Cornelio v. Connecticut

20-4106-cv

Cornelio v. Connecticut

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2021

No. 20-4106-cv

JAMES P. CORNELIO,

Plaintiff-Appellant,

v.

STATE OF CONNECTICUT, STRAVROS MELLEKAS, IN HIS OFFICIAL

CAPACITY AS COMMANDER OF THE CONNECTICUT DEPARTMENT OF

EMERGENCY SERVICES AND PUBLIC PROTECTION (DESPP), DET.

DEBBIE JENEY, JOHN DOE, IN HIS INDIVIDUAL CAPACITY, JANE DOE, IN

HER INDIVIDUAL CAPACITY,

Defendants-Appellees. *

On Appeal from the United States District Court

for the District of Connecticut

ARGUED: OCTOBER 7, 2021

DECIDED: APRIL 26, 2022

* The Clerk of Court is directed to amend the caption as set forth above.

Before: JACOBS and MENASHI, Circuit Judges, and CRONAN,

District Judge. †

Plaintiff-Appellant James P. Cornelio filed a pro se federal

action in the U.S. District Court for the District of Connecticut against

the State of Connecticut, Colonel Stavros Mellekas in his official

capacity as commander of the Connecticut Department of Emergency

Services and Public Protection, and retired Detective Debbie Jeney in

her individual capacity, alleging three constitutional claims under 42

U.S.C. § 1983. Cornelio alleged that those provisions of Connecticut’s

sex offender registration statute that required him to disclose his

email address and other internet communication identifiers and

periodically to verify his residence violated the First Amendment and

the Ex Post Facto Clause, respectively. Cornelio further alleged that

Detective Jeney engaged in malicious prosecution in violation of the

Fourth Amendment by seeking an arrest warrant for Cornelio’s

alleged failure to disclose one of his email addresses.

The district court dismissed all of Cornelio’s claims. With

respect to the First Amendment claim, the district court held that the

disclosure requirement burdens protected speech but nonetheless

survives intermediate scrutiny. In so holding, the district court

concluded that the disclosure requirement advances important

governmental interests and does not burden substantially more

speech than necessary to further that interest. The district court

dismissed Cornelio’s Ex Post Facto Clause claim because the quarterly

verification requirement was already in place when Cornelio engaged

in his underlying crimes in 2003. Lastly, the district court dismissed

† Judge John P. Cronan of the U.S. District Court for the Southern District

of New York, sitting by designation.

2

Cornelio’s malicious prosecution claim, holding that Detective Jeney

was entitled to qualified immunity. In so holding, the district

concluded that despite Cornelio’s repeated past use of an

unregistered email address to communicate with the Sex Offender

Registry Unit, Detective Jeney had arguable probable cause to seek

the arrest warrant.

We conclude that, at this preliminary stage, Cornelio has stated

a plausible First Amendment claim. We therefore reverse the district

court’s dismissal of that claim and remand for further proceedings.

We affirm the district court’s judgment with respect to Cornelio’s two

other claims.

JAMES P. CORNELIO, pro se, New Preston, CT, for Plaintiff-

Appellant.

ROBERT S. DEARINGTON, Assistant Attorney General

(Clare Kindall, Solicitor General, on the brief), for William

Tong, Attorney General of the State of Connecticut,

Hartford, CT, for Defendants-Appellees.

MENASHI, Circuit Judge:

The State of Connecticut, like other states, has a comprehensive

sex offender registration law. See Conn. Gen. Stat. § 54-250 et seq. The

Department of Emergency Services and Public Protection (“DESPP”)

and the Sex Offender Registry Unit (“SORU”), a unit of the State

Police within the DESPP, administer the law. Two provisions of the

sex offender registration law are at issue in this case. The first is a

disclosure requirement pursuant to which a registered sex offender

3

must notify the DESPP when he creates a new email address, instant

messenger address, or other internet communication identifier. The

second is a residence verification provision, which requires that a sex

offender verify his residential address every 90 days or on a quarterly

basis.

Plaintiff-Appellant James P. Cornelio, a convicted sex offender,

filed a pro se federal action in the U.S. District Court for the District

of Connecticut against the State of Connecticut, Colonel Stavros

Mellekas in his official capacity as commander of the DESPP, and

retired Detective Debbie Jeney—a former detective in the SORU—in

her individual capacity. Cornelio asserted three claims under 42

U.S.C. § 1983. First, he alleged that the disclosure requirement

violates the Speech Clause of the First Amendment, applicable to the

states under the Due Process Clause of the Fourteenth Amendment.

Second, Cornelio alleged that the residence verification provision

violates the Ex Post Facto Clause as applied to him. Third, he alleged

that Jeney violated the Fourth Amendment by initiating a malicious

prosecution against him when she sought an arrest warrant for

Cornelio’s alleged failure to disclose one of his email addresses to the

SORU.

The district court (Meyer, J.) granted the defendants’ motion to

dismiss all three claims. The district court dismissed Cornelio’s First

Amendment claim for failure to state a claim, holding that although

the disclosure requirement burdens protected speech it survives

intermediate scrutiny. In so holding, the district court concluded that

the disclosure requirement advances important governmental

interests and does not burden substantially more speech than

necessary to further those interests. The district court dismissed

Cornelio’s Ex Post Facto Clause claim because the residence

4

verification provision was already in place when Cornelio engaged in

the underlying crimes in 2003. Finally, the district court dismissed

Cornelio’s malicious prosecution claim, holding that Jeney is entitled

to qualified immunity. Despite Cornelio’s past use of an unregistered

email address to communicate with the SORU, the district court

explained, Jeney had arguable probable cause to seek the arrest

warrant for Cornelio’s failure to register that email address.

We reverse the district court’s dismissal of Cornelio’s First

Amendment claim. Assuming intermediate scrutiny is the

appropriate standard of review, we conclude that the disclosure

requirement plausibly fails intermediate scrutiny and therefore

Cornelio has stated a First Amendment claim. We affirm the district

court’s dismissal of Cornelio’s Ex Post Facto Clause claim because the

residence verification provision was enacted before Cornelio

committed his crimes. We also affirm the district court’s dismissal of

Cornelio’s malicious prosecution claim because Jeney is entitled to

qualified immunity. The case is remanded for further proceedings

consistent with this opinion.

BACKGROUND

I

The requirements of Connecticut’s sex offender registration

law apply to all persons convicted of criminal offenses against a

minor, violent and nonviolent sexual offenses, and felonies

committed for a sexual purpose. See Conn. Gen. Stat. §§ 54-251 to -252.

Cornelio was convicted in 2005 in New York State for one count

of a criminal sexual act in the second degree, in violation of N.Y. Penal

Law § 130.45(1), and for ten counts of possessing a sexual

5

performance by a child, in violation of N.Y. Penal Law § 263.16. The

underlying conduct occurred in 2003. Because he is now a resident of

Connecticut, Cornelio is subject to Connecticut’s sex offender

registration law, see Conn. Gen. Stat. § 54-253, and he challenges two

provisions of that law.

First, the disclosure requirement mandates that a registered sex

offender must provide all of his internet communication identifiers to

the DESPP. As part of his initial registration, a registrant must

disclose to the Commissioner of the DESPP his “electronic mail

address, instant message address or other similar Internet

communication identifier” on “such forms and in such locations as

the commissioner shall direct.” Id. § 54-251(a). 1 The law also imposes

a continuing obligation to “notify” the Commissioner of the DESPP

“in writing” if the registrant “establishes or changes an electronic mail

address, instant message address or other similar Internet

communication identifier.” Conn. Gen. Stat. § 54-253(b). If a registrant

fails to comply with the disclosure requirement he is “guilty of a class

D felony” once “such failure continues for five business days.” Id.

§ 54-253(e).

Second, the residence verification provision requires that a

registrant verify his residential address every 90 days or on a

quarterly basis. Id. § 54-257(c). Under the provision, the DESPP “shall

verify the address of each registrant by mailing a nonforwardable

verification form” to the registrant’s last reported address, and the

registrant must return the form by mail within ten days. Id. Failing to

1 Pursuant to Conn. Gen. Stat. § 54-253(a), this requirement applies to

offenders such as Cornelio who reside in Connecticut but were convicted

of a sex offense in a jurisdiction outside of Connecticut.

6

return the verification form results in the issuance of an arrest

warrant. Id. The residence verification provision was adopted as part

of the original enactment of the sex offender registration law in 1998.

See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65), § 8(b) (West).

II

This case arises from Cornelio’s arrest for his alleged failure to

notify the DESPP of his email address. The arrest was executed

pursuant to an arrest warrant that issued based on an affidavit

submitted by Jeney, who at that time was a detective in the SORU.

After recounting Cornelio’s sex offense convictions in New York, the

affidavit stated that when Cornelio initially registered in March 2008,

he was advised of the requirement to notify the SORU “in writing of

any electronic mail address, instant messaging address or similar

communication identifier that is established, changed, or used” by

him. App’x 22. The affidavit further stated that when Cornelio first

registered, he provided a single email address.

The affidavit then described how Cornelio emailed the SORU

in 2010 and multiple times in 2015 using an email address—ending

with “aol.com”—that was different than the one he originally

reported. The AOL email address was allegedly not included on the

verification form that was sent to Cornelio, and Cornelio’s sex

offender registry file noted that he “has not reported” the AOL email

address. Id. The affidavit concluded that Cornelio’s failure to provide

a formal notification to the SORU identifying the AOL email address

violated the disclosure requirement under § 54-253.

Based on the affidavit, a state court judge issued the arrest

warrant. The judge concluded that the affidavit provided probable

cause to believe that Cornelio committed an offense that would justify

7

issuance of an arrest warrant. Cornelio was arrested in April 2018.

Shortly after the arrest, the case was dismissed.

III

On August 9, 2018, Cornelio filed a pro se action in the U.S.

District Court for the District of Connecticut challenging, under 42

U.S.C. § 1983, the disclosure requirement as a violation of the First

Amendment, the residence verification provision as a violation of the

Ex Post Facto Clause, and Jeney’s conduct as a malicious prosecution

in violation of the Fourth Amendment. Cornelio sought injunctive

relief against the State of Connecticut and Mellekas to prevent the

further application to him of the disclosure requirement and the

residence verification provision. He sought damages from Jeney

based on the malicious prosecution claim. The defendants moved to

dismiss Cornelio’s complaint for lack of standing under Federal Rule

of Civil Procedure 12(b)(1) and for failure to state a claim under Rule

12(b)(6).

The district court granted the motion to dismiss under Rule

12(b)(6). Cornelio v. Connecticut, No. 19-CV-01240, 2020 WL 7043268,

at *1 (D. Conn. Nov. 30, 2020), as amended (Dec. 9, 2020). The district

court dismissed Cornelio’s First Amendment claim, holding that

although the disclosure requirement burdens protected speech it

nonetheless survives intermediate scrutiny. Id. at *10. The district

court concluded that the disclosure requirement advances important

governmental interests unrelated to the suppression of speech and

does not burden substantially more speech than necessary to further

those interests. Id. The district court dismissed Cornelio’s Ex Post

Facto Clause claim because the residence verification provision was

already in place when Cornelio committed his crimes in 2003. Id. at

8

*6. The district court also dismissed Cornelio’s malicious prosecution

claim, holding that Jeney was entitled to qualified immunity. Id. at *5.

Even though Cornelio had used the AOL email address to

communicate with the SORU, the district court concluded that Jeney

had arguable probable cause to seek the arrest warrant for the failure

formally to report it. Id.

STANDARD OF REVIEW

“We review a district court’s grant of a motion to dismiss de

novo, accepting as true all factual claims in the complaint and drawing

all reasonable inferences in the plaintiff’s favor.” Henry v. County of

Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks

omitted). A court’s function on a Rule 12(b)(6) motion is “not to weigh

the evidence that might be presented at a trial but merely to determine

whether the complaint itself is legally sufficient.” Festa v. Loc. 3 Int’l

Brotherhood of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990).

Consequently, a complaint will survive a motion to dismiss under

Rule 12(b)(6) if it alleges facts that, taken as true, establish plausible

grounds to sustain a plaintiff’s claim for relief. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018).

DISCUSSION

I

We begin with whether Cornelio has stated a First Amendment

claim. To answer that question, we proceed in three steps. First, we

conclude that the disclosure requirement burdens protected speech

and therefore must survive heightened scrutiny. Assuming that

intermediate scrutiny is the appropriate standard, we then explain

what that scrutiny requires. Finally, based on the allegations of the

complaint, we conclude that the disclosure requirement plausibly

9

fails intermediate scrutiny. Accordingly, the district court erred in

dismissing Cornelio’s First Amendment claim under Rule 12(b)(6).

A

In evaluating Cornelio’s First Amendment claim, we must

determine whether the disclosure requirement burdens protected

speech and therefore triggers heightened scrutiny. We conclude it

does.

First, the disclosure requirement burdens a registrant’s “ability

and willingness to speak on the Internet.” Doe v. Harris, 772 F.3d 563,

572 (9th Cir. 2014). The disclosure requirement obliges a registrant to

notify the DESPP each time he creates a new “electronic mail address,

instant message address or other similar Internet communication

identifier.” Conn. Gen. Stat. § 54-253(b). Thus, whenever a registrant

seeks to use a new identifier to communicate online, he must report

that identifier in a timely fashion. In addition to the administrative

burden that § 54-253(b) imposes on online communications, any error

in compliance can result in a class D felony punishable by up to five

years in prison and a $5,000 fine. Id. §§ 54-253(e), 53a-35a(8), 53a-41.

In this way, the disclosure requirement plausibly deters registrants

from engaging in protected online speech. See Zieper v. Metzinger, 474

F.3d 60, 65 (2d Cir. 2007) (“It is well-established that First Amendment

rights may be violated by the chilling effect of governmental action

that falls short of a direct prohibition against speech.”) (internal

quotation marks omitted).

Second, the disclosure requirement applies specifically to

speakers engaged in online communication. The disclosure

requirement targets “conduct with a significant expressive

element”—the use of communications identifiers—and therefore

10

“has the inevitable effect of singling out those engaged in expressive

activity.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986). The

disclosure requirement imposes its burdens precisely when a

registrant decides to engage in online speech using a communication

identifier. That implicates the First Amendment, even if it is possible

to distinguish between the identifier and the speech itself. See

Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue, 460 U.S. 575,

592 (1983) (“[E]ven regulations aimed at proper governmental

concerns can restrict unduly the exercise of rights protected by the

First Amendment.”). When a law imposes “special obligations” or

“special burdens” on those engaged in speech, “some measure of

heightened First Amendment scrutiny is demanded.” Turner Broad.

Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 641 (1994).

Third, the disclosure requirement prevents a registrant from

speaking anonymously. A speaker’s decision “to remain anonymous

… 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). “Under our Constitution,” anonymous speech is “an

honorable tradition of advocacy and of dissent.” Id. at 357. It

“exemplifies the purpose behind the Bill of Rights, and of the First

Amendment in particular: to protect unpopular individuals from

retaliation—and their ideas from suppression.” Id.; see also Talley v.

California, 362 U.S. 60, 64 (1960) (“Anonymous pamphlets, leaflets,

brochures and even books have played an important role in the

progress of mankind.”). The First Amendment protects this interest

in anonymous speech as much on the internet as in other fora.

“Although the Internet is the latest platform for anonymous speech,

online speech stands on the same footing as other speech—there is ‘no

basis for qualifying the level of First Amendment scrutiny that should

11

be applied’ to online speech.” In re Anonymous Online Speakers, 661

F.3d 1168, 1173 (9th Cir. 2011) (quoting Reno v. ACLU, 521 U.S. 844,

870 (1997)). The disclosure requirement does not avoid First

Amendment scrutiny because the identifiers are disclosed to the

government rather than to the general public. Cf. Ams. for Prosperity

Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021) (“Our cases have said that

disclosure requirements can chill association even if there is no

disclosure to the general public.”) (internal quotation marks and

alterations omitted). 2 It is “offensive … to the values protected by the

First Amendment” that “a citizen must first inform the government

of her desire to speak.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Village of Stratton, 536 U.S. 150, 165-66 (2002).

The Supreme Court has subjected disclosure requirements to

heightened scrutiny when such requirements might deter First

Amendment protected activity. See Ams. for Prosperity, 141 S. Ct. at

2388 (“[I]dentification and fear of reprisal might deter perfectly

peaceful discussions of public matters of importance.”) (quoting

Talley, 362 U.S. at 65). “The risk of a chilling effect” on association or

speech “is enough, ‘because First Amendment freedoms need

breathing space to survive.’” Id. at 2389 (alteration omitted) (quoting

NAACP v. Button, 371 U.S. 415, 433 (1963)). Because the disclosure

requirement of § 54-253(b) risks chilling online speech, anonymous

and otherwise, it is subject to heightened scrutiny under the First

Amendment.

2 Moreover, the statute appears to allow disclosure beyond government

officials. See infra section I.D.2.

12

B

The district court determined that the disclosure requirement

“is not subject to strict scrutiny but instead to intermediate scrutiny”

because the burden on speech “is content-neutral and not

impermissibly speaker-based.” Cornelio, 2020 WL 7043268, at *8; see

Turner I, 512 U.S. at 662 (“[T]he intermediate level of scrutiny [is]

applicable to content-neutral restrictions that impose an incidental

burden on speech.”). We need not decide in this appeal whether strict

or intermediate scrutiny properly applies. Cornelio does not contest

the district court’s application of intermediate scrutiny and, because

he states a plausible claim even under intermediate scrutiny, the level

of scrutiny would not alter our decision. See McCutcheon v. FEC, 572

U.S. 185, 199 (2014) (plurality opinion) (explaining that because a

statute “fail[s] even under the [less demanding] test,” the Court “need

not parse the differences between the two standards in this case”);

Packingham v. North Carolina, 137 S. Ct. 1730, 1739 (2017) (Alito, J.,

concurring in the judgment) (“Like the Court, I find it unnecessary to

resolve this dispute because the law in question cannot satisfy the

standard applicable to a content-neutral regulation of the place where

speech may occur.”). We proceed on the assumption that

intermediate scrutiny is the appropriate standard.

C

The burden of demonstrating that the disclosure requirement

satisfies intermediate scrutiny falls on the government. Edenfield v.

Fane, 507 U.S. 761, 770 (1993) (“It is well established that the party

seeking to uphold a restriction on … speech carries the burden of

justifying it.”) (internal quotation marks and alteration omitted). To

carry that burden, the government must show that the challenged law

13

“(1) ‘advances important governmental interests unrelated to the

suppression of free speech’ and (2) ‘does not burden substantially

more speech than necessary to further those interests.’” Time Warner

Cable Inc. v. FCC, 729 F.3d 137, 160 (2d Cir. 2013) (quoting Turner

Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 189 (1997)).

To establish that the law advances important governmental

interests, the government “must do more than simply posit the

existence of the disease sought to be cured. It must demonstrate that

the recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and material

way.” Turner I, 512 U.S. at 664 (internal quotation marks and citation

omitted); see also City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S.

488, 496 (1986) (“This Court ‘may not simply assume that the

ordinance will always advance the asserted state interests sufficiently

to justify its abridgment of expressive activity.’”) (quoting Members of

City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n.22 (1984)).

When “trenching on first amendment interests, even incidentally, the

government must be able to adduce either empirical support or at

least sound reasoning on behalf of its measures.” Turner I, 512 U.S. at

666 (quoting Century Commc’ns Corp. v. FCC, 835 F.2d 292, 304 (D.C.

Cir. 1987)). Therefore, the government cannot rely on “speculation or

conjecture.” Edenfield, 507 U.S. at 770.

To establish that the law does not burden substantially more

speech than necessary, the government must demonstrate that the

law is “narrowly tailored” to serve the relevant interest. Ward v. Rock

Against Racism, 491 U.S. 781, 796 (1989); see also Bd. of Trs. v. Fox, 492

U.S. 469, 480 (1989) (“[T]he State … must affirmatively establish the

reasonable fit we require.”). Intermediate scrutiny does not demand

that the law follow the least restrictive means possible. See Ward, 491

14

U.S. at 798. But “the government must demonstrate that alternative

measures that burden substantially less speech would fail to achieve

the government’s interests, not simply that the chosen route is easier.”

McCullen v. Coakley, 573 U.S. 464, 495 (2014).

To satisfy intermediate scrutiny, the government must identify

evidence—or, at least, provide “sound reasoning” that “draw[s]

reasonable inferences based on substantial evidence”—that these two

requirements are met. Turner I, 512 U.S. at 666; see also McCullen, 573

U.S. at 495; IMS Health, Inc. v. Sorrell, 630 F.3d 263, 279 (2d Cir. 2010)

(“The burden is on the government to show that it ‘carefully

calculated’ costs and benefits of burdening speech.”) (quoting Greater

New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 188 (1999)), aff’d,

564 U.S. 552. 3 For that reason, “the norm is to wait until the summary

judgment stage of the litigation to address the ultimate question of

whether the ordinance should stand.” Graff v. City of Chicago, 9 F.3d

1309, 1322 (7th Cir. 1993); see also FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 221 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S.

41, 45 (1986); Taxpayers for Vincent, 466 U.S. at 793; Young v. Am. Mini

Theatres, Inc., 427 U.S. 50, 55 (1976).

The dismissal of a claim challenging a law that abridges

protected speech “will rarely, if ever, be appropriate at the pleading

stage. Instead, factual development will likely be indispensable to the

assessment of whether [such a law] is constitutionally permissible.”

Bruni v. City of Pittsburgh, 824 F.3d 353, 357 (3d Cir. 2016); see also

Preferred Commc’ns, 476 U.S. at 495 (observing that it was not

3 Challengers also may introduce evidence showing that the requirements

are not met. See, e.g., City of Los Angeles v. Alameda Books, 535 U.S. 425, 438-

39 (2002).

15

“desirable to express any more detailed views on the proper

resolution of the First Amendment question … without a fuller

development of the disputed issues in the case”); Council of

Greenburgh Civic Ass’ns v. U.S. Postal Serv., 586 F.2d 935, 936-37 (2d

Cir. 1978) (“Careful balancing of the need for the statute against the

statute’s constriction of first amendment rights is called for. Full

development of the facts is essential for the court to strike this

balance.”) (citations omitted). 4 This is not to say that resolving a First

Amendment challenge will never be appropriate on a motion to

dismiss. But we conclude it was not appropriate here.

D

As noted, to survive intermediate scrutiny, the government

must show that the challenged law advances important governmental

interests and is narrowly tailored to those interests. The government

has not made that showing at this stage. Because the disclosure

requirement plausibly fails intermediate scrutiny, Cornelio has stated

a claim for violation of the First Amendment.

4 Some district courts considering claims such as Cornelio’s challenging

state sex offender registration requirements have reached the same

conclusion and declined to dismiss the claims in the absence of a developed

record. See, e.g., Doe v. Haslam, No. 16-CV-02862, 2017 WL 5187117, at *18

(M.D. Tenn. Nov. 9, 2017) (“At this stage, the Court can only speculate as to

the real-world effect of the Act on internet use, as well as the efficacy of

alternative requirements in furthering the government’s significant

interests.”); Doe v. Lee, No. 21-CV-28, 2021 WL 1907813, at *17 (M.D. Tenn.

May 12, 2021); Doe v. Gwyn, No. 17-CV-504, 2018 WL 1957788, at *10 (E.D.

Tenn. Apr. 25, 2018).

16

1

The government argues that the disclosure requirement

advances important governmental interests in deterring registrants

from using the internet (1) to “recruit, groom, entice, or otherwise

engage in communications with potential or actual sex abuse victims”

and (2) to “engage in the distribution or exchange of prohibited sexual

images.” Appellees’ Br. 33. Assuming that these interests in

deterrence are important and legitimate as well as genuine, 5 nothing

in the record demonstrates that the disclosure requirement advances

these interests in a “direct and material way,” Turner I, 512 U.S. at 664,

or provides more than “ineffective or remote support” for these

objectives, Edenfield, 507 U.S. at 770.

With no evidence demonstrating that the disclosure

requirement materially provides deterrence, the government relies on

two speculative propositions. First, a registered sex offender is less

likely to engage in sex-based crimes on the internet if he knows that

law enforcement possesses his email address and other internet

communication identifiers. Second, the disclosure requirement

provides law enforcement with a database that can be used to

determine the identity of someone engaged in online sex offenses. The

government, however, has not substantiated the deterrent effect and

5 The government’s asserted interests must be “genuine and not merely

post-hoc rationalizations.” Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 265 (2d

Cir. 2014); see Watchtower, 536 U.S. at 170 (Breyer, J., concurring) (noting that

an asserted interest in “crime prevention” was “not a strong one” because,

“[f]or one thing, there is no indication that the legislative body that passed

the ordinance considered this justification”). On remand, the district court

should inquire into the actual purpose of the law.

17

has not indicated whether the database has ever even been used. 6

Perhaps the government’s speculation may turn out to be justified,

but at this stage we cannot say that the government “has drawn

reasonable inferences based on substantial evidence,” Turner I, 512

U.S. at 666, and “accepting speculation in place of record evidence[]

does not amount to intermediate scrutiny,” United States v. Perez, 6

F.4th 448, 460 (2d Cir. 2021) (Menashi, J., concurring in the judgment).

A developed record may undermine the government’s

assertions. For example, in reviewing Michigan’s sex offender

registration law, the Sixth Circuit observed that “evidence in the

record” supported “a finding that offense-based public registration

has, at best, no impact on recidivism.” Does #1-5 v. Snyder, 834 F.3d

696, 704 (6th Cir. 2016); see Doe v. Prosecutor, 705 F.3d 694, 701 (7th Cir.

2013) (questioning whether, once sex offenders “are willing to break

the existing anti-solicitation law,” a law prohibiting the use of social

networking would “provide any more deterrence”). 7 The

government also may not be able to show that the database of internet

identifiers has actually assisted law enforcement efforts to arrest

6 See Oral Argument Audio Recording at 9:51 (government’s counsel

acknowledging that the record does not demonstrate that the disclosure

requirement has a deterrent effect).

7 Courts have made similar observations when considering other

registration requirements. See Watchtower, 536 U.S. at 170 (Breyer, J.,

concurring) (suggesting it is “intuitively implausible to think that [a

registration] ordinance serves any governmental interest in preventing …

crimes”); Serv. Emps. Int’l Union, Loc. 3 v. Municipality of Mt. Lebanon, 446

F.3d 419, 428 (3d Cir. 2006) (“[I]f [perpetrators] are not deterred by the

substantial criminal penalties which exist for burglary and violent crime, it

is not reasonable to expect that they will alter their behavior because of a

$300 fine for failing to register.”).

18

online predators. There would be a “dramatic mismatch” between the

asserted interest and “the disclosure regime that [the government]

has implemented in service of that end” if “there was not a single,

concrete instance” in which the database “did anything to advance

the [government’s] investigative, regulatory or enforcement efforts.”

Ams. for Prosperity, 141 S. Ct. at 2386 (internal quotation marks

omitted).

The government may be able to identify some empirical basis

for believing that the disclosure requirement materially advances an

important governmental interest. At this stage, however, Cornelio has

stated a plausible claim.

2

The government contends that the disclosure requirement does

not burden substantially more speech than necessary to further its

deterrence interests. But, even assuming that the disclosure

requirement materially advances those interests, the disclosure

requirement plausibly imposes an extra burden that unnecessarily

chills protected speech.

The government cannot normally justify a speech restriction by

reference to its interest in deterring crime. “The normal method of

deterring unlawful conduct is to impose an appropriate punishment

on the person who engages in it” rather than by regulating speech.

Bartnicki v. Vopper, 532 U.S. 514, 529 (2001); see Kingsley Int'l Pictures

Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free

men, the deterrents ordinarily to be applied to prevent crime are

education and punishment for violations of the law, not abridgment

of the rights of free speech.”) (quoting Whitney v. California, 274 U.S.

357, 378 (1927) (Brandeis, J., concurring)); see also Packingham, 137

19

S. Ct. at 1737 (majority opinion) (explaining that “narrowly tailored

laws that prohibit a sex offender from engaging in conduct that often

presages a sexual crime, like contacting a minor or using a website to

gather information about a minor … must be the State’s first resort to

ward off the serious harm that sexual crimes inflict”). To show that

the disclosure requirement is narrowly tailored, the government must

explain why criminal sanctions that do not implicate the First

Amendment would not provide adequate deterrence. Cf. Safelite, 764

F.3d at 266 (explaining that intermediate scrutiny is not satisfied

when an “alternative proposal[] … would have served the same

governmental interests, but would have been less burdensome on [the

plaintiff’s] speech rights”). It has not done so. 8

Even if the government had, Cornelio argues, the breadth of the

disclosure requirement provides another reason to doubt that it is

narrowly tailored. Registered sex offenders must disclose their

“electronic mail address, instant message address or other similar

Internet communication identifier.” Conn. Gen. Stat. § 54-253(b).

Cornelio argues that the catch-all phrase “Internet communication

identifier” broadens the disclosure requirement to internet platforms

with “any information input,” such as “Pacer and bank accounts.”

Appellant’s Br. 16. In response, the government provides a narrower

construction: the phrase “Internet communication identifier” limits

8 At oral argument, counsel for the government said that the laws

criminalizing illicit online conduct “should serve as deterrent, but clearly

there are individuals out there who, despite the criminal laws being in

place, are still recruiting and grooming individuals online, so it’s important

for the government to have this additional deterrent.” Oral Argument

Audio Recording at 9:19. That sidesteps the question of whether sanctions

that do not implicate speech could provide adequate deterrence.

20

the disclosure requirement to platforms that can be used to

communicate with others online. Appellees’ Br. 36-37. In other words,

the disclosure requirement applies to internet platforms “that …

allow back-and-forth comments between users.” Packingham, 137

S. Ct. at 1741 (Alito, J., concurring in the judgment).

At the motion to dismiss stage, we cannot say that Cornelio

does not plausibly allege that the disclosure requirement is

overbroad. Many platforms that allow communications between

users do not reasonably present a vehicle by which a sex offender can

communicate with minors or exchange prohibited sexual materials.9

“Broad prophylactic rules in the area of free expression are suspect.

Precision of regulation must be the touchstone in an area so closely

touching our most precious freedoms.” Edenfield, 507 U.S. at 777

(quoting Button, 371 U.S. at 438). Perhaps the statute may be

construed more narrowly than the government suggests on appeal.

But we “need not decide the precise scope of the statute” to conclude

9 See White v. Baker, 696 F. Supp. 2d 1289, 1310 (N.D. Ga. 2010) (“In the

Court’s experience, these communications are those that occur privately in

direct email transmissions, usually using a pseudonym, and in instant

messages. They generally do not occur in communications that are posted

publicly on sites dedicated to discussion of public, political, and social

issues.”); see also Packingham, 137 S. Ct. at 1741 (Alito, J., concurring in the

judgment) (“The fatal problem for [a law] is that its wide sweep precludes

access to a large number of websites that are most unlikely to facilitate the

commission of a sex crime against a child.”); Simon & Schuster, Inc. v.

Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 122 n.* (1991) (“A

regulation is not narrowly tailored—even under the more lenient tailoring

standards applied in Ward and Renton—where … a substantial portion of

the burden on speech does not serve to advance the State’s content-neutral

goals.”) (internal quotation marks and alteration omitted).

21

that Cornelio states a claim. Packingham, 137 S. Ct. at 1737 (majority

opinion).

The disclosure requirement also plausibly appears to be

overbroad because it applies to all persons subject to the sex offender

registration law, including registrants who have never engaged in the

sort of illicit online activity that the government seeks to deter. See

Conn. Gen. Stat. §§ 54-251 to -252. If the disclosure requirement

applies to a broad class beyond those who are likely to engage in the

conduct the government seeks to deter, it would be “significantly

overinclusive” rather than narrowly tailored. Simon & Schuster, 502

U.S. at 121. The government has not explained why the disclosure

requirement cannot be more narrowly targeted. 10 As other courts

have noted, “[a] regulatory scheme designed to further the state’s

legitimate interest in protecting children from communication

enticing them into illegal sexual activity should consider how and

where on the internet such communication occurs.” White, 696

F. Supp. 2d at 1309. To show narrow tailoring, the government must

demonstrate that a less burdensome alternative—requiring

disclosure only for those online platforms that facilitate solicitation or

the exchange of illicit material, for example, or only for those persons

likely to engage in such conduct—would not advance the asserted

governmental interests.

The government argues that the disclosure requirement is

narrowly tailored because, under the registration statute, the DESPP

10 The government acknowledges that it lacks information about the

proportion of registrants who have engaged in internet-related conduct and

therefore might be likely to engage in such conduct again. See Oral

Argument Audio Recording at 15:38.

22

may share a registrant’s internet communication identifiers only with

“law enforcement officials” and only for the “purpose of investigating

potential crimes.” Appellees’ Br. 35. As a result, a registrant can

“participate in anonymous speech online” as long as he does not

engage in unlawful activity that could “engender a law enforcement

investigation.” Id. This argument does not answer the narrow

tailoring inquiry, which focuses on “the extent to which the burdens

are unnecessary.” Ams. for Prosperity, 141 S. Ct. at 2385. It helps the

government’s case if the disclosure requirement does not compound

the burden on speech by releasing a registrant’s identifiers to the

public. But the government must still justify the burden that exists.

“There is no de minimis exception for a speech restriction that lacks

sufficient tailoring or justification.” Lorillard Tobacco Co. v. Reilly, 533

U.S. 525, 567 (2001).

To the extent the government argues that a required disclosure

to the government rather than to the public will necessarily survive

intermediate scrutiny, it is mistaken. A disclosure requirement may

violate the First Amendment “even if there is no disclosure to the

general public.” Ams. for Prosperity, 141 S. Ct. at 2388 (alterations

omitted) (quoting Shelton v. Tucker, 364 U.S. 479, 486 (1960)).

“[A]ssurances of confidentiality may reduce the burden of

disclosure” but “do not eliminate it.” Id.

Even putting that aside, moreover, the government’s insistence

that disclosure is limited to law enforcement personnel does not

appear to be consistent with the statutory text. The statute

contemplates sharing the identifiers with third parties when it

authorizes the DESPP to “adopt regulations … to specify the

circumstances under which and the persons to whom such identifiers

may be released including, but not limited to, providers of electronic

23

communication service or remote computing service … and operators

of Internet web sites.” Conn. Gen. Stat. § 54-258(a)(5). A separate

provision that addresses “the identity of any victim of a crime

committed by a registrant” expressly limits disclosure to

“government agencies.” Id. § 54-258(a)(3). The disclosure requirement

does not contain such a limitation for internet identifiers.

The text also provides reason to doubt that the identifiers may

be released only for “investigating potential crimes.” Appellees’ Br.

35. The statute allows disclosure not only for “law enforcement” but

also for “security purposes.” Conn. Gen. Stat. § 54-258(a)(5). This

language could encompass not only the investigation of crimes that

have occurred but also the prevention of conduct deemed to be

unsafe. See, e.g., White, 696 F. Supp. 2d at 1310 (recognizing that a

similar phrase could mean the “investigation of suspected or

identified criminal conduct,” “the development of investigative

leads,” or “any purpose determined appropriate by law enforcement

personnel to prevent criminal conduct”). For this reason, the statutory

phrase “law enforcement and security purposes” may not be “readily

susceptible” to a limiting construction that would confine its

application to the investigation of past crimes. Reno, 521 U.S. at 884. 11

11 As a result, we think that Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010),

is inapposite to this case. In Shurtleff, the Tenth Circuit upheld Utah’s sex

offender registration law against a First Amendment challenge. Id. at 1223-

26. The Utah law required sex offenders to register their “internet

identifiers” with the state. Id. This information was not to be “made

available” on the registration website, but it could be “share[d] … to assist

in investigating kidnapping and sex-related crimes.” Utah Code § 77-27-

21.5(2) (West 2010) (repealed 2012). The Tenth Circuit held that the

“broader statutory context, as well as the limited law-enforcement purposes

for which internet identifiers may be ‘shared’” meant that the statute was

24

In sum, the disclosure requirement plausibly fails intermediate

scrutiny because it may not materially advance the asserted interest

in deterrence and that interest may be achieved through a more

narrowly tailored alternative.

3

The district court purported to apply intermediate scrutiny in

this case, but its analysis more closely resembled rational basis

review. The government moved to dismiss Cornelio’s First

Amendment claim for lack of standing under Rule 12(b)(1) on the

ground that Cornelio failed to allege a concrete injury. The

government did not attempt to defend the disclosure requirement

under intermediate scrutiny, and therefore the government did not

assert that the disclosure requirement advances any governmental

interest or that it was narrowly tailored to that interest. Rather, the

district court supplied the reasons for why it thought the disclosure

requirement survived intermediate scrutiny. But “[u]nlike rational-

basis review,” intermediate scrutiny does not permit a court to

“supplant the precise interests put forward by the State with other

suppositions.” Edenfield, 507 U.S. at 768. It is the government’s burden

“readily susceptible of a much narrower construction” than advanced by

the plaintiff. Shurtleff, 628 F.3d at 1224. The court read the statute “as

permitting sharing only among law-enforcement agencies … and only for

the recited law-enforcement purposes.” Id. at 1225. The court thought the

language “to assist in investigating kidnapping and sex-related crimes”

was in turn also “readily susceptible” to a narrowing construction, “only

allowing state actors to look beyond the anonymity surrounding a

username in the course of an investigation after a new crime had been

committed.” Id. The Connecticut statute is materially different. Facially, the

statute does not permit sharing “only among law-enforcement agencies” or

only once a crime has been committed.

25

to demonstrate that the challenged law furthers important

governmental interests and is narrowly tailored. If the government

fails to make that showing, it cannot prevail. The district court cannot

supply a justification that the government fails to provide. See

Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1314 (11th Cir. 2017) (en

banc) (“Under heightened scrutiny …, a court may not come up with

hypothetical interests and rationales (or discover new evidence) that

might support legislation that restricts speech.”).

The district court’s approach conflicts with the mandate that

intermediate scrutiny must remain “sufficiently skeptical and

probing” of the government’s arguments “to provide the rigorous

protection that constitutional rights deserve.” Ramos v. Town of

Vernon, 353 F.3d 171, 181 (2d Cir. 2003). Once it is apparent that

heightened scrutiny applies, the government cannot be excused from

the obligation to identify evidence that supports its restriction of a

constitutional right. Turner I, 512 U.S. at 666; Craig v. Boren, 429 U.S.

190, 204 (1976) (requiring a “showing” that the government’s policy

“represents a legitimate, accurate” route to its end); see also United

States v. Virginia, 518 U.S. 515, 541-44 (1996) (evaluating such a

showing). When a court “simply accepts the government’s

assertions,” let alone when it excuses the government from even

making assertions, “the court undermines the protections of the

[First] Amendment … by watering down the intermediate scrutiny

the court purportedly applies to the challenged restriction into a form

of rational basis review.” Perez, 6 F.4th at 457-59 (Menashi, J.,

concurring in the judgment).

26

II

We next address Cornelio’s claim that the residence verification

provision, as applied to him, violates the Ex Post Facto Clause.

Article I of the Constitution provides that “[n]o State shall … pass any

… ex post facto Law.” U.S. Const., art. I, § 10, cl. 1. The Ex Post Facto

Clause forbids, among other things, “legislative action that

retroactively … makes more burdensome the punishment for a crime,

after its commission.” Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997)

(quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)); see also Calder v.

Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (noting that the Ex Post Facto

Clause prohibits “[e]very law that changes the punishment, and

inflicts a greater punishment, than the law annexed to the crime,

when committed”). A statute violates the Ex Post Facto Clause if it

“increase[s] the punishment for a crime after it is committed.” Doe v.

Cuomo, 755 F.3d 105, 110 (2d Cir. 2014).

Cornelio argues that the residence verification provision is

punitive. Yet his claim fails for the simple reason that the residence

verification provision was in place well before Cornelio committed

his crimes in 2003. See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65)

§ 8(b) (West). Because the residence verification provision has not

been applied to Cornelio retroactively, the Ex Post Facto Clause is not

implicated. See Weaver v. Graham, 450 U.S. 24, 30-31 (1981). We

therefore affirm the district court’s dismissal of Cornelio’s Ex Post

Facto Clause claim. 12

12 The district court also held that, to the extent Cornelio challenged the

disclosure requirement under the Ex Post Facto Clause, that claim fails too.

Cornelio abandoned any such claim on appeal, so we do not reach the issue

of whether the district court properly dismissed the claim. See United States

27

III

Finally, we address Cornelio’s claim for malicious prosecution

under the Fourth Amendment against Jeney. The district court

concluded that this claim failed because Jeney is entitled to qualified

immunity. We agree.

To state a § 1983 malicious prosecution claim a plaintiff “must

show a violation of his rights under the Fourth Amendment and must

establish the elements of a malicious prosecution claim under state

law.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir.

2010) (citations omitted); see also Manuel v. City of Joliet, 137 S. Ct. 911,

920 (2017) (“In defining the contours and prerequisites of a § 1983

claim, … courts are to look first to the common law of torts.”). Under

Connecticut law, a malicious prosecution claim requires proof that

“(1) the defendant initiated or procured the institution of criminal

proceedings against the plaintiff; (2) the criminal proceedings have

terminated in favor of the plaintiff; (3) the defendant acted without

probable cause; and (4) the defendant acted with malice, primarily for

a purpose other than that of bringing an offender to justice.” Spak v.

Phillips, 857 F.3d 458, 461 n.1 (2d Cir. 2017) (quoting Brooks v. Sweeney,

9 A.3d 347, 357 (Conn. 2010)).

The existence of probable cause is a complete defense to a

malicious prosecution claim. See Frost v. N.Y.C. Police Dep’t, 980 F.3d

231, 242-43 (2d Cir. 2020). But even when probable cause is lacking, a

police officer is entitled to qualified immunity if “(1) her conduct does

not violate clearly established statutory or constitutional rights of

v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (“It is well established that an

argument not raised on appeal is deemed abandoned.”) (internal quotation

marks omitted).

28

which a reasonable person would have known, or (2) it was

objectively reasonable for her to believe that her actions were lawful

at the time of the challenged act.” Betts v. Shearman, 751 F.3d 78, 82-83

(2d Cir. 2014) (internal quotation marks and alterations omitted). In

the context of a malicious prosecution claim, an officer’s decision to

initiate a prosecution “is objectively reasonable … if officers of

reasonable competence could disagree on whether the probable cause

test was met.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)

(internal quotation marks omitted); see also Dufort v. City of New York,

874 F.3d 338, 354 (2d Cir. 2017); Figueroa v. Mazza, 825 F.3d 89, 100 (2d

Cir. 2016).

In evaluating qualified immunity, “the issuance of a warrant by

a neutral magistrate, which depends on a finding of probable cause,

creates a presumption that it was objectively reasonable for the

officer[] to believe that there was probable cause.” Golino v. City of

New Haven, 950 F.2d 864, 870 (2d Cir. 1991). This presumption may be

overcome by showing that the warrant was based on misleading

information or an affidavit with omissions that were necessary to a

finding of probable cause. Id. at 870-71.

Jeney sought an arrest warrant based on Cornelio’s alleged

violation of the disclosure requirement. We have already concluded

that Cornelio has stated a plausible claim that the disclosure

requirement violates the First Amendment and that further

proceedings on that claim are warranted. Even if Cornelio were

ultimately to succeed on that claim, it would not affect Jeney’s

entitlement to qualified immunity. Whether the disclosure

requirement violates the First Amendment was not “clearly

established” at the time Jeney initiated the prosecution against

29

Cornelio—as it must have been to foreclose a defense of qualified

immunity. Travella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010).

We agree with the district court that Jeney had arguable

probable cause to initiate the prosecution. Cornelio’s arrest was made

pursuant to a warrant issued by a state court judge, who found that

the circumstances described in Jeney’s affidavit provided probable

cause to believe that Cornelio had violated the disclosure

requirement. Because a “neutral magistrate” found that there was

probable cause, it was presumptively “objectively reasonable” for

Jeney to believe that such cause existed. Golino, 950 F.2d at 870.

Cornelio cannot overcome this presumption. He argues that the

state court judge was not acting as a neutral magistrate. The same

judge had dismissed a prior charge based on Cornelio’s alleged

failure to comply with the residence verification provision. Cornelio

suggests that the judge “turned” a “blind eye” to Jeney’s malicious

intent because, when Cornelio had appeared to urge the dismissal of

the earlier charge, Cornelio was “not as repentant or humbled as those

who uphold the law might have expected.” Appellant’s Br. 11. That

may or may not be so. But we presume that a judicial officer

impartially executes his responsibilities, see MacDraw, Inc. v. CIT Grp.

Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) (“Judges … must be

presumed, absent more, to be impartial.”), and we require more than

an alleged possible resentment to conclude otherwise.

Cornelio further argues that Jeney lacked arguable probable

cause because Cornelio had complied with the disclosure

requirement. He had used the AOL email address to communicate

with the SORU, and he had displayed the AOL email address on a

personal website that he registered with the SORU. To Cornelio, these

30

circumstances show that he was not concealing the AOL email

address from the SORU and that he satisfied his obligation to disclose

the AOL email address under § 54-253(b). That is entirely plausible,

and perhaps this argument may have led to the dismissal of the

charge against Cornelio. But we agree with the district court that an

objectively reasonable police officer could have understood the

disclosure requirement to mandate that Cornelio report his email

address in a direct and formal way. The statute requires a registrant

to “notify the Commissioner of Emergency Services and Public

Protection in writing of [a new] identifier,” Conn. Gen. Stat. § 54-

253(b) (emphasis added), as part of the obligation to “register” any

internet identifier “with the Commissioner of Emergency Services

and Public Protection, on such forms and in such locations as said

commissioner shall direct,” id. § 54-251(a). These provisions at least

arguably required Cornelio to include the AOL email address on the

quarterly verification forms he received or to provide the SORU with

an official notice when he created the new email address. Under this

interpretation, Cornelio’s emails to the SORU did not satisfy the

disclosure requirement because those emails disclosed Cornelio’s

email address only implicitly while addressing other matters. 13

Though we conclude that Jeney had arguable probable cause

and therefore qualified immunity for her actions in this case, we note

that Cornelio plausibly alleges that the prosecution was motivated by

malice. The underlying arrest in this case is not the first time Cornelio

was arrested for a trivial reporting infraction. See Cornelio, 2020 WL

13 Before the district court, Cornelio argued that false statements in Jeney’s

affidavit negate the finding of probable cause. Cornelio appears to abandon

this argument on appeal, however, so we do not consider it. See City of

Syracuse v. Onondaga County, 464 F.3d 297, 308 (2d Cir. 2006).

31

7043268, at *5-6. The history between Cornelio and the SORU suggests

a possible motivation to harass him. See Spak, 857 F.3d at 461 n.1; see

also Owens v. Downey, 150 F. Supp. 3d 1008, 1028 (S.D. Ind. 2015)

(inferring malice from a “history of animosity” toward the plaintiff).

Nevertheless, an officer cannot be liable for a vexatious motivation as

long as she acts with arguable probable cause.

CONCLUSION

We reverse the district court’s dismissal of Cornelio’s First

Amendment claim and affirm the district court’s dismissal of his Ex

Post Facto Clause and malicious prosecution claims. We remand for

further proceedings consistent with this opinion.

32