The Eleventh Circuit Court of Appeals just came out with their opinion in Does v. Swearingen (Ex Post Facto I) and IT’S A WINNER! The case is getting sent back to the District Court and the Plaintiffs will have their day in court.
I am sharing the opinion below for your reading pleasure, without having the opportunity to read through and digest it myself.
Trust that a deep dive and further celebration will come shortly!
EXTRA SPECIAL THANKS to the amazing lawyers who are litigating this case!
-Was there ever an expo facto case filed in Florida from an offender whose conviction or plead with adjudication withheld was before 1993 in Florida, when no registration of any kind existed. Then, if the case was still active in the system on Oct 01, 1997 was obligated and threatened with jail time if it not registered ?
https://www.registrymatters.co/podcast/rm244-doe-vs-swearingen-a-victory-in-florida/
Podcast about the case worth listening to.
Also new timeline for the trial has been updated https://www.pacermonitor.com/public/case/38167792/doe_v_SWEARINGEN
FAC, where is the “deep dive” you spoke of?
Coming shortly
I love the summary written by the Institute for Justice on the 11th Circuit win in this week’s Short Circuit blog.
“Over the last 25 years, Florida has repeatedly amended its sex-offender-registry law to require more information, more frequent updates, and more in-person meetings. The most recent amendments, from 2018, require registrants to report any absence from their permanent residence, for any reason, that lasts more than three days. And any failure to comply with the registry is a third-degree felony. Seven registrants, all of whom committed their crimes more than 25 years ago, sue. Eleventh Circuit: And most of their claims can go forward; because the registration requirements inflict an ongoing injury, they are not barred by the statute of limitations.”
Bio
Love how they can throw in all these “Statue of limitations” but then make certain exceptions and people suing saying 65 years ago someone touched their leg and made them feel uncomfortable. No I am not downplaying people’s pain, but just don’t understand the “pick and choose” attitude of the courts when it comes to registered citizens.
Completely unrelated to this- is there a way to get the article that mentioned the study for the spouses because I have managed to completely permanently delete it and I’m interested in participating. Thank you
The court gave us what we asked them for and then some. Thanks again, FAC Legal Committee, for spearheading the effort!
How is it we have numerous negative comments, on a post about a win in the courts?! Really now, people, get off of it!
If the very first thing you think when you read this post is “this is actually a loss and I must explain to everyone else why it’s a loss, because I’m the all-seeing, all-knowing expert here”, please just save it. If you can’t contain yourself, tell your pet(s) all about it. Or, maybe get some therapy. I really don’t want to hear your theories about how a win is a loss. You’re wrong. A win is a win.
You think we won WWII by winning battles then saying “oh but we’ll never win the war, why are we even trying?”.
You think the Buccs moped after every game they won, certain of their inability to win a championship?
If you can’t feel even a little warmth when the sun is shining right on you, I feel bad for you. With that mindset, you are a drag on and possibly a risk to this community. Please find a way to feel some positivity in your life.
AMEN!!!
Agreed. I have experienced so much negativity from attorneys regarding some of my pro se filings for my case and for other individuals who needed help by telling me that what I am doing will fail or will create bad precedent. Good for the attorneys in this case. I think some of the negativity stems from the fact that this is a four-year-old case that has been appealed twice and is still in the beginning stages of litigation. Maybe ask the Plaintiff’s in this case, who are still suffering injury from the registry, if they feel as though they are winning. This is a public forum where ALL opinions should be posted and respected. It is the only way we can all grow in sharing the ultimate goal we all share; working to abolish the registry…period.
It has not been appealed twice.
It’s not in the beginning stage of litigation. You have absolutely no clue how much discovery has been performed, experts deposed, etc.
We try to post respectful opinions, but when you come into this forum and crap on the attorneys who are busting their ass or suggest things “should have been done” in a different way when you’re not an attorney and have very little insight into the decision making process, sometimes it’s just better to hit delete than have to defend ourselves and the attorneys.
Unfortunately there will always be haters.
Sadly so. I will enjoy the good opinion and get back to it!
#3, you seemed to have insulted Kyle M for no good reason. He just complimented the attorneys who are working on this case. If it is not in the beginning stages of litigation, what exactly had been litigated. Deposing witnesses is not the same as admitting testimony. No testimony has been given. No evidence has been presented. That’s all that Kyle was getting at, despite the passage of 4 years. If you are afraid of the free exchange of differing viewpoints, why should you expect the courts and legislatures to listen to anything sex offenders who live under the oppression of the registries have to say or complain about.
Gerald, as I explained privately to Kyle and I will now explain to you, for the benefit of every reader, this is not the post to engage in legal discussion about an active case. The purpose of the post was to announce the result of the appeal. That’s all. It expressly states that a deep dive (more comprehensive write-up) will be forthcoming. Instead, we’ve spent WAY too much time dealing with calls, texts, emails comments, and the other barrage of communication from haters to do much else.
Litigation is not just court appearances. Litigation encompasses everything from pre-suit demands to discovery, to post trial motions. Instead of opening this website, why don’t you or Kyle open Pacer and look at the Docket in 1:18-cv-24145-KMW Does, 1-5 v. Swearingen? You’ll see that it’s on Docket Entry two hundred eighteen (218). That’s a couple hundred steps in the litigation process that includes complaints, motions, hearings and responses. That does not include more than a dozen depositions that were taken from both plaintiff’s witnesses and defendant’s as well as declarations collected from dozens more people. That took about two years including the time we were waiting for decisions from the Court, which is entirely beyond our control. Then, look at the docket for the 11th Circuit. Add more time and A LOT more work for the appellate briefs, reply briefs, oral argument and all the preparation and drafting that each took. Again, the months it took for the Court to render it’s recent opinion should not be held against us.
If you and Kyle want to imply that there’s been no litigation during this time, you’re either blind or just trying to sabotage our efforts. If you are dissatisfied with the amount of work or the product of four years of that work and think the attorneys (or FAC) should be doing more, perhaps you should consider what the attorneys are being paid (nothing) or what anyone at FAC is being paid (nothing also) to do this work. Our very, very minuscule budget of $25,000 a year to help with expenses hasn’t even been met for 2022 yet! If you think we need to add additional attorneys or staff onto this thing to make it go faster, why don’t you dig into your pocket and make that happen (yes, we have access to know who contributes what)?
As I told Kyle via text last evening, “if you have questions or concerns about the case, raise them with the attorneys. This post is not the forum for discussion about the case for a number of reasons. One being the readers are lay people and not qualified to respond to your concerns, second because the post is intended to motivate our members and your comments bursting the bubble are misplaced. Third, the FDLE is reading our forum and we cannot discuss legal argument” or strategy.
If you guys think you can do better, PLEASE, PLEASE, PLEASE go for it! The inexplicable effort you spend criticizing FAC could be put into starting your own forum or litigating your own cases.
Thanks FAC #3 for explaining the steps in litigation. A lot of people just don’t understand how much effort goes into a case like this. We aren’t in small claims court on Judge Judy here!
Personally I feel feel this is a waste of time and effort spent on an issue that does not move the ball forward. XXXX is not paid staff nor does he even have to do what he does on our behalf.
I hope from here onward that anyone with negative comments or different negative legal analysis call him and get the facts.
I personally can do without chair-arm analysis or Monday morning quarterbacking.
I am sure XXXX would be happy to add to the legal Committee anyone that wants to be productive and not just post negative or incorrect legal comment. We already have a Legal Committee analyzing legal results.
Want to add your voice? Awesome. Volunteer and bring it in house.
Personally I don’t donate my money to half-glass philosophy oriented orgs or persons and why I give to FAC. There was a prior FAC post before about how attitude affects hope and results. I recommend those that did not see it to go to it. Let’s stay UNITED in messaging and actions. And remember FACs mantra….with UNITY comes change!
As one of the plaintiffs I consider this a huge win. The State tried to silence us and failed. I am sad that we must live with this corrupt system.. that we must wait several years to even ask to be treated humanely. But what other choice do we have? They almost succeeded until the appeals court saw through their deception. Do yourself a favor and listen to the oral arguments; you will be surprised and encouraged by what you hear from the judges. Whatever the final result we will have our day in court and we will be heard.
Thank you, plaintiff, for standing up against this entirely f*ked FL Registry!!
More power to you and your fellow plaintiffs!!
Much love to you folks!!! 💓💓💓👍🏻👍🏻👍🏻
Pro se is risky, very risky. Without the same resources and support as a group of attorneys, and without a legal education and experience, you’re risking setting bad precedent.
@Kyle M
Maybe you don’t realize it, but some of the things you’re saying sound like you’re throwing shade at FAC. It sounds like you’re criticizing their work, and based on metrics that seem out of their control. A court is not compelled to decide in any small amount of time, and it would seem to me that larger, more complex cases, probably take far longer to decide than simple, single-issue ones. If you’re really disgruntled about this, it sounds like you may not know as much as you think you know. You may be the type who knows enough to be dangerous, as they say.
I wish you nothing but success, of course. But I hope you will learn to temper your criticisms of a friend to your cause, and your seemingly-negative outlook on even a victory. A win delayed is still a win. The appeals court could have denied us our day in court and completely shut out a majority of persons on the registry from even pursuing a lawsuit with the SoL. This is a huge win. Sure, it would have been even better if it came out faster, but that’s with most things in life. Some good things take time. We can still enjoy them when their time does come. Join me in enjoying this win.
Oh my. I’ve now read the whole thing and this is a rare unicorn indeed: it gives the petitioners more than what they were asking for. The petitioners claimed that the statute of limitations started ticking in 2018, but the 11th Circuit has said that the clock continues to tick as long as there is an injury and threat of enforcement of an unconstitutional law. I’m going to tell you here and now that no matter what the final outcome of this case, this decision will most definitely impact the Florida Legislature by exerting at least some degree of chilling effect on future ex post facto deprivations of liberty under Florida SORNA.
Once you get your head around all of the implications, this is a massively huge win, and I think that all of the times I’ve donated money to this cause was money extremely well spent. Thank you FAC and attorneys involved!
RM – I’m so happy that you get it. We’re still going to do a deep dive in this coming weekly, but appreciate you sharing this.
Yes, RM, that is a major win and I really, really, REALLY hope that other courts will begin to recognize it! Seriously, it’s not complicated – the injury continues as long as one in on the Registry!! It doesn’t stop. It doesn’t end. It’s every single, living day that one is listed on the Registry!! 🤷🏻♂️
(Jimminy Crickets, a 5-year old could understand that!! 😖)
I do see some hope in part IV(D) even though it was denied which says that we are ‘irrebukably dangerous’.
The judge said that could have been considered if it had been timely.
So, anyone coming on to the registry could argue this point seeing that all of us are already labeled ‘dangerous’ without any proof or psychiatric evaluation that any of us will ever sexually re-offend.
It is also ‘defamatory’.
Reminder – Donate! Any little bit helps! On my way to that page now.
FAC and to the attorneys….THANK YOU!
I find judges to be interesting. In this case we had 41, 56 and 60. The younger had clerked for the oldest. Unlike the other case we just had that was horrible, they were 69 to 79. I don’t mean this to age cast, but I do still find it interesting.
THANK YOU VAL JONAS & TODD SCHER!
I did notice that the same issue that remained time-barred here in EPF I, was dismissed in EPF II. Would love to tackle that someday, once we get through this.
Thanks to this ruling, I no longer suffer the McGuire Blues.
Thank GOD! Great news, hope they offer some form of relief this time around.
What are we to make of the 11th Circuit if they just ruled against us only to turn around and say “we have a plausible argument about increasing burdens”? Didn’t say just say Alabama registry has good intentions so it’s ok? I’m worried Florida will just cited that and we’re back at the Registry has good intentions. Overall a good ruling. Wondering if the Tampa Guy who refused to register since he was technically right only for the legislature to change the law about fines is the plaintiff to retry count IV(D)
I think you are confusing two separate cases.
Yes they were two different cases but 11th circuit seem to say Alabama registry was not punishment. Anyway I’m glad that they used sound reasoning and now the Does will have their day in court.
Eat it, FDLE.
Thank you FAC and especially our Legal Committee and the attorneys carrying on the fight for all of us! Although a couple of our claims were dismissed, look at how many were upheld – and the legal battle can now continue. We look forward to seeing the next court’s positive decisions on our challenges as well. May better days be ahead!
Praise God!!!!!!!
There are still some Judges that see through eyes of constitutionality and justice, instead of finding a way to circumvent the language of the Constitution and judge in the favor of the state.
Florida has gone way too far!!
It is sad though that it took 4 years for a federal court to grant the plaintiffs their RIGHT to have the courts address their issues. Sending it back to the state courts for consideration is the easy way out. They should have taken the case up themselves, since the rights of the plaintiffs were already violated by that state.
I think you are confused, Gerald. The case was not “sent back to the state courts for consideration”. It was never in the state courts. It was originally filed in the FEDERAL COURT (US District Court for the Southern District of Florida).
Which actually increases my frustrations with the system. Since it is a federal claim, there is no reason why the 11th Circuit shouldn’t just take up the case now, while the facts are before the Court. And there was absolutely no guidance given in the opinion on how the District Court should weigh the claims. They have analyzed the claims sufficiently enough to bar some from going forward. They should also decide the merits of each remaining claim. They know that the case will come before them again.
Gerald, because the case was dismissed on a motion to dismiss. The District court did not even hear or consider the merits of the case. The issue and record before the appellate court is whether the case was properly dismissed on the statute of limitations issue.
Under Rule 10 of the Federal Rules of Appellate procedure, an appellate court is limited to the pleadings filed in the trial court, the transcripts of any hearing and trial, and the docket. In the current case it didn’t make it beyond consideration of the Motion to Dismiss. There’s nothing on record showing the testimony and examination of all the experts that were retained to support the plaintiff’s argument and all the other very important pieces of evidence that makes up the case.
Would you really want an appellate court, sue sponte, to just say, “we don’t need to hear about the substance of this case or from any of the parties or their witnesses, we are going to make a decision based on our preconceived opinions.”? I sure wouldn’t!
I suspect your frustration with the system is largely based on a misunderstanding of how the system works.
A misunderstanding of how the system works? Regardless of how the case is decided in the District Court, the losing side is going to appeal, and the it will be back in the hands of the Circuit Court, but more years will have passed with no final decision. And if the state wins in the District Court, the Circuit Court of Appeals merely has to affirm the decision. All they did here is pass the buck.
It’s not passing the buck for an appeals court to send a case down to trial court for trial. That’s just how it works.
Either side may prevail at trial. Then the other side may appeal. Then the appeals court may either uphold or reverse. But you know all this, right?
You seem to be predicting the outcome of both the trial and the appeal of the trial. But we have no basis to do so.
Facts aren’t before the court yet, only allegations. There still needs to be a trial— appeals court can’t run that.
I read it and wept.
The judges see the injuries!
They laid it out clearly.
Thank You FAC!
Thank You Attorneys!
Thanks to all the donations!
Let’s get this across the finish line!
YAY!!!!!!!!
A good day for the cause!
Thanks Ronnie, and the legal team, for all the hard work you put in!!!!
Hurray!!! I hope……
Noticed this is an opinion to PUBLISH, which makes it even better. Great job to all involved!
This is awesome news! Keep up the great work FAC, this is BIG!
So when is the court date?
Well, this looks like good news, but I’m a tad confused. I thought that Florida action committee inquired as to the claim that you had to register a temporary residence if you left your permanent residence for more than three days? I actually thought it was three or more days and I thought that recently, FDL Lee, or perhaps the attorney general stated that you didn’t have to register if you were gone from your permanent residence more than three days unless you intended to establish a temporary residence wherever you were going. Did I miss something? did the court missed this? Should we expect a claim from the state that this issue is moot because they have already “resolved” this and the 11th circuit has made a factual error in the ruling?
Valid point. The statute says “Three or more days” the eleventh circuit opinion said “More than three days”. Legally it makes no difference because it was still a win. Effectively it’s even better because if the 11th Cir found that “More than three days” were a burden, clearly “three or more days” is even bigger a burden.
This is super as far as it goes …. But then there’s the crippling and long-awaited, and seemingly binding, McGuire decision of two weeks ago…. 🥹🥹
Suspenseful…
Oremus indeed.
Finally Retired
Yes, just spent 30 minutes reading McGuire. The courts basically ruled registries are here to stay and are not punitive in nature, rather regulatory. If this becomes binding law, not telling what new horrors will be added to future “Retroactive” laws.
Yes, Cherokee Jack, all one needs to do is look at Michigan. Wait a decade to finally have the state’s sex offender registry law declared void as unconstitutional, only to have the legislature pass a brand new retroactive law. Sends states the message that they can effectively skirt any federal oversight by just rewriting the rules.
In that case, McGuire is no loss, because the legislature would have done what they wanted either way.
This is AMAZING!!! Thank you FAC most days are pretty dreary but days like this make it worth it. Once you a deep dive can let us know the scenarios that can positively effect us? I’m a layman when it comes to law. Love you guys!!
Awesome!! I will be filing a notice of judicial authority in my case. This helps me immensely as Swearingen has presented the same statute of limitations argument in his motion to dismiss my complaint. Thank You!!
notice of supplemental authority
Congrats FAC Staff, Attorneys and Volunteers!!! I know how hard you have fought for this…Godspeed…