January 17, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1.12-cv-09714
-John Robert Blakey, Judge.
Flaum, Easterbrook, and Barrett, Circuit Judges.
BARRETT, Circuit Judge.
Beley and Douglas Montgomery represent a class of sex
offenders who allege that the City of Chicago refused to
register them under the Illinois Sex Offender Registration
Act (SORA) because they could not produce proof of address.
If true, that might have violated SORA, because the Act
provides a mechanism for registering the homeless. Yet Beley
and Montgomery contend that it violated their right to
procedural due process-according to the plaintiffs, the City
used constitutionally inadequate procedures to determine
whether they had satisfied SORA's registration
Fourteenth Amendment guarantees due process only when the
State deprives someone of life, liberty, or property. Beley
and Montgomery insist that the City deprived them of liberty:
they assert a right to register under SORA. For reasons we
explain below, however, this is not a cognizable liberty
interest. And without a cognizable liberty interest, the
plaintiffs have no due process claim.
comply with SORA, any sex offender residing in Chicago for
three days or more must register at the headquarters of the
Chicago Police Department. 730 ILCS 150/3(a)(1). Registration
requires more than just showing up. The offender must provide
law enforcement with comprehensive biographical information,
including identification and proof of address. Id.
at 150/3(c)(5). If the offender has no fixed residence, he
must report weekly to the Department, which documents all the
locations where the person has stayed in the past seven days.
Id. at 150/3(a).
intake officer is not obliged to register all comers. Before
registering any offender, the officer must determine whether
the offender has complied with SORA's requirements-if he
has, the officer registers him; if he hasn't, the of-
ficer turns him away. The Department maintains a daily
registration log, which documents each registration attempt.
Failing to comply with SORA is a felony punishable by two to
five years' imprisonment and may result in a
"non-compliant" listing on the Illinois sex
offender information website. See id. at 150/10(a),
5/5-4.5-40(a), & 152/115. An offender convicted of
violating SORA must serve a minimum jail term of seven days
and pay a minimum fine of $500 in addition to any other
penalty imposed. Id. at 150/10(a).
Montgomery is a sex offender who tried unsuccessfully to
comply with SORA. After he completed a twenty-year sentence
for aggravated criminal sexual assault, he reported to the
Department to register. He was turned away, however, because
he produced neither an identification card nor proof of a
fixed address. When Montgomery told the intake officer that
he was homeless, the officer responded that the Department
was "not registering homeless people right now."
Nearly seven months later, after arresting Montgomery for
violating several ordinances, Chicago police discovered that
he had failed to register under SORA. They charged him with
that violation, though he was ultimately acquitted.
Beley, another homeless sex offender, had a similar
experience. He tried to register after he was released from
prison, but he was turned away because he lacked proof of
address. Four days later, he tried again and was rejected for
the same reason. On his third attempt, Beley tried to
register with an identification card bearing his son's
address. The intake officer refused to register him, however,
because the address was in a location that was off-limits to
child sex offenders. Shortly after this third attempt, the
state listed Beley as "non-compliant" on the
Illinois State Police sex offender website. Beley then
secured a spot at a homeless shelter, and he was able to
register with an Illinois identification card listing the
shelter as his address. But when the shelter stopped
accepting child sex offenders, Beley found himself back on
the street. He has since registered on a weekly basis as an
offender without a fixed residence.
and Montgomery filed a class action against the City on
behalf of "[a] 11 persons who attempted to register
under the Illinois Sex Offender Registration Act with the
City of Chicago [during a defined period] and who were not
permitted to register because they were homeless." They
asserted a claim under 42 U.S.C. § 1983, alleging that
the City's policy of refusing to register the homeless
violated the Due Process Clause of the Fourteenth
Amendment. The plaintiffs didn't describe what
process the City should have provided; at oral argument
before us, they suggested having a supervisor available to
review an officer's determination that an offender failed
to satisfy the requirements for registration.
district court entered summary judgment for the City. It
agreed with the plaintiffs that a homeless sex offender has a
protected liberty interest in the ability to register under
SORA. Beley v. City of Chicago, 2015 WL
684519, at *2 (N.D. 111. Feb. 17, 2015) ("[A] homeless
sex offender's ... interest in being able to
register" is a "protected liberty interest"
because it "jeopardizes their significant interest in
freedom from liability and incarceration."). But a
municipality is liable for the constitutional violations of
its officers only if the officers act pursuant to a city
policy or custom. Monell v. Dep't of Soc. Sews.,
436 U.S. 658 (1978). The district court said that the
plaintiffs had arguably shown "occasional lapses of
judgment" or "individual misconduct by police
officers" but not that the City had a policy or custom
of turning the homeless away. Beley v. City of
Chicago, 2017 WL 770964, *10 (N.D. 111. Feb. 28, 2017).
It thus held that the City was entitled to judgment.
affirm the district court, though on a different ground. The
City argues before us, as it did below, that the ability to
register under SORA is ...