BENJAMIN BRAAM , ALTON ANTRIM , and DAN OLSZEWSKI v. KEVIN A. CARR , Secretary of the Wisconsin Department of Corrections

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 20-1059
BENJAMIN BRAAM ,
A LTON A NTRIM , and
DAN O LSZEWSKI ,
Plaintiffs-Appellants,
v.
K EVIN A. C ARR ,
Secretary of the Wisconsin
Department of Corrections,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 19-CV-396 — Pamela Pepper, Chief Judge.
____________________
A RGUED S EPTEMBER 18, 2020 — DECIDED J UNE 21, 2022
____________________
Before S YKES , Chief Judge, and HAMILTON and S T. EVE,
Circuit Judges.
S YKES , Chief Judge. Wisconsin law requires some sex of-
fenders to wear GPS tracking devices for life, even after they
have completed post-confinement supervision. WIS . S TAT.

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No. 20-1059 2
§ 301.48. The tracking device is attached to an ankle bracelet.
The tracking data is not monitored in real time; rather,
officials review it every 24 hours or so to determine if an
offender has been near a school, a playground, or another
place that might raise a concern. The program is adminis-
tered by the Secretary of the Wisconsin Department of
Corrections.
The plaintiffs here are repeat sex offenders who must
comply with lifetime monitoring. § 301.48(2)(a)(7) (requiring
lifetime monitoring of sex offenders who have been convict-
ed of a sex offense “on 2 or more separate occasions”) (in-
corporating by reference section 301.46(2m)(am)). They sued
the Secretary alleging that the statute violates their rights
under the Fourth Amendment. They also moved for a
preliminary injunction.
We have addressed section 301.48 once before. In Belleau
v. Wall, 811 F.3d 929 (7th Cir. 2016), we upheld a subsection
of the statute that imposes lifetime monitoring on sex of-
fenders who have been released from post-prison civil
commitment. § 301.48(2)(b)(2) (incorporating by reference
section 980.09(4)). Applying the Fourth Amendment’s
reasonableness standard, we held that the government’s
interest in deterring recidivism by these dangerous offenders
outweighs the offenders’ diminished expectation of privacy.
Belleau, 811 F.3d at 935–36.
Relying on Belleau, the district judge denied the plaintiffs’
motion for a preliminary injunction, concluding that their
claim was unlikely to succeed on the merits. That ruling was
sound. Any differences between the plaintiffs here and the
plaintiff in Belleau are too immaterial to make our holding

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No. 20-1059 3
there inapplicable. The judge properly declined to issue a
preliminary injunction.
I. Background
Each of the plaintiffs has been convicted of multiple sex
offenses involving children. Benjamin Braam sexually
assaulted a 14-year-old boy multiple times over a four-
month period between 1999 and 2000 and was convicted of
two counts of sexual contact or intercourse with a child
under the age of 16. See WIS . S TAT. § 948.02(2). Alton Antrim
has twice been convicted of first-degree sexual assault of a
child under the age of 13, once in 1991 for molesting his five-
year-old cousin and again in 1999 for molesting another
child. Id. § 948.02(1). Daniel Olszewski was convicted in 2014
of two counts of possession of child pornography. Id.
§ 948.12(1m). The plaintiffs served prison terms and com-
pleted their post-confinement supervision. Because they
have been convicted of sex offenses “on 2 or more separate
occasions,”1 § 301.48(2)(a)(7), they are subject to lifetime GPS
monitoring overseen by the defendant Kevin Carr, the
Secretary of Wisconsin’s Department of Corrections.
The monitoring program requires the plaintiffs to wear
an ankle GPS monitor for the rest of their lives unless they
permanently move to a different state. The monitor is unob-
trusive and fits under clothing. It has a maximum battery life
of 80 hours, and the Department of Corrections recommends
that offenders charge the monitor for one hour per day. A
1 Wisconsin interprets the phrase “on 2 or more occasions” to apply to
two convictions stemming from the same underlying course of conduct.
Wisconsin’s interpretation of its own law is not at issue here.

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No. 20-1059 4
sex offender can request termination of tracking after he has
worn the monitor for 20 years.
The ankle monitor transmits GPS data of a sex offender’s
location to law enforcement, but the data is not reviewed in
real time. Instead, officers typically analyze the data every
24 hours to check if an offender was present at or near
schools, playgrounds, crime scenes, or anywhere else that
might arouse suspicion. The ankle monitor tracks location
only; it does not record video or sound. It does not restrict
where an offender may go, nor does it alert law enforcement
when a sex offender is in or near any particular place.
The plaintiffs filed suit under 42 U.S.C. § 1983 alleging
that the lifetime monitoring requirement violates their rights
under the Fourth Amendment. They sought to represent a
class of offenders who are no longer under post-confinement
supervision by the Department of Corrections but remain
subject to the monitoring requirement.2 With their com-
plaint, they submitted a motion for a preliminary injunction
to block the enforcement of section 301.48(2)(a)(7). The judge
denied the motion, ruling that in light of Belleau, the plain-
tiffs could not show a likelihood of success on the merits of
their claim.
II. Discussion
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to re-
view the judge’s interlocutory order. To win a preliminary
2 The complaint contained additional claims—including some by a
different group of plaintiffs who for other reasons are subject to the
monitoring requirement. Secretary Carr moved to dismiss all but the
Fourth Amendment claims by these plaintiffs. The judge granted the
motion, and that ruling is not at issue here.

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No. 20-1059 5
injunction, a plaintiff must show that (1) he is likely to
succeed on the merits of his claim; (2) he will suffer irrepara-
ble harm without an injunction; (3) the balance of equities
weighs in his favor; and (4) an injunction furthers the public
interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
The first step in the analysis—the plaintiff’s likelihood of
success on the merits—is often decisive. And it is here. The
district court may issue a preliminary injunction only if the
plaintiff demonstrates “some” likelihood of success on the
merits. “What amounts to ‘some’ depends on the facts of the
case at hand.” Mays v. Dart, 974 F.3d 810, 822 (7th Cir. 2020).
We begin with the background Fourth Amendment prin-
ciples. The Fourth Amendment prohibits “unreasonable
searches,” U.S. C ONST. amend. IV, and as a general matter,
“warrantless searches are presumptively unreasonable,”
Horton v. California, 496 U.S. 128, 133 (1990). In Grady v. North
Carolina, 575 U.S. 306 (2015), the Supreme Court suggested
that warrantless GPS monitoring of sex offenders could be
reasonable under the Fourth Amendment, depending on an
evaluation of the nature and purpose of the search and the
degree of intrusion on reasonable privacy expectations.
The narrow question before the Court in Grady was
whether satellite-based monitoring of recidivist sex offend-
ers qualifies as a search. In a brief per curiam opinion, the
Court said yes, but it went no further. That is, the Court did
not decide whether this type of search is reasonable, but
instead remanded for the North Carolina courts to make that
determination, with the following instructions: “The Fourth
Amendment prohibits only unreasonable searches. The
reasonableness of a search depends on the totality of the

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No. 20-1059 6
circumstances, including the nature and purpose of the
search and the extent to which the search intrudes upon
reasonable privacy expectations.” Id. at 310.
Assessing reasonableness under the totality of the cir-
cumstances requires “a balancing of individual privacy
interests and legitimate state interests to determine the
reasonableness of the category of warrantless search that is
at issue.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 n.8
(2016); see also Wyoming v. Houghton, 526 U.S. 295, 299–300
(1999) (“[W]e must evaluate the search or seizure under
traditional standards of reasonableness by assessing … the
degree to which it intrudes upon an individual’s privacy
and … the degree to which it is needed for the promotion of
legitimate governmental interests.”). In keeping with this
principle, the Court’s instructions in Grady included citations
to Samson v. California, 547 U.S. 843, 853 (2006), which held
that suspicionless parole searches are reasonable because
parolees have diminished expectations of privacy, and
Vernonia School District 47J v. Acton, 515 U.S. 646, 665–66
(1995), which held that random drug searches of student
athletes are reasonable under the “special needs” doctrine.
Although Grady did not decide whether GPS monitoring
of released sex offenders is reasonable, it situated the inquiry
within established Fourth Amendment doctrine. Warrantless
monitoring of post-supervision sex offenders is reasonable
under the Fourth Amendment if the government’s interest in
monitoring these offenders outweighs the privacy expecta-
tions of those who must comply with the program.
In Belleau we balanced those interests for one class of
Wisconsin sex offenders—those who are subject to lifetime
GPS monitoring after completing post-prison civil commit-

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No. 20-1059 7
ment. The plaintiffs’ likelihood of success centers on the
effect of Belleau, so some detail about that case is warranted.
Michael Belleau was convicted of second-degree sexual
assault of a child and sentenced to ten years in prison.
Belleau, 811 F.3d at 931. He was paroled after six years, but
his parole was revoked and he was returned to prison after
admitting to having sexual fantasies about two young girls.
Id. Just before he finished his prison term, the state sought to
have him civilly committed as a “sexually violent person”
under chapter 980 of the Wisconsin Statutes. A court made
the necessary findings, and he was committed. When he was
discharged from civil confinement five years later, he be-
came subject to lifetime GPS monitoring. § 301.48(2)(b)(2).
Belleau challenged the statutory monitoring requirement
under the Fourth Amendment. Ruling on cross-motions for
summary judgment, the district court found the statute
unconstitutional and issued declaratory and injunctive relief
in his favor. Belleau v. Wall, 132 F. Supp. 3d 1085, 1110–11
(E.D. Wis. 2015).
We reversed and upheld the statute. Belleau, 811 F.3d at
932–38. We began by explaining that the state has a strong
interest in monitoring sex offenders like Belleau. His crimes
evinced that he was a pedophile “predispose[d] … to com-
mit sexually violent acts.” Id. at 932–33 (quotation marks
omitted). Expert testimony had suggested that his particular-
ized risk of reoffending was between 8% to 16%. That gener-
ally aligned with empirical studies estimating that “as many
as 15 percent of child molesters released from prison molest
again,” id. at 934, though we also noted that “[t]here is
serious underreporting of sex crimes,” id. at 933. We con-
cluded that convicted sex offenders like Belleau thus pose a

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No. 20-1059 8
significant danger to the public even after they are released
from prison or civil commitment.
We also determined that lifetime monitoring advances
Wisconsin’s strong interest in protecting the public from
recidivism by sex offenders. If a sex offender has been
“present at a place where a sex crime has been committed, …
the police will be alerted to the need to conduct an investiga-
tion.” Id. at 935. More importantly, monitoring “deter[s]
future offenses by making the [sex offender] aware that he is
being monitored and is likely therefore to be apprehended
should a sex crime be reported at a time, and a location, at
which he is present.” Id. Monitoring therefore reduces the
risk of recidivism. If a sex crime is “reported at a location
and time at which the [GPS] map shows the person wearing
the ankle[] [monitor] to have been present, he becomes a
suspect and a proper target of investigation.” Id. at 936.
Monitored sex offenders are plainly aware of this, so the
monitoring program is an effective deterrent of recidivism.
Id. at 935–36.
We then turned to the intrusion on Belleau’s privacy in-
terests. We noted that the ankle device is unobtrusive and
does not entail continuous surveillance. Rather, the device
“just identifies locations; it doesn’t reveal what the wearer of
the device is doing at any of the locations.” Id. at 936. And
because Belleau, as a convicted sex offender, was required to
register and remain listed on the public sex-offender regis-
try, there was only a modest incremental burden on his
privacy interests. Id. Given the diminished privacy expecta-
tions of convicted sex offenders and the “slight … incremen-
tal loss of privacy from having to wear the ankle[] monitor,”
we held that Belleau’s privacy interests did not outweigh the

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No. 20-1059 9
substantial public interest in the information collected by the
monitoring program. Id. Because the balance of interests
weighed in Wisconsin’s favor, we upheld the monitoring
program as reasonable under the Fourth Amendment. Id. at
937.
Judge Flaum concurred. He agreed with the majority that
“sex offenders who target children pose a uniquely disturb-
ing threat to public safety.” Id. at 938 (Flaum, J., concurring).
Taking a cue from Grady, he located the framework for
analysis in “two threads of Fourth Amendment case law:
searches of individuals with diminished expectation of
privacy, such as parolees, and ‘special needs’ searches.” Id.
at 939. In his view Wisconsin’s “monitoring program is
uniquely intrusive, likely more intrusive than any special
needs program upheld to date by the Supreme Court.” Id. at
940. Still, he determined that the monitoring program was a
permissible special-needs search, i.e., a search “designed to
serve needs beyond the normal need of law enforcement,”
especially in light of Belleau’s “diminished expectation of
privacy” as a convicted sex offender. Id. at 939.
Relying on Belleau, the district judge concluded that the
plaintiffs likely would not succeed on the merits of their
Fourth Amendment claim. On appeal the plaintiffs argue
that Belleau is distinguishable. They are mistaken. The only
difference between the two cases is that Belleau concerned
the subsection of the statute that imposes the monitoring
requirement on sex offenders who have been discharged
from civil commitment, whereas this case concerns the
provision imposing the monitoring requirement on repeat
sex offenders. That difference is immaterial. Wisconsin has
the same strong interest in monitoring both groups of sex

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No. 20-1059 10
offenders. And both groups have the same diminished
privacy expectations.
As we observed in Belleau, Wisconsin’s primary interest
in monitoring sex offenders is public protection, achieved by
deterring convicted sex offenders from committing addi-
tional sex crimes. Our conclusion in Belleau—that this strong
governmental interest justifies Wisconsin’s monitoring
program—applies equally here.
The plaintiffs contend that they are categorically less
dangerous because they were not civilly committed as
“sexually violent persons.” Like many states, Wisconsin
civilly confines sex offenders who have been determined by
a court to be “sexually violent” and “likely [to] … engage in
one or more acts of sexual violence” on a future occasion.
WIS . S TAT. § 980.01(7). It does not follow, however, that the
state’s interest in deterring recidivism by sex offenders
applies only to this subgroup. Wisconsin also has a strong
public-safety interest in monitoring repeat sex offenders for
deterrence purposes.
The plaintiffs also claim that social-science research
demonstrates that the GPS monitoring program is unneces-
sary when applied to what they characterize as less danger-
ous classes of sex offenders. Secretary Carr marshals
opposing social-science research in defense of the monitor-
ing program. But “[o]ur role is not to second-guess the
legislative policy judgment by parsing the latest academic
studies on sex-offender recidivism.” Vasquez v. Foxx, 895 F.3d
515, 525 (7th Cir. 2018). The question before us is whether,
against the backdrop of Belleau, the plaintiffs have demon-
strated a likelihood of success on their claim that the statuto-
ry GPS monitoring requirement is unreasonable.

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No. 20-1059 11
The plaintiffs also challenge Belleau’s treatment of the
privacy interests of sex offenders. They have not, however,
made a showing that repeat sex offenders have stronger
privacy expectations than sex offenders who have been
released from civil commitment. Belleau recognized that
diminished privacy interests endure after a sex offender is
discharged from prison and post-confinement supervision—
in part because these offenders are listed on the sex-offender
registry, which means their names, addresses, criminal
histories, and other identifying information are made public.
811 F.3d at 932–33. In light of the registration requirement, a
sex offender’s privacy interests are “severely curtailed as a
result of his criminal activities.” Id. at 935. These privacy-
curtailing burdens apply to everyone on the sex-offender
registry, regardless of whether he was civilly confined under
chapter 980. § 301.45. So although they were never civilly
confined as “sexually violent persons,” the plaintiffs’ dimin-
ished privacy expectations are materially the same as sex
offenders who have been discharged from civil commitment.
Recognizing the difficulty of distinguishing Belleau, the
plaintiffs seek to undermine its foundations. They argue that
Packingham v. North Carolina, 137 S. Ct. 1730 (2017), calls
Belleau into question. In Packingham the Supreme Court
addressed a North Carolina statute that prohibited sex
offenders from accessing websites of which minors are
members. A sex offender put an innocuous post on Facebook
celebrating the dismissal of a traffic ticket against him; he
was convicted of violating the statute. Id. at 1734. He chal-
lenged his conviction on First Amendment grounds, and the
Supreme Court held that the statute was unconstitutionally
overbroad. Although the statute had a “preventative pur-
pose of keeping convicted sex offenders away from vulnera-

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No. 20-1059 12
ble victims,” the state had a “burden to show that [a] sweep-
ing law is necessary or legitimate to serve that purpose.” Id.
at 1737. The statute permissibly prevented sex offenders
from using the internet for the purpose of “engaging in
conduct that often presages a sexual crime, like contacting a
minor or using a website to gather information about a
minor.” Id. As the Court explained, however, the statute
swept too broadly: “[W]ith one broad stroke,” the law “bars
access to what for many are the principal sources for know-
ing current events, checking ads for employment, speaking
and listening in the modern public square, and otherwise
exploring the vast realms of human thought and
knowledge.” Id. Accordingly, the Court held that the statute
was impermissibly overbroad in violation of the First
Amendment. Id. at 1738.
The plaintiffs’ reliance on Packingham is misplaced. That
case involved an application of the First Amendment’s
overbreadth doctrine. This is a Fourth Amendment case. As
we’ve explained, the application of the Fourth Amendment’s
reasonableness requirement has long involved balancing the
government’s interests against the individual’s reasonable
privacy expectations—not overbreadth analysis. Packingham
thus has no relevance here.
We conclude with a few words about a procedural issue.
The judge denied the plaintiffs’ motion for a preliminary
injunction in an oral decision. When an appeal is taken from
an oral ruling, Rules 10(b) and 30(a) of the Federal Rules of
Appellate Procedure and Circuit Rule 30 require the appel-
lant to provide a transcript of the decision. This procedural
requirement facilitates the appellate process by ensuring that
the court and parties are in agreement as to exactly what was

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No. 20-1059 13
said. Transcripts also eliminate the need to listen to lengthy
audio recordings in order to locate relevant excerpts.
The plaintiffs did not initially provide us with a tran-
script of the judge’s ruling. We ordinarily enforce the tran-
script rule by dismissing the appeal or summarily affirming
the district court. See, e.g., Jaworski v. Master Hand Contractors,
Inc., 882 F.3d 686, 689 (7th Cir. 2018); Dupree v. Hardy,
859 F.3d 458, 463 (7th Cir. 2017); Tapley v. Chambers, 840 F.3d
370, 375–76 (7th Cir. 2016). Accordingly, we ordered the
plaintiffs to show cause why we should not dismiss this
appeal or summarily affirm the district court’s order.
In response the plaintiffs’ attorney stated that the district
court had publicly posted an audio recording of the proceed-
ings. She claimed that this was highly unusual, so it was
“unclear … whether it was necessary to provide a transcript
in addition to the audio recording under these unusual
circumstances.” Counsel also told us that she had contacted
our clerk’s office and was told that a transcript was unneces-
sary under the circumstances.
That’s not a proper way for counsel to discharge her du-
ties. Circuit Rule 30(b)(1) is unambiguous. It says, “If the
appellant’s brief challenges any oral ruling, the portion of the
transcript containing the judge’s rationale for that ruling
must be included in the appendix.” There are no exceptions.
And the role of our clerk’s office is to maintain our records;
attorneys should not lean on it for legal advice regarding the
interpretation of our rules.3 Attorneys who appear before
3 Counsel’s description of her conversation with someone in our clerk’s
office is hearsay, and we take her at her word for present purposes. We
do not, however, conclude that the employee gave her erroneous advice.

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No. 20-1059 14
our court are obligated to familiarize themselves with the
Federal Rules of Appellate Procedure and our Circuit Rules;
that duty may not be outsourced.
Nevertheless, counsel appropriately apologized for her
error and promptly ordered and filed a transcript of the
judge’s ruling. Secretary Carr informed us that he did not
suffer prejudice from the delay and would not seek sum-
mary affirmance or dismissal. Accordingly, we discharge the
order to show cause.
A FFIRMED

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