On September 16, 2024, the federal court for the Eastern District of Louisiana dismissed a procedural due process claim against the state Department of Public Safety and Corrections (DPSC) for repeatedly arresting a sex offender who failed to meet registration requirements after being declared “unrestorably incompetent.” However, the district court refused to dismiss a companion claim made by Kendra Greenwald that her substantive due process rights were violated, writing that “arresting someone for not doing something that they are incapable of doing shocks the conscience regardless of what process may be due prior to arrest.”

In July 2012, Greenwald, then 33, was convicted of carnal knowledge of a juvenile for engaging in sex at her New Orleans apartment with a 14-year-old. Although she argued that the teen forced her to have intercourse by threatening both her and her child, the jury found “overwhelming” evidence she invited him into her bedroom. She received two years on probation and was required to register as a sex offender.

Over the next 11 years, Greenwald was arrested at least seven times for failing to meet the requirements of Louisiana’s Sex Offender Registration and Notification Act (SORNA). She blamed a seizure disorder which “caused brain damage that has diminished her intellectual ability, and caused short-term and long-term memory loss,” as the Court later recalled. After the sixth arrest in 2015, a state court ordered a competency evaluation and found she was an “unrestorable incompetent.” Yet when she missed SORNA registration requirements again, she was arrested once more.

Understandably weary of this merry-go-round, she filed suit in 2022 against state and DPSC officials, plus the city of New Orleans. Her complaint raised an Eighth Amendment claim, a due process claim, plus a claim for municipal liability under Monell v. Dep’t of Soc. Svcs., 436 U.S. 658 (1978). After the district court dismissed the civil rights claim, Greenwald filed an amended complaint adding a claim under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101, et seq. State defendants moved to strike, while City defendants moved to dismiss. In December 2023, the district court denied both motions.

Rejecting the state’s argument that Greenwald had impermissibly added the ADA claim, the district court noted that pursuant to Fed.R.Civ.P 15 it must “freely give leave [to amend] when justice so requires.” It also rejected the city’s argument that the Monell claim should fail because local officials are not responsible for SORNA requirements promulgated at the state level. Greenwald alleged that the New Orleans Police Department had “a policy or practice of arresting individuals for failure to comply with SORNA regardless of their intellectual capabilities,” claiming the city had a policy of “failing to allow discretion” when deciding whether to arrest offenders with mental disabilities who violate SORNA. That was sufficient to allow the Monell claim to proceed, the district court said. It further denied the state’s request for a stay pending an interlocutory appeal—which the U.S. Court of Appeals for the Fifth Circuit denied on May 2, 2024, calling the earlier a ruling a “legal nullity” after the amended complaint was filed. See:Greenwald v. Murrill, 2024 U.S. App. LEXIS 10739 (5th Cir.).

In its most recent decision, the district court first rejected the State’s contention that she lacked standing to sue. “[R]edressability runs with causation,” the district court noted, so the alleged injury could “be redressed by a decision that enforcement of SORNA against her violates federal law.” Greenwald’s procedural due process claim was dismissed, since her rearrests for SORNA violations were predicated on a conviction at a trial in which she was afforded all the process she was due. However, the district court refused to dismiss her substantive due process claim. “She has not, as Defendants suggest, alleged a right … to be free from all arrests, or a right to be excused from sex offender laws, or that her arrests were without probable cause,” the district court noted—only that “[a]rresting and imprisoning a woman with intellectual disabilities for failing to complete administrative tasks that her disability makes impossible … deprives her of her fundamental right to liberty.”

Defendants argued that Greenwald’s claim also necessarily implicated the validity of her sentence, so it was barred by Heck v. Humphrey, 512 U.S. 477 (1994). But the district court said a “finding that Plaintiff’s rights are being violated when she is repeatedly arrested without conviction after being declared unrestorably incompetent does not invalidate her earlier convictions for failure to register as a sex offender.” However, it agreed with Defendants that recognizing SORNA registration as a “service or activity” under ADA—“the benefit of which a disabled person has been denied”—would “strain[] the statutory language to, if not past, the breaking point.”

Accordingly, Greenwald’s ADA and procedural due process claims were dismissed against State defendants while her substantive due process claim was allowed to proceed. Greenwald is represented by attorneys Christopher F. Edmunds of Metairie and James D. Courson of Disability Rights Louisiana in New Orleans. See: Greenwald v. Cantrell, 2024 U.S. Dist. LEXIS 166028 (E.D. La.).  

Additional source: New Orleans Times Picayune