Colorado sex offender registryAt the Iyer Law Office in Denver, we keep up on relevant news and a recent story poses the question, is the Colorado sex offender registry unconstitutional? In a recent case, a federal judge ruled that Colorado’s Sex Offender Registration Act violates the U.S. Constitution as it applies to the three men bringing the suit because it punishes them beyond their jail time and probation. While the ruling only applies to the three plaintiffs, it may open the door for others similarly affected. Let’s take a look at the case and the judge’s ruling.

The Case

According to the Denver Post article, U.S. District Court of Colorado Senior District Judge Richard P. Matsch’s ruling only applies to the three Colorado men and did not go as far as declaring the full statute unconstitutional. The three men, David Millard, Eugene Knight, and Arturo Vega, had argued that the Sex Offender Registration Act (SORA) violated provisions of the 8th and 14th Amendments of the U.S. Constitution. Their civil lawsuit which began in September 2013 was filed against Michael Rankin, the Colorado Bureau of Investigation’s director, and was amended over the years before the trial began last December.

Attorneys for the three men argued that since their clients had completed their court sentences for sex crimes, and completed probation and sex offender rehabilitation, that they should no longer have to be on the registry and should be able to be removed from the public registry.

According to The Gazette newspaper in Colorado Springs, the offenders’ names, addresses, photos and other identifying features are posted on a Colorado sex offender registry website. Currently, after a sex offender’s probation or a jail sentence is completed, it could take 5- 20 years before an offender is allowed to be removed from Colorado’s registry via petition. The number of years depends on the person’s sentence.

The Plaintiffs

Mr. David Millard entered a guilty plea to second-degree sex assault on a minor in 1999. He was sentenced to 90 days in a work release program at the jail and 8 years of probation. He was also required to register as a sex offender for 10 years after he completed the probation. He did everything that he was required to do but he is still on the registered sex offender list, and he claims he has faced threats from his workplace and coworkers about his past, despite having disclosed his conviction. Mr. Millard also described his constant contact with police officers who checked on him at his home and left brightly-colored registered sex offender signs on his door. He is also required to disclose all of his online accounts and identities.

Mr. Eugene Knight pleaded guilty to an attempted sexual assault on a child charge in 2005 when he was 18 years old. He got the same sentence as Millard but was required to participate in a sex offender treatment program. He also completed all the programs but was mistakenly charged with failing to register in 2013. Even though the charge was dropped, he claims he faced extra inconveniences and anxiety from the false charge because CBI mistakenly put on its registry that Mr. Knight had been convicted of sexual assault on a child, and this led private websites to spread that false charge online as well. After Mr. Knight’s children’s school found out, he was not allowed to visit the school for much of the past several years.

Mr. Arturo Vega, who at the time was an underage teenager, pleaded guilty to third-degree sexual assault and also completed his sentence. Because he was a juvenile, his sex charge doesn’t appear on the criminal background check but Mr. Vega still shows up on the CBI’s sex registry because he failed to register one time, sixteen years ago. Mr. Vega asked the court twice to get himself off the Colorado sex offender registry, but the Jefferson County District Court judges denied his requests in 2006 and 2012, saying that they thought he was still likely to commit a subsequent offense which puts the burden of defense on Mr. Vega and denied his removal.

Judge Matsch’s Ruling

Channel 7-news reports U.S. District Court of Colorado Senior District Judge Richard P. Matsch said, “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 adding an additional treatment to his already-completed sentence, or remaining on the sex offender registry indefinitely. Imposing such punitive conditions was disproportionate to Mr. Vega’s conviction.”

Judge Matsch also said that the findings of these magistrate judges’ means that “even the theoretical ability to petition to deregister can be illusory.” He goes on to say, “the evidence 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 sex offender registry and publication of their status.”

Deterrent Effect Not Enough

Channel 7-news also reports that Michael Rankin, the director of the Colorado Bureau of Investigation (CBI), testified during the case that one of the purposes of the CBI’s registry was to have “a deterrent effect” on already-convicted or prospective sex offenders. But Judge Matsch responded by saying “such a scheme begins to look far more like retribution for past offenses than a public safety regulation.” According to the Denver Post, the judge also criticized Colorado lawmakers who claimed that the sex offender act is not punitive.

Violated 8th Amendment

Judge Matsch ruled that Colorado’s Sex Offender Registration Act violated the three men’s 8th Amendment rights to protections against cruel unusual punishment because the Act subjected them “to additional punishment beyond their sentences through the pervasive issue and dissemination of information as published by the CBI.

Judge Matsch found:

  • Rankin and the CBI had offered no evidence that any of the three men were still threats to society.
  • Being on the registry had resulted in “effective banishment and shunning” because they lived in fear of being evicted, harassed or losing their jobs.
  • They had suffered actual abuse by members of the public who learn of their sex offender status.
  • That those risks continued for the entire time on the registry and beyond if they could not successfully de-register.

His ruling found that if the nature of the punishment is uncertain and unpredictable, the state can’t guarantee that it will ever be proportionate to the offense and so, Colorado’s Sex Offender Registration Act as applies to these three men violated the 8th Amendment.

Criticism of Magistrate Judges

According to The Gazette in Colorado Springs, Matsch also criticized the magistrate judges for their actions, saying “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.”

Violated the 14th Amendment

The court also found that Mr. Vega’s procedural due process rights under the 14th Amendment were violated when the lower court forced him to try and prove he wasn’t likely to commit another sex offense. Judge Matsch said Mr. Vega was not afforded due process because he was denied being freed from the burdens of the restrictions imposed on registered sex offenders, even though he complied with all statutory requirements for deregistration.

Judge Matsch also found that 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 by 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.”

Responses to Ruling

Judge Matsch’s ruling only applies to the three men in the case: Mr. Millard, Mr. Knight, and Mr. Vega. The judge did not give injunctive relief, but only granted declaratory relief. This means the court did not order Director Rankin and CBI to grant them de-registration from the Colorado sex offender registry, but it does allow the men to bring Matsch’s ruling to county district court magistrate judges and use it as support at a de-registration hearing. This also opens the door to other people similarly situated with registration requirements to file similar complaints based on the same arguments.

Likely to Be Appealed

Rankin, CBI and the Colorado Attorney General’s office could appeal the case to the 10th Circuit Court and some speculate that if appealed, it could go all the way to the U.S. Supreme Court. If that happens it could potentially change the law on sex offender registries across the country. (Update 9/14: Attorney General Cynthia Coffman is appealing the ruling. More here.)

Conclusion: Colorado Sex Offender Registry Still Lawful

Attorney General Cynthia Coffman asserts that Colorado is still committed to having a robust sex offender registry that protects the public. As it stands now, this ruling only applies to the three men and does not make the Colorado sex offender registry unconstitutional. However, depending on their circumstances, this ruling may offer a stronger opportunity in the future for the legal team at the Iyer Law Office in Denver to help clients with a previous sex crimes conviction to be removed from the registry.


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