Stigma Plus Test Requirements
In State v. Robinson, 873 So. 2d 1205 (Fla. 2004), the Court has already applied the "stigma-plus" test to the Florida Sexual Predators Act, found that the Act did implicate a constitutionally protected liberty interest in reputation, and found the Act unconstitutional as applied. Robinson, 873 So. 2d at 1214 ("We ... hold that the designation as a sexual predator constitutes a deprivation of a protected liberty interest.").
The Court concluded that being "designated as a 'sexual predator' certainly constitutes a stigma.
No one can deny that such a designation affects one's good name and reputation." Robinson, 873 So. 2d at 1213.
In Robinson, this Court held that application of the Act to a person convicted of a crime that concededly involved no sexual component violated substantive due process. 873 So. 2d at 1217.
In Robinson, the Court also held that some harm beyond reputational stigma alone must be demonstrated to invoke procedural due process concerns. See Robinson, 873 So. 2d at 1213.
"To establish a deprivation of a liberty interest in reputation sufficient to implicate the procedural protection of the due process clause, one must show stigma plus the alteration or extinguishment of some other right or status." Doe v. Pryor, 61 F. Supp. 2d 1224, 1231 (M.D. Ala. 1999); see also Doe v. Dep't of Pub. Safety, 271 F.3d 38, 56 (2d Cir. 2001) ("One establishes a 'plus' factor for purposes of the Paul v. Davis 'stigma plus' test only if he or she points to an indicium of material government involvement unique to the government's public role that distinguishes his or her claim from a traditional ... defamation suit."), rev'd on other grounds, Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 155 L. Ed. 2d 98, 123 S. Ct. 1160 (2003).
Again, however, we have already answered this question in the affirmative in Robinson where, after finding that Florida's Act imposed a stigma on those designated as "sexual predators," the Court held that the Act also created three plus factors -- i.e., "additional limitations that implicate more than merely a stigma to one's reputation," 873 So. 2d at 1214:
We believe the Act imposes more than a stigma.... Under the Act, a person designated a sexual predator is subject to life-long registration requirements. See 775.21(5), Fla. Stat. (Supp. 1998).
Further, as another court has noted, "these statutes create no mere informational reporting requirement, the violation of which is punished with a small fine." Giorgetti v. State, 821 So. 2d 417, 422 (Fla. 4th DCA 2002), approved, 868 So. 2d 512 (Fla. 2004).
To the contrary, the failure of a designated sexual offender to comply with these and other requirements of the Act constitutes a third-degree felony. 775.21(10).
Moreover, a designated sexual predator is prohibited from seeking certain tort remedies, see 775.21(9), and from working "where children regularly congregate." 775.21(10)(b). Robinson, 873 So. 2d at 1213.
Fullmer v. Michigan Dep't of State Police, 207 F. Supp. 2d 650, 659 (E.D. Mich. 2002) (plaintiff met first prong of "stigma plus" due to stigma associated with being falsely labeled as a danger to the community when registry included both currently dangerous offenders and those who are not likely to become dangerous again);
Doe v. Williams, 167 F. Supp. 2d 45, 51 (D.D.C. 2001) ("It is beyond dispute that public notification pursuant to the District of Columbia sex offender law results in stigma.");
Doe v. Pryor, 61 F. Supp. 2d 1224, 1231 (M.D. Ala. 1999) ("While it might seem that a convicted felon could have little left of his good name, community notification ... will inflict a greater stigma than would result from conviction alone" because "notification will clearly brand the plaintiff as a 'criminal sex offender' ... a 'badge of infamy' that ... strongly implies that he is a likely recidivist and a danger to his community.");
Doe v. Pataki, 3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998) (because information required by the New York State Sex Offender Registration Act "is likely to carry with it shame, humiliation, ostracism, loss of employment and decreased opportunities for employment, perhaps even physical violence, and a multitude of other adverse consequences ... there is no genuine dispute that the dissemination of the information contemplated by the Act to the community at large is potentially harmful to plaintiffs' personal reputations.").
Doe v. Dep't of Pub. Safety, 271 F.3d 38, 56-57 (2d Cir. 2001) (holding that the "extensive and onerous" registration requirements imposed by Connecticut's sex offender law "constitute a 'plus' factor" because "those obligations (1) alter one's legal status and (2) are 'governmental in nature' insofar as they could not be imposed by a private actor ... and therefore differentiate the plaintiff's complaint from a traditional defamation claim"), rev'd on other grounds, Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 155 L. Ed. 2d 98, 123 S. Ct. 1160 (2003);
Doe v. Pryor, 61 F. Supp. 2d 1224, 1231-32 (M.D. Ala. 1999) ("Alabama's Community Notification Act deprives the plaintiff of rights previously held under State law. by virtue of having been deemed a 'criminal sex offender' within the meaning of the Act, the plaintiff no longer has the right to establish a new residence without giving prior notice to government officials. He no longer has the right to live and work within 1,000 feet of a school or childcare facility.... These additional deprivations therefore suffice to establish the 'plus' part of the stigma-plus test.").
Doe v. Pataki, 3 F. Supp. 2d 456, 468 (S.D.N.Y. 1998) ("The registration provisions of the Act place a 'tangible burden' on plaintiffs, potentially for the rest of their lives.... In light of these requirements placed on registrants, there can be no genuine dispute that registration alters the legal status of all convicted sex offenders subject to the Act for a minimum of ten years and, for some, permanently.
These requirements obviously encroach on the liberty of convicted sex offenders, and, therefore, they suffer a tangible impairment of a right in addition to mere harm to reputation.").