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Doe v. Curran

United States District Court, E.D. Michigan, Southern Division

January 10, 2020

JOHN DOE, Plaintiff,
v.
BRENDAN P. CURRAN, et al., Defendants.

          OPINION AND ORDER RESOLVING MOTIONS FOR SUMMARY JUDGMENT AND CONTINUING PRELIMINARY INJUNCTION

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Plaintiffs John Doe 1 and John Doe 2 filed a one-count civil rights complaint alleging that Defendants, who are various Michigan state and county government and law enforcement officials, violated their rights under the Fourteenth Amendment by enforcing against them unconstitutional portions of Michigan's Sex Offender Registration Act (“SORA”). Mich. Comp. Laws § 28.721 et seq. Plaintiffs seek declaratory and injunctive relief related to certain allegedly unconstitutional provisions of SORA, monetary damages, and attorney fees. On November 26, 2019, the case was reassigned to the undersigned judge as a companion to certified class action Does v. Snyder, No. 16-13137 (E.D. Mich.) (“Does II”).

         Pending before the court are four motions for summary judgment. Each Defendant moves for summary judgment in toto, and Plaintiffs move for summary judgment in part, i.e., as to their prayer for injunctive and declaratory relief on their Fourteenth Amendment vagueness and strict liability claims. The motions have been fully briefed, and the court determines that a hearing is not necessary. E.D. Mich. LR 7.1(f)(2). For the reasons explained below, the court will grant Defendants' motions for summary judgment on the individual capacity claims. The court will deny without prejudice Plaintiffs' and Defendants' motions as they relate to the official capacity claims. Finally, the court will stay the case until the resolution of Does II and will continue the preliminary injunction currently in place for Doe 1.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs are both Michigan residents who are required to comply with SORA. Plaintiff John Doe 1 lives in Otsego County and is subject to SORA based on a 2008 juvenile criminal conviction. Plaintiff John Doe 2 lives in Genesee County and is subject to SORA based on a 2010 criminal conviction.

         Plaintiffs sue Defendants Richard Snyder, formerly Governor of Michigan, and Kristine Etue, formerly director of the Michigan State Police, in their official capacities for their roles in enforcing SORA. They sue the remaining Defendants-a county prosecutor (Curran), a county sheriff (Nowicki), a county deputy (Puzon) and a probation officer (Schriner)-in both their official and individual capacities.

         1. SORA and Does I

         Under SORA's student safety zone restriction, anyone subject to the Act may not reside, “loiter, ” or work “within 1, 000 feet” of school property. Mich. Comp. Laws §§ 28.734(1)(a)-(b), 28.735(1). SORA defines “school property” as:

[A] building, facility, structure, or real property owned, leased, or otherwise controlled by a school, other than a building, facility, structure, or real property that is no longer in use on a permanent or continuous basis, to which either of the following applies: (i) [i]t is used to impart educational instruction[, or] (ii) [i]t is for use by students not more than 19 years of age for sports or other recreational activities.

         Mich. Comp. Laws § 28.733(e). The statute also defines “loiter” as “to remain for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b).

         Violating SORA is a strict liability offense. For the first violation, “the individual is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1, 000.00, or both.” Mich. Comp. Laws § 28.735(2)(a). Individuals who violate SORA more than once are “guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2, 000.00, or both.” Mich. Comp. Laws § 28.735(2)(b).

         In Does v. Snyder, No. 12-11194 (E.D. Mich.) (“Does I”), this court declared that SORA's student safety zone provision and strict liability regime violated the Due Process Clause. Does I (E.D. Mich. Mar. 31, 2015) (ECF No. 103, PageID. 5890-95, 5909.) On appeal, the Sixth Circuit declined to address these rulings-thereby leaving them intact-but instead reversed for reasons related to the plaintiffs' claim under the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 706 (6th Cir. 2016).

         2. John Doe 1

         In July 2008, Doe 1 was convicted in Florida of lewd and lascivious molestation by a minor under 17 on a minor under 12. (ECF No.68-1, PageID.644.) After his release from jail in 2012, he was required to register as a sex offender in Florida; however, he failed to do so and was sentenced to two additional years in jail. (Id. at PageID.649-50.) Doe 1 moved to Michigan after his release in 2014. (Id. at 50.) Thereafter, Doe 1 moved to Michigan where he was required to comply with SORA. (Id. at 652.) He oscillated between living in Otsego and Monroe Counties, and in 2016 he was charged with failing to report an address change. (Id. at 652-53.) He was convicted and sentenced to four months in county jail, which he served on work release. (Id. at 653-54.)

         In September 2017, Doe 1 reported to the Otsego County Sheriff's Office and met with then-deputy Defendant Ron Puzon. (Id. at 654-55.) Defendant Mathew Nowicki served as the Otsego County Sheriff at the time of these events. Doe 1 contends that Puzon told him that he did not need to comply with SORA's student safety zone provision because the provision had been ruled unconstitutionally vague in Does I. (Id. at 656-57.) Puzon denies ever telling Doe 1 that he did not need to comply with SORA. (ECF No. 68-2, PageID.717.) After speaking with Puzon, Doe 1 alleges that he researched online and confirmed on the National Association for Rational Sex Offense Legislation's website that SORA's student safety zone requirements had been declared unconstitutional. (ECF No. 68-1, PageID.657.)

         Believing that he did not need to comply with SORA's safety zone restrictions, Doe 1 purchased a home in December 2017 in which he lived with his fiancé and three children. (Id. at 631, 658.) He admitted that his house was close to the Gaylord Intermediate Schools campus that the close proximity motivated him to select the home because his fiancé's daughter attended the school. (Id. at 631-32.)

         The parties used online tools to measure the distance from Doe 1's home to student safety zones. Puzon explained that generally, the student safety zone is measured from property line to property line. (ECF No. 68-2, PageID.698.) However, Puzon acknowledged that there was no official standard for measuring the student safety zones and that he “tried to do the best [he] could with . . . what information [he] had.” (Id.) Puzon used a publicly available Otsego County Equalization mapping tool[1]similar to Google Maps to determine whether Doe 1's home fell within a student safety zone. (Id. at 702.) The tool allowed Puzon to measure the distance from a given address to the nearest school. (Id. at 703-04.) According to Doe 1, his home is 528 feet away from the nearest school when measured using Google Maps and 1056 feet away from the nearest school when measured using MapQuest. (ECF No. 70-2, PageID.777.) Defendants assert that Doe 1's home is 454 feet away from the nearest school when measured using Google Maps. (Id.)

         In January 2018, Defendant Brendan Curran, the Otsego County Prosecutor, sent Doe 1 a letter explaining that he was living in a student safety zone and, as such, could be prosecuted for violating SORA. (ECF No. 68-3, PageID.726.) The Curran letter stated that because Doe 1 claimed to have received inaccurate guidance about the student safety zone, Curran would allow Doe 1 until July 2018 to find a new house and move or face prosecution. (Id.) Curran also stated in the letter that he believed that Doe 1 thought his actions were legal because there existed “some measure of confusion” regarding SORA's student safety zones. (Id.) Instead of moving, Doe 1 filed this action.

         3. John Doe 2

         In 2010, John Doe 2 was convicted in Louisiana for possession of child pornography, an offense that subjected him to SORA when he moved to Michigan. (ECF No. 32, PageID.207.) As an Army veteran, Doe 2 relied on the Veteran's Administration's Supportive Services of Veteran Families program to rent a home. (ECF No. 70-2, PageID.777.) In 2017, Doe 2 was convicted of failing to register as a sex offender, and the Genesee County Circuit Court ordered him to a term of probation under the supervision of the Michigan Department of Corrections. (ECF No. 66-3, PageID.535-36.) One condition of Doe 2's probation mirrors SORA's student safety zone prohibition-he “must not reside, work or loiter within a student safety zone defined as [sic] 1, 000 feet of school property (developmental kindergarten through 12th grade school) unless [he met] a statutory exception.” (Id. at 535.)

         When the probation order was entered, Doe 2 lived in Shiawassee County, Michigan. Defendant Kevin Schriner initially supervised Doe 2's probation. (Id.) After completing the probation orientation process with Schriner, Doe 2's supervision was transferred to a probation agent in Shiawassee County. (ECF No. 66-2, PageID.524.) But in August 2018, Doe ...


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