Millard v. Camper

• Decision Date: 20 August 2020
• Docket Number: No. 17-1333,17-1333
• Citation: 971 F.3d 1174
• Parties: David MILLARD ; Eugene Knight ; Arturo Vega, Plaintiffs - Appellees, v. John CAMPER, in his official capacity as Director of the Colorado Bureau of Investigation, Defendant - Appellant. Mike Hunter, Attorney General of the State of Oklahoma; Derek Schmidt, Attorney General of the State of Kansas; Hector H. Balderas, Attorney General of the State of New Mexico; Sean Reyes, Attorney General of the State of Utah; Peter K. Michael, Attorney General of the State of Wyoming; 17 Scholars Who Study Sex Offenses; National Association For Rational Sexual Offense Laws, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

971 F.3d 1174

David MILLARD ; Eugene Knight ; Arturo Vega, Plaintiffs - Appellees,

v.John CAMPER, in his official capacity as Director of the Colorado Bureau of Investigation, Defendant - Appellant.

Mike Hunter, Attorney General of the State of Oklahoma; Derek Schmidt, Attorney General of the State of Kansas; Hector H. Balderas, Attorney General of the State of New Mexico; Sean Reyes, Attorney General of the State of Utah; Peter K. Michael, Attorney General of the State of Wyoming; 17 Scholars Who Study Sex Offenses; National Association For Rational Sexual Offense Laws, Amici Curiae.

No. 17-1333

United States Court of Appeals, Tenth Circuit.

August 20, 2020

Melanie J. Snyder, Chief Deputy Attorney General of Colorado (Frederick R. Yarger, Solicitor General of Colorado; Chris W. Alber, Senior Assistant Attorney General of Colorado; James X. Quinn, First Assistant Attorney General of Colorado; Robert C. Huss, Assistant Attorney General of Colorado; Russell D. Johnson, Assistant Solicitor General of Colorado, with her on the briefs), for Petitioner-Appellant.

Ty Gee, Haddon, Morgan and Foreman P.C., Denver, Colorado (Adam Mueller, Haddon, Morgan and Foreman P.C., Denver, CO; Alison Ruttenberg, Boulder, CO; Mark Silverstein, American Civil Liberties Union of Colorado; Denver, CO, Sara R. Neel, American Civil Liberties Union of Colorado, Fredericksburg, TX, with him on the brief), for Respondent-Appellee.

Before HARTZ, SEYMOUR, and EID, Circuit Judges.

EID, Circuit Judge.

Plaintiff-AppelleesDavid Millard, Eugene Knight, and Arturo Vega challenge the constitutionality of Colorado's Sex Offender Registration Act (CSORA).The district court held CSORA was unconstitutional as applied to the Appellees¹ because the statute inflicted cruel and unusual punishment and violated substantive due process guarantees.Additionally, the district court held that the state courts’ application of CSORA's deregistration procedures to Vega violated his procedural due process rights.Defendant-Appellant, the State,² appeals from the entirety of the district court's decision.Because the district court's ruling contravenes binding Supreme Court and Tenth Circuit precedent, we reverse.

I.BACKGROUND

A.Development of sex offender registration acts and CSORA

States began adopting sex offender registry laws in the early 1990's in response to the high-profile sexual assaults and murders of children by individuals with prior sex-offense convictions.SeeNichols v. United States , ––– U.S. ––––, 136 S. Ct. 1113, 1116, 194 L.Ed.2d 324(2016);see also34 U.S.C. § 20901(1) – (17)(listing names).In 1994, Congress"conditioned federal funds on [s]tates’ enacting sex-offender registry laws meeting certain minimum standards."Id.(discussing the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act)."By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of" a sex-offender registry.Smith v. Doe , 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164(2003).

In 2006, Congress revised its federal sex-offender registry requirements with the adoption of the Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109-248,§§ 101–155, 120 Stat. 587, codifiedat 42 U.S.C. § 16901 et seq.(2006 ed.), transferred to34 U.S.C. § 20901 et seq.(2017 ed.).With SORNA, Congress created a nationwide registry intended to "protect the public from sex offenders."34 U.S.C. §§ 20901,20921(national registry).SORNA continues to condition federal funding to states’ maintenance of their own sex-offender registries, but also requires states (and registrants) to provide registry information to the federal government.Id. at §§ 20913(c),20914,20918.SORNA requires states "make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public," pertinent information "about each sex offender in the registry."Id. at § 20920(a).And, the website must be searchable by zip code or geographic area.Id.

Colorado has maintained some variant of a sex-offender registry since 1991.See1991 COLO. SESS. LAWS , ch. 69.It is against this legal backdrop that, in 2002, Colorado adopted CSORA.2002 COLO. SESS. LAWS , ch. 297.CSORA's provisions render Colorado compliant with SORNA.³CSORA has three basic elements: (1) registration by sex offenders with local law enforcement; (2) compilation of a sex-offender registry by the Colorado Bureau of Investigation (CBI); and (3) limited public disclosure of some of the information contained in the registry.The statutory text itself explains that "it [was] not the general assembly's intent that the information [contained in the Registry] be used to inflict retribution or additional punishment on any person," but rather CSORA was intended to address "the public's need to adequately protect themselves and their children" from those with prior sexual convictions.COLO. REV. STAT. § 16-22-110(6)(a);see alsoid.§ 112(1).

Registration is required under CSORA if a person is (a) convicted of any of the enumerated thirty-plus misdemeanor or felony offenses, (b) convicted of any offense in which the "underlying factual basis involves" any of those offenses, or (c) released from the custody of the state department of corrections after serving a sentence for any of the offenses or an offense with the requisite "underlying factual basis."Id. at § 103(1)–(2).Juveniles must also register but can petition for deregistration if they satisfy certain criteria.Id. at § 103(5)(a).

Persons subject to the registration requirement must register with local law enforcement and disclose certain personal information including their name, date of birth, address, place of employment, all names previously used, the identity of any school they are attending, vehicle identification number, and, for certain registrants, email addresses.Id. at § 109(1).⁴Each registrant must also provide a current photograph and a set of fingerprints.Id. at § 108(6).Most registrants must register annually, but sexually-violent offenders and those convicted of particularly serious offenses must register quarterly.Id. at § 108(1)(b), (d).

The information obtained pursuant to registration is then compiled by the CBI, the agency that maintains the Colorado Sex Offender Registry (Registry).The Registry is available to state and federal criminal justice agencies, id . at §§ 109,110,112, and it includes the offender's name, registration status, date of birth, and description of the offender's unlawful sexual behavior and crimes, id. at § 110(2).

In addition to compiling the Registry itself, CSORA also requires the CBI make some of the registrants’ information available to the public.Upon request, the CBI must issue a list of persons on the Registry.Id. at § 110(6)(c).That list must include, at minimum, the registrant's name and aliases, address, birth date, photograph, and the offense that required him or her to register.Id. at § 110(6)(c), (f).The CBI also maintains a public website searchable by name and geographic area.Id. at § 111(1).This website does not include information about registrants whose offenses were misdemeanors, or information about registrants who committed the triggering offense while they were juveniles.Id. at § 111(1)(a)–(d).However, information about those registrants is available via the Registry list, which as explained above, any person could obtain upon request to the CBI.Id. at § 110(6)(c).Since the creation of the Registry, private, third-party businesses have emerged that republish registrants’ personal information on the internet with no limitation or regulation on republication.

Some registered sex offenders can petition the court to discontinue registration under certain conditions, seeid. at § 113(1), while certain categories of sex offenders are ineligible for deregistration and must continue to abide by CSORA's registration requirements for the rest of their lives, seeid. at § 113(3).Whether a sex offender is eligible for removal from the Registry depends on the underlying offense.⁵

B.The Appellees

Millard, Knight, and Vega are convicted sex-offenders subject to CSORA's registration requirements.⁶Together, they brought suit pursuant to 42 U.S.C. § 1983, arguing that CSORA's registration requirements constitute cruel and unusual punishment under the Eighth Amendment; violate their Fourteenth Amendment right to privacy; and, in the case of juvenile-offenders like Vega, violate their right to Due Process under the Fourteenth Amendment.Each alleges that registration has been onerous, making it harder to hold a job, find housing, raise his children, or pass a criminal background check.Millard contends that he had to move to a different work location because of his sex-offender status, and that he was forced to move—and had to file hundreds of applications before finally finding a new residence—because of a TV news story focusing on sex offenders in apartment housing, and that he incurred shame from the broad dissemination of his information and loud visits from police.Knight allegedly has experienced shame due to private businesses republishing the registry, is no longer able to enter his children's school, and was denied employment at Home Depot after his background check was "red flagged."Vega, who committed his underlying offense as a juvenile, contends that his placement on the registry prevents him from finding secure employment, and that the state court violated procedural due process when denying his petitions for deregistration.

C.The District Court Order

Following a bench trial, the district court concluded that CSORA(1) constituted cruel and unusual punishment⁷ in violation of the Eighth Amendment as applied to Appellees, Millard v. Rankin , 265 F. Supp 3d 1211, 1231–32(D. Colo.2017), (2) violated the Appellees’ substantive due process rights, id. at 1235; and (3) violated—through the state-court's...