PAMELA K. CHEN, District Judge:
TABLE OF CONTENTS
I. Background ............................................................285
A. Plaintiffs ........................................................286
1. Troy Wallace ..................................................286
2. Marcello Aiello, Jr. ..........................................287
3. Robert Blunt ..................................................287
4. Earl Calloway .................................................287
5. Jehovah Colon .................................................287
6. Joshua Factor .................................................288
7. Richard Geoffrion .............................................288
8. Charles McLaurin ..............................................288
9. Angel Tirado ..................................................288
B. The Laws ..........................................................288
1. State Registration Requirements ...............................288
2. The State, County, and Town Residency Restrictions ............291
i. State ...................................................291
ii. County ..................................................291
iii. Town .....................................................292
C. Procedural History and Claims .....................................293
II. Discussion ............................................................294
A. Standard of Review ................................................294
B. Article III Standing ..............................................295
1. Standing to Challenge the State Registration Requirements .....296
2. Standing to Challenge the State Residency Restrictions ........297
3. Standing to Challenge the County and Town Residency
Restrictions ................................................300
4. Standing to Challenge the County's Trailer Program ............301
C. The State's Motion to Dismiss .....................................302
1. Statute of Limitations ........................................302
2. Eleventh Amendment Immunity ...................................303
3. Failure to State a Claim ......................................305
i. Ex Post Facto Claim Relating to the Current State
Registration Requirements ..............................306
ii. Ex Post Facto Claim Relating to the State Residency
Restrictions ............................................311
D. The Other Parties' Motions to Dismiss .............................321
1. Preemption Claims Regarding the County and Town Residency
Restrictions ................................................321
2. Failure to State a Claim ......................................322
i. Ex Post Facto Claims Relating to the County and Town
Residency Restrictions .................................322
ii. Equal Protection Claim Relating to the County's Trailer
Program ................................................329
3. Pendent Jurisdiction ..........................................331 III. Conclusion ............................................................332
In this case ("Wallace"),
Defendants — the State of New York (the "State")
The Court takes the following facts from the allegations in the Wallace Complaint, which are assumed to be true for purposes of Defendants' motions, and otherwise judicially-noticeable information. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) ("When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended
In construing the claims in this case, the Court recognizes that, because Plaintiffs, as pro se litigants, are to be afforded "special solicitude," the Wallace Complaint "must be construed liberally and interpreted to raise the strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (per curiam) (quotations omitted).
As an initial matter, the Wallace Complaint is incomplete, in terms of its allegations as to (i) when, or if, Plaintiffs were convicted of a sex offense, released from prison, placed on probation or parole, and/or classified as a specific risk-level
Plaintiff Troy Wallace committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 15-year old female in October 1991. (Ex. A.) Wallace was convicted in April 1992, and is classified as a risk-level two sex offender. (Id.) Although Wallace was originally sentenced to six months in prison and five years of probation, his probation was revoked in August 1992, and he was resentenced to 18-54 months in prison. (Am. Compl. ¶¶ 4-6.) In November 1995, Wallace was released on parole; his maximum expiration date for parole was May 1997. (Id. ¶ 7.) Wallace
Plaintiff Marcello Aiello, Jr. committed third-degree rape (N.Y. Penal Law § 130.25) of a 16-year old female in February 2007. (Ex. B.) Aiello was convicted in December 2009, and is classified as a risk-level two sex offender. (Id.) Aiello was sentenced to three years in prison, and has been released on parole with a maximum expiration date of January 13, 2027. (Id.) Aiello has (i) listed an address in Yaphank in the Town of Brookhaven, Suffolk County (Dkt. No. 5-1), and (ii) registered a primary residence at a correctional facility in the Town of Collins, Erie County (Ex. B).
Plaintiff Robert Blunt committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 64-year old female in November 1999. (Ex. C.) Blunt was convicted in February 2000, and is classified as a risk-level three sex offender and a "[s]exually [v]iolent [o]ffender." (Id.) Blunt was sentenced to seven years in prison, and has been released on parole with a maximum expiration date of September 25, 2017. (Id.) Blunt has (i) listed an address in West Babylon in the Town of Babylon, Suffolk County (Dkt. No. 5-2), and (ii) registered a primary residence at a correctional facility in the Town of Malone, Franklin County (Ex. C).
Plaintiff Earl Calloway committed first-degree rape and first-degree sexual conduct against a child (N.Y. Penal Law §§ 130.35, 130.75) in March 1999; the victim was a 10-year old female. (Ex. D.) Calloway was convicted in August 2000, and is classified as a risk-level three sex offender and a "[s]exually [v]iolent [o]ffender." (Id.) Calloway's sentence was eight years in prison; he has been released, but is not on parole. (Id.) Calloway has (i) listed a P.O. Box in Holbrook in the Towns of Islip and Brookhaven, Suffolk County (Dkt. No. 5-3),
Plaintiff Jehovah Colon (incorrectly appearing as "Cobin" on the docket)
Plaintiff Joshua Factor committed a second-degree criminal sex act (N.Y. Penal Law § 130.45) against a 14-year old male in August 2007. (Ex. F.) Factor was convicted in March 2008, and is classified as a risk-level two sex offender. (Id.) Factor was sentenced to three years in prison, and has been released on parole with a maximum expiration date of December 3, 2015. (Id.) Factor has (i) listed an address in Farmingville in the Town of Brookhaven, Suffolk County (Dkt. No. 5-5), and (ii) registered a primary residence at a correctional facility in the Town of Marcy, Oneida County (Ex. F).
Plaintiff Richard Geoffrion committed a felony sex offense, outside of New York State, against a 15-year old female in September 2000. (Ex. G.) Geoffrion was convicted out-of-state in June 2001, and sentenced to one year of probation. (Id.) Geoffrion is classified as a risk-level three sex offender. (Id.) Geoffrion has (i) listed an address in Holbrook in the Towns of Brookhaven and Islip, County of Suffolk (Dkt. No. 5-6), and (ii) registered a primary residence in Coram in the Town of Brookhaven, Suffolk County (Ex. G).
Plaintiff Charles McLaurin (incorrectly appearing as "McLauren" on the docket)
Plaintiff Angel Tirado committed forcible touching (N.Y. Penal Law § 130.52) of a 14-year old female in September 2003. (Ex. I.) Tirado was convicted in January 2005, and is classified as a risk-level two sex offender. (Id.) Tirado's sentence was six months in prison; he has been released, but is not on parole. (Id.) Tirado has (i) listed an address in the Bronx (Dkt. No. 5-8), and (ii) registered a primary residence at a correctional facility in the State of Pennsylvania (Ex. I).
None of the above information suggests that Plaintiffs reside, or have ever resided, in trailers for homeless sex offenders, operated by the County DSS pursuant to a program known as "the County DSS's overnight placement facility." (Am. Compl. ¶¶ 45-46; County Defs. Br., at 1.) The Wallace Complaint, however, does allege that Plaintiffs were transported to the "secured premises of the property of Suffolk County jail in Riverhead where such trailer program is located," whereupon, like "prisoners," they did not enjoy the same rights as "other free men." (Am. Compl. ¶¶ 45-46 (emphasis added).)
On January 21, 1996, the State's Sex Offender Registration Act ("SORA"), codified as N.Y. Correct. Law § 168 et seq., took effect. SORA, 1995 N.Y. Sess. Laws Ch. 192 (S.11-B) (1995) (McKinney).
The preamble to SORA states:
1995 N.Y. Sess. Laws Ch. 192 (S.11-B), § 1.
SORA's registration requirements (the "State registration requirements") apply to any "sex offender" convicted, in prison, or on probation or parole, as of January 21, 1996. Id. § 2 (adopting N.Y. Correct. Law §§ 168-f, 168-g). As originally adopted, the requirements provided, among other things, that the period of annual registration would be:
Id. (adopting N.Y. Correct. Law §§ 168-a, 168-h, 168-l). The requirements also provided that "[a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court." Id. (emphasis added) (adopting N.Y. Correct. Law § 168-o).
On March 11, 2002, the State registration requirements were amended. Act of Mar. 11, 2002, 2002 N.Y. Sess. Laws Ch. 11 (S.6263-A), § 24 (2002) (McKinney). In particular, the period of annual registration was amended to reflect several newly-defined terms:
Id. §§ 1-2, 4, 13 (amending N.Y. Correct. Law §§ 168-a, 168-h). The right to petition for relief from "any further duty to register" was also amended to apply only to a sex offender who, as of March 11, 2002, is classified as a risk-level three offender and has been registered for at least 13 years. Id. § 22 (amending N.Y. Correct. Law § 168-o).
Finally, on January 18, 2006, the State registration requirements were amended again. Act of Jan. 18, 2006, 2006 N.Y. Sess. Laws Ch. 1 (S.6409, A.9472), § 6 (2006) (McKinney). The amendments, which remain in place today, apply to any sex offender (i) "registered or required to register immediately prior to" January 18, 2006, i.e., individuals still subject to the requirements as amended in March 2002; or (ii) "required to register on or after" January 18, 2006. Id. As amended, the period for annual registration is:
N.Y. Correct. Law § 168-h. The right to petition for relief from "any further duty to register," as amended, applies only to a risk-level two sex offender who is not designated a "sexually violent offender," "sexual predator," or "predicate sex offender," and has been registered for at least 30 years. N.Y. Correct. Law § 168-o.
To summarize, the State registration requirements changed after SORA was adopted. Starting in January 1996, the State required that convicted sex offenders register for 10 years, or — if designated a "sexually violent predator," for instance, due to a risk-level three classification — more than 10 years. All sex offenders could petition for relief.
As of March 2002, sex offenders classified as a risk-level one or two offender, who were not designated a "sexually violent offender," "sexual predator," or "predicate sex offender," were still required to register for 10 years; only sex offenders classified as a risk-level three offender, or those falling within one of the aforementioned designations, were required to register for life. The right to petition for relief was limited to a subset of risk-level three sex offenders.
Since January 2006, sex offenders still subject to the requirements as amended in March 2002, or subsequently required to register, have an extended 20-year duty to register, if they are classified as a risk-level one offender; or a lifetime duty, if they are either classified as a risk-level two or three offender or designated a "sexually violent offender," "sexual predator," or "predicate sex offender." Only specific risk-level two sex offenders retain the right to petition for relief.
The State's Sexual Assault Reform Act, which went into effect on February 1, 2001, enacted new provisions, codified as N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a). Sexual Assault Reform Act, 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), §§ 7-8, 57 (2000) (McKinney). These provisions, when originally adopted, only prohibited the presence of certain sex offenders "within the real property boundary line" of schools. Id. §§ 7-8 (adopting N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a), both of which only incorporated "paragraph (a)" of the definition for "school grounds" in N.Y. Penal Law § 220.00(14)); N.Y. Penal Law § 220.00(14)(a). The original provisions, in short, did not operate to preclude such individuals from residing near schools. Additionally, these provisions only applied to sex offenders sentenced to probation or released on parole for an offense defined in Articles 130 ("Sex Offenses"), 135 ("Kidnapping, Coercion and Related Offenses"), 235 ("Obscenity and Related Offenses"), or 263 ("Sexual Performance by a Child"), or Section 255.25 ("Incest in the third degree"), of the New York Penal Law, where the victim of the offense was "under the age of eighteen at the time." 2000 N.Y. Sess. Laws Ch. 1 (S. 8238, A. 11538), §§ 7-8.
Eventually, as of September 1, 2005, the above provisions were amended to also prohibit the presence of certain sex offenders — and, in effect, to preclude their residence — within 1,000 feet beyond the "real property boundary line" of schools during school hours. Act of Aug. 19, 2005, 2005 N.Y. Sess. Laws Ch. 544 (A.8894), §§ 1-2, 4 (2005) (McKinney) (amending N.Y. Exec. Law § 259-c(14) and N.Y. Penal Law § 65.10(4-a) to incorporate the whole definition for "school grounds" in N.Y. Penal Law § 220.00(14)); see N.Y. Penal Law § 220.00(14) (defining "school grounds" to include "any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school").
The September 2005 amendments also extended the State residency restrictions to cover any sex offender probationer or parolee who:
2005 N.Y. Sess. Laws Ch. 544 (A.8894), §§ 1-2. In other words, after September 2005, a sex offender probationer or parolee is subject to these restrictions not only if he is convicted of a specific offense against a child, but also if he is convicted of a specific offense and classified as a risk-level three offender. These restrictions remain in effect today.
The residency restrictions in the County Code Ch. 745, Art. 1 (originally Ch. 428, Art. 1) (the "County residency restrictions"),
Id. § 745-1.
Specifically, the County residency restrictions prohibit any convicted sex offender, as long as they are subject to the State registration requirements, from residing "within 1/4 mile
The residency restrictions in the Town Code Ch. 215, Art. 1 (the "Town residency restrictions"), were adopted on October 23, 2007 (Loc.L. No. 51-2007), and subsequently amended on December 11, 2007 (Loc.L. No. 60-2007). Town of Southampton, N.Y., Code ("Town Code") ch. 215, art. 1, available at http://ecode360.com/8696165. The enacting legislation cites the County residency restrictions, and suggests that the Town's reasons for implementing its own restrictions are similar and that the Town's restrictions make up for perceived deficiencies in the County's restrictions:
(Dkt. No. 68-2 (Law of Oct. 23, 2007, Loc. L. No. 51-2007, § 1 (2007) (adopting Town Code ch. 215, art. 1)).)
The Town residency restrictions apply to any risk-level two or three sex offenders, as long as they are subject to the State registration requirements. Town Code ch. 215, art. 1, §§ 215-1, 215-2. Under these restrictions, it is unlawful for such sex offenders to take up residence within (i) one mile of a school that does not transport students residing in a one-mile radius thereof; (ii) 2,000 feet of a school that does transport these students; and (iii) 2,000 feet of a "child-care facility or municipal recreational facility." Id. § 215-2. Like the County, the Town exempts prior-established residences from these restrictions, including residences established before October 23, 2007. Id. § 215-3.
On November 26, 2012, the original complaint was filed in Wallace by Plaintiff Wallace and other unnamed plaintiffs. (See Dkt. No. 1 (listing "Troy C. Wallace, et al." as the plaintiffs).) Two days later, the same complaint was re-filed, styled as an "amended" complaint. (Am. Compl., at 1.) The amended complaint, which is the operative Wallace Complaint, was signed by all Plaintiffs (id. at 20), and it attached, and incorporated by reference, form complaints from each of the Plaintiffs except for Wallace, whose individualized allegations were set forth in the body of the amended complaint. (Dkt. Nos. 5-1-5-8).
In the Wallace Complaint, Plaintiffs claim, pursuant to 42 U.S.C. § 1983 ("Section 1983"), that:
Plaintiffs also claim that the County and Town residency restrictions are preempted by state law in an area of regulation, i.e. "sex offenders," that the State intended to occupy (id. ¶¶ 3, 39). With respect to their Section 1983 and supplemental state law claims, Plaintiffs are seeking compensatory damages and up to $25 million in punitive damages, as well as declaratory and injunctive relief. (E.g., Dkt. No. 5-1, at 5.)
On March 8, 2013 and April 2, 2013, Judge Joseph F. Bianco, who was previously assigned to this case, ordered that 13 pending cases, see supra note 1, and any future cases relating to the above requirements and restrictions, be consolidated with, and considered related to, Wallace as the lead case. (See Dkt. Nos. 27; 40.) Judge Bianco also directed that any submissions in these consolidated cases should be docketed in Wallace. (Ibid.)
On April 19, 2013, Wallace was reassigned to the Court. Shortly thereafter, the Court consolidated two subsequently-filed cases with Wallace, consistent with Judge Bianco's orders.
Between September 24, 2013 and October 7, 2013, Defendants filed four fully-briefed motions to dismiss the claims in Wallace.
On May 13, 2014, the Court held limited oral argument on the impact of the County and Town residency restrictions on where convicted sex offenders may live, and subsequently ordered the Town to submit information on where within its geographical boundaries convicted sex offenders are permitted to live pursuant to these restrictions. (Minute Entry, dated May 13, 2014.) The Town submitted this information on June 24, 2014 and August 5, 2014. (Dkt. Nos. 94-1; 96.)
Even with the "special solicitude" to which their complaints are entitled, and the assumption that any reasonably-inferred factual allegations contained therein are true, pro se plaintiffs must still satisfy the "plausibility standard" of pleading claims for which relief may be granted, pursuant to Ashcroft v. Iqbal ("Iqbal"), 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (Kennedy, J.), and Bell Atl. Corp. v. Twombly ("Twombly"), 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (Souter, J.). See Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.2009) (applying Iqbal/Twombly to its de novo review regarding the sufficiency of a pro se plaintiff's amended complaint). Otherwise, such claims are susceptible to a motion to dismiss.
Under Iqbal/Twombly, a claim may only survive such a motion, if the complaint does more than recite the legal "elements" of the claim and, with respect to the claim, makes "factual allegations" which sufficiently "raise a right to relief above the speculative level." Iqbal, 556 U.S. at 678,
Ordinarily, "the court should not dismiss [pro se complaints] without granting leave to amend at least once." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, where the Court scours the complaint and determines that there are no claims that pro se plaintiffs have simply "inadequately or inartfully pleaded," it may deny them the "chance to reframe" their claims, because any amendment would be "futile."
Although the State and Epley are the only ones to contest Plaintiffs' standing (State Br., at 13-14; Epley Br., 5-8), the Court has an "independent obligation" to analyze the issue of standing, as it implicates the Court's jurisdiction to consider the relevant challenges to the registration requirements, residency restrictions, and trailer program. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (O'Connor, J.); see also Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir.2005) ("Because the standing issue goes to this Court's subject matter jurisdiction, it can be raised sua sponte."). The reason is that Article III of the Constitution only confers jurisdiction on federal courts over "Cases" and "Controversies," U.S. Const. art. III, § 2, cl. 1; and standing, at its "core," is an "essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife ("Defenders of Wildlife"), 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Scalia, J.); see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (Powell, J.) ("In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a `case or controversy' between himself and the defendant within the meaning of Art. III.").
"[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not `conjectural' or `hypothetical[.]' Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (emphasis added) (citations and quotations omitted; second, third, and fourth modifications
With respect to the injury-in-fact element, the injury is (i) "concrete," if it is "capable of resolution through the judicial process" and not "too abstract," Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (Rehnquist, C.J.) (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (Warren, C.J.), and Allen, 468 U.S. at 752, 104 S.Ct. 3315); and (ii) "particularized," if the plaintiff is "himself among the injured" and not simply someone who retains a "special interest" in the injury, Defenders of Wildlife, 504 U.S. at 561 n. 1, 563, 112 S.Ct. 2130 (quoting Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (Stewart, J.)) (adding that "particularized" means that "the injury must affect the plaintiff in a personal and individual way"). Moreover, the injury, if not "actual," must otherwise be "imminent," meaning that it is "certainly impending" and not merely occurring at "some indefinite future time." Defenders of Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. 2130 (emphasis in original) (quoting Whitmore v. Ark., 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (Rehnquist, C.J.)); accord Clapper v. Amnesty Int'l USA ("Amnesty Int'l"), ___ U.S. ___, 133 S.Ct. 1138, 1150 n. 5, 185 L.Ed.2d 264 (2013) (Alito, J.) (proposing a "`substantial risk'" standard of imminence, as an alternative to the "`clearly impending' requirement").
The burden of proving the above elements belongs to the plaintiff, and depends on the "manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (collecting cases). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice" to show an injury-in-fact. Id. Additionally, where the plaintiff is an "object" of the "government action," whose legality is challenged, "there is ordinarily little question that the action ... has caused [the plaintiff] injury, and that a judgment preventing... the action will redress it." Id. at 561-62, 112 S.Ct. 2130.
First, the Court considers whether Plaintiffs have standing to challenge the original State registration requirements, as adopted in 1996, and the current ones, as amended in 2006. The immediate injury for sex offenders, as a result of these requirements, is the fact that they impose a "disability" through annual registration — which, as to some individuals, lasts their whole lives.
That Plaintiffs must adhere to these requirements, and will invariably suffer the disability that these requirements impose on their lives, is sufficient to establish that the alleged injury actually exists. No speculation is necessary, as the "actual" nature of the injury is apparent. Id. at 560, 112 S.Ct. 2130. Considering that the injury relating to these requirements is "actual" and "concrete and particularized," Plaintiffs have established the injury-in-fact element. Id. at 560-61, 112 S.Ct. 2130.
There is "little question" about the remaining two elements, causation and redressability. Id. at 561-62, 112 S.Ct. 2130. The above injury-in-fact supports a dispute over requirements that directly regulate Plaintiffs and other sex offenders. As such, these requirements are arguably the cause of — and, if assessed to be unconstitutional, the basis for redressing — the injury-in-fact. Id. Indeed, the analysis for the injury-in-fact element substantiates this finding.
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs' challenge to the State registration requirements. Only Plaintiffs Wallace, McLaurin, and Geoffrion, however, have standing to challenge the original requirements, as adopted in 1996. All Plaintiffs have standing to challenge the current requirements, as amended in 2006.
Second, the Court considers whether Plaintiffs have standing to challenge the State residency restrictions. These restrictions are allegedly injurious, because they prevent sex offenders from living in specific areas
As shown before, the information on the State's sex offender registry website supports a preliminary assessment of which Plaintiffs are, in fact, affected by the alleged injury that stems from the State residency restrictions. Only Plaintiffs Aiello, Blunt, and Factor appear to be subject to these restrictions, because they were sex offenders released on parole after September 2005 and convicted of an offense against a child under 18-years old or classified as a risk-level three offender. See supra Sections I.A & I.B.2.i. Plaintiff Wallace was released on, and completed, parole for his sex offense before these restrictions were adopted. Id. Plaintiffs Calloway, Colon, McLaurin, and Tirado were never on parole. Id. Plaintiff Geoffrion was convicted, and sentenced to probation, out-of-state, and his probation ended prior to the adoption of these restrictions. Id. Accordingly, Plaintiffs Aiello, Blunt, and Factor are the only ones whom the State residency restrictions could injure in a "particularized" way, in that they, and not the other Plaintiffs, are subject to these restrictions. Defenders of Wildlife, 504 U.S. at 563, 112 S.Ct. 2130.
The fact that Plaintiffs Aiello, Blunt, and Factor do not claim that they attempted to reside in particular areas within the State, but were prevented from doing so by the State residency restrictions, does not deprive them of standing to challenge these restrictions. These Plaintiffs can establish standing on the basis that they definitely would be prevented from doing so in the future. The continued residence of these Plaintiffs within the State — in "geographical proximity" to the areas specified by these restrictions — suffices to show their "imminent" inability to reside in certain areas, without additional proof as to their "past [residential] use" of those areas. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147, 1149 (9th Cir. 2000) (explaining the reasoning in Laidlaw);
As an example, in Village of Arlington Heights, one of the plaintiffs alleged an injury based on his inability to pursue the disputed "housing opportunity he desires" in a village where he worked, but had never resided. 429 U.S. at 264, 97 S.Ct. 555. The plaintiff, at the time, resided in another village "20 miles away." Id. Nevertheless, the Supreme Court held that the plaintiff's alleged injury supported his standing to sue. Id. Likewise, in Laidlaw, one of the plaintiff's members lived "20 miles" outside of the town in which the affected area was located, and never used the area for recreation. 528 U.S. at 182, 120 S.Ct. 693. The Supreme Court, however, held that the member faced an actionable injury from certain "challenged activity" that could impact her possible future use of the area, and, thus, that the plaintiff had associational standing. Id. at 182-84, 120 S.Ct. 693.
Indeed, in-state residence is a more "tangible, continuing connection to any particular location affected by the challenged decision," i.e., the State residency restrictions, than mere residence "halfway around the world" from that location. Id. at 184, 120 S.Ct. 693 (distinguishing Defenders of Wildlife, which held that there was no imminent injury); Ecological Rights Found., 230 F.3d at 1148. Additionally, this connection, through in-state residence, is not one that "relies on a highly attenuated chain of possibilities" contingent on third-party actions to support a finding of an "imminent" injury-in-fact. Amnesty Int'l, 133 S.Ct. at 1147-50 & n. 5 (holding that the plaintiffs could not show that they would suffer an injury-in-fact from the interception of their foreign communications, "at some point in the future," as their theory hinged on a "chain of contingencies" involving the possible actions of the "Government" and "Article III judges who serve on the Foreign Intelligence Surveillance Court"). Rather, because Plaintiffs Aiello, Blunt, and Factor already live in the State, they would only have to take the extra step of attempting to establish their residence elsewhere within the State, in areas from which they are barred by the State residency restrictions, to suffer the alleged injury at some later point in time.
The fact that these three Plaintiffs fail to allege that they own property — in areas restricted by the State, the County, or the Town (Epley Br., at 7) — does not defeat the imminence of the alleged injury that results from the various restrictions. See Vill. of Arlington Heights, 429 U.S. at 264, 97 S.Ct. 555 (finding that the plaintiff alleged an injury-in-fact, despite the fact that he did not own any property in the village, or in the new housing development located in the village, from which he was precluded); see also Laidlaw, 528 U.S. at 182, 120 S.Ct. 693 (observing that one member, whose alleged injury supported the plaintiff's associational standing, "would like to purchase," but did not own, property in the affected area). Although Plaintiffs Aiello, Blunt, and Factor have alleged no "actual" injury as a result of these restrictions, they certainly have alleged an "imminent" one. Defenders of Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. 2130. As such, these three Plaintiffs have established the injury-in-fact element, in that their alleged injury from these restrictions is "imminent" and "concrete and particularized." Id. at 560, 112 S.Ct. 2130.
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the State residency restrictions, specifically brought by Plaintiffs Aiello, Blunt, and Factor. All other Plaintiffs lack standing, because they have not alleged an injury-in-fact as a result of these restrictions.
Third, the Court considers whether Plaintiffs have standing to challenge the County and Town residency restrictions. The same alleged injury inflicted by the State residency restrictions — that is, the inability for sex offenders to reside in, and their possible displacement from, specific areas — is attributable both to the County residency restrictions and, though inartfully pleaded, to the Town residency restrictions. (Am. Compl. ¶¶ 20, 27, 29-30 & at 19; see also id. ¶ 44 (imputing the same allegations to the Town residency restrictions).) Additionally, the County residency restrictions, in confining the residence of sex offenders to particular areas within the County, allegedly leave such individuals without housing options and, thus, potentially homeless. (See Am. Compl., at 20; Pls. Opp., at 6.) There is no reason why the alleged injury from the County and Town residency restrictions is any less "concrete" than that of the State residency restrictions. Raines, 521 U.S. at 819, 117 S.Ct. 2312 (holding that an injury is "concrete," if it is not "too abstract" and is "capable of resolution through the judicial process"). The County and Town residency restrictions also ostensibly apply to all Plaintiffs, as registered risk-level two and three sex offenders, and, thus, are capable of inflicting a "particularized" injury on Plaintiffs. Defenders of Wildlife, 504 U.S. at 563, 112 S.Ct. 2130.
Plaintiffs, except for Plaintiff Tirado, allegedly reside or have resided in the County. See supra Section I.A. Mere "geographical proximity" to particular areas, affected by the County residency restrictions, is sufficient to establish "imminent" injury. Ecological Rights Found., 230 F.3d at 1147, 1149. Furthermore, the fact that these Plaintiffs purportedly have been homeless before, because of the County residency restrictions (Am. Compl., at 20; Pls. Opp., at 6), suggests that the injury is not only "imminent," but "actual." Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130.
As for the Town residency restrictions, none of the Plaintiffs appear to live in the Town; however, all but Plaintiff Tirado live or have lived in the County, where the Town is located. See supra Section I.A. Although Epley argues that the absence of evidence that these Plaintiffs ever previously resided or presently reside in the Town refutes the existence of any "actual or imminent" injury (Epley Br., at 6-7), the Supreme Court, in Village of Arlington Heights and Laidlaw, held the exact opposite: in those cases, it concluded that a plaintiff, who lived outside of the town or village in which the affected area was located, also alleged an injury-in-fact with respect to particular actions pertaining to that area. See Laidlaw, 528 U.S. at 182-84, 120 S.Ct. 693; Vill. of Arlington Heights, 429 U.S. at 264, 97 S.Ct. 555. Similarly, in this case, the fact that these Plaintiffs reside in the same County as the Town supports the imminence of the injury stemming from restrictions that relate to specific areas of the Town. Such proximity to the Town reassures
Because these Plaintiffs allege that they actually have been and/or imminently will be injured, in a concrete and particularized fashion, by the County and Town residency restrictions, they have established the injury-in-fact element. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. For the same reasons articulated supra at Sections II.B.1 & II.B.2, these Plaintiffs have also established the causation and redressability elements.
Therefore, the Court declines to dismiss, on the basis of standing, the challenge to the County and Town residency restrictions by Plaintiffs. The only exception is that Plaintiff Tirado has not pleaded enough to demonstrate his injury-in-fact from these restrictions, and, thus, he does not have standing.
Finally, the Court considers whether Plaintiffs have standing to challenge the County's trailer program. This program purportedly leaves otherwise homeless sex offenders to tolerate living conditions, at a level below that of "other free men." (Am. Compl. ¶¶ 45-46.) The alleged injury to such individuals through this program — the inability to enjoy the same living conditions as everyone else — is "concrete" enough to support their injury-in-fact. Raines, 521 U.S. at 819, 117 S.Ct. 2312; cf. Ne. Fla. Ch. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (Thomas, J.) ("When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.").
Plaintiffs, except for Plaintiff Tirado, are allegedly sex offenders who face or have faced the possibility of becoming homeless within Suffolk County, because of the various residency restrictions to which they are subject. See supra Sections II.B.2 & II.B.3. Based on this allegation, it is plausible that this program covers these Plaintiffs and, thus, that the alleged injury perpetrated by this program affects them personally. In short, the injury is sufficiently "particularized." Defenders of Wildlife, 504 U.S. at 563, 112 S.Ct. 2130.
The above finding is borne out through other generalized allegations of these Plaintiffs' coverage by this program in the past, and their resulting treatment as "prisoners," rather than "free men," see supra Section I.A. At least two Plaintiffs, Wallace and Calloway, allege that they continue to be homeless in Suffolk County, id., and, thus, could be covered by this program again. In other words, the injury that allegedly arises from this program is not only personal to these Plaintiffs, but also actually occurring and/or imminently bound to occur. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130.
Having alleged an "actual" and/or "imminent" injury that is "concrete and particularized," id., these Plaintiffs have established the injury-in-fact element with respect to the County's trailer program. These Plaintiffs have also established the causation and redressability elements, because the cause of, and basis for redressing, the injury-in-fact is this program and
Therefore, the Court declines to dismiss, on the basis of standing, Plaintiffs' challenge to the County's trailer program, with the exception of Plaintiff Tirado.
Having held that there is standing to substantiate the challenges to the registration requirements, residency restrictions, and trailer program at the pleading stage, the Court turns to the specific arguments for dismissal in Defendants' respective motions, starting with the State's motion.
The State argues that, pursuant to Section 1983, the ex post facto claims — relating to (i) the original and current State registration requirements and (ii) the State residency restrictions — started to accrue when these requirements and restrictions took effect. Thus, the claims brought against the State in 2012 — six years after the last effective date of these requirements and restrictions — are time-barred based on the applicable three-year statute of limitations. (State Br., at 14-16.)
Indeed, the applicable statute of limitations for Section 1983 claims is the State's "general or residual statute of limitations governing personal injury actions," which is three years. Owens v. Okure, 488 U.S. 235, 245, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (Marshall, J.). The accrual of such claims, however, hinges on federal law. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994). Under federal law, such claims ordinarily accrue, once the plaintiff "knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Veal v. Geraci, 23 F.3d 722, 724 (2d Cir.1994); see also Eagleston, 41 F.3d at 871 (same). Pursuant to the ordinary accrual rule, the claims against the State could be deemed as having started to accrue on the effective dates for these requirements and restrictions, i.e., in 1996, 2005, and 2006, when Plaintiffs and other sex offenders had "reason to know" that these requirements and restrictions constituted ex post facto violations. Ibid. By this reasoning, the three-year time limit to bring any such claims expired as of 2009 at the latest, three years before this case began.
However, an exception to the ordinary accrual rule exists, one that several other Circuits have recognized and this Circuit has not expressly rejected: the clock on any challenge to the constitutionality of a statute, whose continued application works an ongoing constitutional violation, starts to run anew, every day that the statute applies. The accrual exception embraces the idea that "continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations." Va. Hosp. Ass'n v. Baliles, 868 F.2d 653, 663 (4th Cir.1989) (quotations omitted) (adding that the accrual exception was "in line with appellate precedent").
In Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516 (6th Cir.1997), the Sixth Circuit held that a Section 1983 claim, challenging a law that restricted access by trucks to a particular county road as a due process deprivation of liberty, was timely, based on Ohio's two-year statute of limitations. Id. at 518, 521-22. This claim was brought "more than two years after" the enactment of the law, but "less than two years after" the law ceased to apply. Id. at 518. The court in Kuhnle concluded:
Id. at 522. See also Maldonado v. Harris, 370 F.3d 945, 955-56 (9th Cir.2004) (holding that a First Amendment challenge to a California statute on outdoor advertising was not time-barred, because the "continuing enforcement of the statute" permitted the plaintiff "to raise a facial challenge to the statute at any time"); Va. Hosp. Ass'n, 868 F.2d at 663 (agreeing with the district court that, since its enactment, Virginia's "current reimbursement plan" perpetrated an "ongoing" violation of the supremacy and due process clauses, and, thus, the applicable limitations period "would not have begun to run until the violation ended"); Bonollo Rubbish Removal, Inc. v. Town of Franklin, 886 F.Supp. 955, 958-60 (D.Mass.1995) (finding, with respect to the constitutional and antitrust claims challenging a town by-law on waste delivery, that the "usual rule [for accrual] is preempted," based on the fact that "the plaintiff's injury here (the higher fees) continued for as long as the practice or policy complained of (the by-law) was in existence").
The Court adopts the accrual exception recognized in the above-cited cases. Even under this more expansive approach, however, some of Plaintiffs' claims regarding the State's sex offender regime must be dismissed. The original State registration requirements became effective in 1996 and stayed in effect until their amendment in 2002. See supra Section I.B.1. Accordingly, any claim challenging these requirements began to accrue no later than 2002, and should have been brought within three years, not ten years, thereof.
The accrual exception, however, salvages Plaintiffs' claims challenging the State's current sex offender regime. Although the current State registration requirements and residency restrictions took effect more than three years before this case was filed, they remain in effect today. See supra Sections I.B.1 & I.B.2.i. These claims are continually accruing, and, thus, their statute of limitations has not begun to run.
Therefore, based on the accrual exception, the Court declines to dismiss, as time-barred, the ex post facto claims challenging the current State registration requirements and residency restrictions, but dismisses the claim challenging the original State registration requirements.
The State also argues that the Eleventh Amendment immunizes it from the ex post facto claims for "monetary, injunctive and declaratory relief." (State Br., at 12-13 (emphasis added).)
Eleventh Amendment immunity ultimately shields the State from any federal lawsuit against it "in its own name regardless of the relief sought," unless "[it] has waived its Eleventh Amendment immunity or Congress has overridden it." Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Powell, J.) (same); Quern v. Jordan, 440 U.S. 332, 340-41, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (Rehnquist, J.) (same). It is axiomatic that the State has not agreed to waive, nor has Congress intended to override, the State's immunity from being sued in federal court based on Section 1983. See Quern, 440 U.S. at 341, 99 S.Ct. 1139 ("[W]e simply are unwilling to believe ... that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States."); Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 39 (2d Cir.1977) (holding, in a Section 1983 action, that New York has not waived its Eleventh Amendment immunity, but that it only "consents to be sued upon condition that the claimant brings suit in the [New York] Court of Claims"); (see also State Br., at 12-13 (same)).
Ordinarily, the same immunity extends to State officials sued in their official capacities. See Pennhurst, 465 U.S. at 101-102, 104 S.Ct. 900 ("[A]s when the State itself is named as the defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief."); accord Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (Rehnquist, J.) (holding that, "even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment"). The exception, however, is that State officials are not immune from official-capacity claims seeking prospective injunctive or declaratory relief. See Graham, 473 U.S. at 167 n. 14 & 169 n. 18, 105 S.Ct. 3099 (noting that a plaintiff can avoid the Eleventh Amendment immunity issue, in challenging any "state policy or custom," by "naming state officials" in their official capacities through an "injunctive or declaratory" action "for prospective relief"); see also Quern, 440 U.S. at 337, 99 S.Ct. 1139 (accepting the "difference between prospective relief on one hand and retrospective relief on the other" as the basis for determining what is permitted or barred by the Eleventh Amendment in an official-capacity action); Edelman, 415 U.S. at 664, 94 S.Ct. 1347 (holding, in an official-capacity action claiming that Illinois's regulations violated federal law, that the Eleventh Amendment "did not bar" the "prospective portion of [the district court's] order," but that the "retroactive" portion "stands on quite a different footing"); In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir.2007) ("A plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers, as opposed to the state, in their official capacities, provided that his complaint (a) `alleges an ongoing violation of federal law' and (b) `seeks relief properly characterized as prospective.'") (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (Scalia, J.)); but see Pennhurst, 465 U.S. at 106, 104 S.Ct. 900 (holding that the exception is "inapplicable in a [federal] suit against state officials on the basis of state law"). In theory, the exception is sustained by the Supreme Court's longstanding "fiction" in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that, for purposes of Eleventh Amendment immunity,
Here, the State has Eleventh Amendment immunity from the ex post facto claims against it, which are dismissed in their entirety. However, given the official-capacity exception to Eleventh Amendment immunity, Plaintiffs could simply amend the Wallace Complaint to name specific officials of the State, against whom those claims, insofar as they seek prospective injunctive or declaratory relief, can be asserted without the shield of immunity. Logically, such officials would be individuals who have implemented the State statutes that supposedly violate the Constitution, i.e., its registration requirements and residency restrictions. See CSX Transp., Inc. v. N.Y. Office of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir.2002) (noting that the Ex parte Young exception to Eleventh Amendment immunity is "limited" to "a state official's actions in enforcing state law") (emphasis added) (quotations omitted). Put simply, even if Plaintiffs cannot challenge the State's sex offender regime by asserting claims against the State itself, they can bring the same challenge by asserting claims against State officials who enforce the regime.
Therefore, the Court dismisses Plaintiffs' ex post facto claims against the State based on its Eleventh Amendment immunity. Because these claims could have been brought against State officials who enforce the State's sex offender regime, and the Wallace Complaint could be so amended, the Court proceeds to consider the State's other asserted grounds for dismissal.
The State argues that Plaintiffs fail to plausibly allege that the current State registration requirements
The Ex Post Facto Clause prohibits any "penal statute[]" that applies "retroactively," i.e., that either (i) "makes an action done before the passing of the law, and which was innocent when done, criminal[,] and punishes such action"; (ii) "aggravates a crime, or makes it greater than it was, when committed"; (iii) "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed"; or (iv) "alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Collins v. Youngblood, 497 U.S. 37, 40-42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (Rehnquist, C.J.) (emphasis and
In the context of "restrictive measures on sex offenders," the Supreme Court, in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Kennedy, J.), set forth the following "framework" for considering whether a statute is punitive in nature, such that its retroactive application triggers the Ex Post Facto Clause. Id. at 92-93, 123 S.Ct. 1140. First, the Court must evaluate whether the "intention of the legislature" was to enact a statute that is "civil and nonpunitive." Id. at 92, 123 S.Ct. 1140. If so, the Court must then consider "whether the statutory scheme is so punitive either in purpose or effect as to negate" the legislative intent. Id. (quotations omitted). Because courts "ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (citations and quotations omitted). In determining whether the challenged statutory scheme is punitive in effect, the Court should consider "whether, in its necessary operation, the [statutory] scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." Id. at 92, 97, 123 S.Ct. 1140 (setting forth several factors as "useful guideposts," which are "neither exhaustive nor dispositive") (quotations omitted). The challenging party's inability to establish, by the "clearest proof," the punitive effect of the statutory scheme provides a basis for dismissing an ex post facto claim. Id. at 92, 105-06, 123 S.Ct. 1140.
Because the retroactive application of the current, i.e., post-January 2006, State registration requirements is a necessary predicate to the ex post facto claim, the Court begins by ascertaining whether these requirements apply retroactively to Plaintiffs. Based on the information discussed supra at Sections I.A & I.B.1, it appears that these requirements retroactively impose a longer, lifetime duty on Plaintiffs Wallace, Tirado, and McLaurin, and deny the right to petition for relief to Plaintiffs Blunt, Calloway, Colon, Geoffrion, and McLaurin. The only Plaintiffs to whom these requirements do not apply retroactively are Plaintiffs Aiello and Factor, who committed their offenses one to two years after these requirements took effect in 2006. See supra Sections I.A & I.B.1.
In assessing whether a sex offender's duty to register for life without the possibility
Since Smith, countless federal courts, including this one, have rejected similar ex post facto challenges to sex offender registration requirements. See, e.g., Anderson v. Holder, 647 F.3d 1165, 1168-69 (D.C.Cir.2011) (holding that, "like the sex offender registration requirement in Smith," the District of Columbia's requirement, premised on the plaintiff's conviction for a "lifetime registration offense," did not violate the Ex Post Facto Clause, and citing cases to support the conclusion that "the overwhelming weight of authority treats such laws as civil and nonpunitive") (emphasis added); see also, e.g., Am. Civil Liberties Union v. Masto ("Masto"), 670 F.3d 1046, 1053 & n. 4 (9th Cir.2012) ("Because Nevada's version of SORNA does not contain any registration provision that materially distinguishes it from Smith, we join [our sister circuits] in concluding that the requirements of [the statute] do not constitute retroactive punishment[.]") (collecting cases); U.S. v. Leach, 639 F.3d 769, 773 (7th Cir.2011) (concluding that "whether a comprehensive registration regime targeting only sex offenders is penal ... is not an open question" after Smith, from which "we too are unable to find any meaningful distinctions" for purposes of challenges to the federal SORNA, and, thus, "join[ing] our sister circuits in concluding that SORNA is not an ex post facto law") (collecting cases); Doe v. Bredesen ("Bredesen"), 507 F.3d 998, 1000-1001, 1003-1007 (6th Cir.2008) (applying Smith's framework in affirming the constitutionality of Tennessee's requirement that the plaintiff register "for the rest of his life," without the right to "petition the circuit court," and indicating that "our sister circuits have likewise consistently and repeatedly rejected ex post facto challenges to state statutes that retroactively require sex offenders convicted before their effective date to comply with similar registration... requirements") (collecting cases), cert. denied, 555 U.S. 921, 129 S.Ct. 287, 172 L.Ed.2d 210 (2008); Spiteri v. Russo, No. 12-CV-2780, 2013 WL 4806960, at *11, *37 (E.D.N.Y. Sept. 7, 2013) (citing Smith and other cases with approval, and ruling that New York's "lifetime registration requirement" does not violate the Ex Post Facto Clause); Valentine v. Strickland, No. 08-CV-993, 2009 WL 9052193, at *1, *5 (N.D.Ohio Aug. 19, 2009) (upholding Ohio's requirement of "registration every ninety days for the rest of [the plaintiff's] life," in view of Smith and the "numerous circuit courts" who have "repeatedly rejected ex post facto challenges" to such
Although the Second Circuit has not opined on the State registration requirements, as applied to risk-level two and three sex offenders,
While the Court could find, based on the abundance of clear and consistent precedent, that the current State registration requirements do not violate the Ex Post Facto Clause, the Court nonetheless conducts its own analysis of these requirements, using the framework established in Smith and applying the Second Circuit's reasoning in Pataki.
First, the legislative intent behind the current State registration requirements is nonpunitive. In 2006, the current requirements replaced the old ones as part of SORA, an act whose original aims in codifying these requirements were public protection and the improvement of law enforcement with respect to the "dangers posed by convicted sex offenders" after their release. Id. at 1285. Like the preamble to the original SORA legislation, the preamble to the legislation enacting the current requirements also indicated that these requirements are intended to "enhance public safety and provide better tracking and monitoring of sex offenders." 2006 N.Y. Sess. Laws Ch. 1 (S.6409, A.9472), § 1. The expression of such non-punitive objectives "in the statutory text itself" suffices to establish that the legislature, in enacting these requirements, did not intend for them to punish sex offenders. Smith, 538 U.S. at 93, 123 S.Ct. 1140; see also Pataki, 120 F.3d at 1285 (basing its conclusion about legislative intent behind the original registration requirements primarily on "the Act's preamble"). The fact that the first objective — protecting the public — is another possible reason that sex offenders are "sentenced to correctional institutions" (Pls. Opp., at 13) does not render "the State's pursuit of it in a regulatory
Because the non-punitive legislative intent is borne out so expressly by the text of the enacting legislation for these requirements, the fact that the legislative history, or at least some of it, reflected oral "comments of some legislators" that evinced hostility toward sex offenders is not enough to implicitly contradict such intent. Pataki, 120 F.3d at 1277. Even if individual legislators, while debating over the enactment, allegedly described sex offenders as "depraved" or "the human equivalent of toxic waste" and swore "to get them" (Pls. Opp., at 20), these "isolated statements," though offensive and inappropriate, do not evidence the legislature's retributive intent in requiring sex offenders to register themselves for a longer and more definite length of time. Pataki, 120 F.3d at 1277. At best, these statements suggest the "subjective intent expressed by one or more legislators," and not the "objective intent of the legislature." Id. (quotations omitted).
Nor do other "formal attributes" to the enactment negate the finding of non-punitive legislative intent. Smith, 538 U.S. at 94, 123 S.Ct. 1140. For instance, although the legislature also enacted "criminal" penalties to ensure compliance with these requirements (Am. Compl. ¶ 13), the penalties are not contrary to its intent to legislate a regulatory scheme that protects against, not punishes, convicted sex offenders after their release. See Smith, 538 U.S. at 96, 123 S.Ct. 1140 ("Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive."). If anything, the penalties, as enacted, attach to a sex offender's failure to follow the regulatory scheme and not the offense for which he was first convicted. See id. at 102, 123 S.Ct. 1140 (holding that a "criminal prosecution" for failing to register is a "proceeding separate from the individual's original offense").
No secondary factors suffice to counteract the non-punitive intent and purpose behind these requirements by clearly proving that they are punitive in effect. Id. at 92, 97, 123 S.Ct. 1140 (holding that a court must examine whether a regulatory scheme "is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil," and citing several factors to analyze whether the challenged restrictions have a punitive "effect") (emphasis added) (quotations omitted). First, these requirements hardly resemble the historical "shaming punishments," such as humiliation, branding, or banishment. See id. at 97-99, 123 S.Ct. 1140 (comparing Alaska's registration requirements to the "shaming punishments of the colonial period"). Importantly, the discrete act of requiring sex offenders to register does not involve the real-time "public display for ridicule and shaming" that defined these historical punishments. Id. at 98, 123 S.Ct. 1140 (emphasis added); see also Pataki, 120 F.3d at 1283-84 (noting that "traditional `stigmatization' penalties" involved "the offender's physical participation in his own degradation"). A sex offender does not suffer "shaming," as he registers and thereby "display[s]" his conviction. Smith, 538 U.S. at 98, 123 S.Ct. 1140. To the extent that a sex offender endures the stigma of his registered conviction (Am. Compl. ¶¶ 20, 26), it is the incidental result of the public's access, and its response, to the fact of the conviction after he has
Second, these requirements do not result in any "affirmative" restraint for purposes of punishment, in that they neither (i) impose the "paradigm[]" of imprisonment on sex offenders nor (ii) render sex offenders unable to "change jobs or residences." Smith, 538 U.S. at 100, 123 S.Ct. 1140; see also Pataki, 120 F.3d at 1285 (listing "far heavier burdens ... including deportation, termination of financial support, and loss of livelihood" that do not fit into the framework of punishment). At best, the burden of providing "periodic updates," by means of registration, is a "minor and indirect" restraint and not one that amounts to punishment. Smith, 538 U.S. at 100-101, 123 S.Ct. 1140. Other alleged restraints, such as the inability to secure employment or housing (Am. Compl. ¶¶ 20, 24), are not otherwise attributable to these requirements. Smith, 538 U.S. at 101, 123 S.Ct. 1140.
Third, the fact that these requirements happen to prevent future sex offenses — and, thus, serve the same deterrent function as criminal punishment — is inadequate to prove that these requirements constitute punishment. "Any number of governmental programs might deter crime without imposing punishment." Smith, 538 U.S. at 102, 123 S.Ct. 1140; see also Pataki, 120 F.3d at 1285 (holding that the State's original registration requirements deter against the "dangers posed by convicted sex offenders," without serving the "goals of criminal punishments"). On the contrary, the deterrent function of these requirements is entirely consistent with the regulatory aim of protecting the public from convicted sex offenders prone to re-offending.
Nor does the basis of these requirements on risk-level classifications that take into account a sex offender's conviction mean that these requirements turn on the "extent of [the offender's] wrongdoing" and, thus, like other punishments, seek retribution. Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quotations omitted). On the contrary, the conviction itself is only one of the factors considered in classifying a sex offender at a specific risk-level. N.Y. Correct. Law § 168-l (citing "criminal history factors" as relevant to a risk-level classification). The other factors include a sex offender's "response to treatment," "physical conditions," and "recent behavior." Id. In weighing other factors besides the offense for which a sex offender was convicted, a risk-level classification is actually a measure of "the risk of a repeat offense by such sex offender and the threat posed to the public safety," and not a measure of his liability for wrongdoing. Id.; cf. People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179 (2008) ("[A] SORA risk-level determination is not part of a defendant's sentence. Rather, it is a collateral consequence of a conviction for a
Finally, the State registration requirements are related and proportional, i.e., not excessive, in relation to their two non-punitive purposes. It is accepted that having sex offenders identify themselves through registration reasonably relates to the State's interests in improving the ability of law enforcement to protect the public, where a "high rate of recidivism among convicted sex offenders" poses a real concern. Id. at 103, 123 S.Ct. 1140. As amended, these requirements appear to assume that such ends are served by extending a lifetime duty of registration to risk-level two and three sex offenders, largely without relief. Nonetheless, the proportionality of these requirements is not defeated by the claim that they do not make the "best choice possible" to promote those non-punitive purposes. Smith, 538 U.S. at 105, 123 S.Ct. 1140. The State's "categorical judgments" — for instance, that all risk-level three sex offenders should be required to register for life without relief, because they pose a perpetual risk to public safety based on their high likelihood of re-offending — are a "reasonable" fit for the ends they are intended to meet, even though these judgments might not be the "best." Id. at 103, 105, 123 S.Ct. 1140. Indeed, the State reasonably instituted a continuing system of registration, which "subject[s] persons with a greater risk of re-offense to more onerous registration requirements" without relief, based on its conclusion that such a system will promote its regulatory aims. Pataki, 120 F.3d at 1285.
In light of the relevant analytical framework and reasoning set forth in Smith and Pataki, Plaintiffs cannot plausibly allege any facts to establish the "clearest proof" needed to overcome the State legislature's non-punitive intent in enacting the current State registration requirements, or to "transform what has been denominated a civil remedy into a criminal penalty." Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quotations omitted). Accordingly, the Court dismisses with prejudice Plaintiffs' ex post facto claim relating to the State registration requirements.
As before, the threshold issue is retroactivity. Among those with standing to bring the challenge to the State residency restrictions, only Plaintiff Blunt is subject to these restrictions retroactively: the commission of his offense occurred before these restrictions were introduced in 2005. See supra Sections I.A & I.B.2.i. Plaintiffs Aiello and Factor, on the other hand, committed their offenses afterward. Id.
Because Plaintiff Blunt's claim survives on the issue of retroactivity, the Court now considers whether his claim establishes that these restrictions equate to punishment. Although the Supreme Court in Smith did not assess whether sex offender residency restrictions were nonpunitive in nature, its framework for evaluating ex post facto claims is equally instructive here. Nearly all federal courts to confront these claims have applied the framework from Smith and held that such restrictions
At the state level, only a single lower-level trial court in New York has concluded that these restrictions do not comport with the Ex Post Facto Clause, in part, due to the alleged punitive intent with which they were enacted. See Berlin v. Evans, 31 Misc.3d 919, 923 N.Y.S.2d 828, 834-36 (Sup.Ct.N.Y.Cnty.2011) (holding that the State residency restrictions violate the Ex Post Facto Clause) (cited by Am. Compl. ¶ 41).
In determining whether the State residency restrictions are punitive, for purposes of the Ex Post Facto Clause, the Court is guided by Smith and the myriad of federal courts that have extended Smith's framework to sex offender residency restrictions around the country.
The sponsor's introductory statement for the amendments in 2005 to the State's sex offender regime indicated that these amendments were intended "to protect the youngest and most vulnerable members of our society," in view of the fact that sex offenders "pose the most risk to children." Bill Jacket, L.2005, ch. 544 (A. 8894).
On their face, the State residency restrictions were intended to prevent certain individuals convicted of serious sex offenses from having access to children. The Supreme Court has reasoned that "an imposition of restrictive measures on sex
The remaining "attributes" of the legislation that instituted these restrictions, such as the "manner of [their] codification," do not otherwise suggest that these restrictions were intended to punish sex offenders. Smith, 538 U.S. at 94, 123 S.Ct. 1140. First, to the extent that these restrictions, as enacted, only apply to sex offenders while they are on probation or parole, see Berlin, 923 N.Y.S.2d at 834-35, this is not evidence of such intent. Probation and parole are indeed alternative punishments that involve a period of release from prison, subject to certain conditions. See Griffin v. Wis., 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (Scalia, J.) (indicating that "[p]robation, like incarceration, is a form of criminal sanction" that involves a term of "conditional liberty") (quotations omitted); Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (Burger, C.J.) (characterizing "parole," i.e., "release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence," as a "variation on imprisonment"). Even so, the fact that a sex offender's alternative punishment of probation or parole possibly triggers, and runs parallel to, these restrictions can be explained by the legislature's intent to employ these restrictions separately as a measure to protect children: these restrictions were not meant to enhance the alternative punishment, but to regulate a sex offender as long as he is released on probation or parole, the period in which he is most likely to re-offend. Accord Bredesen, 507 F.3d at 1000-1001, 1004 (finding, as nonpunitive, a "satellite-based monitoring" restriction for a sex offender on probation or parole, because the fact of his probation or parole rendered him a "violent sexual offender" and, thus, the restriction furnished "intensive supervision" integral to public protection). Meanwhile, it would be illogical to infer that the limited-in-time application of these restrictions to sex offender probationers and parolees is somehow more probative of punitive intent than the limitless application of these restrictions to all sex offenders. Therefore, the timing of these restrictions, as applying during probation or parole, does not reflect punitive intent, but rather an effort to tailor these restrictions to the period of greatest risk to the public.
Even if these restrictions are extensions of probation or parole, they are, at most, nonpunitive conditions that merely attach to the alternative punishments and not punishments themselves. See Fischer, 2012 WL 4461647, at *3-4 (holding that any "conditions of parole which were attributable to [a sex offender] having been determined to be subject to SORA" or other "special conditions of release ... that the Division of Parole customarily imposes" are not punishments, for purposes of an ex post facto or cruel and unusual punishment claim); cf. Gravino, 14 N.Y.3d at 558-59, 902 N.Y.S.2d 851, 928 N.E.2d 1048 (holding that the "fact and length of post-release supervision" are "direct consequences of a plea" to any offense, whereas "SORA registration and the terms and
Second, although the enacting legislation partly codified these restrictions in the New York Penal Law, or cross-referenced these restrictions with other provisions contained therein, see Berlin, 923 N.Y.S.2d at 834-35, this, in and of itself, does not indicate that these restrictions were meant to be punitive. The "location and labels" of these restrictions in the New York Penal Law "do not by themselves transform a civil remedy into a criminal one." Smith, 538 U.S. at 94, 123 S.Ct. 1140; see Williams, 979 N.Y.S.2d at 499 (citing Smith with approval). Notably, the New York Penal Law contains many "provisions that do not involve criminal punishment." Smith, 538 U.S. at 95, 123 S.Ct. 1140; see also, e.g., Coston, 398 F.Supp.2d at 885 (holding that, where Ohio's residency restriction is codified in the "criminal section of the Ohio statutes" which also "contains other traditionally civil provisions," it has a "nonpunitive purpose"). For instance, the New York Penal Law includes civil provisions that solely pertain to the administration of the criminal justice system, such as provisions on the licensing of firearms and fireworks, N.Y. Penal Law § 400.00 et seq.; and provisions on the disposal and recovery procedures for seized or stolen property, id. § 410.00 et seq.
Furthermore, the appearance of these restrictions in an article of the New York Penal Law relating to probation, as well as an article of the New York Executive Law relating to parole, is equally consistent with their exclusive application to sex offender probationers and parolees, which, as stated above, supports a non-punitive purpose. Because these restrictions only apply in this manner, it makes sense that they are codified in sections on probation and parole. Such placement serves only to inform the affected individuals that they may be subject to these restrictions during that period of their release, and does not transform these restrictions into punitive measures. Accord Valentine, 2009 WL 9052193, at *3 (holding that "alerting convicted sex offenders of the civil consequences of their criminal conduct," e.g., registration, by "[g]rouping" the provisions regarding such consequences with the provisions regarding the "corresponding criminal offense," "does not render the consequences themselves punitive") (quotations omitted).
The effect of the State residency restrictions, analyzed using the Smith factors, neither contradicts, nor transforms, their non-punitive intent and purpose. See Smith, 538 U.S. at 92, 97, 123 S.Ct. 1140. First, contrary to the reasoning in Berlin, these restrictions cannot be equated to the historical punishment of banishment, see 923 N.Y.S.2d at 835; (Am. Compl. ¶¶ 20, 41; Pls. Opp., at 14-15). These restrictions do not have the effect of either putting the affected individuals on display for ridicule or "running them out of town." Snyder, 932 F.Supp.2d at 812 (finding that Michigan's residency restriction "does not provide any means for the public to humiliate or shame the offender"); see also
Additionally, banishment, as traditionally understood, entailed the inability to ever return to the place from which an individual had been banished. Smith, 538 U.S. at 98, 123 S.Ct. 1140. By contrast, under the State residency restrictions, sex offenders may venture into restricted areas, even if they cannot reside there and/or access such areas during school hours. See Williams, 979 N.Y.S.2d at 500-501 (deciding that the State residency restrictions are also "not similar to [the] historical punishment of banishment," because they do not "require that petitioner abandon any particular geographic area"); see also, e.g., Miller, 405 F.3d at 719-20 (concluding that, "[w]hile banishment of course involves an extreme form of residency restriction," Iowa's restriction was "unlike banishment in important respects").
Second, although the State residency restrictions result in an "affirmative" restraint on convicted sex offenders (Am. Compl. ¶ 43), the degree of restraint imposed by these restrictions does not rise to the level of being punitive in effect. See Smith, 538 U.S. at 100, 123 S.Ct. 1140 ("If the disability or restraint is minor and indirect, its effects are unlikely to be punitive."); Williams, 979 N.Y.S.2d at 501-502 (reasoning that, although the State residency restrictions "may cause difficulty in obtaining housing," these restrictions "do[] not impose an affirmative disability or restraint to the extent that it would render [their] effects punitive") (emphasis added).
Third, to the extent that these restrictions promote deterrence, consistent with
Fourth, these restrictions themselves are not retributive in nature: they do not serve the "traditional aim[]" of punishing a sex offender for his "wrongdoing," but rather they regulate his "risk" to children. Smith, 538 U.S. at 97, 102, 123 S.Ct. 1140; see also Williams, 979 N.Y.S.2d at 503 ("The [State sex offender residency] statute is not retributive. It does not punish a sex offender's past conduct, but seeks to defend children from the risk of future recidivism[.]"). The non-retributive nature of the State residency restrictions, like the registration requirements, is evidenced by their application, in part, based on the multi-factored assessment of a sex offender's risk-level, taking into account more than the offense for which he was convicted. Reliance on this assessment ensures that these restrictions are only applied to the offenders most likely to re-offend and who, thus, pose the greatest risk of harm to children, i.e., risk-level three offenders and non-risk-level three offenders whose offense involved a child, and not simply to any offenders who commit the same offense.
While "any restraint or requirement imposed on those who commit crimes is at least potentially retributive in effect," the "potentially retributive" effect of the State residency restrictions is incidental to the criminal punishment and not itself retributive. Miller, 405 F.3d at 720 (ruling that, in spite of any "retributive" effect, Iowa's residency restriction was "consistent with the legislature's regulatory objective of protecting the health and safety of children"); cf. Pataki, 120 F.3d at 1283 (reasoning that SORA, in particular its notification provisions, "does not affix culpability for prior conduct," rendering it retributive, but only "relies on such conduct solely for the evidentiary purpose of determining whether the offender is likely to present a danger to the community once he is released") (quotations omitted). This effect is largely an illusion based on the limited nexus between these restrictions and the seriousness of the offender's crime. This nexus, however, is better explained by the regulatory aim to protect children from the riskiest sex offenders — adjudged through their risk-level or commission of an offense against a child — than the imposition of retribution for the offenders' wrongdoing. Therefore, there is no retribution that these restrictions seek, merely for the sake of retribution, that might support the inference that they are, in fact, punishment.
The final inquiry, into the relationship and proportionality of the State residency restrictions to their intended purpose, also indicates that these restrictions are not punishment. See Miller, 405 F.3d at 721 (holding that, even where sex offender residency restrictions are deemed an "affirmative" restraint for purposes of punishment, "this factor ultimately points us to the importance of the [final] inquiry: whether the law is rationally connected to a nonpunitive purpose, and whether it is excessive in relation to that purpose"). Tellingly, the Berlin court did not contest the first half of this inquiry, i.e., the "rational connection to a nonpunitive purpose," which was the "most significant factor" in the Supreme Court's punitiveness determination in Smith. Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quotations omitted); see Berlin, 923 N.Y.S.2d at 835-36 (arguing that the State residency restrictions
Credible data, suggesting that "concerns" over the recidivism risk among convicted sex offenders might be misplaced or overstated (see Am. Compl. ¶ 33 (citing a study by the United States Department of Justice, alleging that "95% of new sex crimes are committed by people other than registered sex offenders")
Having concluded that the State residency restrictions are reasonably related to their nonpunitive purpose of protecting children, the Court considers whether these restrictions are reasonably proportional with respect to achieving this purpose. See Smith, 538 U.S. at 105, 123 S.Ct. 1140 ("The question [when evaluating excessiveness] is whether the regulatory means chosen are reasonable in light of the nonpunitive objective."). Because these restrictions are tailored to impose the greatest restrictions on the riskiest sex offenders, the Court finds that they are reasonably proportional to their non-punitive purpose of protecting children. Id. (upholding Alaska's registration requirements, where the "regulatory means chosen" by the legislature were reasonable in light of its goal to protect children from convicted sex offenders).
The State residency restrictions apply to sex offender probationers and parolees convicted of an offense against a child under 18-years old, and all risk-level three sex offender probationers and parolees. N.Y. Exec. Law § 259-c(14); N.Y. Penal Law § 65.10(4-a). These restrictions, therefore, are limited in their application to two, possibly overlapping, populations of sex offenders that the legislature has assessed as presenting the severest threat to children. Notably, sex offenders in risk-levels one and two who have not committed an offense against a child are not subject to these restrictions. With respect to risk-level three sex offenders, although they might not have originally committed an offense against a child, their classification as a risk-level three entails an individualized determination that the offender, especially during his immediate release on probation or parole, poses the highest risk of re-offending against a child or adult victim. See Williams, 979 N.Y.S.2d at 498 (quoting the sponsor's memorandum about a risk-level three offender's high risk of re-offending, "no matter what the age of the victim" was originally); see also Weems, 453 F.3d at 1017 (reasoning that Arkansas's residency restriction, which only applies to sex offenders in the two highest risk-levels, "calls for a particularized risk assessment" of assorted factors and, thus, "increases the likelihood that the residency restriction is not excessive"); cf. Smith, 538 U.S. at 104, 123 S.Ct. 1140 (suggesting that Alaska's registration requirements would stand on even stronger footing, in terms of the excessiveness factor, if they "require[d] individual determination of [a sex offender's] dangerousness"). By tailoring their application to sex offenders most likely to re-offend in general or, more specifically, to re-offend against a child,
The same conclusion can be drawn about the application of these restrictions to sex offenders who have committed an offense against a child, even though it does not entail the same individualized determination. (Am. Compl. ¶ 41 & at 19.) Although these restrictions apply to any sex offender probationer or parolee whose crime involved a child, regardless of the offender's risk-level, the fact that he was originally convicted of an offense against a child is adequate to justify this particular application. A conviction of such an offense demonstrates that the offender is capable of harming children and, thus, poses precisely the threat that these restrictions seek to neutralize, during the offender's probation or parole. See Miller, 405 F.3d at 721-22 (holding that Iowa's "categorical" residency restriction for all child sex offenders is "not `excessive,'" despite the district court's finding that "the law applies regardless of whether a particular offender is a danger to the public") (quotations omitted); Williams, 979 N.Y.S.2d at 502-503 (rejecting the claim that the State residency restrictions "do[] not require or permit any individual assessment of an offender's dangerousness," and arguing that, "given the nature of [the plaintiff's] crime," i.e., against a child, "he might be reasonably viewed as a potential threat to children" to whom these restrictions should apply). The mere possibility of more effective or narrower means to protect children from sex offenders does not render the State residency restrictions disproportionate. The "best choice" is not the only choice; the "regulatory means chosen" by the State legislature should be upheld if they are "reasonable in light of the nonpunitive objective." Smith, 538 U.S. at 105, 123 S.Ct. 1140 ("The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy."); see also Bulles, 2009 WL 435337, at *6 ("Even if the Ordinance is not the most effective means to protect the community, it is rationally connected to this goal and not excessive in light of this purpose.").
Accordingly, because the intent, purpose, and effect of the State residency restrictions are non-punitive, the Court dismisses, with prejudice, Plaintiffs' ex post facto claim relating to these restrictions.
The Court now turns to the arguments for dismissal made by the County Defendants, the Town, and CHI.
As an initial matter, the Court declines to consider Plaintiffs' supplemental state law claims of preemption relating to the County and Town residency restrictions prior to addressing the ex post facto claims relating to these restrictions. In making this decision, the Court is mindful of the principle that "dispositive state law claims pendent to federal constitutional claims" should be decided first, where deciding the former would resolve the whole case "without reference to" the latter and, thus, entirely avoid "constitutional adjudication" when it is "not absolutely essential" to the case. Hagans v. Lavine, 415 U.S. 528, 546, 547 n. 12, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (White, J.) (quotations omitted) (discussing the doctrine established in Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 53 L.Ed. 753 (1909), and collecting other
Here, however, resolution of the preemption claims would not be "dispositive" of the federal constitutional claims. Hagans, 415 U.S. at 546, 547 n. 12, 94 S.Ct. 1372. Even if the Court were to address the preemption claims prior to the ex post facto claims relating to the County and Town residency restrictions, it would still have to resolve the ex post facto claim relating to the State residency restrictions and the equal protection claim relating to the County's trailer program. Furthermore, having addressed the ex post facto claim relating to the State residency restrictions, the Court has already, in effect, analyzed the central issues that would apply to the remaining ex post facto claims relating to the County and Town residency restrictions. In other words, the Court cannot simply address the preemption claims "without reference to" the federal constitutional claims, and, thus, at least some adjudication of the latter is "absolutely essential" to resolving this case. Id. at 546, 547 n. 12, 94 S.Ct. 1372; compare Mayor of Phila. v. Educ. Equal. League, 415 U.S. 605, 623-24, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974) (Powell, J.) (rejecting the "assertion that pendent jurisdiction is appropriate and that pendent state claims should be decided first" based on the Siler doctrine, where a decision on such claims "would not have approached resolving the case"), with Moore v. Cnty. of Suffolk, 851 F.Supp.2d 447, 459 (E.D.N.Y.2012) (applying the Siler doctrine, where "deciding the state law claim will likely make it unnecessary to consider plaintiff's constitutional claims").
Furthermore, as the Second Circuit recently confirmed in Carver v. Nassau County Interim Finance Authority, 730 F.3d 150 (2d Cir.2013), federal district courts should refrain from asserting their supplemental jurisdiction to adjudicate any issue of state law, such as preemption, where the state-law precedent is not well-settled. See id. at 154-55. There remains an undecided issue of state law with respect to whether the State's sex offender regime preempts municipal sex offender residency restrictions. Compare Moore v. Cnty. of Suffolk, No. 09-CV2031, 2013 WL 4432351, at *5 (E.D.N.Y. Aug. 14, 2013) (collecting state court cases in support of preemption), with People v. Diack, 41 Misc.3d 36, 974 N.Y.S.2d 235, 238 (Sup.Ct. App.Term Sept. 5, 2013) ("We therefore hold that [Nassau County's residency restrictions] are not preempted by state law[.]"), leave to appeal granted, 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 (2014).
Like the State, the County Defendants and the Town contend that Plaintiffs have failed to state an ex post facto claim with respect to the County and Town residency restrictions, in light of the Supreme Court's ruling and relevant framework in Smith. (See County Defs. Br., at 3-14; Epley Br., at 10.) The Court agrees.
As an initial matter, all eight Plaintiffs with standing to challenge these restrictions — Plaintiffs Wallace, Aiello, Blunt, Calloway, Colon, Factor, Geoffrion, and McLaurin — are subject to their retroactive application, except that the County
For the most part, the Court's reasoning as to the State residency restrictions, see supra Section II.C.3.ii, applies equally to the County and Town residency restrictions, in support of the conclusion that these restrictions are not punitive in their intent, purpose, and effect. There are, however, three ways in which the analyses for these restrictions differ, thus warranting further discussion but the same conclusion.
First, in terms of their non-punitive legislative intent, the County and Town residency restrictions stand on stronger footing than the State residency restrictions. In contrast to the State legislature, the County and Town legislatures "expressed," on the face of the enacting legislation, a regulatory aim for adopting their own residency restrictions. Smith, 538 U.S. at 93, 123 S.Ct. 1140. The County's enacting legislation codified a "[l]egislative intent" provision, indicating that its objective was to "protect" against the "unreasonable threat to the safety and well-being of children" posed by sex offenders. Cnty.Code § 745-1. Similarly, the preamble to the Town's enacting legislation stated that its purpose was "not to punish sex offenders, but rather to provide a regulated system that prevents sex offenders from residing in areas where large numbers of children learn, play, congregate and travel," since children are "particularly in need of protection from the unreasonable threat of sex offenders" based on their "risk of repeat offense." (Dkt. No. 68-2.)
Because the County's and the Town's enacting legislation incorporated express statements that they intended their residency restrictions to protect and not punish, the Court need not also look to the legislative history behind the enactments to impute such intent.
Second, although the County and Town residency restrictions are not as narrowly tailored as the State residency restrictions, they are not retributive in nature. The County residency restrictions prevent any convicted sex offender who is required to register, pursuant to the State registration requirements, from living within a 1/4 mile of a school, nursery, licensed daycare, playground, amusement park, or the residence or place of employment of the offender's victims. Cnty.Code §§ 745-2, 745-3. The Town residency restrictions prevent any risk-level two or three sex offender, subject to registration, from living within one mile of a school that does not transport students who live within one mile thereof, 2,000 feet of a school that
The application of the County residency restrictions to all convicted sex offenders might suggest a retributive effect. These restrictions, however, do not apply with equal, or even commensurate, force to all offenders. The duration of these restrictions depends on whether an individual is classified as a risk-level one sex offender required to register for 20 years, or a risk-level two or three sex offender required to register for life. See supra Sections I.B.1 & I.B.2.ii. These restrictions apply only as long as a sex offender is required to register under the State's sex offender regime, which, in turn, is based on an assessment of various factors, including but not limited to the offense for which the offender was convicted. See supra Section II.C.3.i. Conceivably, a sex offender convicted of a more serious offense but assessed as a risk-level one offender could be subject to these restrictions for a shorter period of time than a sex offender convicted of a less serious offense but assessed as a risk-level two or three offender. In other words, the length of time for which these restrictions apply does not correspond directly with the "extent of [an individual's] wrongdoing," but rather to the "extent of [his] risk," which, thus, weakens the inference that these restrictions are retributive. Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quotations omitted); cf. Snyder, 932 F.Supp.2d at 812 (refusing to find that Michigan's residency restriction for sex offender registrants, classified into three possible tiers, was retributive, even though "[the restriction] is imposed equally upon all offenders based on their past crime, and no consideration is given to their individual risk"). The same is true of the Town residency restrictions, which only apply to registered risk-level two and three sex offenders and, thus, are not imposed based on the extent of an offender's wrongdoing, but the risk that he poses to the community. Smith, 538 U.S. at 102, 123 S.Ct. 1140.
Any retributive effect attributable to the County and Town residency restrictions is also undercut by the grandfather clauses contained in each, which exempt the prior-established residences of sex offenders otherwise required to comply with these restrictions. Cnty.Code § 745-4; Town Code § 215-3. In other words, these restrictions seek to avoid being retributive by depriving a sex offender of, or taking from him, his preexisting property rights based solely on his conviction. These clauses all but ensure that these restrictions will not be applied uniformly to convicted sex offenders who are identical in terms of their offenses: one may be allowed to occupy a prior-established residence in a restricted area, while the other, absent such a residence, may be required to leave that area. The above scenario ultimately contradicts the suggestion that these restrictions "affix culpability" for "wrongdoing." Smith, 538 U.S. at 102, 123 S.Ct. 1140; Hendricks, 521 U.S. at 362, 117 S.Ct. 2072. Indeed, a sex offender with the same "culpability" as another might be free from these restrictions, based on his mere possession of a prior-established residence. Hendricks, 521 U.S. at 362, 117 S.Ct. 2072.
Compared to the State residency restrictions, the County and Town residency restrictions
The County and Town residency restrictions are comparable to restrictions that other federal courts have found to satisfy the proportionality inquiry. See, e.g., Weems, 453 F.3d at 1013, 1017 (Arkansas's 2,000-foot restriction on "Level 3 `high risk' offenders and Level 4 `sexually violent predators'" from residing around schools and daycare centers, with an exemption for prior-established residences); Snyder, 932 F.Supp.2d at 807, 811-13 (extension of Michigan's 1,000-foot restriction on registered sex offenders from "working, residing, or loitering" around schools to "Tier III" offenders "now required to register for life," with an exemption for prior-established residences and places of employment); Gautier, 2009 WL 1444533, at *8-9 (Oklahoma's 2,000-foot restriction on any "registered sex offender," including a "level III" offender registered for life, from residing around schools, daycare centers, playgrounds, and parks, with an exemption for prior-established residences); see also, e.g., Valentine, 2009 WL 9052193, at *1, *5 (Ohio's 1,000-foot restriction on any registered sex offender, including a "Tier III" offender subject to lifetime registration, from residing around schools and daycare centers); Baker, 2006 WL 905368, at *1, *5 ("No [sex offender in Georgia] required to register ... shall reside within 1,000 feet of any child care facility, school, or area where minors congregate.") (quotations omitted).
The fact that these restrictions apply for life to risk-level two and three sex offenders (Pls. Opp., at 20) does not render them disproportionate to their cause. On the contrary, it is reasonable for these restrictions to dovetail the lifetime registration requirement, because the registration requirement rests on the State's determination that a risk-level two or three sex offender poses a perpetual threat of re-offending. This determination informs the County's and Town's decisions to restrict the offender's residence for the same duration. Because the State registration requirements, and, by extension, the County and Town residency restrictions, rely on a "particularized risk assessment" to ensure that the "length and extent of" such regulations are tailored to this end, they are "not excessive." Weems, 453 F.3d at 1017 (ruling, with respect to a residency restriction that only applies to registered Level 3 and 4 sex offenders, that "the ... statutory plan calls for a particularized risk assessment of sex offenders, which increases the likelihood that the residency restriction is not excessive in relation to the rational purpose of minimizing the risk of sex crimes against minors"); Valentine, 2009 WL 9052193, at *5 (rejecting the argument that "lifetime registration, notification, and residency restrictions [for Tier III sex offenders] are arguably excessive," since "the ... tiered classification system takes into account the nature of the underlying offense in assessing the length and extent of the sanction"); see also Gautier, 2009 WL 1444533, at *9 (holding that "[r]equiring sex offenders to register and limiting
Moreover, any excessiveness relating to the lifetime application of these restrictions to risk-level two and three sex offenders is further mitigated by the grandfather clauses exempting an offender's prior-established residence. Snyder, 932 F.Supp.2d at 811-12 ("The statute exempted those already living or working in such zones and those whose home or place of employment enters the zones due to relocation or establishment of a school there. These accommodations significantly negate the harshest potential consequences of the Act."); cf. Baker, 2006 WL 905368, at *5 (refusing to find that, without such a clause, the statute was excessive, since "[i]t is antithetical to [the statute's] purpose ... to allow these individuals to continue to reside inside that restricted area simply because they were fortunate enough to have established their residence prior to the statute's effective date").
With respect to the County residency restrictions, their application to all convicted sex offenders, regardless of their risk-level (Am. Compl. ¶ 29 & at 19), does not render these restrictions disproportionate. See Snyder, 932 F.Supp.2d at 807, 813 (concluding that the statutory scheme, which contained a residency restriction for all "registrants," was not excessive, despite the claim that "the registry includes individuals who neither pose a danger to the public nor are likely to reoffend"); Valentine, 2009 WL 9052193, at *1, *5 (holding that, even where "the likelihood of recidivism or dangerousness is not evaluated for each offender individually" in classifying them, the statutory scheme, which imposed registration requirements and residency restrictions on "all offenders" based on their classification, was still not excessive) (emphasis added); Gautier, 2009 WL 1444533, at *8-9 (rejecting the argument that "the absence of an individualized risk assessment mechanism renders the statute excessive," where the statute included a residency restriction that applied to any "registered sex offender"); Baker, 2006 WL 905368, at *1, *5 (declining to deem excessive the residency restriction, even though it applied to any "individual required to register").
Rather, the same individualized risk assessment that imposes a lifetime registration requirement on risk-level two and three sex offenders and a 20-year registration requirement on risk-level one sex offenders throughout the State triggers the co-extensive and commensurate residency restrictions in the County and the Town. The fact that imposing such restrictions on risk-level one sex offenders might not be the "best choice" does not make it unreasonably disproportionate to the aim of protecting children. Smith, 538 U.S. at 105, 123 S.Ct. 1140; see also Gautier, 2009 WL 1444533, at *9 (holding that, even if "[r]equiring sex offenders to register and limiting where they may live" does not "represent the best choice among all possible alternatives for protecting the public," "reasonableness is all that the Ex Post Facto Clause requires"); accord Pataki, 120 F.3d at 1283 ("The legislature is not required to act with perfect precision, and its decision to cast a net wider than what might be absolutely necessary does not transform an otherwise regulatory measure into a punitive sanction.").
The Supreme Court's guidance in Smith is instructive:
538 U.S. at 103-104, 123 S.Ct. 1140 (citations omitted). The County, in this case, concluded that it would "legislate" residency restrictions that apply to all convicted sex offenders, regardless of the "individual determination of their dangerousness." Id. At the same time, the County did not dispense with this determination altogether, but incorporated it, basing its residency restrictions on the regulatory structure of the State registration requirements. Id. Such a balanced arrangement of "regulatory burdens" seems reasonable, based on the framework outlined in Smith. Id.
Finally, the more significant aspect relating to the effect of the County residency restrictions is that, as alleged by Plaintiffs, these restrictions have, at times, rendered, and are capable of rendering, them and other sex offenders homeless, see supra Sections II.B.2 & II.B.3. There is, however, no support for Plaintiffs' allegation that these restrictions directly cause forced or de facto homelessness among the County's registered sex offenders. Plaintiffs do not allege that these restrictions leave offenders with practically no place to live within the County. (See, e.g., Am. Compl. ¶¶ 29, 43 (only alleging that the County residency restrictions "restrain[] [registered sex offenders] from living in certain areas" and that these restrictions "oftentimes uproot[] offenders from their communities") (emphasis added).) Nor can Plaintiffs allege as much. Among those with standing to challenge these restrictions, Plaintiffs Colon, Geoffrion, and McLaurin have registered primary residences in the County on the State's sex offender registry website (Exs. E; G; H),
While Plaintiffs do not expressly allege that the Town residency restrictions also leave them and other sex offenders homeless, they do allege that these restrictions amount to ex post facto violations. (Am. Compl. ¶ 3.) As such, the Court similarly considers whether the effect of these restrictions, by creating a larger buffer zone around schools and child-related facilities within a smaller geographical area than the County, raise genuine concerns regarding forced or de facto homelessness
Having concluded that the County and Town residency restrictions are not so disproportionate in their effect as to cause the homelessness of registered sex offenders residing therein, the Court need not engage in further line-drawing as a constitutional matter. Whether narrower geographical restrictions than the ones currently imposed by the County and the Town would achieve a greater balance is an inquiry reserved for government officials or legislators, not the Court. See Miller, 405 F.3d at 715. Unlike the Court, whose concern is reasonableness, "[t]he legislature is institutionally equipped to weigh the benefits and burdens of various distances, and to reconsider its initial decision in light of experience and data accumulated over time." Id. (emphasis added).
In sum, although the analysis for the County and Town residency restrictions involves other considerations regarding legislative intent, retribution, and proportionality, the conclusion remains: like the State residency restrictions, the County and Town residency restrictions are not so punitive in fact as to plausibly overcome the non-punitive intent with which these restrictions were first enacted. Accordingly, the Court dismisses with prejudice the ex post facto claims relating to the
The County Defendants posit that Plaintiffs' equal protection claim relating to the County's trailer program should be dismissed under rational basis review. (Dkt. No. 69-8 ("County Defs. Reply"), at 1-2.) The Court agrees.
"Social and economic legislation... that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose." Hodel v. Ind., 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981) (Marshall, J.) (emphasis added) (citing, inter alia, Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981) (Blackmun, J.)); see also San Antonio Indep. Sch. Dist. v. Rodriguez ("Rodriguez"), 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (Powell, J.) (same). In such a situation, rational basis review does not permit the judiciary to "substitute its policy judgment" for that of the legislature. Hodel, 452 U.S. at 331, 101 S.Ct. 2376; see also City of New Orleans v. Dukes ("Dukes"), 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) ("[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect
Here, the claim is that the County established a trailer program which ultimately exposed homeless sex offenders to unequal living conditions, by providing them with less access to education, employment, therapy, and showers than "other free men." (Am. Compl. ¶¶ 45-46.) This claim, as it stands, fails to allege any "fundamental rights" that the trailer program might have contravened. Hodel, 452 U.S. at 331, 101 S.Ct. 2376. On the contrary, there are no constitutional assurances of housing with convenient access to certain life opportunities and amenities. See Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (White, J.) (considering whether the challenged law implicates a "fundamental interest[]" in "decent, safe, and sanitary housing" for purposes of an equal protection claim, and concluding that "[w]e are unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality," which is a "legislative, not judicial, function[]"); Citizens Comm. for Faraday Wood v. Lindsay, 507 F.2d 1065, 1068 (2d Cir.1974) ("Since there is clearly no constitutional right of access to a certain quality of housing, plaintiffs must establish that the city's action impinges on a suspect class in order to qualify for the stricter compelling state interest standard.") (citations omitted), cert. denied, 421 U.S. 948, 95 S.Ct. 1679, 44 L.Ed.2d 102 (1975); see also Dandridge v. Williams, 397 U.S. 471, 484-85, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (Stewart, J.) (noting that even legislation involving the "most basic economic needs of impoverished human beings," like "employment opportunities," does not "affect[] freedoms guaranteed by the Bill of Rights").
This claim also fails to allege that the trailer program involved "suspect classifications." Hodel, 452 U.S. at 331, 101 S.Ct. 2376. Sex offenders, or even homeless sex offenders, do not constitute a suspect classification. See U.S. v. LeMay, 260 F.3d 1018, 1030 (9th Cir.2001) ("Sex offenders are not a suspect class."), cert. denied, 534 U.S. 1166, 122 S.Ct. 1181, 152 L.Ed.2d 124 (2002); Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir.1999) (citing Artway v. Attorney Gen., 81 F.3d 1235, 1267 (3d Cir. 1996), for the proposition that "sex offenders are not a suspect class for purposes of Fourteenth Amendment analysis"); Kreimer v. Bureau of Police, 958 F.2d 1242, 1269 n. 36 (3d Cir.1992) ("[T]he homeless do not constitute a suspect class[.]"); accord Maher v. Roe, 432 U.S. 464, 471, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (Powell, J.) ("In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.").
Absent allegations that the trailer program either infringed on "fundamental rights" or entailed "suspect classifications," the equal protection claim is only subject to rational basis review. Hodel, 452 U.S. at 331, 101 S.Ct. 2376. Such a review supports the conclusion that the County — confronted with the possibility that certain sex offenders could be left homeless by the County residency restrictions — chose to leverage its available resources to create housing through the trailer program. The County's response to the plight of homeless sex offenders, though perhaps not optimal, was reasonable. It is not within the Court's purview to require or recommend that the County
Because the Court finds that Plaintiffs have failed to state an equal protection claim based on the County's trailer program, it also concludes that Roberts, on behalf of CHI, could not, in fact, have committed, or conspired to commit, a violation of the Equal Protection Clause by furnishing transportation to the County trailer site. See, e.g., Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir.1992) ("To state a claim against a private entity on a Section 1983 conspiracy theory, the complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act.") (emphasis added). Thus, the Court need not address the additional arguments that, as against Roberts, the claim fails in that (i) he was neither a state actor nor acting under the color of state law and (ii) the purported conspiracy, in which he participated, was not alleged with any particularity. (See Dkt. No. 70-2, at 5-7.)
Accordingly, the Court dismisses with prejudice the entirety of the equal protection claim.
Having dismissed the federal constitutional claims over which it had original jurisdiction, the Court declines to assert pendent jurisdiction over the supplemental state law claims of preemption with respect to the County and Town residency restrictions. See 28 U.S.C. § 1367(c)(3) (providing that "district courts may decline to exercise supplemental jurisdiction," if "the district court has dismissed all claims over which it has original jurisdiction"). "It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right .... Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (Brennan, J.); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (Marshall, J.) (same); Oneida Indian Nation of N.Y. v. Madison Cnty., 665 F.3d 408, 437 (2d Cir.2011) (same).
Furthermore, where, as here, the supplemental state law claims "raise[] a
Accordingly, in the Court's discretion, the preemption claims are dismissed without prejudice.
The Court, therefore, GRANTS Defendants' motions in Wallace. Plaintiffs' ex post facto and other federal constitutional claims are DISMISSED with prejudice, and their state law preemption claims are DISMISSED without prejudice. The Clerk of the Court is directed to enter judgment accordingly.
The official-capacity claim against Westergaard is, substantively speaking, a claim against the County DSS. See Ky. v. Graham ("Graham"), 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (Marshall, J.) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998) (noting that a suit against an individual "in his official capacity as Commissioner of [Oneida County Department of Social Services]" is "equivalent to a suit against [the department] and Oneida County"). But, since the County DSS is a "mere[] administrative arm[]" of the County, lacking a "legal identity separate and apart from the municipality," and cannot be sued, this claim instead should be construed as a claim against the County, which is already a Defendant. Allen v. Nassau Cnty. Exec. Office, No. 09-CV-1520, 2011 WL 1061019, at *7 (E.D.N.Y. Feb. 15, 2011) (quotations omitted) (replacing the "Nassau County Department of Social Services" and other entities with the "County of Nassau," for purposes of the plaintiff's civil rights claims), report-recommendation adopted sub nom. Allen v. Suozzi, No. 09-CV-1520, 2011 WL 1059147 (E.D.N.Y. Mar. 21, 2011).
Because the claim against Epley is an official-capacity claim, it ought to be construed as a claim against the Town. See supra note 3; see also Schubert v. City of Rye, 775 F.Supp.2d 689, 700 (S.D.N.Y.2011) (holding that the "real party in interest" in "official-capacity suits against the Mayor," among other individuals, is the city); Frooks v. Town of Cortlandt, 997 F.Supp. 438, 449 n. 4 (S.D.N.Y. 1998) ("The Court will consider plaintiffs' section 1983 against the Town employees in their official capacities as a claim against the Town under section 1983.").
A separate, though related, issue is that Plaintiffs mistakenly name Epley as the Mayor of the Town, rather than the Mayor of the Village of Southampton. (Dkt. No. 68-7 ("Epley Br."), at 1 n. 1.) Even if this is the case, Plaintiffs plainly intended to name the individual in charge of the Town, in his official capacity. Were Plaintiffs to correct the mistake by amending the Wallace Complaint, their claim would still be an official-capacity claim with respect to the Town. Cf. Delgado-Brunet v. Clark, 93 F.3d 339, 344 (7th Cir. 1996) (Wood, J.) ("Mistakes in naming parties [for purposes of a Bivens action] are far less likely to have drastic consequences in official rather than individual capacity actions[.]"). The mistake, therefore, does not affect the Court's decision to dismiss the official-capacity claim relating to the Town, whether Epley or the correct individual is named. See infra Section II.D.
First, although Plaintiffs reference the right to "live wherever they so choose" (Am. Compl. ¶ 23), this right is not fundamental to our constitutional order. See Stone v. Pamoja House, 111 Fed.Appx. 624, 626 (2d Cir. 2004) (dismissing "due process claim," based on the alleged "entitlement to reside in the shelter of [the plaintiff's] choice"). Second, these restrictions fail to trigger the fundamental right to inter state and/or intra state travel (Am. Compl. ¶ 29), because they neither distinguish between new and long-term sex offenders residing in the State, the County, or the Town, such that the former are discouraged from traveling. Nor do these restrictions block sex offenders from traveling between states, counties, or towns. See Town of Southold v. Town of E. Hampton, 477 F.3d 38, 53-54 (2d Cir. 2007) (dismissing a claim predicated on the right of interstate travel, because the challenged law did not (i) "distinguish between persons based upon geography" or (ii), despite "minor restrictions" on movement, otherwise "deter[]" or "impede" travel) (quotations omitted); King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648-49 & n. 5 (2d Cir.1971) (recognizing the "right to travel within a state" as a corollary to the "right to travel between states," and concluding that such rights are infringed when a challenged law provides "that each community should take care of its own first") (emphasis added; quotations omitted). See also Miller, 405 F.3d at 713-14 (holding that, assuming there is a right to intrastate travel, "the Iowa [sex offender residency restriction] would not implicate a right to intrastate travel for the same reasons that it does not implicate the right to interstate travel"; and that "[w]e are ... not persuaded that the Constitution establishes a right to `live where you want'").
Therefore, these restrictions are solely subject to rational basis review, pursuant to which the Court has already concluded that these restrictions are reasonably related to a legitimate purpose. See supra Sections II. C.3.ii & II.D.2.i; Flores, 507 U.S. at 306, 113 S.Ct. 1439. Accordingly, the Court dismisses with prejudice any substantive due process claims that Plaintiffs intended to assert.
