David Litmon, Jr. v. Kamala Harris

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LITMON, JR., No. 12-15261
Plaintiff-Appellant,
D.C. No.
v. 3:10-cv-03894-
EMC
KAMALA D. HARRIS, Attorney
General,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted
August 12, 2014—San Francisco, California
Filed October 14, 2014
Before: Alex Kozinski, Chief Judge, Barry G. Silverman
and Richard R. Clifton, Circuit Judges.
Opinion by Chief Judge Kozinski
2 LITMON V. HARRIS
SUMMARY*
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 challenging
California Penal Code § 290.012(b), which requires that
“every person who has ever been adjudicated a sexually
violent predator” to appear before local law enforcement
every 90 days for the rest of their lives to verify certain
identifying information.
Citing United States v. Juvenile Male, 670 F.3d 999 (9th
Cir. 2012), the panel held that the district court properly
dismissed plaintiff’s claim that the registration requirement
violates the fundamental right to be free from physical
restraint by requiring sexually violent predators to appear in
person every 90 days to register. Absent a fundamental right,
the panel held that strict scrutiny was inapplicable. Applying
rational basis review, the panel concluded that the in-person
registration requirement survived. The panel held that it was
not irrational for the California legislature to conclude that
requiring those who have been convicted of sexually violent
offenses to register in person every 90 days may deter
recidivism and promote public safety.
Citing Smith v. Doe I, 538 U.S. 84, 97 (2003), the panel
held that the district court properly dismissed plaintiff’s ex
post facto claim that “the cumulative burden of the
[registration] requirement . . . makes it an unconstitutionally
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LITMON V. HARRIS 3
retroactive punishment.” The panel further held that
plaintiff’s equal protection claim was also properly dismissed
because neither mentally disordered offenders nor mentally
disordered sex offenders are similarly situated to sexually
violent predators.
The panel held that plaintiff’s void-for-vagueness
challenge was waived because he failed to present it to the
district. The panel further held that plaintiff’s argument that
the California Department of Justice’s failure to issue formal
regulations governing the manner of registration under
section 290.012(b) violated the California Administrative
Procedure Act was also waived.
COUNSEL
Skye D.Y. Langs (argued), Craig E. Stewart, pro bono
appointment, Jones Day, Palo Alto, California, for Plaintiff-
Appellant.
Kamala D. Harris, Attorney General of California, Douglas
J. Woods, Senior Assistant Attorney General, Tamar Pachter,
Supervising Deputy Attorney General, Nelson R. Richards
(argued), Deputy Attorney General, San Francisco,
California, for Defendant-Appellee.
4 LITMON V. HARRIS
OPINION
KOZINSKI, Chief Judge:
California law requires “every person who has ever been
adjudicated a sexually violent predator” to appear before local
law enforcement every 90 days for the rest of their lives to
verify certain identifying information. See Cal. Penal Code
§ 290.012(b). We consider various constitutional challenges
to this registration requirement.
I. Background
David Litmon, Jr., admitted to raping four women and
severely beating another in the 1970s. Upon his release from
prison, he sexually assaulted two underage girls. After
serving his second sentence, he was adjudicated a “sexually
violent predator” pursuant to California Welfare and
Institutions Code § 6600(a)(1), and committed for treatment
in 2000. Since his release in 2008, Litmon has been reporting
to his local police station every 90 days to fill out a
registration form pursuant to California Penal Code
§ 290.012(b). The section provides in relevant part:
[E]very person who has ever been adjudicated
a sexually violent predator, as defined in
Section 6600 of the Welfare and Institutions
Code, shall, after his or her release from
custody, verify his or her address no less than
once every 90 days and place of employment,
including the name and address of the
employer, in a manner established by the
Department of Justice.
LITMON V. HARRIS 5
A sexually violent predator is “a person who has been
convicted of a sexually violent offense against one or more
victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that
it is likely that he or she will engage in sexually violent
criminal behavior.” Cal. Welf. & Inst. Code § 6600(a)(1).
The California Department of Justice requires all sex
offenders to fill out a form entitled “Sex Registration /
Change of Address / Annual or Other Update.” The form
lists as a “registration requirement” that registration be
completed in person and provides blanks for information such
as physical characteristics, vehicle identification and work
and home addresses. Those adjudicated as sexually violent
predators must fill out this form in person every 90 days.
In 2010, Litmon, pro se, sought injunctive relief from the
registration requirement under 42 U.S.C. § 1983. His original
complaint against the Attorney General of California alleged
that the registration requirement violated the Double Jeopardy
Clause and due process. The district court initially dismissed
this complaint with prejudice for failure to state a claim, but
then reconsidered its judgment and granted Litmon leave to
amend “only to the extent [he] seeks leave to assert a cause of
action for violation of the Fourteen[th] Amendment Equal
Protection clause.” Litmon’s first amended complaint re-
alleged his due process claim and added an equal protection
claim. The district court struck the due process claim because
it had already been dismissed, and granted Litmon leave to
replead only the equal protection claim in order to “explain
the basis on which other persons received preferential
treatment.” Litmon’s second amended complaint, which
alleges a single equal protection claim on the basis that two
other classes of offenders received more favorable treatment,
was dismissed with prejudice. Litmon appeals.
6 LITMON V. HARRIS
II. Discussion
We review the dismissal of Litmon’s section 1983 claims
de novo. See Colony Cove Props., LLC v. City of Carson,
640 F.3d 948, 955 (9th Cir. 2011). We construe pro se
complaints liberally, especially in civil rights cases. See
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“However, a liberal interpretation of a pro se civil rights
complaint may not supply essential elements of the claim that
were not initially pled. Vague and conclusory allegations of
official participation in civil rights violations are not
sufficient to withstand a motion to dismiss.” Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (internal
quotation marks and brackets omitted).
A. Substantive Due Process Claims
The district court properly dismissed Litmon’s claim that
the registration requirement violates the fundamental right to
be free from physical restraint by requiring sexually violent
predators to appear in person every 90 days to register. In
United States v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012),
we held that a similar in-person, 90-day registration
requirement for certain juvenile sex offenders didn’t
implicate any fundamental rights protected by substantive due
process. See id. at 1012 (“None of the[] [fundamental] rights
[identified by the Supreme Court] are, or could be, asserted
by defendants in this case. Nor do any of defendants’ rights
that are potentially at stake appear to be so rooted in the
traditions and conscience of our people as to be ranked as
fundamental . . . .”) (internal quotation marks omitted). And
in Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004) (per
curiam), we held that “persons who have been convicted of
serious sex offenses do not have a fundamental right to be
LITMON V. HARRIS 7
free from the registration and notification requirements set
forth in” an Alaska statute requiring those convicted of
multiple aggravated sex offenses to register every 90 days,
though not in person.
That the registration period in Juvenile Male may be
reduced from life to 25 years in limited circumstances, see
670 F.3d at 1005, is not a material distinction. Litmon cannot
cite any authorities suggesting that the registration
requirement implicates the fundamental right to be free from
restraint and relies on inapposite cases in the habeas context.
Even if we could analogize to habeas cases, we held in Henry
v. Lungren, 164 F.3d 1240 (9th Cir. 1999), that
“[r]egistration, even if it must be done in person at the police
station, does not constitute the type of severe, immediate
restraint on physical liberty necessary to render a petitioner
‘in custody’ for the purposes of federal habeas corpus relief.”
Id. at 1242.
Absent a fundamental right, strict scrutiny is inapplicable.
We therefore apply rational basis review and conclude that
the in-person registration requirement survives. The
California legislature found that “[s]ex offenders pose a
potentially high risk of committing further sex offenses after
release from incarceration or commitment,” see Cal. Penal
Code § 290.03(a)(1), and determined that the statutory
scheme for “risk assessment, supervision, monitoring and
containment for registered sex offenders residing in
California communities is necessary to enhance public safety
and reduce the risk of recidivism posed by these offenders,”
see id. § 290.03(a). It is not irrational for the California
legislature to conclude that requiring those who have been
convicted of sexually violent offenses to register in person
every 90 days may deter recidivism and promote public
8 LITMON V. HARRIS
safety. See Juvenile Male, 670 F.3d at 1009 (“We have held
that protecting our communities is a legitimate legislative
purpose.”).
Litmon further alleges in his original complaint that his
“liberty and freedom of movement have been so restricted
and infringed upon that [he] has been unable to obtain
employment as a truck driver, since such employment could
likely cause him to miss the 90-day appearance at the police
station.” He argues that this violates his “fundamental right
to work.” But “[t]he [Supreme] Court has never held that the
‘right’ to pursue a profession is a fundamental right, such that
any state-sponsored barriers to entry would be subject to strict
scrutiny.” See Dittman v. California, 191 F.3d 1020, 1031
n.5 (9th Cir. 1999). “[A] restriction on the conduct of a
profession will run afoul of substantive due process rights
only if it is irrational.” In re Crawford, 194 F.3d 954, 961
(9th Cir. 1999). We’ve already concluded that the
registration requirement is rational. See p. 7–8, supra.At oral argument before the panel, Litmon mentioned that
local police have been harassing sex offenders during the
registration process, causing him to spend upwards of six
hours at the police station. Nothing in the district court’s
order dismissing Litmon’s due process claims against the
Attorney General precludes Litmon from raising an as-
applied substantive due process claim against local law
enforcement based on allegations of police misconduct.
B. Ex Post Facto Claim
The district court properly dismissed Litmon’s claim that
“the cumulative burden of the [registration] requirement . . .
makes it an unconstitutionally retroactive punishment.” In
LITMON V. HARRIS 9
his original complaint, Litmon alleged a violation of the
Double Jeopardy Clause, and only on appeal did he re-
characterize the claim as alleging a violation of the Ex Post
Facto Clause. The Attorney General does not object to this
change, and nor do we, as the inquiry into whether a law
constitutes retroactive punishment in violation of the Double
Jeopardy Clause is identical to that with respect to the Ex
Post Facto Clause. See Smith v. Doe I, 538 U.S. 84, 97
(2003).
The Supreme Court’s decision in Smith v. Doe I, supra,
is instructive. There, the Court held that an Alaska statute
requiring those convicted of aggravated sex offenses to
register every 90 days for life did not violate the Ex Post
Facto Clause. See id. at 99–105. Smith reversed our holding
in Doe I v. Otte, 259 F.3d 979 (9th Cir. 2001), and corrected
our “misapprehension” that the Alaska statute at issue
contained an in-person registration requirement. Smith,
538 U.S. at 101.
Litmon argues that Smith is not controlling due to the
Alaska law’s lack of an in-person registration requirement.
But there is no reason to believe that the addition of such a
requirement would have changed the outcome. In fact, we
held in ACLU of Nevada v. Masto, 670 F.3d 1046 (9th Cir.
2012), that an in-person, 90-day, lifetime registration
requirement for the highest level sex offenders does not
violate the Ex Post Facto Clause, noting that the Nevada
statute at issue was “indistinguishable from [the statute] in
Smith,” and that Smith’s “resolution of our factual error
[regarding the in-person registration requirement] did not
amount to a holding that in-person registration necessarily
constitutes an affirmative disability” for purposes of the
inquiry. See id. at 1056; see also Hatton v. Bonner, 356 F.3d
10 LITMON V. HARRIS
955, 964 (9th Cir. 2003) (California’s in-person, annual,
lifetime registration requirement for those who committed
certain sex offenses did not violate the Ex Post Facto Clause).
C. Equal Protection Claim
Litmon’s equal protection claim was also properly
dismissed. Litmon alleges in his second amended complaint
that the registration requirement for sexually violent predators
violates the Equal Protection Clause because “other similarly
situated civil committees such as . . . a) Mentally Disordered
Offender[s] . . . , [and] b) Mentally Disordered Sex
Offender[s] . . . whom [sic] also have been convicted of the
same kinds of sex offenses, civilly committed to the same
mental institution, [and] receiv[ed] the same mental health
treatment, [are] not required to appear in person at the local
police station every 90 days to update their address and
employment information”; instead, they are required to
register annually.
The equal protection challenge fails because neither
mentally disordered offenders nor mentally disordered sex
offenders are similarly situated to sexually violent predators.
See Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th
Cir. 2005). Recall that a sexually violent predator is “a
person who has been convicted of a sexually violent offense
against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” Cal. Welf. & Inst. Code
§ 6600(a)(1). A mentally disordered offender, by contrast, is
a person who has been convicted of a listed crime, including
voluntary manslaughter, arson, kidnapping or rape, see Cal.
Penal Code § 2962(e)(2), who “by reason of his or her severe
LITMON V. HARRIS 11
mental disorder . . . represents a substantial danger of
physical harm to others” and who has been diagnosed with a
severe mental disorder that was “one of the causes or was an
aggravating factor in the prisoner’s criminal behavior,” see
id. § 2962(d)(1).
The inquiry into whether an individual poses a
“substantial danger of physical harm to others” is far broader
than the inquiry into whether one is “likely [to] . . . engage in
sexually violent criminal behavior.” Moreover, unlike
sexually violent predators, mentally disordered offenders
need not have been convicted of a “sexually violent offense
against one or more victims,” and may instead have
committed non-sexually violent offenses such as voluntary
manslaughter or arson.
Litmon argues that “because of the significant overlap
between the two commitment statutes, any sex offender
committed as a sexually violent predator could have instead
been committed as a mentally disordered offender.” This is
not the case, however, because individuals cannot be
committed as mentally disordered offenders unless they are
eligible for parole, see Cal. Penal Code § 2962, whereas those
committed as sexually violent predators must have been “in
custody pursuant to [their] determinate prison term[s] [or]
parole revocation term[s],” see Cal. Welf. & Inst. Code
§ 6601(a)(2).
Nor are sexually violent predators similarly situated to
mentally disordered sex offenders. A mentally disordered sex
offender is “any person who by reason of mental defect,
disease, or disorder, is predisposed to the commission of
sexual offenses to such a degree that he is dangerous to the
health and safety of others.” Cal. Welf. & Inst. Code § 6300,
12 LITMON V. HARRIS
repealed by Cal. Stats. 1981, ch. 928, p. 3485, § 2. Even
though the statute providing for the commitment of mentally
disordered sex offenders was repealed in 1981, it’s relevant
for our purposes because California Penal Code § 290.004
provides that “[a]ny person who, since July 1, 1944, has been
or hereafter is determined to be a mentally disordered sex
offender under Article 1 (commencing with Section 6300) of
Chapter 2 of Part 2 of Division 6 of the Welfare and
Institutions Code . . . shall register in accordance with the
[Sex Offender Registration] Act.” Cal. Penal Code
§ 290.004.
The two groups are distinguishable because sexually
violent predators must have been convicted of a sexually
violent offense and have been found likely to “engage in
sexually violent criminal behavior” upon their release from
prison, see Cal. Welf. & Inst. Code § 6600(a)(1) (emphasis
added), while mentally disordered sex offenders need only
have been found to be “predisposed to the commission of
sexual offenses,” and not sexually violent offenses, see Cal.
Welf. & Inst. Code § 6300 (emphasis added).
In any event, the California legislature has a rational basis
for imposing more frequent reporting requirements on
sexually violent predators given their criminal history of
sexual violence and their higher risk of recidivism. See Cal.
Penal Code § 290.03(a)(1). Contrary to Litmon’s assertion,
strict scrutiny isn’t applicable because he has failed to allege
that a fundamental right has been implicated, and because sex
offenders do not comprise a suspect class. See Kahawaiolaa
v. Norton, 386 F.3d 1271, 1277–78 (9th Cir. 2004); see also
Juvenile Male, 670 F.3d at 1009; United States v. LeMay,
260 F.3d 1018, 1030 (9th Cir. 2001).
LITMON V. HARRIS 13
Litmon argues in his opening brief that the equal
protection claim in his second amended complaint should “be
read to encompass the allegation that those adjudicated as
sexually violent predators within the State of California are
treated less favorably than those similarly adjudicated outside
of the state.” But Litmon’s second amended complaint
identified only mentally disordered offenders and mentally
disordered sex offenders as similarly situated individuals, and
cannot reasonably be construed as alleging an equal
protection claim on the basis of differential treatment
between those adjudicated as sexually violent predators
within California and those adjudicated as such under other
states’ statutes. Regardless, this argument is waived because
Litmon failed to raise it before the district court. See In re
Mortgage Elec. Registration Sys., Inc., 754 F.3d 772, 780
(9th Cir. 2014). The district court gave Litmon two
opportunities to allege this equal protection claim in a
subsequent complaint, both of which he passed up.
D. Remaining Claims
Litmon contends that California Penal Code § 290.012(b)
is unconstitutionally vague because it contains “no standards
describing the manner of registration required by the law”;
“it fails to establish standards that are sufficient to guard
against the arbitrary deprivation of liberty interests”; and it
“obstruct[s] meaningful judicial review.” He attempts to
construe this claim from the following sentence in his
original complaint: “Section 290.012(b) does not contain a
requirement that one appear physically at the local police
station, but this requirement has been created and
implemented by Defendant [then Attorney General] Brown.”
But this language cannot reasonably be read as raising a void-
for-vagueness challenge and Litmon’s argument is therefore
14 LITMON V. HARRIS
waived because he failed to present it to the district court.
See In re Mortgage Elec. Registration Sys., Inc., 754 F.3d at
780.
Litmon also argues that the California Department of
Justice’s failure to issue formal regulations governing the
manner of registration under section 290.012(b) violates the
California Administrative Procedure Act, see Cal. Gov’t
Code § 11340 et seq. Litmon again attempts to construe this
claim from the allegation in his original complaint that
“Section 290.012(b) does not contain a requirement that one
appear physically at the local police station, but this
requirement has been created and implemented by Defendant
Brown.” This language fails to raise an APA claim and this
challenge wasn’t otherwise raised before the district court. It
is therefore waived. See In re Mortgage Elec. Registration
Sys., Inc., 754 F.3d at 780. Given that Litmon failed to state
an APA claim, we need not consider his argument that the
district court abused its discretion by failing to exercise
supplemental jurisdiction over this state law claim.
* * *
California’s registration requirement for sexually violent
predators accordingly survives Litmon’s constitutional
challenges.
AFFIRMED.