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MILLARD et al., v. Rankin 13-cv-02406-RPM
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Richard P. Matsch, Senior District Judge
Civil Action No.
DAVID MILLARD, EUGENE KNIGHT, ARTURO VEGA,
Plaintiffs,
v.
MICHAEL RANKIN, in his official capacity as Director of the Colorado Bureau of Investigation,
Defendant.
______________________________________________________________________________
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER FOR ENTRY OF JUDGMENT
______________________________________________________________________________
Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§
After consideration of the evidence submitted at trial and the written arguments of counsel the Court now enters the following findings of fact, conclusions of law, and order.
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The Colorado Sex Offender Registration Act
Registration Requirements
SORA requires a person convicted of unlawful sexual behavior or another offense, the underlying factual basis of which involves unlawful sexual behavior, to register with the state as a sex offender. C.R.S. §
The Registration Process
A person required to register must register with the local law enforcement agency in each jurisdiction in which the person resides. C.R.S. §
All persons required to register must reregister at least annually and any time they change addresses or names; certain specified offenders are required to reregister quarterly. C.R.S. § 16-
1Persons required to reregister on a quarterly basis include, among others, those guilty of certain felony sexual assaults and sexual assault on a child. C.R.S. §
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as well as “criminal attempt, conspiracy, or solicitation to commit any of the specified acts.” C.R.S. §
Failure to comply with the registration requirements is a criminal offense. C.R.S. §
412.5.
Astandardized form prescribed by the CBI is used for registration. C.R.S. §
The Sex Offender Registry and CBI’s Authority to Release Registry Information
The CBI serves as official custodian of all registration forms and other documents associated with sex offender registration. It is required to maintain a statewide central
The CBI is also authorized to provide to members of the public, upon request and
payment of any fees assessed for search, retrieval, and copying, “the name, address or addresses, and aliases of the registrant; the registrant’s date of birth; a photograph of the registrant, if requested and readily available; and the conviction resulting in the registrant being required to register pursuant to this article.” C.R.S. §
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registry; members of the public may also request a list of all persons on the registry. C.R.S. § 16-
With respect to the public availability of such information, SORA states:
The general assembly hereby recognizes the need to balance the expectations of persons convicted of offenses involving unlawful sexual behavior and the public’s need to adequately protect themselves and their children from these persons, as expressed in section
C.R.S. §
The CBI’s Internet Posting of Sex Offender Information
SORA also requires the CBI to post on the State of Colorado’s internet homepage a link
to “a list containing the names, addresses, and physical descriptions of certain persons and
descriptions of the offenses committed by said persons.” C.R.S. §
persons” whose information must be posted on the State’s website include persons convicted of
being sexually violent predators; persons convicted as an adult of two or more felony offenses
involving unlawful sexual behavior; persons convicted of a crime of violence as defined in
section C.R.S. §
felony as an adult, but who fail to register as required.2
For such persons, the physical description posted on the State’s website “shall include,
but need not be limited to, the person’s sex, height, and weight, any identifying characteristics of
2Juvenile offenders do not appear on the website, even if they are later convicted of failure to register. However, juvenile offenders do appear on the list of registered sex offenders that members of the public may obtain from the CBI on request, as discussed above.
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the person, and a digitized photograph or image of the person.” C.R.S. §
Section
In addition to the posting required by subsection (1) of this section, the CBI may post a link on the state of Colorado homepage on the internet to a list, including but not limited to the names, addresses, and physical descriptions of any person required to register pursuant to section
Pursuant to C.R.S. §
person has failed to register as required, and if so, to post information concerning that person on
the State’s internet site. In addition, if a local law enforcement agency files criminal charges
against a person for failure to register as a sex offender, that agency is required to notify the CBI,
which is required to post the information concerning the person on the internet. C.R.S. §
111(2)(b).
Local Law Enforcement Agencies’ Publication of Sex Offender Information
SORA also authorizes local law enforcement agencies to post on their websites certain
information about registered sex offenders, if the offender falls within one of the categories
described in §
through the public release of such information:
The general assembly finds that persons convicted of offenses involving unlawful sexual behavior have a reduced expectation of privacy because of the public’s interest in public safety. The general assembly further finds that the public must have access to information concerning persons convicted of offenses involving unlawful sexual behavior that is collected pursuant to this article to allow them to adequately protect themselves and their children from these persons. The general assembly declares, however, that, in making this information available to the public, as provided in this section and section
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punishment on any person convicted of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior.
C.R.S. §
The Process for Removal of Information from the Registry and/or Internet
SORA allows some but not all registrants to petition for removal from the registry and/or have the CBI remove their information from the State’s internet site. C.R.S. §
As to juveniles, SORA provides procedures for a person to petition to discontinue the duty to register, to have the CBI discontinue posting on the internet, and also to be removed from the sex offender registry itself:
(e)Except as otherwise provided in subparagraph (II) of paragraph (b) of subsection (1.3) of this section, if the person was younger than eighteen years of age at the time of commission of the offense, after the successful completion of and discharge from a juvenile sentence or disposition, and if the person prior to such time has not been subsequently convicted or has a pending prosecution for unlawful sexual behavior or for
3Persons subject to the lifetime registration requirement include, among others, those convicted of being a sexually violent predator; those convicted as adults of sexual assault on a child, sexual assault on a client by a psychotherapist, incest; and adults convicted of multiple sex offenses. Id.
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any other offense, the underlying factual basis of which involved unlawful sexual behavior and the court did not issue an order either continuing the duty to register or discontinuing the duty to register pursuant to paragraph (b) of subsection (1.3) of this section. Any person petitioning pursuant to this paragraph (e) may also petition for an order removing his or her name from the sex offender registry. In determining whether to grant the order, the court shall consider whether the person is likely to commit a subsequent offense of or involving unlawful sexual behavior. The court shall base its determination on recommendations from the person’s probation or community parole officer, the person’s treatment provider, and the prosecuting attorney for the jurisdiction in which the person was tried and on the recommendations included in the person's presentence investigation report. In addition, the court shall consider any written or oral testimony submitted by the victim of the offense for which the petitioner was required to register….
C.R.S. §
Plaintiffs’ Sex Offense Adjudications, Registration Requirements,
and Evidence of Harm
David Millard
David Millard pleaded guilty to second degree sex assault on a minor in 1999, resulting
in a sentence of 90 days jail work release and eight years probation. His plea agreement required
him to register as a sex offender for ten years after completing probation. While on probation, he
successfully completed sex offense specific treatment. His probation was never revoked or
extended, and he completed his period of probation in October 2007. Since beginning his
probation he has not been accused of committing any type of crime or engaging in any type of
inappropriate sexual conduct. He is eligible to petition to be removed from the sex offender
registry in October 2017.
Mr. Millard has registered as required since his conviction, and has never been charged
with failure to register. Registration forms provided to him by his local law enforcement agency
for the past two years have
Because Mr. Millard was convicted of a felony sex offense as an adult, his information appears
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on the list of registered sex offenders that members of the public may obtain from the CBI on request; and that information as well as a photograph are on the CBI website.
Mr. Millard has worked for Albertsons for 14 years, since 2003. He disclosed on his employment application that he had a felony conviction and said that he would “explain in person,” but he was not asked about his answer at that time and Albertsons did not do a background check. Because a requirement of his probation was to disclose his offense to his employer, he told his boss he was convicted in 1999 of second degree sexual assault. His boss did not ask for more details, but a condition of continued employment was that there be no problems and that no one find out about the conviction.
As a result, Mr. Millard has lived in fear of discovery and losing his job. That fear increased in approximately 2005, when according to Mr. Millard’s testimony the publication of his sex offender status began to include a photograph, making his identity more accessible through the internet. He was not permitted to access the internet during his probationary period. After completing probation he Googled his name and was shocked to discover that multiple
In 2015, a customer discovered Mr. Millard on a sex offender website and reported the discovery to Albertsons’ human relations department, resulting in an internal investigation. A
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fellow employee spread the information to other employees in the store. As a result, Mr. Millard was transferred to another store where the information had not become known. He has been specifically advised by his employer that he will lose his job if the information about him being a registered sex offender becomes known at the new store. Thus, even though his employer has been supportive, discovery by a customer or fellow employee is a constant concern for him given the ready availability of the information on the internet.
Mr. Millard has been forced to change residences. Shortly after his conviction, a representative of the Arapahoe County Sheriff’s Department came to his apartment complex and informed the leasing office that Mr. Millard was a registered sex offender. He was not permitted to renew his lease and was required to move.
He was not asked about his background or sex offender status before he applied to move into his next apartment. In 2005, Channel 7, a Denver television station, ran an “investigative report” on a news program that filmed leasing agents saying no felons were tenants at certain apartment complexes, but admitting that they did not do background checks on rental applications. The reporter then identified felons who were living in the complex. The program placed a primary emphasis on sex offenders. Mr. Millard learned of the Channel 7 program when a fellow tenant asked him if he knew there were a lot of sex offenders at the complex, and told him about the Channel 7 program. Mr. Millard watched the Channel 7 News report and saw his name come on the screen among a list of sex offenders living at the complex. Shortly after the Channel 7 story aired, a letter was posted on his door requiring him to move from the complex within thirty days.
Mr. Millard moved into his mother’s home, where he lived for several years. During that
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period he filled out some 200 or more rental applications, without success. He finally found another apartment, which he obtained after fully disclosing and explaining his background and conviction.
Mr. Millard ultimately was able to purchase the house where he now lives. But he remains subject to periodic visits by Denver Police officers to confirm the accuracy of his registered address. If he is not home when they visit, they leave prominent,
On one occasion a DPD officer hung a tag on his door even though Mr. Millard had spoken with the officer by telephone and explained he was at work and would not be home at the time of the visit. Mr. Millard was so concerned about the risk of discovery that he asked for time off work to go home to remove the tag, which displeased his boss. In following up from that incident, two DPD officers came to his house, banged noisily on the door, and loudly told Mr. Millard, in front of and in earshot of watching neighbors, that they were there to do a sex offender home check. Mr. Millard’s
Mr. Millard’s experiences from public awareness that he is a registered sex offender have left him in fear of retribution. On one occasion he walked out of his mother’s house and two persons walking by remarked “there’s that
Eugene Knight
Eugene Knight was charged with two counts of sexual assault on a child in 2006, based
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on conduct occurring in September 2005 when he was eighteen years old. A plea bargain resulted in his conviction for attempted sexual assault on a child. He was sentenced to eight years supervised probation and a
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undergo periodic polygraphs and other tests4 as determined by his therapist. Because he could not afford to pay the costs of these tests, his probation was revoked and he was sentenced to two years imprisonment, including presentence confinement time. He was paroled in November 2009 and discharged from parole in April or May 2011. Mr. Knight’s parole was never revoked. He is not eligible to petition to be removed from the sex offender registry until 2021.
Since his 2006 conviction, Mr. Knight has not been accused of any other sex offense or sexually inappropriate conduct. The only crime of which he has been accused since 2006 was a 2013 charge for failure to register as a sex offender. The charge was mistaken and was ultimately dismissed, but only after he endured the indignity, inconvenience, expense, and anxiety of being arrested, having to post bond, and making two court appearances over some two months.
Because Mr. Knight was convicted of a felony sex offense as an adult, his information appears on the list of registered sex offenders that members of the public may obtain from the CBI on request; and that information as well as a photograph are on the CBI website. Mr.
Knight’s information on the CBI’s website and sex offender registry states that he was convicted of “sexual assault on a child” in violation of C.R.S. §
4Mr. Knight testified that the polygraphs, which cost $250 to $300 per test, were required approximately quarterly, and that additional expenses included group and individual therapy sessions and a line of other tests
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at least one
Mr. Knight describes his family role as
In September 2014 Mr. Knight received a letter from the principal of his children’s school informing him that she and Denver Public Schools (DPS) had become aware of his status as a registered sex offender, and that he “is in violation of Denver Public Schools Board of Education Policy KFA, which prohibits, among other things, disruption of teaching or administrative operations, and the creation of an unsafe/threatening environment for our students and staff members.” The letter stated that effective immediately, and for the duration of the
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This exclusion from his children’s school is solely because he is a registered sex offender. Neither DPS nor anyone else has ever accused Mr. Knight of any conduct allegedly disrupting school operations or creating an unsafe or threatening school environment. Other than one occasion, Mr. Knight has not been inside his children’s school since receiving this letter. The arrangement allowed by the school has proven inconvenient and on numerous occasions the school has not lived up to its obligations to escort his children to him, resulting in ongoing difficulties for Mr. Knight and his children. The bar has also interfered with his ability to attend school events, and has caused concerns and confusion for his children about why he cannot go into their school building like other parents.
Arturo Vega
At age 15, Arturo Vega was adjudicated a juvenile offender for conduct occurring when he was 13 years old. He pleaded guilty to third degree sexual assault and was sentenced to probation with the condition that he reside in a juvenile treatment facility. He did not understand the sex offender registration requirements.
Mr. Vega’s probation was revoked and he was sentenced to serve two years at the Division of Youth Corrections at Lookout Mountain where he was required to participate in sex offender treatment. He testified without
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Mr. Vega was convicted of a misdemeanor for failure to register in September 2001, for which he was fined, and he did then register as a juvenile sex offender. Because he was adjudicated a sex offender as a juvenile, he does not appear on the CBI website, but his registration
Mr. Vega has experienced employment difficulties. He has maintained employment with a furniture installation contractor, but during that employment he has been asked to leave and/or prevented from being able to work at certain government and other facilities that require background checks. There is no evidence establishing that any of these employment difficulties were specifically as a result of Mr. Vega’s conviction for failure to register as a sex offender, rather than other charges that would also appear in a more general background check of Mr. Vega’s record.5
Mr. Vega made two attempts to be removed from the sex offender registry by submitting petitions to the sentencing court pursuant to C.R.S. §
SORA provides two conditions for granting a juvenile offender’s petition: (1) “successful
5A background check for Mr. Vega would also show
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completion and discharge from a juvenile sentence or disposition” and (2) that he “has not been subsequently convicted or has a pending prosecution for unlawful sexual behavior or any other offense, the underlying factual basis of which involved unlawful sexual behavior.” C.R.S. § 16-
assign or define a burden of proof, nor does it establish a standard for the court to apply in determining whether to grant a petition to deregister. The Colorado Court of Appeals has observed that “the statute appears to leave to the discretion of the trial court the ultimate decision of whether to grant a petition requesting discontinuation of sex offender registration, as well as the factors to consider in making that decision.” People v. Carbajal, 312 P.3d 1183, 1190 (Colo. App. 2012).
At the hearings on both of Mr. Vega’s petitions in 2006 and 2012, it was not disputed that he had successfully completed his juvenile sentence and had been discharged from confinement at the Department of Youth Corrections and from his subsequent period of parole. It was also undisputed that Vega had committed no additional sex offenses.
In applying the statutory requirement that the court consider “whether the person is likely to commit a subsequent offense of or involving unlawful sexual behavior,” the respective magistrates put the burden on Mr. Vega to prove, by a preponderance of the evidence, a negative: that he was not likely to commit such an offense. See, e.g., Ex. L at
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you would be, at this point in time, unlikely to commit a subsequent offense….”).
Both magistrates held that Mr. Vega had failed to submit specific information that is not required by statute and, in Mr. Vega’s case,
In the June 2012 hearing, the magistrate made proof of successful completion of
treatment a condition of the petition being granted, in addition to requiring Mr. Vega to prove he was not likely to commit another sex offense: “[Y]ou’re going to have to show in some form or fashion, not only that you’re not going to reoffend but that you successfully completed treatment and your sentence.” Ex. M at
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the evidence was undisputed that he had already completed it.
At trial, Plaintiffs presented testimony from
It suffices to say, without recounting the details of their testimony here,6 that these witnesses established that registered sex offenders and their families and friends 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, and regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.
Analysis
Plaintiffs do not argue that SORA is facially invalid, but rather assert that SORA’s sex offender registration requirements, as applied to them, violate the Eighth Amendment’s proscription against cruel and unusual punishment and the Fourteenth Amendment’s requirements of procedural and substantive due process. See United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (“An
6Some of these witnesses’ experiences are summarized below.
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constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case”).
I.Eighth Amendment
A. Punishment
Analysis of Plaintiffs’ Eighth Amendment claim first requires the Court to determine whether SORA’s sex offender registration requirements are “punishment” within the meaning of the prohibition of cruel and unusual punishments in the Eighth Amendment. Case law considering this issue has arisen almost entirely in the context of challenges to the retroactive application of sex offender registration requirements under federal or state prohibitions against ex post facto laws.
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court employed an
The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment;
[2]imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.
Smith v. Doe, 538 U.S. at 97. The two additional factors considered in Kennedy were [6] whether
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the statute’s requirements come into play only on a finding of scienter; and [7] whether the
behavior to which it applies is already a crime. Kennedy, 372 U.S. at
held that the effects of the Alaska version of SORA were
application of the law did not violate the Ex Post Facto Clause of the United States Constitution.
In the Ninth Circuit opinion that preceded Smith v. Doe, Doe I v. Otte, 259 F.3d 979 (9th
Cir. 2001), holding the Alaska statute punitive in effect, the court included the following
paragraph:
Not only do the Alaska statute’s registration provisions impose an affirmative disability, but its notification provisions do so as well. By posting the appellants’ names, addresses, and employer addresses on the internet, the Act subjects them to community obloquy and scorn that damage them personally and professionally. For example, the record contains evidence that one sex offender subject to the Alaska statute suffered community hostility
and |
{ "pageset": "S9cc2 |
damage to his business after printouts from the Alaska sex offender |
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registration internet website were publicly distributed and posted on bulletin boards.
Id. at
In reversing in Smith v. Doe, Justice Kennedy for the majority wrote:
... These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.
The State’s Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska’s citizenry.
Smith v. Doe, 538 U.S. at 99. The Court also stated, in distinguishing the requirement of Kansas
v. Hendricks, 521 U.S. 346 (1997), for an individual assessment of dangerousness, that in the
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context of the Alaska sex offender statute the state could “dispense with individual predictions of future dangerousness and allow the public to assess the risk” based on the information provided about registrants’ convictions. Smith v. Doe, 538 U.S. at 104.
In her dissent, Justice Ginsburg wrote:
... And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to
Id. at 117 (footnote omitted). Citing to the respondents’ brief she observed that John Doe I had completed a treatment program, had subsequently remarried, established a business and had been granted custody of a minor daughter on a court’s determination that he had been successfully rehabilitated. Id. at 117. The case was decided in the district court on motions for summary judgment and apart from Justice Ginsburg’s reference there is no explanation of what may have been evidentiary support for the parties’ respective arguments.
Applying the same analytical framework to other states’ laws or under state constitutional provisions, a number of courts have reached a conclusion different from the Supreme Court’s in Smith v. Doe. The Alaska Supreme Court, considering the same statute before the Supreme Court in Smith v. Doe, held that the act was so punitive in purpose or effect as to overcome the legislature’s civil intent, and therefore violated the Alaska Constitution. Doe v. State, 189 P.3d 999 (2008). See also, e.g., Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Michigan’s sex offender registration act retroactively imposed punishment and therefore violated Ex Post Facto Clause of United States Constitution); State v. Letalien, 985 A.2d 4 (Me. 2009) (retroactive application of Maine registration statute violated both Maine and United
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States Constitutions’ Ex Post Facto Clauses); Doe v. State, 111 A.3d 1077 (N.H. 2015) (effects of New Hampshire sex offender registration provisions were punitive; retroactive application violated New Hampshire Constitution); Starkey v. Okla. Dept. of Corrections, 305 P.3d 1004 (Okla. 2013) (Oklahoma sex offender registration statute was punitive; retroactive application of its provisions violated the Oklahoma Constitution).7
Defendants assert that SORA has been “determined in Colorado” to be
In Shaw v. Patton, 823 F.3d 556 (10th Cir. 2016), the court had an evidentiary record from a bench trial on the claim that application of the Oklahoma statute to the plaintiff who moved from Texas where he had been convicted of a sex offense was in violation of the Ex Post Facto clause. The appellate panel determined that there was no violation because it was not
7The Court recognizes that the decisions of these courts and others involved statutes that had varying provisions not identical with Colorado’s SORA. Michigan’s SORA, for example, considered in Does v. Snyder, included residency restrictions not appearing in Colorado’s SORA. These courts’ analysis of the relevant factors is nevertheless persuasive authority in analyzing whether SORA is punitive.
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retroactive punishment. Only two provisions of the statute were considered: (1) the requirements for reporting, and (2) the restrictions on residency and loitering within 2,000 or 500 feet, respectively, of a school, playground, park or child care center. Id., 823 F.3d at 559.
The plaintiff made an
65.It was different from probation in that there was no active supervision and mere reporting did not include other common requirements of probationary sentence. Id.
The court discussed banishment at some length, citing to a number of treatises describing banishment as it has been used historically. Id. at
The Shaw opinion was narrowly drawn based on an evidentiary record. There were 26 endnotes. In note 11 the court rejected the contention that Shaw was being “shamed” by the disclosure of personal information on the internet by relying on Justice Kennedy’s statement in
Smith. Id. at 563 n.11. In the last note, the court said that because this was an
Applying the analysis called for by the Supreme Court, this Court first concludes that the intent of SORA is
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C.R.S. §§
Weighing the factors considered in Smith v. Doe leads to the conclusion that SORA’s effects on these Plaintiffs are plainly punitive, negating the legislative intent.
Justice Kennedy’s words ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case. He and his colleagues did not foresee the development of private, commercial websites exploiting the information made available to them and the opportunities for “investigative journalism” as that done by a Denver television station adversely affecting Eugene Knight. The justices did not foresee the ubiquitous influence of social media.
The Colorado General Assembly’s disavowal of any punitive intent is an avoidance of any responsibility for the results of warning the public of the dangers to be expected from registered sex offenders. The register is telling the
As shown by the experience of these plaintiffs and the experience of others who have testified, the effect of publication of the information required to be provided by registration is to expose the registrants to punishments inflicted not by the state but by their fellow citizens.
The fear that pervades the public reaction to sex
8As the Court has noted previously, the Colorado General Assembly implicitly recognized that registration is punitive to at least some degree: SORA permits courts to exempt a person who was younger than eighteen years of age at the time of the commission of the offense from the registration requirements if it determines that registration “would be unfairly punitive.” C.R.S. §
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individual’s actual proclivity to commit new sex offenses. The failure to make any individual assessment is a fundamental flaw in the system.
In setting out the factors to be considered in determining whether a sanction is penal or regulatory in nature, in Kennedy v.
Public shaming and banishment are forms of punishment that may be considered cruel and unusual under the Eighth Amendment. See Smith v. Doe, 538 U.S. at 109 (Souter, J., concurring). Other courts considering this factor have found that sex offender registry statutes are sufficiently analogous to shaming to warrant a finding that this factor weighs in favor of finding a punitive effect. See, e.g., Does v. Snyder, 834 F.3d at
The observations of these other courts apply here. The record in this case reflects that maintaining the sex offender registry, requiring internet publication of information on the registry, and permitting republication of the information by private websites have effects that are
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analogous to the historical punishment of shaming and further resemble and threaten to result in effective banishment. All three Plaintiffs have experienced these effects in varying degrees. Mr. Millard’s experiences are particularly illustrative, where he has suffered the indignity of being unable to find housing despite hundreds of applications, has been forced to move because of a TV news story focusing on sex offenders in apartment housing, and, after finally managing to purchase his own home, has continued to suffer the indignity of loud public visits from the police and placement of bright markers on his door announcing his sex offender status to the neighborhood.
Other evidence shows that these experiences are not isolated or unusual and that Plaintiffs’ experiences, fears, and anxieties are not exaggerated or imagined. One witness called by Plaintiffs, Richard Gillit, is an Englewood City Councilman. He testified about Englewood’s efforts to enact and enforce municipal “distancing” requirements which, by prohibiting registered sex offenders from residing within a certain distance from schools, parks, and daycare centers, effectively bar registered sex offenders from living in most of the city. See Ryals v. City of Englewood, 364 P.3d 900 (Colo. 2016) (holding that Englewood’s ordinance, which was estimated to make 99% of the city
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accusations, innuendo, and public humiliation based on either mistaken or intentional spreading of information and, given normal human foibles, misinformation.
Another
This Court also agrees with the Sixth Circuit’s observations concerning SORA’s
resemblance to parole or probation in its requirements of frequent
In addition, in Colorado certain offenders are required to disclose and register “all
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Mr. Millard has been subjected to this requirement, even though there is no evidence that the crime for which he was convicted involved the use of the internet or social media, or that there is any objective danger of his doing so.
This is a significant incursion: the Supreme Court has recognized First Amendment protection of internet communications because
Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997)). While Packingham involved a First Amendment challenge and this case does not, Justice Kennedy writing for the majority noted parenthetically that “the troubling fact that the law imposes severe restrictions on
persons who already have served their sentence and are no longer subject to the
supervision of the criminal justice system is … not an issue before the Court.” Id., 137 S.Ct. at 1737 (emphasis added). That observation is significant here.
SORA’s registration requirement does not sweep as broadly in prohibiting the use of the internet and social media as the law struck down in Packingham, but it does something the North Carolina law did not. By requiring certain offenders to register email addresses and other internet identities, SORA provides law enforcement a supervisory tool to keep an eye out for registered sex offenders using email and social media. That is one more restrictive and intrusive provision that resembles the supervisory aspects of parole and probation, and complements and continues the state’s comprehensive supervision of registered sex offenders even after they are released from the express provisions of their parole or probation. That aspect of SORA is a “severe restriction” like the provisions in Packingham. It also distinguishes SORA from the Alaska law
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considered in Smith v. Doe, in which the Court concluded that the registration provisions were
not similar to probation because they did not call for ongoing supervision.9
These similarities to historical forms of punishment weigh in favor of finding that
SORA’s effects are punitive.
SORA also imposes affirmative disabilities or restraints that are greater than those
deemed “minor and indirect” by the Supreme Court in Smith. There, the Court expressly noted
that the law under consideration did not have an
stated that the record contained “no evidence that the Act has led to substantial occupational or
housing disadvantages for former sex offenders that would not have otherwise occurred.” Smith,
538 U.S. at 100.
Here, Plaintiffs are subject to
on the registry, and Mr. Vega’s experience demonstrates that even the theoretical ability to
petition to deregister can be illusory. Having to report to law enforcement every time one moves,
9Packingham also reflects an apparent evolution in the mindset of Justice Kennedy, who authored the majority opinions in both Smith v. Doe and Packingham. In Smith, decided in 2003, Justice Kennedy downplayed the punitive effect of statutory internet notification provisions, finding their “purpose and the principal effect” were “to inform the public for its own safety, not to humiliate the offender”; and that the internet simply makes a public records search “more efficient, cost effective, and convenient” for citizens. Smith, 538 U.S. at 99. In 2017, in addition to noting that restrictions on internet use are a “severe restriction,” Justice Kennedy recognized that the internet and social media websites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham, 137 S.Ct. at 1737. That being the case, the power provided by the internet works both ways: not only to provide citizens a convenient and inexpensive means to identify and locate convicted sex offenders, but also to provide a citizen the means, if so inclined, to quickly and efficiently disseminate information about a sex offender to other members of the public with the intent to harass or humiliate. The record in this case casts serious doubt on Justice Kennedy’s conclusions in Smith that the “principal effect” of putting sex offender data on the internet is merely informational, and not humiliation.
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as well as at regular time intervals, is hardly a “minor or indirect” restraint, especially when failure to do so is punishable as a crime and also may subject the registrant to
This factor weighs in favor of finding that SORA’s effects are punitive. See also Does v. Snyder, 534 F.3d at
Another factor is whether SORA promotes traditional aims of
Defendant Rankin, however, acknowledged at trial as Director of the CBI that the registry has multiple purposes: to enhance public safety, to provide an investigative tool for law enforcement, and “there’s also a deterrent effect of having the information available….” Trial Trans.,
11/14/2016 at
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https://apps.colorado.gov/apps/dps/sor/information.jsf (accessed August 30, 2017). It is thus undisputed that the registry promotes deterrence, a traditional aim of punishment.
In addition, SORA requires offenders to register based only on their conviction for a past action, and based on a statutory classification of the offense and not on an individualized assessment of an offender’s level of dangerousness. Such a scheme “begins to look far more like retribution for past offenses” than a public safety regulation. Doe v. State, 111 A.3d at 1094 (quoting Com. v. Baker, 295 S.W.2d 437, 444 (Ky. 2009)). It therefore “strains credulity to suppose that the Act’s deterrent effect is not substantial, or that the Act does not promote community condemnation of the offender, both of which are included in the traditional aims of punishment.” Id. (quoting Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009)).
This factor weighs in favor of finding that SORA’s effects are punitive.
Courts considering whether there is a rational connection to a
The Court is also to consider whether the registration scheme imposed by SORA “appears excessive in relation to the alternative purpose assigned,”
Colorado’s law imposes quarterly or annual registration requirements, for five, ten, or twenty years before a petition to deregister may be filed, or for life with no chance to deregister.
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These requirements are based on the statutory level of the offense for which a person is convicted. No consideration is given, before these requirements are imposed or at any time before deregistration is permitted, to an individual’s relative level of risk to the community. There is no opportunity for an individual to shorten the length of his registration period or reduce the frequency of these requirements even if he is able to submit convincing evidence that he is completely rehabilitated and poses no danger to public safety. Likewise, the information made available to the public is based on the level of statutory offense for which one is convicted, again without any determination of a specific individual’s potential risk. Similarly, SORA’s requirements for disclosure and registration of internet identities are based solely on statutory classifications of an offender’s conviction, and are not tied to past abuse of the internet.
These sweeping registration and disclosure
Consideration of SORA’s application to Plaintiffs’ particular experiences, as summarized above, demonstrates this point. Application of unalterable registration requirements and time periods with no possibility of considering their individual circumstances is arbitrary and excessive.
This factor favors treating SORA as punitive.
If a sanction is not linked to a showing of scienter, it is less likely to be intended as a
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punishment. Wallace, 905 N.E.2d at 381. SORA’s registration requirements apply to a variety of
offenses, but most require a finding that the offender acted “knowingly.” See, e.g., C.R.S. §§ 18-
punitive.
SORA also imposes its registration requirements for behavior that is already a crime. As
Justice Souter stated in Smith,
The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature
uses prior |
{ "pageset": "Sb5a |
convictions to impose burdens that outpace the law’s stated |
|
civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.
Smith, 538 U.S. at 109 (Souter, J., concurring). Other courts have considered this factor and
found it indicates a punitive effect. See Doe v. State, 189 P.3d at 1015; Wallace, 905 N.E.2d at
382; Letalien, 985 A.2d at 22; Doe v. State, 111 A.3d at 1099; Starkey, 305 P.3d at 1028. This
Court agrees.
In summary, all but one of the seven factors weighs in favor of a conclusion that SORA’s
effects are punitive. These punitive effects are sufficient to overcome the stated regulatory, non-
punitive intent of the Act.
B. Cruel and Unusual
Most cruel and unusual punishment
“inherently barbaric” punishment such as
disproportionate to the crime. This approach is based on the “precept of justice that punishment
for crime should be graduated and proportioned to [the] offense.” Graham v. Florida, 560 U.S.
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48, 59 (2010) (quoting Weems v. United States, |
|
|
217 U.S. 349, 367 (1910)). |
|
|
Defendant’s closing argument does not address the question whether, if sex offender registration is punishment, it is disproportionate or otherwise constitutionally unsound. Defendant asserts only that SORA’s registration requirements are not punishment, and therefore do not fall within the Eighth Amendment’s proscription against cruel and unusual punishment.
The registration requirements imposed by SORA, coupled with the actual and potential effects of being required to register, are not merely akin to historical punishments, as discussed above. As shown by the evidence in this case, SORA’s requirements, as applied to Plaintiffs, subject them to additional punishment beyond their sentences through the pervasive misuse and dissemination of information published by the CBI. Defendant has offered no evidence that any Plaintiff presents an objective threat to society, such as a material risk of recidivism. Yet Plaintiffs have been and continue to be subjected to actual and potential dangers of ostracism and shaming; effective banishment and shunning in the form of limitations on their abilities to live and work without fear of arbitrary and capricious eviction, harassment, job relocation, and/or firing; significant restriction on familial association; and actual and potential physical and mental abuse by members of the public who for whatever reason become aware of their status as a registered sex offender. They are also subject to exposure by local law enforcement agencies making checks of their residences, as happened with Mr. Millard.
All of these are foreseeable consequences of the registry. Indeed, the CBI acknowledges the risk of public harassment and worse by placing a warning on its website that information
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obtained there is not to be used for improper purposes.10 Thus, a convicted offender is knowingly placed in peril of additional punishment, beyond that to which he has been sentenced pursuant to legal proceedings and due process, at the random whim and caprice of unknowable and unpredictable members of the public. This risk continues for the entire time a sex offender is on the registry, and perhaps even beyond that if he is fortunate enough to eventually deregister.
This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten Plaintiffs with punishment disproportionate to the offenses they committed. Where the nature of such punishment is by its nature uncertain and unpredictable, the state cannot assure that it will ever be proportionate to the offense. SORA as applied to these Plaintiffs therefore violates the Eighth Amendment.
SORA as applied to Mr. Vega has resulted in unconstitutional disproportionate punishment for an additional reason. The requirement that Mr. Vega undergo offense specific treatment while in custody was part of the sentence imposed for his juvenile adjudication. As such, it was part of his punishment. The undisputed evidence, at the
10The CBI website states: “The use of the sex offender registry information to harass, endanger, intimidate, threaten or in any way seek retribution on an offender through illegal channels is prohibited. Any person who engages or participates in such acts may be charged criminally.” CBI website, “Public Notice and User Agreement”; viewable at:
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completed treatment, even though the state had destroyed the only records by which Mr. Vega could meet this burden of proof. The state court’s refusal to grant
I.Fourteenth Amendment
A. Procedural Due Process.
An alleged violation of the procedural due process required by the Fourteenth Amendment prompts a
Mr. Vega has established a procedural due process violation. There is no legitimate dispute that being required to continue sex offender registration indefinitely is a deprivation of Mr. Vega’s liberty. The procedures followed by the state in considering his petitions did not comport with basic principles of fundamental
SORA requires a court weighing a deregistration petition to “consider” whether it is “likely” that the petitioner will
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legislature intended to place the burden on petitioners to prove a subsequent offense is not likely, it could easily have said so, but did not.11 Further, it would make no sense for the statute to require the court to “consider” whether a petitioner is likely to
The magistrates hearing both petitions placed the burden on Mr. Vega to prove that another offense was not likely. They did so both in general and specifically by requiring him to prove, other than through his own testimony, that he had “successfully” (as defined by the magistrate) completed offense specific treatment. That burden is not consistent with the statute, imposed a vague and subjective standard, and further reversed the
The magistrates compounded the unfairness by requiring Mr. Vega to prove this negative fact by providing evidence (beyond his own unrebutted testimony) that he had completed offense specific treatment, even though the state had destroyed the records by which Mr. Vega would have been able to make that proof. And finally, the magistrate in the 2012 hearing actually made
11Indeed, a recent amendment to §
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proof of completion of treatment a condition of granting the petition, a condition that does not appear in the statute and that Mr. Vega could not meet. See, e.g., Ex, M at
This
Mr. Millard and Mr. Knight have not argued or presented evidence supporting a claim that any procedures followed by the government deprived them of a protected liberty interest without due process of law.
B. Substantive Due Process.
The Due Process Clause “guarantees more than fair process.” Seegmiller v. LaVerkin City, 528 F.3d 762, 766 (10th Cir. 2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 719 (1997)).
All of the plaintiffs assert that the restrictions on their liberty imposed on them as
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registered sex offenders constitute a violation of the “substantive due process” protection implicit in the Fourteenth Amendment. The Supreme Court has, at times, referred to that concept as constitutional protection against arbitrary governmental actions that are so contrary to the concept of individual autonomy, but has never clearly distinguished between procedural and substantive due process. In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Court distinguished between the abuse of executive
In this case, Plaintiffs argue that SORA as applied to them deprives them of rights to privacy and liberty, including privacy expectations in the personal information about them that is made publicly available through SORA, but would not be available (either at all or as readily as is possible under SORA); and liberty interests in living, working, associating with their families and friends, and circulating in society without the burdens imposed by SORA. Mr. Vega extends this argument to the greater expectation of privacy a juvenile offender has in his records. He asserts that even though his juvenile adjudication for the underlying sex offense is not shown on his general criminal history that is publicly available, his adult conviction for failure to register is public, thus making his status as a sex offender public as well and defeating his right to privacy in his juvenile adjudication.
Plaintiffs contend that it is not merely the fact of registration and maintenance of the registry that deprives them of their privacy and liberty, but the widespread dissemination of their
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personal information that is permitted and even encouraged through the CBI website and private
entities who republish the information, which then has the common and foreseeable adverse
consequences of such publication
The cases concerning limitations on punitive damage awards by juries illustrate the
difficulty in determining what may be a fundamentally unfair procedure in deprivation of
property, violating substantive due process. See BMW of North America, Inc. v. Gore, 517 U.S.
559 (1996), and cases cited therein.12 But those cases do establish that infliction of punishment
cannot be purely arbitrary. The Court recognized that even if procedures used for determining a
punitive damages award may be reasonable and subject to judicial review, when an award can be
fairly characterized as “grossly excessive” in relation to a state’s interests in punishment and
deterrence, it may “enter the zone of arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment.” Id., 517 U.S. at 568. Justice Breyer explained:
This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion…. Requiring the application of
law, rather than a decisionmaker’s caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself….
Legal standards need not be precise in order to satisfy this constitutional concern…. But
they must offer some kind of constraint upon a jury or court’s discretion, and thus protection against purely arbitrary behavior….
Id. at
Here, the plaintiffs have shown that the punitive aspects of Colorado’s sex offender
registration scheme enter the “zone of arbitrariness” that violates the due process guarantee of
12This line of cases was not cited in the arguments of counsel.
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the Fourteenth Amendment. There is a rational relationship between the registration requirements and the legislative purpose of giving members of the public the opportunity to protect themselves and their children from sex offenses. But what the plaintiffs have shown is that the public has been given, commonly exercises, and has exercised against these plaintiffs the power to inflict punishments beyond those imposed through the courts, and to do so arbitrarily and with no notice, no procedural protections and no limitations or parameters on their actions other than the potential for prosecution if their actions would be a crime.
Relief
Plaintiffs’ Fourth Amended Complaint seeks both declaratory relief and a permanent injunction prohibiting enforcement of SORA against them and dissemination of information regarding their registrations pursuant to SORA. The parties have not addressed the relief sought either at trial or in
A party seeking a permanent injunction must prove: (1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009). The trial court is vested with “necessarily broad” discretion in making this determination.
Plaintiffs have submitted no evidence or argument whatsoever to meet their burden of proof on factors (2) through (4), and Defendant has had no opportunity or reason to submit contrary evidence and arguments. Under these circumstances, permanent injunctive relief has no support in the record and only declaratory relief is appropriate.
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Order
Based on the foregoing, it is
ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§
FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§
FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§
FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).
Dated: August 31, 2017
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge
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