11th Circuit tackles sex offender residency ban amid child predator death penalty push | #childpredator | #kidsaftey | #childsaftey

(CN) — A rare en banc hearing before the full 11th Circuit U.S. Court of Appeals on Tuesday may foreshadow the legal battles awaiting Alabama’s newest tough-on-crime measure.

On Feb. 5, the state Legislature overwhelmingly passed House Bill 41, the “Child Predator Death Penalty Act,” making certain non-homicide sexual crimes against children under 12 punishable by death. HB41, now awaiting Governor Kay Ivey’s signature, mirrors laws in Florida, Tennessee and elsewhere designed to challenge the Supreme Court’s 2008 Kennedy v. Louisiana ruling that such punishments are unconstitutionally cruel and unusual.

On Tuesday, the 11th Circuit grappled with an arguably lower bar: Bruce Henry’s 14th Amendment challenge to Alabama’s residency restriction barring certain sex offenders from living with minors, including their own children.

Henry, a Tuscaloosa County resident, pleaded guilty in 2013 to federal child pornography possession and served 18 months in prison, completed sex offender treatment and has had no further offenses. In 2021, after marrying and fathering a son, Alabama law barred him from living with or overnighting with any minor, including his own child, forcing family separation without individualized risk assessment.

Henry sued in 2021, claiming the law violates his fundamental right to parental care and family integrity. In January 2024, U.S. District Judge R. Austin Huffaker Jr. agreed, declaring the provision facially unconstitutional. A three-judge panel of the 11th Circuit upheld the ruling in April 2025.

Alabama Deputy Solicitor General Robert Overing sought to reverse those decisions in Atlanta, asking the full court to look at Henry’s case through a very narrow, historically specific lens. Instead of discussing a broad right of parents, he argued the court must define the right more precisely: as the right of a person convicted of a child sex or child pornography offense to live with a child. Once the right is framed that way, he said, history does not support treating it as fundamental.

“We have to be more granular, because the right to care, custody and control is way too general to answer difficult, controversial questions of constitutional law,” Overing argued, leaning on old family law cases that discussed parents who committed “gross misconduct.”

The judges repeatedly pressed Overing on how far his theory could go, with several asking whether a state could strip or severely limit parental rights for any felony, or for conduct like adultery or drug use, as long as it could be labeled “gross misconduct,” but Overing would not draw a clear outer boundary.

“We have not exhaustively developed a comprehensive theory, and this court doesn’t need to do so,” he said. “The case is complicated enough without resolving every kind of wrinkle.”

Overing also defended Alabama’s statute as targeted rather than extreme. The law does not erase all parental rights, he emphasized, but only bars residing with or having overnight visits with minors. And it is “limited to offenses that reflect a sexual interest in children,” he said.

He pushed back against calls for individualized hearings, warning that recognizing a stand‑alone “right to a hearing” would be a strange expansion of substantive due process and would “embroil the federal judiciary in the micromanagement of the state family law system.”

Attorney Jeremy Kreisberg, representing Henry, urged the court to start from a simpler premise.

“Our contention is there is a fundamental right to reside with children,” he said. “This law directly and substantially infringes that right, and there is a less restrictive alternative available, which is a system of individualized review.”

Kreisberg argued Alabama’s statute goes too far by categorically denying residence and overnight visits to anyone convicted of certain child sex or child pornography offenses, with no hearing and no chance to show present fitness. He said the constitutional question is not whether the state can ever restrict a dangerous parent but whether it can do so automatically and forever, based solely on an old conviction, without asking whether this particular parent is currently a danger to this particular child.

The judges pressed him hard on the implications. One asked whether even the most egregious abusers retain a fundamental parental right. Kreisberg essentially said yes in structure, but noted that strict scrutiny would then allow the state to impose serious limits or even terminate rights in many cases, especially when supported by history and strong evidence of risk.

The court took the case under submission without indicating a timeline for an opinion.

Separately, during arguments over HB41 at the Alabama House of Representatives on Jan. 27, sponsor Representative Matt Simpson acknowledged the bill was indeed designed to provoke a legal challenge to the Kennedy v. Louisiana, arguing that more such statutes will undermine the court’s finding that the punishment is “unusual.” Essentially, the states hope that even if the courts find the punishment to be cruel, it can no longer be considered unusual and, therefore, no longer be unconstitutional.

“What we’re trying to do is show a consistent change throughout the country, and the more states that can make their argument,” Simpson said, “it gives strength to their argument that the consensus is changing throughout the country.”