Michigan sex offenders lose appeal to hold state officials liable for registry rules

CINCINNATI (CN) — The Sixth Circuit on Tuesday ruled a class of registered sex offenders failed to establish supervisory liability against Michigan state officials for enforcement of unconstitutional registry laws.

The group of anonymous plaintiffs went after current Governor Gretchen Whitmer and former Governor Rick Snyder, as well as Colonel Joseph Gaspar and Kriste Etue of the Michigan State Police, in their individual capacities and claimed they were liable for enforcement of the state's Sex Offender Registration Act by lower-level law enforcement agencies.

Two sets of amendments to SORA, passed in 2006 and 2011, imposed burdensome registration requirements and prohibited sex offenders from living or working within 1,000 feet of a school, and had previously been found unconstitutional by the Sixth Circuit.

The class of sex offenders continued their legal battle against the officials in their individual capacities, however, and sought monetary damages for their injuries.

According to the allegations in the complaint, the governors and heads of the Michigan State Police knew the unconstitutional provisions were being enforced despite the court's judgments and failed to take any action against their subordinates.

U.S. District Judge Victoria Roberts, a Clinton appointee, found all four defendants were entitled to sovereign immunity and dismissed the suit in September 2022.

The John Does appealed and the case was argued at the Sixth Circuit earlier this month.

Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, authored the court's opinion and pointed out the officials raised the sovereign immunity defense alongside arguments on the merits of the case prior to Roberts' decision to rule in their favor.

The distinction was important, according to Boggs, because it allowed he and his fellow Sixth Circuit judges to consider all facets of the case in their analysis.

Ultimately, Boggs found a decision on the merits "more straightforward" because the class failed to show deliberate indifference or tacit authorization on the part of the officials.

"The plaintiffs do not plausibly allege that the defendants authorized, approved, or knowingly acquiesced in any unconstitutional conduct," he said.

"While Etue and Gaspar oversaw the MSP," he explained, "many of the complaint's allegations appear to target the behavior of local law enforcement, which the MSP directors did not supervise. The plaintiffs' allegations of knowledge thus cross the line from conceivable to plausible only barely, if at all."

Boggs called the allegations "wholly conclusory" and emphasized even if they failed to instruct subordinates on the rulings which struck down the amendments to SORA as unconstitutional, the "mere failure to act" cannot establish a claim for supervisory liability.

The class claims against Whitmer and Snyder fell even farther afield from the required evidence, according to the panel.

"The only connection between the governors and the alleged injuries is the governors' generalized responsibility to enforce the law and their supervisory authority over the MSP," Boggs said. "That connection is too 'attenuated.'"

The class argued the barrage of lawsuits against the state for its enforcement of SORA and judgments in favor of the registered sex offenders prove the governors had knowledge their subordinates still enforced unconstitutional provisions of the law, but the court was unconvinced.

"Does I on appeal merely prevented the retroactive application of SORA's amendments to four individual plaintiffs and neither [Does I or Does II] opined on whether Michigan was unconstitutionally applying the amendments to other sex offenders nor indicated that the MSP would continue to do so in the future," Boggs said.

"Does I," he continued " which granted in part and denied in part a motion to dismiss, did not definitively determine that any portion of SORA was unconstitutional. And the decision in Does II, which granted class-wide relief, became final only after the Michigan legislature had already removed the offending portions of SORA."

These decisions, according to the panel, could not prove the "supervisor had been warned repeatedly of a pattern of constitutional violations."

Attorney Paul Matouka of the Oliver Law Group in Troy, Michigan, represented the class of sex offenders at oral argument and expressed frustration with the court's decision.

"I am certainly disappointed in the decision of the Sixth Circuit," he said, "and we wholeheartedly disagree with its conclusions. This ruling denies relief to thousands of individuals whose constitutional rights were violated, and we are considering seeking a rehearing or filing an appeal. The law at issue was blatantly unconstitutional and yet – under the watch of each of the Defendants – continued to be enforced."

"The Sixth Circuit has thus made it easier for persons in positions of power to escape accountability by burying their heads in the sand while their subordinates systematically violate the rights of citizens," he continued. "The Constitution does not shield willful blindness, nor do we believe that the Defendants were unaware of the ongoing issues as the Sixth Circuit implies."

Senior U.S. Circuit Judge David McKeague, an appointee of George W. Bush, and U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, also sat on the panel.

the State of Michigan did not respond to a request for comment.

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