Does v. Laxalt

• Court: District Court, D. Nevada
• Decided: September 29, 2020
• Docket: 2:15-cv-01638
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 DOES 1-35, Case No. 2:15-cv-01638-RFB-DJA

8 Plaintiff(s), ORDER

9 v.

10 THE STATE OF NEVADA ex rel. Aaron Ford, Attorney General of the State of Nevada; 11 GEORGE TOGLIATTI, Director of the Nevada Department of Public Safety; 12 NATALIE WOOD, Chief Parole and Probation Division of the Nevada Department of Public 13 Safety; CHRISTOPHER DERICO; Chair of the Nevada Board of Parole Commissioners; et al 14 Defendant(s). 15 16 I. INTRODUCTION 17 Before the Court is Plaintiffs Does 1-35’s (“Plaintiffs”) Second Motion for Partial 18 Summary Judgment. ECF No. 112. For the following reasons, the Court grants the motion. 19 II. PROCEDURAL BACKGROUND 20 Plaintiffs filed their first Complaint on August 25, 2015. ECF No. 1. The complaint 21 22 challenges the retroactive application of movement and residency restrictions to Plaintiffs, who 23 are all registered sex offenders on several constitutional grounds, including the Ex Post Facto 24 Clause. On January 21, 2016, the parties stipulated to the dismissal of Defendants Lombardo, 25 Moers, and Perez. ECF Nos. 33, 34. On September 9, 2016, the Court granted Plaintiff leave to 26 file an amended complaint and dismissed a pending motion to dismiss without prejudice. ECF No. 27 28 42. Plaintiff filed the first amended Complaint on October 11, 2016. ECF No. 45. Defendants 1 Conmany, Laxalt, Wood, and Wright filed an Answer on October 25, 2016. ECF No. 32. On April 2 23, 2018, Plaintiffs filed a Motion for Partial Summary Judgment. ECF No. 68. Defendants 3 responded on May 14, 2018. ECF No. 70. Plaintiffs replied on May 28, 2018. ECF No. 73. 4 On January 17, 2019, the Court denied the motions to dismiss/summary judgment and 5 6 granted Plaintiffs leave to amend the complaint to add the State Board of Parole Commissioners. 7 ECF No. 75. The Court also reopened discovery for 120 days. Plaintiff filed the operative second 8 amended complaint on January 28, 2019. ECF No. 76. Defendants answered the amended 9 complaint on March 5, 2019. ECF No. 94. A settlement conference occurred on June 25, 2019. A 10 settlement was not reached. ECF No. 108. Plaintiffs Does 1-35 filed the instant second motion for 11 12 summary judgment on September 16, 2019. ECF No. 112. A response and reply were filed. ECF 13 Nos. 116, 118. On March 9, 2020, the Court heard oral argument on the motion. ECF No. 127. 14 This written order now follows. 15 16 III. FACTUAL BACKGROUND 17 a. Undisputed Facts 18 The Court finds the following facts to be undisputed. Plaintiffs are registered sex offenders 19 who have completed their sentences and are now subject to lifetime supervision status. Lifetime 20 supervision status was created by the Nevada state legislature when it passed NRS 176.0931 in 21 22 1995. Nev. Rev. Stat. § 176.0931. In conjunction with NRS 176.0931, the State of Nevada passed 23 NRS 213.1243. NRS 213.1243 grants the State Board of Parole Commissioners (“the Board”) the 24 authority to establish a program of lifetime supervision. Nev. Rev. Stat. § 213.1243. 25 In 2005, Nevada amended NRS 213.1243 to expressly state four conditions that apply to 26 Tier 3 offenders. Nev. Rev. Stat. § 213.1243(4). In 2007, Nevada passed AB 579 and SB 471. The 27 28 two laws amended NRS 213.1243 to impose a number of additional conditions that courts were 1 required to impose. AB 579 related to reclassification, registration, and notification. SB 471 2 imposed residence and movement restrictions and other conditions, to be effective as of October 3 1, 2007. Specifically, the law commands that sex offenders placed on lifetime supervision may not 4 “knowingly be within 500 feet of any place" or reside anywhere “located within 1,000 feet of any 5 6 place” that is “designed primarily for use by or for children.” SB 471 §§ 8(3), (4). Of the various 7 movement restrictions, the two most significant ones were those requiring Tier 3 offenders to live 8 at least 500 or 1,000 feet away from areas where children could congregate. 9 In 2008, the District of Nevada held that the retroactive application of both AB 579 and 10 S.B. 471 was unconstitutional. American Civil Liberties Union of Nevada v. Cortez-Masto, 719 11 12 F. Supp. 1258, 1260 (D. Nev. 2008). The Ninth Circuit reversed the District Court’s finding as to 13 AB 579, but found the issue of residency and movement restrictions under SB 471 moot in light 14 of the State of Nevada’s judicial admission that they would not retroactively impose SB 471’s 15 requirements. Am. Civil Liberties Union of Nevada v. Cortez-Masto, 670 F.3d 1046 (9th Cir. 16 2012). 17 18 On remand, at a status conference, Plaintiffs raised the issue that they continued to be 19 subjected to identical movement restrictions. Defendants responded that they were exercising their 20 general authority under NRS 213.1243 rather than the specific restrictions outlined in SB 471, and 21 identified other statutes that it claimed gave it the authority to impose retroactive movement and 22 residency restrictions. The District Court determined that this issue was outside the scope of its 23 24 earlier decision and encouraged Plaintiffs to file a new suit. Plaintiffs subsequently filed that new 25 suit, this case, on August 25, 2015. In 2016, the Nevada Supreme Court ruled that the Parole Board 26 could not impose conditions beyond those listed in NRS 213.1243. McNeill v. State, 375 P.3d 27 28 1 1022, 1025 (Nev. 2016). In response to McNeil, the Board issued a new order that sought to ensure 2 that no restrictions were placed on offenders that was not already explicitly enumerated in McNeill. 3 In her deposition testimony Defendant Natalie Wood, Chief of Parole and Probation for 4 the Division of Parole and Probation with the Department of Public Safety for the State of Nevada, 5 6 testified that the Department will apply movement and residency restrictions to individuals whose 7 crimes occurred prior to the relevant NRS 213.1243 amendments if it is determined to be in the 8 public’s interest for safety reasons. 9 Plaintiffs now seek a declaration from this Court that the retroactive application of 10 movement and residency restrictions not explicitly enumerated in NRS 213.1243 at the time of 11 12 their criminal offense is unconstitutional, and an injunction preventing Defendants from 13 continuing to impose such restrictions. 14 b. Disputed Facts 15 The Court finds there to be no disputed facts. 16 IV. LEGAL STANDARD 17 18 Summary judgment is appropriate when the pleadings, depositions, answers to 19 interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 20 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 21 Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). When considering 22 the propriety of summary judgment, the court views all facts and draws all inferences in the light 23 24 most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 25 2014). If the movant has carried its burden, the nonmoving party “must do more than simply show 26 that there is some metaphysical doubt as to the material facts …. Where the record taken as a whole 27 could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 28 1 trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks 2 omitted). 3 It is improper for the Court to resolve genuine factual disputes or make credibility 4 determinations at the summary judgment stage. Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th 5 6 Cir. 2017) (citations omitted). 7 V. DISCUSSION 8 The Ex Post Facto Clause of the Constitution prohibits state and federal governments from 9 “retroactively imposing additional punishments for commission of a criminal offense.” Am. Civil 10 Liberties Union v. Masto, 670 F.3d 1046, 1052 (9th Cir. 2012) (citing U.S. Const. art. I, §§ 9, cl. 11 3). The Ex Post Facto Clause applies to laws, which means the Clause “reaches every form in 12 which the legislative power of a state is exerted,” including a “a regulation or order.”’ Himes v. 13 Thompson, 336 F.3d 848, 854 (9th Cir. 2003); Coles v.Bisbee, 422 P.3d 718, 720 (Nev. 2018). To 14 determine whether a law or regulation violates the Ex Post Facto Clause, the Court employs a two- 15 step analysis. Himes, 336 F.3d at 854. First, the Court examines whether the regulation has been 16 applied retroactively to the criminal offenders. Id. In determining retroactivity, the critical question 17 is whether the “regulations change the legal consequences of acts completed before the effective 18 date of the regulations.” Id. (citing Weaver, 450 U.S. 24, 31 (1981). Thus, retroactivity is measured 19 from date of the criminal offense, rather than date of conviction. Masto, 670 F.3d at 1062. Second, 20 the Court determines whether the regulations create a “sufficient risk” of increasing the 21 punishment attached to the offender’s crimes. Himes, 336 F.3d at 855. 22 23 The Court finds that the movement and residency restrictions, to the extent that they are 24 applied to Plaintiffs1 who committed their criminal offenses before movement and residency 25 restrictions were added to NRS 213.1243, are retroactive. Defendant Natalie Wood states in her 26 deposition that such actions are not retroactive, because typically such restrictions will only apply 27 if an individual on lifetime supervision seeks to move to a new residence for which the rules 28 1 Some plaintiffs committed their criminal offenses after October 1, 2007. 1 requiring the 500 or 1000 feet restriction may apply. But this is still retroactive application—the 2 offender is a facing a legal consequence that would not have applied on the date that their criminal 3 offense was committed. Furthermore, Defendants have offered no evidence of any statutory 4 authority to impose such restrictions retroactively. Defendants were specifically asked during oral 5 argument to identify such statutory authority, but no statutes were provided.2 The Parole Board 6 does not have unbridled authority to impose additional conditions absent clear legislative authority 7 and guidelines to do so, as the Nevada Supreme Court explicitly found in McNeill. 375 P.3d at 8 1026. The restrictions are retroactive. 9 The Court also finds that the restrictions increase the risk of additional punishment to 10 plaintiffs for their crimes. The Ninth Circuit has articulated the following factors for the Court to 11 consider when determining whether regulations are punitive: 12

13 “When classifying a measure as either punitive or civil, courts generally consider the 14 following factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into 15 play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it 16 applies is already a crime; (6) whether an alternative purpose to which it may rationally be 17 connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.” Maciel v. Cate, 731 F.3d 928, 937 (9th Cir. 2013). 18 19 The Ninth Circuit has not explicitly ruled on whether or not movement and residency restrictions 20 for sex offenders are punitive. In Maciel, the Ninth Circuit found that the question was 21 insufficiently “clearly established” for purposes of granting a writ of habeas corpus. Id. at 937. In 22 light of the lack of clear guidance from the Ninth Circuit, the Court will proceed with its own 23 analysis under Maciel. 24 First, residency restrictions are undoubtedly a restraint on a person’s liberty. Residency 25 restrictions can “impose significant—even extreme—restrictions on [a person’s liberty].” United 26 States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012). The Ninth Circuit has previously recognized 27 28 2 Defendants had previously argued that they had statutory authority under NRS 213.1245, NRS 213.110, and NRS 213.12175 but abandoned that argument in the briefs on this motion. 1 that restrictions such as the ones at issue here, which allow the Board to restrict people from living 2 within 1,000 feet of schools or other places where children may be present, subject offenders to a 3 state of “constant eviction,” “because there are no guarantees a school or daycare will not open up 4 within 1,000 feet of anywhere.” United States v. Rudd, 662 F.3d 1257, 1264 (9th Cir. 2011). 5 The Court does not find that residency restrictions are per se a historical form of 6 punishment. The Eighth Circuit examined this factor in the context of residency restrictions and 7 noted that residency restrictions are distinct from historical forms of geographical restrictions such 8 as banishment, and because such residency restrictions are new and somewhat unique, could not 9 be considered a traditional kind of punishment. Doe v. Miller, 405 F.3d 700, 719–20 (8th Cir. 10 2005). 11 Next, Nevada’s residency restrictions apply only to people who are considered Tier 3 12 offenders, which includes crimes for sexual abuse, lewdness or luring of a child with mental 13 illness.3 All of those offenses require scienter, which leans toward a finding that the restrictions 14 are punitive. Kansas v. Hendricks, 521 U.S. 346, 362 (1997). 15 The next factor the Court considers is whether the restrictions meet the traditional twin 16 aims of punishment: retribution and deterrence. The Court finds that the restrictions do have a 17 deterrent effect, as they significantly reduce the liberty of those who are subject to them and are 18 directed toward reducing the possibility of future similar crimes. The Court cannot say that the 19 restrictions are clearly retributive. Defendants’ witness, Natalie Wood of the Department of Public 20 Safety, continually categorizes the movement and residency restrictions as a matter of public safety 21 in her deposition. The Court finds that the restriction is both retributive and regulatory. Like the 22 Eighth Circuit in Doe, the Court finds that “[w]hile any restraint or requirement imposed on those 23 who commit crimes is at least potentially retributive in effect, the [movement restriction] is 24 consistent with the legislature’s regulatory objective of protecting the health and safety of 25 children.” Doe, 405 F.3d at 720. The behavior to which the restrictions apply is already a crime, 26 which leans toward a finding that the act is punitive. Hatton v. Bonner, 356 F.3d 955, 965 – 66 27 (9th Cir. 2004). 28 3 The requirements for being deemed a Tier 3 offender are at NRS 213.1243(5). 1 Whether there is a rational purpose for the movement restrictions, and whether those 2 restrictions are excessive in relation to the purpose for which they are designed, is the most 3 important factor to consider. Smith v. Doe, 538 U.S. 84, 102 (2003). There is a rational purpose 4 for the movement restrictions,—the restrictions are related to the rational purpose of protecting 5 children from predation by sex offenders. When determining whether the restrictions are 6 excessive, the Court must consider whether the regulation is “[un]reasonable in light of [its] 7 nonpunitive objective.” Smith, 538 U.S. at 105. The Court finds that the restrictions are 8 unreasonable in light of their purported nonpunitive objective. The restrictions do not appear to 9 make any individualized assessment of recidivism and instead appear solely concerned with an 10 overbroad conception of public safety. There is no differentiation between the sites where children 11 could congregate; rather, it is a broad category with no clear public demarcation leading to an 12 overly broad and expansive restriction—“any place” that is “designed primarily for use by or for 13 children.” While this does not necessarily make such measures excessive, they are a factor that the 14 Court may consider, and the Court finds that they are excessive in this case. See Doe v. Miami- 15 Dade County, Florida, 846 F.3d 1180, 1185 – 86 (11th Cir. 2017) (finding plaintiffs had plausibly 16 pled Ex Post Facto challenge to residency restrictions that were categorical and did not account 17 for individualized risk). 18 Accordingly, because the Court finds that the movement and residency restrictions are both 19 retroactive and punitive, the Court finds that the use of such movement and residency restrictions 20 is unconstitutional. 21 Defendants spend the majority of their briefing addressing the issue of qualified and 22 discretionary immunity. But qualified immunity is not available for prospective injunctive relief. 23 See Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 2012) (“Qualified immunity is only an 24 immunity from a suit for money damages, and does not provide immunity from a suit seeking 25 declaratory or injunctive relief.”). While the Nevada Supreme Court has not explicitly held the 26 same for discretionary immunity, the Ninth Circuit has held that discretionary function immunity 27 does not apply to violations of the Constitution or the False Tort Claims Act, from which Nevada’s 28 discretionary act immunity statute is derived. See Nurse v. United States, 226 F.3d 996, 1002 (9th 1 Cir. 2000) (noting that even though generally policies are subject to discretionary act immunity, 2 “governmental conduct cannot be discretionary if it violates a legal mandate”); Martinez v. 3 Maruszczack, 168 P.3d 720, 727 (Nev. 2007). 4 Defendants also argue that the only cognizable harm to Plaintiffs that could have occurred 5 would necessarily only have happened after 2016, when the Nevada Supreme Court decided 6 McNeil, because before then Defendants did not have notice that their actions in imposing these 7 movement and residency restrictions were unconstitutional. But such a consideration is irrelevant 8 to what Plaintiffs seek from this partial summary judgment motion, which is declaratory and 9 injunctive relief that prevents the current and future application of such restrictions to Plaintiffs. 10 Finally, the Court finds that Defendants are judicially estopped in this case. “Judicial 11 estoppel generally prevents a party from prevailing in one phase of a case on an argument and then 12 relying on a contradictory argument to prevail in another phase.” Casa del Caffe Vergnano S.P.A. 13 v. ItalFlavors, LLC, 816 F.3d 1208, 1213 (9th Cir. 2016). Judicial estoppel may apply when 1) a 14 party’s later position is clearly inconsistent with an earlier position, 2) the party succeeded in 15 persuading a court to accept a party’s earlier position, and 3) the party seeking to assert an 16 inconsistent position would derive an unfair advantage or impose an unfair detriment on the 17 opposing party if not estopped. New Hampshire v. Maine, 532 U.S. 742, 751 (2001). 18 Here, the Ninth Circuit refused to rule on the question of whether the movement and 19 residency restrictions under SB 471 applied retroactively based on Defendants’ sworn admission 20 that they would not apply the restrictions retroactively. When finding the issue moot, the Ninth 21 Circuit explicitly noted that, “[t]he State represented, as a matter of law, that it had no authority 22 under SB 471 to apply its movement and residency restrictions retroactively and that it will 23 ‘absolutely’ not do so in the future.” Masto, 670 F.3d at 1064–65. Defendants then proceeded to 24 do exactly what it had told the Ninth Circuit it would not do and applied the residency restrictions 25 to Plaintiffs, with the flimsy justification that Defendants no longer applied the restrictions under 26 the ambit of SB 471, but under other statutes. Then, after Plaintiffs pointed out the fact that the 27 statutes Defendants cited did not actually give Defendants the authority to implement the 28 movement and residency restrictions retroactively, Defendants asserted that they applied the 1 | restrictions pursuant to the Board’s general authority. The Nevada Supreme Court subsequently 2 rejected that argument in McNeil. The Court finds that Defendants’ representation to the Ninth 3 | Circuit that it would not apply the residency restrictions of SB 471 to Plaintiffs was a position from which Defendants were judicially estopped from changing. Defendants convinced the Ninth 5 | Circuit to deem the issue moot based on their representations that they would not apply the 6 | restrictions to Plaintiffs. Their change in position was undisputedly to the detriment of Plaintiffs, 7 | who were deprived of an opportunity for the Ninth Circuit to squarely address the issue based on 8 | Defendants’ representations. 9 VI. CONCLUSION 10 IT IS THEREFORE ORDERED that Plaintiffs’ Second Motion for Partial Summary 11.) Judgment (ECF No. 112) is GRANTED. The Court declares that the application of movement and 12) residency restrictions not specifically set forth in NRS 213.1243 to any plaintiff whose last 13 criminal offense predated October 1, 2007 violates the Ex Post Facto Clause and is therefore 14) unconstitutional. 15 IT IS FURTHER ORDERED that Defendants are permanently enjoined from 16) retroactively enforcing any condition of lifetime supervision not specifically set forth in NRS 17 | 213.1243 before October 1, 2007 to any plaintiffs who meet the following conditions: 18 1. The plaintiff's last relevant criminal offense occurred before October 1, 19 2007. 20 2. A “relevant” criminal offense is any offense that would trigger the 21 movement and residency restrictions of SB 471. 22 IT IS FURTHER ORDERED that Defendants’ Motion for Supplemental Briefing (ECF 23 | NO. 134) is GRANTED. Defendants shall file a motion for summary judgment on qualified immunity by October 30, 2020. Plaintiffs may file a response by November 13, 2020. Defendants 25 | may reply by November 20, 2020. 26 DATED: September 29, 2020. on cmt AS ‘ARE, II 28 UNITED STATES DISTRICT JUDGE

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