Victory in the United States Court of Appeals for the Eleventh Circuit
By Larry . . . The case is Bruce Henry v. the Sheriff of Tuscaloosa County, Alabama, in his official capacity, the District Attorney of Tuscaloosa County, Alabama, in his official capacity, and the Attorney General of the State of Alabama, in his official capacity. Alabama Code § 15-20A-11(d)(4) prohibits adult registrants who have been convicted of a sex offense involving a child from residing or conducting an overnight visit with a minor, including their own children. No exceptions are provided in the statute. An “overnight visit” occurs whenever an offender is in the same place as a minor for any part of the period “between the hours of 10:30 p.m. and 6:00 a.m.” § 15-20A-4(14). According to the court, “Section 15-20A-11(d) prevents Henry from being present in the same home as his son (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; or (4) in any other circumstance where he is habitually and systematically present at his son’s home.” Opinion at 8.
In 2013, Bruce Henry pled guilty to one count of possessing images of minors. The decision noted that Henry has completed his term of imprisonment, married, and fathered a son. But Section 15-20A-11(d)(4) doesn’t allow him to live with his son. In 2021 he challenged Section 15-20A-11(d)(4) facially and as applied to him. He claimed that Section 15-20A-11(d)(4) violates his First Amendment right of intimate association and the Fourteenth Amendment’s guarantee of equal protection and due process of the law. Henry sought a declaratory judgment that Section 15-20A-11(d)(4) is overbroad and unconstitutional, both facially and as applied, and he requested that the district court enter an injunction against the defendants in order to prevent the law’s enforcement. In particular, he argued that Section 15-20A-11(d)(4) interferes with perhaps the oldest of the fundamental liberty interests that the Fourteenth Amendment secures, which is the fundamental right of parents to make decisions concerning the care, custody, and control of their children. He cited Meyer v. Nebraska, 262 U.S. 390, 399 (1923), a precedent dating back more than 100 years.
According to the court, “Alabama has not narrowly tailored its law to achieve its goal. The law offers no escape hatch whatsoever. So, a person who’s been convicted of a qualifying offense has no chance to avoid the law’s prohibition by proving that they wouldn’t be dangerous to their child. Rather, in every case without fail, Alabama’s law prohibits sex offenders who’ve been convicted of a qualifying offense from residing with their child, even if the individual can prove they present no risk to their child.” Opinion at 3. The court went on to say, “As a result, it deprives some individuals convicted of qualifying offenses of their fundamental right to establish a home and bring up their own children, in violation of the Fourteenth Amendment. And it deprives some children in Alabama of the presence of a parent who may be fit to lovingly care for and raise them.” Id.
Alabama argued that Section 15-20A-11(d)(4) is constitutional as applied to Henry because individuals convicted of a sex offense do not have a fundamental right to reside with their child. And the state asserted that even if Henry does have such a right, the law survives strict scrutiny because it is narrowly tailored to advance Alabama’s compelling interest in protecting children. The court stated, “We reject Alabama’s first claim and hold that Section 15-20A-11(d)(4) is unconstitutional as applied to Henry. The Constitution guarantees parents the right to live with their children. Henry did not necessarily forfeit that right when he committed a sexual offense, yet Section 15-20A-11(d)(4) automatically deprives him of that right…” Opinion at 16-17. The 111-page opinion illuminates additional arguments that the court did not find compelling.
NARSOL is elated that the Eleventh Circuit has protected one of the most cherished rights one has. Attorney Paul Dubbeling from North Carolina handled the initial case as well as the appeal. At this time, we do not know if Alabama plans to file a petition for certiorari to the United States Supreme Court.
Larry is on the NARSOL board and the Legal Committee.
WWIDOC has been pulling that bull on WI offenders since the 1990s. I’d tell them it was wrong and to hire a lawyer but none did stating they feared retaliation thru revocation. Or they would say it was too expensive. But that means the extra expense of living separately. Usually for unconstitutional stuff like that the court makes the state pay the attorneys fees. Mostly I think offenders a cowardly by nature and that is why they take garbage from state actors.
Rather than cowardly, are they not afraid? Don’t many people on the registry live in semi-terror? And often for good reason?