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Beley v. City of Chicago

United States Court of Appeals, Seventh Circuit

August 23, 2018

Michael Beley, et al, Plaintiffs-Appellants,
v.
City of Chicago, Defendant-Appellee.

          Argued January 17, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1.12-cv-09714 -John Robert Blakey, Judge.

          Before Flaum, Easterbrook, and Barrett, Circuit Judges.

          BARRETT, Circuit Judge.

         Michael 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 requirements.

         But the 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.

         I.

         To comply with SORA, any sex offender residing in Chicago for three days or more must register at the headquarters of the Chicago Police Department.[1] 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).

         An 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).

         Douglas 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.

         Michael 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.

         Beley 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.[2] 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.

         The 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.[3] 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.

         We 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 ...


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