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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Thank you for the update and thank you FAC for everything you do for us… Merry Christmas
What are you most looking forward to when you get off the registry (If ever)
I ask myself that all the time. I have a top 10 list but will share just one of them. I look forward to a day that when the neighbors pass my house, they no longer stare at my front porch like they think they are going to see some sort of freak show.
I know this happens all the time because I look over our security camera footage daily. You would think people who have lived here for years and have known me for years would eventually get over it but they still gawk as they pass by almost crashing their cars and they try and catch a look at me doing something illegal.
@CherokeeJack
I feel ya. I have the same problem with some neighbors. Not all, but a few. But if you compare every registrant’s top 10 list, I’m confident you’ll find some things on that list in common. Being able to travel whether it is a road trip – state to state or even county to county, and also travel abroad to any country destination without the fear of harassment, detained, arrested, or be sent back, would mostly be in everybody’s list.
To ask FAC to drop this suit so that another individual can bring their own suit on the same grounds as FAC— that would be a disservice to hundreds of members who’ve funded this suit as well as thousands of other registrants.
The arguments put forward by FAC attorneys are the best I’ve seen thus far, and so far no court has denied them on the merits. Not to mention thousands that have been invested in (very helpful) discovery.
I would encourage anyone who has further ideas and is motivated to get involved, to either volunteer for FAC’s Legal Committee or (if applicable) join FAC’s suit as a plaintiff.
But please don’t jeopardize the investment of dozens of people on this forum.
If your replying to my post concerning Miami Dades SORR, my suit will not be on the same grounds, an Ex post Facto challenge, rather one of law. Doe V Miami Dade had been litigated in the Southern District for the better part of 5 if not 6 years and has been dismissed on its merits.
The District Court held that the County showed the Ordinance (on its face) was not excessively punitive toward all covered offenders thus did not violate the ex post facto clause of the State and federal constitutions.
Plaintiff sought to amend the complaint to add an “as applied” vagueness challenge while not contesting the courts dismissal of the ex post facto and substantive due process claim. For reasons explained in Document #67 the court denied. Plaintiff appealed and the 11 circuit found the District Court did not abuse it’s discretion by denying Does “as applied” motion.
Is my understanding correct that after thousands spent, years of litigation later, where the District Court found and the 11 circuit upheld the ordinance was not excessively punitive and did not violate the ex post facto provision, the intention is to seek declaratory relief once again under ex post facto provisions only this time “as applied”?
Let me ask you, the Board of Directors of FAC and the membership a question. If fla statue 775.215 was law of the land, that is a state wide 1,000 foot application applied only to those whose conviction occurred on or after its enactment, acceptable?
My feeling is this forum unfortunately is not open to the free exchange of ideas especially if the debate is critical of litigation.
I remember Does v Miami-Dade. That one needs a new argument and to be relitigated.
It just needs new plaintiffs and an as applied challenge
It’s getting one. Oh and not to worry it will be litigated by a highly qualified Attorney, one which I believe FAC would even highly recommended. It is not a ex post facto claim rather one of State Constitutional law regarding Statutory interpretation, that is what is the distinction between criminal and remedial law. What makes one statue criminal and the other remedial.
Michigan registrants just got lucky that the ACLU picked up their cause without organizing or fundraising. Then out of the blue Michigan elected an attorney general that agrees with the ACLU on the registry. The ACLU initiated an effort for legislative change in Michigan. Thousands will be removed from the registry just for the fact they happen to live in Michigan not because they donated a single dime to this cause.
Florida registrants have been forced to take every inch of ground with their own blood, sweat and tears.
The Does litigation removes most registrants whose offense date predates July 1, 2011. The Michigan registry will be shrinking over the next few years. New registrants not affected by the Does litigation are being added to the registry every day. Rest assured, the number of non-incarcerated registrants will fall well below 20,000. Michigan registrants are fools to sit on the ACLU’s laurels. Unless they pull it together, the Michigan registry will be back above 30,000 within the next 20 to 30 years.
Michigan registrants don’t have the fundraising infrastructure that Florida or Illinois has. Both states are making slow steady progress. I wouldn’t be surprised if either state, if not both, surpassed Michigan in removing registrants within the next 10 to 20 years.
The ACLU can’t fight everyone’s battles. Everyone should be donating to the fights in Illinois and Florida.
The ACLU picked up one of our battles. Does v. Miami-Dade. It challenged the residency restrictions. Results were not good.
Will ACLU bring an as-applied challenge vs Miami Dade, or have they given up?
I get the frustration but they didn’t lose on the merits, did they?
We are in touch with the ACLU but they are so busy with election stuff recently that we know not to revisit until that dies down.
It’s my contention that the State of Florida “created a new crime” with the establishment of sec 794.065 in 2004 (now codified in sec 775.215) The States intent was to punish not remedial.
In determining whether a law was civil, not criminal, Courts employ a two part test:
(1) Did the legislature intend to impose punishment?
(2), if not, is the statutory scheme “‘so punitive either in purpose or effect as to negate the State’s intention’ to deem it ‘civil.’”
To date all litigation challenging the residency restriction have been limited to the second question. Applying these highly subjective seven factors of Kennedy V Mendoza make it nearly impossible to show a remedial law has a criminal purpose or effect through the ex post facto challenge. Courts almost always manipulated the 7 factors in deference to the States with only few “as applied” successes to speak of.
If a court were to find 775.215 criminal that ends the inquiry.
That’s my contention. I will argue the statutory language and the historical use of residency restrictions as conditions of parole and probation, (traditional forms of punishment), shows the legislative intent was to impose punishment.
775.215 was enacted prior to Doe V Miller precedent and “the legislature expressed concern that its statutory residency restriction could be viewed as punishment and for that reason it deliberately exempted sex offenders whose crimes preceded enactment of the State law”
I will be consulting with an attorney too bring forth this challenge. I ask FAC to put aside any further EX Post Facto challenge regarding the residency restriction while this litigation proceeds. I stood aside as Doe V Miami Dade was being litigated and respectfully ask the same of you. Having stage 4 pancreatic cancer I may not make it through litigation and it is my hope FAC will join rather than oppose.
Never before has 775.215 been challenged on its face. Is its intent remedial or punitive?
You have my email address and Gustavo my phone number. I’m prepared to coordinate with FAC in this endeavor as soon as 28DEC20 AFTER the holidays. I can assure you there will be no disagreement as far as the advocator who hopefully will “BRING IT ON” in January.
In Exile V Miami-Dade County (Case # 09-51205 CA 13) The legal question addressed was whether or not 775.215 preempted Miami Dades residency restriction. The court found that implied preemption is disfavored in Florida stating; Legislative intent turns on statutory language and interpretation and statutory interpretation is a question of law. It found that the State did not intend to preempt not whether the Statute was punitive or remedial.
so, lets ask.
You’re asking FAC to drop its ex post facto challenge?
So you can bring a different one with different arguments?
That’s NOT happening EVER.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 19-10254 D.C. Docket No. 1:14-cv-23933-PCH
“Some background on the ex post facto clause is helpful to understanding the parties’ arguments. Article I, § 10, of the Constitution prohibits States from enacting any ex post facto, or retroactive, increases in criminal punishment or changes in the definition of crimes. See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S. Ct. 1597, 1601 (1995). A civil law that applies retroactively, like the Ordinance, can violate the ex post facto clause in two ways:
First, the law is unconstitutional if the legislature intended to impose punishment. Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147 (2003).
Second, the law is unconstitutional if “the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. (alteration adopted and quotation marks omitted).
At trial, the Does argued the Ordinance was unconstitutional in both ways. The District Court rejected both arguments, holding that the County had not enacted the Ordinance with punitive intent and that the punitive effect of the Ordinance was not so excessive as to transform it into a criminal penalty.
It (the County) points out that to survive a facial constitutional challenge, the County needed to show that the Ordinance’s overall effect on all covered sex offenders was not so punitive that it constituted a criminal penalty. See Smith, 538 U.S. at 92, 123 S. Ct. at 1147. After trial, the District Court held that the County made this showing because the Ordinance was not excessively punitive toward all covered offenders.
Had the 11th Circuit felt, that on its face, the effect was so excessive and punitive in effect, it would have ruled on the facial challenge alone. It declined to do so and found the District Court did not abuse it’s discretion by denying Does “as applied” motion.
I do appreciate your consideration of my request for FACS support in this matter. I pray your refiling of the ex post facto “as applied” to the new pool of plaintiffs is successful.
Wishing all a Merry and blessed Christmas and a toast to everyone’s health, wealth and very successful New Year.
Do you think the Senate ( Brandes etc) would just simply “amend” the current law allowing “specific registries” to be removed that fall under that 1994-1997 group in which the law was never in effect rather than deal with MAJOR PUBLICITY? Just curious?
Yes.
Don’t lose hope and don’t let naysayers overcrowd the conversation. God bless em, some people will cry that it’s a lost cause or go even further and claim incompetence or malice on the part of those actually bearing the fight. The initial sting sometimes pushes me toward the “lost cause” feeling. It’s complete nonsense, though.
Much love to FAC for anchoring this community and to all the attorneys and advocates fighting this with a personal passion. As the saying goes, it’s not the dog in the fight, it’s the fight in the dog. When caring people see the registry for what it is and how destructive it is for everyone it touches and society as a whole, it lights a fire. That’s the fire that will burn this monstrosity down.