Brian Hope v. Commissioner of Indiana Depart ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2523
BRIAN HOPE, et al.,
Plaintiffs-Appellees,
v.
COMMISSIONER OF INDIANA DEPARTMENT
OF CORRECTION, et al,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-02865-RLY-TAB — Richard L. Young, Judge.
____________________
ARGUED JANUARY 14, 2020 — DECIDED JANUARY 6, 2021
____________________
Before ROVNER, WOOD, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. Sex offender registration and noti-
fication laws have a unique place at the intersection of crimi-
nal and civil law. These civil laws impose cumbersome and
often lifelong burdens on former criminal perpetrators, many
of whom have finished all forms of imprisonment and post-
imprisonment supervision. For this reason, they are fre-
quently challenged as unconstitutional. In this case, the
2 No. 19-2523
plaintiffs have challenged Indiana’s Sex Offender Registra-
tion Act (SORA) as it applies to offenders who have relocated
to Indiana from other states after the enactment of SORA, and
who are forced to register under the law, but would not have
been required to do so had they committed their crimes as
residents of Indiana prior to the enactment of the relevant
portions of SORA and maintained citizenship there. The dis-
trict court found the registration requirements to be unconsti-
tutional, and we uphold the district court’s finding that this
application of SORA violates the plaintiffs’ right to travel.
I.
Although sex offender registries had been around for
some time prior, they proliferated in the early 1990’s due to a
few high profile and highly publicized heinous crimes against
children by repeat sex offenders. We can assume that more
widespread access to the internet in the 1990’s also contrib-
uted to the proliferations of these laws. For the first time, an-
yone with an internet connection could access the information
in these registries from their homes with a few mouse clicks
and find out the location of convicted sex offenders in their
communities. In 1994, Indiana enacted its own version of a sex
offender registry, SORA, also called “Zachary’s Law,” after a
10-year-old boy who was tragically sexually assaulted and
murdered by a neighbor with a previous criminal conviction
for sexual assault of a child. 1994 Ind. P.L. 11 § 7 (codified as
Indiana Code §§ 5-2-12-1 through 5-2-12-13) (current version
at Ind. Code §§ 11-8-8-1 through 11-8-8-23).
Around the same time, in the federal arena, Congress was
enacting sex offender registration and notification laws, cul-
minating in 2006 with the federal Sex Offender Registration
and Notification Act (SORNA), 34 U.S.C.A. § 20901 et. seq.,
No. 19-2523 3
which requires states to maintain public registries with spec-
ified sex offender information. Indiana has periodically
amended its SORA to remain in compliance with changing
requirements of the federal SORNA, and, according to Indi-
ana’s brief, to target those most likely to recidivate. In 1996,
the Indiana General Assembly revised SORA to require regis-
tration by one convicted elsewhere of a state offense that is
substantially equivalent to an Indiana offense that triggers a
duty to register. 1996 Ind. P.L. 33 § 2; see also 2001 Ind. P.L. 238
§ 4 (making substantial equivalency provision retrospective).1
And, most relevantly, in 2006, the legislature amended SORA
to apply the statute’s requirements to any “person who is re-
quired to register as a sex offender in any jurisdiction.” 2006
P.L. 140 § 5(b)(1) (codified at Ind. Code §§ 11-8-8-4.5(b)(1), 11-
8-8-5(b)(1)).
Those amendments have greatly expanded both the list of
persons required to register and the information those regis-
trants are required to provide. The current SORA require-
ments are many. A person required to register under SORA
must report in person at least once annually to the local sher-
iff’s office in the county of residence, and if the registrant is
employed or attends school in a different county, the regis-
trant must report to the sheriff’s office in each of those coun-
ties as well. Sexual offenders who have committed one of nine
specified offenses are considered to be “sexually violent pred-
ators” and must report to the local sheriff’s office every ninety
days. Ind. Code. § 11-8-8-14(b). A person who is homeless or
1During the briefing of this case, this provision was codified at Ind. Code
§§ 11-8-8-4.5(a)(22), 11-8-8-5(a)(24). As of July 1, 2020, the “substantial
equivalency” provision has been moved to Ind. Code 1-1-2-4(b) and made
more generally applicable across Indiana’s Code.
4 No. 19-2523
lives in transitional or temporary housing must appear in per-
son at least once every seven days. Id. at § 11-8-8-12(b)(2).
Registration requires more than simply appearing at the
sheriff’s office. The person registering must be photographed
and provide information including their name, date of birth,
race, height, weight, hair color, eye color, identifying features
such as scars and tattoos, social security number, driver’s
license or state identification card number, vehicle
description and license plate number of any vehicle the
registrant might operate regularly, principal address, name
and address of any employer or educational institution, any
electronic mail addresses, any instant messaging user names,
any social networking website user name and “[a]ny other
information required by the [Department of Corrections
(DOC)].” Ind. Code § 11-8-8-8(a).2 Most of this information is
published on the public registry, although some of the
information (such as an individual’s e-mail address) is not
available to the public. If any of this information changes, the
registrant must go in person to the sheriff’s office, within
seventy-two hours, to report it. Ind. Code. § 11-8-8-8(c). That
means, for example, if a registrant gets a Pinterest account,
that person must report the new account, in person, at the
local sheriff’s office, within seventy-two hours. Convicted sex
offenders are required to maintain a valid driver’s license or
state identification card and are prohibited from seeking a
name change. Ind. Code. §§ 11-8-8-15(b), 16.
In addition to all of these requirements, a sexually violent
predator must inform law enforcement of any absences away
2 This is a simplified list. The full version can be found at Ind. Code
§ 11-8-8.
No. 19-2523 5
from home that are longer than seventy-two hours. Ind. Code
§ 11-8-8-18.3 And an “offender against children” may not
work, volunteer, or reside within 1,000 feet of a school, a
youth program center, or a public park. Ind. Code
§§ 35-42-4-10, 11.4 A person who is a “serious sex offender”
may not enter school property. Ind. Code. § 35-42-4-14(b).5
To verify addresses, a local law enforcement officer must
visit a registrant’s home at least once per year, and at least
once every ninety days if the offender is a “sexually violent
predator.” Ind. Code § 11-8-8-13(a). As of March 16, 2018,
there were close to 10,000 persons required to register as sex
or violent offenders in Indiana. R. 100-2 at 9.
After cataloguing the burdens that we have just enumer-
ated, the Indiana Supreme Court concluded that “the Act im-
poses significant affirmative obligations and a severe stigma
on every person to whom it applies. … [and the] duties im-
posed on offenders are significant and intrusive.” Wallace v.
State, 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana
Supreme Court concluded that the Act had the “effect of add-
ing punishment beyond that which could have been imposed
when his crime was committed,” and therefore the State could
not impose the requirements of SORA on anyone whose of-
fense predated the enactment of that statute. Id. at 384. To do
so, it held, would violate the ex post facto clause of the Indiana
Constitution. Id. As a result, Indiana does not require any
3 A “sexually violent predator” is defined in Ind. Code § 35-38-1-7.5.
4 An “offender against children” is defined in Ind. Code § 35-42-4-11.
5 A “serious sex offender” is defined in Ind. Code § 35-42-4-14(a).
6 No. 19-2523
person to register if the offense occurred prior to SORA—
provided that person remains a resident of Indiana.
This case is before us now, however, because, despite the
Wallace decision, persons with pre-SORA convictions who re-
locate to Indiana from another state where registration was
required or relocate from Indiana to another state requiring
registration and then back again, must register in Indiana,
even if Indiana would not have required them to register had
they committed their offenses in Indiana and never left.
We must pause here, before getting to the State’s reasons
for requiring these registrations, in order to untangle a Gor-
dian knot in this case. The State has argued in its briefs that
there are two situations in which the DOC decides that a per-
son is required to register upon moving to Indiana.6 Those cir-
cumstances are as follows:
(1) The substantial equivalency requirement: If an individual
relocates to Indiana after the offense of which that individual
was convicted, or its out-of-state-equivalent, became a regis-
trable offense, the DOC requires that individual to register
based on its determination that, at the time that the individual
relocated to Indiana, he was “on notice” that the offense re-
quires registration. (R. 100-1 at 24–25, R. 100-2 at 15–16). Indi-
ana requires the person to register whether or not that person
was obligated to register in the state from which that person
came.
6 The DOC and local county sheriff’s offices jointly maintain SORA and
the DOC makes a final determination as to who is required to register and
for how long each offender must register. Ind. Code, §§ 11-8-2-12.4, 11-8-
2-13(b), 36-2-13-5.5.
No. 19-2523 7
(2) The other jurisdiction requirement: If the individual is re-
quired to register in another jurisdiction and relocates to In-
diana after July 1, 2006, the DOC requires the individual to
register pursuant to Indiana Code § 11-8-8-5(b)(1), which de-
fines a “sex or violent offender” to include an individual “re-
quired to register as a sex or violent offender in any jurisdic-
tion.” (R. 100-1 at 24-25, 39; R. 100-2 at 16–17).7 Of course, one
can be required to register in another state as a result of one’s
employment or school enrollment in that state, even if he does
not live there. E.g., 730 ILCS 150/3(a-5). Thus, the State points
out that “[a] lifelong Indiana resident who would otherwise
fall within the Wallace rule will be required to register if he
works in another state that requires him to register;” State Br.
at 5. But that particular application of the other jurisdiction
requirement is not at issue here: So far as the briefing reveals,
none of the six plaintiffs was subject to registration in another
jurisdiction as a result of work, study, or some conduct apart
from residence in that jurisdiction.
In its fact section generally, and in the description of each
plaintiff, and throughout its brief, the State maintains that all
of the plaintiffs must register because of both of the statutory
requirements we have just identified. State’s Brief at 22, 23, 24,
25. As an example, the State asserts in its brief that Gary
Snider must register because of both the substantial equiva-
lency requirement (the crime he committed in Michigan in
1988 is substantially equivalent to an Indiana registrable of-
fense), and because of the other jurisdiction requirement (he
7 July 1, 2006 is the date that the Indiana General Assembly amended
SORA to apply the statute’s requirements to any “person who is required
to register as a sex offender in any jurisdiction.” See 2006 Ind. P.L. 140
§ 5(b)(1) (codified at Ind. Code §§ 11-8-8-4.5(b)(1), 11-8-8-5(b)(1)).
8 No. 19-2523
was required to register in Michigan). State’s Brief at 23–24.
Snider committed his crime in 1988, long before Indiana’s
SORA was enacted, and moved to Indiana in 2003—three
years before Indiana enacted the other jurisdiction require-
ment of SORA. Nevertheless, the State’s brief asserts that he
was required to register under both provisions. This is but one
of several conflicting assertations that the State makes about
Snider. It also presents two others. In its representative depo-
sition pursuant to Federal Rule of Civil Procedure 30(b)(6),
the State asserted that because Snider moved to Indiana be-
fore the other jurisdiction requirement was added to SORA,
he would only have to register on the basis of the substantial
equivalency requirement. R. 100-1 at 25. And at oral argu-
ment, the State asserted that Indiana’s ex post facto clause
would not allow the state to require registration from some-
one whose only basis for that registration was a pre-SORA of-
fense that is the substantial equivalent of an Indiana offense
made registrable by SORA. Oral argument at 8:57–12:00. To
put this all together, the State’s briefs assert that Snider had to
register for both reasons. At the 30(b)(6) deposition the State
maintained that Snider would not have to register under the
other jurisdiction prong because he arrived in Indiana before
that requirement was added. And at oral argument, the State
asserted that Snider could not be required to register because
of the substantial equivalency requirement alone because of
the Supreme Court decision in Wallace. We do not what else
to call this other than “a mess.”
Part of this confusion stems from the odd manner in which
Indiana describes the operation of SORA. It refers to the stat-
utory requirements of SORA as one aspect of the law, and
then distinguishes the statutory law from the rulings by the
Indiana Supreme Court invalidating certain applications of
No. 19-2523 9
those laws. This, however, is not how we ordinarily describe
operative state law. For example, in 2003, the U.S. Supreme
Court declared unconstitutional the Texas statute making it a
crime for two persons of the same sex to engage in certain in-
timate sexual conduct. Lawrence v. Texas, 539 U.S. 558, 123
S. Ct. 2472 (2003). Despite this ruling, the Texas statute that
makes it a crime if a person “engages in deviate sexual inter-
course with another individual of the same sex” remains on
the books in Texas to this day. See Tx. Penal Code § 21.06. Yet
no one ought to write a brief which describes same sex behav-
ior as illegal in Texas under the statute but allowed by the Su-
preme Court’s interpretation of the Constitution. Legisla-
tively enacted laws, modified by case law, together as a whole
become the law of the land and we do not continue to refer to
the statutory law of Texas separately from the law of Texas as
limited, clarified, or modified by the judiciary.
From this we can make several brief conclusions before
continuing on with the facts, with the promise for more anal-
ysis later. First, the decision in Wallace prevents the State from
requiring new (or returning) residents to Indiana to register
under the substantial equivalency prong alone, if their crime
occurred before the date that SORA would have required reg-
istration for the substantially equivalent crime in Indiana. The
State concedes this in its brief, at oral argument, and in a sup-
plemental filing. See State’s brief at 21 (“[A]n offender who
committed his registrable offense prior to the adoption of
SORA and who would not have any registration obligations
but for SORA cannot be required to register; under Wallace,
the marginal effects of such an application would be puni-
tive.); id. at 38 (“[A] pre-SORA offender who moves to Indiana
from a State where he was not required to register will also
not be required to register in Indiana.”); State’s Reply Brief at
10 No. 19-2523
6 (“[W]hether SORA can be applied to an offender whose
criminal conduct predates the statute turns on whether he has
already been required to register[;] … these decisions would
thus permit applying SORA if he were a lifelong Hoosier
whose out-of-state travel triggered another State’s registra-
tion requirement, while they would prohibit applying SORA
if he were a recent resident whose prior State did not require
registration.”) (emphasis removed); Oral argument at 3:28–
3:44 and 8:57–12:00 (asserting that if a pre-SORA offender
moved to Indiana from a state where he was not required to
register, he would not be required to register in Indiana even
if his crime was a substantially equivalent offense); State’s
Rule 28(j) letter dated April 13, 2020 at 1–2 (“Under the Indi-
ana Supreme Court’s decisions, Indiana’s Ex Post Facto
Clause prohibits applying SORA to someone whose offense
predates SORA and who is not required to register in another
State.”)
Second, as we will explain later, Wallace also prevents the
State from requiring registration under the other jurisdiction
prong alone if the new (or returning) resident relocated to In-
diana before 2006, when the other jurisdiction requirement
was added to SORA. With this in mind, we can continue with
the remaining facts.
The plaintiffs maintain that five of them have been re-
quired to register as sex offenders in Indiana because of both
the substantial equivalency determination and the other juris-
diction requirement, and that Snider had to register solely be-
cause of the substantial equivalency requirement.8 As we
8 Hope has to register because of the “registrable offense” part of the sub-
stantial equivalency/registrable offense requirement. Because he
No. 19-2523 11
noted above, we cannot understand why the State maintains
that each plaintiff had to register for both reasons under the
statute, but at the same time oddly concedes that it cannot re-
quire a pre-SORA offender to register on the basis of the sub-
stantial equivalency requirement alone.
As we shall see, ultimately these distinctions about why
an offender was required to register are not relevant to the
outcome of this case. Instead, our outcome depends on the
fact that two people who committed the same crime at the
same time have different registration requirements depend-
ing on their history of residency in Indiana. Nevertheless, be-
cause the State has created much confusion with its bifurca-
tion of the “statutory law” and the “constitutional law,” we
will make clear that we are proceeding with our analysis of
the case with the understanding that the State cannot apply
the substantial equivalency registration requirement to any
plaintiff who committed his offense before that offense be-
came registrable in Indiana.9 As a matter of Indiana law, it
may only require registration of pre-SORA offenders by those
who were required to register in another jurisdiction.10 This
committed his crime in Indiana it need not be compared to Indiana crime
to establish equivalence.
9 The first iteration of SORA became effective on March 2, 1994. All of the
plaintiffs committed their offenses prior to this date, with the exception of
Standish, who committed his offense on February 1, 1995. But the offense
Standish committed did not become a registrable offense in Indiana until
the statute was amended years later.
10 We conclude, as we discuss further below, that this creates an over-
looked problem with requiring registration from Snider and Bash, both of
whom arrived in Indiana prior to the addition of the other jurisdiction re-
quirement. We address this problem later.
12 No. 19-2523
in turn is what gives rise to the plaintiffs’ right-to-travel claim:
having relocated from other states that required them to reg-
ister, they are burdened with an obligation to register in Indi-
ana that would not be imposed on a similarly-situated of-
fender who has lived in Indiana continuously since commit-
ting his offense.
Before we turn to the individual circumstances of the
plaintiffs, we can describe the generalized facts that apply to
all of them. As a historical matter, it appears that all six of the
plaintiffs were required to register in Indiana based on a
determination by the DOC and local sheriff’s departments
that they had committed a registrable offense or the out-of-
state equivalent to such an offense and that they had been
required to register in another jurisdiction. Although they
committed their offenses before SORA was amended to
require registration on these grounds, the State deemed the
amendments applicable to the plaintiffs because they had
relocated (or returned) to Indiana after SORA was revised to
include these registration requirements. Indiana would not
have required them to register on these grounds had they
been living in the State at the time they committed their
offenses and remained there continuously thereafter. The
State now concedes that, as a matter of Indiana law (including
the Indiana Supreme Court’s decision in Wallace), the
plaintiffs can only be compelled to register based on the other
jurisdiction requirement—that is, because they were required
to register in another state. (We will discuss below why this
theory is problematic as it relates to Snider and Bash, who
moved to Indiana before the other jurisdiction requirement
was enacted). All of the plaintiffs committed their crimes a
long time ago—between approximately twenty-five to thirty-
five years ago. All have fully served their sentences resulting
No. 19-2523 13
from their sex-offense conviction.11 All qualify as an “offender
against children,” and as a “serious sex offender.” All have
lifelong labels, which are prominently displayed on the
publicly available registry. Snider is now in his mid-sixties
and committed his crime thirty-two years ago. Hope was
nineteen when he committed his crime—twenty-four years
ago. Mr. Bash was in his early teens or even younger when,
about thirty-five years ago, in the mid-1980’s, he committed
his crime. Standish, Rice, and Rush, like Snider, are all over
fifty years old, and have families that include children (and in
at least one case, grandchildren) of their own.
Brian Hope pled guilty to child molestation in 1996 for a
crime that occurred in 1993 (twenty-seven years ago). He
completed his probation in 2000 and has not been under any
form of supervised release since then. In 2004 he left Indiana
and relocated to California and then Texas, where he was re-
quired to register as a sex offender.12 He returned to Indiana
in 2013 to help care for a sick grandfather. Hope is the only
plaintiff who committed his offense in Indiana before the
11 Consequently, there is no restriction on their right to travel resulting
from the restraints of parole or probation. See Jones v. Helms, 452 U.S. 412,
420–21, 101 S. Ct. 2434, 2441 (1981); Williams v. Wis., 336 F.3d 576, 581 (7th
Cir. 2003).
12 There are conflicting explanations in the briefs about why Hope was
required to register in Texas. Hope claimed that it was because he was
required to register in Indiana. The State asserts that he was required to
register in Texas because his offense in Indiana was “substantially similar”
to a Texas offense and thus required registration under Texas Penal Code
Ann. § 21.11. In any event, the relevant facts here are that Hope is now
required to register in Indiana because he had been required to register in
Texas. For purposes of the application of Indiana’s SORA, the reasons for
the initial registration elsewhere are not relevant.
14 No. 19-2523
enactment of SORA, left, and then returned after SORA. Upon
his return, the state required him to register for the remainder
of his life as an “offender against children” because he was
required to register in Texas. Ind. Code § 11-8-8-5(b)(1). Be-
cause he is homeless, every seven days he must walk one to
two miles each way to the Sheriff’s office and wait in line to
register. The whole process—including travel, wait time, and
registration—can take several hours. Hope cannot live within
1,000 feet of a park, daycare, or certain other facilities. On at
least one occasion, he had to relocate from a homeless shelter
because it was located within 800 feet of a park. It is uncon-
troverted that had he remained a resident of Indiana, Wallace
would have relieved him of any obligation to register. He un-
successfully appealed the determination that he must do so to
both the Marion County Sheriff’s Department and the DOC.
A Michigan jury convicted Gary Snider in 1994 of criminal
sexual conduct in the first degree. Snider continues to deny
liability for his offense but stated in his affidavit that it was
his recollection that, at trial, the victim did not have a precise
memory of when the offense took place but testified that it
occurred in the first half of 1988 (thirty-two years ago). R. 100-
4 at 1. He married his wife while in prison, and the day he
completed his prison term in 2003, he moved to Indiana
where his wife lived and worked—three years before the In-
diana legislature added the other jurisdiction requirement to
SORA. Prior to the decision in Wallace, Snider was registered
as a sex offender. In 2006, he moved away from his wife be-
cause their home was located within 1,000 feet of a daycare.
In 2010, the Huntington County Sheriff’s Department in-
formed him that he was no longer required to register because
of the decision in Wallace (his offense predated the enactment
of that statute). In 2016, the DOC told him that Wallace no
No. 19-2523 15
longer applied and he would have to register as both a “sex-
ually violent predator” and an “offender against children”
every ninety days for the remainder of his life. He cannot en-
ter school property to see any of his five grandchildren or
great grandchildren perform in school activities.
In 1996, Joseph Standish pleaded no contest to attempted
criminal sexual conduct which occurred in Michigan in 1995
(25 years ago). He completed probation in 2001, and, when his
wife received a job in Indiana in 2013, he moved with her. In-
itially DOC did not require him to register but changed course
in 2016. He is now required to register as an “offender against
children” and a “sexually violent predator,” and must do so
at least every ninety days. Mr. Standish cannot watch his chil-
dren participate in school activities and cannot take them to
and from school.
In 1989, an Illinois court convicted and sentenced Patrick
Rice for an aggravated criminal sexual assault that took place
that year (31 years ago). Lacking a home or resources after his
release from prison in 2017, he relocated to Indiana to live
with his sister. Although Illinois required that Rice register
only for ten years, Indiana requires him to register for life
because he qualifies as a “sexually violent predator.” The
registration process for Madison County, where he first
settled, required him to pay an initial registration fee of fifty
dollars and to make multiple trips within a seventy-two-hour
period. Shortly after he was released from prison and arrived
in Indiana, he had to make eight to ten trips to the local
sheriff’s office—to register initially, to provide a copy of his
newly obtained government identification, then his newly
obtained social security card, his new telephone number, a
new e-mail address, and a Facebook account. He must repeat
16 No. 19-2523
the process any time he changes any of the listed information.
Without reliable transportation, he has to rely on other people
and their schedules to take him the six or seven miles to
register, and he must often wait an hour or more before
registering. A few months after registering in Madison
County, he had to repeat the process in Delaware County
after moving there with a partner. As an “offender against
children” and a “sexually violent predator,” he must repeat
this process every ninety days for the remainder of his life.
In 1990, Adam Bash pleaded guilty but mentally ill to the
Kentucky crime of rape in the first degree and sodomy in the
first degree for crimes committed in the mid-1980s, when he
was somewhere between a pre-teen and an early teen. In 1998,
he completed his prison sentence—which he spent mostly in
psychiatric or medical facilities—without any required parole
or probation. Upon his release, he relocated to Ohio, where he
was required to register, before settling in Indiana around
1999 or 2000, about six years before SORA’s other jurisdiction
requirement was enacted. Nevertheless, he is required to reg-
ister in Indiana annually as an “offender against children.”
Bash subsists on social security benefits, and because of his
conviction, does not qualify for any public housing assistance.
His housing options also have been limited by the prohibition
on living within 800 feet of certain facilities. All of this makes
it difficult for him to pay the fifty-dollar registration fee and
the five-dollar change-of-address fee, the latter of which, de-
spite its name, has been imposed when he registered a change
in car and haircut. Because of his precarious financial situa-
tion, he sometimes has to go on a payment plan. Bash has full
legal custody of his young son, but he cannot enter school
property for his activities or for parent-teacher conferences.
No. 19-2523 17
In 1992, Scott Rush was charged and convicted in a Florida
state court of sexual battery of a child less than twelve years
old. He completed his sentence in 1995, and his probation in
2005. In 2017 his employer closed its Florida office and offered
him a position in Indiana, which required him to relocate.
Rush qualifies as a sexually violent predator and an offender
against children and must register every ninety days (or
sooner if his information changes). He lives approximately six
miles from the sheriff’s office where he must register, and the
process generally takes more than an hour, but he must take
an entire day off of work to complete the process, as his job is
not flexible enough to allow him to come and go. Mr. Rush
has been affected most significantly from the prohibition on
entering school property, as his daughter has a learning disa-
bility, and every two to three months he must miss the school
meeting convened to discuss her needs and individualized
educational program.
Hope and Snider filed suit for declaratory and injunctive
relief against the Commissioner of the DOC, their respective
county prosecutors’ offices and respective county sheriffs
challenging the constitutionality of the statute, later adding
Standish as a plaintiff. The district court entered a preliminary
injunction on April 6, 2017, enjoining Indiana’s enforcement
of SORA against all three plaintiffs. A few months after Hope
and Snider filed their complaint, Rice, Bash, and Rush filed a
similar complaint. By agreement, the cases were consolidated,
and the preliminary injunction was extended to the new
plaintiffs. On July 9, 2019, the district court issued its Entry on
Cross-Motions for Summary Judgment holding that “SORA
violates Plaintiffs’ fundamental right to travel, Plaintiffs’ right
to equal protection of the laws, and the Constitution’s prohi-
bition against retroactive punishment.” R. 118 at 36.
18 No. 19-2523
Indiana’s rule that those moving into the state
must register while similarly situated residents
do not have to register violates Plaintiffs’ funda-
mental right to travel and guarantee to equal
protection of the laws. The application of
SORA’s requirements retroactively also violates
the Constitution’s prohibition against retroac-
tive punishment. That means the registration re-
quirements as applied here cannot stand.
Id. at 2. The State defendants appealed. We now affirm the
district court’s finding that application of SORA to this class
of offenders violates their fundamental right to travel in that
it treats them less favorably than Indiana citizens with com-
parable criminal histories who lived in Indiana before the
other jurisdiction requirement of SORA was enacted.
II.
We review the district court’s summary judgment deci-
sion de novo. E.g., Johnson v. Enhanced Recovery Co., 961 F.3d
975, 982 (7th Cir. 2020). Because we conclude that the State’s
application of SORA to the plaintiffs impermissibly interferes
with their right to travel, we do not reach the district court’s
alternative finding that it also violates their rights under the
ex post facto clause of the United States Constitution.
Although all six of the plaintiffs were convicted of sex of-
fenses before SORA would have required them to register for
those offenses, Indiana nonetheless requires each of them to
register based on subsequent amendments to SORA. As we
have noted, throughout this litigation, Indiana has repre-
sented that each of the plaintiffs is required to register on ei-
ther of two independent grounds: (1) he relocated to Indiana
No. 19-2523 19
after his offense (or its out-of-state equivalent) became a reg-
istrable offense under SORA (the substantial equivalency re-
quirement); or (2) he was required to register in his previous
state of residence (the other jurisdiction requirement). But the
State’s appellate briefs defend the plaintiffs’ registration obli-
gation solely on the basis of the other jurisdiction require-
ment, and as noted the State’s lawyer conceded at oral argu-
ment that Indiana’s ex post facto clause precludes application
of the substantial equivalency requirement to the plaintiffs. It
is therefore clear that Indiana places no reliance on the sub-
stantial equivalency requirement as a basis for demanding
that the plaintiffs register as sex offenders.
As to the plaintiffs’ claim that Indiana has interfered with
their right to travel by requiring them to register, the State’s
legal theory is that SORA does not make the sort of distinction
between newer and more longstanding citizens that the per-
tinent line of Supreme Court right-to-travel cases forbids.
What triggers SORA’s application to the plaintiffs, the State
emphasizes, is not the timing of their arrival in Indiana but
rather the fact that they were subject to a registration require-
ment in another jurisdiction. Thus, someone relocating to In-
diana today will have no obligation to register there if he was
under no such obligation in his former state of residence,
whereas a lifelong Indiana citizen will incur an obligation to
register in Indiana if he becomes obligated to register in an-
other state by virtue of taking a job or enrolling in school in
that state. Our dissenting colleague makes essentially the
same point: Application of the other jurisdiction requirement
turns not on whether or when an offender moved to Indiana
from another state but rather on another state’s imposition of
a duty to register, period. Indiana is not intentionally treating
newly arrived offenders differently and thus burdening their
20 No. 19-2523
right to travel; at most, the burden that an offender incurs on
relocating to Indiana is incidental to his interstate travel.
Whatever superficial appeal this line of reasoning might
have in the abstract, it does not defeat the plaintiff’s right-to-
travel claim. Indiana is not contending that the plaintiffs must
register because they committed a registrable offense or its
equivalent, nor is Indiana relying on some other aspect of the
plaintiffs’ conduct in another state signaling a danger that
warrants the plaintiffs’ registration in Indiana. It instead relies
solely on the fact that another state, in the exercise of its inde-
pendent judgment, required each of the plaintiffs to register,
although Indiana itself would not have required the plaintiffs
to do so in the first instance. Because Indiana is placing exclu-
sive reliance upon another state’s decision to require an of-
fender to register, it is necessarily (if implicitly) using an of-
fender’s travel as the trigger for its own registration require-
ment. It is true that there are two types of travel implicated by
the other jurisdiction requirement: relocation to Indiana from
another state and commuting from Indiana to another state
for work or study. All six of the plaintiffs have relocated to
Indiana, and it is that particular type of travel, and its unique
place in the Supreme Court’s right-to-travel jurisprudence,
that is at issue here. Indiana commuters who have picked up
registration obligations elsewhere may or may not have their
own constitutional claim—theirs is a different form of travel
for constitutional purposes—but no such claim has been
raised or briefed in this case. For the plaintiffs, all of whom
committed sex offenses before those offenses became registra-
ble in Indiana, it is the fact of their subsequent relocation that
gives rise to a duty to register in Indiana; had they lived in
Indiana at the time of their offenses and never left, they would
not be required to register today. True enough, their former
No. 19-2523 21
states of residence also required them to register. Indiana is
choosing to continue (or as to Bash and Snider, resurrect)
those obligations. But what matters for purposes of the plain-
tiffs’ constitutional claim is that they are now Indiana citizens.
And because they are citizens who relocated (traveled) to In-
diana from other jurisdictions, they are subject to burdens
that Indiana pre-SORA offenders are not by virtue of the Wal-
lace decision. Indiana has thus created two classes of other-
wise similarly situated citizens based on whether or not they
previously lived (or were otherwise present) in a state that re-
quired them to register. The distinction is purposeful, as it ex-
pressly looks to what obligations have been imposed on a per-
son elsewhere to determine what obligations he will now
have within the borders of Indiana. This disparate treatment
is incompatible with the Supreme Court’s right-to-travel ju-
risprudence, as we now explain.
Although a right to travel is not expressly mentioned in
the Constitution, it is nonetheless firmly embedded in federal
jurisprudence. Saenz v. Roe, 526 U.S. 489, 498, 119 S. Ct. 1518,
1524 (1999). See also Attorney General of N.Y. v. Soto-Lopez, 476
U.S. 898, 901, 106 S. Ct. 2317, 2320 (1986) (“Freedom to travel
throughout the United States has long been recognized as a
basic right under the Constitution.”) (cleaned up); Shapiro v.
Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329 (1969) (“This
Court long ago recognized that the nature of our Federal Un-
ion and our constitutional concepts of personal liberty unite
to require that all citizens be free to travel throughout the
length and breadth of our land uninhibited by statutes, rules,
or regulations which unreasonably burden this movement.”),
overruled in part on other grounds by Edelman v. Jordan, 415 U.S.
651, 671, 94 S. Ct. 1347, 1359–60 (1974). Indeed, the short-lived
Articles of Confederation expressly recognized a right of “free
22 No. 19-2523
ingress and regress to and from any other State” and entitled
the free inhabitants of each state to “all privileges and immun-
ities of free citizens in the several States.” Articles of Confed-
eration, art. IV, § 1 (1778).
As the cases have defined it, the right to travel encom-
passes at least three distinct, but related, components: (1) the
right of a citizen of one state to enter and leave another state;
(2) the right of a citizen of the first state to be treated as a wel-
come visitor rather than an unfriendly alien by the second
state; and (3) the right of a traveler who elects to settle in and
become a permanent resident of another state to be treated on
par with other citizens of that state. Saenz, 526 U.S. at 500, 119
S. Ct. at 1525.
The parties agree it is the third right, if any, that is impli-
cated here. So far as the plaintiffs in this case are concerned,
whether or not SORA imposes a duty to register depends
upon whether one settled (or re-settled) in Indiana after the
relevant provision of SORA was enacted: A sex offender who
lived in Indiana before the other jurisdiction requirement was
adopted and has remained a citizen of Indiana since that time,
without taking a job or engaging in some other activity in an-
other state that triggers a duty to register in that state, is ex-
empt from SORA’s other jurisdiction requirement, whereas
an individual with the identical criminal history who relo-
cated to Indiana after that requirement was adopted in 2006,
from a state that compelled him to register there, is subject to
SORA’s registration requirement.
Historically, there has been some uncertainty as to the con-
stitutional underpinning of the right to travel and thus as to
the appropriate framework for evaluating claims that a state
provision like SORA intrudes upon that right. The right to
No. 19-2523 23
travel has been variously ascribed to the Privileges and Im-
munities Clause of Article IV of the Constitution (the succes-
sor to a kindred provision in the Articles of Confederation),
the Commerce Clause, and the Privileges or Immunities
Clause of the Fourteenth Amendment. Soto-Lopez, 476 U.S. at
902, 106 S. Ct. at 2320. And, as relevant here, a number of cases
evaluating the legitimacy of state statutes according benefits
to residents based on the date of their arrival to or the dura-
tion of their residence within a state have examined those
classifications under the Equal Protection Clause of the Four-
teenth Amendment. See, e.g., Hooper v. Bernalillo Cnty. Asses-
sor, 472 U.S. 612, 618 & n.6, 623, 105 S. Ct. 2862, 2866 & n.6,
2869 (1985); Zobel v. Williams, 457 U.S. 55, 60–64 & n.6, 102
S. Ct. 2309, 2112–2315 & n.6 (1982); Shapiro, 394 U.S. at 632–33,
89 S. Ct. at 1330 (1969).13
But the Court’s decision in Saenz placed the third compo-
nent of the right to travel squarely within the domain of the
Privileges or Immunities Clause of the Fourteenth Amend-
ment, which provides:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
13 “Durational residency requirements are those that demand a person re-
side in a state for a given period of time before gaining benefits. Fixed-
point residency requirements demand that at a legislatively determined
moment (a specific date or event, for example, a veteran’s date of enlist-
ment) the applicant was a resident in the state. While an unsuccessful ap-
plicant can satisfy a durational residence requirement in the future, an ap-
plicant who fails to satisfy a fixed-point residence requirement cannot
cure the defect with the passage of time.” Harris v. Hahn, 827 F.3d 359, 362
n.4 (5th Cir. 2016).
24 No. 19-2523
wherein they reside. No State shall make or en-
force any law which shall abridge the privileges
or immunities of citizens of the United States;
….
U.S. Const., amend. XIV, § 1. Saenz, 526 U.S. at 502–03, 119
S. Ct. at 1526. Saenz concerned a California statute which, for
a period of twelve months after a new resident’s arrival, lim-
ited the maximum welfare benefits available to that resident
to the amount he was eligible to receive in the state where he
formerly resided (assuming that amount was less than Cali-
fornia’s relatively generous benefits). This durational resi-
dency provision, the Court observed, implicated “the right of
the newly arrived citizen to the same privileges and immuni-
ties enjoyed by other citizens of the same State. That right is
protected not only by the new arrival’s status as a state citizen,
but also by her status as a citizen of the United States.” Id. at
502, 119 S. Ct. at 1526. And it is this latter right that the Four-
teenth Amendment’s Privileges or Immunities Clause ex-
pressly addresses:
Despite fundamentally differing views concern-
ing the coverage of the Privileges or Immunities
Clause of the Fourteenth Amendment, most no-
tably expressed in the Slaughter-House Cases, 16
Wall. 36, 21 L. Ed. 394 (1872), it has always been
common ground that this Clause protects the
third component of the right to travel. Writing
for the majority in the Slaughter-House Cases,
Justice Miller explained that one of the privi-
leges conferred by this Clause “is that a citizen
of the United States can, of his own volition, be-
come a citizen of any State of the Union by a
No. 19-2523 25
bonâ fide residence therein, with the same rights
as other citizens of the State. Id., at 80. Justice
Bradley, in dissent, used even stronger lan-
guage to make the same point:
The states have not now, if they
ever had, any power to restrict
their citizenship to any classes or
persons. A citizen of the United
States has a perfect constitutional
right to go to and reside in any
State he chooses, and to claim citi-
zenship therein, and an equality
of rights with every other citizen;
and the whole power of the nation
is pledged to sustain him in that
right. He is not bound to cringe to
any superior, or to pray for any act
of grace, as a means of enjoying all
the rights and privileges enjoyed
by other citizens. Id., at 112–113.
That newly arrived citizens “have two political
capacities, one state and one federal,” adds spe-
cial force to their claim that they have the same
rights as others who share their citizenship. Nei-
ther mere rationality nor some intermediate
standard should be used to judge the constitu-
tionality of a state rule that discriminates
against some of its citizens because they have
been domiciled in the State for less than a year.
The appropriate standard may be more
26 No. 19-2523
categorical than that articulated in Shapiro, …
but it is surely no less strict.
Saenz, 526 U.S. at 503–04, 119 S. Ct. at 1526–27 (footnote omit-
ted). See also A.W. by & through Doe v. Neb., 865 F.3d 1014, 1020
n.3 (8th Cir. 2017); Harris v. Hahn, 827 F.3d 359, 370 (5th Cir.
2016); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 103 (2d Cir.
2009); Gean v. Hattaway, 330 F.3d 758, 771 (6th Cir. 2003); Rus-
sell v. Hug, 275 F.3d 812, 822 (9th Cir. 2002).
Insofar as the plaintiffs here are concerned, Indiana’s
SORA creates two classes of Indiana citizens, with the 2006
adoption of the other jurisdiction requirement marking the di-
viding line between the two classes: those who resided in In-
diana prior to the enactment of SORA’s other jurisdiction re-
quirement (and remained residents thereafter without incur-
ring a registration obligation in any other state), and those
who arrived later. The former enjoy the full protection of In-
diana’s ex post facto clause as interpreted by Wallace and may
not be burdened with the various aspects of the duty to regis-
ter that Wallace deemed to be penalties, so long as they do not
venture out of the State to engage in activity that might sub-
ject them to a registration requirement elsewhere. If, however,
they settled in Indiana after the other jurisdiction provision of
SORA was enacted, they may be subject to those very penal-
ties, regardless of when they committed their offenses.
This sets up the very sort of multi-tiered state citizenship
that the Supreme Court’s right-to-travel cases prohibit. See
Saenz, 526 U.S. at 507, 119 S. Ct. at 1528 (“Neither the duration
of respondents’ California residence, nor the identity of their
prior States of residence, has any relevance to their need for
benefits. Nor do those factors bear any relationship to the
State’s interest in making an equitable allocation of the funds
No. 19-2523 27
to be distributed among its needy citizens.”); Soto-Lopez, 476
U.S. at 904, 106 S. Ct. at 2322 (civil service employment pref-
erence granted only to those veterans who resided in state at
time they entered military service) (“The analysis in all of
these cases … is informed by the same guiding principle—the
right to migrate protects residents of a State from being dis-
advantaged, or from being treated differently, simply because
of the timing of their migration, from other similarly situated
residents.”); Hooper, 472 U.S. at 623, 105 S. Ct. at 2868 (prop-
erty tax exemption limited to veterans who resided in state
prior to specified date) (“The State may not favor established
residents over new residents based on the view that the State
may take care of ’its own,’ if such is defined by prior resi-
dence. Newcomers, by establishing bona fide residence in the
State, become the State’s ’own’ and may not be discriminated
against solely on the basis of their arrival in the State after
May 8, 1976.”); Zobel, 457 U.S. at 64, 102 S. Ct. at 2314–15 (pub-
lic oil dividends distributed to state residents based on the
length of their residence) (“If the states can make the amount
of a cash dividend depend on length of residence, what would
preclude varying university tuition on a sliding scale based
on years of residence—or even limiting access to finite public
facilities, eligibility for student loans, for civil service jobs, or
for government contracts by length of domicile? Could states
impose different taxes based on length of residence? Alaska’s
reasoning could open the door to state apportionment of
other rights, benefits, and services according to length of res-
idency. It would permit the states to divide citizens into ex-
panding numbers of permanent classes. Such a result would
be clearly impermissible.”) (footnotes omitted); Mem. Hosp. v.
Maricopa Cnty., 415 U.S. 250, 261–62, 94 S. Ct. 1076, 1084 (1974)
(requiring one year’s residence to be eligible for non-
28 No. 19-2523
emergency medical care at public expense) (“Not unlike the
admonition of the Bible that, ‘Ye shall have one manner of
law, as well for the stranger, as for one of your own country,’
Leviticus 24:22 (King James Version), the right of interstate
travel must be seen as insuring new residents the same right
to vital government benefits and privileges in the States to
which they migrate as are enjoyed by other residents. The
State of Arizona’s durational residence requirement for free
medical care penalizes indigents for exercising their right to
migrate to and settle in that State.”); Shapiro, 394 U.S. at 633,
89 S. Ct. at 1330 (various state provisions requiring one year’s
residence to be eligible for welfare assistance) (“We recognize
that a State has a valid interest in preserving the fiscal integ-
rity of its programs. … But a State may not accomplish such a
purpose by invidious distinctions between classes of its citi-
zens.”).
Just as in those cases, Indiana’s decision to make the ap-
plicability of SORA dependent upon the date of a citizens’ ar-
rival to the State (before or after the relevant statutory provi-
sion took effect) implicates the right to travel by imposing
greater burdens on newly arrived residents. In this respect,
newer citizens of Indiana—including the plaintiffs—are not
accorded the same rights as more longstanding residents who
are otherwise similarly situated in terms of their criminal his-
tory. This discriminatory classification is a penalty in and of
itself and can only survive if it satisfies strict scrutiny. See
Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. Accordingly, the
State must demonstrate that its differential treatment of Indi-
ana citizens is necessary to promote a compelling governmen-
tal interest. Id. at 499, 119 S. Ct. at 1524 (citing Shapiro, 394 U.S.
at 634, 89 S. Ct. at 1331).
No. 19-2523 29
The discriminatory application of SORA to newer resi-
dents does not satisfy this demanding standard and, indeed,
the State’s counsel conceded at oral argument that it cannot
do so. Indiana surely has a strong interest in protecting its res-
idents from the potential predations of convicted sex offend-
ers. We may assume arguendo that SORA’s requirements fur-
ther that interest. But singling out only newer citizens with a
history of sex offenses to the exclusion of more longstanding
citizens with the same criminal history does not further that
interest: the distinction is not even rational. Cf. F.C.C. v. Beach
Commc’ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 2101 (1993)
(statutory classification that neither proceeds along suspect
lines nor infringes on fundamental constitutional rights is re-
viewed for rational basis); see Doe v. Penn. Bd. of Prob. & Parole,
513 F.3d 95, 108–112 (3d Cir. 2008) (subjecting an out-of-state
sex offender to community notification if he transfers his su-
pervision to Pennsylvania, but subjecting Pennsylvania of-
fender to community notification only if, following a hearing,
he is designated a “sexually violent predator,” lacks rational
basis and therefore violates equal protection); Hendricks v.
Jones ex rel. Okla. Dep’t of Corr., 349 P.3d 531, 536 (Okla. 2013)
(requiring Oklahoma resident convicted of sex offense in an-
other jurisdiction to register regardless of offense date, but re-
quiring Oklahoma resident convicted of comparable offense
in Oklahoma to register only if convicted after enactment of
Oklahoma’s SORA, was irrational and violates equal protec-
tion); A.C.L.U. of N.M. v. City of Albuquerque, 137 P.3d 1215,
1226–27 (N.M. Ct. App. 2006) (requiring sex offenders visiting
city to register depending on whether they committed their
offenses out of state or in state was irrational and violated
equal protection); see also Williams v. Vt., 472 U.S. 14, 23, 105
S. Ct. 2465, 2472 (1985) (restricting Vermont tax credit for
30 No. 19-2523
taxes paid to another state on automobile purchase in that
state solely to Vermont residents who lived in Vermont at
time of purchase violates equal protection: “residence at the
time of purchase is a wholly arbitrary basis on which to dis-
tinguish among present Vermont registrants …”). We are
pointed to no evidence indicating, nor does the State suggest,
that individuals who began to reside in Indiana after the other
jurisdiction provision of SORA was enacted are more likely to
re-offend than those who were already residents prior to that
time. Below, the State suggested that absent this arrangement,
an individual currently living in another state whose sex of-
fense predates SORA’s other jurisdiction provision but who is
subject to registration in that other state might have an incen-
tive to relocate to Indiana in order to evade registration. But
we have no reason to suspect that a move to Indiana would
be prompted by that incentive as opposed to the prospect of
a better job, a wish to be close to family, or Indiana’s lower
cost of living, and the State itself has abandoned this argu-
ment on appeal. In any case, the aim of deterring in-migration
to Indiana from other states is constitutionally impermissible.
See Saenz, 526 U.S. at 506, 119 S. Ct. at 1527–28 (citing Shapiro,
394 U.S. at 631, 89 S. Ct. at 1329).
We recognize, as the district court did, that the Indiana
legislature may have wished to avoid this discriminatory clas-
sification and instead apply SORA’s requirements to all sex
offenders residing in Indiana, regardless of the date of their
convictions, but that it was precluded from doing so by Wal-
lace’s holding that imposing a registration requirement on of-
fenders whose convictions pre-dated SORA’s regulatory re-
quirements violated Indiana’s ex post facto provision. So the
distinction may well be driven more by the Indiana Supreme
Court’s holding in Wallace than by any legislative judgment
No. 19-2523 31
as to the relative risks posed by newer and more longstanding
residents. But that merely makes plain the point that the clas-
sification deprives newer residents of a valuable right granted
by the Indiana Constitution—the right not to be penalized for
offenses of which they were convicted before the other juris-
diction provision of SORA was enacted.
Against all of this, the State as noted argues that the right
to travel as recognized in cases like Saenz is, in reality, not bur-
dened here, in that the applicability of SORA is tied not to the
duration of one’s residency in Indiana but rather to the SORA-
like requirements to which arriving citizens were subject in
their former states of residence. In other words, from the
State’s point of view, what triggers SORA is not the recency
of one’s arrival to Indiana but the registration requirement to
which the new resident was subject in his former state; and in
that respect, Indiana is simply choosing to leave in effect (or
reimpose) the very requirement that would have burdened
the offender had he never traveled across state lines at all.
And if the new arrival was not subject to a registration re-
quirement in his former state of residence, Indiana will not
impose one. The fact that the other jurisdiction requirement
can also apply to a lifelong Indiana resident who becomes
subject to a registration requirement in another state by virtue
of his work, study, or other activity in that state reinforces the
State’s point.
But for at least three reasons, the argument is unavailing.
First, notwithstanding Indiana’s insistence that its scheme is
not tied to the duration of one’s residency, for individuals like
the plaintiffs, the fact of one’s relocation from another
jurisdiction is necessarily and implicitly an element of the
other jurisdiction requirement, as one cannot become subject
32 No. 19-2523
to this provision of SORA without having moved to Indiana
from another state (where he was required to register); it is
this relocation from one state to another that brings the third
component of the right to travel into play. See A.W., 865 F.3d
at 1020 n.3 (noting that construing Nebraska’s SORA to
compel juvenile to register based on registration obligation
imposed by Michigan before he relocated to Nebraska would
“raise[ ] troubling implications under the third prong of the
right to travel”). That connection is most clearly illustrated by
application of the other jurisdiction requirement to Hope:
Hope, having committed his offense in Indiana pre-SORA,
would not have been required to register but for the fact that
he later relocated to Texas and was required to register there;
his subsequent decision to return to Indiana was what
triggered a duty to register under SORA’s other jurisdiction
requirement. Had he never left Indiana, he would not have
been required to register. Furthermore, the timing of a
person’s relocation to Indiana is a critically important factor
in the application of SORA. As we have said, for the Indiana
citizen who was living in Indiana before the other jurisdiction
requirement was added to SORA in 2006, there will be no
obligation to register unless he chooses to leave the State for
work or other activity which might trigger a registration
requirement elsewhere. But for the individual who moves to
Indiana after 2006, the other jurisdiction requirement will
come into play and trigger a duty to register so long as he was
subject to registration in his former state. In this respect, this
case is not unlike Hooper, 472 U.S. 612, 105 S. Ct. 2862, in which
a fixed-point residency requirement made one’s eligibility for
a veteran’s tax exemption turn upon whether he was a
resident of New Mexico as of a particular date. The Supreme
Court held unequivocally that the State could not
No. 19-2523 33
discriminate against its own citizens based on the timing of
their arrival in the State. Id. at 623, 105 S. Ct. at 2868.14 Here,
relocation to Indiana after 2006 will not always trigger a
requirement to register under SORA: If one was not required
to register in his former home state, the move by itself will not
require registration in Indiana. At the same time, relocation to
Indiana from a jurisdiction where one was required to register
is not the only way in which the other jurisdiction requirement
is triggered: work, study, or other activity engaged in by an
Indiana resident (however long-tenured) in another
jurisdiction that requires him to register there will trigger a
duty to register in Indiana. Even so, as to relocating citizens
who arrive in Indiana after 2006, the other jurisdiction
requirement operates to create two classes of otherwise
similarly-situated residents, one of which must register and
one of which need not. Cf. Saenz, 526 U.S. at 497 & n.8, 119 S.
Ct. at 1523 & n.8 (because California public benefit levels were
sixth highest in nation, its one-year cap on benefits for new
residents would not adversely affect all persons relocating to
California but only those arriving from one of 44 states or
14 By contrast, in Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), the City of
Chicago had banned the possession of handguns beginning on April 10,
1982, while grandfathering the rights of city residents who had registered
their handguns before that date. The plaintiff, who had moved to Chicago
from a suburb shortly after the handgun ordinance took effect and thus
could not lawfully possess a gun, argued that the ordinance disadvan-
taged new residents of the city and in that way interfered with his right to
travel. We held to the contrary, noting that the ordinance did not “single
out new residents of Chicago for discriminatory treatment.” Id. at 638. Ra-
ther, any Chicago resident, new or longstanding, who did not possess a
registered handgun before the ordinance took effect would be unable to
do so thereafter. Id. Any impact on the travel rights of new Chicago resi-
dents was “only indirect.” Id.34 No. 19-2523
District of Columbia that had lower benefit levels). Creating
such classes of citizens based on the fact and timing of their
relocation is directly at odds with the Fourteenth
Amendment’s Privileges or Immunities Clause. See id. at 504–
07, 119 S. Ct. at 1527–28.
Second, to the extent the State’s theory presumes that the
other jurisdiction requirement applies to plaintiffs Bash and
Snider, who relocated to Indiana before that requirement was
added to SORA in 2006, a few additional words are in order.
The State’s counsel has insisted that the other jurisdiction re-
quirement applies to them as it does to the other plaintiffs be-
cause Snider and Bash were required to register in their for-
mer states of residence (Ohio in Bash’s case, Michigan in
Snider’s). This is obviously consistent with the State’s broader
point that the timing of one’s arrival in Indiana does not mat-
ter. Our dissenting colleague shares this understanding. But
we cannot see any possible reason why the Indiana Supreme
Court’s Wallace decision permits this application given the
timing of Bash’s and Snider’s arrival in Indiana. When Bash
and Snider arrived in Indiana pre-2006, the other jurisdiction
requirement was not yet in effect and, of course, that is the
only provision on which the State now relies to justify their
obligation to register. So, at the time they relocated to Indiana,
they were in the same position as a lifelong resident of Indi-
ana with a similar criminal history: there was no provision re-
quiring them to register (at least not one the State is willing to
rely upon now, or one that the Indiana Supreme Court has not
found to be unconstitutional).15 Whatever registration
15 As a factual matter, we know that Snider was nonetheless required to
register when he moved to Indiana in 2003, presumably on the basis that
his offense was the substantial equivalent of one that SORA deems
No. 19-2523 35
requirements to which Bash and Snider had been subject else-
where came to an end upon their becoming citizens of Indi-
ana.16 Re-imposing a duty to register in 2006, when SORA was
amended to include the other jurisdiction requirement, would
not constitute a mere continuation of the registration obliga-
tions to which these men were subject in their former states,
which the Indiana Supreme Court has permitted; it would in-
stead constitute a resurrection of an expired obligation and,
to that extent, a material and detrimental change in their obli-
gations as Indiana citizens. Compare Wallace, 905 N.E.2d at
384 (“[SORA] violates the prohibition on ex post facto laws
contained in the Indiana Constitution because it imposes bur-
dens that have the effect of adding punishment beyond that
which could have been imposed when [Wallace’s] crime was
committed”), with Tyson v. State, 51 N.E.3d 88, 96 (Ind. 2016)
(“[U]nlike Wallace, where the offender had no obligation to
register anywhere before the Act was passed, Tyson was re-
quired to register in Texas years before our statutory defini-
tion was amended to include him …; the challenged
registrable. But that was before the Wallace decision in 2009 made clear
that this was not permissible under Indiana’s ex post facto clause. After
Wallace was decided, Indiana freed Snider from any registration obligation
until 2016, when, upon inquiry from Michigan (Snider’s former State of
residence), Indiana again required him to register—this time, apparently,
on the basis of the other jurisdiction requirement.
16 New York’s SORA has been interpreted to require an offender’s contin-
uing registration in that state notwithstanding his relocation to another
state. Doe v. O’Donnell, 924 N.Y.S.2d 684, 686–87 (App. Div. 2011). It is
likely an outlier in that regard, however. See Samantha R. Millar, Note,
Doe v. O’Donnell and New York’s Sex Offender Registration Act: The Problem
of Continued Registration under SORA After Leaving the State, 38 CARDOZO
L. REV. 337, 359–61 (2016) (contrasting New York’s law with those of Mich-
igan, California, and New Jersey in this respect).
36 No. 19-2523
amendments merely lengthened that requirement. We simply
cannot say that transferring the obligation upon moving is
any more punitive than lengthening it to potentially last a life-
time.”) (emphasis in original), State v. Zerbe, 50 N.E.3d 368,
371 (Ind. 2016) (“the significant responsibilities with respect
to Zerbe’s registration are merely maintained across state
lines, to be fulfilled where he currently lives and works”), and
Ammons v. State, 50 N.E.3d 143, 145 (Ind. 2016) (per curiam)
(“Because Ammons was already under an obligation to regis-
ter [in Iowa] and [SORA’s other jurisdiction provisions] do
not impose any additional punishment on him, we find no ex
post facto violation.”). Why the State believes it is lawful to
effect such a material change in their obligations years after
they became Indiana citizens is a puzzle, and one it never ex-
plains: If Indiana’s ex post facto clause would forbid the appli-
cation of the substantial equivalency requirement to any of
the plaintiffs, as the State has conceded it would, why would
it not also preclude the application of the other jurisdiction
requirement to Snider and Bash, who relocated to Indiana be-
fore there was any such requirement? The district court made
no findings as to how SORA’s other jurisdiction requirement
operates, in light of Wallace, vis-à-vis persons who arrived in
Indiana before the requirement’s enactment (so far as we can
discern, it was not asked to do so). But we can see no rationale
for allowing the other jurisdiction prong to be applied to per-
sons who arrived before the enactment of that provision and
who were, in the years between their arrival and the enact-
ment, free and clear of any lawful registration obligation. Cer-
tainly, no Indiana case cited by the State or the dissent con-
dones a revival, as opposed to a continuation across state
lines, of a duty to register. Ultimately, we need not reduce this
conclusion about Indiana law to a holding, as, at the end of
No. 19-2523 37
the day, our conclusion about the right to travel precludes the
State from imposing a registration requirement on any of
these plaintiffs. It is worth noting, however, that even without
our consideration of federal constitutional law, it seems that
under the Indiana Supreme Court’s holding in Wallace, nei-
ther Snider nor Bash (both of who arrived in Indiana prior to
the enactment of the other jurisdiction requirement) should
ever have been subject to a registration requirement in Indi-
ana.
Even if the State and the dissent are correct that, as a mat-
ter of state law, the other jurisdiction requirement is fully ret-
rospective and can properly apply to individuals like Bash
and Snider, there remains a dichotomy among Indiana resi-
dents based on the date of their arrival in Indiana. One who
was a resident of Indiana before SORA required registration
for his offense and remains so thereafter is not subject to a
duty to register, period (Wallace leaves no doubt in that regard
at all), whereas one who arrived in Indiana later may be sub-
ject to registration pursuant to the other jurisdiction require-
ment. In that respect, the timing of one’s relocation to Indiana
still matters.
Third, although the applicability of SORA as relevant here
depends on whether or not a new citizen was subject to com-
parable requirements elsewhere, the State’s theory that it is
merely recognizing and choosing to continue a burden im-
posed by another jurisdiction cannot somehow obviate the ef-
fect that its actions have on the right to travel. Indiana may
not be burdening newly-arrived sex offenders vis-à-vis the re-
quirements that their former states of residence imposed on
38 No. 19-2523
them, as our dissenting colleague emphasizes,17 but Indiana
certainly is treating them less favorably as compared with sex
offenders who lived in the State before SORA’s other jurisdic-
tion requirement was enacted; and the relative burden Indi-
ana imposes on new arrivals is necessarily one that penalizes
the exercise of one’s constitutional right to relocate to another
state. Indiana’s statutory scheme is no different in kind from
California’s effort to temporarily cap a new citizen’s welfare
benefits at the amount of assistance she received in her former
state of residence (assuming that amount was lower than
what California would otherwise provide). Nominally, that
cap did not penalize and therefore did not dis-incentivize an
indigent person’s decision to relocate to California, because
she would not receive less than what she had in her former
home state; in that sense, there was no direct burden imposed
on the exercise of one’s right to travel from state to state. 526
U.S. at 504, 119 S. Ct. at 1527. But that was “beside the point”
as far as the Supreme Court was concerned. Ibid.17 It bears noting that in at least some cases, SORA’s other jurisdiction re-
quirement increases the burden upon a newly arriving sex offender as
compared with what would have been required of him in his former home
State. Recall that Illinois required Rice to register only for a period of ten
years following his release from prison. But because Rice qualifies as a
“sexually violent predator” under SORA, Indiana requires him to register
for life (although he does have the ability to petition for removal of this
designation). But the Indiana Supreme Court has deemed such marginal
effects on an offender’s obligations to be insufficient to trigger the state’s
ex post facto clause. See Jensen v. State, 905 N.E.2d 384 (Ind. 2009); Lemmon
v. Harris, 949 N.E.2d 803 (Ind. 2011); but cf. Gonzalez v. State, 980 N.E.2d
312 (Ind. 2013) (increase of registration obligation from ten years to life
violates ex post facto clause where limited opportunity to file petition for
removal did not permit offender to argue he was rehabilitated and no
longer posed a threat to the public).
No. 19-2523 39
Were we concerned solely with actual deter-
rence to migration, we might be persuaded that
a partial withholding of benefits constitutes a
lesser incursion on the right to travel than an
outright denial of all benefits. See Dunn v. Blum-
stein, 405 U.S. 330, 339, 92 S. Ct. 995, 31 L.Ed.2d
274 (1972). But since the right to travel embraces
the citizen’s right to be treated equally in her
new State of residence, the discriminatory clas-
sification is itself a penalty.
Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. That is precisely
the problem here: As to relocating individuals, Indiana has
established a two-tiered system of regulating offenders that is
tied in the first instance to when the individual became a citi-
zen of Indiana. For constitutional purposes, the relevant com-
parison is not how Indiana treats an offender versus how his
former state of residence treated him, but rather how Indiana
distinguishes among its own citizens based on whether they
arrived pre- or post-enactment of SORA’s other jurisdiction
provision. Indiana grants the former the full protection of its
ex post facto clause but deprives newer arrivals of the same
protection. See Saenz, 526 U.S. at 502, 119 S. Ct. at 1526 (third
aspect of the right to travel encompasses “the right of the
newly arrived citizen to the same privileges and immunities
enjoyed by other citizens of the same State”); Soto-Lopez, 476
U.S. at 904, 106 S. Ct. at 2322 (“the right to migrate protects
residents of a State from being disadvantaged, or from being
treated differently, simply because of the timing of their mi-
gration, from other similarly situated residents”). And, unlike
the California scheme at issue in Saenz, the burden that one
incurs by arriving in Indiana after the enactment of SORA is
not temporary, insofar as the plaintiffs here are concerned,
40 No. 19-2523
but permanent. See Hooper, 472 U.S. at 623, 105 S. Ct. at 2869
(“the Constitution will not tolerate a state benefit program
that ‘creates fixed, permanent distinctions … between … clas-
ses of concededly bona fide residents, based on how long they
have been in the State”) (quoting Zobel, 457 U.S. at 59, 102
S. Ct. at 2312). Indeed, on what we might call the State’s
“lesser of two state citizenships” theory, Indiana would be
free to create a boundless array of classes among its citizens
tied to the greater regulatory burdens imposed by their for-
mer home states (theoretically subjecting them to differential
treatment on anything from tax rates to minimum drinking
ages). The Supreme Court’s right-to-travel jurisprudence
plainly forecloses such scenarios. See Saenz, 526 U.S. at 507,
119 S. Ct. at 1528; Zobel, 457 U.S. at 64, 102 S. Ct. at 2314–15.
To return to a key point of the dissent: No, the overlap be-
tween the set of offenders whom SORA burdens with a regis-
tration requirement and the set of offenders who relocate to
Indiana is not complete. Some number of relocating individ-
uals will not be affected by the other jurisdiction requirement
because their former domiciles did not require them to regis-
ter. And some number of offenders will be required to register
not because they are relocating from other states where they
registered but because they have commuted from Indiana for
work or study to other states that mandated their registration.
The latter group, as we have noted, has still engaged in inter-
state travel, but not the sort of travel for relocation to another
state that Saenz and the other residency cases address. Mem-
bers of that group may have their own constitutional claim,
but it is not one that is presented here. But the fact that relo-
cation from one state to another is not the exclusive means of
triggering the other jurisdiction requirement and does not in-
variably result in a registration obligation in Indiana does not
No. 19-2523 41
detract from the inescapable point that for the six plaintiffs
here, relocating to Indiana from other states has yielded them
a set of rights and obligations that is concretely different from,
and more burdensome than, the rights and obligations of of-
fenders who arrived in Indiana before they did.
Our dissenting colleague cites Connelly v. Steel Valley Sch.
Dist., 706 F.3d 209 (3d Cir. 2013), in an effort to demonstrate
that it is not the plaintiffs’ travel that explains their differen-
tial treatment by Indiana. But key distinctions between Con-
nelly and this case actually demonstrate the opposite.
In Connelly, a Pennsylvania school district gave less credit
to its teachers for prior out-of-state teaching experience than
it did for in-state experience in establishing starting salaries.
The plaintiff, who had lived and taught in Maryland before
relocating to Pennsylvania, argued that he was being treated
differently based on his former domicile in Maryland, in vio-
lation of his right to travel. In rejecting that claim, the court
emphasized that the school district was not treating its
teacher-citizens differently based on where they came from.
Rather, what mattered was where they gained their prior ex-
perience. As a result, a former Maryland citizen whose prior
teaching experience was in neighboring Pennsylvania (the
two states share a border along the Mason-Dixon line) would
receive full credit for his experience, whereas a lifelong Penn-
sylvania citizen who previously taught in Maryland would
receive only partial credit. 706 F.3d at 214–15. “[O]nly the
teacher’s lack of Pennsylvania teaching experience—not his
residency—would adversely affect his starting pay.” Id. at
215. Any burden this scheme imposed on interstate travel
was, at most, “incidental.” Id. The court went on to hold that
the school district had a rational basis for paying its teachers
42 No. 19-2523
differently based on the extent of their teaching experience in
Pennsylvania: Teachers with experience working at Pennsyl-
vania schools have a greater familiarity with the state’s edu-
cational policies, procedures, and regulations and are likely
to have a better grasp of what teaching methods are likely to
be successful in achieving the state’s educational goals. Id. at
216–17.
Our colleague analogizes the registration obligation that
an offender has borne in another state to the teaching experi-
ence that the plaintiff in Connelly acquired in another state:
both are historical facts, on their face unconnected to an indi-
vidual’s travel, that may legitimately inform a state’s judg-
ment as to how the individual should be treated as a newly-
arrived citizen.
The difference is that when other states required the
plaintiffs to register, they did so based on the very same
criminal history that Indiana itself would not treat as
sufficient to require registration. Individual states are, of
course, free to reach different conclusions about what offenses
require registration—that is a feature of our federalist system
of government. And just as states may compile their own lists
of registrable offenses, they may (and do) reach different
conclusions as to whether the ex post facto provisions in their
own constitutions permit the retrospective imposition of a
duty to register. Indiana has conceded that its own ex post facto
provision, as construed by Wallace, prohibits the application
of the Indiana SORA’s substantial equivalence requirement to
the plaintiffs: they were all convicted before their offenses
were identified as registrable offenses by the Indiana
Legislature. Had they been Indiana citizens at the time of
No. 19-2523 43
those offenses, and remained in Indiana thereafter, they could
not have been required to register.
So unlike the school district in Connelly, which relied on
the mise en scène of one’s prior experience and the perceived
qualitative differences between in-state and out-of-state
teaching experience, Indiana is not relying on something that
any of the plaintiffs did in another state that distinguishes him
from an otherwise similarly-situated Indiana sex offender—
e.g., commit another offense, violate the terms of his proba-
tion, or fail to comply with his registration and reporting ob-
ligations. No plaintiff did anything outside of Indiana that
would have triggered an obligation to register under SORA
had he done it in Indiana. Indiana is relying solely on another
state’s judgment that registration was required in that other
state, so long as the offender was present in that state. Upon
his relocation to Indiana, the State requires each plaintiff to
carry that obligation with him, notwithstanding the fact that
Indiana itself would not have imposed that obligation in the
first instance.
A simplified hypothetical helps to make clear why it is the
offender’s relocation to Indiana from another state that is the
real trigger for the mandate that he register in Indiana. Con-
sider two offenders, A and B, who are similar in all respects
but for the fact that A lives in Indiana and B lives in Illinois.
In 1993, both commit the same sex offense, are convicted in
their respective states, and commence six-year prison terms.
In 1994, both states enact laws requiring lifetime registration
for the sex offense that A and B committed; but the Indiana
legislature makes its registration obligation prospective only,
whereas Illinois makes the obligation fully retrospective.
Thus, when A is released from prison in 2000, he is not
44 No. 19-2523
obliged to register in Indiana, but B must register in Illinois.
In 2006, Indiana adopts a requirement obliging an Indiana
resident who has been required to register in another jurisdic-
tion to register in Indiana. In 2008, B moves to Indiana. Rely-
ing on the other jurisdiction provision, Indiana demands that
he register. Compare A and B, who are now both Indiana cit-
izens. There is no difference in their criminal histories: They
committed the same offense in the same year (and in all other
respects are similar) so the danger that they pose to Indiana
citizens is the same. But Indiana, in the exercise of its judg-
ment, has not deemed the 1993 offense to be registrable, so A
has never been required to register. Illinois required B to reg-
ister for life, but now that he has moved to Indiana, that obli-
gation is no longer operative. As a newly arrived citizen of
Indiana, what distinguishes B from A? The answer is plain: B
relocated from a state that required him to register. His travel
is the one and only cause of his duty to register in Indiana,
and in that regard, he is being treated differently from A, a
lifelong resident of Indiana.
The point is more clearly made if we assume that both A
and B were Indiana citizens from the beginning and commit-
ted the same sex offense in Indiana in 1993 and that B in 2008
relocated briefly to (and established residency in) Illinois,
which required him to register, before returning to Indiana
the following year. Indiana, relying on the other jurisdiction
provision, now requires B to register in Indiana as well. Has
B’s criminal history changed? No. Did he do anything that
materially changed the risk that he might pose to his fellow
Indiana citizens? No. All that occurred was his move to an-
other state that required him to register before he returned to
and re-established residency in Indiana.
No. 19-2523 45
The plaintiffs no doubt belong to a relatively small class:
They all committed their crimes before those offenses became
registrable in Indiana (twenty-five or more years ago) and be-
fore Indiana adopted the other jurisdiction requirement (four-
teen years ago). With the passage of time, this class will dis-
appear, and any individual who commits a sex offense will
have been on constructive notice that registration is an obli-
gation that he will have to shoulder.
But however small in number the plaintiffs may be, Indi-
ana has assigned them to a class of citizenship that is inferior
to that enjoyed by other, similarly situated Indianans, and for
the plaintiffs, it is their relocation from other states that has
resulted in that second-class status. Indiana, as a matter of its
own statutes and judicial precedents, would not have re-
quired the plaintiffs to register had they lived in Indiana prior
to 2006, when the other jurisdiction requirement was enacted.
Only their travel from states that did require them to register
has triggered this burden. The Supreme Court’s right-to-
travel jurisprudence instructs that this two-tiered model of
state citizenship is not permissible under the Fourteenth
Amendment’s Privileges or Immunities Clause. A sex of-
fender who has paid his debt to society has the right to relo-
cate to Indiana like any other individual and be treated on
equal terms with other similarly-situated citizens. These
plaintiffs have been denied that equitable treatment. Indiana
has, in effect, told the plaintiffs, “You are not from here. In-
stead of applying our rules to you, we will apply your former
state’s rules.” In this way, the plaintiffs remain outsiders in
Indiana’s regulatory framework.
Indiana nonetheless argues that because it is not denying
newer arrivals a public benefit, a tax exemption, or the right
46 No. 19-2523
to vote,18 the Supreme Court’s right-to-travel cases are inap-
plicable. It may be true as a factual matter that the Court’s du-
rational and fixed-point residency cases have not addressed
the right to travel beyond these sorts of factual contexts.19 But
to return to first principles, the right at issue here is the right
18 See, e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995 (1972) (state laws
requiring prospective voter to have been resident for one year in state and
three months in county penalize individuals who have migrated to state
in order to establish new residence during qualifying period, thereby in-
terfering with right to travel and violating equal protection).
19 It is worth noting, however, that the Court’s decision in Edwards v. Cal.,
314 U.S. 160, 62 S. Ct. 164 (1941) invalidated a California statute that made
it a criminal offense to bring a non-resident indigent person into the state.
The statute was born of fears triggered by the massive influx of migrants
from other states as a result of the Dust Bowl and the Great Depression
and the “problems of health, morals, and especially finance” attributed to
that influx. Id. at 173, 62 S. C.t at 167. The Court pointed out that among
the opportunities this exclusionary statute deprived indigent persons was
“the opportunity to exert political pressure upon the California legislature
in order to obtain a change in policy.” Id.at 174, 62 S. Ct. at 167. Because
the statute was aimed at excluding indigents from the state, it arguably
implicated all three components of the right to travel; and, indeed, the
Court’s majority concluded that the statute interfered with interstate com-
merce and as such was inconsistent with the Commerce Clause. Id. at 172–
77, 62 S. Ct. at 166–68. But the concurrences invoked the Fourteenth
Amendment’s Privileges or Immunities Clause, making clear that among
the rights implicated by the statute was a right of national citizenship that
precludes a state from creating different classes among its residents with
different rights. See id. at 181, 62 S. Ct. at 170 (Douglas, J., concurring)
(state’s restriction of free movement “would permit those who were stig-
matized by a State as indigents, paupers, or vagabonds to be relegated to
an inferior class of citizenship”); id. at 184, 62 S. Ct. at 172 (Jackson, J., con-
curring) (“We should say now, and in no uncertain terms, that a man’s
mere property status, without more, cannot be used by a state to test, qual-
ify, or limit his rights as a citizen of the United States.”).
No. 19-2523 47
of a newly arrived citizen of Indiana to the same privileges
and immunities enjoyed by other citizens of the state. See, e.g.,
Saenz, 526 U.S. at 502–05, 119 S. Ct. at 1526–27. Nothing in the
Supreme Court’s jurisprudence concerning this right is tied to
the nature of the particular benefit at issue; the right is one to
citizenship on the same terms as other residents of the state.
See ibid.; Soto Lopez, 476 U.S. at 904, 106 S. Ct. at 2322; Hooper,
472 U.S. at 623, 105 S. Ct. at 2868–69. SORA imposes a signifi-
cant and lasting burden on a class of citizens who are other-
wise similarly situated to those whose Indiana citizenship
pre-dates the statute’s other jurisdiction requirement. As we
have said many times now, those persons who were citizens
of Indiana and were convicted of sex offenses before SORA’s
other jurisdiction requirement was enacted enjoy the full pro-
tection of the State’s ex post facto clause as construed in Wal-
lace, and they are exempt from the various registration and
reporting requirements that SORA imposes on such offend-
ers. But those persons who were convicted of sex offenses be-
fore the other jurisdiction requirement was enacted but have
since relocated to Indiana are deemed subject to SORA’s reg-
istration and other requirements—provisions that Wallace
deemed punitive—so long as their former states imposed
comparable requirements on them. In no sense are these two
classes of Indiana citizens being treated equally: one is af-
forded a valuable, constitutionally mandated protection
against the after-the-fact imposition of what the Indiana Su-
preme Court has labeled penalties, and one is not.
Finally, Indiana posits that any understanding that a state
cannot classify its citizens differently depending on whether
they have engaged in interstate travel is inconsistent with the
many federal criminal laws that apply precisely on that basis.
This is a misguided argument. First, the sort of interstate
48 No. 19-2523
travel to which Indiana is referring implicates a different com-
ponent of the constitutional right to travel than the right,
upon relocating from one state to another, to be treated on
equal terms with other citizens in one’s new home state. The
latter component is the only one at issue here. Second, federal
criminal law does not create separate classes of citizens within
a state who enjoy lesser or greater rights depending upon
when they became citizens of that state. It simply employs the
jurisdictional “hook” of conduct within interstate commerce
to regulate, on equal terms, all who move or act across state
lines. This has nothing to do with the classes Indiana has es-
tablished within its own citizenry.
III.
The other jurisdiction requirement of Indiana’s SORA im-
poses a duty to register and its attendant burdens upon a re-
locating citizen that it would not impose upon a lifelong Indi-
ana resident. The Privileges or Immunities Clause of the Four-
teenth Amendment prohibits this differential treatment. We
affirm the district court’s judgment on this basis, without
reaching the separate question of whether application of the
other jurisdiction requirement also violates the ex post facto
clause of the U.S. Constitution.
AFFIRMED
No. 19-2523 49
ST. EVE, Circuit Judge, dissenting. I disagree with the ma-
jority’s conclusion that the Indiana Supreme Court’s interpre-
tation of the Indiana Constitution’s Ex Post Facto Clause as
applied to Indiana’s Sex Offender Registration Act (SORA)
implicates plaintiffs’ right to travel under the Privileges or Im-
munities Clause of the Fourteenth Amendment of the United
States Constitution. I write separately to explain my reason-
ing.
I.
A.
Addressing the plaintiffs’ federal claims requires a deep
dive into Indiana law and the reasons for Indiana’s complex
rules surrounding SORA. The majority starts off on the wrong
foot by misunderstanding those rules.
Like other states, Indiana requires persons convicted of
sex offenses to register as sex offenders. Ind. Code § 11-8-8-1to -23. Under SORA, a person must register if he (1) commit-
ted a registrable offense under Indiana law, (2) committed a
crime under the laws of another jurisdiction that is substan-
tially equivalent to Indiana’s registrable offenses, Ind. Code
§ 1-1-2-4(b)(3) (formerly Ind. Code § 11-8-8-5(a)(24)), or (3) is
required to register in any other jurisdiction, Ind. Code § 11-
8-8-5(b)(1).
As a statutory matter, SORA is fully retrospective and
does not depend on when someone was convicted of an of-
fense. And as a federal constitutional matter, this retrospec-
tive application is not inherently suspect under the Federal Ex
Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 90 (2003). The
Indiana Supreme Court, however, has interpreted its state
constitution’s Ex Post Facto Clause such that persons who
50 No. 19-2523
would be required to register as a statutory matter are not re-
quired to register as a constitutional matter. This began with
Wallace v. State, 905 N.E.2d 371 (Ind. 2009), in which the court,
applying its own version of the U.S. Supreme Court’s “intent-
effects” test, held that SORA had a punitive effect on those
who had been charged, convicted, and served their sentences
before SORA was enacted. Id. at 379, 384.
Even after Wallace, however, not all applications of SORA
to prior convictions offend the Indiana Constitution. On the
same day as Wallace, the Indiana Supreme Court decided Jen-
sen v. State, 905 N.E.2d 384 (Ind. 2009). Jensen was convicted
of a sex offense in 2000, and at the time, SORA required him
to register as a sex offender for ten years. Id. at 389. Before
Jensen’s ten years were up, the Indiana General Assembly
amended SORA in 2006 to mandate that he now register for
life. He argued that this extension violated the state’s Ex Post
Facto Clause, but the Indiana Supreme Court disagreed. Un-
like Wallace, who had no obligations before SORA was
amended to cover him, the “‘broad and sweeping’ disclosure
requirements were in place and applied to Jensen at the time
of his guilty plea in January 2000. Nothing in that regard was
changed by the 2006 amendments.” Id. at 394. The marginal
effect of increasing only the length of an existing registration
obligation did not rise to the level of “punishment” such that
it violated the Indiana constitution. Id. at 391–93.
After Jensen, the Indiana Supreme Court continued to fo-
cus on the marginal effects of SORA and its amendments. In
State v. Pollard, 908 N.E.2d 1145 (Ind. 2009), it said that a new
residency restriction was “adding punishment.” Id. at 1154.
The court’s decision in Lemmon v. Harris, 949 N.E.2d 803 (Ind.
2011), though, concluded that an amendment that reclassified
No. 19-2523 51
someone from a sex offender to a “sexually violent predator”
was not punitive because, just like for Jensen, it amounted
only to an extension of pre-existing obligations and was not
“any more punitive.” Id. at 810–11, 813 n.19.
Up to this point, however, each case had asked whether
the Indiana SORA had a marginal punitive effective com-
pared to those requirements already imposed by Indiana law.
In 2016, the Indiana Supreme Court encountered three cases
challenging SORA’s effect on those who had been required to
register under another state’s laws.
Applying the same marginal-effects test, the Indiana Su-
preme Court concluded that the effect of maintaining an out-
of-state registration in Indiana was not punitive, regardless of
when or where the registrable crime had been committed.
First, in Tyson v. State, 51 N.E.3d 88 (Ind. 2016), the court up-
held registration for a man obligated to register under Texas
law at the time of his conviction, before Indiana’s SORA cov-
ered his offense. Id. at 92. The court concluded that the mar-
ginal effect of “maintaining a registry requirement across
state lines does not amount to a punitive burden” in violation
of the state constitution. Id. at 90.
The court extended this reasoning in State v. Zerbe, 50
N.E.3d 368 (Ind. 2016). Zerbe was convicted in Michigan in
1992, before either Michigan or Indiana had enacted sex of-
fender registration laws. Id. at 369. Zerbe was nevertheless re-
quired to register under Michigan law upon release from
prison because Michigan did not share Indiana’s stricter Ex
Post Facto Clause. Id. at 371. This twist changed nothing; the
marginal effect of maintaining that registration was not puni-
tive. Id. at 370–71. As the court clarified, “it is not Zerbe’s crime
that triggers his obligation to register as a sex offender in
52 No. 19-2523
Indiana; rather, it is his Michigan registry requirement that does
so.” Id. at 370 (emphasis in original). The trilogy finished with
Ammons v. State, 50 N.E.3d 143 (Ind. 2016) (per curiam). Am-
mons had been convicted in Indiana before SORA, but he
moved to Iowa, which obligated him to register for his Indi-
ana crime. Id. When he moved back to Indiana, the Indiana
Supreme Court confirmed that, just like for Tyson and Zerbe,
maintaining Ammons’s Iowa registration for his Indiana
crime did not amount to “additional punishment.” Id. at 145.
In sum, the question under SORA and Indiana’s Ex Post
Facto Clause is always whether SORA’s marginal effect is pu-
nitive. Maintaining, extending, or modifying a duty under
SORA generally is not punitive, but imposing a new duty is.
It is immaterial to the analysis whether Indiana law is main-
taining, extending, or modifying its own duties or those of an-
other state. Likewise, it is immaterial where or when the con-
viction occurred, as long as some state imposed a lawful reg-
istration obligation on the offender and SORA does not so sig-
nificantly alter that obligation to result in added punishment.
B.
Plaintiffs argue that the Indiana Supreme Court’s
marginal-effects rule violates their right to travel under the
Federal Constitution. While the majority aptly summarizes
the development of the law regarding this right, it overreads
the right to travel as articulated by the Supreme Court.
The U.S. Supreme Court has identified three components
to the right to travel: (1) “the right of a citizen of one State to
enter and to leave another State,” (2) “the right to be treated
as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State,” and (3) “for those
No. 19-2523 53
travelers who elect to become permanent residents, the right
to be treated like the other citizens of that State.” Saenz v. Roe,
526 U.S. 489, 500 (1999). Everyone agrees that only the third
facet of the right is at issue here. That aspect is derived from
the Privileges or Immunities Clause of the Fourteenth
Amendment. U.S. Const. amend. XIV, § 2; Saenz, 526 U.S. at502–03.
In Saenz, the plaintiffs challenged the constitutionality of a
California statute that limited new residents to only the wel-
fare benefits to which they would have been entitled in their
prior state of residence. 526 U.S. at 492. The Supreme Court
held that this rule violated the third aspect of the right to
travel. The Court was not concerned with whether California
was trying to penalize or deter travel or even if it was suc-
ceeding. Id. at 504. Instead, the Court found that “the right to
travel embraces the citizen’s right to be treated equally in her
new State of residence” and that “the discriminatory classifi-
cation is itself a penalty.” Id. at 505. In addressing this discrim-
ination, the Court applied strict scrutiny, which California’s
law failed. Id. at 504–05. The duration of a citizen’s residency
and the location of his or her prior residence had no relevance
to the citizen’s welfare needs, and the bare desire to reduce
the state’s budget was not compelling enough to justify a
complex layered hierarchy among bona fide California resi-
dents. Id. at 507.
Saenz broadly stands for the proposition that durational
residency requirements violate the right to travel unless they
pass strict scrutiny. The full scope of that right, however, is
uncertain. There have been no Supreme Court decisions inter-
preting the right to travel after Saenz. Decisions before it held
other durational residency requirements unlawful but did so
54 No. 19-2523
under the Equal Protection Clause. See Mem'l Hosp. v. Mari-
copa Cty., 415 U.S. 250, 251, 261–62 (1974) (striking down a
state law requiring an indigent person to be a county resident
for one year to receive free medical care); Dunn v. Blumstein,
405 U.S. 330, 334–35, 360 (1972) (holding unlawful a state law
permitting only residents who have lived in state for one year
to vote); Shapiro v. Thompson, 394 U.S. 618, 622 (1969) (invali-
dating statutes that deny welfare assistance to individuals
during their first year of residency). But see Sosna v. Iowa, 419
U.S. 393, 396, 409 (1975) (upholding an Iowa law requiring
resident to live in state for one year to obtain a divorce de-
cree).
I agree with the majority, however, that the right to travel
should be understood to go beyond prohibiting only
durational residency requirements that place a waiting period
on benefits. It seems unlikely that a permanent distinction
between bona fide residents would be any more lawful than
a temporary one. The Supreme Court’s cases illustrate this
point, though a majority of the Court has yet to endorse it. In
Zobel v. Williams, 457 U.S. 55 (1982), Alaska implemented a
natural resource dividend statute that created “fixed,
permanent distinctions between an ever-increasing number
of perpetual classes of concededly bona fide residents, based
on how long they have been in the State.” Id. at 59. The
Supreme Court held that this scheme was improper even
under rational-basis review. Id. at 64. The Court did the same
thing with a New Mexico tax exemption for Vietnam veterans
who were state residents before a specific date. Hooper v.
Bernalillo Cty. Assessor, 472 U.S. 612, 624 (1985).
Although the Supreme Court did not directly hold that the
laws at issue in Zobel and Hooper implicated the right to travel,
No. 19-2523 55
a plurality of the Court later concluded that the right was re-
ally driving those decisions. See Att’y Gen. of N.Y. v. Soto-
Lopez, 476 U.S. 898, 907–08 (1986) (plurality opinion). In the
plurality’s view, “a permanent deprivation of a significant
benefit, based only on the fact of nonresidence at a past point
in time, clearly operates to penalize appellees for exercising
their right to migrate” and thus mandated strict scrutiny. Id.
at 909.
All of the Supreme Court’s decisions in this area have
something in common. Each involved a rule that explicitly
discriminated between old and new residents. As the Court
noted, the challenged classifications in Saenz were “defined
entirely by (a) the period of residency in California and (b) the
location of the prior residences of the [plaintiffs].” 526 U.S. at
505 (emphasis added). Likewise, in Soto-Lopez, the plurality
emphasized that New York was depriving the plaintiffs “of a
significant benefit, based only on the fact of nonresidence at a
past point in time.” 476 U.S. at 909 (emphasis added). In each
case, there was a direct causal connection between a person’s
status as a new resident and the deprivation of a benefit. In
legal parlance, each was a “disparate treatment” claim.
II.
The question in this case is whether Indiana’s registration
requirement, as applied through the marginal-effects test, vi-
olates the right to travel identified by the Supreme Court. In
other words, does the marginal-effects test treat bona fide res-
idents differently based on when they became residents.
I part ways with the majority because I conclude it does
not. Neither SORA nor Indiana’s Ex Post Facto Clause dis-
criminates based on residency. Neither even mentions
56 No. 19-2523
residency. As a statutory matter, SORA obligates all people—
both old and new residents—to register based on prior con-
victions. Indiana’s Ex Post Facto Clause then relieves a subset
of those who must register from that statutory obligation.
Who receives the clause’s benefits, though, does not depend
on when one became an Indiana resident but on whether one
is subject to an existing registration requirement. That re-
quirement can come from Indiana or from another state. The
twist in this case is that for those like the plaintiffs, convicted
before Indiana’s SORA covered their crimes, such a registra-
tion obligation must come from elsewhere. For the majority,
that fact is determinative.
The majority offers two theories to support its view that
Indiana violated the plaintiffs’ right to travel. The primary
argument is that the other-jurisdiction provision in SORA
“creates two classes of Indiana citizens”: those who were
Indiana residents prior to the provision’s enactment on July 1,
2006, and those who moved to Indiana after that date. Because
the provision applies only to newer Indiana residents who
moved to the state after July 1, 2006, the argument goes, the
provision impermissibly classifies Indiana residents based on
the length of their residency in the state and generally treats
newer residents worse than long-term Indianans. I disagree
because the underlying premise to this conclusion is
incorrect—the other-jurisdiction provision does apply
retroactively to offenders who became Indiana residents prior
to July 1, 2006.
The majority’s conclusion to the contrary is rooted in its
narrow reading of Indiana caselaw applying the state’s Ex
Post Facto Clause to SORA. It suggests that any gap in time
between the placement of an initial registration requirement
No. 19-2523 57
and the later imposition of a related requirement transforms
Indiana’s subsequent requirement into a “material change” in
obligations rather than a “mere continuation” of them, failing
the marginal-effects test. Under this logic, offenders who
relocated to Indiana prior to July 1, 2006, and who were not
required to register in Indiana until 2006 would be exempt
from a later registration requirement under Wallace. That
interpretation misapprehends Wallace’s more recent progeny:
Tyson, Zerbe, and Ammons. While those cases dealt with
plaintiffs who moved to Indiana after it enacted SORA’s
other-jurisdiction provision in 2006, the Indiana Supreme
Court did not base its decisions on that factor. Rather, it held,
across three distinct factual patterns, that SORA’s retroactive
application does not violate the state’s Ex Post Facto Clause
as long as the offender is “already required to register in
another jurisdiction.” Zerbe, 50 N.E.3d at 369–70. That
condition is satisfied here. Because SORA’s other-jurisdiction
provision may apply equally to Indianans who became
residents prior to July 1, 2006, as well as those who move to
the state after that date, the majority’s argument that SORA
classifies Indiana residents by date of residency is
unpersuasive.1
The majority’s second, more implicit argument is that as a
practical effect of Indiana’s SORA, out-of-state residency is a
determinative factor in the plaintiffs’ case and that of other
offenders like them. Undoubtedly having a registration obli-
gation in another state is correlated with changing one’s state
1 I likewise depart from the majority’s suggestion that Bash and Snider
cannot be required to register under Indiana law; that conclusion depends
upon an interpretation of Indiana law that bars retroactive application of
SORA’s other-jurisdiction provision, which I reject.
58 No. 19-2523
of residence, as we can see not only from the six plaintiffs here
but also from Tyson, Zerbe, and Ammons, all of whom had to
register after moving to Indiana. But the correlation is imper-
fect. Some lifelong Indiana residents who committed crimes
before SORA might well have a registration obligation based
on their employment or schooling in an adjacent state. See,
e.g., 730 ILCS 150/3(a-5) (requiring out-of-state students or
employees to register in Illinois). On the flipside, some new
Indiana residents who committed their crimes elsewhere
might have no registration requirement in their prior state be-
cause of state-law protection against retroactivity. See, e.g.,
Doe v. State, 189 P.3d 999, 1004 (Alaska 2008) (holding that the
state’s Ex Post Facto Clause prohibits retroactive application
of SORA). While prior, out-of-state residency is often an ele-
ment in the application of SORA’s registration requirements,
residency is not the trigger for the other-jurisdiction provi-
sion.
The majority acknowledges this but suggests that the fact
that some new residents are not adversely affected by SORA’s
requirements does not immunize the law from unconstitu-
tionality. For support, the majority points to Saenz. There, the
Supreme Court struck down the law, even though some of the
new residents experienced more favorable welfare benefits
than long-term Californians. Saenz, 526 U.S. at 497. What mat-
tered, the Court concluded, was that California explicitly
based its provision of benefits to new Californians—favorable
or not—on the duration of their residence in California. Id. at
497, 505. The implication of the majority’s citation to Saenz is
that SORA likewise cannot be saved by the fact that some new
Indianans may not be subject to the registration requirements
while some lifelong Indianans may be covered. That is a false
equivalence. California employed an express, durational-
No. 19-2523 59
residency classification; it applied to all persons who had re-
sided in California for less than a year and happened to pro-
duce a favorable effect for some of them. In contrast, SORA
by its terms does not base its application on any length of res-
idency in Indiana; new Indiana residents who arrive in Indi-
ana without any prior registration requirements do not expe-
rience a favorable effect under SORA—the law simply does
not apply to them at all. In sum, Saenz involved a discrimina-
tory test that some new residents passed, while SORA in-
volves a non-discriminatory test that some new residents fail.
Prior, out-of-state residency represents neither causation
nor perfect correlation for the application of SORA’s
registration requirements, and there is no evidence that
anyone in Indiana intended to deter travel through the other-
jurisdiction provision. The result? A disparate-treatment
claim under the right to travel necessarily must fail. All that
is left is a disparate-impact claim—an argument that, as a
practical matter, more new residents than old residents must
register under the law. The Supreme Court, though, has never
extended the right to travel this far. Cf. Washington v. Davis,
426 U.S. 229, 239 (1976) (holding that only disparate treatment
or discriminatory purpose violates the Equal Protection
Clause). Nor, to my knowledge, has any other court of
appeals before today.
The Third Circuit has actively refused to take this step,
and I would follow its lead. In Connelly v. Steel Valley Sch. Dist.,
706 F.3d 209 (3d Cir. 2013), a Pennsylvania school district set
its teachers’ salaries based on years of teaching experience but
gave full credit for years teaching in the district, partial credit
for years teaching in Pennsylvania, and reduced credit for
years teaching elsewhere. Id. at 211–12. A teacher who taught
60 No. 19-2523
nine years in Maryland and received one year of credit argued
that the school district’s salary scheme violated his right to
travel. Id. at 213. The Third Circuit recognized that the district
was not discriminating based on duration of residency but on
location of teaching experience. Id. at 214. A lifelong Pennsyl-
vania resident who taught across the border in Maryland
would have received the same treatment as a similar Mary-
land resident who moved to Pennsylvania. Id. at 214–15. In
the Third Circuit’s view, “[t]he right to travel simply is not
implicated when there is no discrimination based on the du-
ration of one's residency." Id. at 215. Because SORA likewise
does not discriminate based on the duration of one’s resi-
dency but rather on the existence of a registration obligation,
I would conclude that it does not implicate the right to travel
or merit strict scrutiny.
There are good reasons for limiting the right to travel to
actual discrimination, as we recognized more than a decade
before Saenz. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), we
considered a right-to-travel objection to an ordinance banning
unregistered handguns in the City of Chicago. Because one
needed to be a Chicago resident to register a handgun for law-
ful possession—and Chicago stopped new registrations after
1982—Sklar argued that the ordinance violated the right to
travel. Id. We recognized then that this could not be how the
right to travel functions, for applying strict scrutiny “based
merely on a showing that newer residents would not benefit”
would make huge swaths of the law vulnerable. Id. at 639.
Like in Sklar, the plaintiffs here want to apply strict scrutiny
on the showing that they, as new residents, are “merely one
group among several who do not benefit” from the protec-
tions of Indiana’s Ex Post Facto Clause. Id. at 639. We refused
the invitation in 1984, and I would refuse it again now.
No. 19-2523 61
The Privileges or Immunities Clause of the Fourteenth
Amendment simply does not prohibit a state from inci-
dentally burdening travel to or from the state. It guarantees
only “the right of the newly arrived citizen to the same privi-
leges and immunities enjoyed by other citizens of the same
State.” Saenz, 526 U.S. at 502. Because both old and new Indi-
ana residents are treated equally under SORA and Indiana’s
Ex Post Facto Clause, I respectfully dissent from the major-
ity’s holding that either law violates the right to travel.
III.
Because Indiana’s law does not implicate a fundamental
right, it is subject to rational basis review. To survive this level
of scrutiny, the Supreme Court has required that there be a
rational basis for the classification. See FCC v. Beach Commc’ns
Inc., 508 U.S. 307, 313 (1993) (stating that a statutory classifi-
cation will survive rational-basis scrutiny “if there is any rea-
sonably conceivable state of facts that could provide a rational
basis for the classification”). Because the district court did not
undertake a rational-basis review, I would remand this case
to the district court to determine whether this level of scrutiny
has been met.