United States District Court, E.D. Michigan, Southern Division
M.S. WILLMAN, Plaintiff,
UNITED STATES OFFICE OF ATTORNEY GENERAL, et al., Defendants.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
INJUNCTIVE RELIEF [#2]
Gershwin A. Drain, United States District Court Judge
M.S. Willman filed the instant action challenging the
constitutionality of the Sex Offender Registration and
Notification Act (SORNA), 34 U.S.C. § 20901 et
seq., a federal law that requires sex offenders to
“register, and keep registration current, in each
jurisdiction where the offender resides, where the offender
is an employee, and where the offender is a student.”
34 U.S.C. § 20913(a). Presently before the Court is the
Plaintiff's Motion for Temporary Restraining Order and
Preliminary/Permanent Injunctive Relief, filed on February 5,
2019. The Government filed its Response in Opposition on
March 25, 2019. Plaintiff filed his Reply brief on April 13,
2019. A hearing was held on June 7, 2019. For the reasons
that follow, the Court will deny the Plaintiff's present
motion seeking injunctive relief.
November 2, 1993, Plaintiff was convicted of criminal sexual
conduct assault with intent to commit sexual penetration and
robbery. Compl.¶ 21. At the time of his conviction,
SORNA did not exist. Plaintiff served a ten-year sentence and
successfully completed parole. Id. at ¶ 29.
Complaint, Plaintiff brings the following claims: Ex Post
Facto Clause, Count I; Fifth Amendment Double Jeopardy
Clause, Count II; Eighth Amendment Cruel and Unusual
Punishment, Count III; First Amendment right to privacy,
Count IV; Privileges and Immunities Clauses of Article IV and
the Fourteenth Amendment, Count V; Fourth Amendment
unreasonable seizure, Count VI; Overbreadth and Vagueness
Doctrines of the First and Fourteenth Amendments, Count VII.
seeks a declaration that SORNA, as applied to him and
“any registrant, ” violates the above provisions
of the United States Constitution. He also seeks an order
requiring the removal of his name from the federal sex
offender registry within 48 hours, and that he and “any
registrant” need not comply with “any past,
present, or future registration and reporting
requirements” of SORNA.
LAW & ANALYSIS
Standard of Review
restraining orders and preliminary injunctions are
extraordinary remedies designed to protect the status quo
pending final resolution of a lawsuit. See University of
Texas v. Camenisch, 451 U.S. 390 (1981). Whether to
grant such relief is a matter within the discretion of the
district court. Certified Restoration Dry Cleaning
Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th
Cir. 2007). The same factors are considered in determining
whether to grant a request for either a temporary restraining
order or a preliminary injunction. See Sandison v.
Michigan High School Athletic Assoc., 64 F.3d 1026, 1030
(6th Cir. 1995). The four factors that must be balanced and
considered before the court may issue a temporary restraining
order or preliminary injunction include: (1) the likelihood
of the plaintiff's success on the merits; (2) whether the
plaintiff will suffer irreparable injury without the
injunction; (3) the harm to others which will occur if the
injunction is granted; and (4) whether the injunction would
serve the public interest. Certified Restoration,
511 F.3d at 542; In re Eagle-Pitcher Industries,
Inc., 963 F.2d 855, 858 (6th Cir. 1992); and
N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162,
166 (6th Cir. 1989).
of these factors, standing alone, is a prerequisite to
relief; rather, the court should balance them.”
Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th
Cir. 1996). Preliminary injunctive relief “is an
extraordinary measure that has been characterized as 'one
of the most drastic tools in the arsenal of judicial
remedies.'” Bonnell v. Lorenzo, 241 F.3d
800, 808 (6th Cir. 2001). It is well settled that,
“[a]lthough no one factor is controlling, a finding
that there is simply no likelihood of success on the merits
is usually fatal.” Gonzales v. National Bd. of
Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000).
party moving for injunctive relief has the burden to show
that the circumstances clearly demand it. Overstreet v.
Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566,
573 (6th Cir. 2002). “[T]he proof required for the
plaintiff to obtain a preliminary injunction is much more
stringent than the proof required to survive a motion for
summary judgment.” Leary v. Daeschner, 228
F.3d 729, 739 (6th Cir. 2000).
Success on the Merits
Ex Post Facto Clause
argues that because his conviction predates enactment of
SORNA, its enforcement against him is retroactive punishment
in violation of the Ex Post Facto Clause.
Post Facto Clause of the Constitution prohibits the
Government from retroactively imposing additional punishment
for the commission of a criminal offense. U.S. Const. art. I,
§ 9, cl. 3.
seminal case of Smith v. Doe, 538 U.S. 84, 89, 92
(2003), the Supreme Court considered whether retroactive
application of Alaska's sex offender registry
requirements to offenders convicted before the law took
effect constituted punishment forbidden by the Ex Post Facto
Clause. In determining that it did not, the Smith
court applied a two-part test. Id. at 92. First, the
Smith court considered whether the legislature
intended to establish civil proceedings or punishment.
determining that the Alaska legislature intended to establish
a civil, non-punitive regime, the Smith court then
determined “whether the statutory scheme is “so
punitive either in purpose or effect as to negate [the
State's] intention to deem it civil.” Id.
(internal quotation marks omitted). Id. Relying on
the factors set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the
Smith court determined that the statute was not
punitive in either purpose or effect because (1) publicizing
sex offender information does not resemble the historical
punishment of shaming because the “stigma” of the
registry results from “the dissemination of accurate
information, ” and “[o]ur system does not treat
dissemination of truthful information in furtherance of a
legitimate governmental objective as punishment, id.
at 98; (2) “[t]he purpose and the principal effect of
notification are to inform the public for its own safety, not
to humiliate the offender, ” id. at 99; and
(3) the statute does not impose a restraint or disability
because “offenders . . . are free to move where they
wish and to live and work as other citizens, with no
supervision.” Id. at 101.
support of his claim, Plaintiff relies heavily on Does
#1-5 v. Snyder, 834 F.3d 696, 706 (6th Cir. 2016), where
the Sixth Circuit Court of Appeals held that the retroactive
application of the 2006 and 2011 Amendments to Michigan's
SORA violates the Ex Post Facto Clause. The 2006 Amendment
prohibited offenders from “living, working, or
loitering within 1, 000 feet of a school.” Id.
at 698. The 2011 Amendment classified offenders into Tiers
based solely on the crime of conviction, as well as required
offenders to register in person rather than through the mail.
Id. The Does #1-5 court concluded that
while the Michigan legislature did not intend a punitive
regime, the 2006 and 2011 amendments imposed restrictions
that are similar to the punishments of banishment, shaming
and parole/probation. Id. at 702-03. Ultimately, the
Does #1-5 court concluded that the retroactive
application of SORA's 2006 and 2011 amendments to the
plaintiffs was unconstitutional because Michigan's SORA
“imposes punishment.” Id. at 705-06.
Does #1-5 has no bearing on the enforcement of SORNA
on Plaintiff because that case only addressed the
constitutionality of Michigan's SORA. The two statutes
are different. For instance, the 2006 amendment restricting
offenders from living, working, or loitering within 1, 000
feet of a school - a restriction that “put significant
restraints on how registrants may live their lives” -
has no similar provision in the SORNA. 834 F.3d at 701-03;
see Umbarger v. Mich., No. 1:12-CV-705, 2013 WL
444024, at *2 (W.D. Mich. Feb. 5, 2013) ...