# Doe v. Lee

> District Court, M.D. Tennessee · May 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10669680

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** May 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10669680

## How later opinions describe it (automated extraction)

- holding that retroactive application of statute reducing availability of good time credits violated the Ex Post Facto Clause
- observing that “courts have recognized both personal friendships and non-marital romantic relationships as the types of ‘highly personal relationships’ within the ambit of intimate associations contemplated by” the constitutional right of freedom to associate
- holding that retroactive cancellation of provisional early release credits violated the Ex Post Facto Clause
- noting that the Supreme Court has “never accepted the proposition that a law must increase the maximum sentence for which a defendant is eligible in order to violate the Ex Post Facto Clause.”
- holding that Ex parte Young claim is appropriately brought against “Defendants who currently have official capacity to provide a remedy through declaratory or injunctive relief”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN DOE, )
)
Plaintiff, )
)
v. ) Case No. 3:21-cv-00028
) Judge Aleta A. Trauger
WILLIAM LEE, in his capacity as )
Governor of the State of Tennessee; )
DAVID RAUSCH, in his capacity as )
Director of the Tennessee Bureau of )
Investigation; and TONY PARKER, )
in his capacity as Commissioner of the )
Tennessee Department of Correction, )
)
Defendants. )

MEMORANDUM

John Doe has filed a Motion for Preliminary Injunction (Doc. No. 15), to which Governor
William Lee (“Governor”), Tennessee Bureau of Investigation (“TBI”) Director David Rausch
(“Director”), and Tennessee Department of Correction (“TDOC”) Commissioner Tony Parker
(“Commissioner”) have filed a Response (Doc. No. 22), and Doe has filed a Reply (Doc. No.
23). The Governor, Director, and Commissioner have filed a Motion to Dismiss (Doc. No. 24),
to which Doe has filed a Response (Doc. No. 27), and the defendants have filed a Reply (Doc.
No. 28). For the reasons set out herein, Doe’s motion will be granted, and the defendants’ motion
will be granted in part and denied in part.
I. BACKGROUND

This case is one of several involving the State of Tennessee’s policy of requiring that
individuals convicted of certain criminal offenses comply with the obligations associated with
the state’s sexual offender registration program, despite the fact that no such program or
obligations existed at the time that the individual committed his crime. Several opinions from
U.S. District Courts in this state have found the application of that policy to be unlawful (or, as
the procedural posture called for, likely1 or plausibly2 unlawful), on the ground that the State of
Tennessee is constitutionally forbidden from increasing the punishment associated with a crime

ex post facto—that is, after the crime has already been committed. See, e.g., Doe #1 v. Lee, No.
3:16-CV-02862, 2021 WL 428967, at *41 (M.D. Tenn. Feb. 8, 2021) (Richardson, J.); Jackson v.
Rausch, No. 3:19-CV-377, 2020 WL 7496528, at *4 (E.D. Tenn. Dec. 21, 2020) (Jordan, J.) Reid
v. Lee, 476 F.Supp.3d 684, 708 (M.D. Tenn. 2020) (Trauger, J.); Doe v. Rausch, 461 F. Supp. 3d
747, 769 (E.D. Tenn. 2020) (Reeves, C.J.); Doe v. Rausch, 382 F. Supp. 3d 783, 799–800 (E.D.
Tenn. 2019) (Phillips, J.). Given the fact that these issues have been repeatedly and expertly
litigated, the court will not belabor the details here, but will provide a simple recitation of the
issues involved and the details particular to this case.
A. The Constitutional Prohibition on Ex Post Facto Punishments
Article I of the U.S. Constitution has two clauses known as the Ex Post Facto Clauses,

one of which applies to the federal government and one to the states. U.S. Const., art I, §§ 9, cl.3,
10, cl. 1. The reference in this opinion to “the Ex Post Facto Clause” is to the state Clause, U.S.
Const., art I, § 10, cl. 1, because it is the one relevant to this case. “Ex post facto law” is “a term
of art” that, consistently with its “established meaning at the time of the framing,” has been
construed to refer to criminal, but not civil, laws that are retroactive in effect. Cal. Dep’t of Corr.
v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)).
But see Collins, 497 U.S. at 41 (acknowledging that a literal reading of the language would reach
all, not merely criminal, laws). In its most straightforward formulation, the Ex Post Facto Clause

1 See Fed. R. Civ. P. 65.

2 See Fed. R. Civ. P. 12(b)(6).
dictates that “[l]egislatures may not retroactively alter the definition of crimes or increase the
punishment for criminal acts.” Collins, 497 U.S. at 43. “Through this prohibition, the Framers
sought to assure that legislative Acts give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28–29 (1981)

(citing Dobbert v. Florida, 432 U.S. 282, 298 (1977); Kring v. Missouri, 107 U.S. 221, 229
(1883); Calder v. Bull, 3 U.S. 386, 387 (1798)).
The Ex Post Facto Clause “forbids the application of any new punitive measure to a
crime already consummated, to the detriment or material disadvantage of the wrongdoer.”
Lindsey v. Washington, 301 U.S. 397, 401 (1937) (citing Kring, 107 U.S. at 228–29; Thompson
v. Utah, 170 U.S. 343, 351 (1898); In re Medley, 134 U.S. 160, 171 (1890)). Because modern
American legal systems impose a range of consequences associated with criminal convictions,
some of which are independent of the formal, statutorily authorized sentence associated with the
relevant crimes, courts have had to consider when a government-imposed consequence of
conviction is, for constitutional purposes, a punishment and therefore can only be imposed

prospectively. In light of this recurring problem, the Supreme Court’s “cases ‘have not attempted
to precisely delimit the scope of’” the term “ex post facto law,” “but have instead given it
substance by an accretion of case law.” Peugh v. United States, 569 U.S. 530, 538–39 (2013)
(quoting Dobbert, 432 U.S. at 292); see, e.g., id. at 544 (holding that retroactive application of
change in Sentencing Guidelines violated the Ex Post Facto Clause); Lynce v. Mathis, 519 U.S.
433, 446 (1997) (holding that retroactive cancellation of provisional early release credits violated
the Ex Post Facto Clause); Morales, 514 U.S. at 514 (holding that retroactive application of law
allowing for deferral of parole hearings did not violate the Ex Post Facto Clause); Weaver, 450
U.S. at 36 (holding that retroactive application of statute reducing availability of good time
credits violated the Ex Post Facto Clause).
B. Tennessee’s Sexual Offender Registry and Restrictions on Registrants
Prior to 1994, individuals in Tennessee convicted of sexual offenses faced formal

consequences that were mostly similar to those borne by individuals convicted of similarly
serious non-sexual offenses. There may have been unique collateral consequences for sexual
offenses in some areas—such as in family law proceedings—and defendants convicted of sexual
crimes may have suffered especially severe extralegal reputational harms in their communities.
For the most part, however, the path of a person convicted of a sexual offense was a familiar one:
he would be convicted and serve punishment, often in the form of incarceration, after which he
might be paroled or, if not paroled, released when his sentence was completed. Then, if there
were no other sentences or charges awaiting him related to other crimes, he would attempt to
reintegrate into society.
In 1994, however, the Tennessee General Assembly, concerned with the potential actions

of sexual offenders after they had served their sentences, adopted legislation requiring the TBI to
“establish, maintain, and update a centralized record system of sexual offender registration and
verification information.” 1994 Tenn. Pub. Laws, ch. 976 § 7(a). The law required registration
for all individuals convicted of any one of a number of identified sexual offenses, “unless the
offender had been wholly released without supervision from incarceration, probation, or parole
prior to January 1, 1995.” Doe v. Haslam, No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D.
Tenn. Nov. 9, 2017) (Crenshaw, C.J.) (citing 1994 Tenn. Pub. Laws, ch. 976 § 3(2)–(3)).
Accordingly, there existed a subset of defendants who were required to register based on crimes
they committed before the registry was in place, namely: (1) convicted defendants who were still
in the process of incarceration, parole, or supervision for a crime committed prior to 1995; and
(2) individuals who had been or would be charged with committing crimes prior to 1995 but who
had not yet been convicted.
The initial registration system was relatively undemanding and mostly concerned with

ensuring the accuracy of registry information. See 1994 Tenn. Pub. Laws, ch. 976 §§ 4–7. After
ten years, a registrant could petition a court to order his removal from the registry, which the
court would grant if it found the registrant had complied with the Act, was rehabilitated, and did
not pose a threat to public safety. Id. § 8. There were no restrictions on where a registrant could
live, work, or travel. Doe, 2017 WL 5187117 at *2. In the ensuing decades, however, the
Tennessee General Assembly repeatedly returned to the sexual offender registration statutes to
change whom they reached, what they required, whether particular offenders would be able to
eventually be removed from the registry, and how much protection the registry system offered to
registered offenders’ privacy. Chief Judge Crenshaw of this district has recounted the statutes’
long history of more than two dozen revisions in Doe v. Haslam, No. 3:16-CV-02862, 2017 WL

5187117, at *1 (M.D. Tenn. Nov. 9, 2017), and this court will refer to that opinion for the details.
In short, Tennessee’s sexual offender registration system progressed from a relatively simple
system, dedicated to information gathering and tracking, into a far-reaching structure for
regulating the conduct and lifestyles of registered sexual offenders after their punishments were
complete and, in many cases, for the rest of their lives, regardless of whether they demonstrated
any ongoing risk to the community. A detailed list of the most salient provisions of the current
registration scheme, the Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification, and Tracking Act (“Act”), can be found in this court’s opinion in Reid v. Lee, 476
F. Supp. 3d at 689–93.
C. John Doe
The plaintiff in this case has requested that he be permitted to pursue his claims under the
pseudonym “John Doe” and has filed under seal a Declaration including various personal details
relevant to his case and the pending motion. Whether Doe will, as a practical matter, be able to

maintain his public anonymity as this litigation progresses is an open question. At this stage,
however, the court will attempt to limit its discussion of his past and identity to the relevant
details.
In 1987, Doe, then 20 years old, pleaded guilty to several offenses, including two counts
of aggravated rape. Subsequent litigation related to his convictions reveals that, when Doe was
prosecuted, the State of Tennessee took the position that Doe had not himself raped or otherwise
had sexual contact with the victim, but that the victim was raped by a codefendant whom Doe
aided and abetted. The defendants do not dispute that characterization. Doe was sentenced to
serve sixty-five years in prison, and he was released on parole in 2003. He expects to remain on
parole until the 2040s, at which point he will be close to eighty years old. He lives in

Metropolitan Nashville-Davison County. (Doc. No. 11 ¶¶ 4–8.)
Although Tennessee had no sexual offender registry when Doe committed his crimes or
when he pleaded guilty, subsequent enactments required him to register with TBI and comply
with the conditions of the Act when he was released. In 2007, further amendments required him
to be classified as a “violent sexual offender,” rather than merely as a sexual offender. Absent a
change in the law, Doe will continue to be required to register as a violent sexual offender and
comply with the restrictions on registered offenders for the rest of his life. (Id. ¶¶ 1–3, 9–12.)
Doe states that he has complied with the conditions of his release, including participation
in therapy and sexual offender treatment programs, and has complied with all of the relevant
requirements of the Act, since his 2003 release. For example, every March, June, September, and
December, he must go to the TDOC’s Probation and Parole Office to confirm his registry
information. When he does so, he sets aside a full day, because he does not know how long the
process will take. When he has interacted with TDOC’s parole officers, he has, at times, sought

clarification and guidance regarding what his registry status permits him to do. He says,
however, that the guidance he has received has been inconsistent and contradictory, “because
different parole officers can have different interpretations of the Tennessee Department of
Correction’s rules and policies related to sex offenders on parole.” (Id. ¶¶ 7–13.)
Doe has two daughters, and he complains, in particular, about the way that his registry
status has interfered with his ability to parent. The Act includes a number of restrictions
specifically targeted at a registrant’s proximity to children or areas in which children are often
found, even if the registrant’s victim was not a child and the registrant has no history of sexual
interest in children. Most significantly, a registered offender is forbidden from knowingly
[b]e[ing] upon or remain[ing] on the premises of any building or grounds of any
[1] public school, [2] private or parochial school, [3] licensed day care center, [4]
other child care facility, [5] public park, [6] playground, [7] recreation center or
public athletic field available for use by the general public in this state when the
offender has reason to believe children under eighteen (18) years of age are
present.

Tenn. Code Ann. § 40-39-211(d)(1). If the offender’s victim was an adult, there are exceptions
for certain expressly enumerated parenting-related activities, but those exceptions are only
available if the offender has obtained “written permission or a request from the school’s principal
or the facility’s administrator.” Tenn. Code Ann. § 40-39-211(d)(2)(B). A separate provision
allows a registered offender to pick up and drop off his child if he has provided the relevant
administrator with written notice—meaning that, although the administrator can deny permission
for most purposes, he cannot prevent the offender from transporting his child to and from the
school or facility, as long as the offender leaves immediately and does not otherwise come onto
the premises. Tenn. Code Ann. § 40-39-211(d)(2)(D).
As restrictive as those provisions are, they are more flexible than the version that a parole
officer allegedly (and incorrectly) relayed to Doe. According to Doe:

[O]ne parole officer told me I could not go to my older daughter’s school under
any circumstances, even if I had the required written permission. As a result, I did
not take her to school or pick her up while she lived with me. I even had to find
someone to pick her up from preschool once when she became violently ill. I have
never attended any of her school events, including her cello concerts, basketball
practices, track meets, school dances, parent-teacher meetings, or her graduation.
I also stopped waiting with her at the bus stop before school. I feared how a
parole officer might interpret my presence there, so to avoid that risk, I started
watching my daughter get safely on the bus from a distance.

(Doc. No. 11 ¶ 14.)
As a registered offender, Doe is required to pay a $150 fee annually. Tenn. Code Ann. §
40-39-204(b)(1), (c). He says that, once, he fell behind on his payment, and his parole officer
“threatened to ‘lock [him] back up’ if [he] did not find a way to pay it.” (Doc. No. 11 ¶ 16.) Doe
fears that if he is unable to pay the fee, he will be susceptible to both a finding of a parole
violation and a prosecution for a felony violation of the Act. (Id.)
The Act requires that, “[w]hen the [Tennessee Department of Safety and Homeland
Security] issues or renews a driver license or photo identification card to a sexual offender [or]
violent sexual offender . . . , the driver license or photo identification card shall bear a
designation sufficient to enable a law enforcement officer to identify the bearer of the license or
card as a sexual offender [or] violent sexual offender.” Tenn. Code Ann. § 55-50-353. As a
result, any time that Doe is required to show someone his driver’s license, he is, in effect,
required to divulge his status on the sexual offender registry. He complains of the stigma
associated with such a system. (Doc. No. 11 ¶ 17.) Doe is also included, along with his
photograph, in a public, searchable internet database of registered sexual offenders. According to
Doe, people whom he encounters in his everyday life have often discovered his registry status
and reacted negatively. (Id. ¶ 24.)
Since his release, Doe has found steady work in the field of industrial maintenance. He

claims, however, that he has been overlooked for promotions and management opportunities
because of his registry status. (Id. ¶ 18.) In early 2020, he had multiple favorable interviews for a
new position, but he was not selected for the job after a background check “revealed [his] status
on the sex offender registry (though not [his] 1987 convictions).” (Id. ¶ 19.)
Doe also complains of the Act’s restrictions on where he can live. A registered offender
may not
knowingly establish a primary or secondary residence or any other living
accommodation or knowingly accept employment within one thousand feet
(1,000’) of the property line of any [1] public school, [2] private or parochial
school, [3] licensed day care center, [4] other child care facility, [5] public park,
[6] playground, [7] recreation center, or [8] public athletic field available for use
by the general public.

Tenn. Code Ann. § 40-39-211(a)(1).3 Violating this restriction—like violating most provisions of
the Act—is a Class E felony. Tenn. Code Ann. § 40-39-211(f). Doe’s attempts to find housing
that complies with the Act’s requirements and is available to him have required “lengthy”
searches, although he does presently have a home. (Doc. No. 11 ¶¶ 20, 22.) In addition to the
formal restrictions of the Act, he faces obstacles in the form of landlords who simply do not wish
to rent to a registered sexual offender. He has specifically discussed the matter with at least one
landlord who rejected him and found that “most apartment buildings” will refuse to rent to him.
(Id. ¶ 20.) Doe currently lives with his one-year-old daughter and her mother in a rental home in
Madison, Tennessee, but he fears that that location, as well, will become untenable if neighbors

3 There is an exception if the proximity exists solely because of the change in ownership of a property
after the offender established the residence or began the job. Tenn. Code Ann. § 40-39-211(e).
learn about his registry status. In the past, he has been directly approached by neighbors,
including one homeowner’s association head, informing him that community members were
uncomfortable with his presence. (Id. ¶ 21.)
Although the Act does not forbid Doe from using the internet or social media sites, he is

required to provide TBI with a “complete listing of [his] electronic mail address information,
including usernames, any social media accounts [he] uses or intends to use, instant message,
other internet communication platforms or devices, and [his] username, screen name, or other
method by which [he] accesses these accounts or websites.” Tenn. Code Ann. § 40-39-
203(i)(17). Doe complains that he finds this provision unclear and confusing, and this court, like
other courts that have attempted to discern the meaning of the Act’s internet reporting
requirements, agrees: it is genuinely difficult to know what, exactly, a person is required to
report based on the Act’s language. See, e.g., Doe v. Rausch, 461 F. Supp. 3d at 772; Doe v.
Haslam, 2017 WL 5187117, at *17. Doe states that, “[d]ue to the hassle and confusion of
complying with the electronic communication disclosures, [he] only use[s] an electronic mail

address.” (Doc. No. 11 ¶ 25.)
The Act restricts the international travel of registered offenders, see Tenn. Code Ann. §
40-39-204(h), but it does not contain any statutory restrictions on travel within the United States.
As Doe points out, however, TDOC imposes certain special policies and conditions on parolees
who are also subject to the Act, and those conditions include additional requirements associated
with travel. (See Doc. No. 10-2 at 17 (TDOC policy setting forth additional requirements for
parolees on the registry).) Doe describes his travel restrictions, as they have been explained by
TDOC to him and as he has experienced them, as follows:
As a registered “violent sexual offender” in Tennessee, I cannot travel outside of
Tennessee for more than a day without the risk of violating the registry laws and
the specialized conditions of sex offender parole supervision. As a result, I no
longer travel outside of Tennessee for more than a day. After my release on
parole, I once traveled to New York and Florida with my family. Before leaving, I
obtained the necessary travel permit, but no one at the local law enforcement
office where I was visiting would sign it. This happened repeatedly during my
trip, caused me great concern that I would face arrest or a parole violation when I
returned home.

(Doc. No. 11 ¶ 26.) Doe states that, “[b]ecause of the risks associated with interstate travel for
[him], [he is] unable to spend any significant time with [his] older daughter, because she now
lives in North Carolina with [his] ex-wife.” (Id. ¶ 27.)
Finally, Doe complains that he is barred from decorating the exterior of his home for
holidays or from “participating at all in any holiday centered on children, such as Halloween.”
(Id. ¶ 28.) The court notes that a similar issue was raised by a plaintiff in another case
challenging the application of the Act and that the defendants in that case conceded that the Act
contained no such restriction. See Reid, 476 F. Supp. 3d at 694 & n.8.
D. Doe’s Lawsuit
On January 13, 2021, Doe sued the Governor, the Director, and the Commissioner
regarding his continuing status as a registered violent sexual offender. (Doc. No. 1.) He pleaded
five Counts, each pursuant to 42 U.S.C § 1983, for the deprivation of his constitutional rights:
Count I is for violation of the Ex Post Facto Clause; Count II is for violation of his alleged
constitutional right to work; Count III is for violation of the First Amendment arising out of the
restrictions on his rights to communicate and associate with others; Count IV is for violation of
his right to travel; and Count V is for violation of his constitutional rights as a parent. (Id. ¶¶
101–27.) On January 20, 2021, Doe filed a Motion for Preliminary Injunction prohibiting any of
the defendants from enforcing the Act against him. (Doc. No. 10 at 1.) He premises his request
for preliminary relief solely on Count I, his Ex Post Facto Clause claim. (Doc. No. 12.) The
defendants oppose that motion, and, on March 19, 2021, they filed a Motion to Dismiss all of
Doe’s claims. (Doc. No. 24.)
II. LEGAL STANDARD
A. Rule 12(b)(6) Motion to Dismiss

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement
of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
determine only whether “the claimant is entitled to offer evidence to support the claims,” not
whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 679; Twombly, 550 U.S. at 556.
B. Motion for Preliminary Injunction
“Four factors determine when a court should grant a preliminary injunction: (1) whether
the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that
the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.”

D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326 (6th Cir. 2019) (citing Benisek v. Lamone, 138 S.
Ct. 1942, 1943–44 (2018); Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2948 (3d ed. & Supp.
2019)). The district court must “weigh the strength of the four factors against one another,” with
the qualification that irreparable harm is an “indispensable” requirement, without which there is
“no need to grant relief now as opposed to at the end of the lawsuit.” Id. (citing Friendship
Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). “Although no one factor
is controlling, a finding that there is simply no likelihood of success on the merits is usually
fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000) (citing Mich.
State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)).
II. ANALYSIS

A. Inclusion of the Governor as a Defendant
As a preliminary matter, the Governor argues that he is not an appropriate defendant in
this case, because none of the specific duties imposed by the Act are carried out or enforced by
his office, but rather by various other state and local officials with more specific responsibilities.
As the Governor points out, he is, in his official capacity, generally entitled to sovereign
immunity from suit unless that immunity is waived or abrogated. See Motto v. Mullins, No. 2:19-
CV-0008-1DCLC-CRW, 2020 WL 2478275, at *2 (E.D. Tenn. May 13, 2020) (“[A]ny claims
against Governor Lee in his official capacity are equivalent to claims against the State itself.
Under the Eleventh Amendment, states have immunity from suit in federal court.”). The
Supreme Court’s Ex parte Young doctrine, however, “carves out an exception to” that immunity
with regard to certain types of claims. Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92
F.3d 1412, 1414 (6th Cir. 1996). Under Ex parte Young,
individuals who, as officers of the state, are clothed with some duty in regard to
the enforcement of the laws of the state, and who threaten and are about to
commence proceedings, either of a civil or criminal nature, to enforce against
parties . . . an unconstitutional act, violating the Federal Constitution, may be
enjoined by a Federal court of equity from such action.

209 U.S. 123, 155–56 (1908).
As the Governor points out, “[g]eneral authority to enforce the laws of the state is not
sufficient to make government officials the proper parties to litigation challenging the law.”
Deters, 92 F.3d at 1416 (quoting 1st Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108,
113 (3d Cir. 1993)). Rather, to pursue an Ex parte Young claim against a state official, the
official must “have some connection with the enforcement” of the law whose constitutionality is
in question. Ex parte Young, 209 U.S. at 157. Proper defendants to an Ex parte Young claim are
typically those “officials who have direct responsibility in the area in which the plaintiff seeks
relief.” Bartlett v. Wengler, No. 1:12-CV-00312-EJL, 2014 WL 4773959, at *5 (D. Idaho Sept.
24, 2014); see also Muhammad v. Crosby, No. 4:05CV193-WS, 2008 WL 2229746, at *19 (N.D.
Fla. May 29, 2008), aff’d sub nom. Muhammad v. Sapp, 388 F. App’x 892 (11th Cir. 2010)
(holding that Ex parte Young claim is appropriately brought against “Defendants who currently
have official capacity to provide a remedy through declaratory or injunctive relief”).
The Ex parte Young doctrine becomes more complicated, however, when a plaintiff seeks
to challenge a policy with diffuse enforcement responsibilities shared across multiple agencies
and levels of government. The challenge at issue in this case is a good example. Certainly, the
Director, in his capacity as the chief executive of the TBI, has substantial oversight power with
regard to the core activity of maintaining the sexual offender registry, and he could be enjoined
from exercising that power in certain allegedly unconstitutional ways. The broad scheme of the
Act, however, places enforcement and administration powers in far more hands than just the
TBI’s. For example, the Tennessee Department of Safety and Homeland Security provides the

registrant’s sexual offender-branded driver’s license. If a registrant is perceived to have violated
the Act, he will most likely be arrested by local law enforcement. Local prosecutors would
prosecute him. The principal of a public school would be the party to deny the registrant access.
None of these officials answer to the Director, and an injunction binding only the Director would
have no direct force on them.
In other words, while the Act constitutes a single, comprehensive scheme, the
responsibilities for carrying that scheme out are scattered throughout various agencies and levels
of government, making it difficult to identify the appropriate target or targets for injunctive
relief. The courts could interpret Ex party Young to require a plaintiff seeking effective relief in
such a situation to name, as a defendant, the chief executive of every agency that could

reasonably be foreseen to play a role in the enforcement of his challenged policy. The litigation
that would ensue from such a rule would undoubtedly be complex, but the issue of diffuse
enforcement responsibility, at least, would be solved. The Sixth Circuit, however, has recognized
an alternative (or, if the plaintiff wishes to cover all of his bases, parallel) option. In Allied Artists
Picture Corp. v. Rhodes, 679 F.2d 656 (6th Cir. 1982), the Sixth Circuit held that an Ex parte
Young action may properly be brought against a governor to challenge an unconstitutional law,
“[e]ven in the absence of specific state enforcement provisions,” if “the substantial public
interest in enforcing [the unconstitutional law] places a significant obligation upon the Governor
to use his general authority to see that state laws are enforced.” Id. at 665 & n.5. That rule
recognizes that, in at least some situations, the Governor’s ultimate authority as the chief
executive of the state renders him the appropriate subject of an injunction directed at a state
policy that otherwise might not be entrusted to any single official but which the governor must
ultimately oversee as the final arbiter of the executive policy of the state.

The Governor does not dispute that there is a “substantial public interest” in the
enforcement of the state’s policies regarding sexual offenders who have been released into the
community. See Tenn. Code Ann. § 40-39-201(b)(1) (stating that the purposes of the Act are “of
paramount public interest”). Nor does the Governor expressly dispute that, given the diffuse
nature of the responsibilities set forth in the Act, he can and should use his general authority to
see that the various officials with responsibilities under the Act execute the Act effectively. On
its face, therefore, this situation meets the requirements set out in Allied Artists.
The court agrees that Allied Artists probably should not apply where the enforcement of
the challenged law has been narrowly entrusted to a particular official or agency, such that there
is no need to look to the Governor’s general authority to see that the law is carried out in order to

craft an effective injunction. See LensCrafters, Inc. v. Sundquist, 184 F. Supp. 2d 753 (M.D.
Tenn. 2002) (Trauger, J.) (holding that Allied Artists did not apply because “there is a separate
body, the Tennessee Board of Optometry, that has been clothed with exactly the enforcement
responsibility” at issue in the challenge). The Act, however, does not present such a situation;
while TBI and TDOC administer parts of the Act, much of the actual enforcement of the Act is
entrusted to the numerous, diffuse local law enforcement entities of the state, with no single
agency or official possessing the kind of singular authority that would render other defendants
unnecessary. The court therefore concludes that the Governor is an appropriate defendant in this
case pursuant to Allied Artists and will not dismiss the claims against him.
B. Count I: Ex Post Facto Application of the Act
1. Relationship Between the Two Pending Motions
There is considerable overlap between the court’s consideration of the defendants’
Motion to Dismiss, as it applies to Count I, and the court’s evaluation of the first factor of the

preliminary injunction inquiry, likelihood of success on the merits—with the important caveat
that, while the court will assume that all of the assertions in Doe’s Complaint are true for the
purposes of the Rule 12(b)(6) motion, it must rely on evidence in the record regarding his request
for preliminary relief. Because of this substantial overlap, the court will evaluate the issues
together, with that caveat in mind.
2. Relevant Caselaw
The parties agree that the government may not “retroactively . . . increase the punishment
for criminal acts.” Collins, 497 U.S. at 43. It is also well-settled that this prohibition covers more
than express changes to the particular statutory sentence associated with an offense. Peugh v.
United States, 569 U.S. 530, 539 (2013) (noting that the Supreme Court has “never accepted the

proposition that a law must increase the maximum sentence for which a defendant is eligible in
order to violate the Ex Post Facto Clause.”) (citing Lindsey v. Washington, 301 U.S. 397 (1937)).
To the contrary, a state’s “[s]ubtle ex post facto violation[]” is “no more permissible than [an]
overt one[].” Collins, 497 U.S. at 46.
Nevertheless, the Supreme Court has held that a state’s operation of a sexual offender
registry that includes offenders whose crimes took place prior to the registry’s adoption does not,
in and of itself, amount to an Ex Post Facto Clause violation, because a simple registry, without
additional harms and restrictions, is not inherently a mechanism of punishment. Specifically, in
Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court considered the constitutionality of the
retroactive application of an Alaska sexual offender law that consisted of “two components: a
registration requirement and a notification system.” Id. at 90. To determine whether the registry
amounted to a retroactive punishment, the Court applied the standard it had established in
Kansas v. Hendricks, 521 U.S. 346, 366 (1997), which had involved a challenge to a statute

governing involuntary commitment of certain mentally ill sexual offenders:
We must “ascertain whether the legislature meant the statute to establish ‘civil’
proceedings.” If the intention of the legislature was to impose punishment, that
ends the inquiry. If, however, the intention was to enact a regulatory scheme that
is civil and nonpunitive, we must further examine whether the statutory scheme is
“so punitive either in purpose or effect as to negate [the State’s] intention to deem
it ‘civil.’”

Smith, 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361). The Court added that, because a
legislature is entitled to considerable deference when it states its purpose, “‘only the clearest
proof’ will suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)).
The Court concluded, based on the language of the Alaska statute, that the Alaska registry
system was intended to be civil in nature, giving rise to a presumption that it was not punitive.
Id. at 94–95.
The Court therefore turned to the question of whether the Alaska statute had a punitive
purpose or effect. The Court concluded that its analysis should be guided by the factors related to
the punitive character of a statute set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963):
[1] Whether the sanction involves an affirmative disability or restraint, [2]
whether it has historically been regarded as a punishment, [3] whether it comes
into play only on a finding of scienter, [4] whether its operation will promote the
traditional aims of punishment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6] whether an alternative purpose
to which it may rationally be connected is assignable for it, and [7] whether it
appears excessive in relation to the alternative purpose assigned.
Id. at 168–69 (internal footnotes omitted). Particularly relevant, the Court wrote, were the
questions of whether the challenged regulation “has been regarded in our history and traditions
as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of
punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to
this purpose.” Smith, 538 U.S. at 97.
Based on those factors, the Supreme Court concluded that the Alaska registration system
was not punitive in character. Among the grounds for its conclusion was that the Alaska law
“impose[d] no physical restraint.” Smith, 538 U.S. at 100. The Court also noted that, unlike with
criminal regimes such as probation, “offenders subject to the Alaska statute are free to move

where they wish and to live and work as other citizens, with no supervision.” Id. at 101. With
regard to the lifelong duration of the reporting requirements for some offenders, the Court
concluded it was not excessive, citing “[e]mpirical research” on recidivism among child
molestors. Id. at 104.
A few years later, in Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007), the Sixth Circuit
considered the application of the Ex Post Facto Clause to the version of the Tennessee
registration regime in force at the time. As Smith requires, the court looked first to whether the
Tennessee General Assembly had expressly designated the law as civil or whether it had
declared some punitive intent. The Act, then as now, included provisions stating that the purpose

of the Act is public safety, that the Act “shall not be construed as punitive,” and that “the general
assembly does not intend that the information be used to inflict retribution or additional
punishment on those offenders.” Tenn. Code Ann. § 40-39-201(6), (8). The court therefore
turned to the second part of the Smith inquiry, whether the punitive purpose or effect of the Act
was sufficient to overcome the stated legislative intention. Doe, 507 F.3d at 1004. Relying on the
multi-factor Mendoza-Martinez test, the court concluded that the Act was not punitive. The court
noted, in particular, that “registration, reporting, and surveillance components are not of a type
that we have traditionally considered as a punishment” and that the Act does not “prevent [a
registered offender] from changing jobs or residences or traveling to the extent otherwise
permitted by their conditions of parole or probation.”4 Id. at 1005.

Meanwhile, the Tennessee General Assembly continued its pattern of expanding the
requirements of the registration regime by amendment, particularly with regard to restrictions
related to children, regardless of the age of the offender’s victim. For example, restrictions about
entering schools, playgrounds and other facilities were added in 2008. See 2008 Tenn. Pub. Acts,
ch. 1164, § 11. Restrictions related to libraries were added in 2011. See 2011 Tenn. Pub. Acts,
ch. 287. The Act’s residence restrictions regarding schools and other facilities were extended to
offenders whose victims were adults in 2014. See 2014 Tenn. Pub. Acts, ch. 992, § 1. The
prohibition on being alone with children other than one’s own in a “private area” were added in
2015. See 2015 Tenn. Pub. Acts, ch. 516.

In 2016, the Sixth Circuit considered the issue of retroactive application of registration
laws anew in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016). That case involved Michigan’s
sexual offender registration system, which, the court wrote, “began in 1994 as a non-public
registry maintained solely for law enforcement use” but “ha[d] grown into a byzantine code

4 The Act did, in fact, restrict where a registered offender could live or work, which had been discussed at
length at the district court level. The district court, consistently with the law, concluded that the Act did
not restrict the ability to move or change jobs, but rather that, “[w]hile provisions of the Act restrict
sexual offenders from establishing a residence or employment within a certain radius of schools or child
care facilities, offenders do not need permission to move or change jobs and are free to live and work
away from those restricted areas.” Doe v. Bredesen, No. 3:04-CV-566, 2006 WL 849849, at *8 n.5 (E.D.
Tenn. Mar. 28, 2006) (emphasis added). The court construes the Sixth Circuit’s opinion as making the
same point rather than suggesting that changing jobs or residences was not impeded to any extent.
governing in minute detail the lives of the state’s sex offenders.” Id. at 697. The court recounted
a history of amendments strikingly similar, though not identical, to Tennessee’s:
Over the first decade or so of SORA’s5 existence, most of the changes centered
on the role played by the registry itself. In 1999, for example, the legislature
added the requirement that sex offenders register in person (either quarterly or
annually, depending on the offense) and made the registry available online,
providing the public with a list of all registered sex offenders’ names, addresses,
biometric data, and, since 2004, photographs. See Mich. Pub. Act. 85 §§ 5a(4),
8(2), 10(2)(3) (1999); Mich. Pub. Acts 237, 238 (2004). Michigan began taking a
more aggressive tack in 2006, however, when it amended SORA to prohibit
registrants (with a few exceptions, see Mich. Comp. Laws § 28.734–36) from
living, working, or “loitering” within 1,000 feet of a school. See Mich. Pub. Acts
121, 127 (2005). In 2011, the legislature added the requirement that registrants be
divided into three tiers, which ostensibly correlate to current dangerousness, but
which are based, not on individual assessments, but solely on the crime of
conviction. See Mich. Pub. Acts 17, 18 (2011). The 2011 amendments also
require all registrants to appear in person “immediately” to update information
such as new vehicles or “internet identifiers” (e.g., a new email account). See id.
The 2006 and 2011 amendments apply retroactively to all who were required to
register under SORA. See Mich. Pub. Act 46 (2006); Mich. Pub. Acts 17, 18
(2011). Violations carry heavy criminal penalties. See Mich. Comp. Laws §
28.729.

Snyder, 834 F.3d at 697–98. Five plaintiffs challenged the law on various grounds, including the
Ex Post Facto Clause. The case went to a bench trial, which permitted the development of a
significant factual record. The Sixth Circuit, based on that record, noted that the plaintiffs “had
trouble finding a home in which they c[ould] legally live or a job where they c[ould] legally
work” and “those Plaintiffs who ha[d] children (or grandchildren)” were prevented “from
watching them participate in school plays or on school sports teams” or from “visiting public
playgrounds with their children for fear of ‘loitering.’” Id. at 698.

5 “SORA” stands for “Sex Offender Registration Act,” an acronym used for Michigan’s Act and also used
generically to refer to many states’ acts, including often Tennessee’s—even though that is not actually the
present name for the Act.
The Sixth Circuit performed the first step of the Smith analysis and found—as courts
typically do6—that the statute purported to be civil and non-punitive on its face. Id. at 700–01.
The court then focused the second part of the Smith analysis on the five Mendoza-Martinez
factors that Smith had identified as particularly salient in registry cases:

(1) Does the law inflict what has been regarded in our history and traditions as
punishment?

(2) Does it impose an affirmative disability or restraint?

(3) Does it promote the traditional aims of punishment?

(4) Does it have a rational connection to a non-punitive purpose?

(5) Is it excessive with respect to this purpose?

Id. at 701 (citing Smith, 538 U.S. at 97.)
With regard to the first factor—history and tradition—the court noted that, although
Michigan’s act had “no direct ancestors in our history and traditions,” it “resemble[d], in some
respects at least, the ancient punishment of banishment” as well as “traditional shaming
punishments.” Id. at 701–02. The court cited evidence that vast swathes of the state’s more
populous areas were unavailable to the registrants for living or working, and the registrants were
branded with derogatory classifications that did not reflect an individualized determination that
the descriptor was justified. Id. The court also observed that life under the Michigan system,
unlike life under the Alaska system upheld in Smith, “resembles the punishment of
parole/probation.” Id. at 703. The court explained:
registrants are subject to numerous restrictions on where they can live and work
and, much like parolees, they must report in person, rather than by phone or mail.

6 Indeed, it is difficult for this court to see how any retroactive law enacted or amended since Smith is
likely to fail the first portion of the test, other than through legislative inadvertence. Any legislature that
wishes its enactment to survive constitutional review knows that it can, while sacrificing nothing of the
content of the statute, include a pro forma claim of civil intent and become eligible for deferential review
under Smith.
Failure to comply can be punished by imprisonment, not unlike a revocation of
parole. And while the level of individual supervision is less than is typical of
parole or probation, the basic mechanism and effects have a great deal in
common. In fact, many of the plaintiffs have averred that SORA’s requirements
are more intrusive and more difficult to comply with than those they faced when
on probation.

Id.
The court also found that the second factor—affirmative disability and restraint—favored
a finding of punitive effect, in light of the aforementioned restrictions on a registered offender’s
residence, work, and movement. The court observed that those restrictions amounted to
“restraints . . . greater than those imposed by the Alaska statute [at issue in Smith] by an order of
magnitude.” Id. With regard to factor three—the traditional aims of punishment—the court
concluded that the Michigan act
advances all the traditional aims of punishment: incapacitation, retribution, and
specific and general deterrence. Its very goal is incapacitation insofar as it seeks
to keep sex offenders away from opportunities to reoffend. It is retributive in that
it looks back at the offense (and nothing else) in imposing its restrictions, and it
marks registrants as ones who cannot be fully admitted into the community.
Further, . . . it does so in ways that relate only tenuously to legitimate, non-
punitive purposes. Finally, its professed purpose is to deter recidivism . . . , and it
doubtless serves the purpose of general deterrence.

Id. at 704.
The last two factors—rational relationship to purpose and excessiveness—are closely
related because they both consider the degree to which a law serves its stated civil purpose, as
opposed to, for example, a desire for retribution or stigmatization appropriate only in the
criminal context. The Sixth Circuit found that, based on the evidence in the record, the
connection between the registration regime and its stated public safety purposes was weak. The
court noted a study “suggest[ing] that sex offenders (a category that includes a great diversity of
criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals.”
Snyder, 834 F.3d at 704 (citing Lawrence A. Greenfield, Recidivism of Sex Offenders Released
from Prison in 1994 (2003)). “In fact,” the court observed, “one statistical analysis in the record
concluded that laws such as SORA actually increase the risk of recidivism, probably because
they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job,

find housing, and reintegrate into their communities.” Id. at 704–05 (citing J.J. Prescott & Jonah
E. Rockoff, Do Sex offender Registration and Notification Laws Affect Criminal Behavior?, 54
J.L. & Econ. 161, 161 (2011)). Likewise, with regard to excessiveness, the court observed that
the Michigan law imposed a number of laborious requirements on offenders for which the actual
public safety benefits were, at best, speculative, concluding that the “punitive effects of these
blanket restrictions thus far exceed even a generous assessment of their salutary effects.” Id. at
705.
The court accordingly found that the Michigan law was punitive in effect and could not
be imposed retroactively. Id. (collecting similar holdings from other courts). The court forcefully
explained:

A regulatory regime that severely restricts where people can live, work, and
“loiter,” that categorizes them into tiers ostensibly corresponding to present
dangerousness without any individualized assessment thereof, and that requires
time-consuming and cumbersome in-person reporting, all supported by—at
best—scant evidence that such restrictions serve the professed purpose of keeping
Michigan communities safe, is something altogether different from and more
troubling than Alaska’s first-generation registry law. SORA brands registrants as
moral lepers solely on the basis of a prior conviction. It consigns them to years, if
not a lifetime, of existence on the margins, not only of society, but often, as the
record in this case makes painfully evident, from their own families, with whom,
due to school zone restrictions, they may not even live. It directly regulates where
registrants may go in their daily lives and compels them to interrupt those lives
with great frequency in order to appear in person before law enforcement to report
even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.

Id. at 705.
3. Application of Snyder to this Case
As this court has previously observed, the similarities between Tennessee’s registration
system and Michigan’s suggest that much of the analysis of Snyder could apply here. Similarly,
this courts agrees, as it has before, with the other district court judges who concluded that

Tennessee’s registration scheme has been changed sufficiently since Doe v. Bredesen was
decided that a court can apply Snyder to Tennessee’s scheme without violating any earlier
precedent. See, e.g., Doe v. Haslam, 2017 WL 5187117, at *19–20; Doe v. Rausch, 382 F. Supp.
3d at 788 (E.D. Tenn. 2019); Doe v. Gwyn, No. 3:17-CV-504, 2018 WL 1957788, at *7 n.6 (E.D.
Tenn. Apr. 25, 2018).
Once one concludes that the court can consider Tennessee’s law under Snyder, this
becomes an easy case, at least with regard to whether the court should dismiss Count I. Virtually
every observation that the Sixth Circuit made about the Michigan regime could be made about
the Act with, at most, minimal tweaking. In terms of the multi-factor test, the Act, like
Michigan’s law, imposes a system that, in many ways, is simply a modern hybrid of the

traditional punishments of banishment, shaming, and probation or parole. It places significant
restrictions on a registrant’s physical freedom in the world, including by restricting where he can
live or work and whether he can enter his children’s schools. Its consequences are harsh, and
there exist significant questions about whether any purpose beyond retribution and punishment
could justify those consequences. Based on his allegations, Doe is entitled to pursue discovery in
an attempt to establish that Tennessee’s system is just as faulty as Michigan’s. The court,
accordingly, will deny the motion to dismiss.
With regard to Doe’s request for a preliminary injunction, the defendants argue that this
court should not be persuaded by Snyder or by any of the now numerous district court decisions
concluding that the Act is punitive in character because such conclusions, according to the
defendants, should be drawn narrowly and based solely on the individual circumstances of each
individual plaintiff. (See Doc. No. 22 at 5 (citing Doe v. Rausch, 461 F. Supp. 3d at 769
(describing holding as “limited to this Plaintiff”).) Of course, this is not a class action case, and

Doe does not seek any relief, either preliminary or otherwise, for anyone but himself—meaning
that this case, by definition, is limited to him. Regardless, however, the defendants’ argument
that analyses in this area must be overwhelmingly specific to the individual is simply impossible
to reconcile with the governing law. The Mendoza-Martinez factors that the court is required to
consider are chiefly focused on the nature of the enactment itself, not the circumstances of the
individual plaintiff. There is, for example, nothing offender-specific about whether something
“has historically been regarded as a punishment, whether it comes into play only on a finding of
scienter, [or] whether the behavior to which it applies is already a crime.” Mendoza-Martinez,
372 U.S. 144 at 168–69. Even the factors that might implicate some variation between offenders,
such as the extent to which physical restraint is involved, raise, at most, offender-specific

differences in severity that might bear on the weight of the factor, not the direction that the factor
points in.
Moreover, even if one assumes that the punitive character of a law might vary from
person to person in marginal cases, that principle undoubtedly would have its limits. No one, for
example, seriously contests that the Ex Post Facto Clause forbids the government from
retroactively imposing a definite prison sentence. Yet the court, from its many years of
experience, can confirm anecdotally that there is considerable variation in how negatively
individual prisoners experience incarceration. Some individuals even thrive in prison, often in
stark contrast to the problems they experienced in their pre-incarceration lives. That does not
stop prison from being a punishment, as a constitutional matter. As the Mendoza-Martinez
factors plainly account for, some legal consequences, in light of their nature, context, and social
function, simply are punishments, regardless of any variation in the individual’s subjective
experience of that consequence.

Finally, the idea that the punitive character of an enactment depends entirely or even
mostly on the individual circumstances of a prosecuted individual defies the logic of the very
inquiry at issue here. The Ex Post Facto Clause, as it has long been interpreted, sets forth a clear
command to a legislature: if the legislature wishes to enact a punitive law, it must do so
prospectively. But if a law is prospective in nature, then the enacting legislature, by definition,
does not know whom it will punish and therefore does not know how severely that punishment
will fall on any particular individual. In other words, the Ex Post Facto Clause assumes that a
legislature will be able to determine whether something is a punishment ahead of time, based on
the character of the law itself. The court doubts that the Constitution would require that
punishments be prospective, while simultaneously adopting a definition of “punishment” that

makes it impossible to identify one prospectively.
In any event, even if the defendants are right that these cases must be decided on a purely
individual basis, Doe has satisfied his burden in that regard here. He has presented evidence of
the effects of the Act on his life, and those effects are significant. Moreover, the effects of many
of the Act’s provisions are simple enough for the court or anyone else to surmise based merely
on an ordinary understanding of day-to-day life, which the court is not required to ignore.
As the defendants point out, there are admittedly some unresolved factual issues
regarding the degree to which some of the treatment that Doe currently endures would continue,
even if he were not on the registry, because he is on parole. While Doe has identified some
specific policies that TDOC imposes on him as a parolee who is also a registered offender, Doe
does not ultimately dispute that his parole status affords TDOC considerable discretion with
regard to how onerously it will supervise him, regardless of whether he remains on the registry.
At most, however, this factor would bear on the amount of irreparable harm that Doe potentially

faces, not the substance of his claim. The defendants have identified no basis for concluding that
a scheme of ex post facto punishment is permissible merely because the individual at issue is
simultaneously being subjected to a somewhat similar, but non-ex post facto, punishment such as
parole. Moreover, as Doe has carefully documented, his registry status mandates extensive
requirements and limitations that, though abstractly parole-like in nature, are far in excess of the
requirements associated with actual parole in Tennessee.
Ultimately, if anything, the fact that Doe’s registry conditions sometimes so closely
resemble a super-charged version of parole bolsters his Ex Post Facto Clause claim. Doe is
subject to his parole conditions because his parole is part of his prospectively authorized criminal
punishment, as the Constitution permits. If the State of Tennessee had tried to impose such a

sentence ex post facto, it would have been illegal. Putting Doe on an even more demanding
version of parole retroactively, but calling it a registry status, is no more permissible. The facts
that Doe has presented are enough to establish a strong likelihood of success, because they are
enough to strongly suggest that the analysis that governed Snyder would prevail here. Doe,
accordingly, has established that the first preliminary injunction factor strongly supports granting
him the relief he requests.
C. Application of Preliminary Injunction Factors
Having determined that Doe has a high likelihood of success on the merits with regard to
his claims against the defendants, the court must turn to the remaining factors governing the
consideration of a request for a preliminary injunction.
1. Irreparable Harm to the Plaintiff

The Sixth Circuit has held that, “if it is found that a constitutional right is being
threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241
F.3d 800, 809 (6th Cir. 2001). At the very least, “irreparable injury is presumed.” Am. Civil
Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 649 (6th Cir. 2015) (quoting
Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)). Doe’s establishing a likelihood of
success on the merits is, therefore, also enough to establish that this factor weighs in favor of
granting his motion.
The irreparable harm that Doe faces, moreover, does not end with the abstract question of
whether his constitutional rights are being honored. While Doe complains of many features of
the Act, he has made clear that the restrictions that are most distressing to him are those that

interfere with his ability to be an active father. Doe’s children will not stop aging and growing
while this case works its way through litigation. Every school activity or event that he is unable
to share with them is one he will never get back.
These harms are, at most, only slightly mitigated by the fact that Doe would be harmed to
some degree by his parole status regardless. The defendants have not identified any legal or
factual basis for concluding that Doe, if placed solely on parole, would face restrictions that
come anywhere near the level of restrictiveness of the requirements he faces under the Act,
particularly with regard to parenting. This factor therefore strongly supports issuance of the
preliminary injunction.
2. Harm to the Public Interest and Third Parties
The third and fourth factors of the preliminary injunction analysis—harm to others and
the public interest—”merge when the Government is the opposing party.” Nken v. Holder, 556
U.S. 418, 435 (2009). With regard to these factors, the defendants rely on the state’s interest in

enforcing the Act and protecting the safety of the public. There is no evidence before the court,
however, that Doe currently poses a threat to anyone—or that any such threat would be mitigated
by requiring him to continue as a registered violent sexual offender. The only evidence before
the court suggests that Doe is simply a man who committed serious crimes over three decades
ago and who has spent his life, after leaving prison, as an ordinary member of society. The court
cannot simply assume that the registry is serving any role in protecting the public in his case.
There is, moreover, no evidence that granting Doe’s request would place an
administrative burden on the defendants. By its own terms, the registry is designed to have
individuals added and removed from its rolls with regularity, so there is no reason to think that
removing Doe would be difficult, or that it would be difficult to re-add him at a later date if

necessary. Indeed, any costs to the defendants appear to be so minimal that the court concludes
that no cash surety would be necessary “to pay the costs and damages sustained by any party
found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).
Finally, it is well-established that “the public interest is served by preventing the violation
of constitutional rights.” Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363
F.3d 427, 436 (6th Cir. 2004). Granting Doe the relief he seeks would not merely be benefiting
him, but honoring a core constitutional commitment, recognized since the nation’s earliest days.
The court stresses that nothing it writes here should be read to suggest that sexual
offender registries themselves necessarily violate the Ex Post Facto Clause when applied
retroactively. Supreme Court precedent is clear that they do not. A state, however, is not free to
use its registry as a back door to heap an endless parade of new and severe punishments on
individuals whose long-ago offenses carried no such consequences when committed.
Recognizing that a registry is not a license to violate the Ex Post Facto Clause would be a

vindication of an essential constitutional commitment and, therefore, would advance the public’s
interest in constitutional governance bound by law. This factor, therefore, also supports granting
the preliminary injunction.
3. Balancing the Preliminary Injunction Factors
All of the factors relevant to the court’s consideration of Doe’s request line up in favor of
granting him the narrow relief he seeks. Doe has not sought to disrupt or obstruct the functioning
of Tennessee’s system of sexual offender registration in any general way. He simply asks that he,
personally, be removed from that system on the ground that he was unconstitutionally brought
into it. Because Doe has demonstrated his likelihood of success on the merits, shown the
irreparable harm that registration is doing to him now, and established that the public interest

would be served by his removal, he is entitled to a preliminary injunction.
D. Motion to Dismiss Counts II through V
Doe has not argued that he can establish that he is entitled to a preliminary injunction
based on his likelihood of success with regard to any of his claims other than Count I. The
defendants, however, have sought the dismissal of all of his claims, including Counts II through
V, which allege that more discrete aspects of the Act violate particular constitutional protections,
regardless of whether they were applied prospectively or retrospectively. The court, accordingly,
will consider those claims, but will limit its analysis to the sufficiency of Doe’s allegations for
the purposes of Rule 12(b)(6), not whether he has established a likelihood of success.
1.Count II
Count II is based on the defendants’ alleged interference in Doe’s “right to engage and
participate in the ordinary occupations of life.” (Doc. No. 1 ¶ 105.) In response to the Motion to
Dismiss, however, Doe, who has worked steadily while subject to the Act, states that he does not

object to the dismissal of this count. The court, therefore, will dismiss Count II without engaging
in an unnecessary inquiry into the substance of the claim.
2. Count III
In his Complaint, Doe alleges that the Act violates his First Amendment rights in three
ways: first, the requirement that he disclose various information about his internet activity
burdens his access to the internet in a way that is not narrowly tailored to a compelling
government interest; second, those same restrictions effectively eliminate his ability to engage in
anonymous speech, which courts have recognized as a particular burden on expression; and,
third, the Act “prevents [him] from participating in associations due to restrictions and the
associated stigma from being branded as a registered sex offender.” (Id. ¶ 113.) The defendants

argue that none of these complaints renders the Act unconstitutional, either on its face or as
applied to Doe.
There is little doubt that the Act, as written, places some burdens on Doe’s speech. There
is, for one thing, simply the administrative burden of keeping track of, and timely reporting,
every account he uses on any website capable of communication. Additionally, his concerns
about his inability to maintain his anonymity, particularly from law enforcement, are also, as
pleaded, plausible. “[A]n author's decision to remain anonymous, like other decisions concerning
omissions or additions to the content of a publication, is an aspect of the freedom of speech
protected by the First Amendment.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342
(1995). As a practical matter, there are countless constitutionally protected messages that a
person might rationally wish to convey while retaining his anonymity, especially from law
enforcement. For example, it is clear that Doe considers his inclusion on the registry to be an
extraordinarily taxing, humiliating, and unnecessary burden on his life, and the substantial

amount of litigation on this issue shows that he is not alone. But Doe, like other registrants, is
also continually at the mercy of the very officials that his complaints criticize, who possess
discretion with regard to how aggressively they will monitor his compliance with the Act and his
parole. Doe’s inability to, among other things, speak out against the Act without potentially
drawing the ire of law enforcement raises legitimate constitutional concerns.
That said, the restrictions on Doe’s online speech create hurdles and burdens but do not
outright prevent him from conveying any protected message, other than by making that message
anonymous to the state. “[G]overnment action that merely regulates the time, place, and manner
of protected speech, that is, ‘regulations that are unrelated to the content of speech[,] are subject
to an intermediate level of scrutiny.’” Planet Aid v. City of St. Johns, Mich., 782 F.3d 318, 326

(6th Cir. 2015) (quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994)). “Under
this test, the government may impose reasonable content-neutral restrictions on the time, place,
or manner of protected speech, provided the restrictions: (1) ‘serve a significant governmental
interest;’ (2) are ‘narrowly tailored;’ and (3) ‘leave open ample alternative channels for
communication of the information.’” Phelps-Roper v. Strickland, 539 F.3d 356, 362 (6th Cir.
2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). In light of the highly
factual nature of those inquiries, several district courts have declined to dismiss claims such as
Doe’s on the ground that they were, at least, plausible and should be evaluated with the benefit
of a factual record. See Jackson, 2020 WL 7496528, at *8; Doe v. Gwyn, 2018 WL 1957788, at
*10; Haslam, 2017 WL 5187117, at *18. This court agrees and will not dismiss his claims based
on freedom of speech at this juncture.
The defendants argue that, even if the court permits Count III to proceed with regard to
the alleged violations of Doe’s speech rights, the court should dismiss Doe’s claims insofar as

they are based on alleged violations of his right to freedom of association. Unlike Doe’s speech-
based claims, his association-based claims are focused, in particular, on the “associated stigma
from being branded as a registered sex offender,” which, Doe claims, “prevents [him] from
participating in associations.” (Doc. No. 1 ¶ 113.) For example, Doe states that he “joined a
fitness facility affiliated with a church in Hendersonville, Tennessee, until someone there told
him he was not welcome due to his status on the sex offender registry.” (Id. ¶ 72.) He also claims
that he “was an avid member of a local church, until . . . [c]hurch leadership required [him] to
submit to numerous conditions and restrictions to participate in church functions, which
communicated to [him] that he was not welcome there.” (Id. ¶ 73.) The defendants argue that
Doe has not identified any caselaw stating that a stigmatic injury of the type Doe alleges is a

ground for finding a violation of his constitutional right to association.
The term “association” does not appear in the text of the First Amendment itself, but the
Amendment has long been recognized to reach, by extension from the rights specifically
enumerated, “the right to associate for the purpose of speaking.” Hartwell v. Houghton Lake
Cmty. Sch., 755 F. App’x 474, 477 (6th Cir. 2018) (quoting Rumsfeld v. Forum for Acad. &
Inst’l Rights, Inc., 547 U.S. 47, 68 (2006)). In addition to that First Amendment right of
expressive association, the Supreme Court has recognized that “freedom of association” is an
appropriate paradigm for construing the constitutional protection afforded to “choices to enter
into and maintain certain intimate human relationships.” Roberts v. U.S. Jaycees, 468 U.S. 609,
617 (1984); see also Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir. 2004) (observing
that “courts have recognized both personal friendships and non-marital romantic relationships as
the types of ‘highly personal relationships’ within the ambit of intimate associations
contemplated by” the constitutional right of freedom to associate) (citing Akers v. McGinnis, 352

F.3d 1030, 1039 (6th Cir. 2003)). The parties therefore agree that, under current caselaw, Doe
possesses certain rights to free association that the State of Tennessee cannot impinge upon
without surviving heightened scrutiny.
Nevertheless, the defendants are correct that there is no caselaw suggesting that
accurately including an individual on a sexual offender registry, based on a valid conviction that
meets the requirements of that registry, raises a meaningful freedom of association issue simply
because forging relationships is made more difficult based on the associated stigma. The criminal
justice system, by its very operation, routinely stigmatizes individuals in ways that may make it
harder for them to find communities in which they can participate. Indeed, even if Doe had never
been made subject to the Act, he would likely face social stigma based on his rape convictions

and his lengthy period of incarceration. Although such stigmas may be difficult to live with, they
have not been held to pose constitutional problems.
There is simply no ground for concluding, under current caselaw, that an accurate
government record that reflects poorly on a person, in and of itself, gives rise to a plausible
association-based claim. Such a government record may, as a practical matter, affect an
individual’s relationships. Virtually any government action, however, has the capacity to
negatively impact someone’s important interpersonal relationships. If that was all that it took to
raise a constitutional question, then the potential litigation would be endless. This court,
therefore, is not inclined to stray beyond the existing caselaw to hold that the right of freedom to
associate can be implicated as indirectly as it has been implicated here.
That does not mean that Doe’s stigmatic injuries are without constitutional dimension or
that his association rights are not threatened by the Act. To the contrary, the Sixth Circuit’s

caselaw makes clear that the Act’s stigmatizing of registrants is one of the issues accounted for
in the Ex Post Facto Clause analysis. Moreover, the freedom to associate, as the court has
explained, is closely tied to the right of freedom of speech, which the Act unambiguously does
implicate. There may be aspects of Doe’s claims about restrictions on his online behavior, for
example, that implicate his freedom of association, because he might wish to use websites, not
only to speak, but also to associate with others. Nothing about the court’s rejection of Doe’s
discrete, stigma-based freedom of association claims should suggest that his right of free
association is irrelevant to the claims that the court is not dismissing. That said, the defendants
have correctly pointed out that some of the claims alleged in Count III do not state plausible
grounds for relief, and the court will, accordingly, dismiss that count in part.

3. Count IV
Count IV is based on the Act’s “interfere[nce] with [Doe’s] ability and right to travel.”
(Doc. No. 1 ¶ 118.) In particular, Doe alleges that, although “[a]nyone on parole supervision in
Tennessee is required to obtain a travel permit to travel out-of-state,” Tennessee requires that
“[p]arolees who are on the sex offender registry must also obtain a signature on the travel permit
from the state they are visiting.” (Id. ¶ 76.) According to the Complaint, Doe has found this
requirement almost impossible to comply with. He “traveled once to New York, and once to
Florida. When [he] arrived at the police stations in each location to obtain the required signature,
no one with either police department would sign his permit.” (Id. ¶ 77.)
As the defendants concede, “the Supreme Court has recognized a protected right to
interstate travel” inherent in the Constitution. League of United Latin Am. Citizens v. Bredesen,
500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe, 526 U.S. 489, 500 (1999)). “A state law
implicates the right to travel when it actually deters travel, when impeding travel is its primary

objective, or when it uses a classification that serves to penalize the exercise of the right.” Id. at
535 (citing Attorney Gen. of N.Y. v. Soto–Lopez, 476 U.S. 898, 903 (1986)). While “not every
policy that possibly burdens the right to travel triggers strict scrutiny,” Pencak v. Concealed
Weapon Licensing Bd. for Cty. of St. Clair, 872 F. Supp. 410, 414 (E.D. Mich. 1994), “[s]trict
scrutiny is required” if the court concludes that the constitutional right to interstate travel has
actually been “impinge[d].” Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 262 n.21 (1974).
To determine whether impingement has occurred, “[t]he court must consider whether the
policy at issue deter[s] migration or serves to penalize the right to travel.” Pencak, 872 F. Supp.
At 414 (citing Mem’l Hosp., 415 U.S. at 257). Strict scrutiny will not apply if the burden on the
right ro travel is merely “incidental and negligible.” League of United Latin Am. Citizens v.

Bredesen, 500 F.3d 523, 535 (6th Cir. 2007) (citing Town of Southold v. Town of East Hampton,
477 F.3d 38, 54 (2d Cir. 2007)). If, however, strict scrutiny does apply, then the law can only be
held to be constitutional if it is “narrowly tailored to a compelling governmental interest.” Does
v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Seal v. Morgan, 229 F.3d 567, 574 (6th
Cir. 2000)).
An express restriction on interstate travel unless certain conditions are met plainly
implicates the constitutional right of travel because it raises the possibility of an individual’s
being punished solely for traveling from one state to another. That does not, of course, mean that
all such restrictions are invalid. The court notes that restrictions on interstate travel are common
for individuals on parole, and, indeed, Doe does not challenge Tennessee’s general policy of
requiring travel permits of parolees. Doe argues, rather, that the increased requirements he faces
as a parolee on the sexual offender registry go beyond what strict scrutiny would permit.
For the purposes of Rule 12(b)(6), the court must accept, as true, Doe’s assertions that (1)

he would not face the destination-state signature requirement if he were not on the registry and
(2) complying with that requirement has been and is likely to continue to be prohibitively
difficult. In that light, Doe has pleaded Count IV with sufficient plausibility to proceed past the
motion to dismiss stage. A factual record might reveal that his registry status does not, in fact,
result in a restriction of his right to travel in significant excess of that imposed on other parolees.
The record might also reveal that the signature requirement that Doe challenges is not as difficult
to satisfy as he believes. For now, however, he has adequately alleged that, because he is on the
registry, he is required to comply with an additional requirement that, in practice, amounts to a
substantial, if not prohibitive, restriction on his ability to cross state lines. The court, accordingly,
will not dismiss Count IV based on the face of the Complaint.

4. Count V
Count V is based on the Act’s interference with Doe’s “right to direct the education and
upbringing of [his] children.” (Doc. No. 1 ¶ 123.) The Supreme Court has repeatedly recognized
that “fundamental rights and liberty interests” entitled to a heightened level of constitutional
protection include, not only “the specific freedoms protected by the Bill of Rights,” but also,
among other things, the rights to marry, have children, and direct the education and upbringing
of those children. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (listing cases). Doe
argues that the Act has interfered in his parental rights through its restrictions on his ability to
attend and engage in school functions, as well as the travel restrictions that allegedly have
prevented him from participating fully in the life of his out-of-state daughter.
As with Doe’s claim based on his constitutional right to interstate travel, the viability of
this claim is likely to hinge, in significant part, on factual questions regarding how severely the
Act’s requirements interfere in Doe’s life and how much of that interference can be attributed to
his registry status rather than his unchallenged status as a parolee. There is a point at which a
sexual offender registration statute’s indiscriminate interference in parenting activities of
offenders who have not been shown to pose a risk to children will fail constitutional scrutiny,
even if the law is ostensibly premised on the undeniably compelling state interest of protecting
child welfare. See Doe v. Snyder, 101 F. Supp. 3d 672, 699 (E.D. Mich. 2015). Whether such a
violation has occurred in Doe’s case, however, depends both on the details of the Act’s
application to Doe as well as the question of what alternative legislative options the State of
Tennessee might have had to address the issue of child safety in a less restrictive manner.
Because Doe has alleged a claim that is at least plausible, the court will not dismiss Count V.
V. CONCLUSION
For the foregoing reasons, Doe’s Motion for Preliminary Injunction (Doc. No. 15) will be
granted, and the defendants’ Motion to Dismiss (Doc. No. 24) will be granted in part and denied
in part. Count II will be dismissed in its entirety, and Count III will be dismissed in part.
An appropriate order will enter.
bhttil dag —
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669680. Public record. Not legal advice.