Million v. Rausch

671 F.Supp.3d 851

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

Case No. 3:22-cv-453

United States District Court, E.D. Tennessee, Northern Division, at Knoxville

Filed May 3, 2023

William S. Lockett, Jr., Knoxville, TN, for Plaintiff.

Elizabeth Helen Evan, Miranda Jones, Tennessee Attorney General's Office, Nashville, TN, Mallory Kathryn Schiller, Dickinson Wright, PLLC (Nashville), Law Enforcement and Special Prosecutions Division, Nashville, TN, for Defendant.

MEMORANDUM OPINION

TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE

Before the Court is a partial motion to dismiss filed by Defendant David B. Rausch, in his official capacity as Director of the Tennessee Bureau of Investigation ("TBI") (Doc. 23). For the reasons set forth below, TBI's motion (id.) will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND¹

A. The Evolution of Tennessee's Sex Offender Registration and Monitoring Laws

i. Tennessee's Sexual Offender Registration and Monitoring Act of 1994 ("SORMA")

In 1994, the Tennessee General Assembly enacted Tennessee's Sexual Offender Registration and Monitoring Act ("SORMA"), which charged the Tennessee Bureau of Investigation ("TBI") with "establish[ing], maintain[ing], and updat[ing] a centralized record system of sexual offender registration and verification information." 1994 Tenn. Pub. Acts ch. 976, § 7(a). SORMA obligated qualifying "sexual offenders" to register within ten days of release without supervision from probation, parole, or incarceration. Id. § 4. Starting in 1994, registrants had ten days to complete and return registration and monitoring forms sent to them by TBI. Id. § 5. A change of residence, even if temporary, also triggered a ten-day deadline to complete a form. Id. § 4. The majority of the information reported on such forms was kept confidential. Id. § 7(c). If a registrant was found to have violated SORMA, he could be charged with a misdemeanor for a first offense and a felony for subsequent offenses. Id. § 9.

ii. Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 ("2004 SORVTA")

Following a series of amendments, SORMA was ultimately repealed and replaced with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Trafficking Act ("2004 SORVTA") in 2004. 2004 Tenn. Pub. Acts ch. 921, §§ 1-6.

2004 SORVTA required that all registrants make regular in-person reports to law-enforcement agencies, provide updates to certain living and working changes within forty-eight hours, and pay administrative fees. Tenn. Code Ann. §§ 40-39-203(a), -204(b)-(c). 2004 SORVTA also codified a tiered classification system, distinguishing "violent sexual offenders"—a class of individuals convicted of certain offenses—from "sexual offenders." 2004 Tenn. Pub. Acts ch. 921, § 1(23)-(24). With the label of "violent sexual offender" came heightened registration requirements; 2004 SORVTA mandated that this class of registrants verify their information even more frequently than other registrants and that they would remain on the registry for life. Tenn. Code Ann. § 40-39-204(c). Violations of 2004 SORVTA are felony offenses for all registrants. Id. § 40-39-208(b).

iii. Subsequent Amendments

With each new amendment, the Tennessee General Assembly continued to tack on restrictions, resulting in a current version of the statute that is far more comprehensive than any of its prior forms. In 2008, for instance, the act was amended to restrict registrants' ability to live, work, and exist in proximity of schools, playgrounds, and other facilities, as well as their ability to take on work that puts them in direct and unsupervised contact with minors. See 2008 Tenn. Pub. Acts, ch. 1164, §§ 11-13. Since 2008, the act has also required registrants to report any change in their "electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use" to law enforcement within three days. See 2008 Tenn. Pub. Acts, ch. 979, §§ 1-3. Three years later, restrictions to entering libraries and traveling outside the country were appended. See 2011 Tenn. Pub. Acts, ch. 287; 2011 Tenn. Pub. Acts, ch. 266, § 1. In 2014, the Tennessee General Assembly added a new rung on the sex-offender-registry hierarchy: "offenders against children." 2014 Tenn. Pub. Acts ch. 770 § 1, 2. Despite not necessarily falling into the "violent sexual offenders" category, this group of offenders also became subject to the lifetime registration requirements. Id. Additional limitations on movement were also incorporated; registrants became banned from living or working within 1,000 feet of schools, daycare centers, public parks, playgrounds, recreation centers, or public athletic fields. 2014 Tenn. Pub. Acts ch. 992, § 1. In 2015, the legislature added a prohibition on a registrant being alone with children other than his own in a "private area." See 2015 Tenn. Pub. Acts, ch. 516.

The current form of the Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004 ("SORVTA" or "the Act") requires all registrants included in the class of "violent sexual offenders," which now encompasses the categories of "sexual offenders who prey on children" and "repeat sexual offenders," to register for life. Tenn. Code Ann. §§ 40-39-201(b)(1), 40-39-202(20), (30)-(31), 40-39-207(g)(2). Members of the other group of registrants—"sexual offenders"—may petition to be removed from the registry after ten years, but removal hinges on an evaluation based on a variety of factors, including a registrant's record of compliance with SORVTA's requirements. The offender classification TBI has assigned to a registrant is displayed on his driver's license, which must be carried with him at all times. Id. §§ 55-50-353, 40-39-213.

The Act also requires registrants to submit personal information—including his home address, license-plate number, employer address, and photograph—which, as provided by the Act, "shall be considered public information" available through a web page. Id. § 40-39-206(d). Changes in information, particularly pertaining to a registrant's residence and employment, must be updated in person within 48 hours. Id. § 40-39-203(a)(1), (4), (6). Failure to do so constitutes a Class E felony. Id. § 40-39-208(b).²

Finally, SORVTA imposes a number of restrictions on a registrant's movement by establishing geographic exclusion zones. For instance, registrants cannot knowingly

(A) Be upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other childcare 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 eighteen (18) years of age are present;

(B) Stand, sit idly, whether or not the offender is in a vehicle, or remain within one thousand feet (1,000') of the property line of any building owned or operated by 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 children under eighteen (18) years of age are present, while not having a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there; or

(C) Be in any conveyance owned, leased or contracted by a school, licensed day care center, other childcare facility or recreation center to transport students to or from school, day care, childcare, or a recreation center or any related activity thereof when children under eighteen (18) years of age are present in the conveyance.

Id. § 40-39-211(d)(1). Violations are a Class E felony. Id. § 40-39-211(f).³

B. Plaintiff's Background

In 1993, before Tennessee's sex-offender registry was adopted, Plaintiff George Million was charged with committing a "lewd and lascivious act" in the presence of a minor in violation of Florida law. (Doc. 7, at 5); see Fla. Stat. Ann. § 800.04. Million was never convicted. (Doc. 7, at 1.) Instead, he agreed to a withheld adjudication, which is Florida's equivalent of a pretrial diversion. (Id. at 5.)

After moving to Tennessee in 2006, Million checked in with TBI about his registration requirements in the state. (Id.) According to Million, the former registry supervisor, Pam Beck, advised him that he did not need to register in Tennessee. (Id.) It was not until over fifteen years later, in January 2022, that Million was arrested for failing to comply with SORVTA. (Id.) TBI initially classified Million as a "violent sexual offender," despite his charged offense involving neither violence nor a child under age thirteen. (Doc. 18-2, at 4-7.) Within a month of Million filing a preliminary-injunction motion (Doc. 8), TBI mailed him a letter stating it was reclassifying him as a "sexual offender." (Doc. 18-3, at 2.)

According to Million, the Act "subjects [him] to continuous reporting, surveillance, and supervision[,]" and "limits his ability to find housing and employment[,] get an education[,] travel[,] engage in speech activities (including use of the Internet)[,] be free from harassment and stigma[,] and understand what is required of him under the Act." (Doc. 7, at 20.) In terms of his employment, Million claims he and his family have been "punished economically as a result of his being forced to register." (Id. at 24.) Though Million has continued to work as "co-owner of a successful commercial roofing [company,]" he laments the loss of business with "at least two companies that had regularly contracted with [his] company for years" due to his compliance with the Act. (Id. at 24-25.) Million also expresses...