Case 1:17-cv-04524-RLY-TAB Document 1 Filed 12/06/17 Page 1 of 12 PageID #: 1

IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PATRICK RICE, ADAM BASH, and )

SCOTT RUSH, )
)
Plaintiffs, )
)
v. ) No. 1:17-cv-4524
)
COMMISSIONER OF THE INDIANA )
DEPARTMENT OF CORRECTION, )
DELAWARE COUNTY PROSECUTOR, )
DELAWARE COUNTY SHERIFF, )
PULASKI COUNTY PROSECUTOR, and )
PULSASKI COUNTY SHERIFF, all in )
their official capacities, )
)
Defendants. )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introductory Statement

1. The Indiana Sex Offender Registration Act (SORA), Ind. Code 11-8-8-1, et seq.,

requires certain offenders to register with local law enforcement as a sex or violent offender

where they live, work, or attend school. At the time of registration, the individual must

provide, inter alia, personal identifying information, information concerning his or her

vehicle, information concerning internet identifiers, and [a]ny other information required

by the Department of Correction (DOC). Ind. Code 11-8-8-8(a). An individual must

re-register at least annually and must also register if any of his or her registration

information changes. Ind. Code 11-8-8-11, 14. Local law enforcement must also visit

an individual either every ninety days or annually, Ind. Code 11-8-8-13, the individual

must maintain a valid drivers license or identification card, Ind. Code 11-8-8-15, and

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the individual is prohibited from petitioning for a name change, Ind. Code 11-8-8-16. An

individual classified as a so-called sexually violent predatorincluding Patrick Rice and

Scott Rushis subject to more stringent requirements in several respects (Ind. Code 35-

38-1-7.5). An individual classified as an offender against childrenincluding all three

plaintiffsis also limited in where he may live (Ind. Code 35-42-4-11) and where he

may work (Ind. Code 35-42-4-10). And an individual classified as a so-called serious

sex offenderincluding, again, all three plaintiffsis statutorily prohibited from even

entering school property. Ind. Code 35-42-4-14.

2. In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), the Indiana Supreme Court held that

imposing SORAs registration requirements on an individual who committed his offense

prior to the enactment of that statute violated the ex post facto clause of the Indiana

Constitution, Ind. Const. art. 1, 24. The defendants generally follow this directive with

respect to individuals convicted of sex or violent offenses in Indiana who have never been

required to register in another state, although they may require that these persons formally

petition a court (or take other affirmative steps) before removing them from the registry.

However, when an individual has been required to register in another stateeither by

virtue of having been convicted in that state or by virtue of having traveled to that state

following an Indiana convictionthe defendants require registration when and if that

person moves or returns to Indiana, even though registration could not have been required

had they never left the state. This interpretation of the ex post facto clause of the Indiana

Constitution is supported by two recent decisions of the Indiana Supreme Court. See Tyson

v. State, 51 N.E.3d 88 (Ind. 2016); State v. Zerbe, 50 N.E.3d 368 (Ind. 2016).

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3. Each of the plaintiffs was convicted of an out-of-state sex offense before the enactment of

Indianas SORA or the enactment of a registration requirement in the jurisdictions where

they were convicted. Following the enactment of SORA, they were each released from

prison and moved to Indiana. In Indiana, the plaintiffs have now been informed that they

will be required to register as a sex or violent offender for the rest of their lives. This is so

even though they would not be required to register at all if they had been convicted in

Indiana and never left the state. This places an unjustified burden on the plaintiffs right

to engage in interstate travel, which is protected by the Fourteenth Amendment to the

United States Constitution, and is unconstitutional. To the extent that the plaintiffs are

required to register as sex or violent offendersand are subjected to the numerous burdens

that that designation entailsbut a similarly situated individual who has never left Indiana

is not, this classification is also irrational and violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

4. Finally, the plaintiffs sex offenses were committed before the enactment of SORA. The

burdens imposed by Indiana law are punitive in effect, and SORA therefore violates the ex

post facto clause of the United States Constitution, U.S. Const. art. I, 10, cl. 1.

Jurisdiction, Venue, and Cause of Action

5. The Court has jurisdiction of this case pursuant to 28 U.S.C. 1331.

6. Venue is proper in this district pursuant to 28 U.S.C. 1391.

7. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28

U.S.C. 2201 and 2202.

8. This action is brought pursuant to 42 U.S.C. 1983 to redress the deprivation, under color

of state law, of rights secured by the Constitution of the United States.

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Parties

9. Patrick Rice is an adult resident of Delaware County, Indiana.

10. Adam Bash is an adult resident of Delaware County, Indiana.

11. Scott Rush is an adult resident of Pulaski County, Indiana.

12. The Commissioner of the Indiana Department of Correction is the duly appointed

individual in charge of that agency, and is sued in his official capacity.

13. The Delaware County Prosecutor is the duly elected prosecutor of Delaware County, and

is sued in his official capacity.

14. The Delaware County Sheriff is the duly elected sheriff of Delaware County, and is sued

in his official capacity.

15. The Pulaski County Prosecutor is the duly elected prosecutor of Pulaski County, and is

sued in his official capacity.

16. The Pulaski County Sheriff is the duly elected sheriff of Pulaski County, and is sued in his

official capacity.

Factual Allegations

Indianas Sex Offender Registration Act and the Indiana Sex and Violent Offender Registry

17. Indianas Sex Offender Registration Act (SORA), currently codified at Indiana Code

11-8-8-1, et seq., was first enacted and took effect in 1994.

18. Although several amendments have been made to SORA over the years, in its current form

the statute imposes numerous burdens and obligations on individuals required to register

as sex or violent offenders. These include, but are not limited to, the following:

a. The individual must provide a substantial amount of personal identifying

information, as information concerning his or her vehicle, information concerning
internet identifiers, and [a]ny other information required by the Department of
Correction (DOC). Ind. Code 11-8-8-8(a).

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b. The individual must re-register at least annually and must also register if any of his
or her registration information changes. Ind. Code 11-8-8-11, 14.

c. Local law enforcement must visit the individual either every ninety days or
annually. Ind. Code 11-8-8-13.

d. The individual must maintain a valid drivers license or identification card. Ind.
Code 11-8-8-15.

e. The individual is prohibited from petitioning for a name change. Ind. Code 11-
8-8-16.

19. Indiana law also imposes additional burdens on persons convicted of specified offenses.

For instance, a person who meets the statutory definition of an offender against children

may not work or volunteer at, or reside within 1,000 feet of, school property, a youth

program center, or a public park. Ind. Code 35-42-4-10, 11. A person who meets the

statutory definition of a serious sex offender may not enter school property. Ind. Code

35-42-4-14. And a person who meets the statutory definition of a sexually violent

predator, Ind. Code 35-38-1-7.5, is subjected to other stringent requirements.

20. In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), the Indiana Supreme Court held that

imposing SORAs registration requirements on an individual who committed his offense

prior to the enactment of that statute violated the ex post facto clause of the Indiana

Constitution, Ind. Const. art. 1, 24.

21. Under Indiana law, the DOC is responsible for determining the registration status of

persons in Indiana who have been convicted of sex or violent offenses. In compliance with

the Wallace decision, the DOC does not require persons to register whose offenses

occurred at a time when they did not require registration and who have never left Indiana,

although it may require that these persons formally petition a court (or take other

affirmative steps) before removing them from the registry.

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22. However, if a person travels temporarily to another state and is required to register as a sex

offender under the laws of that jurisdiction, the DOC requires that that person register as a

sex or violent offender upon his return to Indiana, even if he would not be required to

register had he never left Indiana. Depending on the offense of which that person was

convicted, he might then be required to register for ten years or for the rest of his life.

23. The upshot of the DOCs registration policy and the recent decisions of the Indiana

Supreme Court in Tyson and Zerbe, therefore, is that, if two persons are convicted of an

identical offense at a time when this offense did not require registration under Indiana law,

and one of those persons thereafter travels in interstate commerce but the other does not,

only one of these persons will now be required to register by the DOCthe individual who

crossed state lines.

Patrick Rice

24. In 1989, Patrick Rice was charged with and convicted of aggravated criminal sexual assault

in Illinois.

25. As a result of this conviction, Mr. Rice was sentenced to twenty-five years in the Illinois

prison system.

26. While Mr. Rice was convicted of other Illinois offenses contemporaneously with his

conviction for aggravated criminal sexual assault, and while he was convicted of unlawful

possession of a weapon in a penal institution shortly after his incarceration, other than his

conviction of aggravated criminal sexual assault he has not been convicted of an offenses

that qualify as a sex or violent offense under Indiana.

27. Mr. Rices last conviction for any offense occurred in 1990.

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28. On June 26, 2017, Mr. Rice was released from the Danville Correctional Center in

Danville, Illinois. He was not placed on probation, parole, or any other type of supervised

release.

29. When Mr. Rice was released from prison, he had few if any resources and no place to live

in Illinois. His closest relative was his sister, who lives in Madison County, Indiana. He

therefore decided that, upon his release, he would move in with his sister in Indiana until

he got back on his feet.

30. When Mr. Rice was released from prison, he was informed that he was required to promptly

register as a sex offender under Illinois law. He therefore registered in Danville, Illinois,

where he informed authorities that he intended to move to Indiana that day. The Illinois

authorities informed him that, under Illinois law, he would be required to register for ten

years if he continued to reside in Illinois.

31. On June 26, 2017, Mr. Rice therefore moved to Madison County, Indiana, to live with his

sister. He promptly registered as a sex offender upon his arrival in Madison County, and

was informed that under Indiana law he would be required to register for the remainder of

his life.

32. Mr. Rice resided with his sister in Madison County for approximately two months. While

living in Madison County, he met his partner and decided to move in with that individual

in Delaware County, Indiana. He therefore moved to Delaware County in August or

September of 2017, and he promptly registered with officials there. Mr. Rice has continued

to reside in Delaware County since that time, and has ensured that his registration is kept

current.

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33. Mr. Rice has therefore registered as a sex offender in Indiana and has been subjected to the

other requirements of Indianas SORA. This is so even though, as a result of the Wallace

decision and the DOCs policy, he would not be required to register under Indiana law if

he had been convicted in Indiana and had thereafter never left the state.

34. Given his offense and the requirement that he register, the DOC has determined that Mr.

Rice qualifies as a sexually violent predator, as an offender against children, and as a

serious sex offender under Indiana law, and he is therefore subject to the additional

restrictions imposed as a result of those classifications.

Adam Bash

35. In 1990, Adam Bash was charged with a sex offense in Kentucky. He was convicted of

that offense in late 1990 and sentenced to a term of imprisonment in early 1991. The

underlying offense itself, however, occurred in the mid-1980s, when Mr. Bash was in his

early teens or even younger.

36. As a result of this conviction, Mr. Bash served time in the Kentucky prison system,

although for most of the time that he was incarcerated he was assigned to a mental health

or medical facility. He was released on or about December 1, 1998.

37. Following his release from prison, Mr. Bash first lived for a short period of time with his

parents in Kentucky. He then moved from Kentucky to Cincinnati, Ohio, where he

remained for only a few months. While he resided in Cincinnati, Ohio, Mr. Bash was

informed by local officials that he was required to register as a sex offender for ten years,

and he therefore registered.

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38. In 1999 or 2000, Mr. Bash moved to Indiana. While Mr. Bash has resided in several

different Indiana counties since moving to the state, in 2012 he moved to Muncie (in

Delaware County), and he has resided in Muncie continuously since that time.

39. After he moved to Muncie, Mr. Bash was informed by officials with the Delaware County

Sheriffs Office that, insofar as he moved following the enactment of SORA, he was

required to register as a sex or violent offender in Indiana for the rest of his life. He has

therefore registered continuously since that time.

40. Other than his 1990/91 conviction in Kentucky for an offense that occurred in the mid-

1980s, Mr. Bash has not been convicted of any offense that qualifies as a sex or violent

offense under Indiana law. He does have two Indiana convictions for offenses that do not

qualify as sex or violent offenses under Indiana law. While he is currently on probation

for the latter of these two convictions, he is not required to register as a sex or violent

offender as a condition of probation.

41. Mr. Bash has therefore registered as a sex offender in Indiana and has been subjected to

the other requirements of Indianas SORA. This is so even though, as a result of the

Wallace decision and the DOCs policy, he would not be required to register under Indiana

law if he had been convicted in Indiana and had thereafter never left the state.

42. Given his offense and the requirement that he register, the DOC has determined that Mr.

Bash qualifies as an offender against children. Because the DOC has determined that

the Kentucky statutes that Mr. Bash was convicted of violating are the equivalent of child

molesting and vicarious sexual gratification under Indiana law, it appears that the DOC has

also determined that he qualifies as a serious sex offender, although Mr. Bash has never

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been specifically informed that this is the case. He is thus subject to the additional

restrictions imposed as a result of these classifications as well.

Scott Rush

43. In 1992, Scott Rush was charged with and convicted of a sex offense in Florida.

44. As a result of this conviction, Mr. Rush was sentenced to a term of imprisonment in the

Florida state prison system. He was released from prison in July of 1995.

45. After his release from prison, Mr. Rush was placed on probation for ten years. This term

of probation expired in 2005 and he has not been on probation, parole, or any other form

of supervised release since that time.

46. While he resided in Florida, Mr. Rush registered as a sex offender as required under state

law. He registered in Florida from 1995 until he moved to Indiana in 2017.

47. Mr. Rush has not been charged with or convicted of any criminal offense since 1992, nor

has he been accused of violating a condition of supervised release.

48. Mr. Rush has worked for the same company for approximately 15 years. However, in 2017

it was determined that the office where he worked in Florida would be closed. He was

therefore offered, and accepted, a transfer to the companys office in Indiana.

49. Mr. Rush and his familyhis wife and his daughtertherefore moved from Florida to

Pulaski County, Indiana in June 2017. Mr. Rush has resided in Pulaski County since that

time, and his wife has since given birth to a second daughter.

50. Upon moving to Indiana, Mr. Rush promptly visited the office of the Pulaski County

Sheriff, where he was informed that he was required to register as a sex offender and that

he was considered a sexually violent predator under Indiana law.

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51. Mr. Rush has therefore registered as a sex offender in Indiana and has been subjected to

the other requirements of Indianas SORA. This is so even though, as a result of the

Wallace decision and the DOCs policy, he would not be required to register under Indiana

law if he had been convicted in Indiana and had thereafter never left the state.

52. Given his offense and the requirement that he register, the DOC has determined that Mr.

Rush qualifies as a sexually violent predator, as an offender against children, and as a

serious sex offender under Indiana law, and he is therefore subject to the additional

restrictions imposed as a result of those classifications.

Concluding Factual Allegations

53. The application of Indianas SORA to the plaintiffs thus imposes a burden on them for

exercising their right to interstate travel. This burden is without justification.

54. There is no rational justification for treating the plaintiffs differently than an offender who

has never left Indiana, and who is therefore not required by the DOC to register as a sex or

violent offender.

55. Indianas SORA is punitive in effect and is not justified.

56. The defendants have, at all times, acted or refused to act under color of state law.

57. As a result of the actions of the defendants, the plaintiffs are suffering irreparable harm for

which there is no adequate remedy at law.

Legal Claims

58. As applied to the plaintiffs, Indianas Sex Offender Registration Act (Ind. Code 11-8-8-

1, et seq.) violates the right to travel protected by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.

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59. As applied to the plaintiffs, Indianas Sex Offender Registration Act (Ind. Code 11-8-8-

1, et seq.) violates the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution insofar as a similarly situated individual who never leaves Indiana is

not required to register.

60. As applied to the plaintiffs, Indianas Sex Offender Registration Act (Ind. Code 11-8-8-

1, et seq.) violates the ex post facto clause of the United States Constitution.

Request for Relief

WHEREFORE, the plaintiffs respectfully request that this Court:

1. Accept jurisdiction of this cause and set it for hearing.

2. Declare that the defendants have violated and continue to violate the rights of the plaintiffs

for the reasons described above.

3. Issue a preliminary injunction, later to be made permanent, prohibiting the defendants from

enforcing Indianas Sex Offender Registration Act against the plaintiffs.

4. Award the plaintiffs their costs and attorneys fees pursuant to 42 U.S.C. 1988.

5. Award all other proper relief.

_/s/ Gavin M. Rose______________

Gavin M. Rose

_/s/ Jan P. Mensz______________

Jan P. Mensz
ACLU OF INDIANA
1031 E. Washington St.
Indianapolis, IN 46202
Ph: 317.635.4059
Fax: 317.635.4105
<grose@aclu-in.org>
<jmensz@aclu-in.org>

Attorneys for the plaintiffs

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