Appeals Court Rules Tuscaloosa Sex Offender Has Right To Live With His Child

TUSCALOOSA, AL — A federal appeals court ruled Monday that a Tuscaloosa County sex offender has the constitutional right to live with his small child unless the state of Alabama can argue otherwise regarding its state law.

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In a 96-page opinion issued Monday, the U.S. Court of Appeals for the Eleventh Circuit said that Bruce Henry, who served a federal prison sentence for possessing child pornography, has a fundamental right under the 14th Amendment to live with his son despite a provision of Alabama's sex offender law that permanently prohibits him from residing with a minor because of his conviction.

The federal appeals court ruled that the Constitution protects the right of parents to live with their children regardless of past criminal misconduct, rejecting Alabama's argument that parents convicted of certain sex offenses permanently lose that fundamental right.

The majority of the court also emphasized in its ruling, however, that this decision does not automatically invalidate state law because Alabama has the opportunity to justify the restriction if it can show the law is narrowly tailored to serve a compelling interest in protecting children.

"This case is about the fundamental right of parents to live with their children," the majority wrote. "The State of Alabama says not all parents enjoy this right. It argues instead that entire classes of parents have no fundamental rights at all because they committed state-defined 'misconduct' years before their children were even born."

Court documents show Henry pleaded guilty on federal charges of possessing child pornography in 2013 after investigators found two videos and 348 images of prepubescent and adolescent girls that he had downloaded from the internet.

Prior to his arrest for child pornography, Henry had no history of sexual offenses.

A federal judge sentenced him to 70 months in prison followed by 60 months of supervised release.

After his release in March 2018, court records show Henry completed a qualified sex offender treatment program, participated in individual and group counseling, continued attending weekly Sex Addicts Anonymous meetings, maintained steady employment, attended church and volunteered in the community.

The court noted Henry violated conditions of his supervised release in 2019 by accessing adult pornography and searching for images of teenage girls.

However, rather than revoke his supervised release, a federal judge extended it from 60 months to 96 months, through March 2026.

The opinion states Henry has committed no additional violations after December 2019.

Court records go on to state that Henry and his wife had a son in August 2021.

However, under Alabama's Alabama Sex Offender Registration and Community Notification Act, Henry is barred from living with or staying overnight with the child because the law prohibits parents convicted of a sex offense involving a child, including child pornography offenses, from residing with a minor.

The restriction applies for life and provides no mechanism for an offender to seek relief.

Henry eventually sued the Tuscaloosa County sheriff, the Tuscaloosa County district attorney and the Alabama attorney general in federal court after his son's birth, seeking to block enforcement of the residency prohibition.

A federal district court went on to rule in his favor and declared the law unconstitutional as applied to parents.

A three-judge panel of the Eleventh Circuit later ruled the law violated Henry's fundamental right to live with and raise his child but vacated the district court's broader statewide injunction.

The full appeals court then agreed to rehear the case.

Writing for the majority, Judge Robin S. Rosenbaum said Supreme Court precedent has consistently recognized the right of parents to establish a home and raise their children as one of the nation's oldest fundamental liberty interests.

"Our determination that Henry enjoys a fundamental right to live with his children puts us on the strict-scrutiny track of substantive-due-process analysis," the court wrote. "But that doesn't necessarily mean that Alabama's Act violates Henry's fundamental right. After all, Alabama has articulated a compelling reason for its law: the safety of children."

The court remanded the case to the original appellate panel for further proceedings.

Chief Judge William H. Pryor Jr. dissented, joined by four other judges in whole or in part.

He argued Alabama's restriction appropriately balances the rights of convicted child sex offenders against the state's compelling interest in protecting children.

Judge Pryor also said he would have upheld the law in its entirety.

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