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Case 2:15-cv-00606-WKW-SMD Document 173 Filed 03/15/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JOHN DOE 1, et al., )


)
Plaintiffs, )
)
v. ) CASE NO. 2:15-CV-606-WKW
)
STEVEN T. MARSHALL, et al., )
)
Defendants. )

ORDER

Alabama law requires sex offenders to “obtain . . . and always have in [their]

possession, a valid driver license or identification card issued by the Alabama State

Law Enforcement Agency.” Ala. Code § 15-20A-18(a). That identification card

must “bear a designation that, at a minimum, enables law enforcement officers to

identify the licensee as a sex offender.” Id. § 15-20A-18(b)–(c). Last month, the

court found it was unconstitutional to require a sex offender’s ID card to bear the

inscription “CRIMINAL SEX OFFENDER” in bold, red letters. (Doc. # 164, at 22.)

It therefore entered judgment declaring the branded-ID requirement unconstitutional

as applied. (Doc. # 165, at 1–2.) The State of Alabama now moves to alter or amend

that judgment. (Doc. # 168.) But the State’s motion is due to be denied.

Federal Rule of Civil Procedure 59(e) allows parties to file a motion to alter

or amend the judgment. But “it is established beyond dispute that Rule 59(e) cannot
Case 2:15-cv-00606-WKW-SMD Document 173 Filed 03/15/19 Page 2 of 3

be used to raise arguments or present evidence that could have been raised prior to

the entry of judgment.” Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261,

1266–67 (11th Cir. 2015) (cleaned up). Instead, a Rule 59(e) motion can be granted

based only on “newly-discovered evidence or manifest errors of law or fact.” Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (cleaned up). For evidence to be new,

it must have been “unavailable at the time of the judgment.” Mincey v. Head, 206

F.3d 1106, 1137 n.69 (11th Cir. 2000); see Lopez v. AT&T, Corp., 457 F. App’x 872,

875 (11th Cir. 2012) (per curiam); Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th

Cir. 1997).

The State bases its Rule 59(e) motion on what it claims is new evidence. (Doc.

# 168, at 4.) Specifically, the State introduces an agreement with the company that

prints ID cards for the State. The agreement shows that the State intends to replace

the “CRIMINAL SEX OFFENDER” inscription with a five-character alphanumeric

code. (Doc. # 171.) But this is not a sufficient basis for a Rule 59(e) motion. The

State has not found new evidence so much as it has changed its branded-ID policy.

Moreover, the State could have adopted its new policy long ago. The “CRIMINAL

SEX OFFENDER” inscription has been under attack for more than five years. See,

e.g., McGuire v. Strange, No. 11-cv-1027, Doc. # 171, at 31 (M.D. Ala. Jan. 7,

2014). This case started three-and-a-half years ago, and the First Amendment

challenge to the branded-ID requirement was the subject of two unsuccessful

2
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motions to dismiss. (Doc. # 1, at 1; Doc. # 51, at 43–48; Doc. # 125, at 33–37.) The

State could have changed its policy at any time. Finally, just because the State

believes it has satisfied the court’s judgment does not mean that the court will amend

its judgment. Indeed, a ruling that the new ID cards are constitutional would

resemble an impermissible advisory opinion. See, e.g., Church of Scientology Flag

Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 608 (11th Cir. 1985) (noting

“the constitutional prohibition against the rendering of advisory opinions”).

For these reasons, it is ORDERED that Defendants’ Motion to Alter or Amend

Judgment (Doc. # 168) is DENIED.

DONE this15th day of March, 2019.

/s/ W. Keith Watkins


UNITED STATES DISTRICT JUDGE