Case 2:15-cv-00606-WKW-SMD Document 168 Filed 03/11/19 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JOHN DOE #1; JOHN DOE #3;

JOHN DOE #7; JOHN DOE #9; and,
JOHN DOE #10;

Plaintiffs,
v.
STEVEN T. MARSHALL,
Attorney General of the State of
Alabama in his official capacity;
No. 2:15-cv-606-WKW
HAL TAYLOR, Secretary of the Alabama
Law Enforcement Agency, in his official
capacity; and,

CHARLES WARD, Director of the Alabama

Department of Public Safety, in his official
capacity
Defendants.

DEFENDANTS’ MOTION TO ALTER OR AMEND JUDGMENT

Defendants Steven T. Marshall, Hal Taylor, and Charles Ward, hereby move the Court

pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend its judgment to

address remedy and to declare that the Alabama Law Enforcement Agency’s (“ALEA”) post-

judgment implementation of the sex offender identification requirement in Alabama Code § 15-

20A-18 provides Plaintiffs constitutionally adequate relief. In support of this motion, Defendants

state the following:

1. On February 11, 2019, the Court entered a Memorandum Opinion and Order and

Final Judgment declaring the identification requirement of the Alabama Sex Offender Registration

and Community Notification Act (“ASORCNA”) in Alabama Code § 15-20A-18 to be

“unconstitutional under the First Amendment of the United States Constitution to the extent that it
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has been applied by the State of Alabama.” Doc. 165.1 Section 15-20A-18 requires adult sex

offenders to always have in their possession a driver license or identification card issued by ALEA

“bearing a designation that enables law enforcement officers to identify the licensee as a sex

offender.” Ala. Code § 15-20A-18(b). The ALEA Defendants implemented this statutory

requirement by placing the words “CRIMINAL SEX OFFENDER” in red letters on the face of

sex offenders’ licenses or identification cards.

2. The Court’s declaratory judgment was based on its holding that the “CRIMINAL

SEX OFFENDER” designation was compelled speech under the First Amendment and failed to

satisfy strict scrutiny. Doc. 164 at 16-22. The Court suggested that use of a single letter or other

more discrete label on a driver license or identification card would be narrowly tailored to achieve

the State’s compelling interest in allowing law enforcement officers to identify individuals as sex

offenders without unnecessarily disclosing this status to members of the general public. Id. at 21;

Id. at n.4. However, because there was no alternative sex offender designation before the Court at

the time it entered its judgment, the Court declared § 15-20A-18 unconstitutional as applied to

Plaintiffs and left open what form of relief might be appropriate.

3. After entry of the Court’s judgment, Plaintiffs’ counsel requested Defendants

arrange for the five Plaintiffs to obtain licenses or identification cards without the “CRIMINAL

SEX OFFENDER” designation. The ALEA Defendants have arranged for Plaintiffs to receive

paper non-driver identification cards lacking any sex offender designation on them at no cost. The

non-driver identification cards are valid for 30 days, and the ALEA Defendants will re-issue non-

1
The Court also held the internet-use reporting requirements in Alabama Code §§ 15-20A-7(a)(9),
15-20A-7(a)(18), and 15-20A-10(e)(1) were facially unconstitutional on First Amendment over-
breadth grounds. Doc. 165. Defendants’ motion does not seek to alter or amend this portion of the
Court’s judgment.

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driver identification cards to Plaintiffs at no cost every 30 days until they have completed

arrangements for an alternative sex offender designation that will apply on a State-wide basis.

4. On February 19, 2019, ALEA Secretary Hal Taylor executed a change agreement

with the vendor responsible for creating the electronic template for driver license and identification

cards. See Exhibit A (filed under seal). The change agreement authorizes the vendor to replace the

red-letter “CRIMINAL SEX OFFENDER” designation with a code composed of letters and

numbers in the same black font as other information appearing on a license or identification card,

such as name, date of birth, and address. An addendum to the change agreement shows sample

driver licenses and identification cards containing the old and new sex offender designations. See

Exhibit B (filed under seal). The new code will appear on the face of the license as pictured in

Exhibit B, and the code will not be defined or referenced in any way on the back of the license.

5. Defendants anticipate that the new driver licenses or identification cards for sex

offenders will be available in approximately 90 days. After ALEA’s vendor has completed the

change and the new identification cards are available, Defendants intend to enforce § 15-20A-18

as to the Plaintiffs in this lawsuit and on a State-wide basis. ALEA will send notice to ASORCNA

registrants by first class mail to their registered address informing them that they may obtain new

driver licenses or identification cards and explaining the details of the reissue process. When the

time for registrants to obtain reissued identification cards set out in the notice has passed,

Defendants intend to resume enforcement of ASORCNA’s identification requirements.

6. Defendants file this Rule 59(e) motion seeking a declaration from the Court that

the new code that will be used to implement ASORCNA’s identification requirements provides

Plaintiffs a constitutional form of relief. “The decision to alter or amend a judgment is committed

to the sound discretion of the district court.” O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.

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1992). A Rule 59(e) motion may be granted on the grounds of newly-discovered evidence or

manifest errors of law or fact. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). Defendants’

Rule 59(e) motion seeking a declaration on the adequacy of post-judgment remedy is proper

because it requires the Court to substantively reconsider its original judgment. See Osterneck v.

E.T. Barwick Indus., Inc., 825 F.2d 1521, 1525-27 (11th Cir. 1987) (holding a post-judgment

motion seeking an award of prejudgment interest was properly brought under Rule 59(e) because

it required reconsideration of substantive issues resolved in the judgment). However, a Rule 59(e)

motion cannot be used “to relitigate old matters, raise argument or present evidence that could

have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, 408

F.3d 757, 763 (11th Cir. 2005). As a result, Defendants do not request reconsideration of the

Court’s holding that the “CRIMINAL SEX OFFENDER” designation was compelled speech

under the First Amendment subject to strict scrutiny.2 Rather, Defendants request that the Court

alter or amend its judgment in light of newly-presented evidence about the sex offender

designation code Defendants intend to enforce to include a declaration that the new code provides

Plaintiffs constitutionally adequate relief.

7. The Court stated in its Memorandum Opinion that § 15-20A-18’s sex offender

designation is constitutional if it is implemented in a manner that satisfies strict scrutiny. Doc. 164

at 21. A regulation that compels speech satisfies strict scrutiny if it furthers a compelling interest

and is narrowly tailored to achieve that interest. Ariz. Free Enterprise Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721, 734 (2011). The Court held that “[t]he State has a compelling interest in

enabling law enforcement to identify a person as a sex offender.” Doc. 164 at 21. The Court

2
Defendants maintain, respectfully, that the Court’s decision is incorrect insofar as it concludes
that information on the face of a driver license is compelled speech for the reasons set out in their
summary judgment briefs.

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suggested that a sex offender designation would be narrowly tailored if it used a letter, such as the

“Y” designation used by Delaware, or a reference to a statute such as the “943.0435, F.S.”

designation used by Florida. Id. at 21 n.4.

8. The new code designating individuals as sex offenders on driver licenses and

identification cards is narrowly tailored. The code consists of a combination of letters and numbers

that does not indicate to members of the general public what it means. The code will be placed on

the face of the license below the date of issuance of the license or identification card in the same

black color and font as other identifying information such as name, address, height, weight, sex,

eye color, and hair color. The code will appear on the face of the license. But this placement is

narrowly tailored to the statutory purpose of “enabl[ing] law enforcement officers to identify the

licensee as a sex offender” because all other information that an officer uses to identify the licensee

is contained on the face of the license. The particular code is narrowly tailored because it does not

indicate that the licensee is a sex offender to members of the general public, and law enforcement

officers will receive training on the location and meaning of the code. Thus, the new sex offender

code is similar to the “Y” or “943.0435, F.S.” codes used by other states and referenced by the

Court.

9. Accordingly, Defendants respectfully request the Court enter an order altering or

amending its judgment to include a declaration that the new sex offender designation code provides

Plaintiffs constitutionally adequate relief.

Respectfully submitted,

Steve Marshall
Attorney General

/s Brad A. Chynoweth
James R. Houts (ASB-1321-T77J)
Deputy Attorney General

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Brad A. Chynoweth
(ASB-0030-S63K)
Winfield J. Sinclair
(ASB-1750-S81W)
Assistant Attorneys General
State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
(334) 242-7300
(334) 353-8440 (fax)
jhouts@ago.state.al.us
bchynoweth@ago.state.al.us
wsinclair@ago.state.al.us

Counsel for Defendants

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CERTIFICATE OF SERVICE

I certify that on March 11, 2019, I filed the foregoing electronically using the Court’s

CM/ECF system, which will serve all counsel of record.

/s Brad A. Chynoweth
Counsel for Defendants