CHICAGO (CN) – The Seventh Circuit appeared likely Tuesday to overturn Indiana’s sex offender registration requirement, as it applies to people only required to register because they moved away from the state then moved back.
“This registration requirement imposes a significant burden on those who move to Indiana, and not on people who live in Indiana continuously,” U.S. Circuit Judge Illana Rovner, a Ronald Reagan appointee, said at oral arguments Tuesday morning. “It seems to me a violation of the fundamental right to travel.”
In 2017, the American Civil Liberties Union won a preliminary injunction blocking the Hoosier State from requiring sex offenders to register simply because they resided in another state after serving their sentence.
All three plaintiffs committed a sex offense before the enactment of Indiana’s Sex Offender Registration Act, then left Indiana and resided in another state that required them to register as sex offenders.
Upon their return to Indiana, the state required them to register, even though they would not be required to register if they had never left Indiana.
A federal judge ruled that this policy violates the U.S. Constitution’s Commerce Clause because it treats people differently simply because they crossed state lines.
The state appealed, and Indiana Deputy Attorney General Kian Hudson sought to convince the three-judge panel Tuesday that the policy does not hinge on whether a person is a new resident or an old resident – a classification he did not want to defend – but whether they have been required to register elsewhere or not.
“The Indiana Supreme Court has ruled that requiring a person to register when they have already been required to register in another state is not punitive,” Hudson told the court, even if Indiana’s registration requirements are more onerous.
Indiana has one of the most restrictive sex offender registration laws in the country. One of the plaintiffs in the case was unable to stay in a homeless shelter because it was too close to a park. Another was unable to participate in a meeting with his disabled daughter’s teachers because he could not walk onto school property.
“These are big restrictions. They look like restrictions on someone on probation or supervised release,” Chief U.S. Circuit Judge Diane Wood, a Bill Clinton appointee, told Hudson.
“There has to be a rational basis for the classification itself, not the rule alone,” the judge continued. “The state can’t say we’re going to start with African-Americans and then move on to the whites,” she added to laughter in the courtroom.
U.S. Circuit Judge Amy St. Eve, appointed by President Donald Trump, seemed to agree with her colleagues on the Chicago-based appeals court.
“I understand the rule was not designed to treat new and old residents differently, but the effect is the same,” she said.
ACLU senior staff attorney Gavin Rose represented the plaintiffs and told the judges, “It’s difficult to hear the state say that [the registration regime] doesn’t implicate the right to travel.”
He continued, “The state has created two classes of persons and only one of them needs to register – the ones that came to Indiana after a certain date.”
In an interview after the arguments, Rose said the judges were “definitely receptive and they asked probing questions of everyone.”
He said that every other state has a sex offender registration law, but no other state has similar travel-based registration requirements.
“With the travel restrictions, Indiana has dug its own grave on that issue,” Rose said. “We’re in a weird position where Indiana has said that some but not all people must register, and that’s where you have to figure out what draws that line. And I think what draws that line is when they moved to Indiana from another state, and that implicates the federal Constitution.”
Hudson was not available for comment after the hearing.
The judges are expected to issue a ruling within three months.