, deprived Plaintiff of his fundamental right to travel as the requirement to seek a travel permit dramatically alters Plaintiff’s status as a U.S. citizen. 94. By subjecting Plaintiff to the ACNA, ASORCNA and SORNA, Defendants, individually and collectively, under color of law, deprived Plaintiff of his fundamental right to marry because the restrictions prevent him from residing with his wife. 95. By subjecting Plaintiff to the Alabama Community Notification Act, Defendants, individually and collectively, under color of law, deprived Plaintiff of his fundamental right to carry on familial relationships because the restrictions prevent Plaintiff from providing adequate care and support for his mother. 96. By subjecting Plaintiff to the ACNA, ASORCNA and SORNA, Defendants, individually and collectively, under color of law, deprived Plaintiff of his fundamental rights to free from
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affirmative stigmatization by defendants and to privacy because the affirmative state dissemination of community notification flyers, the dissemination of plaintiff’s personal information to state, federal and private websites and the required “sex offender” designation on Plaintiff’s driver’s license.
COUNT III-EQUAL PROTECTION (42 U.S.C. § 1983) 97. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 98. The sex offender registration, reporting and public dissemination requirements of the ACNA and now ASORCNA work an unequal result upon Plaintiff in a number of ways in violation of the Fourteenth Amendment of the United States Constitution. 99. Specifically, Plaintiff’s right to marry, right to carry on familial relationships, right to privacy and rights to intrastate and interstate travel were restricted or eliminated when he was subjected to the onerous restrictions of ACNA and ASORCNA with no determination of Plaintiff’s risk to the public and children. 100. Plaintiff is being treated unequally under the laws of Alabama. 101. The Plaintiff has constitutionally protected interests in being treated equally under the law and in not being subjected to unequal treatment without justification. The Plaintiff’s interest in such equal treatment arises from the Fourteenth Amendment of the United States Constitution. 102. The conduct of the Defendants arresting, detaining, requiring Plaintiff to register as a sex offender, requiring the Plaintiff to report as a sex offender, restricting Plaintiff’s employment, travel, marriage and familial relationships and disseminating information through the use of the Internet, as well as other methods of public notification, pursuant to the ACNA, ASORCNA and SORNA has treated and continues to treat the Plaintiff in an unequal manner as to others who are
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similarly situated, without legal justification or any factual basis for such unequal treatment, in violation of 42 U.S.C. §1983 and Plaintiff has no adequate remedy at law.
COUNT IV-APPLICATION OF EX POST FACTO LAWS (42 U.S.C. § 1983) 103. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 104. Plaintiff was convicted of sexual assault in 1986. Act 507 (1967), that set forth the registration requirements for sex offenders, who were convicted in a foreign jurisdiction, was unconstitutional. 105. The express language of the 1967 Act requiring sex offenders to register was “…to prescribe punishment for willful failure or refusal to so register.” (Emphasis added). The Act was punitive on its face and unconstitutional. 106. Defendants McCall and Attorney General conducted a post deprivation hearing to determine if the 1996 Alabama Community Notification Act, as amended is applicable to Plaintiff. 107. Because Alabama had registration requirements that were unconstitutional at the time of Plaintiff’s conviction in Colorado, and Alabama did not enact subsequent legislation until 1996 which imposes punitive restrictions and criminal penalties upon those who are subject to it, ACNA as amended, and subsequent codified sex offender law (ASORCNA) are ex post facto laws that deprive Plaintiff of his constitutional protections, in violation of 42 U.S.C. § 1983. 108. The United States Constitution protects criminal defendants against and ex post facto laws. Despite this protection, Attorney General, Mayor, McCall, and the other Defendants have intentionally subjected Plaintiff to sex offender law and SORNA after acknowledging a change in the law. Such actions by Defendants should preclude the application of qualified and
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sovereign, immunity, respectively, and should further relieve Plaintiff from these onerous conditions. 109. By requiring Plaintiff, under threat of criminal penalty, to endure additional onerous restrictions and prohibitions of liberty than required by the terms of his prison sentence and subsequent full restoral of rights as a United States citizen, Defendants, individually and collectively, under color of law, infringed upon Plaintiffs protection against the application of ex post facto of laws. 110. The effective date of the SORNA as to pre-SORNA predicate convictions is the statutory enactment date, July 27, 2006. SORNA makes it a crime to violate its registration requirements. The Act provides that a person who is (1) “required to register under” SORNA, (2) “travels in interstate or foreign commerce” or is a sex offender under federal, tribal, D.C., or U.S. territorial law, and (3) “knowingly fails to register or update registration as required by [SORNA] shall be fined” and/or imprisoned for up to ten years. Plaintiff fell within a group of individuals that were unable to comply with SORNA. The U.S. Attorney General was given authority to specify the applicability for the requirements of registration to those unable to comply with SORNA. Because the U.S. Attorney General has not so specified, SORNA is inapplicable to Plaintiff. By subjecting Plaintiff to the publication of his name, address and other information on the SORNA website, as well as the requirements and restrictions of SORNA, with ramifications of criminal prosecution, Attorney General, McCall and the other defendants applied an ex post facto law to Plaintiff, in violation of 42 U.S.C. §1983.
COUNT V-ILLEGAL SEIZURE/FALSE IMPRISONMENT (42 U.S.C. § 1983) 111. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here.
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112. The Defendants, City, Mayor, Murphy, and Marshall acting under color of law, caused the Plaintiff to be arrested, detained and imprisoned on and after April 14, 2010, even though they were devoid of any justifiable basis and lacked probable cause for said arrest, detention and imprisonment in violation of the Fourth Amendment of the United States Constitution. The defendants false imprisonment of the Plaintiff constituted an unlawful seizure as described above. 113. At all times material hereto, Mayor, Murphy and Marshall were acting as a municipal law agents, officials, or employees pursuant to State statute and the ordinances, customs, and policies of the City of Montgomery and/or the State of Alabama and/or Montgomery County, Alabama. 114. Case law is clear that a detention, the inability to come and go as you please, is an arrest/seizure. Section 6-5-170, Code of Alabama (1975) describes the tort of false imprisonment: "False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." Any exercise of force, or the express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. Big B., Inc. v. Cottingham, 634 So.2d 999, 1001 (Ala.1993); Daniels v. Milstead, 221 Ala. 353, 128 So. 447 (1930). 115. In Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996), the 11th Circuit noted, "Justice Rehnquist observed in Albright that Albright's ‘surrender to the State's show of authority' (that is, his voluntary surrender following the issuance of an arrest warrant) ‘constituted a seizure for purposes of the Fourth Amendment.' So, Whiting's initial surrender was a ‘seizure;' he subjected himself physically to the force of the state in response to an arrest warrant. And, we have no doubt that the forceful arrest of Whiting at the courthouse was a
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‘seizure.'" Whiting, 85 F.3d at 585(citation omitted); citing Albright v. Oliver, 510 U.S. 266 (1994) (emphasis added). 116. These Defendants arrested and seized Plaintiff in the absence of an arrest warrant and/or probable cause. 117. Plaintiff had a protectable interest in his freedom under the Fourth Amendment to the United States Constitution to be secure in their person against unreasonable searches and seizures. 118. Plaintiff had a protectable interest in their freedom under the Fourth and Fourteenth Amendments to the United States Constitution to be free from arrest without probable cause. 119. Any reasonable law municipal officer knows or should know that arresting and seizing an individual in the absence of an arrest warrant, probable cause, or due process is violative of such person’s rights to be free from arrest and imprisonment. 120. These Defendants falsely caused the detention/arrest of Plaintiff without probable cause in violation of the Fourth Amendment to the United States Constitution. 121. The rights of Plaintiff to be free from arrest and imprisonment without probable cause were clearly established in the law at the time of the events giving rise to this complaint. 122. Any reasonable law enforcement officer would have known that the conduct described herein would be violative of such rights to be free from arrest and imprisonment without probable cause. 123. The rights of Plaintiff under the Fourth Amendment were thus impermissibly abridged and violated.
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124. The aforesaid conduct proximately caused damage to Plaintiff in that it caused them to experience serious physical damage, embarrassment, humiliation, extreme mental anguish and severe emotional distress. 125. The aforementioned actions of the Defendants proximately caused the Plaintiff to be deprived of his Fourth Amendment right to be free from arrest and imprisonment lacking probable cause and caused him to be unlawfully detained and imprisoned against his will, causing the Plaintiff damage, in violation of 42 U.S.C. §1983.
COUNT VI-DELIBERATE INDIFFERENCE/FAILURE TO TRAIN (42 U.S.C. § 1983)
126. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 127. By and through the policies promulgated by Defendants, each or all of them, as described above deprived Plaintiff of clearly established rights secured by the United States Constitution and laws of the United States, including but not limited to his Fourth and Fourteenth Amendment rights to not be arrested falsely and without probable cause; and not to be maliciously prosecuted, and to not be subjected to onerous restrictions of liberty. 128. All of the actions undertaken by Defendants’, as described in the preceding paragraphs of this claim for relief, officers, agents or employees, were under color of law and pursuant to the official custom, course and policy of said Defendants. 129. As a result of the unlawful and/or unreasonable and/or malicious attempt to deprive Plaintiff of his rights guaranteed to by the laws of the United States, the Defendants named in the above paragraphs of this claim for relief are each liable under 42 U.S.C. section 1983 because of a policy of custom of their respective agencies.
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COUNT VII - DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF STATE LAW 42 U.S.C. § 1983 - FAILURE TO PREVENT VIOLATION OF RIGHTS
130. At all times material hereto, Defendants, each or all of them, individually or jointly, were acting as law enforcement officers pursuant to state statute and the ordinances, customs, and policies of the State of Alabama, Sheriff of Montgomery County, and the City of Montgomery. 131. Plaintiff had a right to due process. 132. Each and every Defendant had knowledge that Plaintiff’s rights were being violated and had the power to prevent or aid in preventing the wrongful acts made the subject of the violations. 133. Each and every Defendant knew of and/or witnessed the other individual Defendants’ wrongful conduct, as stated hereinabove, but failed or refused to prevent it or aid in preventing it and are therefore liable to Plaintiff for the damages he suffered. 134. Plaintiff was damaged and injured as otherwise described herein.
COUNT VIII-FALSE IMPRISONMENT/FALSE ARREST-STATE LAW2 135. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 136. Defendants City, Mayor, and Murphy detained and/or allowed the detention of Plaintiff, prohibited him from leaving, circumscribed his physical liberty, ordered him and compelled him to go from place to place without a warrant and with neither reasonable suspicion nor probable cause to do so. 137. Plaintiff was placed under arrest and imprisoned without warrant and without probable cause.
2 See paragraphs 114 and 115 above for specific Federal and Alabama law.
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138. The false arrest/false imprisonment was carried out maliciously or in bad faith. 139. The Defendants are liable over to the Plaintiff for all harm and damages caused by the false arrest/false imprisonment complained of herein. 140. Plaintiff has been damaged thereby, as set forth hereinabove. COUNT IX-OUTRAGE/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 141. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 142. Defendants the City, Mayor and Murphy, individually and collectively, and in their official capacities, under color of state law, intentionally and deliberately inflicted emotional distress on Plaintiff by maliciously prosecuting Plaintiff, or by abusing the lawful process by unlawful purpose, or by violating Plaintiff’s constitutional rights, or by falsely arresting and imprisoning the plaintiff, by conspiring against Plaintiff, or by interfering with Plaintiff’s civil rights by threats, coercion, or intimidation, or knew or should have known that emotional distress was the likely result of their conduct. 143. Defendants’ conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community. 144. The actions of the Defendants were the cause of Plaintiff’s distress. 145. The emotional distress sustained by Plaintiff was severe and of a nature that no reasonable man could be expected to endure. 146. As a result of the Defendants' extreme and outrageous conduct, Plaintiff was, is, and, with a high degree of likelihood, will continue to be emotionally distressed due to the intentional exclusion.
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147. As a result of the Defendants' extreme and outrageous conduct, Plaintiff has suffered and will continue to suffer mental pain and anguish, severe emotional trauma, embarrassment, and humiliation.
COUNT X-NEGLIGENT FAILURE TO TRAIN AND SUPERVISE 148. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully herein. 149. Mayor and Murphy, as described above, committed the acts complained of herein while working within the line and scope of their employment with the City of Montgomery. 150. As such, Mayor and Murphy are agents acting in furtherance of the business enterprise/municipal affairs of the City of Montgomery. 151. Mayor and Murphy were aware of or should have known of the unconstitutionality of the policies that they trained the detectives as described above. 152. As a direct and proximate cause of Mayor and Murphy’s negligence, Plaintiff has been caused to suffer emotional distress and mental anguish. 153. Specifically, Defendant City’s decision makers and policy makers are Defendants Mayor and Murphy. The actions of subordinate detectives who followed the policies, practices, procedures, and customs instituted/taught by the Defendants caused the deprivations Plaintiff suffered. The City, Mayor and Murphy are liable to Plaintiff for their actions.
COUNT XI MUNICIPAL OFFICERS’ LIABILITY
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154. As agents, employees, or officers of the City, Murphy and Mayor carried out their duties creating the policies and practices that injured Plaintiff on the date and at the time in the conduct giving rise to this action in a neglectful, unskillful, or careless manner. 155. The neglectfulness, unskillfulness, or carelessness of these Defendants, as agents, employees, or officers of the City of Montgomery, directly and proximately damaged Plaintiff in the manner and to the degree as hereinabove recited. 156. These Defendants are individually liable to Plaintiff for their neglectfulness, unskillfulness, or carelessness as agents, employees, or officers of the City of Montgomery for the resulting damages to Plaintiff.
COUNT XII -NEGLECTFULNESS, UNSKILLFULNESS OR CARELESSNESS MUNICIPAL LIABILITY
157. Murphy and Mayor, as agents, employees, or officers of the City of Montgomery carried out their duties creating the policies and practices that injured Plaintiff on the date and at the time in the conduct giving rise to this action in a neglectful, unskillful, or careless manner. 158. The neglectfulness, unskillfulness, or carelessness of these Defendants, as agents, employees, or officers of the City of Montgomery directly and proximately damaged Plaintiff in the manner and to the degree as hereinabove recited. 159. Ala. Code § 11-47-190 states, "No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty ... and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness or unskillfulness of any person or corporation, then
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such person or corporation shall be liable to an action on the same account by the party so injured." 160. Neglect, carelessness and unskillfulness have been legislatively removed from the general tort protections of Ala.Code (1975) §6-5-338. When a plaintiff alleges a factual pattern that demonstrates neglect, carelessness, or unskillfulness of an agent of the city, the plaintiff has stated a cause of action against a municipality. Hawkins v. City of Greenville, 101 F. Supp. 2d 1356 (M.D. Ala.2000). 161. The City is liable to Plaintiff for the neglectfulness, unskillfulness, or carelessness of these Defendants as agents, employees, or officers of the City of Montgomery.
DECLARATORY RELIEF 162. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 163. Plaintiff brings this claim for declaratory relief under Federal Rule of Civil Procedure 57 and 28 U.S.C. §§2201, 2202. 164. Plaintiff requests a declaratory judgment establishing that:
a. Ala. Admin. Code 760-X-1-.21 was clearly established law setting forth procedure due persons convicted of sex crimes in foreign jurisdictions.
b. SORNA is clearly established federal law setting forth persons who were subject to the Act.
c. Plaintiff’s 1986 Colorado conviction entitled him to the procedure set forth in Alabama administrative code as of April 14, 2010.
d. Defendants failed to provide Plaintiff the process he was entitled to.
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e. Plaintiff has suffered harm including restrictions and eliminations of his fundamental liberties as a result of Defendants’ actions in subjecting him to ACNA, ASORCNA and SORNA.
f. Defendants ADPS and Attorney General’s post deprivation hearing and Final Order is moot as it is untimely and does not comport with procedural due process.
g. Plaintiff is not subject to ACNA, ASORCNA or SORNA as his constitutional right to due process was violated. 1. Defendants, Murphy, Mayor, City and Marshall under color of law violated Plaintiff’s constitutional rights to procedural due process on or about April 14 and 29 respectively by detaining, arresting, fingerprinting, extracting his DNA and requiring Plaintiff to register as a sex offender. 2. All Defendants failed to follow clearly established law as set forth in the Alabama Procedures Act and Alabama administrative code 760-x-1-.21 which entitled Plaintiff, who was convicted of a sex offense in a foreign jurisdiction in 1986, to a hearing and opportunity to be heard prior to being subjected to Alabama sex offender law. 3. Plaintiff was not given notice of Defendants’ unilateral denial of due process. As a result, Plaintiff had no opportunity to be heard, or to appeal the unilateral determination prior to being subjected to Alabama sex offender law. 4. Defendants provided a post deprivation hearing on or about December 14, 2011 only after Plaintiff sued Defendant’s in Alabama Circuit Court. The post deprivation hearing and Final Order (issued January 25, 2012) is moot as it was untimely and irreparable harm has already resulted, providing Plaintiff with no
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remedy at law. The post deprivation hearing is ineffective due to actual bias inherent in the process because the ALJ is an employee of Defendant Attorney General Strange and the “findings” in the ALJ’s Final Order contain no relevant legal analysis regarding Plaintiff’s Constitutional challenges to Alabama sex offender law. 5. Defendants had no reason to “act quickly” in subjecting Plaintiff to Alabama sex offender law and it was not impractical to provide Plaintiff pre-deprivation process. A hearing prior to deprivation is required unless time-sensitive issues call for immediate action. Time sensitive issues were not at stake in this case. 6. Plaintiff has a private interest in his fundamental liberties that were restricted or eliminated by the deprivation of process. Defendants’ actions changed Plaintiff’s status as a U.S. citizen because Alabama sex offender law imposed a set of legal duties which are sufficient in and of themselves to implicate a liberty interest. 7. The risk of erroneous deprivation is high given the fundamental liberties involved. Ensuring Plaintiff is or is not subject to Alabama sex offender law is a difficult task and should be conducted by persons capable of administering the difficult legal issues. 8. Because Plaintiff was unilaterally denied due process and subjected to the restrictions of Alabama sex offender law, there is no value in the post deprivation process as Plaintiff had been subjected to the restrictions for over 19 months and offered process only after commencing a lawsuit challenging the deprivation. 9. The interest of the Defendants in keeping procedures the same is low. Defendants have a strong interest in keeping its citizenry safe, but there are procedures it can
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follow to achieve those goals. Additional administrative burdens are likely to be low, as relatively few individuals are affected by Alabama sex offender provisions. This is supported by the fact that once sued, Defendants offered a post deprivation hearing within 5 (five) days. i. See Gilbert v. Homar, 520 U.S. 924 (1997) for post deprivation analysis. ii. See Paul v. Davis, 424 U.S. 693 (1976) for stigma plus test establishing that
Plaintiff has been deprived of a liberty interest in reputation sufficient to implicate the procedural protections of the due process clause, a plaintiff must show stigma plus the alteration or extinguishment of some other right or status. iii. “Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Doe v. Pryor, 61 F. Supp. 2d 1224, 1234 (M.D. Ala. 1999) (quoting Wisconsin v. Constantineau, 400 U.S. 433 (1971)).
INJUNCTIVE RELIEF MOTION FOR PRELIMINARY INJUNCTION
COMES NOW the Plaintiff, Michael A. McGuire, moves the Court for a preliminary injunction preventing from defendants from subjecting Plaintiff to the registration requirements, restrictions, posting of Plaintiff’s name, address and any other information about Plaintiff whatsoever on State and Federal sex offender registries and websites, and the attendant criminal prosecution for failing to register as a sex offender pursuant to ASORCNA or SORNA pending further findings and order(s) of this Court. The reasons supporting this motion are set forth below and in Plaintiffs full brief in support of this motion which will be filed contemporaneously to this complaint.
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165. Plaintiff hereby incorporates by reference all allegations contained in all numbered paragraphs of this Complaint as if set forth fully here. 166. IRREPERABLE INJURY:
Plaintiff has suffered and will likely suffer irreparable injury if Defendants are not enjoined during the pendency of this lawsuit from subjecting Plaintiff to the registration, notification monitoring, tracking and onerous restrictions and continuous affirmative stigmatization attendant to the ASORCNA and SORNA. The nature of Plaintiff’s injuries include a deprivation of fundamental rights to travel, to marry, to carry on familial relationships, to be free from affirmative stigmatization, and his right to privacy. Specifically, if defendants are not enjoined, Plaintiff cannot live with his wife, as the only home in which they can afford to live is in an area deemed to be non-compliant with ASORCNA. If defendants are not enjoined, Plaintiff will not be able to travel freely in intrastate or interstate travel without permission from defendants, although Plaintiff has no custodial relationship with any jurisdiction and has travelled freely for over 20 years. Plaintiff may not legally seek employment practically anywhere in Montgomery to supplement his limited fixed income due to the employment restrictions of ASORCNA and if the defendants are not enjoined, Plaintiff will continue to suffer irreparable financial hardship and imminent homelessness. Plaintiff is prevented from providing adequate care and comfort to his mother due to the residency restrictions of ASORCNA and each day that passes, Plaintiff suffers irreparable harm as his mother is aged and in failing health. If defendants are not enjoined, Plaintiff will suffer irreparable injury each day as more persons in the community view Plaintiff’s name and other personal information on state, federal and private websites to which defendants have posted this information. If defendants are not enjoined,
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Plaintiff is subject to voluminous criminal provisions in ASORCNA which carry felony penalties, whether or not Plaintiff is aware that he violated the provisions. NO ADEQUATE REMEDY AT LAW:
There is no adequate remedy at law for Defendants’ actions as Plaintiff was afforded a hearing only after Defendants deprived him of his constitutional right to due process, and after restricting and eliminating his constitutionally protected fundamental liberties for over 19 months. Sampson v. Murray, 415 U.S. 61, 88-89, 94 S. Ct. 937, 952-53 (1974); Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 417 (4th Cir. 1999). 167. Plaintiff was provided no process whatsoever, before being subjected to the actions of the defendants on April 14 and 29, respectively. Plaintiff’s due process was unilaterally denied by the named defendants. There were administrative procedures that Plaintiff was entitled to and set forth in Ala. Administrative Code 760-X-1-.21. As such, Plaintiff has not been afforded due process, but only a post deprivation hearing on or about December 14, 2011 before an ALJ who is an employee of defendant Strange. The administrative law judge made a determination that ASORCNA applied to Plaintiff after setting the hearing to determine if 1996 Alabama Community Notification Act, as amended applied to Plaintiff. There is no adequate remedy at law, because the post deprivation hearing conducted by Defendant Strange was merely illusory, as it was only offered after Plaintiff challenged the unilateral denial of process, and no effective legal relief can be obtained apart from this lawsuit. Plaintiff is not subject to any form of the ACNA, as he has not been afforded due process. As such, Plaintiff seeks this preliminary injunction to maintain the status quo of the parties until the merits of his claims have been completely adjudicated.
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168. PLAINTIFF HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS:
There is a substantial likelihood that plaintiff will prevail on the merits because Plaintiff was never subject to any form of the ACNA or to SORNA, and has already and will continue to be deprived of his constitutional rights to due process, equal protection and from the application ex post facto laws. U.S. v. Microsoft Corp., 147 F.3d 935, 943 (D.C. Cir. 1998); DSC Comm Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5th Cir. 1996). 169. While the legislative intent of the ACNA, and now ASORCNA is stated either explicitly or implicitly, and only in part, to be civil in nature, the practical effect of the provisions of the statute transforms the ASORCNA into a criminal statute, thus violating Plaintiff’s constitutional protection against ex post facto laws as guaranteed by Article I Section 10 of the United States Constitution. Plaintiff establishes the practical effect of ASORCNA as punitive by the clearest proof as follows: 170. ASORCNA was effective in 2011. It is arguably the most restrictive legislation of its type in the United States and has become progressively more restrictive on those to which it applies as it has replaced previous legislation. The Act requires persons deemed by the state of Alabama to be sex offenders to register every three months, to update registration each time they intend to move, and their name, addresses and other personal information is posted on the State, Federal and other sex offender registries and websites. Worse however, the ASORCNA has onerous restrictions that greatly inhibit constitutionally protected individual liberties, which transform the codification of the Act into a criminal statute. 171. The restrictions of the ASORCNA effectively banish sex offenders to very limited areas of the outer fringes of the city of Montgomery in which sex offenders may live in compliance. Sex
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offenders are subject to distance requirements from schools, daycare centers, and public parks. Sex offenders are subject to employment restrictions, limiting areas of Montgomery in which they may even seek employment. Because of the residency restrictions attendant to the ASORCNA, Plaintiff cannot live with his wife, who resides in an area of Montgomery deemed to by non-compliant with ASORCNA. 172. These restrictions and requirements are regarded in our history and traditions as punishment, as Plaintiff’s right to marry, to carry on familial relationships, to travel freely and to be free from stigmatization are restricted or eliminated by the ASORCNA’s restrictions and requirements. The effect of the statute is banishment, shaming, parole-like reporting and monitoring requirements and rigorous restrictions on travel and personal movement. ASORCNA’s requirements include the circulation of Community notification flyers sent to residents in the area in which Plaintiff resides, labeling Plaintiff as a sex offender and providing personal information about Plaintiff. The defendants’ actions in actively distributing community notification flyers constitute affirmative “shaming” of Plaintiff by defendants. The defendants’ affirmative actions make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme of the ACNA. 173. In addition, if defendants are not restrained from subjecting Plaintiff to the ASORCNA, Plaintiff will be subject to the attendant registration tracking and monitoring requirements as well as the onerous residency, employment and travel restrictions and personal movement prohibitions for life, which impose affirmative disabilities and restraints on Plaintiff’s fundamental rights to travel, to marry, to carry on familial relationships, to be free from affirmative stigmatization by the state and his right to privacy.
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174. The ASORCNA living restrictions, affirmative shaming and restrictions of Plaintiff’s fundamental rights to carry on familial relationships and to privacy constitutes promoting traditional aims of punishment, as banishment, “scarlet letters” and separation from one’s family have been traditionally used as forms of deterrence and retribution. ASORCNA also subjects Plaintiff to a $250 fine as “punishment” for the commission of his 1986 crime that cannot be waived, suspended or remitted. 175. ASORCNA restrictions and requirements are excessive with regard to the legislative stated intent. The Alabama legislature expressed its intent in passing the Act. Ala. Code § 15-20-20.1. This section, in pertinent part, states that: “The Legislature declares that its intent in imposing certain reporting and monitoring requirements on criminal sex offenders and requiring community notification of the residence and workplace of criminal sex offenders is to protect the public, especially children, from convicted criminal sex offenders.” Further, the Legislature cited the need to protect the public from sex offenders due to the danger of recidivism in establishing the ACNA’s restrictions and requirements. 176. The restrictions and requirements of the ASORCNA are overbroad and excessive. 24 of the 48 codified provisions in ASORCNA expose sex offenders to felony convictions, the vast majority of which carry no finding of scienter, but are “strict liability” felonies, which incorporate both the lowest burden of civil and harsh punishment of criminal laws. The duration of the ASORCNA registration and restrictions are lifetime. Courts Empirical research on child molesters has shown that, “[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release,” but may occur “as late as 20 years following release.” Parker v. King, 2008 WL 901087 (M.D. Ala. 2008)(citing National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research Issues
40

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14 (1997)). Plaintiff had no criminal history prior to his conviction in 1986. In over 25 years since Plaintiff’s conviction, Plaintiff has committed no crimes, whatsoever. Further, Plaintiff was not convicted of a sex offense involving a minor, stranger or child. 177. Plaintiff was never required to register as a sex offender pursuant to his 1986 final judgment in Colorado. To require Plaintiff to register and comply with ASORCNA restrictions constitutes additional punishment upon Plaintiff, as the restrictions are well beyond the scope of his final judgment in Colorado. Plaintiff’s 1986 Colorado conviction cannot be a predicate upon which defendants apply additional restrictions to Plaintiff. Because Plaintiff was never required to register as a sex offender, ASORCNA is inapplicable to Plaintiff, and the restrictions placed upon Plaintiff pursuant to ASORCNA constitute an application of ex post facto laws. 178. HARM TO PLAINTIFF OUTWEIGHS HARM TO DEFENDANTS:
The threatened harm to plaintiff outweighs the harm a preliminary injunction would inflict on defendants. Specifically, the onerous restrictions of Plaintiff’s fundamental liberties are not outweighed by any harm to defendants by enjoining their continuing affirmative deprivation of said liberties. See Hoechst, 174 F.3d at 417; Microsoft, 147 F.3d at 943. Defendants are not prejudiced in any way, by awaiting the outcome of this Court’s findings. The State has an interest in protecting its citizenry. However, there were and are well established procedures defendants can follow to do so. Harm created by violating Plaintiff’s constitutional rights should not inure to the benefit of defendants, but to Plaintiff who suffers the harm of deprivations of liberty caused by the defendants’ intentional failure to follow well established procedure.
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179. THE PRELIMINARY INJUNCTION WOULD NOT ADVERSLY AFFECT THE PUBLIC INTEREST:
Issuance of a preliminary injunction would not adversely affect public interest, but would serve the public interest because the preliminary injunction will ensure that citizens are not arbitrarily and capriciously prosecuted, detained, arrested and subjected to onerous restrictions of liberty, without first, being provided Constitutional due process rights which are afforded citizens of the United States and of every State. Therefore, the public interest is served by ensuring defendants follow or establish procedures in order to prevent the violation of constitutionally protected rights of U.S. citizens and citizens of the State of Alabama. 180. BOND:
Plaintiff is willing to post a bond in the amount the court deems appropriate. 181. PRAYER:
Plaintiff asks the court to set his application for preliminary injunction for hearing at the earliest possible time and, after hearing the request, issue a preliminary injunction against defendants.
REQUEST FOR PERMANENT INJUNCTION 182. Plaintiff respectfully requests this Court to set his application for injunctive relief for a full trial on the issues in this application and, after the trial, to issue a permanent injunction against defendants. 183. Issue a permanent injunction requiring Defendants to expunge from all the files and records of the State and Federal Registries for Sex Offenders and any other entities to which Defendants caused Plaintiff’s information to be posted, any and all documents pertaining to or referencing in
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any manner the classification of Plaintiff as a sex offender and requiring those documents be provided to Plaintiff for destruction. 184. Permanently restrain Defendants from subjecting Plaintiff to any further requirements and/or restrictions, whatsoever, of the ACNA or ASORCNA. 185. Permanently restrain Defendants from subjecting Plaintiff to any further requirements and/or restrictions, whatsoever, of SORNA.
PRAYER FOR RELIEF WHEREFORE Plaintiff prays judgment against Defendants, and each of them, as follows: 1. Enter a declaratory judgment that the policies and practices complained of herein are unlawful and violative of the Fourth, Fifth and Fourteenth Amendments, Ex Post Facto Laws, and the Equal Protection Clause of the United States Constitution, as addressed by and through 42 USC.A §§ 1983, 1985, and 1986, and the common and statutory law of Alabama; 2. For declaratory relief as specifically requested herein; 3. For preliminary injunctive relief as described herein; 3. For permanent injunctive relief as described herein; 4. For general and special damages in an amount to be more precisely proven at trial; 5. Grant Compensatory damages in favor of Plaintiff as against each Defendant of $500,000; 6. Grant Punitive damages to Plaintiff against each Defendant in the amount of $500,000; 7. Grant Plaintiff the cost of this action including reasonable attorneys’ fees; 8. Grant as to Plaintiff such other, further and different relief as this Court may deem just and proper, including all equitable relief, the awarding of which is within the jurisdiction of the Court.
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RESPECTFULLY SUBMITTED on this the 9th day of February, 2012. PLAINTIFF DEMANDS TRIAL BY JURY /s/ J MitchellMcGuire J Mitchell McGuire (MCG044) McGuire & Associates, LLC 31 Clayton Street Montgomery, Alabama, 36104 334-517-1000 (voice) 334-517-1327 (fax) jmcguire@MandAbusinesslaw.com Attorney for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on January 23, 2012, I electronically filed with the Clerk of the Court the
foregoing document through the CM/ECF system, which will send notification of such filing to
the following individuals:
J. Haran Lowe, Jr. Frank Timothy McCollum Post Office Box 1511 Montgomery, Alabama 36102-1511 Attorneys for Defendants Hugh B. McCall and the Alabama Department of Public Safety
Winfield J. Sinclair Peter S. Smyczek Joshua Payne 501 Washington Avenue Montgomery, Alabama 36104 Attorneys for Defendant Luther Strange
Jason C. Paulk City of Montgomery-Legal Dept. P.O. Box 1111 Montgomery, Alabama 36104-1111 Attorney for Defendants: City of Montgomery Kevin J. Murphy, Chief of Police Todd Strange, Mayor
Thomas T. Gallion Constance C. Walker Haskell Slaughter Young & Gallion, LLC Post Office Box 4660 (36103-4660) 305 South Lawrence Street Montgomery, AL 36104 Attorney for Defendants: D. T. Marshall, Sheriff
/s/ J Mitchell McGuire
45

Case 2:11-cv-01027-WKW-CSC Document 74 Filed 02/09/12 Page 46 of 46 Attorney for Plaintiff
46

 
 Case 2:11-cv-01027-WKW-CSC Document 113 Filed 03/29/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v. CITY OF MONTGOMERY, et al.,
Defendants.

) ) )
)
) CASE NO. 2:11-CV-1027-WKW ) ) ) )

ORDER

Plaintiff Michael McGuire has moved for a preliminary injunction, asking the

court to enjoin the enforcement of Alabama’s sex offender registration laws against

him while his suit challenging those laws is pending. (Doc. # 99; see also Doc. # 74

(Plaintiff’s Third Amended Com plaint).) Defendants m oved to dism iss Plaintiff’s

Amended Complaint (Docs. #78, 80, 83, 86), and the coutrgranted their motions with

respect to eleven of Plaintiff’s twelve substantive claims (Doc. # 112).

The decision to grant or deny a prelim inary injunction “is within the sound

discretion of the district court.” Palmer v. Br aun, 287 F.3d 1325, 1329 (11th Cir.

2002). To prevail on a motion for preliminary injunction, the moving party bears the

burden of demonstrating that

(1) it has a substantial likelihood ofsuccess on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the m ovant outweighs whatever damage the proposed

Case 2:11-cv-01027-WKW-CSC Document 113 Filed 03/29/13 Page 2 of 3
injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (quoting Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). A prelim inary injunction is appropriate only where the m ovant satisfies the burden of pers uasion on all four prongs. Am. Civil Liberties Union of Fla., 557 F.3d at 1198. “[Pr]eliminary injunctions of legislative enactments – because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits – must be granted reluctantly and only upon a clear showing that the injunction befo re trial is definitely dem anded by the Constitution and by the other strict legal and qeuitable principles that restrain courts.” Northeastern Fla. Chapter of Ass’n of GenC. ontractors of Am. v.City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). Here, Plaintiff has failed to carry the budren of persuasion on all four elements. First, for the reasons stated in the court’s order granting in part Defendants’ motions to dismiss, Plaintiff has failed to demonstrate a substantial likelihood of success on the merits. (Doc. # 112.) Second, enjoiinng Alabama’s sex offender registration laws would upset the operation of a duly enacted statutory scheme that affects more than ten thousand registrants and the com munities where each of th em live and work. Plaintiff has neither dem onstrated that th e injury to him outweighs that to the
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opposing party without the injunction, nor that enjoining Alabam a’s sex offender registration laws would not be adverse to the public interest.
Accordingly, it is ORDERED that Plaintiff’s Motion for a Prelim inary Injunction (Doc. # 99) is DENIED.
DONE this 29th day of March, 2013. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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 Case 2:11-cv-01027-WKW-CSC Document 112 Filed 03/29/13 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v. CITY OF MONTGOMERY, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:11-CV-1027-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff Michael McGuire’s Alabam a homecoming was not as sweet as he

expected. Upon his arrival, Plaintiff – who was convicted of sexual assault in

Colorado in 1986 – was required to register as a sex offender. This suit resulted. In

his Third Amended Complaint (Doc. # 74), Plaintiff challenges the constitutionality

of the registration requirements, the lack ofa pre-deprivation due process hearing, and

his treatment at the hands of the Montgom ery Police. Defendants m ove to dismiss

Plaintiff’s Amended Complaint, arguing that he fails to state a claim on which relief

can be granted. (Docs. #78, 80, 83, 86.) Upon carefucl onsideration of the arguments

of counsel and the relevant law, the motions are due to be granted in part and denied

in part. Only Plaintiff’s claim premised on a violation of the Ex Post Facto Clause

survives.

Case 2:11-cv-01027-WKW-CSC Document 112 Filed 03/29/13 Page 2 of 41
I. JURISDICTION AND VENUE Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, 1367, a nd 2201. T he pa rties do not c ontest pe rsonal jurisdic tion or ve nue, and allegations sufficiently support both.
II. STANDARD OF REVIEW A Rule 12(b)(6) motion tests the sufficiency of the complaint against the legal standard articulated by Rule 8: “a short and plain statement of the claimshowing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2 ). To survive a m otion to dismiss brought under Rule 12(b)(6), a com plaint m ust contain sufficient factual allegations, “accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed fact ual allegations are unnecessary, it is not enough for a plaintiff to allege that he is entitled to relief; he must plead facts that “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must “eliminate any allegations in the com plaint that are m erely legal conclusions” and assume the veracity of well-pleaded factual allegations, construing them in the light most favorable to the plaintiff.Am. Dental Ass’n v. Cigna Corp,.605 F.3d 1283, 1290
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(11th Cir. 2010); Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). The court need not, however, accept “threadbare r ecitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
III. BACKGROUND A. Factual History
Plaintiff’s troubles started in 1986, wh en a Colorado jury convicted him of sexual assault. Plaintiff served three years in a Colorado prison, and upon his release, the State of Colorado did not require him to register as a sex offender.
More than twenty years later, in April 2010, Plaintfif returned to his hometown, Montgomery, Alabama, to live and work near his extended fam ily. Aware of Alabama’s tough sex offender laws, Plaintiff visited the Montgom ery Police Department on April 14, 2010, to confirm his belief that his Colorado conviction would not subject him to those laws. (Am. Compl. ¶ 18.) His visit was not a short one, and the police did not share his belief.
In his first hour at the police stati on, Plaintiff responded to detectives’ questioning regarding his Colorado conviction. He then asked if he could leave, hoping the detectives could contact him later to inform him of their findings. The detectives would not allow him to leave the building and kept Plaintiff in custody in the Special Victims Unit of the Montgomery Police Department for several hours.
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Before allowing Plaintiff to leave, police personnel fingerprinted and photographed him and required hi m to register as a sex offender. They inform ed Plaintiff he had five days to move from his mother’s address to a compliant address and that he had to register with th e Montgom ery County Sheriff’s Departm ent immediately.
Weeks later, Plaintiff went to the Montgomery County Sheriff’s Office, where he endured sim ilar warnings regarding compliance with Alabam a’s sex offender registration laws and faced the s ame insistence that he was subject to those laws. Sheriff’s Department employees photographed, fingerprinted, and drew DNA from Plaintiff.
Since April 2010, Plaintiff has been subject to the requirements of Alabama’s sex offender registration laws. In May 2010, Plaintiff’s name and address, as well as information regarding his Colorado c onviction went “live” on the Alabam a sex offender registry website. The nextmonth, a community notification flyer, distributed by mail and other means, warned of Plaintiff’s presence in Montgomery.
Plaintiff received no due process hear ing prior to t he determination his Colorado conviction subjected him to Alabama’s registration laws. Four days after his first m eeting with Montgom ery Police in April 2010, Plaintiff m et with Department detectives again and requested a due process hearing. He was told that
4

Case 2:11-cv-01027-WKW-CSC Document 112 Filed 03/29/13 Page 5 of 41

the Department would arrange for one immediately.

Eighteen m onths later, in October 2011, Plaintiff called the Alabam

a

Department of Public Safety (“ADPS”) and inquired about his entitlem ent to a due

process hearing. Plaintiff learned thatmonth from an ADPS attorney that the agency

had denied his request for a hearing andinformed the Montgomery Police Department

of that denial many months earlier.

In Novem ber 2011, after Plaintiff file d suit in state court challenging the

requirements of registration, he received notice froma state administrative law judge

informing him of a hearing to determine whether his Colorado conviction subjected

him to Alabama’s registration requirements. A post-deprivation hearing occurred on

December 14, 2011, less than two weeks after Plaintiff filed suit in this court. In

January 2012, the administrative law judge ruled that Plaintiff’s Colorado conviction

made him subject to Alabama’s existing laws.

B. Procedural History

Plaintiff filed suit in this court on December 2, 2011. (Doc. # 1.) One week

later, he moved thecourt for a temporary restrainingorder to enjoin the December 14,

2011, post deprivation hearing. (Doc. # 6.) The court denied Plaintiff’s motion (Doc.

# 15), and the next day, Plaintiff filed his First Amended Complaint (Doc. # 16). He

later moved for the first time for a preliminary injunction (Doc. # 32).

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The first round of motions to dismiss came in quick succession. (Docs. # 29, 35, 39, 40, 42.) In an apparent response to arguments raised therein, Plaintiff voluntarily dismissed his claims against a number of Defendants.1 (Docs. # 48, 49.) Plaintiff then sought leave to file his Second Amended Complaint, which the court granted. (Docs. # 50, 64, 66.)
After a status conference with the partiesand the court, the court gave Plaintiff fourteen days to consider amending his complaint a third time. (Doc. # 71.) Plaintiff did so, and sixty-nine days after his firstcomplaint, Plaintiff filed his Third Amended Complaint (Doc. # 74 (“Amended Complaint” or “Am . Compl.”)) and his second motion for a preliminary injunction (Doc . # 99). This, the fourth iteration of Plaintiff’s complaint, is the one currently before the court.
IV. DISCUSSION In this Amended Complaint, Plaintiff brings twelve causes of action under state and federal law seeking damages and injunctive relief against six Defendants. Each count incorporates every antecedent allegation by reference and almost every count
1 Plaintiff dismissed his claims against the City of Montgomery Police Department and four affiliated detectives, the Montgomery County Sheriff’s Department and one of its deputies, an attorney with the Alabama Department of Public Safety, and United States Attorney General Eric Holder. (Doc. # 48.) His Amended Complaint states a claim against the City of Montgomery, Montgomery Police Chief Kevin Murphy, Montgomery Mayor Todd Strange, Montgomery County Sheriff D.T. Marshall, Director of the Alabama Department of Public Safety Hugh McCall, and Alabama Attorney General Luther Strange. (Am. Compl. ¶¶ 3–10; Doc. # 88 (voluntarily dismissing claims against the Alabama Department of Public Safety).)
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names all Defendants without differen tiation, creating a bewildering m aze of
allegations. Defendants, rather than moving for a more definite statement under Rule 12(e), moved to dismiss Plaintiff’s complaint.2 In the end, only Plaintiff’s Ex Post
Facto claim survives, and only with regard tothe most recent iterations of Alabama’s
sex offender registration laws.
A. Plaintiff has stated a claim that Alabama’s sex offender registration laws violate the Ex Post Facto Clause.
1. Evolution of Relevant Statutory Law
In 1967, Alabama’s first laws requiring the registration of sex offenders took
effect. 1967 Ala. Acts, No. 507 (“Act 507”).Codified at §§ 13A-11-200–03, the laws
required those convicted in any federal or state court – in Alabama or elsewhere – of acts “of sexual perversion”3 to register with the sheriff in the registrant’s county of
legal residence. Ala. Code § 13A-11-200 (1982 & Supp. 1986). The law required
county sheriffs to maintain a roster of re gistered sex offenders in their respective
2 Defendants’ motions to dismiss “were comprehensible in a literal sense,” but because they addressed the Amended Complaint as a whole “they were, as a practical matter, as vague and ambiguous” as the Amended Complaint. Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001) (discussing a shotgun answer which followed a shotgun complaint).
3 Under Act 507, a conviction for “generally any act of sexual perversion involving a member of the same or the opposite sex, or any sexual abuse of any member of the same or the opposite sex or any attempt to commit any of these acts” would subject one to registration. Ala. Code § 13A-11-200 (1982 & 1986 Supp.). Act 507 enumerated sex offenses under Alabama law and provided that conviction for any of the enumerated offenses automatically subjected one to registration. The enumeration, however, did not “limit[] the generality of the above statement” regarding acts of sexual perversion. Id.
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counties and transmit that information to theState Department of Public Safety, which would maintain a statewide roster. Id. at §§ 13A-11-201–02. Both rosters were open only to “duly constituted law enforcement officers.” Id. This was the law at the time of Plaintiff’s 1986 conviction in Colorado.
By 2010, when Plaintiff returned to Alabama, the consequences of his offense had changed.4 The law still required those convicted of enum erated “criminal sex offenses” to register and specified th at it applied to crim es com mitted in any jurisdiction that, if committed in Alabama, would constitute one of the enum erated offenses. Ala. Code § 15-20-21(4)( l) (2010 Supp.). But in addition to requiring registration with local law enforcement, the law prohibited registrants from living or working within a certain radius of schools, universities, childcare facilities, or other like establishments. Id. at § 15-20-26. And though the information was not publicly accessible, the law required law enforcemen t to notify those living within a cer tain radius of a registrant of that registra nt’s presence and conviction via a com munity notification flyer. Id. at § 15-20-25.
In 2011, after Plaintiff moved to Alabama but before he filed this suit, the law changed again with passage of the Alabama Sex Offende r Registration and
4 The law changed most dramatically in 1996, with the passage of the Community Notification Act. 1996 Ala. Acts, No. 793 (“CNA”).
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Community Notification Act (“ASORCNA”), which expressly repealed the laws
discussed above. 2011 Ala. Acts, No. 640. ASORCNA’s provisions apply to those
convicted of enumerated sex offenses under Alabama law, as well as those convicted
in another jurisdiction of a crime that, “if it had been committed in [Alabama] under
the current provisions of law, would constituet” one of the enumerated offenses. Ala.
Code § 15-20A-5(33).
Like its predecessor, ASCORNA restrictswhere a registrant may live or work5,
id. at §§ 15-20A-11, 15-20A-13, requires the distribution of community notification
flyers to those living nearthe registrant’s residence, id. at § 15-20A-21, and provides
for a “public registry website maintained by the Department of Public Safety” which
5 ASORCNA prohibits registrants from living within 2,000 feet of property containing “any school or childcare facility,” and from living within 2,000 feet of the registrant’s former victim or the victim’s immediate family. Ala. Code § 15-20A-11(a), (b). It also prohibits registrants from sharing a residence with a minor, unless the registrant is “the parent, grandparent, stepparent, sibling, or stepsibling of the minor.” Id. at § 15-20A-11(d). If, however, any of the registrant’s victims were the registrant’s “minor children, grandchildren, stepchildren, siblings, or stepsiblings,” or any other child, the exemption for living with family members will not apply. Id.
ASORCNA also prohibits registrants from working or volunteering “at any school, childcare facility, or mobile vending business that provides services primarily to children, or any other business or organizations that provides services primarily to children.” Id. at § 15-20A13(a). Additionally, no registrant may work “within 2,000 feet of the property on which a school or childcare facility is located” or “within 500 feet of a playground, park, athletic field or facility, or any other business having a principal purpose of caring for, educating, or entertaining minors.” Id. at § 15-20A-13(c). The employment provisions – like most of the residency restrictions outlined above – apply with equal force whether the registrant’s former victim was a minor.
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includes information6 on each registrant,id. at § 15-20A-8. Registrants must “appear
in person to verify all required registration information” quarterly. Id. at § 15-20A-
10(f). The law requires each registrant to “obtain, and always have in his or her
possession,” “a driver license or identification card bearing a designation that enables
law enforcement officers to identify the licensee as a sex offender.” Id. § 15-20A-
18(a), (d). ASORCNA also prohibits registrants from changing their names “unless
the change is incident to a change in th e m arital status of the sex offender or is
6 At § 15-20A-8(a), ASORCNA specifically provides for online publication of information on the registrant, to include:
(1) Name, including any aliases, nicknames, ethnic, or tribal names. (2) Address of each residence. (3) Address of any school the sex offender attends or will attend. For purposes
of this subdivision, a school includes an educational institution, public or private, including a secondary school, a trade or professional school, or an institution of higher education. (4) Address of any em ployer where the sex of fender works or will work, including any transient or day laborer information. (5) The license plate num ber and descrip tion of any vehicle used for work o r personal use, including land vehicles, aircraft, and watercraft. (6) A current photograph. (7) A physical description of the sex offender. (8) Criminal history of any sex offens e for which the sex offender has been adjudicated or convicted. (9) The text of the crim inal provision of any sex offense of whi ch t he sex offender has been adjudicated or convicted. (10) Status of the sex offender, including whether the sex offender has absconded. It specifically excludes from publication a registrant’s: “(1) Criminal history of any arrests not resulting in conviction; (2) Social Security number; (3) Travel and immigration document numbers; (4) Victim identity; and (5) Internet identifiers.” Id. at § 15-20A-8(b).
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necessary to effect the exercise of the religion of the sex offender.” Id. at § 15-20A36.
Additionally, ASORCNA requires registranst who intend to be away fromtheir county of residence for three or more consecutive days to “report such information in person immediately prior to leaving”and complete a travel permit form providing “the dates of travel and temporary lodging information.” Id. at § 15-20A-15(a), (b). The permit form explains the duties of the regisrtant regarding travel, and registrants must sign the form, acknowledging their duties, or “the travel permit shall be denied.” Id. at § 15-20A-15(d). When a registrant obtains a permit, the registrant’s local sheriff must “immediately notify[] local law enforcement” where the registrant will travel. Id. at § 15-20A-15(e).
2. Plaintiff’s Ex Post Facto Challenge Count IV of Plaintiff’s Am ended Complaint alleges Alabama’s sex offender registration laws 7 violate the Ex Post Facto Clause when applied to registrants
7 Plaintiff argues application of all three iterations – Act 507, CNA, and ASORCNA – violate his Ex Post Facto rights. The court will focus on the most recent law, ASORCNA, for two reasons. First, subjecting Plaintiff to Alabama’s Act 507 – the state’s original sex offender registration law in effect when Plaintiff committed rape in Colorado in 1986 – simply could not pose an Ex Post Facto problem. There is nothing retroactive about applying a law that was in effect at the time Plaintiff committed the assault for which he was convicted. Second, the parties have focused on ASORCNA. Though the CNA applied retroactively to Plaintiff for some months upon his arrival, it has since been repealed. Plaintiff is no longer at risk of it being retroactively applied to him; thus ASORCNA is the proper target for analysis.
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convicted before the laws’ effective date s. (Am. Compl. ¶¶ 105–07.) Plaintiff has stated a claim for relief, and Defendants’ motions are due to be denied with respect to the Ex Post Facto claim.
The United States Constitution prohibits states frompassing any “ex post facto Law.” U.S. Const. Art. I, § 10. The Ex Post Facto Clause prohibits crim inalizing conduct retroactively – “mak[ing] an action, done before the passing of the law, and which was innocent when done, crim inal.” Calder v. Bull, 3 U.S. 386, 390 (1798) (Chase, J.). In addition toprohibiting retroactive criminalization of the act itself, the Ex Post Facto Clause prohibits increasing punishm ent for crim inal acts after their commission. Id.
When a statute applies retroactively, a two-step analysis determines whether that statute violates the Ex Post Facto Clause.
If the intention of the legislature wsa to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose oreffect as to negate [the state’s] intention to deem it civil. Smith v. Doe, 538 U.S. 84, 92 (2003) (“ Smith”) (internal quotations om itted). The Supreme Court of the United States has identified a number of guideposts useful in the second step of that analysis, when considering whether the effect of a statute is so punitive that it overwhelm s a civil purpose. Those guideposts ask “whether, in its
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necessary operation, the regul atory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Id. at 97 (citing Kennedy v. MendozaMartinez, 372 U.S. 144, 168–69 (1963)).
Beginning at Smith’s first step, with legislative intent, circumstances suggest that the legislative intent underpinning ASORCNA was civil, not punitive. When it enacted ASORCNA, the Al abama legislat ure intended to protect “vulnerable populations, particularly children.” Ala. Code § 15-20A-2(5). The Legislature expressly disclaimed that its intent was to punish; rather, it m eant “to protect the public and, most importantly, promote child safety.” Id.
In addition to the plain language of t he statute, “the manner of t he statute’s classification” is also relevant to dete rmining wh ether the legislative intent was punitive. United States v. W.B.H., 664 F.3d 848, 854 (11th Cir. 2011). ASORCNA is codified in Title 15 of the Alabama Code, the title containing the state’s criminal procedures and other nonpunitive, nonsubstantive provisions for the adm inistration of criminal law. ASORCNA’s home in Aal bama’s criminal procedure code does not “support a conclusion that the legislative intent was punitive.” Smith, 538 U.S. at 95 (considering Alaska’s registration law and its codification in th at state’s crim inal
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procedure code). Thus, th e analysis continues to Smith’s second step and the Mendoza-Martinez guideposts.
Smith’s second step asks whether the effect of the law is so punitive that it overwhelms the legislature’s civil intent. The “second step is a steep one for those challenging a statute on those grounds.” W.B.H., 664 F.3d at 854 (citing Smith, 538 U.S. at 92). Courts “ordinarily defetro the legislature’s stated intent,”id., and statutes enjoy a pre sumption of c onstitutionality. Smith, 538 U.S. at 110 (Souter, J., concurring). “[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 92; see als o W.B.H., 664 F.3d at 855 (“[S] ome evidence will not do; substantial evidence will not do; and a preponderance of the evidence will not do.”). At this stage, the parties have had no opportunity to develop proof – clear or otherwise. Taking the Mendoza-Martinez guideposts in turn to analyze ASORCNA’s effect, the court finds that Plaintiff’s Ex Post Facto claim survives Defendants’ m otions to dismiss.
The first guidepost asks “whether the regulatory regime has been regarded in our national history and tradition as punishm ent.” W.B.H., 664 F.3d at 855. The Supreme Court in Smith held that adult sex offender registries, like Alabama’s, have not been so regarded. Community notification provisions – which exist to disseminate
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accurate and public inform ation about crim inal convictions – ar e unlike historic practices such as public shaming and branding, which are unquestionably punitive. Smith, 538 U.S. at 98; see also W.B.H. , 664 F.3d at 855 (holding that the first guidepost did not indicate that the effect of the federal sex offender registry was punitive).
But at this stage, discover y is necessary to determine whether the residency, employment, and loitering restrictions am ount to banishment, another historically punitive practice.8 While such restrictions do not literally “expel” registrants from their communities or prevent them from accessing prohibited areas except to live or work, they could have, depending on the fact s shown, a p ractical effect similar to expulsion in some communities. Cf. Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (“Miller”) (holding that Iowa’s residency restrcitions did not amount to a bansihment).
The second guidepost asks whether the regulatory schem e “im poses an affirmative disability or restraint.” Smith, 538 U.S. at 97. “If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 100. ASORCNA does not require confinem ent, the prototypical form of punitive restraint. Id. And ASORCNA’s in-person reporting requirements, while inconvenient for registrants, are
8 ASORCNA also prohibits registrants convicted of a sex offense against a minor from loitering within 500 feet of “a school, a childcare facility, playground, park,” and other like areas, though that prohibition does not preclude offenders from accessing those areas for “legitimate purpose[s]” other than to live or work. Ala. Code § 15-20A-17.
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not punitive, as they “help law enforcem ent track sex offenders and ensure that the information provided is accurate.” W.B.H., 664 F.3d at 857.
There is, however, a notable differe nce between ASORCNA and the laws approved in W.B.H. and Smith. Unlike ASORCNA, the other laws do not actively restrict locations where registrants may live or work. Because convictions are already a matter of public record, a potential employer or landlord could learn of a conviction through a routine background check.Smith, 538 U.S. at 101;W.B.H., 664 F.3d at 857. With the benefit of that information, a potential employer or landlord may decide not to hire or rent to a registrant. That choice may even be a likely one, but the choice – under those laws – rem ains in the hands of the potential employer or landlord. By contrast, ASORCNA’s active restriction on where registrants m ay live or work imposes a direct restraint.
It is also possible that ASORCNA’s travel permit requirement amounts to a direct restraint. ASORCNA requires registrants to “complete a travel permit” when they intend to be away from their home county for three or more consecutive days. Ala. Code § 15-20A-15. Without fact s shedding light on when and under what circumstances sheriffs can refu se or have refused perm its,9 the court is unable to
9 The statute requires sheriffs to deny permits to registrants who refuse to sign the travel permit form acknowledging their responsibilities while away. Ala. Code § 15-20A-15(d). It is silent on whether or on what other grounds a sheriff may deny a permit.
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determine whether such a requirement imposes an affirmative disability or restraint. The fact that certain provisions may or do impose a direct restraint “does not
inexorably lead to the conclusion that the governm ent has im posed punishment.” Kansas v. Hendricks, 524 U.S. 346, 363 (1997) (internal quotations omitted) (holding that Kansas’s civil commitment scheme for sexually violent predators – though it imposed a direct restraint – did not violate theEx Post FactoClause). The guideposts are “neither exhaustive nor dispositive,” Smith, 538 U.S. at 97, and they certainly should not be dispositive at this stage, where questions remain.
Consequently, the analysis continues tothe third guidepost, which asks whether the law promotes traditional aims of punishment, namely retribution and deterrence. W.B.H., 664 F.3d at 858. The Alabam a legislature did not m ention retribution but acknowledged deterrence was one purpose of ASORCNA. Ala. Code § 15-20A-2(1) (“Registration and notification laws aid in public awareness and not only protect the community but serve to deter sex offe nders from future crim es through frequent in-person registration.”). Bu t a d eterrent purpose will not necessarily render a registration requirement punitive, and a n incidental deterrent effect will not do so either. Smith, 538 U.S. at 102. Thus, this courtfollows the reasoning of the Supreme Court and the Eleventh Circuit when itocncludes that ASORCNA’s deterrent purpose “is not enough to justify a finding that [its] purpose is punitive” as a m atter of law.
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W.B.H., 644 F.3d at 858 (citing Smith, 538 U.S. at 102). The fourth – and “m ost significant” – guidepost asks whether the statute is
rationally connected to a nonpunitive purpose. Smith, 538 U.S. at 102. Again, the reasoning of the Supreme Court and the Eleventh Circuit is instructive. ASORCNA, like the statutes considered by those courts, embodies the legitimate, nonpunitive aim “of promoting public safety ‘by alerting the public to the risk of sex offenders in their community.’” W.B.H., 664 F. 3d a t 859 (quoting Smith, 538 U.S. at 103). The registration requirem ents, com munity no tification provisions, and residency and employment restrictions are all connectedto the civil, nonpunitive aim“of protecting vulnerable populations, particularly children.” Ala. Code § 15-20A-2(5).
Finally, the fifth guidepost directs thecourt to consider whether ASORCNA’s requirements are excessive with respect to its nonpunitive purpose. Smith, 538 U.S. at 97. This calls for assessment of the law’s cumulative impact.
The absence of a particularized risk assessment as to the length of time since the offense or the likelihood of violence or recidivism does not, alone, make ASORCNA excessive and therefore punitive. Alabama, like any other state, has the authority to make a rule of universal classification, “treating ‘convicted sex offenders as a class rather than r equiring individual determinations of their dangerousness.’” W.B.H., 664 F.3d at 859 (quoting Smith, 538 U.S. at 104 (alterations omitted)). The
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Ex Post Facto Clause allows states to make “reasonable categorical judgments that

conviction of specified crim es should enta il particular regulatory consequences.”

Smith, 538 U.S. at 103. Nonetheless, the categoircal treatment of registrants – failing

to differentiate among registrants based on their offenser,equiring lifetime registration

for all registrants – is one factor

to consider when assessing ASORCNA’s

reasonableness.

The residency and employment restrictions, travel permit requirement, and the

lifetime registration period may impose, cumulatively, an onerous and direct restraint.

For instance, the work restriction would most likely exclude a registrant from any

number of construction trades in all but the m ost sparsely populated areas, for a

registrant could not repair a roof or pour concrete within 2, 000 feet of a school or

childcare facility. Nor could a registrant etchnically drive a work vehicle – a delivery

truck, for example – on any public roadwaywithout risking a technical violation and

felonious consequences should the registrant cross into the restricted radius.See Ala.

Code § 15-20A-13(b) (“No adult sex offende rs shall . . . m aintain employment . . .

within 2,000 fe et of the prope rty on whic h a sc hool or c hildcare facility is

located . . . .”).

The Alabam a Legislature has determ ined that 2,000 feet is the appropriate

restrictive radius within which regist rants m ay not live or work, and such

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determinations are “the sort of task for which the elected policymaking officials of a

State, and not the federal courts, are properly suited.” Miller, 405 F.3d at 715. But

the reasonableness of that decision is a determination for the courts.

“The excessiveness inquiry of ourex post factojurisprudence is not an exercise

in determining whether the legislature has made the best choice possible to address

the problem it seeks to remedy. The question is whether the regulatory means chosen

are re asonable in light of the nonpunitive objective .” Smith, 538 U.S. at 105.

Answering the question of reasonableness requires discovery and a better informed

judicial review at summary judgment or trial. Plaintiff is entitled to develop facts on

which the court may determine the reasonableness of the restrictions and then weigh

reasonableness, among the otherMendoza-Martinez guideposts, to determine whether

Plaintiff has provided the clearest proof that ASORCNA’s punitive effect overwhelms

its civil intent.

B. Plaintiff received more procedur al due process than he w

as

constitutionally due.

Plaintiff claims in Count I that Defendants violated his right to procedural due

process as guaranteed by the Fourteen th Am endment to the United States

Constitution.10 Specifically, Plaintiff argues he was entitled to a hearing before the

10 Plaintiff does not argue that Defendants violated his right to procedural due process as guaranteed by the Alabama Constitution or state statute.
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state labeled him a sex offender.11 But it is settled law that the right to due process does not entitle a sex offender to a hearing m eant to establish a fact that is not material12 under the applicable statute.Connecticut Dept. of Public Safety v. Do,e538 U.S. 1, 7 (2003) (“Connecticut DPS”). Accordingly, Plaintiff has no federal right to a due process hearing unless he can “show thatthe facts [he seeks] to establish in that hearing are relevant under [Alabama’s] statutory scheme.” Id. at 8.
The fact of conviction is the only relevant fact Plaintiff might have a right to dispute at a due process hearing. But Plaintiff does not dispute that he was an adult at the time of his offense, and he readily admits he was convicted of a sex offense: “Plaintiff was convicted of sexual assault in the State of Colorado on or about May, 1986.” (Am. Compl. ¶ 12.) Plaintiff does not dispute the only fact that matters.
Act 507 and the CNA – in effect when Plaintiff moved to Alabama – applied generally to adult sex offende rs for life, whether they were convicted of one of the enumerated offenses in Alab ama or of a crime in another jurisdiction that, if it had
11 Though he now complains he did not receive procedural due process, Plaintiff inexplicably sought to enjoin the post-deprivation hearing he eventually received. (Doc. # 6.) Today, Plaintiff maintains that “post-deprivation process is not effective” (Am. Cmpl. ¶ 68), and he insists that “[t]he judgment of the Administrative Law Judge is want of all of the elements of due process.” (Doc. # 97, at 25.) For reasons that follow, that hearing was more process than Plaintiff was due under the United States Constitution.
12 The Supreme Court of the United States in Connecticut DPS uses the terms “material” and “relevant” interchangeably, and so will this court. If there is a distinction, here it is one without a difference.
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been committed in Alabama, would have constituted one of the enumerated offenses. Ala. Code §§ 15-20-21(4)(l), 15-20-33(a) (1982 & 1986 Supp. ). T hus, the fact of Plaintiff’s adult conviction was the only relevant fact under the law as it existed when he m oved to Alabam a. See Parker v. King , No. 2:07-CV-624-WKW, 2008 WL 901087, at *20 (M.D. Ala. Mar. 31, 2008) (recognizing “conviction of a criminal sex offense” as “the only relevant fact” unde r Act 507 and CNA). It rem ains the only relevant fact under ASORCNA. Ala. Code §§ 15-20A-3(a), 15-20A-5(33).
Moreover, the court need not decide whether the conclusion that Plaintiff’s Colorado conviction qualified as a sex offense under Alabama law is a relevant fact under Alabam a’s statutory schem e. First, it seems doubtful that such a legal determination is a “fact,” separate from the fact of conviction, under the meaning of Connecticut DPS. Second, when the State afforded Plaintiff a hearing to determine “if the elem ents of [his] crim e were similar to sex crim es under Alabam a law,” Plaintiff objected. (Am. Compl. ¶ 71.)
Although Plaintiff has not identified what he would try to establish at a due process hearing, it seem s likely he would raise the same sub stantive due process challenges he pursues in this lawsuit. (See Am. Compl. ¶ 71 (insisting on a hearing to determ ine the applicability the CNA to Plaintiff).) But “such claim s m ust ultimately be analyzed in term s of subs tantive, not procedural, due process.”
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Connecticut DPS, 538 U.S. at 8. Accordingly, nothnig alleged in Plaintiff’s Amended

Complaint amounts to a violation of procedural due process, so Count I is due to be

dismissed for failure to state a clai m upon which relief can be granted. See United

States v. Ambert , 561 F.3d 1202, 1208 (11th Cir. 2009) (rejecting procedural due

process challenge to federal sex offender registration law because challenger did not

dispute fact of his conviction).

C. Plaintiff’s claim that Alabama’s sex offender registration laws violate his substantive due process rights fails.

Plaintiff alleges in Count II that

Alabama’s sex offender registration

requirements violate his substantive due process rights by preventing him from

traveling freely, marrying and carrying on familial relationships, and by affirmatively

stigmatizing him. Though not exactly a substantive due process argument, Plaintiff

argues in the same Count that Alabama has failed to give full faith and credit to the

judgment of a Colorado court, thus violating the constitutional prescription found in

the Full Faith and Credit Clause. U.S. Const. Art. IV, § 1. None of these allegations

states a claim entitling Plaintiff to relief.13

The substantive com ponent of the Fourteenth Am endment’s Due Process

Clause “protects fundam ental rights that ar e so im plicit in the concept of ordered

13 In doing so, the court states no opinion whether another registrant, pleading more or different facts, could raise a colorable claim for relief that ASORCNA violates these or other constitutional rights.
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liberty that neither liberty nor justice w ould exist if they were sacrificed.” Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005) M(“oore”) (internal quotations omitted). A state may only infringe a fundamental right when it narrowly tailors its action to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 302 (1993). When state action does not im plicate a fundam ental right, it need only bear a rational relationship to a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
1. Right to Travel While the Supreme Court has been relucatnt to expand substantive due process by recognizing new fundam ental rights, it has recognized som e special liberty and privacy interests im plicit in the Constitution. Moore, 410 F.3d at 1343 (citing Glucksberg, 521 U.S. at 720). Though “the constitutional right to travel from one state to another is firmly embedded in our jurisprudence,”Saenz v. Roe, 526 U.S. 489, 499 (1999) (internal quotations omitted), the restriction imposed by Alabama’s law does not support Plaintiff’s claimthat the law infringes on the right to trave1l4. A state may not unreasonably burden a person’s right to (1) enter and leave that state, (2) be treated fairly when temporarily present in another state, or (3) be treated the same as
14 The Supreme Court of the United States has not identified the textual source of the right to interstate travel. Saenz, 526 U.S. at 501. Thus, Plaintiff’s claim may not be a substantive due process one after all.
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other citizens of a state when movin g there permanently. Moore, 410 F.3d at 1348–49. Still, a state’s interests in preventing recidivism and protecting its citizens allow it to impose travel restrictions on sex offenders as part of an otherwise lawful registration scheme. “[M]ere burdens on a person’s ability totravel from state to state are not necessarily a violation of [his or her]right to travel.” Id. at 1348 (citingSaenz, 526 U.S. at 499).
Plaintiff ha s pl eaded no fa cts pl ausibly supporting a c onclusion t hat t he requirement unreasonably burdens his freedom to travel. Alabama’s law requires a registrant to obtain a travel perm it fro m law enforcement when he or she i s temporarily “away from his or her county of residence for a period of three or more consecutive days.” Ala. C ode § 15-20A-15(a). Plaintiff does not allege that he is treated differently from nonresident sex offenders, and most importantly, he does not allege that the perm it requirement has prevented him from leavi ng the state. (Am. Compl. ¶ 93 (alleging only that“the requirement to seek a travel permit dramatically alters Plaintiff’s status as a U.S. Citizen”).)
Recognizing a fundam ental right to inte rstate travel based on Plaintiff’s unspecified allegations risks extending “the doctrine beyond the Suprem e Court’s pronouncements in this area.”Miller, 405 F.3d at 712 (rejectinga challenge to Iowa’s sex offender law premised on a right to interstate travel). Alabama’s “strong interest
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in preventing future sexual offenses and alerting local law enforcement and citizens to the whereabouts of those [who] could reoffend” support the constitutionality of ASORCNA’s tr avel restrictions based on the facts alleged. Moore, 410 F.3d at 1348–49 (upholding travel restrictions in Florida’s Sex Offender Act); see also Pelland v. Rhode Island , 317 F. Supp. 2d 86, 95 (D.R .I. 2004) (rejecting a sex offender probationer’s due process challenge to travel resrtictions because – assuming the state could not categorically restrict the liberties of probationers – the limitations were nonetheless reasonable and served a legitimate governmental interest).
2. Right to Marry and Carry on Familial Relationships Plaintiff complains that Alabama’s sex offender registration laws violate his fundamental right to marry and carry on familial relationships because they prevent him from living with his mother and his wife. (Am. Compl. ¶¶ 23, 46.) This claim fails. No provision of Alabama’s sex offender registration laws prohibits him from residing with his wife or his m other. Ala. Code § 15-20A-11 (listing prohibited residence locations). To the extent the law inhibits Plaintiff fromdoing these things, it does so only because the address at which Plaintiff desires to live with his wife and his mother is not a compliant address. ASORCNA “do es n ot directly regulate th e fam ily relationship” or prevent Plaintiff’s wife or mother from residing with him at a compliant address. Miller, 405
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F.3d at 711 (rejecting a sim ilar challenge to Iowa’s sex offender law). An indirect effect does not amount to an infringement of a fundamental right, Moore, 410 F.3d at 1345–46, and the residency re quirements rationally relate to the state’s interest in preventing recidivism. See Ala. Code § 15-20A-2(5) (finding that “[em] ployment and residence restrictions, together with monitoring and tracking,” further “the prim ary governmental interest of protecting vulnerable populations, particularly children”).
3. Right to be Free from Affirmative Stigmatization There is no fundamental right to be free from affirmative stigmatization, and Plaintiff’s claim premised on that right entitles him to no relief. The “rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, [and] to bodily integrity,” are fundam ental rights protected by the Due Process Clause. Glucksberg, 521 U.S. at 720. The “right” to be free from affirmative stigmatization is not. In the absence of a fundam ental interest, the relevant inquiry is whether the dissemination of inform ation regarding Plaintiff’s status as a sex offender – dissemination he argues affirm atively stigm atizes him – is rationally related to a legitimate governmental purpose. It is. The stigmatization Plaintiff com plains of “results not from public display for ridicule and shaming but from the dissemination of accurate inform ation about a cr iminal record, most of which is already public.”
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Smith, 538 U.S. at 99 (discussing Alaska’s sex offender registration and community notification law). The dissem ination of tr uthful information serves the legitim ate governmental objective of inform ing the public for its own safety. Id. at 98–99. “Widespread public access is necessary f or the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Id. at 99 (upholding Alaska’s law). Plaintiff has no colorable claim that registration violates a nonexistant due process right to be free from affirmative stigmatization.
4. Full Faith and Credit Plaintiff’s Colorado judgment of conviction contains no judgment – indeed, no conclusion – that Plaintiff should not be subject to registration. Thus, there is no judgment that Plaintiff is not subject to registration to which Alabama is required to give full faith and credit. The only judgment to which Alabama must give full faith and credit is Plaintiff’s rape conviction, and it has done so. Cf. Ala. Code § 15-20A5(33) (requiring individuals convicted in other jurisdictions of a crime that, if it had been committed in Alabama, would have constituted an enumerated sex offense under Alabama law to register). Plaintiff’s argument is analogous to thatof the similarly unsuccessful plaintiff in Rosin v. Monken, 599 F.3d 574, 576 (7th Cir. 2010). In Rosin, Illinois police did not violate the Full Faith and Credit Clause when they required a man to register as
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a sex offender under that state’s laws, not withstanding that he was not required to
register in New York where he was convicted. Id. In the New York judgm ent
accepting his plea agreement, boilerplate language regarding sexoffender registration
was stricken, leaving the judgment silent on registration. Id. at 575. The absence of
the provision did not preclude other states from requiring him to register. Id. at 576.
Similarly, the judgment of the Colorado court – which is silent on registration
in Colorado or any other state – does not preclude Alabama from requiring Plaintiff
to register. 15 Plaintiff’s allegations do not st ate a claim that any Defendant has
violated his rights under the Full Faith and Credit Clause.
D. Plaintiff’s challenge based on Equal Protection fails.
In Count III, Plaintiff argues Alabama’s sex offender registration laws violated
his rights under the Equal Protection Clau se. U.S. Const. am end. XIV, § 1.
15 Plaintiff’s attempts to distinguish Rosin are unavailing. (Doc. # 97 at 37–38.) Neither Plaintiff nor the Rosin plaintiff was ever required to register in their respective states of conviction. Rosin, 599 F.3d at 575. Additionally, though there is no judgment affirmatively labeling Plaintiff a sex offender or subjecting him to registration, there is a judgment of conviction adjudicating him guilty of sexual assault in the first degree and finding that he knowingly inflicted sexual penetration and caused the submission of his victim through the actual application of physical force and violence. (Docs. # 76, Exs. 1, 2.) Such a judgment would have subjected Plaintiff to registration under Act 507 and the CNA, and currently subjects him to registration under ASORCNA. See supra Part II.A.1. (discussing the evolution of Alabama’s sex offender registration laws). Consideration of the judgment of conviction at this stage is proper, as it is an extrinsic document central to Plaintiff’s claim, and neither party challenges its authenticity. See Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (permitting courts to consider information outside the four corners of a complaint at the motion to dismiss stage under limited circumstances).
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Generally, a successful equal protection clai m requires that a plaintiff show he was treated less favorably than others sim ilarly situated and that the discrim inatory treatment was based on some constitutionally protected interest, such as race1.6 Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir. 2001). Sexoffenders are not a suspect class, nor do various sub-classifications of o ffenders based on the offender’s “parental relationship to victim, status of [the]offender as a minor, insanity or civil commitment of the offender, [or] release of [the] offender from supervision prior to enactment of the statute” divide offenders into suspect classes. Moore, 410 F.3d at 1346; see also United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001) (“Sex offenders are not a suspect class.”). Thus, strict scrutiny will not apply to Plaintiff’s equal protection claim.
Instead, classifications based on sex offender status are subject to rational basis scrutiny, which asks “whether they are ‘rtaionally related to a legitimate governmental purpose.’” Moore, 410 F.3d at 1346 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). The Alabama Legislature laid out ample justification
16 In an exception to this general rule, a so-called “class of one” equal protection claim can succeed where a plaintiff shows that (1) the defendant intentionally treated him differently from others similarly situated, and (2) there was no rational basis for the difference in treatment. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)). Plaintiff has made no allegation that his treatment was “irrational and wholly arbitrary” as compared to others convicted of similar crimes in other jurisdictions and required to register in Alabama, Olech, 528 U.S. at 565, and thus, his claim is not a class of one claim.
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for its sex offender laws, Ala. Code § 15-20A -2(1), and even if it had not, it is not
difficult to imagine the laws’ legitimate governmental purpose. See Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995) (emphasizing that when applying rational
basis scrutiny, “[t] he actual m otivations of the enacting governm ental body are
entirely irrelevant” (emphasis in original)).
E. Plaintiff has not otherwise stated a claim for a constitutional tort.
Plaintiff’s remaining federal claims – found in Counts V, VI, and VII – fail to satisfy the Rule 8 requirem ent17 t hat they include “a short and plain statement”
showing that Plaintiff “is entitled to relief.” Fed. R. Civ. P. 8(a).
1. Fourth Amendment Violation
Count V alleges that certain Defenda nts – the City of Montgom ery, Mayor
Strange, Chief Murphy, and Montgom ery County Sheriff Marshall – violated Plaintiff’s Fourth Amendment rights when they unlawfully arrested him.18 Plaintiff
17 Any ink spilled over a heightened pleading requirement was too much. (See Docs. # 79 at 19, 97 at 18 (debating whether the Amended Complaint satisfied a heightened pleading requirement).) “After Iqbal it is clear that there is no ‘heightened pleading standard’ as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. All that remains is the Rule 9 heightened pleading standard.” Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010); see also Smiley v. Ala. Dep’t of Transp., 778 F. Supp. 2d 1283, 1299 (M.D. Ala. 2011) (“[T]here is no ‘heightened pleading’ standard in cases, like this one, governed by Federal Rule of Civil Procedure 8(a).”).
18 Plaintiff’s scattershot Amended Complaint refers to an “illegal seizure” and “false imprisonment” but does not articulate under what circumstances he was detained such that his detention amounted to a constitutional violation. (Am. Compl. ¶¶ 111–25.) “To minimize confusion created by [the] haphazard pleadings,” the court has treated Count V as an unlawful
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appears to argue that his entire period of registration, beginning in April 2010 and continuing to the present, am ounted to an arrest without probable cause, but his argument fails.
Under the language of the Fourth Am endment, “an arrest is a seizure of a person.” Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). “An arrest occurs when a reasonable person in thesuspect’s position would have understood the situation to constitute a resrtaint on freedom of movement of the degree which the law associates with formal arrest.” Jeanty v. City of Miami, 876 F. Supp. 2d 1334, 1341 (S.D. Fla. 2012) (internal quotations and citaions omitted). Since moving to Alabama and registering, Plaintiff has been free to m ove about, subject to residency and employment restrictions and the travelpermit requirement. Though not insignificant, a reasonable person would not perceive su ch restrictions as approxim ating formal arrest. Thus, based on Plaintiff’s allegations, the only factual basis for an unlawful arrest claim would be his April 2010 visit to the Montgom ery Police Department.19 (Am. Compl. ¶¶ 19–29.)
arrest claim. See Exford v. City of Montgomery, 887 F. Supp. 2d 1210, 1223 n.5 (M.D. Ala. 2012) (taking a like approach with like pleadings).
19 This has the practical effect of eliminating the claim against Sheriff Marshall, as Plaintiff offers no explanation for how or why Sheriff Marshall should be held liable for the actions of Montgomery Police Department detectives not in his chain of command.
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Assuming without deciding that keeping Palintiff at the police department long enough to ascertain the details of his conviction was a constitutional violation,20 the individuals named in this count did not cause the violation. Section 1983 creates a private right of action when a person actni g under state law “subjects, or causes to be subjected,” a plaintiff to a constitutional dperivation. 42 U.S.C. § 1983. Plaintiff does not allege that Mayor Strange, Chief Murphy,or Sheriff Marshall were present in the Montgomery Police Department that day and unreasonably seized him (Am. Compl. ¶¶ 18–29, 111–25), and he dismissed his claims against the detectives who were (Doc. # 49). Nor does Plaintiff explain how the named Defendants otherwise caused his detention. Thus, the individual capacity claims for u nlawful arrest against Mayor Strange, Chief Murphy, and Sheriff Marshall should be dismissed.
As for the official capacity claims, niether the employment relationship between the City and the detectives nor the supervisory relationship between Mayor Strange, Chief Murphy, and the detectives can serve asthe exclusive basis for official liability. Section 1983 does not support vicarious or respondeat superior liability, which rest “solely on the basis of . . . an employer-employee relationship.” Monell v. Dep’t of
20 The court expresses doubt that this would be an unreasonable seizure, in light of the fact that Plaintiff presented himself at the police department, volunteered the fact of his conviction, and then inquired about whether that conviction made him subject to registration. (Am. Compl. ¶ 74.) Upon determining that he would be subject to registration, it was reasonable for officers to require him to register.
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Soc. Servs., 436 U .S. 658, 692 (1978). Inste ad, the custom or polic y requirement distinguishes “acts of themunicipality from acts ofemployees of the municipality, and thereby m ake[s] clear that m unicipal lia bility is lim ited to actio n fo r which the municipality is actually responsible.” Pembaur v. City of Cincinatti, 475 U.S. 469, 479 (1986) (emphasis in original).
Plaintiff has identified no policy or custom pursuant to which any person acted that would support official liability. Plaintiff does allege elsewhere that Defendants violated unspecified constitutio nal r ights “b ecause of a policy or custom of their respective agencies,” (Am . Comp. ¶¶ 127–29) , but he fails to identify with any specificity the substance of that policy or custom, what action the policy compelled which Defendants to take, or any other fact that would nudge his claim from the conceivable to the plausible. See Twombly, 550 U.S. at 570 (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”). Accordingly, his official capacity claims also fail.
2. Deliberate Indifference and Failure to Train In Count VI, Plaintiff alleges a claimbased on “Deliberate Indifference/Failure to Train.” (Am. Compl. ¶ 126.) This claim cannot withstand Defendants’ Rule 12 challenge.
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First, Plaintiff titles the Count “Deliberate Indifference” – a term o f art associated with Eighth Am endment violations – but Plaintiff raises no Eighth Amendment claim , nor does he otherw ise explain who exhibited deliberate indifference to what. (Am. Compl. ¶¶ 126–29.) Second, the title ofthe count alleges a “Failure to Train,” but nowhere in th e Count’s four paragraphs does Plaintiff articulate who should have trani ed whom on what topic. In fact, the word “train” does not appear at all. (Am. Compl. ¶¶ 126–29.)
Ignoring the Count’s heading in favor of its body does not amke the claim more comprehensible. The claim does not put Defendants on notice of Plaintiff’s allegations against them such that they could respond meaningfully. See Twombly, 550 U.S. at 556 n.3 (“Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim , but also ‘g rounds’ on which the clai m rests.”). It is therefore due to be dismissed.
3. Failure to Prevent Violation of Rights Plaintiff brings a claimagainst all Defendants in Count VII alleging that “[ea]ch and every Defendant had knowledge that Plaintiff’s rights were being violated and had the power to prevent or aid in preventingthe wrongful acts,” but failed to do so. (Am. Compl. ¶ 74.) Again, the claim does not satisfy the notice pleading standard.
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State officials in a position to intervene to p revent another officer’s use of excessive force have a duty to do so.Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998). But it is unclear whether the duty to intervene exists for constitutional deprivations other than excessive force. See Mehta v. Foskey, 877 F. Supp. 2d 1367, 1378 (S.D. Ga. 2012) (com paring courts’ differing conclusion s on whether a defendant m ay be held liable under Secti on 1983 for the failure to intervene in circumstances other than the use of excessive force). If such claims are cognizable, Plaintiff’s claim nonetheless fails because his complaint contains nothing more than a bare, conclusory allegation.21 There are no plausible facts to support it. Plaintiff does not identify the circumstances under which any Defendant knew of any specific violation, was in a position to prevent it, and failed to do so . (Am. Com pl. ¶¶ 130–34.) The allegations consist of “lab els and conclusions” and “a form ulaic recitation of the elements of a causeof action,” and must be dismissed. Twombly, 550 U.S. at 555. F. Plaintiff has not stated claims for relief under state law.
The final counts of Plaintiff’s Complaint accuse Mayor Todd Strange, Chief of
21 Specifically, Plaintiff’s complaint alleges that “[e]ach and every Defendant knew of and/or witnessed the other individual Defendants’ wrongful conduct, as stated hereinabove, but failed or refused to prevent it or aid in preventing it . . . .” (Am. Compl. ¶ 133.) This leaves the court wondering what the relevant wrongful conduct was and whether Plaintiff alleges that each Defendant knew of the conduct or that each Defendant witnessed it.
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Police Kevin Murphy, and the City of Montgomery (the “Municipal Defendants”) of committing several state law torts. But to the extent those claims target the City, they are time barred because Plaintiff undisputedly failed to give the City notice of those claims within six months after they accr ued. Ala. Code § 11-47-2 3 ( “All cl aims against the municipality . . . for damages growing out of torts shall be presented within six months from the accrual t hereof or sh all be barred.”). The same goes for Plaintiff’s official capacity claims against Mayor Strange and Chief Murphy, which are claims against the City. See Shows v. Morgan, 40 F. Supp. 2d 1345, 1365 (M.D. Ala. 1999) (dismissing state law claims against city and against city officers in their official capacity for failure to timely file a notice of claim).
That leaves only Plaintiff’s individual capacity claims against Mayor Strange and Chief Murphy, both of whom argue they are im mune from suit. But it is unnecessary to decide whether Strange a nd Murphy are immune from the state law claims alleged against them for a simple reason: Plaintiff has f ailed to state any claims against them . Although Plaintiff’s com plaint includes claim s of false imprisonment (Count VIII), outrage (Count IX), and several suggestions of negligence (Counts X, XI, XII), none alleges facts sufficeint to state a claimagainst either Mayor Strange or Chief Murphy.
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1. False Imprisonment22 Plaintiff’s false im prisonment claim cannot survive unless he alleges facts indicating Mayor Strange or Chief Murphy unlawfully detained him. See Ala.Code § 6–5–170 (“False imprisonment consists in the unlawful detention of the person of another for any length of tim e whereby he is deprived of his personal liberty.”). Assuming Plaintiff was unlawfully detained atthe police station (a question the court need not reach), the Amended Complaint contains no factual allegations suggesting either Mayor Strange or Chief Murphy participated in that detention. Nor has Plaintiff identified a theory of vicarious liability that might suffice to hold Mayor Strange and Chief Murphy responsible in their individual capacities for the actions of subordinates. Employers may be liable for an employee who commits false imprisonment. See Crown Cent. Petroleum Corp. v. Williams, 679 So. 2d 651, 653 (Ala. 1996). So can be people who do noat ctually effect an arrest, provided they are “involved with or related to the [arrest]. . . as instigators or participants.”Id. But the Amended Complaint does not suggest Mayor Strange or Chief Murphy, in their individual capacities, em ployed any of the officers who detained Plaintiff – the officers worked for the City, just like the Mayor and the Police Chief. See Norris v.
22 Count VIII bears the heading “False Imprisonment/False Arrest-State Law.” (Am. Cmpl. 28.) Under Alabama law, an unlawful arrest amounts to a type of false imprisonment, not a standalone tort. See Crown Cent. Petrol. v. Williams, 679 So. 2d 651, 654 (Ala. 1996). Accordingly, the court will discuss Count VIII as a false imprisonment claim.
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City of Montgomery, 821 So. 2d 149, 156–57 (Ala. 2001) (“[A] municipality’s chief executive is not vicariously liable for the m isconduct of his or her subordinates.”). Nor does Plaintiff al lege ei ther of them instigated his purported arrest. Because Plaintiff has not pleaded facts to plausiblystate a claim of false imprisonment against Mayor Strange or Chief Murphy in their individual capacities, that claim is due to be dismissed.
2. Outrage Plaintiff’s outra ge c laim c annot survive a bsent a llegations of conduc t “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atroci ous and utterl y intolerable in a civilized society.” Little v. Robinson , 72 So. 3d 1168, 1172 (Ala. 2011). At best, Plaintiff alleges City employees under the supervision of Mayor Strange and Chief Murphy enforced a duly enacted Aalbama law. Nothing suggests such conduct “go[esb]eyond all possible bounds of decency,” id., so Plaintiff has failed to state claim of outrage. 3. Negligence The final three counts of Plaintiff’s complaint are variations on a theme: Mayor Strange and Chief Murphy are liable for nelgigence. But none of those counts identify any duty of care, nor do they suggest Mayor Strange or Chief Murphy breached one. The closest Plaintiff comes is an allegatoin that the Municipal Defendants negligently
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implemented unconstitutional policies. (Am. Compl. ¶ 151 (“Mayor and Murphy were aware of or should hvae known of the unconstitutionality of the policies that they trained the detectives as described above.”).) Even there, Plaintiff cites no authority to suggest Alabama state law recognizes a cause of actoi n for a negligent violation of the federal Ex Post Facto Clause, assum ing Plaintiff can p rove a constitutional violation occurred in the first place. Acco rdingly, Plaintiff’s negligence claims are due to be dismissed. G. Plaintiff’s shotgun pleadings warrant dismissal.
Under most circumstances, when confront ed with a com plaint that lacks the plausible factual allegations Rule 8 requires, the court is inclined to allow a plaintiff to replead. It is not so inclined here. Plaintiff’s shotgun pleading makes it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Even in the latest iteratoin of his complaint – consisting of 43 pages and almost 200 numbered paragraphs – Plaitniff has articulated a plausible entitlement to relief for only one of his claim s. If sufficient facts to support the other claim s existed, he surely would have pleaded them properly in one of four attem pts. Granting Defendants’ motions to dismiss on the claims lacking supporting facts is the proper course. See Byrne, 261 F.3d at 1130–31 (approving of dism issing shotgun
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pleadings); see also Chapman v. AI Transp. , 229 F.3d 1012, 1027 (11th Cir. 2000) (“We have frequently railed about the evils of shotgun pleadings and urged district courts to take a firm hand and whittle cases down to the few triable claim s, casting aside the many non-triable ones through dism issals where there is failure to state a claim . . . .”).
V. CONCLUSION Accordingly, it is ORDERED that Defnedants’ Motions to Dismiss (Docs. # 78, 80, 83, 86) are GRANTED inpart and DENIED in part. Specifically, the Motions to Dismiss are GRANTED as Counts I–III and VX–II of Plaintiff’s Amended Complaint (Doc. # 74), and these claim s are DISM ISSED with prejudice. The Motions to Dismiss are DENIED as to Count IV. In sum, only Plaintiff’s claim that the retroactive application of Alabama’s CNA and ASORCNA violate his rights under the Ex Post Facto Clause remains. DONE this 29th day of March, 2013.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

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2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:11-cv-01027-WKW-CSC Document 214 Filed 03/12/14 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v. KEVIN J. MURPHY, et al.,
Defendants.

) ) )
)
) CASE NO. 2:11-CV-1027-WKW ) ) ) )

ORDER ON PRETRIAL HEARING

A pretrial hearing was held in this case on March 7, 2014, wherein the

following proceedings were held and actions taken:

1. PARTIES AND TRIAL COUNSEL:

Plaintiff Michael A. McGuire

Joseph Mitchell McGuire Elizabeth Peyton Faulk 31 Clayton Street Montgomery, AL 36104 phone: 334.517.1327 jmcguire@mandabusinesslaw.com peytonfaulk@epflaw.com

Defendants City of Montgomery, Police Chief Kevin Murphy, Mayor Todd Strange

Jason C. Paulk City Attorney’s Office P.O. Box 1111 Montgomery, AL 36101 phone: 334.625.2050 fax: 334.625.2310 jpaulk@montgomeryal.gov

Defendant Montgomery County Sheriff D.T. Marshall

Thomas Gallion Constance Walker

Case 2:11-cv-01027-WKW-CSC Document 214 Filed 03/12/14 Page 2 of 15

McDowell Crook 8 Commerce Street, Ste. 1200 Montgomery, AL 36104 phone: 334.265.8573 fax: 334.264.7945 tmp@hsg-law.com

Defendant Colonel Hugh McCall Director of AL Dept. of Public Safety

Haran Lowe, Jr. Tim McCollum Dept. of Public Safety Legal Unit P.O. Box 1511 Montgomery, AL 36102 phone: 334.242.4392 fax: 334.242.0894 haran.lowe@dps.alabama.gov

Defendant Luther Strange

William Parker Laura Howell Winfield Sinclair James W. Davis Office of Attorney General 501 Washington Avenue Montgomery, AL 36130 phone: 334.353.1018 fax: 334.353.8440 wparker@ago.state.al.us lhowell@ago.state.al.us

COUNSEL APPEARING AT PRETRIAL HEARING:

same as trial counsel

2. JURISDICTION AND VENUE:

(a) Plaintiff’s Complaint (Doc. # 1) seeks injunctive relief under the

federal Ex Post Facto Clause seeking to prohibit enforcement of the

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Alabama Sex Offender Registration and Community Notification Act

(“ASORCNA”), Ala. Code § 15-20A-1 et seq.

(b) The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

(c) Venue is proper under 28 U.S.C. § 1391(b) (1) & (2).

3. PLEADINGS: The following pleadings and amendments were allowed:

Doc. # 74

Third Amended Complaint and Motion for Injunctive Relief and Declaratory Judgment;

Doc. # 124

Answer of Luther Strange;

Doc. # 125

Answer by Defendants City of Montgomery, Mayor Todd Strange, and Chief Police Kevin J. Murphy;

Doc. # 127

Answer of DT Marshall;

Doc. # 128-1 Answer by Defendant Colonel Hugh McCall.

4. CONTENTIONS OF THE PARTIES:

(a) Plaintiff

Plaintiff Michael McGuire contends that Defendants have subjected him to the arbitrary and vindictive policies and provisions of ASORCNA, Ala. Code § 15-20A-1, et seq. As a result, the punishment for the crime he committed nearly 30 years ago, and 22 years prior to the enactment of ASORCNA, has been dramatically increased. Moreover, for Plaintiff and those similarly situated, ASORCNA’s limitless retroactivity captures registrants and makes more burdensome the punishment for the crime after (in many instances decades after) its commission, the conviction, the completion of sentence, and parole.

The United States Constitution prohibits states from passing any “ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Ex Post Facto Clause prohibits criminalizing conduct retroactively – “mak[ing] an action, done before the passing of the law, and which was innocent when done, criminal.” Calder v. Bull, 3 U.S. 386, 390 (1798) (Chase, J.). The Ex Post Facto Clause also prohibits increasing

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punishment for criminal acts after their commission. Id. The Supreme Court has since held that a statutory scheme violates the Ex Post Facto Clause when it “makes more burdensome the punishment for a crime, after its commission.” Collins v. Youngblood, 497 U.S. 37, 38 (1990).
This Court’s jurisdiction is proper under Article III of the Constitution. U.S. Cont. art. III § 2, cl. 1. Plaintiff contends that at the time of his 1985 conviction, the only requirement applicable to him under applicable Alabama law was to register his name a single time with local law enforcement. Ala. Acts 507, 1967 (repealed by ASORCNA, July 1, 2011). Plaintiff contends that the defendants required his adherence to ASORCNA based solely on the 1985 conviction. Plaintiff contends that he has been harmed by being subjected to ASORCNA, the provisions of which are being applied to him continuously and retroactively, in violation of the federal Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. As such, Plaintiff has suffered an invasion of a constitutionally protected interest.
Plaintiff contends that his required adherence to ASORCNA constitutes ongoing and continuing harms under constant threat of felony conviction. The harms are necessarily imminent. (Doc. # 166-13; Ala. Code 15-20A-1 et seq.) Defendants, who are responsible for the administration and enforcement of the provisions of ASORCNA, have all stated that they “follow the law” as written. (Doc. # 166-17 (Marshall Depo) at 13:8-20); (Doc. # 166-18 (Murphy Depo) at 44:14-23.) Thus, Plaintiff experiences harm every day he lives under the strict liability regime attendant to the many onerous provisions of ASORCNA. See e.g. Ala. Code §§ 15-20A-7(f), 15-20A-9(b), 15-20A-10(j), 15-20A-11(h), 15-20A-(f), 15-20A-13(g), 15-20A-15h, 15-20A-16(c), 15-20A-18f, 15-20A-23(p), 15-20A24(o), 15-20A-25(l), 15-20A-36(b). And the harm caused by Defendants in this matter will likely continue ad infinitum without the court’s intervention due to the required lifetime adherence to the statute. Ala. Code 15-20A-3.
Plaintiff contends that his injury is the denial of equal treatment resulting from Defendants’ imposition of the numerous onerous restrictions of ASORCNA– and that the imposition of said restrictions is based solely on a distant conviction which was paid for in full by the service of his sentence, his parole and his release prior to the statute’s enactment. Thus, Plaintiff contends that ASORCNA places unlawful barriers, under felony penalty for technical or accidental noncompliance, upon him and those similarly situated.
Specifically, Plaintiff has sought employment since being subjected to ASORCNA, but could not obtain employment due to the statute’s employment
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prohibitions. (Doc. # 166-13 (McGuire Depo.) at 142:13-143:21); Ala. Code § 1520A-13. Plaintiff wants to work but because of ASORCNA’s employment prohibitions, he “can’t even deliver pizzas according to this law, so it’s discouraging.” (Doc. # 166-13 (McGuire Depo.) at 143:2-10.) Due to ASORCNA’s employment prohibitions, Plaintiff contends he is prevented from obtaining employment in over 87% of job locations in the City of Montgomery, Alabama, under penalty of felony conviction and punishment for even trying. (Doc. # 171-3 (Wagner Rebuttal Decl.) at 11-12); Ala. Code § 15-20A-13(a–b, d, f–g.) Plaintiff and all registrants will suffer the same limitations on employment in each densely populated area (where the vast majority of jobs exist) in Alabama. (Doc. # 171-3 (Wagner Rebuttal Decl.) at 12.)
Plaintiff contends he has been prevented from residing with his wife of 13 years, Marlene Crump, and prevented from pursuing living accommodations in over 80% of the housing stock of Montgomery, Alabama. He is being subjected to the residency restrictions of ASORCNA under constant threat of felony penalty. (See Doc. # 171-1 (Wagner Decl.) at 9); (Doc. # 166-13 (McGuire Depo.) at 114:14–116:5); Ala. Code § 15-20A-11. Plaintiff contends he will suffer the same limitations on housing in each densely populous area of the State of Alabama. (Doc. # 171-3 (Wagner Rebuttal Decl.) at 12.) Plaintiff contends that he has sought at least 60 housing opportunities, none of which were compliant with ASORCNA residency restrictions. (Doc. # 166-13 (McGuire Depo.) at 37:23– 68:2, 120:17–121:10); Ala. Code § 15-20A-11. Plaintiff contends that because the statute has rendered him homeless due to the residency restrictions, he has been forced to live under a bridge and is required to register at minimum 112 times per year under threat of felony penalty. (Doc. # 166-13 (McGuire Depo.) at 8:15–23); Ala. Code § 15-20A-10-12.
Plaintiff contends that he is prevented from traveling freely outside of Montgomery County, the State of Alabama, or the United States for more than two days without first seeking permission from law enforcement and under continuous threat of felony conviction for noncompliance. See McGuire Affidavit at 2; Ala. Code § 15-20A-15. ASORCNA’s ongoing travel permit requirement has harmed Plaintiff by requiring permission to travel and Plaintiff contends he is under ongoing threat of felony conviction if he seeks emergency or spontaneous travel due to limited office hours of law enforcement and a 21-day pre-notification requirement for travel out of country. Id.; (Doc. # 172-2); (Doc. # 166-18 (Murphy Depo) at 52:13–53:20); Ala. Code § 15-20A-18; (Doc. # 166-20 (Oliver Depo) at 28:16–31:10.)
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Ultimately, Plaintiff contends that the residency, employment and travel restrictions are so debilitating, that although he still tries, it is futile to attempt to find housing, jobs or freely travel. (Doc. # 166-13 at 143:2–7.) Additionally, Plaintiff contends he cannot pursue this cause of action under an alias. He is harmed and is continuously and imminently harmed because he is prevented from doing so, under threat of felony conviction, pursuant to the name change provisions of ASORCNA. Ala. Code § 15-20A-36(a, b).
Plaintiff contends that in passing ASORCNA, the Alabama legislature intended to impose punishment. Cf. Ala. Code § 15-20A-1. The structure and text of ASORCNA suggest a punitive intent. At best, the legislature’s stated intent is unclear. As such, Plaintiff contends that he should not be required to demonstrate ASORCNA’s punitive effects by the “clearest proof.”
Considering the Mendoza-Martinez factors highlighted in Smith v. Doe, 538 U.S. 84 (2003), Plaintiff contends that he has submitted argument and evidence demonstrating by the “clearest proof,” the following:
ASORCNA imposes what has been historically regarded as punishment. Plaintiff contends that he has been banished from his community because he cannot find housing and cannot gain employment. (See generally, Doc. # 171-1, 171-3 (Wagner Decl. and Rebuttal Decl.)); Ala. Code § 15-20A-11, 13. Plaintiff contends the statute mandates the public shame and humiliation of adult sex offenders every time a person moves residences, whether temporarily or permanently, through ASORCNA’s broad notification provisions. Cf. Ala. Code § 15-20A-21(a–c). The notification and identification requirements create a virtually inescapable stigma as it requires registrants to carry “branded” state-issued identification – identification that he uses at banks, at stores, and during other mundane activities that require the presentation of identification. (Doc. # 171-4); (Doc. # 166-13 at 135:18–23); Ala. Code § 15-20A-18.
Plaintiff contends that mandatory adherence to ASORCNA has effectively placed him and all registrants on permanent probation or parole through constant reporting requirements and prohibitions on residency, travel, and employment–all applicable for the rest of his life. Ala. Code §§ 15-20A-3(a–b), -10–13, -15, -22; (Doc. # 166-13 (McGuire Depo) at 107:1–9; 108:20–109:23, 125:1–5.) Law enforcement has also acknowledged little difference between ASORCNA requirements and requirements of parole. (Doc. # 166-15 (Persky Depo) at 92:16– 94:11.)
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Plaintiff contends that ASORCNA has and continuously places several “affirmative [disabilities] or [restraints]” on registrants. ASORCNA restricts Plaintiff’s ability to attain a residence by explicitly prohibiting him, and others also labeled “sex offenders,” from residing in statutorily prohibited zones. (See Doc. # 171-1 (Wagner Decl.)); Ala. Code § 15-20A-11(a). He contends that the provisions regarding living accommodations with minors restrain Plaintiff’s ability to maintain family or personal relationships. Ala. Code § 15-20A-11(d). Plaintiff contends that ASORCNA has and continuously restricts his and all registrants’ right to travel by requiring them to notify law enforcement and seek state permission before and after travel for more than two days out of the country. Ala. Code § 15-20A-15. ASORCNA restricts Plaintiff and all registrants by specifically prohibiting them from obtaining, or even applying, for employment in ever-increasing restricted zones in every city and town in Alabama. (Doc. # 171-1, 171-3); Ala. Code § 15-20A-13.
The statutory scheme further burdens Plaintiff’s finances by forcing him to pay a registration fee each time and in each county in which they are required to register. Ala. Code § 15-20A-22. The financial burdens increase if Plaintiff seeks education or employment outside of the county in which he resides. Plaintiff currently receives social security benefits of around $1000 per month. (Doc. # 166-13 at 85:1–2.) Plaintiff’s wife is unable to work. (Doc. # 166-13 at 86:1–8.) The registration provisions of the statute rise to the level of an affirmative restraint or disability at least in part because of the constant in-person and repeat registrations required. Ala. Code § 15-20A-10. The constant in-person reporting increases in magnitude if a person becomes homeless. Ala. Code § 15-20A-10, 12. Plaintiff is homeless and has to travel approximately 20 miles per week to register at both agencies of law enforcement.
Plaintiff contends that ASORCNA promotes the traditional aims of punishment. The statutory scheme seeks to deter recidivism through its registration, monitoring, notification, and tracking provisions. Ala. Code § 1520A-2(1). Plaintiff contends that the statutory scheme promotes the aim of retribution by dramatically limiting where sex offenders, and only they, may live and work. ASORCNA is retributive, as it mandates the singling out of each sex offender every time he or she moves to a new community and whenever he or she must present required state-issued identification (which Plaintiff possesses and is currently required to possess at all times). (See Doc. # 171-4); Ala. Code § 1520A-18.
7

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The statute seeks to keep Plaintiff and all registrants under the geographic control of the state through “constant contact” and under the constant burden of reporting to law enforcement officials. Ala. Code § 15-20A-2(1). ASORCNA provisions subject Plaintiff to felony convictions regardless of scienter, thus implementing the strictest provision from both civil and criminal law. See generally Ala. Code § 15-20A-1 et seq. ASORCNA uses the underlying past crime as the “touchstone” which makes the statute applicable to all adult sex offenders. Plaintiff contends that for all practical purposes, the statute provides no reasonable modicum of relief for him, but any possibility of relief requires him to revisit the crime he committed in 1985. Ala. Code § 15-20A-23, -24, -25.
Plaintiff contends the most onerous provisions of ASORCNA are not rationally related to its non-punitive purpose. The provisions apply to Plaintiff and all adult sex offenders with limitless retroactivity whether their crime was against children or strangers. Ala. Code § 15-20A-3(a). Further, Plaintiff contends that the most onerous provisions not only lack a rational connection, they are totally disconnected from the stated non-punitive aim.
Plaintiff contends that ASORCNA is clearly excessive in achieving its stated non-punitive purpose. Ala. Code § 15-20A-2. The cumulative provisions of the statute go far beyond the non-punitive purpose of informing and protecting the community via active dissemination of truthful information. See generally, Ala. Code § 15-20A-1 et seq. ASORCNA restricts where Plaintiff and all registered sex offenders can live, work, play, and the extent to which they can travel for the rest of their lives. Id.
All provisions of ASORCNA are applied retroactively to Plaintiff and all adults deemed to be sex offenders. Ala. Code § 15-20A-3(a). Thus, persons who have fully completed prison sentences, probation, or parole, as well as persons who pleaded nolo contendere well before the enactment of ASORCNA, like Plaintiff, are being required to submit to the requirements and restrictions. Id. The statute’s cumulative, punitive nature and function negates the State’s attempt to deem the statute civil. For these reasons, ASORCNA violates the Ex Post Facto Clause of the United States Constitution. U.S. Const. art. I. § 10, cl. 1.
The Court has Article III jurisdiction because Plaintiff has stated particularized and concrete harms that have occurred, are ongoing, and, due to the continuous required adherence under threat of felony conviction, are imminent. The harms are clearly traceable to Defendants with regard to the many onerous provisions of ASORCNA. Plaintiff’s challenge to ASORCNA is facial in light of
8

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the constitutional protections of the Ex Post Facto Clause. Thus, the application of ASORCNA provided Plaintiff and those similarly situated with federal question standing based upon rights guaranteed under the Ex Post Facto Clause of the Constitution. U.S. Const. art. I. § 10, cl. 1. Plaintiff contends that the ASORCNA cannot be applied retroactively to him or any registrant in a manner that does not violate the Ex Post Facto Clause.
Due to the imminent nature of all provisions of ASORCNA that contain strict liability felony penalties, Plaintiff has demonstrated concrete and imminent harms traceable to Defendants’ conduct. Defendants are responsible for the administration and enforcement of ASORCNA and are the cause of the past and ongoing harm to Plaintiff. The court can order relief to Plaintiff and those similarly situated by invalidating ASORCNA on Ex Post Facto grounds and granting the prospective and declaratory relief he seeks.
(b) Defendants
Defendants contend that the court lacks jurisdiction to the extent ASORCNA’s provisions do not particularly and concretely affect McGuire. For example, ASORCNA prohibits adult sex offenders, “after having been convicted of a sex offense involving a minor,” from loitering near certain places “having a principal purpose of caring for, educating, or entertaining minors.” Ala. Code § 15-20A-17(a). McGuire’s sex offense, however, did not “involv[e] a minor.” Likewise, McGuire testified at deposition that he has a disability finding of “unable to work” and that he has not worked or looked for work since moving to Alabama in 2010. (Doc. # 166-13 (McGuire Depo) at 98:12-101:10.) Thus, it appears that he lacks standing to challenge ASORCNA’s employment provisions. See Ala. Code § 15-20A-13. Similarly, McGuire testified that he has never sought to travel since moving to Alabama in 2010, so it appears that he lacks standing to challenge ASORCNA’s travel requirements. (See Doc. # 166-13 (McGuire Depo) at 104:818; Ala. Code § 15-20A-15.) Finally, ASORCNA generally prohibits sex offenders from changing their names, but McGuire has not expressed any desire to change names. See Ala. Code § 15-20A-36(a). Thus, it appears that McGuire lacks standing to challenge that provision as well. More generally, McGuire lacks standing to challenge ASORCNA’s provisions regarding “sexually violent predators,” see id. § 15-20A-19; electronic monitoring, see id. § 15-20A-20; juvenile sex offenders, see id. § 15-20A-26 to -35; etc. All told, it appears that McGuire has standing to challenge only ASORCNA’s registration requirement, community-notification provisions, residency restrictions, victim-contact
9

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restrictions, and identification-card requirement. See id. at § 15-20A-7, -8, 10, -11, -12, -16, -21, -22, -23, & -24.
On the merits, Defendants contend that ASORCNA is not an Ex Post Facto law. In particular, they contend that the Alabama Legislature intended ASORCNA as a non-punitive, civil regulatory measure, passed pursuant to the State’s police powers to protect the public from the risk of re-offense by previously convicted sex offenders. They also contend that McGuire cannot present the “clearest proof,” based “on [ASORCNA’s] face,” that the Alabama Legislature’s apparent nonpunitive purpose was mere pretext. Specifically, ASORCNA’s provisions have not been regarded in our history and traditions as punishment; they do not impose an undue affirmative disability or restraint in light of their public-safety goals; most significantly, they have a rational connection to the non-punitive purpose of protecting the public from repeat offenses by sex offenders; and they are not excessive with respect to their purpose.
5. STIPULATIONS BY AND BETWEEN THE PARTIES:
The parties enter into the following stipulations for purposes of the above-
captioned litigation only:
BACKGROUND
(1) Plaintiff Michael McGuire is a resident of Montgomery, Alabama.
(2) On or about July 31, 1985, Plaintiff Michael McGuire committed the act of “sexual penetration and sexual intrusion” upon his (adult) victim while armed with a knife.
(3) The victim was known to McGuire and was his girlfriend of at least five years prior to the crime.
(4) In May 1986, McGuire was convicted of first degree sexual assault, second degree assault, and menacing in Colorado.
(5) Mr. McGuire had no known/recorded history of criminal activity prior to his 1986 conviction.
10

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(6) Mr. McGuire has no known/recorded history of criminal activity since on or about July 31, 1985.
(7) After release from Colorado prison on or about November, 1989, Mr. McGuire paroled to the state of Virginia.
(8) Mr. McGuire and Marlene Crump arrived together in Alabama from the state of Maryland on or about April 12, 2010.
(9) On or about April 14, 2010 McGuire voluntarily arrived at the Montgomery Police Department (“MPD”) to inquire about Alabama sex offender law.
(10) On or about April 14, 2010, officers of the MPD fingerprinted and photographed Mr. McGuire.
(11) On or about April 14, 2010, officers of MPD required Mr. McGuire to register and to submit to all provisions of Alabama sex offender law.
(12) Mr. McGuire was required to register and submit to all applicable provisions of Alabama sex offender law with the Montgomery County Sheriff’s Office (“MCSO”) on or about April 14, 2010.
(13) On or about April 27, 2010, Lieutenant Leigh Persky of the Montgomery County Sheriff’s Office (“MSCO”) fingerprinted, photographed and required Mr. McGuire to submit a DNA sample.
(14) At the suggestion of MPD officers, Mr. McGuire moved into the Regency Inn located at 1771 Congressman Dickinson Boulevard in Montgomery, Alabama where he resided between May, 2010 and July, 2010.
(15) Mr. McGuire currently is “homeless” within the meaning of Ala. Code § 15-20A-12(a).
(16) The MPD and MCSO enforce ASORCNA according to its enacted and codified terms and provisions.
(17) Mr. McGuire has to date substantially complied with his obligations under ASORCNA including weekly and quarterly reporting and registration requirements.
11

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REGISTRATION
(18) Registration visits generally last as long as necessary to collect or verify the information required to be collected or verified by ASORCNA or to provide an offender with the information required to be provided to him by ASORCNA.
(19) MPD and MCSO conduct ASORCNA registration at their designated offices located at 1751 Congressman Dickinson Boulevard, Montgomery, Alabama 36109 and 115 South Perry Street Montgomery, Alabama 36104, respectively.
NOTIFICATION
(20) On or about May 2010, some of Defendants mailed a “community notification flyer” regarding Mr. McGuire pursuant to Ala. Code 1520A-21.
(21) ADPS has included McGuire on its public registry website as required by Ala. Code § 15-20A-8. See http://dps.alabama.gov/Community/ wfSexOffenderFlyer.aspx?ID=df3d6b22-8569-4c6e-b48ca6f17e378227.
RESIDENCE RESTRICTIONS
(22) The ASORCNA-restricted residence and employment zones in Montgomery may change based on the opening and closing of schools and childcare facilities. Ala. Code § 15-20A-11(a).
(23) It is difficult, but not impossible, for ASORCNA registrants to obtain housing opportunities.
(24) As a practical matter, to comply with ASORCNA, an offender seeking housing must verify with local law enforcement that each proposed residential address is compliant before moving there.
(25) With the exception of ad hoc inquiries by registrants, local law enforcement does not provide ASORCNA registrants with information that specifically identifies where they may lawfully reside.
12

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(26) Marlene Crump resides in a home that is within one of ASORCNA’s restricted residency zones – i.e., it is within 2,000 feet of a school or childcare facility as specified in Ala. Code § 15-20A-11(a).
(27) McGuire currently may stay overnight with Marlene Crump for nine nonconsecutive days each month without violating ASORCNA’s residency restriction. Cf. Ala. Code § 15-20A-22(e) (1-3).
(28) McGuire sees Marlene Crump almost every day.
(29) MPD and MCSO officers conduct home checks to enforce ASORCNA’s residency restrictions.
(30) McGuire is currently unable to reside with any of his 4 siblings or his mother, all of whom are City of Montgomery residents, because four of the homes are located within ASORCNA’s restricted residency zones and the fifth has 3 of McGuire’s minor nieces living there. Cf. Ala. Code § 15-20A-11(d).
EMPLOYMENT PROHIBITIONS
(31) The unemployment rate in Alabama is approximately 6.1%.
(32) It is difficult, but not impossible, for ASORCNA registrants to obtain employment opportunities.
(33) As a practical matter, to comply with ASORCNA, an offender seeking employment must verify with local law enforcement that each proposed employment address is compliant before applying.
(34) With the exception of ad hoc inquiries by registrants, local law enforcement does not provide ASORCNA registrants with information that specifically identifies where they may lawfully seek employment.
6. The nonjury trial of this case, which is to last up to three days, is set
for March 31, 2014, at 10:00 a.m., in the Frank M. Johnson, Jr. U.S. Courthouse,
One Church Street, Montgomery, Alabama.
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7. If there is more than one case to be tried, a trial docket will be mailed to counsel for each party approximately one week prior to the start of the trial term.
8. The parties are not required to file trial briefs, but if they choose to do so, the briefs shall be filed on or before March 17, 2014.
9. The parties shall jointly prepare and submit to chambers on or before March 24, 2014, three identical three-ringed binders, each containing one copy of pre-marked exhibits. The binder shall contain joint exhibits (i.e., those exhibits that are relevant, not subject to objections, and certain to be introduced at trial); Plaintiff’s exhibits that may be used, or that are or may be contested; and Defendant’s exhibits that may be used, or that are or may be contested. On the same date, the parties shall jointly prepare and submit to chambers three copies of the exhibit list, which shall delineate all objections to exhibits and responses to objections. The parties shall direct questions about this procedure to the law clerk assigned to the case.
10. The parties shall review and comply with the Middle District of Alabama’s Order on the E-Government Act.
11. All deadlines not otherwise affected by this order will remain as set forth in the Uniform Scheduling Order.
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12. The parties have indicated that there are no other disputes at this time. All understandings, agreements, deadlines and stipulations contained in this Order shall be binding on all parties unless modified by the court.
DONE this 12th day of March, 2014. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
15

 
 Case 2:11-cv-01027-WKW-CSC Document 120 Filed 04/29/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v. CITY OF MONTGOMERY, et al.,
Defendants.

) ) )
)
) CASE NO. 2:11-CV-1027-WKW ) ) ) )

ORDER

Plaintiff’s Motion to Alter or Amend the Judgment (Doc. # 119), brought

pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is before the court.

For the reasons stated below and in the court’s Memorandum Opinion and Order

addressing Defendants’ motions to dismiss (Doc. # 112), Plaintiff’s motion (Doc.

# 119) is due to be DENIED.

There is no clear error, manifest injustice, or newly discovered evidence

justifying Rule 59(e)1 relief. Plaintiff’s motion fails to appreciate the difference

between substantive due process and procedural due process. Moreover, only

1 Nor is Rule 59(e) the proper vehicle for a challenge to the court’s order, which was not a final judgment. See Fed. R. Civ. P. 54(b) (providing that an order adjudicating “fewer than all the claims” is not a final judgment); Fed. R. Civ. P. 60(b) (setting out grounds on which a court may grant relief from a final judgment, order, or proceeding). But even assuming Plaintiff brought his motion under Rule 60, it would still fail. Clear error and manifest injustice are “other reason[s]” justifying relief generally, Fed. R. Civ. P. 60(b)(6), but they do not exist here.

Case 2:11-cv-01027-WKW-CSC Document 120 Filed 04/29/13 Page 2 of 3
violations of constitutional rights – not state law, such as for violation of state laws guaranteeing procedural due process – can support claims for relief under 42 U.S.C. § 1983. States are free to set a higher bar than does the federal Constitution, but their doing so does not create a federal claim from a violation of state law.
And contrary to Plaintiff’s assertions, the court did not ignore his substantive due process claims premised on the right to travel and the right to marry. The court acknowledged that a constitutional claim premised on the right to travel could exist, but that this Plaintiff did not plead the claim. (See Doc. # 112 at 25 (“Plaintiff does not allege that he is treated differently from nonresident sex offenders, and most importantly, he does not allege that the permit requirement has prevented him from leaving the state.”).) Additionally, the court considered Plaintiff’s argument premised on the fundamental right to marriage but reasoned that the Constitution does not guarantee Plaintiff the right to live “where his wife does.” (Doc. # 119);
see also Doe , 405 F.3d 700, 711 (8th Cir. 2005) (rejecting registrants’ claim that v. Miller residency restrictions imposed incident to registration violated their constitutional rights related to marriage and family). Plaintiff, in the alternative, asks for leave to amend his complaint. For the reasons stated in the court’s Memorandum Opinion and Order (Doc. # 112 at 40–41), it is ORDERED that Plaintiff’s alternative motion for leave to amend (Doc. # 119)
2

Case 2:11-cv-01027-WKW-CSC Document 120 Filed 04/29/13 Page 3 of 3
is DENIED. The parties’ joint Motion to Stay Obligations Under Rule 26(f) is also before
the court. (Doc. # 118.) Because the court has denied Plaintiff’s Rule 59(e) and alternative Rule 15 motion, there is not good cause to stay the parties’ obligations under Rule 26(f). Therefore, it is ORDERED that the parties’ motion (Doc. # 118) is DENIED. Plaintiff’s attempts did, however, complicate the parties’ efforts to meet and confer. Accordingly, it is ORDERED that the deadline set out in the court’s order of April 8, 2013 (Doc. # 114), is extended from April 29, 2013, to May 6, 2013.
DONE this 29th day of April, 2013. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
3

 
 Case 2:11-cv-01027-WKW-CSC Document 284 Filed 02/05/15 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v. LUTHER STRANGE in his official capacity, et al.,
Defendants.

) ) ) ) ) ) CASE NO. 2:11-CV-1027-WKW ) ) ) )

FINAL JUDGMENT FOR DECLARATORY RELIEF

In accordance with the prior proceedings, opinions, and orders of the court, it is

ORDERED, ADJUDGED, and DECLARED that the Alabama Sex Offender Registration

and Community Notification Act, Ala. Code § 15-20A-1 et seq., is unconstitutional under the

Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-

town homeless registrants to register (or check-in) on a weekly basis with two separate

law-enforcement jurisdictions as provided by Alabama Code § 15-20A-12(b) in

conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit

applications with two separate law-enforcement jurisdictions as provided by Alabama

Code § 15-20A-15 in conjunction with § 15-20A-4(13).

The Clerk of the Court is DIRECTED to enter this document on the civil docket as

a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.

DONE this 5th day of February, 2015.

/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL A. MCGUIRE, Plaintiff,
v.
LUTHER STRANGE in his official capacity, et al.,
Defendants.

)

)

)

)

)

) CASE NO. 2:11-CV-1027-WKW

)

[WO]

)

)

)

)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Michael A. McGuire was born in Montgomery, Alabama, where he graduated from

high school in 1971. Eventually, he left the community for many years. In 2010, at the age

of 57, he and his wife returned to his hometown to be with his aging mother and other family

in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation

of the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”).

Ala. Code § 15-20A-1 et seq.

Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and

otherwise assaulted his 30-year-old girlfriend of five years. In May 1986, he was convicted

of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison

and a fourth year on parole, successfully completing his prison sentence. He then had a multi-

decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to

relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother’s words, “a free American.” (Trial Tr. I, at 14.)
After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama’s sex-offender laws, hoping to confirm his belief that he would not be subject to the state’s restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriff’s Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.
The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.
II. JURISDICTION AND VENUE Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue.
2

III. PROCEDURAL HISTORY
Mr. McGuire filed his complaint challenging ASORCNA on December 2, 2011. Over
the course of litigation, Mr. McGuire amended his complaint four times. In its final iteration,
Mr. McGuire’s Third Amended Complaint brought claims under federal law (Counts I–VII)
and state law (Counts VIII–IX). It alleged liability under 42 U.S.C. § 1983 for an assortment
of federal constitutional violations, including deprivations of due process and liberty,
violations of equal protection, the application of ex post facto laws, and illegal seizure, and
under state law for claims that included, among others, false imprisonment, false arrest, and
negligence.1
Motions to dismiss the Third Amended Complaint were filed by all Defendants as to
each of Mr. McGuire’s claims. After a thorough period of briefing, the court reviewed each
of Mr. McGuire’s twelve causes of action as to each of the six remaining Defendants. On
1 Mr. McGuire’s Third Amended Complaint sought a declaratory judgment, injunctive relief, and compensatory and punitive damages. On September 9, 2013, however, an Order was issued clarifying the forms of relief available to Mr. McGuire should he prevail. Pursuant to the September 9, 2013 Order, all the individual Defendants had qualified immunity from Mr. McGuire’s claims for monetary damages brought against them in their individual capacities. Additionally, the State Officials – the Montgomery County Sheriff, the Alabama Director of Public Safety, and the Alabama Attorney General – had Eleventh Amendment immunity from monetary claims against them in their official capacities, as well as from a declaratory judgment against them in their official capacities with respect to the alleged illegality of their past conduct. The Order, however, found that the Eleventh Amendment did not bar the official-capacity claims against the State Officers for prospective injunctive relief. Consequently, the Order left intact the following relief against the nonState Officers: monetary and equitable relief against the City of Montgomery; prospective injunctive and declaratory relief against the individual Defendants in their official capacities; and monetary damages against the individual city Defendants in their official capacities. On March 12, 2014, Mr. McGuire’s contentions in the Order on the Pretrial Hearing further narrowed the relief sought to prospective injunctive and declaratory relief exclusively.
3

March 29, 2013, a Memorandum Opinion and Order was issued, granting in part and denying in part Defendants’ motions to dismiss, ultimately leaving only Mr. McGuire’s ex post facto challenge to proceed. The six remaining Defendants are the City of Montgomery, Montgomery Police Chief Ernest Finley in his official capacity, Montgomery Mayor Todd Strange in his official capacity, Montgomery County Sheriff Derrick Cunningham in his official capacity, Acting Director of the Alabama Department of Public Safety John Richardson in his official capacity, and Alabama Attorney General Luther Strange in his official capacity.2
On March 31, 2014, through April 3, 2014, a four-day bench trial was held on Mr. McGuire’s ex post facto challenge to ASORCNA. At the close of trial, all parties were ordered to submit additional briefing on certain topics. After considering the briefs filed in connection with pretrial motions, the post-trial briefs, and the arguments and evidence presented at trial, the court finds that judgment is due to be entered in favor of Mr. McGuire on his challenge to ASORCNA’s provisions requiring dual weekly registration for in-town homeless registrants and dual travel permit applications for all in-town registrants, and in favor of Defendants on the remaining ex post facto claims.
2 In an apparent response to Defendants’ motions to dismiss earlier iterations of his complaint, Mr. McGuire voluntarily dismissed his claims against the other Defendants, namely, the City of Montgomery Police Department and four affiliated detectives, the Montgomery County Sheriff’s Department and one of its deputies, an Attorney with the Alabama Department of Public Safety, United States Attorney General Eric Holder, and the Alabama Department of Public Safety. (Docs. # 48, 88.)
4

IV. FINDINGS OF FACT
A. ASORCNA
On July 1, 2011, ASORCNA became effective and repealed all prior iterations of
Alabama’s sex offender registration and notification laws. 2011 Ala. Acts, No. 640.
ASORCNA’s provisions apply to adult offenders convicted of one of thirty-one offenses
defined as a sex offense under Alabama law, as well as those convicted in another jurisdiction
of a crime that, “if it had been committed in [Alabama] under the current provisions of law,
would constitute” one of the enumerated offenses. Ala. Code § 15-20A-5(33). The entire
scheme is retroactive, capturing any enumerated or similar offense regardless of when it was
committed.
ASORCNA restricts where a registrant may live and work,3 id. §§ 15-20A-11, -13,
requires the distribution of community-notification flyers to those living near a registrant’s
3 ASORCNA prohibits registrants from “maintaining” a residence within 2,000 feet of property containing “any school or childcare facility” and from living within 2,000 feet of the registrant’s former victim or the victim’s immediate family. Id. §§ 15-20A-11(a), (b). With no reference to the nature of the offense of conviction, it also prohibits registrants from sharing a residence with a minor, unless the registrant is “the parent, grandparent, stepparent, sibling, or stepsibling of the minor.” Id. § 15-20A-11(d). If, however, any of the registrant’s victims were the registrant’s “minor children, grandchildren, stepchildren, siblings, or stepsiblings,” or any other child, the exemption for living with immediate family members does not apply. Id.
ASORCNA also prohibits registrants from working or volunteering “at any school, childcare facility, or mobile vending business that provides services primarily to children, or any other business or organization that provides services primarily to children.” Id. § 15-20A-13(a). Additionally, no registrant may “apply for, accept or maintain employment or volunteer for any employment or vocation” “within 2,000 feet of the property on which a school or childcare facility is located” or “within 500 feet of a playground, park, athletic field or facility, or any other business having a principal purpose of caring for, educating, or entertaining minors.” Id. § 15-20A-13(c). The employment provisions – like most of the residency restrictions outlined above – apply with equal force regardless of whether the registrant’s former victim was a minor.
5

residence, id. § 15-20A-21, and provides for a “public registry website maintained by the Department of Public Safety.” Id. § 15-20A-8. The website is required to include specific information regarding each registrant. Registrants must “appear in person to verify all required registration information” quarterly. Id. § 15-20A-10(f). The law also requires each registrant to “obtain, and always have in his or her possession, . . . a driver’s license or identification card bearing a designation that enables law enforcement officers to identify the licensee as a sex offender.” Id. §§ 15-20A-18(a), (d).
Additionally, ASORCNA requires registrants who intend to be away from their county of residence for three or more consecutive days to “report such information in person immediately prior to leaving” and to complete a travel permit form providing “the dates of travel and temporary lodging information.” Id. §§ 15-20A-15(a), (b). The permit form explains the duties of the registrant regarding travel, and registrants must sign the form, acknowledging their duties, or “the travel permit shall be denied.” Id. § 15-20A-15(d). When a registrant obtains a permit, the registrant’s local sheriff must “immediately notify local law enforcement” in the registrant’s destination. Id. § 15-20A-15(e). Importantly, registrants who reside in municipalities (“in-town registrants”) must obtain travel permits from both the local police and county sheriff. The forms for obtaining travel permits, which were developed by the Alabama Department of Public Safety, are virtually identical for the local police and the sheriff.
ASORCNA’s provisions apply for life and without regard to the nature of the offense, the age of the victim, or the passage of time since the underlying sex offense. Id. § 15-20A3. ASORCNA does contain three general relief provisions, none of which is applicable to
6

Mr. McGuire.4 A violation of ASORCNA’s requirements potentially subjects the offender to
one of 115 Class C felonies, 82 of which are applicable to Mr. McGuire.5 See, e.g., id. § 15-
20A-15(h). Class C felonies in Alabama carry a sentence from one to ten years. Id. § 13A-
5-6.6
ASORCNA’s registration scheme requires offenders to register in-person four times a
year, both with “[t]he sheriff of the county and the chief of police if the location subject to
registration is within the corporate limits of any municipality.” Id. §§ 15-20A-4, -10. For
homeless offenders who reside within the city limits of any municipality, the registration
requirement is enhanced to once a week with both law enforcement jurisdictions (“dual
registration”). Id. §§ 15-20A-4(13), -12(b). Thus, in-town homeless offenders must register
in-person a minimum of 112 times a year. The county and city forms to be completed by
4 First, certain offenders are eligible for relief from the residency restrictions if they can convince a state circuit court that they are terminally ill or permanently immobile. Id. § 15-20A-23. Second, certain offenders convicted of relatively minor offenses can obtain circuit court relief from ASORCNA’s registration and notification requirements. Id. § 15-20A-24. Finally, a similar provision allows for circuit court relief from ASORCNA’s employment restrictions for a set of less serious crimes. Id. § 15-20A-25.
5 Mr. McGuire has consistently argued that the Class C felonies imposed by ASORCNA are strict liability offenses. However, Mr. McGuire is incorrect in this regard; under Alabama law, “[a] statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.” Id. § 13A-2-4(b). Because the felony provisions of ASORCNA do not explicitly state that the Class C felonies are strict liability offenses, some level of mental culpability is required for conviction. See Sullens v. State, 878 So. 2d 1216, 1221 (Ala. Crim. App. 2003) (finding that a criminal provision did not define a strict liability offense because the provision did “not expressly state that [the conduct was] a strict liability offense”); Ala. Code § 13A-2-4 cmt. (“Subsection (b) explicitly states a policy adverse to arbitrary use of ‘strict liability’ concepts. An express statement is required in the statute defining the offense if strict liability is being imposed.”).
6 Defendants attempt to minimize the felony consequences: “Offenders who fail to comply with these requirements are subject to a low-level felony conviction,” Doc. # 255 at 15 (emphasis added), which the court likens to being shot with a smaller-caliber bullet.
7

homeless registrants are substantively identical. Montgomery currently has three homeless
offenders out of roughly 500 registrants.
Finally, the Legislature delegated rule-promulgating authority for ASORCNA to the
Director of the Alabama Department of Public Safety. Id. § 15-20A-44. This accounts for
the strong similarity in the ASORCNA forms used by local police departments and county
sheriffs.
The Alabama Legislature made the following findings relevant to its intent in enacting
the scheme:
(1) Registration and notification laws are a vital concern as the number of sex offenders continues to rise. The increasing numbers coupled with the danger of recidivism place society at risk. Registration and notification laws strive to reduce these dangers by increasing public safety and mandating the release of certain information to the public. This release of information creates better awareness and informs the public of the presence of sex offenders in the community, thereby enabling the public to take action to protect themselves. Registration and notification laws aid in public awareness and not only protect the community, but serve to deter sex offenders from future crimes through frequent in-person registration. Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.
(3) Homeless sex offenders are a group of sex offenders who need to be monitored more frequently for the protection of the public. Homeless sex offenders present a growing concern for law enforcement due to their mobility. As the number of homeless sex offenders increases, locating, tracking, and monitoring these offenders becomes more difficult.
(5) Sex offenders, due to the nature of their offenses, have a reduced expectation of privacy. In balancing the sex offender’s rights, and the interest of public safety, the Legislature finds that releasing certain information to the public furthers the primary governmental interest of protecting vulnerable populations, particularly children. Employment and residence restrictions, together with monitoring and tracking, also further that interest. The Legislature declares that its intent in imposing certain registration, notification,
8

monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public, and most importantly, promote child safety. Id. §§ 15-20A-2(1), (3), (5). With regard to the branding of one’s sex-offender status on the ASORCNA-required driver’s license or official identification card, the Legislature intended “a designation that enables law enforcement officers to identify the licensee as a sex offender” but did not specify the method of notice on the license. Id. § 15-20A-18. B. Mr. McGuire’s Experience Mr. McGuire turned 60 years old during the course of this trial. He is a sex offender under ASORCNA, and, as a result, he is required to register with the City of Montgomery Police Department and the Montgomery County Sheriff’s Department on a regular basis. Mr. McGuire is one of more than 500 registered sex offenders residing in Montgomery County, over 430 of whom live within the Montgomery city limits. Mr. McGuire’s registry information has been available to the public via the Alabama and federal sex-offender registries since May of 2010. Additionally, pursuant to ASORCNA’s community-notification provision, persons within the statute’s prescribed proximity to Mr. McGuire’s registered residence were notified by flyer in June of 2010 that Mr. McGuire is a registered sex offender. During each quarterly registration at the Montgomery Police Department and the Montgomery County Sheriff’s Office, Mr. McGuire is supposed to pay a $10 fee. Due to his “homeless status,” however, Mr. McGuire’s fee has been waived. (Doc. # 251, at 40:12–14.) Mr. McGuire is currently one of three homeless offenders in Montgomery County, and he lists his residence as being under a bridge in the City of Montgomery. Mr. McGuire’s wife
9

of eleven years is not homeless; she lives in the house that the couple rents from Mr. McGuire’s brother. Because the house is not in an ASORCNA-compliant area, Mr. McGuire is prohibited from residing in the house with his wife. He may, however, stay in the house not more than two consecutive nights, not to exceed nine nights a month. Id. § 15-20A-11(e).
Mr. McGuire asked local law enforcement about the suitability of fifty to sixty other homes in the City, but none complied. It is undisputed that Mr. McGuire and his wife lived in the Regency Inn from April 27, 2010, until July 19, 2010, paying a weekly rent. Eventually, however, he depleted his savings, and the couple moved out. The testimony of Mr. McGuire’s expert established that, conservatively, 80 percent of the city’s housing stock was not ASORCNA-compliant, thereby creating a large, residential “zone of exclusion.” The City of Montgomery has over 96,000 parcels of real estate. (Trial Tr. I, at 61.) The precise extent of the zone of exclusion is an ever-moving target, changing almost daily with the ebb and flow of real estate transactions. It is undisputed, however, that much of the City’s housing is not available for sale or rent at any one time, and Mr. McGuire’s expert testified that some of the available housing stock is in expensive neighborhoods and some is in undeveloped rural areas. The expert testified that 76.8 percent of the parcels “are off limits to people subject to ASORCNA” and that “80 percent of where the people are actually living in the city is off limits to people subject to the statute.” (Trial Tr. I, at 46.) Accurately accounting for housing availability for sex offenders is, in short, an unresolvable nightmare for law enforcement. For registrants, who bear the burden of locating such housing under the penalty of several felony offenses should they make the wrong decision, keeping track is impossible, period. Nevertheless, all but three of the more than 430 sex offenders registered in the City of
10

Montgomery have found compliant homes, are grandfathered into non-compliant areas, or no longer reside in the City.
Because Mr. McGuire is homeless, he registers quarterly and weekly with both the Montgomery County Sheriff’s Office and the Montgomery City Police Department. The two offices are located five miles apart. On occasion, Mr. McGuire has had to walk as far as twenty miles to register with both jurisdictions.
Before moving to Alabama in 2010, Mr. McGuire was employed as a hair stylist and musician. Since moving to Alabama, ASORCNA has prevented Mr. McGuire from accepting or applying for a number of jobs, including music-related engagements.7 He is occasionally able to arrange to play in a compliant zone, for which he is paid $125 per event. As a result of the employment restrictions, Mr. McGuire lives mostly on a fixed income comprised of disability benefits.
Mr. McGuire is subject to other ASORCNA requirements as well. For example, he has had to replace his driver’s license with a new ASORCNA-compliant license. On the front of his new license is the inscription “CRIMINAL SEX OFFENDER” in red lettering. Mr. McGuire has also had to limit his travel – a hobby he enjoyed prior to moving to Alabama – because of the three-day travel permit requirement. Applying for the permit requires registration at two jurisdictions for all in-town offenders, homeless or not.
7 Indeed, under ASORCNA, approximately 85 percent of jobs in the city are barred to offenders (creating an employment “zone of exclusion”). Approximately 50 percent of the 500 offenders in Montgomery County are unemployed. Admittedly, a certain unspecified portion of that percentage is not actively seeking employment.
11

V. CONCLUSIONS OF LAW A. Proper Defendants
In challenging ASORCNA, Mr. McGuire brought this lawsuit against a number of individuals and governmental entities. The viability of his claims against each Defendant will be addressed in turn.
1. City of Montgomery, the Mayor, and the Chief of Police Mr. McGuire’s § 1983 ex post facto claims for injunctive and declaratory relief remain pending against the City of Montgomery, the Mayor in his official capacity, and the Chief of Police in his official capacity. For the reasons that follow, the claims against the City, the Mayor, and the Chief of Police are due to be dismissed.
a. Official-Capacity Suit Against the Mayor and the Chief of Police For purposes of § 1983, suits against the Mayor and the Chief of Police in their official capacities are suits against the City itself. See McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 n.2 (1997); see also Cooper v. Dillon, 403 F.3d 1208, 1215 (11th Cir. 2005) (noting that a § 1983 suit against a municipal police chief is “the same as a suit against the municipality”). Because the City is also a defendant, the § 1983 ex post facto claims against the Mayor and Chief of Police in their official capacities are due to be dismissed as redundant.8 See Gray v.
8 Mr. McGuire does not appear to allege a claim against the former Mayor and Chief of Police in their individual capacities for injunctive and declaratory relief. (Doc. # 256, at 10 (“All of the Defendants in the matter – who are properly sued in their official capacities because they enforce ASORCNA – should be enjoined from enforcing the statute.”).) But, even if the operative complaint could be construed to allege such a claim, Mr. McGuire cites no controlling or otherwise supportive authority for such a claim. At least one district court in this circuit has found that individual-capacity suits under § 1983 for equitable relief are not sustainable. Jones v. Buckner, 963 (continued . . . )
12

City of Eufaula, 31 F. Supp. 2d 957, 965 (M.D. Ala. 1998) (dismissing as redundant a § 1983
official-capacity claim where the plaintiff also brought a § 1983 claim against the city).
b. City of Montgomery
For a city to be liable under § 1983, “the plaintiff has the burden to show that a
deprivation of constitutional rights occurred as a result of an official government policy or
custom.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (defining “custom” and
“policy”). “‘Only those officials who have final policymaking authority may render the
municipality liable under § 1983.’” Id. (quoting Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.
1996)).
In Cooper, the Eleventh Circuit addressed whether a city could be held liable under
§ 1983 for a police chief’s enforcement of an unconstitutional state statute. Id. at 1222. In
that case, the police chief had ordered the arrest of the plaintiff, who was a newspaper
publisher, for publishing news articles “disclosing . . . information he obtained as a participant
in an internal investigation.” Id. at 1213. The court determined that the state statute under
which the publisher was arrested was “an unconstitutional abridgment of core First
Amendment rights,” id. at 1219, and that “state law demonstrate[d] that [the police chief] was
( . . . continued) F. Supp. 2d 1267, 1281 (N.D. Ala. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.”); Greenawalt v. Ind. Dep’t of Corrs., 397 F.3d 587, 589 (7th Cir. 2005) (“[S]ection 1983 does not permit injunctive relief against state officials sued in their individual as distinct from their official capacity.”)); see also Wolfe v. Straijman, 392 F.3d 358, 360 n.2 (9th Cir. 2004) (noting that injunctive and equitable relief were not available in § 1983 individual capacity suits). The court envisions no reason, and none has been offered, for departing from the foregoing principles to the extent that Mr. McGuire has brought § 1983 individual-capacity claims for injunctive and declaratory relief against the former Mayor and Chief of Police.
13

the ultimate policymaker for police procedure” for the city.” Id. at 1222. Rejecting the police chief’s argument that the city could not “be liable for enforcing an unconstitutional state statute,” the Eleventh Circuit held that the city had “adopt[ed] the unconstitutional proscriptions [of the statute] as its own” by enacting an ordinance that made it unlawful to commit a state-defined offense within the city limits. Id. Hence, the Eleventh Circuit held that the city, “through the actions of [its police chief], adopted a policy that caused the deprivation of [the plaintiff’s] constitutional rights which rendered the municipality liable under § 1983.” Id. at 1223.
Unlike in Cooper, Mr. McGuire presents no evidence indicating that a City of Montgomery official has final policy-making authority over the provisions of ASORCNA. Rather, the Alabama Legislature delegated the interstitial policy-making function of ASORCNA to the Director of the Department of Public Safety. Additionally, no evidence has been offered indicating that any City official has discretionary authority over the promulgation of rules associated with ASORCNA, or that any such rules have been promulgated by the City. Because there is no evidence that the City has “consciously chosen [the methods in which ASORCNA has been implemented] from among various alternatives,” City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985), there has been no showing that any of the alleged actions in this case were a result of a city custom or policy. Accordingly, the City of Montgomery is due to be dismissed.
2. State Officials Mr. McGuire also seeks prospective injunctive and declaratory relief against the State Attorney General, the Montgomery County Sheriff, and the Alabama Department of Public
14

Safety Director in their official capacities (“State Officials”). As explained in the September
9, 2013 Order (Doc. # 134), these are viable avenues of relief under § 1983. See generally
Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999) (The Eleventh
Amendment, by application of the doctrine of Ex parte Young, 209 U.S. 123 (1908), does not
bar § 1983 official-capacity suits for “prospective equitable relief to end continuing violations
of federal law.”). Accordingly, Mr. McGuire’s lawsuit proceeds only as to his § 1983 claims seeking to enjoin the State Officials9 in their official capacities from continuing to enforce an
allegedly ex post facto law and for corresponding declaratory relief.
B. Standing Mr. McGuire challenges ASORCNA’s registration, notification, driver’s license
inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions. Of those challenges, the State10 argues that Mr. McGuire lacks standing to challenge the employment and travel restrictions and the registration-fee requirements.11
The State argues that, because Mr. McGuire does not have definite plans to travel and
has not tried to travel in the recent past, he has suffered no injury with regard to ASORCNA’s
travel-permit requirement. Similarly, the State argues that, because Mr. McGuire admitted at
9 In Alabama, county sheriffs are state officials. See McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 793 (1997) (“Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties.”).
10 Arguments of the State are derived from the arguments and brief of the Attorney General. The other Defendants adopted the Attorney General’s standing and ex post facto arguments in their entirety.
11 The State challenges Mr. McGuire’s standing to attack several other components of ASORCNA, such as the juvenile-offender and sexually-violent-predator provisions. Mr. McGuire does not challenge those provisions, however, so he is not asserting standing as to those provisions.
15

the hearing that he was not currently seeking employment, he does not have standing to challenge the employment restrictions. Finally, the State contends that Mr. McGuire cannot challenge the registration-fee requirement because his fee has often been waived in light of his “homeless” status. All three of the State’s arguments are unpersuasive.
The right to travel is a fundamental right. United States v. Guest, 383 U.S. 745, 758 (1966) (“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”). Further, a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his exercise of constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). Because Mr. McGuire’s right to travel is deterred by ASORCNA’s travel-permit requirement and corresponding risk of felony convictions, Mr. McGuire has standing to challenge the requirement.
As to employment, while it is true that Mr. McGuire is not currently looking for work, he stated that work in the form of musical engagements often “come[s] to [him].” (Doc. # 251, at 39:13.) There is no question that Mr. McGuire’s musical employment has been and will continue to be negatively impacted by ASORCNA. In particular, Mr. McGuire proved that he continues to turn down musical performances because the performances are scheduled in venues located in non-compliant areas. (Doc. # 251, at 25:13–25.) The fact that Mr. McGuire has had to decline offers to work at venues in non-compliant areas confers standing for purposes of challenging ASORCNA’s employment restrictions.
Finally, as to the registration-fee requirement, “[a]n allegation of future injury may suffice [for a plaintiff to have standing] if the threatened injury is certainly impending, or
16

there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal quotations omitted). While Mr. McGuire is not paying the fee currently, he is exempt only because he is homeless. (Doc. # 251, at 40:12–14.) Regardless of whether this is a decision made by law enforcement or an adjudication of indigence by a judge, the risk that Mr. McGuire may lose his homeless or indigent status and thus be required to pay the fee is substantial enough to confer standing to challenge the registration-fee requirement. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000–01 (1982) (finding standing because respondents nursing home remained “free to determine independently that respondents’ continued stay at current levels of care [was] not medically necessary,” and based on analogous past decisions, the threat of such a decision was “quite realistic”).
Accordingly, Mr. McGuire has standing to challenge ASORCNA’s registration, notification, driver’s license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions. C. Ex Post Facto Challenge
Mr. McGuire’s sole remaining claim is that ASORCNA violates the Ex Post Facto Clause of the United States Constitution. The Ex Post Facto Clause “forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866)). As the Supreme Court has explained, the Ex Post Facto Clause is but one expression of the “deeply rooted” jurisprudential “presumption against the
17

retroactive application of new laws.” Lynce v. Mathis, 519, U.S. 433, 439–40 (1997). This “limit[ation] on the sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects” protects “not only the rich and the powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgement of guilt and a suitable punishment.” Id. at 440 (internal citation omitted). The protection afforded by the Ex Post Facto Clause is limited, however, as the Supreme Court has held that its prohibition “applies only to criminal laws, not to civil regulatory regimes.” United States v. W.B.H., 664 F.3d 848, 852 (11th Cir. 2011) (citing Kansas v. Hendricks, 521 U.S. 346, 369 (1997)).
Because a civil regulatory regime is not subject to an ex post facto challenge, the issue is whether ASORCNA may fairly be characterized as criminal, imposing a retroactive punishment, or is more properly categorized as civil and nonpunitive. Id. The framework for this inquiry is well settled. Smith v. Doe, 538 U.S. 84, 92 (2003) (outlining the Court’s twostep approach). First, a court must look to legislative intent. If it determines that “the intention of the legislature was to impose punishment, that ends the inquiry,” and a plaintiff may proceed with the ex post facto challenge. Id. If, however, the legislature intended “to enact a regulatory scheme that is civil and nonpunitive,” the court must proceed to step two and determine “whether the statutory scheme is ‘so punitive either in purpose or effect as to negate’” the Legislature’s civil intent. Id. (quoting United States v. Ward, 448 U.S. 242, 248– 49 (1980) (internal quotations and alterations omitted)).
1. Step One: The Expressed Intent of the Alabama Legislature To determine the intent of the Alabama Legislature in enacting ASORCNA, the court is to consider the statute’s text and structure, as well as the “[o]ther formal attributes of a
18

legislative enactment, such as the manner of its codification or the enforcement procedures it establishes.”12 Smith, 538 U.S. at 92–94. Because “[a] conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, . . . considerable deference must be accorded to the intent as the legislature stated it.” Id. at 92–93. Here, the majority of considerations indicate that the Alabama Legislature’s express intent was to enact a civil regulatory scheme, not to impose punishment.
First, just as the Supreme Court observed in Smith v. Doe – a leading case in which the Court analyzed whether Alaska’s sex-offender legislation was criminal or civil – the Alabama Legislature “expressed the objective of the law in the statutory text itself.” 538 U.S. at 93 (recognizing that the Alaska Legislature expressed a clear civil intent when it spoke to sex offenders’ high recidivism rates and identified public safety as the government’s primary motivator). In ASORCNA’s legislative findings section, the Legislature “declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish registrants but to protect the public and, most importantly, promote child safety.” Ala. Code § 15-20A-2(5). And specifically with regard to homeless
12 Mr. McGuire argues that the court should also look beyond the Legislature’s stated intent to what is implied by the statute’s text. For support, Mr. McGuire points to Doe v. Nebraska, in which a Nebraska District Court found the state legislature’s intent in enacting sex-offender legislation to be punitive in light of a state senator’s anti-offender commentary, the distinctions between the state legislation and its federal counterpart, the legislation’s impact, and “the blatant willingness of the Nebraska Legislature to violate [various other provisions of] the Constitution.” 898 F. Supp. 2d 1126, 1125–27 (D. Neb. 2012). Unlike Doe v. Nebraska, however, Mr. McGuire does not have the “benefit” of a senator’s disparaging commentary, and any further comparison between this case and Doe v. Nebraska is better suited to the second-step of the analysis, where an examination of effects properly lies.
19

sex offenders, the statute notes that their increased “mobility” necessitates more frequent monitoring “for the protection of the public.” Id. § 15-20A-2(3). Because the Alabama Legislature expressly disavowed a penal motivation and, instead, highlighted its concern for public safety,13 there is no doubt that the Alabama Legislature proffered a civil purpose and
indicated its preference for a civil label. See Smith, 538 U.S. at 93 (“[C]ourts ‘must first ask whether the legislature, in establishing the penalizing mechanism, indicated whether expressly or impliedly a preference for one label or the other.’” (quoting Hudson v. United States, 522 U.S. 93, 99 (1997))).
Mr. McGuire argues that, based solely on the text of the statute, the Legislature’s intent is, at most, ambiguous. As an example of one of ASORCNA’s more criminal-like features, Mr. McGuire points out that it is codified in Alabama’s criminal procedure code.
Additionally, ASORCNA incorporates criminal penalties for enforcement purposes, which could indicate that the statute was intended as a criminal measure. The Court in Smith, however, faced similar statutory attributes it considered “open for debate” and still found that Alaska Legislature’s purpose in enacting the statute was nonpunitive. Id. at 94.
In Smith, the Court discussed how the notification provisions of Alaska’s sexoffender statute were codified in the state’s “Health, Safety, and Housing Code” while the registration provisions were codified in Alaska’s criminal procedure code. 538 U.S. at 95. It
13 Mr. McGuire argues that the legislative findings also indicate a punitive intent in light of the legislature’s inclusion of the word certain in § 15-20A-2(5). Specifically, Mr. McGuire contends that because the Legislature only stated that its intent was nonpunitive when it “impos[ed] certain registration, notification, monitoring and tracking requirements on sex offenders,” the employment and travel restrictions must be taken as punitive. (quoting Ala. Code § 15-20A-2(5)). While the court takes note of Mr. McGuire’s linguistic argument, it is unable to find that the Legislature’s use of the word certain negates its clear renunciation of a punitive intent.
20

went on to note, however, that “[t]he location and labels of a statutory provision” are not dispositive factors and recognized that Alaska’s Code of Criminal Procedure “contain[ed] many provisions that d[id] not involve criminal punishment, such as the civil procedures for disposing of recovered and seized property.” Id. Additionally, the fact that Alaska “invoke[d] the criminal process in aid of” its regulatory scheme by providing notice of the act to defendants during their plea colloquies and incorporating criminal penalties, did “not render the statutory scheme itself punitive.” Id. at 96. Rather, the Court “infer[red] that the legislature envisioned the Act’s implementation to be civil and administrative” as it vested the authority to promulgate regulations in an administrative agency and did not include “any of the safeguards associated with the criminal process.” Id.
Here, while all of ASORCNA is codified within the criminal procedure code, Alabama’s criminal procedure code contains many provisions similar to the nonpunitive provisions highlighted in Smith. Specifically, Alabama’s criminal procedure code contains provisions for “disposing of recovered and seized property [Ala. Code § 15-5-50–65] . . . and laws governing actions for writs of habeas corpus [Id. § 15-21-1–34], which under [Alabama] law are ‘independent civil proceeding[s].’” Id.; see also Woods v. State, 87 So. 2d 633, 636 (Ala. 1956) (“It seems to be the general opinion that habeas corpus is a civil, as distinguished from a criminal, remedy or proceeding, regardless of whether the prisoner is detained under civil or criminal process.”). Further, other provisions within the criminal procedure code do not involve criminal punishment, such as procedures for using audio-video communications during criminal pre-trial proceedings, Ala. Code § 15-26-1–6; laws protecting child victims and witnesses in prosecutions for sexual offenses and exploitations involving children, id. §§
21

15-25-1–6, -30–40; and laws governing the rights of crime victims generally, id. §§ 15-23-1– 23, -40–46, -60–84, -100–04. Thus, as in Smith, the codification of ASORCNA within the criminal procedure code “is not sufficient to support a conclusion that the legislative intent was punitive.” 538 U.S. at 95.
Additionally, ASORCNA’s enforcement provisions do not support a conclusion that the Legislature’s intent was punitive. No procedural safeguards associated with criminal law are included alongside ASORCNA’s restrictions or requirements. Further, ASORCNA does not mandate any procedures, but rather vests the Alabama Department of Public Safety with the “authority to promulgate any rules as are necessary to implement and enforce” the Act. Ala. Code § 15-20-44. Accordingly, the fact that ASORCNA relies on criminal penalties for the Act’s enforcement does not, in and of itself, indicate a legislative intent to create a punitive scheme.
In light of the guidance provided by the Supreme Court in Smith, the court finds that the Alabama Legislature clearly expressed its nonpunitive intent and ASORCNA’s other formal attributes do not sufficiently discount the deference that must be given to the Legislature’s stated intent. As a result, the second step of the analysis must be examined.
2. Second Step: Effects Analysis If the analysis ended with the Legislature’s stated intent, the legislative branch would have pitched a shutout to the judicial branch. But the Supreme Court has recognized for centuries that what something is called and what something actually is may be two different things. Just so, in double jeopardy and ex post facto law, allowance is made for guardedly going behind expressed legislative intent to the reality of a legislatively created thing by
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assessing the exposed purpose or effects of the thing. Hence, we have the ancient observation that “[t]he Constitution deals with substance not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however distinguished.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1866)) (emphasis added). Thus, in the second step of the ex post facto analysis, the focus turns to whether this scheme is so punitive in purpose or effect as to negate the State’s declared nonpunitive intent.
Admittedly, “[b]ecause we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” W.B.H., 664 F.3d at 855 (emphasis in original) (quoting Smith, 538 U.S. at 92). The clearest proof standard is a heavy burden to carry: “some evidence will not do; substantial evidence will not do; and a preponderance of the evidence will not do. ‘[O]nly the clearest proof’ will do.” Id. (quoting Smith, 538 U.S. at 92).
Illustrating, however, that courts are not entirely shut out from an inquiry that goes beyond a legislature’s stated intent, the Supreme Court in Smith applied the MendozaMartinez “guideposts.” 538 U.S. at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)). The Mendoza-Martinez factors, “which migrated into our ex post facto case law from double jeopardy jurisprudence,” call on a court to analyze “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of
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punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Smith, 538 U.S. at 97. These factors are only “guideposts” and are “neither exhaustive nor dispositive”; “[n]o one factor should be considered controlling as they ‘may often point in differing directions.’” Hudson v. United States, 522 U.S. 93, 101 (1997) (quoting Mendoza-Martinez, 372 U.S. at 169). These factors are useful and will be applied in the following analysis.
a. The Extent to Which Effects Are Analyzed As a preliminary matter, the court must determine the extent to which ASORCNA’s effects may be analyzed. The parties have taken diametrically opposed stands on this point. Mr. McGuire advocates for the consideration of each of ASORCNA’s effects, including those felt by only one or two offenders at most, while Defendants argue that ASORCNA’s implementation (a term used, in this context, synonymously with “effects”) may not be considered at all in light of the requirement that a court look only to the statute on its face.14 The court declines to follow either approach, rather, finding sufficient guidance in Smith and other Supreme Court precedent to establish the level of consideration necessary.
14 The State ultimately relents in its approach to an extent by stating that, “[a]t most, [Mr. McGuire’s] testimony is relevant only insofar as it describes a typical sex offender’s experience under ASORCNA.” (Doc. # 255, at 34.) Generally speaking, however, the State argues that implementation is irrelevant to determining whether the statute is punitive in purpose or effect. (Id.; see also id., at 36 (stating that “the actual means [the Department of Public Safety] chose to implement [the licensenotification] requirement are irrelevant” because “[t]he Court should . . . evaluate ASORCNA ‘on its face’”).)
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As has been discussed, in Smith, the United States Supreme Court determined that the
Alaska Sex Offender Registration Act did not violate the Ex Post Facto Clause of the Constitution.15 The Alaska statute required a sex offender to register with law enforcement
and required law enforcement to notify community members of the sex offender’s presence.
Of particular importance, the majority examined the impact of the state’s dissemination of
registrants’ information over the internet, despite the absence of any provision detailing how
to make registrants’ information public within the statute. Specifically, the Court
“acknowledged that notice of a criminal conviction subjects the offender to public shame,
[with] the humiliation increasing in proportion to the extent of the publicity,” but, because
“[t]he purpose and the principal effect of notification are to inform the public for its own
safety, [and] not to humiliate the offender, . . . the attendant humiliation [was] but a collateral
consequence of a valid regulation.” Id. The Court examined these general effects on
offenders even though “[t]he Act [did] not specify the means by which the registry information [was to] be made public.” Id. at 91.16
There is little difference between implementation of the internet-dissemination scheme
in Smith and the Department of Public Safety’s implementation of the travel-permit and
15 Interestingly, the Supreme Court of Alaska later invalidated the very same law upheld in Smith, as an ex post facto violation of Alaska’s constitution. See Doe v. Smith, 189 P.3d 999 (Alaska 2008).
16 In his concurrence, Justice Thomas took issue with the majority’s decision to examine the effect of internet dissemination as part of the second-step analysis. Specifically, he stated that, “[b]y considering whether Internet dissemination renders [the Alaska Act] punitive, the Court has strayed from the statute.” Smith, at 538 U.S. at 107. Because the Act did not “specify a means of making registry information available to the public,” the Court was not confining its analysis to the statute’s face, and thus Justice Thomas disagreed with that particular section of the majority’s opinion. Id. at 106.
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license-notification requirements under ASORCNA. First, both statutes provide a grant of regulatory authority to the State’s Department of Public Safety. Id. at 96 (stating that the Alaska Act “vest[ed] the authority to promulgate implementing regulations with the Alaska Department of Public Safety”); Ala. Code § 15-20-44(c) (“The Director of the Department of Public Safety shall have the authority to promulgate any new rules as are necessary to implement and enforce [ASORCNA].”). Second, both Smith and the present analysis involve an examination of the Department of Public Safety’s chosen means of implementing a provision within the statute. See Smith, 538 U.S. at 90 (noting that the Alaska statute required certain information, including offenders’ names and addresses, be made available to the public); Ala. Code § 15-20A-15 (establishing travel restrictions); id. § 15-20A-18 (establishing identification requirements). Based on the statutory delegation of regulatory authority and the specific provision in the statute under which the regulatory authority had been exercised, the Smith Court analyzed the actual means used to make the non-confidential material public, and this court will conduct a similar analysis regarding ASORCNA’s travelpermit and license-notification requirements.
In contrast to the effects associated with the implementation of travel restrictions and license-notification requirements, the idiosyncratic effects17 alleged by Mr. McGuire may not be used alone to uphold or defeat an ex post facto challenge. Consideration of such
17 “Idiosyncratic effects” is used as a synonym for those effects that are not experienced by all offenders, and which usually point to an “as-applied challenge.” As-applied challenges in ex post facto cases are directly barred by Seling. To further distinguish idiosyncratic effects from the Department of Public Safety provisions mentioned above, idiosyncratic effects are not the result of statutorily authorized, general implementation.
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idiosyncratic effects alone has been expressly rejected by the Supreme Court. In Seling v. Young, the Court favorably quoted Hudson v. United States, in which it “expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act ha[d] on a single individual.” 531 U.S. 250, 262 (2001). The Seling Court went on to note that courts must instead “evaluate the question by reference to a variety of factors considered in relation to the statute on its face.” Id. (internal quotation marks omitted).
The Seling case signals why idiosyncratic effects cannot be used alone in upholding a challenge. In that case, the Court determined that a statute that had already been characterized as facially nonpunitive could not be rendered punitive solely by its application to a single individual. To hold otherwise, according to the Court, would be to “invite an end run around the [State] Supreme Court’s [earlier] decision that the Act [was] civil.” Id. at 264. Based on that analysis, it would be illogical to allow such a result in this case solely because Mr. McGuire presents the right set of idiosyncratic effects in ASORCNA’s challenge before this court. If this were allowed, cases presenting idiosyncratic effects would have disparate results from those examining purely general effects.
That said, idiosyncratic effects have been used in the negative to bolster a finding that a statute does not violate the Ex Post Facto Clause. For example, the Supreme Court in Hendricks addressed the specific confinement to which the plaintiff in that case had been subjected by stating that, “[a]lthough the treatment program initially offered Hendricks may have seemed somewhat meager, it must be remembered that he was the first person committed under the Act.” 521 U.S. at 367–68. This statement acknowledged the idiosyncratic subpar treatment that the plaintiff received and cast the treatment as having only a minor impact on
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the overall analysis. Further, and as an additional example, the Third Circuit noted idiosyncratic effects in rejecting an ex post facto challenge to a sex offender registration scheme, stating that, “[a]lthough the record [in that case] reflect[ed] that personal injury and property damage from private violence ha[d] occurred, it also reflect[ed] that [those] occurrences [were] relatively rare.” E.B. v. Verniero, 119 F.3d 1077, 1104 (3d Cir. 1997). By highlighting the idiosyncratic nature of specific persons’ experiences, the Hendricks and Verniero courts provided additional support for rejecting the plaintiffs’ ex post facto challenges.
The court finds that idiosyncratic effects may not be used alone to uphold or defeat Mr. McGuire’s ex post facto challenge. Accordingly, the court will confine its consideration of such effects, e.g., the “zones of exclusion” – Mr. McGuire’s particular experience with homelessness, and Montgomery’s lack of affordable or vacant housing – only to the extent that they explain or describe general effects flowing from the face or necessary operation of the statutory scheme.
A related but distinct consideration is the proper scope and focus of the examination of effects. As Smith pointed out, “we must . . . examine . . . the statutory scheme . . . .” 538 U.S. at 92 (emphasis added). This instruction is particularly important in the case of ASORCNA because, to put it bluntly, it is the most comprehensive scheme, by far, in the United States. It is unique and novel in scope. No other state combines in-person registration, community notification, driver’s license branding, residency restrictions, employment restrictions, travel restrictions, association with related children restrictions, weekly registration for the homeless, dual registration for all offenders in municipalities, and dual
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weekly registration for all homeless offenders in municipalities (totaling up to 112 in-person registrations per year), undergirded by 115 felonious ways to violate the statutory scheme, life application, retroactive to infinity or eternity (whichever first occurs), and all of it (except very limited exceptions for relatively minor offenses) without risk assessments for general sex offenders (non-juvenile and non-predatory).
Alabama’s scheme goes miles beyond the minimum federal requirements of the Sex Offender Registration Act (“SORNA”), recently reviewed in this Circuit in United States v. W.B.H. See 664 F.3d 848 (11th Cir. 2011). Many courts across the country have analyzed and ruled upon individual components that are included in Alabama’s scheme, and in isolation, most have been upheld. But no court has ever been faced with analyzing in toto the general effects of a scheme this expansive.18 Realizing this task early on, and in consideration of the court’s reading of the law, the parties were notified that the court would examine the cumulative effects of the scheme as a whole to determine if the effects overrode stated intent.
Defendants objected to this approach. In fact, the State in particular objected to any trial on the facts: “[W]e believe this question is a purely legal one, not susceptible to courtroom fact-finding. . . . [W]e therefore object to holding a trial at all on the ground that it is unnecessary.” (Trial Tr. I, at 18.) The court could find no controlling law holding that
18 “Only 13 other states restrict residency . . . , only 15 other states restrict employment . . . , and only 9 restrict both residency and employment. No other state requires dual reporting to both the sheriff and the police department, and only one other state (Tennessee) contains travel restrictions. Only five other states are infinitely retroactive combined with lifetime application, meaning that the vast majority of states have some limit as to how far back or how far forward their provisions apply. Put together, there is not a single state that matches the cumulative and punitive effects of Alabama’s ASORCNA – in fact, none even comes close.” (Doc. # 256, at 37.)
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the “clearest proof” standard applies only to legislative facts. Because a burden of proof
suggests evidence, and the court knowing of no way to gather facts about the general effects
caused by the scheme on its face, nor a way to assess “how effects of the Act are felt by those
subject to it . . .”, Smith, 538 U.S. at 99–100 (assessing the affirmative disability or restraint
prong) (emphasis added), the objections of the State were overruled at trial.
The State also took the position at trial that the effects must be examined exclusively
as to each provision individually, instead of cumulatively:
THE COURT: Are you aware of any law in the United States that has as many effects on an offender as the Alabama statute?
MR. PARKER: I am unaware only because I have not spent much time researching these statutes. And I understand the plaintiffs have a chart.19 We . . . obviously rely on the Court to do the research. It’s time-consuming. I don’t think it’s necessary for purposes of this case.
THE COURT: You think that . . . because the State Legislature says it, that they can create unlimited effects and it not be excessive?
MR. PARKER: No, Your Honor. We – the question, again, is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.
THE COURT: That doesn’t answer the excessive [sic] question.
MR. PARKER: Well, what I’m trying to say, Your Honor, is if you take each of these provisions and look at them, they each are reasonable in light of the regulatory means chosen.
THE COURT: So then you can have unlimited [effects on offenders] as long as each one stands alone as individual [sic].
MR. PARKER: Yes. If that’s your question, yes, that’s how I see the law.
19 In the record as Mr. McGuire’s Exhibit 3. 30

(Trial Tr. I, at 25–26.) The court was perplexed by the State’s assertion that unlimited intersecting provisions and their effects would be constitutional. First, this position would effectively bar courts from truly analyzing an act’s effects. What would there be for a court to do, then, but unquestioningly take the legislature at its word with regard to intent? Second, taken to its extreme, even daily double-registration of city-dwelling homeless offenders – totaling 730 in-person registrations a year per homeless offender – would be, under this analysis, perfectly constitutional. The argument ends in absurd results.
Wishing to avoid absurdity if at all possible, the court has settled on a blended analysis of the effects of ASORCNA. First, each of the relevant statutory provisions will be examined in light of the Mendoza-Martinez factors. Second, the scheme as a whole will be assessed for purpose and effects, taking into particular account its effect on homeless Alabama sex offenders. This is so because the Constitution deals in substance not shadows, the nature of things, not just the name of things.
With these analytical contours in mind, the court now turns to the Mendoza-Martinez guideposts.
b. Whether, in Their Necessary Operation, ASORCNA’s Provisions Have Been Regarded in Our History and Traditions as Punishment
Mr. McGuire argues that ASORCNA’s requirements resemble various traditional forms of punishment. Each suggested similarity will be addressed in turn.
i. Banishment Mr. McGuire contends that ASORCNA’s residency restrictions effectively create an “enormous zone of banishment.” (Doc. # 256, at 9.) The Supreme Court in Smith recognized
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banishment as a traditional form of colonial punishment. 538 U.S. at 98. Since then several courts have had the opportunity to explore how sex offender residency restrictions compare to the historical practice. See Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (differentiating residency restrictions from the practice of banishment); Wallace v. New York, No. 12-CV5866, 2014 WL 4243564, at *30 (E.D.N.Y. Aug. 28, 2014) (same); Doe v. Baker, No. 1:05CV-2265, 2006 WL 905368, *3 (N.D. Ga. Apr. 5, 2006) (same). In comparing the historical practice of banishment to Iowa’s sex offender residency restrictions, the Eighth Circuit explained that “banished offenders historically could not ‘return to their original community.’” Miller, 405 F.3d at 719. Similarly, the Court in Smith noted that “the banishment of an offender expelled him from the community.” 538 U.S. at 98.
As Mr. McGuire has testified in this case, he is not barred from frequenting any part of the city during the day. (Doc. # 256, at 13.) Rather, the restrictions only limit the places in which an offender can establish a residence or apply for and accept employment. There is no complete exile from the City of Montgomery or from any other location within Alabama. Thus, while Mr. McGuire is able to offer a troubling account of his inability to find viable housing, he cannot show that he has been the subject of banishment in its historical form.
ii. Public Shaming Mr. McGuire next argues that two of ASORCNA’s provisions resemble the traditional punishment of public shaming. First, Mr. McGuire asserts that by requiring the front of every registrant driver’s license to be branded with the words “CRIMINAL SEX OFFENDER” in all capital, red letters, the State is subjecting registrants to “public embarrassment,
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humiliation, and shaming.”20 (Doc. # 256, at 25.) In Smith, the Supreme Court explored the
historical practice of public shaming in light of Alaska’s sex offender community notification
provisions and recognized that “[s]ome colonial punishments indeed were meant to inflict
public disgrace.” 538 U.S. at 98. However, the Court narrowed its description of public
shaming, noting that such punishments were historically carried out by holding “the person
up before his fellow citizens for face-to-face shaming.” Id.
The red-lettered labelling of registrant driver’s licenses is no doubt an aggressive
provision. Mr. McGuire illustrated how the required red lettering on his driver’s license leads
to shame and embarrassment in ordinary, everyday encounters with the public:
ANSWER: Well, first of all, without – just having the license itself is a reminder every day that you’re being punished. You’re being – I don’t know if the correct word is “ostracized.” But with that said, I had an experience just recently at a Dollar General Store. I used my credit card to purchase some groceries; and the clerk asked me for my driver’s license, so I showed it to him. And he held it up to compare it with my credit card, and he looked at it and he looked at me again. And he handed it back to me. He said, how long have you been locked up? And I found that just to be repulsive. I felt very ashamed, very embarrassed.
QUESTION: In what kinds of situations do other folks have to look at your driver’s license?
ANSWER: Cashing checks. Or I might pick up some items that my wife would order on line from Walmart, and I have to go to Walmart and show my identification.
20 Defendants object to the court’s evaluation of the identification card requirement, arguing that the requirement that registrant driver’s licenses be inscribed with “CRIMINAL SEX OFFENDER” is not a provision of ASORCNA on its face but a means of implementation as promulgated by the Department of Public Safety. The court, however, has already addressed this argument, finding that the Department’s decision in this regard is indistinguishable from the implementation of the internet registry in Smith and may be considered among ASORCNA’s other non-idiosyncratic effects.
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QUESTION: In fact, you’ve had to show your driver’s license here in the past three days to get into this very building; isn’t that right, Mr. McGuire?
ANSWER: That’s correct. (Trial Tr. III, at 35.) In fact, the only other red lettering that appears on an Alabama driver’s license is the State’s name.
However, important differences exist between ASORCNA’s license-labelling requirement and the “scarlet-letter-type punishment” referenced by the Eleventh Circuit in W.B.H. 664 F.3d at 855. Offenders have some degree of control over when and where to present an identification, unlike those during colonial times who had their transgressions aired publicly at all times, without any power to contain or control the extent or timing of the humiliation. Thus, while there may be other constitutional concerns with requiring registrants to carry a branded license, the court cannot say that the license-labelling provision is closely analogous to the historical practice of public shaming.
Mr. McGuire also contends that ASORCNA’s community-notification provisions effectively amount to public shaming. Both the Supreme Court and the Eleventh Circuit have assessed the use of online, sex-offender registries in light of the traditional practice of public shaming, and each found sufficient differences between the historical punishment and modern registry regimes. Smith, 538 U.S. at 98 (“[T]he stigma of Alaska’s Megan Laws results not from public display or ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.”); W.B.H. 664 F.3d at 855 (“The registries do not ‘stage[ ] a direct confrontation between the offender and the public.’”). Mr. McGuire, however, argues that ASORCNA far exceeds passive dissemination
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of truthful information, as authorized by Smith and W.B.H., because ASORCNA requires lawenforcement officers to notify every resident within a specific distance that a registrant has moved into the neighborhood, as well as every school and childcare facility in a three-mile radius of the registrant’s residency. Mr. McGuire notes that alongside the notification, each applicable party is also provided his picture, address, and a physical description.
It is true that the Court in Smith assessed a community-notification scheme that existed entirely online, with interested residents needing to take the “initial step” to search out information on registered sex offenders via the state’s website. In the case of ASORCNA, members of law enforcement are required to actively disseminate community-notification flyers to geographically applicable residences, schools, and childcare facilities. But, just as in Alaska, the stigma that results from ASORCNA’s community-notification scheme flows from the “dissemination of accurate information about a criminal record, most of which is already public” and not from organized episodes of “face-to-face shaming.” 538 U.S. at 98. Additionally, the Court in W.B.H. expressly stated that “registries do not ‘stage[ ] direct confrontation between the offender and the public’” and the same is true of the dissemination of flyers. W.B.H., 664 F.3d at 855. Accordingly, because ASORCNA’s communitynotification flyers, like the registries in Smith and W.B.H., serve to inform the applicable public of truthful information in furtherance of public safety and do not initiate public displays of shaming, any comparison to the historical punishment of public shaming is attenuated.
iii. Parole and Probation Mr. McGuire also contends that the requirements imposed by ASORCNA resemble the traditional punishments of parole and probation. To support his assertion, Mr. McGuire
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relies on a single Ohio district court case, Mikaloff v. Walsh.21 No. 5:06-CV-96, 2007 WL 2572268 (N.D. Ohio Sept. 4, 2007). In Mikaloff, the court found Ohio’s sex offender residency restriction to be sufficiently “analogous to the residency restrictions typical to probation and parole” because it gave law enforcement a perpetual, blanket veto power over registrants’ housing and did not provide a grandfather clause. Id. at *9 (explaining that “subjecting a sex offender to constant ouster from his or her home seem[ed like] a significant deprivation of liberty and property interests,” because “[i]t sentenced [him or her] to a life of transience [and] forc[ed] them to become nomads”).
Mr. McGuire alleges that ASORCNA’s requirements are equally analogous to parole and probation as the provision analyzed in Mikaloff. Specifically, he argues that ASORCNA gives Alabama’s law enforcement veto power over where a sex offender may reside, requires registrants to maintain constant contact with law enforcement, provides for criminal punishment upon violation, and restricts employment and travel. Two important differences exist, however, between the residency restriction dissected in Mikaloff and ASORCNA’s provisions. First, ASORCNA’s residency restrictions do not create the risk that offenders will be “sentence[d] . . . to a life of transience” as Judge Gwin feared was possible in Mikaloff. 2007 WL 2572268, at *10. Unlike Ohio’s residency restriction, ASORCNA explicitly states that “[c]hanges to property within 2,000 feet of a registered address of an adult sex offender which occur after the adult sex offender establishes residency shall not form the basis for
21 Importantly, the court in Mikaloff used a different standard than the one applicable in this case. In Mikaloff, the court initially determined that the Ohio Legislature’s intent was ambiguous in enacting the residency restriction, and as a result, did not apply the “clearest proof” standard during the second step of the ex post facto analysis. 2007 WL 2572268, at *5.
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finding that the adult sex offender is in violation” of the residency restrictions. Ala. Code §
15-20A-11(c). Second, while ASORCNA openly restricts a registrant’s housing options and
requires registrants to notify authorities of residential changes, no requirement exists that the
offender must seek law-enforcement permission before making residency decisions. As a
result, law enforcement is not given the same discretionary “veto power” that was described in Mikaloff. 22
Additionally, the Supreme Court provided some analytical assistance when it
compared Alaska’s registration scheme to probation and supervised release for the purpose of determining whether Alaska’s statute imposed an affirmative restraint on sex offenders.23 The
Court noted that “[p]robation and supervised release entail a series of mandatory conditions
and allow the supervising officer to seek the revocation of probation or release in the case of
infraction,” while Alaska registrants are free from direct supervision and any failure to comply
with the reporting requirements would result in a criminal proceeding “separate from the
individual’s original offense.” Smith, 538 U.S. at 101–02. Like the enforcement features in
Smith, any prosecution for violating ASORCNA would occur in a proceeding entirely separate
from the registrant’s original offense. Indeed, “unlike the restraints imposed on those who
22 This distinction is important because permission connotes discretion by a law-enforcement official to grant or deny a request. Thus, requiring permission from a law-enforcement official would be similar to allowing direct and discretionary supervision over a parolee. The Supreme Court in Smith recognized the nuanced difference between permission and notification when it noted that, “[a]lthough registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so.” 538 U.S. at 101.
23 The Supreme Court discussed the relative similarities at this juncture and not during the “historical forms of punishment” analysis, despite comparing other provisions of the Alaska statute to banishment and public shaming.
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are on probation or supervised release, [ASORCNA’s requirements] are not conditions of release the violation of which could result in revocation and imposition of imprisonment without new criminal charges and another trial.” W.B.H., 664 F.3d at 857. This distinction, as highlighted by the Supreme Court, coupled with the aforementioned differences between ASORCNA and the Milakoff scheme, necessitates a finding that ASORCNA is insufficiently similar to parole and probation.
iv. Fines Lastly, Mr. McGuire asserts that ASORCNA’s registration fees are similar to the traditional punishment of fines. For support, Mr. McGuire relies on Doe v. Raemisch, 895 F. Supp. 2d 897 (E.D. Wisc. 2013), in which a $100 annual registration fee was determined to be a punitive fine that violated the Ex Post Facto Clause. According to the court in that case, although the funds were assessed “to offset the costs of monitoring the offenders,” that nonpunitive purpose did “not eliminate the penal aspect of the assessment,” and “singl[ing] out individuals who have prior convictions for sexual assaults as the sole source of such funds [could] only be seen as punitive.” Id. at 909. The Seventh Circuit, however, reversed the district court on that point, stating that: [t]he burden of proving that [a registration fee] is a fine is on the plaintiffs, and since they [had] presented no evidence that [the registration fee] was intended as a fine, they [could not] get to first base without evidence that [the fee] was grossly disproportionate to the annual cost of keeping track of a sex offender registrant—and they have presented no evidence of that either. Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014) (internal citations omitted). The Seventh Circuit went on note that “Wisconsin’s $100 fee [was] the same as that of a neighboring state, Illinois, albeit higher than the fees charged by Idaho ($80) and
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Massachusetts ($75).” Id. Further, it stated that “[t]he state provides a service to the lawabiding public by maintaining a sex-offender registry, but there would be no service and hence no expense were there no sex offenders.” Id. at 1135. Thus, because the registrants “are responsible for the expense, there is nothing punitive about requiring them to defray it.” Id.
The Mueller court’s reasoning is persuasive. Alabama assesses a $10 fee per quarterly registration, thus establishing a baseline fee of $40 per year. Ala. Code § 15-20A-22. Admittedly, if the registrant lives in a municipality, then the registrant will have to pay the fee to both the local police department and the sheriff’s department, thus amounting to $80 per year. Id. And, as Mr. McGuire points out, if the registrant happens to work, live, and attend school at the same time in different counties, the registrant would presumably face a potential annual assessment of $240.24 Despite the potential burden created by these fees, however, Mr. McGuire has presented no evidence suggesting that the fees are “so high that [they] must be . . . fine[s].” Mueller, 740 F.3d at 1134. In addition, the Mueller court’s reasoning that “there is nothing punitive about requiring [offenders] to defray” costs for which the offenders are responsible is persuasive. Id. at 1135. Because ASORCNA’s fees are used to offset the costs of the regulatory scheme, they do not resemble the traditional punishment of fines.
In summary, while several of ASORCNA’s provisions share features with some of our nation’s traditional forms of punishment, this analysis has indicated that important variances also exist between ASORCNA’s provisions and historical punishments. Ultimately, no
24 This calculation assumes that registration would be required in both a city and county for each of the registrant’s places of employment, schooling, and residence.
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ASORCNA provision is sufficiently analogous to an early form of punishment. Thus, the first factor points to a finding that ASORCNA is nonpunitive.
c. Whether, in Their Necessary Operation, ASORCNA’s Provisions Impose an Affirmative Disability or Restraint
The second guidepost requires a court to “consider whether [an act] subjects [its challenger] to an ‘affirmative disability or restraint.’” Smith, 538 U.S. at 100 (quoting Mendoza-Martinez, 372 U.S. at 168). At this stage, a court examines “how the effects of the [a]ct are felt by those subject to it.” Id. at 100–01. The Supreme Court has noted that, “[i]f the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 101.
When evaluating the effects of Alaska’s act, the Supreme Court in Smith began by noting that Alaska’s sex offenders were not physically restrained in any way, thereby distinguishing the statutory scheme from the “paradigmatic affirmative disability or restraint” – imprisonment. Id. In fact, the Court noted that the use of a public registry did not impose an affirmative restraint because it did not “restrain activities sex offenders may pursue” and instead left “them free to change jobs and residences.” Id. Additionally, the act did not impose an affirmative disability in requiring registrants to provide periodic updates and notifications because there was nothing in the act’s text that required the updates to be made in person. Id.
In W.B.H., the Eleventh Circuit evaluated SORNA’s federal registration requirements in light of the guidance provided by the Supreme Court in Smith, and ultimately held that, as in Smith, SORNA “impose[d] only a minor and indirect disability or restraint on adult sex
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offenders.” W.B.H., 664 F.3d at 856–57. Like Alaska’s statute, the court noted that “SORNA does not prohibit changes, it only requires that changes be reported.” Id. at 857. Further, the Eleventh Circuit expressly rejected the idea that Smith stood for the notion that in-person updates and notifications would amount to a per se affirmative disability. Id. Specifically, the court explained that “[a]ppearing in person may be more inconvenient” but the increased inconvenience did not make the requirement punitive. Id.
Mr. McGuire contends that ASORCNA’s residency, employment, and travel restrictions, as well as its in-person registration requirements, go beyond the provisions analyzed in Smith and W.B.H. and impose affirmative disabilities or restraints on registrants.25 In large part, the court agrees and finds that ASORCNA’s residency, employment, and travel restrictions, as well as its in-person registration requirements, rise beyond the minor and indirect impositions examined in Smith and W.B.H. Accordingly, the second guidepost, unlike the first, weighs in favor of the conclusion that certain ASORCNA provisions are “‘so punitive either in purpose or effect’ [as] to override [Alabama’s] intent that it be a civil regulatory statute.” Id. at 858 (quoting Smith, 538 U.S. at 92).
While the Supreme Court in Smith noted that Alaska’s requirements had not “led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred,” that is not the case here. 538 U.S. at 100. Rather, like the plaintiffs in Doe v. Miller, Mr. McGuire has shown that he would live with his wife and not under a
25 In his pending motion for summary judgment, Mr. McGuire briefly argues that the registration fees also constitute an affirmative disability or restraint. Reviewing the record, however, Mr. McGuire, appears to have abandoned this argument.
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bridge absent ASORCNA’s residency restrictions. See 405 F.3d at 721. (“Although the [plaintiffs] did not present much evidence about housing within restricted areas that would have been available to them absent the statute, they did show that some sex offenders would have lived with spouses or parents in the restricted zones . . . .”). In Miller, the Eighth Circuit considered the degree of the restraint on the sex offenders’ residency options to conclude that Iowa’s statute did “impose an element of affirmative disability or restraint.” Id.26
Here, ASORCNA also bars offenders from living with most minors, including nieces and nephews, regardless of whether an offender’s past crime involved children as victims. Moreover, Mr. McGuire testified that he has been forced to turn down employment at various venues because of their location within restricted zones.27 Additionally, ASORCNA’s requirement that an offender seek a permit before traveling restrains him or her from traveling spontaneously. These are direct, non-minor restraints and disabilities felt by those subject to them.
To keep idiosyncratic effects in their proper perspective, not every registrant will feel every restraint of the statute in the same way as all other registrants. However, Mr. McGuire’s experience is illustrative of the general effects of ASORCNA’s scheme in its necessary operation. For example, no registrant can stay, even one night, in a residence with minor
26 After acknowledging the presence of an affirmative disability or restraint, the Eighth Circuit in Miller qualified its analysis on this particular guidepost, believing that Kansas v. Hendricks, 521 U.S. 346 (1997), downplayed the restriction’s relative level of restraint or disability in light of the importance of the restriction’s rational relation to a nonpunitive purpose. 405 F.3d at 721. The latter inquiry, however, is a separate guidepost, distinct from the affirmative disability or restraint analysis.
27 The decrease in employment opportunities mentioned here is a general effect arising from the explicit text of the statute – an effect that is necessarily faced by all offenders.
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nieces or nephews or in the home of a child or parent that is located in a restricted area. It is therefore reasonable to conclude that most registrants have been forced to deem certain residential options off limits in light of ASORCNA. Similarly, every registrant is barred from accepting employment within 2,000 feet of a school or daycare. Accordingly, every registrant has had the number of potential employers diminished based on nothing more than geographic proximity.
As to Mr. McGuire’s contention that ASORCNA’s in-person registration requirements impose an affirmative disability, W.B.H. forecloses the argument that an in-person registration requirement per se is an affirmative disability or restraint. But W.B.H. does not indicate that in-person registration, if required frequently enough, could never amount to an affirmative disability or restraint. While the court in W.B.H. analyzed the federal statutory regime that requires in-person registration on the same quarterly basis as ASORCNA, it did not speak to a statutory scheme that requires in-person, weekly dual registrations for in-town homeless registrants. Such a requirement amounts to 112 required registrations per year, when one includes the base-line quarterly registrations. 28 If requiring 112 in-person registrations per year does not amount to an affirmative disability, it is difficult to envision what, besides incarceration, would qualify.
28 Mr. McGuire asks the court to find that the in-person registration requirement is an affirmative disability in its own right because the statute allegedly “forc[es] [him] to walk or get a ride for 20 miles every week.” (Doc. # 256, at 46.) The court, however, finds that ASORCNA has not “forced” Mr. McGuire to make such a long trek on foot, though on occasion he has been required to suffer that hardship. The circumstance of traveling 20 miles for registration is idiosyncratic to Mr. McGuire, and will not support a finding of affirmative restraint or disability.
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As a result, the court finds that the residency, employment, and travel restrictions generally, as well as dual weekly registrations for in-town homeless registrants specifically, are affirmative disabilities and restraints, and thus this factor points in favor of finding those restrictions punitive.
d. Whether, in Their Necessary Operation, ASORCNA’s Provisions Promote the Traditional Aims of Punishment
In cases challenging sex offender regulations, “traditional aims of punishment” means almost exclusively the concepts of deterrence29 and retribution. The evidence, particularly the expert testimony presented by each side, was sharply, indeed irrevocably, contradictory. In the end, Mr. McGuire proved only one thing by the clearest proof regarding recidivism, namely, that nothing is clear. This lack of clarity was the foundation of the testimony of the expert witness for the state, Dr. Richard McCleary:
QUESTION: In your opinion, based on the research, do sex offender registration and notification laws have a general deterrent effect?
ANSWER: . . . . I’m an agnostic on it . . . . I’ve read everything that’s out there. It’s just too – too ambiguous to draw any conclusion from. (Trial Tr. III, at 152.) Mr. McGuire’s expert, Dr. James J. Prescott, testified that being listed on a sex offender registry actually increases recidivism. (Trial Tr. I, at 138.) The confusion in the academy (social sciences, criminology, and even economics and law) points to the unreliability, and perhaps falsity, of some prominent statements in highprofile cases:
29 Specific deterrence, as opposed to general deterrence, is bound up in the science of recidivism. There is no uniform definition of recidivism, which makes accurate comparison and contrast of facially competing studies a virtual impossibility.
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There are potentially other false messages that are so deeply entrenched in sex offender legislation that it will be difficult to lessen their impact or excise the sentiments from the jurisprudence. First is the claim that sex offenders recidivate in larger numbers than other offenders. In Doe v. Poritz [662 A.2d 367 (N.J. 1995)], the New Jersey Supreme Court endorsed studies that reported recidivism rates of sex offenders at upwards of 40% to 52%. The United States Supreme Court applied the Poritz gloss in [Smith] to conclude that recidivism posed by sex offenders generally is frighteningly high. Yet, Bureau of Justice Statistics for roughly the same timeframe as Poritz do not support the conclusion that sex offenders recidivate more than non-sex offenders. Of the 9,691 male sex offenders released from prison in 15 States in 1994, 5.3% were rearrested for a new sex crime within 3 years of release. In fact, sex offenders were less likely than non-sex offenders to be rearrested for any offense–43 percent of sex offenders versus 68 percent of non-sex offenders. And in a separate study detailing 272,111 former inmates who were discharged in 1994, the lowest re-arrest rates were for those previously in prison for homicide or rape, while the highest re-offense rates were for those previously convicted of property crimes.
Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of Criminal Laws that
Have Swept the Country, 58 Buff. L. Rev. 1, 57–58 (2010) (internal citations and quotations
omitted).
In any event, Mr. McGuire did not meet his high burden required to establish that
ASORCNA promotes the traditional aims of punishment. A review of the specific arguments
of the parties confirms that conclusion.
Mr. McGuire argues that “[o]ne of ASORCNA’s key objectives is to deter crime”
while the “ASORCNA residency and other restrictions promote the traditional aim of
retribution.” (Doc. # 171, at 47.) In particular, based on the statute’s language, only
ASORCNA’s registration and notification requirements act as a deterrent. Thus, the fact that
“ASORCNA imposes additional residency, employment, and travel restrictions on registrants
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indiscriminately” has the sole function of “exact[ing] justice on the unpopular class [of sex offenders].” (Doc. # 171, at 49 (emphasis in original).) Because the additional restrictions are indiscriminate and “do nothing to affect future conduct or solve problems,” those restrictions are retributive. (Doc. # 171, at 49.) Moreover, Mr. McGuire argues that ASORCNA’s lack of a risk assessment, lack of a time limit, and inclusion of 115 felonies evidence a retributive purpose. (Doc. # 171, at 20, 49.) Further, Mr. McGuire argues that the relief provisions in ASORCNA promote retribution because “every provision under which a registrant may seek relief requires engagement of the prosecuting attorney in the jurisdiction where the registrant’s sex crime was adjudicated, and for which he became subject to the statute,” and because “ASORCNA mandates the state contact the victim of the registrant’s original crime” before granting relief, “despite the fact that ASORCNA prohibits registrants from any contact with his or her victim.” (Doc. # 171, at 49–50.) Finally, “[r]egistrants . . . are punished in ways they never were before [under ASORCNA]—even worse than parole,” because, for example, Mr. McGuire “is forbidden from living with his own nieces, a punishment not in place while he was on parole.” (Doc. # 256, at 46.)30
In response, the State argues that “the Legislature did not express a purpose of general deterrence as might motivate the passage of a criminal statute,” but instead “spoke only of a goal to ‘deter sex offenders from future crimes.’” (Doc. # 167, at 42 (emphasis in original) (quoting Ala. Code § 15-20A-2(1)).) Indeed, according to the State’s expert, “‘[c]ompared to the threat of long-term incarceration, it seems unlikely that the incremental pain threated by a
30 Mr. McGuire briefly asserts, but fails to develop, an argument that registration and the license-notification requirements are retributive. (Doc. # 171, at 20.)
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[sex-offender registration and notification] law . . . would weigh heavily in an individual’s decision to commit (or not commit) a sex crime,’” and thus “‘there is no theoretical reason to believe that [sex-offender registration and notification] laws have general deterrent effects.’” (Doc. # 263, at 20 (quoting Doc. # 166-21 at 29).) Further, the State argues that “the Court was correct to hold [in its opinion at the Motion-to-Dismiss stage] that ‘a deterrent purpose will not necessarily render a registration requirement punitive, and an incidental deterrent effect will not do so either.’” (Doc. # 167, at 42 (quoting Doc. # 112, at 17).) Thus, “to whatever extent ASORCNA promotes deterrence, that fact cannot supply the ‘clearest proof’ McGuire needs to prevail.” (Doc. # 167, at 42.)
Finally, the State contends that “McGuire would say that ASORCNA is retributive for the . . . reason that it regulates sex offenders as a single class, not based on the risk that they might individually pose.” (Doc. # 167, at 43.) To the State, this anticipated argument is the opposite of Smith, where the plaintiff “argued that Alaska’s law was retributive precisely because the length of the reporting requirement ‘appear[ed] to be measured by the extent of the wrongdoing, not by the extent of the risk posed.’” (Doc. # 167, at 43 (alteration in original) (quoting Smith, 538 U.S. at 102).) The State notes that the Smith Court “rejected this argument, concluding that ‘broad categories [of sex offender classification,] . . . and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and [were therefore] consistent with the regulatory objective.’” (Doc. # 167, at 43 (alterations in original) (quoting Smith, 538 U.S. at 102).) Thus, the State contends, “[a]rguments like this, of the ‘heads-I-win-tails-you-lose’ variety, just underscore the
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importance of deferring to the legislature’s stated purpose, and do not deserve to be taken seriously given their ease of manipulation.” (Doc. # 167, at 43.)
The court finds that, to the extent there is some deterrent purpose in the statute, that deterrent purpose is similar to “[a]ny number of governmental programs [that] might deter crime without imposing punishment.” Smith, 538 U.S. at 102. Further, the court finds that Mr. McGuire has failed in his burden to prove that the restriction, felony, and relief provisions serve a retributive purpose.
As to deterrence, the potential that the registration and notification scheme under ASORCNA might deter the general population arises from the theoretical argument that a potential offender would avoid committing a crime because he or she did not wish to be subjected to the regulatory requirements of ASORCNA. However, this is precisely the general deterrent effect of any governmental regulatory program. See id. It is not possible to distinguish between this theoretical probability and the probability of deterrence discussed in Smith. Thus, the court finds that any general deterrent purpose of the statute is unremarkable in a regulatory scheme.
As to retribution, Mr. McGuire did not prove that the restriction, felony, and relief provisions of ASORCNA clearly serve a retributive purpose. Using the parties’ definition of retribution, “‘[r]etribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing justice.’” Mikaloff, 2007 WL 2572268, at *11 (quoting State v. Cook, 700 N.E.2d 570, 583 (Ohio 1998)). “The absence of . . . a [scienter] requirement . . . is evidence that [restrictions] under [a] statute [are] not intended to be retributive.” Hendricks, 521 U.S. at 362. Both the Supreme Court and the Eleventh Circuit
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have analyzed the retributive purpose of a statute in terms of whether the “regulatory regime as a whole . . . was ‘reasonably related to the danger of recidivism’ and ‘consistent with the regulatory objective.’” W.B.H., 664 F.3d at 858 (quoting Smith, 538 U.S. at 102).
The court first finds that the restrictions and felony consequences placed on registrants by ASORCNA cannot be said to be “‘vengeance for its own sake.’” Mikaloff, 2007 WL 2572268, at *11 (quoting Cook, 700 N.E.2d at 583). ASORCNA seeks to regulate offenders’ interactions with society and reduce recidivism. Specifically, the Alabama Legislature enacted employment and residency restrictions to “further[ ] the primary governmental interest of protecting vulnerable populations, particularly children.” Ala. Code § 15-20A2(5). The felony provisions serve to ensure guidance with the restrictions so that the regulatory purpose will be achieved. Thus, the restrictions and felony provisions “‘seek to affect future conduct [and] solve [the] problem’” of protecting vulnerable populations. Mikaloff, 2007 WL 2572268, at *11 (quoting Cook, 700 N.E.2d at 583).31 Importantly, there is no “increase[ ] [in the restrictions based on] the severity of the offender’s prior conviction,” and, to the extent that ASORCNA “seeks to ‘revisit past crimes,’” “all sex-offender registration statutes do so in the same sense,” because “a conviction for a past crime is a predicate” for application of the regulatory regime. W.B.H., 664 F.3d at 858.
31 This case differs from Mikaloff because ASORCNA does not require “[a] feeble, aging paraplegic [to] leave his home [upon a government action for ouster].” 2007 WL 2572268, at *11. This “lack of any case-by-case determination” was the focus of the Mikaloff court’s retribution analysis. Id. By contrast, and to the extent this is a proper inquiry under this factor, ASORCNA does not force offenders to change residences because of subsequent property changes, and ASORCNA provides relief to terminally ill and permanently immobile persons. See Ala. Code §§ 15-20A-11(c), -23.
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The Legislature’s finding that employment and residency restrictions help achieve these regulatory objectives by limiting the potential for isolated contact between offenders and vulnerable populations is due deference, especially in view of Mr. McGuire’s heavy burden of proof. Further, the potential for Class C felonies encourages compliance. Thus, the restrictions and the felony provisions are consistent with the statute’s regulatory objective and “are reasonably related to the danger of recidivism.” Smith, 538 U.S. at 102.
The court similarly finds that Mr. McGuire did not carry his burden to prove that ASORCNA’s lifetime application and lack of any risk assessment are inconsistent with the statute’s regulatory objective. The State made categorical determinations of how to regulate offenders. Although the risk of recidivism might be very low for an aged offender like Mr. McGuire whose only offense is nearly 30 years old, the Circuit has observed that, “a lower rate of recidivism is not the same thing as no recidivism.” W.B.H., 664 F.3d at 860. Further, the categorical approach, which lacks a scienter requirement, suggests a non-retributive purpose. Hendricks, 521 U.S. at 362. In light of the consequences attributable to sex-offender recidivism, the State’s categorical approach has not been shown by the clearest proof to be unrelated to the danger of recidivism.
Finally, the court rejects Mr. McGuire’s argument that the statute’s relief provisions evidence a retributive purpose. Mr. McGuire’s argument attacks the relief provisions as being so strictly confined as to show that the State meant the restrictions to be retributive. First, the State made the choice to include relief provisions, thus including certain situations in which a registrant could be relieved of the restrictions. The State’s choice in this regard does not evidence a traditional aim of punishment; rather, the opposite is true: A State bent solely on
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punishment would be disinclined to allow for such relief. Second, any retributive purpose
associated with the strict limitations on relief “are reasonably related to the danger of
recidivism.” Smith, 538 U.S. at 102. Indeed, one would necessarily question the efficacy of
a regulatory regime that would make it easy for the regulated persons to escape the regulatory
requirements. Here, the State enacted a number of relief provisions for various reasons, but
the State also made those relief provisions narrow in order to retain the regulatory impact of
the overall scheme. Thus, the court rejects Mr. McGuire’s argument that the statute’s relief
provisions evidence a retributive purpose.32
In sum, Mr. McGuire failed to establish by the clearest proof that the restriction, felony
provisions, and relief provisions evidence a retributive purpose. Further, to the extent
ASORCNA has a deterrent purpose, that purpose is similar to the purpose of “[a]ny number
32 To the extent Mr. McGuire argues that ASORCNA is more retributive than the statute in Hendricks because ASORCNA only punishes those who are convicted rather than including both persons who were convicted and who were not convicted (as was the case in Hendricks), the court disagrees. Instead, the statute in Hendricks is susceptible to an argument that the law sought to exact punishment for past conduct. Specifically, the statute in Hendricks would allow the State to exact retribution from conduct it deemed offensive without demanding a criminal conviction; indeed, Hendricks employs this reasoning in requiring additional safeguards to withstand constitutional scrutiny. See 521 U.S. at 368–69 (“Where the State has ‘disavowed any punitive intent’; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent.” (emphasis added)). ASORCNA is less susceptible to such an attack because the regulatory regime is only triggered upon a conviction – after the State has already established the conduct as a violation and after exacting whatever sentence would therefore be attached – and is broadly applicable rather than focused on the actual nature of the past conduct.
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of governmental programs [that] might deter crime without imposing punishment.” Smith,
538 U.S. at 102. Therefore, this factor points to a finding that ASORCNA is nonpunitive.
e. Whether, in Their Necessary Operation, ASORCNA’s Provisions Have Rational Connections to Nonpunitive Purposes
Whether the challenged provisions of an act have rational connections to the asserted
nonpunitive purposes “is a ‘[m]ost significant’ factor in [a court’s] determination that the
statute’s effects are not punitive.” Smith, 538 U.S. at 102 (quoting United States v. Ursery,
518 U.S. 267, 290 (1996)). Importantly, “[a] statute is not deemed punitive simply because
it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id. at 103.
However, sufficient imprecision between the challenged provisions and the nonpunitive
purpose may ultimately “suggest that the Act’s nonpunitive purpose is a ‘sham or mere
pretext.’” Id. (quoting Hendricks, 521 U.S. at 371 (Kennedy, J., concurring)).33
Mr. McGuire argues that several of ASORCNA’s most prohibitive restrictions not only
lack a close fit to the nonpunitive aims expressed by Alabama’s Legislature, but, in actuality,
entirely fail to further the aim of protecting the public and children.34 Admittedly, Mr.
33 Mr. McGuire asserts that Defendants bear the burden of proving this factor. (Doc. # 256, at 14–15.) However, the language of the test appears to be an analytical feature, and a reading that puts the burden on Defendants would conflict with the heavy burden Mr. McGuire must overcome to show that, by the clearest proof, ASORCNA is so punitive in its purpose or effects as to override stated nonpunitive intent. Therefore, the proper inquiry is whether Mr. McGuire has shown the absence of a rational connection.
34 Mr. McGuire highlights the testimony of a law-enforcement officer to establish a tenuous connection between ASORCNA and its stated nonpunitive purpose. (See, e.g., Doc. # 256, at 51 (“Lieutenant Persky, for example, admitted confusion about a law that punishes registrants by preventing them from staying three nights at any home near a school when that same law allows registrants to be near the school during the day, when children are present.”).) The testimony, however, is minimally helpful at best. Law-enforcement officials’ responsibility is to enforce the law, not to interpret it or to pass judgment on its rationality.
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McGuire is able to point to some questionable aspects of ASORCNA. For example, the residency and employment restrictions do not prohibit registrants from spending virtually unlimited amounts of time day or night within the restricted zones. While a registrant would be barred from sleeping at a residence within 2,000 feet of a school, nothing in ASORCNA would make it a crime for the registrant to spend all of his or her waking, daytime hours at that same residence, purportedly while school children would be nearby. Moreover, ASORCNA does not differentiate between registrants who committed sexual offenses against children and those who committed offenses against adults. All registrants are restricted from working or living within 2,000 feet of schools and daycares regardless of whether they have ever been convicted of a crime against a child. And no one has attempted to rationalize why, in view of the public safety rationale, Mr. McGuire and married registrants like him may spend two consecutive nights, not to exceed nine a month, in a restricted residence with a spouse.
Further, the statute applies for life and does not include an individualized risk assessment. As a result, registrants who pose no discernable threat to public safety are subject to ASORCNA, notwithstanding evidence of post-conviction rehabilitation and subsequent years of non-offending. Mr. McGuire contends that such an extensive categorical approach harms public safety because it forces law enforcement to broadly distribute finite monitoring resources, leaving it unable to sufficiently focus on those who actually pose an ongoing risk. Lastly, Mr. McGuire takes issue with the dual registration scheme, arguing that such a duplicative process serves “no other purpose than embarrassment, humiliation, and shaming.” (Doc. # 256, at 37.)
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While Mr. McGuire highlights some very reasonable concerns, the court is unable to say that ASORCNA’s provisions do not have a rational connection to the statute’s nonpunitive purpose of increasing public safety. As an initial matter, the Supreme Court noted in Smith, that a state is capable of “conclud[ing] that a conviction for a sex offense provides evidence of substantial risk of recidivism.” 538 U.S. at 103.35 Further, the Court in Smith explained that “[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Id. (italics omitted). Accordingly, as was the case in Alaska, Alabama’s “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.” Id. (italics omitted).
As to the employment and residency restrictions, Mr. McGuire has not carried his burden of proving that they are not rationally related to the aim of public safety. The argument that it is illogical for a registrant to be able to wander through restricted zones during the day while children are present but not to be able to sleep overnight or engage in employment in those areas, has some traction, but not enough. First, despite ultimately finding Ohio’s sex offender residency restriction in violation of the Ex Post Facto Clause, the court in Mikaloff recognized that there was a rational purpose to the residency restriction because limiting
35 It is important to again reiterate the lack of clarity that now permeates the study of recidivism. Accordingly, the court follows precedent in deferring to state findings regarding recidivism, but does so very skeptically.
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where one spends his or her nights logically limits that individual’s access to the children of that area. 2007 WL 2572268, at *12 (“The Court concludes that to restrict where an individual sleeps at night, even while it does not restrict where he or she spends her days, has some rational relation to restricting access or opportunity to children in those areas.”).36 Second, the restrictions limit the potential for an offender to be alone in an area that could conceal criminal conduct. Living alone and working alone could rationally be considered by the Legislature as providing the potential for periods of unnoticed activity. Further, the mere possibility that a registrant might be able to exploit loopholes in the regulatory structure does not render the scheme illogical per se. Thus, the court rejects Mr. McGuire’s argument that the employment and residency restrictions are clearly irrational in relation to their stated nonpunitive purpose.
The court finds that, generally, an in-person registration requirement has a rational connection to the stated nonpunitive purpose as well. As highlighted in W.B.H., registering in-person forces the offender to contact and engage with law-enforcement officers on a regular basis. See W.B.H., 664 F.3d at 857 (“The in-person requirements help law enforcement track sex offenders and ensure that the information provided is accurate.”). It is rational to believe that requiring this recurring, in-person relationship with law enforcement would foster increased transparency and decrease the likelihood of recidivism. Additionally, the Legislature made a rational argument in favor of increasing law enforcement’s contact with
36 Mr. McGuire attempts to distinguish this finding in Mikaloff by arguing that the Mikaloff case only involved injunctive relief. Mr. McGuire’s distinction is unavailing; the connection in that case was determined to be rational, separate from any consideration of the threatened consequences for noncompliance. And this case also only involves potential injunctive relief.
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homeless registrants, noting that the shifting nature of those registrants’ residences could rationally be expected to increase the risk of concealed and spontaneous reoffending.
Further, the license-notification requirement provided for on the face of the statute is also rationally related to public safety aims. A notification immediately alerts lawenforcement officials to the registrant’s status without delay, again increasing transparency between registrants and law enforcement. That said, the Legislature did not specify how that provision would be implemented. In no event did the Legislature require the printing of “CRIMINAL SEX OFFENDER” in bold, red lettering across the face of the license. But because the Legislature specifically stated the intent of this provision is to notify law enforcement, the provision itself is not excessive.
The travel-permit requirement per se also has a rational connection to the statute’s nonpunitive purpose. First, the travel-permit requirement encourages personal contact with law enforcement, thus satisfying the same rational objective as the in-person registration requirement. See W.B.H., 664 F.3d at 857 (citing United States v. Powers, 562 F.3d 1342, 1344 (11th Cir. 2009), for the proposition that registration is rational because it allows law enforcement to track registrants who travel to different jurisdictions). Second, the travelpermit requirement is rational in that it provides for continuity of contact between jurisdictions, which in turn provides for effective monitoring. Third, the court rejects Mr. McGuire’s argument that, “if a registrant were intending to commit a crime in another county, ASORCNA’s travel permit would serve no barrier.” (Doc. # 256, at 31.) Punishing the failure of a registrant to obtain a travel permit utilizes the same method of ensuring compliance as the rest of the statutory regime, and, as was discussed previously, the possibility that a
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registrant may take advantage of loopholes does not render the scheme irrational. Finally, there is a rational purpose for the imposition of a three-day requirement to receive a travel permit. As Mr. McGuire acknowledges, the three-day window effectively reduces the possibility of engaging in spontaneous travel. By preventing spontaneous travel, the Legislature decreases opportunities for concerns such as absconding.
Finally, Mr. McGuire has failed to carry his substantial burden to prove that quarterly double-registration for in-town registrants is irrational. As has been stated, in-person registration increases contact with law enforcement. Indeed, this was the Legislature’s stated purpose for requiring in-person registration. Ala. Code § 15-20A-2(1) (“Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.”).37 Thus, quarterly duplicative registration per se has a rational connection to the statute’s nonpunitive purpose.
Ultimately, Mr. McGuire fails to prove that ASORCNA’s provisions do not have rational connections to the scheme’s stated nonpunitive purpose. This “significant” guidepost weighs in favor of finding that ASORCNA generally is nonpunitive. However, Mr. McGuire was able to draw out important inconsistencies between certain components and ASORCNA’s stated nonpunitive intent. So while this guidepost ultimately highlights
37 Only requiring city police registration in the statute is of course not an option. First, although unlikely, there could hypothetically be a county without municipal police departments. Second, city police generally have no jurisdiction outside the jurisdictional limits of the city and would have no presence in the county to monitor offenders living outside the city. A unified system, as a practical matter, would have to be under the control of the county sheriff, who has jurisdiction over the entire county, including municipalities.
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ASORCNA’s nonpunitiveness, those inconsistencies carry some weight, especially as the analysis moves into the fifth and final guidepost.
f. Whether, in Their Necessary Operation, ASORCNA’s Provisions are Excessive with Respect to the Provisions’ Nonpunitive Purposes
The final Martinez-Mendoza guidepost requires the court to consider whether ASORCNA’s provisions, in their necessary operation, are excessive with respect to their nonpunitive purposes. As a preliminary matter, ASORCNA’s individual provisions represent single building blocks stacked to form the statutory scheme under which Alabama’s sex offenders are regulated. Mr. McGuire is not merely subject to isolated provisions; rather, his life is controlled by each of ASORCNA’s components operating in unison. The Legislature passed ASORCNA as a comprehensive scheme, so it is logical to consider the effects of that scheme in sum. Accordingly, consideration of ASORCNA’s effects is not limited to the discrete effects of individual provisions as if they are operating in a vacuum. Both the Supreme Court in Smith and the Eleventh Circuit in W.B.H. considered the excessiveness factor in terms of the entire statutory scheme rather than in terms of each individual provision. See Smith, 538 U.S. at 104 (analyzing the excessiveness of universal registration and notification of sex offenders without individualized risk assessments); W.B.H., 664 F.3d at 859–60 (evaluating SORNA in a similar manner); see also id. at 859 (“The final [Smith] guidepost directs us to consider whether the regulatory scheme is excessive with respect to its non-punitive purpose.”) (emphasis added). And both Smith and W.B.H. were dealing with schemes with only a fraction of the features embodied in ASORCNA. Thus, the cumulative effects of ASORCNA’s provisions will be examined.
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“The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith, 538 U.S. at 105 (italics omitted). To be sure, the majority of ASORCNA’s regulations and restrictions are not novel creations, having been incorporated into various state sex-offender schemes across the country. And when challenged, these shared provisions have generally withstood excessiveness inquiries. For example, in-person registration has been held to increase contact between sex offenders and police officers and has been deemed reasonable for that purpose. See W.B.H., 664 F.3d at 857 (citing Powers, 562 F.3d at 1344). Similarly, registration fees have been upheld, when used to defray the costs associated with maintaining a sex-offender regulatory regime. See Mueller, 740 F.3d at 1135. Residency restrictions, employment restrictions, and communitynotification schemes have all been deemed individually to be reasonable measures for increasing public safety. See Smith, 538 U.S. at 99; Miller, 405 F.3d at 723. Finally, placing the sex-offender designation in red lettering on the front of the license is not clearly excessive, though it is subject to serious arguments that it is retributive. Because the lettering alerts law enforcement and the general public to the registrant’s status without delay or potential for error, it passes ex post facto muster. Individually, none of these measures is clearly excessive in light of states’ nonpunitive purposes in regulating sex offenders.
But ASORCNA does not stop there. Rather, it supplements in-person registration, registration fees, residency and employment restrictions, and community-notification measures with additional provisions creating a scheme that regulates sex offenders far beyond
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the scheme in any other state. For example, excluding legislation aimed at sexually violent predators, no other state has a scheme whereby sex offenders are retroactively regulated for life through residency, employment, and travel restrictions. In fact, only one other state – Tennessee – employs residency, employment, and out-of-county travel restrictions, and it tempers the effects of these provisions, providing for partial retroactivity and allowing offenders who have successfully complied with the act for ten years to petition for termination of participation in the registration program. T.C.A. § 40-39-207. No other state requires dual registration – or dual travel permits – for in-town sex offenders, instead allowing registrants to report to any single local law enforcement agency – whether municipal or county. See, e.g., Colo. Rev. Stat. § 16-22-102(4.5); 739 Ill. Comp. Stat. 150/1 § 2(d); Kan. Stat. Ann. § 22-4902(m). Only five other states – Arizona, Delaware, Hawaii, Idaho, and South Carolina – join Alabama in applying sex-offender regulations retroactively for the entirety of a registrant’s life, but not one of those five states imposes travel restrictions, and only one of the five imposes residency and employment restrictions. See Ariz. Rev. Stat. Ann. § 13-3821 et seq.; Del. Code Ann. § 4120 et seq.; Haw. Rev. Stat. § 846E-1 et seq.; Idaho Code Ann. § 18-8301 et seq.; S.C. Code. Ann. §23-3-400 et seq.
ASORCNA is the nation’s most comprehensive sex offender regulatory scheme; it is designed to enhance public safety, prevent recidivism, and to protect vulnerable populations. Such a regulatory scheme, by its nature, will have a greater effect in its sum than when each of the scheme’s individual components is examined in isolation, but that in and of itself does not make the scheme’s cumulative effects unreasonable. That is not to say, however, that the features that overlay the entire scheme – no risk assessment, lifetime application, retroactive
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application for all-time, felony enforcement by the gross, border-to-border (rather than parcelto-parcel), Ala. Code § 15-20A-11(g), residential and employment restrictions, and the chosen method of printing “SEX OFFENDER” in red lettering on the face of driver’s licenses – are entirely nonpunitive and non-retributive. These provisions are, especially when considered in toto, in excess of every other scheme operating across the country, and such a stark comparison highlights areas where ASORCNA’s effects have a very real potential to exceed their nonpunitive benefits.38 But that is not enough – Mr. McGuire bears the burden of showing by the clearest proof that ASORCNA’s provisions are excessive with respect to the Legislature’s stated nonpunitive purposes, and Mr. McGuire has failed to carry that heavy burden, with two important exceptions.
First, Mr. McGuire has shown that the provision requiring double, weekly registration for in-town homeless offenders – totaling up to 112 registrations in-person a year – is excessive. No credible reason was given in support of this requirement. The argument that such a provision increases contact with law enforcement begs the question and falls into the State’s misplaced view of unlimited effects being constitutional: If weekly double registration is good, then daily double registration would be sevenfold better? Considering the additional burdens of felony enforcement for violations, lifetime residential and employment restrictions, and lifetime travel restrictions (with yet more double-registration requirements), the weekly double-registration feature of the scheme for in-town homeless offenders is clearly excessive in relation to ASORCNA’s stated nonpunitive purposes. Requiring a homeless
38 If he is not determined to be “terminally ill or permanently immobile,” Ala. Code § 15-20A23(a), Mr. McGuire will continue to be subject to all these restrictions until he is 90 or 100 years old.
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individual to travel to two different law enforcement agencies to complete a substantially identical check-in process every week is so excessive in effect as to be punitive, especially in view of the combined weight of the other features on a homeless offender. And as established in Section C.II.c, infra, this requirement is a direct, affirmative disability or restraint.
Second, Mr. McGuire has shown that the provision requiring the completion of two identical travel permit applications prior to any three-day or more trip outside an in-town registrant’s county of residence is excessive. Again, no credible reason was given in support of this duplicative procedure. While the State could again point to increased communication with law enforcement, as was discussed above, this is an instance of highly diminished returns coupled with substantially increased burdens. Additionally, § 15-20A-15(e) already requires the sheriff in the registrant’s county of residence (not the municipal jurisdiction) to “immediately notify local law enforcement in the county or the jurisdiction to which the” registrant will be traveling, so it would be logical to conclude that the sheriff could also inform any applicable municipal law enforcement entity of the impending travel once a singular permit is completed. Ala. Code § 15-20A-15(e). When considering the double travel permit requirement in light of the other burdens borne by those subject to ASORCNA and the absence of any increase in benefit to ASORCNA’s state nonpunitive purpose, the requirement is excessive to the point of being punitive.39
As to all other of ASORCNA’s provisions, Mr. McGuire has not shown that the Legislature’s chosen regulatory means, individually or cumulatively, are clearly excessive in
39 The objection that a municipal jurisdiction should know of such travel is easily resolved by simple communication between the two jurisdictions.
62

relation to the statute’s nonpunitive purposes, and this factor does not point to a finding that ASORCNA as a whole is so punitive in purpose or effect as to negate the Legislature’s stated intent. This finding is entered with serious reservations as to some features (especially the red-lettered branding of the face of required identification), but is consistent with the court’s understanding of deference due to the judgment of the Alabama Legislature in regulating sex offenders in Alabama, and the State’s discretion in implementing the various provisions of the scheme.
g. Concluding the Mendoza-Martinez Analysis Based on the analysis of the five most pertinent Mendoza-Martinez factors, the court finds that Mr. McGuire has not shown by the clearest proof that ASORCNA’s scheme as a whole is so punitive either in purpose or effect as to negate the Legislature’s stated nonpunitive intent. Mr. McGuire has met this burden, however, with respect to two of ASORCNA’s individual requirements. Using the Mendoza-Martinez factors as guideposts, the court finds that Mr. McGuire has shown that requiring dual, in-person weekly registration for in-town homeless registrants and dual applications for travel permits for all in-town registrants are affirmative disabilities or restraints excessive of their stated nonpunitive intent. In sum, these two requirements are so punitive in their effect as to negate the Alabama Legislature’s stated nonpunitive intent by the clearest proof. Accordingly, those requirements violate the Ex Post Facto Clause of the United States Constitution, and Mr. McGuire is entitled to declaratory relief.
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VI. RELIEF Based on the foregoing, it is declared that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate lawenforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate lawenforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13). To clarify, the declaration’s scope of relief is limited to invalidation of the dual-nature of ASORCNA’s in-town homeless registration and travel permit application requirements. Defendants are capable of determining the appropriate situs for the remaining singular registration and travel permit application procedures. In light of these constitutional infirmities, attention turns to matters of relief. These other matters are: (1) whether the unconstitutional requirements of ASORCNA may be severed, allowing the remainder of ASORCNA to remain in force; (2) whether declaratory relief, without an accompanying injunction, is a sufficient remedy; and (3) what is the proper scope of relief in accordance with principles undergirded by the Ex Post Facto Clause? Severability is a matter of state law, and Alabama directs courts to “strive to uphold acts of the legislature.” State ex rel. Pryor ex rel. Jeffers v. Martin, 735 So. 2d 1156, 1158 (Ala. 1999) (citing City of Birmingham v. Smith, 507 So. 2d 1312, 1315 (Ala. 1987)). Because the Alabama Legislature expressed its intention that ASORCNA’s provisions be severable
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through the inclusion of a severability clause40 and because ASORCNA can be given effect absent the constitutionally violate requirements, the remainder of ASORCNA remains “intact and in force.” See Jefferson Cnty. Comm’n v. Edwards, 49 So. 3d 685, 693 (Ala. 2010) (quoting Smith, 507 So. 2d at 1315).
As to whether injunctive relief should accompany declaratory relief, there is generally little to no practical difference between the awarding of declaratory relief as opposed to injunctive relief. Wooley v. Maynard, 430 U.S. 705, 711–12 (1977). Accordingly, a court generally will “not enjoin the enforcement of a criminal statute even though unconstitutional.” Id. Here, the court is confident that state officials will abide by the judgment of this court declaring that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13).
Finally, the relief provided does not extend to sex offenders convicted after the passage of ASORCNA in 2011. While the State attempts to argue that ASORCNA is a mere reconfiguration or re-enactment of Alabama’s prior sex-offender regulatory scheme – the Alabama Community Notification Act (“ACNA”) – and that relief should be limited to those
40 The following clause was included in ASORCNA: “The Provisions of [ASORCNA] are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.” Ala. Acts No. 2011-640, § 50. Additionally, each statute codified as part of the 1975 Code of Alabama is subject to a severability clause. Ala. Code § 1-1-16.
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convicted prior to 1996, such an argument is disingenuous in that ASORCNA’s revisions to the ACNA were so extensive and far-reaching as to relegate the prior statute to mere irrelevance. For numerous reasons scattered throughout this opinion, ASORCNA is far more than a mere reconfiguration of the prior scheme.
VII. CONCLUSION For the foregoing reasons, it is ORDERED and DECLARED that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13). It is further ORDERED that the Attorney General’s oral Motion to Strike and Defendants’ oral Motions for Judgment as a Matter of Law are DENIED AS MOOT. DONE this 5th day of February, 2015.

/s/ W. Keith Watkins

.

CHIEF UNITED STATES DISTRICT JUDGE

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 Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 1 of 34
APPEAL,CLOSED,CSC_ClerkB
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:11−cv−01027−WKW−CSC

McGuire v. Marshall et al Assigned to: Honorable Judge William Keith Watkins Referred to: Honorable Judge Charles S. Coody Case in other court: USDC, 15−10958−A
15−10958−A
USDC, 15−10958−A
15−10958−A Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/02/2011 Date Terminated: 02/05/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Michael A. McGuire

represented by Joseph Mitchell McGuire McGuire & Associates LLC 31 Clayton Street Montgomery, AL 36104 334−517−1000 Fax: 334−517−1327 Email: jmcguire@mandabusinesslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan Equal Justice Under Law 601 Pennsylvania Avenue NW South Building −−− Suite 900 Washington, DC 20004 202−505−2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Peyton Faulk The Law Offices of E. Peyton Faulk, LLC 3214 Wilmington Rd Montgomery, AL 36105 334−669−4379 Email: pfaulk@alsp.org ATTORNEY TO BE NOTICED

V.
Defendant
City of Montgomery Police Department a municipal corporation of the City of Montgomery, State of Alabama TERMINATED: 01/17/2012

represented by Jason Cole Paulk Office of the Governor Alabama State Capitol 600 Dexter Avenue, Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: jason.paulk@governor.alabama.gov TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy Lott Bellinger City of Montgomery PO Box 1111

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 2 of 34

Montgomery, AL 36101−1111 334−625−2050 Fax: 334−625−2310 Email: sbellinger@montgomeryal.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kevin J. Murphy Chief of Police, in his official and individual capacities (individual capacity termed per [134] Order, official capacity termed per [279] Order) TERMINATED: 02/03/2015

represented by Jason Cole Paulk (See above for address) TERMINATED: 02/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
R. B. Gordon Detective, in her official and individual capacities TERMINATED: 01/17/2012

represented by Jason Cole Paulk (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
T. A. LaChance Detective, in her official and individual capacities TERMINATED: 01/17/2012

represented by Jason Cole Paulk (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
R. L. Duckett Detective, in her official and individual capacities TERMINATED: 01/17/2012

represented by Jason Cole Paulk (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
A. L. Savell Detective, in her official and individual capacities TERMINATED: 01/17/2012

represented by Jason Cole Paulk (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 3 of 34

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Montgomery County Sheriff's Department a muncipal corporation of Montgomery County of Alabama TERMINATED: 01/17/2012

represented by Thomas T. Gallion , III Haskell Slaughter Gallion & Walker, LLC 242 Winton Blount Loop Montgomery, AL 36117 334−265−8573 Fax: 334−264−7945 Email: tmp@hsg−law.com TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyrone Carlton Means Means Gillis Law LLC P.O. Box 5058 Montgomery, AL 36103−5058 334−270−1033 Fax: 334−260−9396 Email: tcmeans@meansgillislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Constance Caldwell Walker Haskell Slaughter Gallion & Walker LLC 242 Winton Blount Loop Montgomery, AL 36117 334−265−8573 Fax: 334−264−7945 Email: ccw@hsg−law.com TERMINATED: 01/17/2012 ATTORNEY TO BE NOTICED

Defendant
D. T. Marshall Sheriff of Montgomery County, Alabama Sheriff's Office, in his official and individual capacities ((individual capacity termed per [134] Order, official capacity termed per [279] Order) TERMINATED: 02/03/2015

represented by Thomas T. Gallion , III (See above for address) TERMINATED: 02/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Mcdowell Crook , Jr. Haskell Slaughter & Gallion, LLC 8 Commerce Street Suite 1200 Montgomery, AL 36104 334−265−8573 Fax: 334−264−7945 Email: cmc@hsg−law.com TERMINATED: 02/03/2015 ATTORNEY TO BE NOTICED

Constance Caldwell Walker (See above for address) TERMINATED: 02/03/2015 ATTORNEY TO BE NOTICED

Tyrone Carlton Means (See above for address) TERMINATED: 02/03/2015 ATTORNEY TO BE NOTICED

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Defendant Leigh Persky Lieutenant, Deputy Sheriff of the Montgomery County, Alabama Sheriff's Office, in his official and individual capacities TERMINATED: 01/17/2012
Defendant Hugh B. McCall Colonel, Director of the AL Dept of Public Safety, in his official and individual capacities ((individual capacity termed per [134] Order, official capacity termed per [269] Order) TERMINATED: 07/17/2014
Defendant Lindsey Clements Attorney of the Alabama Department of Public Safety, in her official and individual capacities TERMINATED: 01/17/2012
Defendant Luther Strange Attorney General for the State of Alabama, in his official and individual capacites (individual capacity termed per [134] Order) TERMINATED: 01/05/2018

represented by Thomas T. Gallion , III (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Constance Caldwell Walker (See above for address) TERMINATED: 01/17/2012 ATTORNEY TO BE NOTICED
represented by Joseph Haran Lowe , Jr. P.O. Box 286 Montevallo, AL 35115 205−283−4129 Email: LowLaw73@gmail.com TERMINATED: 07/17/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Timothy McCollum Alabama Department of Public Safety P.O. Box 1511 Montgomery, AL 36102−1511 334−242−4392 Fax: 334−242−0894 Email: tim.mccollum@alea.gov TERMINATED: 07/17/2014 ATTORNEY TO BE NOTICED
represented by Joseph Haran Lowe , Jr. (See above for address) TERMINATED: 01/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Timothy McCollum (See above for address) TERMINATED: 01/17/2012 ATTORNEY TO BE NOTICED
represented by Joshua K. Payne Spotswood Sansom & Sansbury LLC 505 20th Street North Suite 700 Birmingham, AL 35203 205−986−3627 Fax: 205−986−3639 Email: jpayne@spotswoodllc.com TERMINATED: 08/14/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Winfield James Sinclair Office of the Attorney General 501 Washington Avenue Montgomery, AL 36104 334−242−7300 Fax: 334−353−8400

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 5 of 34

Email: Winfield.Sinclair@AlabamaAG.gov TERMINATED: 01/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James William Davis State of Alabama Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: Jim.Davis@AlabamaAG.gov TERMINATED: 01/05/2018 ATTORNEY TO BE NOTICED

Laura Elizabeth Howell Office of the Alabama Attorney General P O Box 300152 Montgomery, AL 36130 334−353−1018 Fax: 334−353−8440 Email: laura.howell@alabamaag.gov TERMINATED: 01/05/2018 ATTORNEY TO BE NOTICED

Peter John Smyczek Alabama Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 334−353−9218 Fax: 334−242−4890 Email: psmyczek@ago.state.al.us TERMINATED: 11/07/2013

William G. Parker , Jr. Office of the Governor Alabama State Capitol 600 Dexter Avenue, Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: will.parker@governor.alabama.gov TERMINATED: 01/05/2018 ATTORNEY TO BE NOTICED

Defendant
Eric Holder United States Attorney General, in his official and individual capacities TERMINATED: 01/17/2012

Defendant
City of Montgomery a muncipal corporation of Montgomery County of Alabama

represented by Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Cole Paulk (See above for address) TERMINATED: 03/23/2015 ATTORNEY TO BE NOTICED

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Defendant
Alabama Department of Public Safety TERMINATED: 03/16/2012

represented by Joseph Haran Lowe , Jr. (See above for address) TERMINATED: 03/16/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Todd Strange Mayor of the City of Montgomery, sued in his official and individual capacities (individual capacity termed per [134] Order)

represented by Jason Cole Paulk (See above for address) TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Richardson Acting Director of the Alabama Department of Public Safetyand that, pursuant to Federal Rule of Civil Procedure 25(d)(1), future proceedings shall be in the name of the substituted party, in his official capacity TERMINATED: 01/05/2018

represented by Frank Timothy McCollum (See above for address) TERMINATED: 01/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Haran Lowe , Jr. (See above for address) TERMINATED: 01/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Derrick Cunningham in his official capacity as Montgomery County Sheriff

represented by Thomas T. Gallion , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Mcdowell Crook , Jr. (See above for address) ATTORNEY TO BE NOTICED

Constance Caldwell Walker (See above for address) TERMINATED: 01/17/2012 ATTORNEY TO BE NOTICED

Tyrone Carlton Means (See above for address) ATTORNEY TO BE NOTICED

Defendant
John E. Brown in his official capacity as Interim Chief of Police for the City of Montgomery TERMINATED: 02/04/2015

represented by Jason Cole Paulk (See above for address) TERMINATED: 02/04/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ernest Finley in his official capacity as Chief of Police

represented by Jason Cole Paulk (See above for address)

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for the City of Montgomery

TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Lott Bellinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles Ward in his official capacity as Director of the Alabama Department of Public Safety

represented by Frank Timothy McCollum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Haran Lowe , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steven T. Marshall in his official capacity as Attorney General of the State of Alabama

represented by James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Parker , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Winfield James Sinclair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/02/2011
12/02/2011 12/02/2011 12/05/2011

# Docket Text
1 COMPLAINT and Application for Injunctive Relief against All Defendants ( Filing fee $ 350.00 receipt number 4602020733.), filed by Michael A. McGuire. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(jg, ) (Additional attachment(s) added on 12/7/2011: # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18) (jg, ). (Additional attachment(s) added on 12/7/2011: # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21) (jg, ). (Entered: 12/07/2011)
(Remaining Claim in this Case is a Non−Jury Matter Pursuant to 122 Order) DEMAND for Trial by Jury by Michael A. McGuire. See 1 for this docket entry. (No pdf for this entry) (jg, ) Modified on 5/6/2013 (jg, ). (Entered: 12/07/2011)
2 Corporate/Conflict Disclosure Statement by Michael A. McGuire. (jg, ) (Entered: 12/07/2011)
3 Summons Issued: Summons and complaint returned to counsel for personal service as to D. T. Marshall, Leigh Persky, Hugh B. McCall, Lindsey Clements, Luther Strange, City of Montgomery Police Department, Kevin J. Murphy, R. B. Gordon, T. A. LaChance, R. L. Duckett, A. L. Savell, Montgomery County Sheriff's Department. (jg,

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 8 of 34

12/05/2011
12/07/2011 12/07/2011 12/09/2011 12/09/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/13/2011 12/13/2011 12/14/2011
12/14/2011

) (Entered: 12/07/2011)
4 SUMMONS Returned Executed by Michael A. McGuire. City of Montgomery Police Department served on 12/5/2011, answer due 12/27/2011; Lindsey Clements served on 12/5/2011, answer due 12/27/2011; R. L. Duckett served on 12/5/2011, answer due 12/27/2011; R. B. Gordon served on 12/5/2011, answer due 12/27/2011; T. A. LaChance served on 12/5/2011, answer due 12/27/2011; D. T. Marshall served on 12/5/2011, answer due 12/27/2011; Hugh B. McCall served on 12/5/2011, answer due 12/27/2011; Montgomery County Sheriff's Department served on 12/5/2011, answer due 12/27/2011; Kevin J. Murphy served on 12/5/2011, answer due 12/27/2011; Leigh Persky served on 12/5/2011, answer due 12/27/2011; A. L. Savell served on 12/5/2011, answer due 12/27/2011; Luther Strange served on 12/5/2011, answer due 12/27/2011. (jg, ) (Entered: 12/07/2011)
NOTICE of Assignment to Magistrate Judge mailed to counsel for Michael A. McGuire. (jg, ) (Entered: 12/07/2011)
5 Summons Issued: Summons and complaint sent by CMRRR as to Eric Holder Attorney General. (jg, ) (Entered: 12/07/2011)
6 MOTION for Temporary Restraining Order with attached Exhibits 1−3 by Michael A. McGuire. (McGuire, Joseph) Modified on 12/12/2011 to clarify that exhibits were filed within motion (jg, ). (Additional attachment(s) added on 12/12/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/09/2011)
7 Case reassigned to Chief Judge William Keith Watkins and Honorable Judge Charles S. Coody. Honorable Judge Charles S. Coody no longer assigned to the case as presiding judge. (djy, ) (Entered: 12/09/2011)
8 Summons Issued: Summons and complaint sent by CMRRR as to George L. Beck, Jr. US Attorney's Office. (jg, ) (Entered: 12/12/2011)
9 NOTICE of Appearance by Winfield James Sinclair on behalf of Luther Strange (Sinclair, Winfield) (Entered: 12/12/2011)
10 Corporate/Conflict Disclosure Statement by Luther Strange. (Sinclair, Winfield) (Entered: 12/12/2011)
11 Evidentiary Submission filed by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Sinclair, Winfield) (Entered: 12/12/2011)
12 BRIEF/MEMORANDUM in Opposition re 6 MOTION for Temporary Restraining Order filed by Luther Strange. (Sinclair, Winfield) (Entered: 12/12/2011)
13 Return Receipt Card of summons and complaint signed by "no signature and no date" for Eric Holder, Attorney General. (jg, ) (Entered: 12/12/2011)
***Attorney Peter John Smyczek for Luther Strange added pursuant to 9 notice of appearance (NO PDF Document attached to this notice). (djy, ) (Entered: 12/14/2011)
14 RESPONSE in Opposition re 12 BRIEF/MEMORANDUM in Opposition by Michael A. McGuire. (McGuire, Joseph) (Additional attachment(s) added on 12/13/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/13/2011)
15 ORDER that the Motion for Temporary Restraining Order 6 is DENIED as further set out in order. Signed by Chief Judge William Keith Watkins on 12/13/2011. (jg, ) (Entered: 12/13/2011)
16 AMENDMENT TO COMPLAINT against All Defendants, filed by Michael A. McGuire. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)(McGuire, Joseph) (Entered: 12/14/2011)
17 NOTICE of Appearance by Thomas T. Gallion, III on behalf of D. T. Marshall, Montgomery County Sheriff's Department, Leigh Persky (Gallion, Thomas)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 9 of 34

12/14/2011 12/14/2011 12/14/2011 12/14/2011 12/14/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/22/2011 12/22/2011 12/23/2011
12/23/2011 12/23/2011 12/27/2011

(Additional attachment(s) added on 12/15/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/14/2011)
18 Corporate/Conflict Disclosure Statement by Montgomery County Sheriff's Department. (Gallion, Thomas) (Additional attachment(s) added on 12/15/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/14/2011)
19 Corporate/Conflict Disclosure Statement by D. T. Marshall. (Gallion, Thomas) (Additional attachment(s) added on 12/15/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/14/2011)
20 Corporate/Conflict Disclosure Statement by Leigh Persky. (Gallion, Thomas) (Additional attachment(s) added on 12/15/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/14/2011)
21 Return receipt card showing service of summons and complaint for George L. Beck, Jr. US Attorney by Vanity V. Martin on 12/12/2011, answer due on 2/10/2012. (jg, ) Modified on 12/15/2011 to add answer deadline (jg, ). (Entered: 12/14/2011)
***Attorney Constance Caldwell Walker for D. T. Marshall, Montgomery County Sheriff's Department and Leigh Persky added pursuant to 17 notice of appearance. (No pdf for this docket entry) (jg, ) (Entered: 12/15/2011)
22 NOTICE of Appearance by Jason Cole Paulk on behalf of City of Montgomery Police Department, R. L. Duckett, R. B. Gordon, T. A. LaChance, Kevin J. Murphy, A. L. Savell (Paulk, Jason) (Entered: 12/21/2011)
23 Corporate/Conflict Disclosure Statement by R. L. Duckett. (Paulk, Jason) (Entered: 12/21/2011)
24 Corporate/Conflict Disclosure Statement by R. B. Gordon. (Paulk, Jason) (Entered: 12/21/2011)
25 Corporate/Conflict Disclosure Statement by T. A. LaChance. (Paulk, Jason) (Entered: 12/21/2011)
26 Corporate/Conflict Disclosure Statement by Kevin J. Murphy. (Paulk, Jason) (Entered: 12/21/2011)
27 Corporate/Conflict Disclosure Statement by A. L. Savell. (Paulk, Jason) (Entered: 12/21/2011)
28 Corporate/Conflict Disclosure Statement by City of Montgomery Police Department. (Paulk, Jason) (Entered: 12/21/2011)
29 MOTION to Dismiss 16 Amended Complaint by Luther Strange. (Sinclair, Winfield) Modified on 12/22/2011 to clarify docket text (jg, ). (Entered: 12/22/2011)
30 BRIEF/MEMORANDUM in Support re 29 Motion to Dismiss Amended Complaint filed by Luther Strange. (Sinclair, Winfield) Modified on 12/23/2011 to add link (br, ). (Entered: 12/22/2011)
31 BRIEFING ORDER setting the 29 MOTION to Dismiss for submission, without oral argument, on 1/20/2012; directing plaintiff to file a response and brief on or before 1/13/2012; permitting reply on or before 1/20/2012; setting forth the briefing schedule for all future dispositive motions. Signed by Chief Judge William Keith Watkins on 12/23/2011. (br, ) (Entered: 12/23/2011)
32 MOTION for Preliminary Injunction by Michael A. McGuire. (McGuire, Joseph) (Main Document 32 replaced on 12/27/2011 to reflect a correct certificate of service) (jg, ). (Entered: 12/23/2011)
33 BRIEF/MEMORANDUM in Support re 32 MOTION for Preliminary Injunction filed by Michael A. McGuire. (McGuire, Joseph) (Main Document 33 replaced on 12/27/2011 to reflect a correct certificate of service) (jg, ). (Entered: 12/23/2011)
34 NOTICE of Correction re 32 MOTION for Preliminary Injunction, 33 BRIEF/MEMORANDUM in Support: Notice of Correction is being filed this date to advise that the referenced documents were filed on 12/23/2011 and did not have a

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 10 of 34

12/27/2011 12/27/2011 12/27/2011 12/27/2011 12/27/2011 12/27/2011 12/27/2011 12/27/2011
12/27/2011 12/29/2011
12/30/2011 01/09/2012 01/10/2012

correct certificate of service attached. The corrected pdfs are attached to this notice. (Attachments: # 1 Correct Motion for Preliminary Injunction, # 2 Correct Brief in Support of Motion)(jg, ) (Entered: 12/27/2011)
35 MOTION to Dismiss 16 Amended Complaint by D. T. Marshall, Montgomery County Sheriff's Department, Leigh Persky. (Attachments: # 1 Exhibit Exhibit A and B)(Gallion, Thomas) Modified on 12/28/2011 to add link to amended complaint (jg, ). (Entered: 12/27/2011)
36 NOTICE of Appearance by Joseph Haran Lowe, Jr on behalf of Lindsey Clements, Hugh B. McCall (Lowe, Joseph) (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
37 Corporate/Conflict Disclosure Statement by Lindsey Clements. (Lowe, Joseph) (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
38 Corporate/Conflict Disclosure Statement by Hugh B. McCall. (Lowe, Joseph) (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
39 MOTION to Dismiss 16 amended complaint by Lindsey Clements. (Lowe, Joseph) Modified on 12/28/2011 to clarify docket text (jg, ). (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
40 MOTION to Dismiss 16 amended complaint by Hugh B. McCall. (Lowe, Joseph) Modified on 12/28/2011 to clarify docket text (jg, ). (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
41 BRIEF/MEMORANDUM in Support re 40 motion to dismiss filed by Lindsey Clements, Hugh B. McCall. (Lowe, Joseph) Modified on 12/28/2011 to add link to motion to dismiss (jg, ). (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re 16 Amended Complaint by City of Montgomery Police Department, R. L. Duckett, R. B. Gordon, T. A. LaChance, Kevin J. Murphy, A. L. Savell. (Paulk, Jason) Modified on 12/28/2011 to add link to amended complaint (jg, ). (Additional attachment(s) added on 12/28/2011: # 1 Correct Certificate of Service) (jg, ). (Entered: 12/27/2011)
***Attorney Frank Timothy McCollum for Lindsey Clements and Hugh B. McCall added pursuant to 36 notice of appearance. (No pdf for this docket entry) (jg, ) (Entered: 12/28/2011)
43 ORDER: Upon consideration of Plaintiff's Motion for Preliminary Injunction 32 , it is ORDERED that all Defendants who have made appearances in this action file a response, which shall include a brief, on or before January 17, 2012. Plaintiff may file a reply brief on or before January 24, 2012 as further set out in order; Oral argument on all pending motions shall be held at 8:30 a.m. on January 26, 2012, in Courtroom 2−E, Frank Johnson Federal Courthouse, Montgomery, Alabama as further set out in order. Signed by Chief Judge William Keith Watkins on 12/29/2011. (jg, ) (Entered: 12/29/2011)
44 Amended BRIEF/MEMORANDUM in Support re 29 MOTION to Dismiss Amended Complaint (Doc. 16) filed by Luther Strange. (Smyczek, Peter) Modified on 1/3/2012 to clarify the docket text (wcl, ). (Additional attachment(s) added on 1/3/2012: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 12/30/2011)
45 NOTICE of Appearance by Elizabeth Peyton Faulk on behalf of All Plaintiffs (Faulk, Elizabeth) (Main Document 45 replaced on 1/10/2012 to reflect the correct date and certificate of service) (jg, ). (Entered: 01/09/2012)
46 NOTICE of Correction re 45 Notice of Appearance: Notice of Correction is being filed this date to advise that the referenced document was filed on 1/9/2012 and did not have a correct certificate of service attached or correct date. The corrected pdf is attached to this notice. (Attachments: # 1 Corrected Notice of Appearance)(jg, ) (Entered: 01/10/2012)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 11 of 34

01/12/2012 01/16/2012 01/17/2012
01/17/2012
01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012 01/17/2012

47 NOTICE of Appearance by Joshua K. Payne on behalf of Luther Strange (Payne, Joshua) (Entered: 01/12/2012)
48 STIPULATION of Dismissal Voluntary Stipulation of Dismissal Without Prejudice by Michael A. McGuire. (Faulk, Elizabeth) (Entered: 01/16/2012)
49 ORDER: Based upon that stipulation, Plaintiff's claims against (1) the City of Montgomery Police Department, (2) R. B. Gordon, (3) T. A. LaChance, (4) R. L. Duckett, (5) A. L. Savell, (6) the Montgomery County Sheriff's Department, (7) Leigh Persky, (8) Lindsey Clements, and (9) Eric Holder have been dismissed by operation of Rule 41(a)(1),2 on the terms set out in the notice; that the motion to dismiss 39 , filed by Defendant Lindsey Clements, is DENIED as moot. It is further ORDERED that the motions to dismiss 35 , 42 , filed by Defendants City of Montgomery Police Department, Leigh Persky, R. L. Duckett, R. B. Gordon, T. A. LaChance, and A. L. Savell, are DENIED as moot. These motions to dismiss remain pending as to Defendant D. T. Marshall 35 and Defendant Kevin Murphy 42 . Signed by Chief Judge William Keith Watkins on 1/17/2012. (jg, ) Modified on 1/17/2012 to clarify docket text (jg, ). (Entered: 01/17/2012)
50 Second MOTION to Amend/Correct 1 Complaint,, 16 Amendment to Complaint, Second Motion to Amend Complaint with Proposed Second Amended Complaint by Michael A. McGuire. (Attachments: # 1 Exhibit Proposed Second Amended Complaint)(Faulk, Elizabeth) (Additional attachment(s) added on 1/18/2012: # 2 Correct Certificate of Service) (jg, ). (Entered: 01/17/2012)
51 Evidentiary Submission in Response to Plaintiff's 32 Motion for Injunctive Relief filed by Kevin J. Murphy. (Attachments: # 1 Affidavit Affidavit of R.L. Duckett with Certified Copies Attached)(Paulk, Jason) Modified on 1/18/2012 to add link to motion (jg, ). (Entered: 01/17/2012)
52 BRIEF/MEMORANDUM in Opposition to Plaintiff's 32 Motion for a Preliminary Injunction filed by Luther Strange. (Smyczek, Peter) Modified on 1/18/2012 to add link to motion (jg, ). (Entered: 01/17/2012)
53 BRIEF/MEMORANDUM in Opposition re 32 MOTION for Preliminary Injunction filed by D. T. Marshall. (Gallion, Thomas) (Entered: 01/17/2012)
54 RESPONSE to Motion re 32 MOTION for Preliminary Injunction filed by Hugh B. McCall. (Lowe, Joseph) (Entered: 01/17/2012)
55 BRIEF/MEMORANDUM in Support re 32 MOTION for Preliminary Injunction, 33 BRIEF/MEMORANDUM in Support filed by Michael A. McGuire. (McGuire, Joseph) (Additional attachment(s) added on 1/18/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/17/2012)
56 RESPONSE to Motion re 32 MOTION for Preliminary Injunction filed by Kevin J. Murphy. (Paulk, Jason) (Entered: 01/17/2012)
57 BRIEF/MEMORANDUM in Support re 35 MOTION to Dismiss Amended Complaint filed by D. T. Marshall. (Gallion, Thomas) (Entered: 01/17/2012)
58 RESPONSE to Motion re 40 MOTION to Dismiss Response to McCall's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Additional attachment(s) added on 1/18/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/17/2012)
59 RESPONSE to Motion re 29 MOTION to Dismiss Amended Complaint (Doc. 16) Response to Attorney General Strange's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Additional attachment(s) added on 1/18/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/17/2012)
60 RESPONSE to Motion re 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Response to Murphy's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Additional attachment(s) added on 1/18/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/17/2012)
MOTION to Adopt 52 Defendant Strange's Brief in Opposition to Plaintiff's 32 Motion for a Preliminary Injunction. by Kevin J. Murphy. See 56 response for this docket entry. (No pdf for this entry) (jg, ) (Entered: 01/18/2012)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 12 of 34

01/18/2012 01/19/2012 01/20/2012 01/20/2012
01/23/2012 01/23/2012 01/24/2012 01/24/2012 01/25/2012 01/26/2012 01/26/2012
01/30/2012 01/30/2012

61 RESPONSE to Motion re 35 MOTION to Dismiss Amended Complaint Response to Sheriff Marshall's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Additional attachment(s) added on 1/19/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/18/2012)
62 MOTION to Strike 55 Supplemental Brief in Support of Motion for Preliminary Injunction by Luther Strange. (Payne, Joshua) Modified on 1/19/2012 to clarify docket text (jg, ). (Entered: 01/19/2012)
63 RESPONSE to Motion re 62 MOTION to Strike Supplemental Brief in Support of Motion for Preliminary Injunction (Doc. 55) filed by Michael A. McGuire. (McGuire, Joseph) (Entered: 01/20/2012)
64 ORDER granting Plaintiff's 50 Second Motion to Amend Compaint; further ORDERED that the caption of the Second Amended Complaint is sua sponte AMENDED to reflect the proper lead defendant in this case, the City of Montgomery; Plaintiff shall electronically file an exact duplicate of the proposed Second Amended Complaint that is attached to the motion, with the exception of changing the caption to reflect the proper lead defendant; The parties are DIRECTED to use the City of Montgomery as the lead defendant for all future submissions to the court, and the Clerk of the Court is DIRECTED to change the caption accordingly. Signed by Chief Judge William Keith Watkins on 1/20/12. (scn, ) (Entered: 01/20/2012)
65 ORDER: In view of the January 20, 2012 Order 64 , granting Plaintiff's motion to file a Second Amended Complaint 64 , the January 26, 2012 hearing will strictly be an on the record status conference. There will be no substantive discussions or arguments regarding pending motions. Signed by Chief Judge William Keith Watkins on 1/23/2012. (jg, ) (Entered: 01/23/2012)
66 AMENDED COMPLAINT Second Amended Complaint against All Defendants, filed by Michael A. McGuire.(Faulk, Elizabeth) (Entered: 01/23/2012)
67 Summons Issued; Summons and amended complaint sent by CMRRR as to City of Montgomery, Alabama Department of Public Safety and Todd Strange. (jg, ) (Entered: 01/24/2012)
68 REPLY to 52 Defendant Strange's Brief in Opposition re 32 MOTION for Preliminary Injunction filed by Michael A. McGuire. (McGuire, Joseph) Modified on 1/25/2012 to add link to brief in opposition (jg, ). (Entered: 01/24/2012)
69 MOTION to Strike 68 Reply Brief in Support of Motion for Preliminary Injunction by Luther Strange. (Payne, Joshua) Modified on 1/26/2012 to make live link to reply brief (jg, ). (Entered: 01/25/2012)
70 Minute Entry for STATUS CONFERENCE held before Chief Judge William Keith Watkins on 1/26/2012 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ajr, ) (Entered: 01/26/2012)
71 AMENDED BRIEFING ORDER: that Plaintiff shall have fourteen days to consider whether he wants to amend his Second Amended Complaint and is GRANTED leave to amend his Second Amended Complaint on or before February 9, 2012; that Defendants file responsive pleadings or motions to the relevant complaint on or before March 1, 2012. Plaintiff may file any reply briefs on or before March 15, 2012 as further set out in order; The following pending motions are DENIED as moot: Docs. 29 , 32 , 35 , 40 , 42 , 56 , 62 and 69 . Signed by Chief Judge William Keith Watkins on 1/26/2012. (jg, ) Modified on 1/30/2012 to make links live (jg, ). (Entered: 01/26/2012)
72 Return Receipt Card showing service of summons and amended complaint signed by "name is illegible" for Alabama Department of Public Safety served on 1/26/2012, answer due 2/16/2012. (jg, ) (Entered: 01/30/2012)
73 Return Receipt Card showing service of summons and amended complaint signed by "name is illegible" for City of Montgomery served on 1/26/2012, answer due 2/16/2012; Todd Strange served on 1/26/2012, answer due 2/16/2012. (jg, ) (Entered: 01/30/2012)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 13 of 34

02/09/2012
02/09/2012 02/15/2012 02/27/2012
02/29/2012
02/29/2012 03/01/2012 03/01/2012 03/01/2012
03/01/2012 03/01/2012 03/01/2012 03/01/2012 03/02/2012
03/05/2012 03/05/2012 03/13/2012

74 COMPLAINT PLAINTIFF'S THIRD AMENDED COMPLAINT AND MOTION FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT against All Defendants, filed by Michael A. McGuire. (Attachments: # 1 Affidavit Plaintiff's Verification)(McGuire, Joseph) (Additional attachment(s) added on 2/10/2012: # 2 Correct Certificate of Service) (jg, ). (Entered: 02/09/2012)
MOTION for Injunctive Relief and Declaratory Judgment by Michael A. McGuire. See 74 third amended complaint for this docket entry. (No pdf for this docket entry) (jg, ) (Entered: 02/10/2012)
75 MOTION to Dismiss by Alabama Department of Public Safety. (Lowe, Joseph) (Entered: 02/15/2012)
76 Evidentiary Submission filed by Luther Strange. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Payne, Joshua) (Entered: 02/27/2012)
77 Evidentiary Submission filed by City of Montgomery, Kevin J. Murphy, Todd Strange. (Attachments: # 1 Affidavit Affidavit of Det. R.L. Duckett)(Paulk, Jason) (Additional attachment(s) added on 3/1/2012: # 2 Correct Certificate of Service) (jg, ). (Entered: 02/29/2012)
***Attorney Jason Cole Paulk for City of Montgomery added pursuant to 77 evidentiary submission. (No pdf for this docket entry) (jg, ) (Entered: 03/01/2012)
78 MOTION to Dismiss 74 the Third Amended Complaint by Luther Strange. (Smyczek, Peter) Modified on 3/1/2012 to clarify docket text (jg, ). (Entered: 03/01/2012)
79 BRIEF/MEMORANDUM in Support re 78 MOTION to Dismiss the Third Amended Complaint (Doc. 74), 74 Complaint, filed by Luther Strange. (Smyczek, Peter) (Entered: 03/01/2012)
80 MOTION to Dismiss 74 Third Amended Complaint by Hugh B. McCall. (Lowe, Joseph) Modified on 3/1/2012 to add link to docket entry (jg, ). (Additional attachment(s) added on 3/5/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/01/2012)
81 BRIEF/MEMORANDUM in Support re 80 MOTION to Dismiss Third Amended Complaint filed by Hugh B. McCall. (Lowe, Joseph) (Additional attachment(s) added on 3/5/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/01/2012)
82 MOTION for Extension of Time to File Answer re 74 Complaint, by D. T. Marshall. (Gallion, Thomas) (Additional attachment(s) added on 3/1/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/01/2012)
83 MOTION TO DISMISS Plaintiff's 74 Third Amended Complaint FOR FAILURE TO STATE A CLAIM by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) [Modified on 3/2/2012 to create link to Doc. 74 .−dmn] (Entered: 03/01/2012)
84 BRIEF/MEMORANDUM in Support re 83 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) (Entered: 03/01/2012)
85 ORDER granting 82 Motion for Extension of Time to Answer and that Defendant Marshall shall file an answer or otherwise respond to Plaintiff's Third Amended Complaint on or before 3/6/2012. Answer due from D. T. Marshall on 3/6/2012. Signed by Chief Judge William Keith Watkins on 3/2/2012. (dmn, ) (Entered: 03/02/2012)
86 MOTION to Dismiss 74 Third Amended Complaint by D. T. Marshall. (Gallion, Thomas) Modified on 3/6/2012 to add link to docket entry (jg, ). (Entered: 03/05/2012)
87 BRIEF/MEMORANDUM in Support re 86 MOTION to Dismiss Third Amended Complaint filed by D. T. Marshall. (Gallion, Thomas) (Entered: 03/05/2012)
88 STIPULATION of Dismissal Voluntary Stipulation of Dismissal of the Alabama Department of Public Safety by Michael A. McGuire . (Faulk, Elizabeth) (Main Document 88 replaced on 3/14/2012 to reflect the correct style and to correct the filing

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 14 of 34

03/13/2012 03/14/2012
03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/15/2012 03/16/2012 03/19/2012 03/19/2012 03/19/2012 03/26/2012 03/28/2012

party) (jg, ). (Entered: 03/13/2012)
MOTION for a court order of dismissal, as construed by the Court in its 98 Order, by Michael A. McGuire. (No PDF document attached to this entry; see 88 STIPULATION.) (scn, ) (Entered: 03/16/2012)
89 NOTICE of Correction re 88 Voluntary Stipulation of Dismissal: Notice of Correction is being filed this date to advise that the referenced document was filed on 3/13/2012 and did not reflect the correct style of case. The corrected pdf is attached to this notice. (Attachments: # 1 Correct Voluntary Stipulation of Dismissal)(jg, ) (Entered: 03/14/2012)
90 MOTION for More Definite Statement Plaintiff's Motion for a More Definite Statement from McCall in his Motion to Dismiss by Michael A. McGuire. (Faulk, Elizabeth) (Entered: 03/15/2012)
91 Corporate/Conflict Disclosure Statement by City of Montgomery. (Paulk, Jason) (Additional attachment(s) added on 3/15/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/15/2012)
92 Corporate/Conflict Disclosure Statement by Todd Strange. (Paulk, Jason) (Additional attachment(s) added on 3/15/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/15/2012)
93 Second MOTION for More Definite Statement from the City of Montgomery, Mayor Strange, and Chief Murphy, by Michael A. McGuire. (Faulk, Elizabeth) (Entered: 03/15/2012)
94 RESPONSE to Motion re 86 MOTION to Dismiss Third Amended Complaint Plaintiff's Response to Marshall's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Entered: 03/15/2012)
95 RESPONSE to Motion re 80 MOTION to Dismiss 74 Third Amended Complaint, filed by Michael A. McGuire. (Faulk, Elizabeth) Modified on 3/16/2012 to remove relationship to Plaintiff's 90 Motion for a More Definite Statement (scn, ). (Entered: 03/15/2012)
96 RESPONSE to Motion re 83 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, filed by Michael A. McGuire. (Faulk, Elizabeth) Modified on 3/16/2012 to remove relationship to Plaintiff's 93 Motion for a More Definite Statement (scn, ). (Entered: 03/15/2012)
97 RESPONSE to Motion re 78 MOTION to Dismiss the Third Amended Complaint (Doc. 74) Response to Attorney General Strange's Motion to Dismiss filed by Michael A. McGuire. (Faulk, Elizabeth) (Entered: 03/15/2012)
98 ORDER directing that, upon consideration of the 88 motion, it is ORDERED that the motion is GRANTED and that all claims against Defendant Alabama Department of Public Safety are DISMISSED without prejudice. Signed by Chief Judge William Keith Watkins on 3/16/12. (scn, ) (Entered: 03/16/2012)
99 MOTION for Preliminary Injunction Motion for Preliminary Injunction by Michael A. McGuire. (McGuire, Joseph) (Additional attachment(s) added on 3/20/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 03/19/2012)
100 Evidentiary Submission filed by Michael A. McGuire. (Attachments: # 1 Exhibit 3 page Colorado Conviction Report)(McGuire, Joseph) (Entered: 03/19/2012)
101 BRIEF/MEMORANDUM in Support re 99 MOTION for Preliminary Injunction Motion for Preliminary Injunction filed by Michael A. McGuire. (Attachments: # 1 Exhibit Verification Page)(McGuire, Joseph) (Additional attachment(s) added on 3/20/2012: # 2 Correct Certificate of Service) (jg, ). (Entered: 03/19/2012)
102 MOTION for Leave to File Reply Brief by Luther Strange. (Attachments: # 1 Reply Brief)(Smyczek, Peter) (Entered: 03/26/2012)
103 ORDER that the 102 Motion for Leave to File Reply Brief is GRANTED and that Defendants may file reply briefs in support of their motions to dismiss on or before April 6, 2012 as further set out in order. Signed by Chief Judge William Keith Watkins

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 15 of 34

04/05/2012 04/05/2012 04/06/2012 04/06/2012 08/13/2012 08/14/2012 08/14/2012 09/07/2012 03/04/2013 03/29/2013
03/29/2013 04/08/2013 04/08/2013 04/23/2013 04/23/2013 04/25/2013 04/26/2013

on 3/28/2012. (jg, ) (Entered: 03/28/2012)
104 REPLY BRIEF in Support re 78 MOTION to Dismiss the Third Amended Complaint (Doc. 74) filed by Luther Strange. (Smyczek, Peter) Modified on 4/5/2012 to correct the docket text to reflect as a Reply Brief (wcl, ). (Entered: 04/05/2012)
105 REPLY to Response to Motion re 83 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) (Entered: 04/05/2012)
106 REPLY BRIEF re 94 Response to Motion Response to Marshall's Motion to Dismiss filed by D. T. Marshall. (Gallion, Thomas) (Additional attachment(s) added on 4/9/2012: # 1 Correct Certificate of Service) (jg, ). (Entered: 04/06/2012)
107 REPLY BRIEF re 95 Response to Motion filed by Hugh B. McCall. (McCollum, Frank) (Entered: 04/06/2012)
108 MOTION to Withdraw as Attorney by Luther Strange. (Payne, Joshua) (Entered: 08/13/2012)
109 ORDER that the 108 Motion to Withdraw as Counsel by Joshua K. Payne is GRANTED. Signed by Chief Judge William Keith Watkins on 8/14/2012. (jg, ) (Entered: 08/14/2012)
*** Attorney Joshua K. Payne terminated pursuant to 109 order. (No pdf for this docket entry) (jg, ) (Entered: 08/14/2012)
110 ORDER that ADPS's Motion to Dismiss 75 is DENIED as moot; that Plaintiff's 74 Motion for Declaratory Judgment is DENIED as unnecessary. Signed by Chief Judge William Keith Watkins on 9/7/2012. (jg, ) (Entered: 09/07/2012)
111 ORDER that Plaintiff's Motions for a More Definite Statement 90 , 93 are DENIED. Signed by Chief Judge William Keith Watkins on 3/4/2013. (jg, ) (Entered: 03/04/2013)
112 MEMORANDUM OPINION AND ORDER that Defendants' Motions to Dismiss 78 , 80 , 83 , 86 are GRANTED in part and DENIED in part. Specifically, the Motions to Dismiss are GRANTED as Counts IIII and VXII of Plaintiff's Amended Complaint 74 , and these claims are DISMISSED with prejudice. The Motions to Dismiss are DENIED as to Count IV. In sum, only Plaintiff's claim that the retroactive application of Alabama's CNA and ASORCNA violate his rights under the Ex Post Facto Clause remains. Signed by Chief Judge William Keith Watkins on 3/29/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, ) (Entered: 03/29/2013)
113 ORDER that Plaintiff's Motion for a Preliminary Injunction 99 is DENIED. Signed by Chief Judge William Keith Watkins on 3/29/2013. (jg, ) (Entered: 03/29/2013)
114 RULE 26(f) ORDER that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than April 29, 2013. Signed by Chief Judge William Keith Watkins on 4/8/2013. (jg, ) (Entered: 04/08/2013)
115 GENERAL BRIEFING ORDER. Signed by Chief Judge William Keith Watkins on 4/8/2013. (jg, ) (Entered: 04/08/2013)
116 NOTICE of Appearance by William G. Parker, Jr on behalf of Luther Strange (Parker, William) (Entered: 04/23/2013)
117 NOTICE of Appearance by Laura Elizabeth Howell on behalf of Luther Strange (Howell, Laura) (Entered: 04/23/2013)
118 Joint MOTION to Stay by Luther Strange, City of Montgomery, D.T. Marshall, Hugh B. McCall, Michael A. McGuire, Kevin J. Murphy, Todd Strange. (Parker, William) Modified on 4/26/2013 to add filers (jg, ). (Entered: 04/25/2013)
119 MOTION to Alter, Amend, or Vacate Judgment or, in the Alternative, for Reconsideration pursuant to Fed. R. Civ. P. Rule 59(e) by Michael A. McGuire. (McGuire, Joseph) Modified on 4/29/2013 to clarify docket text (jg, ). (Entered: 04/26/2013)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 16 of 34

04/29/2013
05/02/2013 05/06/2013 05/06/2013
05/23/2013 05/28/2013 05/31/2013 05/31/2013 06/05/2013 08/19/2013 08/19/2013 08/20/2013 08/20/2013
08/27/2013 09/09/2013 09/23/2013
09/24/2013

120 ORDER that Plaintiff's alternative motion for leave to amend 119 is DENIED; The parties' joint motion to stay 118 is DENIED as further set out; that the deadline set out in the court's order of April 8, 2013 114 , is extended from April 29, 2013, to May 6, 2013. Signed by Chief Judge William Keith Watkins on 4/29/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, ) (Entered: 04/29/2013)
121 REPORT of Rule 26(f) Planning Meeting. (Parker, William) (Entered: 05/02/2013)
122 ORDER: The Clerk of the Court is DIRECTED to reflect in the Court's electronic record that the remaining claim in this case is a non−jury matter. Signed by Chief Judge William Keith Watkins on 5/6/2013. (jg, ) (Entered: 05/06/2013)
123 UNIFORM SCHEDULING ORDER: Final Pretrial Conference set for 12/12/2013 in Montgomery, AL before Chief Judge William Keith Watkins. Non−Jury Trial set for 1/13/2014 trial term in Montgomery, AL before Chief Judge William Keith Watkins. Amended Pleadings due by 7/19/2013. Discovery due by 9/30/2013. Motions due by 8/28/2013. Mediation Notice due by 9/23/2013. Signed by Chief Judge William Keith Watkins on 5/6/2013. (jg, ) (Entered: 05/06/2013)
124 ANSWER to 74 Complaint, Third Amended by Luther Strange.(Parker, William) (Entered: 05/23/2013)
125 ANSWER to 74 Complaint, by City of Montgomery, Kevin J. Murphy, Todd Strange.(Paulk, Jason) (Additional attachment(s) added on 5/29/2013: # 1 Correct Certificate of Service) (jg, ). (Entered: 05/28/2013)
126 ANSWER to 74 Complaint, by Hugh B. McCall.(Lowe, Joseph) (Main Document 126 replaced on 6/5/2013) (scn, ). (Entered: 05/31/2013)
127 Defendant Marshall's ANSWER to 74 Complaint, Third Amended Complaint by D. T. Marshall.(Gallion, Thomas) (Entered: 05/31/2013)
128 NOTICE of PDF Correction re 126 Answer to Complaint to reflect correction in PDF document as to case number and filer of Answer. (Attachments: # 1 Corrected main document of docket entry 126 )(scn, ) (Entered: 06/05/2013)
129 MOTION to Modify Unopposed and Time−Sensitive by Luther Strange. (Attachments: # 1 Exhibit Exhibit A)(Parker, William) (Entered: 08/19/2013)
130 MOTION to Clarify by Luther Strange. (Attachments: # 1 Exhibit Exhibit A)(Parker, William) (Entered: 08/19/2013)
131 ORDER: re 130 MOTION to Clarify, that Plaintiff file a response on or before August 27, 2013. Signed by Chief Judge William Keith Watkins on 8/20/2013. (jg, ) (Entered: 08/20/2013)
132 ORDER: the motion to alter the Uniform Scheduling Order 129 is GRANTED; The pretrial conference is continued from December 12, 2013, to March 6, 2014; The trial is continued from January 13, 2014, to the term of court commencing on March 31, 2014, in Montgomery, Alabama; Discovery due by 10/31/2013. Mediation Notice due by 12/6/2013. Motions due by 11/15/2013 as further set out. Signed by Chief Judge William Keith Watkins on 8/20/2013. (jg, ) (Entered: 08/20/2013)
133 RESPONSE to Motion re 130 MOTION to Clarify filed by Michael A. McGuire. (McGuire, Joseph) (Entered: 08/27/2013)
134 ORDER: Attorney General Strange's motion 130 is GRANTED to the extent set out herein. Signed by Chief Judge William Keith Watkins on 9/9/2013. (jg, ) (Entered: 09/09/2013)
135 MOTION to Modify Amended Scheduling Order 132 by Luther Strange. (Attachments: # 1 Exhibit A − McCleary Declaration, # 2 Exhibit B − Proposed Order, # 3 Exhibit C − McGuire Disclosure 1, # 4 Exhibit D − McGuire Disclosure)(Parker, William) Modified on 9/24/2013 to make link live (jg, ). (Entered: 09/23/2013)
136 RESPONSE to Motion re 135 MOTION to Modify Amended Scheduling Order 132 filed by Michael A. McGuire. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5)(McGuire, Joseph) (Attachment 1 replaced, Attachment 2,Attachment 3, Attachment 4 replaced,

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 17 of 34

09/25/2013 09/27/2013
09/30/2013 10/10/2013 10/21/2013 11/05/2013 11/07/2013 11/07/2013 11/14/2013 11/15/2013 11/25/2013 12/09/2013
12/16/2013
12/16/2013 12/23/2013
12/23/2013

Attachment 5 replaced on 9/24/2013 to correct the order the exhibits should have been filed) (jg, ). (Entered: 09/24/2013)
137 RESPONSE in Support re 135 MOTION to Modify Amended Scheduling Order 132 filed by Luther Strange. (Parker, William) Modified on 9/25/2013 to make link live (jg, ). (Entered: 09/25/2013)
138 MOTION to Strike 135 MOTION to Modify (Exhibit 1) by Michael A. McGuire. (McGuire, Joseph) Modified on 9/27/2013 to clarify docket text (jg, ). (Additional attachment(s) added on 9/27/2013: # 1 Correct Certificate of Service) (jg, ). (Entered: 09/27/2013)
139 RESPONSE in Opposition re 138 MOTION to Strike 135 MOTION to Modify Amended Scheduling Order (Doc. 132) 135−1 filed by Luther Strange. (Parker, William) (Entered: 09/30/2013)
140 ORDER: Motion to Modify the Amended Scheduling Order 135 is GRANTED as further set out. Signed by Chief Judge William Keith Watkins on 10/10/2013. (jg, ) (Entered: 10/10/2013)
141 ORDER that Plaintiff's motion to strike 138 is DENIED as moot. Signed by Chief Judge William Keith Watkins on 10/21/2013. (jg, ) (Entered: 10/21/2013)
142 MOTION to Withdraw as Attorney by Luther Strange. (Smyczek, Peter) (Entered: 11/05/2013)
143 ORDER granting 142 Motion to Withdraw as counsel for Defendants by Peter Smycze. Signed by Chief Judge William Keith Watkins on 11/7/2013. (jg, ) (Entered: 11/07/2013)
*** Attorney Peter John Smyczek terminated pursuant to 143 order. (No pdf for this docket entry) (jg, ) (Entered: 11/07/2013)
144 MOTION for Protective Order by Kevin J. Murphy. (Attachments: # 1 Exhibit DX1−DX5)(Paulk, Jason) (Entered: 11/14/2013)
145 ORDER TO SHOW CAUSE as to why 144 Motion for Protective Order should not be granted; Show Cause Response due by 11/25/2013. Signed by Honorable Judge Charles S. Coody on 11/15/13. (djy, ) (Entered: 11/15/2013)
146 RESPONSE to Motion re 144 MOTION for Protective Order and Order to Show Cause (doc. 145) filed by Michael A. McGuire. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) (Entered: 11/25/2013)
147 ORDER Setting Hearing on 144 MOTION for Protective Order: Motion Hearing set for 12/16/2013 10:00 AM in by telephone before Honorable Judge Charles S. Coody. Defendant Kevin J. Murphy shall set up the telephone conference. Signed by Honorable Judge Charles S. Coody on 12/9/2013. (jg, ) (Entered: 12/09/2013)
148 Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Motion Hearing by Telephone held on 12/16/2013 re 144 MOTION for Protective Order filed by Kevin J. Murphy (PDF available for court use only). (Recording Time FTR: 10:01 − 10:07.) (ws, ) (Entered: 12/16/2013)
149 ORDER denying 144 Motion for Protective Order, except to the extent that the deposition of Kevin J. Murphy shall be limited to two hours in duration. Signed by Honorable Judge Charles S. Coody on 12/16/2013. (wcl, ) (Entered: 12/16/2013)
150 MOTION for Sanctions by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Howell, Laura) (Entered: 12/23/2013)
151 MOTION for Sanctions by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Howell, Laura) (Main Document 151 replaced on 12/27/2013 to correct the erroneous PDF document previously attached by efiler to correct typographical error) (qc/djy, ). (Entered:

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 18 of 34

12/23/2013 12/23/2013 12/24/2013 12/24/2013 12/27/2013 12/27/2013 12/30/2013 12/30/2013 12/30/2013 12/30/2013
12/30/2013
12/30/2013 12/31/2013 01/02/2014

12/23/2013)
MOTION to Compel by Luther Strange. See 150 for this docket entry. (No pdf for this entry) (jg, ) (Entered: 12/24/2013)
MOTION to Compel by Luther Strange. See 151 for this docket entry. (No pdf for this entry) (jg, ) (Entered: 12/24/2013)
152 ORDER the motion to compel and motion for sanctions 150 are DENIED as further set out; Counsel for the parties are DIRECTED to hold not later than 20 days from the date of this order, the required good faith conference as further set out. Signed by Honorable Judge Charles S. Coody on 12/24/2013. (jg, ) (Entered: 12/24/2013)
153 ORDER the motion to compel and motion for sanctions 151 are DENIED as further set out; Counsel for the parties are DIRECTED to hold not later than 20 days from the date of this order, the required good faith conference as further set out. Signed by Honorable Judge Charles S. Coody on 12/24/2013. (jg, ) (Entered: 12/24/2013)
154 NOTICE of Correction re 151 MOTION for Sanctions to replace the erroneous PDF document previously attached by E−filer to correct typographical error (Attachments: # 1 corrected main document to Docket Entry 151 )(djy, ) (Entered: 12/27/2013)
155 MOTION for Extension of Time to Complete Discovery Out of Time Deposition of Expert Witness by Michael A. McGuire. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(McGuire, Joseph) (Main Document 155 replaced on 12/30/2013 to reflect the correct style of case) (jg, ). (Entered: 12/27/2013)
156 NOTICE of Correction re 155 MOTION for Extension of Time to Complete Discovery Out of Time Deposition of Expert Witness: The referenced document was filed on 12/27/2013 and did not have the correct style of case listed. (Attachments: # 1 Corrected Motion)(jg, ) (Entered: 12/30/2013)
157 ORDER re 155 MOTION for Extension of Time to Complete Discovery set for Oral Argument 1/9/2014 10:00 AM in Courtroom 4B in Montgomery, Alabama before Honorable Judge Charles S. Coody. Signed by Honorable Judge Charles S. Coody on 12/30/2013. (jg, ) (Entered: 12/30/2013)
158 MOTION for Leave to File Fourth Amended Complaint by Michael A. McGuire. (Attachments: # 1 Exhibit Proposed Fourth Amended Complaint)(McGuire, Joseph) (Entered: 12/30/2013)
159 Second MOTION for Sanctions by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit AB)(Howell, Laura) (Entered: 12/30/2013)
160 Second MOTION for Sanctions by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Howell, Laura) (Entered: 12/30/2013)
MOTION to Compel the Deposition of Dr. Robert Prentky or in the Alternative to Bar Plaintiff's Reliance Upon his Expert Testimony by Luther Strange. See 159 for this docket entry. (No pdf for this docket entry) (jg, ) (Entered: 01/02/2014)
161 RESPONSE to Motion re 155 MOTION for Extension of Time to Complete Discovery Out of Time Deposition of Expert Witness filed by Luther Strange. (Sinclair, Winfield) (Entered: 12/31/2013)
162 RESPONSE in Opposition re 158 MOTION for Leave to File Fourth Amended Complaint filed by Luther Strange. (Attachments: # 1 Exhibit Deposition Notices for Nov. 20−21, 2013)(Parker, William) (Entered: 01/02/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 19 of 34

01/02/2014 01/07/2014 01/07/2014 01/07/2014
01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/07/2014 01/09/2014 01/14/2014
01/14/2014

163 RESPONSE in Opposition re 155 MOTION for Extension of Time to Complete Discovery Out of Time Deposition of Expert Witness filed by Hugh B. McCall. (Lowe, Joseph) (Entered: 01/02/2014)
164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment by Luther Strange. (Parker, William) (Entered: 01/07/2014)
165 MOTION for Judgment on the Pleadings Or In The Alternative for Summary Judgment by D. T. Marshall (Gallion, Thomas) Modified on 1/8/2014 to correct filer (jg, ). (Additional attachment(s) added on 1/8/2014: # 1 Correct Certificate of Service) (jg, ). (Entered: 01/07/2014)
166 Evidentiary Submission re 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment filed by Luther Strange. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Parker, William) (Entered: 01/07/2014)
167 BRIEF/MEMORANDUM in Support re 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment filed by Luther Strange. (Parker, William) (Entered: 01/07/2014)
168 First MOTION for Judgment on the Pleadings by Hugh B. McCall. (Lowe, Joseph) (Entered: 01/07/2014)
169 First MOTION for Judgment on the Pleadings by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) (Entered: 01/07/2014)
170 MOTION for Summary Judgment by Michael A. McGuire. (McGuire, Joseph) (Entered: 01/07/2014)
171 BRIEF/MEMORANDUM in Support re 170 MOTION for Summary Judgment filed by Michael A. McGuire. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(McGuire, Joseph) (Entered: 01/07/2014)
172 Evidentiary Submission re 171 BRIEF/MEMORANDUM in Support filed by Michael A. McGuire. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6)(McGuire, Joseph) (Entered: 01/07/2014)
173 Evidentiary Submission re 171 BRIEF/MEMORANDUM in Support filed by Michael A. McGuire. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12)(McGuire, Joseph) (Entered: 01/07/2014)
174 Evidentiary Submission re 171 BRIEF/MEMORANDUM in Support filed by Michael A. McGuire. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8)(McGuire, Joseph) (Entered: 01/07/2014)
175 Evidentiary Submission re 171 BRIEF/MEMORANDUM in Support filed by Michael A. McGuire. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10)(McGuire, Joseph) (Entered: 01/07/2014)
178 Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Oral Argument held on 1/9/2014 (PDF available for court use only). (Recording Time FTR: 10:02 − 10:44.) (ws, ) (Entered: 01/14/2014)
176 ORDER that the motion for extension of time to complete discovery 155 be and is hereby GRANTED to the following extent: that any party may take the depositions of Dr. Robert Prentky and Dr. Jill Levenson no later than February 14, 2014; that, on or before February 21, 2014, the parties may supplement their summary judgment motions and responses as further set out. Signed by Honorable Judge Charles S. Coody on 1/14/2014. (jg, ) (Entered: 01/14/2014)
177 ORDER that the motion to compel 159 filed by Defendant Luther Strange be and is hereby DENIED as moot; that the motion for sanctions 160 filed by Defendant Luther Strange be and is hereby DENIED as moot. Signed by Honorable Judge Charles S. Coody on 1/14/2014. (jg, ) (Entered: 01/14/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 20 of 34

01/22/2014 01/23/2014 01/28/2014
01/30/2014 01/30/2014
01/30/2014
01/30/2014
01/30/2014 01/31/2014 02/06/2014
02/13/2014 02/13/2014 02/14/2014 02/18/2014

179 MOTION for Reconsideration re 176 Order on Motion for Extension of Time to Complete Discovery, regarding Dr. Jill Levenson by Luther Strange. (Parker, William) (Entered: 01/22/2014)
180 ORDER that the motion for reconsideration 179 be and is hereby DENIED as further set out. Signed by Honorable Judge Charles S. Coody on 1/23/2014. (jg, ) (Entered: 01/23/2014)
181 RESPONSE in Opposition re 165 MOTION for Judgment on the Pleadings Or In The Alternative for Summary Judgment, 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment, 168 First MOTION for Judgment on the Pleadings , 169 First MOTION for Judgment on the Pleadings filed by Michael A. McGuire. (Attachments: # 1 Exhibit 12, # 2 Exhibit 13)(McGuire, Joseph) (Entered: 01/28/2014)
182 BRIEF/MEMORANDUM in Opposition re 170 MOTION for Summary Judgment , 181 Response in Opposition to Motion, (Consolidated Opposition & Reply) filed by Luther Strange. (Parker, William) (Entered: 01/30/2014)
183 BRIEF/MEMORANDUM in Opposition re 182 Brief in Opposition 170 to Plaintiff's Motion for Summary Judgment and Reply In Support of His Motion for Judgment on the Pleadings or For Summary Judgment 164 filed by D. T. Marshall. (Gallion, Thomas) Modified on 1/31/2014 to clarify docket text to reflect that counsel is adopting doc 182 brief (jg, ). (Entered: 01/30/2014)
184 BRIEF/MEMORANDUM in Opposition to re 182 Brief in Opposition 170 Plaintiff's Motion for Summary Judgment and Reply In Support of Motion for Summary Judgment 164 filed by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) Modified on 1/31/2014 to clarify docket text to reflect that counsel adopts doc. 182 brief (jg, ). (Entered: 01/30/2014)
185 BRIEF/MEMORANDUM in Opposition re 182 Brief in Opposition 170 Motion for Summary Judgment & Reply in Support of his Motion for Judgment on Pleadings {168] filed by Hugh B. McCall. (Lowe, Joseph) Modified on 1/31/2014 to clarify docket text to reflect that counsel adopts doc. 182 brief in opposition (jg, ). (Entered: 01/30/2014)
REPLY BRIEF in Support re 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment filed by Luther Strange. See 182 for this docket entry. (No pdf for this entry) (jg, ) (Entered: 01/31/2014)
186 ORDER the motion to amend the complaint 158 is DENIED. Signed by Chief Judge William Keith Watkins on 1/31/2014. (jg, ) (Entered: 01/31/2014)
187 REPLY to Response to Motion re 165 MOTION for Judgment on the Pleadings Or In The Alternative for Summary Judgment, 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment, 168 First MOTION for Judgment on the Pleadings , 169 First MOTION for Judgment on the Pleadings filed by Michael A. McGuire. (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16)(McGuire, Joseph) (Entered: 02/06/2014)
188 Response to Order (Joint Statement Regarding Necessity of a Trial) by Luther Strange. (Parker, William) (Entered: 02/13/2014)
Joint MOTION for a "Heads Up" by Luther Strange. (No pdf attached to this entry − See doc 188 for pdf) (wcl, ) (Entered: 02/14/2014)
189 ORDER denying 188 Joint Motion for a "Heads Up", as further set out in order. Signed by Chief Judge William Keith Watkins on 2/14/2014. (wcl, ) (Entered: 02/14/2014)
190 ORDER SETTING PRETRIAL HEARING: Final Pretrial Conference set for 3/6/2014, is RESCHEDULED for 3/7/2014, at 09:00 AM in Courtroom 2B before Chief Judge William Keith Watkins; Proposed Pretrial Order due by 2/28/2014; Non−Jury Trial set for 3/31/2014, in Montgomery, AL before Chief Judge William Keith Watkins. Signed by Chief Judge William Keith Watkins on 2/18/2014. (furn: Calendar, ar)(wcl, ) (Entered: 02/18/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 21 of 34

02/18/2014 02/20/2014 02/20/2014 02/20/2014
02/20/2014 02/20/2014 02/20/2014 02/20/2014 02/20/2014 02/20/2014 02/21/2014
02/21/2014 02/25/2014
02/26/2014 03/04/2014
03/05/2014 03/05/2014 03/06/2014 03/07/2014

191 Notice of Mediation and Settlement Conference by Michael A. McGuire (McGuire, Joseph) (Entered: 02/18/2014)
192 Exhibit List by Luther Strange.. (Howell, Laura) (Entered: 02/20/2014)
193 Deposition Designations by Luther Strange.. (Howell, Laura) (Entered: 02/20/2014)
194 NOTICE by City of Montgomery, Kevin J. Murphy, Todd Strange to Adopt Luther Strange's 192 Exhibit List, 193 Deposition Designations and Witness List (Paulk, Jason) Modified on 2/21/2014 to add the links to docs 192 & 193 (wcl, ). (Entered: 02/20/2014)
195 NOTICE by Hugh B. McCall re 193 Deposition Designations, 192 Exhibit List and Witness List (McCollum, Frank) (Entered: 02/20/2014)
196 Exhibit List by D. T. Marshall.. (Gallion, Thomas) (Entered: 02/20/2014)
197 Witness List by D. T. Marshall. (Gallion, Thomas) (Entered: 02/20/2014)
198 Deposition Designations by D. T. Marshall.. (Gallion, Thomas) (Entered: 02/20/2014)
199 Deposition Designations by Michael A. McGuire.. (McGuire, Joseph) (Entered: 02/20/2014)
200 Exhibit List by Michael A. McGuire.. (McGuire, Joseph) (Entered: 02/20/2014)
201 BRIEF/MEMORANDUM in Support (Statement Regarding Out−Of−Time Depositions of Plf's Experts Dr. Prentky and Dr. Levenson) re 164 MOTION for Judgment on the Pleadings or, in the Alternative, for Summary Judgment filed by Luther Strange. (Attachments: # 1 Exhibit A)(Howell, Laura) Modified on 2/24/2014 to clarify the docket text (wcl, ). (Entered: 02/21/2014)
202 BRIEF/MEMORANDUM in Support re 170 MOTION for Summary Judgment filed by Michael A. McGuire. (Attachments: # 1 Exhibit 18)(McGuire, Joseph) (Entered: 02/21/2014)
203 MOTION for Leave to File Amended Exhibit List re 200 Exhibit List by Michael A. McGuire. (Attachments: # 1 Supplement Amended Exhibit List)(McGuire, Joseph) Modified on 2/25/2014 to add the link to the 200 Exhibit List (wcl, ). (Entered: 02/25/2014)
204 TEXT ORDER granting 203 Motion for Leave to File Amended Exhibit List on or before 2/28/2014. Signed by Chief Judge William Keith Watkins on 2/26/2014. (No pdf attached to this entry) (wcl, ) (Entered: 02/26/2014)
205 ORDER directing that at the pretrial conference, the parties shall be prepared to argue (1) whether the requests are proper in relation to "facts, [or] the application of law to facts" (subsection (a)(1)(A)), and, if so, (2) the legal effect of these particular admissions on the case, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/4/14. (djy, ) (Entered: 03/04/2014)
206 First MOTION to Withdraw Admissions by Michael A. McGuire. (Attachments: # 1 Supplement Memo in Support of Motion to Withdraw Admissions)(McGuire, Joseph) (Entered: 03/05/2014)
MEMORANDUM in Support of 206 First MOTION to Withdraw Admissions filed by Michael A. McGuire. (No pdf attached to this entry − See doc 206 for pdf) (wcl, ) (Entered: 03/06/2014)
207 RESPONSE to Motion re 206 First MOTION to Withdraw Admissions filed by Luther Strange. (Parker, William) (Entered: 03/06/2014)
208 ORDER: Based upon the statements made in open court on 3/7/2014, during the pretrial conference hearing, it is ORDERED that the parties have until on or before 12:00 p.m. on 3/14/2014, to modify their deposition designations, witness lists, and exhibit lists. It is further ORDERED that Defendants have until on or before 12:00 p.m. on 3/10/2014 to object to Plaintiff's amended pretrial contentions. Signed by Chief Judge William Keith Watkins on 3/7/2014. (dmn, ) (Entered: 03/07/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 22 of 34

03/07/2014 03/07/2014 03/10/2014 03/10/2014 03/12/2014 03/12/2014
03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014
03/14/2014
03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014
03/14/2014 03/17/2014

209 NOTICE of Appearance by James William Davis on behalf of Luther Strange (Davis, James) (Entered: 03/07/2014)
210 Minute Entry for proceedings held before Chief Judge William Keith Watkins: Pretrial Conference held on 3/7/2014 (PDF available for court use only). (Court Reporter Tricia Starkie.) (ajr, ) (Entered: 03/10/2014)
211 NOTICE of Appearance by Charles Mcdowell Crook, Jr on behalf of D. T. Marshall (Crook, Charles) (Entered: 03/10/2014)
212 NOTICE by Luther Strange Response to Plaintiff's Amended Pretrial Contentions (Parker, William) (Entered: 03/10/2014)
213 NOTICE of Appearance by Charles Mcdowell Crook, Jr on behalf of D. T. Marshall (Crook, Charles) (Entered: 03/12/2014)
214 ORDER ON PRETRIAL HEARING: Non−Jury Trial, which is to last up to three days, is set for 3/31/2014, at 10:00 AM in Montgomery, Alabama before Chief Judge William Keith Watkins, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/12/2014. (furn: calendar, ar) (wcl, ) (Entered: 03/12/2014)
215 Amended Deposition Designations by Michael A. McGuire.. (McGuire, Joseph) Modified on 3/17/2014 to clarify the docket text (wcl, ). (Entered: 03/14/2014)
216 Exhibit List by Michael A. McGuire.. (McGuire, Joseph) (Entered: 03/14/2014)
217 Amended Deposition Designations by Luther Strange. (Howell, Laura) Modified on 3/17/2014 to clarify the docket text (wcl, ). (Entered: 03/14/2014)
218 Exhibit List by Luther Strange.. (Howell, Laura) (Entered: 03/14/2014)
219 Amended Witness List by Luther Strange. (Howell, Laura) Modified on 3/17/2014 to clarify the docket text (wcl, ). (Additional attachment(s) added on 3/17/2014 to redact personal information contained in original filing pursuant to the E−government rules: # 1 Main Document (Redacted)) (wcl, ). Modified on 3/17/2014 (wcl, ). (Entered: 03/14/2014)
220 Amended Witness List by Michael A. McGuire. (McGuire, Joseph) Modified on 3/17/2014 to clarify the docket text (wcl, ). (Additional attachment(s) added on 3/17/2014 to redact personal information contained in original filing pursuant to the E−government rules: # 1 Main Document (Redacted)) (wcl, ). Modified on 3/17/2014 (wcl, ). (Entered: 03/14/2014)
221 Deposition Designations Motion to Adopt Defendant Strange's Deposition Designations (Doc 217) and Witness List (Doc 220) by D. T. Marshall.. (Gallion, Thomas) Modified on 3/17/2014 (wcl, ). (Entered: 03/14/2014)
222 Deposition Designations Motion to Adopt Deposition Designations, Witness list and Exhibit list of Defendant Strange by Hugh B. McCall.. (Lowe, Joseph) Modified on 3/17/2014 (wcl, ). (Entered: 03/14/2014)
223 Exhibit List D.T. Marshall's Motion to Adopt Defendant Strange's Exhibit List Doc. 218 and Deposition Designations and Witness List by D. T. Marshall.. (Gallion, Thomas) Modified on 3/17/2014 (wcl, ). (Entered: 03/14/2014)
MOTION to Adopt re 217 Amended Deposition Designations and 219 Amended Witness List by D. T. Marshall. (No pdf attached to this entry − See doc 221 for pdf − Counsel erroneously e−filed as a deposition designation) (wcl, ) (Entered: 03/17/2014)
MOTION to Adopt re 217 Amended Deposition Designations, 218 Exhibit List, and 219 Amended Witness List by Hugh B. McCall. (No pdf attached to this entry − See doc 222 for pdf − Counsel erroneously e−filed as a deposition designation) (wcl, ) (Entered: 03/17/2014)
MOTION to Adopt re 218 Exhibit List by D. T. Marshall. (No pdf attached to this entry − See doc 223 for pdf − Counsel erroneously e−filed as an Exhibit List) (wcl, ) (Entered: 03/17/2014)
224 Exhibit List Notice of Intent to Adopt Defendant Strange's Exhibit List Doc. 218 and Deposition Designations and Witness List by City of Montgomery, Kevin J. Murphy,

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 23 of 34

03/17/2014 03/17/2014 03/19/2014
03/19/2014 03/19/2014 03/24/2014
03/24/2014
03/24/2014
03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/24/2014 03/25/2014

Todd Strange.. (Paulk, Jason) Modified on 3/17/2014 (wcl, ). (Entered: 03/17/2014)
NOTICE of Intent to Adopt by City of Montgomery, Kevin J. Murphy, Todd Strange re 217 Amended Deposition Designations, 218 Exhibit List, and 219 Amended Witness List. (No pdf attached to this entry − See doc 224 for pdf − Counsel erroneously e−filed as an Exhibit List) (wcl, ) (Entered: 03/17/2014)
225 MOTION to Strike 220 Witness List, Untimely Disclosed and Irrelevant Witnesses by Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parker, William) (Entered: 03/17/2014)
226 NOTICE of Appearance by Tyrone Carlton Means on behalf of D. T. Marshall (Means, Tyrone) (Main Document 226 replaced on 3/19/2014) (wcl, ). Modified on 3/19/2014 to attach a corrected PDF document to reflect the correct case style, case number, party represented, phone number of counsel, and dates on the notice and certificate of service (wcl, ). (Entered: 03/19/2014)
227 NOTICE of Correction re 226 Notice of Appearance, to attach a corrected PDF document to reflect the correct case style, case number, party represented, phone number of counsel, and dates on the notice and certificate of service. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 226 )(wcl, ) (Entered: 03/19/2014)
228 ORDER granting 221 , 222 , & 223 Motions to Adopt. Signed by Chief Judge William Keith Watkins on 3/19/2014. (wcl, ) (Entered: 03/19/2014)
229 Motion for Admission Pro Hac Vice by Michael A. McGuire. (Attachments: # 1 Atty Telfeyan CA State Bar Cert of Good Standing)(McGuire, Joseph) (Main Document 229 replaced on 3/24/2014) (wcl, ). (Additional attachment(s) added on 3/24/2014: # 2 Text of Proposed Order, # 3 USDC Certificate of Admission) (wcl, ). Modified on 3/24/2014 to attach a corrected PDF document to remove the incorrect notice of appearance, to include a certificate of service, and to include the USDC certificate of admission (wcl, ). (Attachment 3 replaced on 4/3/2014 to rotate the page right side up) (wcl, ). Modified on 4/3/2014 (wcl, ). (Entered: 03/24/2014)
230 (STRICKEN AS AN ERRONEOUS DOCKET ENTRY − SEE DOC 229 FOR CORRECT ENTRY) NOTICE by Michael A. McGuire re 229 Motion to Appear Pro Hac Vice Correction to Add Certificate of Service (Attachments: # 1 Supplement Telfeyan CA Certificate of Good Standing)(McGuire, Joseph) Modified on 3/24/2014 (wcl, ). (Entered: 03/24/2014)
231 NOTICE of Correction re 229 Motion for Admission Pro Hac Vice, to attach a corrected PDF document to remove the incorrect notice of appearance, to include a certificate of service, and to include the USDC certificate of admission. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 229 , # 2 Correct Attachment PDF Document of Certificate of Admission to Docket Entry 229 , # 3 Correct Attachment PDF Document of Proposed Order to Docket Entry 229 ) (wcl, ) (Entered: 03/24/2014)
232 NOTICE of Error re 230 Notice Correction to Add, which is hereby STRICKEN as an erroneous docket entry; Counsel is to refer to docket entry 229 , which is has been corrected by the Clerk's Office, for proper entry. (wcl, ) (Entered: 03/24/2014)
***Attorney Phil Telfeyan for Michael A. McGuire added pursuant to the 229 motion. (No pdf attached to this entry) (wcl, ) (Entered: 03/24/2014)
233 TEXT ORDER granting 229 Motion for Admission Pro Hac Vice. Signed by Chief Judge William Keith Watkins on 3/24/2014. (No pdf attached to this entry) (wcl, ) (Entered: 03/24/2014)
234 RESPONSE to Motion re 225 MOTION to Strike 220 Witness List, Untimely Disclosed and Irrelevant Witnesses filed by Michael A. McGuire. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McGuire, Joseph) (Entered: 03/24/2014)
235 Pro Hac Vice Filing fee received re 229 motion: $ 50.00, receipt number 4602031403. (wcl, ) (Entered: 03/25/2014)
236 NOTICE by Luther Strange of Stipulations (Parker, William) (Entered: 03/25/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 24 of 34

03/26/2014 03/31/2014 04/01/2014 04/01/2014 04/02/2014
04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/03/2014
04/03/2014 04/03/2014
04/03/2014 04/06/2014 04/11/2014 04/11/2014 04/21/2014 04/21/2014

237 NOTICE of Appearance by Phil Telfeyan on behalf of Michael A. McGuire. (wcl, ) (Entered: 03/26/2014)
Minute Entry for proceedings held before Chief Judge William Keith Watkins: Non−Jury Trial begun on 3/31/2014 (No PDF attached − see final trial entry). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 03/31/2014)
Minute Entry for proceedings held before Chief Judge William Keith Watkins: Non−Jury Trial continued on 4/1/2014 (No PDF attached − see final trial entry). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 04/02/2014)
ORAL MOTION to Strike witness Prentky's testimony as to the effectiveness of residency restriction by Luther Strange. (ajr, ) (Entered: 04/03/2014)
238 (MOTION WITHDRAWN PURSUANT TO ORAL ORDER ENTERED IN OPEN COURT) MOTION for Judgment as a Matter of Law by D. T. Marshall, Montgomery County Sheriff's Department. (Means, Tyrone) Modified on 4/2/2014 (ajr, ). (Entered: 04/02/2014)
Defendants' Oral Rule 52 MOTION for Judgment as a Matter of Law. (ajr, ) (Entered: 04/02/2014)
239 ORDER granting 206 Motion to Withdraw the Admissions. Signed by Chief Judge William Keith Watkins on 4/2/2014. (wcl, ) (Entered: 04/02/2014)
ORAL MOTION to Withdraw 238 MOTION for Judgment as a Matter of Law by D. T. Marshall, Montgomery County Sheriff's Department. (ajr, ) (Entered: 04/02/2014)
ORAL ORDER granting Oral Motion to Withdraw 238 MOTION for Judgment as a Matter of Law; withdrawing 238 Motion for Judgment as a Matter of Law. Signed by Chief Judge William Keith Watkins on 4/2/14. (ajr, ) (Entered: 04/02/2014)
Minute Entry for proceedings held before Chief Judge William Keith Watkins: Non−Jury Trial continued on 4/2/2014 (No PDF attached − see final trial entry). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 04/03/2014)
240 ORDERED that Dfts file their responsive exhibit to Plf's Trial Exhibit # 73 on or before 4/11/2014, and supply a copy to Plf; Plaintiff shall have until on or before 4/18/2014, to object to the exhibit. Signed by Chief Judge William Keith Watkins on 4/3/2014. (wcl, ) (Entered: 04/03/2014)
241 BRIEF/MEMORANDUM in Support re ORAL MOTION to Strike Prentky Testimony filed by Luther Strange. (Parker, William) Modified on 4/3/2014 to add the link to the Oral Motion (wcl, ). (Entered: 04/03/2014)
242 Minute Entry for proceedings held before Chief Judge William Keith Watkins: Non−Jury Trial completed on 4/3/2014 (PDF available for court use only). (Court Reporter Risa Entrekin.) (Attachments: # 1 Trial Exhibits, # 2 Joint Exhibits, # 3 Witness List) (ajr, ) (Attachment 1 replaced on 11/15/2016) (ajr, ). (Attachment 2 replaced on 11/15/2016) (ajr, ). (Entered: 04/03/2014)
243 ORDERED that the parties file post−trial briefs no later than 4/25/2014, with responses due no later than 5/2/2014, as further set out in order. Signed by Chief Judge William Keith Watkins on 4/3/2014. (wcl, ) (Entered: 04/03/2014)
244 RESPONSE in Opposition re MOTION to Strike filed by Michael A. McGuire. (McGuire, Joseph) (Entered: 04/06/2014)
245 MOTION to Admit Exhibit DX 100 into the Trial Record by Luther Strange. (Howell, Laura) (Entered: 04/11/2014)
246 TEXT ORDER granting 245 Motion to Admit Exhibit DX 100 into the Trial Record. Signed by Chief Judge William Keith Watkins on 4/11/14. (No PDF document attached to this entry.) (scn, ) (Entered: 04/11/2014)
247 First MOTION for Extension of Deadline Post−Trial brief and Response by Michael A. McGuire. (McGuire, Joseph) (Entered: 04/21/2014)
248 TEXT ORDER granting 247 Unopposed Motion to Extend Post−Trial and Responsive Brief Deadlines; The post−trial brief deadline for both parties is EXTENDED to on or

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 25 of 34

04/30/2014
04/30/2014
05/01/2014
05/01/2014
05/05/2014 05/05/2014 05/05/2014 05/05/2014 05/06/2014

before 5/5/2014, the parties' response deadline is EXTENDED to on or before 5/12/2014. Signed by Chief Judge William Keith Watkins on 4/21/2014. (No pdf attached to this entry) (wcl, ) (Entered: 04/21/2014)
249 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of NON−JURY TRIAL (VOLUME I) Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on 3/31/2014, before Judge W. Keith Watkins; Court Reporter/Transcriber Risa L. Entrekin, Telephone number 334−240−2405; Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction; After that date it may be obtained through PACER; NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS; Redaction Request due 5/21/2014; Redacted Transcript Deadline set for 6/2/2014; Release of Transcript Restriction set for 7/29/2014. (wcl, ) Modified on 5/1/2014 to clarify text to reflect as VOLUME 1 (qc/djy, ). (Entered: 04/30/2014)
250 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of NON−JURY TRIAL (VOLUME II) Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on 4/1/2014, before Judge W. Keith Watkins; Court Reporter/Transcriber Risa L. Entrekin, Telephone number 334−240−2405; Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction; After that date it may be obtained through PACER; NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS; Redaction Request due 5/21/2014; Redacted Transcript Deadline set for 6/2/2014; Release of Transcript Restriction set for 7/29/2014. (wcl, ) Modified on 5/1/2014 to clarify text to reflect as VOLUME II (qc/djy, ). (Entered: 04/30/2014)
251 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of NON−JURY TRIAL (VOLUME III) Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on April 2, 2014, before Judge Watkins. Court Reporter/Transcriber Entrekin, Telephone number 334−240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 5/22/2014. Redacted Transcript Deadline set for 6/2/2014. Release of Transcript Restriction set for 7/30/2014. (djy, ) (Entered: 05/01/2014)
252 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of NON−JURY TRIAL (VOLUME IV) Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on April 3, 2014, before Judge Watkins. Court Reporter/Transcriber Entrekin, Telephone number 334−240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 5/22/2014. Redacted Transcript Deadline set for 6/2/2014. Release of Transcript Restriction set for 7/30/2014. (djy, ) (Entered: 05/01/2014)
253 POST TRIAL BRIEF by D. T. Marshall. (Means, Tyrone) Modified on 5/13/2014 (wcl, ). (Entered: 05/05/2014)
254 POST−TRIAL BRIEF by City of Montgomery, Kevin J. Murphy, Todd Strange. (Paulk, Jason) Modified on 5/13/2014 (wcl, ). (Entered: 05/05/2014)
255 POST−TRIAL BRIEF by Luther Strange. (Attachments: # 1 Exhibit A − Act 1967−507, # 2 Exhibit B − Act 1996−793, # 3 Exhibit C − Act 1998−489, # 4 Exhibit D − Act 1999−572, # 5 Exhibit E − Act 2000−728, # 6 Exhibit F − Act 2001−1127, # 7 Exhibit G − Act 2005−301, # 8 Exhibit H − Act 2009−558, # 9 Exhibit I − Act 2009−619, # 10 Exhibit J − 2010 Local Registration, # 11 Exhibit K − 2010 State Registry, # 12 Exhibit L − 2010 ACNA, # 13 Exhibit M − Act 2011−640 − ASORCNA)(Parker, William) Modified on 5/13/2014 (wcl, ). (Entered: 05/05/2014)
256 POST−TRIAL BRIEF by Michael A. McGuire. (McGuire, Joseph) Modified on 5/13/2014 (wcl, ). (Entered: 05/05/2014)
257 MOTION for Leave to File Post Trial Brief by Hugh B. McCall. (McCollum, Frank) (Entered: 05/06/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 26 of 34

05/06/2014 05/06/2014 05/06/2014 05/07/2014 05/12/2014 05/12/2014 05/12/2014 05/13/2014 05/13/2014 05/13/2014 06/02/2014 07/16/2014 07/17/2014
09/02/2014
09/02/2014
09/05/2014 09/10/2014 09/17/2014

258 POST TRIAL BRIEF by Hugh B. McCall. (McCollum, Frank) Modified on 5/13/2014 (wcl, ). (Entered: 05/06/2014)
259 NOTICE by City of Montgomery, Kevin J. Murphy, Todd Strange re 255 Trial Brief,, of Adoption of Attorney General Strange's Post−Trial Brief (Paulk, Jason) (Entered: 05/06/2014)
260 NOTICE by D. T. Marshall re 255 Trial Brief,, Notice of Adoption of Defendant Strange's Post Trial Brief [Doc 255] (Gallion, Thomas) (Entered: 05/06/2014)
261 TEXT ORDER granting 257 Motion for Leave to File Post Trial Brief. Signed by Chief Judge William Keith Watkins on 5/7/2014. (No pdf attached to this entry) (wcl, ) (Entered: 05/07/2014)
262 Response to 253 , 254 , 255 , and 258 Post Trial Briefs, filed by Michael A. McGuire. (McGuire, Joseph) Modified on 5/13/2014 to clarify the docket text (wcl, ). (Entered: 05/12/2014)
263 (Response to McGuire's Post−Trial Brief) TRIAL BRIEF by Luther Strange. (Parker, William) Modified on 5/13/2014 (wcl, ). Modified on 5/13/2014 to clarify the docket text (wcl, ). (Entered: 05/12/2014)
RESPONSE to 256 Post−Trial Brief by Luther Strange. (No pdf attached to this entry − See doc 263 for pdf − Counsel erroneously e−filed as a Trial Brief) (wcl, ) (Entered: 05/13/2014)
264 NOTICE by Hugh B. McCall Of Intent to Adopt Luther Strange's 263 Response to Post−Trial Brief. (McCollum, Frank) Modified on 5/13/2014 to add the link to the 263 Response (wcl, ). (Entered: 05/13/2014)
265 NOTICE by D. T. Marshall of Adoption of Defendant Strange's 263 Response to Plaintiff's Post Trial Brief. (Gallion, Thomas) Modified on 5/13/2014 to add the link to the 263 Response (wcl, ). (Entered: 05/13/2014)
266 NOTICE by City of Montgomery, Kevin J. Murphy, Todd Strange of Adoption re 263 Response. (Paulk, Jason) Modified on 5/13/2014 to clarify the docket text (wcl, ). (Entered: 05/13/2014)
267 ORDER denying as moot 225 Motion to Strike. Signed by Chief Judge William Keith Watkins on 6/2/2014. (wcl, ) (Entered: 06/02/2014)
268 MOTION to Substitute Party by Hugh B. McCall. (Lowe, Joseph) (Entered: 07/16/2014)
269 ORDER granting 268 Motion to Substitute Party and that, pursuant to FRCP 25(d)(1), future proceedings shall be in the name of the substituted party, John Richardson, Acting Director of the Alabama Department of Public Safety. Signed by Chief Judge William Keith Watkins on 7/17/2014. (wcl, ) (Entered: 07/17/2014)
270 NOTICE by Luther Strange Notice of Newly Issued Authority (Attachments: # 1 Exhibit A)(Parker, William) (Main Document 270 replaced on 9/2/2014 due to typographical error in title of document.) (dmn, ). Modified on 9/2/2014 (dmn, ). (Entered: 09/02/2014)
271 NOTICE of Correction re 270 Notice of Newly Issued Authority. The original pdf contained a typographical error in the title of the document. The corrected pdf is attached to this notice. (Attachments: # 1 Corrected pdf of Doc. 270 )(dmn, ) (Entered: 09/02/2014)
272 ORDER: Upon Defendants' filing of the 270 Notice of Newly Issued Authority, it is ORDERED that the plaintiff's response, if any, be filed on or before 9/12/2014. Signed by Chief Judge William Keith Watkins on 9/5/2014. (dmn, ) (Entered: 09/05/2014)
273 Response to Order re 272 Order, 270 Notice (Other) by Michael A. McGuire. (Attachments: # 1 Exhibit A)(McGuire, Joseph) (Entered: 09/10/2014)
274 REPLY BRIEF re 270 Notice (Other) of Newly Issued Authority filed by Luther Strange. (Attachments: # 1 Exhibit A − Windwalker Appellant's Brief, # 2 Exhibit B − Windwalker Appellant's Reply Brief, # 3 Exhibit C − Windwalker Appellees' Brief)(Parker, William) (Entered: 09/17/2014)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 27 of 34

09/23/2014 09/23/2014 09/24/2014 01/16/2015 02/03/2015
02/04/2015 02/04/2015 02/04/2015 02/05/2015
02/05/2015
02/18/2015 02/23/2015

275 ORDER that the pretrial motions filed by the parties pursuant to Rule 12 and Rule 56 (Docs. 164 , 165 , 168 , 169 , and 170 ) are DENIED as moot as further set out in the order. Signed by Chief Judge William Keith Watkins on 9/23/2014. (dmn, ) (Entered: 09/23/2014)
276 NOTICE by Luther Strange Second Notice of Newly Issued Authority (Attachments: # 1 Exhibit A − Pittman Decision)(Parker, William) (Entered: 09/23/2014)
277 RESPONSE to Defendant's 276 Second Notice of Newly Issued Authority filed by Michael A. McGuire. (McGuire, Joseph) Modified on 9/25/2014 to reflect actual title. (dmn, ) (Entered: 09/24/2014)
278 NOTICE by Michael A. McGuire 11th Circuit Order (Attachments: # 1 Exhibit 1)(McGuire, Joseph) (Entered: 01/16/2015)
279 ORDERED that the following two officials are substituted as Dfts pursuant to FRCP 25(d): (1) Derrick Cunningham in his official capacity as Montgomery County Sheriff (for D. T. Marshall); and (2) John E. Brown in his official capacity as Interim Chief of Police for the City of Montgomery (for Kevin J. Murphy); All future proceedings shall be in the names of Sheriff Cunningham and Chief of Police Brown. Signed by Chief Judge William Keith Watkins on 2/3/2015. (wcl, ) (Entered: 02/03/2015)
280 (STRICKEN DUE TO A CLERICAL ERROR − ENTERED IN WRONG CIVIL ACTION) Partial Filing fee received: $ 16.00, receipt number 4602035399. (wcl, ) (Main Document 280 replaced on 2/4/2015) (wcl, ). Modified on 2/4/2015 (wcl, ). (Entered: 02/04/2015)
281 NOTICE of ERROR re 280 Partial Filing Fee Received, which is hereby STRICKEN as a docketing error; The receipt was entered in the wrong civil action. (wcl, ) (Entered: 02/04/2015)
282 ORDERED that Ernest Finley in his official capacity is substituted in place of John E. Brown as a dft in this case. Signed by Chief Judge William Keith Watkins on 2/4/2015. (wcl, ) (Entered: 02/04/2015)
283 MEMORANDUM OPINION AND ORDER: it is ORDERED and DECLARED that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in−town homeless registrants to register (or check−in) on a weekly basis with two separate law−enforcement jurisdictions as provided by § 15−20A−12(b) in conjunction with § 15−20A−4(13) and (2) all in−town registrants to complete travel permit applications with two separate law−enforcement jurisdictions as provided by § 15−20A−15 in conjunction with § 15−20A−4(13). It is further ORDERED that the Attorney Generals oral Motion to Strike and Defendants oral Motions for Judgment as a Matter of Law are DENIED AS MOOT. Signed by Chief Judge William Keith Watkins on 2/5/2015. (kh, ) (Entered: 02/05/2015)
284 FINAL JUDGMENT FOR DECLARATORY RELIEF: it is ORDERED, ADJUDGED, and DECLARED that the Alabama Sex Offender Registration and Community Notification Act, Ala. Code § 15−20A−1 et seq., is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in−town homeless registrants to register (or check−in) on a weekly basis with two separate law−enforcement jurisdictions as provided by Alabama Code § 15−20A−12(b) in conjunction with § 15−20A−4(13) and (2) all in−town registrants to complete travel permit applications with two separate law−enforcement jurisdictions as provided by Alabama Code § 15−20A−15 in conjunction with § 15−20A−4(13). The Clerk of the Court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by Chief Judge William Keith Watkins on 2/5/2015. (Attachments: # 1 Civil Appeals Checklist)(kh, ) (Entered: 02/05/2015)
285 MOTION for Attorney Fees and Non−Taxable Costs by Michael A. McGuire. (McGuire, Joseph) (Entered: 02/18/2015)
286 BRIEFING ORDER re 285 MOTION for Attorney Fees and Non−Taxable Costs, it is ORDERED that the motion be submitted without oral argument on April 6, 2015. It is further ORDERED that Plaintiff submit declarations, documentation, and a brief in support of the motion on or before March 16, 2015. It is further ORDERED that Defendants file a response, which shall include a brief on or before March 30, 2015.

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 28 of 34

03/06/2015 03/06/2015
03/06/2015
03/06/2015 03/10/2015 03/10/2015 03/10/2015
03/10/2015 03/12/2015
03/12/2015 03/12/2015 03/13/2015 03/13/2015 03/13/2015
03/16/2015

Plaintiff may file a reply brief on or before April 6, 2015, as further set out in order. Signed by Chief Judge William Keith Watkins on 2/23/2015. (kh, ) Modified on 2/24/2015 to correct a clerical error to reflect the correct signature date as 2/23/2015 and not 2/25/2015 (kh, ). (Entered: 02/23/2015)
287 NOTICE OF APPEAL as to 283 Memorandum Opinion and Order, Terminate Motions,,,,,, by Michael A. McGuire (McGuire, Joseph) (Entered: 03/06/2015)
288 Appeal Instructions sent to Attorney J. Mitch McGuire counsel for Plaintiff Michael A. McGuire re 287 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (ydw, ) (Entered: 03/06/2015)
289 Transmission of Notice of Appeal, 283 Memorandum Opinion and Order, 284 Judgment, and Docket Sheet to US Court of Appeals re 287 Notice of Appeal. (Attachments: # 1 APPEAL PACKAGE) (ydw) (Main Document 289 replaced on 3/12/2015 − tO CORRECT THE TITLE) (ydw, ). Modified on 3/12/2015 (ydw, ). (Entered: 03/06/2015)
290 USCA Appeal Fees received $ 505.00 receipt number 4602035986 re 287 Notice of Appeal filed by Michael A. McGuire. (ydw, ) (Entered: 03/06/2015)
291 NOTICE OF APPEAL as to 284 Judgment,,, 283 Memorandum Opinion and Order, Terminate Motions,,,,,, by Luther Strange (Parker, William) (Entered: 03/10/2015)
292 USCA Appeal Fees received $ 505.00 receipt number 4602036004 re 291 Notice of Appeal filed by Luther Strange (ydw, ) (Main Document 292 replaced on 3/13/2015 to CORRECT PDF) (ydw, ). Modified on 3/13/2015 (ydw, ). (Entered: 03/10/2015)
293 Appeal Instructions sent to Attorney William Parker counsel for Luther Strange re 291 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (ydw, ) (Entered: 03/10/2015)
294 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals 283 Memorandum Opinion and Order, 284 Judgment re 291 Notice of Appeal. (Attachments: # 1 APPEAL PACKAGE) (ydw, ) (Entered: 03/10/2015)
NOTICE of Docket Text Correction re 289 Transmission of Notice of Appeal and Docket Sheet to USCA, issued this date to reflect that the main document, TRANSMITTAL LETTER was replace to make the correction regarding the title of the case − MICHAEL MCGUIRE VS. LUTHER STRANGE,ET AL. NO PDF WITH THIS DOCKET ENTRY (ydw, ) (Entered: 03/12/2015)
295 BILL OF COSTS by Michael A. McGuire. (Attachments: # 1 Supplement Itemization/Documentation)(McGuire, Joseph) (Entered: 03/12/2015)
296 USCA Case Number 15−10958−A for 287 Notice of Appeal filed by Michael A. McGuire. (ydw, ) (Entered: 03/12/2015)
297 TRANSCRIPT INFORMATION FORM by Michael A. McGuire for proceedings held on 03/31/2014 − 4/3/2014 before Judge Watkins, (McGuire, Joseph) (Entered: 03/13/2015)
298 TRANSCRIPT INFORMATION FORM by Michael A. McGuire for proceedings held on 03/31/2014 − 4/3/2014 before Judge Watkins, AMENDED transcript form, (McGuire, Joseph) (Entered: 03/13/2015)
299 NOTICE of Correction re 292 USCA Appeal Fees issued this date to advise that the document was replace to correct the PDF. The correct PDF document is attached to this notice for your review. (Attachments: # 1 APPEAL PACKAGE)(ydw, ) (Entered: 03/13/2015)
300 BRIEF/MEMORANDUM in Support re 285 MOTION for Attorney Fees and Non−Taxable Costs filed by Michael A. McGuire. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit B, # 5 Exhibit B−1, # 6 Exhibit B−2, # 7 Exhibit B−3, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E)(McGuire, Joseph) (Entered: 03/16/2015)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 29 of 34

03/17/2015 03/17/2015 03/17/2015 03/17/2015 03/18/2015 03/18/2015 03/18/2015 03/18/2015 03/18/2015 03/19/2015 03/19/2015
03/19/2015 03/19/2015 03/20/2015
03/23/2015 03/23/2015

301 MOTION for Leave to File Supplemental Brief in Support of Plaintiff's Motion for Attorneys' Fees and Costs (doc. 285) (UNOPPOSED) by Michael A. McGuire. (Attachments: # 1 Exhibit 1)(McGuire, Joseph) (Additional attachment(s) added on 3/20/2015: # 2 Corrected Certificate of Service) (kh, ). (Entered: 03/17/2015)
302 NOTICE of Appearance by Stacy Lott Reed on behalf of City of Montgomery, Ernest Finley, Todd Strange (Reed, Stacy) (Entered: 03/17/2015)
303 MOTION to Withdraw as Attorney by City of Montgomery, Ernest Finley, Todd Strange. (Paulk, Jason) (Entered: 03/17/2015)
304 MOTION to Modify re 286 Order, Set Deadlines,,,, by Luther Strange. (Parker, William) (Entered: 03/17/2015)
305 NOTICE OF APPEAL as to 284 Judgment,,, 283 Memorandum Opinion and Order, Terminate Motions,,,,,, by John Richardson (McCollum, Frank) (Entered: 03/18/2015)
306 Appeal Instructions sent to Attorney F. Tim McCollum consel for Defendant John Richardson re 305 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (ydw, ) (Entered: 03/18/2015)
307 Transmission of Notice of Appeal, 283 Memorandum Opinion and Order, 284 Judgment, and Docket Sheet to US Court of Appeals re 305 Notice of Appeal. (Attachments: # 1 APPEAL PACKAGE)(ydw, ) (Entered: 03/18/2015)
308 RESPONSE in Opposition re 304 MOTION to Modify re 286 Order, Set Deadlines,,,, filed by Michael A. McGuire. (McGuire, Joseph) (Additional attachment(s) added on 3/20/2015: # 1 Corrected Certificate of Service) (kh, ). (Entered: 03/18/2015)
309 USCA Appeal Fees received $ 505.00 receipt number 4602036099 re 305 Notice of Appeal filed by John Richardson. (ydw, ) (Entered: 03/18/2015)
310 NOTICE OF APPEAL by Derrick Cunningham, Montgomery County Sheriff's Department (Gallion, Thomas) Modified on 3/19/2015, to CREATE A LINK TO document # 283 MEMORANDUM OPINION AND ORDER AND 284 FINAL JUDGMENT entered on 02/05/2015 (ydw, ). (Entered: 03/19/2015)
NOTICE of Docket Text Correction issued this date to reflect that the docket sheet re 310 Notice of Appeal was Modified on 3/19/2015, to CREATE A LINK TO THE 283 MEMORANDUM OPINION AND ORDER AND 284 FINAL JUDGMENT entered on 02/05/2015. NO PDF WITH THIS DOCKET ENTRY. (ydw, ) (Entered: 03/19/2015)
311 Appeal Instructions sent to Attorney Thomas T. Gallion, III counsel for Defendant Sheriff Derrick Cunningham re 310 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (ydw, ) (Entered: 03/19/2015)
312 Transmission of Notice of Appeal, 283 Memorandum Opinion and Order, 284 Judgment, and Docket Sheet to US Court of Appeals re 310 Notice of Appeal, (Attachments: # 1 APPEAL PACKAGE)(ydw, ) (Entered: 03/19/2015)
313 Order that Defendant Luther Strange's 304 Motion to Modify Briefing Order and Plaintiff Michael A. McGuires 308 opposition, it is ORDERED that the motion is GRANTED. Accordingly, the deadline for Defendants to file a response to Plaintiff's pending motion for attorneys' fees and costs is EXTENDED from March 30, 2015, to and including April 13, 2015. Plaintiff may file a reply brief on or before April 23, 2015. Signed by Chief Judge William Keith Watkins on 3/20/2015. (kh, ) (Entered: 03/20/2015)
314 TEXT ORDER granting 303 Motion to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 3/23/2015. (No pdf attached to this entry)(kh, ) (Entered: 03/23/2015)
*** Attorney Jason Cole Paulk terminated pursuant to the 314 Order. (No pdf attached to this entry). (kh, ) (Entered: 03/23/2015)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 30 of 34

03/23/2015 03/23/2015 03/24/2015
03/27/2015 03/27/2015 03/27/2015
03/27/2015 03/27/2015 03/31/2015 04/03/2015
04/03/2015

315 ORDERED that the 301 motion is GRANTED. On or before March 27, 2015, Plaintiff shall file his supplemental memorandum in support of his motion for an award of attorneys' fees and expense. Signed by Chief Judge William Keith Watkins on 3/23/2015. (kh, ) (Entered: 03/23/2015)
316 USCA Case Number 15−10958−A for 291 Notice of Appeal filed by Luther Strange. (dmn, ) (Entered: 03/24/2015)
317 TRANSCRIPT INFORMATION FORM by Luther Strange for proceedings held on 1/26/2012 Status Hearing (Doc. 70 ), and 12/16/2013 Oral Argument regarding Protective Order (Doc. 148 ) held before Judge Charles S. Coody; re 291 Notice Appeal filed 3/10/2015, 11th Circuit Court of Appeals No. 15−10958−A. (Parker, William) Modified on 3/24/2015 to create links to Doc. 70 , 148 , and 291 . (dmn, ) (Entered: 03/24/2015)
318 Transcript ACKNOWLEDGMENT AND NOTIFICATION received from Court Reporter RISA L. ENTREKIN on 11th Circuit Court of Appeals No. 15−10958−A. (dmn, ) Modified on 3/31/2015 to reflect this is a " ACKNOWLEDGMENT AND NOTIFICATION" not just an NOTIFICATION and not filed by Court Reporter Patricia Starkie as originally filed. (Entered: 03/27/2015)
319 Transcript ACKNOWLEDGMENT received from RISA ENTREKIN on 11th Circuit Court of Appeals No. 15−10958−A. (dmn, ) Modified on 3/31/2015 to reflect this is a "ACKNOWLEDGMENT" not an NOTIFICATION, and not filed by Court Reporter Patricia Starkie as originally filed. (ydw, ). (Entered: 03/27/2015)
320 BRIEF/MEMORANDUM in Support re 300 BRIEF/MEMORANDUM in Support, 285 MOTION for Attorney Fees and Non−Taxable Costs , Supplemental Memorandum filed by Michael A. McGuire. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit B, # 5 Exhibit B−1, # 6 Exhibit B−2, # 7 Exhibit B−3, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E)(McGuire, Joseph) (Entered: 03/27/2015)
321 USCA Case Number 15−10958−A for 305 Notice of Appeal filed by John Richardson. (dmn, ) (Entered: 03/27/2015)
Court Reporter Risa L. Entrekin was appointed to transcribe the FTR Motion Hearing by Telephone held on 12/16/2013 re 317 Transcript Information regarding 291 Notice of Appeal, 11th Circuit Appeal No. 15−10958−A. No PDF with this docket entry. (ydw, ) (Entered: 03/31/2015)
322 TRANSCRIPT INFORMATION FORM by John Richardson before Judge Keith Watkins, (McCollum, Frank) (Entered: 03/31/2015)
323 NOTICE OF FILING OF OFFICIAL STATUS CONFERENCE TRANSCRIPT (PDF ACCESS RESTRICTED FOR 90 DAYS) for dates of 01/26/2012 before Judge HONORABLE W. KEITH WATKINS, re 291 Notice of Appeal Court Reporter/Transcriber Risa L. Entrekin (transcribed from Mitchell's notes), Telephone number (334)240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 4/24/2015. Redacted Transcript Deadline set for 5/4/2015. Release of Transcript Restriction set for 7/2/2015. (ydw, ) Modified on 4/15/2015 to correct year hearing was held (ydw, ). (Entered: 04/06/2015)
324 NOTICE OF FILING OF OFFICIAL TELEPHONE CONFERENCE TRANSCRIPT (PDF ACCESS RESTRICTED FOR 90 DAYS) for dates of 12/16/2013 before Judge HONORABLE CHARLES S. COODY, re 291 Notice of Appeal Court Reporter/Transcriber Risa L. Entrekin, Telephone number (334)240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 4/27/2015. Redacted Transcript Deadline set for 5/7/2015. Release of Transcript Restriction set for 7/6/2015. (ydw, ) Modified on 4/6/2015 to correct filing date − TRANSCRIPT FILED 04/03/2015. (ydw) (Entered: 04/06/2015)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 31 of 34

04/03/2015 04/08/2015 04/13/2015
04/14/2015 04/14/2015 04/15/2015 04/15/2015 04/16/2015 04/16/2015 04/17/2015 04/17/2015
04/17/2015 04/21/2015 04/21/2015 04/23/2015 04/24/2015 04/24/2015 04/24/2015

325 Transcript Acknowledgment received from Court Reporter Risa L. Entrekin on 15−10958−A for 305 Notice of Appeal filed by John Richardson. (ydw, ) (Entered: 04/06/2015)
326 TRANSCRIPT INFORMATION FORM by Derrick Cunningham for proceedings held on 03/18/2015 (Gallion, Thomas) (Entered: 04/08/2015)
327 RESPONSE in Opposition re 285 MOTION for Attorney Fees and Non−Taxable Costs filed by Luther Strange. (Attachments: # 1 Exhibit Persky, # 2 Exhibit LaChance decl., # 3 Errata Weller decl., # 4 Appendix Appendix of Challenged Time Entries)(Parker, William) (Entered: 04/13/2015)
328 MOTION for Extension of Time to File Declaration in Opposition to McGuire's Attorney−Fee Petition by Luther Strange. (Parker, William) (Entered: 04/14/2015)
329 MOTION for Leave to File Out of Time Adoption by John Richardson. (Lowe, Joseph) (Entered: 04/14/2015)
330 TEXT ORDER granting 328 Motion for Extension of Time to File. Signed by Chief Judge William Keith Watkins on 4/15/2015. (no pdf document attached to this entry)(kh, ) (Entered: 04/15/2015)
331 TEXT ORDER granting 329 Motion for Leave to File. Signed by Chief Judge William Keith Watkins on 4/15/2015. (no pdf document attached to this entry)(kh, ) (Entered: 04/15/2015)
332 NOTICE by Luther Strange of Filing & Motion to File Corrected Brief (Attachments: # 1 Exhibit A − Walker Decl., # 2 Exhibit B − Proposed Corrected Brief)(Parker, William) (Entered: 04/16/2015)
MOTION to File Corrected Brief by Luther Strange. (no pdf document attached to this entry − see doc 332 for pdf)(kh, ) (Entered: 04/17/2015)
333 TEXT ORDER granting 332 Motion for Leave to File Corrected Brief. Signed by Chief Judge William Keith Watkins on 4/17/2015. (no pdf document attached to this entry)(kh, ) (Entered: 04/17/2015)
334 RESPONSE in Opposition re 285 MOTION for Attorney Fees and Non−Taxable Costs (corrected brief to account for Walker declaration) filed by Luther Strange. (Attachments: # 1 Exhibit A − Persky Decl., # 2 Exhibit B − LaChance Decl., # 3 Exhibit C − Weller Decl., # 4 Exhibit D − Walker Decl., # 5 Appendix Supporting Challenges to Time Entries)(Parker, William) (Entered: 04/17/2015)
335 USCA Case Number 15−10958−A for 310 Notice of Appeal filed by Derrick Cunningham, Montgomery County Sheriff's Department. (ydw, ) (Entered: 04/20/2015)
336 MOTION for Joinder to Adopt Corrected Brief (Doc. 334) by John Richardson. (Lowe, Joseph) (Entered: 04/21/2015)
337 TEXT ORDER granting 336 Motion to Adopt Corrected Brief. Signed by Chief Judge William Keith Watkins on April 21, 2015. (No PDF document attached to this entry.) (scn, ) (Entered: 04/21/2015)
338 REPLY to Response to Motion re 285 MOTION for Attorney Fees and Non−Taxable Costs 295 filed by Michael A. McGuire. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I)(McGuire, Joseph) (Entered: 04/23/2015)
339 MOTION to Amend/Correct 338 Reply to Response to Motion by Michael A. McGuire. (Attachments: # 1 Errata 1)(McGuire, Joseph) (Entered: 04/24/2015)
340 TEXT ORDER granting 339 Motion to Amend/Correct the 338 Reply to Response to Motion. Signed by Chief Judge William Keith Watkins on 4/24/2015. (no pdf document attache to this entry)(kh, ) (Entered: 04/24/2015)
341 REPLY to Response to Motion re 285 MOTION for Attorney Fees and Non−Taxable Costs, 339 MOTION to Amend/Correct 338 Reply to Response to Motion with Corrections filed by Michael A. McGuire. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I)(McGuire, Joseph) (Entered: 04/24/2015)

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 32 of 34

04/24/2015 04/27/2015 04/27/2015 04/27/2015
04/28/2015 04/30/2015 05/14/2015
05/18/2015 05/19/2015 08/27/2015
09/02/2015 03/01/2016
03/02/2016

342 Objection to re 341 Reply to Response to Motion, (objection to Plaintiff's untimely filed attorney−fee materials) filed by Luther Strange. (Parker, William) (Entered: 04/24/2015)
343 Second MOTION to Amend/Correct 341 Reply to Response to Motion, 334 Response in Opposition to Motion, by Michael A. McGuire. (Attachments: # 1 Errata 2, # 2 Exhibit F, # 3 Exhibit G, # 4 Exhibit H, # 5 Exhibit I)(McGuire, Joseph) (Entered: 04/27/2015)
344 TEXT ORDER granting 343 Second Motion to Amend/Correct. Signed by Chief Judge William Keith Watkins on 4/27/2015. (no pdf document attached to this entry)(kh, ) (Entered: 04/27/2015)
345 REPLY to Response to Motion re 285 MOTION for Attorney Fees and Non−Taxable Costs, 343 Second MOTION to Amend/Correct 341 Reply to Response to Motion, 334 Response in Opposition to Motion, filed by Michael A. McGuire. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I)(McGuire, Joseph) (Entered: 04/27/2015)
346 MOTION to Strike 342 Objection to Declarations as Untimely by Michael A. McGuire. (McGuire, Joseph) (Entered: 04/28/2015)
347 RESPONSE in Opposition re 346 MOTION to Strike 342 Objection to Declarations as Untimely and Affidavit filed by Luther Strange. (Attachments: # 1 Exhibit A − Email to Mitch McGuire)(Sinclair, Winfield) (Entered: 04/30/2015)
348 Entry of Dismissal of USCA issued as the MANDATE as to 310 Notice of Appeal filed by Derrick Cunningham, Montgomery County Sheriff's Department, 11th Circuit Appeal No. 15−10958−AA; Pursuant to the 11th Cir.R.42−1(b), the cross appeal as to DERRICK CUNNINGHAM ONLY is DISMISSED for want of prosecution because the appellant Derrick Cunningham failed to pay the filing and docketing fees to the district court, or alternatively, file a motion to proceed in forma pauperis in the district court and file a Civil Appeal Statement form within the time fixed by the rules, effective May 14, 2015. FOR THE COURT − BY DIRECTION (ydw, ) (Entered: 05/15/2015)
349 USCA Appeal Fees received $ 505.00 receipt number 602035857 re 310 Notice of Appeal filed by Derrick Cunningham, Montgomery County Sheriff's Department 11th Circuit Appeal No. 15−10958−AA. (ydw, ) (Entered: 05/18/2015)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Middle District of Alabama certifies that the record is complete for purposes of this appeal re: 305 Notice of Appeal, 287 Notice of Appeal, 291 Notice of Appeal, Appeal No. 15−10958−A. The entire record on appeal is available electronically. (ydw, ) (Entered: 05/19/2015)
350 ORDERED that the 285 motion for attorney's fees is DENIED without prejudice and with leave to re−file no later than fourteen days after entry of the mandate by the Court of Appeals on the pending appeal. Further, 346 the motion to strike is DENIED as moot. Signed by Chief Judge William Keith Watkins on 8/27/2015. (kh, ) (Entered: 08/27/2015)
351 NOTICE by Michael A. McGuire of Revisions to Relevant Law (Attachments: # 1 Exhibit A)(McGuire, Joseph) (Entered: 09/02/2015)
352 LIMITED REMAND ORDER received from USCA Eleventh Circuit of Opinion Entered on 11th Circuit Appeal No. 15−10958−GG; the court REMANDS this appeal on a limited basis to the district court. to find the facts relevant to whether the challenges to the homeless provisions are moot. Before ED CARNES, Chief Judge, JILL PRYOR and RIPPLE, Circuit Judges. (ydw, ) (Entered: 03/01/2016)
353 ORDER re 352 Limited Remand Order; It is ORDERED that, on or before March 28, 2016, the parties shall meet and confer and shall submit a joint report containing the following: (1) a list of agreed and stipulated facts bearing on whether the challenges to the homeless provisions of ASORCNA are moot; (2) a brief description of Plaintiffs position as to the disputed facts bearing on whether the challenges to the homeless provisions of ASORCNA are moot; (3) a brief description of Defendants position(s) as to the disputed facts bearing on whether the challenges to the homeless provisions of ASORCNA are moot; and (4) pursuant to Federal Rule of Civil Procedure 26(f), a

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03/28/2016 03/28/2016 03/29/2016 04/04/2016
04/06/2016 04/06/2016 04/18/2016
04/18/2016 03/31/2017 04/11/2017 04/11/2017 04/25/2017 01/05/2018

proposed discovery plan limited to the issue of whether the challenges to the homeless provisions of ASORCNA are moot. The parties shall be relieved of filing the Rule 26(f) report only if all parties agree that no discovery is needed on the issue, in which case the parties shall so state in the report. Signed by Chief Judge William Keith Watkins on 3/2/2016. (kh, ) (Entered: 03/02/2016)
354 Response to Order re 353 Order,,,, Joint Report Concerning Remand by Derrick Cunningham, John Richardson, Luther Strange, Michael A. McGuire. (Parker, William) Modified on 4/1/2016 to add as filed on behalf of the plaintiff (kh, ). (Entered: 03/28/2016)
355 Response to Order re 353 Order,,,, Supplemental Declarations by Michael A. McGuire. (Attachments: # 1 Supplement McGuire Declaration)(Telfeyan, Phil) (Entered: 03/28/2016)
356 Objection to Declarations filed by Derrick Cunningham, John Richardson, Luther Strange. (Parker, William) (Entered: 03/29/2016)
357 ORDERED that, on or before April 8, 2016, Defendants shall state, in writing, whether they dispute Plaintiff's assertion that he is currently homeless. Further, if Defendants contend that Plaintiff is not currently homeless, they shall submit an affidavit or other evidentiary material to support that contention. Signed by Chief Judge William Keith Watkins on 4/4/2016. (kh, ) (Entered: 04/04/2016)
358 Response to Order re 357 Order, regarding Plaintiff's current housing status by John Richardson, Luther Strange, Derrick Cunningham. (Parker, William) Modified on 4/7/2016 to add as also filed on behalf of Derrick Cunningham (wcl, ). (Entered: 04/06/2016)
359 NOTICE by Michael A. McGuire of Plaintiff's Homelessness (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McGuire, Joseph) (Entered: 04/06/2016)
360 ORDER ON REMAND regarding resolution of a jurisdictional issue remanded from the Eleventh Circuit Court of Appeals, as further set out in order; DIRECTING the Clerk DIRECTED to return the record, as supplemented on remand, to the Eleventh Circuit Court of Appeals. Signed by Chief Judge William Keith Watkins on 4/18/2016. (wcl, ) (Entered: 04/18/2016)
AMENDED Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Middle District of Alabama certifies that the record is complete for purposes of this appeal RE: Appeal No. 15−10958−GG. The entire record on appeal is available electronically.(ydw, ) (Entered: 04/18/2016)
361 MOTION for Reconsideration re 350 Order on Motion to Strike, Order on Motion for Attorney Fees,, and Motion for an Interim Award of Attorney's Fees and Costs by Michael A. McGuire. (McGuire, Joseph). Added MOTION for Attorney Fees on 1/5/2018, as construed in the Court's 365 Order (alm, ). (Entered: 03/31/2017)
362 NOTICE by Luther Strange of Substitution of Public Officer (Parker, William) (Entered: 04/11/2017)
363 MOTION to summarily deny re 361 MOTION for Reconsideration re 350 Order on Motion to Strike, Order on Motion for Attorney Fees,, and for Interim Fees and Costs by Luther Strange. (Parker, William) (Entered: 04/11/2017)
364 NOTICE of Adoption re 363 MOTION to Summarily Deny 361 Request for Interim−Fee Award by Derrick Cunningham. (Gallion, Thomas) Modified on 4/26/2017 to add the link to the 363 motion and to clarify the docket text (wcl, ). (Entered: 04/25/2017)
365 MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plf's 361 motion for reconsideration is GRANTED; 2) Plf's 361 motion for an interim award of costs and attorney's fees is GRANTED IN PART to the extent provided in this Memorandum Opinion and Order. In all other respects, Plf's 361 motion for an interim award of costs and attorney's fees is DENIED; 3) Dft Stephen T. Marshall's 363 motion to summarily deny Plf's 361 motion for reconsideration is DENIED; 4) On or before 2/1/2018, the State Official Dfts (Dfts Charles Ward, Stephen T. Marshall, D. T. Marshall, in their official capacities) shall deliver to

Case: 2:11-cv-1027 As of: 05/04/2020 06:44 PM CDT 34 of 34

01/08/2018 01/17/2020

Attorney McGuire $82,417.00, representing a reasonable interim attorney's fee for Mr. McGuire's work in obtaining the relief afforded by the 284 Judgment. This figure does not reflect fees on appeal; 5) Plf may file a motion for costs and additional attorney's fees, including the EJUL attorneys' fees, attorneys' fees reasonably incurred with respect claims on which Plf may prevail on appeal, fees and costs incurred after entry of the judgment, and any other appropriate attorneys' fees and costs, no later than fourteen days after entry of the mandate by the Court of Appeals on the pending appeal. Signed by Chief Judge William Keith Watkins on 1/5/2018. (alm, ) (Main Document 365 replaced on 1/8/2018 to attach a corrected PDF document to correct a typographical error to reflect a date of 2/1/2018 and not 2/1/2017 in the 4th directive of page 28 of the Order) (alm, ). Modified on 1/8/2018 (alm, ). (Entered: 01/05/2018)
366 NOTICE of Correction re 365 Memorandum Opinion and Order to correct a typographical error to reflect a date of 2/1/2018 and not 2/1/2017 in the 4th directive of page 28 of the Order. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 365 )(alm, ) (Entered: 01/08/2018)
367 ORDER of USCA as to 305 Notice of Appeal filed by John Richardson, 291 Notice of Appeal filed by Luther Strange, 287 Notice of Appeal filed by Michael A. McGuire, 11th Circuit Appeal No. 15−10958−GG: Laura E. Howell's motion to withdraw as counsel for Steven T. Marshall is GRANTED. (dmn, ) (Entered: 01/17/2020)