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Millard v. Rankin

United States District Court, D. Colorado

August 31, 2017

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

          RICHARD P. MATSCH, SENIOR DISTRICT JUDGE.

         Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site.

         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.

         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. § 16-22-103. SORA defines unlawful sexual behavior to include a wide range of offenses, and its registration requirements apply to both adult and juvenile offenders. See City of Northglenn v. Ibarra, 62 P.3d 151, 156-57 (Colo. 2003); see also C.R.S. § 16-22-102(3) (defining “conviction”) and § 16-22-102(9) (defining “unlawful sexual behavior”).

         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. § 16-22-108(1)(a)(I). Registration is required to be done in person at the person's local law enforcement agency by completing a standardized registration form and paying any registration fee imposed by the local law enforcement agency. C.R.S. § 16-22-108(7).

         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. § 16-22-108(1)(b), (c), and (d).[1] A person required to register who has been convicted of a “child sex crime” is further required to register “all e-mail addresses, instant-messaging identities, or chat room identities prior to using the address or identity, ” as well as any changes of such addresses or identities. C.R.S. § 16-22-108(2.5)(a) and (3)(g). “Child sex crime” encompasses many offenses; as relevant here, it includes sexual assault on a child as provided in C.R.S. § 18-3-405, as well as “criminal attempt, conspiracy, or solicitation to commit any of the specified acts.” C.R.S. § 16-22-108(c).

         Failure to comply with the registration requirements is a criminal offense. C.R.S. § 18-3-412.5.

         A standardized form prescribed by the CBI is used for registration. C.R.S. § 16-22-109. By statute, information required by the form includes (but is not limited to) the registrant's name (including all legal names and aliases used), date of birth, address, and place of employment; and all e-mail addresses, instant-messaging identities, and chat room identities to be used by the person if the person is required to register that information pursuant to section 16-22-108(2.5) (persons convicted of “child sex crimes”). C.R.S. § 16-22-109(1).

         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 registry-known as the sex offender registry-of persons required to register under SORA. C.R.S. § 16-22-110(1). The registry is required to provide certain information, at a minimum, to all criminal justice agencies with regard to all registered persons. C.R.S. § 16-22-110(2).

         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. § 16-22-110(6)(f). The CBI may inform someone requesting a criminal history check whether the person being checked is on the sex offender registry; members of the public may also request a list of all persons on the registry. C.R.S. § 16-22-110(b) and (c).

         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 16-22-112(1). The general assembly declares, however, that, in making information concerning persons convicted of offenses involving unlawful sexual behavior available to the public, it is not the general assembly's intent that the information be used to inflict retribution or additional 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. § 16-22-110(6).

         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. § 16-22-111(1). The “certain 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. § 18-1.3-406; and persons required to register because they were convicted of a 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 the person, and a digitized photograph or image of the person.” C.R.S. § 16-22-111(1). Section 16-22-111(1.5) further provides:

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 16-22-103, as a result of a conviction for a felony. A person's physical description shall include, but need not be limited to, the person's sex, height, weight, and any other identifying characteristics of the person.

         Pursuant to C.R.S. § 16-22-111(2)(a), the CBI has authority to determine whether a 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. § 16-22-111(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 § 16-22-112(2)(b). SORA disclaims any legislative intent to impose punishment 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 16-22-110(6), it is not the general assembly's intent that the information be used to inflict retribution or additional 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. § 16-22-112(1).

         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. § 16-22-113. Certain persons required to register may file a petition with the court that issued the judgment for the conviction that required registration to discontinue that requirement or internet posting, or both. Such a petition may be filed after a period of five, ten, or twenty years after discharge from incarceration or other completion of all sentencing requirements; the length of the applicable period depends on the statutory classification of the sex offense for which the registrant was convicted. C.R.S. § 16-22-113(1)(a)-(c). Persons convicted of certain offenses are subject to SORA's registration requirements for the rest of their lives. C.R.S. § 16-22-113(3).[3]

         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 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. § 16-22-113(1)(e) (emphasis added).

         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 required-and he has provided-disclosure of his email addresses. Because Mr. Millard 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. 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 websites-both publicly-run and private, commercial sites-displayed his information, including his picture, the offense for which he was convicted, his address, and a description of body scars as further identification. One website had incorrect information about him that he was able to have removed, but only after approximately six months. The availability and extent of the public information caused Mr. Millard to live in fear of discovery, loss of his job, and retaliation through harm to himself or his family.

         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 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 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, brightly-colored “registered sex offender” tags on his front door notifying him that he must contact the DPD.

         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 previously-cordial neighbors have since avoided him and become less friendly.

         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 f-ing sex offender.” His car was “keyed” and burglarized. Because of the fear and anxiety about his safety in public Mr. Millard does little more than go to work, isolating himself at his home.

         Eugene Knight

         Eugene Knight was charged with two counts of sexual assault on a child in 2006, based 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 90-day jail sentence. The conditions of his probation sentence required him to participate in offense-specific treatment at a contractor-owned sex offender treatment entity called Sexual Offender Resource Services. The treatment prescribed for him included requiring him to undergo periodic polygraphs and other tests[4] 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. § 18-3-405, even though his conviction was for attempted sexual assault on a child. That error from the CBI website has been carried over to at least one privately-operated website.

         Mr. Knight describes his family role as “full-time father.” He has two children, who were in kindergarten and third grade at the time of this trial. He testified that he does not work outside the home because he has had difficulty finding a job that pays enough to offset the costs of child care. One job application, at Home Depot, was rejected because, he was told, a background check came back “red-flagged.” He does not know whether this rejection was because of his sex offender status or because of other matters on his record. Because the mother of his children is employed full time, Mr. Knight cares for the children during the day and takes them to and from school.

         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 2014-15 school year, Mr. Knight was barred from entering the grounds of his children's school and all other DPS schools and facilities. It informed him that for daily drop-off and pick-up he would be required to remain on the sidewalk outside the school, and the children would be accompanied to and from the school building by a paraprofessional. It also stated that if Mr. Knight failed to follow these directives, DPS security and/or the Denver Police Department would be asked to intervene. DPS sent similar letters to Mr. Knight for the 2015-16 and 2016-17 school years.

         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 ...


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