Daniel S. Fullmer v. Michigan Department of State Police

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0057P (6th Cir.)
File Name: 04a0057p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DANIEL S. FULLMER,
Plaintiff-Appellee,
v.
MICHIGAN DEPARTMENT OF
STATE POLICE, and STEPHEN
MADDEN, in his official
capacity as Director,
Defendants-Appellants.
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Nos. 02-1731/1864
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-73319—Victoria A. Roberts, District Judge.
Argued: December 2, 2003
Decided and Filed: February 25, 2004
Before: SILER, DAUGHTREY, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Margaret A. Nelson, OFFICE OF THE
ATTORNEY GENERAL, TORT DEFENSE DIVISION,
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Nos. 02-1731/1864
Lansing, Michigan, for Appellant. Thomas Lazar, Bingham
Farms, Michigan, for Appellee. ON BRIEF: Margaret A.
Nelson, OFFICE OF THE ATTORNEY GENERAL, TORT
DEFENSE DIVISION, Lansing, Michigan, for Appellant.
Thomas Lazar, Bingham Farms, Michigan, for Appellee.
_________________
OPINION
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MARTHA CRAIG 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 §§ 28.721-732 (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 (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,

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Nos. 02-1731/1864 Fullmer v. Michigan Dep’t
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parole, or other form of release. The act provides for
registries to be used both for law enforcement purposes and
for public 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 aliases. 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
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registry. The defendants now appeal the district court’s
judgment.
DISCUSSION
The crux of the plaintiff’s 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 obligations, 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 (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. 17 (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

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to be heard on the issue of dangerousness are simply not
material issues. See id. at 7 - 8.
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 (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. Nevertheless, the plaintiff
points to a provision in the Michigan registration act to the
effect that “[t]he legislature has determined that a person who
has been convicted of committing an offense covered by this
act poses a potential serious menace and danger to the health,
safety, morals, and welfare of the people” and that “[t]he
registration requirements of this act are intended to provide
law enforcement and the people . . . an . . . effective means to
monitor those persons who pose such a potential danger.”
MICH. COMP. LAWS § 28.721a (2003). He contends that this
language in the statute, even though it did not appear in the
information presented on the website, deprives him of his
“constitutionally protected interest in not being falsely labeled
as a dangerous sex offender” and is sufficient to invalidate the
act despite the holding in Connecticut Department of Public
Safety v. Doe.
We disagree. Regardless of the language in the statute, the
information on the registry’s website makes it clear to anyone
accessing the registry that all sex offenders convicted after a
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certain date are listed, without exception. Moreover, there is
nothing on the website to indicate that the state has made an
individual determination as to a registrant’s dangerousness.
Hence, the Michigan registry serves the same purpose and has
the same effect as its Connecticut counterpart. As the Court
indicated in Connecticut Department of Public Safety v. Doe,
the state “has decided that the registry information of all sex
offenders – currently dangerous or not – must be publicly
disclosed” and that “states are not barred by principles of
‘procedural due process’ from drawing such classifications.”
Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. at 11 (emphasis
in original). The Court left open the possibility that a plaintiff
might be able to show that a registry of this kind violates
substantive due process, but because the plaintiff in this case,
like the plaintiff in Doe, did not rely on substantive due
process as a ground for relief, that issue is not before us at this
time.
CONCLUSION
In light of the Supreme Court’s intervening decision in
Connecticut Department of Public Safety v. Doe, and given
the similarity between Connecticut’s and Michigan’s statutes,
we conclude that the district court’s decision invalidating the
Michigan statute under the Fourteenth Amendment to the
United States Constitution cannot be sustained. We therefore
REVERSE the judgment of the district court holding
unconstitutional the Michigan Sex Offenders Registration
Act, MICH. COMP. LAWS §§ 28.721-732 (2003). The question
of the authority of the district court to enjoin immediate
enforcement action by the state thereby becomes moot, and
we VACATE the order of injunction without ruling on the
Eleventh Amendment question raised by the state on appeal.

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