United States District Court, E.D. New York
TROY C. WALLACE, et al., Plaintiffs,
STATE OF NEW YORK, et al., Defendants
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Troy C. Wallace, Plaintiff, Pro se, Ronkonkoma, N.Y. USA.
Richard T Geoffrion, Plaintiff, Pro se, Holbrook, N.Y. USA.
Jr. Marcello M Aiello, Plaintiff, Pro se, Yaphank, N.Y. USA.
Joshua L Factor, Plaintiff, Pro se, Farmingville, N.Y. USA.
Charles Mclauren, Plaintiff, Pro se, Bellport, N.Y. USA.
Jehovah Cobin, Plaintiff, Pro se, Patchogue, N.Y. USA.
Robert Blunt, Plaintiff, Pro se, West Babylon, N.Y. USA.
Angel Tirado, Plaintiff, Pro se, Bronx, N.Y. USA.
Earl Calloway, Plaintiff, Pro se, Westbury, N.Y. USA.
Santiago Pena Marvin, Consol Plaintiff, Pro se, Coram, N.Y. USA.
Angel Resto, Consol Plaintiff, Pro se, Central Islip, N.Y. USA.
Joseph Bullard, Consol Plaintiff, Pro se, N. Shirley, N.Y. USA.
Albert Benton, Consol Plaintiff, Pro se, Bohemia, N.Y. USA.
Andre Briggs, Consol Plaintiff, Pro se, North Babylon, N.Y. USA.
Phillip Riley, Consol Plaintiff, Pro se, Bohemia, N.Y. USA.
Jerry Kee, Consol Plaintiff, Pro se, Coram, N.Y. USA.
Jason Bullock, Consol Plaintiff, Pro se, Wheatly Heights, N.Y. USA.
Theodore Wells, Consol Plaintiff, Pro se, Bellport, N.Y. USA.
Martin Newkirk, Consol Plaintiff, Pro se, West Babylon, N.Y. USA.
Cleveland Jackson, Consol Plaintiff, Pro se, Shirley, N.Y. USA.
Benjamin M. Brown, Consol Plaintiff, Pro se, Huntington Station, N.Y. USA.
Jose Escobar, Consol Plaintiff, Pro se, Brentwood, N.Y. USA.
Thomas Lane, Consol Plaintiff, Pro se, Bohemia, N.Y. USA.
Donald Evans, Consol Plaintiff, Pro se, Wyandanch, N.Y. USA.
For State of New York, Defendant: Susan M. Connolly, LEAD ATTORNEY, N.Y.S. Office of the Attorney General, Hauppauge, N.Y. USA.
For County of Suffolk, Defendant: Rudolph Max Baptiste, Suffolk County Attorney's Office, Hauppauge, N.Y. USA.
For Susan Westergard, Coordinator of Suffolk County's Homeless Sex Offender Trailer, Dept. of Social Service, in her official and individual capacities, Defendant: Rudolph Max Baptiste, Suffolk County Attorney's Office, Hauppauge, N.Y. USA.
For Mayor Mark Epley, Town of South Hampton, in his official and individual capacities, Defendant: David H. Arntsen, LEAD ATTORNEY, Devitt Spellman Barrett, LLP, Smithtown, N.Y. USA; Anne C. Leahey, Devitt Spellman Barrett, Smithtown, N.Y. USA.
For Alexander M. Roberts, Community Housing Innovations, Inc. Executive Director, Defendant: Thomas A. Catalano, LEAD ATTORNEY, Lester, Schwab, Katz & Dwyer, LLP, New York, N.Y. USA; John A. Wait, Fox, Rothschild Law Firm, New York, N.Y. USA; Oksana Gaussy Wright, Fox Rothschild LLP, New York, N.Y. USA.
For Dept of Social Service, Gregory Bias, Department of Social Services, in his official and individual capacities, Gregory Blas, N.Y.S. Dept. of Social Service Commissioner; in his official and individual capacity, Consol Defendants: Rudolph Max Baptiste, Suffolk County Attorney's Office, Hauppauge, N.Y. USA.
For Southampton Town Police, Consol Defendant: David H. Arntsen, LEAD ATTORNEY, Devitt Spellman Barrett, LLP, Smithtown, N.Y. USA; Anne C. Leahey, Devitt Spellman Barrett, Smithtown, N.Y. USA.
For Community Housing Innovations, Consol Defendant: John A. Wait, LEAD ATTORNEY, Fox, Rothschild Law Firm, New York, N.Y. USA; Oksana Gaussy Wright, LEAD ATTORNEY, Fox Rothschild LLP, New York, N.Y. USA.
For New York State Department of Social Service, Consol Defendant: Susan M. Connolly, LEAD ATTORNEY, N.Y.S. Office of the Attorney General, Hauppauge, N.Y. USA.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge.
Table Of Contents
1. Troy Wallace
2. Marcello Aiello, Jr.
3. Robert Blunt
4. Earl Calloway
5. Jehovah Colon
6. Joshua Factor
7. Richard Geoffrion
8. Charles McLaurin
9. Angel Tirado
B. The Laws
1. State Registration Requirements
2. The State, County, and Town Residency Restrictions
C. Procedural History and Claims
A. Standard of Review
B. Article III Standing
1. Standing to Challenge the State Registration Requirements
2. Standing to Challenge the State Residency Restrictions
3. Standing to Challenge the County and Town Residency Restrictions
4. Standing to Challenge the County's Trailer Program
C. The State's Motion to Dismiss
1. Statute of Limitations
2. Eleventh Amendment Immunity
3. Failure to State a Claim
i. Ex Post Facto Claim Relating to the Current State Registration Requirements
ii. Ex Post Facto Claim Relating to the State Residency Restrictions
D. The Other Parties' Motions to Dismiss
1. Preemption Claims Regarding the County and Town Residency Restrictions
2. Failure to State a Claim
i. Ex Post Facto Claims Relating to the County and Town Residency Restrictions
ii. Equal Protection Claim Relating to the County's Trailer Program
3. Pendent Jurisdiction
In this case (" Wallace " ), nine individuals (" Plaintiffs" ) claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 (" Am. Compl." ) ¶ ¶ 1-3.) Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. ( Id. ¶ ¶ 45-46.)
Defendants--the State of New York (the " State" ); the County of Suffolk (the " County" ) and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services (the " County DSS" ) (collectively, the " County Defendants" ); Mark Epley, in
his official capacity as Mayor on behalf of the Town of Southampton (the " Town" ); and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. (" CHI" )--move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68-70; 79.) For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.
The Court takes the following facts from the allegations in the Wallace Complaint, which are assumed to be true for purposes of Defendants' motions, and otherwise judicially-noticeable information. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (" When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended
complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." ); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 & n.3 (2d Cir. 2002) (citing standard in Brass with approval as " congruent with that of our sister Circuits" ).
In construing the claims in this case, the Court recognizes that, because Plaintiffs, as pro se litigants, are to be afforded " special solicitude," the Wallace Complaint " must be construed liberally and interpreted to raise the strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (quotations omitted).
As an initial matter, the Wallace Complaint is incomplete, in terms of its allegations as to (i) when, or if, Plaintiffs were convicted of a sex offense, released from prison, placed on probation or parole, and/or classified as a specific risk-level of sex offender; and (ii) where they live. ( See State Br., at 2 n.3, 3, 14; Epley Br., at 2.) Such information, however, is available on the State's sex offender registry website (http://www.criminaljustice.ny.gov/nsor) and, thus, is judicially-noticeable. See Zielinski v. DeFreest, No. 12-CV-1160, 2013 WL 4838833, at *1 n.2 (S.D.N.Y. Sept. 10, 2013) (" While [a plaintiff in a Bivens action] does not allege his status [as a Level 2 sex offender], it is evident from the publicly available New York Sex Offender Registry, and accordingly, is a fact of which the Court may take judicial notice." ); see also U.S. v. Akinrosotu, 637 F.3d 165, 168 (2d Cir. 2011) (per curiam) (taking judicial notice of the " [Bureau of Prisons's] projected date for the defendant's release from prison" on its " official website" ); Williams v. City of N.Y., No. 07-CV-3764, 2008 WL 3247813, at *2 & n.3 (S.D.N.Y. Aug. 7, 2008) (considering, on a motion to dismiss, the terms of the Section 1983 plaintiff's conviction and sentence, based on judicially-noticeable information " obtained on . . . the New York Department of Correction Services Inmate Population Information Search webpage" ).
1. Troy Wallace
Plaintiff Troy Wallace committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 15-year old female in October 1991. (Ex. A.) Wallace was convicted in April 1992, and is classified as a risk-level two sex offender. ( Id.) Although Wallace was originally sentenced to six months in prison and five years of probation, his probation was revoked in August 1992, and he was resentenced to 18-54 months in prison. (Am. Compl. ¶ ¶ 4-6.) In November 1995, Wallace was released on parole; his maximum expiration date for parole was May 1997. ( Id. ¶ 7.) Wallace
is now on parole for a " non-sex related subsequent conviction." ( Id.) Wallace has (i) listed a P.O. Box in Ronkonkoma in the Town of Islip, Suffolk County ( id. at 20), and (ii) registered a primary residence at a correctional facility in the Town of Riverhead, Suffolk County (Ex. A).
2. Marcello Aiello, Jr.
Plaintiff Marcello Aiello, Jr. committed third-degree rape (N.Y. Penal Law § 130.25) of a 16-year old female in February 2007. (Ex. B.) Aiello was convicted in December 2009, and is classified as a risk-level two sex offender. ( Id.) Aiello was sentenced to three years in prison, and has been released on parole with a maximum expiration date of January 13, 2027. ( Id.) Aiello has (i) listed an address in Yaphank in the Town of Brookhaven, Suffolk County (Dkt. No. 5-1), and (ii) registered a primary residence at a correctional facility in the Town of Collins, Erie County (Ex. B).
3. Robert Blunt
Plaintiff Robert Blunt committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 64-year old female in November 1999. (Ex. C.) Blunt was convicted in February 2000, and is classified as a risk-level three sex offender and a " [s]exually [v]iolent [o]ffender." ( Id.) Blunt was sentenced to seven years in prison, and has been released on parole with a maximum expiration date of September 25, 2017. ( Id.) Blunt has (i) listed an address in West Babylon in the Town of Babylon, Suffolk County (Dkt. No. 5-2), and (ii) registered a primary residence at a correctional facility in the Town of Malone, Franklin County (Ex. C).
4. Earl Calloway
Plaintiff Earl Calloway committed first-degree rape and first-degree sexual conduct against a child (N.Y. Penal Law § § 130.35, 130.75) in March 1999; the victim was a 10-year old female. (Ex. D.) Calloway was convicted in August 2000, and is classified as a risk-level three sex offender and a " [s]exually [v]iolent [o]ffender." ( Id.) Calloway's sentence was eight years in prison; he has been released, but is not on parole. ( Id.) Calloway has (i) listed a P.O. Box in Holbrook in the Towns of Islip and Brookhaven, Suffolk County (Dkt. No. 5-3), and (ii) registered a primary residence in Freeport in the Town of Hempstead, Nassau County (Ex. D).
5. Jehovah Colon
Plaintiff Jehovah Colon (incorrectly appearing as " Cobin" on the docket) committed first-degree attempted rape (N.Y. Penal Law § 130.35) of two females, an 8-year old and an 11-year old, in April 2001. (Ex. E.) Colon was convicted in July 2001, and is classified as a risk-level three sex offender and a " [s]exually [v]iolent [o]ffender." ( Id.) Colon's sentence was 150 months (12 years and 6 months); he has been released, but is not on parole. ( Id.)
Colon has (i) listed an address in Patchogue (Dkt. No. 5-4), and (ii) registered a primary residence in Coram (Ex. E.). Both Patchogue and Coram are in the Town of Brookhaven, Suffolk County.
6. Joshua Factor
Plaintiff Joshua Factor committed a second-degree criminal sex act (N.Y. Penal Law § 130.45) against a 14-year old male in August 2007. (Ex. F.) Factor was convicted in March 2008, and is classified as a risk-level two sex offender. ( Id.) Factor was sentenced to three years in prison, and has been released on parole with a maximum expiration date of December 3, 2015. ( Id.) Factor has (i) listed an address in Farmingville in the Town of Brookhaven, Suffolk County (Dkt. No. 5-5), and (ii) registered a primary residence at a correctional facility in the Town of Marcy, Oneida County (Ex. F).
7. Richard Geoffrion
Plaintiff Richard Geoffrion committed a felony sex offense, outside of New York State, against a 15-year old female in September 2000. (Ex. G.) Geoffrion was convicted out-of-state in June 2001, and sentenced to one year of probation. ( Id.) Geoffrion is classified as a risk-level three sex offender. ( Id.) Geoffrion has (i) listed an address in Holbrook in the Towns of Brookhaven and Islip, County of Suffolk (Dkt. No. 5-6), and (ii) registered a primary residence in Coram in the Town of Brookhaven, Suffolk County (Ex. G).
8. Charles McLaurin
Plaintiff Charles McLaurin (incorrectly appearing as " McLauren" on the docket) committed and was subsequently convicted in February 1995 of first-degree sexual abuse (N.Y. Penal Law § 130.65) of two females, a 9-year old and an 11-year old. (Ex. H.) McLaurin is classified as a risk-level three sex offender. ( Id.) McLaurin's sentence was two to four years in prison; he has been released, but is not on parole. ( Id.) McLaurin has (i) listed an address in Bay Shore in the Town of Islip, Suffolk County (Dkt. No. 5-7), and (ii) registered a primary residence in Bellport in the Town of Brookhaven, Suffolk County (Ex. H).
9. Angel Tirado
Plaintiff Angel Tirado committed forcible touching (N.Y. Penal Law § 130.52) of a 14-year old female in September 2003. (Ex. I.) Tirado was convicted in January 2005, and is classified as a risk-level two sex offender. ( Id.) Tirado's sentence was six months in prison; he has been released, but is not on parole. ( Id.) Tirado has (i) listed an address in the Bronx (Dkt. No. 5-8), and (ii) registered a primary residence at a correctional facility in the State of Pennsylvania (Ex. I).
None of the above information suggests that Plaintiffs reside, or have ever resided, in trailers for homeless sex offenders, operated by the County DSS pursuant to a program known as " the County DSS's overnight placement facility." (Am. Compl. ¶ ¶ 45-46; County Defs. Br., at 1.) The Wallace Complaint, however, does allege that Plaintiffs were transported to the " secured premises of the property of Suffolk County jail in Riverhead where such trailer program is located," whereupon, like " prisoners," they did not enjoy the same rights as " other free men." (Am. Compl. ¶ ¶ 45-46 (emphasis added).)
B. The Laws
1. State Registration Requirements
On January 21, 1996, the State's Sex Offender Registration Act (" SORA" ), codified as N.Y. Correct. Law § 168 et seq., took effect. SORA, 1995 N.Y. Sess. Laws Ch. 192 (S. 11-B) (1995) (McKinney).
SORA " requires sex offenders, after serving their sentences, to register with law enforcement officials, and provides for various degrees of public notification of the identity and address of these offenders." Doe v. Pataki (" Pataki " ), 120 F.3d 1263, 1265 (2d Cir. 1997). To support its registration requirements and notification provisions, SORA also sets up a system for classifying sex offenders as risk-level one, two, or three, based on a set of " factors." Id. at 1267-68 & n.5; see also supra note 7.
The preamble to SORA states:
The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.
The system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.
1995 N.Y. Sess. Laws Ch. 192 (S. 11-B), § 1.
SORA's registration requirements (the " State registration requirements" ) apply to any " sex offender" convicted, in prison, or on probation or parole, as of January 21, 1996. Id. § 2 (adopting N.Y. Correct. Law § § 168-f, 168-g). As originally adopted, the requirements provided, among other things, that the period of annual registration would be:
o 10 years for a " sex offender" ; and
o at least 10 years, with mandatory verifications every 90 days, for a " sex offender" who is designated a " sexually violent predator," then-defined as a sex offender (i) convicted of a " sexually violent offense,"  (ii) suffering a " mental abnormality," or (iii) classified as a risk-level three sex offender.
Id. (adopting N.Y. Correct. Law § § 168-a, 168-h, 168-l). The requirements also provided that " [a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court." Id. (emphasis added) (adopting N.Y. Correct. Law § 168-o).
On March 11, 2002, the State registration requirements were amended. Act of Mar. 11, 2002, 2002 N.Y. Sess. Laws Ch. 11 (S. 6263-A), § 24 (2002) (McKinney). In particular, the period of annual registration was amended to reflect several newly-defined terms:
o 10 years for a " sex offender" (i) who is not designated (a) a " sexually violent offender," defined as a sex offender convicted of a " sexually violent offense," (b) a " sexual predator," defined as a sex offender convicted
of a " sexually violent offense" and suffering from a " mental abnormality or personality disorder," or (c) a " predicate sex offender," defined as a sex offender previously convicted of another offense, or (ii) who, as of March 11, 2002, is classified as a risk-level one or two sex offender;
o lifetime for a designated " sexually violent offender" or " predicate sex offender" ; and
o lifetime, with mandatory verifications every 90 days, for a designated " sexual predator" or a sex offender who, as of March 11, 2002, is classified as a risk-level three sex offender.
Id. § § 1-2, 4, 13 (amending N.Y. Correct. Law § § 168-a, 168-h). The right to petition for relief from " any further duty to register" was also amended to apply only to a sex offender who, as of March 11, 2002, is classified as a risk-level three offender and has been registered for at least 13 years. Id. § 22 (amending N.Y. Correct. Law § 168-o).
Finally, on January 18, 2006, the State registration requirements were amended again. Act of Jan. 18, 2006, 2006 N.Y. Sess. Laws Ch. 1 (S. 6409, A. 9472), § 6 (2006) (McKinney). The amendments, which remain in place today, apply to any sex offender (i) " registered or required to register immediately prior to" January 18, 2006, i.e., individuals still subject to the requirements as amended in March 2002; or (ii) " required to register on or after" January 18, 2006. Id. As amended, the period for annual registration is:
o 20 years for a " sex offender" who is not designated a " sexually violent offender," " sexual predator," or " predicate sex offender," and is classified as a risk-level one sex offender; and
o lifetime for a sex offender (i) who is designated a " sexually violent offender," " sexual predator," or " predicate sex offender," or (ii) who is classified as a risk-level two or three sex offender.
N.Y. Correct. Law § 168-h. The right to petition for relief from " any further duty to register," as amended, applies only to a risk-level two sex offender who is not designated a " sexually violent offender," " sexual predator," or " predicate sex offender," and has been registered for at least 30 years. N.Y. Correct. Law § 168-o.
To summarize, the State registration requirements changed after SORA was adopted. Starting in January 1996, the State required that convicted sex offenders register for 10 years, or--if designated a " sexually violent predator," for instance, due to a risk-level three classification--more than 10 years. All sex offenders could petition for relief.
As of March 2002, sex offenders classified as a risk-level one or two offender, who were not designated a " sexually violent offender," " sexual predator," or " predicate sex offender," were still required to register for 10 years; only sex offenders classified as a risk-level three offender, or those falling within one of the aforementioned designations, were required to register for life. The right to petition for relief was limited to a subset of risk-level three sex offenders.
Since January 2006, sex offenders still subject to the requirements as amended in March 2002, or subsequently required to register, have an extended 20-year duty to register, if they are classified as a risk-level one offender; or a lifetime duty, if they are either classified as a risk-level two or three offender or designated a " sexually violent offender," " sexual predator," or " predicate sex offender." Only specific risk-level two sex offenders retain the right to petition for relief.
2. The State, County, and Town Residency Restrictions
The State's Sexual Assault Reform Act, which went into effect on February 1, 2001, enacted new provisions, codified as N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a). Sexual Assault Reform Act, 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), § § 7-8, 57 (2000) (McKinney). These provisions, when originally adopted, only prohibited the presence of certain sex offenders " within the real property boundary line" of schools. Id. § § 7-8 (adopting N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a), both of which only incorporated " paragraph (a)" of the definition for " school grounds" in N.Y. Penal Law § 220.00(14)); N.Y. Penal Law § 220.00(14)(a). The original provisions, in short, did not operate to preclude such individuals from residing near schools. Additionally, these provisions only applied to sex offenders sentenced to probation or released on parole for an offense defined in Articles 130 (" Sex Offenses" ), 135 (" Kidnapping, Coercion and Related Offenses" ), 235 (" Obscenity and Related Offenses" ), or 263 (" Sexual Performance by a Child" ), or Section 255.25 (" Incest in the third degree" ), of the New York Penal Law, where the victim of the offense was " under the age of eighteen at the time." 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), § § 7-8.
Eventually, as of September 1, 2005, the above provisions were amended to also prohibit the presence of certain sex offenders--and, in effect, to preclude their residence--within 1,000 feet beyond the " real property boundary line" of schools during school hours. Act of Aug. 19, 2005, 2005 N.Y. Sess. Laws Ch. 544 (A. 8894), § § 1-2, 4 (2005) (McKinney) (amending N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a) to incorporate the whole definition for " school grounds" in N.Y. Penal Law § 220.00(14)); see N.Y. Penal Law § 220.00(14) (defining " school grounds" to include " any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school" ). In other words, by their operation, these provisions, as amended, have become statewide sex offender residency restrictions (the " State residency restrictions" ).
The September 2005 amendments also extended the State residency restrictions to cover any sex offender probationer or parolee who:
o is convicted of an offense identified in the original provisions; and
o either (i) commits the offense against a victim " under the age of eighteen at the time" or (ii) is classified as a risk-level three sex offender.
2005 N.Y. Sess. Laws Ch. 544 (A. 8894), § § 1-2. In other words, after September 2005, a sex offender probationer or parolee is subject to these restrictions not only if he is convicted of a specific offense against a child, but also if he is convicted of a specific offense and classified as a risk-level three offender. These restrictions remain in effect today.
The residency restrictions in the County Code Ch. 745, Art. 1 (originally Ch. 428, Art. 1) (the " County residency restrictions" ),
were adopted on February 7, 2006 (Loc. L. No. 12-2006); and subsequently amended on December 5, 2006 (Loc. L. No. 64-2006), December 1, 2009 (Loc. L. No. 42-2009), and February 1, 2011 (Loc. L. No. 14-2011). Suffolk Cnty., N.Y., Code (" Cnty. Code" ) ch. 745, art. 1, available at http://www.ecode360.com/14954996. The stated reasons for these restrictions are the following:
. . . This Legislature hereby finds and determines that sex offenders pose an unreasonable threat to the safety and well-being of children.
. . . This Legislature also finds and determines that the County of Suffolk has gone to great lengths to protect the children of this County from sex offenders, such as requiring certain sex offenders to wear ankle bracelets so that law enforcement can determine their whereabouts.
. . . This Legislature further finds and determines that information is currently available to the public regarding these high-risk offenders, which information is available through the Internet and other sources.
. . . This Legislature finds that it is imperative that the County of Suffolk takes all steps necessary to protect the most vulnerable residents of the County.
Id. § 745-1.
Specifically, the County residency restrictions prohibit any convicted sex offender, as long as they are subject to the State registration requirements, from residing " within 1/4 mile of the property line of [(i)] any school, including, but not limited to, any public or private nursery, elementary, middle or high school; or [(ii)] a licensed day-care center; or [(iii)] a playground; or [(iv)] an amusement park; or [(v)] the residence or principal place of employment of the victim(s) of their crime(s)." Id. § § 745-2, 745-3. These restrictions, however, exempt the residences of sex offenders established prior to February 7, 2006; or prior to the erection of new schools, daycare centers, or playgrounds within 1/4 mile. Id. § 745-4.
The residency restrictions in the Town Code Ch. 215, Art. 1 (the " Town residency restrictions" ), were adopted on October 23, 2007 (Loc. L. No. 51-2007), and subsequently amended on December 11, 2007 (Loc. L. No. 60-2007). Town of Southampton, N.Y., Code (" Town Code" ) ch. 215, art. 1, available at http://ecode360.com/8696165. The enacting legislation cites the County residency restrictions, and suggests that the Town's reasons for implementing its own restrictions are similar and that the Town's restrictions make up for perceived deficiencies in the County's restrictions:
. . . The Town Board hereby finds and determines that sex offenders, as defined in this chapter, pose an unreasonable threat to the safety and well-being of children within the Town of Southampton because their risk of repeat offense has been determined to be either high or moderate.
. . . The Town Board hereby finds and determines that there are certain areas of the town where large numbers of children learn, play, congregate and travel and these areas are particularly in need of protection from the unreasonable threat of sex offenders.
. . . The Town Board further finds and determines that information is currently available to public safety agencies and the general public regarding the locations of the residences and places of
employment of sex offenders, which information is available through the State of New York sex offender registry, the internet and other sources.
. . . The Town Board further finds and determines that Suffolk County has already enacted restrictions preventing all registered sex offenders from residing within one quarter mile of any public or private nursery, elementary, middle or high school, licensed day-care center, or playground.
. . . The Town Board further finds and determines that Suffolk County's law has certain limitations, among them, that the Suffolk County law does not provide the level of protection to the children of the Southampton Town who live in school districts that do not offer and fund transportation services for all students living within one (1) mile of their respective school that the Town Board finds necessary for the protection of those children.
. . .
The Town Board finds and determines that the purpose of this Chapter is not to punish sex offenders, but rather to provide a regulated system that prevents sex offenders from residing in areas where large numbers of children learn, play, congregate and travel.
(Dkt. No. 68-2 (Law of Oct. 23, 2007, Loc. L. No. 51-2007, § 1 (2007) (adopting Town Code ch. 215, art.1)).)
The Town residency restrictions apply to any risk-level two or three sex offenders, as long as they are subject to the State registration requirements. Town Code ch. 215, art. 1, § § 215-1, 215-2. Under these restrictions, it is unlawful for such sex offenders to take up residence within (i) one mile of a school that does not transport students residing in a one-mile radius thereof; (ii) 2,000 feet of a school that does transport these students; and (iii) 2,000 feet of a " child-care facility or municipal recreational facility." Id. § 215-2. Like the County, the Town exempts prior-established residences from these restrictions, including residences established before October 23, 2007. Id. § 215-3.
C. Procedural History and Claims
On November 26, 2012, the original complaint was filed in Wallace by Plaintiff Wallace and other unnamed plaintiffs. ( See Dkt. No. 1 (listing " Troy C. Wallace, et al." as the plaintiffs).) Two days later, the same complaint was re-filed, styled as an " amended" complaint. (Am. Compl., at 1.) The amended complaint, which is the operative Wallace Complaint, was signed by all Plaintiffs ( id. at 20), and it attached, and incorporated by reference, form complaints from each of the Plaintiffs except for Wallace, whose individualized allegations were set forth in the body of the amended complaint. (Dkt. Nos. 5-1-5-8).
In the Wallace Complaint, Plaintiffs claim, pursuant to 42 U.S.C. § 1983 (" Section 1983" ), that:
o the State registration requirements violate the Ex Post Facto Clause because they impose a duty to register on " those convicted of qualifying offenses before the passing of the law" and, as amended in 2006, lengthen the duty from " ten years" to " lifetime duration" after those individuals' convictions (Am. Compl. ¶ ¶ 1-2, 15, 37);
o the State, County, and Town residency restrictions also amount to ex post facto violations, in that these restrictions impose a restraint, and sometimes " uproot offenders from their communities," based on a " past conviction" ( id. ¶ ¶ 3, 27, 29, 37, 41); and
o the County's trailer program--which Defendant Westergaard operates and for which Defendant Alexander furnishes transportation, in their official capacities--deprives sex offenders, forced into homelessness through the above restrictions, of the same conditions that " other free men" enjoy, e.g., access to " therapeutic programming, schooling, employment and . . . regular showering," in violation of the Fourteenth Amendment's Equal Protection Clause ( id. ¶ ¶ 45-46).
Plaintiffs also claim that the County and Town residency restrictions are preempted by state law in an area of regulation, i.e. " sex offenders," that the State intended to occupy ( id. ¶ ¶ 3, 39). With respect to their Section 1983 and supplemental state law claims, Plaintiffs are seeking compensatory damages and up to $25 million in punitive damages, as well as declaratory and injunctive relief. ( E.g., Dkt. No. 5-1, at 5.)
On March 8, 2013 and April 2, 2013, Judge Joseph F. Bianco, who was previously assigned to this case, ordered that 13 pending cases, see supra note 1, and any future cases relating to the above requirements and restrictions, be consolidated with, and considered related to, Wallace as the lead case. ( See Dkt. Nos. 27; 40.) Judge Bianco also directed that any submissions in these consolidated cases should be docketed in Wallace. ( Ibid.)
On April 19, 2013, Wallace was reassigned to the Court. Shortly thereafter, the Court consolidated two subsequently-filed cases with Wallace, consistent with Judge Bianco's orders.
Between September 24, 2013 and October 7, 2013, Defendants filed four fully-briefed motions to dismiss the claims in Wallace. (Dkt. Nos. 68-70; 79.)
On May 13, 2014, the Court held limited oral argument on the impact of the County and Town residency restrictions on where convicted sex offenders may live, and subsequently ordered the Town to submit information on where within its geographical boundaries convicted sex offenders are permitted to live pursuant to these restrictions. (Minute Entry, dated May 13, 2014.) The Town submitted this information on June 24, 2014 and August 5, 2014. (Dkt. Nos. 94-1; 96.)
A. Standard of Review
Even with the " special solicitude" to which their complaints are entitled, and the assumption that any reasonably-inferred factual allegations contained therein are true, pro se plaintiffs must still satisfy the " plausibility standard" of pleading claims for which relief may be granted, pursuant to Ashcroft v. Iqbal (" Iqbal " ), 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (Kennedy, J.), and Bell A. Corp. v. Twombly (" Twombly " ), 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (Souter, J.). See Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (applying Iqbal/Twombly to its de novo review regarding the sufficiency of a pro se plaintiff's amended complaint). Otherwise, such claims are susceptible to a motion to dismiss.
Under Iqbal/Twombly, a claim may only survive such a motion, if the complaint does more than recite the legal " elements" of the claim and, with respect to the claim, makes " factual allegations" which sufficiently " raise a right to relief above the speculative level." Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555. To be sufficient to exceed mere speculation, such allegations must allow the Court, based on its " judicial experience and common sense," to infer that the claim is plausible, i.e., to make a " reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678-79. Even if the claim need not establish that the defendant is probably liable, the claim still has to cross the " line between possibility and plausibility." Twombly, 550 U.S. at 556-57 (emphasis added).
Ordinarily, " the court should not dismiss [ pro se complaints] without granting leave to amend at least once." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, where the Court scours the complaint and determines that there are no claims that pro se plaintiffs have simply " inadequately or inartfully pleaded," it may deny them the " chance to reframe" their claims, because any amendment would be " futile."  Id.
B. Article III Standing
Although the State and Epley are the only ones to contest Plaintiffs' standing (State Br., at 13-14; Epley Br., 5-8), the Court has an " independent obligation" to analyze the issue of standing, as it implicates the Court's jurisdiction to consider the relevant challenges to the registration requirements, residency restrictions, and trailer program. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (O'Connor, J.); see also Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005) (" Because the standing issue goes to this Court's subject matter jurisdiction, it can be raised sua sponte." ). The reason is that Article III of the Constitution only confers jurisdiction on federal courts over " Cases" and " Controversies," U.S. Const. art. III, § 2, cl. 1; and standing, at its " core," is an " essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife (" Defenders of Wildlife " ), 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Scalia, J.); see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (Powell, J.) (" In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III." ).
" [T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact --an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 'conjectural' or 'hypothetical[.]' Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Defenders of Wildlife, 504 U.S. at 560-61 (emphasis added) (citations and quotations omitted; second, third, and fourth modifications
in the original); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (O'Connor, J.) (outlining the " core component" of standing), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, __ U.S. __, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (Scalia, J.); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (Rehnquist, J.) (same).
With respect to the injury-in-fact element, the injury is (i) " concrete," if it is " capable of resolution through the judicial process" and not " too abstract," Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (Rehnquist, C.J.) (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (Warren, C.J.), and Allen, 468 U.S. at 752); and (ii) " particularized," if the plaintiff is " himself among the injured" and not simply someone who retains a " special interest" in the injury, Defenders of Wildlife, 504 U.S. at 561 n.1, 563 (quoting Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (Stewart, J.)) (adding that " particularized" means that " the injury must affect the plaintiff in a personal and individual way" ). Moreover, the injury, if not " actual," must otherwise be " imminent," meaning that it is " certainly impending" and not merely occurring at " some indefinite future time." Defenders of Wildlife, 504 U.S. at 564 n.2 (emphasis in original) (quoting Whitmore v. Ark., 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (Rehnquist, C.J.)); accord Clapper v. Amnesty Int'l USA (" Amnesty Int'l " ),
__ U.S. __, 133 S.Ct. 1138, 1150 n.5, 185 L.Ed.2d 264 (2013) (Alito, J.) (proposing a " 'substantial risk'" standard of imminence, as an alternative to the " 'clearly impending' requirement" ).
The burden of proving the above elements belongs to the plaintiff, and depends on the " manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561 (collecting cases). " At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice" to show an injury-in-fact. Id. Additionally, where the plaintiff is an " object" of the " government action," whose legality is challenged, " there is ordinarily little question that the action . . . has caused [the plaintiff] injury, and that a judgment preventing . . . the action will redress it." Id. at 561-62.
1. Standing to Challenge the State Registration Requirements
First, the Court considers whether Plaintiffs have standing to challenge the original State registration requirements, as adopted in 1996, and the current ones, as amended in 2006. The immediate injury for sex offenders, as a result of these requirements, is the fact that they impose a " disability" through annual registration--which, as to some individuals, lasts their whole lives. (Am. Compl. ¶ ¶ 20, 24 & at 18-19.) As alleged, the injury is " concrete," because a decision by the Court, should it conclude that these requirements are unconstitutional, could " capabl[y]" resolve the source of the injury, i.e., sex offender registration. Raines, 521 U.S. at 819.
These requirements, as adopted in 1996 and/or as amended in 2006, personally apply to Plaintiffs. Contrary to the State's argument that there is insufficient information with which to draw this conclusion (State Br., at 4), the information on its sex offender registry website about Plaintiffs' convictions and the duration of their sentences indicates that Plaintiffs are required to register. Indeed, the appearance of Plaintiffs on the registry website is proof alone that they are registered pursuant to these requirements. See http://www.criminaljustice.ny.gov/nsor (" This directory now posts multiple photographs of registered sex offenders, as they become available[.]" ) (emphasis added). The information on this website specifically suggests that Plaintiffs Wallace and McLaurin and possibly Plaintiff Geoffrion, released prior to 2002, were subject to these requirements, as adopted in 1996; and that they and the remaining Plaintiffs, released after 2002, are still subject to these requirements, as amended in 2006. See supra Section I.A. In light of the fact that these requirements apply to Plaintiffs, they are likely " among" the individuals who suffer the alleged injury that stems from these requirements. Defenders of Wildlife, 504 U.S. at 563. Accordingly, the injury is " particularized" as to Plaintiffs. Id.
That Plaintiffs must adhere to these requirements, and will invariably suffer the disability that these requirements impose on their lives, is sufficient to establish that the alleged injury actually exists. No speculation is necessary, as the " actual" nature of the injury is apparent. Id. at 560. Considering that the injury relating to these requirements is " actual" and " concrete and particularized," Plaintiffs have established the injury-in-fact element. Id. at 560-61.
There is " little question" about the remaining two elements, causation and redressability. Id. at 561-62. The above injury-in-fact supports a dispute over requirements that directly regulate Plaintiffs and other sex offenders. As such, these requirements are arguably the cause of--and, if assessed to be unconstitutional, the basis for redressing--the injury-in-fact. Id. Indeed, the analysis for the injury-in-fact element substantiates this finding.
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs' challenge to the State registration requirements. Only Plaintiffs Wallace, McLaurin, and Geoffrion, however, have standing to challenge the original requirements, as adopted in 1996. All Plaintiffs have standing to challenge the current requirements, as amended in 2006.
2. Standing to Challenge the State Residency Restrictions
Second, the Court considers whether Plaintiffs have standing to challenge the State residency restrictions. These restrictions are allegedly injurious, because they prevent sex offenders from living in specific areas and possibly lead
to individuals being cast out of those areas. (Am. Compl. ¶ ¶ 20, 29, 41 & at 19.) Surely a limitation on where one may choose to live is no more an abstract concern than, say, a decrease in opportunities to appreciate the " aesthetic and recreational values" of a river, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. (" Laidlaw " ), 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (Ginsburg, J.) (quoting Sierra Club, 405 U.S. at 735); or to " use or observe an animal species," Defenders of Wildlife, 504 U.S. at 562. Indeed, in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (Powell, J.), the Supreme Court held that a plaintiff's potential inability to pursue the " housing opportunity he desires" in another area, for which he would otherwise qualify, was not a " generalized grievance" which defeated standing. Id. at 264. Thus, a limitation on one's housing opportunities is a sufficiently " concrete" injury. Raines, 521 U.S. at 819.
As shown before, the information on the State's sex offender registry website supports a preliminary assessment of which Plaintiffs are, in fact, affected by the alleged injury that stems from the State residency restrictions. Only Plaintiffs Aiello, Blunt, and Factor appear to be subject to these restrictions, because they were sex offenders released on parole after September 2005 and convicted of an offense against a child under 18-years old or classified as a risk-level three offender. See supra Sections I.A & I.B.2.i. Plaintiff Wallace was released on, and completed, parole for his sex offense before these restrictions were adopted. Id. Plaintiffs Calloway, Colon, McLaurin, and Tirado were never on parole. Id. Plaintiff Geoffrion was convicted, and sentenced to probation, out-of-state, and his probation ended prior to the adoption of these restrictions. Id. Accordingly, Plaintiffs Aiello, Blunt, and Factor are the only ones whom the State residency restrictions could injure in a " particularized" way, in that they, and not the other Plaintiffs, are subject to these restrictions. Defenders of Wildlife, 504 U.S. at 563.
The fact that Plaintiffs Aiello, Blunt, and Factor do not claim that they attempted to reside in particular areas within the State, but were prevented from doing so by the State residency restrictions, does not deprive them of standing to challenge these restrictions. These Plaintiffs can establish standing on the basis that they definitely would be prevented from doing so in the future. The continued residence of these Plaintiffs within the State--in " geographical proximity" to the areas specified by these restrictions--suffices to show their " imminent" inability to reside in certain areas, without additional proof as to their " past [residential] use" of those areas. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147, 1149 (9th Cir. 2000) (explaining the reasoning in Laidlaw );
cf. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (White, J.) (" [I]t is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." ) (quotations omitted) (second and third modifications in the original).
As an example, in Village of Arlington Heights, one of the plaintiffs alleged an injury based on his inability to pursue the disputed " housing opportunity he desires" in a village where he worked, but had never resided. 429 U.S. at 264. The plaintiff, at the time, resided in another village " 20 miles away." Id. Nevertheless, the Supreme Court held that the plaintiff's alleged injury supported his standing to sue. Id. Likewise, in Laidlaw, one of the plaintiff's members lived " 20 miles" outside of the town in which the affected area was located, and never used the area for recreation. 528 U.S. at 182. The Supreme Court, however, held that the member faced an actionable injury from certain " challenged activity" that could impact her possible future use of the area, and, thus, that the plaintiff had associational standing. Id. at 182-84.
Indeed, in-state residence is a more " tangible, continuing connection to any particular location affected by the challenged decision," i.e., the State residency restrictions, than mere residence " halfway around the world" from that location. Id. at 184 (distinguishing Defenders of Wildlife, which held that there was no imminent injury); Ecological Rights Found., 230 F.3d at 1148. Additionally, this connection, through in-state residence, is not one that " relies on a highly attenuated chain of possibilities" contingent on third-party actions to support a finding of an " imminent" injury-in-fact. Amnesty Int'l, 133 S.Ct. at 1147-50 & n.5 (holding that the plaintiffs could not show that they would suffer an injury-in-fact from the interception of their foreign communications, " at some point in the future," as their theory hinged on a " chain of contingencies" involving the possible actions of the " Government" and " Article III judges who serve on the Foreign Intelligence Surveillance Court" ). Rather, because Plaintiffs Aiello, Blunt, and Factor already live in the State, they would only have to take the extra step of attempting to establish their residence elsewhere within the State, in areas from which they are barred by the State residency restrictions, to suffer the alleged injury at some later point in time.
The fact that these three Plaintiffs fail to allege that they own property--in areas restricted by the State, the County, or the Town (Epley Br., at 7)--does not defeat the imminence of the alleged injury that results from the various restrictions. See Vill. of Arlington Heights, 429 U.S. at 264 (finding that the plaintiff alleged an injury-in-fact, despite the fact that he did not own any property in the village, or in the new housing development located in the village, from which he was precluded); see also Laidlaw, 528 U.S. at 182 (observing that one member, whose alleged injury supported the plaintiff's associational standing, " would like to purchase," but did not own, property in the affected area). Although Plaintiffs Aiello, Blunt, and Factor have alleged no " actual" injury as a result of these restrictions, they certainly have alleged an " imminent" one. Defenders of Wildlife, 504 U.S. at 564 n.2. As such, these three Plaintiffs have established the injury-in-fact element, in that their alleged injury from these restrictions is " imminent" and " concrete and particularized." Id. at 560.
It is also clear that the injury-in-fact is caused by, and can be redressed through a ruling on, these restrictions, which, like the State registration requirements, specifically target these three Plaintiffs and other sex offender probationers and parolees. Id. at 560-61.
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the State residency restrictions, specifically brought by Plaintiffs Aiello, Blunt, and Factor. All other Plaintiffs lack standing, because they have not alleged an injury-in-fact as a result of these restrictions.
3. Standing to Challenge the County and Town Residency Restrictions
Third, the Court considers whether Plaintiffs have standing to challenge the County and Town residency restrictions. The same alleged injury inflicted by the State residency restrictions--that is, the inability for sex offenders to reside in, and their possible displacement from, specific areas--is attributable both to the County residency restrictions and, though inartfully pleaded, to the Town residency restrictions. (Am. Compl. ¶ ¶ 20, 27, 29-30 & at 19; see also id. ¶ 44 (imputing the same allegations to the Town residency restrictions).) Additionally, the County residency restrictions, in confining the residence of sex offenders to particular areas within the County, allegedly leave such individuals without housing options and, thus, potentially homeless. ( See Am. Compl., at 20; Pls. Opp., at 6.) There is no reason why the alleged injury from the County and Town residency restrictions is any less " concrete" than that of the State residency restrictions. Raines, 521 U.S. at 819 (holding that an injury is " concrete," if it is not " too abstract" and is " capable of resolution through the judicial process" ). The County and Town residency restrictions also ostensibly apply to all Plaintiffs, as registered risk-level two and three sex offenders, and, thus, are capable of inflicting a " particularized" injury on Plaintiffs. Defenders of Wildlife, 504 U.S. at 563.
Plaintiffs, except for Plaintiff Tirado, allegedly reside or have resided in the County. See supra Section I.A. Mere " geographical proximity" to particular areas, affected by the County residency restrictions, is sufficient to establish " imminent" injury. Ecological Rights Found., 230 F.3d at 1147, 1149. Furthermore, the fact that these Plaintiffs purportedly have been homeless before, because of the County residency restrictions (Am. Compl., at 20; Pls. Opp., at 6), suggests that the injury is not only " imminent," but " actual." Defenders of Wildlife, 504 U.S. at 560.
As for the Town residency restrictions, none of the Plaintiffs appear to live in the Town; however, all but Plaintiff Tirado live or have lived in the County, where the Town is located. See supra Section I.A. Although Epley argues that the absence of evidence that these Plaintiffs ever previously resided or presently reside in the Town refutes the existence of any " actual or imminent" injury (Epley Br., at 6-7), the Supreme Court, in Village of Arlington Heights and Laidlaw, held the exact opposite: in those cases, it concluded that a plaintiff, who lived outside of the town or village in which the affected area was located, also alleged an injury-in-fact with respect to particular actions pertaining to that area. See Laidlaw, 528 U.S. at 182-84; Vill. of Arlington Heights, 429 U.S. at 264. Similarly, in this case, the fact that these Plaintiffs reside in the same County as the Town supports the imminence of the injury stemming from restrictions that relate to specific areas of the Town. Such proximity to the Town re
assures the Court that the " legal questions" regarding these restrictions are not being addressed in a " rarified atmosphere of a debating society," but rather in a " concrete factual context" involving an appreciable threat of injury to these Plaintiffs, one that " judicial action" can resolve. Valley Forge Christian Coll., 454 U.S. at 472.
Because these Plaintiffs allege that they actually have been and/or imminently will be injured, in a concrete and particularized fashion, by the County and Town residency restrictions, they have established the injury-in-fact element. Defenders of Wildlife, 504 U.S. at 560. For the same reasons articulated supra at Sections II.B.1 & II.B.2, these Plaintiffs have also established the causation and redressability elements.
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the County and Town residency restrictions by Plaintiffs. The only exception is that Plaintiff Tirado has not pleaded enough to demonstrate his injury-in-fact from these restrictions, and, thus, he does not have standing.
4. Standing to Challenge the County's Trailer Program
Finally, the Court considers whether Plaintiffs have standing to challenge the County's trailer program. This program purportedly leaves otherwise homeless sex offenders to tolerate living conditions, at a level below that of " other free men." (Am. Compl. ¶ ¶ 45-46.) The alleged injury to such individuals through this program--the inability to enjoy the same living conditions as everyone else--is " concrete" enough to support their injury-in-fact. Raines, 521 U.S. at 819; cf. Ne. Fla. Ch. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (Thomas, J.) (" When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing." ).
Plaintiffs, except for Plaintiff Tirado, are allegedly sex offenders who face or have faced the possibility of becoming homeless within Suffolk County, because of the various residency restrictions to which they are subject. See supra Sections II.B.2 & II.B.3. Based on this allegation, it is plausible that this program covers these Plaintiffs and, thus, that the alleged injury perpetrated by this program affects them personally. In short, the injury is sufficiently " particularized." Defenders of Wildlife, 504 U.S. at 563.
The above finding is borne out through other generalized allegations of these Plaintiffs' coverage by this program in the past, and their resulting treatment as " prisoners," rather than " free men," see supra Section I.A. At least two Plaintiffs, Wallace and Calloway, allege that they continue to be homeless in Suffolk County, id., and, thus, could be covered by this program again. In other words, the injury that allegedly arises from this program is not only personal to these Plaintiffs, but also actually occurring and/or imminently bound to occur. Defenders of Wildlife, 504 U.S. at 560.
Having alleged an " actual" and/or " imminent" injury that is " concrete and particularized," id., these Plaintiffs have established the injury-in-fact element with respect to the County's trailer program. These Plaintiffs have also established the causation and redressability elements, because the cause of, and basis for redressing, the injury-in-fact is this program and
its creation of living conditions less favorable to homeless sex offenders than those of " other free men" residing in Suffolk County. Id. at 561-62; (Am. Compl. ¶ 46).
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs' challenge to the County's trailer program, with the exception of Plaintiff Tirado.
C. The State's Motion to Dismiss
Having held that there is standing to substantiate the challenges to the registration requirements, residency restrictions, and trailer program at the pleading stage, the Court turns to the specific arguments for dismissal in Defendants' respective motions, starting with the State's motion.
1. Statute of Limitations
The State argues that, pursuant to Section 1983, the ex post facto claims--relating to (i) the original and current State registration requirements and (ii) the State residency restrictions--started to accrue when these requirements and restrictions took effect. Thus, the claims brought against the State in 2012-- six years after the last effective date of these requirements and restrictions--are time-barred based on the applicable three-year statute of limitations. (State Br., at 14-16.)
Indeed, the applicable statute of limitations for Section 1983 claims is the State's " general or residual statute of limitations governing personal injury actions," which is three years. Owens v. Okure, 488 U.S. 235, 245, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (Marshall, J.). The accrual of such claims, however, hinges on federal law. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Under federal law, such claims ordinarily accrue, once the plaintiff " knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994); see also Eagleston, 41 F.3d at 871 (same). Pursuant to the ordinary accrual rule, the claims against the State could be deemed as having started to accrue on the effective dates for these requirements and restrictions, i.e., in 1996, 2005, and 2006, when Plaintiffs and other sex offenders had " reason to know" that these requirements and restrictions constituted ex post facto violations. Ibid. By this reasoning, the three-year time limit to bring any such claims expired as of 2009 at the latest, three years before this case began.
However, an exception to the ordinary accrual rule exists, one that several other Circuits have recognized and this Circuit has not expressly rejected: the clock on any challenge to the constitutionality of a statute, whose continued application works an ongoing constitutional violation, starts to run anew, every day that the statute applies. The accrual exception embraces the idea that " continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations." Va. Hosp. Ass'n v. Baliles, 868 F.2d 653, 663 (4th Cir. 1989) (quotations omitted) (adding that the accrual exception was " in line with appellate precedent" ).
In Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516 (6th Cir. 1997), the Sixth Circuit held that a Section 1983 claim, challenging a law that restricted access by trucks to a particular county road as a due process deprivation of liberty, was timely, based on Ohio's two-year statute of limitations. Id. at 518, 521-22. This claim was brought " more than two years after" the enactment of the law, but " less than two years after" the law ceased to apply. Id. at 518. The court in Kuhnle concluded:
[The law] barred [the plaintiff] from using the roads in question on an ongoing basis, and thus actively deprived [the
plaintiff] of its asserted constitutional rights every day that it remained in effect. A law that works an ongoing violation of constitutional rights does not become immunized from legal challenge for all time merely because no one challenges it within two years of its enactment. . . .
[The plaintiff] suffered a new deprivation of constitutional rights every day that [the law] remained in effect[.] . . . Since the last alleged deprivation occurred less than two years before [the plaintiff] filed its complaint, [the plaintiff's] action is not time-barred.
Id. at 522. See also Maldonado v. Harris, 370 F.3d 945, 955-56 (9th Cir. 2004) (holding that a First Amendment challenge to a California statute on outdoor advertising was not time-barred, because the " continuing enforcement of the statute" permitted the plaintiff " to raise a facial challenge to the statute at any time" ); Va. Hosp. Ass'n, 868 F.2d at 663 (agreeing with the district court that, since its enactment, Virginia's " current reimbursement plan" perpetrated an " ongoing" violation of the supremacy and due process clauses, and, thus, the applicable limitations period " would not have begun to run until the violation ended" ); Bonollo Rubbish Removal, Inc. v. Town of Franklin, 886 F.Supp. 955, 958-60 (D. Mass. 1995) (finding, with respect to the constitutional and antitrust claims challenging a town by-law on waste delivery, that the " usual rule [for accrual] is preempted," based on the fact that " the plaintiff's injury here (the higher fees) continued for as long as the practice or policy complained of (the by-law) was in existence" ).
The Court adopts the accrual exception recognized in the above-cited cases. Even under this more expansive approach, however, some of Plaintiffs' claims regarding the State's sex offender regime must be dismissed. The original State registration requirements became effective in 1996 and stayed in effect until their amendment in 2002. See supra Section I.B.1. Accordingly, any claim challenging these requirements began to accrue no later than 2002, and should have been brought within three years, not ten years, thereof.
The accrual exception, however, salvages Plaintiffs' claims challenging the State's current sex offender regime. Although the current State registration requirements and residency restrictions took effect more than three years before this case was filed, they remain in effect today. See supra Sections I.B.1 & I.B.2.i. These claims are continually accruing, and, thus, their statute of limitations has not begun to run.
Therefore, based on the accrual exception, the Court declines to dismiss, as time-barred, the ex post facto claims challenging the current State registration requirements and residency restrictions, but dismisses the claim challenging the original State registration requirements.
2. Eleventh Amendment Immunity
The State also argues that the Eleventh Amendment immunizes it from the ex post facto claims for " monetary, injunctive and declaratory relief." (State Br., at 12-13 (emphasis added).) This is correct as to the State, but not as to State officials sued in their official capacities
over claims for prospective non-monetary relief.
Eleventh Amendment immunity ultimately shields the State from any federal lawsuit against it " in its own name regardless of the relief sought," unless " [it] has waived its Eleventh Amendment immunity or Congress has overridden it." Graham, 473 U.S. at 167 n.14; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Powell, J.) (same); Quern v. Jordan, 440 U.S. 332, 340-41, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (Rehnquist, J.) (same). It is axiomatic that the State has not agreed to waive, nor has Congress intended to override, the State's immunity from being sued in federal court based on Section 1983. See Quern, 440 U.S. at 341 (" [W]e simply are unwilling to believe . . . that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States." ); Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 39 (2d Cir. 1977) (holding, in a Section 1983 action, that New York has not waived its Eleventh Amendment immunity, but that it only " consents to be sued upon condition that the claimant brings suit in the [New York] Court of Claims" ); ( see also State Br., at 12-13 (same)).
Ordinarily, the same immunity extends to State officials sued in their official capacities. See Pennhurst, 465 U.S. at 101-102 (" [A]s when the State itself is named as the defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief." ); accord Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (Rehnquist, J.) (holding that, " even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment" ). The exception, however, is that State officials are not immune from official-capacity claims seeking prospective injunctive or declaratory relief. See Graham, 473 U.S. at 167 n.14 & 169 n.18 (noting that a plaintiff can avoid the Eleventh Amendment immunity issue, in challenging any " state policy or custom," by " naming state officials" in their official capacities through an " injunctive or declaratory" action " for prospective relief" ); see also Quern, 440 U.S. at 337 (accepting the " difference between prospective relief on one hand and retrospective relief on the other" as the basis for determining what is permitted or barred by the Eleventh Amendment in an official-capacity action); Edelman, 415 U.S. at 664 (holding, in an official-capacity action claiming that Illinois's regulations violated federal law, that the Eleventh Amendment " did not bar" the " prospective portion of [the district court's] order," but that the " retroactive" portion " stands on quite a different footing" ); In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (" A plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers, as opposed to the state, in their official capacities, provided that his complaint (a) 'alleges an ongoing violation of federal law' and (b) 'seeks relief properly characterized as prospective.'" ) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (Scalia, J.)); but see Pennhurst, 465 U.S. at 106 (holding that the exception is " inapplicable in a [federal] suit against state officials on the basis of state law" ). In theory, the exception is sustained by the Supreme Court's longstanding " fiction" in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that, for purposes of Eleventh Amendment immunity,
forward-looking, and not retrospective, official-capacity claims seeking non-monetary relief are " not one[s] against the State," but the State officials themselves. Pennhurst, 465 U.S. at 102-103, 105; see Graham, 473 U.S. at 167 n.14 (citing Ex parte Young for the proposition that " official-capacity actions for prospective relief are not treated as actions against the State" ).
Here, the State has Eleventh Amendment immunity from the ex post facto claims against it, which are dismissed in their entirety. However, given the official-capacity exception to Eleventh Amendment immunity, Plaintiffs could simply amend the Wallace Complaint to name specific officials of the State, against whom those claims, insofar as they seek prospective injunctive or declaratory relief, can be asserted without the shield of immunity. Logically, such officials would be individuals who have implemented the State statutes that supposedly violate the Constitution, i.e., its registration requirements and residency restrictions. See CSX Transp., Inc. v. N.Y. Office of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir. 2002) (noting that the Ex parte Young exception to Eleventh Amendment immunity is " limited" to " a state official's actions in enforcing state law " ) (emphasis added) (quotations omitted). Put simply, even if Plaintiffs cannot challenge the State's sex offender regime by asserting claims against the State itself, they can bring the same challenge by asserting claims against State officials who enforce the regime.
Therefore, the Court dismisses Plaintiffs' ex post facto claims against the State based on its Eleventh Amendment immunity. Because these claims could have been brought against State officials who enforce the State's sex offender regime, and the Wallace Complaint could be so amended, the Court proceeds to consider the State's other asserted grounds for dismissal.
3. Failure to State a Claim
The State argues that Plaintiffs fail to plausibly allege that the current State registration requirements and residency restrictions contravene the Ex Post Facto Clause of the Constitution. (State Br., at 17-18.)
The Ex Post Facto Clause prohibits any " penal statute" that applies " retroactively," i.e., that either (i) " makes an action done before the passing of the law, and which was innocent when done, criminal[,] and punishes such action" ; (ii) " aggravates a crime, or makes it greater than it was, when committed" ; (iii) " changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" ; or (iv) " alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Collins v. Youngblood, 497 U.S. 37, 40-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (Rehnquist, C.J.) (emphasis and
quotations omitted); see also Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (Marshall, J.) (" [T]wo critical elements must be present for a criminal or penal law to be ex post facto : it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." ). The Ex Post Facto Clause protects against " [l]egislatures . . . retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts." Collins, 497 U.S. at 43. Here, Plaintiffs allege that the State's enactment of the current registration requirements and residency restrictions-- after Plaintiffs committed, and were convicted of, their respective sex offenses--amounts to a retroactive increase in their punishment in violation of the Ex Post Facto Clause. This is incorrect.
In the context of " restrictive measures on sex offenders," the Supreme Court, in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Kennedy, J.), set forth the following " framework" for considering whether a statute is punitive in nature, such that its retroactive application triggers the Ex Post Facto Clause. Id. at 92-93. First, the Court must evaluate whether the " intention of the legislature" was to enact a statute that is " civil and nonpunitive." Id. at 92. If so, the Court must then consider " whether the statutory scheme is so punitive either in purpose or effect as to negate" the legislative intent. Id. (quotations omitted). Because courts " ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (citations and quotations omitted). In determining whether the challenged statutory scheme is punitive in effect, the Court should consider " whether, in its necessary operation, the [statutory] scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." Id. at 92, 97 (setting forth several factors as " useful guideposts," which are " neither exhaustive nor dispositive" ) (quotations omitted). The challenging party's inability to establish, by the " clearest proof," the punitive effect of the statutory scheme provides a basis for dismissing an ex post facto claim. Id. at 92, 105-06.
i. Ex Post Facto Claim Relating to the Current State Registration Requirements
Because the retroactive application of the current, i.e., post-January 2006, State registration requirements is a necessary predicate to the ex post facto claim, the Court begins by ascertaining whether these requirements apply retroactively to Plaintiffs. Based on the information discussed supra at Sections I.A & I.B.1, it appears that these requirements retroactively impose a longer, lifetime duty on Plaintiffs Wallace, Tirado, and McLaurin, and deny the right to petition for relief to Plaintiffs Blunt, Calloway, Colon, Geoffrion, and McLaurin. The only Plaintiffs to whom these requirements do not apply retroactively are Plaintiffs Aiello and Factor, who committed their offenses one to two years after these requirements took effect in 2006. See supra Sections I.A & I.B.1.
b. Non-Punitive Intent of the State Registration Requirements
In assessing whether a sex offender's duty to register for life without the possibility
of relief amounts to a punishment for his prior conviction, the Court regards Smith as controlling precedent. The sex offender registration requirements challenged in Smith, which the Supreme Court ruled did not violate the spirit of the Ex Post Facto Clause, were materially similar to the State registration requirements in this case. 538 U.S. at 92-93, 105-106. In Smith, the plaintiffs challenged an Alaskan statute that required " serious" sex offenders to register for life without the right to relief. See id. at 90 (noting that an individual " convicted of an aggravated sex offense or of two or more sex offenses" was required to " register for life" ); id. at 117 (Ginsburg, J., dissenting) (" Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation." ); Brief for Respondents at 7, Smith, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), 2002 WL 1885873, at *7 (" The [Alaska Sex Offender Registration Act] contains no procedures through which one may escape its requirements[.]" ).
Since Smith, countless federal courts, including this one, have rejected similar ex post facto challenges to sex offender registration requirements. See, e.g., Anderson v. Holder, 647 F.3d 1165, 1168-69, 396 U.S.App.D.C. 281 (D.C. Cir. 2011) (holding that, " like the sex offender registration requirement in Smith," the District of Columbia's requirement, premised on the plaintiff's conviction for a " lifetime registration offense," did not violate the Ex Post Facto Clause, and citing cases to support the conclusion that " the overwhelming weight of authority treats such laws as civil and nonpunitive" ) (emphasis added); see also, e.g., Am. Civil Liberties Union v. Masto (" Masto " ), 670 F.3d 1046, 1053 & n.4 (9th Cir. 2012) (" Because Nevada's version of SORNA does not contain any registration provision that materially distinguishes it from Smith, we join [our sister circuits] in concluding that the requirements of [the statute] do not constitute retroactive punishment[.]" ) (collecting cases); U.S. v. Leach, 639 F.3d 769, 773 (7th Cir. 2011) (concluding that " whether a comprehensive registration regime targeting only sex offenders is penal . . . is not an open question" after Smith, from which " we too are unable to find any meaningful distinctions" for purposes of challenges to the federal SORNA, and, thus, " join[ing] our sister circuits in concluding that SORNA is not an ex post facto law" ) (collecting cases); Doe v. Bredesen (" Bredesen " ), 507 F.3d 998, 1000-1001, 1003-1007 (6th Cir. 2008) (applying Smith's framework in affirming the constitutionality of Tennessee's requirement that the plaintiff register " for the rest of his life," without the right to " petition the circuit court," and indicating that " our sister circuits have likewise consistently and repeatedly rejected ex post facto challenges to state statutes that retroactively require sex offenders convicted before their effective date to comply with similar registration . . . requirements" ) (collecting cases), cert. denied, 555 U.S. 921, 129 S.Ct. 287, 172 L.Ed.2d 210 (2008); Spiteri v. Russo, No. 12-CV-2780, 2013 WL 4806960, at *11, 37 (E.D.N.Y. Sept. 7, 2013) (citing Smith and other cases with approval, and ruling that New York's " lifetime registration requirement" does not violate the Ex Post Facto Clause); Valentine v. Strickland, No 08-CV-993, 2009 WL 9052193, at *1, 5 (N.D. Ohio Aug. 19, 2009) (upholding Ohio's requirement of " registration every ninety days for the rest of [the plaintiff's] life," in view of Smith and the " numerous circuit courts" who have " repeatedly rejected ex post facto challenges" to such
Although the Second Circuit has not opined on the State registration requirements, as applied to risk-level two and three sex offenders, since upholding the original requirements in Pataki, its decision in that case compels the same conclusion as to the current requirements. See Spiteri, 2013 WL 4806960, at *37 (stating, in considering the current requirements, that " [t]he Second Circuit [in Pataki ] has made clear that registration . . . requirements under SORA do not implicate the Ex Post Facto Clause" ); Nolan v. Cuomo, No. 11-CV-5827, 2013 WL 168674, at *2 & n.5 (E.D.N.Y. Jan. 16, 2013) (noting that, although the plaintiff " has not raised an ex post facto challenge to the increased duration of the registration periods" in the current requirements, " [a]ny such challenge would likely be foreclosed by the Second Circuit's decision [in Pataki ]" ). The Pataki Court providently performed a " two part inquiry," like the one that the Supreme Court would later conduct in Smith, and affirmed the portion of then-district court Judge Denny Chin's " thoughtful decision," which concluded that originally requiring risk-level three sex offenders and other " sexually violent predators" to register " for a minimum of ten years and potentially for life" did not constitute punishment. Pataki, 120 F.3d at 1271, 1284-85.
While the Court could find, based on the abundance of clear and consistent precedent, that the current State registration requirements do not violate the Ex Post Facto Clause, the Court nonetheless conducts its own analysis of these requirements, using the framework established in Smith and applying the Second Circuit's reasoning in Pataki.
First, the legislative intent behind the current State registration requirements is non-punitive. In 2006, the current requirements replaced the old ones as part of SORA, an act whose original aims in codifying these requirements were public protection and the improvement of law enforcement with respect to the " dangers posed by convicted sex offenders" after their release. Id. at 1285. Like the preamble to the original SORA legislation, the preamble to the legislation enacting the current requirements also indicated that these requirements are intended to " enhance public safety and provide better tracking and monitoring of sex offenders." 2006 N.Y. Sess. Laws Ch. 1 (S. 6409, A. 9472), § 1. The expression of such non-punitive objectives " in the statutory text itself" suffices to establish that the legislature, in enacting these requirements, did not intend for them to punish sex offenders. Smith, 538 U.S. at 93; see also Pataki, 120 F.3d at 1285 (basing its conclusion about legislative intent behind the original registration requirements primarily on " the Act's preamble" ). The ...