The McGuire decision sucks
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.
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Elana, thanks for the info. I have a busy morning scheduled but I will get started on addresses this afternoon and the judges will be added to Phase IV of the media blitz project.
It’s not only registrants who are angry with this decision. Check out the numerous reader comments in the Talking Points Memo article on this case.
From the comments section quite a few mention they believe the judges were stalling since they knew the plaintiff was right. Unfortunately we live in a pos world where these judges just toyed with this man for 7 years only to tell him the law has good intentions. This just seems so shady of a court decision. It’s like they realized the registry is punishment, but instead of issuing such they weighed their decision for seven years; if they rule this Alabama Registry unconstitutional what damage would it cause versus keeping the status quo? Then sat on it as long as possible. Then said, wait what if we give a BS ruling the defendant only hope will be to appeal this decision and if on the slight chance they agree to hear the defendant might just yet die and we keep the status quo.
I just wish a media person would ask the Judges why does it take you 7 years to come to a decision? But we would never get the truth out of them. Even with this decision I hope it brings attention to the media how bad Registrants have it in the 11th. 7 years to get a decision even our waiting times are punishment.
The court seemed to intentionally give the Alabama legislature seven years to repeal the worst portions of the law so they could then upheld the slightly less bad portions of the law.
I have said it for almost 30 years now and I will say it again.. THE registry will never go away. Slavery in America never went away. Hunting Witches never went away… America just rebrands, rewashes and repeats… Prison inmates are now the new big business slave labor workforce and anything sex related is the new witches.. for 1)government will make everything and anything illegal to insure they have the slave workforce required and the media will brainwash the braindead population so they not only accept it but clamor for it.. 2) The government will make everything sexual legal and illegal at the same time so everyone is a sex offender and media will continue to demonize sex while also promoting it in everything.. funny that isnt it?
This cycle will always continue as long as there is an America and will only change names and faces until the next government replaces he current rotten one..
I hope there is no appeal as a reflex action by McGuire. As FAC pointed out, the Supreme Court (SCOTUS) picking up the case is a longshot. It is also possible that SCOTUS could render a bad decision which would apply to the entire country and would be nearly impossible to undo.
SCOTUS is most prone to take a case if it 1) has constitutional implications, and 2) there is a circuit split on the issue. The 11th circuit has staked out its position. In some cases, other circuits have determined certain provisions unconstitutional.
Using analyses from this entire body of cases, the SO advocacy community could collectively develop attacks on each specific point used to justify registration. For example, doing a deep dive into the question of what constitutes a “rational” relationship to a legitimate public good might reveal a crack in that argument. Perhaps digging into legislative deliberations could show a pattern indicating punishment is the intent.
Rather than, or in addition to, playing “whack-a-mole” by fighting individual issues in different jurisdictions, we could form nation-wide working groups, ala Wiki, to develop a cohesive legal counter argument against each pillar supporting registration. Somehow, we need to gain control of the narrative. I for one would assist in such an effort with whatever time and money I could spare.
Folks, dont forget there are other cases coming about in different courts across the US as more and more of us fight for our constitutional rights. Sooner or later, there will be a split among courts on the ex post facto issues. Any case that shows splits among lower appellate courts has a better chance at being reviewed by SCOTUS. It’s not often that SCOTUS overturns its prior rulings, but they did recently in the abortion case of Dobbs by overturning Roe.
Question: How is progress made within the 3 branches of the Federal government?
Answer: One retirement at a time.