Retroactive enforcement of Tennessee’s sex offender registry law is being challenged in a federal court lawsuit that mimics a separate, successful appeal that led to the nullification of retroactive laws in Michigan.
The case, filed Tuesday in U.S. District Court in Nashville, argues that Tennessee’s registration laws are illegally applied retroactively. It notes that the laws and restrictions on those offenders have become significantly more burdensome since the laws were first enacted in 1994.
The first registry law deemed the register of sex offenders confidential and only accessible by law enforcement. The General Assembly tweaked the law multiple times, and made registrants public, and then overhauled it a decade later. Legislators added restrictions including in-person reporting and limits on where offenders could live and work.
Offenders cannot live or work within 1,000 feet of parks or educational institutions and state laws say those who committed crimes against minors cannot live with minors.
And the lawsuit says that in nearly every year since the 2004 overhaul, restrictions on sex offenders have increased and are now unreasonably applied to offenders like a man the lawsuit names as John Doe.
“The State of Tennessee has burdened him, retroactively, with an increasingly onerous and punitive registration law whose vague and arbitrary provisions and crushing criminal penalties enable and encourage law enforcement to treat him like a pariah and disrupt his and his family members’ lives at any moment, without warning or reason,” the lawsuit reads.
In early 1994, before the state’s first sex offender registry law, Doe pleaded no contest to two counts of attempted aggravated sexual battery involving his daughter, the lawsuit states. He completed a five-year probation term in 1999 and has not been convicted of a crime since, the lawsuit states. The man went to work as a pilot and then in property management.
But the lawsuit alleges Metro Nashville Police and U.S. Marshals showed up at Doe’s house, harassing him though he was compliant. It says in 2011, police and Nashville prosecutors threatened to arrest and prosecute the man because he lived in a duplex next door to his son, daughter-in-law and grandchildren.
Doe was kicked out of his house, the lawsuit says, while fighting in a Nashville court for the right to live in the duplex and have his own children come visit. Nashville Criminal Court Judge Seth Norman ruled in 2013 that the law’s ban on residing with a minor did not include the duplex living arrangement nor overnight visits, court records show.
The lawsuit challenges the retroactive application of the registry laws, including those restrictions on contact with minors, work and residency. It argues those restrictions violate the due process clause of the 14th Amendment and a constitutional provision known as the ex post facto clause, which says laws cannot retroactively enact punishment on previously legal conduct.
It asks a federal judge to stop the state from enforcing those provisions against Doe and remove him from the registry, noting that he pleaded no contest before the registry even existed, Doe’s lawyer, Ed Yarbrough, told The Tennessean on Wednesday.
A ruling in Doe’s favor could have wide-sweeping impact on hundreds of other offenders, who would be able to use it to challenge their own terms of supervision and restrictions. The case was initially assigned to U.S. District Judge Waverly Crenshaw in Nashville.
The challenge in Michigan, decided earlier this year, could foreshadow a favorable ruling from the 6th Circuit Court of Appeals, the federal appeals district that includes Michigan and Tennessee. The lawsuit lists 10 cases in courts around the country that have recently declared retroactive enforcement of sex offender registries unconstitutional.
In the August appeals court ruling, the federal judges struck down a retroactive provision of Michigan’s sex offender registry law, finding that it violated the ex post facto clause.
The Tennessee challenge names Gov. Bill Haslam and Tennessee Bureau of Investigation Director Mark Gwyn as defendants. TBI maintains the sex offender registry in Tennessee, but local law enforcement agencies handle registration and monitoring. TBI officials said they had not yet received the lawsuit and could not comment. A spokesman for the Tennessee Attorney General said the office just received the complaint and would not comment.
Though the number of people on the registry fluctuates, on Wednesday there were about 15,800 registered sex offenders in Tennessee, TBI officials said.