The opinion that came out of the 11th Circuit yesterday in the McGuire case sucks.
There is no other way to put it, no other way to see it. It sucks on so many levels. The opinion itself is awful. It basically ignores everything that has happened since Smith v. Doe and relies on the same flawed reasoning as that Court’s. The registry is not punishment, so anything the legislature wants to pile on as a requirement or restriction is also, therefore not punishment. It’s as if you took a basket and wrote “not punishment” on it, and threw whatever you wanted into that bucket and that was magically also not punishment because it is in that bucket.
Throw residency restrictions into the bucket and they are not punishment. Employment restrictions are in there, also not punishment. Castration? Waterboarding? It basically means that whatever the legislature wants to add, they have a blank check to do so and the presumption is that it’s not punishment because it’s part of the registry and “the registry is not punishment”.
It sucks also because this was a decision everyone in the 11th circuit was waiting for for seven years! Earlier this month FAC sent a letter to the Court and now this! If the court were to simply reject all of McGuire’s claims, relying on opinions written decades ago, they could have done this years ago and spared everyone the anticipation. It is very, very bizarre.
I did have the opportunity to speak with the lead attorney in our Ex Post Facto Plus case and while there is no good way to view McGuire, there are some very important distinctions between Alabama and Florida. For example, Alabama’s requirements are different than Florida’s. Where Florida provides 48 hours (which makes reporting impossible in some cases), Alabama has 3 business days. Also, Alabama’s impacts are different than Florida’s. For example; in McGuire’s case, they claimed there were only 3 homeless registrants, whereas in some cities in Florida there are more than 300.
It’s difficult to draw a line determining what is punitive and what is not. As the Ohio supreme Court said in State v. Cook “There is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a `matter of degree.'” This leaves the court in a position to determine where that line is drawn. Maybe 3 business days, which ensures you have time to actually register when the office is open is not so punitive, but 48 hours, irrespective of whether its a weekend, holiday or hurricane, is not? Maybe a residency restriction that only leaves 3 people without housing isn’t so punitive, but one that leaves 300 without housing is?
Also, In the seven years since this appeal had been pending, the Alabama legislature did away with a couple of the requirements that McGuire was fighting. For those, the 11th Circuit simply said the issues were moot. In a sense it was lucky that other Justices heard those cases, because if this Court would have heard these issues, who knows how they would have decided?
I’ll now jump to the questions most of you have been asking. Will McGuire be appealed and how does this impact our “Ex Post Facto Plus” challenges?
We’ve not heard anything about a potential appeal in McGuire. Phil Telfeyan, one of the lead attorneys in the case, circulated the decision to a group of people who had been following the case yesterday afternoon, literally minutes before it was shared here, and he didn’t even have a chance to digest it at that time. We will update if any decision is made, but remember that the chance of the SCOTUS even picking up this case would be such a longshot, that we should not count on this as a Plan A to move forward.
Our Ex Post Facto Plus challenges are naturally bruised by the precedent McGuire creates, specifically with respect to the “ex post facto” part. As for the “plus”, we are still in good shape. Remember, our case in the Northern District survived a motion to dismiss. That’s a good sign. Also, our “plus” part is a right to travel and first amendment challenge, in which the burden is on the State (not the plaintiff), so at least some of our case will fall under a different standard. And finally, in the Judge’s opinion (denying FDLE’s motion to dismiss), he expressed a distaste for the purpose behind the 3 day travel notice. It would be unexpected for him to change course now.
This is a very disappointing day for everyone in the 11th circuit, especially for those in Alabama and especially for McGuire and his legal team who gave this their all. We just need to keep fighting.