McGuire v. Marshall

50 F.4th 986

Michael A. MCGUIRE, Plaintiff-Appellant Cross Appellee,

v.Steven T. MARSHALL, Derrick Cunningham, John Richardson, Defendants-Appellees Cross Appellants,City of Montgomery, et al., Defendants-Appellees.

No. 15-10958

United States Court of Appeals, Eleventh Circuit.

Date Filed: October 3, 2022

Joseph Mitchell McGuire, McGuire & Associates, LLC, Montgomery, AL, Phil Telfeyan, Civil Rights Corps, Washington, DC, Elizabeth Peyton Faulk, Bush & Faulk, LLC, Montgomery, AL, for Plaintiff-Appellant Cross Appellee.

James W. Davis, James Roy Houts, Deputy Assistant Attorney General, Alabama Attorney General's Office, Montgomery, AL, Winfield J. Sinclair, Montgomery, AL, for Defendant-Appellee Cross Appellant Steven T. Marshall.

Jason Cole Paulk, State of Alabama, Department of Revenue, Legal Division, Montgomery, AL, for Defendants-Appellees.

J. Haran Lowe, Jr., Frank Tim McCollum, Alabama Department of Public Safety, Montgomery, AL, for Charles Ward.

Thomas T. Gallion, III, Charles McDowell Crook, Jr., Gallion & Gallion, LLC, Montgomery, AL, Tyrone Carlton Means, Thomas Means Gillis & Seay, PC, Montgomery, AL, for Defendant-Appellee Cross Appellant Derrick Cunningham.

Before Jill Pryor, Ed Carnes, and Ripple,^* Circuit Judges.

PER CURIAM:

Plaintiff Michael McGuire is required to register as a sex offender under the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA" or the "Act"), Ala. Code § 15-20A-1 et seq. For as long as he lives in Alabama, Mr. McGuire must report in person each quarter to law enforcement. ASORCNA also subjects individuals, like Mr. McGuire, who are required to register as sex offenders ("registrants") to a variety of other restrictions. A registrant generally cannot live or work within 2,000 feet of a school or childcare center.¹ A registrant who is homeless must report in person each week to provide law enforcement with updated information. And a registrant must notify law enforcement before traveling away from his residence for three or more consecutive days. In addition, when a registrant moves to a new home, the Act requires law enforcement to mail flyers to the registrant's neighbors informing them of the registrant's status as a sex offender.

In this lawsuit, Mr. McGuire sued the Alabama Attorney General and others, claiming that some provisions of ASORCNA impose retroactive punishment in violation of the Constitution's Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. After a bench trial, the district court entered judgment against Mr. McGuire, concluding that the retroactive application of these provisions did not amount to punishment. After careful review, we agree with the district court. Accordingly, we affirm in part and vacate and remand in part.²

In Part I, we discuss the factual background and procedural history of Mr. McGuire's challenge to ASORCNA. In Part II, we walk through ASORCNA's relevant provisions. In Part III, we identify the applicable standard of review. In Part IV, we address mootness. In Part V, we set forth the "intent-effects" framework used to determine whether the Ex Post Facto Clause prohibits a law's retroactive application. In Part VI, we apply this framework to analyze whether the Ex Post Facto Clause bars the retroactive application of the challenged provisions.

I. FACTUAL BACKGROUND

A. Factual History

In 1986, Michael McGuire was convicted in Colorado of: (1) first-degree sexual assault (rape) of his girlfriend "through the actual application of physical force and physical violence" using a knife "to cause submission"; (2) second-degree assault by causing and attempting to cause bodily injury "by means of a deadly weapon, to-wit: a knife and wine bottle"; and (3) menacing by placing another "in fear of imminent serious bodily injury." At the time of the crime, both Mr. McGuire and his girlfriend were 30 years old. Mr. McGuire served three years in prison and completed one year of parole. After his release from prison, Mr. McGuire spent much of the next 20 years working as a hair stylist and jazz musician in the Washington, D.C. area. During that time, he met a woman with whom he entered a common-law marriage in 2001.

In 2010, Mr. McGuire and his wife decided to move to Montgomery, Alabama, to live with and assist his elderly mother. Upon arriving in Montgomery, Mr. McGuire registered as a sex offender. He learned that he could not live with his mother because her home was too close to a childcare center.

Mr. McGuire looked for a compliant home. He asked local law enforcement about the suitability of dozens of homes for rent but was told that ASORCNA prevented him from living at any of those addresses. He and his wife stayed at a motel until their money ran out. The couple briefly stayed with Mr. McGuire's brother. But when his brother's minor children returned from a vacation, Mr. McGuire had to move out because ASORCNA prevented him from staying overnight with minors present. Unable to find housing, Mr. McGuire began living beneath an interstate overpass. He spent his days at the home where his wife lived and his nights underneath the interstate. Later he did find compliant housing. See infra n.20.

Upon returning to Montgomery, Mr. McGuire also faced difficulties finding a job. The district court found that ASORCNA's employment restrictions prevented him from accepting or applying for a number of jobs, including music-related engagements. The court noted that he occasionally performed as a musician at a venue in Montgomery that is more than 2,000 feet from a school or childcare center.

Before filing this lawsuit, Mr. McGuire began receiving Social Security disability benefit payments and has continued to receive them since then. He testified that he started receiving those disability benefits after he had confined himself to his house for four years due to agoraphobia and after he had what he describes as a "psychotic break" and "was diagnosed as schizophrenic." He also receives non-service-related benefit payments from the Veterans Administration for the same mental disabilities.

When Mr. McGuire was asked during the bench trial if he was "completely unable to work," he testified: "I can't really answer that question because I –– I don't –– I haven't been in a work environment for a while, so I don't know what my reactions would be, due to my schizophrenia. I don't know if I could –– if I could function correctly on a job, but I'm willing to find out."³

During the time that he was homeless, Mr. McGuire had to register in person each week. He was required to report in person each week to both the Montgomery County Sheriff's Office and the Montgomery City Police Department.⁴

B. Procedural Background

Mr. McGuire filed this lawsuit naming the Attorney General of Alabama as defendant.⁵ As relevant to this appeal, he challenged portions of ASORCNA as unconstitutional ex post facto laws.

After a bench trial, the district court entered detailed findings of fact and conclusions of law. In the findings of fact, the court described the difficulties that Mr. McGuire faced in trying to find housing and work outside of ASORCNA's exclusion zones. It also addressed the effect the residency and employment restrictions had on other registrants in Montgomery. The court found that these two restrictions made approximately 80 percent of the City of Montgomery's housing stock and 85 percent of its jobs off limits to registrants. But many registrants were able to find housing and jobs in Montgomery nonetheless. Of the 430 registrants who lived or worked in the city, the court found only three were homeless.⁶ And approximately 50 percent of these registrants had jobs. Although this meant that roughly half of the Montgomery registrants lacked jobs, the court noted that this number included some registrants who were not actively seeking employment.⁷

The court's conclusions of law addressed the merits of Mr. McGuire's ex post facto claims. The court explained that to prevail Mr. McGuire had to establish either that the legislature intended ASORCNA to impose punishment or that the challenged restrictions were sufficiently punitive in purpose or effect to overcome the legislature's nonpunitive intent. The court found that in enacting ASORCNA the Alabama legislature expressly intended to create a civil regulatory scheme, not to impose punishment. For most of the challenged restrictions, the district court concluded that Mr. McGuire failed to carry his burden of demonstrating that the restrictions were so punitive in purpose or effect that the legislature's nonpunitive intent was overridden. There were two exceptions: ASORCNA's dual reporting provisions, which required homeless registrants living in cities to report to both municipal and county law enforcement, and its travel permit requirement, which mandated that registrants living in cities obtain permission from both municipal and county law enforcement before traveling outside the area. The court determined that these two restrictions were so punitive in purpose or effect that the legislature's stated intent to create a civil regulation was negated. The district court declared the retroactive application of these two provisions unenforceable under the Ex Post Facto Clause.

Both Mr. McGuire and the Attorney General appealed parts of the district court's judgment. While this appeal was pending, the Alabama legislature amended ASORCNA. It removed the travel permit requirement and clarified that registrants simply needed to notify law enforcement before traveling. See 2017 Ala. Laws 414. It also modified the dual reporting requirements. Registrants who lived in cities no longer needed to report to both city and county law enforcement officers if they were homeless or planned to travel. See 2015 Ala. Laws 463.

In addition, the State changed how it implemented ASORCNA's requirement that a registrant carry a driver's license or state-issued identification card reflecting his status as a sex offender. At the time ...