A second lawsuit was filed this week in Federal Court for the Southern District of Florida. This from the Palm Beach Post:
WEST PALM BEACH —
When a Palm Beach County man in 1993 pleaded guilty to two counts of lewd and lascivious assault on a person under the age of 16, he made it clear he wouldn’t accept the plea deal unless he was assured his current and future employers would never find out about his transgressions.
Prosecutors agreed.
Four years later, that promise was obliterated when the Florida Legislature passed a law requiring sex offenders to register. While the unidentified man fulfilled the terms of his plea deal and was never arrested for another crime, his name, address and photograph are now readily available to anyone who can log onto the internet.
In a lawsuit filed in U.S. District Court this week, the man who is using the name John Doe to protect his privacy, is asking a judge to rule that the law shouldn’t apply to him.
Had the law existed 25 years ago, he could have used it as a bargaining chip in his plea negotiations with state prosecutors, wrote his attorneys Cindy D’Agostino and Barbara Scheffer. Failing that, he could have opted to go to trial.
Instead, the man who went to college, bought a home, got married, had a son and started a computer consultant business has had his life upended by the onerous, time-consuming and life-altering reporting requirements, they wrote.
“The registry has retroactively increased the punitive consequences of his plea deal,” which violates his constitutional right to due process, D’Agostino and Scheffer argue.
When Doe was convicted, the judge withheld adjudication and placed him on probation for 15 years, ruling that he was unlikely to re-offend.
Under the sex offender law, which has become increasing broad and restrictive since it was enacted in 1997, the judge’s ruling means nothing. Doe is now deemed to have “a high risk of engaging in sexual offenses” even though there is no proof of that, his attorneys wrote.
In fact, Fort Lauderdale psychologist Sheila Rapa, who examined Doe in 2016, found he posed “minimal to no risk of re-offending for a sexual assault,” according to an affidavit that accompanies the lawsuit. D’Agostino declined to detail the allegations against him.
The lawsuit is one of dozens that have been filed around the country in recent years, challenging state and federal laws that turn sex offenders into pariahs.
As recently as last week, the U.S. Supreme Court considered a similar case. It heard arguments about whether the U.S. Attorney General abused his power when he made the federal sex registry retroactive. The Texas Supreme Court is poised to decide whether people convicted before the sex registry law was enacted there must register.
In 2017, the nation’s high court struck down a North Carolina law that made it a felony for a registered sex offender to use social media “if the site permits minor children to become members.” In an opinion written by Justice Anthony Kennedy, the high court ruled that the law violated sex offenders’ First Amendment rights. Other challenges to various provisions of states laws have been lodged nationwide.
John Doe’s lawsuit was filed against Palm Beach County Sheriff Ric Bradshaw and Richard Swearingen, head of the Florida Department of Law Enforcement. The two were named because they administer the registry program as it impacts Doe, D’Agostino said.
County sex offenders register with Bradshaw’s agency. FDLE operates the web site that features addresses and photos of offenders. Neither of their attorneys could be reached for comment.
But, D’Agostino and Scheffer claim, the restrictions go beyond merely registering at the county stockade every six months. Doe has been shunned by his wife’s family and neighbors. One neighbor even filed a lawsuit against him. Police and probation officers turn up at his house unannounced.
The words “Registered Sex Offender” are branded on Doe’s passport, making him reluctant to leave the country with his family. Similar words are printed on his driver’s license.
Further, Doe can’t use Facebook because the social media giant has a policy of blocking sex offenders from creating accounts, they said. His 6-year-old son’s school uses Facebook to communicate with parents, making it difficult for him to participate in his child’s education.
He fears being barred from school events. He worries his son will be bullied if classmates learn of his father’s status.
Not surprisingly, the attorneys said, Doe suffers from depression. He made a deal 25 years ago and the terms were drastically changed without his knowledge or his ability to prove he is a danger to no one, his attorneys wrote.
That’s ironic. These are the same two attorneys that filed an appeal to Florida’s 3rd District years back after my original, wimpy attorney (who misrepresented me in court) screwed everything up. Basically, IF I recall, their strongest argument to the appeals court was that the statute said the state “may” require someone to register versus “shall”. Never mind that my original attorney verbally assured me more than once prior to sentencing that, upon him entering a guilty plea on my behalf, I did NOT qualify for SO registration & public notification, and would NOT be subject to SO registration and public notification. The offense date was January 1997. I was sentenced in April 1998 to a term of house arrest followed by regular probation. SO registration and notification was NEVER even mentioned by the prosecutor, judge or my attorney, and all that was in writing (contract with the State) was regular terms of probation…period! Their weak appeal was denied. At least they are displaying more intestinal fortitude with this person’s case; they sure made a nice penny off of me!
What everyone needs to keep in mind when looking back at the performance of their trial attorneys, is that many of these collateral consequences didn’t exist. People convicted in 2005-2006 were not told about residency restrictions as a possible consequence because they didn’t exist and who could have foreseen them?
So many people tell us, “my attorney didn’t tell me I couldn’t move to…” but it’s because, at that time, there was no part of any statute or any municipal ordinance that said you couldn’t. How could anyone have known?
Another thing to keep in mind when comparing one appeal to another. When appealing a trial court decision you are restricted to appealing the issues from the trial court. You can’t argue the case over with new arguments and new issues that were not raised originally.
I down right sick and tired of the Sheriff coming over to my place 5 times a year Having to be at the jail every six months, before 4:00 and not on thur. So as to check my 26 year old adress For a completed two year probation in 2002
I feel you man, same here. You’re not alone. It’s been overkill for years with this annual multiple times reporting/registering crap.
WOW!!! First Gundy, then the Ex Post Facto, now this.
(and right before the election)
What I do notice is that ALL of the plaintiffs are sex “offenders” and not one is a Predator.
I only ask this because how this lawsuit is written, it is written basically word for word on how my case went (Right down to the Judges recommendations that I wouldnt re-offend and that I should NOT to be put on any list)
But wouldnt you know…. THAT court transcript (all 3 copies) are “missing” from my case file.
I cannot even get the 200+ questionnaire that FDLE gave me at the time of my release; that showed that I was no more a “threat to society” than a pet rock.
The statute that is being challenged applies to both offenders and registered predators. If you were low risk back in the day, should be even easier to establish that risk level today, even without those docs. But this is Florida where a registrant’s risk level, as the lawsuits point out, are of no relevance.
All – the representative plaintiffs are 5 individuals who are just that; representatives. We all know there are tens of thousands of individuals who are affected and the tens of thousands will benefit from a win.
We cannot possibly have named too many because there are page limits to motions and it’s unnecessary to spend time and financial resources traveling across the state attending depositions of everyone, when a handful can paint an adequate picture for the court.
I wonder how long for a ruling I was getting funds together to get a lawyer as well but this case is exactly me
Read our weekly update.
Indeed it is Florida, where even deceased registrants pose a threat to the public. I guess a zombie apocalypse is a real life belief to these people.
Hahaha! Thank you, John…I need a good laugh tonight!
Wow this exactly my situation but mine offense is from 1991 I was in high school still mine was 4 years probation and they told me I would be finished but I got sucked in also I was wondering when someone was going to challenge that is I would have known that I would not have plead out. And the reason I plead out was because I was due to go to college in another state. What a trick its illegal
That’s the premise of this suit. If ours wins, you get relief.
From reading the lawsuit brief, it is clear that if a prosecutor thinks that these points aren’t valid, then they should be never allowed into another courtroom because they are too incompetent to hold their position.
The state knows very well that these points are valid. But they will see it as their job to argue otherwise. And the courts may take them seriously, but I hope not.
“…Doe can’t use Facebook because the social media giant has a policy of blocking sex offenders from creating accounts, they said.”
Interestingly enough, the Facebook policy, as it is written, does not apply to John Doe. They bar those “convicted of a sex offense.” Since his adjudication was withheld, the policy should not apply to him. That said, I’m sure Zuckerberg &Co. will plug that loophole eventually, and would probably kick him right off the site under the current policy anyhow.
Valid point.
Anyone who has a withhold of adjudication should try to open facebook accounts and see what happens.
Unfortunately, for purposes of registration, Florida law says that “convictions” includes everything. While you may not lose all of your civil rights if adjudication is withheld (not sure of you still don’t technically lose your firearms rights beyond the no weapons requirement for probation) you are still “convicted” for purposes of the registry. That was another little trick done by our elected officials to prevent the courts from “legislating from the bench.”
You have town/city laws, then you have county laws, then State laws.
BUT….
The highest law in the land is the US Constitution. And in the “Second Amendment” It says….
“A well regulated militia, being necessary to the security of a free State; THE RIGHT OF THE PEOPLE TO BEEP AND BEAR ARMS SHALL NOT BE INFRINGED.”
I challenge all of you to show me where it says in that one sentence, where it says “Except Felons, Sex Offenders and the such”.
The highest law in the land is the Constitution; THAT is the law of the land !
Here is a copy of the complaint: https://floridaactioncommittee.org/wp-content/uploads/2018/10/Does-v-Bradshaw-ET-AL.pdf
I just had a dream last night that if every state were to file on state offender laws Congress will kneel and would listen to us the good part of the dream Every state got relief.
Can pretty much guarantee that won’t happen.
It was a nice dream though.