JAMES O. BROWNING, District Judge.
The affidavits and exhibits demonstrate that the following facts are undisputed. There are factual issues, but they are not material.
The State of New Mexico Department of Public Safety ("the DPS")
On October 30, 2006, Kvech pled guilty to misdemeanor Unlawful Sexual Contact, Colo.Rev.Stat. § 18-3-404(1)(a), which says that a person is guilty of unlawful sexual contact if the "actor knows that the victim does not consent"; the statute does not include as an element force or age. Response ¶ 1, at 4 (setting forth this fact). See Reply ¶ 1, at 7 (not disputing this fact). By Judgment of Conviction and Sentence entered on November 6, 2006, Kvech was convicted in the District Court of Arapahoe County, Colorado, of what the judgment described as "Sex Assault 3." Second Chacon Aff. ¶ 5, at 2. See MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). The Colorado Judgment of Conviction and Sentence states that Kvech pled guilty to "Sex Assault 3 — unspecified," a misdemeanor, contrary to Colo.Rev.Stat. 18-3-404; it does not state any findings of fact regarding the victim's age or if force was used. Judgment of Conviction and Sentence at 1, filed September 28, 2012 (Doc. 22-2 & 29-4)("Colo. Judgment"). See Response ¶ 3, at 5 (setting forth this fact); Reply ¶ 3, at 7 (not disputing this fact). Colo.Rev.Stat. § 18-3-404(2)(b) defines unlawful sexual contact as a class 4 felony "if the actor compels the victim to submit by use of such force, intimidation, or threat"; Kvech was not, however, convicted of the class 4 felony that would have required force as an element to the crime. See Colo. Judgment at 1; Response ¶ 4, at 5 (setting forth this fact); Reply ¶ 4 (not disputing this fact). The Colorado court sentenced Kvech to 198 days of time served and two years of
Kvech's written condition of probation, which Kvech and his Colorado probation officer signed, included requirements that Kvech must register as a sex offender; that he was not allowed to leave the State of Colorado without his probation officer's written permission; and that, if he received permission to move, he must re-register as a sex offender within five business days following his move. See Second Chacon Aff. ¶ 7, at 2; Conditions of Probation, filed September 28, 2012 (Doc. 22-2 at 2)("Conditions"); MSJ ¶ 5, at 10 (setting forth these facts); Response ¶ 5, at 3 (not disputing these facts).
The Colorado Department of Probation gave Kvech permission to move to Rio Rancho, Sandoval County, New Mexico. See Second Chacon Aff. ¶ 9, at 3; MSJ ¶ 7, at 10 (setting forth this fact);
Kvech registered with the Sandoval County Sheriff's Office as a sex offender on November 16, 2006, ten days after the entry of the Colo. Judgment. See Second Chacon Aff. ¶ 14, at 5; Sandoval County Sheriff's Office Sex Offender Registration 90 Days Verification at 1, signed February 15, 2007, filed September 28, 2012 (Doc. 22-2 at 11)("Feb. 15, 2007 Verification"); MSJ ¶ 12, at 12 (setting forth this fact); Response at 4 (not disputing this fact). Masereñas registered Kvech and processed the paperwork according to N.M. Stat. Ann. § 29-11A-4(B), including Kvech's legal name and any other names used, date of birth, social security number, current address, place of employment, a complete set of fingerprints, a DNA sample, Kvech's photograph, and identifying physical information. See Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 12-13 (setting forth these facts); Response at 4 (not disputing these facts). Kvech signed and acknowledged that he was required to renew his registration with the Sheriff's Office by February 15, 2007, and again by May 16, 2007, August 16, 2007, and November 16, 2007. See Feb. 15, 2007 Verification at 1; Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 13 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriff's Office entered Kvech's name on the Sandoval County local registry of sex offenders, pursuant to N.M. Stat. Ann. § 29-11A-5(a), and forwarded his registration information to the DPS's Law Enforcement Records Bureau under N.M. Stat. Ann. § 29-11A-5(B)(1). See Second Chacon Aff. ¶ 15, at 5; MSJ ¶ 13, at 13 (setting forth this fact);
After Kvech did not renew his registration on August 16, 2007, Mascereñas filed a Criminal Complaint and Affidavit for Arrest Warrant, and on September 5, 2007, a Magistrate Court in Sandoval County found probable cause and issued an arrest warrant against Kvech for failing to renew his registration. See Second Chacon Aff. ¶ 18, at 6; Warrant for Arrest at 13, filed September 28, 2012 (Doc. 22-2 at 12); MSJ ¶ 16, at 13-14 (setting forth this fact); Response at 4 (not disputing this fact). The Magistrate Court bound over Kvech, and a grand jury indicted him for failing to register with the Sheriff pursuant to N.M. Stat. Ann. § 29-11A-4(N); the criminal prosecution proceeded as State v. Kvech, Thirteenth Judicial District Court Cause No. D-1329-CR-07-618. See Second Chacon Aff. ¶ 19, at 6; Bind-Over Order, filed in Sandoval County Magistrate Court November 16, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 19); Grand Jury Indictment, filed in Sandoval County Clerk's Office November 15, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 20); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). The District Court appointed counsel for Kvech and ordered him released from custody on his own recognizance; the District Attorney prosecuted the case. See Second Chacon Aff. ¶ 19, at 6; Order of Appointment, filed in Sandoval County Magistrate Court September 12, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 17); Order of Release, filed in Sandoval County Magistrate Court September 26, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 18); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). Chacon and the DPS were not involved in Kvech's criminal prosecution for failing to register, but the Sandoval County Sheriff's Office provided to the DPS copies of the criminal complaint, arrest warrant affidavit and warrant, and subsequent notification that Kvech had been arrested and incarcerated on the charge. See Second Chacon Aff. ¶ 20, at 6-7; MSJ ¶ 18, at 14 (setting forth this fact); Response at 4 (not disputing this fact). On November 7, 2007, the State of [New Mexico]
On January 7, 2008, the Arapahoe County, Colorado Sheriff's Office notified the DPS that Kvech was released from the Colorado jail for time served and was relocating back to Sandoval County; the Arapahoe County Sheriff's Office also sent by facsimile transmission a form that Kvech signed, stating that he understood and acknowledged his duty to register as a sex offender pursuant to Colorado law, and informing Kvech that he must register within five business days of being released with the local law enforcement agency where he lived. See Second Chacon Aff.
In the criminal case against Kvech for failing to renew his registration, Kvech filed a motion to dismiss; the Honorable Louis P. McDonald, Division V, Judge of the Thirteenth Judicial District, State of New Mexico, held a hearing on the motion on October 23, 2008, which Chacon attended. See Transcript of Proceedings at 2, 9, taken October 23, 2008, in the Thirteenth Judicial District Court, County of Sandoval,
Order on Defendant's Motion to Dismiss at 7, filed in the Thirteenth Judicial District, County of Sandoval, State of New Mexico on November 20, 2008, filed in federal court September 28, 2012 (Doc. 22-3 at 7)("Judge McDonald's Order"). See Second Chacon Aff. ¶ 29, at 9; MSJ ¶ 27, at 16-17 (setting forth these facts); Response ¶ 27, at 4 (not disputing these facts).
Kvech renewed his registration as a sex offender with the Sandoval County Sheriff's Office on February 12, 2009, and the Sheriff's Office notified the DPS of the renewal; Kvech renewed his registration without the Sheriff's Office or anyone at the DPS taking affirmative action telling him to do so. See Second Chacon Aff. ¶ 31, at 9-10; MSJ ¶ 29, at 17 (setting forth this fact);
On March 6, 2009, Gonzales filed a Criminal Complaint and Affidavit for Arrest Warrant in the Magistrate Court of Sandoval County, charging Kvech with failing to re-register under the New Mexico SORNA within ten days after being released from custody. See Second Chacon Aff. ¶ 35, at 10; MSJ ¶ 33, at 18 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriff's Office sent to the DPS copies of the Criminal Complaint and Affidavit, and a copy of a signed, but unfiled, Arrest Warrant, which the DPS received on March 16, 2009; the Sheriff's Office made the decision to charge Kvech and did not send any other documents to the DPS regarding the charge. See Second Chacon Aff. ¶ 36, at 10; MSJ ¶ 34, at 18 (setting forth
After Chacon received and reviewed Judge McDonald's Order, Chacon studied the facts, circumstances, and elements of Kvech's Colorado crime conviction, compared them with the essential elements of the statutory list of New Mexico offenses that are listed in the New Mexico SORNA as "sex offenses," and determined whether it was an "equivalent" crime under the New Mexico SORNA:
Second Chacon Aff. ¶ 37, at 11-12 (citing People's Added Count(s), filed in the District Court of Arapahoe County, Colorado, on October 30, 2006, filed in federal court September 28, 2012 (Doc. 22-3 at 17), as Exhibit A-14; and Affidavit of Probable Cause for Arrest Warrant in Arapahoe County, Colorado, filed September 28, 2012 (Doc. 22-3 at 21)("Affidavit of Probable Cause for Arrest Warrant"), as Exhibit A-15). See MSJ ¶ 35, at 18-19 (setting forth these facts); Response ¶ 35, at 4 (not disputing these facts).
On June 3, 2010, Chacon sent a letter to Kvech stating that, based on her review, Kvech was still required to register under the New Mexico SORNA; Kvech did not register with the local county sheriff.
On January 24, 2012, Kvech filed his Complaint of Damages for Violation of Civil Rights, filed in the First Judicial District, County of Santa Fe, State of New Mexico, filed in federal court March 14, 2012 (Doc. 1-1)("Complaint") against Defendants the State of New Mexico Department of Public Safety, Regina Chacon, and John Does 1-10. The Complaint alleges that the Defendants, acting under color of state law, deprived Kvech of life, liberty, and property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States of America. Kvech brought his due process claim pursuant to 42 U.S.C. § 1983. See Complaint ¶¶ 27-32, at 6-7. The Court dismissed with prejudice the 42 U.S.C. § 1983 claim against the DPS and all of the state-law tort claims against both Defendants. See Stipulated Order Dismissing with Prejudice Parts of Complaint, filed May 8, 2012 (Doc. 12). Chacon moves the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter summary judgment in her favor as to the remaining claims set forth in the Complaint,
Under her qualified immunity argument, Chacon argues that the "stigma plus" requirement means a person must suffer more than having his or her reputation stigmatized, such as the loss of employment, licensure, or another tangible benefit. MSJ at 21-22. In the context sex offender registries, the Supreme Court of the United States has said that requiring sex offenders to register does not violate a cognizable liberty interest, because, at least under the Connecticut registry requirements at issue in the case, the convicted offender already had a "procedurally safeguarded opportunity to contest" the conviction. MSJ at 22-24 (citing Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. ¶ 60, 155 L.Ed.2d 98 (2003)). Chacon notes that, under the United States Court of Appeals for the Tenth Circuit law, there may be a procedural due process claim when a state official requires a person who has not been convicted of any sex offense to register on the sex offender registry, but that the law is not clearly established when a person has been convicted of a sex offense in another state. See MSJ at 24-26 (citing Gwinn v. Awmiller, 354 F.3d 1211 (10th Cir.2004); Brown v. Montoya, 662 F.3d ¶ 52 (10th Cir. 2011)).
Chacon argues that the undisputed evidence shows that Kvech was convicted of a sex offense in Colorado, Unlawful Sexual Contact, in violation of Colo.Rev.Stat. § 18-3-404(1)(a), and was afforded all the procedural safeguards attendant to a conviction; that the Colorado district court required Kvech to register as a sex offender in Colorado, which Kvech did; that the Colorado authorities sent Kvech's sex offender information to the national sex offender registry; and that the Colorado court and probation authorities allowed Kvech to move to New Mexico on the condition that he register as a sex offender in New Mexico if New Mexico officials required registration. See MSJ at 26. Chacon contends that the "only issue" is whether Kvech's Colorado conviction constitutes an "equivalent" offense to one of the New Mexico statutory sex offenses under the New Mexico SORNA that would compel Kvech to register, and that this is a matter of statutory interpretation and methodology of which "reasonable minds may differ." MSJ at 26-27. Looking to the elements of the Colorado statute under which Kvech was convicted — that the defendant unlawfully and knowingly subjected the victim to sexual contact knowing that the victim did not consent — Chacon acknowledges that the "statutory definition, standing alone," would not constitute a sex offense under the New Mexico SORNA, but she contends that the evidence from his conviction demonstrate that Kvech's Colorado conviction was an "equivalent" of the New Mexico sex offense of Criminal Sexual Penetration in the third degree, in violation of N.M. Stat. Ann. § 30-9-11(F) — defined as "criminal sexual penetration perpetrated through the use of force or coercion." MSJ at 27. Chacon asserts that the New Mexico SORNA requires a person to register as a sex offender in New Mexico if that person has been convicted of a statutorily listed sex offense in New Mexico or an equivalent offense in any other jurisdiction, but that the New Mexico SORNA does not define the "key phrase `their equivalents in any other jurisdiction,'" give any guidelines on how to determine whether a particular criminal conviction in another state is equivalent to a New Mexico offense, or specify whether to look at the statutory elements alone or to consider the facts and circumstances of the crime. MSJ at 28.
While Chacon admits that Tenth Circuit law is clearly established "that a state
MSJ at 28. She argues that the law was not clearly established that she had to make the determination whether Kvech's Colorado conviction was equivalent to a New Mexico sex offense under the New Mexico SORNA based solely on the statutory elements rather than on the underlying facts and circumstances; regardless, a § 1983 claim requires the violation of the United States Constitution or a federal law, and not simply the violation of a state statute. See MSJ at 29.
Chacon also argues that she is protected through statutory immunity under 42 U.S.C. § 16929, part of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-16962. See MSJ at 29-30. Chacon contends that Congress requires states to maintain a jurisdiction-wide sex offender registry, specifies the sex offenses requiring registration, specifies the frequency of registration, requires the states to notify convicted sex offenders of the registration requirements, and mandates that the states submit registration information to the FBI and the DOJ Department of Justice, among other things. See MSJ at 30. Congress provided that "[t]he Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall be immune from liability for good faith conduct under this subchapter." MSJ at 30 (quoting 42 U.S.C. § 16929). Chacon argues that she acted in good faith based on her understanding of the facts and applicable law, and therefore, that she is immune from liability based on statutory immunity. See MSJ at 30-31.
Kvech responds that Chacon is not entitled to qualified or statutory immunity, because she disregarded Judge McDonald's order "that clearly stated Plaintiff was not required to register as a sex offender and his Colorado misdemeanor conviction is not an `equivalent' offense" under the New Mexico SORNA, and because Chacon "usurped her power and added elements to Plaintiff's conviction and increased his registration requirements, a clear violation of Plaintiff's procedural due process rights." Response at 1. Regarding the qualified-immunity defense, Kvech argues that it is well established that being wrongly placed on a sex offender registry is a legitimate infringement on a person's constitutional right to liberty, invoking procedural due process protections and satisfying the stigma plus test, "because it couples governmental defamation with an alteration in legal status." Response at 8 (citing Brown v. Montoya, 662 F.3d at 1171; Gwinn v. Awmiller, 354 F.3d at 1222-23)). Kvech contends that being placed on the sex offender registry alters a person's legal status, because failing to register under the New Mexico SORNA is a fourth degree felony and can lead to imprisonment; the registered sex offender must provide a photograph and a description of distinguishing features, give a DNA sample; and register every ninety days for life. See Response at 9 n. 1. Kvech argues that the statutory elements of his Colorado conviction are the equivalent of battery in New Mexico, and that Chacon added the element of force to determine that the Colorado conviction is the equivalent of New Mexico's Criminal Sexual Contact
Kvech contends that he did not receive the appropriate level of process when Chacon classified him as a sex offender under the New Mexico SORNA, because Chacon relied on "allegations outside of the Colorado record, without affording Plaintiff an opportunity to respond to and defend himself against the allegations." Response at 11. In his view, Gwinn v. Awmiller and Brown v. Montoya set the floor for the process Chacon owed him, which include "notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Response at 10-11. "Defendant Chacon relied upon allegations outside of the record without providing Plaintiff an opportunity to present evidence in his defense, an opportunity to respond to the allegations or an explanation of the decision, and thus violated Plaintiff's procedural due process protections." Response at 11. Kvech argues that, under these same authorities, his procedural due-process constitutional right was clearly established at the time Chacon classified him as a sex offender under the New Mexico SORNA. See Response at 12. He asserts that it is not necessary to find a decision declaring the specific action unlawful, so long as the contours of the right were sufficiently clear so that a reasonable official would understand that his or her actions violated the right. See Response at 12. Kvech argues that his situation is closely related to Gwinn v. Awmiller, where the Tenth Circuit held that placing a person who had not been convicted of a sex offense on the sex offender registry was "sufficient damage to his reputation" and "significantly altered his status as a matter of law to implicate his liberty interest." Response at 13. The plaintiff in that case had not been convicted for a sex offense — he had been charged with sexual assault and robbery, but the charge for sexual assault was dropped after he pled guilty to robbery — but the "factfinder relied upon a written report containing allegations outside of the record in order to require Mr. Gwinn to register as a sex offender outside the prison walls." Response at 13. Kvech argues that Chacon likewise improperly viewed facts outside his record of conviction, making his case analogous to Gwinn v. Awmiller. See Response at 13-14. Similarly, he points to Brown v. Montoya, where the Tenth Circuit held that the plaintiff's constitutional right was clearly established: the probation officer required the plaintiff to register as a sex offender, even though the plaintiff pled guilty to two counts of false imprisonment, which is not a sex offense under the New Mexico SORNA, because the probation officer used his own understanding of the New Mexico SORNA and acquired information outside the record of conviction to determine that the plaintiff should register. See Response at 15. The probation officer removed the plaintiff from the sex offender registry after a criminal court issued a written ruling that the plaintiff should be removed from the registry. See Response at 15. Kvech argues that Chacon also relied on allegations outside the record and used her own interpretation of the New Mexico SORNA to require him to register as a sex offender, but that, unlike the officer in Brown v. Montoya, did not remove Kvech from the sex offender registry when the criminal court's written ruling stated that Kvech's Colorado conviction was not equivalent to a sex offense under the New Mexico SORNA. See Response at 15-16. Kvech distinguishes his case from Connecticut Department of Public Safety v. Doe, where the plaintiffs were "convicted sex offenders and unquestionably subject
Kvech argues that Chacon is not entitled to statutory immunity, because she acted in bad faith by considering "allegations not in the record" when determining that Kvech's Colorado conviction was the equivalent of a New Mexico sex offense, requiring him to register as a sex offender. Response at 17. Kvech points specifically to that Chacon did not remove Kvech from the registry and told him that he needed to continue to register, even after she received Judge McDonald's ruling that Kvech was not required to register as a sex offender in New Mexico. See Response at 17-18.
Chacon's Reply emphasizes that Kvech was convicted in Colorado for Unlawful Sexual Contact, that the offense "unquestionably constitutes a `sex offense' under Colorado law, requiring registration as a sex offender in Colorado," and that Kvech registered as a sex offender in Colorado before moving to New Mexico. Reply at 1 & n. 1. Chacon argues that the issue is not whether the Colorado offense is an equivalent of a sex offense in New Mexico — the issue upon which Judge McDonald ruled — but the issue is whether the law was clearly established at the time that a state official would violate an individual's constitutional due process rights by determining without a subsequent hearing that the individual's sex offense conviction in one state also constituted a sex offense under the law of a different state. See Reply at 1-2.
Reply at 2. Chacon argues that the law was not clearly established, because at the time she was making the determination, there was one Tenth Circuit opinion on the issue — Gwinn v. Awmiller — and that case involved a prisoner who had never been convicted, in any forum, of any sex offense. See Reply at 3. Chacon asserts that Brown v. Montoya is irrelevant to the "clearly established" analysis, because the Tenth Circuit issued the opinion on November 8, 2011-after Chacon's acts in 2006-10. Reply at 3 n. 3.
After Chacon notified the Court that briefing on the MSJ was completed, she submitted the Notice of Supplemental Authority, filed January 16, 2013 (Doc. 33)("Supp."), attaching State v. Hall, 2013-NMSC-001, 294 F.3d 1235, a Supreme Court of New Mexico opinion issued on December 5, 2012, that discussed the proper method to determine if an out-of-state offense qualifies as an equivalent sex offense under the New Mexico SORNA. See Supp. at 1-2. Chacon noted that the Supreme Court of New Mexico's position
The Court held a hearing on May 20, 2013. Chacon stated that Congress set out the basic framework for state sex offender registries, requiring states to create a registry, to obtain certain information from convicted sex offenders including identifying marks and a DNA sample, and to publish the registry on the Internet; included in the federal statute is that the officers, employers, and agents shall be immune from liability for good faith conduct under the act. See Tr. at 3:23-45:3 (Dickman). Chacon asserted that she is protected under statutory immunity, but that the Court may not need to address that point, because her qualified immunity argument would make the issue moot. See Tr. at 5:5-10 (Dickman). Although the federal statute sets out the basic framework, Chacon said that each state's laws differ in terms of what offenses are characterized as registrable sex offenses. See Tr. at 5:11-25 (Dickman). Chacon explained that, in New Mexico, the sex offender must register with the local county Sheriff, who is then responsible for obtaining information from the sex offender, maintaining a registry for that county, and sending the information to the DPS in Santa Fe, which publishes the statewide sex offender registry on the Internet. See Tr. at 6:9-21 (Dickman). Each state determines how often sex offenders must update their registration information-some states require every ninety days, like New Mexico, while others require updates once a year, after ten years, or otherwise. See Tr. at 6:25-7:6 (Dickman). In New Mexico, Chacon explained, it is a fourth degree felony for a sex offender to fail to register. See Tr. at 6:22-25 (Dickman).
Reviewing the facts of the case, Chacon emphasized that Kvech was convicted for a sex offense in Colorado, which meant he was required to register as a sex offender in Colorado, see Tr. at 8:24-9:10 (Dickman), and that, after Kvech stopped registering, the Sheriff filed a criminal complaint against Kvech: "[I]t's undisputed that Ms Chacon was not involved" in filing the criminal complaint, obtaining the arrest warrant, arresting Kvech, or procuring the grand jury indictment, Tr. at 10:7-15. Chacon noted that she and the DPS were not parties to the criminal case against Kvech for failing to register, and, thus, that court did not have personal jurisdiction over them; she argued that, in other situations when a person thinks that his or her out-of-state conviction is not equivalent to an offense under the New Mexico SORNA, the person can file a declaratory action naming the DPS and the Sheriff, giving the court personal jurisdiction over those parties. See Tr. at 11:3-11 (Dickman). Chacon also noted that, although Judge McDonald dismissed the criminal complaint against Kvech, a subsequent case from the Supreme Court of New Mexico reveals that Judge McDonald's approach — comparing only the elements of the Colorado crime with the statutory elements of New Mexico sex offenses — is incorrect, and that the correct approach looks beyond the elements to consider whether a defendant's actual conduct, had it occurred in New Mexico, would have constituted a registrable offense under the New Mexico SORNA. See Tr. at 11:19-12:6 (Dickman)(citing State v. Hall). The Court asked whether Chacon said that Judge McDonald "got it wrong" because he came to the wrong conclusion about Kvech's offense, or because he did not use the correct analysis, Tr. at 13:7-10 (Court); Chacon said Judge McDonald did not apply the correct analysis and that, if Kvech's motion to dismiss
The Court noted that most of the facts were not in dispute and asked Kvech whether there were any issues of material fact that would preclude summary judgment. See Tr. at 26:3-12 (Court). Kvech responded that a triable fact included whether Chacon's actions, especially in disregarding Judge McDonald's opinion, were made in bad faith. See Tr. at 26:16-21 (Dominguez). When the Court asked about the role of Judge McDonald's opinion, Kvech said that, because Chacon disregarded the opinion, Kvech had to disclose his status as a sex offender to his employer for an additional year and a half. See Tr. at 26:22-27:8 (Court, Dominguez). The Court asked whether being convicted for failing to register and being required
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221, 2013 WL 3462484, at *23 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence-using any of the materials specified in Rule 56(c)-that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original).
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his [or her] pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980)("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
Section 1983 of Title 42 of the United States Code provides:
42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989)("Section 1983 does not provide a remedy if federal law does not create enforceable rights."). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a "person" (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia.
Martinez v. Martinez, No. CIV 09-0281 JB/KBM, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)(civil-rights statute).
Liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations and internal quotations omitted). See Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." (emphasis in original)). These standards apply for allegations of liability based on failure to train and for "official de facto policies" that arise from "failing to adopt various policies to adequately protect" a class of persons. Barney v. Pulsipher, 143 F.3d at 1367, 1309 n. 8. "[W]hen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm," it is liable. Barney v. Pulsipher, 143 F.3d at 1307.
Barney v. Pulsipher, 143 F.3d at 1307-08. Most cases, however, will not fall within this "narrow range of circumstances" without "a pattern of violations." Barney v. Pulsipher, 143 F.3d at 1308.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens
Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).
Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant's actions violated the constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In
The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: When (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage" and "the precise factual basis for the ... claim ... may be hard to identify"; (v) tackling the first element "may create a risk of bad decisionmaking" because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32. See Kerns v. Bader, 663 F.3d at 1181.
In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). "A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be `indisputable' and `unquestioned.'" Lobozzo v. Colo. Dep't of Corr., (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).
"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question... unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v.
The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). While a case directly on point is not required, the Supreme Court has held that "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the volatile nature of particular conduct is clearly established." Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have "reasonable, but mistaken beliefs" as to the application of law to facts and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151.
The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007)("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (unpublished)] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted).
The Fourteenth Amendment states: "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). "Under either form of protection, however, a person must have a protected interest in either life, liberty, or property." Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual's procedural due-process rights were violated: (i) "Did the individual possess a protected property interest to which due process protection was applicable?"; and (ii) "Was the individual afforded an appropriate level of process?" Camuglia v. The City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006)(internal quotations omitted).
"The Constitution does not create or define the contours of `liberty' or `property,' the `broad and majestic terms' enshrined in the Fourteenth Amendment." Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. "Such an interest arises not from the Due Process Clause of the Constitution itself, but is `created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.'" Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.");
"[O]nce it is determined that the Due Process Clause applies, `the question remains what process is due.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). "An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks and brackets omitted). The Supreme Court has described
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545, 105 S.Ct. 1487 (footnote omitted) (citations omitted). The United States Court of Appeals for the Second Circuit has stated:
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir.2004). The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might
The Supreme Court explained in Paul v. Davis:
424 U.S. at 701, 96 S.Ct. 1155. In Paul v. Davis, the plaintiff's name and photograph appeared on a flyer with the caption "Active Shoplifters" that was distributed to local area merchants. 424 U.S. at 695-96, 96 S.Ct. 1155. The Supreme Court explained: "The `stigma' resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such a defamation, standing alone, deprived [the plaintiff] of any `liberty' protected by the procedural guarantees of the Fourteenth Amendment." 424 U.S. at 709, 96 S.Ct. 1155.
The Tenth Circuit's stigma-plus standard requires a plaintiff to demonstrate:
Kennedy v. Smith, 259 Fed.Appx. 150, 155 (10th Cir.2007). "Tenth Circuit caselaw on stigma-plus claims generally arises out of employment-law cases." Bell v. Bd. of Educ. of the Albuquerque Pub. Sch., No. CIV 06-2237 JB/ACT, 2008 WL 4104118 (D.N.M. May 6, 2008) (Browning, J.) (citing Six v. Henry, 42 F.3d 582, 585 (10th Cir.1994); Corbitt v. Andersen, 778 F.2d 1471, 1474-75 (10th Cir.1985)). To satisfy a liberty-interest claim, however, a plaintiff must demonstrate:
Evers v. Regents of Univ. of Colo., 509 F.3d 1304, 1308 (10th Cir.2007).
An alleged defamatory or stigmatizing statement by a government actor, standing alone, is insufficient to state a due-process claim. See McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981) (stating that "[s]tigmatization or reputational damage alone, no matter how egregious, is not sufficient to support a § 1983 cause of action.")(citing Paul v. Davis, 424 U.S. 693, 697-713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).
459 F.3d at 214.
Due-process concerns may be implicated only when the subject of the stigmatizing statement is denied a hearing to clear his or her name. See Gwinn v. Awmiller, 354 F.3d at 1216 ("Where a person's good name, reputation, or integrity is at stake because of what the government is doing to him, a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name.")(internal quotations omitted). "A person who establishes a liberty-interest deprivation is entitled to a name-clearing hearing." Evers v. Regents of Univ. of Colo., 509 F.3d at 1308.
A plaintiff who fails to assert his or her right to a due-process hearing cannot assert a stigma-plus due process claim. See Winskowski v. City of Stephen, 442 F.3d 1107, 1110-11 (8th Cir.2006) (noting that it had "previously held that a government employee cannot recover for a due process violation where the employee simply failed to avail himself of the post-termination process that was available.")(citing Schleck v. Ramsey County, 939 F.2d 638, 642 (8th Cir.1991) (stating that "it is undisputed that [the plaintiffs] were offered an extensive post-termination hearing, which would have allowed the introduction of evidence and cross-examination of witnesses.... That such a hearing never was conducted because [the plaintiffs] declined to avail themselves of it does not give rise to a due process violation)"); Quinn v. Shirey, 293 F.3d 315, 321-22 (6th Cir.2002) (similar); Rosenstein v. City of Dallas, 876 F.2d 392, 396 (5th Cir.1989) (similar).
The law requires a tangible injury to support a stigma-plus claim. See Phelps v. The Wichita Eagle-Beacon, 886 F.2d 1262, 1268-69 (10th Cir.1989)(holding that future harm to prospective relationships and damages to prospective employment opportunities are too intangible to constitute a deprivation of a property or liberty interest). In Phelps v. The Wichita Eagle-Beacon, the attorney brought suit against employees of a newspaper and a former assistant attorney general for articles that he contended "placed a defamatory cloud over his employment opportunities." 886 F.2d at 1266, 1268. The Tenth Circuit noted that the plaintiff had "merely ... alleged speculative future harm to prospective relationships as a result of the generalized damage to his reputation." 886 F.2d at 1268. The Tenth Circuit noted that the "plaintiff ha[d] not been foreclosed from practicing law. At most, he allege[d] that the newspaper articles made him less attractive to potential clients." 886 F.2d at 1269. The Tenth Circuit held "[t]hat allegation is insufficient to state a deprivation
In Workman v. Jordan, 32 F.3d 475 (10th Cir.1994), the plaintiff asserted a due-process claim for deprivation of a liberty interest based on "damage to his reputation due to allegedly stigmatizing documents placed in his personnel file" by defendants after his reinstatement to a job. 32 F.3d at 480. The Tenth Circuit found that the plaintiff had not shown lost-employment opportunities and was unable to make a "sufficient showing of false stigmatizing statements entangled with his interest in employment." 32 F.3d at 481. The Tenth Circuit noted that, because the plaintiff was not deprived of a liberty interest, "due process did not require an adequate name-clearing hearing." 32 F.3d at 482.
To state a stigma-plus, due-process claim, a plaintiff must establish that the allegedly stigmatizing information was published. See Workman v. Jordan, 32 F.3d at 481 (10th Cir.1994); Harrison v. Bd. of County Comm'rs, 775 F.Supp. 365, 367 (D.Colo.1991) (explaining that intra-government disclosure of information does not constitute publication in the context of a liberty-interest claim). In Orozco v. County of Monterey, 941 F.Supp. 930 (N.D.Ca.1996), the district court noted:
941 F.Supp. at 939. See Diehl v. Albany County Sch. Dist. No. 1, 694 F.Supp. 1534, 1537 (D.Wy.1988)(explaining that statements made about a coach by a school board regarding nonrenewal were not published, because "[r]easons for termination or nonrenewal given to an employee in private cannot impair the employee's interest in his good name, reputation, honor, or integrity.... Statements made in the course of a judicial proceeding also do not support a liberty interest claim.")(internal quotations and citations omitted). The Tenth Circuit requires actual dissemination of information for a plaintiff to satisfy the publication prong of the stigma-plus standard.
Bell v. Bd. of County Com'rs of Jefferson County, 343 F.Supp.2d 1016, 1021 (D.Kan.2004)(citing Harris v. Blake, 798 F.2d 419, 419 n. 2 (10th Cir.1986)).
In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court noted that students, on the basis of state law, had legitimate claims of entitlement to a public education. See 419 U.S. at 573, 95 S.Ct. 729. The Supreme Court explained that "the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause." 419 U.S. at 574, 95 S.Ct. 729. School authorities suspended students, for periods up to ten days, based on charges of misconduct in Goss v. Lopez. See 419 U.S. at 575, 95 S.Ct. 729. The
"`Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name." Gwinn v. Awmiller, 354 F.3d at 1216 (quoting Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir.1993)). Asserting damage to one's reputation "is not enough to implicate due process protection" — a plaintiff must satisfy what is sometimes described as a "stigma plus" standard, demonstrating that
Gwinn v. Awmiller, 354 F.3d at 1216 (alteration in original)(quoting Paul v. Davis, 424 U.S. at 710-11, 96 S.Ct. 1155).
In Connecticut Department of Public Safety v. Doe, the Supreme Court reviewed the Second Circuit's decision to enjoin the public disclosure of Connecticut's sex offender registry; Respondent John Doe filed a 42 U.S.C. § 1983 claim, on behalf of himself and other similarly situated sex offenders, against the state agencies and officials responsible for compiling the sex offender registry and posting it on the Internet, alleging that Connecticut's "Megan's Law"
Since Connecticut Department of Public Safety v. Doe, the Tenth Circuit has twice addressed procedural due-process claims in the context of sex offender registries. In Gwinn v. Awmiller, the plaintiff was charged in Colorado state court in 1987 with robbery, aggravated robbery, and sexual assault; he pled guilty to robbery, and the sexual assault charge was dismissed. See 354 F.3d at 1214. The Colorado Department of Corrections ("CDOC") required him to complete a treatment program for sex offenders while incarcerated; he initially admitted that he committed the sexual assault and completed the first phase of the treatment program, but CDOC officials removed him after he violated prison disciplinary rules. 354 F.3d at 1214-15. When he was released on parole in 1995, his parole officer required him to register as a sex offender and attend a community treatment program. See 354 F.3d at 1215. He was subsequently convicted for possessing a controlled substance and released on parole, but his parole was revoked when he refused to participate in the sex offender treatment program. See 354 F.3d at 1215. In 2000, and back in prison, the CDOC held an administrative hearing to determine if the plaintiff should be classified as a sex offender; the plaintiff did not attend, but the hearing panel reviewed a written statement the plaintiff submitted and the pre-investigation report from the plaintiff's 1987 conviction, which included "an account of a sexual assault allegedly committed" by the plaintiff. 354 F.3d at 1217. The hearing panel issued written findings that the plaintiff "behaved in a sexually violent and abusive manner," and "that his behavior could threaten the safety of the public upon release, or the safety of prison staff because he had not offered any credible explanation that would avoid the conclusion that he had behaved in a sexually violent and/or abusive manner." 354 F.3d at 1218 (internal quotation marks and brackets omitted). The plaintiff filed a pro se civil rights action seeking an injunction preventing the prison officials from classifying him as a sex offender: he argued that the CDOC officials violated his due-process rights when they "applied an improper presumption — that he was a sex offender — and required him to rebut it," and did not provide him with an attorney for the hearing. 354 F.3d at 1218. The trial court granted CDOC's motion for summary judgment, which the Tenth Circuit affirmed; the Tenth Circuit said that, before an inmate who has not previously been convicted of a sex offense may be
The plaintiff also argued that his parole officer violated his due process rights by requiring him to register as a sex offender after he was released from prison, because "he will be forced to live in a society labeled and stigmatized as a sex offender though he has never been convicted in a court of law for any sexual offenses, and that he has been denied employment and admission into substance abuse programs because of the registration requirements." 354 F.3d at 1221-22 (internal quotation marks and citations omitted). The Tenth Circuit noted that the plaintiff had "sufficiently alleged that his classification as a sex offender outside the prison walls implicated a liberty interest," but that the record was insufficient to evaluate what process, if any, the parole officer gave the plaintiff; the Tenth Circuit said the trial court improperly granted the defendants' motion for summary judgment, because the defendants had not addressed that claim in their motion, and the plaintiff had not provided evidence sufficient to resolve the allegations. 354 F.3d at 1224. On remand, the Tenth Circuit directed the district court to determine whether the registration requirements significantly altered the plaintiff's status to implicate a liberty interest, and if so, what procedural protections the due-process clause requires. See 354 F.3d at 1224.
In Brown v. Montoya, 662 F.3d 1152 (10th Cir.2011), the plaintiff had pled guilty to two counts of false imprisonment in New Mexico state court; after he was released from custody, his parole officer required him to register as a sex offender and placed him in the sex offender probation unit, based on the probation officer's understanding of New Mexico law and information he reviewed that indicated that the victim in the plaintiff's false imprisonment case was a minor. See 662 F.3d at 1157. The plaintiff "sought and won in state court an order removing his name from the sex offender registry and removing him from the sex offender probation unit." 662 F.3d at 1157. He then filed a 42 U.S.C. § 1983 action against his probation officer and the New Mexico Secretary of Corrections, alleging that he was wrongly directed to register as a sex offender and wrongly placed in the sex offender probation unit; both defendants moved to dismiss based on qualified immunity. See 662 F.3d at 1157-58.
Analyzing the plaintiff's due-process claim under the deferential motion to dismiss standards, the Tenth Circuit said that "assuming the facts alleged in his Complaint are true, Mr. Brown (1) had a liberty interest in not being placed on sex offender probation or on the sex offender registry; (2) he was deprived of that interest; and (3) he received inadequate process before the government imposed such a deprivation." 662 F.3d at 1168-69. The Tenth Circuit noted that "a false statement that a person is a sex offender is `sufficiently derogatory to injure his reputation,'" and that requiring someone to register as a sex offender significantly alters his legal status, because "sex offender registration carries steep penalties," which, if disregarded, lead to felony prosecution,
The Supreme Court has stated that "[s]ex offenders are a serious threat in this Nation. The victims of sex assault are most often juveniles, and when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault." Connecticut Dept. of Public Safety v. Doe, 538 U.S. at 4, 123 S.Ct. 1160 (internal quotation marks and brackets omitted)(quoting McKune v. Lile, 536 U.S. 24, 32-33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion)).
By 2006, every state had enacted a sex offender registration law, see United States v. Gibson, 348 Fed.Appx. 392, 394 n. 1 (10th Cir.2009) (unpublished); in an effort to make the state schemes "more comprehensive, uniform, and effective," Congress enacted the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16911-16929 ("SORNA"), as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587. Carr v. United States, 560 U.S. at 441, 130 S.Ct. 2229. SORNA requires each state to maintain a jurisdiction-wide sex offender registry, see 42 U.S.C. § 16912, and specifies the information to be included in the registry, such as the sex offender's name, social security number, address where the sex offender resides, is an employee, or is a student, license plate number and description of the sex offender's vehicle, physical description, criminal history, current photograph, and a set of fingerprints and DNA sample, see 42 U.S.C. § 16914. SORNA directs states to
United States v. Gibson, 348 Fed.Appx. at 394 n. 1 (quoting United States v. Gould, 568 F.3d 459, 463 n. 1 (4th Cir.2009)). SORNA also provides that "[t]he Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall be immune from liability for good faith conduct
New Mexico has adopted the New Mexico SORNA: the act's purpose is to assist law enforcement agencies in protecting their communities by:
N.M. Stat. Ann. § 29-11A-2(B). A "sex offender" means a person who "has been convicted of a sex offense pursuant to state, federal, tribal or military law," and (i) is a New Mexico resident, (ii) changes residence to New Mexico, (iii) lives in a shelter, halfway house, transitional living facility, or multiple locations in New Mexico; or (iv) is a resident of another state but works or attends school in New Mexico. N.M. Stat. Ann. § 29-11A-3(H). "Conviction" means "a conviction in any court of competent jurisdiction," and "sex offense" is defined as one of the thirteen listed New Mexico offenses — such as aggravated criminal sexual penetration or criminal sexual penetration in the first, second, third or fourth degree, criminal sexual contact in the fourth degree, criminal sexual contact or a minor in the second, third or fourth degree, false imprisonment when committed with the intent to inflict a sexual offense, aggravated indecent exposure — "or their equivalents in any other jurisdiction[.]" N.M. Stat. Ann. § 29-11A-3(B, I).
A sex offender who is a New Mexico resident must register with the county sheriff for the county in which the sex offender resides no later than five business days after being released from custody; a sex offender who "changes his or her residence to New Mexico" must register with the county sheriff for the New Mexico county in which he or she resides no later than five days after his or her arrival in New Mexico. N.M. Stat. Ann. § 29-11A-4(A, B). The sex offender must provide certain registration information, such as his or her legal name, date of birth, social security number, address, place of employment, sex offense conviction, electronicmail addresses, and telephone numbers; the county sheriff is to obtain the sex offender's photograph, a set of fingerprints, physical description of the offender, and a DNA sample to include in the sex offender DNA identification system. See N.M. Stat. Ann. § 29-11A-4(B, E). Depending on the sex offense conviction, a sex offender must verify and update registration information with the county sheriff every ninety days for the sex offender's natural life or every six months for ten years; an out-of-state registrant — defined as a person who "establishes a residence in New Mexico while the person is required to register as a sex offender in another state or territory," N.M. Stat. Ann. § 29-11A-3(F) — is to verify registration information for the longer of "(a) the duration of time remaining in the registrant's convicting jurisdiction and at the same frequency as required in that state or territory, but no less than once every six months; or (b) the duration of time remaining that would be required for the equivalent offense in New Mexico," N.M. Stat. Ann. § 29-11A-4(L).
State v. Hall, 2013-NMSC-001 ¶ 1, 294 P.3d 1235. In State v. Hall, the defendant was required to register as a sex offender in California after he was convicted for "annoying or molesting" a child under the age of eighteen, contrary to Cal.Penal Code § 647.6(a)(1). 2013-NMSC-001 ¶ 2. After he moved to New Mexico, he was charged with failing to register as a sex offender under the New Mexico SORNA; he moved to dismiss the charge, arguing that his California offense was not an equivalent to one of New Mexico's listed offenses. See 2013-NMSC-001 ¶¶ 3-4. The district court denied the motion, and the defendant entered a conditional guilty plea, allowing him to appeal the denial of his motion to dismiss; the Court of Appeals of New Mexico reversed that ruling, because "a conviction for criminal sexual contact of a minor," one of New Mexico's enumerated offenses under the New Mexico SORNA, "requires touching or the application of force, while California's `annoying or molesting' statute does not." 2013-NMS-C001 ¶ 5. The Supreme Court of New Mexico disagreed with the Court of Appeals' analysis:
2013-NMSC-001 ¶ 18. Because the record was inadequate to evaluate whether the defendant's conduct that gave rise to the California conviction would be an equivalent offense in New Mexico, the Supreme Court of New Mexico remanded the case to the district court. See 2013-NMSC-001 ¶¶ 26, 30.
The question whether a person with an out-of-state conviction must register as a sex offender in New Mexico came before the New Mexico court in State v. Hall through a motion to dismiss a charge of failing to register as a sex offender, see 2013-NMSC-001 ¶ 3, but a person with an out-of-state conviction may also bring that question before New Mexico courts by filing
2009-NMCA-083 ¶ 17 (internal citation omitted).
Chacon moves the Court to enter summary judgment in her favor on Kvech's claim that she, acting under color of state law, deprived him of life, liberty, and property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, brought pursuant to 42 U.S.C. § 1983. Chacon argues that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law, because qualified immunity and statutory immunity protect her. Kvech argues that Chacon violated his constitutional rights when Chacon disregarded Judge McDonald's order that said Kvech's Colorado conviction was not an equivalent offense under the New Mexico SORNA when she continued requiring Kvech to register as a sex offender for over one year, and when she added the "force" element to his conviction without providing an opportunity for him to defend himself. The undisputed evidence shows that, while Chacon violated Kvech's constitutional rights, Chacon is entitled to qualified immunity and judgment as a matter of law, because the law was not clearly established what process, if any, was due a person who had been convicted of a sex offense in state A, was required to register as a sex offender in state A, and moved to state B with different sex offender registration requirements. Chacon is not, however, entitled to statutory immunity, because a factual question exists whether she was acting in good faith after she received Judge McDonald's opinion, stating that Kvech's Colorado conviction was not equivalent to a sex offense under the New Mexico
When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d at 1107.
In the Complaint, Kvech argues that
Complaint ¶ 29, at 6-7. The Court has dismissed the claims against all of the Defendants except for Chacon; the undisputed facts show that she was not involved in arresting or jailing Kvech for failing to register as a sex offender.
The facts also show that Chacon had the authority to remove Kvech from the sex offender registry consistent with the DPS policy; that she did not remove Kvech's name from the state sex offender registry after she received Judge McDonald's opinion, which Judge McDonald issued on October 23, 2008, which dismissed Kvech's criminal charges for failing to register, and which stated that the Colorado conviction was not equivalent to a sex offense in New Mexico; that she sent a letter to Kvech directing him to register as a sex offender on June 3, 2010; and that, after the DPS policy changed, she sent a final letter on July 12, 2010 stating that Kvech did not have to register as a sex offender. Chacon's actions violated Kvech's liberty interest, but the law was not clearly established during the time of her actions that a person's liberty interest would be implicated when that person had been convicted of a sex offense in state A, was required to register as a sex offender in state A, and then moved to state B; it was also not clearly established what process was required in such a situation.
The undisputed facts show that Kvech was convicted of a sex offense in Colorado and was required to register as a sex offender in Colorado. Under Colorado law, he was required to register for ten years, and then he could petition to remove his name from the registry. When he moved to New Mexico, he registered as a sex offender for about a year, and after he stopped registering, he was charged with failing to register as a sex offender. He moved to dismiss the charges against him, arguing that his Colorado offense was not equivalent to one of New Mexico's enumerated sex offenses. Judge McDonald dismissed the charges after reviewing the statutory elements of the Colorado conviction and comparing it to the statutory elements of the New Mexico offenses, concluding that the Colorado conviction was not an equivalent offense. Although Judge McDonald said Kvech did not need to continue registering as a sex offender, Kvech registered once more, but then never again. Kvech's attorney sent a letter to Chacon, requesting that she remove Kvech from the sex offender registry; she did not do so. Chacon reviewed Kvech's file and concluded that Kvech's conviction was a equivalent to a sex offense in New Mexico, and sent a letter directing Kvech to renew his registration as a sex offender; he did not do so. After the DPS policy changed, Chacon then sent a second letter, stating that Kvech did not need to register
"`Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name." Gwinn v. Awmiller, 354 F.3d at 1216 (quoting Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir.1993)). Asserting damage to one's reputation "is not enough to implicate due process protection" — a plaintiff must satisfy what is sometimes described as a "stigma plus" standard, demonstrating that
Gwinn v. Awmiller, 354 F.3d at 1216 (alteration in original)(quoting Paul v. Davis, 424 U.S. at 710-11, 96 S.Ct. 1155).
The first requirement of a procedural due-process stigma-plus claim is that "the government made a statement about him... that is sufficiently derogatory to injure his ... reputation, that is capable of being proved false...." Gwinn v. Awmiller, 354 F.3d at 1216 (quoting Paul v. Davis, 424 U.S. at 710-11, 96 S.Ct. 1155). This first part of the liberty interest — that the government made a false statement that is sufficiently derogatory to injure one's reputation — can be broken into several parts: first, whether the government made a false statement about Kvech, and, second, whether it was sufficiently derogatory to injure Kvech's reputation. The first question depends greatly on how broadly or narrowly the statement is interpreted. On the one hand, the government stated that Kvech was a convicted sex offender, which is true: Kvech was a convicted sex offender in Colorado, and was required to register as a sex offender in Colorado. On the other hand, the government did not simply state that Kvech was a convicted sex offender, but that his sex offense was an equivalent of a New Mexico sex offense, which required registering in New Mexico. This more narrowly-crafted statement is the statement that may be false, if Kvech's Colorado conviction is not equivalent to a New Mexico sex offense. If that statement is false, one must ask whether it is derogatory and injurious to Kvech's reputation, when it is true that he is a registered sex offender in a different state
While it is undisputed that Kvech was convicted for a sex offense in Colorado, the Court must determine if, under New Mexico law, his offense is an equivalent offense in New Mexico, requiring him to register as a sex offender in New Mexico. The Supreme Court of New Mexico has rejected the "narrow, elements-based approach" that Judge McDonald used, and opts instead for "a broader approach that examines the offender's actual conduct." State v. Hall, 2013-NMSC-001 ¶ 17.
State v. Hall, 2013-NMSC-001 ¶ 22. The Supreme Court of New Mexico noted that,
State v. Hall, 2013-NMSC-001 ¶ 24.
When Chacon reviewed Kvech's file, she relied on the Colorado officer's Affidavit of Probable Cause for Arrest Warrant — not on a charging document, plea agreement, or transcript of the plea hearing. The Supreme Court of New Mexico did not state whether a court may consider documents besides the "charging document, plea agreement, or transcript of the plea hearing," but said "the question is whether the out-of-state fact-finder necessarily must have found facts that would have proven the elements of the New Mexico registrable offense." State v. Hall, 2013-NMSC-001 ¶ 22. In the Affidavit of Probable Cause for Arrest Warrant, the affiant said she had probable cause to believe that Kvech committed Colo.Rev.Stat. "18-3-402, Sexual assault," Affidavit of Probable Cause for Arrest Warrant at 21, but Kvech did not plead guilty to sexual assault — he was charged with and pled guilty to Unlawful Sexual Contact, under Colo.Rev.Stat. § 18-3-404(1)(a). The Colorado factfinder would not have necessarily found all of the facts alleged in the Affidavit of Probable Cause for Arrest Warrant, because Kvech's guilty plea was for Unlawful Sexual Contact. While the Colorado plea agreement or transcript of the plea hearing may reveal more facts, neither party in this case attached that evidence to their pleadings, and so the Court cannot consider these documents. Further, Chacon stated that she relied on the Affidavit of Probable Cause for Arrest Warrant, not on the charging documents, plea agreement, or transcript of the plea hearing, indicating that those documents likely do not contain the same facts as those alleged in the Affidavit of Probable Cause for Arrest Warrant.
When a court cannot rely on the underlying documents, and therefore has no factual findings to review, it "will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA." State v. Hall, 2013-NMSC-001 ¶ 24. That is the analysis Judge McDonald completed, and he concluded that Kvech's Colorado conviction was not equivalent to an enumerated sex offense in New Mexico. The statute under which Kvech was convicted states "(1) Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if: (a) The actor knows that the victim does not consent[.]" Colo.Rev.Stat. § 18-3-404(1)(a). The closest enumerated offense under the New Mexico SORNA is criminal sexual contact in the fourth degree, which states:
N.M. Stat. Ann. § 30-9-12(A, C). Unlike Colorado's Unlawful Sexual Contact statute,
Generally, having one's name on a sex offender registry, especially in light of the public access to this information, has a severe stigmatizing effect: "[T]here can be no doubt that the widespread public access to this personal and constantly updated information has a severe stigmatizing effect." Gwinn v. Awmiller, 354 F.3d at 1223 (quoting Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Stevens, J., concurring)). The Tenth Circuit has indicated that making a false statement that someone is a sex offender, and requiring that person to register as a sex offender, is sufficiently derogatory to injure that person's reputation. See Gwinn v. Awmiller, 354 F.3d at 1224. Kvech's case is more difficult than the normal case, because he was already required to register as a sex offender in Colorado, and one could ask whether the additional requirement of having to register in New Mexico could do any more damage to his reputation. Like the previous analysis, however, the Court concludes that it is important to focus on the relevant state's laws: whether requiring Kvech to register as a sex offender in New Mexico further stigmatized him or injured his reputation.
New Mexico's requirement that the out-of-state conviction must be an "equivalent" to a listed sex offense before the person must register as a sex offender is not unique, but it is also not the only approach states have taken. Sixteen jurisdictions use an external approach: "external approach states require registration if the foreign jurisdiction where the conviction occurred required registration, regardless of whether it would warrant registration in the forum." Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. Pa. L.Rev. 257, 287 (2005). The Supreme Court of New Mexico has recognized that New Mexico's legislature could adopt this approach, if it wanted:
State v. Hall, 2013-NMSC-001 ¶ 24. If New Mexico adopted this approach, then requiring someone to register in New Mexico would not be any more damaging to the person's reputation than requiring the person to register in the original state, because being classified in one state as a sex offender would mean the same thing in the other. With New Mexico's current system, however, when a person registers as a sex offender in New Mexico, it is because they have been convicted of either one of the enumerated sex offenses or an equivalent sex offense, and requiring Kvech to register when his offense was not equivalent falsely communicated that he had committed a more serious offense than what was true. It may be that most people viewing a publicly available sex offender registry would not understand or appreciate the subtle differences between the registration requirements in one state to the next, but that does not change that requiring Kvech to register in New Mexico communicated that he was convicted for a more serious crime, attaching to it more stigma and more injury to his reputation.
The stigma-plus standard requires that there is an alteration in the person's legal status, and the Tenth Circuit has held that requiring a person to register as a sex offender significantly alters one's status. See Gwinn v. Awmiller, 354 F.3d at 1224. While Kvech was already required to register as a sex offender in Colorado, the registration requirements imposed on him in New Mexico were more onerous: in Colorado, Kvech would have only had to update his registration information once a year, and after ten years, he could petition the government to remove his name from the sex offender registry; in New Mexico, he had to update his registration information every ninety days for life. Further, the comparison is not just Kvech's status in Colorado compared to his status in New Mexico if he had to register as a sex offender, but also what Kvech's status would have been in New Mexico had he been correctly classified. Under New Mexico law, he should not have been classified as a sex offender, and that erroneous classification subjected him to continued registration requirements, where he would have had to provide detailed information about himself to the local sheriff, and failing to register subjected him to the risk of being charged and convicted with a fourth degree felony for failing to register. See N.M. Stat. Ann. § 29-11A-9. Although Kvech did not register again after February 12, 2009, he was still subject to the registration requirements or the risk of a criminal charge for failing to register. The Court concludes that Chacon's decision to not remove Kvech's name from the sex offender registry resulted in a wrongful classification that significantly altered his legal status in New Mexico.
In Connecticut Dept. of Public Safety v. Doe, the Supreme Court held that, under
New Mexico is one of nineteen states that employ a compulsory approach, "which requires that offenders satisfying statutory, offense-related criteria be subject to registration and notification, affording offenders no right to a prior hearing on the eligibility determination." Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J.Crim. L. & Criminology 1167, 1175 (1999). Had Kvech been convicted of a sex offense listed in the New Mexico SORNA, Connecticut Department of Public Safety v. Doe would foreclose any argument that he deserves an additional hearing, because he would have received his due process at the time he was convicted. Kvech was not, however, convicted under one of the listed sex offenses in New Mexico; he was convicted for a sex offense in Colorado, and he argues that, when he came to New Mexico, he was not given any opportunity to contest the determination that his Colorado offense was equivalent to a New Mexico sex offense. Unlike the situation in Connecticut Department of Public Safety v. Doe, where the plaintiff wanted a hearing on his current dangerousness, an issue that would not have made a difference under Connecticut's sex offender registry statute, the question Kvech seeks to resolve makes a difference under the New Mexico SORNA.
Although Gwinn v. Awmiller and Brown v. Montoya do not involve precisely the same facts, because the plaintiffs in those cases were not convicted of any sex offenses in any jurisdiction, the process that those plaintiffs argued they deserved is similar to the process Kvech argues he deserves. In those cases, the plaintiffs wanted an opportunity to challenge the determination that their convictions required them to register as sex offenders; Kvech likewise argues he deserved the opportunity to challenge the determination that his Colorado conviction required him to register in New Mexico.
The Court must determine the appropriate level of process "through an analysis of `the risk of an erroneous deprivation' of the private interest if the process were reduced and `the probable value, if any, of additional or substitute procedural safeguards.'" Brown v. Montoya, 662 F.3d at 1168 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004); Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893, (O'Connor, J., plurality opinion)).
Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893. The Tenth Circuit has recognized that Gwinn v. Awmiller "sets a floor for the minimum level of process due to a person directed to register as a sex offender outside of prison." Brown v. Montoya, 662 F.3d at 1168. This baseline means that someone outside of prison is entitled to at least "notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Gwinn v. Awmiller, 354 F.3d at 1219.
Chacon argues that people with out-of-state convictions who are told to register as sex offenders in New Mexico may file declaratory judgments to challenge their classification in New Mexico as sex offenders. This procedure does not alone, however, satisfy due process. While it is true that there are situations when providing a post-determination hearing satisfies due process, see Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)("Where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process Clause."), such a post-determination hearing in this case does not satisfy due process. Chacon's suggestion ignores the procedural and factual history in Brown v. Montoya, where the plaintiff filed a declaratory judgment in state court to remove his name from the sex offender registry and won, and then filed the 42 U.S.C. § 1983 action in federal court; the Tenth Circuit did not view the declaratory action as sufficient process, and instead focused on what process was given to the plaintiff before he was classified as a sex offender. See 662 F.3d at 1170. The plaintiff alleged that the parole officer did not provide any process before placing the plaintiff on the sex offender registry, and the Tenth Circuit said, in the context of a motion to dismiss, that the plaintiff "sufficiently alleged that he did not receive constitutionally adequate process." 662 F.3d at 1170. Here, the undisputed facts show that Chacon did not give Kvech any process when she determined that he was still subject to the New Mexico SORNA registration requirements. Although she was not responsible for failing to provide a pre-deprivation hearing when Kvech initially moved to New Mexico, she did not provide him with an opportunity of any sort to contest her conclusion that, despite Judge McDonald's opinion, Kvech's Colorado conviction required him to register in New Mexico. Although Kvech's situation is different from the plaintiffs in Gwinn v. Awmiller and Brown v. Montoya in that he was convicted of a sex offense in Colorado, the Court concludes that he was entitled to at least the same procedural protection — "notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action," Brown v. Montoya, 662 F.3d at 1170; Gwinn v. Awmiller, 354 F.3d at 1219-because Chacon's decision similarly required Kvech to register as a sex offender in New Mexico when he was not otherwise required to do so.
As part of the analysis whether a defendant has violated the plaintiff's procedural due process rights, the Tenth Circuit has stated that, to overcome qualified immunity, a plaintiff must show that the defendant acted with the requisite state of mind: "[A] plaintiff must show that the defendant was more than simply negligent to make out a procedural due process claim." Brown v. Montoya, 662 F.3d at 1170 (citing Daniels v. Williams, 474 U.S. 327, 333-36, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The Tenth Circuit noted that circuit courts have required recklessness or gross negligence, but that the Tenth Circuit has not resolved the issue, and further, that it did not need to resolve the issue in Brown v. Montoya, because the plaintiff alleged that the defendant's conduct was "intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard of [the plaintiff's] constitutional rights." 662 F.3d at 1170. The Tenth Circuit was analyzing a motion to dismiss, and so did not need to resolve the requisite mental state. See 662 F.3d at 1170-71. Following other circuits, however, would require finding that Chacon acted with at least recklessness or gross negligence.
Kvech argues that Chacon acted "at least recklessly if not intentionally or maliciously" when she did not remove Kvech from the sex offender registry and directed him to renew his registration, because she had "knowledge of Judge McDonald's ruling that [Kvech] was not required to register as a sex offender in New Mexico." Response at 17. Whether Chacon acted recklessly, intentionally, or maliciously is a factual question, and the parties have produced evidence that would allow a factfinder to come to either conclusion; because this issue comes before the Court in a motion for summary judgment, the Court must construe all disputed facts in favor of the non-moving party, and, thus, a reasonable jury could find that Chacon acted with the requisite mental state.
The Court must next determine whether the law was clearly established at the time of Chacon's actions, between 2006 and 2010. "Whether a right is `clearly established' is an objective test: `The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Brown v. Montoya, 662 F.3d at 1164 (quoting Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir.2010)). The clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words, `existing precedent must have placed the statutory or
The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." Kerns v. Bader, 663 F.3d at 1188 (emphasis in original). At the time, Chacon could consult Connecticut Department of Public Safety v. Doe and Gwinn v. Awmiller; the former involves a person who had been convicted of a sex offense, and the Supreme Court said he had already received all the process due him when he was convicted, and the latter involves a person who had never been convicted for a sex offense, and the Tenth Circuit said he deserved some minimal due process protections before he could be required to register as a sex offender. Although the Court concludes that Chacon should have provided some procedural protections to Kvech, at the time Chacon was making her decisions, it was not clearly established that a person who had been convicted of a sex offense in state A and subject to state A's sex offender registry requirements would need any additional process before registering in state B. The distinction between Kvech's case and Gwinn v. Awmiller might have made a constitutional difference, because Kvech received an opportunity during his Colorado conviction to contest his classification as a sex offender in Colorado.
Kvech argues that the law was clearly established that a government official could not look outside the court records to determine whether a person was subject to sex offender registry requirements, but the cases he cites do not clearly establish that point. In Gwinn v. Awmiller, the Tenth Circuit upheld a hearing panel's decision to classify a prisoner as a sex offender based on a statement in the presentence report, and for purposes of classification inside the prison, this foundation was enough evidence to support the hearing panel's conclusion. See 354 F.3d at 1219. While the Tenth Circuit said different evidentiary standards would apply outside of prison, the Tenth Circuit remanded the case for the district court to determine whether the plaintiff was required to register as a sex offender after he was released from prison and did not state what the district court could review in making that determination. See 354 F.3d at 1224.
Nor does Brown v. Montoya state that an officer may not consult documents outside the court record. In Brown v. Montoya, the officer who classified the plaintiff as a sex offender moved to dismiss the case on the basis of qualified immunity. The officer directed the plaintiff to register as a sex offender, because the plaintiff was convicted for false imprisonment, and the officer believed that the victim was a minor: under the New Mexico SORNA, false imprisonment is not a sex offense unless the victim is a minor. The plaintiff argued that the officer had no basis for concluding that the victim was a minor, because the plaintiff had pled guilty to the portion of the false imprisonment statute that did not include as an element that the victim is a minor; the indictment did not allege that the victim was a minor; the state court did not state that the victim was a minor during sentencing; and neither
Unlike Brown v. Montoya, Chacon had a factual basis for believing that Kvech's conduct in the Colorado offense constituted a sex offense in New Mexico: the Affidavit of Probable Cause for Arrest Warrant provided evidence of Kvech's conduct, including that he used force against the victim. Chacon did not make an independent determination without any evidentiary support. Further, New Mexico law was unsettled at the time as to how to make a determination that an out-of-state conviction is a equivalent to a New Mexico sex offense. Although Judge McDonald determined that Kvech's offense was not equivalent to a New Mexico sex offense by way of comparing the elements of the offenses, the Supreme Court of New Mexico subsequently confirmed that courts should look to the underlying facts of the conviction, when that record is available. That is the analysis Chacon performed, although she relied on a document that the Supreme Court of New Mexico did not explicitly authorize as part of that factual review. It was not clearly established that relying on the Affidavit of Probable Cause for Arrest Warrant would not be proper, and the Supreme Court of the United States and the Tenth Circuit have not clearly stated what documents may be considered in making this determination.
It was also not clearly established what process would be due a person who had been convicted of a sex offense in another state. At the time Chacon made her determination, it was clear that a person who had not been convicted of any sex offense deserves certain protections — "notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action," Brown v. Montoya, 662 F.3d at 1170; Gwinn v. Awmiller, 354 F.3d at 1219 — but it was not clear that a person who had been convicted of a sex offense in another state also deserves these protections. Further, not every state's statutory scheme will require such a hearing; if New Mexico were to amend its statute to make every person convicted of a sex offense in another state subject to the New Mexico SORNA registration requirements, then a person convicted of an out-of-state sex offense would have received all the process due when he or she was convicted.
The Court concludes that the law was not clearly established at the time that Chacon made her determination, because it was not clear what process was due, if any, to someone who had been convicted of a sex offense in a different state and was required to register as a sex offender in that state.
Chacon asserts that she is protected by statutory immunity, under 42 U.S.C. § 16929, which states: "The Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall
The Court concludes that Chacon violated Kvech's constitutionally protected liberty interest, but that the law was not clearly established at the time, thus entitling Chacon to qualified immunity. The disputed fact — Chacon's mental state — does not affect the Court's decision to grant summary judgment for qualified immunity, because the Court's decision rests on the clearly established prong of qualified immunity, and there are no disputed facts that affect that analysis. Disputed facts regarding whether Chacon acted in good faith preclude the Court from granting summary judgment on her statutory immunity defense. Because the Court will grant Chacon's MSJ for qualified immunity, it disposes of all Kvech's remaining claims against Chacon.
D.N.M.LR-Civ. 56.1(b). For the facts that Kvech did not specifically dispute, the Court will cite the page of the Response where Kvech would have enumerated a response had he disputed that fact.
Second Chacon Aff. ¶ 31, at 9-10. Although Chacon's statement qualifies her knowledge, stating that Kvech "apparently" went to the Sandoval County Sheriff's Office, Kvech does not dispute this fact; the Court therefore finds it undisputed.
Response ¶ 35, at 4 (emphasis in original). The Court views Kvech's comments on this undisputed fact as legal argument.
407 U.S. at 238-39, 92 S.Ct. 2151. Congress did not say it would remedy only violations of "clearly established" law, but that
Kerns v. Bd. of Comm'rs, 888 F.Supp.2d 1176, 1224 n. 36 (D.N.M.2012) (Browning, J.).
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants-that only big cases deserve the Court's attention. A trial judge can overwork a "large" case. It is better to treat even "large" cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
888 F.Supp.2d at 1222 n. 35.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that Rhoads v. Miller and United States v. Gibson, 348 Fed.Appx. 392 (10th Cir.2009)(unpublished), have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion.
E.B. v. Verniero, 119 F.3d at 1081. This incident prompted New Jersey, the state where it occurred, to enact legislation commonly referred to as "Megan's Law," which created a sex offender registry and community notifications, E.B. v. Verniero, 119 F.3d at 1081; other states followed suit with their own versions of Megan's Law, and Congress began requiring states to maintain similar systems as a condition for receipt of certain law enforcement funds, see Carr v. United States, 560 U.S. 438, 441, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).
