(Weekly Update #225)

Dear Members and Advocates,

I have to keep reminding myself that “haters gonna hate” and I need to keep plugging ahead. What I’m talking about are the negative comments that keep popping up in our forum, even when we announce great news! The sad thing is that the negative comments are not coming from vigilantes or pro-registy zealots. The negative comments are coming from registrants and members.

Last week we shared an opinion and order that came out in Pennsylvania and the post announcing the victory turned into a debate in the comments section, with some commenters suggesting the State will ignore the order or just rewrite their registry even harsher. OK… or Pennsylvania might just take this loss (which is their third consecutive loss in this particular case) and continue not applying it to the plaintiff (as they have not been) and realize their registry has been declared unconstitutional from the trial court to the Supreme Court and back, and Pennsylvania won’t be as draconian as, say… Florida. Or, perhaps a meteor will land on the plaintiff’s head tomorrow and his victory becomes irrelevant to him? The point is we don’t know what tomorrow will bring but we do know that for today this is a victory, this is a great thing, and great things don’t come often in our movement so we need to celebrate them.

As we wrote in the post titled, “Disecting Torsilieri” (Torsilieri is the name of the PA case), “For those negative nellies out there who have posted that the case will be overturned on appeal or PA will simply ignore the decision; been there, done that and they have not ignored the decision since the higher court ruled 2 years ago, so I don’t think they will do so now.” We still don’t think so. You can think otherwise, but this Opinion was extremely well thought out and articulated and the research and citations are solid. This decision is one that you will want every judge in this country to read because it methodically debunks the myths that infected the US Supreme Court’s decision in Smith v. Doe. First, recidivism rates are NOT high. Second, the registry IS PUNITIVE. And while no, this case is not binding on us here in Florida, this case is very persuasive when it comes to the identical issues that have been raised in our Ex Post Facto Plus cases which are CURRENTLY being litigated.

It is opinions such as the one in Torsilieri that can provide a roadmap for future courts that are considering the same or similar issues. Not only does it provide insight into what the previous court was thinking when it rendered its opinion, but it also gives the future court some comfort in knowing they are not the first to call the registry out for what it is; misguided, ineffective, and punitive. Take, for example, a case filed by Florida Justice Institute last week in Jacksonville to challenge the Halloween Sign ordinance. With a similar issue already litigated (and won) out of Butts County, Georgia, who had their butts handed to them (no pun intended, but why not?) in the District Court and the 11th Circuit, the Jacksonville case became a no-brainer. Fortunately, the 11th Circuit is the same Circuit as Florida, so that case is binding on us here. So is 2019’s Doe v. Marshall out of Alabama, which prohibited the branding of driver’s licenses there with the words, “criminal sex offender”. Ex Post Facto II now challenges Florida’s practice of doing the same.

We NEED these wins wherever they may be. We need to chip away at the registry and we need as many courts as possible around the country to feel comfortable making a decision that’s not politically popular, but that’s the right decision. We also need to keep bringing these cases as an offensive measure to make lawmakers think twice before piling more garbage onto the plate. For decades, “enhancements” to the registry were added in practically every legislative session, but now politicians consider the potential that a lawsuit will be filed to challenge it or that their addition might just tip the scales in favor of “punitive” in the mind of a judge. We NEED these wins and we NEED to support the active challenges.

YOU (yes, you) can help make these wins happen. To our haters, stop hating and start helping. To our long standing supporters, we’re almost there and we still need you. Even if you don’t have a penny to donate towards the lawsuits or hiring experts, you can submit a declaration in support of active litigation. At the top of our website we have posted a call for declarations in the Ex Post Facto challenge. If you’ve not already read and responded please read and respond: https://floridaactioncommittee.org/have-you-been-impacted-by-floridas-3-day-requirements-or-drivers-license-branding/. This will be the last week we will be collecting declarations before sending them off to the attorneys. Please try to get them in to us before Wednesday, if possible.

The best way I can describe the legal landscape for us is this way… When FAC organized a “legal committee” more than a decade ago, trying to effectuate a change felt like pushing a boulder up a hill. I would push and push but the best I could do was rock the boulder back and forth. As FAC began to grow, we added the power of more people pushing the boulder and we finally got it to turn. And turn again. That momentum of the first turn got us rolling. As we pushed the boulder up the hill the State kept trying to make it harder on us with their “scorched earth” 2014 or “3-day” 2018, and suddenly we were pushing a much heavier boulder. We were doing our best just to keep the boulder from rolling backwards on top of us and for a while that was the best we could hope for. But around the same time some very strong and capable legal eagles came on board to help us, and instead of our boulder rolling back to the base of the hill, we were able to keep pushing upwards. Over the years, people have donated to our legal challenges and we were able to hire some heavyweight experts to help us push. And we kept rolling. Also over time came some very positive decisions from other jurisdictions. Even though these didn’t bring us over the hill, they were the dips in the slope that allow us to pick up the momentum that will launch us higher.

I feel we are reaching the top of the hill. The pivotal moment where we will push our boulder over the crest and it will begin rolling down the hill on it’s own momentum. The added obligations and burdens that the State has added over the years to make our boulder heavier will only serve to make it roll down faster. Florida will one day join Maine (2009), Kentucky (2009), Michigan (2016), Pennsylvania (2017), Ohio (2011), Alaska (2008), Indiana (2009), New Hampshire (2015), New Jersey (2021), and Oklahoma (2013) whose registries have been found to violate the Ex Post Facto provisions of the Constitution. We are almost there!

Please consider either donating to our Ex Post Facto Plus sustainer challenge or submitting a declaration to help push our boulder over the hill.


The Florida Action Committee


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