Cornelio v. Connecticut

20-4106-cv
Cornelio v. Connecticut
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 20-4106-cv
JAMES P. CORNELIO,
Plaintiff-Appellant,
v.
STATE OF CONNECTICUT, STRAVROS MELLEKAS, IN HIS OFFICIAL
CAPACITY AS COMMANDER OF THE CONNECTICUT DEPARTMENT OF
EMERGENCY SERVICES AND PUBLIC PROTECTION (DESPP), DET.
DEBBIE JENEY, JOHN DOE, IN HIS INDIVIDUAL CAPACITY, JANE DOE, IN
HER INDIVIDUAL CAPACITY,
Defendants-Appellees. *
On Appeal from the United States District Court
for the District of Connecticut
ARGUED: OCTOBER 7, 2021
DECIDED: APRIL 26, 2022
* The Clerk of Court is directed to amend the caption as set forth above.
Before: JACOBS and MENASHI, Circuit Judges, and CRONAN,
District Judge. †
Plaintiff-Appellant James P. Cornelio filed a pro se federal
action in the U.S. District Court for the District of Connecticut against
the State of Connecticut, Colonel Stavros Mellekas in his official
capacity as commander of the Connecticut Department of Emergency
Services and Public Protection, and retired Detective Debbie Jeney in
her individual capacity, alleging three constitutional claims under 42
U.S.C. § 1983. Cornelio alleged that those provisions of Connecticut’s
sex offender registration statute that required him to disclose his
email address and other internet communication identifiers and
periodically to verify his residence violated the First Amendment and
the Ex Post Facto Clause, respectively. Cornelio further alleged that
Detective Jeney engaged in malicious prosecution in violation of the
Fourth Amendment by seeking an arrest warrant for Cornelio’s
alleged failure to disclose one of his email addresses.
The district court dismissed all of Cornelio’s claims. With
respect to the First Amendment claim, the district court held that the
disclosure requirement burdens protected speech but nonetheless
survives intermediate scrutiny. In so holding, the district court
concluded that the disclosure requirement advances important
governmental interests and does not burden substantially more
speech than necessary to further that interest. The district court
dismissed Cornelio’s Ex Post Facto Clause claim because the quarterly
verification requirement was already in place when Cornelio engaged
in his underlying crimes in 2003. Lastly, the district court dismissed
† Judge John P. Cronan of the U.S. District Court for the Southern District
of New York, sitting by designation.
2
Cornelio’s malicious prosecution claim, holding that Detective Jeney
was entitled to qualified immunity. In so holding, the district
concluded that despite Cornelio’s repeated past use of an
unregistered email address to communicate with the Sex Offender
Registry Unit, Detective Jeney had arguable probable cause to seek
the arrest warrant.
We conclude that, at this preliminary stage, Cornelio has stated
a plausible First Amendment claim. We therefore reverse the district
court’s dismissal of that claim and remand for further proceedings.
We affirm the district court’s judgment with respect to Cornelio’s two
other claims.
JAMES P. CORNELIO, pro se, New Preston, CT, for Plaintiff-
Appellant.
ROBERT S. DEARINGTON, Assistant Attorney General
(Clare Kindall, Solicitor General, on the brief), for William
Tong, Attorney General of the State of Connecticut,
Hartford, CT, for Defendants-Appellees.
MENASHI, Circuit Judge:
The State of Connecticut, like other states, has a comprehensive
sex offender registration law. See Conn. Gen. Stat. § 54-250 et seq. The
Department of Emergency Services and Public Protection (“DESPP”)
and the Sex Offender Registry Unit (“SORU”), a unit of the State
Police within the DESPP, administer the law. Two provisions of the
sex offender registration law are at issue in this case. The first is a
disclosure requirement pursuant to which a registered sex offender
3
must notify the DESPP when he creates a new email address, instant
messenger address, or other internet communication identifier. The
second is a residence verification provision, which requires that a sex
offender verify his residential address every 90 days or on a quarterly
basis.
Plaintiff-Appellant James P. Cornelio, a convicted sex offender,
filed a pro se federal action in the U.S. District Court for the District
of Connecticut against the State of Connecticut, Colonel Stavros
Mellekas in his official capacity as commander of the DESPP, and
retired Detective Debbie Jeney—a former detective in the SORU—in
her individual capacity. Cornelio asserted three claims under 42
U.S.C. § 1983. First, he alleged that the disclosure requirement
violates the Speech Clause of the First Amendment, applicable to the
states under the Due Process Clause of the Fourteenth Amendment.
Second, Cornelio alleged that the residence verification provision
violates the Ex Post Facto Clause as applied to him. Third, he alleged
that Jeney violated the Fourth Amendment by initiating a malicious
prosecution against him when she sought an arrest warrant for
Cornelio’s alleged failure to disclose one of his email addresses to the
SORU.
The district court (Meyer, J.) granted the defendants’ motion to
dismiss all three claims. The district court dismissed Cornelio’s First
Amendment claim for failure to state a claim, holding that although
the disclosure requirement burdens protected speech it survives
intermediate scrutiny. In so holding, the district court concluded that
the disclosure requirement advances important governmental
interests and does not burden substantially more speech than
necessary to further those interests. The district court dismissed
Cornelio’s Ex Post Facto Clause claim because the residence
4
verification provision was already in place when Cornelio engaged in
the underlying crimes in 2003. Finally, the district court dismissed
Cornelio’s malicious prosecution claim, holding that Jeney is entitled
to qualified immunity. Despite Cornelio’s past use of an unregistered
email address to communicate with the SORU, the district court
explained, Jeney had arguable probable cause to seek the arrest
warrant for Cornelio’s failure to register that email address.
We reverse the district court’s dismissal of Cornelio’s First
Amendment claim. Assuming intermediate scrutiny is the
appropriate standard of review, we conclude that the disclosure
requirement plausibly fails intermediate scrutiny and therefore
Cornelio has stated a First Amendment claim. We affirm the district
court’s dismissal of Cornelio’s Ex Post Facto Clause claim because the
residence verification provision was enacted before Cornelio
committed his crimes. We also affirm the district court’s dismissal of
Cornelio’s malicious prosecution claim because Jeney is entitled to
qualified immunity. The case is remanded for further proceedings
consistent with this opinion.
BACKGROUND
I
The requirements of Connecticut’s sex offender registration
law apply to all persons convicted of criminal offenses against a
minor, violent and nonviolent sexual offenses, and felonies
committed for a sexual purpose. See Conn. Gen. Stat. §§ 54-251 to -252.
Cornelio was convicted in 2005 in New York State for one count
of a criminal sexual act in the second degree, in violation of N.Y. Penal
Law § 130.45(1), and for ten counts of possessing a sexual
5
performance by a child, in violation of N.Y. Penal Law § 263.16. The
underlying conduct occurred in 2003. Because he is now a resident of
Connecticut, Cornelio is subject to Connecticut’s sex offender
registration law, see Conn. Gen. Stat. § 54-253, and he challenges two
provisions of that law.
First, the disclosure requirement mandates that a registered sex
offender must provide all of his internet communication identifiers to
the DESPP. As part of his initial registration, a registrant must
disclose to the Commissioner of the DESPP his “electronic mail
address, instant message address or other similar Internet
communication identifier” on “such forms and in such locations as
the commissioner shall direct.” Id. § 54-251(a). 1 The law also imposes
a continuing obligation to “notify” the Commissioner of the DESPP
“in writing” if the registrant “establishes or changes an electronic mail
address, instant message address or other similar Internet
communication identifier.” Conn. Gen. Stat. § 54-253(b). If a registrant
fails to comply with the disclosure requirement he is “guilty of a class
D felony” once “such failure continues for five business days.” Id.§ 54-253(e).
Second, the residence verification provision requires that a
registrant verify his residential address every 90 days or on a
quarterly basis. Id. § 54-257(c). Under the provision, the DESPP “shall
verify the address of each registrant by mailing a nonforwardable
verification form” to the registrant’s last reported address, and the
registrant must return the form by mail within ten days. Id. Failing to
1 Pursuant to Conn. Gen. Stat. § 54-253(a), this requirement applies to
offenders such as Cornelio who reside in Connecticut but were convicted
of a sex offense in a jurisdiction outside of Connecticut.
6
return the verification form results in the issuance of an arrest
warrant. Id. The residence verification provision was adopted as part
of the original enactment of the sex offender registration law in 1998.
See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65), § 8(b) (West).
II
This case arises from Cornelio’s arrest for his alleged failure to
notify the DESPP of his email address. The arrest was executed
pursuant to an arrest warrant that issued based on an affidavit
submitted by Jeney, who at that time was a detective in the SORU.
After recounting Cornelio’s sex offense convictions in New York, the
affidavit stated that when Cornelio initially registered in March 2008,
he was advised of the requirement to notify the SORU “in writing of
any electronic mail address, instant messaging address or similar
communication identifier that is established, changed, or used” by
him. App’x 22. The affidavit further stated that when Cornelio first
registered, he provided a single email address.
The affidavit then described how Cornelio emailed the SORU
in 2010 and multiple times in 2015 using an email address—ending
with “aol.com”—that was different than the one he originally
reported. The AOL email address was allegedly not included on the
verification form that was sent to Cornelio, and Cornelio’s sex
offender registry file noted that he “has not reported” the AOL email
address. Id. The affidavit concluded that Cornelio’s failure to provide
a formal notification to the SORU identifying the AOL email address
violated the disclosure requirement under § 54-253.
Based on the affidavit, a state court judge issued the arrest
warrant. The judge concluded that the affidavit provided probable
cause to believe that Cornelio committed an offense that would justify
7
issuance of an arrest warrant. Cornelio was arrested in April 2018.
Shortly after the arrest, the case was dismissed.
III
On August 9, 2018, Cornelio filed a pro se action in the U.S.
District Court for the District of Connecticut challenging, under 42
U.S.C. § 1983, the disclosure requirement as a violation of the First
Amendment, the residence verification provision as a violation of the
Ex Post Facto Clause, and Jeney’s conduct as a malicious prosecution
in violation of the Fourth Amendment. Cornelio sought injunctive
relief against the State of Connecticut and Mellekas to prevent the
further application to him of the disclosure requirement and the
residence verification provision. He sought damages from Jeney
based on the malicious prosecution claim. The defendants moved to
dismiss Cornelio’s complaint for lack of standing under Federal Rule
of Civil Procedure 12(b)(1) and for failure to state a claim under Rule
12(b)(6).
The district court granted the motion to dismiss under Rule
12(b)(6). Cornelio v. Connecticut, No. 19-CV-01240, 2020 WL 7043268,
at *1 (D. Conn. Nov. 30, 2020), as amended (Dec. 9, 2020). The district
court dismissed Cornelio’s First Amendment claim, holding that
although the disclosure requirement burdens protected speech it
nonetheless survives intermediate scrutiny. Id. at *10. The district
court concluded that the disclosure requirement advances important
governmental interests unrelated to the suppression of speech and
does not burden substantially more speech than necessary to further
those interests. Id. The district court dismissed Cornelio’s Ex Post
Facto Clause claim because the residence verification provision was
already in place when Cornelio committed his crimes in 2003. Id. at
8
*6. The district court also dismissed Cornelio’s malicious prosecution
claim, holding that Jeney was entitled to qualified immunity. Id. at *5.
Even though Cornelio had used the AOL email address to
communicate with the SORU, the district court concluded that Jeney
had arguable probable cause to seek the arrest warrant for the failure
formally to report it. Id.STANDARD OF REVIEW
“We review a district court’s grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff’s favor.” Henry v. County of
Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks
omitted). A court’s function on a Rule 12(b)(6) motion is “not to weigh
the evidence that might be presented at a trial but merely to determine
whether the complaint itself is legally sufficient.” Festa v. Loc. 3 Int’l
Brotherhood of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990).
Consequently, a complaint will survive a motion to dismiss under
Rule 12(b)(6) if it alleges facts that, taken as true, establish plausible
grounds to sustain a plaintiff’s claim for relief. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018).
DISCUSSION
I
We begin with whether Cornelio has stated a First Amendment
claim. To answer that question, we proceed in three steps. First, we
conclude that the disclosure requirement burdens protected speech
and therefore must survive heightened scrutiny. Assuming that
intermediate scrutiny is the appropriate standard, we then explain
what that scrutiny requires. Finally, based on the allegations of the
complaint, we conclude that the disclosure requirement plausibly
9
fails intermediate scrutiny. Accordingly, the district court erred in
dismissing Cornelio’s First Amendment claim under Rule 12(b)(6).
A
In evaluating Cornelio’s First Amendment claim, we must
determine whether the disclosure requirement burdens protected
speech and therefore triggers heightened scrutiny. We conclude it
does.
First, the disclosure requirement burdens a registrant’s “ability
and willingness to speak on the Internet.” Doe v. Harris, 772 F.3d 563,
572 (9th Cir. 2014). The disclosure requirement obliges a registrant to
notify the DESPP each time he creates a new “electronic mail address,
instant message address or other similar Internet communication
identifier.” Conn. Gen. Stat. § 54-253(b). Thus, whenever a registrant
seeks to use a new identifier to communicate online, he must report
that identifier in a timely fashion. In addition to the administrative
burden that § 54-253(b) imposes on online communications, any error
in compliance can result in a class D felony punishable by up to five
years in prison and a $5,000 fine. Id. §§ 54-253(e), 53a-35a(8), 53a-41.
In this way, the disclosure requirement plausibly deters registrants
from engaging in protected online speech. See Zieper v. Metzinger, 474
F.3d 60, 65 (2d Cir. 2007) (“It is well-established that First Amendment
rights may be violated by the chilling effect of governmental action
that falls short of a direct prohibition against speech.”) (internal
quotation marks omitted).
Second, the disclosure requirement applies specifically to
speakers engaged in online communication. The disclosure
requirement targets “conduct with a significant expressive
element”—the use of communications identifiers—and therefore
10
“has the inevitable effect of singling out those engaged in expressive
activity.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07 (1986). The
disclosure requirement imposes its burdens precisely when a
registrant decides to engage in online speech using a communication
identifier. That implicates the First Amendment, even if it is possible
to distinguish between the identifier and the speech itself. See
Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue, 460 U.S. 575,
592 (1983) (“[E]ven regulations aimed at proper governmental
concerns can restrict unduly the exercise of rights protected by the
First Amendment.”). When a law imposes “special obligations” or
“special burdens” on those engaged in speech, “some measure of
heightened First Amendment scrutiny is demanded.” Turner Broad.
Sys., Inc. v. FCC (Turner I), 512 U.S. 622, 641 (1994).
Third, the disclosure requirement prevents a registrant from
speaking anonymously. A speaker’s decision “to remain anonymous
… is an aspect of the freedom of speech protected by the First
Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342
(1995). “Under our Constitution,” anonymous speech is “an
honorable tradition of advocacy and of dissent.” Id. at 357. It
“exemplifies the purpose behind the Bill of Rights, and of the First
Amendment in particular: to protect unpopular individuals from
retaliation—and their ideas from suppression.” Id.; see also Talley v.
California, 362 U.S. 60, 64 (1960) (“Anonymous pamphlets, leaflets,
brochures and even books have played an important role in the
progress of mankind.”). The First Amendment protects this interest
in anonymous speech as much on the internet as in other fora.
“Although the Internet is the latest platform for anonymous speech,
online speech stands on the same footing as other speech—there is ‘no
basis for qualifying the level of First Amendment scrutiny that should
11
be applied’ to online speech.” In re Anonymous Online Speakers, 661
F.3d 1168, 1173 (9th Cir. 2011) (quoting Reno v. ACLU, 521 U.S. 844,
870 (1997)). The disclosure requirement does not avoid First
Amendment scrutiny because the identifiers are disclosed to the
government rather than to the general public. Cf. Ams. for Prosperity
Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021) (“Our cases have said that
disclosure requirements can chill association even if there is no
disclosure to the general public.”) (internal quotation marks and
alterations omitted). 2 It is “offensive … to the values protected by the
First Amendment” that “a citizen must first inform the government
of her desire to speak.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v.
Village of Stratton, 536 U.S. 150, 165-66 (2002).
The Supreme Court has subjected disclosure requirements to
heightened scrutiny when such requirements might deter First
Amendment protected activity. See Ams. for Prosperity, 141 S. Ct. at
2388 (“[I]dentification and fear of reprisal might deter perfectly
peaceful discussions of public matters of importance.”) (quoting
Talley, 362 U.S. at 65). “The risk of a chilling effect” on association or
speech “is enough, ‘because First Amendment freedoms need
breathing space to survive.’” Id. at 2389 (alteration omitted) (quoting
NAACP v. Button, 371 U.S. 415, 433 (1963)). Because the disclosure
requirement of § 54-253(b) risks chilling online speech, anonymous
and otherwise, it is subject to heightened scrutiny under the First
Amendment.
2 Moreover, the statute appears to allow disclosure beyond government
officials. See infra section I.D.2.
12
B
The district court determined that the disclosure requirement
“is not subject to strict scrutiny but instead to intermediate scrutiny”
because the burden on speech “is content-neutral and not
impermissibly speaker-based.” Cornelio, 2020 WL 7043268, at *8; see
Turner I, 512 U.S. at 662 (“[T]he intermediate level of scrutiny [is]
applicable to content-neutral restrictions that impose an incidental
burden on speech.”). We need not decide in this appeal whether strict
or intermediate scrutiny properly applies. Cornelio does not contest
the district court’s application of intermediate scrutiny and, because
he states a plausible claim even under intermediate scrutiny, the level
of scrutiny would not alter our decision. See McCutcheon v. FEC, 572
U.S. 185, 199 (2014) (plurality opinion) (explaining that because a
statute “fail[s] even under the [less demanding] test,” the Court “need
not parse the differences between the two standards in this case”);
Packingham v. North Carolina, 137 S. Ct. 1730, 1739 (2017) (Alito, J.,
concurring in the judgment) (“Like the Court, I find it unnecessary to
resolve this dispute because the law in question cannot satisfy the
standard applicable to a content-neutral regulation of the place where
speech may occur.”). We proceed on the assumption that
intermediate scrutiny is the appropriate standard.
C
The burden of demonstrating that the disclosure requirement
satisfies intermediate scrutiny falls on the government. Edenfield v.
Fane, 507 U.S. 761, 770 (1993) (“It is well established that the party
seeking to uphold a restriction on … speech carries the burden of
justifying it.”) (internal quotation marks and alteration omitted). To
carry that burden, the government must show that the challenged law
13
“(1) ‘advances important governmental interests unrelated to the
suppression of free speech’ and (2) ‘does not burden substantially
more speech than necessary to further those interests.’” Time Warner
Cable Inc. v. FCC, 729 F.3d 137, 160 (2d Cir. 2013) (quoting Turner
Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 189 (1997)).
To establish that the law advances important governmental
interests, the government “must do more than simply posit the
existence of the disease sought to be cured. It must demonstrate that
the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and material
way.” Turner I, 512 U.S. at 664 (internal quotation marks and citation
omitted); see also City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S.
488, 496 (1986) (“This Court ‘may not simply assume that the
ordinance will always advance the asserted state interests sufficiently
to justify its abridgment of expressive activity.’”) (quoting Members of
City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n.22 (1984)).
When “trenching on first amendment interests, even incidentally, the
government must be able to adduce either empirical support or at
least sound reasoning on behalf of its measures.” Turner I, 512 U.S. at
666 (quoting Century Commc’ns Corp. v. FCC, 835 F.2d 292, 304 (D.C.
Cir. 1987)). Therefore, the government cannot rely on “speculation or
conjecture.” Edenfield, 507 U.S. at 770.
To establish that the law does not burden substantially more
speech than necessary, the government must demonstrate that the
law is “narrowly tailored” to serve the relevant interest. Ward v. Rock
Against Racism, 491 U.S. 781, 796 (1989); see also Bd. of Trs. v. Fox, 492
U.S. 469, 480 (1989) (“[T]he State … must affirmatively establish the
reasonable fit we require.”). Intermediate scrutiny does not demand
that the law follow the least restrictive means possible. See Ward, 491
14
U.S. at 798. But “the government must demonstrate that alternative
measures that burden substantially less speech would fail to achieve
the government’s interests, not simply that the chosen route is easier.”
McCullen v. Coakley, 573 U.S. 464, 495 (2014).
To satisfy intermediate scrutiny, the government must identify
evidence—or, at least, provide “sound reasoning” that “draw[s]
reasonable inferences based on substantial evidence”—that these two
requirements are met. Turner I, 512 U.S. at 666; see also McCullen, 573
U.S. at 495; IMS Health, Inc. v. Sorrell, 630 F.3d 263, 279 (2d Cir. 2010)
(“The burden is on the government to show that it ‘carefully
calculated’ costs and benefits of burdening speech.”) (quoting Greater
New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 188 (1999)), aff’d,
564 U.S. 552. 3 For that reason, “the norm is to wait until the summary
judgment stage of the litigation to address the ultimate question of
whether the ordinance should stand.” Graff v. City of Chicago, 9 F.3d
1309, 1322 (7th Cir. 1993); see also FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 221 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 45 (1986); Taxpayers for Vincent, 466 U.S. at 793; Young v. Am. Mini
Theatres, Inc., 427 U.S. 50, 55 (1976).
The dismissal of a claim challenging a law that abridges
protected speech “will rarely, if ever, be appropriate at the pleading
stage. Instead, factual development will likely be indispensable to the
assessment of whether [such a law] is constitutionally permissible.”
Bruni v. City of Pittsburgh, 824 F.3d 353, 357 (3d Cir. 2016); see also
Preferred Commc’ns, 476 U.S. at 495 (observing that it was not
3 Challengers also may introduce evidence showing that the requirements
are not met. See, e.g., City of Los Angeles v. Alameda Books, 535 U.S. 425, 438-
39 (2002).
15
“desirable to express any more detailed views on the proper
resolution of the First Amendment question … without a fuller
development of the disputed issues in the case”); Council of
Greenburgh Civic Ass’ns v. U.S. Postal Serv., 586 F.2d 935, 936-37 (2d
Cir. 1978) (“Careful balancing of the need for the statute against the
statute’s constriction of first amendment rights is called for. Full
development of the facts is essential for the court to strike this
balance.”) (citations omitted). 4 This is not to say that resolving a First
Amendment challenge will never be appropriate on a motion to
dismiss. But we conclude it was not appropriate here.
D
As noted, to survive intermediate scrutiny, the government
must show that the challenged law advances important governmental
interests and is narrowly tailored to those interests. The government
has not made that showing at this stage. Because the disclosure
requirement plausibly fails intermediate scrutiny, Cornelio has stated
a claim for violation of the First Amendment.
4 Some district courts considering claims such as Cornelio’s challenging
state sex offender registration requirements have reached the same
conclusion and declined to dismiss the claims in the absence of a developed
record. See, e.g., Doe v. Haslam, No. 16-CV-02862, 2017 WL 5187117, at *18
(M.D. Tenn. Nov. 9, 2017) (“At this stage, the Court can only speculate as to
the real-world effect of the Act on internet use, as well as the efficacy of
alternative requirements in furthering the government’s significant
interests.”); Doe v. Lee, No. 21-CV-28, 2021 WL 1907813, at *17 (M.D. Tenn.
May 12, 2021); Doe v. Gwyn, No. 17-CV-504, 2018 WL 1957788, at *10 (E.D.
Tenn. Apr. 25, 2018).
16
1
The government argues that the disclosure requirement
advances important governmental interests in deterring registrants
from using the internet (1) to “recruit, groom, entice, or otherwise
engage in communications with potential or actual sex abuse victims”
and (2) to “engage in the distribution or exchange of prohibited sexual
images.” Appellees’ Br. 33. Assuming that these interests in
deterrence are important and legitimate as well as genuine, 5 nothing
in the record demonstrates that the disclosure requirement advances
these interests in a “direct and material way,” Turner I, 512 U.S. at 664,
or provides more than “ineffective or remote support” for these
objectives, Edenfield, 507 U.S. at 770.
With no evidence demonstrating that the disclosure
requirement materially provides deterrence, the government relies on
two speculative propositions. First, a registered sex offender is less
likely to engage in sex-based crimes on the internet if he knows that
law enforcement possesses his email address and other internet
communication identifiers. Second, the disclosure requirement
provides law enforcement with a database that can be used to
determine the identity of someone engaged in online sex offenses. The
government, however, has not substantiated the deterrent effect and
5 The government’s asserted interests must be “genuine and not merely
post-hoc rationalizations.” Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 265 (2d
Cir. 2014); see Watchtower, 536 U.S. at 170 (Breyer, J., concurring) (noting that
an asserted interest in “crime prevention” was “not a strong one” because,
“[f]or one thing, there is no indication that the legislative body that passed
the ordinance considered this justification”). On remand, the district court
should inquire into the actual purpose of the law.
17
has not indicated whether the database has ever even been used. 6
Perhaps the government’s speculation may turn out to be justified,
but at this stage we cannot say that the government “has drawn
reasonable inferences based on substantial evidence,” Turner I, 512
U.S. at 666, and “accepting speculation in place of record evidence[]
does not amount to intermediate scrutiny,” United States v. Perez, 6
F.4th 448, 460 (2d Cir. 2021) (Menashi, J., concurring in the judgment).
A developed record may undermine the government’s
assertions. For example, in reviewing Michigan’s sex offender
registration law, the Sixth Circuit observed that “evidence in the
record” supported “a finding that offense-based public registration
has, at best, no impact on recidivism.” Does #1-5 v. Snyder, 834 F.3d
696, 704 (6th Cir. 2016); see Doe v. Prosecutor, 705 F.3d 694, 701 (7th Cir.
2013) (questioning whether, once sex offenders “are willing to break
the existing anti-solicitation law,” a law prohibiting the use of social
networking would “provide any more deterrence”). 7 The
government also may not be able to show that the database of internet
identifiers has actually assisted law enforcement efforts to arrest
6 See Oral Argument Audio Recording at 9:51 (government’s counsel
acknowledging that the record does not demonstrate that the disclosure
requirement has a deterrent effect).
7 Courts have made similar observations when considering other
registration requirements. See Watchtower, 536 U.S. at 170 (Breyer, J.,
concurring) (suggesting it is “intuitively implausible to think that [a
registration] ordinance serves any governmental interest in preventing …
crimes”); Serv. Emps. Int’l Union, Loc. 3 v. Municipality of Mt. Lebanon, 446
F.3d 419, 428 (3d Cir. 2006) (“[I]f [perpetrators] are not deterred by the
substantial criminal penalties which exist for burglary and violent crime, it
is not reasonable to expect that they will alter their behavior because of a
$300 fine for failing to register.”).
18
online predators. There would be a “dramatic mismatch” between the
asserted interest and “the disclosure regime that [the government]
has implemented in service of that end” if “there was not a single,
concrete instance” in which the database “did anything to advance
the [government’s] investigative, regulatory or enforcement efforts.”
Ams. for Prosperity, 141 S. Ct. at 2386 (internal quotation marks
omitted).
The government may be able to identify some empirical basis
for believing that the disclosure requirement materially advances an
important governmental interest. At this stage, however, Cornelio has
stated a plausible claim.
2
The government contends that the disclosure requirement does
not burden substantially more speech than necessary to further its
deterrence interests. But, even assuming that the disclosure
requirement materially advances those interests, the disclosure
requirement plausibly imposes an extra burden that unnecessarily
chills protected speech.
The government cannot normally justify a speech restriction by
reference to its interest in deterring crime. “The normal method of
deterring unlawful conduct is to impose an appropriate punishment
on the person who engages in it” rather than by regulating speech.
Bartnicki v. Vopper, 532 U.S. 514, 529 (2001); see Kingsley Int'l Pictures
Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free
men, the deterrents ordinarily to be applied to prevent crime are
education and punishment for violations of the law, not abridgment
of the rights of free speech.”) (quoting Whitney v. California, 274 U.S.
357, 378 (1927) (Brandeis, J., concurring)); see also Packingham, 137
19
S. Ct. at 1737 (majority opinion) (explaining that “narrowly tailored
laws that prohibit a sex offender from engaging in conduct that often
presages a sexual crime, like contacting a minor or using a website to
gather information about a minor … must be the State’s first resort to
ward off the serious harm that sexual crimes inflict”). To show that
the disclosure requirement is narrowly tailored, the government must
explain why criminal sanctions that do not implicate the First
Amendment would not provide adequate deterrence. Cf. Safelite, 764
F.3d at 266 (explaining that intermediate scrutiny is not satisfied
when an “alternative proposal[] … would have served the same
governmental interests, but would have been less burdensome on [the
plaintiff’s] speech rights”). It has not done so. 8
Even if the government had, Cornelio argues, the breadth of the
disclosure requirement provides another reason to doubt that it is
narrowly tailored. Registered sex offenders must disclose their
“electronic mail address, instant message address or other similar
Internet communication identifier.” Conn. Gen. Stat. § 54-253(b).
Cornelio argues that the catch-all phrase “Internet communication
identifier” broadens the disclosure requirement to internet platforms
with “any information input,” such as “Pacer and bank accounts.”
Appellant’s Br. 16. In response, the government provides a narrower
construction: the phrase “Internet communication identifier” limits
8 At oral argument, counsel for the government said that the laws
criminalizing illicit online conduct “should serve as deterrent, but clearly
there are individuals out there who, despite the criminal laws being in
place, are still recruiting and grooming individuals online, so it’s important
for the government to have this additional deterrent.” Oral Argument
Audio Recording at 9:19. That sidesteps the question of whether sanctions
that do not implicate speech could provide adequate deterrence.
20
the disclosure requirement to platforms that can be used to
communicate with others online. Appellees’ Br. 36-37. In other words,
the disclosure requirement applies to internet platforms “that …
allow back-and-forth comments between users.” Packingham, 137
S. Ct. at 1741 (Alito, J., concurring in the judgment).
At the motion to dismiss stage, we cannot say that Cornelio
does not plausibly allege that the disclosure requirement is
overbroad. Many platforms that allow communications between
users do not reasonably present a vehicle by which a sex offender can
communicate with minors or exchange prohibited sexual materials.9
“Broad prophylactic rules in the area of free expression are suspect.
Precision of regulation must be the touchstone in an area so closely
touching our most precious freedoms.” Edenfield, 507 U.S. at 777(quoting Button, 371 U.S. at 438). Perhaps the statute may be
construed more narrowly than the government suggests on appeal.
But we “need not decide the precise scope of the statute” to conclude
9 See White v. Baker, 696 F. Supp. 2d 1289, 1310 (N.D. Ga. 2010) (“In the
Court’s experience, these communications are those that occur privately in
direct email transmissions, usually using a pseudonym, and in instant
messages. They generally do not occur in communications that are posted
publicly on sites dedicated to discussion of public, political, and social
issues.”); see also Packingham, 137 S. Ct. at 1741 (Alito, J., concurring in the
judgment) (“The fatal problem for [a law] is that its wide sweep precludes
access to a large number of websites that are most unlikely to facilitate the
commission of a sex crime against a child.”); Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 122 n.* (1991) (“A
regulation is not narrowly tailored—even under the more lenient tailoring
standards applied in Ward and Renton—where … a substantial portion of
the burden on speech does not serve to advance the State’s content-neutral
goals.”) (internal quotation marks and alteration omitted).
21
that Cornelio states a claim. Packingham, 137 S. Ct. at 1737 (majority
opinion).
The disclosure requirement also plausibly appears to be
overbroad because it applies to all persons subject to the sex offender
registration law, including registrants who have never engaged in the
sort of illicit online activity that the government seeks to deter. See
Conn. Gen. Stat. §§ 54-251 to -252. If the disclosure requirement
applies to a broad class beyond those who are likely to engage in the
conduct the government seeks to deter, it would be “significantly
overinclusive” rather than narrowly tailored. Simon & Schuster, 502
U.S. at 121. The government has not explained why the disclosure
requirement cannot be more narrowly targeted. 10 As other courts
have noted, “[a] regulatory scheme designed to further the state’s
legitimate interest in protecting children from communication
enticing them into illegal sexual activity should consider how and
where on the internet such communication occurs.” White, 696
F. Supp. 2d at 1309. To show narrow tailoring, the government must
demonstrate that a less burdensome alternative—requiring
disclosure only for those online platforms that facilitate solicitation or
the exchange of illicit material, for example, or only for those persons
likely to engage in such conduct—would not advance the asserted
governmental interests.
The government argues that the disclosure requirement is
narrowly tailored because, under the registration statute, the DESPP
10 The government acknowledges that it lacks information about the
proportion of registrants who have engaged in internet-related conduct and
therefore might be likely to engage in such conduct again. See Oral
Argument Audio Recording at 15:38.
22
may share a registrant’s internet communication identifiers only with
“law enforcement officials” and only for the “purpose of investigating
potential crimes.” Appellees’ Br. 35. As a result, a registrant can
“participate in anonymous speech online” as long as he does not
engage in unlawful activity that could “engender a law enforcement
investigation.” Id. This argument does not answer the narrow
tailoring inquiry, which focuses on “the extent to which the burdens
are unnecessary.” Ams. for Prosperity, 141 S. Ct. at 2385. It helps the
government’s case if the disclosure requirement does not compound
the burden on speech by releasing a registrant’s identifiers to the
public. But the government must still justify the burden that exists.
“There is no de minimis exception for a speech restriction that lacks
sufficient tailoring or justification.” Lorillard Tobacco Co. v. Reilly, 533
U.S. 525, 567 (2001).
To the extent the government argues that a required disclosure
to the government rather than to the public will necessarily survive
intermediate scrutiny, it is mistaken. A disclosure requirement may
violate the First Amendment “even if there is no disclosure to the
general public.” Ams. for Prosperity, 141 S. Ct. at 2388 (alterations
omitted) (quoting Shelton v. Tucker, 364 U.S. 479, 486 (1960)).
“[A]ssurances of confidentiality may reduce the burden of
disclosure” but “do not eliminate it.” Id.Even putting that aside, moreover, the government’s insistence
that disclosure is limited to law enforcement personnel does not
appear to be consistent with the statutory text. The statute
contemplates sharing the identifiers with third parties when it
authorizes the DESPP to “adopt regulations … to specify the
circumstances under which and the persons to whom such identifiers
may be released including, but not limited to, providers of electronic
23
communication service or remote computing service … and operators
of Internet web sites.” Conn. Gen. Stat. § 54-258(a)(5). A separate
provision that addresses “the identity of any victim of a crime
committed by a registrant” expressly limits disclosure to
“government agencies.” Id. § 54-258(a)(3). The disclosure requirement
does not contain such a limitation for internet identifiers.
The text also provides reason to doubt that the identifiers may
be released only for “investigating potential crimes.” Appellees’ Br.
35. The statute allows disclosure not only for “law enforcement” but
also for “security purposes.” Conn. Gen. Stat. § 54-258(a)(5). This
language could encompass not only the investigation of crimes that
have occurred but also the prevention of conduct deemed to be
unsafe. See, e.g., White, 696 F. Supp. 2d at 1310 (recognizing that a
similar phrase could mean the “investigation of suspected or
identified criminal conduct,” “the development of investigative
leads,” or “any purpose determined appropriate by law enforcement
personnel to prevent criminal conduct”). For this reason, the statutory
phrase “law enforcement and security purposes” may not be “readily
susceptible” to a limiting construction that would confine its
application to the investigation of past crimes. Reno, 521 U.S. at 884. 11
11 As a result, we think that Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010),
is inapposite to this case. In Shurtleff, the Tenth Circuit upheld Utah’s sex
offender registration law against a First Amendment challenge. Id. at 1223-
26. The Utah law required sex offenders to register their “internet
identifiers” with the state. Id. This information was not to be “made
available” on the registration website, but it could be “share[d] … to assist
in investigating kidnapping and sex-related crimes.” Utah Code § 77-27-
21.5(2) (West 2010) (repealed 2012). The Tenth Circuit held that the
“broader statutory context, as well as the limited law-enforcement purposes
for which internet identifiers may be ‘shared’” meant that the statute was
24
In sum, the disclosure requirement plausibly fails intermediate
scrutiny because it may not materially advance the asserted interest
in deterrence and that interest may be achieved through a more
narrowly tailored alternative.
3
The district court purported to apply intermediate scrutiny in
this case, but its analysis more closely resembled rational basis
review. The government moved to dismiss Cornelio’s First
Amendment claim for lack of standing under Rule 12(b)(1) on the
ground that Cornelio failed to allege a concrete injury. The
government did not attempt to defend the disclosure requirement
under intermediate scrutiny, and therefore the government did not
assert that the disclosure requirement advances any governmental
interest or that it was narrowly tailored to that interest. Rather, the
district court supplied the reasons for why it thought the disclosure
requirement survived intermediate scrutiny. But “[u]nlike rational-
basis review,” intermediate scrutiny does not permit a court to
“supplant the precise interests put forward by the State with other
suppositions.” Edenfield, 507 U.S. at 768. It is the government’s burden
“readily susceptible of a much narrower construction” than advanced by
the plaintiff. Shurtleff, 628 F.3d at 1224. The court read the statute “as
permitting sharing only among law-enforcement agencies … and only for
the recited law-enforcement purposes.” Id. at 1225. The court thought the
language “to assist in investigating kidnapping and sex-related crimes”
was in turn also “readily susceptible” to a narrowing construction, “only
allowing state actors to look beyond the anonymity surrounding a
username in the course of an investigation after a new crime had been
committed.” Id. The Connecticut statute is materially different. Facially, the
statute does not permit sharing “only among law-enforcement agencies” or
only once a crime has been committed.
25
to demonstrate that the challenged law furthers important
governmental interests and is narrowly tailored. If the government
fails to make that showing, it cannot prevail. The district court cannot
supply a justification that the government fails to provide. See
Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1314 (11th Cir. 2017) (en
banc) (“Under heightened scrutiny …, a court may not come up with
hypothetical interests and rationales (or discover new evidence) that
might support legislation that restricts speech.”).
The district court’s approach conflicts with the mandate that
intermediate scrutiny must remain “sufficiently skeptical and
probing” of the government’s arguments “to provide the rigorous
protection that constitutional rights deserve.” Ramos v. Town of
Vernon, 353 F.3d 171, 181 (2d Cir. 2003). Once it is apparent that
heightened scrutiny applies, the government cannot be excused from
the obligation to identify evidence that supports its restriction of a
constitutional right. Turner I, 512 U.S. at 666; Craig v. Boren, 429 U.S.
190, 204 (1976) (requiring a “showing” that the government’s policy
“represents a legitimate, accurate” route to its end); see also United
States v. Virginia, 518 U.S. 515, 541-44 (1996) (evaluating such a
showing). When a court “simply accepts the government’s
assertions,” let alone when it excuses the government from even
making assertions, “the court undermines the protections of the
[First] Amendment … by watering down the intermediate scrutiny
the court purportedly applies to the challenged restriction into a form
of rational basis review.” Perez, 6 F.4th at 457-59 (Menashi, J.,
concurring in the judgment).
26
II
We next address Cornelio’s claim that the residence verification
provision, as applied to him, violates the Ex Post Facto Clause.
Article I of the Constitution provides that “[n]o State shall … pass any
… ex post facto Law.” U.S. Const., art. I, § 10, cl. 1. The Ex Post Facto
Clause forbids, among other things, “legislative action that
retroactively … makes more burdensome the punishment for a crime,
after its commission.” Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997)
(quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)); see also Calder v.
Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (noting that the Ex Post Facto
Clause prohibits “[e]very law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime,
when committed”). A statute violates the Ex Post Facto Clause if it
“increase[s] the punishment for a crime after it is committed.” Doe v.
Cuomo, 755 F.3d 105, 110 (2d Cir. 2014).
Cornelio argues that the residence verification provision is
punitive. Yet his claim fails for the simple reason that the residence
verification provision was in place well before Cornelio committed
his crimes in 2003. See 1998 Conn. Legis. Serv. P.A. 98-111 (S.S.B. 65)
§ 8(b) (West). Because the residence verification provision has not
been applied to Cornelio retroactively, the Ex Post Facto Clause is not
implicated. See Weaver v. Graham, 450 U.S. 24, 30-31 (1981). We
therefore affirm the district court’s dismissal of Cornelio’s Ex Post
Facto Clause claim. 12
12 The district court also held that, to the extent Cornelio challenged the
disclosure requirement under the Ex Post Facto Clause, that claim fails too.
Cornelio abandoned any such claim on appeal, so we do not reach the issue
of whether the district court properly dismissed the claim. See United States
27
III
Finally, we address Cornelio’s claim for malicious prosecution
under the Fourth Amendment against Jeney. The district court
concluded that this claim failed because Jeney is entitled to qualified
immunity. We agree.
To state a § 1983 malicious prosecution claim a plaintiff “must
show a violation of his rights under the Fourth Amendment and must
establish the elements of a malicious prosecution claim under state
law.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir.
2010) (citations omitted); see also Manuel v. City of Joliet, 137 S. Ct. 911,
920 (2017) (“In defining the contours and prerequisites of a § 1983
claim, … courts are to look first to the common law of torts.”). Under
Connecticut law, a malicious prosecution claim requires proof that
“(1) the defendant initiated or procured the institution of criminal
proceedings against the plaintiff; (2) the criminal proceedings have
terminated in favor of the plaintiff; (3) the defendant acted without
probable cause; and (4) the defendant acted with malice, primarily for
a purpose other than that of bringing an offender to justice.” Spak v.
Phillips, 857 F.3d 458, 461 n.1 (2d Cir. 2017) (quoting Brooks v. Sweeney,
9 A.3d 347, 357 (Conn. 2010)).
The existence of probable cause is a complete defense to a
malicious prosecution claim. See Frost v. N.Y.C. Police Dep’t, 980 F.3d
231, 242-43 (2d Cir. 2020). But even when probable cause is lacking, a
police officer is entitled to qualified immunity if “(1) her conduct does
not violate clearly established statutory or constitutional rights of
v. Quiroz, 22 F.3d 489, 490 (2d Cir. 1994) (“It is well established that an
argument not raised on appeal is deemed abandoned.”) (internal quotation
marks omitted).
28
which a reasonable person would have known, or (2) it was
objectively reasonable for her to believe that her actions were lawful
at the time of the challenged act.” Betts v. Shearman, 751 F.3d 78, 82-83
(2d Cir. 2014) (internal quotation marks and alterations omitted). In
the context of a malicious prosecution claim, an officer’s decision to
initiate a prosecution “is objectively reasonable … if officers of
reasonable competence could disagree on whether the probable cause
test was met.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)
(internal quotation marks omitted); see also Dufort v. City of New York,
874 F.3d 338, 354 (2d Cir. 2017); Figueroa v. Mazza, 825 F.3d 89, 100 (2d
Cir. 2016).
In evaluating qualified immunity, “the issuance of a warrant by
a neutral magistrate, which depends on a finding of probable cause,
creates a presumption that it was objectively reasonable for the
officer[] to believe that there was probable cause.” Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991). This presumption may be
overcome by showing that the warrant was based on misleading
information or an affidavit with omissions that were necessary to a
finding of probable cause. Id. at 870-71.
Jeney sought an arrest warrant based on Cornelio’s alleged
violation of the disclosure requirement. We have already concluded
that Cornelio has stated a plausible claim that the disclosure
requirement violates the First Amendment and that further
proceedings on that claim are warranted. Even if Cornelio were
ultimately to succeed on that claim, it would not affect Jeney’s
entitlement to qualified immunity. Whether the disclosure
requirement violates the First Amendment was not “clearly
established” at the time Jeney initiated the prosecution against
29
Cornelio—as it must have been to foreclose a defense of qualified
immunity. Travella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010).
We agree with the district court that Jeney had arguable
probable cause to initiate the prosecution. Cornelio’s arrest was made
pursuant to a warrant issued by a state court judge, who found that
the circumstances described in Jeney’s affidavit provided probable
cause to believe that Cornelio had violated the disclosure
requirement. Because a “neutral magistrate” found that there was
probable cause, it was presumptively “objectively reasonable” for
Jeney to believe that such cause existed. Golino, 950 F.2d at 870.
Cornelio cannot overcome this presumption. He argues that the
state court judge was not acting as a neutral magistrate. The same
judge had dismissed a prior charge based on Cornelio’s alleged
failure to comply with the residence verification provision. Cornelio
suggests that the judge “turned” a “blind eye” to Jeney’s malicious
intent because, when Cornelio had appeared to urge the dismissal of
the earlier charge, Cornelio was “not as repentant or humbled as those
who uphold the law might have expected.” Appellant’s Br. 11. That
may or may not be so. But we presume that a judicial officer
impartially executes his responsibilities, see MacDraw, Inc. v. CIT Grp.
Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) (“Judges … must be
presumed, absent more, to be impartial.”), and we require more than
an alleged possible resentment to conclude otherwise.
Cornelio further argues that Jeney lacked arguable probable
cause because Cornelio had complied with the disclosure
requirement. He had used the AOL email address to communicate
with the SORU, and he had displayed the AOL email address on a
personal website that he registered with the SORU. To Cornelio, these
30
circumstances show that he was not concealing the AOL email
address from the SORU and that he satisfied his obligation to disclose
the AOL email address under § 54-253(b). That is entirely plausible,
and perhaps this argument may have led to the dismissal of the
charge against Cornelio. But we agree with the district court that an
objectively reasonable police officer could have understood the
disclosure requirement to mandate that Cornelio report his email
address in a direct and formal way. The statute requires a registrant
to “notify the Commissioner of Emergency Services and Public
Protection in writing of [a new] identifier,” Conn. Gen. Stat. § 54-
253(b) (emphasis added), as part of the obligation to “register” any
internet identifier “with the Commissioner of Emergency Services
and Public Protection, on such forms and in such locations as said
commissioner shall direct,” id. § 54-251(a). These provisions at least
arguably required Cornelio to include the AOL email address on the
quarterly verification forms he received or to provide the SORU with
an official notice when he created the new email address. Under this
interpretation, Cornelio’s emails to the SORU did not satisfy the
disclosure requirement because those emails disclosed Cornelio’s
email address only implicitly while addressing other matters. 13
Though we conclude that Jeney had arguable probable cause
and therefore qualified immunity for her actions in this case, we note
that Cornelio plausibly alleges that the prosecution was motivated by
malice. The underlying arrest in this case is not the first time Cornelio
was arrested for a trivial reporting infraction. See Cornelio, 2020 WL
13 Before the district court, Cornelio argued that false statements in Jeney’s
affidavit negate the finding of probable cause. Cornelio appears to abandon
this argument on appeal, however, so we do not consider it. See City of
Syracuse v. Onondaga County, 464 F.3d 297, 308 (2d Cir. 2006).
31
7043268, at *5-6. The history between Cornelio and the SORU suggests
a possible motivation to harass him. See Spak, 857 F.3d at 461 n.1; see
also Owens v. Downey, 150 F. Supp. 3d 1008, 1028 (S.D. Ind. 2015)
(inferring malice from a “history of animosity” toward the plaintiff).
Nevertheless, an officer cannot be liable for a vexatious motivation as
long as she acts with arguable probable cause.
CONCLUSION
We reverse the district court’s dismissal of Cornelio’s First
Amendment claim and affirm the district court’s dismissal of his Ex
Post Facto Clause and malicious prosecution claims. We remand for
further proceedings consistent with this opinion.
32