IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISRICT OF OHIO
WESTERN DIVISION
JOHN DOE,
:
Plaintiff,
vs.
C. PATRICK CROWLEY, et al.
:
Case No. 1:09CV108
:
Judge Barrett
:
:
Defendants.
:
CORRECTED BRIEF OF PLAINTIFF
/s/ David
David A.
A. Singleton
Singleton
/s/
David A.
A. Singleton,
Singleton, #007456
#007456
David
Trial
Attorney
for
Plaintiff
Trial Attorney for Plaintiff
Margie Slagle, #0082217
Ohio Justice & Policy Center
215 E. 9th Street, Suite 601
Cincinnati, Ohio 45202
Ohio Justice & Policy Center
513-421-1108
617 Vine Street,
Suite 1309
513-562-3200
(fax)
Cincinnati,
Ohio
45202
dsingleton@ohiojpc.org
513-421-1108
mslagle@ohiojpc.org
513-562-3200 (fax)
dsingleton@ohiojpc.
Zachary A. Corbin*
Legal Intern
Co-counsel for Plaintiff
Ohio Justice & Policy Center
215 E. 9th Street, Suite 601
Cincinnati, Ohio 45202
513-421-1108
513-562-3200 (fax)
zcorbin@ohiojpc.org
*Practicing pursuant to Local Rule 83.6
Robert F. Laufman (need bar number)
Co-counsel for Plaintiff
MEMORANDUM OF LAW
I.
INTRODUCTION
Table of Contents
I. Preliminary Statement ................................................................................................................................. 1
II. Statement of the Case ................................................................................................................................... 1
A. Procedural Posture ................................................................................................................................ 1
B. Statement of the Facts........................................................................................................................... 2
1. Mr. Doe..................................................................................................................................................... 2
2. SORNA ...................................................................................................................................................... 2
III. This Court Should Issue a Permanent Injunction Prohibiting the Federal Probation
Officials from Forcing Mr. Doe to Register for a State Conviction .. Error! Bookmark not
defined.
Authorities
Cases
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987) ...................................... 4
Cohens v. Virginia, 6 Wheat. 264, 426, 428, (1821) ...................................................................... 4
Layton v. Elder, 143 F.3d 469, 472 (8th Cir.1998) ......................................................................... 4
New York v. U.S., 505 U.S. 144, 149 (1992) .................................................................................. 5
New York, 505 U.S. at 170 .............................................................................................................. 7
Printz v. United States, 521 U.S. 898, 935 (1997) .......................................................................... 8
South Dakota v. Dole, 483 U.S. 203, 206-207 (1987) .................................................................... 5
State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718 .................................. 3
U.S. v. Lopez, 514 U.S. 549 ............................................................................................................ 7
U.S. v. Morrison, 529 U.S. 598, 617-618 (2000)............................................................................ 4
United States v. Lopez, 514 U.S. 549, 566 (1995) .......................................................................... 4
A. Mr. Doe succeeds on the merits because federal probation officials have no
power to impose a penalty on Mr. Doe for a 15 year old state criminal
conviction .................................................................................................................................................. 4
Authorities
Cases
Cohens v. Virginia, 6 Wheat. 264, (1821) ................................................................................................. 4
U.S. v. Morrison, 529 U.S. 598, 617-618 (2000)..................................................................................... 4
U.S. v. Lopez, 514 U.S. 549, 566 (1995)..................................................................................................... 4
i
B. Mr. Doe succeeds on the merits because Congress did not intend for SORNA
to be enforced against individuals like Mr. Doe, who have no state duty to
register for the state offense. ............................................................................................................. 5
Authorities
Cases
New York v. U.S., 505 U.S. 144, 149 (1992) ............................................................................................. 5
South Dakota v. Dole, 483 U.S. 203, 206-207 (1987) .......................................................................... 5
Statutes
18 U.S.C. § 2250 ................................................................................................................................................. 5
28 C.F.R. § 72.3 .................................................................................................................................................. 5
42 U.S.C. § 16913(d) ........................................................................................................................................ 5
42 U.S.C. § 16925 .............................................................................................................................................. 4
72 FR 8894-01 ................................................................................................................................................... 5
C. Mr. Doe succeeds on the merits because forcing Mr. Doe to register as a sex
offender for his state offense, when he has no duty to do so under state law,
violates the Tenth Amendment of the United States Constitution. ..................................... 7
Authorities
Constitutional Provisions
U.S. Const., amend. X..................................................................................................................... 7
Cases
New York v. U.S., 505 U.S. 144, 149 (1992) .................................................................................... 6, 8, 9
Printz v. U.S., 521 U.S. 898, 935 (1997) ............................................................................................... 7, 9
U.S. v. Lopez, 514 U.S. 549, 566 (1995)................................................................................................ 7, 8
Statutes
28 C.F.R. § 72.3 ................................................................................................................................................. 8
D. Mr. Doe Will Suffer Irreparable Harm Absent Injunctive Relief.Error! Bookmark not defined.
Authorities
Cases
Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (3d Cir.1980) .................... 10
ii
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992) ..................................................................................... 11
Doe v. District Attorney, 932 A.2d 552 (2007) .................................................................................... 11
Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................................ 11
Griswold v. Connecticut, 381 U.S. 479 (1965) ..................................................................................... 10
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797(3d Cir. 1989) ............................. 10
Lambert v. Hartman, 517 F.3d 433 (6th Cir. 2008) .......................................................................... 10
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................................ 10
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ....................................................................... 10
E. The Injury Mr. Doe Would Suffer if an Injunction is not Granted, Greatly
Outweighs Any Harm Defendants Would Suffer. .........Error! Bookmark not defined.
F. The Public Interest Favors the Granting of Injunctive ReliefError! Bookmark not defined.
Authorities
Cases
G&V Lounge, Inc. V. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ........ 12
IV. Conclusion ...........................................................................................Error! Bookmark not defined.
Certificate of Service ..........................................................................................................................................10
Appendix .............................................................................................................................................................. a-1
iii
I.
Preliminary Statement
This issue of first impression requires this Court to determine whether Federal Probation
Officials can impose a registration penalty on Mr. Doe for an Ohio criminal conviction. Ohio
law exempts Mr. Doe from the state registry for his state conviction. Defendants believe that
SORNA allows them to disregard Ohio law and require Mr. Doe to register. But, SORNA does
not grant this authority. Instead, it recognizes and respects a state’s right to determine who must
register under state law.
II.
Statement of the Case
A. Procedural Posture
Mr. Doe is on federal probation for a 1996 federal drug conviction. In February of 2009,
Defendant Federal Probation Officials demanded that he register as a sex offender under the
Adam Walsh Child Protection Act of 2006 as a condition of his probation. Defendant insists he
must register because he pled guilty to sexual battery in Ohio in 1994. Despite the fact that Ohio
law does not require Mr. Doe to register for this state conviction, the Defendant threatened to
violate his probation if Mr. Doe did not register.
On February 11, 2009, Mr. Doe sought, and this Court granted, a Temporary Restraining
Order/Preliminary Injunction to enjoin Defendants from forcing him to register as a sex offender
for his state offense, because he had no duty to register under state law. Mr. Doe now seeks
permanent injunctive relief, enjoining Defendants from imposing upon him a duty to register as a
sex offender.
1
B. Statement of the Facts
1. Mr. Doe
Mr. Doe is a 37-year-old man who currently resides in Cincinnati, Ohio. (Doe
Declaration at ¶ 1). In 1994, he pled guilty to sexual battery, under Ohio law, for having sex
with a minor. (Id. at ¶ 2). He served eight months in prison and was released in 1994. (Id. at ¶
3). The 1994 conviction under Ohio law is Mr. Doe’s only lifetime sex offense. (Id. at ¶ 4). Mr.
Doe has never been required to register as a sex offender under Ohio law. (Id. at ¶ 3). Mr. Doe
was later convicted of and served prison time for a federal drug offense. (Id. at ¶ 5). He remains
on federal probation until September of 2009. (Id. at ¶ 6).
On February 6, 2009, Defendant Probation Officials gave Mr. Doe an ultimatum: either
register as a sex offender under SORNA by close of business on February 11, 2009, or face
possible revocation of probation for failure to comply. (Id. at ¶ 7). Because he had no obligation
to register as a sex offender under Ohio law for his state offense, Mr. Doe sought a Temporary
Restraining Order enjoining the federal Defendants from forcing him to register. (Plaintiff’s
Complaint; Motion for Temporary Restraining Order, February 11, 2009).
This Court granted Mr. Doe’s request for a Temporary Restraining Order. (Order,
February 11, 2009). Mr. Doe now seeks permanent injunctive relief enjoining Defendants from
forcing his registration for his state offense when he has no such duty under state law.
2. SORNA
On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of
2006 (commonly known, and hereinafter referred to, as “SORNA,” for Sex Offender
Registration and Notification Act). Pub.L. No. 109-248, 120 Stat. 587 (July 27, 2006). The
stated purpose of SORNA is “to protect the public from sex offenders” by establishing “a
2
comprehensive national system” for the registration of sex offenders. 42 U.S.C. at § 16901.
SORNA encourages states to develop certain “minimum standards” for tracking and registering
sex offenders. Id. at § 16901.
Broadly speaking, SORNA's statutory scheme establishes a national program of sex
offender registration. SORNA proscribes uniform and comprehensive standards for states to
adopt to maintain their sex offender registries. See 42U.S.C. § 16911. The SORNA provisions
“are cast as directions” to states and are “only conditions required to avoid the reduction of
Federal funding under this section.” 42 U.S.C. § 16925(d). The federal funding provision
prescribes incentives for states to comply with SORNA standards by conditioning federal
funding for local law enforcement programs on compliance. See 42 U.S.C. § 16925.
Effective January 1, 2008, Ohio passed its version of SORNA. Amended Substitute
Senate Bill 10. Ohio did not adopt SORNA in its entirety. See SORNA Compliance Review,
attached as Exhibit A. Instead of applying the scheme retroactively to anyone convicted of a
state sex offense, Ohio’s scheme applies only to individuals who had a duty to register under
Ohio law on July 1, 2007. R.C. 2950.031(A)(1), 2950.033(A). Under Ohio law, “a person
whose prison term for a sexually oriented offense was completed before July 1, 1997, is not
required to register under R.C. 2950.04(A)(1)(a) or periodically verify a current address under
R.C. 2950.06(A).” State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098, 832 N.E.2d 718,
syllabus; Former R.C. 2950.04(A)(1)(a). Ohio’s new scheme does not apply retroactively to
require individuals with old convictions like Mr. Doe to register. R.C. 2950.031(A)(1); See also
SORNA Compliance Review p.4.
3
III.
This Court Should Issue a Permanent Injunction Prohibiting the Federal Probation
Officials from Forcing Mr. Doe to Register for his State Sex Offense.
The common law standard for a permanent injunction is essentially the same as that for a
preliminary injunction except that in seeking a permanent injunction, the movant must
demonstrate success on the merits. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,
546 n. 12 (1987). Once the movant has demonstrated success on the merits, the court must
balance the following factors to determine whether a permanent injunction is appropriate: “(1)
the threat of irreparable harm to the movant; (2) the harm to be suffered by the nonmoving party
if the injunction is granted; and (3) the public interest at stake.” Layton v. Elder, 143 F.3d 469,
472 (8th Cir.1998).
A. Mr. Doe succeeds on the merits because federal probation officials have no
power to impose a penalty on Mr. Doe for a 15 year old state criminal
conviction.
The United States Constitution reserved the generalized police powers to the States and
created a Federal Government of limited powers. “The Constitution requires a distinction
between what is truly national and what is truly local, and there is no better example of the police
power, which the Founders undeniably left reposed in the States and denied the central
Government, than the suppression of violent crime and vindication of its victims.” U.S. v.
Morrison, 529 U.S. 598, 617-618 (2000). See also Cohens v. Virginia, 19 U.S. 264, 426, 428,
(1821) (Marshall, C.J.) (stating that Congress “has no general right to punish murder committed
within any of the States,” and that it is “clear ... that congress cannot punish felonies generally”);
U. S. v. Lopez, 514 U.S. 549, 566 (1995) (“The Constitution ... withhold[s] from Congress a
plenary police power”); id., at 584-585 (THOMAS, J., concurring) (“[W]e always have rejected
4
readings of the Commerce Clause and the scope of federal power that would permit Congress to
exercise a police power”).
Ohio has the power to impose a registration penalty for state sex offenses. Morrison, 529
U.S. at 617-618. In exercising this power, Ohio has deliberately and explicitly exempted Mr.
Doe from the state’s registration requirements. See former R.C. 2950.04(A)(1)(a). Mr. Doe has
never been required to register under Ohio law. Id. The consequences of Mr. Doe’s state
offense and any duty to register are aptly reserved to the state. See Lopez 514 U.S. at 566 (“The
Constitution ... withhold[s] from Congress a plenary police power”). Therefore, neither
Congress nor the Federal Probation Department has the authority to attempt to force registration
as a consequence of a state sex offense committed fifteen years ago in the state of Ohio.
B. Mr. Doe Succeeds on the Merits Because Congress did not intend for SORNA to
be enforced against individuals like Mr. Doe, who have no state duty to register
for the state offense.
Congress is well aware that its police powers to regulate crime are very limited. Id. In
enacting SORNA, Congress made it clear to the states that the provisions are “only conditions
required to avoid the reduction of Federal funding….” 42 U.S.C. § 16925(d). Through its
Spending Power, Congress may pursue objectives outside the scope of its power by attaching
conditions on the receipt of federal funds. South Dakota v. Dole, 483 U.S. 203, 206-207 (1987).
Unless or until a state adopts SORNA in its entirety, Congress has a very limited power to
enforce SORNA. See New York v. U.S., 505 U.S. 144, 149 (1992) (concluding “that while
Congress has substantial power under the Constitution to encourage the States to provide for the
disposal of the radioactive waste generated within their borders, the Constitution does not confer
upon Congress the ability simply to compel the States to do so.”). Specifically, SORNA’s
registration requirements only apply to sex offenders who committed a federal sex offense. 18
5
U.S.C. § 2250. See also 72 FR 8894-01. Congress acknowledged that “circumstances
supporting federal jurisdiction--such as conviction for a federal sex offense as the basis for
registration, or interstate travel by a state sex offender who then fails to register in the destination
state--are required predicates for federal enforcement of the SORNA registration requirements.”
72 FR 8894-01. The Attorney General was delegated the authority to define the scope of
SORNA. 42 U.S.C. § 16913(d). The Attorney General subsequently defined SORNA’s
application, citing two examples:
“Example 1. A sex offender is federally convicted of aggravated sexual abuse
under 18 U.S.C. 2241 in 1990 and is released following imprisonment in 2007.
The sex offender is subject to the requirements of [SORNA] and could be held
criminally liable under 18 U.S.C. 2250 for failing to register or keep the
registration current in any jurisdiction in which the sex offender resides, is an
employee, or is a student.” (emphasis added).
“Example 2. A sex offender is convicted by a state jurisdiction in 1997 for
molesting a child and is released following imprisonment in 2000. The sex
offender initially registers as required, but disappears after a couple of years and
does not register in any other jurisdiction. Following the enactment of [SORNA],
the sex offender is found to be living in another state and is arrested there. The
sex offender has violated the requirement under [SORNA] to register in each state
in which he resides, and could be held criminally liable under 18 U.S.C. 2250 for
the violation because he traveled in interstate commerce.” (emphasis added). 28
C.F.R. § 72.3
Mr. Doe falls into neither of these two categories. The Attorney General correctly
understood the only circumstances triggering federal jurisdiction: (1) the sex offender has been
convicted of a federal sex offense, or (2) the sex offender has been convicted of a state sex
offense requiring state registration, and that offender casts himself into interstate commerce.
Neither situation applies to Mr. Doe. Mr. Doe was convicted of a state sex offense, not a federal
sex offense. And, the state offense is one for which the state does not require registration.
Both Congress and the Attorney General understood the federal government’s limitations
with respect to SORNA’s application. A state offender, such as Mr. Doe, with no state duty to
6
register does not fall within SORNA’s limited applicability. See id. SORNA only applies to Mr.
Doe’s state conviction to the extent that Ohio enacts SORNA.
C. Mr. Doe succeeds on the merits because forcing Mr. Doe to register as a sex
offender for his state offense, when he has no duty to do so under state law,
violates the Tenth Amendment of the United States Constitution.
Congress enacted SORNA under its Spending Power. SORNA affords the states the
opportunity to implement the provisions as directed or face a reduction in federal funding.
Apparently, the Federal Probation Officials believe that SORNA is a direct command from
Congress that applies to the states whether they adopt SORNA or not. But, this interpretation
“would clearly commandee[r] the legislative processes of the States by directly compelling them
to enact and enforce a federal regulatory program.” New York, 505 U.S. at 170. This court must
reject that interpretation for two reasons: “First, such an outcome would, to say the least, upset
the usual constitutional balance of federal and state powers…. Second, where an otherwise
acceptable construction of a statute would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such construction is plainly contrary to the
intent of Congress.” Id. Construing this statute as a Congressional demand upon the states
would violate the Tenth Amendment. Id.
The Tenth Amendment provides that the “powers not delegated to the United States by
the Constution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” U.S. Const., amend. X. The Tenth Amendment has been applied to uphold the
principles of federalism by limiting the power the federal government may exercise over state
activities. Enforcing SORNA against Mr. Doe would violate the Tenth Amendment in two
critical ways: 1) it compels Ohio to apply and enforce a penalty for a state crime that Ohio has
specifically rejected see U.S. v. Lopez, 514 U.S. 549, 561, fn. 3 (1995); and 2) it commandeers
7
state officials into enacting or administering federal law. Printz v. U.S., 521 U.S. 898, 935
(1997).
1. Any attempt to compel Ohio to enforce SORNA exceeds the
scope of the Commerce Clause.
The only way that Congress could constitutionally attempt to compel the states to adopt
and enforce SORNA in this manner is through the use of its commerce powers. But, to invoke
the commerce powers, the statute must regulate activity that substantially affects interstate
commerce. Lopez, 514 U.S. at 559. In Lopez, the U.S. Supreme Court held that Congress
exceeded its commerce powers by making it a federal crime to possess a gun in a school zone.
Id. at 551. In reaching this conclusion, the Court concluded that the statute “is a criminal statute
that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however
broadly one might define those terms…. It cannot, therefore, be sustained under our cases
upholding regulations of activities that arise out of or are connected with a commercial
transaction, which viewed in the aggregate, substantially affects interstate commerce.” Id. at
561. To conclude this is a valid exercise of the commerce power, “we would have to pile
inference upon inference in a manner that would bid fair to convert congressional authority under
the Commerce Clause to a general police power of the sort retained by the States.” Id. at 567.
Similarly, SORNA’s registration requirements have nothing to do with commerce. Id.
Although 28 C.F.R. § 72.3 declares that SORNA “appl[ies] to all sex offenders, including sex
offenders convicted of the offense for which registration is required prior to the enactment of that
Act,” this statute, “by its terms has nothing to do with commerce or any sort of economic
enterprise, however broadly one might define those terms.” Id. at 561. And the Commerce
Clause does not grant congress “a general police power of the sort retained by the States.” Id. at
567. Under the Tenth Amendment, the police power is properly reserved to the states, and the
8
principles of federalism require that the decision to impose registration for a state criminal
offense remains with the states. Id. at 566-567.
Ohio enacted its version of SORNA on January 1, 2008, but chose not to adopt the
SORNA retroactivity provisions. Instead, Ohio’s SORNA applies only to offenders who had a
legal duty to register on July 1, 2007. R.C. § 2950.03(A). Ohio deliberately rejected SORNA’s
directive to retroactively impose registration on offenders like Mr. Doe who did not currently
have a duty to register. The state of Ohio has the sole discretion to determine which offenders
have a duty to register for its state crimes, and any attempt by Congress to supersede Ohio’s
determination violates the Tenth Amendment. Id. See also New York, 505 U.S. at 149
(concluding “that while Congress has substantial power under the Constitution to encourage the
States to provide for the disposal of the radioactive waste generated within their borders, the
Constitution does not confer upon Congress the ability simply to compel the States to do so”).
2. Any attempt to compel Ohio to enforce SORNA commandeers
state officials into enacting or administering federal law.
The U.S. Supreme Court has held that “Congress cannot compel the States to enact or
enforce a federal regulatory program.” New York, 505 U.S. at 149. And “Congress cannot
circumvent that prohibition by conscripting the State's officers directly. The Federal Government
may neither issue directives requiring the States to address particular problems, nor command the
States' officers, or those of their political subdivisions, to administer or enforce a federal
regulatory program. It matters not whether policymaking is involved, and no case-by-case
weighing of the burdens or benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual sovereignty.” Printz, 321 U.S. at 935.
Here, the Federal Probation Office is attempting to require the Hamilton County Sheriff
to enforce SORNA. But, the federal government cannot constitutionally command Ohio’s
9
officers “to administer or enforce a federal regulatory program…. [S]uch commands are
fundamentally incompatible with our constitutional system of dual sovereignty.” Id.
D. Mr. Doe Will Suffer Irreparable Harm Absent Injunctive Relief.
A permanent injunction is proper to enjoin the Defendants from forcing Mr. Doe’s
registration. Mr. Doe faces additional irreparable harm absent a permanent injunction: a
continuous and unconstitutional violation of his right to privacy. In order to demonstrate
“irreparable harm,” a plaintiff must show “potential harm which cannot be redressed by a legal
or equitable remedy following trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d
797, 801 (3d Cir. 1989); see e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, (1982);
Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356 and n. 9 (3d Cir.1980). If
Mr. Doe is forced to register as a sex offender, the harm he faces will be extreme, imminent, and
irreversible. Once his name appears on the sex offender registry, and his face appears on the
internet as a registered sex offender, the resulting damage cannot be undone.
Over the last four decades, the right to privacy has become a mainstay of modern
substantive due process jurisprudence. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965);
Lawrence v. Texas, 539 U.S. 558 (2003). In the Sixth Circuit, the right to informational privacy,
that is, privacy with respect to the disclosure of personal information, has been recognized in
instances in which the privacy violation implicates a fundamental liberty interest. See, e.g.,
Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). Here, the unconstitutional imposition of
forced registration implicates Mr. Doe’s informational privacy interests.
Not only will Mr. Doe face privacy and reputation damages if his name and face
unjustifiably appears on the sex offender registry, he will also face immediate practical
problems. If forced to register as a sex offender, his approval for public housing in Hamilton
10
County will immediately be rescinded. Further, Mr. Doe is currently struggling to find
employment, and his search for work will become even more difficult if his name appears on a
sex offender registry. See Doe v. District Attorney, 932 A.2d 552, 568 (2007) at ¶ 56
(Alexander, and Silver, JJ., concurring). (In the internet age, it is inevitable that online sex
offender registrations lead to “community stigmatization and ostracism.” The ostracizing effects
include social isolation, difficulty finding employment, and even being targeted for harassment,
violence, and murder1.) Once Mr. Doe is forced to register as a sex offender, this harm will be
irreparable. He will not be able to ever undo the damage done to his reputation in the
community.
Deprivation of a fundamental right constitutes irreparable harm for the purposes of
injunctive relief. See, e.g., Elrod v. Burns, 427 U.S. 347 (1976) (First Amendment); Covino v.
Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (Eighth Amendment); see also 11 C. Wright & A.
Miller, Federal Practice and Procedure, § 2948, at 440 (1973) (“When an alleged deprivation of a
constitutional right is involved, most courts hold that no further showing of irreparable injury is
necessary”).
E. The Injury Mr. Doe Would Suffer if an Injunction is not Granted, Greatly
Outweighs Any Harm Defendants Would Suffer.
As discussed above, Mr. Doe will suffer various harms if this order is not granted, all of
which will greatly impede his ability to continue to reintegrate himself into and to become a
productive member of society. Meanwhile, there is no cognizable injury that any third party
would suffer if injunctive relief is granted. Any harm to a third party is speculative and
1
In 2006 a Canadian man targeted and murdered two Maine sex offenders, who he had located on Maine's registry
website. See Associated Press, 2 Sex Offenders Shot to Death in Their Homes, N.Y. Times, April 17, 2006, at A14;
Raja Mishra, Suspect May Have Wanted to Kill Others, Boston Globe, April 25, 2006, at B2; David Hench, Killer
Drove to Maine with a Long List of Sex Offenders, Portland Press Herald, April 26, 2006, at A1.
11
unfounded, and therefore outweighed by the irreparable harms Mr. Doe faces absent injunctive
relief.
F. The Public Interest Favors the Granting of Injunctive Relief.
The public interest is never served when the law is not accurately and fairly enforced.
And a permanent injunction will prevent grave constitutional injuries to Mr. Doe. See G&V
Lounge, Inc. V. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (holding
that the preservation of constitutional rights is always in the public interest). The State of Ohio
has already concluded that Mr. Doe does not have a duty to register as a sex offender. The
federal government does not have the authority to usurp state law, and force Mr. to register.
Defendants’ attempt to do so would result in a violation of the Tenth Amendment. The Public
Interest is not served by allowing constitutional violations.
IV.
Conclusion
This Court should convert the Preliminary Injunction into a Permanent Injunction
enjoining Defendants from forcing Mr. Doe’s registration, as this is a determination to be made
under state, rather than federal, authority.
Respectfully submitted,
/s/ David A. Singleton
David A. Singleton, #007456
Trial Attorney for Plaintiff
Margie Slagle, #0082117
Zachary A. Corbin, Legal Intern*
Ohio Justice & Policy Center
215 E. 9th Street, Suite 601
Cincinnati, Ohio 45202
513-421-1108;513-562-3200 (fax)
dsingleton@ohiojpc.org
mslagle@ohiojpc.org
zcorbin@ohiojpc.org
*Practicing pursuant to Local Rule 83.6
12
CERTIFICATE OF SERVICE
I hereby certify that, on April 29 2009, the foregoing Corrected Brief was filed
electronically. The parties will be served with this Corrected brief through the court’s electronic
filing system.
David A. Singleton
David A. Singleton
13