John Gastinger v. Kentucky State Police, Richard Saunders, Ex Rel ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0784-MR
JOHN GASTINGER APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 19-CI-00075
KENTUCKY STATE POLICE,
RICHARD SAUNDERS, EX REL;
JUSTICE AND PUBLIC SAFETY CABINET,
JOHN TILLEY, EX REL; AND
KENTUCKY DEPARTMENT OF CORRECTIONS,
JIM IRWIN, EX REL APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: John Gastinger appeals from an opinion and order of
the Franklin Circuit Court, entered April 25, 2019, granting summary judgment in
favor of the Kentucky State Police (KSP) through Commissioner Richard Saunders
and the Justice and Public Safety Cabinet (Justice Cabinet) through Secretary John
Tilley, thereby dismissing his case against said parties.1 Gastinger challenged the
requirement that he register as a sex offender after relocating to Kentucky and
raised various related grounds. We find no error and affirm.
In August 2018, while living in Colorado, Gastinger pled guilty to a
single count of indecent exposure-masturbation, Colo. Rev. Stat. Ann. § 18-7-302.
Under Colorado law, indecent exposure-masturbation is a class 1 misdemeanor
punishable by up to eighteen months in jail and subject to registration. Colo. Rev.
Stat. Ann. §§ 18-7-302(2)(b), 18-1.3-501(1)(a)1, 16-22-102(9)(m), 16-22-
103(2)(a) and (b).
As a condition of his probation, Gastinger agreed to register as a sex
offender, pursuant to Colo. Rev. Stat. Ann. §§16-22-106 and 16-22-108, and to
comply with restrictions and requirements as a registered sex offender on
supervised probation. It was not specified in either his sentencing order or
conditions how long Gastinger would be required to register as a sex offender.
Soon after he was sentenced, in August 2018, Gastinger moved to
Kentucky. Pursuant to the Interstate Compact for Adult Offender Supervision,
Kentucky Revised Statutes (KRS) 439.561, his probation was transferred from
1
Though the Kentucky Department of Corrections (DOC) through Commissioner Jim Irwin is a
named defendant, DOC did not file a motion for summary judgment and is not a party to this
appeal.
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Boulder County, Colorado to Oldham County, Kentucky where the Division of
Probation and Parole imposed conditions of supervision. Pursuant to KRS
439.561, Article VII, the conditions of supervised probation Gastinger signed in
Kentucky, including restrictions and requirements related to his obligation to
register as a sex offender as mandated by KRS 17.510, were consistent with those
he signed in Colorado.
After registering as a sex offender in Kentucky, Gastinger filed an
administrative appeal with the Division of Probation and Parole, challenging his
registration requirement. In November 2018, the Division of Probation and Parole
ruled that, pursuant to KRS 17.510(7)(a), Gastinger had a duty to register as a sex
offender in Kentucky and would be subject to a twenty-year registration
requirement.
On January 22, 2019, Gastinger filed the underlying action for
preliminary and injunctive relief and money damages, alleging violations of
Kentucky law and his constitutional rights. He made numerous claims predicated
upon his Kentucky registration requirement and the conditions of his registration
and supervised probation.
Thereafter, in March 2019, Gastinger, the Justice Cabinet, and KSP
filed cross motions for summary judgment. Gastinger sought partial summary
judgment on whether his registration requirement and placement on the Kentucky
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sex offender registry (SOR) was lawful and whether he was a felon. The Justice
Cabinet and KSP sought summary judgment on the basis that Gastinger’s
registration requirement and conditions of registration and supervised probation
were proper and not unlawful.
On April 25, 2019, the circuit court denied Gastinger’s motion for
partial summary judgment, granted the Justice Cabinet’s motion for summary
judgment, and granted KSP’s motion for summary judgment.
On appeal, Gastinger argues: (1) the circuit court erred in its
interpretation of KRS 17.510(7)(a) because he does not meet the inclusion criteria
for registration and placement on the SOR; (2) his twenty-year registration
requirement in Kentucky amounts to an increased period of registration and
punishment, which violates his due process rights; (3) the media and internet
restrictions imposed by the conditions of his supervised probation and computer
use agreement violate his constitutional rights; (4) KRS 17.510(5)(c)
unconstitutionally grants state actors immunity from liability for defamation; and
(5) it is actionable that DOC has published on its Kentucky Online Offender
Lookup (KOOL) website that he is a convicted felon.
Kentucky Rules of Civil Procedure (CR) 56.02 provides that “[a]
party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting
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affidavits for a summary judgment in his favor as to all or any part thereof.” When
a trial court considers a summary judgment motion, it is required to view “[t]he
record . . . in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “Appellate
review of a summary judgment involves only legal questions and a determination
of whether a disputed material issue of fact exists.” Shelton v. Kentucky Easter
Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013). We apply “a de novo standard
of review with no need to defer to the trial court’s decision.” Id. “The standard of
review on appeal of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky.App. 1996).
There are no factual disputes on appeal. All matters before us are
properly reviewable as matters of legal interpretation.
Gastinger concedes he was required to register as a sex offender in
Colorado and agrees that KRS 17.510(7)(a) is controlling. However, he argues the
circuit court erred in its interpretation of the statute because he does not meet the
inclusion criteria for registration and placement on the SOR. KRS 17.510(7)(a)
dictates, in relevant part:
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[I]f a person is required to register under . . . the laws of
another state . . . that person upon changing residence
from the other state . . . to the Commonwealth . . . shall
comply with the registration requirement of this section
. . . and shall register within five (5) working days with
the appropriate local probation and parole office in the
county of residence . . . . A person required to register
under . . . the laws of another state . . . shall be presumed
to know of the duty to register in the Commonwealth.
KRS 17.510(7)(a) contains two clauses describing persons required to
register in Kentucky: (1) persons convicted of an offense and required to register
under the laws of the state from which they are relocating; and (2) persons
convicted of an offense in another state that would require registration in
Kentucky. Murphy v. Commonwealth, 500 S.W.3d 827, 831 (Ky. 2016).
In Murphy, the defendant relocated from Michigan, where he was
required to register, to Kentucky, where he challenged whether he was required to
register under KRS 17.510(7). Murphy, 500 S.W.3d at 829-30. The Kentucky
Supreme Court explained that because the defendant was required to register in
Michigan, he fell “squarely within the first clause of KRS 17.510(7)” and was
required to register in Kentucky. Murphy, 500 S.W.3d at 830, 833.
Pursuant to Murphy, because Gastinger was required to register under
the laws of Colorado, he is required to register in Kentucky. Therefore, Gastinger
meets the inclusion criteria for registration and placement on the SOR.
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Gastinger argues his twenty-year registration requirement in Kentucky
amounts to an increased period of registration and punishment, which violates
his due process rights. We disagree.
Kentucky only has two registration periods, lifetime and twenty
years. KRS 17.520(2)(a) and (3). All persons required to register in Kentucky, but
not subject to lifetime registration, are required to register for twenty years. KRS
17.520(3). Under Colorado law, Gastinger would not be subject to mandatory
lifetime registration based on his conviction for the offense of indecent exposure-
masturbation. Colo. Rev. Stat. Ann. §§ 18-7-302(2)(b), 16-22-113(1)(c). Because
Gastinger’s registration requirement in Kentucky is based solely upon his
obligation to register in Colorado, and he would not be subject to mandatory
lifetime registration under Colorado law, we are satisfied he is not subject to
lifetime registration in Kentucky. Therefore, as a person required to register in
Kentucky but not subject to lifetime registration, Gastinger is required to register
for twenty years in Kentucky. KRS 17.520(3).
Under Colorado law, Gastinger’s period of registration appears
to be indefinite, with potential eligibility to petition for relief from registration five
years after completion of supervised probation. Colo. Rev. Stat. Ann. § 16-22-
113(1)(c). This makes August 3, 2026, eight years after his three-year sentence of
supervised probation was imposed, the earliest possible date Gastinger could
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become eligible to petition for relief under Colorado law. Such eligibility would
be conditioned upon Gastinger’s compliance with the requirements of his
registration and supervised probation and successful completion of same. Id.Additionally, discontinuance of required sex offender registration, even after
successful completion of supervised probation and registration, is discretionary
under Colorado law. People v. Carbajal, 312 P.3d 1183, 1189-90 (Colo.App.
2012). Therefore, there is no guarantee Gastinger would be eligible to
petition for relief in 2026 or that relief would be granted at that time.
Given the indefinite duration of his registration period in Colorado,
Gastinger is incorrect that his twenty-year registration requirement in Kentucky
amounts to an increase in his Colorado registration requirement or exceeds the
maximum registration requirement he would be subject to in Colorado.
Further, even if Gastinger were correct and his Kentucky registration
requirement did increase or exceed the duration of his Colorado registration
requirement, sex offender registration requirements in the Commonwealth and
other states “have consistently been held to be remedial measures, not punitive,
and therefore do not amount to punishment or increased punishment.” Hyatt v.
Commonwealth, 72 S.W.3d 566, 571 (Ky. 2002). “[T]he designation of a sexual
predator is not a sentence or a punishment but simply a status resulting from a
conviction of a sex crime.” Id. at 572. See also Cutshall v. Sundquist, 193 F.3d
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466, 476 (6th Cir. 1999) (declining to hold sex offender registry was punitive,
rather than regulatory, in nature)).
Gastinger argues the media and internet restrictions imposed by
the conditions of his supervised probation and computer use agreement violate
his constitutional rights in light of Packingham v. North Carolina, 137 S.Ct. 1730,
198 L.Ed.2d 273 (2017), and Doe v. Kentucky ex rel. Tilley, 283 F.Supp.3d 608(E.D. Ky. 2017). He complains generally that none of the conditions should
apply to him because he is not a sex offender. Specifically, he argues conditions
requiring him to obtain permission prior to using a computer, the internet or social
media/networking websites, and restricting him from using same to view sexual
content or “further sexual activity” unconstitutionally bar him from the internet.
Gastinger is required to register as a sex offender in Kentucky. KRS
17.510(7)(a). Therefore, his assertion that none of his conditions are lawful
because he is not a sex offender is incorrect.
In Packingham, the United States Supreme Court held that a North
Carolina statute prohibiting sex offenders from accessing social media/networking
websites altogether, impermissibly restricted speech in violation of the First
Amendment. Packingham, 137 S.Ct. at 1737. However, the Court opined its
holding was not so broad as to bar a state from enacting more specific laws and
assumed the First Amendment would permit “narrowly tailored laws that prohibit a
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sex offender from engaging in conduct that often presages a sexual crime[.]” Id.Pursuant to Packingham, the Court in Doe, 283 F.Supp.3d at 616, held like bans in
Kentucky statutes facially unconstitutional and permanently enjoined the
Commonwealth from enforcing same. Following Packingham and Doe, the
Commonwealth struck the categorical prohibitions against use of social
media/networking websites for sex offenders from KRS 17.546 and KRS 17.510.
In United States v. Carson, 924 F.3d 467, 472 (8th Cir. 2019), the
defendant challenged special conditions of his lifetime supervision, including
computer use restrictions effectively prohibiting him from internet access without
prior approval from the probation office and barring him from creating or
maintaining a social media profile. The Court distinguished Packingham,
determining it “invalidated only post-custodial restrictions[,]” and declined to
extend its holding to restrictions on access to the internet during a term of
supervised release. Carson, 924 F.3d at 473.
Similarly, in United States v. Rock, 863 F.3d 827, 831 (D.C. Cir.
2017), the defendant challenged conditions of supervised release that prohibited
him from computer use or possession, and from having access to any online
service, without prior approval of the probation office. The Court explained the
conditions imposed were part of the defendant’s supervised-release sentence, not
the kind of post-custodial restriction at issue in Packingham. Rock, 863 F.3d at
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831. It affirmed that “individuals on probation ‘do not enjoy the absolute liberty to
which every citizen is entitled,’ and ‘a court granting probation may impose
reasonable conditions that deprive the offender of some freedoms enjoyed by law-
abiding citizens[.]’” Id. (quoting United States v. Knights, 534 U.S. 112, 119, 122
S.Ct. 587, 591, 151 L.Ed.2d 497 (2001)). Likewise, the Court in United States v.
Bobal, 981 F.3d 971, 977 (11th Cir. 2020) (also quoting Knights, 534 U.S. at 119,
122 S.Ct. at 591), concluded, “[n]othing in Packingham undermines the settled
principle that a district court may ‘impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens’ during supervised
release.”
As read together in their entirety, Gastinger’s conditions of supervised
probation and computer use agreement clearly and specifically allow him to
possess and use computers and other electronic devices and access the internet and
social media/networking websites with prior approval from the probation office.
However, he is restricted from possession, use or access for purposes of viewing
sexual content or “furthering sexual activity.” These conditions plainly do not
subject Gastinger to restrictions which prohibit his access to the internet or social
media/networking websites altogether, and they are narrowly tailored to prohibit
him from engaging in conduct that often presages a sexual crime. Therefore, the
media and internet restrictions contained in Gastinger’s conditions of supervised
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probation and computer use agreement are not unconstitutional in the wake of
Packingham and Doe.
Additionally, with respect to whether supervised-release conditions
are reasonable, this Court summarized in Wilfong v. Commonwealth, 175 S.W.3d
84, 97 (Ky.App. 2004): “As a general matter, supervisory-release conditions must
be rationally related to the purposes of supervisory release, which are rehabilitation
of the releasee, deterrence of future criminal activity, and protection of the public
from the releasee’s being at large.” Gastinger’s narrowly tailored conditions,
including the media and internet restrictions of which he complains, are rationally
related to the purposes of supervised release as applied to registered sex offenders.
Therefore, given that he is a registered sex offender, Gastinger’s narrowly tailored
conditions are reasonable under Wilfong.
Gastinger argues KRS 17.510(5)(c) unconstitutionally grants state
actors immunity from liability for defamation, and “seeks to have this statute
declared unconstitutional[.]” The Attorney General is a necessary party to any
proceeding which involves the validity of a statute. KRS 418.075. “[S]trict
compliance with the notification provisions of KRS 418.075 is mandatory[.]”
Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008). This mandate applies
to appellate proceedings, KRS 418.075(2), and “is reiterated in CR 24.03[.]”
Delahanty v. Commonwealth, 558 S.W.3d 489, 507 (Ky.App. 2018). “Among the
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purposes underlying this statute is the right of the people, by the chief law officer,
to be heard on matters affecting the validity of duly enacted statutes.” Maney v.
Mary Chiles Hosp., 785 S.W.2d 480, 481 (Ky. 1990). Gastinger has not provided
the Attorney General with requisite notice of his claim involving the constitutional
validity of KRS 17.510(5)(c). Therefore, even if we agreed with his argument,
relief would not be available on this claim.
Additionally, the substance of his argument is without merit. KRS
17.510(5)(c) provides:
Any employee of the Justice and Public Safety Cabinet
who disseminates, or does not disseminate, registrant
information in good-faith compliance with the
requirements of this subsection shall be immune from
criminal and civil liability for the dissemination or lack
thereof.
(Emphasis added.) The text plainly contradicts Gastinger’s assertion that state
actors are granted complete immunity for dissemination of information about
registrants. State actors can still be liable when their conduct is grossly negligent
or they act in bad faith.
In a related argument, Gastinger asserts it is actionable that DOC has
published on its KOOL website that he is a convicted felon when his registration
requirement, and consequent placement on the SOR and KOOL, is based on his
Colorado misdemeanor conviction.
The circuit court determined Gastinger was not named as a felon on
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the SOR or KOOL. There is no evidence in the record before us to support
Gastinger’s repeated assertions to the contrary. Further, Gastinger has not
addressed his complaints regarding the information included in his KOOL listing
with the Division of Probation and Parole. Therefore, the circuit court did not err.
For the foregoing reasons, we affirm the Franklin Circuit Court’s
opinion granting summary judgment to the appellees and dismissing Gastinger’s
claims.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE,
KENTUCKY STATE POLICE:
Gregory Ward Butrum
Louisville, Kentucky Brenn Oliver Combs
Frankfort, Kentucky
BRIEF FOR APPELLEE,
JUSTICE AND PUBLIC SAFETY
CABINET:
Edward A. Baylous II
Frankfort, Kentucky
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