Jane Does v. David Flannigan
CourtCourt of Appeals for the Eighth Circuit
Date FiledOctober 5, 2026
Docket25-1892
StatusPublished
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Full Opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-1892
___________________________
Jane Does, 1-11; Jane Doe, XII; John Does, 1-15; John Doe, XVI; J.G., by and
through Next Friend Jane Doe I; C.C., by and through Next Friend Jane Doe II;
K.P., by and through Next Friend Jane Doe X; S.P., by and through Next Friend
Jane Doe X; S.C.L.R. I, by and through Next Friend John Doe I; S.C.L.R. II, by
and through Next Friend John Doe I; S.C.L.R. III, by and through Next Friend
John Doe I; C. C., by and through Next Friend John Doe VI; H.P.S., by and
through Next Friend John Doe VIII; H. P. S., by and through Next Friend Jane Doe
III; H.W.S, by and through Next Friend Jane Doe III; H. W. S., by and through
Next Friend John Doe VIII
Plaintiffs - Appellants
v.
Eric Olson, Colonel, Superintendent, Missouri State Highway Patrol
Defendant
David A. Flannigan, Major, Commander, Missouri State Highway Patrol;
Christopher S. Jolly, Captain, Division Director of Missouri State Highway Patrol
Defendants - Appellees
Michael L. Parson, Governor, State of Missouri
Defendant
Michael A. Turner, Colonel, Superintendent, Missouri Highway Patrol, Substituted
for Party Eric T Olson per order in ME #230
Defendant - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: April 14, 2026
Filed: October 5, 2026
____________
Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
____________
ERICKSON, Circuit Judge.
The plaintiffs commenced this action raising thirteen constitutional claims
related to Missouri’s Sex Offender Registration Act (“Mo. SORA”), Mo. Rev. Stat.
§ 589.400 et seq. The sixteen Doe plaintiffs consist of persons who have been
convicted of a crime requiring them to register as a sex offender under Mo. SORA
(collectively, “the Does”) and their spouses and children (collectively, “family
members”). The Does and their family members sued Missouri State Highway
Patrol (“MSHP”) employees involved in implementing provisions of Mo. SORA
(collectively, “the MSHP defendants”). The district court1 denied some claims
following a review of the merits and dismissed other claims because they did not
state a plausible claim. The Does and family members appeal the adverse decisions
relating to the denial of their Eighth Amendment, Ex Post Facto, First Amendment,
Due Process, and Equal Protection claims. We affirm.
I. BACKGROUND
Congress began enacting laws requiring sex offenders to register with law
enforcement after seven-year-old Megan Kanka was raped and murdered by a
1
The Honorable Beth Phillips, then Chief Judge, now United States District
Judge for the Western District of Missouri.
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neighbor who, unknown to Kanka’s family, had prior convictions for sex offenses
against children (termed “Megan’s Law”). 2 By 1996, every State had enacted a
variation of Megan’s Law.
Missouri’s first version of Megan’s Law became effective on January 1, 1995.
Like the federal laws, the purposes of Missouri’s sex offender registration laws are
“to protect children from violence at the hands of sex offenders, and to respond to
the known danger of recidivism among sex offenders.” Doe v. Phillips, 194 S.W.3d
833, 839 (Mo. 2006) (en banc) (cleaned up). Since its initial enactment, the Missouri
General Assembly has amended its version of Megan’s Law (Mo. SORA) several
times. The Does assert nearly 20,000 individuals are on Missouri’s sex offender
registry, making it the fourth largest registry in the country.
Mo. SORA requires individuals convicted of specified offenses to register in
person with the chief law enforcement official in the county or city where they reside
“within three business days of adjudication, release from incarceration, or placement
upon probation.” Mo. Rev. Stat. § 589.400.2. Registration requirements direct the
individual to provide a written statement containing their name, address, date of
birth, social security number, phone number, any online identifiers, license plate
number(s) and vehicles description(s), employment details, school enrollments, a
description of the offense requiring registration, and whether they completed
Missouri’s sexual offender program. Id. § 589.407.1(1). Registrants must also
provide their fingerprints, a current photograph, and a DNA sample (if not already
provided). Id. § 589.407.1(2)-(4). Registrants are to provide the required
information on a form developed by the MSHP or another format approved by the
MSHP. Id. § 589.407.1
2
Congress has since enacted a more comprehensive system for sex offender
registration and community notification, enacting the “Jacob Wetterling, Megan
Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification
Program.” 34 U.S.C. § 20902 et seq.
-3-
After the form is completed, local law enforcement officials forward the
information to the MSHP where it is then entered into the Missouri Uniform Law
Enforcement System (“MULES”). Id. § 589.410. MULES is available to members
of the criminal justice system and other entities as provided by law. Id. The MSHP
maintains a public registry of sex offenders, which contains some, but not all, of the
information required to be reported. Id. § 43.650.2. Mo. SORA authorizes the
operation by local law enforcement of a similar searchable public website and/or
publication of certain specified information in the local newspaper. Id. § 589.402.
The Does challenge Mo. SORA’s current scheme, which categorizes sex
offenders into tiers based on the statute of conviction for their underlying
registerable offense. Id. § 589.414.5-.7. No individualized risk assessment is
undertaken. The different tiers set forth the length of time individuals must remain
on the registry 3 and the frequency in which they must report in person to the chief
law enforcement official to verify their information—Tier I offenders remain on the
registry for 15 years and must report annually; Tier II offenders for 25 years and
must report semiannually; and Tier III offenders stay on the registry for life and
report every 90 days. Id. §§ 589.400.4 & 589.414.5-.7
After registering their information, subject to limited exceptions, registrants
must report changes within three business days. Id. § 589.414.1-.2. Some, but not
all, changes must be reported in person. Id. The statute also requires that changes
to or use of a new online identifier be reported to the chief law enforcement officer
before the registrant can use the new identifier. Id. § 589.414.9. “Online identifier”
is defined under Missouri law as an “electronic mail address and instant message
screen name, user ID, cell phone number or wireless communication device number
or identifier, chat or other internet communication name, or other identity
information.” Id. § 43.651.1(4).
3
After a specified time period, Tier I and II offenders can petition a court to
have their name removed early from the registry. Id. § 589.401.1 & .4.
-4-
The Does contend Mo. SORA infringes on their constitutional rights by
imposing unnecessary burdens and by placing unreasonable restraints on them,
which also causes traceable injury and harm to their family members. The district
court resolved all claims in three sequential orders—an order on the MSHP
defendants’ motion for judgment on the pleadings, an order on the parties’ cross-
summary judgment motions, and an order/final judgment following a two-day bench
trial. The district court dismissed the family members’ claims because they are not
required to register or take any action under Mo. SORA. The court also declined to
consider the effects of Mo. SORA on the family members, finding their situation and
experiences are irrelevant to the issue of whether Mo. SORA is “punishment” within
the meaning of the Eighth Amendment or the Ex Post Facto Clause.
As to the Does’ claims, the district court concluded their Eighth Amendment
and Ex Post Facto claims were not cognizable because Mo. SORA is not punitive.
With regard to the Does’ void-for-vagueness challenge to registering their online
identifiers, the court found the phrase “other identity information” is not
unconstitutionally vague because the MSHP form expressly lists the information that
must be furnished. The court also found the Does failed to adequately plead a
cognizable due process or equal protection claim. Lastly, after finding the
prohibition on use of online identifiers before they are registered with law
enforcement is an unconstitutional prior restraint on speech in violation of the First
Amendment, the parties accepted the court’s proposed remedy to order modification
of the MSHP form to remove that requirement.
On appeal, the Does assert the district court erred in the following ways: (1)
when it found Mo. SORA is not punitive and denied their Eighth Amendment and
Ex Post Facto Clause claims; (2) when it did not accept their assertions as true and
applied the wrong standard to their due process and equal protection claims; (3)
when it found their First Amendment overbreadth claim was inadequately pled and
refused to consider it; (4) when it rejected their claim that the provision of Mo.
SORA requiring reporting of online identifiers is unconstitutionally vague; and (5)
when it “sua sponte” dismissed the family members’ claims. Having carefully
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considered each of their claims, we find no error in the district court’s
determinations.
II. DISCUSSION
The Does and their family members have asserted a variety of constitutional
claims implicating the First Amendment, the Eighth Amendment, the Ex Post Facto
Clause, and the Fourteenth Amendment. For relief, they seek a declaration that Mo.
SORA is unconstitutional as well as an order enjoining enforcement and removing
their names from Missouri’s sex offender registry. In attempting to sort through the
numerous claims, the district court noted in its final order that there had been
“significant discussion” as to whether the Does are asserting facial challenges to Mo.
SORA, as-applied challenges, or both. The MSHP defendants reiterated the
confusion and blending of issues in their brief to this Court, contending that even at
this stage of the litigation, the Does have not clearly indicated which arguments
relate to which counts and what issues on appeal relate to an as-applied challenge, a
facial challenge, or both. The Does responded by stating in a footnote that they are
asserting both as-applied and facial challenges but offer no clarifying explanation,
contending instead that the label used by a litigant is not what matters, it “is the
remedy that is employed by the Court” that matters. 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.
1. Family Members’ Claims
The Does assert that from the beginning of the litigation, they alleged Mo.
SORA violates not only the constitutional rights of registered sex offenders, but the
constitutional rights of immediate family members as well. The Does claim the
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district court improperly dismissed the family members’ claims sua sponte.4
Because so many of the Does’ arguments rely on impacts on their families, we
consider this issue first.
In their complaint, the Does allege harms related to family members never
named as a party in this action. As to those that are named, the overriding harms
include loss of friendships, social ostracism, and fear about community reprisals. In
particular, the children allege they were “shunned” by other families and neighbors
due to their parent’s status on the sex offender registry, they were harassed by fellow
students, they were “robbed of a better education” because schools refused to allow
registered sex offenders on school property, and they missed out on having their
mom or dad attend their activities. One spouse alleges she lost a job opportunity
after the employer discovered she lived at the same address as a registered sex
offender and another spouse alleges she suffers extreme stress from dealing with
their children’s activities and tasks alone.
The record does not support the Does’ claim that the district court sua sponte
and without explanation dismissed the family members’ claims. During the
proceedings, the district court noted that most of the evidence from family members
focused on location restrictions for registered sex offenders, which is not governed
by any provision in Mo. SORA. The court found that the impact registration has on
family members is irrelevant because the analysis must focus on the person directly
affected by Mo. SORA. And since Mo. SORA has no provisions directed at family
members of sex offenders, the court further explained that incidental effects on
family members are immaterial to the constitutional issues before the court. The
court further highlighted that the Does had not cited any authority suggesting the
effects on a registered sex offender’s family is a factor to be considered when
4
The family members also challenge the district court’s exclusion of their
evidence related to the punitive impact of Mo. SORA on them. This issue has been
rendered immaterial by our disposition of their Eighth Amendment claim on the
second prong—the Does’ failure to show the statute is barbaric or grossly
disproportionate.
-7-
analyzing the constitutionality of Mo. SORA. For these reasons, the district court
declined to consider the family members’ allegations or evidence and formally
dismissed their claims in its final post-trial order.
In their brief to this Court, the Does do not cite a case supporting their theory
that family members who are incidentally affected by Mo. SORA have a plausible
constitutional claim. Nor did they articulate any flaws in the district court’s findings
or conclusions. Instead, they assert that due process provides for the right to be
heard, and dismissal of the family members’ claims was inappropriate because it is
not patently obvious from the complaint or the record below that the family members
could not prevail on a constitutional claim. The Does have not pointed us to any
controlling or persuasive legal authority supporting their claims or articulated any
specific error in the district court’s analysis. The district court did not err when it
dismissed the family members’ claims.
2. Eighth Amendment Claim
After holding a bench trial, the district court granted judgment in favor of the
MSHP defendants on the Does’ Eighth Amendment claim. The court determined
that Mo. SORA is not “punishment,” that the Does failed to allege in their complaint
the statute is barbaric, and that none of the evidence presented at trial persuaded the
court that Mo. SORA is sufficiently disproportionate. We review the district court’s
factual findings for clear error and its legal conclusions de novo. Johnson v.
Hutchinson, 44 F.4th 1116, 1118 (8th Cir. 2022).
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel
and unusual punishments. U.S. Const. amend. VIII. For a punishment to quality as
“cruel and unusual,” it must be “barbaric or grossly disproportionate” to the offense
committed. See Graham v. Florida, 560 U.S. 48, 59 (2010); Doe v. Miller, 405 F.3d
700, 723 n.6 (8th Cir. 2005). The first three issues in the Does’ statement of issues
concern whether Mo. SORA is punitive as the term is understood under the Eighth
Amendment. We do not believe that Mo. SORA is punitive when considered in such
-8-
a light.5 But to violate the constitution, the Does must show both that the law is
punitive and that it is “cruel and unusual” within the meaning of Eighth Amendment.
At this point, the Does’ Eighth Amendment claim necessarily fails.
The Supreme Court has identified two categories of punishment that meet the
Eighth Amendment’s “cruel and unusual” standard, which are: (1) “modes or acts of
punishment” considered cruel and unusual at the time the Bill of Rights was adopted,
Ford v. Wainwright, 477 U.S. 399, 405 (1986); and (2) modes of punishment which
are inconsistent with modern “standards of decency,” as demonstrated by “objective
evidence of how our society views a particular punishment today,” with the “clearest
and most reliable” evidence being legislation, Penry v. Lynaugh, 492 U.S. 302, 330-
31 (1989).
The Eighth Amendment specifically provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
This language is virtually identical to the language found in the English Bill of
Rights of 1689 and the Virginia Declaration of Rights of 1776. 6 Similar clauses
were found in the constitutions of eight states and the Northwest Ordinance of 1791.
By the time the Eighth Amendment became operative, it was broadly understood
that the cruel and unusual punishment clause was directed at certain methods of
punishment. Anthony Granucci, “Nor Cruel and Unusual Punishments Inflicted:
5
The analysis of whether or not a legislative act is punitive requires the
consideration of the non-exhaustive factors set forth in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-169 (1963). Miller, 405 F.3d at 719 (citing Smith v.
Doe, 538 U.S. 84, 97 (2003)). We believe, consistent with the Missouri Supreme
Court’s decision in Doe v. Olson, 696 S.W. 3d 320, 330 (Mo. 2024) (en banc), reh’g
denied (Oct. 1, 2024), that such analysis yields a conclusion that Mo. SORA is not
punitive but a further elucidation of that analysis is unnecessary given our conclusion
that the Does cannot show punishment that is “cruel and unusual” within the
meaning of the Eighth Amendment.
6
Both the English Bill of Rights of 1689 and the Virginia Declaration of
Rights of 1776 provide, in relevant part: “That excessive bail ought not be required,
nor excessive fines imposed nor cruel and unusual punishments inflicted.”
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The Original Meaning”. As the Supreme Court has indicated, the framers
understood that “the deliberate infliction of pain for the sake of pain” is a common
aspect of punishments found to be constitutionally forbidden. Baze v. Rees, 553
U.S. 35, 48 (2008). Examples include “torture or a lingering death.” Id. The Does
have not identified any conduct by the MSHP defendants beyond the mere
assembling and publishing of information, as required in Mo. SORA.
Whether this is even a “method of punishment” as contemplated by the
framers of the constitution is a debatable proposition, but it is certainly not a method
that would have been deemed cruel and unusual as the term was understood by the
framers. Until well into the 19th century, criminal sentences could involve:
confinement at hard labor under conditions that would be deeply offensive to modern
sensibilities; corporal punishment including flogging, caning and branding, public
execution; and in some states, transportation as part of a chain gang to work on
public works or rented as slave labor for private interests at public profit.
Faced with this reality, the Does properly focus on the second, post-Weems
category—that Mo. SORA is inconsistent with modern standards of decency. While
they emphasize societal and technological changes since the Supreme Court decided
Smith, 538 U.S. 84, they made no allegation or assertion similar to the level of harm
courts have determined to be constitutionally forbidden. They claim Mo. SORA is
“barbaric and torturous” because: (1) it effectively renders them and their families
“lepers who are routinely harassed, discriminated against, and excluded from their
respective communities[,]” and (2) it essentially amounts to “branding” but without
the physical defacement of a person’s body. The Does have not explained how the
law would have been considered cruel and unusual at the Founding or why it is
inconsistent with modern standards of decency. Moreover, the Does have not
convinced us that societal changes, such as broader access to the Internet and
increased reliance on digital technology, have critically undermined or wholly
upended precedent analyzing the parameters of “cruel and unusual” punishments.
Even if Missouri’s sex offender registration scheme was construed to be punitive,
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which we need not decide, the Does have failed to show Mo. SORA is barbaric
within the meaning of the Eighth Amendment.
Cruel and unusual punishment can also be shown under a “narrow
proportionality principle.” Ewing v. California, 538 U.S. 11, 20 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part
and concurring in the judgment)). This principle is narrow because a state’s policy
choices and sentencing rationales are generally left to state legislatures, not federal
courts. Id. at 25. In other words, federal courts reviewing a state’s sentencing
scheme “do not sit as a ‘superlegislature’ to second-guess [the state’s] policy
choices.” Id. at 28. “It is exceedingly rare for an offense that does not have a capital
sentence to violate the Eighth Amendment.” United States v. Scott, 831 F.3d 1027,
1034 (8th Cir. 2016) (quoting United States v. Wiest, 596 F.3d 906, 911 (8th Cir.
2010)).
The Does assert two reasons that Mo. SORA is grossly disproportionate: (1)
the scheme places offenders in one of three tiers based on the nature of their
underlying conviction without accounting for the “actual seriousness” of the offense
or the offender’s actual dangerousness; and (2) Missouri has no similar registration
system for other crimes. The district court determined the evidence presented did
not demonstrate Mo. SORA is sufficiently disproportionate. We agree.
Statutory schemes involving offense-based assignment of sex offenders to
tiers have withstood a myriad of constitutional challenges in state and federal courts.
See, e.g., Doe v. Settle, 24 F.4th 932, 936 (4th Cir. 2022); Does I-7 v. Abbott, 945
F.3d 307, 315 (5th Cir. 2019); People v. Kardasz, -- N.W.3d --, 2025 WL 3691966,
*1 (Mich. 2025) (en banc); State v. McSwain, 914 S.E.2d 124, 129-30 (S.C. 2025);
State v. Blankenship, 48 N.E.3d 516, 518 (Ohio 2015); Helman v. State, 784 A.2d
1058, 1064 (Del. 2001). When considering whether to adopt a categorical rule
prohibiting a particular practice, the Supreme Court has described a two-step
process: the first step involves looking at objective indicia of society’s standards, as
expressed in legislative enactments and state practice, to determine if a national
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consensus against the challenged sentencing practice exists, and the second step
entails the court’s exercise of its own independent judgment to determine whether
the punishment violates the Constitution under the standards set forth in controlling
precedents and the court’s own understanding and interpretation of the Eighth
Amendment’s text, history, meaning, and purpose. Graham, 560 U.S. at 61
(quotations and citations omitted).
The Does cannot satisfy either step in the process. They have not shown the
existence of a national consensus against sex offender registration and notification
schemes like the one at issue here or even any likelihood that such a trend may
emerge. Nor have they convinced us that we should exercise our judgment and find
Mo. SORA violates the Eighth Amendment.
Like its federal counterpart, Mo. SORA groups sex offenders into tiers based
on their underlying offense, with lengthier registration requirements for higher tiers.
Compare 34 U.S.C. §§ 20911, 20915, with Mo. Rev. Stat. § 589.414.5-.7. When
originally enacted, Mo. SORA imposed a lifetime registration obligation, with
limited exceptions. Dixon v. Mo. State Highway Patrol, 583 S.W.3d 521, 525 (Mo.
Ct. App. 2019). In 2018, the statute was amended to create three tiers, with Tier III
encompassing the most severe offenses and subjecting offenders to a lifetime
registration requirement. Id. According to Missouri courts that have studied the
scheme, Tier I contains 15 of the least serious offenses, Tier II covers 13 offenses
and certain repeat offenders, and Tier III encompasses the 36 most severe offenses.
See, e.g., Hixson v. Mo. State Highway Patrol, 611 S.W.3d 923, 925-26 (Mo. Ct.
App. 2020). By way of examples, Tier I offenses include first-degree sexual abuse
of a person who is at least 18 years old, trafficking for the purpose of sexual
exploitation of a person who is at least 18 years old, and possession of child
pornography. In contrast, Tier III offenses include first- and second-degree rape,
first- and second-degree sexual trafficking of a child, and promoting the prostitution
of a person under age 18. Each tier consists of offenders that Missouri’s General
Assembly believed were similarly situated and should be treated similarly.
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This level of identification of specific offenses and categorization indicates
the legislators evaluated the gravity of each offense and placed it in the tier most
appropriate to ensure public safety. The current scheme reduced the number of
individuals initially subject to lifetime registration while continuing to advance the
purposes of the statute—protecting children and responding to recidivism risks.
These are the precise types of policy decisions the Missouri legislature is empowered
to make. The failure to mandate individualized assessments for every offender is
insufficient to show the scheme is grossly disproportionate since individual
dangerousness or risk of recidivism would merely establish a fact that is not material
under the statute. See Miller, 405 F.3d at 709 (quoting Conn. Dep’t of Pub. Safety
v. Doe, 538 U.S. 1, 7 (2003)).
While the Does also claimed disproportionality due to the lack of a registration
scheme for other serious non-sexual offenses,7 they failed to meaningfully develop
this claim in their briefing. They did not present sufficient evidence to discredit the
Missouri General Assembly’s view that registration requirements designed to notify
law enforcement and to make publicly available accurate information about sex
offenders furthers public safety interests. They did not articulate a basis that would
warrant a federal court to intervene and act as a “superlegislature.” Fixing the
consequences for crimes “involves a substantive penological judgment that, as a
general matter, is properly within the province of legislatures, not courts.” Harmelin
v. Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring) (plurality opinion)
(cleaned up). The Does’ mere assertion that Mo. SORA is grossly disproportionate
because the Missouri General Assembly has not enacted a registration scheme for
non-sexual offenses is insufficient to demonstrate a constitutional claim.
The district court did not err in denying the Does’ Eighth Amendment claim,
as they have failed to show, in general or in a plaintiff’s particular circumstance, Mo.
SORA is barbaric or grossly disproportionate.
7
The Does acknowledge in their complaint that Missouri lawmakers are
currently proposing a registration scheme for homicide offenses, although they
believe it is expected to be less onerous and burdensome than Mo. SORA.
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3. Ex Post Facto Clause Claim
The viability of the Does’ Ex Post Facto clause claim is called into serious
question in light of the interaction of Smith, 538 U.S. at 105-106, and the Missouri
Supreme Court’s decision in Olson, 696 S.W. 3d at 330 (Mo. 2024). Both the
Missouri and United States Constitutions prohibit ex post facto laws. Whether the
question is analyzed under either, the result is the same. In Olson, the Missouri
Supreme Court analyzed Mo. SORA applying the non-exhaustive Mendoza-
Martinez, 372 U.S. at 168-69, factors that were described in Smith, 538 U.S. at 97,
as the most relevant. These include whether the regulatory scheme: (1) has been
regarded in our history and traditions as a form of punishment; (2) imposes an
affirmative disability or restraint; (3) promotes the traditional aims of punishment;
(4) has a rational connection to a nonpunitive purpose; or (5) is excessive with
respect to the purpose.
We have carefully reviewed the analysis performed by the Missouri Supreme
Court as it applies to Mo. SORA and find its analysis thorough and persuasive and
adopt its reasoning as our own in concluding that the Does have not demonstrated
that Mo. SORA violates the prohibition on ex post facto laws and that Mo. SORA is
reasonable in light of its non-punitive objectives.
4. Due Process and Equal Protection Claims
The Does’ complaint contains a total of seven separate counts alleging various
due process and/or equal protection claims. Many of their claims overlap. The Does
did not identify in their briefing the specific dismissed count(s) they are asking us to
review. Count IV alleges both a violation of substantive due process and equal
protection for Tier III offenders due to the lack of an individualized assessment.
Counts V and VI allege a due process claim and an equal protection claim because
Mo. SORA does not allow Tier III registrants to be removed from the registry.
Counts VII and VIII allege substantive due process claims based on interference
with familial relationships and employment. Count IX alleges a due process claim
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directed at provisions pertaining to “exclusion zones,” which the district court
determined the Does lacked standing to challenge. We need not sift through each of
these claims in detail because the Does did not plausibly allege a cognizable
substantive due process or equal protection claim under any of their theories.
The Does’ chief complaint regarding the dismissal of their claims is a general
statement that the district court failed to accept their claims as true. We review de
novo the grant of a motion for judgment on the pleadings. Mills v. City of Grand
Forks, 614 F.3d 495, 497 (8th Cir. 2010). When considering if a claim has been
adequately pled, a court considers the pleadings themselves, material embraced by
the pleadings, exhibits attached to the pleadings, and matters of public record. Id. at
498.
A valid substantive due process claim requires a plaintiff to show a defendant
deprived him of a right established under the Fourteenth Amendment. Id. Contrary
to the Does’ argument, courts are not required to accept as a matter of course an
asserted right because it is pled. The Supreme Court has admonished lower courts
to consider carefully the description of the asserted right, as “[t]he doctrine of
judicial self-restraint requires us to exercise the utmost care whenever we are asked
to break any new ground in this field.” Miller, 405 F.3d at 710 (quoting Reno v.
Flores, 507 U.S. 292, 302 (1993)). The rights asserted by the Does include a lack of
a mechanism for individual review or removal from the registry for Tier III offenders
and interference with familial relationships and employment. As noted by the
district court, the Does failed to show how the classification scheme implicates a
fundamental right. As to their familial relationships claim, it is premised largely on
exclusions zones, which Mo. SORA does not address and are not at issue on appeal,
and other incidental impacts that do not directly intrude on familial relationships.
Similarly, the district court found that the Does, at most, showed incidental effects
on employment, noting Mo. SORA contains no prohibitions on employment. The
Does have not challenged on appeal any of the district court’s findings.
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“The theory of substantive due process is properly reserved for truly egregious
and extraordinary cases.” Mills, 614 F.3d at 498 (cleaned up). This means: “A
plaintiff must establish the government action complained of is truly irrational, that
is something more than arbitrary, capricious, or in violation of state law. Truly
irrational conduct is conscience shocking, in a constitutional sense.” Id. (cleaned
up). The Does have not identified for us any substantive error in the district court’s
analysis, let alone any specific claim that they pled which is sufficient to satisfy the
rigorous standards for a cognizable substantive due process violation. And, in our
review of the complaint and the district court’s decision, we are unable to find one.
The district court did not err when it dismissed the Does’ substantive due process
claims.
Regarding the equal protection component of the Does’ claims, the district
rejected their contention that individuals required to register pursuant to Mo. SORA
are identical in all material respects. The court identified “significant” differences
between Tier III registrants and registrants classified in Tiers I or II, including that
Tier III registrants (1) have been convicted of sex crimes involving the use of force;
(2) have committed sex crimes against children or vulnerable persons; (3) were
deemed repeat, persistent, or predatory offenders; or (4) were required to register
under another tier but have been convicted of failing to register. The Does have not
challenged these findings that undermine their equal protection claim.
Further, this Court has explained: “A classification that neither implicates a
fundamental right nor involves a suspect class of persons is constitutional if it is
supported by a rational basis.” Doe, I v. Peterson, 43 F.4th 838, 842 (8th Cir. 2022).
If the classification is rationally related to any conceivable, legitimate state purpose,
a court must uphold it. Id. The Missouri Supreme Court has found Mo. SORA is
rationally related to two legitimate state interests—the dissemination of information
for public safety and the safety of children. Olson, 696 S.W.3d at 328.
The district court found rational basis review applies because the restrictions
at issue do not involve a fundamental right or a protected class. On appeal, the Does
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assert in a conclusory manner that, as they argued below, “a standard of review more
stringent than rational basis review was warranted, which is apparent from the face
of the Complaint itself.” They do not develop, explain, or articulate any specific
error in the district court’s review of the record or analysis but instead broadly assert
the district court should have credited their claims and accepted them as true. It is
not our role to conduct a searching review of the record, research applicable case
law, and craft arguments for a party. A party waives an issue by failing to “provide
a meaningful explanation of the argument and citation to relevant authority in their
opening brief.” Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 674 (8th
Cir. 2012).
In terms of the substance of their claim, the only case the Does point us to is
the South Carolina Supreme Court’s decision in Powell v. Keel, 860 S.E.2d 344
(S.C. 2021), which involves a dissimilar sex offender registration scheme. When
Powell was decided, South Carolina’s SORA, unlike Missouri’s scheme, imposed
lifetime registration with biannual reporting for all sex offenders. S.C. Code Ann.
§ 23-3-460. The court upheld the constitutionality of the initial mandatory lifetime
registration requirement but found a lifetime registration requirement for all
registrants without any opportunity for judicial review to assess the risk of re-
offending violated due process. 860 S.E.2d at 348.
The concerns identified in Powell are ameliorated when a legislature tailors
the scheme so not all sex offenders are treated the same and required to register for
life. Does v. Whitmer, 751 F. Supp. 3d 761, 810 (E.D. Mich. 2024). Notably, after
Powell was decided, South Carolina’s legislature amended its SORA to create a
three-tiered scheme setting forth registration duration and removal procedures.
Following the amendment, the South Carolina Supreme Court expressly rejected a
registrant’s substantive due process challenge to the tiered scheme. McSwain, 914
S.E.2d at 130.
The Does’ complaint does not show the existence of a classification system
that is not rationally related to any conceivable, legitimate state purpose. Their
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generalized assertions and conclusory arguments are insufficient to demonstrate the
district court erred when it dismissed their substantive due process and equal
protection claims.
5. Count XI – First Amendment Freedom of Speech & Association
Count XI of the Does’ complaint is titled First Amendment Freedom of
Speech & Association. They allege that Mo. SORA’s requirement that registrants
report in person within three days a new or changed online identifier burdens them
and violates their rights to freedom of speech and association. They also allege Mo.
SORA chills protected speech because registrants are reluctant to engage in online
speech if they must report identifiers to law enforcement before use, which (a)
requires them to take time off from work and be away from their families, and (b)
causes fear due to reprisal and harassment from the general public. The Does also
allege the requirement is not narrowly tailored because it targets all speech and
applies to all individuals subject to Mo. SORA. On appeal, they acknowledge the
term “overbroad,” or any variation of the term, does not appear in Count XI of their
complaint.
The district court, in its order addressing the MSHP defendants’ motion for
judgment on the pleadings, characterized its view of each of the Does’ claims. As
to Count XI, the court construed the complaint as alleging Mo. SORA “violates the
First Amendment because it burdens and chills Plaintiffs’ ability to engage in online
speech.” It also read Counts XII (anonymous speech) and XIII (prior restraint) to
“appear to be largely subsumed within Count XI.” Following its review of the
claims, the court dismissed some claims and allowed others to proceed. It declined
to dismiss Count XI at the pleading stage for two reasons: (1) the MSHP defendants
failed to address/analyze the portions of Count XI not reflected in Counts XII and
XIII, and (2) because the MSHP defendants were not entitled to judgment on the
pleadings on Counts XII and XIII, there was no basis for dismissing Count XI at the
pleading stage.
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In the proceedings bel