Multiple federal lawsuits filed
By Stephen . . . Federal civil suits have been filed in both Arizona and Missouri challenging the constitutionality of state-imposed registry laws.
In Arizona, John Doe, an activist within AZRSOL, a NARSOL Affiliate, filed a broad suit encompassing multiple parts of the registry and is seeking a declaratory judgment and permanent injunction against the Sheriff of Maricopa County, alleging violations of the First, Eighth and Fourteenth Amendments of the US Constitution.
The complaint filed on behalf of registrant Doe alleges that the violations apply both to Doe and facially to all of Arizona’s approximately 14,000 registrants. Doe has been required to register in Arizona since 2015 for a non-internet-based crime, and he is not listed publicly on the registry, as he was deemed a low risk, Level One, offender.
The suit claims the 2021 Arizona Revised Statutes §§ 13-3821 and 13-3822, violate the First Amendment by preventing Doe and others from exercising their right to free speech by preventing them from exercising lawful discourse on the internet free of government surveillance. Internet identifiers must be reported, even if the underlying offense did not involve the internet or a minor. Any website intended for use must be identified before it is used, even if it is an adults-only website.
Doe also has no means to be removed from the registry, and most Arizona registrants must remain on the registry for life without further assessment of risk. A recent case from South Carolina ruled a similar registry law unconstitutional. (Powell v. Keel, 433 S.C. 457, 860 S.E.2d 344 (2021)). The suit alleges that lifetime registration “. . . predicated solely on the fact of conviction and without opportunity for judicial review, violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”
The suit also alleges a plethora of vaguely worded laws that leave both registrants and law enforcement guessing when and how various requirements must be reported. The suit claims, “The Reporting Requirements of Arizona Revised Statutes §§ 13-3821 and 13-3822 are Unconstitutionally Vague, Both on Their Face and As Applied, in Violation of the Fourteenth Amendment Right to Due Process.”
The suit claims the registry inflicts punishment, violating the Eighth Amendment. For example, “Under Arizona Statute § 13-3821(J), Plaintiff must, at all times, carry with him identification specifically identifying him as a sex offender.” Such branded identification cards were recently found unconstitutional in Alabama. (Doe v. Marshall, 367 F. Supp. 3d 1310 (M.D. Ala. 2019))
In Missouri, a federal suit backed by ACSOL has been filed against the State Attorney General and the Chief of Police of Hazelwood, Missouri. The suit challenges the legality of mandated Halloween signage that must be placed in registrant’s addresses.
Thomas Sanderson was convicted of a sexual crime in 2006, prior to the passage of Halloween restrictions imposed by MO Rev Stat § 589.426 imposed August 28, 2008. Sanderson has from 2000 through 2022 displayed an elaborate Halloween decorative experience for his community, with up to 300 in attendance. The display included music and animated displays with lighting, fog machines, and bonfires. The local fire departments attended and handed out candy. Sanderson was aware of the new law and inquired multiple times with authorities, who all told him it was not applicable to him, as his crime predated the ordinance.
Suddenly on October 31, 2022, his residence with full display was surrounded with six marked police vehicles, sirens blaring. At least ten officers entered his property stating he was in violation of the state statute and requested to search his residence. Sanderson refused the request without a warrant. On November 3, a warrant was issued, and Sanderson was arrested and charged with one count of failure to comply with the statute. He was subsequently sentenced to 12 months of unsupervised probation.
The suit alleges that the statute mandating posted signage that states, “No candy or treats at this residence,” is compelled speech in violation of the First Amendment. The suit cites NARSOL’s previously supported victory in Georgia over similar compelled signage at Halloween. McClendon v. Long, 22 F.4th 1330 (11th Cir. 2022).
Sanderson is seeking relief for himself and all the approximately 20,000 registrants in Missouri. The suit asks that the defendants be enjoined in perpetuity from enforcement of the mandated signage and that the signage law be struck as null and void in violation of the First Amendment.
Federal district cases such as these have potential for a broader impact. If the litigants are successful, the decision is often appealed to one of the twelve federal circuit courts. Arizona is in the Ninth Circuit while Missouri is in the Eighth Circuit. Successful appeals have the potential to become binding precedent to all states within that circuit and offer persuasive authority to other circuits.
NARSOL is hopeful for positive findings as both the Arizona and Missouri cases move forward.