Daniel S. Fullmer v. Michigan Department of State Police, and Stephen Madden, in His Official Capacity as Director

360 F.3d 579, 2004 U.S. App. LEXIS 3497, 2004 WL 344148
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 25, 2004
Docket02-1731, 02-1864
StatusPublished
Cited by12 cases

This text of 360 F.3d 579 (Daniel S. Fullmer v. Michigan Department of State Police, and Stephen Madden, in His Official Capacity as Director) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel S. Fullmer v. Michigan Department of State Police, and Stephen Madden, in His Official Capacity as Director, 360 F.3d 579, 2004 U.S. App. LEXIS 3497, 2004 WL 344148 (6th Cir. 2004).

Opinion

OPINION

DAUGHTREY, Circuit Judge.

This appeal arises from a successful challenge to the constitutionality of the public registry provision of Michigan’s Sex Offenders Registration Act, Mich. Comp. Laws §§ 28.721-28.732 (2003), which was held to be invalid by the district court in a judgment that included an injunction against its immediate enforcement. Because we conclude that the act creating the registry meets the due process standards for such programs recently announced by the Supreme Court in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), we reverse the district court’s judgment and vacate the related injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Daniel Fullmer was convicted of an offense requiring registration as a “sex offender” under Michigan’s Sex Offenders Registration Act, but one committed under circumstances that, he contends, do not establish “future dangerousness.” Nevertheless, as a registered sex offender he is required, among other obligations, to submit to state officials information concerning his whereabouts and update the information every 90 days. He must also submit to being photographed at regular intervals, provide a blood sample for DNA analysis, and notify authorities of any address change within 10 days of such a change. He will remain in the registry for 25 years, long after the end of any probation, parole, or other form of release. The act provides for registries to be used both for law enforcement purposes and for pub- *581 lie dissemination. Local police departments are required to make the registry-information available on the internet. As a result, by using the Michigan State Department of Police website, anyone with internet access can search for convicted sex offenders by name, age, or zip code and retrieve an offender’s name, sex, height, weight, race, eye color, date of birth, address, offense, and any known abases. See Michigan Public Sex Offender Registry (PSOR) Inquiry (2002), at http://www.mipsor.state.mi.us.

In the district court, Fullmer claimed that the requirements of the act and the attendant penalties to which he is subject if he fails to meet them infringe upon his liberty and property interests arising out of the First, Fourth, Ninth, and Fourteenth Amendments to the United States Constitution and violate the Due Process Clause by changing his legal status and requiring him to register as a sex offender without providing him a hearing or conducting an assessment of his individual dangerousness or potential threat to the community. He filed suit against the Michigan State Department of Police and Lt. Col. Stephen Madden in his capacity as director of the State Police, challenging the constitutionality of the Michigan Sex Offender Registration Act, particularly the provision permitting public dissemination of information about registered offenders. The district court issued a declaratory judgment in Fullmer’s favor, holding that the act constitutes an unconstitutional denial of due process because it does not provide registrants with notice or an opportunity to be heard on the issue of their dangerousness. The court also enjoined enforcement of the act pending the addition of adequate procedural safeguards. Later, in response to the defendants’ motion to stay, the court modified the declaratory judgment and injunction, allowing the defendants to resume the requirements of the registry for law enforcement purposes, but not to continue the public registry. The defendants now appeal the district court’s judgment.

DISCUSSION

The crux of the plaintiffs due process argument is that the registration and public disclosure aspects of the act deprive him of a constitutionally protected liberty interest “by stigmatizing him as a presently dangerous sex offender and imposing intrusive reporting obbgations, which altered his legal status, without giving him notice and an opportunity to be heard on whether he [is a threat to] the public safety.” Under well-settled precedent, however, damage to reputation alone does not implicate a protected liberty or property interest. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir.1999). Due process analysis is triggered only where the “stigma of damage to a reputation is coupled with another interest, such as employment,” a requirement that has come to be known as the “stigma-plus” test. Id. The district court’s decision to invalidate the Michigan statute was based on its conclusion that Fullmer met this test, relying principally upon the analysis in Doe v. Department of Public Safety, 271 F.3d 38 (2d Cir.2001), in which the Second Circuit found that Connecticut’s sex offender registry deprived sex offenders of a liberty interest and violated due process.

Since the entry of judgment in the district court, however, the Supreme Court has overturned the Second Circuit decision, making an important distinction between the particular type of registry utilized under the Connecticut statute and other sex offender registries. See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 *582 S.Ct. 1160, 155 L.Ed.2d 98 (2003). That distinction involves the structure of the Connecticut registry, which is based on the fact of the registrant’s conviction rather than his or her current “dangerousness.” The Supreme Court held that, because the basis of the registration requirement is the fact of conviction alone, dangerousness and the opportunity to be heard on the issue of dangerousness are simply not material issues. See id. at 7-8, 123 S.Ct. 1160.

In reaching the conclusion that due process was not implicated by the Connecticut statute, the Supreme Court noted the following disclaimer on the registry’s website makes clear that no determination of registrants’ dangerousness has been made, explaining that “[i]ndividuals included within the registry are included solely by virtue of their conviction record and state law.” See id. at 7, 123 S.Ct. 1160 (emphasis in original).

Similarly, Michigan’s registry is based solely upon the fact of an offender’s conviction; the registry website does not indicate that a determination has been made concerning the dangerousness of those listed in the registry, but only that the registrants are convicted sex offenders. See Michigan Public Sex Offender Registry (PSOR) Inquiry (2002), at http://www.mipsor.state.mi.us.

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360 F.3d 579, 2004 U.S. App. LEXIS 3497, 2004 WL 344148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-s-fullmer-v-michigan-department-of-state-police-and-stephen-ca6-2004.