Bad News: EPF I Dismissed Again
We just received the upsetting news that the “Ex Post Facto I” case was dismissed AGAIN! This case was originated in 2018, dismissed, appealed to the 11th Circuit, remanded back to the district court (the same court that originally dismissed it), and was set for trial in a few months. The district court has once again dismissed the case. The order is below.
Attorneys Val Jonas and Beth Weitzner, who along with others, have dedicated nearly a decade to this challenge, are not giving up and as soon as this order is digested, will be coming up with next steps. We will keep you informed. In the mean time, this is very upsetting news for our population in Florida.
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Have the attorneys or FAC determined what these “next steps” will be or has this case been given up on after all these years?
Yes, sorry, a 4th Amended Complaint was filed and the FDLE has until mid-may to respond
If anyone interested in moving to colorado I have contacts at the Register Sex Offender Units that helped me in the task force. They are there to help and are ones to look see what your charge is in another state – how it translates to Colorado law which for florida is always better anyways. Can ask FAC for my email they have it. I also member of FAC veteran group now we do phone calls monthly. Can pick my brain
Well all may not be lost. It may be that we can get it to the Supreme Court faster this way by way of a writ of certiorari… I truly believe the Supreme Justices are ready to right some wrongs. I really believe this after The Honorable Justice Clarence Thomas specifically mentioned the sex offender registry in his option in which was an 9-0 decision when it came to applying ex post facto. This could be a blessing a fastrack. We definitely have the best lawyers to proceed…Thank you Beth, I remember you well when we knocked down some internet restrictions in Tallahassee.
Would you like to tell them or should I? There is no way Supreme Court Chief Justice John Roberts is going to let ANYTHING or ANYONE near a challenge against Smith v Doe. You have no clue the shady shit that went down. Justice Clarence Thomas maybe but how honorable remains to be seen. Did they know what Justice Souter was hiding? Justice Scalia did. Did he know what Congress did in the Federal Amendment to publicly shame nearly half of the registry with a hidden punishment wrongfully? The registry is one thing, Megan’s Law public notification is another part after. Can you prove that Congressman Zimmer put Low level offenders into a moderate level to enforce public notification against all of us? I can… Unless the state of Florida can create a law called EVIDENCE it’s a second punishment. Florida is using and enforcing Federal Registry law created for Sexually Violent Offenders against low level non violent offenders.
I agree that as long as CJ Roberts is in the seat, he will do what he can to not allow a case challenging the Smith precedent, but he only has one vote. It can be done and during his term as CJ at that, but it needs to be the right case.
JA,
Do you have the quote from the Ellingburg decision where Justice Thomas says “Sex offender registry?”
The 2026 Supreme Court case you’re looking for is Ellingburg v. United States, decided January 20, 2026. The Court held that restitution under the MVRA is criminal punishment for Ex Post Facto purposes, and Justice Thomas wrote separately to argue for a broader originalist reading of the Ex Post Facto Clauses.
Justice Thomas, joined by Justice Gorsuch, said the Court should return to Calder v. Bull and focus on whether a retroactive law imposes a coercive penalty for a public wrong. He specifically used the sex-offender-registration context to contrast the Court’s older Ex Post Facto cases with modern labeling tests.
Here’s the core excerpt from Thomas’s opinion (joined by Gorsuch), directly addressing registries and punishment: “Consider our decision in Smith v. Doe, 538 U. S. 84 (2003), upholding Alaska’s sex offender registration law. There, this Court considered a law requiring a defendant convicted of certain crimes to register as a sex offender. The Court held that the law was not punitive under the second step of its intent-effects test, even though it imposed significant burdens on registrants. But under the original meaning, such a law looks different. It penalizes a public wrong—a conviction for a sex crime. The penalties are coercive: failure to register leads to criminal prosecution and imprisonment. And the State enforces these penalties as sovereign, not as a private actor seeking civil redress. It is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice than to leave some wrongdoing unpunished. The original meaning demands a categorical rule: No retroactive coercive penalties for past public wrongs.”
Thomas uses this to argue registries like Florida’s—applied retroactively with felony penalties for noncompliance—function as punishment, overriding civil labels.
I am so not doubting you but I have read this 3 times and can not find the passage.
Weekly Update 2026-01-20-Ex Post Facto Laws
January 20, 2026 9 Comments 3 min read
Weekly update for January 20, 2026. This is recording number 350
Dear Members and Advocates,
Today, the Supreme Court of the United States handed down a decision in Ellingburg v. United States (Jan. 20, 2026), a case having nothing to do with the registry, but having to do with Ex Post Facto laws.
Justice Clarence Thomas joined the majority but wrote a separate opinion to emphasize what he views as the proper foundation of the Constitution’s Ex Post Facto Clause. He explained that the Clause does not prohibit all laws with retroactive effects, but only those that retroactively impose punishment. Tracing this principle back to Calder v. Bull (1798), Justice Thomas noted that an ex post facto law is one that punishes a person after the fact for conduct that has already occurred. He criticized modern legal tests that focus too heavily on whether a statute is “civil” or “criminal/punitive”, urging instead a return to a historical understanding of punishment—one that includes broad, coercive sanctions that would have been considered punitive at the time of the founding. His approach stresses substance over labels, directing courts to look at whether a law imposes real burdens or deprivations on liberty, rather than how the legislature describes it, and applying less restrictive standards than the Kennedy v. Mendoza-Martinez, factors that were used in Smith v. Doe (2003).
This reasoning has direct relevance to sex offender registration laws, particularly those applied retroactively to people convicted before such laws existed. For years, courts have relied on Smith v. Doe, in which the Supreme Court upheld Alaska’s registration scheme by concluding it was “civil” rather than punitive, and therefore not barred by the Ex Post Facto Clause. Justice Thomas’s analysis in Ellingburg, however, calls that framework into question. He encourages courts to examine whether a law is functionally punitive in practice. Modern registries impose burdens traditionally associated with punishment, including restrictions on movement, employment, residency, and participation in public life. Under the historical approach outlined in Calder, these kinds of restraints could qualify as punishment even if they are “civil” laws.
Justice Thomas’s analysis can easily be applied to the coercive nature of many registry requirements that impose restrictions on otherwise completely lawful behavior. These measures can be regulatory on paper, but in practice they can operate as ongoing punishment. His approach further emphasizes fairness and notice—core principles underlying the Ex Post Facto Clause—by underscoring that people should know the consequences of their actions at the time they act. Retroactive expansions of sex offender laws, including residency or proximity restrictions imposed years or decades after a conviction, are therefore especially vulnerable under this framework. The broader implications for sex offender litigation and policy are significant if courts adopt the historical test Justice Thomas describes.
Although this opinion in no way overrules Smith v. Doe (even though he cites to it several times), Justice Thomas’ opinion suggests an openness to reexamining or narrowing analysis when it comes to registry challenges under the Ex Post Facto clause, potentially inviting future legal challenges that argue modern registries are too punitive to continue to fly under the “it’s just a civil regulation” excuse.
As HB 45 and SB 212 continue to advance through the Florida Legislature, it’s becoming increasingly clear that these bills, if enacted, will almost certainly require a legal challenge. The scope and severity of the proposed restrictions – particularly those applied retroactively – raise serious constitutional concerns that cannot be ignored. When that happens, Justice Thomas’s opinion in Ellingburg may prove to be an important tool. While no single case guarantees success, Ellingburg strengthens the legal foundation for challenging laws like these.
Bottom line… if these bills pass, we will be ready.
Sincerely,
The Florida Action Committee