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Hope v. Commissioner of Indiana Department of Correction

United States District Court, S.D. Indiana, Indianapolis Division

April 6, 2017

BRIAN HOPE, GARY SNIDER, and JOSEPH STANDISH, Plaintiffs,
v.
COMMISSIONER OF THE INDIANA DEPARTMENT OF CORRECTION, MARION COUNTY PROSECUTOR, MARION COUNTY SHERIFF, HUNTINGTON COUNTY PROSECUTOR, HUNTINGTON COUNTY SHERIFF, ALLEN COUNTY PROSECUTOR, and ALLEN COUNTY SHERIFF, all in their official capacities, Defendants.

          ENTRY ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

          RICHARD L. YOUNG, JUDGE

         Defendants, the Commissioner of the Indiana Department of Correction ("DOC"), the Marion County Prosecutor, the Marion County Sheriff, the Huntington County Prosecutor, the Huntington County Sheriff, the Allen County Prosecutor, and the Allen County Sherriff, currently require Plaintiffs, Brian Hope, Gary Snider, and Joseph Standish, to register with the Indiana Sex and Violent Offender Registry. This lawsuit centers on the reason their registration is required. If Plaintiffs are to be believed, it is solely because they engaged in interstate travel. They contend that they must register merely because they relocated to Indiana after first residing in a different state that required their registration. If they had committed the exact same crime on the exact same date in Indiana and thereafter never left the state, the DOC would not require their registration. Defendants see things differently. They maintain that Plaintiffs have overcomplicated the issue and ignored the obvious: these men must register because each of them has been convicted of a sexual offense.

         Plaintiffs allege that Indiana's Sex Offender Registration Act ("SORA"), Ind. Code § 11-8-8-1 etseq., as applied to them, violates (1) the Equal Protection Clause of the Fourteenth Amendment, (2) the fundamental right to travel, which is protected by the Due Process Clause of the Fourteenth Amendment, and (3) the ex post facto clause of the United States Constitution. They now seek preliminary injunctive relief so that they may be relieved of their registration obligation during the pendency of this suit. Defendants oppose the motion. They argue that Plaintiffs should continue registering with the Sex and Violent Offender Registry because, inter alia, their constitutional claims have no merit. The court disagrees, and therefore GRANTS Plaintiffs' motion.

         I. Background

         A. Indiana's Sex Offender Registration Act

         The Indiana Sex and Violent Offender Registry is jointly maintained by the DOC and local sheriffs, see Ind. Code §§ 11-8-2-12.4, 11-8-2-13(b), 36-2-13-5.5, although the DOC is responsible for determining who is required to register and the length of the registration period. (Filing No. 41-1, Deposition of Brent Myers 6:10-22). A person required to register under SORA is subject to a wide variety of obligations and restrictions. He must report in person at least annually to the sheriffs office in the county where he resides in order to register and be photographed. Ind. Code § 11-8-8-14. If he is employed or attends school in a different county, he must report to the sheriffs office in that county as well. Ind. Code § 11-8-8-7. However, if the person qualifies under Indiana law as a "sexually violent predator, " see Ind. Code § 35-38-1-7.5, then he must report to the local sheriffs office every ninety days. Ind. Code § 11-8-8-14(b). If the person lives in transitional or temporary housing, or lacks a residence altogether, he must appear in person at least once every seven days. Ind. Code § 11-8-8-12.

         In addition to his photograph, a person required to register must provide the following information: his full name, date of birth, sex, race, height, weight, hair color, eye color, identifying features, social security number, driver's license or state identification card number, vehicle description, license plate number, principal address, the name and address of any employer or educational institutional that he attends, any electronic mail address, any instant messaging username, any social networking web site username, and "[a]ny other information required by the [DOC]." Ind. Code § 11-8-8-8(a). Much of this information is available on the internet to the public. If any of this information changes, he must report that change in person within seventy-two hours of the change. Ind. Code § ll-8-8-8(c).

         In order to verify an individual's residence, local law enforcement must contact each offender at least once per year (at least once every ninety days if the offender is a "sexually violent predator"), and must personally visit each offender at least annually (again, at least once every ninety days if the offender is a "sexually violent predator"). Ind. Code § 11-8-8-13(a). Various other obligations or restrictions are also imposed on all persons required to register as sex or violent offenders. For example, he (a) must obtain and keep in his possession a valid driver's license or state-issued identification card, Ind. Code § 11-8-8-15, and (b) may not petition for a change of name under Indiana law, Ind. Code § 11-8-8-16.

         On top of this, specific categories of offenders are subjected to additional restrictions. A "sexually violent predator" must inform law enforcement whenever he plans to be absent from his home for more than 72 hours. Ind. Code § 11-8-8-18. A person who qualifies as an "offender against children, " Ind. Code § 35-42-4-11(a), may not work or volunteer at, or reside within 1, 000 feet of, school property, a youth program center, or a public park. Ind. Code §§ 35-42-4-10(c), 35-42-4-11(c). A person who qualifies as a "serious sex offender, " Ind. Code § 35-42-4-14(a), may not enter school property. Ind. Code § 35-42-4-14(b).

         B. The DOC's Policy at Issue in this Litigation

         In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), the Indiana Supreme Court held that the ex post facto clause of the Indiana Constitution prohibits the application of SORA to an individual whose offense predates the enactment of the statute.[1] Id. at 384. In compliance with that decision, the DOC does not require registration for any individual who meets the following three conditions: (1) he was convicted of a sexual or violent offense in Indiana, (2) he committed that offense at a time when it did not require registration, and (3) he has never left the state. (Myers Dep. 17:6-19:13, 27:13-21, 31:1-23).

         However, if a person who is not required to register because his Indiana offense predates any registration requirement relocates to another state, the DOC requires that person to register as a sex or violent offender upon returning to Indiana. (Id. 19:3-5, 24:13-22, 33:23-34:6). If a person who is not required to register because his Indiana offense predates any registration requirement continues to live in Indiana but commutes to a neighboring state for work (and has to register in that second state due to his employment), the DOC may require that person to register as a sex or violent offender. (Id. 41:10-42:8). If a person who is not required to register because his Indiana offense predates any registration requirement travels to a different state for a short vacation and has to register in that second state due to his temporary presence[2], the DOC may require that person to register as a sex or violent offender upon returning to Indiana. (Id. 40:14-41:9). If a person who was convicted of an offense in another state and would not have to register had he committed the same offense at the same time in Indiana because it predated any registration requirement relocates to Indiana, the DOC requires that person to register as a sex or violent offender. (Id. 25:9-26:8).

         The result of the DOC's registration policies is that if two persons committed an identical offense at a time when this offense did not require registration under Indiana law, and one of those persons subsequently travels in interstate commerce but the other does not, only one of these persons will now be required to register-the individual who crossed state lines.

         C. The Plaintiffs

         Each of the Plaintiffs committed an offense that, at the time it was committed, did not require registration under SORA because either the law had not been enacted or the specific crime at issue had not been added as a registerable offense. After SORA was enacted and the relevant crimes had been deemed registerable offenses, each of the Plaintiffs traveled in interstate commerce.

         Brian Hope's offense took place in 1993, and he was convicted of that offense in Indiana in 1996. (Filing No. 35-1, Affidavit of Brian Hope ¶ 2). His period of supervised release expired in 2000, and in 2004 he moved first to California and then to Texas. (Id. ¶¶ 3-4). He resided in Texas through September 2013, at which point he returned to Indiana because his grandfather became seriously ill. (Id. ¶ 7; Filing No. 40-1, Brian Hope's Responses to Defendants' Interrogatories at 8). Upon his return to Indiana, Hope was informed that he must register as a sex offender for the rest of his life. (Hope Aff ¶ 7). He has continuously resided in Indiana since September 2013, and currently resides in Marion County. (Hope Interr. Responses at 7). He is homeless and has been for some time. (Hope Aff. ¶ 13).

         Gary Snider's offense took place in 1988. (Filing No. 35-2, Affidavit of Gary Snider ¶ 2). He was charged with that offense in Michigan in 1994, and was subsequently convicted. (Id.). He was incarcerated in Michigan until July 2003. (Id.¶ 3). Upon his release, Snider moved to Huntington County, Indiana, where his wife lived because of her work. (Id. ¶¶ 4-5). He has resided continuously in Huntington County since that time. (Id. ¶ 5). Snider registered as a sex offender in Indiana upon moving, and continued doing so until he was informed in February 2010 that, in light of the Wallace decision, he was no longer required to register. (Id. ¶¶ 5-6). In August or September 2016, however, he was informed that he is required to register as a sex or violent offender for the remainder of his life. (Id. ¶ 7).

         Joseph Standish's offense took place in February 1995, and he was convicted of that offense in Michigan in April 1996.[3] (Filing No. 35-3, Affidavit of Joseph Standish ¶ 2). He was sentenced to a short period of incarceration in the county jail followed by a term of probation; his term of probation ended in approximately 2001. (Id. ¶ 3). Standish registered as a sex offender while residing in Michigan. (Id. ¶¶ 3-4). In May 2013, Standish moved from Michigan to Allen County, Indiana because his wife obtained a job there. (Id. ¶ 5). He has resided continuously in Allen County since that time. (Id.). Standish attempted to register upon moving to Indiana, but he was informed that he was not required to do so pursuant to Burton v. State, 977 N.E.2d 1004 (Ind.Ct.App. 2012) (applying Wallace) (dismissing charges of failing to register for an offender who was convicted in Illinois of a crime that, at the time he committed it, did not require registration in either Illinois or Indiana). (Id. ¶ 6). In late 2015 or early 2016, he was informed that he was required to register as a sex or violent offender for the remainder of his life. (Id.¶l).

         Due to the nature of their convictions, the DOC has determined that each Plaintiff qualifies as an "offender against children" and a "serious sex offender, " and that Snider and Standish also qualify as a "sexually violent predator." (Hope Aff ¶ 14; Snider Aff ¶ 10; Standish Aff. ¶ 10). These classifications subject the Plaintiffs to the additional restrictions and obligations described above.

         II. Preliminary Injunction Standard

         "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008). A motion for preliminary injunctive relief is analyzed in two distinct phases. Turnell v. Centimark Corp.,796 F.3d 656, 661 (7th Cir. 2015). In the initial, threshold phase, the party seeking injunctive relief bears the burden of showing that "(1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) ...


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