Kvech v. New Mexico Department of Public Safety (987 F. Supp. 2d 1162, 2013)

United States District Court for the District of New Mexico 2013-11-30

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION AND AMENDED ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Motion for Summary Judgment (Qualified Immunity), filed September 28, 2012 (Doc. 22)(“MSJ”). The Court held a hearing on May 20, 2013. The primary issues are: (i) whether Defendant Regina Chacon violated Plaintiff James Kvech’s rights protected under the Fourteenth Amendment to the Constitution of the United States of America by not removing his name from the New Mexico sex offender registry and sending a letter to Kvech telling him that he needed to continue registering as a sex offender; (ii) whether federal law protecting Kvech’s liberty interest and establishing his procedural due-process rights was clearly established at the time of Chacon’s actions in 2006 to 2010; and (iii) whether federal statutory immunity protects Chacon. The Court concludes that Chacon’s conduct infringed on Kvech’s constitutionally protected liberty interest, because her conduct in not removing Kvech’s name from the New Mexico sex offender registry amounted to a false, derogatory, and stigmatizing statement that injured Kvech’s reputation, and altered his legal status in New Mexico, and that she did not provide Chacon a hearing or opportunity to challenge her conclusion that his Colorado conviction was an equivalent offense under New Mexico law. The Court also concludes, however, that the law at the time was not clearly established; it was not clear that any hearing was necessary to determine that an out-of-state conviction was equivalent to a sex offense, when the person who had been convicted of a sex offense in another state was required to register as a sex offender in that other state. The Court will grant the motion for summary judgment, because Chacon is protected by qualified immunity. Although the qualified immunity issue disposes of the case, the Court notes that, under the statutory immunity analysis, the Court would deny the motion, because there is a disputed question whether Chacon acted in good faith.

FACTUAL BACKGROUND

The affidavits and exhibits demonstrate that the following facts are undisputed. There are factual issues, but they are not material.

The State of New Mexico Department of Public Safety (“the DPS”) has employed Chacon since 2000. See Second Affidavit of Regina Chacon ¶ 1, at 1, executed September 26, 2012, filed September 28, 2012 (Doc. 22-l)(“Second Chacon Aff.”); MSJ ¶ 1, at 9 (setting forth this fact); Plaintiffs Response to Defendant’s Motion for Summary Judgment at 2-3, filed November 26, 2012 (Doc. 29)(“Response”)(not disputing this fact). Since 2007, Chacon has served as the Assistant Bureau Chief of the DPS’ Law Enforcement Records Bureau, which is responsible for maintaining the central registry under Section 29-llA-5(c) of the New Mexico Sex Offender Registration and Notification Act, N.M. Stat. Ann. §§ 29-11A-1 to 29-11A-10 (“the New Mexico SORNA”). Second Chacon Aff. ¶ 1, at 1; MSJ ¶ 1, at 9 (setting forth this fact); Response at 3 (not disputing this fact). Chacon is not a law enforcement officer. See First Affidavit of Regina Chacon ¶ 4, at 1, executed March 16, 2012, filed March 20, 2012 (Doc. 5-l)(“First Chacon Aff.”); MSJ ¶2 (setting forth this fact); Response at 3 (not disputing this fact).

On October 30, 2006, Kvech pled guilty to misdemeanor Unlawful Sexual Contact, Colo.Rev.Stat. § 18-3^04(l)(a), which says that a person is guilty of unlawful sexual contact if the “actor knows that the victim does not consent”; the statute does not include as an element force or age. Response ¶ 1, at 4 (setting forth this fact). See Reply ¶ 1, at 7 (not disputing this fact). By Judgment of Conviction and Sentence entered on November 6, 2006, Kvech was convicted in the District Court of Arapahoe County, Colorado, of what the judgment described as “Sex Assault 3.” Second Chacon Aff. ¶ 5, at 2. See MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). The Colorado Judgment of Conviction and Sentence states that Kvech pled guilty to “Sex Assault 3— unspecified,” a misdemeanor, contrary to Colo.Rev.Stat. 18-3-404; it does not state any findings of fact regarding the victim’s age or if force was used. Judgment of Conviction and Sentence at 1, filed September 28, 2012 (Doc. 22-2 & 29-4)(“Colo. Judgment”). See Response ¶ 3, at 5 (setting forth this fact); Reply ¶ 3, at 7 (not disputing this fact). Colo.Rev.Stat. § 18-3-404(2)(b) defines unlawful sexual contact as a class 4 felony “if the actor compels the victim to submit by use of such force, intimidation, or threat”; Kvech was not, however, convicted of the class 4 felony that would have required force as an element to the crime. See Colo. Judgment at 1; Response ¶4, at 5 (setting forth this fact); Reply ¶4 (not disputing this fact). The Colorado court sentenced Kvech to 198 days of time served and two years of probation. See Second Chacon Aff. ¶ 5, at 2; MSJ ¶ 3, at 9 (setting forth this fact); Response at 3 (not disputing this fact). As an express part of the Colo. Judgment, the Colorado District Court imposed conditions of release on Kvech, including that he must not have contact with “children under the age of 18 unless authorized by Probation”; that he must “register as a sex offender” in Colorado within five days after entry of judgment; that he was allowed to transfer his probation supervision to New Mexico from Colorado; and that, if he moved to New Mexico, he must, if required by local law, register as a sex offender in New Mexico. Second Chacon Aff. ¶ 6, at 2. See MSJ ¶ 4, at 9 (setting forth this fact); Response at 3 (not disputing this fact). Pursuant to Kvech’s Colorado conviction, Colorado law required him to register as a sex offender once a year for ten years; he could then petition the court to release him from his registration requirement. See Facsimile Transmission from Karen 1/n/u at the Arapahoe County Sheriffs Office to Teresa Hernandez, Sex Offender Coordinator in New Mexico at 1-2, sent September 17, 2010, filed November 26, 2012 (Doc. 29-3); Response ¶ 2, at 5 (setting forth this fact); Reply ¶ 2, at 7 (not disputing this fact).

Kvech’s written condition of probation, which Kvech and his Colorado probation officer signed, included requirements that Kvech must register as a sex offender; that he was not allowed to leave the State of Colorado without his probation officer’s written permission; and that, if he received permission to move, he must re-register as a sex offender within five business days following his move. See Second Chacon Aff. ¶ 7, at 2; Conditions of Probation, filed September 28, 2012 (Doc. 22-2 at 2)(“Conditions”); MSJ ¶ 5, at 10 (setting forth these facts); Response ¶ 5, at 3 (not disputing these facts). Kvech was not subject to Colorado’s Sex Offender Intensive Supervision Probation. See Conditions at 3; Response ¶ 5, at 3 (setting forth this fact); Reply at 5-6 (not disputing this fact). Pursuant to the Colorado court’s order, Kvech registered as a sex offender with the State of Colorado Department of Public Safety, and the Colorado the DPS submitted the information to the national sex offender registry that the Federal Bureau of Investigation and the United States Department of Justice administers. See Second Chacon Aff. ¶ 8, at 3^1; MSJ ¶ 6, at 10 (setting forth this fact); Response at 3 (not disputing this fact).

The Colorado Department of Probation gave Kvech permission to move to Rio Rancho, Sandoval County, New Mexico. See Second Chacon Aff. ¶ 9, at 3; MSJ ¶ 7, at 10 (setting forth this fact); Response at 3 (not disputing this fact). On November 15, 2006, Kvech’s probation officer in Colorado sent by facsimile transmission Kvech’s sentencing information to Deputy Jessica Mascereñas of the Sandoval County Sheriff’s Office, to inform her that Kvech was moving to Sandoval County, New Mexico, and was required to register as a sex offender in Colorado; was allowed to transfer his probation supervision to New Mexico; and that he was required to register as a sex offender in his community of residence in New Mexico if that community so required. See Second Chacon Aff. ¶ 10, at 3; Facsimile Transmission from Patrick B. Duran, Probation of Colorado, to Jessica Mascereñas, New Mexico Sheriff’s Office, sent November 15, 2006, filed September 28, 2012 (Doc. 22-2 at 5)(“Duran Fax”); MSJ ¶ 8, at 10-11 (setting forth these facts); Response ¶ 8, at 3 (not disputing these facts). The documents that Kvech’s probation officer sent to Mascereñas indicated that the charge of “Sex AssaulWOvereome Victim’s Will” was dismissed. Duran Fax at 6. See Response ¶ 8, at 3 (setting forth this fact); Reply at 5-6 (not disputing this fact).

Kvech registered with the Sandoval County Sheriffs Office as a sex offender on November 16, 2006, ten days after the entry of the Colo. Judgment. See Second Chacon Aff. ¶ 14, at 5; Sandoval County Sheriffs Office Sex Offender Registration 90 Days Verification at 1, signed February 15, 2007, filed September 28, 2012 (Doc. 22-2 at ll)(“Feb. 15, 2007 Verification”); MSJ ¶ 12, at 12 (setting forth this fact); Response at 4 (not disputing this fact). Masereñas registered Kvech and processed the paperwork according to N.M. Stat. Ann. § 29-llA-4(B), including Kvech’s legal name and any other names used, date of birth, social security number, current address, place of employment, a complete set of fingerprints, a DNA sample, Kvech’s photograph, and identifying physical information. See Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 12-13 (setting forth these facts); Response at 4 (not disputing these facts). Kvech signed and acknowledged that he was required to renew his registration with the Sheriffs Office by February 15, 2007, and again by May 16, 2007, August 16, 2007, and November 16, 2007. See Feb. 15, 2007 Verification at 1; Second Chacon Aff. ¶ 14, at 5; MSJ ¶ 12, at 13 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriffs Office entered Kvech’s name on the Sandoval County local registry of sex offenders, pursuant to N.M. Stat. Ann. § 29-11A-5(a), and forwarded his registration information to the DPS’s Law Enforcement Records Bureau under N.M. Stat. Ann. § 29-llA-5(B)(l). See Second Chacon Aff. ¶ 15, at 5; MSJ ¶ 13, at 13 (setting forth this fact); Response at 4 (not disputing this fact). Based on Kvech’s registration information that the Sandoval County Sheriffs Office sent to the DPS, the DPS entered Kvech’s name on the central registry of sex offenders, and sent his conviction information and fingerprints to the national sex offender registry that the FBI and the DOJ administer. See Second Chacon Aff. ¶ 16, at 5-6; MSJ ¶ 14, at 13 (setting forth this fact); Response at 4 (not disputing this fact). Kvech renewed his sex offender registration on February 15, 2007, and May 15, 2007. See Second Chacon Aff. ¶ 17, at 6; MSJ ¶ 15, at 13 (setting forth this fact); Response at 4 (not disputing this fact).

After Kvech did not renew his registration on August 16, 2007, Mascereñas filed a Criminal Complaint and Affidavit for Arrest Warrant, and on September 5, 2007, a Magistrate Court in Sandoval County found probable cause and issued an arrest warrant against Kvech for failing to renew his registration. See Second Chacon Aff. ¶ 18, at 6; Warrant for Arrest at 13, filed September 28, 2012 (Doc. 22-2 at 12); MSJ ¶ 16, at 13-14 (setting forth this fact); Response at 4 (not disputing this fact). The Magistrate Court bound over Kvech, and a grand jury indicted him for failing to register with the Sheriff pursuant to N.M. Stat. Ann. § 29-llA-4(N); the criminal prosecution proceeded as State v. Kvech, Thirteenth Judicial District Court Cause No. D-1329-CR-07-618. See Second Chacon Aff. ¶ 19, at 6; Bind-Over Order, filed in Sandoval County Magistrate Court November 16, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 19); Grand Jury Indictment, filed in Sandoval County Clerk’s Office November 15, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 20); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). The District Court appointed counsel for Kvech and ordered him released from custody on his own recognizance; the District Attorney prosecuted the case. See Second Chacon Aff. ¶ 19, at 6; Order of Appointment, filed in Sandoval County Magistrate Court September 12, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 17); Order of Release, filed in Sandoval County Magistrate Court September 26, 2007, filed in federal court September 28, 2012 (Doc. 22-2 at 18); MSJ ¶ 17, at 14 (setting forth this fact); Response at 4 (not disputing this fact). Chacon and the DPS were not involved in Kvech’s criminal prosecution for failing to register, but the Sandoval County Sheriffs Office provided to the DPS copies of the criminal complaint, arrest warrant affidavit and warrant, and subsequent notification that Kvech had been arrested and incarcerated on the charge. See Second Chacon Aff. ¶ 20, at 6-7; MSJ ¶ 18, at 14 (setting forth this fact); Response at 4 (not disputing this fact). On November 7, 2007, the State of [New Mexico] extradited Kvech to Colorado; the Sandoval County Sheriffs Office notified the DPS of the extradition, and suspended Kvech’s sex offender registration requirements in New Mexico. See Second Chacon Aff. ¶ 21, at 7; MSJ ¶ 19, at 14 (setting forth this fact); Response at 4 (not disputing this fact).

On January 7, 2008, the Arapahoe County, Colorado Sheriffs Office notified the DPS that Kvech was released from the Colorado jail for time served and was relocating back to Sandoval County; the Arapahoe County Sheriffs Office also sent by facsimile transmission a form that Kvech signed, stating that he understood and acknowledged his duty to register as a sex offender pursuant to Colorado law, and informing Kvech that he must register within five business days of being released with the local law enforcement agency where he lived. See Second Chacon Aff. ¶ 22, at 7; Facsimile Transmission from Deputy f/n/u Donahue, Arapahoe County Sheriffs Office, Colorado, to Teresa Hernandez, Sex Offender Coordinator in New Mexico at 1-2, sent January 7, 2008, filed September 28, 2012 (Doc. 22-3, at 1); MSJ 20, at 14-15 (setting forth this fact); Response at 4 (not disputing this fact), the DPS notified the Sandoval County Sheriff that Kvech was relocating back to Sandoval County, and also sent Kvech a letter informing him that, based on his status as a convicted sex offender in Colorado, he “may meet the requirement to register as a sex offender” in New Mexico, and advising him to register with the Sandoval County Sheriffs Office. Second Chacon Aff. ¶ 23, at 7-8; Facsimile from Teresa Hernadez to Sandoval Sex Offender Registry at 3-4, sent January 7, 2008, filed September 28, 2012 (Doc. 22-3 at 3). See MSJ ¶21, at 15 (setting forth this fact); Response at 4 (not disputing this fact). On January 15, 2008, Kvech re-registered with the Sandoval County Sheriffs Office as a sex offender, and signed and acknowledged that he was required to verify his registration every ninety days, ie., by February 14, 2008, May 15, 2008, August 14, 2008, and November 15, 2008. See Second Chacon Aff. ¶ 24, at 8; Sex Offender Registration 90 Days Verification at 5, signed January 15, 2008, filed September 28, 2012 (Doc. 22-3 at 5); MSJ ¶22, at 15 (setting forth this fact); Response at 4 (not disputing this fact). The Sandoval County Sheriffs Office entered Kvech’s name on the Sandoval County local registry of sex offenders and forwarded the registration information to the DPS’s Law Enforcement Records Bureau. See Second Chacon Aff. ¶ 25, at 8; MSJ ¶23, at 16 (setting forth this fact); Response at 4 (not disputing this fact). Based solely on Kvech’s registration information that the Sandoval County Sheriffs Office sent to the DPS, the DPS entered Kvech’s name on the central registry of sex offenders, and sent his conviction information and fingerprints to the national sex offender registry. See Second Chacon Aff. ¶ 26, at 8; MSJ ¶ 24, at 16 (setting forth this fact); Response at 4 (not disputing this fact). Kvech renewed his registration with the Sandoval County Sheriffs Office on February 12, 2008, May 15, 2008, August 14, 2008, and November 13, 2008; the Sheriffs Office notified the DPS of each renewal. See Second Chacon Aff. ¶ 27, at 8-9; MSJ ¶ 25, at 16 (setting forth this fact); Response at 4 (not disputing this fact). When Kvech made the annual renewal of his registration on November 13, 2008, the Sheriffs Office re-registered Kvech and processed the paperwork that N.M. Stat. Ann. § 29-llA-4(B, E) required, and set up a schedule for Kvech to renew every ninety days, with the first renewal scheduled for February 12, 2009. See Second Chacon Aff. f 28, at 9; Sex Offender Registration 90 Days Verification at 6, signed November 13, 2008, filed September 28, 2012 (Doc. 22-3 at 6); MSJ ¶26, at 16 (setting forth this fact); Response at 4 (not disputing this fact).

In the criminal case against Kvech for failing to renew his registration, Kvech filed a motion to dismiss; the Honorable Louis P. McDonald, Division V, Judge of the Thirteenth Judicial District, State of New Mexico, held a hearing on the motion on October 23, 2008, which Chacon attended. See Transcript of Proceedings at 2, 9, taken October 23, 2008, in the Thirteenth Judicial District Court, County of Sandoval, State of New Mexico, filed November 26, 2012 (Docs. 29-6 to 29-12)(“New Mexico Transcript”); Response ¶ 5, at 5 (setting forth this fact); Reply ¶ 5, at 7 (not disputing this fact). The hearing consisted of oral argument by counsel, and questions and comments from the bench, but Judge McDonald did not rule at the hearing. See New Mexico Transcript at 29-33, Reply ¶ 5, at 7 (setting forth this fact). Kvech’s counsel asked Chacon at the hearing whether she admitted “that under New Mexico law, our statute does not require registration for misdemeanor contact”; Chacon replied: ‘Tes, sir.” New Mexico Transcript at 17:2-4 (Bargas, Chacon). See Response ¶ 15, at 6-7 (setting forth this fact); Reply ¶ 15, at 9 (setting forth this fact). On November 20, 2008, Judge McDonald entered an Order granting Kveeh’s motion to dismiss the charge of failing to register: Judge McDonald listed three findings:

1)That on October 30, 2006 in Arapahoe County, Colorado, the defendant plead [sic] guilty to Unlawful Sexual Contact contrary to Section 18-3-404(l)(a), D.R.S., a misdemeanor,

2) That defendant’s conviction for Unlawful Sexual Contact is not a “sex offense” or “equivalent” offense that requires him to register as a sex offender pursuant to the New Mexico Sex Offender Registration and Notification Act (SORNA), § 29-11A-1 et seq. NMSA1978.

3) That Defendant’s Motion to Dismiss is well taking and shall be granted.

Order on Defendant’s Motion to Dismiss at 7, filed in the Thirteenth Judicial District, County of Sandoval, State of New Mexico on November 20, 2008, filed in federal court September 28, 2012 (Doc. 22-3 at 7)(“Judge McDonald’s Order”). See Second Chacon Aff. ¶ 29, at 9; MSJ ¶ 27, at 16-17 (setting forth these facts); Response ¶27, at 4 (not disputing these facts). Kvech’s criminal defense attorney sent a copy of Judge McDonald’s order to the DPS, which it received around December 12, 2008. See Second Chacon Aff. ¶ 30, at 9; MSJ ¶ 28, at 17 (setting forth this fact); Response ¶ 28, at 4 (not disputing this fact). Chacon had actual knowledge of Judge McDonald’s ruling. See Letter from Roger Bargas, Attorney for James Kvech, to Department of Public Safety, Attn.: Regina Chacon, sent December 3, 2008 (Doc. 22-3 at 9); Response ¶ 7, at 5 (setting forth this fact); Reply ¶ 7,, at 8 (not disputing this fact). Chacon did not remove Kvech from the sex offender registration until July 12, 2010. See Letter from Regina Chacon to James Kvech, sent July 12, 2010, filed September 28, 2012 (Doc. 22-3 at 25)(“July 12, 2010 Letter”); Response ¶ 9, at 6 (setting forth this fact); Reply ¶8, at 8 (not disputing this fact). As a the DPS employee, Chacon had the authority to remove Kvech from the sex offender registration and to relieve him of his registration requirements, see New Mexico Transcript at 10-11; Response ¶ 13, at 6 (setting forth this fact); Reply ¶ 13, at 9 (not disputing this fact), if the applicable statute and pertinent the DPS policies regarding the registration of convicted sex offenders allowed, see Second Chacon Aff. ¶ 40, at 12-13; Reply ¶ 13, at 9 (setting forth this fact).

Kvech renewed his registration as a sex offender with the Sandoval County Sheriffs Office on February 12, 2009, and the Sheriffs Office notified the DPS of the renewal; Kvech renewed his registration without the Sheriffs Office or anyone at the DPS taking affirmative action telling him to do so. See Second Chacon Aff. ¶ 31, at 9-10; MSJ ¶29, at 17 (setting forth this fact); Response at 4 (not disputing this fact). This date was the last time Kvech registered as a sex offender in New Mexico. See Second Chacon Aff. ¶ 32, at 10; MSJ ¶30, at 17 (setting forth this fact); Response at 4 (not disputing this fact). On February 13 or 14, 2009, the Rio Rancho Police Department arrested Kvech for disorderly conduct, and booked him into the Sandoval County Detention Center in Bernalillo, New Mexico. See Second Chacon Aff. ¶ 33, at 10; MSJ ¶ 31, at 17 (setting forth this fact); Response ¶ 31, at 4 (not properly controverting this fact). He was released on. February 17, 2009, and, according to the Affidavit for Arrest Warrant, filed in Sandoval County March 6, 2009, filed in federal court November 26, 2012 (Doc. 22-3 at 11 & 29-2 at 2)(“Affi-davit for Arrest Warrant”), submitted by Rebecca Gonzales, Deputy Sheriff and Detective at the Sandoval County Sheriffs Office, Kvech signed “a form from the Sandoval County Detention Center that stated he was required to register with the county Sheriff within ten (10) days of his release,” pursuant to the New Mexico SORNA, and that he was required to register by March 3, 2009. Affidavit for Arrest Warrant at 2. Under N.M. Stat. Ann. § 29-llA-7(B) and regulations promulgated by the DPS pursuant to the New Mexico SORNA, a sex offender who is arrested on any criminal charge and then released from a prison, detention center, or jail is required to re-register with the local county Sheriff within ten days following his or her release from custody. See Second Chacon Aff. ¶ 34, at 10; MSJ ¶ 32, at 18 (setting forth this fact); Response at 4 (not disputing this fact). On March 5, 2009, Gonzales contacted the DPS and spoke to Theresa Hernandez, “who stated she had spoken to her supervisor Regina Chacon. Mrs. Chacon advised that James Kvech is still required by the New Mexico Department of Public Service to register as a sex offender and abide by all of the Sex Offender Requirements Act and Guidelines.” Affidavit for Arrest Warrant at 3.

On March 6, 2009, Gonzales filed a Criminal Complaint and Affidavit for Arrest Warrant in the Magistrate Court of Sandoval County, charging Kvech with failing to re-register under the New Mexico SORNA within ten days after being released from custody. See Second Chacon Aff. ¶ 35, at 10; MSJ ¶ 33, at 18 (setting forth this fact); Response at 4 (not disputing this fact). The Sheriffs Office sent to the DPS copies of the Criminal Complaint and Affidavit, and a copy of a signed, but unfiled, Arrest Warrant, which the DPS received on March 16, 2009; the Sheriffs Office made the decision to charge Kvech and did not send any other documents to the DPS regarding the charge. See Second Chacon Aff. ¶ 36, at 10; MSJ ¶ 34, at 18 (setting forth this fact); Response ¶ 34, at 4 (not disputing this fact). Chacon does not have personal knowledge of the outcome or subsequent proceedings, if any; neither she nor anyone else at the DPS made the decision to charge Kvech. See Second Chacon Aff. ¶ 36, at 10; MSJ ¶ 34, at 18 (setting forth this fact); Response ¶ 34, at 4 (not disputing this fact).

After Chacon received and reviewed Judge McDonald’s Order, Chacon studied the facts, circumstances, and elements of Kvech’s Colorado crime conviction, compared them with the essential elements of the statutory list of New Mexico offenses that are listed in the New Mexico SORNA as “sex offenses,” and determined whether it was an “equivalent” crime under the New Mexico SORNA:

I determined that what the Colorado judgment described as “Sex Assault 3” was, in fact, “Unlawful Sexual Contact” in violation of Section 18 — 3—404(l)(a), C.R.S., and I reviewed the statute and the charge. The charge to which Plaintiff pled guilty alleged that Plaintiff “unlawfully and knowingly subjected [victim] to sexual contact, and the defendant [Plaintiff] knew the victim did not consent[.]” See Exhibit A-14. I obtained copies of the court file related to the Colorado criminal proceedings and all of the police reports from the criminal investigation conducted by the Glenwood Village, Colorado Police Department that led to Plaintiffs arrest and conviction of Unlawful Sexual Contact. I determined that the evidence utilized to charge Plaintiff, and to which Plaintiff had pleaded guilty, established that Plaintiff had used force to penetrate the victim’s vagina with his penis, against the victim’s will; for example, the victim’s statement to police included the facts that on the date and time charged, the victim was “afraid” and had “tried to pull away from [Plaintiff]” but that Plaintiff had “pinned her down on the bed with one hand holding both of her wrists above her head” as he penetrated her. I also determined that the victim was 17 years old at the time of Plaintiffs sexual assault on her, and therefore was a minor under New Mexico law. See excerpts from Affidavit of Probable Cause for Arrest Warrant, Exhibit A-15.

Second Chacon Aff. ¶ 37, at 11-12 (citing People’s Added Count(s), filed in the District Court of Arapahoe County, Colorado, on October 30, 2006, filed in federal court September 28, 2012 (Doc. 22-3 at 17), as Exhibit A-14; and Affidavit of Probable Cause for Arrest Warrant in Arapahoe County, Colorado, filed September 28, 2012 (Doc. 22-3 at 21)(“Affidavit of Probable Cause for Arrest Warrant”), as Exhibit A-15). See MSJ ¶ 35, at 18-19 (setting forth these facts); Response ¶ 35, at 4 (not disputing these facts). Chacon did not review any potential defenses Kvech may have had in Colorado. See New Mexico Transcript at 18; Response ¶ 14, at 6 (setting forth this fact); Reply ¶ 14, at 9 (not disputing this fact). Chacon concluded that Kvech’s Colorado conviction was the “equivalent” of the New Mexico sex offense of Criminal Sexual Penetration in the third degree, defined as “all criminal sexual penetration perpetrated through the use of force or coercion,” N.M. Stat. Ann. § 30-9-ll(F), a statutorily listed “sex offense” under the New Mexico SORNA that requires the convict to register as a sex offender in New Mexico. Second Chacon Aff. ¶ 38, at 12. See MSJ ¶36, at 20 (setting forth this fact); Response at 4 (not disputing this fact). Chacon did not give Kvech an opportunity to respond to the allegations which she reviewed in determining that he was required to register as a sex offender. See Second Chacon Aff. ¶ 37, at 11-12; Response ¶ 16, at 7 (setting forth this fact); Reply ¶ 16, at 9 (not disputing this fact).

On June 3, 2010, Chacon sent a letter to Kvech stating that, based on her review, Kvech was still required to register under the New Mexico SORNA; Kvech did not register with the local county sheriff. See Second Chacon Aff. ¶ 39, at 12; Letter from Regina Chacon to James Kvech, sent June 3, 2010, filed September 28, 2012 (Doc. 22-3 at 24); MSJ ¶ 37, at 20 (setting forth this fact); Response at 4 (not disputing this fact). When Chacon conducted this review and sent the letter to Kvech, “it was her understanding” that she should determine' whether Kvech’s prior conviction was the “equivalent” of any of the defined New Mexico “sex offenses” under the New Mexico SORNA based on all the facts and circumstances of the case, including, for example, police reports; after she sent the letter to Kvech, the DPS changed its policy, and began limiting such a review to the out-of-state statutes themselves and the filed court papers, and did not include extrinsic documents such as police reports, witness statements, or transcripts of testimony. Second Chacon Aff. ¶ 40, at 12-13. See MSJ ¶ 38, at 20-21 (setting forth this fact); Response at 4 (not disputing this fact). Because of the new the DPS policy, Chacon reviewed Kvech’s file again, and, based on the Colo. Judgment and the related court filings, and on the elements of “Unlawful Sexual Contact” as defined in Colo.Rev.Stat. § 18-3-404(l)(a), Chacon concluded that there was no evidence of Kvech’s sexual penetration through the use of force or coercion. See Chacon Aff. ¶ 41, at 13; MSJ ¶ 39, at 21 (setting forth this fact); Response at 4 (not disputing this fact). On July 12, 2010, Chacon sent Kvech a letter informing him that he was not required to register under the New Mexico SORNA. See Second Chacon Aff. ¶ 41, at 13; July 12, 2010 Letter; MSJ ¶ 39, at 21 (setting forth this fact); Response at 4 (not disputing this fact).

PROCEDURAL BACKGROUND

On January 24, 2012, Kvech filed his Complaint of Damages for Violation of Civil Rights, filed in the First Judicial District, County of Santa Fe, State of New Mexico, filed in federal court March 14, 2012 (Doc. l-l)(“Complaint”) against Defendants the State of New Mexico Department of Public Safety, Regina Chacon, and John Does 1-10. The Complaint alleges that the Defendants, acting under color of state law, deprived Kvech of life, liberty, and property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States of America. Kvech brought his due process claim pursuant to 42 U.S.C. § 1983. See Complaint ¶¶ 27-32, at 6-7. The Court dismissed with prejudice the 42 U.S.C. § 1983 claim against the DPS and all of the state-law tort claims against both Defendants. See Stipulated Order Dismissing with Prejudice Parts of Complaint, filed May 8, 2012 (Doc. 12). Chacon moves the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter summary judgment in her favor as to the remaining claims set forth in the Complaint, based on qualified immunity and statutory immunity. See MSJ at 1.

Under her qualified immunity argument, Chacon argues that the “stigma plus” requirement means a person must suffer more than having his of her reputation stigmatized, such as the loss of employment, licensure, or another tangible benefit. MSJ at 21-22. In the context sex offender registries, the Supreme Court of the United States has said that requiring sex offenders to register does not violate a cognizable liberty interest, because, at least under the Connecticut registry requirements at issue in the case, the convicted offender already had a “procedurally safeguarded opportunity to contest” the conviction. MSJ at 22-24 (citing Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003)). Chacon notes that, under the United States Court of Appeals for the Tenth Circuit law, there may be a procedural due process claim when a state official requires a person who has not been convicted of any sex offense to register on the sex offender registry, but that the law is not clearly established when a person has been convicted of a sex offense in another state. See MSJ at 24-26 (citing Gwinn v. Awmiller, 354 F.3d 1211 (10th Cir.2004); Brown v. Montoya, 662 F.3d 1152 (10th Cir.2011)).

Chacon argues that the undisputed evidence shows that Kvech was convicted of a sex offense in Colorado, Unlawful Sexual Contact, in violation of- Colo.Rev.Stat. § 18-3-404(l)(a), and was afforded all thé procedural safeguards attendant to a conviction; that the Colorado district court required Kvech to register as a sex offender in Colorado, which Kvech did; that the Colorado authorities sent Kvech’s sex offender information to the national sex offender registry; and that the Colorado court and probation authorities allowed Kvech to move to New Mexico on the condition that he register as a sex offender in New Mexico if New Mexico officials required registration. See MSJ at 26. Chacon contends that the “only issue” is whether Kvech’s Colorado conviction constitutes an “equivalent” offense to one of the New Mexico statutory sex offenses under the New Mexico SORNA that would compel Kvech to register, and that this is a matter of statutory interpretation and methodology of which “reasonable minds may differ.” MSJ at 26-27. Looking to the elements of the Colorado statute under which Kvech was convicted — that the defendant unlawfully and knowingly subjected the victim to sexual contact knowing that the victim did not consent — Chacon acknowledges that the “statutory definition, standing alone,” would not constitute a sex offense under the New Mexico SORNA, but she contends that the evidence from his conviction demonstrate that Kvech’s Colorado conviction was an “equivalent” of the New Mexico sex offense of Criminal Sexual Penetration in the third degree, in violation of N.M. Stat. Ann. § 30-9-ll(F) — defined as “criminal sexual penetration perpetrated through the use of force or coercion.” MSJ at 27. Chacon asserts that the New Mexico SORNA requires a person to register as a sex offender in New Mexico if that person has been convicted of a statutorily listed sex offense in New Mexico or an equivalent offense in any other jurisdiction, but that the New Mexico SORNA does not define the “key phrase ‘their equivalents in any other jurisdiction,’ ” give any guidelines on how to determine whether a particular criminal conviction in another state is equivalent to a New Mexico offense, or specify whether to look at the statutory elements alone or to consider the facts and circumstances of the crime. MSJ at 28.

While Chacon admits that Tenth Circuit law is clearly established “that a state official cannot require sex-offender registration where there is no conviction of a sex offense,” she argues that the law is not clearly established

that a state official cannot look behind the face of the statute — to consider such documents as indictments, plea agreements, grand jury testimony, police reports, etc. — to determine whether an out-of-state sex offense of which an offender has been convicted and ordered to register is ‘equivalent’ to one of the New Mexico sex offenses.

MSJ at 28. She argues that the law was not clearly established that she had to make the determination whether Kveeh’s Colorado conviction was equivalent to a New Mexico sex offense under the New Mexico SORNA based solely on the statutory elements rather than on the underlying facts and circumstances; regardless, a § 1983 claim requires the violation of the United States Constitution or a federal law, and not simply the violation of a state statute. See MSJ at 29.

Chacon also argues that she is protected through statutory immunity under 42 U.S.C. § 16929, part of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-16962. See MSJ at 29-30. Chacon contends that Congress requires states to maintain a jurisdiction-wide sex offender registry, specifies the sex offenses requiring registration, specifies the frequency of registration, requires the states to notify convicted sex offenders of the registration requirements, and mandates that the states submit registration information to the FBI and the DOJ Department of Justice, among other things. See MSJ at 30. Congress provided that “[t]he Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies, officers, employees, and agents shall be immune from liability for good faith conduct under this subchapter.” MSJ at 30 (quoting 42 U.S.C. § 16929). Chacon argues that she acted in good faith based on her understanding of the facts and applicable law, and therefore, that she is immune from liability based on statutory immunity. See MSJ at 30-31.

Kvech responds that Chacon is not entitled to qualified or statutory immunity, because she disregarded Judge McDonald’s order “that clearly stated Plaintiff was not required to register as a sex offender and his Colorado misdemeanor conviction is not an ‘equivalent’ offense” under the New Mexico SORNA, and because Chacon “usurped her power and added elements to Plaintiffs conviction and increased his registration requirements, a clear violation of Plaintiffs procedural due process rights.” Response at 1. Regarding the qualified-immunity defense, Kvech argues that it is well established that being wrongly placed on a sex offender registry is a legitimate infringement on a person’s constitutional right to liberty, invoking procedural due process protections and satisfying the stigma plus test, “because it couples governmental defamation with an alteration in legal status.” Response at 8 (citing Brown v. Montoya, 662 F.3d at 1171; Gwinn v. Awmiller, 354 F.3d at 1222-23). Kvech contends that being placed on the sex offender registry alters a person’s legal status, because failing to register under the New Mexico SORNA is a fourth degree felony and can lead to imprisonment; the registered sex offender must provide a photograph and a description of distinguishing features, give a DNA sample; and register every ninety days for life. See Response at 9 n. 1. Kvech argues that the statutory elements of his Colorado conviction are the equivalent of battery in New Mexico, and that Chacon added the element of force to determine that the Colorado conviction is the equivalent of New Mexico’s Criminal Sexual Contact in the fourth degree. See Response at 9-10.

Kvech contends that he did not receive the appropriate level of process when Chacon classified him as a sex offender under the New Mexico SORNA, because Chacon relied on “allegations outside of the Colorado record, without affording Plaintiff an opportunity to respond to and defend himself against the allegations.” Response at 11. In his view, Gwinn v. Awmiller and Brown v. Montoya set the floor for the process Chacon owed him, which include “notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Response at 10-11. “Defendant Chacon relied upon allegations outside of the record without providing Plaintiff an opportunity to present evidence in his defense, an opportunity to respond to the allegations or an explanation of the decision, and thus violated Plaintiffs procedural due process protections.” Response at 11. Kvech argues that, under these same authorities, his procedural due-process constitutional right was clearly established at the time Chacon classified him as a sex offender under the New Mexico SORNA. See Response at 12. He asserts that it is not necessary to find a decision declaring the specific action unlawful, so long as the contours of the right were sufficiently clear so that a reasonable official would understand that his or her actions violated the right. See Response at 12. Kvech argues that his situation is closely related to Gwinn v. Awmiller, where the Tenth Circuit held that placing a person who had not been convicted of a sex offense on the sex offender registry was “sufficient damage to his reputation” and “significantly altered his status as a matter of law to implicate his liberty interest.” Response at 13. The plaintiff in that case had not been convicted for a sex offense — he had been charged with sexual assault and robbery, but the charge for sexual assault was dropped after he pled guilty to robbery— but the “factfinder relied upon a written report containing allegations outside of the record in order to require Mr. Gwinn to register as a sex offender outside the prison walls.” Response at 13. Kvech argues that Chacon likewise improperly viewed facts outside his record of conviction, making his case analogous to Gwinn v. Awmiller. See Response at 13-14. Similarly, he points to Brown v. Montoya, where the Tenth Circuit held that the plaintiffs constitutional right was clearly established: the probation officer required the plaintiff to register as a sex offender, even though the plaintiff pled guilty to two counts of false imprisonment, which is not a sex offense under the New Mexico SORNA, because the probation officer used his own understanding of the New Mexico SORNA and acquired information outside the record of conviction to determine that the plaintiff should register. See Response at 15. The probation officer removed the plaintiff from the sex offender registry after a criminal court issued a written ruling that the plaintiff should be removed from the registry. See Response at 15. Kvech argues that Chacon also relied on allegations outside the record and used her own interpretation of the New Mexico SORNA to require him to register as a sex offender, but that, unlike the officer in Brown v. Montoya, did not remove Kvech from the sex offender registry when the criminal court’s written ruling stated that Kvech’s Colorado conviction was not equivalent to a sex offense under the New Mexico SORNA. See Response at 15-16. Kvech distinguishes his case from Connecticut Department of Public Safety v. Doe, where the plaintiffs were “convicted sex offenders and unquestionably subject to Connecticut’s sex offender law and registration requirements”; Kvech argues that he was not clearly subject to the New Mexico SORNA’s registration requirements, because Chacon had to determine if Kvech’s Colorado conviction was an equivalent to a sex offense under the. New Mexico SORNA. Response at 14. Kvech contends that Chacon acted at least recklessly, if not intentionally or maliciously, when she forced him to register as . a sex offender. See Response at 17.

Kvech argues that Chacon is not entitled to statutory immunity, because she acted in bad faith by considering “allegations not in the record” when determining that Kvech’s Colorado conviction was the equivalent of a New Mexico sex offense, requiring him to register as a sex offender. Response at 17. Kvech points specifically to that Chacon did not remove Kvech from the registry and told him that he needed to continue to register, even after she received Judge McDonald’s ruling that Kvech was not required to register as a sex offender in New Mexico. See Response at 17-18.

Chacon’s Reply emphasizes that Kvech was convicted in Colorado for Unlawful Sexual Contact, that the offense “unquestionably constitutes a ‘sex offense’ under Colorado law, requiring registration as a sex offender in Colorado,” and that Kvech registered as a sex offender in Colorado before moving to New Mexico. Reply at 1 & n. 1. Chacon argues that the issue is not whether the Colorado offense is an equivalent of a sex offense in New Mexico — the issue upon which Judge McDonald ruled— but the issue is whether the law was clearly established at the time that a state official would violate an individual’s constitutional due process rights by determining without a subsequent hearing that the individual’s sex offense conviction in one state also constituted a sex offense under the law of a different state. See Reply at 1-2.

The issue here is not whether Ms. Chacon was correct or incorrect as a matter of substantive New Mexico law, or whether Judge McDonald was correct; or whether Ms. Chacon needed .to base her 'determination solely upon the statutory elements of the offense (as opposed to using police reports, witness statements, etc.); or whether it might have been better, wiser or more fair for the New Mexico legislature in SORNA to create a process, with notice and the right to be heard, for resolving such questions of statutory interpretation. Rather, the issue is whether the law was clearly established regarding the constitutional due process rights allegedly violated.

Reply at 2. Chacon argues that the law was not clearly established, be cause at the time she was making the determination, there was one Tenth Circuit opinion on the issue—Gwinn v. Awmiller—and that case involved a prisoner who had never been convicted, in any forum, of any sex offense. See Reply at 3. Chacon asserts that Brown v. Montoya is irrelevant to the “clearly established” analysis, because the Tenth Circuit issued the opinion on November 8, 2011-after Chacon’s acts in 2006-10. Reply at 3 n. 3.

After Chacon notified the Court that briefing on the MSJ was completed, she submitted the Notice of Supplemental Authority, filed January 16, 2013 (Doc. 33)(“Supp.”), attaching State v. Hall, 2013-NMSC-001, 294 F.3d 1235, a Supreme Court of New Mexico opinion issued on December 5, 2012, that discussed the proper method to determine if an out-of-state offense qualifies as an equivalent sex offense under the New Mexico SORNA See Supp. at 1-2. Chacon noted that the Supreme Court of New Mexico’s position aligns with Chacon’s approach, not Judge McDonald’s, thus demonstrating that, during the relevant time period, the law was not clearly established on this issue. See Supp. at 1-2.

The Court held a hearing on May 20, 2013. Chacon stated that Congress set out the basic framework for state sex offender registries, requiring states to create a registry, to obtain certain information from convicted sex offenders including identifying marks and a DNA sample, and to publish the registry on the Internet; included in the federal statute is that the officers, employers, and agents shall be immune from liability for good faith conduct under the act. See Tr. at 3:23-45:3 (Dickman). Chacon asserted that she is protected under statutory immunity, but that the Court may not need to address that point, because her qualified immunity argument would make the issue moot. See Tr. at 5:5-10 (Dickman). Although the federal statute sets out the basic framework, Chacon said that each state’s laws differ in terms of what offenses are characterized as registrable sex offenses. See Tr. at 5:11-25 (Dickman). Chacon explained that, in New Mexico, the sex offender must register with the local county Sheriff, who is then responsible for obtaining information from the sex offender, maintaining a registry for that county, and sending the information to the DPS in Santa Fe, which publishes the statewide sex offender registry on the Internet. See Tr. at 6:9-21 (Dickman). Each state determines how often sex offenders must update their registration information-some states require every ninety days, like New Mexico, while others require updates once a year, after ten years, or otherwise. See Tr. at 6:25-7:6 (Dickman). In New Mexico, Chacon explained, it is a fourth degree felony for a sex offender to fail to register. See Tr. at 6:22-25 (Dickman).

Reviewing the facts of the case, Chacon emphasized that Kvech was convicted for a sex offense in Colorado, which meant he was required to register as a sex offender in Colorado, see Tr. at 8:24-9:10 (Dick-man), and that, after Kvech stopped registering, the Sheriff filed a criminal complaint against Kvech: “[I]t’s undisputed that Ms Chacon was not involved” in filing the criminal complaint, obtaining the arrest warrant, arresting Kvech, or procuring the grand jury indictment, Tr. at 10:7-15. Chacon noted that she and the DPS were not parties to the criminal case against Kvech for failing to register, and, thus, that court did not have personal jurisdiction over them; she argued that, in other situations when a person thinks that his or her out-of-state conviction is not equivalent to an offense under the New Mexico SORNA, the person can file a declaratory action naming the DPS and the Sheriff, giving the court personal jurisdiction over those parties. See Tr. at 11:3-11 (Dickman). Chacon also noted that, although Judge McDonald dismissed the criminal complaint against Kvech, a subsequent ease from the Supreme Court of New Mexico reveals that Judge McDonald’s approach — comparing only the elements of the Colorado crime with the statutory elements of New Mexico sex offenses — is incorrect, and that the correct approach looks beyond the elements to consider whether a defendant’s actual conduct, had it occurred in New Mexico, would have constituted a registrable offense under the New Mexico SORNA. See Tr. at 11:19-12:6 (Dickman)(citing State v. Hall). The Court asked whether Chacon said that Judge McDonald “got it wrong” because he came to the wrong conclusion about Kvech’s offense, or because he did not use the correct analysis, Tr. at 13:7-10 (Court); Chacon said Judge McDonald did not apply the correct analysis and that, if Kvech’s motion to dismiss came before a New Mexico court today, “there would probably be a different result,” Tr. at 13:11-14:3 (Dickman). Chacon argued that, especially in light of the Supreme Court of New Mexico’s recent decision in State v. Hall, the law was not clearly established. See Tr. at 14:4-14 (Dickman). The Court asked Chacon to articulate Kvech’s theory against her, see Tr. at 14:18-21 (Court); Chacon said that, to her understanding, the claim is that putting Kvech on a sex offender registry without a hearing violated his procedural due-process rights under a stigma-plus analysis, see Tr. at 14:22-15:3 (Dickman). The Court noted that people convicted of sex offenses do not normally receive hearings before they must register, see Tr. at 15:4-5 (Court); Chacon agreed, based on the Supreme Court of the United States’ holding in Connecticut Department of Public Safety v. Doe, and she further said that the offender is normally advised in open court of the requirement to register, see Tr. 15:19-14, 17:1-6 (Dickman). The Court asked what the remedy would be for a person who was wrongfully told to register and proposed an “extreme” example: “Let’s say I have a traffic violation and the Sheriff of Sandoval County decides that I need to register as a sex offender and says we’re going to charge you with a crime, failing to register if you don’t.” Tr. at 17:15-19 (Court). Chacon said, in that situation, the person could move to dismiss the criminal charges for failing to register, or could file a declaratory judgment action. See Tr. at 17:20-18:2 (Dickman). Chacon argued that the person in the hypothetical would not have a remedy under the civil rights statute, although she was not sure if there would be a federal remedy under the Constitution or some other federal statute, but contended that the analysis in the hypothetical is different than that needed for this case, because Kvech was convicted of a sex offense. See Tr. at 19:1-2, 22-25 (Dickman). The Court asked whether this case required it to decide if Kvech’s Colorado offense is an equivalent offense to New Mexico’s sex offenses under the New Mexico SORNA, see Tr. at 20:3-5 (Court); Chacon said no, because there is no clearly established law requiring a New Mexico officer to give a person convicted of a sex offense in another state a hearing before requiring the person to register as a sex offender, see Tr. at 20:12-22 (Dickman). Chacon argued that the clearly established law at the time she was making the decisions was from Connecticut Department of Public Safety v. Doe and Gwinn v. Awmiller; she says Gwinn v. Awmiller stands for the proposition that, if the person was not convicted of a sex offense, then he or she must be given procedural due process through notice and a hearing, but if the person was convicted of a sex offense, he or she has been given all the process that is due. See Tr. at 23:16-24 (Dickman). Chacon said that the New Mexico SORNA does not require any procedural process and that it leaves the decision to the Sheriffs discretion. See Tr. at 24:19-21 (Dickman).

The Court noted that most of the facts were not in dispute and asked Kvech whether there were any issues of material fact that would preclude summary judgment. See Tr. at 26:3-12 (Court). Kvech responded that a triable fact included whether Chacon’s actions, especially in disregarding Judge McDonald’s opinion, were made in bad faith. See Tr. at 26:16-21 (Dominguez). When the Court asked about the role of Judge McDonald’s opinion, Kvech said that, because Chacon disregarded the opinion, Kvech had to disclose his status as a sex offender to his employer for an additional year and a half. See Tr. at 26:22-27:8 (Court, Dominguez). The Court asked whether being convicted for failing to register and being required to register were two separate issues, and whether anything would prevent the local Sheriff from re-charging Kvech after learning about the recent Supreme Court of New Mexico case and forcing a court to engage in a new analysis. See Tr. at 27:9-12, 28:7-11 (Court). Kvech said that the DPS and Chacon had the authority to remove Kvech’s name from the registry, and without his name on the registry, the local Sheriff could not charge him for failing to register; regarding the Court’s question about whether the Sheriff could ask a court to re-analyze Kvech’s prior crime, Kvech said a good argument could be made for double jeopardy, because the previous case was dismissed with prejudice. See Tr. at 27:24-28:22 (Dominguez, Court). The Court asked whether Judge McDonald’s opinion was limited to state law issues, or if it involved federal issues, see Tr. at 28:23-29:6 (Court), and Kvech said it was purely a matter of state law, see Tr. at 29:7-9 (Dominguez). The Court noted that Chacon was acting purely under state law, and asked Kvech to define the federal issue before the Court, see Tr. at 29:17-22 (Court); Kvech said his claim is that, after Judge McDonald’s order, it was clear under state law that he was not required to register, yet he was further prosecuted for failing to register, which implicated his “constitutional rights and privileges to due process.” Tr. at 30:7-16 (Dominguez). Kvech argued that his case is distinct from Connecticut Department of Public Safety v. Doe, and when the Court asked whether he could point to a case that showed that the law was clearly established; Kvech said that Gwinn v. Awmiller included similar facts and established that a government official should not look outside the court record to require someone to register as a sex offender. See Tr. at 30:23-32:15 (Dominguez, Court). When the Court asked whether Kvech had to register as a sex offender in Colorado, Kvech argued that his conviction required him to register in Colorado for ten years, and that the conviction was a misdemean- or; when he moved to New Mexico, Chacon looked to alleged conduct from a police report and added to the conviction elements of coercion or force, making it a felony. See Tr. at 32:16-34:9 (Court, Dominguez). The Court asked whether, had the DPS and Chacon given Kvech a hearing, disagreed with Judge McDonald’s opinion, and ordered Kvech to continue registering as a sex offender, that process would have satisfied the due-process requirements, see Tr. at 35:25-26:2 (Court); Kvech said that would not have satisfied due process, because Judge McDonald’s ruling bound the DPS, and they did not give Kvech a hearing or opportunity to present witnesses, see Tr. at 36:7-11 (Dominguez). The Court asked whether Kvech’s claim was truly a procedural due process claim, because he said that, even with a hearing, he would have pursued a claim had the DPS and Chacon come to the opposite conclusion of Judge McDonald’s opinion, see Tr. at 37:7-12 (Court); Kvech said that his claim would have existed based on the “willful conduct,” “complete disregard of a judicial opinion,” and “the slippery slope of governmental power.” Tr. at 37:13-24 (Dominguez). The Court asked why the federal constitution and a federal court - should care about the state agency and state court’s actions, see Tr. at 37:25-38:4 (Court); Kvech said Chacon’s actions — disregarding Judge McDonald’s opinion, using extrinsic evidence, not providing Kvech an opportunity for a hearing and to bring witnesses on his behalf, and not providing a written ruling on why she believed he was required to register — violated his procedural due-process rights. See Tr. at 41:9-18 (Dominguez).

In response to the Court’s question why Chacon sent the second letter to Kvech, stating that Kvech was no longer required to register, Chacon said that she re-evaluated Kvech’s file after the DPS policy changed to require looking only at the elements of the statute and sent the second letter to comply with the new the DPS policy. See Tr. at 43:4-20 (Court, Dick-man). Chacon argued that, to make a procedural due-process claim, a plaintiff cannot simply come into court under § 1983 and say his due-process rights were violated: Kvech’s burden is to identify a clearly established federal body of law, from Supreme Court of the United States, the Tenth Circuit, or the weight of all the other circuits, that shows that some sort of process is due before a person who was convicted for an out-of-state sex offense is required to register in New Mexico. See Tr. at 43:21-44:7 (Dickman). Chacon argued that the relevant cases—Gwinn v. Awmiller, Brown v. Montoya, and Connecticut Department of Public Safety v. Doe—“all involve some official deciding that someone had committed a sex offense, a registrable sex offense where that person had never been convicted of a sex offense,” and that, in this case, there was no doubt that Kvech was convicted of a sex offense in Colorado. Tr. at 44:8-45:14 (Dickman). Chacon asserted that Kvech’s argument that she acted willfully and in bad faith is not relevant to the § 1983 claim, but is relevant to the statutory immunity claim, which the Court does not need to reach, because Kvech failed to meet his burden to point to a clearly established law creating a federal right to some kind of process. See Tr. at 46:6-20 (Dick-man). Chacon emphasized that, even though she sent a letter to Kvech to register as a sex offender, Kvech did not register again after February 12, 2009, which introduces a causation issue into the analysis. See Tr. at 46:21-47:3 (Dickman).

LAW REGARDING SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘showing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221, 2013 WL 3462484, at *23 (D.N.M.2013) (Browning, J.) (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original). Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Bea