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Tenth Circuit Voids Albuquerque’s Attempt to Ban Sex Offenders from Libraries

In a case of first impression, on January 20, 2012 the Tenth Circuit Court of Appeals affirmed a district court’s judgment invalidating an ordinance of the City of Albuquerque, New Mexico that prohibited registered sex offenders from entering the City’s public libraries.

The district court had granted summary judgment in favor of a John Doe plaintiff, ruling that the ban “burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention ... that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.”

The Court of Appeals noted that had the City of Albuquerque presented evidence as to the reasons or justifications for the ban, or whether the ban was narrowly tailored to specifically deal with the interest sought to be protected, or whether there was any alternative method for the banned class to obtain information available in libraries, the result might have been different.

Doe filed the lawsuit in response to a March 4, 2008 “Administrative Instruction” that barred all registered sex offenders from using Albuquerque public libraries. The suit, filed in October 2008, alleged violations of his civil rights under 42 U.S.C. § 1983, specifically violation of the right to receive information under the First Amendment and violation of the right to equal protection under the Fourteenth Amendment. Doe sought declaratory relief in the form of a ruling that the ban was unconstitutional, and injunctions barring the City from denying him access to its public libraries.

The City’s motion to dismiss was denied, and Doe filed a motion for summary judgment citing Ward v. Rock Against Racism, 491 U.S. 781 (1989), which set forth various tests as to the time, place and manner of access to public forums such as libraries. The City’s response argued that since Doe raised a “facial” challenge to the constitutionality of the ban, he had to show that the law could not be constitutionally applied under any circumstances, and thus Ward did not apply. The district court disagreed and granted summary judgment to Doe in March 2010. See: Doe v. City of Albuquerque, U.S.D.C. (D. N.M.), Case No. 1:08-cv-01041-MCA-LFG.

On appeal, in reviewing the denial of the City’s motion to dismiss, the Tenth Circuit noted that Doe’s complaint had met the tests established by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The appellate court also noted that Stanley v. Georgia, 394 U.S. 557 (1969) and its progeny held “It is now well-established that the Constitution protects the right to receive information and ideas [and] ... is fundamental to our free society.” As such, there was no presumption of constitutionality for the sex offender library ban.

In its review of the district court’s summary judgment order, the Court of Appeals found that the ban “can survive constitutional scrutiny only if the City, as the party with the burden of proof, makes a showing that the ban is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels of communication.”

The Tenth Circuit said attempts to argue that Doe’s challenge must meet the test set forth in United States v. Salerno, 481 U.S. 739 (1987) or Citizens United v. FEC, 130 S.Ct. 876 (2010) did not apply under this set of facts, where there was no “tailoring” done by the City. “By prohibiting registered sex offenders from ... the ... public libraries, the City’s ban precludes these individuals from exercising ... a fundamental right,” the appellate court wrote.

What decided the case, however, was the Tenth Circuit’s determination that the City had not met its “summary judgment burden.” The City “provided no justification or reasons for its ban ... the City did not present any evidence that its ban was narrowly tailored to serve its interest in providing a safe environment for library patrons.... By not making any showing as to alternative channels of communication, the City failed to meet its Rule 56 burden in responding to Doe’s motion ... we must conclude ... that the City’s ban does not constitute a permissible time, place, or manner restriction under the Ward test ... [and] affirm the district court’s grant of summary judgment in favor of Doe.” See: Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012).

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Doe v. City of Albuquerque

Doe v. City of Albuquerque