Date: 08-23-2018

Case Style:

Case Number: 17-1449

Judge: Bartlett

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: Joel Flaxman, Ken Flaxman, , Tom Morrissey

Defendant's Attorney: Rebecca Alfert Hirsch, Andrew S. Mine, Rachel Dana Powell, Margaret R. Sobota, Mary Eileen Cunniff Wells

Description: Michael Beley and Douglas Montgomery
represent a class of sex offenders who allege that the
City of Chicago refused to register them under the Illinois Sex
Offender Registration Act (SORA) because they could not produce
proof of address. If true, that might have violated SORA,
because the Act provides a mechanism for registering the
homeless. Yet Beley and Montgomery contend that it violated
2 No. 17-1449
their right to procedural due process—according to the plaintiffs,
the City used constitutionally inadequate procedures to
determine whether they had satisfied SORA’s registration requirements.
But the Fourteenth Amendment guarantees due process
only when the State deprives someone of life, liberty, or property.
Beley and Montgomery insist that the City deprived
them of liberty: they assert a right to register under SORA. For
reasons we explain below, however, this is not a cognizable
liberty interest. And without a cognizable liberty interest, the
plaintiffs have no due process claim.
I.
To comply with SORA, any sex offender residing in Chicago
for three days or more must register at the headquarters
of the Chicago Police Department.1 730 ILCS 150/3(a)(1). Registration
requires more than just showing up. The offender
must provide law enforcement with comprehensive biographical
information, including identification and proof of
address. Id. at 150/3(c)(5). If the offender has no fixed residence,
he must report weekly to the Department, which documents
all the locations where the person has stayed in the
past seven days. Id. at 150/3(a).
An intake officer is not obliged to register all comers. Before
registering any offender, the officer must determine
whether the offender has complied with SORA’s requirements—
if he has, the officer registers him; if he hasn’t, the of-
1 The statute gives the superintendent of each city’s police department
the authority to designate the place of registration, and the Chicago Superintendent
has chosen the headquarters of the Department.
No. 17-1449 3
ficer turns him away. The Department maintains a daily registration
log, which documents each registration attempt.
Failing to comply with SORA is a felony punishable by two to
five years’ imprisonment and may result in a “non-compliant”
listing on the Illinois sex offender information website.
See id. at 150/10(a), 5/5–4.5–40(a), & 152/115. An offender convicted
of violating SORA must serve a minimum jail term of
seven days and pay a minimum fine of $500 in addition to any
other penalty imposed. Id. at 150/10(a).
Douglas Montgomery is a sex offender who tried unsuccessfully
to comply with SORA. After he completed a twentyyear
sentence for aggravated criminal sexual assault, he reported
to the Department to register. He was turned away,
however, because he produced neither an identification card
nor proof of a fixed address. When Montgomery told the intake
officer that he was homeless, the officer responded that
the Department was “not registering homeless people right
now.” Nearly seven months later, after arresting Montgomery
for violating several ordinances, Chicago police discovered
that he had failed to register under SORA. They charged him
with that violation, though he was ultimately acquitted.
Michael Beley, another homeless sex offender, had a similar
experience. He tried to register after he was released from
prison, but he was turned away because he lacked proof of
address. Four days later, he tried again and was rejected for
the same reason. On his third attempt, Beley tried to register
with an identification card bearing his son’s address. The intake
officer refused to register him, however, because the address
was in a location that was off-limits to child sex offenders.
Shortly after this third attempt, the state listed Beley as
4 No. 17-1449
“non-compliant” on the Illinois State Police sex offender website.
Beley then secured a spot at a homeless shelter, and he
was able to register with an Illinois identification card listing
the shelter as his address. But when the shelter stopped accepting
child sex offenders, Beley found himself back on the
street. He has since registered on a weekly basis as an offender
without a fixed residence.
Beley and Montgomery filed a class action against the City
on behalf of “[a]ll persons who attempted to register under
the Illinois Sex Offender Registration Act with the City of Chicago
[during a defined period] and who were not permitted
to register because they were homeless.” They asserted a
claim under 42 U.S.C. § 1983, alleging that the City’s policy of
refusing to register the homeless violated the Due Process
Clause of the Fourteenth Amendment.2 The plaintiffs didn’t
describe what process the City should have provided; at oral
argument before us, they suggested having a supervisor
available to review an officer’s determination that an offender
failed to satisfy the requirements for registration.
The district court entered summary judgment for the City.
It agreed with the plaintiffs that a homeless sex offender has
a protected liberty interest in the ability to register under
2 Their complaint described the right to register under SORA as a
property right, but at some point during the district court proceedings,
they shifted to describing it as a liberty interest. Before us, they treat it only
as a liberty interest; thus, we address only that argument. Their complaint
also asserted a state-law claim under SORA, but they abandoned that
claim at summary judgment.
No. 17-1449 5
SORA.3 Beley v. City of Chicago, 2015 WL 684519, at *2 (N.D. Ill.
Feb. 17, 2015) (“[A] homeless sex offender’s … interest in being
able to register” is a “protected liberty interest” because it
“jeopardizes their significant interest in freedom from liability
and incarceration.”). But a municipality is liable for the
constitutional violations of its officers only if the officers act
pursuant to a city policy or custom. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). The district court said that the
plaintiffs had arguably shown “occasional lapses of judgment”
or “individual misconduct by police officers” but not
that the City had a policy or custom of turning the homeless
away. Beley v. City of Chicago, 2017 WL 770964, *10 (N.D. Ill.
Feb. 28, 2017). It thus held that the City was entitled to judgment.
We affirm the district court, though on a different ground.
The City argues before us, as it did below, that the ability to
register under SORA is not a cognizable liberty interest. We
agree.
II.
The Fourteenth Amendment’s guarantee of due process is
triggered when the state deprives a person of “life, liberty, or
property.” U.S. CONST. amend. XIV, § 1. While their arguments
are not particularly clear, the plaintiffs suggest several
theories for why the City’s intake officers deprived them of a
cognizable liberty interest. All of them fail.
3 Other district courts have also accepted this argument. See, e.g., Johnson
v. City of Chicago, 2016 WL 5720388, at *2 (N.D. Ill. Sept. 30, 2016); Derfus
v. City of Chicago, 42 F. Supp. 3d 888, 899 (N.D. Ill. 2014); Saiger v. City
of Chicago, 37 F. Supp. 3d 979, 984 (N.D. Ill. 2014); Johnson v. City of Chicago,
2013 WL 3811545, at *9 (N.D. Ill. July 22, 2013).
6 No. 17-1449
The first is the weakest: the plaintiffs argue that they have
the right to register as sex offenders. But saying that one has
the right to register under SORA is like saying that one has
the right to serve a sentence or the right to pay taxes. SORA’s
registration requirement burdens sex offenders; it is not, as
the plaintiffs contend, an aspect of their liberty.
The next argument is better, though also unsuccessful. The
plaintiffs suggest that their undisputed liberty interest in freedom
from bodily restraint triggered the Clause. To be clear,
they do not complain that the City incarcerated them; nor do
they seek to enjoin the City from incarcerating them in the future.
4 See, e.g., Ex Parte Young, 209 U.S. 123 (1908) (permitting
plaintiffs to sue for an injunction on the ground that enforcement
of the statute would violate procedural due process).
Their theory seems to be that the State must provide due process
not only for actions that take a cognizable liberty interest,
but also for actions that create the potential for a later loss of
that interest. In other words, registration is protected because
it is a liberty interest, once removed. If sex offenders don’t register,
the State might imprison them, and imprisonment
would restrain their liberty. To protect their interest in freedom
from bodily restraint, they reason, the Fourteenth
Amendment must also require the State to provide procedural
protection for any antecedent action that threatens that
interest.
4 This case does not present a question of ripeness. The plaintiffs are
not suing to stop a future deprivation of liberty without due process; they
are suing to remedy what they characterize as an already completed violation.
No. 17-1449 7
By its own terms, however, the Fourteenth Amendment
guarantees procedural protection for state action that deprives
someone of a cognizable interest in life, liberty, or property,
not for state action that jeopardizes that interest. U.S. CONST.
amend. XIV, § 1 (“[N]or shall any state deprive any person of
life, liberty, or property, without due process of law.”); see also
LaBella Winnetka v. Village of Winnetka, 628 F.3d 937, 943–44
(7th Cir. 2010) (“To state a Fourteenth Amendment claim for
the deprivation of a property interest without due process, a
plaintiff must demonstrate that … he suffered a loss of that
interest amounting to a deprivation.”). The state action relevant
here—the intake officers’ refusal to register the plaintiffs—
did not deprive the plaintiffs of their interest in freedom
from bodily restraint, so the plaintiffs cannot successfully argue
that the loss of that interest triggered the Clause. The
plaintiffs must ground their procedural due process claim in
an interest that the officers actually took.
That brings us to their next theory: that freedom from the
possibility of incarceration is a cognizable liberty interest in
its own right. The plaintiffs offer no support for this position.
Certainly, the Fourteenth Amendment does not protect a person’s
freedom from fear of apprehension. Paul v. Davis, 424
U.S. 693, 695–97 (1976) (police did not deprive plaintiff of liberty
by inaccurately identifying him as an “active shoplifter,”
even though the designation “would inhibit him from entering
business establishments for fear of being suspected of
shoplifting and possibly apprehended”). And the plaintiffs
have not identified any other way in which the possibility of
incarceration burdens them. It does not impose additional restrictions
on where they can live, where they can work, or
what they can do; nor does it saddle them with additional obligations
like reporting requirements. In this respect, the
8 No. 17-1449
plaintiffs’ situation stands in contrast to that of the plaintiffs
in Schepers v. Indiana Department of Correction, which the plaintiffs
repeatedly—and mistakenly—cite as an analogous case.
691 F.3d 909 (7th Cir. 2012). In Schepers, we held that plaintiffs
lost liberty when they were erroneously identified as “sexually
violent predators” on the state’s online offender registry.
Id. at 911–12. That listing imposed both restrictions and
obligations on the plaintiffs—for example, those on the registry
could not live within 1,000 feet of a school, and they had
to report in person to local law enforcement at regular intervals.
Id. at 912. In this case, however, plaintiffs were subject to
similar restraints because they were sex offenders; SORA did
not impose new restraints on them because they were “noncompliant”
sex offenders.
The plaintiffs float one last possibility. Even if the risk of
losing liberty does not trigger the Due Process Clause, both
Montgomery and Beley actually lost liberty for failing to register.
Montgomery was charged with violating SORA, and Beley
alleges that he suffered reputational harm when the State
listed him as “non-compliant” on its website. But Montgomery
and Beley do not represent a class defined as “all homeless
people denied registration under SORA who were subsequently
arrested or listed as non-compliant on the State’s
website.” They represent a class of “[a]ll persons … who were
not permitted to register because they were homeless.” They
presumably defined the injury this way to make a class action
possible—Beley and Montgomery appear to be the only members
of the class who suffered consequences for failing to register.
See Fed. R. Civ. P. 23(a)(3) (The court may certify a class
only if “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.”). Having chosen
No. 17-1449 9
to define the deprivation as the denial of registration, however,
the plaintiffs are stuck with that theory. The City owed
Montgomery due process when it arrested him, and Beley
could at least try to argue that the State deprived him of liberty
by listing him as “non-compliant” on the sex-offender
website.5 But the City’s intake officers had no obligation to
provide process when they determined that the plaintiffs
were ineligible to register.
***
Maybe the plaintiffs have a claim that the City’s intake officers
violated SORA by declining to register them. But they
cannot assert a claim for a state-law violation under 18 U.S.C.
§ 1983. Snowden v. Hughes, 321 U.S. 1, 11 (1944) (“Mere violation
of a state statute does not infringe the federal Constitution.”).
Because they have not alleged that the City deprived
them of a cognizable liberty interest, the judgment of the district
court is AFFIRMED.
5 “Reputational harm” is not a cognizable liberty interest unless it is
accompanied by an alteration in legal status or rights. Paul, 424 U.S. at 712.
Beley has restrictions and obligations, including the obligation to register,
because he is a sex offender. But he has not identified any additional restrictions
or obligations that accompany his listing as “non-compliant” on
the state-sponsored website. Cf. Schepers, 691 F.3d at 911–12 (plaintiffs erroneously
labeled as “sexually violent predators” on the sex offender registry
stated a due process claim because being listed on the registry imposed
“a variety of obligations and restrictions” that would not have otherwise
applied to them).

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: This may be good law but it is bad public policy.