Federal judge declares Colorado sex offender registry unconstitutional for 3 men

DENVER – A federal judge in Denver on Thursday ruled that the state’s Sex Offender Registration Act violates the U.S. Constitution when applied to three men because it constitutes further punishment beyond their initial jail time and probation.

U.S. District Court of Colorado Senior District Judge Richard P. Matsch stopped short of declaring the full statute unconstitutional, but determined that when applied to the three Colorado men—David Millard, Eugene Knight and Arturo Vega—SORA violated provisions of the Eighth and 14th amendments.

The civil lawsuit was first filed in September 2013 against the Colorado Bureau of Investigation’s director, Michael Rankin, and was amended over the years before a trial was held last December.

Judge Matsch issued his findings of fact, conclusions of law and clerk’s judgment Thursday.

Attorneys for Millard, Knight and Vega argued that since the three men had completed their court sentences for various sex crimes, and had completed probation and sex offender rehabilitation, that they should no longer be subject to being on the registry and should be able to be removed.

Once sex offender probation or a jail sentence is completed, it takes either five,10 or 20 years before an offender can be removed from Colorado’s registry by petitioning–depending on the person’s sentence.

Three inmates file complaints over registry

Millard pleaded guilty to second-degree sex assault on a minor in 1999 and was sentenced to 90 days in a jail work release program and 8 years of probation. His sentence also required him to register as a sex offender for 10 years after he completed probation.

He met all the requirements, but he still appears on the list of registered sex offenders, and according to the lawsuit has faced threats from his workplace and co-workers about his past, despite having disclosed his conviction.

Further, the lawsuit cited a 2005 Denver7 Investigates report in which Millard was named as one of several convicted sex offenders living at certain apartment complexes in the Denver area, after which he faced retribution and lost his apartment.

Millard also faced constant contact with police officers who were checking in at his home and leaving brightly-colored “registered sex offender” signs on his door, and is required to disclose all of his online accounts and identities.

Knight pleaded guilty to an attempted sexual assault on a child charge committed when he was 18 years old in 2005. He received the same sentence as Millard, but also had to participate in a sex offender treatment program. He completed all the programs, but was mistakenly charged with failing to register in 2013 and the charge was dropped.

Still, according to the suit, he faced extra inconveniences and anxiety because of the “mistaken” charge.

According to the suit, CBI mistakenly put on its registry that Knight had been convicted of sexual assault on a child, which then led private websites to put that false charge online as well.

But Knight’s children’s school found out, and he hasn’t been able to visit the school for much of the past several years.

Vega pleaded guilty to third-degree sexual assault when he was an underage teenager and also completed his sentence. His charge doesn’t appear in criminal background checks because he was a juvenile, but he still shows up on the CBI’s registry because he failed to register one time in 2001.

Vega tried twice to get himself off the sex offender registry, but Jefferson County District Court judges denied those requests in 2006 and 2012, saying that they believed he was still “likely to commit” a subsequent offense—putting the burden of defense on him, and leading the magistrate judges in the case to deny his removal from the registry.

“The state court’s refusal to grant de-registration, absent either meeting this impossible burden or completing additional treatment, effectively gave Mr. Vega the choice of an adding additional treatment to his already-completed sentence, or remaining on the sex offender registry indefinitely,” Matsch wrote. “Imposing such punitive conditions was disproportionate to Mr. Vega’s conviction.”

Judge decides in favor of plaintiffs

In his Thursday judgment, Judge Matsch argues that these magistrate judges’ findings mean that “even the theoretical ability to petition to deregister can be illusory.”

“The evidence in this case demonstrates that the very real restraints on Plaintiffs’ abilities to live, work, accompany their children to school, and otherwise freely live their lives are not simply a result of the crimes they committed, but of their placement on the registry and publication of their status,” Judge Matsch wrote in his findings of facts in the case.

Matsch found that six of the seven factors he weighed in determining whether SORA had “punitive” effects indeed existed and were “sufficient to overcome the stated regulatory, non-punitive intent of” SORA.

Citing a U.S. Supreme Court case from 2001, Smith v. Doe, Matsch said that the Supreme Court at the time didn’t “foresee the ubiquitous influence of social media” in regards to sex offender registries, and that thus, SORA’s effects on the three men were punitive, though the law’s intent was non-punitive, Matsch found.

During the case, Rankin testified that among the purposes of the CBI’s registry was to have “a deterrent effect” on already-convicted or prospective sex offenders.

Thus, Matsch found, “such a scheme ‘begins to look far more like retribution for past offenses’ than a public safety regulation.”

He found that SORA violated the three men’s Eighth Amendment rights to protections against cruel unusual punishment because SORA subjects them “to additional punishment beyond their sentences through the pervasive issue and dissemination of information as published by the CBI.”

Matsch found that Rankin and the CBI had “offered no evidence” that any of the three men remained objective threats to society, that the three were being subject to “effective banishment and shunning” because they are living in fear of being evicted, harassed or losing their jobs, and because they’ve faced actual abuse by members of the public who learn of their sex offender status.

He found that those risks continue “for the entire time a sex offender is on the registry, and perhaps even beyond that if he is fortunate enough to eventually deregister.”

“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,” Matsch wrote. “SORA as applied to these Plaintiffs therefore violates the Eighth Amendment.”

The court also found that Vega’s procedural due process rights under the 14th Amendment were violated by the “Kafka-esque procedure” in which Vega had to try and prove he wasn’t “likely” to commit another sex offense.

“Mr. Vega was denied his liberty interest in being freed from the burdens of the restrictions imposed on registered sex offenders, even though he complied with all statutory requirements for deregistration. Therefore he was not afforded due process,” Matsch wrote.

He slammed the magistrate judges for their actions in his analysis:

“The fear that pervades the public reaction to sex offenses—particularly as to children—generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses. The failure to make any individual assessment is a fundamental flaw in the system,” Matsch wrote.

He also found that all three of the men’s substantive due process rights under the 14th Amendment were violated:

“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,” Judge Matsch wrote.

What happens next?

Since the lawsuit was an as-applied challenge, as opposed to a facial challenge, the judge’s order is only binding as it pertains to the three men. But Judge Matsch stopped short of granting an injunction in the case, only granting declaratory relief.

As such, the CBI and Rankin don’t have to immediately grant the three men de-registration from the sex offender registry, but the men could bring Matsch’s decision to county district court magistrate judges as support during a de-registration hearing.

Their attorney, Alison Ruttenberg, told the Associated Press the men would seek to do so, and that others on the registry might try to file similar complaints.

“These people had done everything society asked them to do,” she told the AP. “They served their sentence, stayed out of trouble and had done nothing else wrong but were being publicly vilified.”

Christopher Jackson, an attorney for Sherman Howard who previously worked as an assistant attorney general in Colorado, said it was “rare” that a judge find in favor of an Eighth Amendment complaint, but said after reading Matsch’s decision that the judge “was very convinced that these particular registered sex offenders were being punished in a significant way and disproportionately.”

He said the applied challenge win for the plaintiffs would make it likely they’d get the relief they want in getting off the sex offender registry, or that they’d at least “have a sympathetic ear when they go into court next.”

Jackson, who works on federal cases, also said he’d be “very surprised” if the case didn’t get appealed, saying Rankin and CBI had “strong incentive” to appeal to the 10th Circuit in order to “kind of get some finality.”

He also speculated that the case could go all the way to the U.S. Supreme Court because it’s an “unusual issue with an unusual outcome” and said that the court might want to make updated rulings on sex offender registries across the country.

But Colorado Attorney General Cynthia Coffman was non-committal to appealing the case, and told Denver7 she was working with Rankin and CBI to determine what her office was going to do moving forward.

“While concerning, yesterday’s ruling affects only three individuals and does not call into question the constitutionality of Colorado’s sex offender registry as a whole, which continues to be lawfully maintained by the Colorado Bureau of Investigation,” Coffman said. “I am committed to having a robust sex offender registry in our state that protects the public. My office is working with our clients to determine how best to proceed with this case.”

A spokeswoman for Rankin and CBI said she was still sorting through the ruling Friday and would be responding later in the day.