text:
    COMMONWEALTH v. Jonathan E. BROWN.
    SJC-12529
    Supreme Judicial Court of Massachusetts, Essex.
    Argued October 2, 2018 Decided December 11, 2018
    David M. Osborne, Somerville, for the defendant.
    Emily R. Mello, Assistant District Attorney, for the Commonwealth.
    Maura Healey, Attorney General, & Maria Granik, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.
    Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   KAFKER, J.

For over a century the Commonwealth has outlawed living off of or otherwise sharing in money earned by a known prostitute. Historically, "pimps or purveyors" have been understood to be the objects of this prohibition, although no definition of either "pimp" or "purveyor" has ever appeared in the statutory text, currently codified at G. L. c. 272, § 7. Claiming that, without further clarification, the language of this statute is unconstitutionally vague and that he suffered prejudice from jury instructions tracking such language, the defendant, Jonathan E. Brown, seeks reversal of his conviction on a single count of deriving support from prostitution under G. L. c. 272, § 7. We disagree and affirm.

We conclude that G. L. c. 272, § 7, is constitutional, as we construe it to target those who, with the intent to profit from prostitution, live or derive support or maintenance from, or share in the earnings or proceeds of, the known prostitution of others. We reach this conclusion from reading the statutory language in the context of common understanding and ordinary usage, as well as the statute's legislative history and severe penalty provisions, all of which demonstrate with sufficient clarity that G. L. c. 272, § 7, is directed at so-called "pimping." Because a pimp knowingly and intentionally profits from the prostitution of another, he or she differs from the child of a sex worker, a local merchant who sells food to a known sex worker, or a medical professional who provides a sex worker with counselling services; the literal language of the statute may reach all of these individuals, but, unlike a pimp, they lack the intention to profit from the prostitution of another.

Here, the evidence was sufficient for the jury to conclude that the defendant -- who accompanied a woman to a prearranged prostitution transaction and was caught, immediately after leaving the scene with that woman, with the entire proceeds of the transaction hidden in his shoe -- knowingly and intentionally profited from the prostitution of another, and therefore engaged in pimping within the meaning of G. L. c. 272, § 7. While we prospectively clarify the jury instructions to avoid any possible confusion that this statute might apply to those who lack such an intent, we discern no prejudicial or other reversible error in the instant case.

1. Facts. The facts, in the light most favorable to the Commonwealth, are as follows. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

On June 21, 2012, as part of a national antiprostitution "sting" operation, law enforcement officers arranged to meet two women at a hotel in Saugus after responding to Internet advertisements for female prostitution. Police were instructed to watch for two women arriving at the Saugus hotel, and that evening, a police surveillance team observed two women, the defendant, and another man arrive at the hotel in a black motor vehicle. The two men waited in the vehicle in the rear parking lot of the hotel while the women went inside to a hotel room. There, another surveillance team observed as an undercover officer, posing as a customer, agreed with one of the women to have sex for $250. The officer handed the woman $250 in cash, after which he answered a prearranged telephone call and told the two women they had to leave. The women returned to the vehicle and were driven away with the defendant. The police stopped the vehicle and, after frisking the defendant, found the same $250 that the officer had given the woman as payment for sex hidden in the defendant's shoe.

The defendant was subsequently charged and convicted at a bench trial of deriving support from prostitution under G. L. c. 272, § 7, but his conviction was reversed by the Appeals Court in an unpublished memorandum and order pursuant to its rule 1:28 due to the prosecution's errors in its closing argument. See Commonwealth v. Brown, 90 Mass. App. Ct. 1107, 2016 WL 5596255 (2016). Before his second trial, the defendant moved to dismiss the charge, claiming that the statute was unconstitutional for vagueness. That motion was denied. At the second trial, which was tried before a jury, the defendant moved for a required finding of not guilty, relying on the Appeals Court decision in Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 543 N.E.2d 700 (1989), which examined the meaning of the terms "pimp or purveyor" as set out in the statute's legislative history. That motion was also denied. Finally, relying again on Thetonia, the defendant sought supplementary instructions that would change Instruction 7.140 of the Criminal Model Jury Instructions for Use in the District Court (2009) (model jury instruction 7.140). The defendant's requested instruction, based on model jury instruction 7.140, with his requested supplementary language emphasized, is as follows:

"Deriving Support from Prostitution
"The defendant is charged with knowingly deriving support from the earnings of a prostitute. This is commonly known as the 'pimping' statute. Chapter 7 of Section 272 of our General Laws provides as follows: 'Whoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his prostitution ... or shall share in such earnings or proceeds ... shall be punished.'
"In order to prove the defendant guilty of this offense, the Commonwealth must prove three [ (and with the requested changes, four) ] things beyond a reasonable doubt:
"First, that a particular person was engaged in prostitution. A prostitute is a person who engages in common, indiscriminate sexual activity for hire.
"Second, The Commonwealth must prove beyond a reasonable doubt that the defendant knew [ (emphasis in original) ] that such person was a prostitute; and "Third, The Commonwealth must prove beyond a reasonable doubt that the defendant shared in some substantial way in the earnings or proceeds from that person's prostitution.
"Fourth, The Commonwealth must prove beyond a reasonable doubt that the Defendant played a substantial role in facilitating this person's prostitution. For example, it is not enough if the Defendant simply drove the prostitute to a job."

The judge denied the requested supplementary instructions and gave model jury instruction 7.140. The jury found the defendant guilty under G. L. c. 272, § 7, and this appeal followed.

2. Discussion. a. Purpose of G. L. c. 272, § 7. To determine the meaning of G. L. c. 272, § 7, we begin, as we must, with the statutory language, interpreted in light of "ordinary and approved usage" and "sound reason and common sense" (citations omitted). Commonwealth v. Brown, 479 Mass. 163, 166-167, 92 N.E.3d 1189 (2018). The text of G. L. c. 272, § 7, imposes criminal liability when a person (1) knows another person is a prostitute; and (2) lives off or otherwise shares in money that the prostitute earned from prostitution activities or received from a brothel or its employees. In other words, the statute plainly targets third parties who knowingly derive their livelihood or otherwise profit from prostitution. In common vernacular and understanding, the statute appears to target "pimps."

The legislative history confirms such an understanding of this century old provision. See Commonwealth v. Bundy, 465 Mass. 538, 545, 989 N.E.2d 496 (2013), quoting Perry v. Commonwealth, 438 Mass. 282, 285, 780 N.E.2d 53 (2002) ("We cannot interpret statutory language in a vacuum, ignoring the Legislature's purpose in enacting the statute and oblivious to 'the time in which [the language] is used' "). It expressly informs us that the statutory purpose of G. L. c. 272, § 7, is to target "pimps" who profit from "the business of commercialized prostitution." Report of the Commission for the Investigation of the White Slave Traffic, So Called, 1914 House Doc. No. 2281, at 22 (1914 report). A draft version of the original 1910 legislation, consistent with nearly identical contemporary legislation in other States, explicitly defines the prohibited conduct as "pimping." Also, a 1914 report commissioned by the Legislature recommended amending the 1910 statute to better prosecute "pimps and procurers," which it defined as "exploiters of women" who profit from "the business of commercialized prostitution." 1914 report, supra at 20, 22, 82-83. See St. 1914, c. 621 (enacting proposed amendment). Furthermore, G. L. c. 272, § 4B, which criminalizes living off of or sharing in the earnings of a prostitute who is a minor in language that parallels the language of G. L. c. 272, § 7, was introduced as a bill targeting "pimps." Finally, the title of the 1980 session law amending G. L. c. 272, §§ 6 and 7, is "An Act increasing the penalty for a so-called pimp or purveyor." St. 1980, c. 409.

Our case law has also recognized that the statutory language of G. L. c. 272, § 7, must be read in light of its purpose of proscribing pimping. We made this point in passing when we upheld the penalty provision of the statute in Commonwealth v. Lightfoot, 391 Mass. 718, 720-721, 463 N.E.2d 545 (1984) (inferring legislative intent to increase penalties for deriving support or maintenance from prostitute "from the title of the act, 'An Act increasing the penalty for a so-called pimp or purveyor,' St. 1980, c. 409"). The Appeals Court, in Thetonia, further analyzed and clarified the statutory purpose of proscribing pimping when it reversed the conviction of a defendant who, while occasionally receiving small amounts of money from her friend in exchange for driving her friend to prostitution activities, "did not ... engage in pimping" within the meaning of the statute. Thetonia, 27 Mass. App. Ct. at 786-787, 543 N.E.2d 700.

The severity of the penalty imposed for a felony conviction under G. L. c. 272, § 7 -- a five-year maximum sentence with a two-year mandatory minimum sentence -- provides further support that the statute is directed at the serious crime of pimping. By contrast, patronizing an adult prostitute and engaging in prostitution are both misdemeanors punishable by less severe sentences.

The defendant is correct that G. L. c. 272, § 7, absent such construction, could literally be read to cover innocent conduct (e.g., the children of a sex worker who know what their parent does for a living, the local storekeeper who sells food or clothing to a known sex worker, or a medical professional providing counselling or other health care services to a sex worker). We do not think, however, that the common understanding of the statutory text, combined with the clear and express legislative antipimping purpose, would support its application in instances -- such as prosecuting a child for taking a sandwich from his or her mother -- that do not in any way involve pimping and which the defendant himself characterizes as "absurd." See Commonwealth v. Cassidy, 479 Mass. 527, 534, 96 N.E.3d 691, cert. denied, --- U.S. ----, 139 S.Ct. 276, --- L.Ed.2d ---- (2018) ("[w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable" [citation omitted] ). In any event, we do not interpret the prohibition on living off of or sharing in money received from a known prostitute to include the foregoing individuals, who may have knowledge of the prostitution and receive some support or money from the prostitute, but who, unlike a pimp, do not intend for the prostitution to occur.

In short, pimping -- which we define as knowingly and intentionally profiting from the prostitution of another -- is what the Legislature proscribed when enacting the statute that is now G. L. c. 272, § 7.

b. Constitutionality of G. L. c. 272, § 7. The defendant contends that G. L. c. 272, § 7, is unconstitutionally vague. We upheld the constitutionality of an earlier version of the statute shortly after its passage. Commonwealth v. Peretz, 212 Mass. 253, 256, 98 N.E. 1054 (1912). See Lightfoot, 391 Mass. at 719, 463 N.E.2d 545 (holding penalty provision of statute constitutional); Commonwealth v. Roberts, 372 Mass. 868, 868, 362 N.E.2d 904 (1977) (observing that statute has been held plainly constitutional). We now reaffirm the constitutionality of G. L. c. 272, § 7.

In order to prevail on a vagueness challenge, a defendant must show that a statute effects a due process deprivation by failing to provide (1) a reasonable opportunity for a person of ordinary intelligence to ascertain what the statute prohibits; and (2) comprehensible standards that limit prosecutorial and judicial discretion and thus avoid discriminatory or arbitrary enforcement. Commonwealth v. Hendricks, 452 Mass. 97, 102, 891 N.E.2d 209 (2008). A statute will not be found unconstitutionally vague, however, "if it requires a person to conform his conduct to an imprecise but comprehensible normative standard" or "conveys [a] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices" (citations omitted). Commonwealth v. McGhee, 472 Mass. 405, 414, 35 N.E.3d 329 (2015). A criminal statute will not "be construed so strictly as to defeat the obvious intention of the [L]egislature" (citation omitted), Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 480, 536 N.E.2d 318 (1989), particularly "if its scope is substantially clear" despite "[u]ncertainty as to whether marginal offenses are included within the coverage of a statute" (citation omitted), McGhee, supra. As we have often recognized, "[i]f a statute can be made constitutionally definite by a reasonable construction, the court is under a duty to give it that construction" (citation omitted). Great Atl. & Pac. Tea Co., supra at 482, 536 N.E.2d 318.

Here, we think it is sufficiently clear and definite in light of both common and historical understanding that G. L. c. 272, § 7, criminalizes pimping, that is, living off of or sharing in the earnings of a known prostitute with an intent to profit from that person's prostitution. The defendant, citing what he calls "absurd" examples of third parties who might fall within the literal language of the statute (e.g., a child who receives a meal paid for by his or her mother's sex work), contends that the statute is unconstitutionally vague "since on its face it criminalizes any financial relationship with a person known to be a prostitute." We decline, however, to consider a challenge that a criminal statute is "facially vague" when the defendant's "vagueness challenge to the statute does not involve a claim that an overbroad statute threatens interests protected by the First Amendment to the United States Constitution." Hendricks, 452 Mass. at 98 n.1, 891 N.E.2d 209. See Commonwealth v. Walter, 388 Mass. 460, 465-466, 446 N.E.2d 707 (1983) (court will consider whether statute is vague as applied to particular defendant, not "hypothetical application" of statute to others). Here, the defendant did not raise a First Amendment argument. We thus reject his facial challenge to the statute.

Turning to the constitutionality of G. L. c. 272, § 7, as applied to the facts of the defendant's case, we likewise find no merit to that challenge. Our analysis of the common understanding of the statutory language, the legislative history, and the severity of the statutory penalty establishes that, through the statute's prohibition on living off of or sharing in the proceeds of prostitution, the Legislature sought to proscribe the conduct of a pimp: one who knowingly and intentionally profits from the prostitution of another. See, e.g., 1914 report, supra at 22 (describing pimp as someone profiting from "the business of commercialized prostitution"). As so construed, we do not consider G. L. c. 272, § 7, to be "vague as applied" to the actual circumstances of the defendant's case. Walter, 388 Mass. at 466, 446 N.E.2d 707. Unlike the hypothetical prosecutions the defendant imagines, the conduct of the defendant fits within the core concern of the statute. In short, the defendant can only challenge the constitutionality of the statute as applied to him, and consistent with our judicial construction of the statute to target those who intend to profit from the prostitution of another, we hold that G. L. c. 272, § 7, is not unconstitutional as applied to this defendant.

c. Absence of jury instructions. In addition to challenging the constitutionality of G. L. c. 272 § 7, the defendant argues that he was prejudiced by the trial judge's failure to issue his requested jury instructions. These requested instructions would have supplemented model jury instruction 7.140, which essentially repeats the statutory prohibition that makes it a crime for a person, knowing another person to be a prostitute, to share in the earnings or proceeds of that person's prostitution. Because the defendant properly preserved his objection to the judge's denial of his requested instructions, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005). Specifically, a judge's failure to give a requested jury instruction "is reversible error only if the requested instruction was substantially correct; was not substantively covered in the jury charge; and concerns an important issue such that the failure to give the instruction seriously impaired the defendant's ability to present a given defense." Commonwealth v. Deane, 458 Mass. 43, 59 n.15, 934 N.E.2d 794 (2010). Additionally, we consider whether the absence of an instruction clarifying that G. L. c. 272, § 7, expressly requires intent to profit from the prostitution of another caused a substantial risk of a miscarriage of justice. See Commonwealth v. Richardson, 479 Mass. 344, 353, 94 N.E.3d 819 (2018) (where defendant does not request jury instruction at trial, reviewing court applies substantial risk of miscarriage of justice standard).

As explained above, the defendant requested three supplementary instructions. First, he requested that a sentence be added indicating that G. L. c. 272, § 7, "is commonly known as the 'pimping' statute." Second, he requested that the word "substantial" be added to the requirement that he have received support and maintenance from the earnings of a prostitute. Finally, he requested that the following fourth element be added: "Fourth, The Commonwealth must prove beyond a reasonable doubt that the Defendant played a substantial role in facilitating this person's prostitution. For example, it is not enough if the Defendant simply drove the prostitute to a job." On appeal the defendant, relying on Thetonia, further seeks to limit the definition of "pimping" to procuring customers for a client. See Thetonia, 27 Mass. App. Ct. at 786 & n.4, 543 N.E.2d 700 (defining "pimp" as one "who obtains customers ... for a ... prostitute" or "cohabits with a prostitute, lives off her earnings and often solicits for her" [citations omitted] ).

First, we consider the defendant's request to have the jury instructed that G. L. c. 272, § 7, is "commonly known as the 'pimping' statute." We agree that this statement is correct as a matter of legislative history and common understanding. As explained, however, we do not see the necessity for further emphasizing this common understanding in these circumstances. Moreover, without further definition of "pimping," such instruction would provide little additional guidance to the jury.

Second, the defendant's request for an instruction that the Commonwealth must prove that he "shared in some substantial way" in the earnings of prostitution is not an accurate statement of the law. The key factor is the defendant's intention to profit from the prostitution of a known prostitute, not the substantiality of the defendant's gains.

Third, we conclude that the fourth element that the defendant sought to add -- substantial facilitation of another's prostitution -- is not a necessary aspect of "pimping" proscribed by G. L. c. 272, § 7. It is true that standard definitions of "pimping" -- including one suggested by Thetonia -- describe facilitation of, as well as profiting from, prostitution. Yet G. L. c. 272, § 7, makes no mention of facilitation of prostitution (which would include, for example, soliciting for customers) because the Legislature chose to criminalize such conduct under separate sections of G. L. c. 272, not as a required element of G. L. c. 272, § 7. See St. 1910, c. 424 (enacting or amending present G. L. c. 272, §§ 2, 6, 8, 12, and 13 ). See also Commonwealth v. Alfonso, 449 Mass. 738, 744, 871 N.E.2d 1066 (2007) ("Statutes that relate to a common subject matter should be construed together so as to constitute an harmonious whole" [quotations and citation omitted] ).

Finally, we consider whether the jury should have received an instruction, consistent with the statutory interpretation that we provide in this decision, explaining that the prosecution must show that the defendant intentionally profited from the prostitution of another. Although we conclude that such an instruction should be given prospectively, it was not required in the instant case. The Criminal Model Jury Instructions for Use in the District Court required the jury to determine that another person engaged in prostitution, the defendant knew that the other person was engaged in the prostitution, and the defendant received the proceeds from that prostitution. As explained above, the common understanding of this language would be that it targets pimping, and the factual scenario here did not present concerns about innocent activity that might otherwise meet the literal language of the statute. Rather, the defendant's conduct fell within the core concern of the statute. In sum, we conclude that such an instruction was not required in the instant case.

We do decide, however, that the jury instructions for this crime should be expanded prospectively beyond those included in the Criminal Model Jury Instructions for Use in the District Court to avoid prosecution and thus possible conviction for conduct that could not be classified as pimping but might otherwise meet the literal language of the statute. Model jury instruction 7.140 should be modified as follows by inserting the emphasized language and deleting the struck through language:

"Deriving Support from Earnings of a Prostitute
"The defendant is charged with knowingly (deriving support from) (sharing in) the earnings of a prostitute. This statute makes it a crime to engage in 'pimping,' that is, 'knowingly and intentionally profiting from the prostitution of another.'
"Chapter 7 of section 272 of our General Laws provides as follows:
" 'Whoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his prostitution ... or shall share in such earnings [or] proceeds ... shall be punished ....'
"In order to prove the defendant guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt:
"First: That a particular person was engaged in prostitution. A prostitute is a person who engages in common, indiscriminate sexual activity for hire.
"Second: The Commonwealth must prove beyond a reasonable doubt that the defendant knew that such person was a prostitute had knowledge of, and intended to profit from, this person's prostitution; and
"Third: The Commonwealth must prove beyond a reasonable doubt that the defendant shared in some way in the earnings or proceeds from that person's prostitution."

d. Other arguments. The defendant also argues that (1) G. L. c. 272, § 7, lacks a mens rea requirement; (2) the evidence was insufficient to convict him; and (3) the prosecution committed reversible error in its closing argument.

Given our holding that G. L. c. 272, § 7, requires an intent to profit from the prostitution of another, we reject the defendant's argument that this statute lacks a mens rea element.

We also reject the defendant's arguments that the evidence was insufficient to support his conviction when viewed in the light most favorable to the Commonwealth. See Commonwealth v. Bin, 480 Mass. 665, 674, 107 N.E.3d 1146 (2018) (reciting sufficiency of evidence standard). The defendant's main insufficiency argument hinges on his contention that G. L. c. 272, § 7, incorporates the facilitation of prostitution as a necessary element, but for the reasons discussed supra, we reject that argument.

Viewing the evidence in the light most favorable to the Commonwealth, a rational trier of fact reasonably could have inferred from witness testimony and circumstantial evidence that the defendant knowingly and intentionally profited from the prostitution of another. The defendant was in the vehicle in which a woman was driven to a hotel in response to an online advertisement for sexual services, and he waited in the parking lot while the woman went into the hotel to the prearranged prostitution transaction. That woman accepted money for sex and then immediately gave the defendant the money, which he concealed in his shoe. From this conduct the jury could infer that the defendant knew that the woman was a prostitute, knew she had received money for engaging in an act of prostitution, and, by taking the money from her, revealed an intention to profit from prostitution. See Commonwealth v. Matos, 78 Mass. App. Ct. 578, 589-590, 941 N.E.2d 645 (2011) (evidence sufficient to convict defendant under G. L. c. 272, § 7, where he accompanied prostitute to commercial sexual encounter at hotel arranged over Internet, picked her up from hotel, and took all proceeds of transaction).

Finally, we do not agree that any errors in the prosecutor's closing argument require reversal. The defendant makes much of one prosecution witness's equivocation as to whether the defendant was driving the vehicle that transported the two women to and from the hotel or instead may have been in the front passenger's seat. See note 3, supra. Whether or not the defendant was driving, as the prosecution said in its closing argument, the evidence still revealed that he accompanied the prostitute to and from the prearranged prostitution transaction at the hotel and received the proceeds from the transaction. See Matos, 78 Mass. App. Ct. at 589-590, 941 N.E.2d 645 (upholding sufficiency of evidence supporting defendant's conviction where he accompanied prostitute to and from hotel). And the prosecutor's statement that the second woman was a prostitute, which was not objected to below, was harmless in light of the ample evidence that the first woman engaged in a prostitution transaction.

3. Conclusion. For the foregoing reasons, we affirm the defendant's conviction. Additionally, we approve the model jury instructions set out above for future prosecutions under G. L. c. 272, § 7.

So ordered.

      Throughout this opinion we use the term "prostitute" to refer to a person who engages or offers to engage in sexual conduct with another person for a fee because that term appears in the statutory text.

      The statute provides that "[w]hoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his [ (i.e., that person's) ] prostitution ... or shall share in such earnings [or] proceeds ... shall be punished by imprisonment in the state prison for a period of five years.... The sentence of imprisonment ... shall not be reduced to less than two years ...." G. L. c. 272, § 7.

      On direct examination, a police officer identified the defendant as the driver of the vehicle, but on cross-examination, after having his memory refreshed from testimony at an earlier proceeding, he explained that the defendant was in either the driver's seat or the front passenger's seat.

      The defendant was also charged with trafficking of a person for sexual servitude in violation of G. L. c. 265, § 50 (a ), but this charge was dismissed before the first trial, and a nolle prosequi was entered before the second trial.

      "Any male person who, knowing a female person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of such prostitute, or from moneys loaned or advanced to or charged against such prostitution by any keeper or manager or inmate of a house or other place where prostitution is practised or allowed, or who shall tout or receive compensation for touting for such prostitute, shall be guilty of pimping ..." (emphasis added). An Act relative to the procuring and detaining of women for immoral purposes, 1910 House Bill No. 767, § 3. While the draft legislation does not use the word "purveyor," § 1 of the draft legislation, a version of which is codified at G. L. c. 272, § 12, targets "pandering," defined as "procuring" women for prostitution purposes. See id. See also R.G. Latham, A Dictionary of the English Language 668 (1870) (defining "purveyor" as a "[p]rocurer; pimp").
      Several other States have very similarly worded statutes dating from the same time period that define the proscribed conduct as "pimping." See 1910 Cal. Stat. 10 (39th sess., c. 15); 1915 Del. Laws 2095; 1916 W. Va. Acts 1221. For the intense contemporary concern with forced prostitution that inspired State antipimping legislation around this time, see B. Donovan, Respectability on Trial: Sex Crimes in New York City, 1900-1918 at 108 (2016).

      Until 1977, G. L. c. 272, § 7, only applied to female prostitution.

      General Laws c. 272, § 4B, was introduced by the same legislator who sponsored a 1980 amendment to G. L. c. 272, § 7, as "An Act establishing a mandatory prison term for a pimp so-called, or purveyor or other who induces male and female minors to become prostitutes and who derives support from them." 1979 House Bill No. 6753.

      Patronizing a prostitute is punishable by a $5,000 maximum fine or a maximum sentence of two and one-half years, G. L. c. 272, § 53A (b ), while engaging in prostitution is punishable by a $500 maximum fine or a one-year maximum sentence, G. L. c. 272, § 53A (a ). Under G. L. c. 272, § 62, however, a "common nightwalker" (i.e., a prostitute who works at night on the street) may receive a maximum sentence of two and one-half years if convicted three times of that offense.

      This interpretation is consistent with the holdings of appellate courts of other States. See, e.g., People v. Morey, 230 Mich. App. 152, 164, 583 N.W.2d 907 (1998), aff'd, 461 Mich. 325, 603 N.W.2d 250 (1999) (statute that prohibits profiting from prostitution containing knowledge requirement constitutional because it "could not reasonably be applied to entirely innocent conduct"); State v. Yancy, 92 Wash. 2d 153, 157, 594 P.2d 1342 (1979) (statute criminalizing "profiting from prostitution" constitutional because it does not reach "persons engaged in legitimate pursuits" who, while they may receive money from prostitute, lack "an agreement or understanding ... to participate in the proceeds of prostitution activity").

      Indeed, through judicial construction, we have upheld several prostitution-related sections of G. L. c. 272 as constitutional. See Aristocratic Restaurant of Mass., Inc. v. Alcoholic Beverages Control Comm'n (No. 2), 374 Mass. 564, 568, 374 N.E.2d 1192 (1978) ("immoral solicitation or immoral bargaining" provision of G. L. c. 272, § 26, not unconstitutionally vague); Commonwealth v. King, 374 Mass. 5, 10, 372 N.E.2d 196 (1977) ("prostitute" provision in G. L. c. 272, § 53, not unconstitutionally vague); Thomes v. Commonwealth, 355 Mass. 203, 207, 243 N.E.2d 821 (1969) ("common night walker" provision of G. L. c. 272, § 53, not unconstitutionally vague).

      Regardless, we have discussed the hypothetical scenarios the defendant raises in our analysis of the statute, supra.

      The instruction also defines a prostitute as a "person who engages in common, indiscriminate sexual activity for hire." Instruction 7.140 of the Criminal Model Jury Instructions for Use in the District Court (2009).

      See Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 786 n.4, 543 N.E.2d 700 (1989) (defining "pimp" as "man who cohabits with a prostitute, lives off her earnings, and often solicits for her" [citation omitted] ). See also Oxford English Dictionary Online (defining "pimp" as "a man who takes a proportion of the earnings of a prostitute, usually in return for arranging clients, providing protection, etc."). This definition of a pimp as one who facilitates prostitution for profit is long-standing. See, e.g., R. Jameson, A Dictionary of the English Language: By Samuel Johnson and John Walker 286 (1828) (defining "fleshmonger" as "[o]ne who deals in flesh; a pimp").

      Regardless, the jury could reasonably have found that the defendant facilitated the act of prostitution when he accompanied the woman engaged in prostitution to the place of prostitution and helped her conceal the proceeds of that prostitution.

      Similar jury instructions should be used for prosecutions under G. L. c. 272, § 4B, the parallel antipimping statute for a prostitute who is a minor.


source: Caselaw Access Project

author: ENGLANDER, J.

license: Public Domain

text:
    John DOE, Sex Offender Registry Board No. 474362, & another v. SEX OFFENDER REGISTRY BOARD & others.
    No. 17-P-985
    Appeals Court of Massachusetts, Essex..
    Argued April 10, 2018 Decided September 19, 2018
    Carrie Benedon, Assistant Attorney General, for the defendants.
    Kate A. Frame, Salem, for the plaintiffs.
    Present: Green, C.J., Desmond, & Englander, JJ.

      John Doe, Sex Offender Registry Board No. 106929, individually and on behalf of all others similarly situated.

      Kevin Hayden, individually and in his capacity as chair of the Sex Offender Registry Board, and Laurie Myers, individually and in her capacity as executive director of the Sex Offender Registry Board.

   ENGLANDER, J.

The plaintiffs filed this action in 2015 challenging a now-discontinued practice of the Sex Offender Registry Board (SORB or board), under which SORB published the criminal history and identifying information of adjudicated sex offenders who no longer lived in Massachusetts. Pursuant to this practice the plaintiffs' information was displayed on a page of SORB's official Web site, under the heading "moved out of state." The plaintiffs' claims are brought against SORB and two of its officers, alleging violations of Federal and State constitutional due process rights, as well as other violations of State law. This interlocutory appeal comes before us from the denial of a motion to dismiss that raised a variety of issues -- including, in particular, the propriety of claims for damages brought against the two SORB officers in their individual capacities. Because the Federal and State constitutional claims for damages against the officers fail as a matter of law, we reverse that portion of the Superior Court order denying the motion to dismiss, and affirm the remainder.

Background. As this is an appeal from a ruling under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we take the well-pleaded facts from the plaintiffs' "amended complaint for declaratory and injunctive relief and for damages" (amended complaint). See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011).

The structure of the sex offender registration statute has been frequently described. See, e.g., Moe v. Sex Offender Registry Bd., 467 Mass. 598, 600-603, 6 N.E.3d 530 (2014). The statute requires a sex offender to provide certain personal information, including name and current address, to the board. G. L. c. 6, § 178E. The board classifies sex offenders within a system of three different levels based on risk of reoffense and degree of dangerousness to the public. G. L. c. 6, § 178K. A sex offender's registration level has consequences for public access to that offender's information. Level one offenders are entitled to greater information privacy. See G. L. c. 6, § 178D. Level two and three sex offenders, by contrast, have their information published in an online database available to the public. See id. "Sex offender" is a defined term, and for present purposes it is relevant that it is defined to encompass persons who live, work, or attend school in Massachusetts. See G. L. c. 6, § 178C.

On or around June of 2015, SORB began the practice of publishing the sex offense history and other identifying information of sex offenders who had previously been registered but who were no longer living, working, or attending school in Massachusetts. The information was posted on SORB's Web site under the category entitled "moved out of state." The practice was initiated without any notification of the reposting to the affected individuals -- there were more than 600 such persons. The information published included photographs and criminal histories. SORB did not verify that the information was current or accurate before posting it -- and some of the information allegedly was inaccurate.

The plaintiffs sued on their own behalf and on behalf of a purported class. The allegations with respect to plaintiff John Doe, Sex Offender Registry Board No. 106929 (Doe No. 106929), well-illustrate why the plaintiffs were concerned: Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history.

Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph -- this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.

The original complaint was filed on September 10, 2015. After some initial skirmishes, SORB took down the "moved out of state" portion of its Web site on or about September 29, 2015. Sometime later the plaintiffs filed an amended complaint which, for the first time, sought damages.

The amended complaint contains nine counts. Described generally, it includes counts for violations of both procedural and substantive due process, under both the State and Federal Constitutions. It also contains a separate count under 42 U.S.C. § 1983 (2012), the Federal statute that provides remedies for deprivations of Federal constitutional rights by State actors. The thrust of these due process claims is that the publication of the plaintiffs' identifying and criminal information constituted an impairment of their fundamental liberty and privacy interests, and was done without notice or an opportunity to be heard, and in clear violation of the Massachusetts sex offender registration laws. In addition, the amended complaint alleges violations of various State laws, including the right to privacy.

The defendants are SORB, the State entity, as well as two officers of SORB, each of whom is sued in both their official and individual capacities. Defendant Kevin Hayden was the chair of SORB when the complaint was filed; defendant Laurie Myers was its executive director.

The defendants eventually countered the amended complaint with the motion to dismiss at issue in this appeal. The thrust of that motion is that the plaintiffs do not have a claim for damages, both because (1) SORB's Web site publication did not violate procedural or substantive due process rights, and (2) even if such a violation occurred, the individual defendants have immunity from a damages claim because the constitutional rights the defendants allegedly violated were not "clearly established." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The motion to dismiss also argues that the requests for declaratory and injunctive relief are moot, because the allegedly offending portion of the Web site has been taken down. Notably, the motion is a partial motion that does not address several counts of the complaint -- for example, it does not touch at all on the privacy claim under Massachusetts law.

The Superior Court judge denied the motion. He reasoned, in relevant part:

"The court is unpersuaded by the defendants' argument that the individual defendants could not have known that the dissemination of the plaintiffs' information would amount to a violation of [F]ederal law. Given the numerous recent cases where Massachusetts courts have highlighted the due process, privacy, and liberty interests implicated by the [I]nternet dissemination of sex offenders' information to the public, the court is not convinced by the defendants' assertion that it would not have been clear to the individually named defendants that disseminating information of sex offenders who no longer have a duty to register in Massachusetts could amount to a violation of those individuals' constitutional rights."

The defendants appeal from the Superior Court judge's order, invoking our jurisdiction under the doctrine of present execution. For the reasons discussed below, we reverse in part and affirm in part.

Discussion. 1. The claims at issue. Before diving into substance, we need to first clearly define what is before us. The motion to dismiss under appeal focused on those counts of the amended complaint that allege constitutional due process violations, but the motion did not distinguish between Federal and State constitutional rights. The amended complaint, however, contains separate counts under both the Federal and Massachusetts Constitutions, for deprivations of both procedural and substantive due process. The distinction between claims under the Federal and State Constitutions is important: first, because under the case law the due process rights secured by the two Constitutions are not identical, and second, because the remedies available for violations of the two Constitutions may not be the same. Deprivations of Federal constitutional rights are remedied under § 1983, which includes, in appropriate circumstances, a damages remedy. In contrast, it is unclear whether damages are available for deprivations of State constitutional rights where, as here, the plaintiffs have not alleged a "threats, intimidation or coercion" claim under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I.

The upshot of these differences between Federal and State law is that each of the plaintiffs' claims must be separately analyzed, paying attention not only to the substantive law but also to the remedies available, and to the applicable defenses and government immunities.

2. Procedural due process -- Federal Constitution. The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The plaintiffs' procedural due process argument is that they were deprived of a "liberty" or "property" interest when SORB published their photographs and criminal histories, and that SORB did so without providing the fundamentals of due process -- notice and an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner' " [citation omitted] ). The defendants counter that the plaintiffs did receive due process, because the plaintiffs received notice and an opportunity to be heard when they first were classified and registered, at a time when they were present in Massachusetts. The defendants contend that because the plaintiffs received due process at the time of registration and classification, no further process was due before the plaintiffs' names and information were republished as "moved out of state."

The difficulty with the plaintiffs' Federal due process argument, however, comes at the threshold; the plaintiffs must first demonstrate a deprivation of a constitutionally protected liberty or property interest. See González-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010), cert. denied sub nom. Feliciano v. Molina, 562 U.S. 1257, 131 S.Ct. 1568, 179 L.Ed.2d 476 (2011) (first step in procedural due process analysis "asks whether there exists a liberty or property interest which has been interfered with by the State"); LaChance v. Commissioner of Correction, 463 Mass. 767, 773, 978 N.E.2d 1199 (2012) (similar proposition). Here the plaintiffs argue that the interests at stake are their reputations and their privacy -- they assert a right not to have their identifying information published, along with their criminal histories, by the Commonwealth. The United States Supreme Court addressed a similar allegation in Paul v. Davis, 424 U.S. 693, 697, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), where police chiefs in Kentucky had published the plaintiff's name and photograph on a flyer, under the heading "Active Shoplifters." The Supreme Court rejected the plaintiff's procedural due process claim in Paul, ruling as a matter of law that the State-imposed injury to reputation at issue could not qualify as a deprivation of "liberty" or "property" unless the plaintiff could also show loss of "a right or status previously recognized by [S]tate law" -- such as, for example, loss of government employment. Id. at 711, 96 S.Ct. 1155. The Court held that absent such an additional injury the plaintiff might have a claim under State defamation law, but he did not have a § 1983 claim for deprivation of his constitutional rights. See id. at 710-712, 96 S.Ct. 1155.

The reasoning in Paul is the touchstone for analyzing the plaintiffs' Federal claims here, as it has been in other cases, discussed infra, that have addressed Federal procedural due process issues in connection with State sex offender notification laws. The plaintiffs complain of harms to their reputation and their privacy resulting from the publication of (in some instances false) information about their criminal histories. While the alleged harms, if proved, are no doubt very serious, under Paul they would not by themselves rise to the level of liberty or property interests protected by the Federal due process clause. , See Doe v. Attorney Gen., 426 Mass. 136, 143, 686 N.E.2d 1007 (1997) ("Under the Fourteenth Amendment a person's reputation is not a protected liberty or property interest unless the circumstances involve something more, such as a change in the person's rights or status protected by State law").

Given the posture of the appeal before us, we do not today decide whether the plaintiffs have stated a Federal due process claim. Whether or not the plaintiffs have stated such a claim, we are satisfied that the individual defendants, Hayden and Myers, have immunity from the § 1983 damages claim against them. This is because as employees of a State executive agency, Hayden and Myers are immune from suit under § 1983 unless their actions violated clearly established constitutional rights. See Harlow, 457 U.S. at 818-819, 102 S.Ct. 2727 ; LaChance, 463 Mass. at 777, 978 N.E.2d 1199.

There was no clearly established Federal due process right applicable to the plaintiffs' circumstances at the time of the posting in 2015. As the court stated in LaChance, "A right is only clearly established if, at the time of the alleged violation, 'the contours of the right allegedly violated [were] sufficiently definite so that a reasonable official would appreciate that the conduct in question was unlawful' " (citation omitted). LaChance, 463 Mass. at 777, 978 N.E.2d 1199. See Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). The plaintiffs can point to no case establishing such sufficiently definite contours to the Federal procedural due process right they assert, particularly in light of the long-standing interpretation of § 1983 in Paul.

Our conclusion is bolstered by several more recent decisions of Federal Courts of Appeals, which have refused to find violations of Federal due process in the specific context of State sex offender registry laws. In Cutshall v. Sundquist, 193 F.3d 466, 478-482 (6th Cir. 1999), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000), for example, the United States Court of Appeals for the Sixth Circuit rejected an argument that the public notification provisions of Tennessee's sex offender registry law violated procedural due process. The court relied on Paul to conclude that no fundamental liberty or privacy rights were violated by the notification provisions. Id. at 479-480, 482. See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.), cert. denied, 543 U.S. 817, 125 S.Ct. 56, 160 L.Ed.2d 25 (2004) (no right "to be free from the registration and notification requirements" of Alaska's sex offender registry statute); A.A. v. New Jersey, 341 F.3d 206, 211-214 (3d Cir. 2003) (New Jersey's law providing for notification, including on Internet, of sex offender's home address does not violate fundamental privacy rights). But cf. E.B. v. Verniero, 119 F.3d 1077, 1105-1111 (3d Cir. 1997) (notification provisions of New Jersey's "Megan's Law" implicated liberty interests protected by Federal due process).

We do not find a contrary construction of Federal law in the decisions of the Supreme Judicial Court or this court. While many Massachusetts appellate decisions have addressed what procedural due process rights exist in connection with the Massachusetts sex offender registration and public notification laws, the cases that have found violations of procedural due process have been based on the Massachusetts Declaration of Rights, not on the Federal Constitution. See the following representative chronology: Doe, 426 Mass. at 144, 686 N.E.2d 1007 (finding violation of procedural due process under Massachusetts Declaration of Rights; court "need not pass on the plaintiff's Federal procedural due process claim"); Doe v. Attorney Gen., 430 Mass. 155, 163, 715 N.E.2d 37 (1999) (finding violation of State procedural due process; stating, "We need not pass on Doe's Federal procedural due process claim"); Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784-785 & n.9, 793, 882 N.E.2d 298 (2008) (finding violation of due process rights under Massachusetts Declaration of Rights without addressing Federal due process); Moe, 467 Mass. at 599, 615-616, 6 N.E.3d 530 (finding violation of due process rights under Massachusetts Declaration of Rights without addressing Federal due process); Doe, Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry Bd., 84 Mass. App. Ct. 537, 539-543, 998 N.E.2d 793 (2013) (finding due process violation based on Massachusetts Declaration of Rights without addressing Federal due process). Indeed, the decisions of our appellate courts that discuss Paul in the context of the sex offender registration law acknowledge that procedural due process rights are more limited under Federal law. See Doe, 426 Mass. at 143-144, 686 N.E.2d 1007 ; Opinion of the Justices, 423 Mass. 1201, 1229-1231, 668 N.E.2d 738 (1996).

In sum, given the state of the Federal case law, set forth above, we conclude that the Federal procedural due process violation asserted by the plaintiffs was not clearly established as of June, 2015.

3. Substantive due process -- Federal Constitution. The plaintiffs' Federal substantive due process claim also fails to provide a basis for relief. As discussed above, there is an initial question whether the plaintiffs can meet the threshold requirement to show a deprivation of a Federal liberty or property interest here. But perhaps more saliently, Federal substantive due process claims of this type require a showing of government conduct that is so "egregious" that it "shocks the conscience." Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In Lewis, for example, the United States Supreme Court rejected a substantive due process claim against a police officer who had engaged in a high speed chase of a suspect, where the chase was allegedly conducted with deliberate indifference to life, and where the chase resulted in the death of the plaintiff's decedent. Id. at 836-838, 854-855, 118 S.Ct. 1708. The Court held as a matter of law that such conduct did not meet the "shocks the conscience" requirement for a substantive due process claim. Id. at 854, 118 S.Ct. 1708. See González-Fuentes, 607 F.3d at 880-886 (reimprisonment of participants released on electronic supervision program does not rise to level of substantive due process violation); J.R. v. Gloria, 593 F.3d 73, 76, 79-80 (1st Cir. 2010) (finding physical and sexual abuse of foster children resulting from defendants' failure to act does not rise to level of substantive due process violation, noting that deliberate indifference does not per se shock the conscience).

Lewis and the other Federal cases establish that there is no substantive due process claim here. It is true that the allegations, if proved, arguably show a clear violation of Massachusetts law. The Massachusetts statute defines a "sex offender" subject to registration and notification as a person who resides, works, or goes to school "in the [C]ommonwealth" (emphasis supplied) -- yet the plaintiffs here did not live, work, or go to school in Massachusetts when SORB republished their photographs and criminal histories. G. L. c. 6, § 178C. Even assuming, however, that this was a clear violation of State law, the actions complained of do not approach the conduct that previously has been found to qualify as a Federal substantive due process violation. Contrast Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) ("Illegally breaking into the privacy of the petitioner, [struggling] to open his mouth and remove what was there, [and forcing] extraction of his stomach's contents" violated due process clause of Fourteenth Amendment to the United States Constitution); McIntyre v. United States, 336 F.Supp.2d 87, 109 (D. Mass. 2004) (finding purposeful disclosure of confidential informant, knowing that revealing information could result in informant's death, to be "conscience-shocking"). Certainly it was not clearly established, in 2015, that SORB's decision to publish the plaintiffs' sex offender information violates Federal substantive due process.

Because as a matter of law the individual defendants did not violate any "clearly established" Federal due process rights, the damages claims against them under the Federal Constitution and § 1983 must be dismissed.

4. Procedural due process -- Massachusetts Constitution. As discussed above, unlike their Federal claim, the plaintiffs' procedural due process claim under the Massachusetts Declaration of Rights finds considerable support in the case law. See Doe, Sex Offender Registry Bd. No. 941 v. Sex Offender Registry Bd., 460 Mass. 336, 338, 951 N.E.2d 344 (2011), citing Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 100, 697 N.E.2d 512 (1998) ; Coe v. Sex Offender Registry Bd., 442 Mass. 250, 257-258, 812 N.E.2d 913 (2004). These Massachusetts cases make clear that under Massachusetts law the notification provisions of the sex offender registry statute do implicate fundamental liberty and privacy rights, thereby triggering due process protections. See Doe, Sex Offender Registry Bd. No. 941, 460 Mass. at 338, 951 N.E.2d 344 (" 'Sex offenders have a constitutionally protected liberty and privacy interest in avoiding registration and public dissemination of registration information' that arises from their classification, and therefore, they are entitled to procedural due process ..." [citation omitted] ); Doe, 426 Mass. at 143, 686 N.E.2d 1007 ("The plaintiff [sex offender] has sufficient liberty and privacy interests constitutionally protected by art. 12 that he is entitled to procedural due process before he may be required to register and before information may properly be publicly disclosed about him"). See also Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813, 926 N.E.2d 187 (2010) ; Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 775, 857 N.E.2d 485 (2006) ; Doe, Sex Offender Registry Bd. No. 972, supra ; Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 614, 966 N.E.2d 235 (2012). Furthermore, the plaintiffs' State law due process allegations are sufficient to survive the motion to dismiss, inasmuch as they allege that the plaintiffs did not receive notice or an opportunity to be heard before SORB republished their information. We leave the final resolution of this claim to further factual development.

As to the remedies for any such State constitutional violations, declaratory and injunctive relief are potentially available. The Supreme Judicial Court has long held that a person may sue the responsible State officer, in his or her official capacity, to enjoin deprivations of one's State constitutional rights, and that no immunity prevents such a suit. See Lane v. Commonwealth, 401 Mass. 549, 552, 517 N.E.2d 1281 (1988), citing Ex parte Young, 209 U.S. 123, 159-160, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ("We can think of no basis for recognizing some form of governmental immunity that would prevent issuance of an injunction against an ongoing wrong committed systematically and intentionally by a governmental agency for the continuing benefit of the Commonwealth"); Commonwealth v. Norman, 249 Mass. 123, 130-131, 144 N.E. 66 (1924) ("A suit in equity to restrain a State officer from executing an unconstitutional statute to the irreparable damage of the plaintiff's rights is not a suit against the State but against individuals acting outside the zone of their lawful authority and hence not protected by any immunity"). Accordingly, the individual defendants are properly sued in their official capacities for declaratory or injunctive relief under State law.

The plaintiffs' claim for damages for the alleged State constitutional due process violations stands on a different footing. One basis for a damages claim could be the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I, but that statute requires a plaintiff to allege and show a deprivation by "threats, intimidation or coercion." The amended complaint, however, does not contain such a claim.

Instead, the amended complaint purports to assert its State constitutional claims directly under the Massachusetts Declaration of Rights, without reference to any statutory cause of action. No case, however, has yet recognized a claim for money damages, brought directly under the State Constitution against State officers for actions taken as State officers. We decline to recognize one here. The reason for this is soundly rooted in long-standing sovereign immunity law, which holds that the Commonwealth and its officers are generally immune from suits for damages for actions taken as State officers, unless the Legislature has acted expressly to abrogate that immunity. See Irwin v. Commonwealth, 465 Mass. 834, 840-841, 992 N.E.2d 275 (2013) ("Where the Commonwealth does choose to waive its sovereign immunity, it can be sued 'only in the manner and to the extent expressed [by the] statute' " [citation omitted] ); Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 31, 858 N.E.2d 699 (2006) ("the Commonwealth cannot be sued unless there has been a waiver of its sovereign immunity");. Here the Legislature has acted to abrogate sovereign immunity in suits for deprivations of constitutional rights, but only in part; as noted above, the damages remedy under the Massachusetts Civil Rights Act is only available upon proof of threats, intimidation, or coercion. See Lecrenski Bros. v. Johnson, 312 F.Supp.2d 117, 122 (D. Mass. 2004) ; Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 36, 513 N.E.2d 1277 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988).

In short, the Legislature has acted directly in this area, and has provided a damages remedy for some constitutional deprivations but not others. The amended complaint attempts to circumvent this legislative scheme by stating claims directly under the Massachusetts Declaration of Rights, but we are not willing to abrogate sovereign immunity by fashioning a judicial remedy where the Legislature did not. As we said in Martino v. Hogan, 37 Mass. App. Ct. 710, 720, 643 N.E.2d 53 (1994), we believe that the Civil Rights Act "occup[ies] the field" in this area. The plaintiffs cannot recover damages on their claims for deprivation of due process brought directly under the State Constitution.

5. Mootness. Finally, while the defendants have asserted that the plaintiffs' claims are moot, that is incorrect. Plainly, there is a live controversy here. Indeed, the motion to dismiss did not even address four counts of the amended complaint.

What the defendants apparently mean to contend is that there is no longer a basis for declaratory or injunctive relief, because SORB took down the "moved out of state" page more than two years ago. The Superior Court judge rejected this argument. Among other things, he noted that the plaintiffs have an interest in pursuing a declaration that the defendants violated the law in posting the plaintiffs' information, as such a declaration might provide a remedy to address the collateral consequences stemming from the defendants' conduct. We discern no error or abuse of discretion in that determination. The case is not moot, and the judge may take up the question of the appropriate declaratory or injunctive remedies, if any, as the case moves forward. See LightLab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194, 13 N.E.3d 604 (2014) ("Trial judges have broad discretion to grant or deny injunctive relief"); Boston Safe Deposit & Trust Co. v. Dean, 361 Mass. 244, 248, 279 N.E.2d 902 (1972) (trial judge has discretion to fashion appropriate declaratory relief);.

In sum, the plaintiffs' § 1983 claims for damages must be dismissed as to defendants Hayden and Lewis. The damages claims brought directly under the Massachusetts Constitution also must be dismissed. That part of the order denying the motion to dismiss the damages claims is accordingly reversed. In all other respects, the order is affirmed.

So ordered.

      The amended complaint contains allegations regarding another plaintiff (and proposed class representative) as well.

      The plaintiffs challenge the application of the doctrine of present execution. Under one aspect of that doctrine, the government may immediately appeal an order denying a motion to dismiss where the motion was based on immunity from suit claimed by a State officer. Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999). The plaintiffs claim, however, that the doctrine does not apply here because the defendants did not move to dismiss all the counts against them, and thus the case will go forward against the individual defendants regardless of the result on this appeal.
      The plaintiffs' argument is at odds with Kent v. Commonwealth, 437 Mass. 312, 316-317, 771 N.E.2d 770 (2002). Kent held that the doctrine of present execution allowed for an immediate right of appeal where, as here, the defendants have asserted immunity, even if the claimed immunity would not have disposed of the entire case. Id. ("[T]he Commonwealth's right to interlocutory review of the denial of its motion to dismiss based on immunity is not dependent on whether allowance of the motion would completely end the litigation"). The appeal, thus, is properly before us.

      The motion relied only on Federal law, but requested the dismissal of all constitutional claims. Moreover, the briefing in the Superior Court, as well as the judge's decision, sometimes mix the Federal and State case law together. At oral argument we asked for, and subsequently received, supplemental briefing on two issues: (1) whether there are differences between the Federal and State constitutional rights asserted, and (2) whether there is a damages remedy available for deprivations of the State constitutional rights asserted.

      The defendants' argument that the claims for declaratory and injunctive relief are moot is addressed at the end of this opinion.

      Under Paul the loss of a government job might qualify as a sufficient property interest, but the loss of private employment would not. See Paul, 424 U.S. at 706, 711, 96 S.Ct. 1155 ; Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000).

      The word "liberty" in the due process clause also encompasses certain rights generally described as "privacy" rights. See Paul, 424 U.S. at 712-713, 96 S.Ct. 1155. The Court in Paul separately rejected the argument that the reputational interests at stake qualified as fundamental "privacy" interests protected by the Federal due process clause. Id.

      Recently, the Supreme Judicial Court decided two additional procedural due process cases in this area, Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry Bd., 480 Mass. 212, 102 N.E.3d 950 (2018), and Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 102 N.E.3d 409 (2018). As with the cases cited supra, we understand the holdings in these cases also to be based upon the Massachusetts Declaration of Rights. In any event, these cases, as well as the case they principally rely upon, Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 41 N.E.3d 1058 (2015), all were decided after the Web site section at issue was taken down in September of 2015.

      As the Supreme Judicial Court noted in Doe, 426 Mass. at 144 n.8, 686 N.E.2d 1007, there have been inconsistent statements in the case law as to whether the due process protections of the Massachusetts Constitution are identical to Federal protections. As discussed herein, however, it is clear that in connection with the Massachusetts sex offender registration statute, the Federal and State provisions have not been construed identically.

      This conclusion leaves the status of the Federal claims as follows:
      (1) The § 1983 claims for damages against the State officers in their individual capacities are dismissed, based upon their qualified immunity.
      (2) The § 1983 claims against the State officers in their official capacities also must be dismissed, as State officers may not be sued for damages in their official capacities under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141, 612 N.E.2d 641 (1993) ("Monetary damages against State officials are available only if they are sued in their individual or personal capacities under color of State law").
      (3) The claims for declaratory and injunctive relief against the State officers, in both their official and individual capacities, remain. See O'Malley, 415 Mass. at 141, 612 N.E.2d 641 ("If a State official is sued in his [or her] official capacity, then the plaintiffs' recovery is limited to equitable relief only"). See infra.
      (4) The § 1983 claims against SORB must be dismissed. SORB is not a proper defendant under § 1983, as it is a State entity, see G. L. c. 6, § 178K, and State entities may not be sued under § 1983. See Will, 491 U.S. at 67, 70, 109 S.Ct. 2304 ; Laubinger v. Department of Revenue, 41 Mass. App. Ct. 598, 601-602, 672 N.E.2d 554 (1996).

      In their amended complaint, the plaintiffs also assert a substantive due process violation under the Massachusetts Declaration of Rights. However, the plaintiffs did not brief the Massachusetts law of substantive due process, and given our rulings on the State law claims we need not address the State substantive due process claim at this time.

      In response to our request for supplemental briefing, the plaintiffs argued that the defendants' alleged actions could qualify as threats, intimidation, or coercion under the Massachusetts Civil Rights Act. However, the plaintiffs have not alleged a cause of action under the Massachusetts Civil Rights Act, and thus this argument is unavailing.

      But cf. Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction, 406 Mass. 156, 159-161, 546 N.E.2d 166 (1989) (discussing possible availability of damages relief under art. 114 of Amendments to Massachusetts Constitution).