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Willman v. United States Office of Attorney General

United States District Court, E.D. Michigan, Southern Division

June 7, 2019

M.S. WILLMAN, Plaintiff,


          Hon. Gershwin A. Drain, United States District Court Judge


         Plaintiff 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).[1] 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.


         On 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.

         In his 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.

         Plaintiff 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.

         III. LAW & ANALYSIS

         A. Standard of Review

         Temporary 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).

         “None 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).

         The 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).

         B. Success on the Merits

         1. Ex Post Facto Clause

         Plaintiff argues that because his conviction predates enactment of SORNA, its enforcement against him is retroactive punishment in violation of the Ex Post Facto Clause.

         The Ex 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.

         In the 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. Id.

         After 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.

         In 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.

         However, 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) ...

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