Brock Smith v. St. Louis County Police, et al.

St. Louis, Missouri civil litigation lawyer represented Plaintiff, who sued Defendant seeking removal of his name from the Missouri Sex Offender Registry.





In May of 2005, the State charged Smith with the offense of "sexual misconduct in the first degree." At the time of the offense, "sexual misconduct in the first degree" (a/k/a "first-degree sexual misconduct") was codified under § 566.090, RSMo (2004), which was defined as "purposely subject[ing] another person to sexual contact without that person's consent." State v. Ward, 485 S.W.3d 380, 381 (Mo. App. E.D. 2016) (alteration in original). In addition, the term "sexual contact," as used in § 566.090, RSMo (2004), was defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." § 566.010(3), RSMo (2004); see also State v. Love, 134 S.W.3d 719, 722 (Mo. App. S.D. 2004).



On December 18, 2005, Smith pleaded guilty to the charged offense of "sexual misconduct in the first degree," and was granted a suspended imposition of sentence and placed on probation for two years, which he successfully completed. As a result of his guilty plea, however, Smith was required to submit his name and other required information to the Registry pursuant to the Missouri Sex Offender Registration Act-§ 589.400 et seq.-("MO-SORA"), which he did on a timely basis and fulfilled all applicable requirements thereunder.[2]



On January 20, 2021, Smith filed his Petition for Removal From Sex Offender Registry ("Petition"), which requested that he be removed from the Registry pursuant to § 589.401. In his Petition, Smith specifically alleged that he is a "Tier 1 Sexual Offender" under § 589.414, therefore he is entitled to removal because he satisfied all applicable registration requirements and more than ten years had passed since the date he was required to register for his most recent (and only) offense requiring registration. Smith's Petition named the defendants required under § 589.401.6, including the Missouri State Highway Patrol and the St. Louis County Police Department

(collectively the "State"). In its answer to the Petition, the State denied all of Smith's allegations and requested that the Petition be dismissed.



On May 12, 2021, Smith, his attorney, and the State's attorney appeared for a hearing on the Petition. Evidence was adduced, exhibits were presented and admitted, and witness testimony was elicited, including Smith's testimony that he had complied with all the requirements under § 589.401 for removal from the Registry. The State's sole objection to the Petition was that Smith was not permitted to have his name removed from the Registry because, even though he is indeed a "tier I" sex offender under MO-SORA, he is required to register under the separate requirements of the Federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901 et seq. ("SORNA"), [3] and as such, he is required to remain on the Registry for his entire life given how some Missouri courts have interpreted MO-SORA in conjunction with the separate and independent federal registration requirements under SORNA. In support, the State primarily relied on the Western District's recent decision in Selig v. Russell, 604 S.W.3d 817 (Mo. App. W.D. 2020) transfer denied (May 28, 2020) transfer denied (Sept. 1, 2020), for its proposed interpretation and application of MO-SORA.



On May 20, 2021, the circuit court entered its Order and Judgment in connection with the Petition (the "Judgment"), which denied Smith's request for removal from the Registry. The circuit court agreed with the State and found that MO-SORA requires lifetime registration for anyone, including Smith, who has ever had to register in Missouri for an offense that required registration under SORNA, citing Wilkerson v. State, 533 S.W.3d 755, 758 (Mo. App. W.D. 2017), Selig, 604 S.W.3d at 824-25, and Hixson v. Missouri State Highway Patrol, 611 S.W.3d 923 (Mo. App. E.D. 2020), in support.

"For these reasons, the Judgment is REVERSED and the case is REMANDED to the circuit court with directions to grant Smith's Petition and order his name removed from the Registry without further delay." Smith v. St. Louis Cnty. Police (Mo. App. 2022)