Key Points

  • The Eighth Circuit affirmed judgment for Missouri State Highway Patrol officials on all appealed constitutional challenges to Missouri's Sex Offender Registration Act.
  • The court held the registrants failed to show the law is barbaric or grossly disproportionate under the Eighth Amendment, without deciding definitively whether it is punitive, and adopted the Missouri Supreme Court's Doe v. Olson reasoning to reject the ex post facto claim.
  • The phrase "other identity information" in the definition of online identifiers is not unconstitutionally vague when read with the specific terms preceding it under ejusdem generis and in light of the patrol's standardized registration form.
  • The court rejected the registrants' First Amendment overbreadth argument because the district court considered the claim as pleaded and the registrants never objected to its characterization, sought reconsideration or moved to amend.
  • Dismissal of the due process, equal protection and family members' claims was affirmed for lack of a cognizable right, developed argument or supporting authority.

A federal appeals court on Oct. 5 rejected a sweeping constitutional challenge to Missouri's sex offender registration law, leaving in place a registry that the plaintiffs say lists nearly 20,000 people and is the fourth largest in the country.

Writing for a three-judge U.S. Court of Appeals for the Eighth Circuit panel that also included Judges Gruender and Benton, Judge Erickson affirmed a judgment for Missouri State Highway Patrol officials. The court held that registrants and their families had not shown that the Missouri Sex Offender Registration Act, known as Mo. SORA, violates the Eighth Amendment, the Ex Post Facto Clause, the First Amendment, or the Fourteenth Amendment's due process and equal protection guarantees.

The ruling preserves Missouri's tiered system, which assigns registrants by their offense of conviction to 15 years, 25 years or life on the registry, with in-person reporting annually, twice a year or every 90 days, and without any individualized risk assessment. It also upholds the law's requirement that registrants report their online identifiers, rejecting an argument that the catch-all phrase "other identity information" is unconstitutionally vague.

People required to register, along with their spouses and children, brought thirteen constitutional claims against the patrol employees who implement the law. Then-Chief Judge Beth Phillips of the Western District of Missouri resolved the case in three orders, the last after a two-day bench trial. The registrants won one point below: the district court found that barring use of an online identifier before it is reported to law enforcement was an unconstitutional prior restraint on speech, and the parties accepted a remedy modifying the patrol's registration form to remove that requirement.

The panel noted that the district court had pointed to extensive discussion over whether the plaintiffs were bringing facial challenges, which attack a law in all its applications, or as-applied challenges to their own circumstances, and that the patrol defendants reiterated the confusion on appeal. The plaintiffs answered in a footnote that the label did not matter and that what counted "is the remedy that is employed by the Court." Judge Erickson wrote, "As mystifying as this contention is, we need not resolve the imprecision and confusion because the Does have failed to establish Mo. SORA violates any of their asserted constitutional rights, either in its general application or in any of their particular circumstances."

On the Eighth Amendment, the registrants argued the law makes them and their families "lepers who are routinely harassed, discriminated against, and excluded from their respective communities" and amounts to branding without physical defacement. The panel said it did not believe the law was punitive, but it rested its ruling on a second requirement: that any punishment be "barbaric or grossly disproportionate." The court wrote that the plaintiffs "have not identified any conduct by the MSHP defendants beyond the mere assembling and publishing of information, as required in Mo. SORA."

The panel also rejected the argument that sorting offenders by offense rather than by individual dangerousness was grossly disproportionate. It cited state and federal decisions upholding similar schemes and said the plaintiffs had shown no national consensus against them. Missouri's 2018 amendments, which replaced near-universal lifetime registration with three tiers, reflected legislative judgments about the gravity of each offense, the court said. "These are the precise types of policy decisions the Missouri legislature is empowered to make," Judge Erickson wrote.

On the ex post facto claim, the panel adopted the reasoning of the Missouri Supreme Court's 2024 decision in Doe v. Olson. It called that court's analysis "thorough and persuasive" in concluding the law is reasonable in light of its non-punitive objectives.

The court affirmed dismissal of seven due process and equal protection counts, saying the plaintiffs had not identified which dismissed counts they wanted reviewed or any specific error by the district court. Rational basis review applied because no fundamental right or suspect class was involved, the panel held. "It is not our role to conduct a searching review of the record, research applicable case law, and craft arguments for a party," the court wrote.

The registrants fared no better on their contention that the district court refused to consider a First Amendment overbreadth theory. They conceded the word "overbroad" never appeared in the relevant count. "In the proceedings below, at no time did the Does contest or seek to correct a mischaracterization of their claims," the court wrote, adding that they never moved for reconsideration or sought to amend before raising the issue on appeal. "The district court considered the claim that they pled," the panel said.

On vagueness, the panel applied the interpretive canons discussed in the U.S. Supreme Court's 2024 decision in Fischer v. United States, including ejusdem generis, the principle that a general term at the end of a list takes its meaning from the specific items before it. The phrase "other identity information" follows examples such as email addresses, screen names and chat names, which the court said share a theme of names used for electronic communication. "The Does' challenge to the definition improperly carves out one phrase and views it in isolation," Judge Erickson wrote.

The panel also rejected the registrants' argument that the trial court improperly relied on the patrol's registration form, which the statute requires the patrol to create and which lists the identifiers to be reported. "The use of a standardized form ameliorates concerns pertaining to lack of notice of the law and arbitrary or discriminatory enforcement," the court wrote, concluding that the plaintiffs had raised at most "a theoretical concern."

The court also upheld dismissal of the family members' own claims. Their allegations included children being shunned by other families and neighbors and harassed by fellow students and a spouse losing a job opportunity, but the panel said the plaintiffs had cited no authority for the theory that relatives incidentally affected by the law have a plausible constitutional claim.

The Eighth Circuit affirmed the district court's judgment in full, without a remand. That judgment includes the agreed modification of the patrol's registration form eliminating the requirement that registrants report new online identifiers before using them.