Beley v. City of Chicago, No. 17-1449 (7th Cir. 2018)
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Beley and Montgomery represent a class of sex offenders who allege that 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. Beley and Montgomery, however, sued under 42 U.S.C. 1983, alleging violations of their right to procedural due process because the city used constitutionally inadequate procedures to determine whether they had satisfied SORA’s registration requirements. The Seventh Circuit rejected the claim. 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. This is not a cognizable liberty interest, so the plaintiffs have no due process claim. The court noted they do not complain that the city incarcerated them; nor do they seek to enjoin the city from incarcerating them in the future. 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,
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1449 MICHAEL BELEY, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cv-09714 —John Robert Blakey, Judge. ____________________ ARGUED JANUARY 17, 2018 — DECIDED AUGUST 23, 2018 ____________________ Before FLAUM, EASTERBROOK, and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Michael Beley and Douglas Montgomery represent a class of sex o enders who allege that the City of Chicago refused to register them under the Illinois Sex O ender 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 plainti s, 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 plainti s have no due process claim. I. To comply with SORA, any sex o ender 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 o ender must provide law enforcement with comprehensive biographical information, including identification and proof of address. Id. at 150/3(c)(5). If the o ender 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 o cer is not obliged to register all comers. Before registering any o ender, the o cer must determine whether the o ender has complied with SORA’s requirements—if he has, the o cer 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 o ender information website. See id. at 150/10(a), 5/5–4.5–40(a), & 152/115. An o ender 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 o ender 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 o cer that he was homeless, the o cer 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 o ender, 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 o cer refused to register him, however, because the address was in a location that was o -limits to child sex o enders. Shortly after this third attempt, the state listed Beley as 4 No. 17-1449 “non-compliant” on the Illinois State Police sex o ender 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 o enders, Beley found himself back on the street. He has since registered on a weekly basis as an o ender 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 O ender 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 plainti s didn’t describe what process the City should have provided; at oral argument before us, they suggested having a supervisor available to review an o cer’s determination that an o ender failed to satisfy the requirements for registration. The district court entered summary judgment for the City. It agreed with the plainti s that a homeless sex o ender 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 o ender’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 o cers only if the o cers 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 plainti s had arguably shown “occasional lapses of judgment” or “individual misconduct by police o cers” 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 a rm the district court, though on a di erent 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 plainti s suggest several theories for why the City’s intake o cers deprived them of a cognizable liberty interest. All of them fail. 3 Other district courts have also accepted this argument. See, e.g., John- son 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 plainti s argue that they have the right to register as sex o enders. 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 o enders; it is not, as the plainti s contend, an aspect of their liberty. The next argument is better, though also unsuccessful. The plainti s 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 plainti s 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 o enders 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 plainti must demonstrate that … he su ered a loss of that interest amounting to a deprivation.”). The state action relevant here—the intake o cers’ refusal to register the plainti s—did not deprive the plainti s of their interest in freedom from bodily restraint, so the plainti s cannot successfully argue that the loss of that interest triggered the Clause. The plainti s must ground their procedural due process claim in an interest that the o cers 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 plainti s o er 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 plainti 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 plainti s 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 plainti s’ situation stands in contrast to that of the plainti s in Schepers v. Indiana Department of Correction, which the plainti s repeatedly—and mistakenly—cite as an analogous case. 691 F.3d 909 (7th Cir. 2012). In Schepers, we held that plainti s lost liberty when they were erroneously identified as “sexually violent predators” on the state’s online o ender registry. Id. at 911–12. That listing imposed both restrictions and obligations on the plainti s—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, plainti s were subject to similar restraints because they were sex o enders; SORA did not impose new restraints on them because they were “noncompliant” sex o enders. The plainti s 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 su ered 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 su ered 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 plainti s 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-o ender website.5 But the City’s intake o cers had no obligation to provide process when they determined that the plainti s were ineligible to register. *** Maybe the plainti s 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).
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