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Montrose Daily Press (Montrose, CO) | Sept. 17, 2017

Colorado sheriff takes down sex offender registry


• Cautionary move prompted by federal ruling

• MCSO continues reporting to state; CBI list remains online

• Registry without regard to risk, attorney says


By Katharhynn Heidelberg


The sheriff is taking his in-agency sex offender registry offline, in wake of a recent federal court decision that decreed Colorado’s registry law violated the constitutional rights of three plaintiffs.


“Out of precaution … we took ours down locally,” Montrose County Sheriff Rick Dunlap said Thursday night, telling those in attendance at the GOP central committee meeting he fears it’s a “matter of time” before further action is taken against the registry.


“I can’t figure out how in the world this was ruled unconstitutional,” Dunlap said, as attendees expressed strong opposition to the ruling. “It will be appealed.”


Colorado Attorney General Cynthia Coffman announced this week she would appeal the ruling to the 10th Circuit.


“I am surprised by the court’s decision, and think the ruling contains several legal errors which we will now address on appeal,” she said in a provided statement.


The Colorado Sex Offender Registration Act, or SORA, requires people convicted of unlawful sexual behavior — defined to include a wide range of offenses, of varying degrees of severity — to register with the appropriate law enforcement agency for where they live. Failure to register is chargeable as a separate offense.


The act requires the Colorado Bureau of Investigation to maintain the registry and make the information available publicly. Local agencies are also authorized under SORA to post an in-house registry.

Dunlap said he would continue to provide the required information to the CBI for its registry, which at last report, remained publicly available.


“All our registry is offline right now, temporarily, until we get some more guidance from the state and the County Sheriffs of Colorado,” Undersheriff Adam Murdie said Friday.


Offenders still have to meet their registration and reporting requirements, he added.


The ruling

Three men on the state registry, David Millard, Eugene Knight and Arturo Vega, sued the CBI over the registry, and on Aug. 31, U.S. District Judge Richard Matsch found the registry violated the 8th Amendment’s protections against cruel and unusual punishment, as well as due process protections under the 14th Amendment.


According to the ruling, the three men had been convicted in separate sex crimes cases. Millard, despite having completed his probation, was evicted from his home, harassed and had his car vandalized because of the information publicized through the registry.


Knight’s conviction was listed incorrectly on the CBI registry, an error that was repeated on at least one private website. In 2014, he was barred from the grounds of schools his children attended.


Vega was convicted as a juvenile and his petition to be removed from that registry was denied in a way Matsch found violated due process.


The judge said the plaintiffs established they face a “known, real and serious threat of retaliation, violence, ostracism, shaming and other unfair and irrational treatment from the public, directly resulting from their status as registered sex offenders, regardless (of) any threat to the public safety based on an objective determination of their specific offenses, circumstances and personal attributes.”


The SORA is not intended to be punitive, according to legislative intent, but Matsch found it was, with respect to the three plaintiffs.


The Legislature’s disavowal of punitive intent is “an avoidance of any responsibility for the results of warning the public the dangers to be expected from registered sex offenders. The register is telling the public, DANGER, STAY AWAY,” Matsch wrote.


“The failure to make any individual assessment is a fundamental flaw in the system,” he said, and public shaming and banishment can be considered cruel and unusual punishment under the 8th Amendment.


Vega, further, was effectively burdened with proving he was not likely to commit further offenses — a burden Matsch said was vague and subjective. Further, the records on which Vega could have relied to prove he’d undergone required treatment had been destroyed by the state, yet the court was requiring the proof as a condition of taking him off the registry.


“This Kafka-esque procedure, which was played out not once but twice, deprived Mr. Vega of his liberty without providing procedural due process,” Matsch said in the ruling.


The “widespread dissemination” of their information through the CBI website and private entities have common and foreseeable negative consequences that deprive the plaintiffs of privacy and liberty, he said.


“You can’t lump all sex offenders and have these one-size-fits-all (registries),” said Alison Ruttenberg, the Denver-area attorney who represented the plaintiffs. Low-risk offenders don’t necessarily belong on a registry alongside the small percentage of violent offenders who reoffend, Ruttenberg said.


The Legislature should reform the registry, she added.


“But I don’t think they will do so. It’s too much of a political hot potato.”


Broader impact?

The ruling is limited to the three defendants, but could have a ripple effect.


Dunlap isn’t alone in questioning the potential for that.


“Legally, it is limited to three cases, but that does not mean it will not be raised in many more cases,” District Attorney Dan Hotsenpiller said.


At present, he’s unaware of it being raised in a 7th Judicial District case, though it could come up. The Legislature might be able to adjust the registry act to the court’s satisfaction, he added, but he hasn’t heard of any such efforts so far.


“People are waiting to see if there’s an appeal. I’m not sure that we’ll see any efforts this year (for) a legislative fix,” Hotsenpiller said.


“I understand Sheriff Dunlap’s position and concern. It points out there is room to look at some changes to these laws so the worst abuses can be avoided or minimized,” he said.


A wide range of offenses can lead to an offender being placed on the registry, and not everyone is on it permanently.


“Just because somebody is registered does not tell you what offense they committed and it certainly does not tell you whether they are a pedophile,” Hotsenpiller said.


“That’s not what it means. The other thing it does not tell you is the level of risk. That was a key part of the ruling — that’s one of the defects. The requirement right now is not connected to a finding of risk to the public or others.”


The scope of individual offenses and duration of registry requirements differ between offenders, the DA said, but, at minimum, an offender should be required to register as long as he or she is under court supervision.


Another issue, though, is how such information should be made available to the public, and that’s the issue with which sheriffs and others are grappling, Hotsenpiller said.


Ruttenberg said the registry needs to be specifically tailored to the high-risk offenders. She also said she’s already begun seeing impact in other cases, including three juvenile cases within a week of the ruling, even though, again, the ruling does not specifically apply to everyone on the registry.


“Time will tell, as these various cases are filed and adjudicated,” Ruttenberg said.


She said she’s heard horror stories of harassment and other crimes perpetrated against people on the registry.


“They’ve gone from being productive members of society to being homeless and unemployed. Everyone, when they hear ‘sex offender,’ … they don’t want to take a chance on them,” Ruttenberg said.


Since Matsch’s ruling, Ruttenberg herself has begun receiving threatening messages, she said.


“I do have a concern about my safety and the safety of my family. … They think somebody like me, who is trying to represent the rights of sex offenders, is evil, too,” Ruttenberg said.


Such threats are inappropriate, Hotsenpiller said, and given the ruling recognized the potential for threatening behavior because of the registry, could backfire.


“Threats of violence are inappropriate always, as well as acts of violence,” he said.


Montrose Police Cmdr. Gene Lillard said his agency hasn’t had reported incidents of offenders being harassed because of the registry.


“A lot of the citizens know where they live and to my knowledge, we have not had any reports of harassment,” he said Sept. 1. “We’re not really seeing it here, that they’re being unduly harassed.”


Although Ruttenberg said she doubts the registry is particularly effective at ensuring public safety, Lillard said it helps keeps offenders in check, and mindful about what they did to land on the registry.


“I think it’s a good tool for law enforcement to have,” he said. “… The list is good and the fact they have to come in and register is a good thing, also.”


--Katharhynn Heidelberg is an award-winning journalist and the senior writer for the Montrose Daily Press. Follow her on Twitter at @kathMDP.



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