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David Schepers v. Commissioner of Indiana Dept. of Corrections, 7th Cir No. 11-3834, 8/28/12

seventh circuit decision

Sex Offender Registration – Due Process Right to Correct Errors 

Given restrictions on sex offender registrants, more than mere reputational stigma is at stake, and due process therefore requires the implementation of some mechanism for correcting errors in the registry.

That brings us to the heart of the due process claim in this case. Plaintiffs allege that errors in the registry—such as being mislabeled a sexually violent predator—infringe on a liberty interest protected by the Due Process Clause, and thus that the DOC is required to provide some process to correct those errors. In order for state action that injures one’s reputation to implicate the Due Process Clause, the action must also alter one’s legal status or rights. The Supreme Court applied this principle to allegations of defamation by government agents in Paul v. Davis, 424 U.S. 693 (1976), where it rejected the argument that the injury to reputation from being included on a list of “active shoplifters” implicated a liberty interest for due process purposes. Rather, the Court held, it is the alteration of legal status, in the sense of a deprivation of a right previously held under state law, that when “combined with the injury resulting from the defamation, justif[ies] the invocation of procedural safeguards.” Id. at 708-09; see also Kahn v. Bland, 630 F.3d 519, 534 (7th Cir. 2010) (applying this test). The need to show alteration of legal status along with some stigmatic or reputation injury is commonly referred to as the “ ‘stigma plus’ test.” Kahn, 630 F.3d at 534.

… The Indiana statute deprives members of the class of a variety of rights and privileges held by ordinary Indiana citizens, in a manner closely analogous to the deprivations imposed on parolees or persons on supervisory release. Citizens do not need to report to the police periodically, nor is their right to travel conditioned on notifications to the police in both the home and the destination jurisdiction. Unlike Schepers, who was forbidden from living within 1,000 feet of a school or park while he was categorized as a sexually violent predator, members of the public are free to decide where they wish to live. These restrictions, in our view, fit the requirement in Paul v. Davis of an alteration in legal status that takes the form of a deprivation of rights under state law.

Although any kind of placement on the sex offender registry is stigmatizing, we agree with the district court that erroneous labeling as a sexually violent predator is “further stigmatizing to [one’s] reputation.” Society’s abhorrence of sexually violent predators goes above and beyond that reserved for other sex offenders. Indiana has taken that position formally through the additional restrictions in the law on the sexually violent predator’s actions. … We are satisfied that plaintiffs have shown that the kind of registry mistakes they have alleged here implicate a liberty interest protected by the Due Process Clause.

… Taking the system as it is, we conclude that the DOC’s current procedures are inadequate because they fail to provide any way for persons not currently incarcerated, including the lead plaintiff in this case, to correct errors in the registry.

The court declines to dictate “what sort of process the DOC must enact. Instead we leave it open for the parties to determine in further proceedings (or, of course, the court, should the parties fail to agree on a constitutionally adequate result).”

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