By Larry . . . NARSOL is extremely disappointed to announce this long-awaited decision from the United States Court of Appeals for the Tenth Circuit. To refresh your memory, in August 2017 U.S. District Judge Richard Matsch found that Colorado’s sex offender registration scheme was unconstitutional. The state appealed Judge Matsch’s decision to the Court of Appeals. Both NARSOL and a group of legal scholars filed amicus briefs. Unfortunately, the three-judge panel reversed Judge Matsch and remanded the case. You can read the opinion here. Also, the case was discussed in episode 141 of the Registry Matters Podcast.
Appellees David Millard, Eugene Knight, and Arturo Vega had challenged the constitutionality of Colorado’s Sex Offender Registration Act (CSORA). The District Court held CSORA was unconstitutional as applied to the appellees because the statute inflicted cruel and unusual punishment and violated substantive due process guarantees.
The Tenth Circuit states that Congress created the federal SORNA registry to “protect the public from sex offenders.”  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.”
Millard, Knight, and Vega are subject to CSORA’s registration requirements. Together, 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;
- It violates their Fourteenth Amendment right to privacy; and,
- In the case of juvenile-offenders like Vega, it violates their right to due process under the Fourteenth Amendment.
Each alleged that registration has been onerous, making it harder to hold a job, find housing, raise children, or pass a criminal background check. Millard alleged that he was forced to move to a different work location because of his sex-offender status and struggled to find new housing, and that he incurred shame from the broad dissemination of his information and loud visits from police.
Knight alleged he 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.
DISTRICT COURT TRIAL
Following a bench trial, the District Court concluded that CSORA (1) constituted cruel and unusual punishment in violation of the Eighth Amendment as applied to appellees in Millard v. Rankin, (2) violated the appellees’ substantive due process rights; and (3) violated, through the state-court’s misapplication of the law when denying Vega’s petition to deregister, Vega’s procedural due process rights. The court granted declaratory judgment to the appellees.
EIGHTH AMENDMENT CLAIM
A deprivation cannot violate the Eighth Amendment’s prohibition against “cruel and unusual punishment” unless it first qualifies as “punishment.” Whether a law equates to “punishment” depends on whether the legislature’s intent was to punish; and if not, whether there is the “clearest proof” that any punitive effects of the law negate the legislature’s civil intent. The Tenth Circuit court has twice, and the Supreme Court has once, determined that sex-offender registration requirements were not “punishments” because their respective legislatures lacked punitive intent and their application lacked punitive effect. Evaluating the Colorado legislature’s intent and comparing CSORA’s effects to those deemed nonpunitive by binding precedent in Smith, Shaw, and Femedeer, the Tenth Circuit’s conclusion was that CSORA’s registration requirements as applied to appellees do not amount to punishment.
Past precedent in the Tenth Circuit shows that CSORA’s effects on appellees are not punitive enough to negate the legislature’s civil intent. To determine the punitive nature of CSORA’s effects, the court considered five factors used in Kennedy v. Mendoza-Martinez. These are whether the scheme resembles traditional forms of punishment, imposes an affirmative disability or restraint, promotes the traditional aims of punishment, has a rational connection to a nonpunitive purpose, or is excessive with respect to this purpose. The Tenth Circuit stated, “… neither the District Court nor Appellees distinguish their case from our binding precedent in Smith, Shaw, and Femedeer in any meaningful way with regard to any of the Mendoza-Martinez factors, leading us to conclude that CSORA’s effects do not constitute punishment.”
IS REGISTRATION BANISHMENT?
CSORA does not resemble banishment. The District Court based its conclusion on the fact that one of the appellees 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.” But such obstacles are less onerous than Oklahoma’s residency restrictions that place an outright ban on sex-offenders “living within 2,000 feet of a school, playground, park, or child care center,” which the Tenth Circuit court in Shaw found did not equate to banishment.
Moreover, the appellees’ struggles here did not stem from state-imposed residency restrictions such as in Shaw, but instead from third parties and businesses implementing their own procedures. CSORA mandates the dissemination of information, which is not the same as “banishment.”
Last, the Tenth Circuit concluded that application of CSORA to the appellees does not amount to probation. The District Court had reasoned that CSORA’s requirements for in-person reporting and disclosure of email addresses and chat-handles provided law enforcement supervisory capabilities akin to probation. In Shaw the court concluded that in-person reporting does not amount to probation. The court stated its reasoning in that case applies equally to CSORA’s email and chat-handle disclosure requirements, arguing that any monitoring capability stemming from these requirements falls short of the “far more active” role law enforcement plays in a probationer’s life, such as mandating employment, requiring consent before moving or changing jobs, and forbidding drug and alcohol use.
DISABILITY OR RESTRAINT
For this factor, the Tenth Circuit assessed whether CSORA “imposes an affirmative disability or restraint.” The District Court held that it did because its in-person reporting requirements and use of the registry restrained the appellees’ “abilities to live, work, accompany their children to school, and otherwise freely live their lives.” The Tenth Circuit disagreed, “… because we held in Shaw that neither the in-person reporting requirements, nor the more onerous residency-restrictions, of Oklahoma’s sex-offender laws constituted an affirmative disability or restraint.” It is true that Millard’s employer moved him to a different work location and that Home Depot declined to hire Knight because of his background. But the court found these effects to be less harsh than a lifelong ban on work in a particular industry, which the Supreme Court in Hudson v. United States found did not constitute an affirmative disability or restraint. The Tenth Circuit concluded “… that CSORA has not affirmatively disabled or restrained the Appellees here.”
The Tenth Circuit emphasized, “Supreme Court precedent and our governing case law compel us to reject the District Court’s decision. … we conclude that the Appellees have not presented the clearest proof of punitive effect, and that therefore CSORA is not punitive as applied to Appellees. Accordingly, the Eighth Amendment does not bar its application in this case.”
The Supreme Court has held that the Due Process Clause especially protects “fundamental rights and liberties.” Laws that violate such rights undergo heightened scrutiny and will be deemed invalid unless they are narrowly tailored to a compelling state interest. But if a law does not violate fundamental rights, it need only be rationally related to a legitimate government interest. The Tenth Circuit Court states that appellees failed to show how CSORA violated their fundamental rights. They cite no case holding that compliance with a sex-offender registration law implicates a “deeply rooted” fundamental right. Rather, all courts that have considered the issue have concluded otherwise.
The options moving forward in terms of this case are limited. The attorney could seek reconsideration or review En Banc, which means that all judges sitting in the Tenth Circuit would review the decision. Both are likely to be denied. If that turns out to be the case, the only option would be a Petition for Certiorari with the U.S. Supreme Court. That too would be a long-shot considering that the Supreme Court only grants approximately one percent of such petitions. In addition, there are other considerations which make this case less than ideal for Supreme Court review.
United States District Judge Richard Kopf (Nebraska) has said, “In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because [the judge] find[s] them dumb or distasteful.”
In their decision in this case, the Tenth Circuit has shown their agreement with these words.
 34 U.S.C. §§ 20901, 20921 (national registry).
 See Opinion at 2.
 Id at 3.
 265 F. Supp 3d 1211, 1231–32 (D. Colo. 2017)
 id. at 1235
 id. at 1233
 See Carney Okla. Dept. of Public Safety, 875 F.3d 1347, 1352 (10th Cir. 2017).
 Smith, 538 U.S. at 92.
 Id. at 96, 105 (finding the Alaska Sex Offender Registration Act nonpunitive); Shaw v. Patton, 823 F.3d 556, 562, 577 (10th Cir. 2016) (finding the application of Oklahoma’s sex-offender reporting and residency requirements nonpunitive); Femedeer v. Haun, 227 F.3d 1244, 1249, 1253 (10th Cir. 2000) (finding the application of Utah’s sex-offender registration and notification system, including dissemination of the information on the internet, nonpunitive).
 See Opinion at 9-10.
 372 U.S. 144, 168 (1963)
 See Opinion at 11.
 Millard, 265 F. Supp 3d at 1227.
 823 F.3d at 559, 568.
 Millard, 265 F. Supp 3d at 1228.
 823 F.3d at 566.
 See Millard, 265 F. Supp 3d at 1229.
 Shaw, 823 F.3d at 569, 571.
 522 U.S. 93, 104 (1997).
 See Opinion at 13 -14.
 See Opinion at 16-17.
 See Washington v. Glucksburg, 521 U.S. 702, 720–21 (1997).
 Id. at 721.
 Id. at 728.
 See Opinion at 18.
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.