From a side-battle in the Ex Post Facto Plus case, new insight is emerging as to just how ambiguous, vague and subjective the Florida Sex Offender registration statute is. Plaintiffs in the case have fought for anonymity, which was granted for the case, but the Defendant (FDLE) clearly knows who they are.
When it comes to litigating a couple of claims (such as the fact that the statue is vague and impossible, in many cases to comply with), one of Plaintiffs’ roles is to testify to personal examples where they didn’t understand the requirements of the statute or the requirements were impossible to comply with. To testify would require them to hand over information that could subject them to arrest. Not only that, but the party they are suing is the one that has the power to arrest them.
Should a Doe testify that he/she relied on an interpretation of “day” or “within 48 hours” that didn’t match a law enforcement officer’s interpretation (hence the language being vague), they could be arrested. If they could be arrested for testifying it doesn’t pay to testify and without testimony how can Plaintiffs present their case? You get the dilemma.
To protect their clients by enabling them to testify without the fear of being arrested for something they might disclose, attorneys for the Does have been fighting a side-battle with the FDLE to expand the protective order. The pleadings that have gone back and forth between the Does and the FDLE on this side-issue have highlighted just how vague the statute is, because the FDLE’s own experts themselves have conflicting interpretations as to what those phrases mean! If you are looking for some weekend reading that will make you scratch your head, check out the Plaintiff’s Reply that follows: Does v. Swearingen – Response to Mot to Extend Protective Order
When you read the history of the ex post facto laws, you understand that it applies to civil as well as criminal cases. Yes, our supreme court got this one wrong.
Yes, this was good Sunday night reading. My favorite part is during the deposition of Mary Coffee, Valerie asks, “SO MY QUESTION IS, WHY DOES THE AGENCY WANT TO KNOW WHERE YOU’VE BEEN IF YOU’VE ALREADY LEFT?” LOL. That pretty much sums it up.
Their answer probably would be that if a sex crime had been committed in the area they would have someone to harass–ehhhh I mean a possible suspect.
Ex Post Facto laws as covered in the US and Florida Constitutions, one is verbatim of the other, and neither says anything about limiting them to Criminal law only. This limitation has been enacted by the US and Florida Supreme Courts in both their infinite wisdom.
The following is an argument paper by a lawyer at the CATO institution explaining the 1790 US Supreme Court ruling that Ex Post Facto laws do not apply to civil law and his take on why that ruling was wrong.
https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1995/11/cj15n2-3-4.pdf
Interesting indeed. Thanks.
“[H]ow can Plaintiffs present their case? You get the dilemma.” I don’t mean to speak for others out of turn, but I’m pretty sure we all get it. Thanks FAC and to the Plaintiffs in this case. Us there any way to get the Plaintiffs a grant of pocket (ie. use and derivative use) immunity in exchange for their testimony? Sometimes courts will grant this type of immunity on their own without a government entity doing it.
Sounds like the plaintiffs have to stage a scenario in which they can back out of after testifying so that they won’t incur the legal liability.
One other problem that I dont see addressed in the motion. Not only does every different FDLE officer interpret the statutes the statutes in general as they see fit, they also interpret them differently to each individual registrant.
Yes, my understanding of the rationale for the vagueness doctrine is: 1) to give citizens fair notice regarding what is unlawful; and 2) to prevent arbitrary and capricious enforcement by police and prosecutors.