Petition for Writ of Certiorari — Angel Luis Thomas, Sr., Petitioner v. Tyree C. Blocker, et al.

Supreme Court briefApr 28, 2020

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App. 1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1774

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ANGEL LUIS THOMAS, SR.;

NORMAN E. GREGORY; GLENN MORRIS

Col. TYREE C. BLOCKER; Sgt. O. E. ROWLES;

Capt. MAURICE A. TOMLINSON; Tpr. DAVID

HOWANITZ; KEVIN KAUFFMAN; BRIAN HARRIS;

NICOLE PITTMAN; JAMEY LUTHER; BRIAN

URBAN; MICHELE JAMES; JAMES RIEVEL; KIM

HAWN; PHILLIP CHAMBERLAIN; ADAM ROSS

Angel Luis Thomas, Sr.,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 4-18-cv-00812)

District Judge: Hon. Matthew W. Brann

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Submitted Under Third Circuit L.A.R. 34.1(a)

Tuesday, January 14, 2020

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App. 2

Before: HARDIMAN, PORTER, and PHIPPS,

Circuit Judges.

(Filed: January 29, 2020)

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OPINION*

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PORTER, Circuit Judge.

Angel Luis Thomas, Sr. is a registered sex offender.

He was convicted of rape, involuntary deviate sexual

intercourse, aggravated assault, reckless endangering,

and unlawful restraint. Before being released from

prison, he registered as a sex offender, which led to his

name being published on the Pennsylvania sexoffender registry’s publicly accessible website. Thomas

believes his constitutional rights were violated when

he was required to register as a sex offender. He filed a

motion for a preliminary injunction seeking the removal of his name from the sex-offender registry. The

District Court denied Thomas’s motion. Because

Thomas was required by federal law to register as a

sex offender, he is unlikely to succeed on the merits of

his claim. We will affirm.

In 1991, Thomas was convicted of several sexrelated crimes. He was imprisoned from 1991 until his

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

App. 3

2018 release. One month before his release, Thomas

was told that he must register as a sex offender on

Pennsylvania’s registry, which he did. Thomas was also

told that upon his release, he was required to register

again. When he was released in January 2018, he registered again; a new photo of Thomas and his home address were added to the registry.

Eventually, Thomas wished to be removed from

the sex-offender registry, so he sought injunctive relief

in the District Court. He filed a motion for a preliminary injunction, asking the District Court to order the

Commissioner of the Pennsylvania State Police, Colonel Tyree C. Blocker, to remove Thomas’s name from

the sex-offender registry. The Magistrate Judge issued

a Report and Recommendation, recommending that

the District Court deny Thomas’s motion. Thomas objected to the Magistrate Judge’s Report and Recommendation. The District Court rejected Thomas’s

arguments, adopted the Report and Recommendation,

and denied Thomas’s motion. Thomas timely appealed.

II1

Thomas challenges the denial of his motion for a

preliminary injunction. “A preliminary injunction is

an extraordinary remedy granted in limited

The District Court had jurisdiction under 28 U.S.C.

§§ 1331, 1343. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

When reviewing the denial of a preliminary injunction, we review

legal conclusions de novo and the decision to deny the injunction

for abuse of discretion. Del. Strong Families v. Att’y Gen. of Del.,

793 F.3d 304, 308 (3d Cir. 2015).

App. 4

circumstances.” Issa v. Sch. Dist. of Lancaster, 847 F.3d

121, 131 (3d Cir. 2017) (citation omitted). “Those seeking one must establish that (A) they are likely to succeed on the merits of their claims, (B) they are likely to

suffer irreparable harm without relief, (C) the balance

of harms favors them, and (D) relief is in the public interest.” Id. (citation omitted). “[A] failure to show a

likelihood of success . . . must necessarily result in the

denial of a preliminary injunction.” In re Arthur

Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d

Cir. 1982).

The District Court denied Thomas’s motion for a

preliminary injunction. Because federal SORNA requires Thomas to register as a sex offender, the District

Court agreed with the Magistrate Judge’s recommendation that Thomas failed to show a likelihood of success on the merits. Thomas disagrees with that

conclusion and raises three primary arguments for

why his claim will likely succeed on the merits.2 First,

he asserts that federal SORNA’s registration requirement applies to states and not individuals. Second, he

claims that he is exempted from federal SORNA’s registration requirement because he is not planning to

travel outside Pennsylvania. And third, he argues that,

because he is purportedly exempted from Pennsylvania’s sex-offender registration regime, he cannot be

Thomas suggests that the District Court failed to review

Thomas’s objections to the Report and Recommendation de novo.

He is incorrect. The District Court considered Thomas’s objections

and briefly explained its rationale for rejecting them. And the District Court said that it “reviewed Mr. Thomas’s objections de

novo[.]” JA at 13.

App. 5

compelled by state officials to comply with federal

SORNA. Because all of Thomas’s arguments are unavailing, we will affirm.

First, Thomas claims that federal SORNA applies

to states and not individuals. He is wrong. Federal

SORNA states that “[a] sex offender shall register, and

keep the registration current, in each jurisdiction

where the offender resides, where the offender is an

employee, and where the offender is a student.” 34

U.S.C. § 20913(a). “[T]he directive . . . applies to sex offenders—not to states.” United States v. Shenandoah,

595 F.3d 151, 157 (3d Cir. 2010), abrogated on other

grounds by Reynolds v. United States, 565 U.S. 432

(2012). Federal SORNA imposes “an independent and

federally enforceable duty . . . on sex offenders to register.” Id. Thus, Thomas’s first argument is foreclosed

by our own precedent.

Second, Thomas argues that federal SORNA

should not apply to him because he has not traveled

outside Pennsylvania and has no plans to do so. We

are unpersuaded. In United States v. Pendleton, we

considered whether the registration requirement in

§ 20913(a)—which, at the time, was codified at 42

U.S.C. § 16913(a)—was “beyond the bounds of the

Commerce Clause because it requires registration

from all sex offenders, not just those who travel in

App. 6

interstate commerce.” 636 F.3d 78, 86 (3d Cir. 2011). We

held that federal SORNA’s registration requirement

was constitutional “because it is necessary and proper

for carrying into [e]xecution Congress’s power under

the Commerce Clause[.]” Id. at 88 (quotation marks

omitted) (quoting U.S. Const. art. I, § 8, cl. 18 and

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 424

(1819)). In reaching our conclusion, we relied on Justice Scalia’s concurrence in Gonzales v. Raich, in which

he noted that “[when] necessary to make a regulation

of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” 545

U.S. 1, 35 (2005) (Scalia, J., concurring).

In short, we held in Pendleton that under the Commerce Clause and the Necessary and Proper Clause,

federal SORNA’s registration requirement applies to

all sex offenders—even those who do not travel in

interstate commerce. Pendleton, 636 F.3d at 87–88.

Pendleton therefore governs this case, and Thomas’s

argument fails.

To be sure, § 20913(a)—the registration requirement provision—contains no enforcement provision.

Instead, federal SORNA’s enforcement provision is

codified at 18 U.S.C. § 2250. Relevant here, this criminal statute has, among others, three elements: criminal penalties may be imposed on whoever (a) is

required to register under federal SORNA; (b) travels

in interstate commerce; and (c) knowingly fails to register or update a registration as federal SORNA requires. See id. According to Thomas, the registration

App. 7

requirement in § 20913(a) may not be enforced against

him because he has not violated § 2250—the criminal

enforcement provision—by traveling in interstate commerce or failing to register or update his registration

under federal SORNA.

We rejected this argument in Pendleton. There,

we held that a defendant must register under the

registration requirement in federal SORNA—i.e.,

§ 20913(a). 636 F.3d at 87–88. We said that “§ 2250 and

[§ 20913(a)] are clearly complementary: without

§ 2250, [§ 20913(a)] lacks federal criminal enforcement, and without [§ 20913(a)], § 2250 has no substance.” Id. at 87 (quotation marks and citation

omitted). “[R]equiring sex offenders to register . . . before . . . they travel in interstate commerce—which . . .

has a minimal practical [influence] on intrastate sex

offenders . . . [ ]—is ‘reasonably adapted’ to the goal of

ensuring that sex offenders register and update previous registrations when moving among jurisdictions.”

Id. at 88 (emphasis added) (quoting United States v.

Whaley, 577 F.3d 254, 261 (5th Cir. 2009)). In sum, just

because Thomas has not violated § 2250 does not mean

that he need not register under § 20913(a).

Lastly, Thomas argues that, because he claims to

be exempted from registering as a sex offender under

Pennsylvania’s registration regime, state officials may

not compel him to register under federal SORNA. We

are unconvinced. In Pendleton, we concluded that a sex

App. 8

offender’s “federal duty to register under [federal]

SORNA was not dependent upon his duty to register

under [state] law.” 636 F.3d at 86; cf. Shenandoah, 595

F.3d at 157 (stating that a state’s “failure to implement

a federal law . . . [would] not give sex offenders a reason to disregard their federal obligation to update their

state registrations.”). Here, Thomas’s federal duty to

In sum, we conclude that Thomas has failed to

show a likelihood that his claim will succeed on the

merits. The District Court correctly denied Thomas’s

motion for a preliminary injunction, so we will affirm.

Thomas suggests that federal SORNA’s registration requirement violates the anticommandeering principles of the

Tenth Amendment if the registration requirement applies to an

individual like Thomas, who is putatively excluded from registering as a sex offender under state law. This argument rings hollow.

Congress enacted the parts of federal SORNA that are directed to

the states using its spending power. See United States v. Kebodeaux, 570 U.S. 387, 391 (2013) (noting that “[federal] SORNA

. . . used the federal spending power to encourage [s]tates to adopt

sex offender registration laws.” (emphasis added) (citations omitted)).

App. 9

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL LUIS THOMAS, Sr.,

NORMAN E. GREGORY, and

GLENN MORRIS,

No. 4:18-CV-00812

(Judge Brann)

(Magistrate Judge

Schwab)

Plaintiffs,

COL. TYREE C. BLOCKER,

et al.,

Defendants.

ORDER

MARCH 20, 2019

In 1991, Angel Louis Thomas was convicted of

rape and other crimes in a Pennsylvania state trial

court.1 In 1992, he began serving a lengthy prison

term, from which he was released on January 11,

2018.2 Shortly before that release, Defendants required him to register as a sex offender.3

This lawsuit, at its core, argues that Mr. Thomas’s

compelled registration was, and remains, unlawful. To

that end, he moved for preliminary injunctive relief,

seeking to have his name immediately removed from

Pennsylvania’s sex offender registry.4 Chief Magistrate

Report and Recommendation (ECF No. 44) 1.

Id. at 8.

Id. at 9.

ECF No. 14.

App. 10

Judge Susan E. Schwab issued a Report and Recommendation recommending that this Court deny that

requested relief.5

Mr. Thomas’s objections to Chief Magistrate Judge

Schwab’s Report and Recommendation dispute her

conclusion that federal law imposes a registration duty

on Mr. Thomas that is independent of any duty imposed by state law.6 Specifically, Mr. Thomas argues (1)

that the federal law duty is imposed on states, not on

individuals;7 (2) that the federal law duty is triggered

only when Mr. Thomas crosses a state border;8 and (3)

that the federal law duty is inapplicable when a state’s

registration scheme violates the state’s constitution.9

As to (1), this Court is bound by the Third Circuit’s

determination that, under federal law, “an independent and federally enforceable duty is placed on sex offenders to register.”10 As to (2), while criminal penalties

attach only when an unregistered sex offender crosses

Report and Recommendation at 22.

Plaintiff ’s Objections (ECF No. 46) 1. Mr. Thomas also objects to Magistrate Judge Schwab’s refusal to strike certain documents from the record. Because neither Magistrate Judge Schwab

nor this Court relied on those documents when analyzing the legal issues, Magistrate Judge Schwab’s decision to not strike them

will not be overturned.

Report and Recommendation at 4-13.

Id. at 13-17.

Id. at 17-22.

United States v. Pendleton, 636 F.3d 78, 85 (3d Cir. 2011);

see also United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.

2010) (“the directive found in [34 U.S.C. § 20913] applies to sex

offenders—not states.”).

App. 11

states lines,11 there is no corresponding interstate

travel requirement in the statutory provision imposing

that registration requirement in the first place.12 And

as to (3), while the Pennsylvania Supreme Court held

that Pennsylvania’s previous “Megan’s Law” violated

the state constitution,13 it has not (yet) made such a

ruling on Pennsylvania’s current registration law or on

the federal law.

Having reviewed Mr. Thomas’s objections de novo,

IT IS HEREBY ORDERED that:

Chief Magistrate Judge Schwab’s Report and

Recommendation, ECF No. 44, is ADOPTED.

The Motion for a Preliminary Injunction, ECF

No. 14, filed by Angel Luis Thomas, Sr., is DENIED.14

18 U.S.C. § 2250(a).

34 U.S.C. § 20913(a) (“A sex offender shall register, and

keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the

offender is a student.”). In fact, federal law requires states to impose their own separate criminal penalties for failing to register,

with no mention of interstate travel requirements. Id. § 20913(e).

Commonwealth v. Muniz, 640 Pa. 699 (2017).

The parties should note that the denial of the requested

preliminary injunctive relief has no binding effect on this Court

when it decides the ultimate legal issues in this case—i.e., when

it decides whether Mr. Thomas’s initial and continued registration on the Pennsylvania sex offender registry is lawful. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (noting

that “conclusions of law made by a court granting a preliminary

injunction are not binding at trial,” and that “it is generally inappropriate for a federal court at the preliminary-injunction stage

to give a final judgment on the merits”).

App. 12

Pursuant to this Court’s February 14, 2019

Order, ECF No. 63, Defendants’ Answer to

Plaintiffs’ Second Amended Complaint is due

no later than April 1, 2019.

No later than April 15, 2019, and in less than

1,000 words, Plaintiffs SHALL SHOW

CAUSE why this matter should not be stayed

pending the Pennsylvania Supreme Court’s

decision in Commonwealth v. LaCombe, 35

MAP 2018.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

App. 13

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL LUIS THOMAS, SR.,

Plaintiff

COL. TYREE C. BLOCKER, JR., :

et al.,

Defendant

CIVIL NO:

4:18-CV-00812

(Judge Brann)

(Chief Magistrate

Judge Schwab)

REPORT AND RECOMMENDATION

(Filed Nov. 26, 2018)

Introduction.

Plaintiff Angel Luis Thomas, Sr. claims that the

defendants violated his federal Constitutional rights

as well as state law by requiring him to register as a

sex offender. Currently pending is Thomas’s motion for

a preliminary injunction seeking an order requiring

the Commissioner of the Pennsylvania State Police to

remove his name from the sex-offender registry. Because we conclude that Thomas does not have a reasonable likelihood of succeeding on the merits of his

claim that he should not be part of the sex-offender

registry, we recommend that the Court deny his motion

for a preliminary injunction.

App. 14

II.

Background and Procedural History.

On April 15, 2018, Thomas began this action by filing a complaint naming as defendants: (1) Col. Tyree

C. Blocker, Jr., the Commissioner of the Pennsylvania

State Police (PSP); (2) Sergeant O.E. Rowles, the Commander of the Megan’s Law Section of the PSP Division of Operational Records; (3) Captain Maurice A.

Tomlinson, a commander with the PSP; (4) Trooper

Davis Howanitz, a trooper with the PSP; (5) Kevin

Kauffman, the Superintendent of the State Correctional Institute at Huntingdon (SCI-Huntingdon);

(6) CO Harris, a corrections officer who works in the

Security Office of SCI-Huntingdon; (7) Ms. Hawn, a corrections counselor at SCI-Huntingdon; and (8) Nicole

Pittman, a records specialist at SCI-Huntingdon. On

November 1, 2018, Thomas along with two other

plaintiffs filed an amended complaint. Although the

amended complaint names other defendants in addition to the eight listed above, those additional defendants are named in connection with the claims of the

other two plaintiffs; the additional defendants are not

named in connection with Thomas’s claims.

Thomas alleges that the defendants required him

to register as a sex offender and refused to remove him

from the sex-offender registry even though they knew

that no statute required his registration.1 He alleges

that the corrections defendants did so as retaliation for

As we are addressing Thomas’s motion for a preliminary

injunction, we briefly summarize only the allegations that relate

to Thomas. In connection with the current motion, the allegations

relating to the other plaintiffs are not relevant.

App. 15

his prior civil lawsuits against prison officials. He alleges that the PSP defendants did so because they disliked the Pennsylvania Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189, 706 [sic] (Pa.

2017) (holding that the retroactive application of Pennsylvania’s Sex Offender Registration and Notification

Act (Pennsylvania SORNA)2 to a petitioner convicted

of a sex offense prior to the effective date of Pennsylvania SORNA violated the Ex Post Facto Clauses of the

Pennsylvania and United States Constitutions), cert.

denied, 138 S. Ct. 925 (2018), as well as the limitations

set forth in a later statute and they sought to covertly

continue to register men like Thomas, who they

deemed to be dangerous and predestined to re-offend.

Thomas alleges that he has been wrongfully listed

on Pennsylvania’s sex-offenders registry since December 27, 2017, with the exception of a brief time in late

January and early February of 2018, when, following

the United States Supreme Court’s denial of certiorari

in Muniz, he was temporarily removed from the registry. According to Thomas, after Pennsylvania enacted

a new sex-offender registration statute, known as Act

10, on February 21, 2018, defendants Blocker and

Rowles restored Thomas’s information to Pennsylvania’s online sex-offender website. He alleges that they

did so even though they knew that Act 10 did not apply

to him because Act 10 applies only to those who committed offenses on or after April 22, 1996, and to those

We refer to the Pennsylvania statute as “Pennsylvania

SORNA” so as to distinguish it from the federal Sex Offender

Registration and Notification Act, which we refer to as “SORNA.”

App. 16

who had been required to register under a prior statute, whereas he committed his offense in 1991 and he

had never been required to register under a prior statute because none of the prior registration statutes required registration during incarceration and he had

been continuously incarcerated from 1991 until his release in January of 2018. Although Thomas’s counsel

informed the PSP that ACT 103 did not apply to

Thomas, she was informed that Thomas’s name and information would remain on the sex-offender registry

unless a court ordered the PSP to remove them.

Thomas’s counsel was also informed that Thomas

would be arrested and charged if he did not present

himself to the PSP by May 22, 2018, for another round

of registration. Thomas alleges that given those

threats, he had no choice but to continue to cooperate

with the improper registration regime. He alleges that

he has been harmed by being listed on the registry.

Thomas presents five counts against the defendants. Count I is a due process claim. Count II is a retaliation claim against the corrections defendants.

Count III is an ex post facto claim. Count IV is a statelaw defamation claim. And Count V is a state-law

claim of invasion of privacy. Thomas seeks compensatory and punitive damages as well as injunctive relief

Although the Pennsylvania General Assembly again later

amended the sex-offender registration act effective June 12, 2018,

see 2018 Pa. Legis. Serv. Act 2018-29 (H.B. 1952) (Act 29), the

parties continue to refer to the statute as Act 10. We will do the

same, but we cite to the current version of the statute.

App. 17

enjoining the PSP from listing him in the sex-offender

registry.

Two days after filing the complaint, Thomas filed

a motion for a temporary restraining order (TRO),

which Judge Brann denied without prejudice to Thomas

filing a motion for a preliminary injunction after the

defendants had been served. After the defendants were

served, Thomas filed a “Second Application for Temporary Restraining Order,” in which he seeks a TRO

against defendant Blocker and the PSP instructing

them to immediately remove him from the sex-offender

registry and a hearing as to a preliminary injunction.

Doc. 14.

Thereafter, the defendants filed answers to the

complaint, and with leave of court, Thomas filed a reply. Thomas also filed a notice that he was challenging

the constitutionality of certain provisions of Pennsylvania’s Act 10 and of certain provisions of SORNA. The

Clerk of Court then certified the constitutional challenges to the Attorney General of Pennsylvania and

the Attorney General of the United States and gave

them until October 1, 2018, to intervene in this action.

Neither has intervened.

Although Thomas filed his second motion for a

TRO on June 6, 2018, he did not file a brief in support

of that motion until October 5, 2018, after being ordered by the Court to do so. Thomas concedes that the

relief he is now seeking is a preliminary injunction,

rather than a TRO. On October 19, 2018, defendant

App. 18

Blocker4 filed a brief in opposition to Thomas’s motion,

and on October 21, 2018, Thomas filed a reply brief.

III. Preliminary Injunction Standards.

A motion for preliminary injunctive relief is governed by Rule 65 of the Federal Rules of Civil Procedure and is judged against exacting legal standards.

To obtain a preliminary injunction, a party must show:

(1) a reasonable probability of success on the merits;

and (2) that he or she will suffer irreparable harm if

the injunction is denied. Reilly v. City of Harrisburg,

858 F.3d 173, 176 (3d Cir. 2017). These “factors are prerequisites for a movant to prevail.” Holland v. Rosen,

895 F.3d 272, 286 (3d Cir. 2018). “If these gateway factors are met, a court then considers” “(3) the possibility

of harm to other interested persons from the grant or

denial of the injunction, and (4) the public interest.”

Reilly, 858 F.3d at 176, 179. And the Court must determine “in its sound discretion if all four factors, taken

together, balance in favor of granting the requested

preliminary relief.” Id. at 179.

Preliminary injunctive relief is not granted as a

matter of right. Kershner v. Mazurkiewicz, 670 F.2d

440, 443 (3d Cir. 1982). Rather, the decision to grant or

deny such relief is committed to the discretion of the

Although all the defendants named in the original complaint filed the brief in opposition, because Thomas’s motion and

brief make clear that he is seeking preliminary injunctive relief

only as to defendant Blocker, from here on out we refer to the brief

and the arguments in the brief as if they were made only by defendant Blocker.

App. 19

district court. United States v. Price, 688 F.2d 204, 210

(3d Cir. 1982). “A preliminary injunction ‘is an extraordinary remedy . . . which should be granted only in limited circumstances.’ ” Holland, 895 F.3d at 285 (quoting

Am. Tel. & Tel. Co. v. Winback & Conserve Program,

Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). A “preliminary

injunction must be the only way of protecting the

plaintiff from harm.” Instant Air Freight Co. v. C.F. Air

Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). “It has

been well stated that upon an application for a preliminary injunction to doubt is to deny.” Madison Square

Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir.

1937).

IV. Undisputed Facts.5

The following facts are not in dispute. In 1991,

Thomas was convicted in the Court of Common Pleas

of York County, Pennsylvania of rape, involuntary deviate sexual intercourse, aggravated assault, reckless

endangering, and unlawful restraint. See Docket in

Commonwealth v. Thomas, CP-67-CR-0000447-1991

(C.C.P. York Cty).6 His conviction was based on an

Because the facts set forth here are undisputed and are sufficient to decide the motion for a preliminary injunction, we deny

Thomas’s request for a hearing.

The court may take judicial notice of adjudicative facts that

are not subject to reasonable dispute because they are “generally

known within the trial court’s territorial jurisdiction” or because

they “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed.R.Evid.

201(b)(2). The docket in Thomas’s criminal case is a public record

of which we can take judicial notice. See Wilson v. McVey, 579

App. 20

offense that occurred on January 4, 1991. Id. In 1992,

he was sentenced to an aggregate term of imprisonment of 12½ to 27 years. Id. Thomas was in prison continuously from 1991 until his release on January 11,

2018. Doc. 1 (Complaint) at ¶ 3 and Doc. 16 (Answer of

PSP defendants) at ¶ 3.7

At the time Thomas was charged, tried, and sentenced, there was no provision for the registration of

sex offenders in Pennsylvania. Doc. 1 at ¶ 16 and Doc.

16 at ¶ 16. In 1995, Pennsylvania’s General Assembly

enacted Megan’s Law (Megan’s Law I). Muniz, 164

A.3d at 1196. After the Pennsylvania Supreme Court

struck down certain provisions of Megan’s Law I, the

General Assembly enacted Megan’s Law II in May

of 2000. Id. “The General Assembly made further

amendments to Megan’s Law II with the passage of

Act 152 of 2004, commonly referred to as Megan’s

Law III, which was signed into law on November 24,

2004.” Id. at 1197. The Pennsylvania Supreme Court

struck down Megan’s Law III because it violated the

“single subject” rule of the Pennsylvania Constitution.

F. Supp. 2d 685, 688 (M.D. Pa. 2008) (taking judicial notice of

court docket).

Even though an amended complaint was recently filed, we

cite here to facts set forth in Thomas’s original complaint. The

facts to which we cite are materially the same as set forth in the

complaint and in the amended complaint. The amended complaint was only very recently filed, and the PSP defendants have

not yet answered the amended complaint. Thus, in order to avoid

delaying a decision on the motion for a preliminary injunction, we

rely on the facts sets [sic] forth in the original complaint as admitted by the defendants in their answers to the original complaint.

App. 21

Commonwealth. v. Neiman, 84 A.3d 603, 605 (Pa.

2013). The General Assembly then enacted Pennsylvania SORNA, which became effective on December 20,

2012. Muniz, 164 A.3d at 1193 n.3, 1198.

On July 19, 2017, the Pennsylvania Supreme

Court issued its decision in Muniz, holding that the

retroactive application of Pennsylvania SORNA to a

petitioner convicted of a sex offense prior to the effective date of Pennsylvania SORNA violated the Ex Post

Facto Clauses of the Pennsylvania and United States

Constitutions. Muniz, 164 A.3d at 1193. Thereafter, the

Commonwealth filed a petition for a writ of certiorari,

which the United States Supreme Court denied on

January 22, 2018. Pennsylvania v. Muniz, 138 S. Ct.

925 (2018).

Thomas was scheduled to be release [sic] from

prison in January of 2018. Doc. 1 at ¶ 21 and Doc. 16

at ¶ 21. After certain of the corrections defendants told

Thomas he was required to register as a sex offender,

on December 27, 2017, defendant Harris escorted

Thomas to the prison records office and compelled him

to undergo registration procedures. Doc. 1 at ¶¶ 22–23

and Doc. 15 (Answer of Corrections defendants) at

¶¶ 22–23. Certain of the corrections defendants fingerprinted and photographed Thomas and then entered

his name, home address, photograph, and criminal record into the online sex-offender registry. Doc. 1 at ¶ 24

and Doc. 15 at ¶ 24. The Corrections defendants told

Thomas that upon his release he was required to report to the PSP to register again. Doc. 1 at ¶ 28 and

Doc. 15 at ¶ 28.

App. 22

Thomas was released from SCI-Huntingdon on

January 11, 2018. Doc. 1 at ¶ 29 and Doc. 16 at ¶ 29.

On January 13, 2018, he went to the PSP station in

Lancaster where he was again photographed, and his

new photo and home address were entered into the

registry. Doc. 1 at ¶¶ 29–30 and Doc. 16 at ¶ 29–30.

After the Supreme Court denied the petition for

writ of certiorari in Muniz, Thomas’s name was temporarily removed from the sex-offender registry. Doc. 1 at

¶ 42 and Doc. 16 at ¶ 42. On February 21, 2018, the

Pennsylvania legislature enacted Act 10, which became effective immediately. Doc. 1 at ¶ 43 and Doc. 16

at ¶ 43. At some point after February 21, 2018,

Thomas’s name, home address, and photograph were

again displayed on the sex-offender website. Doc. 1 at

¶ 47 and Doc. 16 at ¶ 47.

In April of 2018, Thomas’s counsel contacted the

PSP about Thomas’s status. Doc. 1 at ¶ 48 and Doc. 16

at ¶ 48. Thomas’s counsel was told that the PSP would

not remove Thomas’s name and photograph from the

registry unless ordered by a court to do so. Doc. 1 at

¶ 49 and Doc. 16 at ¶ 49. Thomas’s counsel was also

informed that Thomas would be arrested and charged

if he did not present himself to the PSP by May 22,

2018, for another round of registration. Doc. 1 at ¶ 50

and Doc. 16 at ¶ 50.

Because of Thomas’s inclusion on the sex-offender

registry, Thomas’s name, photograph, home address,

conviction, and other sensitive information is exposed

to anyone with Internet access, including but not

App. 23

limited to potential employers, landlords, and friends.

Doc. 1 at ¶ 64 and Doc. 16 at ¶ 64.

Discussion.

Judged against the exacting standards applicable

to motions for a preliminary injunction, Thomas’s motion for a preliminary injunction fails. Thomas cannot

meet the first element for such injunctive relief, which

requires the movant to show that he “can win on the

merits (which requires a showing significantly better

than negligible but not necessarily more likely than

not).” Reilly, 858 F.3d at 179. Thomas cannot satisfy

that element since his claims are premised on the conclusion that he is not required to register or maintain

his registration as a sex offender, but we conclude that

he is so required.

Thomas contends that at the time of his release

from prison, he was not required to register as a sex

offender because the Pennsylvania Supreme Court in

Muniz had declared Pennsylvania SORNA unconstitutional as retroactively applied to offenders, like him,

who committed a sexual offense before the Pennsylvania SORNA became effective. He also contends that

even after Pennsylvania enacted Act 10, he was not required to register or update his registration because

Act 10 by its terms does not apply to him.

App. 24

Act 108 requires “[a]n individual who committed a

sexually violent offense within this Commonwealth

and whose period of registration with the Pennsylvania State Police, as specified in section 9799.55 (relating to registration), as of February 21, 2018, has not

expired” to register with the Pennsylvania State Police.

42 Pa.C.S.A. § 9799.54(a)(1). Thomas is required to

violent offense” as defined in Act 10.

Act 10 contains a two-prong definition of “sexually

violent offense.” The first prong of that definition provides that a “sexually violent offense” is “a criminal

offense specified in section 9799.55 (relating to registration) committed on or after April 22, 1996, but before December 20, 2012, for which the individual was

convicted.” Because Thomas committed his offense in

1991, his offense does not meet the first prong of Act

10’s definition of a “sexually violent offense.”

Thus, Thomas is required to register under Act 10

only if his offense meets the second prong of the definition of “sexually violent offense.” That prong provides

that a “sexually violent offense” is “a criminal offense

for which an individual was required to register with

the Pennsylvania State Police under a former sexual

offender registration law of this Commonwealth on or

Act 10 was amended effective June 12, 2018. See 2018 Pa.

Legis. Serv. Act 2018-29 (H.B. 1952) (Act 29). The parties continue to refer to Pennsylvania’s current registration statute as

Act 10. Although for ease of reference in tracking the parties’ arguments, we will do the same, our citations are to the current version of the Act as amended by Act 29.

App. 25

after April 22, 1996, but before December 20, 2012,

whose period of registration has not expired.” Whether

Thomas’s offense meets this definition depends on

whether Thomas was required to register with the PSP

under Pennsylvania’s Megan’s Laws I through III on

or after April 22, 1996, but before December 20, 2012.

Thomas contends that he was not because those laws

did not require him to register until he was released

from incarceration, and he was not released from incarceration until January of 2018.9 Blocker admits in

his brief that “[a]lthough [Thomas] was subject to all

prior versions of the registration statutes (because he

would have had to have registered under them upon

release from incarceration), the statutes did not require registration until he was released.” Doc. 35 at 4

(footnote omitted). Yet, without explanation, Blocker

suggests that Act 10 applies to Thomas.

But we need not decide whether Act 10 applies to

Thomas because regardless of whether Act 10 applies

to Thomas, Thomas was required to register as a sex

offender under SORNA. As we discuss below, SORNA

contains a registration requirement that does not

Although Thomas’s construction of the phrase “required to

Cf. United States v. Gundy, 804 F.3d 140, 145–47 (2d Cir. 2015)

(deciding that there is a difference between when the requirement

to register under SORNA attaches and the deadline for initial registration under SORNA and concluding that “a sex offender is ‘required to register’ [under SORNA] once he or she is ‘subject to’

SORNA’s registration requirements” even though that may be

well before the deadline for initial registration) cert. granted in

part on other issue, 138 S. Ct. 1260, 1261 (2018).

App. 26

depend upon state law. Thus, even if Thomas was not

required to register under Act 10, he was required to

to register under SORNA and to maintain his registration under SORNA, he cannot show that he is entitled

to a preliminary injunction.

In 2006, “Congress enacted SORNA as Title I of

the Adam Walsh Child Protection and Safety Act of

2006, Pub.L. No. 109–248, §§ 101–155, 120 Stat. 587,

590–611 (2006).” United States v. Cooper, 750 F.3d 263,

264 (3d Cir. 2014).10 Aware that before SORNA, “registration law consisted of a patchwork of federal and

50 individual state registration systems,” Congress

sought “to make those systems more uniform and effective.” Reynolds v. United States, 565 U.S. 432, 435

(2012). SORNA “does so by repealing several earlier

federal laws that also (but less effectively) sought uniformity; by setting forth comprehensive registrationsystem standards; by making federal funding contingent on States’ bringing their systems into compliance with those standards; by requiring both state

and federal sex offenders to register with relevant

On September 1, 2017, without any change in statutory

language, SORNA was transferred from 42 U.S.C. § 16901 et seq.

to 34 U.S.C. § 20901 et seq. United States v. Sedlak, No. 1:09-CR0079-01, 2018 WL 3056188, at *1 n.2 (M.D. Pa. June 20, 2018).

Although defendant Blocker briefly mentions the Adam Walsh

Child Protection and Safety Act of 2006 in connection with a review of a history of Pennsylvania’s registration statutes, he does

not argue that SORNA required Thomas to register and keep his

registration current. We cannot, however, overlook SORNA in deciding whether Thomas is entitled to a preliminary injunction.

App. 27

jurisdictions (and to keep registration information current); and by creating federal criminal sanctions applicable to those who violate the Act’s registration

requirements.” Id.

SORNA sets forth requirements for states. “Among

its many provisions, SORNA instructs States to maintain sex-offender registries that compile an array of information about sex offenders, § 16914; to make this

information publicly available online, § 16918; to share

the information with other jurisdictions and with the

Attorney General for inclusion in a comprehensive national sex-offender registry, §§ 16919–16921; and to

‘provide a criminal penalty that includes a maximum

term of imprisonment that is greater than 1 year for

the failure of a sex offender to comply with the requirements of this subchapter,’ § 16913(e).” Carr v. United

States, 560 U.S. 438, 455–56 (2010).

SORNA also contains separate requirements applicable to sex offenders. SORNA requires a “sex offender” to “register, and keep the registration current,

in each jurisdiction where the offender resides, where

the offender is an employee, and where the offender

is a student.” 34 U.S.C. § 20913 (formerly codified at

42 U.S.C. § 16913).11 SORNA “defines ‘sex offender’

SORNA provides when a sex offender shall initially register—either before completing his sentence of imprisonment or if

not sentenced to a term of imprisonment, within three days of

sentencing—and how a sex offender shall keep his registration

current—by appearing in person in a least one jurisdiction where

he is required to register within three days after “each change of

name, residence, employment, or student status” and informing

that jurisdiction of such change. 34 U.S.C. §§ 20913(b), 20913(c)

App. 28

broadly to include any ‘individual who was convicted

of a sex offense.’ ” Reynolds, 565 U.S. at 442 (quoting 42

U.S.C. § 16911(1) (now codified at 34 U.S.C. § 20911)).

And with limited exceptions not applicable here, it

broadly defines “sex offense” to include “a criminal offense that has an element involving a sexual act or sexual contact with another.” 34 U.S.C. § 20911(5)(A)(i)

(formerly codified 42 U.S.C. § 16911(5)(A)(i)).12 “There

is no doubt here that Thomas was convicted of sexual

offenses.” Doc. 37 (Thomas’s Reply Brief ) at 11.

Although SORNA “defines ‘sex offender’ to include

individuals who were convicted of sex offenses prior to

(formerly codified at 42 U.S.C. §§ 16913(b), 16913(c)). The registration requirement of SORNA—§ 16913 (now codified at 34

U.S.C. § 20913)—“does not have an enforcement provision, but

under 18 U.S.C. § 2250(a), . . . a person commits a crime when he

or she ‘(1) is required to register under the Sex Offender Registration and Notification Act; (2) . . . (B) travels in interstate or foreign commerce . . . ; and (3) knowingly fails to register or update

a registration as required by the Sex Offender Registration and

Notification Act.’ ” United States v. Pendleton, 636 F.3d 78, 83 (3d

Cir. 2011). “In other words, ‘[o]nce a person becomes subject to

SORNA’s registration requirements . . . that person can be convicted under § 2250 if he thereafter travels and then fails to register.’ ” Id. (quoting Carr, 560 U.S. at 447). Here, we are not

dealing with the criminal provision of SORNA. Rather, we are

dealing with only the registration requirement.

SORNA divides offenders into Tier I, Tier II, or Tier III sex

offenders, and it requires offenders to periodically “appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry in which that offender is

required to be registered” every year for Tier I sex offenders, every

six months for Tier II sex offenders, and every three months for

Tier III sex offenders. 34 U.S.C. §§ 20911, 20918 (formerly codified at 42 U.S.C. §§ 16911, 16916).

App. 29

the enactment of SORNA,” it “does not set forth the

registration procedures for pre-SORNA sex offenders.”

Cooper, 750 F.3d at 265. Rather, “in 42 U.S.C.

§ 16913(d), Congress delegated to the United States

Attorney General the authority to determine whether

SORNA’s registration requirements would apply retroactively to pre-SORNA sex offenders.” Id.

The Supreme Court held that SORNA’s “registration requirements do not apply to pre-Act offenders

until the Attorney General so specifies.” Reynolds, 565

U.S. at 445. In 2007, the Attorney General issued an

“Interim Rule that made SORNA’s registration requirements retroactive for all pre-SORNA offenders.”

United States v. Reynolds, 710 F.3d 498, 505 (3d Cir.

2013). The Third Circuit held that the Attorney General promulgated that Interim Rule in violation of the

Administrative Procedure Act’s notice-and-comment

requirements. Id. at 514. But after the Interim Rule

and after a notice-and-comment period, the Attorney

General “issued a Final Rule, which became effective

as of January 28, 2011.” Cooper, 750 F.3d at 266; 75 F.R.

81849-01(Dec. 29, 2010). That final rule provides that

the requirements of SORNA “apply to all sex offenders,

including sex offenders convicted of the offense for

which registration is required prior to the enactment

of ” SORNA. 28 C.F.R. § 72.3.

Thomas contends that Congress impermissibly

delegated its legislative authority to the Attorney General to determine whether the registration requirements of SORNA apply to sex offenders convicted

before SORNA was enacted. But the Third Circuit has

App. 30

held otherwise. See Cooper, 750 F.3d at 272 (holding

that “SORNA’s delegation to the Attorney General in

42 U.S.C. § 16913(d) does not violate the nondelegation

doctrine”). Thomas correctly notes that this issue is

currently pending before the Supreme Court. See

United States v. Gundy, 695 F. App’x 639, 641 n.2 (2d

Cir. 2017), cert. granted in part, 138 S. Ct. 1260, 1261

(2018). But unless and until the Supreme Court holds

that SORNA violates the nondelegation doctrine, we

are bound by the Third Circuit’s decision that it does

not.

Thomas also contends that SORNA violates the

anticommandeering doctrine of the Tenth Amendment

by “purporting to require state officials to perform certain tasks.” Doc. 32 at 10–11. The Tenth Amendment

provides that “[t]he powers not delegated to the United

States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to

the people.” U.S. Const. amend. X. “The principles of

limited national powers and state sovereignty are intertwined.” Bond v. United States, 564 U.S. 211, 225

(2011). “While neither originates in the Tenth Amendment, both are expressed by it.” Id. “[A]ction that exceeds the National Government’s enumerated powers

undermines the sovereign interests of States,” and

such “unconstitutional action can cause concomitant

injury to persons in individual cases.” Id. “[C]onspicuously absent from the list of powers given to Congress

is the power to issue direct orders to the governments

of the States.” Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461, 1476 (2018). “The anticommandeering

App. 31

doctrine simply represents the recognition of this limit

on congressional authority.” Id.

“ ‘If Congress acts under one of its enumerated

powers . . . there can be no violation of the Tenth

Amendment.” Treasurer of New Jersey v. U.S. Dep’t of

Treasury, 684 F.3d 382, 413 (3d Cir. 2012) (quoting

United States v. Parker, 108 F.3d 28, 31 (3d Cir. 1997)).

Thomas’s Tenth Amendment challenge to SORNA’s

registration requirement fails because Congress enacted SORNA pursuant to its enumerated powers. The

Third Circuit has held that in enacting SORNA’s registration requirement Congress acted pursuant to its

authority under the Commerce Clause. Pendleton, 636

F.3d at 88 (holding that § 16913’s registration requirement is a proper exercise of “Congress’s power under

the Commerce Clause, U.S. Const. art. I, § 8, cl. 18”). In

enacting SORNA, Congress also acted under its Spending Clause authority. See 42 U.S.C. §§ 16925(a), (d)

(now codified at 34 U.S.C §§ 20927(a), (d)) (“The provisions of this subchapter that are cast as directions to

jurisdictions or their officials constitute, in relation to

States, only conditions required to avoid the reduction

of Federal funding under this section”); see also United

States v. Shenandoah, 572 F. Supp. 2d 566, 584 (M.D.

Pa. 2008) (“Moreover, a second enumerated power—the

spending power of Article I, § 8, cl. 1—insulates

SORNA from Tenth Amendment challenge.”), aff ’d on

other grounds, 595 F.3d 151, 161 (3d Cir. 2010), abrogated in part by, Reynolds, 565 U.S. at 445, and Bond,

App. 32

564 U.S. at 226 (2011);13 United States v. Kebodeaux,

570 U.S. 387, 398 (2013) (stating in dicta that SORNA

uses “Spending Clause grants to encourage States to

adopt its uniform definitions and requirements” but

that “[i]t did not insist that the States do so”). Accordingly, Thomas’s Tenth Amendment challenge to

SORNA fails.14

As the Third Circuit has recognized:

Central to Shenandoah’s holding that the defendant

lacked standing for his nondelegation and APA claims

was its interpretation of SORNA—namely that SORNA’s

registration requirements applied to pre-SORNA sex

offenders automatically, without any action needed by

the Attorney General. This understanding of SORNA

made the administrative rule challenged by the defendant irrelevant to his case, in that SORNA, rather than

the rule, was the basis of his conviction. Id. at 157–58,

163–64. This understanding of SORNA was rejected by

the Supreme Court in its Reynolds decision. Reynolds

v. United States, [565 U.S. 432], 132 S.Ct. 975, 978, 181

L.Ed.2d 935 (2012).

The defendant lacked standing to raise his Tenth

Amendment claim because, at the time of the decision,

private parties were thought to be unable to assert

Tenth Amendment claims absent the involvement of a

State. Id. at 161–62. This holding was rejected by the

Supreme Court in Bond v. United States, [564 U.S. 211],

131 S.Ct. 2355, 180 L.Ed.2d 269 (2011). In that case,

the Supreme Court held that private persons may assert Tenth Amendment arguments even when an apparatus of the State is not a party to the suit. Id. at

2360, 2367.

United States v. Reynolds, 710 F.3d 498, 504 n.4 (3d Cir. 2013).

In his brief, although Thomas challenges SORNA on the

basis of the nondelegation doctrine and the anticommandeering

doctrine, he does not argue that SORNA violates the Ex Post

App. 33

Thomas’s duty to register under SORNA does

not depend upon state law. Pendleton, 636 F.3d at 86

(“Put simply, Pendleton’s federal duty to register under

SORNA was not dependent upon his duty to register

under Delaware law.”). And since Thomas had a duty

to register under SORNA, he has not shown that he

has a reasonable likelihood of success on the merits of

his claims that he is not currently required to maintain

his registration as a sex offender.15 Thus, Thomas is

not entitled to a preliminary injunction. See Am. Exp.

Travel Related Servs., Inc. v. Sidamon-Eristoff, 669

F.3d 359, 366 (3d Cir. 2012) (“The moving party’s failure to show a likelihood of success on the merits

‘must necessarily result in the denial of a preliminary

injunction.’ ”) (quoting In re Arthur Treacher’s Franchisee

Litig., 689 F.2d 1137, 1143 (3d Cir. 1982)).16

Facto Clause. Thus, we do not consider whether SORNA violates

the Ex Post Facto Clause.

Thomas contends that SORNA is addressed to state legislatures, not state employees acting in their official capacity, like

the defendants in this action. But state employees acting in their

official capacities are the equivalent of the state. And because we

are here addressing a motion for a preliminary injunction that

seeks removal of Thomas from the sex-offender registry, the issue

is whether Thomas is at this time required to be registered and

keep his registration up to date under SORNA. We need not at

this time, determine the propriety of the actions taken by the defendants in the past.

Because we conclude that Thomas cannot show a reasonable likelihood of success on the merits, we do not consider the

other preliminary-injunction factors, including the public-interest factor. As to that factor, however, we note that Blocker submitted a criminal complaint and an arrest warrant affidavit

setting forth the purported details of Thomas’s offense. Thomas

App. 34

VI. Recommendation.

Based on the foregoing, we recommend that the

Court deny Thomas’s motion (doc. 14) for a preliminary

injunction.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s

proposed findings, recommendations or report

addressing a motion or matter described in 28

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or

a habeas corpus petition within fourteen (14)

days after being served with a copy thereof.

Such party shall file with the clerk of court,

and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed

findings, recommendations or report to which

objection is made and the basis for such objections. The briefing requirements set forth in

Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is

contends that the Court should strike those documents because

they are inflammatory, impertinent, and irrelevant, and because

Blocker filed them for an improper purpose. He also contends that

those portions of Blocker’s brief that set forth the details from the

criminal complaint and affidavit should be stricken as well. We

will not strike the documents or parts of Blocker’s brief because

although we conclude that we need not reach the public interest

factor, the documents could reasonably be seen as relevant to that

factor.

App. 35

made and may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge. The

judge, however, need conduct a new hearing

only in his or her discretion or where required

by law, and may consider the record developed

before the magistrate judge, making his or her

own determination on the basis of that record.

The judge may also receive further evidence,

recall witnesses or recommit the matter to the

magistrate judge with instructions.

Submitted this 26th day of November, 2018.

S/Susan E. Schwab

Susan E. Schwab

Chief United States

Magistrate Judge

App. 36

2018 – Act 10

Act of Feb. 21, 2018, Pub. L. 27, No. 10.

Section 20. This act applies as follows:

(1) The amendment of 18 Pa.C.S. § 4915.1 and 42

Pa.C.S. Ch. 97 Subch. H shall apply to an individual

who commits an offense on or after December 20, 2012.

(2) The addition of 18 Pa.C.S. § 4915.2 and 42 Pa.C.S.

Ch. 97 Subch. I shall apply to:

(i) An individual who committed an offense set

forth in 42 Pa.C.S. § 9799.55 on or after April 22,

1996, but before December 20, 2012, and whose

period of registration as set forth in 42 Pa.C.S.

§ 9799.55 has not expired.

(ii) An individual required to register with the

Pennsylvania State Police under a former sexual offender registration law of this Commonwealth as

set forth in 42 Pa.C.S. § 9799.55(a)(1)(i), (b)(2) and (4).

(iii) An individual who, before or after the effective date of this paragraph:

(A) commits an offense subject to 42 Pa.C.S.

Subch. H; but

(B) because of a judicial determination on or

after the effective date of this section of the

invalidity of 42 Pa.C.S. Subch. H, is not subject to registration as a sexual offender.

H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10

of 2018.

App. 37

2018 – Act 29

Act of June 12, 2018, Pub. L. 140, No. 29.

Section 21. This act shall apply as follows:

(1) The reenactment or amendment of 18 Pa.C.S.

§ 4915.1 and 42 Pa.C.S. Ch. 97 Subch. H shall apply to

an individual who commits an offense on or after December 20, 2012.

(2) The reenactment or amendment of 18 Pa.C.S.

§ 4915.2 and 42 Pa.C.S. Ch. 97 Subch. I shall apply

to:

(i) An individual who committed an offense set

forth in 42 Pa.C.S. § 9799.55 on or after April 22,

1996, but before December 20, 2012, and whose

period of registration as set forth in 42 Pa.C.S.

§ 9799.55 has not expired.

(ii) An individual required to register with the

Pennsylvania State Police under a former sexual

offender registration law of this Commonwealth

as set forth in 42 Pa.C.S. § 9799.55(a)(1)(i), (b)(2)

and (4).

(iii) Before or after February 21, 2018, an individual who:

(A) commits an offense subject to 42 Pa.C.S.

Ch. 97 Subch. H; but

(B) because of a judicial determination on or

after February 21, 2018 of the invalidity of 42

App. 38

Pa.C.S. Ch. 97 Subch. H, is not subject to registration as a sexual offender.

H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act

29 of 2018.

Pennsylvania Consolidated Statutes

Chapter 42, Subchapter I

§ 9799.54. Applicability.

(a) Registration. – The following individuals shall

(1) An individual who committed a sexually violent offense within this Commonwealth and whose

period of registration with the Pennsylvania State

Police, as specified in section 9799.55 (relating to

registration), as of February 21, 2018, has not expired. The individual shall register for the period

of time under section 9799.55 less any credit for

time spent registered with the Pennsylvania State

Police prior to February 21, 2018.

(2) An individual who committed a sexually violent offense within this Commonwealth and who

has failed to register with the Pennsylvania State

Police. In such a case, the individual shall register

for the period of time under section 9799.55.

(3) An individual who committed a sexually violent offense within this Commonwealth and is an

inmate in a State or county correctional facility of

this Commonwealth, including a community corrections center or a community contract facility, is

App. 39

being supervised by the Pennsylvania Board of

Probation and Parole or county probation or parole, is subject to a sentence of intermediate punishment or has supervision transferred under the

Interstate Compact for Adult Supervision in accordance with section 9799.62(e) (relating to other

notification). The individual shall register for the

period of time under section 9799.55, except that

the period required in section 9799.55 shall be

tolled for any period of time the individual is recommitted for a parole violation or sentenced to a

term of imprisonment.

(4) An individual who was convicted of an offense

similar to an offense set forth in section 9799.55

under the laws of the United States or one of its

territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto

Rico, a foreign nation or under a former law of this

Commonwealth or who was court martialed for a

similar offense and who, as of February 21, 2018,

has not completed registration requirements. The

period of registration shall be as set forth in section 9799.56(b)(4) (relating to registration procedures and applicability) less any credit for time

spent on a sexual offender registry of the United

States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico, a foreign nation or with the

Pennsylvania State Police prior to February 21,

2018.

(b) Initial registration. – Individuals required to

February 21, 2018, to initially register with the Pennsylvania State Police. The individual shall appear at

App. 40

an approved registration site to be photographed, fingerprinted and to verify information. The Pennsylvania State Police shall send a notice by first class United

States mail to the individual’s last reported residence

in order to inform the individual of the requirements

of this subchapter. The notice shall specifically inform

the individual of the duties specified in section 9799.57

(relating to sentencing court information). The notice

shall be sent no later than 30 days from February 21,

2018. The notice shall also provide a list of approved

registration sites. Neither failure on the part of the

Pennsylvania State Police to send nor failure of an individual to receive notice or information under this

paragraph shall relieve the individual of the requirements of this subchapter.

§ 9799.55. Registration.

(a) Ten-year registration. – Except as provided

under subsection (a.1) or (b), the following individuals

shall be required to register with the Pennsylvania

State Police for a period of 10 years:

(1)

(i)

(A) Individuals convicted within this Commonwealth of any of the following offenses

committed on or after April 22, 1996, but before December 20, 2012:

18 Pa.C.S. § 2901 (relating to kidnapping)

where the victim is a minor.

App. 41

18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.

18 Pa.C.S. § 4302 (relating to incest) where

the victim is 12 years of age or older but under

18 years of age.

18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution and related offenses) where the actor

promotes the prostitution of a minor.

18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating

to obscene and other sexual materials and

performances) where the victim is a minor.

18 Pa.C.S. § 6312 (relating to sexual abuse of

children).

18 Pa.C.S. § 6318 (relating to unlawful contact

with minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

(B) Individuals convicted within this Commonwealth of an offense set forth in clause (A)

who were required to register with the Pennsylvania State Police under a former sexual

offender registration law of this Commonwealth on or after April 22, 1996, but before

December 20, 2012, whose period of registration has not expired.

(ii) Individuals convicted within this Commonwealth of any of the following offenses committed

on or after January 26, 2005, but before December

20, 2012:

App. 42

18 Pa.C.S. § 2910 (relating to luring a child

into a motor vehicle or structure).

18 Pa.C.S. § 3124.2 (relating to institutional

sexual assault).

(2) Individuals convicted of an attempt, conspiracy or

solicitation to commit any of the offenses under paragraph (1)(i) or (ii) or subsection (b)(2).

(3) Individuals who currently have a residence in this

Commonwealth who have been convicted of offenses

similar to the crimes cited in paragraphs (1)(i) or (ii)

and (2) under the laws of the United States or one of

its territories or possessions, another state, the District

of Columbia, the Commonwealth of Puerto Rico or a

foreign nation or under a former law of this Commonwealth.

(a.1) Exception to 10-year registration. – Except

as provided under subsection (b), an individual considered to be an offender under section 9799.56(b) (relating to registration procedures and applicability) shall

be required to register with the Pennsylvania State Police for a period less than life, the duration of which is

to be determined under sections 9799.54 (relating to

applicability) and 9799.56(b).

(b) Lifetime registration. – The following individuals shall be subject to lifetime registration:

(1) An individual with two or more convictions of

any of the offenses set forth in subsection (a).

App. 43

(2)

Individuals convicted:

(i)

(A) in this Commonwealth of the following offenses, if committed on or after April

22, 1996, but before December 20, 2012:

18 Pa.C.S. § 3121 (relating to rape);

18 Pa.C.S. § 3123 (relating to involuntary

deviate sexual intercourse);

18 Pa.C.S. § 3124.1 (relating to sexual assault);

18 Pa.C.S. § 3125 (relating to aggravated

indecent assault); or

18 Pa.C.S. § 4302 when the victim is under 12 years of age; or

(B) in this Commonwealth of offenses

set forth in clause (A) who were required

to register with the Pennsylvania State

Police under a former sexual offender registration law of this Commonwealth on or

after April 22, 1996, but before December

20, 2012, whose period of registration has

not expired; or

(ii) of offenses similar to the crimes cited in

subparagraph (i) under the laws of the United

States or one of its territories or possessions,

another state, the District of Columbia, the

Commonwealth of Puerto Rico or a foreign nation or under a former law of this Commonwealth, if committed, or for which registration

with the Pennsylvania State Police under a

App. 44

former sexual offender registration law of this

Commonwealth was required, on or after

April 22, 1996, but before December 20, 2012,

who currently reside in this Commonwealth.

(3)

Sexually violent predators.

(4) An individual who is considered to be a sexually violent predator under section 9799.56(b) or

who is otherwise required to register for life under

section 9799.56(b), if the sexual offense which is

the basis for the consideration or requirement for

which the individual was convicted was committed, or for which registration with the Pennsylvania State Police under a former sexual offender

registration law of this Commonwealth was required, on or after April 22, 1996, but before December 20, 2012.

disaster or other event requiring evacuation of residences shall not relieve an individual of the duty to

(d)

Residents in group-based homes. –

(1) A group-based home may not provide concurrent residence in the group-based home to more

than five individuals in total who are required to

sexually violent predators.

(2) A group-based home that violates paragraph

(1) shall be subject to a civil penalty in the amount

of $2,500 for a first violation and in the amount of

$5,000 for a second or subsequent violation.

App. 45

(3) The Pennsylvania State Police or local law

enforcement agency of jurisdiction shall investigate compliance with this subsection, and the Attorney General or district attorney may commence

a civil action in the court of common pleas of the

county in which a group-based home is located to

impose and collect from the group-based home the

penalty under paragraph (2).

(4) As used in this subsection, the term “groupbased home” has the meaning given to it in 61

Pa.C.S. § 6124(c) (relating to certain offenders residing in group-based homes).

Sex Offender Registration and Notification Act

relevant sections

Statute: Pub.

L. No. 109-248,

Title I, July 27,

2006, 12 Stat.

587-602

Former

Codification

Current

Codification

§ 141(a)

18 U.S.C. § 2250

§ 111

42 U.S.C. § 16911

34 U.S.C. § 20911

§ 112

42 U.S.C. § 16912

34 U.S.C. § 20912

§ 113

42 U.S.C. § 16913

34 U.S.C. § 20913

§ 114

42 U.S.C. § 16914

34 U.S.C. § 20914

§ 117

42 U.S.C. § 16917

34 U.S.C. § 20919

§ 122

42 U.S.C. § 16922

34 U.S.C. § 20924

§ 125

42 U.S.C. § 16925

34 U.S.C. § 20927

App. 46

18 U.S.C. § 2250.

Failure to register.

(a)

In general. – Whoever –

(1) is required to register under the Sex Offender

Registration and Notification Act;

(2)

(A) is a sex offender as defined for the purposes of the Sex Offender Registration and

Notification Act by reason of a conviction under Federal law (including the Uniform Code

of Military Justice), the law of the District of

Columbia, Indian tribal law, or the law of any

territory or possession of the United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian

country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more

than 10 years, or both.

(b) International travel reporting violations. – Whoever –

(1) is required to register under the Sex Offender

Registration and Notification Act (42 U.S.C. 16901

et seq. [34 U.S.C. § 20901 et seq.]);

(2) knowingly fails to provide information required by the Sex Offender Registration and

App. 47

Notification Act relating to intended travel in foreign commerce; and

(3) engages or attempts to engage in the intended travel in foreign commerce;

shall be fined under this title, imprisoned not more

than 10 years, or both.

(c) Affirmative defense. – In a prosecution for a violation under subsection (a) or (b), it is an affirmative defense that –

(1) uncontrollable circumstances prevented the

individual from complying;

(2) the individual did not contribute to the creation of such circumstances in reckless disregard of

the requirement to comply; and

(3) the individual complied as soon as such circumstances ceased to exist.

(d)

Crime of violence. –

(1) In general. – An individual described in subsection (a) or (b) who commits a crime of violence

under Federal law (including the Uniform Code of

Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or

possession of the United States shall be imprisoned for not less than 5 years and not more than

30 years.

(2) Additional punishment. – The punishment

provided in paragraph (1) shall be in addition and

consecutive to the punishment provided for the violation described in subsection (a) or (b).

App. 48

34 U.S.C. § 20911.

Relevant definitions.

In this subchapter the following definitions apply:

(1)

Sex offender

The term “sex offender” means an individual who was

convicted of a sex offense.

(2)

Tier I sex offender

The term “tier I sex offender” means a sex offender

other than a tier II or tier III sex offender.

(3)

Tier II sex offender

The term “tier II sex offender” means a sex offender

other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and –

(A) is comparable to or more severe than the following offenses, when committed against a minor,

or an attempt or conspiracy to commit such an offense against a minor:

(i) sex trafficking (as described in section

1591 of Title 18);

(ii) coercion and enticement (as described in

section 2422(b) of Title 18);

App. 49

(iii) transportation with intent to engage in

criminal sexual activity (as described in section 2423(a))1 of Title 18;

(iv) abusive sexual contact (as described in

section 2244 of Title 18);

(B)

involves –

(i)

use of a minor in a sexual performance;

(ii) solicitation of a minor to practice prostitution; or

(iii) production or distribution of child pornography; or

offender.

(4)

Tier III sex offender

The term “tier III sex offender” means a sex offender

whose offense is punishable by imprisonment for more

than 1 year and –

(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to

commit such an offense:

(i) aggravated sexual abuse or sexual abuse

(as described in sections 2241 and 2242 of Title 18); or

So in original. The second closing parenthesis probably

should follow “18”.

App. 50

(ii) abusive sexual contact (as described in

section 2244 of Title 18) against a minor who

has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed by a parent or guardian); or

offender.

(5) Amie Zyla expansion of sex offense definition

(A)

Generally

Except as limited by subparagraph (B) or (C), the

term “sex offense” means –

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;

(iii) a Federal offense (including an offense

prosecuted under section 1152 or 1153 of Title

18) under section 1591, or chapter 109A, 110

(other than section 2257, 2257A, or 2258), or

117, of Title 18;

(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of

Public Law 105-119 (10 U.S.C. 951 note); or

(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

App. 51

(B)

Foreign convictions

A foreign conviction is not a sex offense for the purposes of this subchapter if it was not obtained with

sufficient safeguards for fundamental fairness

and due process for the accused under guidelines

or regulations established under section 20912 of

this title.

conduct

An offense involving consensual sexual conduct is

not a sex offense for the purposes of this subchapter if the victim was an adult, unless the adult was

under the custodial authority of the offender at the

time of the offense, or if the victim was at least 13

years old and the offender was not more than 4

years older than the victim.

(6)

Criminal offense

The term “criminal offense” means a State, local, tribal,

foreign, or military offense (to the extent specified by

the Secretary of Defense under section 115(a)(8)(C)(i)

of Public Law 105-119 (10 U.S.C. 951 note)) or other

criminal offense.

App. 52

(7) Expansion of definition of “specified offense against a minor” to include all offenses

by child predators

The term “specified offense against a minor” means an

offense against a minor that involves any of the following:

(A) An offense (unless committed by a parent or

guardian) involving kidnapping.

(B) An offense (unless committed by a parent or

guardian) involving false imprisonment.

(C)

Solicitation to engage in sexual conduct.

(D)

Use in a sexual performance.

(E)

Solicitation to practice prostitution.

(F) Video voyeurism as described in section 1801

of Title 18.

(G) Possession, production, or distribution of

child pornography.

(H) Criminal sexual conduct involving a minor,

or the use of the Internet to facilitate or attempt

such conduct.

(I) Any conduct that by its nature is a sex offense

against a minor.

(8) Convicted as including certain juvenile

adjudications

The term “convicted” or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent

App. 53

as a juvenile for that offense, but only if the offender is

14 years of age or older at the time of the offense and

the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in

section 2241 of Title 18), or was an attempt or conspiracy to commit such an offense.

(9)

Sex offender registry

The term “sex offender registry” means a registry of

sex offenders, and a notification program, maintained

by a jurisdiction.

(10)

Jurisdiction

The term “jurisdiction” means any of the following:

(A)

A State.

(B)

The District of Columbia.

(C)

The Commonwealth of Puerto Rico.

(D) Guam.

(E)

American Samoa.

(F)

The Northern Mariana Islands.

(G)

The United States Virgin Islands.

(H) To the extent provided and subject to the requirements of section 20929 of this title, a federally recognized Indian tribe.

App. 54

(11)

Student

The term “student” means an individual who enrolls

in or attends an educational institution, including

(whether public or private) a secondary school, trade

or professional school, and institution of higher education.

(12)

Employee

The term “employee” includes an individual who is

self-employed or works for any other entity, whether

compensated or not.

(13)

Resides

The term “resides” means, with respect to an individual, the location of the individual’s home or other place

where the individual habitually lives.

(14)

Minor

The term “minor” means an individual who has not attained the age of 18 years.

34 U.S.C. § 20912.

Registry requirements for jurisdictions.

(a)

Jurisdiction to maintain a registry

Each jurisdiction shall maintain a jurisdiction-wide

sex offender registry conforming to the requirements

of this subchapter.

App. 55

(b)

Guidelines and regulations

The Attorney General shall issue guidelines and regulations to interpret and implement this subchapter.

34 U.S.C. § 20913.

Registry requirements for sex offenders.

(a)

In general

A sex offender shall register, and keep the registration

current, in each jurisdiction where the offender resides, where the offender is an employee, and where

the offender is a student. For initial registration purposes only, a sex offender shall also register in the

jurisdiction in which convicted if such jurisdiction is

different from the jurisdiction of residence.

(b)

Initial registration

The sex offender shall initially register –

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the

registration requirement; or

(2) not later than 3 business days after being

sentenced for that offense, if the sex offender is not

sentenced to a term of imprisonment.

(c)

Keeping the registration current

A sex offender shall, not later than 3 business days

after each change of name, residence, employment,

or student status, appear in person in at least 1

App. 56

jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information

required for that offender in the sex offender registry.

That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender

is required to register.

(d) Initial registration of sex offenders unable

to comply with subsection (b)

The Attorney General shall have the authority to

specify the applicability of the requirements of this

subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a

particular jurisdiction, and to prescribe rules for the

registration of any such sex offenders and for other categories of sex offenders who are unable to comply with

subsection (b).

(e)

State penalty for failure to comply

Each jurisdiction, other than a Federally recognized

Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is

greater than 1 year for the failure of a sex offender to

comply with the requirements of this subchapter.

App. 57

34 U.S.C. § 20914.

Information required in registration

(a)

Provided by the offender

The sex offender shall provide the following information to the appropriate official for inclusion in the

sex offender registry:

(1) The name of the sex offender (including any

alias used by the individual).

(2) The Social Security number of the sex offender.

(3) The address of each residence at which the

sex offender resides or will reside.

(4) The name and address of any place where the

sex offender is an employee or will be an employee.

(5) The name and address of any place where the

sex offender is a student or will be a student.

(6) The license plate number and a description of

any vehicle owned or operated by the sex offender.

(7) Information relating to intended travel of the

sex offender outside the United States, including

any anticipated dates and places of departure, arrival, or return, carrier and flight numbers for air

travel, destination country and address or other

contact information therein, means and purpose

of travel, and any other itinerary or other travelrelated information required by the Attorney General.

(8) Any other information required by the Attorney General.

App. 58

(b)

Provided by the jurisdiction

The jurisdiction in which the sex offender registers

shall ensure that the following information is included

in the registry for that sex offender:

(1)

A physical description of the sex offender.

(2) The text of the provision of law defining the

criminal offense for which the sex offender is registered.

(3) The criminal history of the sex offender, including the date of all arrests and convictions; the

status of parole, probation, or supervised release;

registration status; and the existence of any outstanding arrest warrants for the sex offender.

(4)

A current photograph of the sex offender.

(5) A set of fingerprints and palm prints of the

sex offender.

(6)

A DNA sample of the sex offender.

(7) A photocopy of a valid driver’s license or identification card issued to the sex offender by a jurisdiction.

(8) Any other information required by the Attorney General.

(c)

Time and manner

A sex offender shall provide and update information

required under subsection (a), including information

relating to intended travel outside the United States

required under paragraph (7) of that subsection, in

App. 59

conformity with any time and manner requirements

prescribed by the Attorney General.

34 U.S.C. §20919.

Duty to notify sex offenders of

registration requirements and to register

(a)

In general

An appropriate official shall, shortly before release of

the sex offender from custody, or, if the sex offender is

not in custody, immediately after the sentencing of the

sex offender, for the offense giving rise to the duty to

(1) inform the sex offender of the duties of a sex

offender under this subchapter and explain those

duties;

(2) require the sex offender to read and sign a

form stating that the duty to register has been explained and that the sex offender understands the

registration requirement; and

(3)

ensure that the sex offender is registered.

(b) Notification of sex offenders who cannot

comply with subsection (a)

The Attorney General shall prescribe rules for the notification of sex offenders who cannot be registered in

accordance with subsection (a).

App. 60

34 U.S.C. § 20924.

Actions to be taken when

sex offender fails to comply

An appropriate official shall notify the Attorney General and appropriate law enforcement agencies of any

failure by a sex offender to comply with the requirements of a registry and revise the jurisdiction’s registry to reflect the nature of that failure. The appropriate

official, the Attorney General, and each such law enforcement agency shall take any appropriate action to

ensure compliance.

34 U.S.C. § 20927.

Failure of jurisdiction to comply.

(a)

In general

For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined

by the Attorney General, to substantially implement

this subchapter shall not receive 10 percent of the

funds that would otherwise be allocated for that fiscal

year to the jurisdiction under subpart 1 of part E of

title I of the Omnibus Crime Control and Safe Streets

Act of 1968 (42 U.S.C. 3750 et seq.).1

(b)

State constitutionality

(1)

In general

When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney

Reclassified to 34 U.S.C. § 10151 et seq.

App. 61

General shall consider whether the jurisdiction is

unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the

jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s highest

court.

(2)

Efforts

If the circumstances arise under paragraph (1),

then the Attorney General and the jurisdiction

shall make good faith efforts to accomplish substantial implementation of this subchapter and to

reconcile any conflicts between this subchapter

and the jurisdiction’s constitution. In considering

whether compliance with the requirements of this

subchapter would likely violate the jurisdiction’s

constitution or an interpretation thereof by the

jurisdiction’s highest court, the Attorney General

shall consult with the chief executive and chief

legal officer of the jurisdiction concerning the

jurisdiction’s interpretation of the jurisdiction’s

constitution and rulings thereon by the jurisdiction’s highest court.

(3)

Alternative procedures

If the jurisdiction is unable to substantially implement this subchapter because of a limitation

imposed by the jurisdiction’s constitution, the Attorney General may determine that the jurisdiction is in compliance with this chapter if the

jurisdiction has made, or is in the process of

App. 62

implementing2 reasonable alternative procedures

or accommodations, which are consistent with the

purposes of this chapter.

(4)

Funding reduction

If a jurisdiction does not comply with paragraph

(3), then the jurisdiction shall be subject to a funding reduction as specified in subsection (a).

(c)

Reallocation

Amounts not allocated under a program referred to in

this section to a jurisdiction for failure to substantially

implement this subchapter shall be reallocated under

that program to jurisdictions that have not failed to

substantially implement this subchapter or may be reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of implementing

this subchapter.

(d)

Rule of construction

The provisions of this subchapter that are cast as directions to jurisdictions or their officials constitute, in

relation to States, only conditions required to avoid the

reduction of Federal funding under this section.

So in original. Probably should be followed by a comma.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.