United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN ROBERT BLAKEY, District Judge.
Plaintiffs Michael Beley and Douglas Montgomery have sued Defendant City of Chicago, on behalf of themselves and a putative class of sex offenders. Plaintiffs bring four claims against Defendant, asserting that Defendant violated procedural due process (Count I); the equal protection clause (Count II); the freedom of intimate association (Count III); and the Illinois Sex Offender Registration Act ("SORA") (730 ILCS 150) (Count IV).
Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), Defendant has moved  to dismiss all these claims as well as Plaintiffs' request for declaratory and injunctive relief. For the following reasons, Defendant's motion is granted in part and denied in part.
I. Legal Standard
Under both Rules 12(b)(1) and 12(b)(6), this Court must construe the Second Amended Complaint  (the operative complaint) in the light most favorable to Plaintiffs, accept as true all well-pleaded facts and draw reasonable inferences in their favor. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013); Long v. Shorebank Development Corp., 182 F.3d 548, 554 (7th Cir. 1999). Statements of law, however, need not be accepted true. Id. Rule 12(b)(6) limits this Court's consideration to "allegations set forth in the complaint itself, documents that are attached to the complaint, documents that are central to the complaint and are referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
To survive Defendant's motion under Rule 12(b)(6), the Second Amended Complaint must "state a claim to relief that is plausible on its face." Yeftich, 722 F.3d at 915. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Turning to Rule 12(b)(1) (which involves Defendant's challenge to Plaintiffs' standing to seek declaratory and injunctive relief), there are two types of Rule 12(b)(1) challenges-factual and facial-and they have a "critical difference." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). When a defendant argues that "the plaintiffs' complaints, even if true, were purportedly insufficient to establish injury-in-fact, " the challenge is a facial one. Id. at 443-44. "Facial challenges require only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Id. at 443. Factual challenges, however, lie "where the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction." Id. (internal quotations omitted). Courts may look beyond the complaint only when a defendant brings a factual attack against jurisdiction, such as here, where Defendant claims that Plaintiffs lacks standing. Id.
Plaintiffs are convicted sex offenders who reside in Chicago and are required to register under SORA.  ¶¶ 5-6, 16-17. Under SORA, Plaintiffs must (among other things) register in person with the appropriate law enforcement agency where they live (here, the Chicago Police Department); pay an initial $100 registration fee; and provide a photograph and current address. 730 ILCS 150/3(a), 150/3(c)(6). Sex offenders without a fixed address must report weekly in person to their local law enforcement agency. 730 ILCS 150/3(a). Failure to register carries legal consequences, including serving at least seven days in jail and paying a mandatory minimum fine of $500. 730 ILCS 150/10(a).
Plaintiffs allege that Defendant has a policy to refuse to register sex offenders who are homeless despite its obligations to do so under SORA.  ¶¶ 3, 8, 15, 21. Plaintiffs describe their two experiences as examples:
On November 20, 2012, Beley, who was then homeless, sought to register with the Chicago Police Department.  ¶¶ 6-7. However, the Chicago Police Department refused to register Beley because of its aforementioned policy. Id. ¶ 8. As a result, from November 22 to December 11, 2012, Beley was in violation of SORA and that violation was posted on the state police website. Id. ¶ 9. On December 11, 2012, Beley was able to register using a temporary address at a homeless shelter. Id. ¶¶ 10-13. Nonetheless, on February 19, 2013, a police officer was unable to verify Beley's registration status (presumably Beley was then-registered) and documented that he was in violation of SORA. Id. ¶ 14. This mistake apparently has been remedied. See  at 2-3.
Montgomery raises similar allegations, that is, that he sought to register with the Chicago Police Department but that the Department refused to register Montgomery because he was homeless.  ¶¶ 19-21. Because he was unable to register, around July 13, 2011, Montgomery was charged with having violated SORA (after first being arrested for ordinance violations). Id. ¶ 23. At the time the First Amended Complaint was filed, Montgomery was in custody awaiting trial on the failure to register ( ¶ 24), but later reported that he was found not guilty . This Court understands from the January 30, 2015 Joint Reassignment Status Report  and the Illinois Sex Offender Registry that Montgomery is currently in jail.
A. Procedural Due Process (Count I)
Plaintiffs first assert that Defendant violated their procedural due process rights by disregarding the registration scheme for homeless offenders created by SORA.  ¶¶ 28, 30;  at 5-9.
To state a claim for denial of procedural due process, Plaintiffs must establish that: (1) they have suffered a deprivation involving a property or liberty interest and (2) there were inadequate procedures in place to protect Plaintiffs from the deprivation of this interest. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Leavell v. Illinois Department of Natural Resources, 600 F.3d 798, 804 (7th Cir. 2010). This Court addresses each factor in turn.
1. Deprivation of a Liberty Interest
This case involves a protected liberty interest: a homeless sex offender's protected liberty interest in being able to register. SORA requires a sex offender to register with a municipality once he has resided there for three days. 730 ILCS 150/3(a). Otherwise, the offender has committed a crime and is subject to arrest and serving at least one week in jail. 730 ILCS 150/10(a). A city policy to refuse to register homeless sex offenders thus jeopardizes their significant interest in freedom from liability and incarceration. See Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir. 2006); Johnson v. City of Chicago, No. 12 C 8594, 2013 WL 3811545, *9 (N.D. Ill. July 22, 2013).
Two of the plaintiffs in Johnson were unable to register because they were indigent and not provided an opportunity by the City of Chicago to seek a fee waiver. 2013 WL 3811545, *9. As a result, they were charged with SORA violations (when subsequently arrested on other charges). Id. The Court in Johnson first noted the multiple Supreme Court decisions establishing that being free from detention by one's own government is "the most elemental of liberty interests"; and then concluded that exposing homeless sex offenders to liability and incarceration is "precisely the type of situation that requires due process." Id. This Court agrees.
2. Inadequate Procedures
Turning to the second part of the test, Defendant argues that the availability of pre-deprivation and post-deprivation relief satisfies the ...