Doe v. Rausch

659 F.Supp.3d 895

John DOE, Plaintiff, v. David B. RAUSCH, Director of the Tennessee Bureau of Investigation, in his official capacity, Defendant.

NO. 3:20-cv-00728

United States District Court, M.D. Tennessee, Nashville Division

Filed March 6, 2023

Christopher W. Beauchamp, Lowery, Lowery & Cherry, Lebanon, TN, for Plaintiff.

Cody N. Brandon, Gabriel Joseph Krimm, Robert W. Mitchell, Office of the Attorney General and Reporter, Nashville, TN, Mallory K. Schiller, Dickinson Wright, PLLC, Nashville, TN, for Defendant.

MEMORANDUM

WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE

Pending before the Court are cross-motions for summary judgment filed by Plaintiff John Doe (Doc. No. 29) and Defendant David B. Rausch, Director of the Tennessee Bureau of Investigation ("Rausch") (Doc. No. 32). For the reasons discussed below, Plaintiff's motion will be granted in part and Rausch's motion will be denied.

I. BACKGROUND

A. Tennessee's Sexual Offender Registry

Tennessee did not have a sex offender registration law prior to 1994. In that year, however, the Tennessee General Assembly, concerned with the potential actions of sexual offenders after they had served their sentences, adopted legislation requiring the TBI to "establish, maintain, and update a centralized record system of sexual offender registration and verification information." 1994 Tenn. Pub. Laws, ch. 976 § 7(a). Although different provisions have governed the treatment of registrants over the years, the court will, for convenience, refer to each of the successive laws on that topic as "the Act."

The Act, in its original form, required registration for all individuals convicted of any one of a number of identified sexual offenses, "unless the offender had been wholly released without supervision from incarceration, probation, or parole prior to January 1, 1995." Doe v. Haslam, No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, C.J.) (citing 1994 Tenn. Pub. Laws, ch. 976 § 3(2)-(3)). The Act did not require in-person registration or reporting; instead, offenders were required to register and periodically update their information with the TBI by completing and returning paper forms. 1994 Tenn. Pub. Laws, ch. 976 §§ 4, 5. The information in the registry was expressly designated as confidential, with the exception that the TBI or a local law enforcement agency could "release relevant information deemed necessary to protect the public concerning a specific sexual offender." Id. § 7(c).

In the ensuing decades, however, the Tennessee General Assembly repeatedly amended the Act to expand its scope, increase its reporting requirements, and reduce the level of confidentiality of registry information. For example, in 1997, the General Assembly amended the Act to provide that, for all qualifying offenses committed on or after July 1, 1997, certain information concerning an offender "shall be considered public information" and made available online by the TBI. 1997 Pub. Acts, ch. 461, § 2. However, until 2003, the Act did not expressly restrict where an offender could live, work, or travel. In 2003, the General Assembly enacted legislation prohibiting an offender from knowingly: (i) establishing a residence or accepting employment within 1,000 feet of a school, a child care facility, or the home of the offender's victim or the victim's immediate family member; (ii) coming within 100 feet of the victim; (iii) establishing a residence or other living accommodation with a minor who was not the offender's own child; or (iv) establishing a residence with the offender's own minor child, if any child of the offender had been the offender's victim or if the offender's parental rights had been or were being terminated. 2003 Tenn. Pub. Acts, ch. 95, § 1. Chief Judge Crenshaw of this district has recounted the statutes' long history of more than two dozen revisions in Doe, 2017 WL 5187117, at *1. In short, Tennessee's sexual offender registration system progressed from a relatively simple system, dedicated to information gathering and tracking, into a far-reaching structure for regulating the conduct and lifestyles of registered sexual offenders—in many cases, for the rest of their lives. The court will briefly summarize some of the key provisions in their current form.

1. Initial Eligibility and Levels of Offender

The current version of the Act, the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act ("SORVTA"), like the versions before it, dictates that individuals convicted of certain enumerated offenses must register with law enforcement for inclusion on the registry database maintained by the TBI. Offenses that require registration are mostly ones that, on their face, contain a sexual element, such as serial indecent exposure, aggravated rape, and rape of a child. Tenn. Code Ann. § 40-39-202(20)(A)(vii), (31)(A), (D). The Act divides registrants into "sexual offenders" and "violent sexual offenders," based primarily on the particular offense of which the person was convicted.¹ The term "violent sexual offenders" encompasses not only "sexual offenders who use physical violence" but also "[r]epeat sexual offenders" and "sexual offenders who prey on children." Id. §§ 40-39-201(b)(1), 40-39-202(20), (30)-(31). A (non-violent) sexual offender may petition to be removed from the registry after ten years, and his petition will be considered in light of a number of factors, including his history of compliance with the Act's restrictions. Id. § 40-39-207(a). A violent sexual offender, however, will remain on the registry for the remainder of his life, regardless of his compliance or lack of additional offenses. Id. § 40-39-207(g)(2).

2. Registration and Updating Information

An offender must provide a laundry list of information under penalty of perjury, including (but not limited to) the offender's name, address, date and place of birth, social security number, information about the offender's offense(s) of conviction, copies of the offender's driver license and passports, and a "complete listing of the offender's electronic mail address information, including usernames, any social media accounts the offender uses or intends to use, instant message, other internet communication platforms or devices, and the offender's username, screen name, or other method by which the offender accesses these accounts or websites." See Tenn. Code Ann. § 40-39-203(i). The Act provides that much of this information, including the offender's photograph, address and employer, "shall be considered public information" and must be made available to the public through a web page. Id. § 40-39-206(d).

The offender has an ongoing duty to keep this information up to date. "Within forty-eight (48) hours of establishing or changing a primary or secondary residence, establishing a physical presence at a particular location, becoming employed or practicing a vocation or becoming a student in this state, the offender shall register or report in person" with the appropriate law enforcement agency. Id. § 40-39-203(a)(1). An offender also has 48 hours to report any "change in any other information given to the registering agency by the offender that is contained on the registration form" or any "material change in employment or vocation status." Id. § 40-39-203(a)(4), (6). The offender has "three (3) days, excluding holidays" to report any change in his "electronic mail address information, any instant message, chat or other internet communication name." Id. § 40-39-203(7).

3. In-Person Reporting

The Act also requires periodic in-person reporting with the offender's designated law enforcement agency. Violent sexual offenders must "report in person during the months of March, June, September, and December of each calendar year, to the designated law enforcement agency, on a date established by such agency, to update the offender's fingerprints, palm prints and photograph, as determined necessary by the agency, and to verify the continued accuracy of the information in the TBI registration form." Id. § 40-39-204(b)(1). Other sexual offenders must report in person once per year. Id. § 40-39-204(c). At the sexual offender's check-in, or the violent sexual offender's first check-in, he is required to pay administrative fees not to exceed $150 to help cover the costs of his monitoring. Id. § 40-39-204(b)(1), (c).

4. Residence and Work Restrictions

A registered offender may not

knowingly establish a primary or secondary residence or any other living accommodation or knowingly accept employment within one thousand feet (1,000') of the property line of any [1] public school, [2] private or parochial school, [3] licensed day care center, [4] other child care facility, [5] public park, [6] playground, [7] recreation center, or [8] public athletic field available for use by the general public.

Tenn. Code Ann. § 40-39-211(a)(1). Moreover, if an offender's victim was a minor, the offender may not "knowingly reside or conduct an overnight visit at a residence in which a minor resides or is present." Id. § 40-39-211(c)(1). There is an exception to this latter prohibition if "the offender is the parent of the minor." Id. But this exception is, in turn, subject to exceptions of its own; that is, even if it otherwise would apply, the exception to the prohibition is inapplicable under certain circumstances, including when "[a]ny minor or adult child of the offender was a victim of a sexual offense or violent sexual offense committed by the offender." Id. § 40-39-211(c)(1)(B).

5. Movement Restrictions

An offender cannot knowingly "[b]e upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when the offender has reason to believe children under...