20-4106-cv

Cornelio v. Connecticut

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2021

No. 20-4106-cv

JAMES P. CORNELIO,

Plaintiff-Appellant,

v.

STATE OF CONNECTICUT, STRAVROS MELLEKAS, IN HIS OFFICIAL 

CAPACITY AS COMMANDER OF THE CONNECTICUT DEPARTMENT OF 

EMERGENCY SERVICES AND PUBLIC PROTECTION (DESPP), DET.

DEBBIE JENEY, JOHN DOE, IN HIS INDIVIDUAL CAPACITY, JANE DOE, IN 

HER INDIVIDUAL CAPACITY,

Defendants-Appellees.*

On Appeal from the United States District Court 

for the District of Connecticut

ARGUED: OCTOBER 7, 2021

DECIDED: APRIL 26, 2022

* The Clerk of Court is directed to amend the caption as set forth above.
2

Before: JACOBS and MENASHI, Circuit Judges, and CRONAN, 

District Judge.†

Plaintiff-Appellant James P. Cornelio filed a pro se federal 

action in the U.S. District Court for the District of Connecticut against 

the State of Connecticut, Colonel Stavros Mellekas in his official 

capacity as commander of the Connecticut Department of Emergency 

Services and Public Protection, and retired Detective Debbie Jeney in 

her individual capacity, alleging three constitutional claims under 42 

U.S.C. § 1983. Cornelio alleged that those provisions of Connecticut’s 

sex offender registration statute that required him to disclose his 

email address and other internet communication identifiers and 

periodically to verify his residence violated the First Amendment and 

the Ex Post Facto Clause, respectively. Cornelio further alleged that 

Detective Jeney engaged in malicious prosecution in violation of the

Fourth Amendment by seeking an arrest warrant for Cornelio’s 

alleged failure to disclose one of his email addresses.

The district court dismissed all of Cornelio’s claims. With 

respect to the First Amendment claim, the district court held that the 

disclosure requirement burdens protected speech but nonetheless 

survives intermediate scrutiny. In so holding, the district court 

concluded that the disclosure requirement advances important

governmental interests and does not burden substantially more 

speech than necessary to further that interest. The district court 

dismissed Cornelio’s Ex Post Facto Clause claim because the quarterly 

verification requirement was already in place when Cornelio engaged 

in his underlying crimes in 2003. Lastly, the district court dismissed 

† Judge John P. Cronan of the U.S. District Court for the Southern District 

of New York, sitting by designation.
3

Cornelio’s malicious prosecution claim, holding that Detective Jeney

was entitled to qualified immunity. In so holding, the district 

concluded that despite Cornelio’s repeated past use of an 

unregistered email address to communicate with the Sex Offender 

Registry Unit, Detective Jeney had arguable probable cause to seek 

the arrest warrant.

We conclude that, at this preliminary stage, Cornelio has stated 

a plausible First Amendment claim. We therefore reverse the district 

court’s dismissal of that claim and remand for further proceedings. 

We affirm the district court’s judgment with respect to Cornelio’s two 

other claims.

JAMES P. CORNELIO, pro se, New Preston, CT, for PlaintiffAppellant.

ROBERT S. DEARINGTON, Assistant Attorney General 

(Clare Kindall, Solicitor General, on the brief), for William 

Tong, Attorney General of the State of Connecticut, 

Hartford, CT, for Defendants-Appellees.

MENASHI, Circuit Judge:

The State of Connecticut, like other states, has a comprehensive 

sex offender registration law. See Conn. Gen. Stat. § 54-250 et seq. The 

Department of Emergency Services and Public Protection (“DESPP”) 

and the Sex Offender Registry Unit (“SORU”), a unit of the State 

Police within the DESPP, administer the law. Two provisions of the 

sex offender registration law are at issue in this case. The first is a 

disclosure requirement pursuant to which a registered sex offender 
4

must notify the DESPP when he creates a new email address, instant 

messenger address, or other internet communication identifier. The 

second is a residence verification provision, which requires that a sex 

offender verify his residential address every 90 days or on a quarterly 

basis.

Plaintiff-Appellant James P. Cornelio, a convicted sex offender, 

filed a pro se federal action in the U.S. District Court for the District 

of Connecticut against the State of Connecticut, Colonel Stavros 

Mellekas in his official capacity as commander of the DESPP, and 

retired Detective Debbie Jeney—a former detective in the SORU—in 

her individual capacity. Cornelio asserted three claims under 42 

U.S.C. § 1983. First, he alleged that the disclosure requirement

violates the Speech Clause of the First Amendment, applicable to the 

states under the Due Process Clause of the Fourteenth Amendment.

Second, Cornelio alleged that the residence verification provision

violates the Ex Post Facto Clause as applied to him. Third, he alleged 

that Jeney violated the Fourth Amendment by initiating a malicious 

prosecution against him when she sought an arrest warrant for 

Cornelio’s alleged failure to disclose one of his email addresses to the 

SORU.

The district court (Meyer, J.) granted the defendants’ motion to 

dismiss all three claims. The district court dismissed Cornelio’s First 

Amendment claim for failure to state a claim, holding that although 

the disclosure requirement burdens protected speech it survives 

intermediate scrutiny. In so holding, the district court concluded that 

the disclosure requirement advances important governmental

interests and does not burden substantially more speech than 

necessary to further those interests. The district court dismissed 

Cornelio’s Ex Post Facto Clause claim because the residence 
5

verification provision was already in place when Cornelio engaged in 

the underlying crimes in 2003. Finally, the district court dismissed 

Cornelio’s malicious prosecution claim, holding that Jeney is entitled

to qualified immunity. Despite Cornelio’s past use of an unregistered 

email address to communicate with the SORU, the district court 

explained, Jeney had arguable probable cause to seek the arrest 

warrant for Cornelio’s failure to register that email address.

We reverse the district court’s dismissal of Cornelio’s First

Amendment claim. Assuming intermediate scrutiny is the 

appropriate standard of review, we conclude that the disclosure 

requirement plausibly fails intermediate scrutiny and therefore 

Cornelio has stated a First Amendment claim. We affirm the district 

court’s dismissal of Cornelio’s Ex Post Facto Clause claim because the

residence verification provision was enacted before Cornelio 

committed his crimes. We also affirm the district court’s dismissal of 

Cornelio’s malicious prosecution claim because Jeney is entitled to 

qualified immunity. The case is remanded for further proceedings 

consistent with this opinion.

BACKGROUND

I

The requirements of Connecticut’s sex offender registration 

law apply to all persons convicted of criminal offenses against a 

minor, violent and nonviolent sexual offenses, and felonies 

committed for a sexual purpose. See Conn. Gen. Stat. §§ 54-251 to -252.

Cornelio was convicted in 2005 in New York State for one count 

of a criminal sexual act in the second degree, in violation of N.Y. Penal 

Law § 130.45(1), and for ten counts of possessing a sexual 
6

performance by a child, in violation of N.Y. Penal Law § 263.16. The 

underlying conduct occurred in 2003. Because he is now a resident of 

Connecticut, Cornelio is subject to Connecticut’s sex offender 

registration law, see Conn. Gen. Stat. § 54-253, and he challenges two 

provisions of that law.

First, the disclosure requirement mandates that a registered sex 

offender must provide all of his internet communication identifiers to 

the DESPP. As part of his initial registration, a registrant must 

disclose to the Commissioner of the DESPP his “electronic mail 

address, instant message address or other similar Internet 

communication identifier” on “such forms and in such locations as 

the commissioner shall direct.” Id. § 54-251(a).1 The law also imposes 

a continuing obligation to “notify” the Commissioner of the DESPP 

“in writing” if the registrant “establishes or changes an electronic mail 

address, instant message address or other similar Internet 

communication identifier.” Conn. Gen. Stat. § 54-253(b). If a registrant

fails to comply with the disclosure requirement he is “guilty of a class 

D felony” once “such failure continues for five business days.” Id.

§ 54-253(e).

Second, the residence verification provision requires that a 

registrant verify his residential address every 90 days or on a 

quarterly basis. Id. § 54-257(c). Under the provision, the DESPP “shall 

verify the address of each registrant by mailing a nonforwardable 

verification form” to the registrant’s last reported address, and the 

registrant must return the form by mail within ten days. Id. Failing to 

1 Pursuant to Conn. Gen. Stat. § 54-253(a), this requirement applies to 

offenders such as Cornelio who reside in Connecticut but were convicted 

of a sex offense in a jurisdiction outside of Connecticut.
7

return the verification form results in the issuance of an arrest 

warrant. Id. The residence verification provision was adopted as part 

of the original enactment of the sex offender registration law in 1998. 

See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65), § 8(b) (West).

II

This case arises from Cornelio’s arrest for his alleged failure to 

notify the DESPP of his email address. The arrest was executed 

pursuant to an arrest warrant that issued based on an affidavit

submitted by Jeney, who at that time was a detective in the SORU.

After recounting Cornelio’s sex offense convictions in New York, the 

affidavit stated that when Cornelio initially registered in March 2008,

he was advised of the requirement to notify the SORU “in writing of 

any electronic mail address, instant messaging address or similar 

communication identifier that is established, changed, or used” by 

him. App’x 22. The affidavit further stated that when Cornelio first 

registered, he provided a single email address.

The affidavit then described how Cornelio emailed the SORU

in 2010 and multiple times in 2015 using an email address—ending 

with “aol.com”—that was different than the one he originally 

reported. The AOL email address was allegedly not included on the 

verification form that was sent to Cornelio, and Cornelio’s sex 

offender registry file noted that he “has not reported” the AOL email 

address. Id. The affidavit concluded that Cornelio’s failure to provide 

a formal notification to the SORU identifying the AOL email address 

violated the disclosure requirement under § 54-253.

Based on the affidavit, a state court judge issued the arrest 

warrant. The judge concluded that the affidavit provided probable 

cause to believe that Cornelio committed an offense that would justify 
8

issuance of an arrest warrant. Cornelio was arrested in April 2018. 

Shortly after the arrest, the case was dismissed.

III

On August 9, 2018, Cornelio filed a pro se action in the U.S. 

District Court for the District of Connecticut challenging, under 42 

U.S.C. § 1983, the disclosure requirement as a violation of the First 

Amendment, the residence verification provision as a violation of the 

Ex Post Facto Clause, and Jeney’s conduct as a malicious prosecution 

in violation of the Fourth Amendment. Cornelio sought injunctive 

relief against the State of Connecticut and Mellekas to prevent the 

further application to him of the disclosure requirement and the 

residence verification provision. He sought damages from Jeney 

based on the malicious prosecution claim. The defendants moved to 

dismiss Cornelio’s complaint for lack of standing under Federal Rule

of Civil Procedure 12(b)(1) and for failure to state a claim under Rule

12(b)(6).

The district court granted the motion to dismiss under Rule 

12(b)(6). Cornelio v. Connecticut, No. 19-CV-01240, 2020 WL 7043268, 

at *1 (D. Conn. Nov. 30, 2020), as amended (Dec. 9, 2020). The district 

court dismissed Cornelio’s First Amendment claim, holding that 

although the disclosure requirement burdens protected speech it 

nonetheless survives intermediate scrutiny. Id. at *10. The district 

court concluded that the disclosure requirement advances important 

governmental interests unrelated to the suppression of speech and 

does not burden substantially more speech than necessary to further 

those interests. Id. The district court dismissed Cornelio’s Ex Post 

Facto Clause claim because the residence verification provision was 

already in place when Cornelio committed his crimes in 2003. Id. at 
9

*6. The district court also dismissed Cornelio’s malicious prosecution 

claim, holding that Jeney was entitled to qualified immunity. Id. at *5. 

Even though Cornelio had used the AOL email address to 

communicate with the SORU, the district court concluded that Jeney

had arguable probable cause to seek the arrest warrant for the failure 

formally to report it. Id.

STANDARD OF REVIEW

“We review a district court’s grant of a motion to dismiss de 

novo, accepting as true all factual claims in the complaint and drawing 

all reasonable inferences in the plaintiff’s favor.” Henry v. County of 

Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks 

omitted). A court’s function on a Rule 12(b)(6) motion is “not to weigh 

the evidence that might be presented at a trial but merely to determine 

whether the complaint itself is legally sufficient.” Festa v. Loc. 3 Int’l 

Brotherhood of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). 

Consequently, a complaint will survive a motion to dismiss under 

Rule 12(b)(6) if it alleges facts that, taken as true, establish plausible 

grounds to sustain a plaintiff’s claim for relief. See Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009); Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018).

DISCUSSION

I

We begin with whether Cornelio has stated a First Amendment

claim. To answer that question, we proceed in three steps. First, we 

conclude that the disclosure requirement burdens protected speech 

and therefore must survive heightened scrutiny. Assuming that 

intermediate scrutiny is the appropriate standard, we then explain

what that scrutiny requires. Finally, based on the allegations of the 

complaint, we conclude that the disclosure requirement plausibly 
10

fails intermediate scrutiny. Accordingly, the district court erred in 

dismissing Cornelio’s First Amendment claim under Rule 12(b)(6).

A

In evaluating Cornelio’s First Amendment claim, we must 

determine whether the disclosure requirement burdens protected 

speech and therefore triggers heightened scrutiny. We conclude it 

does.

First, the disclosure requirement burdens a registrant’s “ability 

and willingness to speak on the Internet.” Doe v. Harris, 772 F.3d 563, 

572 (9th Cir. 2014). The disclosure requirement obliges a registrant to

notify the DESPP each time he creates a new “electronic mail address, 

instant message address or other similar Internet communication 

identifier.” Conn. Gen. Stat. § 54-253(b). Thus, whenever a registrant 

seeks to use a new identifier to communicate online, he must report 

that identifier in a timely fashion. In addition to the administrative 

burden that § 54-253(b) imposes on online communications, any error 

in compliance can result in a class D felony punishable by up to five 

years in prison and a $5,000 fine. Id. §§ 54-253(e), 53a-35a(8), 53a-41.

In this way, the disclosure requirement plausibly deters registrants 

from engaging in protected online speech. See Zieper v. Metzinger, 474 

F.3d 60, 65 (2d Cir. 2007) (“It is well-established that First Amendment 

rights may be violated by the chilling effect of governmental action 

that falls short of a direct prohibition against speech.”) (internal 

quotation marks omitted).

Second, the disclosure requirement applies specifically to 

speakers engaged in online communication. The disclosure 

requirement targets “conduct with a significant expressive 

element”—the use of communications identifiers—and therefore 
11

“has the inevitable effect of singling out those engaged in expressive 

activity.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986). The 

disclosure requirement imposes its burdens precisely when a 

registrant decides to engage in online speech using a communication 

identifier. That implicates the First Amendment, even if it is possible 

to distinguish between the identifier and the speech itself. See 

Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 

592 (1983) (“[E]ven regulations aimed at proper governmental 

concerns can restrict unduly the exercise of rights protected by the 

First Amendment.”). When a law imposes “special obligations” or 

“special burdens” on those engaged in speech, “some measure of 

heightened First Amendment scrutiny is demanded.” Turner Broad. 

Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 641 (1994).

Third, the disclosure requirement prevents a registrant from 

speaking anonymously. A speaker’s decision “to remain anonymous

... is an aspect of the freedom of speech protected by the First 

Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 

(1995). “Under our Constitution,” anonymous speech is “an 

honorable tradition of advocacy and of dissent.” Id. at 357. It 

“exemplifies the purpose behind the Bill of Rights, and of the First 

Amendment in particular: to protect unpopular individuals from 

retaliation—and their ideas from suppression.” Id.; see also Talley v. 

California, 362 U.S. 60, 64 (1960) (“Anonymous pamphlets, leaflets, 

brochures and even books have played an important role in the 

progress of mankind.”). The First Amendment protects this interest 

in anonymous speech as much on the internet as in other fora. 

“Although the Internet is the latest platform for anonymous speech, 

online speech stands on the same footing as other speech—there is ‘no 

basis for qualifying the level of First Amendment scrutiny that should 
12

be applied’ to online speech.” In re Anonymous Online Speakers, 661 

F.3d 1168, 1173 (9th Cir. 2011) (quoting Reno v. ACLU, 521 U.S. 844, 

870 (1997)). The disclosure requirement does not avoid First 

Amendment scrutiny because the identifiers are disclosed to the 

government rather than to the general public. Cf. Ams. for Prosperity 

Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021) (“Our cases have said that 

disclosure requirements can chill association even if there is no 

disclosure to the general public.”) (internal quotation marks and 

alterations omitted).2 It is “offensive ... to the values protected by the 

First Amendment” that “a citizen must first inform the government 

of her desire to speak.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v. 

Village of Stratton, 536 U.S. 150, 165-66 (2002).

The Supreme Court has subjected disclosure requirements to 

heightened scrutiny when such requirements might deter First 

Amendment protected activity. See Ams. for Prosperity, 141 S. Ct. at 

2388 (“[I]dentification and fear of reprisal might deter perfectly 

peaceful discussions of public matters of importance.”) (quoting 

Talley, 362 U.S. at 65). “The risk of a chilling effect” on association or 

speech “is enough, ‘because First Amendment freedoms need 

breathing space to survive.’” Id. at 2389 (alteration omitted) (quoting 

NAACP v. Button, 371 U.S. 415, 433 (1963)). Because the disclosure 

requirement of § 54-253(b) risks chilling online speech, anonymous 

and otherwise, it is subject to heightened scrutiny under the First 

Amendment.

2 Moreover, the statute appears to allow disclosure beyond government 

officials. See infra section I.D.2.
13

B

The district court determined that the disclosure requirement 

“is not subject to strict scrutiny but instead to intermediate scrutiny” 

because the burden on speech “is content-neutral and not 

impermissibly speaker-based.” Cornelio, 2020 WL 7043268, at *8; see 

Turner I, 512 U.S. at 662 (“[T]he intermediate level of scrutiny [is] 

applicable to content-neutral restrictions that impose an incidental 

burden on speech.”). We need not decide in this appeal whether strict 

or intermediate scrutiny properly applies. Cornelio does not contest 

the district court’s application of intermediate scrutiny and, because 

he states a plausible claim even under intermediate scrutiny, the level 

of scrutiny would not alter our decision. See McCutcheon v. FEC, 572 

U.S. 185, 199 (2014) (plurality opinion) (explaining that because a 

statute “fail[s] even under the [less demanding] test,” the Court “need 

not parse the differences between the two standards in this case”); 

Packingham v. North Carolina, 137 S. Ct. 1730, 1739 (2017) (Alito, J., 

concurring in the judgment) (“Like the Court, I find it unnecessary to 

resolve this dispute because the law in question cannot satisfy the 

standard applicable to a content-neutral regulation of the place where 

speech may occur.”). We proceed on the assumption that 

intermediate scrutiny is the appropriate standard.

C

The burden of demonstrating that the disclosure requirement 

satisfies intermediate scrutiny falls on the government. Edenfield v. 

Fane, 507 U.S. 761, 770 (1993) (“It is well established that the party 

seeking to uphold a restriction on ... speech carries the burden of 

justifying it.”) (internal quotation marks and alteration omitted). To 

carry that burden, the government must show that the challenged law
14

“(1) ‘advances important governmental interests unrelated to the 

suppression of free speech’ and (2) ‘does not burden substantially 

more speech than necessary to further those interests.’” Time Warner 

Cable Inc. v. FCC, 729 F.3d 137, 160 (2d Cir. 2013) (quoting Turner 

Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 189 (1997)).

To establish that the law advances important governmental 

interests, the government “must do more than simply posit the 

existence of the disease sought to be cured. It must demonstrate that 

the recited harms are real, not merely conjectural, and that the 

regulation will in fact alleviate these harms in a direct and material 

way.” Turner I, 512 U.S. at 664 (internal quotation marks and citation 

omitted); see also City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 

488, 496 (1986) (“This Court ‘may not simply assume that the 

ordinance will always advance the asserted state interests sufficiently 

to justify its abridgment of expressive activity.’”) (quoting Members of 

City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n.22 (1984)). 

When “trenching on first amendment interests, even incidentally, the 

government must be able to adduce either empirical support or at 

least sound reasoning on behalf of its measures.” Turner I, 512 U.S. at 

666 (quoting Century Commc’ns Corp. v. FCC, 835 F.2d 292, 304 (D.C. 

Cir. 1987)). Therefore, the government cannot rely on “speculation or 

conjecture.” Edenfield, 507 U.S. at 770. 

To establish that the law does not burden substantially more 

speech than necessary, the government must demonstrate that the 

law is “narrowly tailored” to serve the relevant interest. Ward v. Rock 

Against Racism, 491 U.S. 781, 796 (1989); see also Bd. of Trs. v. Fox, 492 

U.S. 469, 480 (1989) (“[T]he State ... must affirmatively establish the

reasonable fit we require.”). Intermediate scrutiny does not demand 

that the law follow the least restrictive means possible. See Ward, 491 
15

U.S. at 798. But “the government must demonstrate that alternative 

measures that burden substantially less speech would fail to achieve 

the government’s interests, not simply that the chosen route is easier.”

McCullen v. Coakley, 573 U.S. 464, 495 (2014).

To satisfy intermediate scrutiny, the government must identify 

evidence—or, at least, provide “sound reasoning” that “draw[s] 

reasonable inferences based on substantial evidence”—that these two 

requirements are met. Turner I, 512 U.S. at 666; see also McCullen, 573

U.S. at 495; IMS Health, Inc. v. Sorrell, 630 F.3d 263, 279 (2d Cir. 2010)

(“The burden is on the government to show that it ‘carefully 

calculated’ costs and benefits of burdening speech.”) (quoting Greater 

New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 188 (1999)), aff’d, 

564 U.S. 552.3 For that reason, “the norm is to wait until the summary 

judgment stage of the litigation to address the ultimate question of 

whether the ordinance should stand.” Graff v. City of Chicago, 9 F.3d 

1309, 1322 (7th Cir. 1993); see also FW/PBS, Inc. v. City of Dallas, 493 

U.S. 215, 221 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 

41, 45 (1986); Taxpayers for Vincent, 466 U.S. at 793; Young v. Am. Mini 

Theatres, Inc., 427 U.S. 50, 55 (1976).

The dismissal of a claim challenging a law that abridges 

protected speech “will rarely, if ever, be appropriate at the pleading 

stage. Instead, factual development will likely be indispensable to the 

assessment of whether [such a law] is constitutionally permissible.” 

Bruni v. City of Pittsburgh, 824 F.3d 353, 357 (3d Cir. 2016); see also 

Preferred Commc’ns, 476 U.S. at 495 (observing that it was not 

3 Challengers also may introduce evidence showing that the requirements 

are not met. See, e.g., City of Los Angeles v. Alameda Books, 535 U.S. 425, 438-

39 (2002).
16

“desirable to express any more detailed views on the proper 

resolution of the First Amendment question ... without a fuller 

development of the disputed issues in the case”); Council of 

Greenburgh Civic Ass’ns v. U.S. Postal Serv., 586 F.2d 935, 936-37 (2d 

Cir. 1978) (“Careful balancing of the need for the statute against the 

statute’s constriction of first amendment rights is called for. Full 

development of the facts is essential for the court to strike this 

balance.”) (citations omitted).4 This is not to say that resolving a First 

Amendment challenge will never be appropriate on a motion to 

dismiss. But we conclude it was not appropriate here.

D

As noted, to survive intermediate scrutiny, the government 

must show that the challenged law advances important governmental 

interests and is narrowly tailored to those interests. The government 

has not made that showing at this stage. Because the disclosure 

requirement plausibly fails intermediate scrutiny, Cornelio has stated 

a claim for violation of the First Amendment. 

4 Some district courts considering claims such as Cornelio’s challenging 

state sex offender registration requirements have reached the same 

conclusion and declined to dismiss the claims in the absence of a developed 

record. See, e.g., Doe v. Haslam, No. 16-CV-02862, 2017 WL 5187117, at *18 

(M.D. Tenn. Nov. 9, 2017) (“At this stage, the Court can only speculate as to 

the real-world effect of the Act on internet use, as well as the efficacy of

alternative requirements in furthering the government’s significant 

interests.”); Doe v. Lee, No. 21-CV-28, 2021 WL 1907813, at *17 (M.D. Tenn. 

May 12, 2021); Doe v. Gwyn, No. 17-CV-504, 2018 WL 1957788, at *10 (E.D. 

Tenn. Apr. 25, 2018).
17

1

The government argues that the disclosure requirement 

advances important governmental interests in deterring registrants 

from using the internet (1) to “recruit, groom, entice, or otherwise 

engage in communications with potential or actual sex abuse victims” 

and (2) to “engage in the distribution or exchange of prohibited sexual 

images.” Appellees’ Br. 33. Assuming that these interests in 

deterrence are important and legitimate as well as genuine,5 nothing 

in the record demonstrates that the disclosure requirement advances 

these interests in a “direct and material way,” Turner I, 512 U.S. at 664, 

or provides more than “ineffective or remote support” for these

objectives, Edenfield, 507 U.S. at 770.

With no evidence demonstrating that the disclosure 

requirement materially provides deterrence, the government relies on 

two speculative propositions. First, a registered sex offender is less 

likely to engage in sex-based crimes on the internet if he knows that 

law enforcement possesses his email address and other internet 

communication identifiers. Second, the disclosure requirement 

provides law enforcement with a database that can be used to 

determine the identity of someone engaged in online sex offenses. The 

government, however, has not substantiated the deterrent effect and 

5 The government’s asserted interests must be “genuine and not merely 

post-hoc rationalizations.” Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 265 (2d 

Cir. 2014); see Watchtower, 536 U.S. at 170 (Breyer, J., concurring) (noting that

an asserted interest in “crime prevention” was “not a strong one” because,

“[f]or one thing, there is no indication that the legislative body that passed 

the ordinance considered this justification”). On remand, the district court 

should inquire into the actual purpose of the law.
18

has not indicated whether the database has ever even been used.6

Perhaps the government’s speculation may turn out to be justified, 

but at this stage we cannot say that the government “has drawn 

reasonable inferences based on substantial evidence,” Turner I, 512 

U.S. at 666, and “accepting speculation in place of record evidence[] 

does not amount to intermediate scrutiny,” United States v. Perez, 6 

F.4th 448, 460 (2d Cir. 2021) (Menashi, J., concurring in the judgment).

A developed record may undermine the government’s 

assertions. For example, in reviewing Michigan’s sex offender 

registration law, the Sixth Circuit observed that “evidence in the 

record” supported “a finding that offense-based public registration 

has, at best, no impact on recidivism.” Does #1-5 v. Snyder, 834 F.3d 

696, 704 (6th Cir. 2016); see Doe v. Prosecutor, 705 F.3d 694, 701 (7th Cir. 

2013) (questioning whether, once sex offenders “are willing to break 

the existing anti-solicitation law,” a law prohibiting the use of social 

networking would “provide any more deterrence”). 7 The 

government also may not be able to show that the database of internet 

identifiers has actually assisted law enforcement efforts to arrest 

6 See Oral Argument Audio Recording at 9:51 (government’s counsel 

acknowledging that the record does not demonstrate that the disclosure 

requirement has a deterrent effect).

7 Courts have made similar observations when considering other 

registration requirements. See Watchtower, 536 U.S. at 170 (Breyer, J., 

concurring) (suggesting it is “intuitively implausible to think that [a 

registration] ordinance serves any governmental interest in preventing ... 

crimes”); Serv. Emps. Int’l Union, Loc. 3 v. Municipality of Mt. Lebanon, 446 

F.3d 419, 428 (3d Cir. 2006) (“[I]f [perpetrators] are not deterred by the 

substantial criminal penalties which exist for burglary and violent crime, it 

is not reasonable to expect that they will alter their behavior because of a 

$300 fine for failing to register.”).
19

online predators. There would be a “dramatic mismatch” between the 

asserted interest and “the disclosure regime that [the government] 

has implemented in service of that end” if “there was not a single, 

concrete instance” in which the database “did anything to advance 

the [government’s] investigative, regulatory or enforcement efforts.” 

Ams. for Prosperity, 141 S. Ct. at 2386 (internal quotation marks 

omitted).

The government may be able to identify some empirical basis 

for believing that the disclosure requirement materially advances an 

important governmental interest. At this stage, however, Cornelio has 

stated a plausible claim.

2

The government contends that the disclosure requirement does 

not burden substantially more speech than necessary to further its 

deterrence interests. But, even assuming that the disclosure 

requirement materially advances those interests, the disclosure 

requirement plausibly imposes an extra burden that unnecessarily 

chills protected speech. 

The government cannot normally justify a speech restriction by 

reference to its interest in deterring crime. “The normal method of 

deterring unlawful conduct is to impose an appropriate punishment 

on the person who engages in it” rather than by regulating speech. 

Bartnicki v. Vopper, 532 U.S. 514, 529 (2001); see Kingsley Int'l Pictures 

Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free 

men, the deterrents ordinarily to be applied to prevent crime are 

education and punishment for violations of the law, not abridgment 

of the rights of free speech.”) (quoting Whitney v. California, 274 U.S. 

357, 378 (1927) (Brandeis, J., concurring)); see also Packingham, 137 
20

S. Ct. at 1737 (majority opinion) (explaining that “narrowly tailored 

laws that prohibit a sex offender from engaging in conduct that often 

presages a sexual crime, like contacting a minor or using a website to 

gather information about a minor ... must be the State’s first resort to 

ward off the serious harm that sexual crimes inflict”). To show that 

the disclosure requirement is narrowly tailored, the government must 

explain why criminal sanctions that do not implicate the First 

Amendment would not provide adequate deterrence. Cf. Safelite, 764 

F.3d at 266 (explaining that intermediate scrutiny is not satisfied 

when an “alternative proposal[] ... would have served the same 

governmental interests, but would have been less burdensome on [the 

plaintiff’s] speech rights”). It has not done so.8

Even if the government had, Cornelio argues, the breadth of the 

disclosure requirement provides another reason to doubt that it is 

narrowly tailored. Registered sex offenders must disclose their 

“electronic mail address, instant message address or other similar 

Internet communication identifier.” Conn. Gen. Stat. § 54-253(b). 

Cornelio argues that the catch-all phrase “Internet communication 

identifier” broadens the disclosure requirement to internet platforms 

with “any information input,” such as “Pacer and bank accounts.”

Appellant’s Br. 16. In response, the government provides a narrower 

construction: the phrase “Internet communication identifier” limits 

8 At oral argument, counsel for the government said that the laws 

criminalizing illicit online conduct “should serve as deterrent, but clearly 

there are individuals out there who, despite the criminal laws being in 

place, are still recruiting and grooming individuals online, so it’s important 

for the government to have this additional deterrent.” Oral Argument 

Audio Recording at 9:19. That sidesteps the question of whether sanctions 

that do not implicate speech could provide adequate deterrence.
21

the disclosure requirement to platforms that can be used to 

communicate with others online. Appellees’ Br. 36-37. In other words, 

the disclosure requirement applies to internet platforms “that ... 

allow back-and-forth comments between users.” Packingham, 137 

S. Ct. at 1741 (Alito, J., concurring in the judgment).

At the motion to dismiss stage, we cannot say that Cornelio 

does not plausibly allege that the disclosure requirement is 

overbroad. Many platforms that allow communications between 

users do not reasonably present a vehicle by which a sex offender can 

communicate with minors or exchange prohibited sexual materials.9

“Broad prophylactic rules in the area of free expression are suspect. 

Precision of regulation must be the touchstone in an area so closely 

touching our most precious freedoms.” Edenfield, 507 U.S. at 777

(quoting Button, 371 U.S. at 438). Perhaps the statute may be 

construed more narrowly than the government suggests on appeal. 

But we “need not decide the precise scope of the statute” to conclude 

9 See White v. Baker, 696 F. Supp. 2d 1289, 1310 (N.D. Ga. 2010) (“In the 

Court’s experience, these communications are those that occur privately in 

direct email transmissions, usually using a pseudonym, and in instant 

messages. They generally do not occur in communications that are posted 

publicly on sites dedicated to discussion of public, political, and social 

issues.”); see also Packingham, 137 S. Ct. at 1741 (Alito, J., concurring in the 

judgment) (“The fatal problem for [a law] is that its wide sweep precludes 

access to a large number of websites that are most unlikely to facilitate the 

commission of a sex crime against a child.”); Simon & Schuster, Inc. v. 

Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 122 n.* (1991) (“A 

regulation is not narrowly tailored—even under the more lenient tailoring 

standards applied in Ward and Renton—where ... a substantial portion of 

the burden on speech does not serve to advance the State’s content-neutral 

goals.”) (internal quotation marks and alteration omitted).
22

that Cornelio states a claim. Packingham, 137 S. Ct. at 1737 (majority 

opinion).

The disclosure requirement also plausibly appears to be 

overbroad because it applies to all persons subject to the sex offender 

registration law, including registrants who have never engaged in the 

sort of illicit online activity that the government seeks to deter. See

Conn. Gen. Stat. §§ 54-251 to -252. If the disclosure requirement 

applies to a broad class beyond those who are likely to engage in the 

conduct the government seeks to deter, it would be “significantly 

overinclusive” rather than narrowly tailored. Simon & Schuster, 502 

U.S. at 121. The government has not explained why the disclosure 

requirement cannot be more narrowly targeted. 10 As other courts 

have noted, “[a] regulatory scheme designed to further the state’s 

legitimate interest in protecting children from communication 

enticing them into illegal sexual activity should consider how and 

where on the internet such communication occurs.” White, 696 

F. Supp. 2d at 1309. To show narrow tailoring, the government must 

demonstrate that a less burdensome alternative—requiring 

disclosure only for those online platforms that facilitate solicitation or 

the exchange of illicit material, for example, or only for those persons 

likely to engage in such conduct—would not advance the asserted 

governmental interests.

The government argues that the disclosure requirement is 

narrowly tailored because, under the registration statute, the DESPP

10 The government acknowledges that it lacks information about the 

proportion of registrants who have engaged in internet-related conduct and 

therefore might be likely to engage in such conduct again. See Oral 

Argument Audio Recording at 15:38.
23

may share a registrant’s internet communication identifiers only with

“law enforcement officials” and only for the “purpose of investigating 

potential crimes.” Appellees’ Br. 35. As a result, a registrant can 

“participate in anonymous speech online” as long as he does not 

engage in unlawful activity that could “engender a law enforcement 

investigation.” Id. This argument does not answer the narrow 

tailoring inquiry, which focuses on “the extent to which the burdens 

are unnecessary.” Ams. for Prosperity, 141 S. Ct. at 2385. It helps the 

government’s case if the disclosure requirement does not compound 

the burden on speech by releasing a registrant’s identifiers to the 

public. But the government must still justify the burden that exists. 

“There is no de minimis exception for a speech restriction that lacks 

sufficient tailoring or justification.” Lorillard Tobacco Co. v. Reilly, 533 

U.S. 525, 567 (2001).

To the extent the government argues that a required disclosure 

to the government rather than to the public will necessarily survive 

intermediate scrutiny, it is mistaken. A disclosure requirement may 

violate the First Amendment “even if there is no disclosure to the 

general public.” Ams. for Prosperity, 141 S. Ct. at 2388 (alterations 

omitted) (quoting Shelton v. Tucker, 364 U.S. 479, 486 (1960)). 

“[A]ssurances of confidentiality may reduce the burden of 

disclosure” but “do not eliminate it.” Id.

Even putting that aside, moreover, the government’s insistence 

that disclosure is limited to law enforcement personnel does not 

appear to be consistent with the statutory text. The statute 

contemplates sharing the identifiers with third parties when it 

authorizes the DESPP to “adopt regulations ... to specify the 

circumstances under which and the persons to whom such identifiers 

may be released including, but not limited to, providers of electronic 
24

communication service or remote computing service ... and operators 

of Internet web sites.” Conn. Gen. Stat. § 54-258(a)(5). A separate 

provision that addresses “the identity of any victim of a crime 

committed by a registrant” expressly limits disclosure to 

“government agencies.” Id. § 54-258(a)(3). The disclosure requirement 

does not contain such a limitation for internet identifiers. 

The text also provides reason to doubt that the identifiers may 

be released only for “investigating potential crimes.” Appellees’ Br. 

35. The statute allows disclosure not only for “law enforcement” but 

also for “security purposes.” Conn. Gen. Stat. § 54-258(a)(5). This 

language could encompass not only the investigation of crimes that 

have occurred but also the prevention of conduct deemed to be 

unsafe. See, e.g., White, 696 F. Supp. 2d at 1310 (recognizing that a 

similar phrase could mean the “investigation of suspected or 

identified criminal conduct,” “the development of investigative 

leads,” or “any purpose determined appropriate by law enforcement 

personnel to prevent criminal conduct”). For this reason, the statutory 

phrase “law enforcement and security purposes” may not be “readily 

susceptible” to a limiting construction that would confine its 

application to the investigation of past crimes. Reno, 521 U.S. at 884.11

11 As a result, we think that Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010), 

is inapposite to this case. In Shurtleff, the Tenth Circuit upheld Utah’s sex 

offender registration law against a First Amendment challenge. Id. at 1223-

26. The Utah law required sex offenders to register their “internet 

identifiers” with the state. Id. This information was not to be “made 

available” on the registration website, but it could be “share[d] ... to assist 

in investigating kidnapping and sex-related crimes.” Utah Code § 77-27-

21.5(2) (West 2010) (repealed 2012). The Tenth Circuit held that the 

“broader statutory context, as well as the limited law-enforcement purposes

for which internet identifiers may be ‘shared’” meant that the statute was 
25

In sum, the disclosure requirement plausibly fails intermediate 

scrutiny because it may not materially advance the asserted interest 

in deterrence and that interest may be achieved through a more 

narrowly tailored alternative. 

3

The district court purported to apply intermediate scrutiny in 

this case, but its analysis more closely resembled rational basis

review. The government moved to dismiss Cornelio’s First 

Amendment claim for lack of standing under Rule 12(b)(1) on the 

ground that Cornelio failed to allege a concrete injury. The 

government did not attempt to defend the disclosure requirement

under intermediate scrutiny, and therefore the government did not 

assert that the disclosure requirement advances any governmental

interest or that it was narrowly tailored to that interest. Rather, the 

district court supplied the reasons for why it thought the disclosure 

requirement survived intermediate scrutiny. But “[u]nlike rationalbasis review,” intermediate scrutiny does not permit a court to 

“supplant the precise interests put forward by the State with other 

suppositions.” Edenfield, 507 U.S. at 768. It is the government’s burden 

“readily susceptible of a much narrower construction” than advanced by 

the plaintiff. Shurtleff, 628 F.3d at 1224. The court read the statute “as 

permitting sharing only among law-enforcement agencies ... and only for 

the recited law-enforcement purposes.” Id. at 1225. The court thought the 

language “to assist in investigating kidnapping and sex-related crimes”

was in turn also “readily susceptible” to a narrowing construction, “only 

allowing state actors to look beyond the anonymity surrounding a 

username in the course of an investigation after a new crime had been 

committed.” Id. The Connecticut statute is materially different. Facially, the 

statute does not permit sharing “only among law-enforcement agencies” or 

only once a crime has been committed. 
26

to demonstrate that the challenged law furthers important 

governmental interests and is narrowly tailored. If the government 

fails to make that showing, it cannot prevail. The district court cannot 

supply a justification that the government fails to provide. See 

Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1314 (11th Cir. 2017) (en 

banc) (“Under heightened scrutiny ..., a court may not come up with 

hypothetical interests and rationales (or discover new evidence) that 

might support legislation that restricts speech.”).

The district court’s approach conflicts with the mandate that 

intermediate scrutiny must remain “sufficiently skeptical and 

probing” of the government’s arguments “to provide the rigorous 

protection that constitutional rights deserve.” Ramos v. Town of 

Vernon, 353 F.3d 171, 181 (2d Cir. 2003). Once it is apparent that 

heightened scrutiny applies, the government cannot be excused from 

the obligation to identify evidence that supports its restriction of a 

constitutional right. Turner I, 512 U.S. at 666; Craig v. Boren, 429 U.S. 

190, 204 (1976) (requiring a “showing” that the government’s policy 

“represents a legitimate, accurate” route to its end); see also United 

States v. Virginia, 518 U.S. 515, 541-44 (1996) (evaluating such a 

showing). When a court “simply accepts the government’s 

assertions,” let alone when it excuses the government from even 

making assertions, “the court undermines the protections of the 

[First] Amendment ... by watering down the intermediate scrutiny 

the court purportedly applies to the challenged restriction into a form 

of rational basis review.” Perez, 6 F.4th at 457-59 (Menashi, J., 

concurring in the judgment).
27

II

We next address Cornelio’s claim that the residence verification 

provision, as applied to him, violates the Ex Post Facto Clause.

Article I of the Constitution provides that “[n]o State shall ... pass any

... ex post facto Law.” U.S. Const., art. I, § 10, cl. 1. The Ex Post Facto 

Clause forbids, among other things, “legislative action that 

retroactively ... makes more burdensome the punishment for a crime, 

after its commission.” Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997) 

(quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)); see also Calder v. 

Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (noting that the Ex Post Facto 

Clause prohibits “[e]very law that changes the punishment, and 

inflicts a greater punishment, than the law annexed to the crime, 

when committed”). A statute violates the Ex Post Facto Clause if it 

“increase[s] the punishment for a crime after it is committed.” Doe v. 

Cuomo, 755 F.3d 105, 110 (2d Cir. 2014).

Cornelio argues that the residence verification provision is 

punitive. Yet his claim fails for the simple reason that the residence 

verification provision was in place well before Cornelio committed 

his crimes in 2003. See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65)

§ 8(b) (West). Because the residence verification provision has not 

been applied to Cornelio retroactively, the Ex Post Facto Clause is not 

implicated. See Weaver v. Graham, 450 U.S. 24, 30-31 (1981). We 

therefore affirm the district court’s dismissal of Cornelio’s Ex Post 

Facto Clause claim.12

12 The district court also held that, to the extent Cornelio challenged the 

disclosure requirement under the Ex Post Facto Clause, that claim fails too. 

Cornelio abandoned any such claim on appeal, so we do not reach the issue 

of whether the district court properly dismissed the claim. See United States 
28

III

Finally, we address Cornelio’s claim for malicious prosecution

under the Fourth Amendment against Jeney. The district court 

concluded that this claim failed because Jeney is entitled to qualified 

immunity. We agree. 

To state a § 1983 malicious prosecution claim a plaintiff “must 

show a violation of his rights under the Fourth Amendment and must 

establish the elements of a malicious prosecution claim under state 

law.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 

2010) (citations omitted); see also Manuel v. City of Joliet, 137 S. Ct. 911, 

920 (2017) (“In defining the contours and prerequisites of a § 1983 

claim, ... courts are to look first to the common law of torts.”). Under 

Connecticut law, a malicious prosecution claim requires proof that 

“(1) the defendant initiated or procured the institution of criminal 

proceedings against the plaintiff; (2) the criminal proceedings have 

terminated in favor of the plaintiff; (3) the defendant acted without 

probable cause; and (4) the defendant acted with malice, primarily for 

a purpose other than that of bringing an offender to justice.” Spak v. 

Phillips, 857 F.3d 458, 461 n.1 (2d Cir. 2017) (quoting Brooks v. Sweeney, 

9 A.3d 347, 357 (Conn. 2010)). 

The existence of probable cause is a complete defense to a 

malicious prosecution claim. See Frost v. N.Y.C. Police Dep’t, 980 F.3d 

231, 242-43 (2d Cir. 2020). But even when probable cause is lacking, a 

police officer is entitled to qualified immunity if “(1) her conduct does 

not violate clearly established statutory or constitutional rights of 

v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (“It is well established that an 

argument not raised on appeal is deemed abandoned.”) (internal quotation 

marks omitted).
29

which a reasonable person would have known, or (2) it was 

objectively reasonable for her to believe that her actions were lawful 

at the time of the challenged act.” Betts v. Shearman, 751 F.3d 78, 82-83 

(2d Cir. 2014) (internal quotation marks and alterations omitted). In 

the context of a malicious prosecution claim, an officer’s decision to 

initiate a prosecution “is objectively reasonable ... if officers of 

reasonable competence could disagree on whether the probable cause 

test was met.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)

(internal quotation marks omitted); see also Dufort v. City of New York, 

874 F.3d 338, 354 (2d Cir. 2017); Figueroa v. Mazza, 825 F.3d 89, 100 (2d 

Cir. 2016).

In evaluating qualified immunity, “the issuance of a warrant by 

a neutral magistrate, which depends on a finding of probable cause, 

creates a presumption that it was objectively reasonable for the 

officer[] to believe that there was probable cause.” Golino v. City of 

New Haven, 950 F.2d 864, 870 (2d Cir. 1991). This presumption may be 

overcome by showing that the warrant was based on misleading 

information or an affidavit with omissions that were necessary to a 

finding of probable cause. Id. at 870-71.

Jeney sought an arrest warrant based on Cornelio’s alleged 

violation of the disclosure requirement. We have already concluded 

that Cornelio has stated a plausible claim that the disclosure 

requirement violates the First Amendment and that further 

proceedings on that claim are warranted. Even if Cornelio were 

ultimately to succeed on that claim, it would not affect Jeney’s

entitlement to qualified immunity. Whether the disclosure 

requirement violates the First Amendment was not “clearly 

established” at the time Jeney initiated the prosecution against 
30

Cornelio—as it must have been to foreclose a defense of qualified 

immunity. Travella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010). 

We agree with the district court that Jeney had arguable 

probable cause to initiate the prosecution. Cornelio’s arrest was made

pursuant to a warrant issued by a state court judge, who found that 

the circumstances described in Jeney’s affidavit provided probable 

cause to believe that Cornelio had violated the disclosure 

requirement. Because a “neutral magistrate” found that there was 

probable cause, it was presumptively “objectively reasonable” for 

Jeney to believe that such cause existed. Golino, 950 F.2d at 870. 

Cornelio cannot overcome this presumption. He argues that the 

state court judge was not acting as a neutral magistrate. The same 

judge had dismissed a prior charge based on Cornelio’s alleged 

failure to comply with the residence verification provision. Cornelio 

suggests that the judge “turned” a “blind eye” to Jeney’s malicious 

intent because, when Cornelio had appeared to urge the dismissal of 

the earlier charge, Cornelio was “not as repentant or humbled as those 

who uphold the law might have expected.” Appellant’s Br. 11. That 

may or may not be so. But we presume that a judicial officer 

impartially executes his responsibilities, see MacDraw, Inc. v. CIT Grp. 

Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) (“Judges ... must be 

presumed, absent more, to be impartial.”), and we require more than 

an alleged possible resentment to conclude otherwise.

Cornelio further argues that Jeney lacked arguable probable 

cause because Cornelio had complied with the disclosure 

requirement. He had used the AOL email address to communicate 

with the SORU, and he had displayed the AOL email address on a 

personal website that he registered with the SORU. To Cornelio, these 
31

circumstances show that he was not concealing the AOL email 

address from the SORU and that he satisfied his obligation to disclose 

the AOL email address under § 54-253(b). That is entirely plausible, 

and perhaps this argument may have led to the dismissal of the 

charge against Cornelio. But we agree with the district court that an 

objectively reasonable police officer could have understood the 

disclosure requirement to mandate that Cornelio report his email 

address in a direct and formal way. The statute requires a registrant 

to “notify the Commissioner of Emergency Services and Public 

Protection in writing of [a new] identifier,” Conn. Gen. Stat. § 54-

253(b) (emphasis added), as part of the obligation to “register” any 

internet identifier “with the Commissioner of Emergency Services 

and Public Protection, on such forms and in such locations as said 

commissioner shall direct,” id. § 54-251(a). These provisions at least 

arguably required Cornelio to include the AOL email address on the 

quarterly verification forms he received or to provide the SORU with 

an official notice when he created the new email address. Under this 

interpretation, Cornelio’s emails to the SORU did not satisfy the 

disclosure requirement because those emails disclosed Cornelio’s 

email address only implicitly while addressing other matters.13

Though we conclude that Jeney had arguable probable cause 

and therefore qualified immunity for her actions in this case, we note 

that Cornelio plausibly alleges that the prosecution was motivated by 

malice. The underlying arrest in this case is not the first time Cornelio 

was arrested for a trivial reporting infraction. See Cornelio, 2020 WL 

13 Before the district court, Cornelio argued that false statements in Jeney’s 

affidavit negate the finding of probable cause. Cornelio appears to abandon 

this argument on appeal, however, so we do not consider it. See City of 

Syracuse v. Onondaga County, 464 F.3d 297, 308 (2d Cir. 2006).
32

7043268, at *5-6. The history between Cornelio and the SORU suggests 

a possible motivation to harass him. See Spak, 857 F.3d at 461 n.1; see 

also Owens v. Downey, 150 F. Supp. 3d 1008, 1028 (S.D. Ind. 2015)

(inferring malice from a “history of animosity” toward the plaintiff). 

Nevertheless, an officer cannot be liable for a vexatious motivation as 

long as she acts with arguable probable cause.

CONCLUSION

We reverse the district court’s dismissal of Cornelio’s First 

Amendment claim and affirm the district court’s dismissal of his Ex 

Post Facto Clause and malicious prosecution claims. We remand for 

further proceedings consistent with this opinion.