Motion to Alter or Amend filed in Ex Post Facto Plus Case
As promised, the Ex Post Facto Plus case has not seen the end of the road. Yesterday, attorneys for the Does filed a Motion to Alter or Amend the Order. A copy of the Motion is below, but in lay terms it argues that the very recent 11th Circuit Court Case upon which the court relied should be distinguished from this one and/or the case should proceed as to the current Plaintiff’s obligations under the changes to the registry made within the statute of limitations (4 years prior to 2018) and/or the case should be amended to add a plaintiff who was added to the registry within the past 4 years as to the facial and as applied challenge of the entire registry statute.
And as promised hereafter, even if the current Motion is not successful and the case needs to be refiled with named plaintiffs who are all added to the registry within 4 years, the challenge will continue.
If you take a moment to read through the Motion, you will see the significant amount of work that has gone into this case and you will appreciate the efforts of the attorneys who are giving their all to fix this for us. We should also appreciate the donations of our members who helped fund this case.
We fight on!
Does v. Swearingen – Motion to Alter or Amend
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Fundraising is always a delicate issue. Certainly, if someone donates only $5 it is appreciated.
I own several houses and over the years have allowed homeless people in my rooming house with no funds up front and nothing but a promise to pay when they were able. I have found that they always have money for beer, liquor, cigarettes and marijuana but no money to contribute to the household.
Currently, I am helping a young lady whose boyfriend is facing life in prison and life on the registry if convicted. I have a good investigator lined up that she needs $1,000 for. She is on probation and we are trying to negotiate her $100 month in restitution down to $50 a month. We are also trying to negotiate a temporary reduction in her rent. She smokes and we are trying to reduce what she spends on cigarettes.
When you are confronted with any situation, you can readjust your finances to find money in emergencies.
Derek receives $700/month in social security. I don’t know how much he dedicates to this cause but bet it’s more than $100/month and wouldn’t be surprised if it is more than $200/month. Derek is definitely on the poor side as far as registrants are concerned.
I have 2 registrants currently on my properties. Both are able to pay $80 a month but refuse to be a part of this cause. One will be doing computer work for this cause only because I reduced his rent. I have 3 registrants in my neighborhood and all 3 make enough money to donate $80 a month. I have asked all 3 if they would like to participate in meetings and all 3 refuse.
To say that at least 50% of registrants can give $80/month is both reasonable and realistic. I am having a difficult time getting registrants to attend meetings and I’m not even seeking donations. My old neighbor, Hal Nemecheck, was one of the first persons placed on the registry in 1995. When I told him about my efforts, his only response was, “good luck”. And this was a guy I supported when he was in prison who kept saying he wanted to get into prison reform after being released. After he got out, he totally forgot about prison reform. He was on the registry for more than 20 years before he died and seemed happy as a lark being on the registry. And this is what I found is that the vast majority of registrants will do little to nothing about the registry.
Unfortunately, the State will claim they are immune from any civil liabilities ( monetary compensation) if they out come is in the Does favor so no financial liability could be awarded by the State for what they have done to some people keeping them on the registry unlawfully ( DOES 1/2) So unfortunate.
Does aren’t asking for any $, I don’t think.
Correct – it’s a complaint for declaratory and injunctive relief.
I am not referring to this as a complaint for declaratory or injunctive relief ( asking for $$$), I was referring to the idea if you do succeed in Does 1/2, which would be a fantastic for that “specific group” since the law was never even in affect in 1994-1997 ( pre Oct), there just seems to be no way to get any compensation for the years of additional”punishment” this “specific group” has been though. The State made sure to protect themselves on that end and that is a shame.
Anne
Although that would be great, I just want my life back. I would almost give a kidney to get off this list. Next my parents will be going out of state for Christmas and I won’t be going for two reasons. First the cost and second, even if I had the money, the hassle of registering 4 times in a week just to go on a trip and risking being harassed or worse, is not worth it.
So yeah, I am not pushing my luck if I get off the registry by seeking compensation. Just being removed would be one of the top 5 gifts in the World to me right now. Also, if we start seeking past damages financially, we might screw things up for any further success of anyone getting removed.
You catch a bird with a morsel of bread, not the entire loaf.
Anne, I think you may be referring to the 11th Amendment. But it too has exceptions and states can be sued. In some instances, the state actually waive their right to sovereign immunity as a matter.of law. Im not a lawyer. But I do know there are plenty of cases where people have succeeded in their law suits against various states and even the feds. So, don’t be discouraged.
I’ve long wondered why no one has ever included the Changed Circumstances Doctrine from US v Carolene Products (and Chastleton v. Sinclair). Carolene is the beast that created Rational Basis analysis but it’s also where SCOTUS reiterated that changed circumstances require judicial review and possible striking of a previously constitutional law.
From Carolene: ” [T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing . . . that those facts have ceased to exist.” (citing Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841 (1924)).
As well, in Leary v. United States, 395 U.S. 6, 38 n.68 (1969), SCOTUS said, “[a] statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist; in ruling upon such a challenge, a court must, of course, be free to reexamine the factual declaration.
Also, in Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 415 (1935), SCOTUS stated, “[a] statute valid when enacted may become invalid by change in the conditions to which it is applied.”
So why can’t one use any/all of these cases to argue that, even assuming arguendo “frightening and high” and “80%” were true when Smith was decided, circumstances now are different. Academic and governmental studies have shown over and over that the “facts” in Smith are incorrect. Arguing they were wrong then seems futile but predicating them correct and then saying, “but they’re not now,” seems like it would have some traction.
Just a thought that has nagged me for a couple years.
AJ – this is actually very good research and thought. I’m sharing it with our network of attorneys.
Thank you for the acknowledgement. I hope it helps! It should at least force a judge have to sit up and think a little bit. Given the “facts” are total BS, and given this case law says a court CAN dig into the genesis of those “facts” (the facial declaration), I don’t know how any State or the Feds will have a valid response.
AJ
darn you Aj, and here I am still trying to master my Abc’s and you come along and get all “Matlock” on us LOL 🙂
And thank you FAC for recognizing someone for useful info and input.
Well done
The network of attorneys working on registry litigation appreciate it too.
Question…
Assuming the case laws are still valid, could they be a foundation to address the Federal SORA as well?
@SC: The case laws ARE still valid.. (I wouldn’t have posted and suggested them were they not.) In fact, the 1st CCoA cited the applicable portion of Carolene, and thus Chastleton by reference, in a case in April, 2020. See: United States v. Vaello-Madero, 956 F.3d 12, 23 (1st Cir. 2020).
The cases could indeed be used to challenge the Federal SORNA, though I suspect most judges would decide it’s not “enough” of a burden (read: punishment) to overturn. I’d love to see someone take a shot at it! Me, I’ll have to win Powerball to take a stab.
@AJ: No worries at all. When I was actively researching case law I would come across items that fit exactly what I needed only to find out they were no good due to a more recent ruling. I applaud your diligence and others like you who divulge pertinent information so freely. Cheers!
What can I say, I groove on constitutional law!
mp:
$5 helps but as long as FAC members keep donating small amounts the longer before they see any relief. Registrants should be donating until it hurts. If you are not donating until it hurts, then the registry isn’t that painful to you. At least 50% of the people on the registry can afford to contribute $20 a week but how many do?
If members are really interested in getting off of the registry then they should do autopay to FAC for $80/month.
I have learned that 1% of the people are doing 100% of the work in this fight. The other 99% like to complain but do nothing. They deserve to be on the registry and to suffer all of the disabilities that being on the registry entails.
@Detroit,
I respectfully disagree with your statement:
“At least 50% of the people on the registry can afford to contribute $20 a week…”
What is the factual basis of this claim? The registrants I know can either barely pay their bills or get help from others to do so. $80/month is a lot of discretionary income to many of us.
There was once a pos[t]er on here who claimed to be a millionaire. When I called him out to donate enough to cover our legal challenges he disappeared.
In my humble opinion, we need more registrants to give something instead of trying to squeeze the few who do donate to give more.
One of the most uncomfortable parts of being on the board of FAC is having to ask for donations. I hate doing it because I know so many of our members are struggling. The truth is, it’s necessary because this case would not happen without the contributions of our members. If we didn’t solicit donations, it simply would not be possible.
There are some who can give $5, some who can give $5000 and some who need the $5 to feed their kids and can’t give anything. We get that and trust everyone will do what they can. If someone can’t afford to help financially, they can always volunteer time, which is also desperately needed.
Glad the lawyers didn’t just throw in the towel and say “We fought a good fight, maybe next time”.
The best lawyer(s) are ones who believe in you, believe in your cause and are not just in it for the money. The money is essential but when an attorney or group of attorneys believe in you and are not afraid of the judges and the system, you keep fighting until you cannot fight any more.
Just hope when it is time for me to petition to get off, I have someone who knows what they are doing.
Do these people know that we’re never gonna go away ? lol. They might as well give up and give us what we want already. Our lives and full rights back. It’s inevitable.
I’m not confident at all that the Hit Lists are going anywhere any time soon. Registry Terrorists/Supporters (RS/Ts) are conducting a war and they are doing just fine. I think they’ll be able to survive for decades and continue harassing families. They are scum who aren’t going to give that up.
The biggest mistake that I could personally make is to allow the Hit Lists to exist in peace. That is what the scumbags want. They want their BS harassment Hit Lists and they want everyone to love them and gush about how wonderful they are. What they need is nothing but a giant “F you”.
As long as the Hit Lists exist, I have been given permission to wage complete war against RS/Ts and any of their enablers. I have been relieved of any duty to be a good, helpful, contributing citizen. I’m going continue succeeding and doing much better than everyone else, but I’m not going to worry at all about any RS/Ts. We know what those people are about. We know what they deserve.
I’m obligated to ensure the Hit Lists are worse than worthless. I’m obligated to help ensure that they do as much harm to society as possible. I’m obligated to ensure that they only exist at the absolutely highest cost of time, money, goodwill, peace, and other limited resources.
I pledged long ago that I would not let the Hit Lists exist without consequences. I’ll continue. RS/Ts should know no peace. All good Americans should do everything possible to take resources from big government and their law enforcement criminals.
The registry may not go away but there is no reason to keep people on the registry after their probation/parole and damn sure not for life. Nice way of this “great country” proving it’s built on “Christian values”. Funny how human beings get to determine what’s forgivable and what’s not.
Maestro
That is because the public sees us as monsters and not people. Just like many people are against the death penalty but not many lose any sleep when a man they did not know is executed for kidnapping and killing 5 women.
We mostly find sympathy with those who are affected by what has happened to us. I myself have always tried to see the good in people but all of us have or have had some prejudices in our lives.
We have more passion for a cause that directly affects us or a loved one. For example, I never donated to cancer research until my Father was diagnosed with it 11 years ago when I was still working. Now days I feel blessed to find a penny on the ground.
There is no reason to have the Hit Lists at all. There is no informed person with a brain who actually cares about public safety who thinks that the Hit Lists are a good idea. I defy anyone to show me one single person who makes that statement wrong. Just one. In all of America.
I am the head of my house and a lot of people live here, including children. I care about public safety and more so about the safety of my family. I have a lot of new neighbors around me. I’ve never looked at the Hit Lists for safety reasons. I’ve never looked to see if any neighbor was listed. No need. The only thing that I’ve used the Hit Lists for is to see how much resources my governments are wasting and who is near me that can be a soldier to help me harm the criminal governments. That’s it.
I don’t have any need or use for the Hit Lists. Because I have sense. I know that even if my glorious criminal governments don’t have my new neighbor listed, that person could be a raging, active child molester. So it does me no good to know about some other person who committed crimes years ago. In fact, that might distract me from actually being vigilant with everyone. I’m not dependent on big government to help keep my family safe.
will
I beg to differ. ( on no one ever looking at it ) . I have lived in at least 30 different places since being put on the registry. I am NOT required to have community notifications when I move somewhere.
Having said that, within a week or so of moving somewhere, almost everyone knows because someone looked at the registry then let everyone else know.
I do agree it shouldn’t exist, I do not however agree that no one looks at it. To add to that, now with Nextddoor app, it is even worse as they proactively recruit people to be a neighborhood watch group and gossip about every single thing. I know because my neighbor tells me everything they say.
Please re-read what I wrote. I did not say that no one looks at the Hit Lists. I said that my family does not look at them or want or need them in order to help improve our safety. I don’t care if nanny big government (NBG) wants to tell me that “sex offenders” live or work near me. And the simple reason for that is because my family assumes that every single person should be listed on the Hit Lists. Since we do that, we don’t need an incomplete list from NBG and we are better protected than anyone.
People definitely look at the Hit Lists. America is FULL, FULL, FULL of terrible, self-righteous, entitled dipshits who LOVE gossip and harassing other families. Full. So yep, those people love the Hit Lists. But it has jack to do with public safety or protecting children. It has to do with getting their jollies and getting themselves off.
I expect you fully agree with and understand this but, just because people look at something that does not mean it should exist or that it is smart or moral. If you put everyone’s credit report on a web site I guarantee you that site would get views that would put the Hit Lists to shame. People would be looking at that all the time. For “public safety” or some other nonsense lies that they would spew.