Doe v. Dept. of Public Safety

Page 38

271 F.3d 38 (2nd Cir. 2001)

JOHN DOE, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE-CROSS-APPELLANT, SAMUEL POE, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE, v. DEPT. OF PUBLIC SAFETY ON BEHALF OF HENRY C. LEE, COMM., OFFICE OF ADULT PROBATION, ON BEHALF OF ROBERT BOSCO DIRECTOR, JOHN ARMSTRONG, COMM. DEFENDANTS-APPELLANTS-CROSS-APPELLEES,

Docket Nos. 01-7561 (L), 01-7600 (XAP)

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: July 12, 2001

Decided: October 19, 2001

Appeal and cross-appeal from a judgment of the United States District Court for the District of Connecticut (Robert N. Chatigny, Judge), inter alia, (i) granting summary judgment to the plaintiff on his claim under 42 U.S.C. § 1983 that Connecticut's sexual offender registration law violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and (ii) entering declaratory and permanent injunctive relief limiting public disclosure of information contained in the registry. Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Shelley R. Sadin, Bridgeport, CT (Zeldes, Needle & Cooper; Philip D. Tegeler, of counsel), for Plaintiffs-Appellees-Cross-Appellant.

Richard Blumenthal, Attorney General, State of Connecticut, Hartford, CT (Gregory T. D'Auria, Henri Alexandre, Margaret Q. Chapple, of counsel), for Defendants-Appellants-Cross-Appellees.

Before: Cabranes, Pooler, and Sack, Circuit Judges.

Sack, Circuit Judge

In this appeal, we address the constitutionality of Connecticut's version of "Megan's Law," Conn. Gen. Stat. §§ 54-250-261 (2001), amended by 2001 Conn. Legis. Serv. 01-84 (West), which requires people convicted or found not guilty by reason of mental disease or defect¹ of designated crimes to register with the State, and mandates disclosure of the information contained in the registry to the public in printed form and through the State's Internet website. The United States District Court for the District of Connecticut (Robert N. Chatigny, Judge), in a thorough opinion, held that the law violates the plaintiff's² right to procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution but does not constitute an ex post facto law in violation of Article I, § 10 thereof. Doe v. Lee, 132 F. Supp. 2d 57 (D. Conn. 2001) ("Doe v. Lee"). In accordance with this ruling, the court entered declaratory and permanent injunctive relief prohibiting the State from disseminating the registry or disclosing registry information to the public except in limited circumstances. The defendants challenge the issuance of this injunction by appealing the underlying grant of summary judgment to the plaintiff on the due process claim. The plaintiff cross-appeals the court's entry of judgment in favor of the defendants on the ex post facto challenge.

We are keenly aware of the legitimate and pressing importance that the Connecticut legislature attaches to the State's ability to disseminate information about former sex offenders, principally in order to protect the health and welfare of the State's children. The particular legislative instrument it has chosen to employ, however, is too blunt properly to achieve that end. It fails to accommodate the constitutional rights of persons formerly convicted of a wide range of sexual offenses who are branded as likely to be currently dangerous offenders irrespective of whether or not they are. We therefore affirm.

BACKGROUND

I. The Connecticut Law

Like every other state,³ Connecticut has enacted a version of "Megan's Law,"⁴ which requires people convicted of certain criminal offenses, most of them sexual in nature, to register with the State upon their release into the community and provides for disclosure of information gathered through this registry.⁵ As amended most recently in 1999, Connecticut's version of the law requires registration of people who have been convicted of crimes that fall within four statutorily defined categories: criminal offenses against a victim who is a minor,⁶ nonviolent sexual offenses,⁷ sexually violent offenses,⁸ and felonies committed for a sexual purpose.⁹ See Conn. Gen. Stat. §§ 54-250(2), (5), (11), (12), 54-251(a), 54-252(a), 54-254(a).¹⁰

A. Registration

Registration requirements vary depending on the type of crime for which a particular person is convicted and thereby becomes subject to the registration law. A person convicted of a criminal offense against a minor or of a nonviolent sexual offense must register with the Connecticut Department of Public Safety ("DPS") for ten years beginning within three days following his or her release into the community.¹¹ See id. § 54-251(a). In addition, a person convicted of a felony committed for a sexual purpose can also be required to register for ten years at the discretion of the sentencing court. See id. § 54-254(a). Finally, a person convicted of a sexually violent offense must register for the remainder of his or her life. See id. § 54-252(a).

Each registrant must provide the DPS with his or her name, "identifying factors" including fingerprints, a photograph, a list of other identifying characteristics, and a blood sample for DNA analysis, see id. § 54-250(3), criminal history record, and his or her residence address, see id. §§ 54-251(a), 54-252(a), 54-254(a), which must be verified once a year, see id. § 54-257(c). A person convicted of a sexually violent offense also must provide "documentation of any treatment received for mental abnormality or personality disorder," see id. § 54-252(a), and must verify his or her address once every ninety days, see id. § 54-257(c).

A person convicted of a sexually violent offense, by contrast, must register for the remainder of his or her life, see id. § 54-252(a), and, in addition to the standard name, address, criminal history, and "identifying factors" registration, must provide the State with "documentation of any treatment received for mental abnormality or personality disorder." Id. § 54-252(a). Such a person must verify his or her address once every ninety days. See id. § 54-257(c).

Certain additional obligations apply to all registrants regardless of their underlying conviction. Anyone subject to the law who moves to a new residence must inform the State of his or her current address within five days. See id. §§ 54-251(a), 54-252(a), 54-254(a). If a registrant regularly travels into or temporarily resides in another state, he or she must register with the responsible agency there and comply with whatever additional duties that state imposes on sex offenders.¹² See id. Each registrant must abide by the statute's address verification requirements by completing and returning to the State within ten days of receipt a nonforwardable verification form. See id. § 54-257(c). Finally, anyone subject to the law must submit to having his or her photograph taken at a specified location whenever the State so requests, see id. §§ 54-251(a), 54-252(a), 54-254(a), at least once every five years, see id. § 54-257(d). Failure to comply with any of these duties constitutes a class D felony, punishable by up to five years in prison. See id. §§ 54-251(d), 54-252(d), 54-253(c), 54-254(b).

B. Disclosure and Public Notification

The statute also obligates DPS to compile the information gathered through the registration process in a central registry and to share that information with local police departments, state police troops, the Federal Bureau of Investigation, and coordinate agencies in other states in which registrants reside. See id. § 54-257(a).

The DPS must also make the registry available to the public "during normal business hours." Id. § 54-258(a)(1). And the DPS is required to post registry information on the Internet, see id. § 54-258(a)(1), something it did until the practice was enjoined by the district court in this litigation. The DPS, also pursuant to statutory prescription, "[n]ot less than once per calendar quarter... [is required to] issue notices to all print and electronic media in the state regarding the availability and means of accessing the registry." Id. Local police departments and state police troops are required to make the registry available for public inspection during office hours. See id. The following warning must be posted wherever the registry is open to public view: "Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution." Id. § 54-258a.

The primary means of disseminating registrant information to the public was the "Sex Offender Registry" Internet database maintained by the DPS,¹³ which, until it was shut down pursuant to the injunction issued by the district court, could be reached through the websites of several television stations, as well as through the official homepage of the State of Connecticut, http://www.state.ct.us.¹⁴ Anyone with access to the Internet was able to search the database by zip code or town name, which produced a list of all registrants within the scope of the search, or by last name or first letter thereof. Every name that was produced through such a search yielded a direct link to another page entitled "Registered Sex Offender" containing the registrant's name, address, photograph, and physical description.

Sometime between December 1998 and May 1999, the following statement was added to the first page of the Sex Offender Registry website:

This information is made available for the purpose of complying with Connecticut General Statutes § 54-250, et seq..... The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. The Department of Public Safety has not considered or assessed the specific risk of reoffense with regard to any...