Source: ACSOL
An amended complaint was filed in federal district court yesterday in the lawsuit challenging SORNA regulations which became effective in January 2022. The amended complaint adds three plaintiffs using the pseudonyms “John Does 2, 3 and 4.” The amended complaint also includes the two original plaintiffs — John Doe 1 and ACSOL.
According to the amended complaint, John Does 1 through 3 are no longer required to register in the states in which they currently reside, however, they are required to register under SORNA. John Doe 4 is required to register in two states, the state where he was convicted and the state in which he currently resides.
The amended complaint includes four legal claims — two violations of the federal Administrative Procedures Act as well as a violation of the due process clause and First Amendment. These are the same legal claims stated in the original complaint.
The Pacific Legal Foundation (PLF) filed both the original and amended complaints. The amended complaint was filed after a federal district court hearing held on September 26, during which the judge denied plaintiffs’ motion for preliminary injunction and granted PLF authority to file an amended complaint.
According to lead PLF attorney, Caleb Kruckenberg, a second motion for preliminary injunction will be filed next week. The hearing date for that motion could take place in late 2022 or early 2023.
Download the complaint:
If you have not satisfied your duty to register under federal law, you cannot be considered for removal from Florida’s registry. See Fla. Stat. 943.0435(11)(a)3. I have satisfied my duty to register under federal law and have filed a civil complaint for declaratory and injunctive relief against FDLE Commissioner Swearingen for removal from the Florida registry on grounds that the registry unconstitutionally infringes on my fundamental rights in violation of substantive due process under the Florida constitution.
The above may benefit from guidance from FAC Legal Committee. I don’t know whether it’s pro se, but we do want it to set good precedent, plus it appears to duplicate existing challenges funded through our Legal Fund.
Whenever I see comments such as ‘I have filed…’ on this forum, I have reactions such as the one above.
The civil complaint I filed is pro se. It is filed in State, not federal court. The complaint challenges violations of my State constitutional rights, not federal. All of my challenges have been pro se. My lifetime supervised release was terminated early because of my pro se filing. My federal duty to register as a Tier I offender under SORNA was terminated due to my pro se filing. So, I choose to fight for me and my family. If I lose and a bad precedent is set, so be it. My complaint is currently at the ‘motion to dismiss’ stage. Its been 5 months.
FAC Legal, you might consider weighing in on this. A positive outcome for Kyle could also be positive for many other families. A negative outcome, well, Kyle expressed it best.
We are in touch with Kyle, very closely.
Everyone realizes that a win would be very positive and could potentially be used to help others. A loss would be very negative and could potentially be used to hurt others.
As an organization, we discourage ProSe litigation that could impact future cases. ProSe bad precedent has constantly been thrown in the face of litigants who come behind them. If someone is intent on filing and cannot afford representation, everyone has the right to their day in court.
Kyle might also consider not discussing details of an open case in a public forum.
So your saying your a Tier 1 on the Feds leveling system and have gone 15 years since convection or 10 years with no arrest and now your suing Florida since they won’t grant consideration for removal?
If so please keep us updated since this could be useful to people. Also downside I see if you do win what is “consideration” seems kind of vague. Also was it a state or fed charge?
It was a federal charge. And no, I am not petitioning the State for “consideration” of removal from Florida’s registry. The civil complaint asserts an “as-applied” infringement of my State fundamental rights in violation of substantive due process under the Florida constitution. Under strict scrutiny analysis, my argument is that the least restrictive means for infringing on my fundamental rights under the Florida constitution would be to subject me to SORNA’s federal minimum requirements. Thus, since I have satisfied those requirements and the federal court has terminated my duty to register under federal law, the State must likewise do so in order to correct these constitutional infirmities.
The above legal argument strikes me as quite novel.
Pro Se works; keep fighting! Prayers for you.
Does 1, 2 and 4 are Tier 1 offenders under SORNA and no longer required to register under federal law. Doe’s 1 and 2 were convicted of “misdemeanor” sexual battery which carries a maximum term of imprisonment of “up to one year”. To be a Tier 2 offender under SORNA, the offense of conviction must first carry a term of imprisonment of “more than one year” before any of the criminal elements of the statutory offense are considered. Doe 4 was convicted of violating Fla Stat 800.04. This is not a Tier 3 offense under SORNA, but a Tier 1 offense. See, United States v. Salazar, Case No. 6:10-cr-60121-AA (D. Ore. Jun 9, 2021) (using the 9th circuit’s categorical approach to determine that Fla Stat 800.04 is a Tier 1 offense under SORNA). I hope the attorney that filed the amended complaint will address this in federal court so these offenders do not have to fight an incorrect Tier classification. As Tier 1 offenders, Doe’s 1, 2 and 4 have satisfied their duty to register under federal law and should not be subjects of this action.
Might want to share this with Janice Bellucci at ACSOL
This is the first time I have ever heard that a conviction under Fla Stat 800.04 is a Tier I offense under SORNA. Everything I have ever read from the government states that it is Tier III. I moved from Florida to SC back in 2003; was convicted in Fla in 2002 under 800.04. If anyone knows; how would you challenge your SORNA Tier. If I am actually Tier 1; I would now qualify in SC to be removed from the registry in SC as well as with the Fed Gov’t. Thank you for any help!!
I doubt the Court will want to do much since no charges have been filed against them. Seems like judges don’t really like to give “just in case” rulings. Just in case you get arrested for this, we’ll go ahead and rule ahead of time that they can’t? There’s lost of bad laws on the books that are never acted upon.
But, since the Feds regularly do make these arrests and so defendants don’t have to live in a constant state of fear, hopefully the Court will take the necessary action.
And they are asking for a jury trial so maybe that will make a difference as well. During a trial it can be explained the damage that is done just by making an arrest.
It’s good that there attempting to do something with these totally screwed up laws, but I’m afraid they are not going to go far enough.
There only dealing with California laws where in reality there are 50 different states with that many different laws . All there own views on what constitutes there own interpretation of tier 1, 2, or 3. Still they are required to follow the federal regulations. So in reality what is a tier 1 in one state can be a tier 3 in another. Or anything in between. So the tier system is totally worthless because it has no uniform meaning.
I know this personally as I’ve mentioned before because I was falsely convicted in one state of a tier 1 offense, removed from the registry after 10 years. Moved to another state where since the I was moved to a tier 2 than at some point because of changing laws changed to a tier 3. Which means now I’m stuck on it for life. I never had any contact either physically or verbally with the minors they are calling the victims. Nor was I ever accused of it. So how can they be considered victims. Because of that I don’t consider them victims of anything in regards to me. But because of my viewpoint I m considered in denial. My question has been all along in denial of what ? but can’t even get an answer.
Hopefully between this case, the split in the circuits of Michigan and Alabama, and if the Pennsylvania Supreme Court, upholds Chester County….perhaps we will create a critical mass of cases that will make SCOTUS and the legal system in general sit up and take notice that this fight isn’t going away and they will have to address it.
Don’t they run the risk of getting the government to actually start enforcement of a separate federal registry if they keep doing this? Has anyone been prosecuted for not registering on the Federal Regsitry?
Federal prisons are filled with folks who were prosecuted for failing to register.
From a federal registry? I doubt that. For a state registry I’m sure of it. But I don’t think the federal side is enforceed.. I could be wrong. I know they will come after you for travel and not reporting international travel.
You are wrong, Pariah. SORNA has a dual character, imposing registration obligations on sex offenders as a matter of Federal law that are federally enforceable under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250 see also Registration Requirements Under the Sex Offender Registration and Notification Act, 86 Fed. Reg. 69,856, at 69,859 (Dec. 8, 2021) (codified at 28 C.F.R. §72.1-72.8).
Or these cases where an individual was federally prosecuted for a failure to register: United States v. Juvenile Male, 564 U.S. 932, 937-38 (2011) (“Juvenile Male II”) (noting that “the duty to register under SORNA is not a consequence—collateral or otherwise—of the District Court’s special conditions of supervision” and “[t]he statutory duty to register [under SORNA] is . . . an obligation that exists ‘independent’ of those conditions”); Willman v. Att’y Gen. of United States, 972 F.3d 819, 823 (6th Cir. 2020) (holding a sex offender’s obligations under SORNA are independent of any duties under state law and “SORNA bind[s] all individuals ‘convicted’ of sex offenses, not just those with corresponding state obligations”); United States v. Meadows, 772 F. App’x 368, 369 (7th Cir. 2019) (recognizing that federal law may require registration even if Indiana law does not); United States v. Paul, 718 F. App’x 360, 363-64 (6th Cir. 2017), cert. denied, 140 S. Ct. 342 (2019) (holding that “SORNA imposes [registration] duties on all sex offenders, irrespective of what they may be obliged to do under state law); United States v. Del Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015) (holding that the “triggering event for the duty to register [under SORNA] is a sex offense conviction, not a state sentence requiring registration”); United States v. Billiot, 785 F.3d 1266, 1269 (8th Cir. 2015) (“SORNA imposes an independent federal obligation for sex offenders to register that does not depend on, or incorporate, a state-law registration requirement.”); United States v. Juvenile Male, 670 F.3d 999, 1007 (9th Cir. 2012) (“Juvenile Male III”) (holding that SORNA’s “requirement that the defendants register as sex offenders is independent from any requirement under state law”); United States v. Leach, 639 F.3d 769, 771 (7th Cir. 2011), abrogated on other grounds by Nichols v. United States, 578 U.S. 104 (2016) (holding that “SORNA imposes a federal obligation on all sex offenders to register in each jurisdiction where he resides, works, and goes to school”); United States v. Pendleton, 636 F.3d 78, 86 (3d Cir. 2011) (holding that a sex offender’s duty to register under SORNA is not dependent upon his duty to register under state law and sex offender was required to register under SORNA even though he had no duty to register under Delaware law); Kennedy v. Allera, 612 F.3d 261, 267-68 (4th Cir. 2010) (concluding that SORNA imposes obligations on a sex offender that are independent of state law and holding that sex offender had an independent duty to register under SORNA and he was not relieved of that duty just because he initially was unable to register in Maryland because Maryland law did not require registration); Andrews v. State, 978 N.E.2d 494, 502 (Ind. Ct. App. 2012) (recognizing that SORNA may require an offender to register as a sex offender even if Indiana law does not and that he “may have a federal duty to register under [SORNA] if he engages in interstate travel, and could be subject to prosecution . . . under 18 U.S.C. § 2250, if he fails to do so”); Dep’t of Pub. Safety & Corr. Servs. v. Doe, 94 A.3d 791, 807 (Md. 2014) (holding that a sex offender has an independent duty to register under SORNA while also recognizing that the state is not required to register the offender if registration of the offender would be contrary to state law); see also Doe v. Toelke, 389 S.W.3d 165, 166-67 (Mo. 2012) (holding that offender, who was required to register as a sex offender under federal SORNA based on a conviction entered prior to the effective date of Missouri’s sex offender registration laws, still has a duty to register under Missouri law and because the offender “has been required to register pursuant to SORNA, . . . [he] presently is required to register pursuant to SORA”); Doe v. Lee, 296 S.W.3d 498, 500 (Mo. Ct. App. 2009) (holding offender has an independent duty to register as a sex offender in Missouri under SORNA and the “obligation operates irrespective of any allegedly retrospective state law”).
I live in Missouri and this is insanity on steroids.
Thank you for clarifying!!
Thanks, FAC! I appreciate you finding those cases to show that the federal government prosecuted SORNA violations, just as I stated: Federal prisons are filled with folks who were prosecuted for failing to register. I know from many years of experience in the federal system.
Strange about being registered in two states, one being the state of the offense and the state where they live. The state where my offense was committed sent me a letter a few years ago telling me that I was no longer on that stats register.
What I’m not understanding is that is the judge originally said John Doe doesn’t have a claim for relief because he is not required to register due to expungement how is adding more plaintiffs with the same circumstances going to help the case? I really want this to work but it seems on the surface that more of the same plaintiffs were added. Can someone more astute than I please clarify?
I don’t understand what it is this case is trying to do.
The duration a registrant must only register under SORNA based on the tier. 1 = 15 years, 2= 25 years, 3 = life. (After release from prison; not probation, just prison)
These John Does would be easily level 1 or less if that existed. At least one has tolled more than 25 years.
What agency under SORNA said they had to register?
US Attorney General Merrick Garland