United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
civil action presents a constitutional challenge to the
Tennessee Sexual Offender and Violent Sexual Offender
Registration Verification and Tracking Act of 2004
(hereinafter the “Act”), Tenn. Code Ann.
§§ 40-39-201 - 40-39-218 (2018). Pending before the
Court are the cross motions for summary judgment filed by
Plaintiff John Doe and Defendant David B. Rausch, Director of
the Tennessee Bureau of Investigation (“TBI”)
[Docs. 28, 45]. Both motions have been fully briefed [Docs.
31, 40, 48, 51, 54, 57], counsel presented their arguments on
March 11, 2019, and the motions are ripe for determination.
reasons set forth herein, the Plaintiff's motion for
summary judgment [Doc. 28] will be GRANTED in part
and DENIED in part and the Defendant's motion
for summary judgment [Doc. 45] will be GRANTED in
part and DENIED in part.
facts as set forth in the Amended Complaint are largely
undisputed. In 2006, Plaintiff was charged with several sex
offenses involving a minor victim, described as eleven (11)
years old, in the State of North Carolina [Doc. 52 at
¶¶ 8-9]. On August 15, 2006, Plaintiff pled guilty
to the charge of Indecent Liberties with a Child, in
violation of N.C. Stat. 14-202.1 [Id. at ¶ 9].
As a consequence of his guilty plea and conviction, Plaintiff
was required to and did register as a sex offender on the
State of North Carolina's Sex Offender Registry
[Id. at ¶ 11]. After relocating to Tennessee,
Plaintiff was required to and did register as a sex offender
on the State of Tennessee's Sex Offender Registry (the
“Registry”) [Id. at ¶ 12].
Plaintiff has continued to report annually with the Registry
and complied with the requirements of the Act [Id.
at ¶ 14].
admits that when he goes in for his annual reporting, he asks
the officer of the registering agency whether there have been
any changes to the registration form [Doc. 45-2 at p. 8].
Plaintiff is given the opportunity to ask questions and the
officer always answers any questions he has [Id. at
pp. 9-10]. Plaintiff denies that he has had any logistical
difficulties with the actual reporting process, other than
instances when he has been short on funds and the registering
agency has allowed him to pay his annual registration fee
late [Id. at pp. 10-11].
first adopted a sex offender registration law in 1994 [Doc.
52 at ¶ 20]. The 1994 law was repealed and replaced in
2004 [Id. at ¶ 21]. The Act has been amended
several times since 2004, including the 2014 Amendment of
which plaintiff complains [Id. at ¶ 22]. Prior
to the 2014 Amendment, registrants who were not subject to
the lifetime registration requirement could apply to the TBI
for removal from the Registry after ten years [Id.
at ¶¶ 21, 23]. In 2014, Tenn. Code Ann. §
40-39-207 was amended to state as follows:
(g)(1) An offender required to register under this part shall
continue to comply with the registration, verification and
tracking requirements for the life of that offender, if that
(C) Has been convicted of an offense in which the victim was
a child of twelve (12) years of age or less.
Tenn. Code Ann. § 40-39-207(g)(1)(C). Thus, prior to the
2014 Amendment and at the time of his guilty plea, Plaintiff
was required to remain on the registry for only ten (10)
years [Doc. 52 at ¶ 23]. The effect of the 2014
Amendment requires that he comply with the Act for life.
speaking, the Act requires sex offenders to provide correct,
detailed personal information to the state database of sex
offenders, some of which is included in an
internet-accessible public sex offender registry
[Id. at ¶¶ 19, 21]. Offenders must report
in-person annually to verify and update their registration
information [Id. at ¶ 21]. The Act imposes
geographic restrictions on where registered offenders may
live, work, or “be upon or remain” or
“stand [or] sit idly” [see Id. at ¶
24; Tenn. Code Ann. §§ 40-39-211(a), (d)].
Registered offenders must provide advance notification of
travel outside of the state or country [see Tenn.
Code Ann. § 40-39-204(h); Doc. 56 at pp. 14-15]. Failure
to comply with the requirements of the Act may subject an
offender to fines or felony criminal charges [see
Tenn. Code Ann. §§ 40-39-208, 40-39-211].
ten-year anniversary of his initial registration, Plaintiff
contacted the TBI requesting his removal from the Registry
[Doc. 52 at ¶ 15]. The TBI informed Plaintiff that it
needed additional information based on a 2014 Amendment which
required a registered offender to remain on the Registry for
life if the offense involved a victim twelve (12) years of
age or younger [Id. at ¶ 16]. With the
assistance of counsel, Plaintiff submitted the requested
information [Id. at ¶ 17]. The TBI denied
Plaintiff's request to be removed from the Registry,
citing the 2014 Amendment [Id. at ¶ 18].
to his request to be removed from the Registry, the Plaintiff
held a good job as a sales representative, which required
that he make deliveries within a varying geographical area
[Doc. 56 at p. 4]. Plaintiff was “completely
straight” with his employer, who was aware of
plaintiff's status on the Registry [Id. at pp.
6-7]. The company made accommodations for deliveries to
places that Plaintiff could not go, such as schools, to be
handled by other employees [Id. at p. 7]. However,
when Plaintiff learned that he would not be removed from the
Registry, his employer was no longer willing to continue
those accommodations indefinitely and Plaintiff was
terminated [Id. at pp. 6, 9].
addition to the job loss, Plaintiff testified that he is not
able to attend many family functions that take place in a
park or to travel out of state without receiving advance
permission from both Tennessee and the visiting state
[Id. at pp. 12-15]. Plaintiff is not allowed to
decorate his house for holidays such as Halloween or
Christmas [Id. at pp. 16- 17]. Plaintiff complains
that his picture is published in certain local newspapers
sold at convenience stores - “a Thrifty Nickel-type
deal” - that includes a section on individuals listed
on the Registry [Id. at pp. 19-20]. Finally,
Plaintiff complains that his status as a sex offender is
listed on his photo identification [Id. at p. 20].
instant case was filed on May 19, 2017 [Doc. 1]. Pursuant to
42 U.S.C. § 1983, Plaintiff claims that the 2014
Amendment imposing lifetime registration on him is an
unconstitutional violation of the Ex Post Facto Clause and a
violation of the Due Process Clause of the 14th
Amendment [Doc. 52 at ¶¶ 27, 29-32]. Plaintiff
seeks declaratory and injunctive relief.
Standard of Review
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Moore v.
Philip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All
facts and all inferences to be drawn therefrom must be viewed
in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v.
Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F.Supp.
1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477
U.S. 317). To establish a genuine issue as to the existence
of a particular element, the non-moving party must point to
evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The genuine issue must
also be material; that is, it must involve facts that might
affect the outcome of the suit under the governing law.
Court's function at the point of summary judgment is
limited to determining whether sufficient evidence has been
presented to make the issue of fact a proper question for the
factfinder. Id. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id.
at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479- 80 (6th Cir. 1989). Thus, “the inquiry
performed is the threshold inquiry of determining whether
there is a need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Anderson,
477 U.S. at 250.
Whether Plaintiff's Claims are Time-Barred
raises a timeliness argument that must be addressed first.
Defendant argues that Plaintiff's claims are barred by
the one-year statute of limitations for civil rights claims
in Tennessee, Tenn. Code Ann. § 28-3-104(a)(1)(B).
Defendant argues that Plaintiff's cause of action accrued
when the changes to the statute became applicable to him
[Doc. 40 at pp. 3-5; Doc. 48 at pp. 4-5]. Because the 2014
Amendment of which he complains became effective on July 1,
2014, Plaintiff knew or should have known at that time that
he was subject to the lifetime registration requirement.
However, he did not file this action until May 19, 2017,
almost three years later.
response, Plaintiff argues that the discovery rule applies
and notes that he did not contact the TBI about removal from
the Registry until the ten-year anniversary of his initial
registration, or in 2016 [Doc. 51 at pp. 1-3; Doc. 54 at pp.
2-4]. Thus, he argues that he was not harmed until the TBI
denied his request for removal from the Registry. Because
this action was filed within one year of his rejection for
removal from the Registry, Plaintiff contends that this
action is timely. Plaintiff also notes that he was not
eligible to apply for removal from the Registry until 2016,
ten years after his conviction, and thus he could not have
sued to correct a “non-existent wrong” prior to
that time [Doc. 51 at p. 3; Doc. 54 at p. 3].
well settled that in Tennessee claims under 42 U.S.C. §
1983 are subject to a one-year statute of limitations. Tenn.
Code Ann. § 28-3-104(a)(1)(B); Irick v. Ray,
628 F.3d 787, 789 (6th Cir. 2010) (“civil actions for
… injunctive relief brought under the federal civil
rights statutes must be commenced within one year of the
accrual of the cause of action”); Roberson v.
Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). However,
“the accrual date of a § 1983 claim is a question
of federal law that is not resolved by reference to
state law.” Wallace v. Kato, 549 U.S. 384, 388
(2007) (emphasis in original). “Under federal law, the
limitations period begins to run when a plaintiff knew or
should have known of the injury that forms the basis of the
claim.” Fox v. DeSoto, 489 F.3d 227, 233 (6th
Cir. 2007). The discovery rule provides that “the
statute of limitations commences to run when the injury
occurs or is discovered, or when in in the exercise of
reasonable care and diligence, it should have been
discovered.” Gilmore v. Davis, 185
Fed.Appx. 476, 481 (6th Cir. 2006) (emphasis in original)
(quoting McCroskey v. Bryant Air Conditioning Co.,
524 S.W.2d 487, 494 (Tenn. 1975)); see Quality Auto Parts
Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn.
counsel suggests that the discovery rule does not apply
because the harm of which Plaintiff complains - the effect of
the 2014 Amendment to him - was not “unknown or
unknowable.” See Quality Auto Parts, 876
S.W.2d at 820. Rather, Defendant argues the impact of the
2014 Amendment was easily known as it was a public act of the
Tennessee Legislature. Defendant has not, however, cited any
authority holding that citizens are presumed to know the
details of all of the laws enacted.
record contains Plaintiff's 2015 registration form,
completed on September 22, 2015, which includes over five
pages of instructions and information on compliance with the
Act [see Doc. 28-1 at pp. 10-20]. These instructions
state that offenders may obtain information about removal
from the Registry from the TBI website, but there is no
information about who or when an individual might be eligible
to apply for removal. There is no information in the
instructions regarding the 2014 Amendment of which Plaintiff
complains, Tenn. Code Ann. § 40-39-207(g)(1)(C), which
became effective July 1, 2014. Plaintiff testified that when
he appears for his annual reporting, he asks the officer of
the registering agency whether there have been any changes
to the form and he is given the opportunity to ask
any questions [Doc. 45-2 at pp. 8-9]. The record is silent as
to whether the 2014 Amendment to the Act caused any changes
to the registration form that could have alerted him to a
change in the law. Thus, there is no evidence in the record
that Plaintiff was informed in either 2014 or 2015 about the
change in the Act requiring him to register for life. See
Holland v. Governor of Ga., 669 Fed.Appx. 541, 542 (11th
Cir. 2016) (“[t]he statute of limitations in these
cases has only started to run after the plaintiff received
some form of actual notice”).
Plaintiff had learned of the 2014 Amendment, he would not
have been eligible to apply for removal from the Registry in
2014 and therefore could not have challenged its effect on
him. It appears undisputed that Plaintiff could not have
applied for removal from the Registry prior to 2016 and that
he filed suit less than one year after his request for
removal was denied. Thus, the question is whether Plaintiff
knew or should have known of the change in the law prior to
2016. There is simply no evidence in the record that the
Plaintiff knew or should have known of the 2014 Amendment
prior to 2016. Further, even if he was aware of the change in
the law, he could not have been harmed by it prior to the
date when he believed he was eligible to apply for removal.
Accordingly, the Court does not find that Plaintiff's
claim is untimely.
Whether the 2014 Amendment Violates the Constitutional
Prohibition Against Ex Post Facto Laws
Constitution provides that “No State shall …
pass any … ex post facto Law.” U.S. Const. art.
I § 10, cl. 1. An Ex Post Facto law is a
“retrospective” law that applies “to events
occurring before its enactment” and
“disadvantage[s] the offender affected by it …
by altering the definition of criminal conduct or increasing
the punishment for the crime.” Lynce v.
Mathis, 519 U.S. 433, 441 (1997); see Cutshall v.
Sundquist, 193 F.3d 466, 476 (6th Cir. 1999), cert.
denied, 529 U.S. 1053 (2000) (“[t]he clause is
designed to protect against legislative abuses and to provide
fair notice of the consequences of criminal actions”).
The Constitution “does not bar all retroactive
lawmaking, but only retroactive punishment.” Does
v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016), cert.
denied, 138 S.Ct. 55 (2017). Relevant to the instant
challenge, “[a] statute is enforced retroactively if it
governs conduct that preceded the statute's
enactment.” Shaw v. Patton, 823 F.3d 556, 560
(10th Cir. 2016) (citing Stogner v. California, 539
U.S. 607, 612-13 (2003)). In the instant case, Plaintiff
challenges the application of the 2014 Amendment and the
requirement of lifetime compliance with the Act to his
conduct in 2006. Thus, there is no dispute that the 2014
Amendment is being enforced retroactively as to Plaintiff.
leans heavily on the Sixth Circuit's opinion in
Snyder, which held that the retroactive application
of amendments to the Michigan Sex Offender Registration Act
were unconstitutional. Plaintiff argues that the 2014
Amendment inflicts punishment, it imposes an affirmative
disability or restraint, it promotes the traditional aims of
punishment, it is not rationally related to a non-punitive
purpose, and it is excessive with respective to the
non-punitive purpose [Doc. 31 at pp. 7-16]. Plaintiff points
out that while he did agree to be subject to many provisions
of the Act at the time of his guilty plea, he only agreed to
comply with them ...