(CN) — A panel of 11th Circuit judges seemed unconvinced on Tuesday that Alabama should be allowed to reinstate an unequivocal ban on child sex offenders living with their children.
Bruce Henry wants to live under the same roof as his young son. But he is bound by Alabama Code §15-20A-11(d)(4): “No adult sex offender shall reside or conduct an overnight visit with a minor,” including the offender’s own children, if “the adult sex offender has been convicted of any sex offense involving a child.”
The law automatically applies to cases like Henry’s — without a hearing — imposing “a lifetime, non appealable ban on living with one’s own children based solely on the fact of a qualifying conviction,” Henry's attorneys wrote in a trial brief.
Henry argues that the law is subject to strict scrutiny and must be narrowly tailored to achieve the state’s goal of protecting children.
In January 2024, U.S. District Court Judge R. Austin Huffaker, a Donald Trump appointee, agreed. He issued a memorandum and order partly granting Henry's summary judgment and declaring the law facially unconstitutional. Huffaker enjoined the state from enforcing the law as it was written.
Before the 11th Circuit panel, Alabama Solicitor General Edmund LaCour insisted Huffaker's injunction was unconstitutional and ignored the state’s “interest in trying to prevent these harms occurring to children, both by punishing those offenders who are caught and by preventing that harm from happening in the first place.”
U.S. Circuit Judge Robin S. Rosenbaum, a Barack Obama appointee, almost immediately interjected that few could argue against preventing or punishing child abuse. But Rosenbaum said the statute seems to be “both over-inclusive and under-inclusive” and crucially, “there is no exit door.”
“There's so many ways that this could have been tailored better to avoid this problem,” she said of the law.
U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, questioned the law's logic that while offenders can't be alone overnight with a minor child, they can have unsupervised visitation between 1-4 p.m.
“We know nationally, generally, that child abuse happens all times of the day,” Abudu said. “How does this provision in the statute protect a child during those daytime hours from being assaulted? The answer is, it doesn’t.”
Abudu also asked whether the state agreed Henry’s fundamental parental rights were at stake.
LaCour acknowledged they were, but he added that Huffaker’s injunction also prohibits the state from applying the law against any parents — no matter how egregious their offense — along with grandparents, stepparents, siblings and stepsiblings.
U.S. Circuit Judge Charles R. Wilson, a Bill Clinton appointee, said that Huffaker’s order emphasized the unconstitutional nature of a lifetime ban without a hearing.
LaCour argued the law was narrowly tailored and supported by evidence that sex offenders are likely to reoffend, but he conceded the district court may have been correct with some of its findings.
“At a minimum, this board needs to reverse to the extent that the injunction applies to non-parents,” he said to the three-judge panel. “There's no basis whatsoever to apply the injunction and prohibit us from applying [the law] to people who have no parental rights at all. Mr. Henry brought only a parental rights challenge.”
Henry's attorney Paul M. Dubbeling said the issue is not whether convicted sex offenders have a constitutional right to live with their children. Rather, he said, the state has other methods to protect minors. He said the law at issue simply “does not pass strict scrutiny.”
Wilson asked him to defend his facial challenge of the law, using the standards set in United States v. Salerno, which requires a challenger to meet a high burden showing “that no circumstances exist under which the statute would be valid.”
Dubbeling said, “In the 35 years since Salerno was decided, no court has taken that language and said that the existence of a hypothetically valid application of the statute would relieve the state of its burden under the means/ends analysis of strict scrutiny.”
He disagreed that the law could be warranted in some circumstances.
“In every case, why can't there be a potential, if nothing else, for a hearing?” he said.
Dubbeling said that the U.S. Supreme Court has recognized a 14th Amendment right “to the care, custody and control of one's children,” as well as a First Amendment “right of association to cohabitate with one's relatives.”
Abudu said, “It does seem like there is room, if someone has been convicted of a crime, for their rights to be stripped away.”
She noted the Supreme Court has found that convicted felons can lose the right to own firearms, vote and run for office, in some cases.
In a seeming nod to Republican presidential candidate Donald Trump, Abudi said convicted felons are not prohibited from running for office “in all circumstances, as we now know.”
Dubbeling agreed but added, “There is no sanction in Supreme Court precedent for taking away a fundamental right of a family, of First Amendment value, based on status of a felon.
“The remedy for a statute that fails strict scrutiny is facial invalidation of statute,” Dubbeling said. “In this case, it's the Legislature that needs to go back and decide how they want to handle this.”
Henry, who is 48, was convicted of possession of child pornography in 2013. He admitted downloading and masturbating to more than 300 images or videos of prepubescent children being sexually abused.
The state said in a trial brief that while he was on supervised release, Henry then “violated the terms of release to access pornography involving younger-looking teens and photographs of children in sexual positions.”
Then, he got married and had a child.
When the court said he could not live with his family after the child was born, Henry filed suit.
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