Henry v. Abernathy

647 F.Supp.3d 1235

Bruce HENRY, Plaintiff, v. Ron ABERNATHY, et al., Defendants.

Case No. 2:21-cv-797-RAH

United States District Court, M.D. Alabama, Northern Division

Signed December 19, 2022

Algert Swanson Agricola, Jr., Barbara H. Agricola, Agricola Law, Opelika, AL, Paul Moore Dubbeling, Pro Hac Vice, P.M. Dubbeling, PLLC, Chapel Hill, NC, for Plaintiff.

Stuart Dennis Albea, Attorney at Law, Tuscaloosa, AL, for Defendant Ron Abernathy.

Andrew Reid Harris, Benjamin Matthew Seiss, Charles Arthur McKay, James William Davis, Richard Dwayde Mink, Attorney General's Office, Constitutional Defense Division, Montgomery, AL, for Defendants Hays Webb, Steve Marshall.

MEMORANDUM OPINION AND ORDER

R. AUSTIN HUFFAKER, JR., UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

In August 2021, Bruce Henry's wife gave birth to their son. But because Henry has a prior conviction for possession of child pornography, Alabama law prohibits him from having overnight visits or living with his son until his son turns 18—no matter how low Henry's risk of recidivism may be. This prohibition allows no exceptions and contains no mechanism by which Henry can request relief from the prohibition.

In late 2021, Henry filed this lawsuit under 42 U.S.C. § 1983 challenging the constitutionality of portions of Alabama's Sex Offender Registration and Community Notification Act, ALA. CODE § 15-20A-1 et seq. (ASORCNA). Specifically, he challenges the provisions that operate to prohibit him and certain other adult sex offenders from residing with their minor children based solely on a qualifying conviction.

Pending before the Court is Henry's motion for a preliminary injunction, in which he seeks to be allowed to reside with his child while this case is pending. (Doc. 30.) The Court held a two-day evidentiary hearing, in which Henry presented testimony from three expert witnesses, and the Defendants presented testimony from one expert witness. Henry did not testify, nor did his wife or probation officer. Henry's motion is ripe for decision.

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

III. LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Henry may be entitled to a preliminary injunction if he demonstrates: (1) a substantial likelihood of success on the merits; (2) a likelihood of suffering irreparable injury without the injunction; (3) the threatened injury to him outweighs the harm the injunction would cause the Defendants; and (4) the injunction would not be adverse to the public interest. See Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Where, as here, "the [State] is the party opposing the preliminary injunction, its interest and harm merge with the public interest," and thus the third and fourth elements are the same. Swain v. Junior, 958 F.3d 1081, 1091 (11th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)). A preliminary injunction is " 'not to be granted unless the movant clearly established the "burden of persuasion" ' for each prong of the analysis." Am.'s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329 (11th Cir. 2014) (citation omitted). Henry, as the movant, must satisfy his burden on all four elements "by a clear showing." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (citation omitted). Failure to show any one of the four elements is "fatal." ACLU of Fla. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009).

IV. BACKGROUND

"When ruling on a preliminary injunction, 'all of the well-pleaded allegations [in a movant's] complaint and uncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true.' " Alabama v. U.S. Dep't of Com., 546 F. Supp. 3d 1057, 1063 (M.D. Ala. 2021) (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347, 350 n.1, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)).

A. Statutory Background

ASORCNA has been described as "the most comprehensive and debilitating sex-offender scheme in the nation." McGuire v. Marshall, 512 F. Supp. 3d 1189, 1198 (M.D. Ala. 2021). As relevant here, § 15-20A-11(d)(4) prohibits adult sex offenders convicted of a "sex offense involving a child" from having overnight visits or residing with their children.

One arrives at this prohibition via two layers of exceptions to the statute's general rule. The statute provides that "[n]o adult sex offender shall reside or conduct an overnight visit with a minor." ALA. CODE § 15-20A-11(d). A minor is "[a] person who has not attained the age of 18." Id. § 15-20A-4(13). However, an exception to the prohibition applies "if the adult sex offender is the parent, grandparent, stepparent, sibling, or stepsibling of the minor." Id. § 15-20A-11(d).

That exception itself has five exceptions, including, as relevant here, if the adult sex offender has been convicted of "any sex offense involving a child." Id. § 15-20A-11(d)(4).¹ Section 15-20A-4(27) defines "sex offense involving a child" as "[a] conviction for any sex offense in which the victim was a child or any offense involving child pornography." A child is "[a] person who has not attained the age of 12." Id. § 15-20A-4(2).² No one disputes that Henry's child pornography conviction qualifies as an "offense involving child pornography" within the meaning of § 15-20A-4(27).

ASORCNA defines "overnight visit" as "[a]ny presence between the hours of 10:30 p.m. and 6:00 a.m." Id. § 15-20A-4(14). Additionally, it defines "reside" as being "habitually or systematically present at a place," which "shall be determined by the totality of the circumstances, including the amount of time the person spends at the place and the nature of the person's conduct at the place." Id. § 15-20A-4(20). ASORCNA further defines "reside" as follows:

The term reside includes, but is not limited to, spending more than four hours a day at the place on three or more consecutive days; spending more than four hours a day at the place on 10 or more aggregate days during a calendar month; or spending any amount of time at the place coupled with statements or actions that indicate an intent to live at the place or to remain at the place for the periods specified in this sentence.

Id. Thus, until his child turns 18, § 15-20A-11(d)(4) prevents Henry from being present in the home where his child resides in the following circumstances: (1) at any time between the hours of 10:30 p.m. and 6:00 a.m.; (2) for more than four hours a day on three consecutive days; (3) for more than four hours a day on ten or more days during a calendar month; and (4) in any other circumstance in which the parent is "habitually or systemically present" at the minor's home. Id.

These residency restrictions apply to Henry for life. The statute contains no mechanism by which an offender can challenge or petition for relief from the restriction.³

The Alabama Legislature's stated finding is that residence restrictions further "the primary governmental interest of protecting vulnerable populations, particularly children." Id. § 15-20A-2(5).

B. Factual Background

In 2013, Henry was convicted, pursuant to a guilty plea, of one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), in the United States District Court for the Northern District of Alabama. Over 300 images and two videos of child pornography had been located on Henry's computer and other electronic devices. One video depicted a prepubescent female performing oral sex on an adult male, who also inserted a finger into the female's vagina. Another video depicted a nude prepubescent female performing oral sex on a dog; a partially clothed adult male could also be seen in the video. According to Henry, his possession of child pornography was the result of a pornography addiction and is not indicative of pedophilia.

Henry was sentenced to 70 months imprisonment and 60 months supervised release with special conditions. One special condition required him to participate in the United States Probation Office's "computer restriction/monitoring program." (Doc. 21 at 5 in United States v. Henry, 4:12-cr-550-KOB (N.D. Ala.).) This program may include a provision prohibiting Henry from possessing or using "any computer or portable electronic device which has the capability of communicating with any other electronic device without the prior approval of the probation office." (Doc. 27 at 1-2 in Henry, 4:12-cr-550-KOB (N.D. Ala.).) Another special condition prohibited Henry from having "any unsupervised, one-to-one contact with any children under the age of 18 other than his own children." (Doc. 21 at 5 in Henry, 4:12-cr-550-KOB (N.D. Ala.).)

After he was released from prison in March 2018 and began supervision, Henry completed a qualified Sex Offender Treatment Program (SOTP). Since that time, Henry has voluntarily continued counseling to further address the addictive behaviors that he says contributed to his offense. Prior to his 2013 conviction, Henry had no history of sexual offenses, involving a child or otherwise.

On February 4, 2020, Henry's probation officer swore out a petition to revoke Henry's supervised release. The petition was based upon two events. First, on July 26, 2019, Henry admitted during a polygraph interview that he used an Amazon Fire TV Stick to access the internet and view pornography. "[D]eception was indicated" when the polygraph examiner asked if Henry had viewed child pornography. (Doc. 27 at 3 in Henry, 4:12-cr-550-KOB (N.D. Ala.).) Henry's electronic devices were seized and forensically examined, and no images of child pornography were located on any devices. However,...