Douglas Warenback v. Aaron Ford

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 30, 2023
• Docket: 21-16964
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 30 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS HARRY WARENBACK, No. 21-16964

Plaintiff-Appellant, D.C. No. 2:20-cv-01682-KJD-VCF v.

AARON FORD, Attorney General for the MEMORANDUM* State of Nevada,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted October 30, 2023** San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Douglas Warenback appeals from the district court’s dismissal of his civil

rights action alleging that Nevada’s in-person sex offender registration statute is an

ex post facto law. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). de novo. Shulman v. Kaplan, 58 F.4th 404, 407 (9th Cir. 2023) (standing); Does v.

Wasden, 982 F.3d 784, 790 (9th Cir. 2020) (dismissal for failure to state a claim).

We affirm.

The Nevada Attorney General argues that Warenback cannot establish

constitutional standing, specifically, the requirement of redressability, because the

Attorney General has no authority to enjoin the state law. However, the Attorney

General is entitled to notice of this action under Federal Rule of Civil Procedure

5.1(a)(2) and has the authority to defend the state’s interests in civil actions in

federal court under Nevada Revised Statutes § 228.170. In the alternative to an

injunction, Warenback specifically sought a declaration that in-person registration

violates the Ex Post Facto Clause of the United States Constitution. A declaratory

judgment that the challenged law is unconstitutional would make the law null and

void and provide redressability. Catholic League for Religious and C.R. v. City

and Cnty. of San Francisco, 624 F.3d 1043, 1053 (9th Cir. 2010) (en banc).

The district court did not err in dismissing the First Amended Complaint.

We have consistently held that in-person registration, including Nevada’s in-

person registration, does not violate the Ex Post Facto Clause. See ACLU of

Nevada v. Masto, 670 F.3d 1046, 1058 (9th Cir. 2012) (holding that Nevada’s

amended registration law, which added in-person registration, does not violate the

2 Ex Post Facto Clause); Litmon v. Harris, 768 F.3d 1237, 1242-43 (9th Cir. 2014)

(holding that California’s in-person 90-day lifetime registration for a sexually

violent predators does not violate the Ex Post Facto Clause); Hatton v. Bonner, 356

F.3d 955, 964 (9th Cir. 2004) (holding that the requirement that an individual

register in person does not turn a registration law into an affirmative disability or

restraint). Warenback’s allegation that he had to register more often until he

secured a residence does not tip the scales to make the effect of registration

punitive. As we noted in Masto, Warenback was free to move from one

jurisdiction to another. See Masto, 670 F.3d at 1056 (holding that the Nevada law

“imposes no physical restraint . . . It does not limit the activities that registrants

may pursue or limit registrants’ ability to change jobs or residences”). Like any

other registrant who moves to another jurisdiction, Warenback was required to

register in person when he moved to the new jurisdiction. As a matter of law,

Warenback cannot state a claim.

AFFIRMED.