See Class Action Compl. The Plaintiff asserts that Hartford City Ordinance , titled "Regulation of Sex Offenders," as amended by Ordinance Amended Ordinance or the Ordinance , is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment, and violates the Indiana Constitution's prohibition against ex post facto punishment.
For the due process challenge, the Court has certified a class pursuant to Federal Rule of Civil Procedure 23 a and 23 b 2. The class includes all persons who currently, or will in the future, live in, work in, or visit Hartford City, Indiana, and who are, or will be, sex offenders as defined in Amended Ordinance The relief sought for the class is injunctive and declaratory.
It applies to any "Sex Offender," defined in the Ordinance as "an individual who has been convicted of or placed on deferred adjudication for a sexual offense involving a person under eighteen 18 years of age for which the individual is required to register as a sex offender under Indiana law IC and IC Child Safety Zones include: It is also an offense under the Ordinance for a Sex Offender to "knowingly loiter on a public way within feet of a Child Safety Zone.
A "public way" is "any place to which the public or a substantial group of the public has access and includes, but [is] not limited to, streets, shopping centers, parking lots, transportation centers, restaurants, shops and similar areas that are open to the use of the public.
When the Ordinance was first enacted in February , the term "loiter" was defined as "standing, sitting idly, whether or not the person is in a vehicle or remaining in or around an area. After the Plaintiff initiated this litigation, Hartford City amended Ordinance to replace that definition of "loiter" with the following: In , the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law.
Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance. The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child's school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place.
The Plaintiff maintains that when he lived in California, he would frequently go to his child's school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter.
He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events.
In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother's car, which was parked at his brother's house across the street from a school. He was waiting to be taken to pick up his own child from another school.
The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered "circulating around a place.
ANALYSIS Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact.
Sheriff's Dep't, F. Ex Post Facto Punishment The Plaintiff alleges that the Ordinance, as applied to him, violates the Indiana Constitution's prohibition against ex post facto punishment. He requests that the Court find that the Defendant is liable on this issue, and conduct a trial to determine his damages. The Defendant disagrees that the Ordinance retroactively punishes the Plaintiff, and requests summary judgment in its favor.
The Indiana Constitution provides that "[n]o ex post facto law. In Wallace, the Indiana Supreme Court confronted an ex post facto challenge to the Indiana Sex Offender Registration Act SORA , as brought by a defendant who had been charged and convicted with a sex offense and had served his sentence prior to the enactment of the statute. In determining that the Act, as applied to the defendant, violated Indiana's ex post facto clause, the court adopted the "intents-effect" test, as articulated by the United States Supreme Court in Smith v.
Under the intents-effects test, "a court first determines whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, then that ends the inquiry, because punishment results.
Here, there is no dispute that the Defendant committed his criminal offense well before the Ordinance was enacted. Additionally, the parties do not dispute that the Ordinance was intended to advance a non-punitive purpose: The sole issue, then, is whether the Ordinance, as applied to the Defendant, is so punitive in effect that it has been transformed into a criminal penalty despite its regulatory intent.
Effects Test As instructed by the Indiana Supreme Court in Wallace, when determining the "effects" of a regulatory scheme, the Court must weigh seven-factors: No one factor is determinative. City of Jeffersonville, a case involving an ex post facto challenge to a city ordinance that prohibited convicted sex offenders from entering public parks. After weighing the seven factors, the court concluded that the ordinance, as applied to Dowdell, violated Indiana's ex post facto clause because "it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when [Dowdell's] crime was committed.
The Defendant attempts to undercut the significance of Dowdell by pointing to Doe v. Town of Plainfield, N. Although Town of Plainfield was decided prior to Wallace, the Defendant argues that the reasoning of Town of Plainfield remains applicable because the Indiana Supreme Court denied transfer on August 20, , see Doe v. But as correctly noted by the Plaintiff, Rule 58 b of the Indiana Rules of Appellate Procedure provides that "[t]he denial of a Petition to transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court.
See Dowdell, N. Therefore, he challenged an expansion to SORA that required him to register as a sex offender for life, as opposed to the previously-enacted registration period of ten years. First, the court noted that the amendments had changed the duration of the registration requirements that already applied to Jensen upon his conviction, but had changed nothing else with regard to Jensen's actual disclosure requirements.
Second, Jensen, unlike Wallace, would be able to petition the court after ten years for reconsideration of his status as a sexually violent predator. The Defendant attempts to distinguish Wallace and Dowdell by characterizing the Plaintiff as a Jensen sex offender, as opposed to a Wallace sex offender. The Defendant contends that the Plaintiff is like Jensen because he was already required to register as a sex offender when the Ordinance was passed.
While that may be true, he was not prohibited from entering Hartford City Child Safety Zones or loitering near those areas by virtue of that registration. Those restrictions first came about in when the Ordinance was passed. Were this case about extending the duration of existing registration requirements, the Court might grant the Defendant's point. However, in the context of this case and the Plaintiff's ex post facto claim, Jensen is not an applicable case.
The Court now turns to the seven-factor effects test to determine whether the Ordinance violates the Indiana Constitution's prohibition on ex post facto punishment. Affirmative Disability or Restraint In Dowdell, the Indiana Court of Appeals found that a city ordinance, which imposed a lifetime prohibition on convicted sex offenders from entering the city's public parks "is unquestionably a restraint.
As the court observed: As for Dowdell specifically, he has a minor son who plays Little League games in Jeffersonville's parks, and in the past, Dowdell has been a Little League coach. Dowdell would like to attend his son's games. He would also like to enter the City's parks without his son to engage in various activities such as adult baseball, adult basketball, fishing, golf, watching fireworks over the Ohio River, and taking walks with his significant other.
The Ordinance constitutes a significant restraint because it prohibits Dowdell from engaging in these social and familial activities.
Unlike the ordinance in Dowdell or even the ordinance in Plainfield the Ordinance here contains restrictions that extend beyond the Plaintiff's access to public parks. It also prohibits entry into, or loitering within feet of, numerous additional venues: The Plaintiff has presented evidence that the Ordinance forced him to refrain from going to the library with his child, entering his child's school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place.
The Plaintiff maintains that he is no longer able to go to his daughter's school to work with its staff, which is detrimental because she has learning disabilities. The Plaintiff was cited under the Ordinance for waiting as a passenger in his brother's car when it was parked at his brother's house, because it is located across the street from a Hartford City school.
This factor weighs in favor of treating the effects of the Ordinance as punitive when applied to the Plaintiff. Applying this reasoning, the Dowdell court reached the same conclusion: The Wallace court went on to hold that if a statute's provisions are comparable to conditions of supervised probation or parole, then that fact, standing alone, suffices to support a conclusion that the effects of the statute are punitive.
A prohibition on entering certain types of places is a very common condition of probation or parole. We can only conclude, therefore, that the Ordinance's ban on entering City parks. Given the similarities between Hartford City Ordinance's restrictions and the type of scrutiny and restrictions that attach during supervised release or probation, this factor also weighs in favor of finding that the practical effects of the Ordinance are punitive. Scienter Requirement "If a sanction is not linked to a showing of mens rea, it is less likely to be intended as a punishment.
In Wallace, the court concluded that the scienter requirement was met because almost all of the underlying sex crimes triggering SORA's obligations required a finding of scienter. Here, the Ordinance defines "sex offender" as a person convicted of a sexual offense involving a person under eighteen years of age for which the person is required to "register as a sexual offender under Indiana Law IC and IC The Plaintiff meets the definition of Sex Offender and is subject to the Ordinance's restrictions because he was required to register as a sex or violent offender in another jurisdiction.
Code b l defining a "sex or violent offender" as "a person who is required to register as a sex or violent offender in any jurisdiction". It has not been established, in the record before this Court, whether or not the Defendant's offense had a mens rea requirement.
The Court is only aware that, because the Plaintiff was required to register in California, he was also required to register when he moved to Indiana. Accordingly, the Court assigns no weight to this factor. Likewise, in Dowdell, the court held that "[w]e can only conclude that the primary purposes of the Ordinance are deterrence and protection of the community by sequestration of the offender. SORA advances all the traditional aims of punishment: Its very goal is incapacitation insofar as it seeks to keep sex offenders away from opportunities to reoffend.
It is retributive in that it looks back at the offense and nothing else in imposing its restrictions, and it marks registrants as ones who cannot be fully admitted into the community. Finally, its professed purpose is to deter recidivism. However, because many of these goals could also be described as civil and regulatory, the court gave this factor little weight. Here, the Ordinance states that its purpose is to "promote, protect and improve the health, safety and welfare of the citizens of Hartford City by creating areas around locations where children regularly congregate in concentrated numbers.
This purpose, as the Plaintiff admits, is intended to serve legitimate, regulatory purposes. The Plaintiff argues that it is, however, excessive in relation to its legitimate purpose, and that the excessiveness factor is the one many courts afford the greatest weight.
See Wallace, N. Finding that the Ordinance has valid regulatory purposes, the Court will assign this factor little weight. Whether the Ordinance is excessive in light of its intended purpose is discussed below. Behavior is Already a Crime When a "statute applies only to behavior that is already, and exclusively, criminal," it "supports a conclusion that its effects are punitive.
Here, too, this factor weighs in favor of finding that the Ordinance has punitive impact on the Plaintiff. Excessive in Relation to the Alternative Purpose Assigned This factor requires the Court to consider "whether the [Ordinance] appears excessive in relation to the alternative purpose assigned.
In Wallace, the court concluded that Indiana's sex offender registry and registration law was excessive given that it "makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk.
In Dowdell, the court concluded that the park ban was excessive given that Dowdell had been convicted in and his duty to register had expired before the enactment of the ordinance.
Although the ordinance in Dowdell contained a procedure potentially allowing an exemption, the court concluded that this procedure was "extremely narrow at best and illusory at worst," and therefore did "not ameliorate the excessiveness of the [o]rdinance. The Plaintiff's qualifying conviction is from The Ordinance invokes Indiana's registration statute, Ind.