Update on Ex Post Facto I and II Lawsuits
Following the legal challenges on the Ex Post Facto cases can be compared to riding a rollercoaster – first, be glad to see it moving, climbing ever so slowly up the first hill, then brace yourself for the ride…. plenty of ups and downs with negotiable turns and unexpected twists, and as an added surprise, the track splits into two. As you approach the end of one track, you are thrusted onto another track and the climb begins again.
In 2018, the case of Does vs Swearingen was filed in the Southern District Court of Florida. That lawsuit was nicknamed “Ex Post Facto Plus” because it challenged the registration requirement as violating the ex post facto clause, in addition to several other challenges (the “Plus”). We expected that a win in that case would mean that any state law passed after the date of someone’s offense would not be applicable to them. For example, if the offense was July 25, 2009, then any state law passed after that would not apply to you. That was the intent of the original case, but the scope of the case changed as a result of defense challenges and judicial decisions leading up to the trials.
In 2019, FDLE challenged the original lawsuit based on a statute of limitations, claiming that the complaints by each plaintiff had to be made within four years of being placed on the Florida Registry. The attorneys for the Does (Plaintiffs) immediately appealed that decision, and at the same time they initiated a second lawsuit in which a single Jane Doe plaintiff was within the 4-year period.
Hence, we now had two separate lawsuits to follow and two separate tracks to ride out: Does vs Swearingen (Ex Post Facto I) and Harper vs Swearingen (Ex Post Facto II). When Mark Glass replaced FDLE Commissioner Rick Swearingen in 2022, the cases were renamed as Harper vs Glass and Does vs Glass.
While the original Ex Post Facto Plus case (Does vs Glass) was in the Eleventh Circuit Court of Appeals, the Ex Post Facto II case (Harper vs Glass) was moving through the Federal Northern District. In 2019 FDLE moved to dismiss all of their claims in that case as well. The judge granted FDLE’s motion on many of the claims, including the claim that the registration requirement violated the ex post facto clause, based on binding precedent. But he allowed the case to proceed on these claims: 1) that the 3-day restriction on travel, enacted in 2018, violates the ex post facto clause and 2) the 3-day restriction on travel violates the substantive due process clause.
The bench trial for the Harper vs Glass (Ex Post Facto II) was heard by Judge Robert Hinkle in Federal District Court, Tallahassee, with closing arguments on 11/15/2023. Per the attorneys for Harper: “If we win on the ex post facto claim, it would mean that the 2018 provision, requiring in-person reporting of travel for as few as 3 days in the aggregate per year, would not apply to anyone whose offense was committed before it was enacted. If we win on the substantive due process claim, it would mean that the 2018 three (3)-day rule would not apply to anyone.”
Not only are WE anxiously awaiting for the judge’s decision [slowing down on track 1], but so is the judge in Miami. In 2022, Does vs Swearingen (Glass) won the appeal and the Eleventh Circuit court remanded many of the claims back to the Southern District court. There was an order issued last week, 11/20/2023, by Judge Williams, who has been presiding over the John Does case (Ex Post Facto I) in the Southern District of Florida [picking up speed on track 2]. You can read Judge Williams’ order here. In summary, here is what the order does:
1) It grants FDLE’s motion to dismiss the state constitutional claims (claims raised separately under the state, rather than federal constitution) based on the doctrine of sovereign immunity. In other words, a federal court does not have jurisdiction to decide a claim against the state brought under the state constitution.
2) It grants a stay of proceedings in the Southern District (Ex Post Facto I John Does case), until after the Northern District rules on Harper vs Glass (Ex Post Fact II). That is because the 3-day travel restriction was raised in the Southern District case too. Therefore, a ruling from the Northern District — whether Harper wins or loses there — may affect the nature of the John Doe claims and the scope of trial in the Southern District.
Judge Williams has ordered both sides to let her know the status of the Northern District case within three (3) days of an order from that court, and the impact of that case on the John Does case in the Southern District. Prepare for the ride on track 2!
While a win in either case may seem like a small prize, the legal landscape permits only a small prize — prior case law precludes wider relief at this time. Three (3) lawsuits were filed in Florida challenging the registration statute within months after the 2018 enactment, including Does, because the 3-day restriction made a big difference in people’s lives.
The attorneys for Does had argued vigorously in their response to the motion to dismiss, trying to distinguish their case from early prior case law precluding ex post facto claims. They pointed out that the prior case law involved much less restrictive versions of the registration statute, and in the years since, the statute had steadily grown more punitive. But in October 2022 (after the Harper vs Swearingen case was filed), the Eleventh Circuit Court of Appeals, the federal appeals court for cases from Florida, Georgia and Alabama, upheld Alabama’s registration statute — which is similar to Florida’s in many respects — against an ex post facto challenge. That case was McGuire v. Marshall.
McGuire v Marshall specifically addressed the Alabama travel restriction, which, like Florida’s, requires in-person reporting for 3+-day trips. In summary judgment proceedings, FDLE argued that McGuire v. Marshall meant we lost even the 3-day challenge. But the attorneys for Harper argued that the Alabama 3-day rule is materially distinguishable from Florida’s. The judge denied FDLE’s motion for summary judgment and allowed Harper to proceed to trial on that challenge.
McGuire v Marshall is regarded as eliminating the prospect of another ex post facto challenge to the statute as a whole for the foreseeable future. In the meantime, we can target individual provisions that are especially punitive. If Harper prevails, it makes good sense to challenge other specific provisions, which will be discussed at another time.
It is most important to recognize the ground that has been gained, Harper vs Glass may be the first to get to trial in a Florida federal court since the registration statute was passed. That is a win in itself for registered citizens as they will finally have their day(s) in court on an especially punitive provision of the statute.
The heavy burden of proof is placed on us, and courts almost invariably rule against registrants. But with courageous plaintiffs, expert witnesses, and support from our members and advocates, we remain confident that the strong, knowledgeable legal team representing them will make the very best case they can.
As we prepare for the Does vs Glass trial in the Federal Southern District Court in Miami, it is imperative that we build our legal fund to meet the 2023 goal. This is the time to donate what you can.
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Thank you for the update. I dont completely understand it. But im hopeful these cases don’t bring yet more bad case law like the Alabama case. We all know this garbage is punishment without a doubt. But getting a court to stop playing games with our freedom may be difficult. They have zero to loose except there next election.
These are federal judges who are given lifetime appointments, not state judges who can lose an election. See,this is a major problem with federal judges: you can never get rid of them.
@Just
The GOOD news, we are NOT going away. We will continue to flood and back up the courts until the end of time until we are finally heard. It is time for us to stop being scared and starting to fight back with vigilance. If they want us to stop, they can start giving us a pathway off the registry.
Just think if you were sentenced to life on probation with no chance to get off. You would eventually not give a crap anymore and just do what you want. You cannot even believe the amount of times I have been pulled over for a bogus traffic violation. Now when I see a patrol car behind me, I purposely turn onto another street until they pass by. Many cities now have license plate readers that automatically gives all info about the driver directly to the officer’s computer screen.
Pariah
There is no consistency. In my area, one judge allows you to be removed at 20 years, then if you see a different judge (You do not get to pick your judge) that just in the same court system, does not allow your removal. That is why some attorneys pull their cases if they are assigned a certain judge and wait and re-file later.
That is how I got off probation. My original judge who sentenced me, refused to end probation early. We waited 2 more years until another judge was seated and he ended my probation, even against the prosecutor climbing the ceiling, yelling, flopping on the floor and spewing green slime from her mouth LOL (She was really pissed she could not control the judge).
A case that I just commented about might be helpful. Many like myself had no registry when we were arrested and added years later when it came out without a path off.
Now I just say a guy on the local news here in Florida who had multiple sex charges and he said he would only plead guilty if he never had to register as a sex offender and the judge agreed. So my question is, how can that person make that deal but none of us who were convicted before the registry can assumably ever be removed even though we did not get that chance in court because the registry did not exist. Is that not violating the entire concept of the registry, that it is a requirement? I was NOT sentenced to have to register, nor were many on here.
I am sorry but the law sucks and is dishonest in its rulings. That judge circumvented the law and not sure she had the authority to that and wouldn’t be surprised if that person is not later added to the registry (Since none of the rest of us got due process)
Speaking of that why hasn’t due process been used as a defense.
Ok I am done, going back to the dungeon.
@Cherokee – The judge allowed him to plead to “child abuse”, which is not a sex crime that requires registration. The busted would-be Seminole County judge, Andrew John Jones, used the same trick a couple of years ago. I expect to see this kind of deal happening much more often in the future. It goes to show how silly it is that a guy like me, whose “crime” was no worse than theirs needs to be surveilled for the rest of my life, because I’m obviously dangerous, but these “child abuse” guys don’t. I’m on the registry forever because of the name of my criminal charge, not because I’m evaluated to be dangerous in any way.
RayO
Thanks, glad someone agrees with me. I was going to say if I could go back in time, I would have gone to trial instead of pleading guilty. However, if I could go back in time, I could go back and not do the things I DID actually do.
I am seeing murderers who had life sentences, getting released, and yet we are never, ever are able to get off the registry, even upon death.
There are a lot of other countries that are starting to take note of the human rights violations the U.S is placing on certain citizens.
Thank you so much for the update. A lot of good information to digest and I will have to break it down into small parts. However the more parts of this registry that are found to be punitive the better, even if it’s just a couple we build out case for abolishment since this entire house of cards was built on the registry being a civil regulatory scheme.
Yea, I saw the teacher who was “molesting” female students just got 8 months probation and no sex offender registry. What is up with these new sentencing guidelines? Are judges finally realizing the lifelong effects of the crippling registry?
Jerry
I personally do not care that he got a deal. What I do care about is, how the Hell are the rest of us who have been on the registry since it was created (Retroactively I must add) can never, ever get off (At least in Florida). Yet with all the advanced add on requirements, this person gets to make a deal with no registration? Where was our deal? Can we go back and re-negotiate? NO!
Thank you for the update but not I’m confused.
Ok let’s use the date or example, if my offense was July 25, 2009 like you said. If we win this lawsuit, will we no longer have to list the cars at the house, my Internet identifiers and everything they added since 2009 if charged that year, or are we fighting for the three days to report when we leave and only that?
Do you see this splintering into different groups like Michigan lawsuit? People convicted pre Sorna, people convicted from Sorna implementation to when this case was filed , and then people convicted after this lawsuit? It seems like you would have different subclass lawsuit by each year they tweaked the Florida Registry I believe this is what Michigan is currently dealing with.
So will travel go back to 14 days like it was when Florida first implement these laws since anything less than the original posting of Sorna could be considered punishment if the judge rules in our favor.
I just don’t see how the 2018 version triggers ex post facto punishment but not any version after the original.
And of course thank you to our fabulous legal team since without you this would not be possible.
I have read this summary and I am confused. I am no lawyer so I have to ask – Does this have anything to do with the question of applying for removal from the registry which was changed from 20 years to 25 years?
I only read about 3 day travel trips and I have not lived in Florida for 15 years however, I am still listed on the vile state registry there and want to petition for removal.
Thank you for the update and for the additional info.
yeah I’m in the same boat as you. I was sentenced in 2003 and had 3 years of probation no jail time and a withheld of adjudication. I haven’t lived in Florida since 2015 and enjoy my life in Washington state as I do not appear on any online registry for the state here just of Course Florida registry. Thankful for that Withheld of Adjudication part however I was forced to register. I will post the article below but in 2020:
Prior to 2007, 943.0435(11) provided an opportunity to petition for relief after 20 years without subsequent arrest. In 2007, the State moved the finish line to 25 years and added a bunch of offenses that would render someone never able to petition for removal.
Today, a Circuit Court Judge ruled that the state can’t move the finish line. That alone, was a decision that is consistent with the same ruling judges in several other Florida Circuits have made, but what makes this one extra special is that the Judge expressly found the “2007 amendment to be punitive in nature”!”
Its my understanding that ruling is now tied up in all of this as well somehow. Sadly as I was sentenced in 2003 and did 3 years of probation I have to wait 20 years of time plus the 3 years i did on probation before I can as to get off this stupid thing so another 2 years left before I can challenge. I’m already saving up the 10k in a high yield savings account for this special day.
I’m hoping this challenge doesn’t throw out this ruling out the window. Somebody PLEASE feel free to correct me if I’m wrong here.
https://floridaactioncommittee.org/florida-cant-move-the-finish-line-on-removal/
So how do you claim sovereign immunity when many of these newer restrictions arise out of the Adam Walsh Act?