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No Luck for Man Wrongfully Listed on Sex Registry

By William Vogeler, Esq. on July 06, 2017 | Last updated on March 21, 2019

Once a registered sex offender, always a registered sex offender -- even if the offender was wrongfully listed on the sex offender registry.

That's a hard-edge reading of a federal appeals court decision in Roe v. State of Nebraska. The plaintiff sued the state for negligently listing him on the registry, but a trial court dismissed the case as untimely.

"We conclude that even if Roe's pleading was sufficient to state a claim of negligence against the defendants, his claim is barred by the two-year statute of limitations of the Nebraska State Tort Claims Act," said the U.S. Eighth Circuit Court of Appeals.

Tough Roe to Hoe

Henry Roe -- a pseudonym -- said that his true name and picture mistakenly appeared on the Nebraska State Patrol's online sex offender registry. He sued the state and 10 unnamed state employees for damages, alleging negligence, unlawful taking of property, and a deprivation of federal rights under 42 U.S.C. § 1983.

Roe alleged the state gave him "an incorrect classification" in 2010. He said he discovered the wrong "shortly after" Dec. 23, 2011," and filed a claim on Dec. 23, 2013.

A trial judge dismissed the complaint, saying Roe failed to state a cognizable claim and did so too late. The appeals court affirmed, finding that Roe waited more than two years to file his claim.

In another proceeding, the court said, Roe testified that he learned in spring 2010 that his name and picture appeared on the sex offender registry. That was beyond Nebraska's statute of limitations under the Tort Claims Act.

He Knew, but Didn't Know

Even so, Roe argued he did not know at the time that he was "incorrectly" listed. Without knowledge that the listing was erroneous, he claimed, he did not recognize that he had a legal claim against the state.

The court said Nebraska's discovery rule does not delay the accrual of a claim until a plaintiff knows the legal significance of an injury. Roe knew he was injured by his appearance on the sex offender registry more than two years before he filed his claim, the court said.

"With the exercise of reasonable diligence, he could have and should have discovered that state law did not provide for his listing on the public registry at that time," the unanimous panel said. "That he did not discover his legal claim until later is an insufficient reason to delay the accrual of his claim."

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