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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I’ve been required to register since 2011.
I’ve been a supporter and hopeful that something can change and it has progressively for the worst.
These lawsuits never make it past 1st base people.
No POLITICIAN wants to fall on the sword in the name if child sexual offenders!
I mean to be totally honest if I wasn’t one I’d probably have the burn them at the stake mentality as well.
Humans like to follow the herd and there is one thing that is universal no matter what country u are in…even in prison sex offenders are at the bottom even amongst other criminals..
It’s time to wake up face the facts stop pouring funds into these lawsuits and let’s help the homeless sex offenders..
Just saying…
Above is a strange response to a description of a trial and an appellate win. If those aren’t “past first base” then I don’t know what is.
Notice that registrants are not driving with special plates, having “criminal sex offender” printed in red on their licenses, displaying special signs on Halloween, or registering every url that they visit. Anyone know why this is?
Notice that in California and Michigan, registrants no longer face restrictions on where they live or set foot. Now how did that happen?
These registry schemes took years to build up and will take years to tear down. Patience, people.
Hopefully before I die I hope.
@Me
At least when we are dead, we won’t ever have to step foot in the registry office again.
@Jacob
I can only speak for myself, but think many agree, no problem with all FAC does, it is the judges that are afraid of being soft on sex offenders. Many of these judges also apply their personal feelings, beliefs, ideas and thoughts, even though they take an oath to be un-partial.
I agree if I was a victim, I would want the person punished. But to continue to add restrictions to people who are no longer on paperwork and make their lives miserable, is basic malice. Add to that to say these requirements are not punishment, even when one of us is murdered, is just hate or at least apathy. (a lack of feeling, emotion, interest, or concern about something).
Since Alabama was brought up in the McGuire Case. I have a question then about branded DL’s and Internet Identifers. I am aware of the Internet Identifers case ruled on by Judge Hinkle a few years back. I feel he help alot by defining that it was only Social Media accounts and Social in nature. But if we are basing our Ex Post Facto Claims due to a rulling by the 11th COA from Alabama, do we have recourse on the branded DL and Internet Identifers due to Doe v Marshall. In Doe V Marshall Judge Watkins rulled the branded DL and Internet Identifiers were unconstitiutional. To my knowledge Alabama did not fight this. It would appear we have two federal courts in two different states but under the same Court of Appeals making contrary rullings. Do we have options here to revist the Identifers case?
Attorneys Dante P. Trevisani and Ray Taseff with the Florida Justice Institute have filed an injunctive and declaratory relief request for plaintiff who is being forced to acquire and display a driver license that brands him as SEXUAL PREDATOR and broadcasts the government’s message that he is a danger to the public.
The Florida statute that requires the branding of Plaintiff’s driver license is unconstitutional, both on its face and as applied to Plaintiff, because it compels Plaintiff, and all registered sexual predators, to engage in speech and communicate the government’s message, in violation of the First Amendment.
https://floridaactioncommittee.org/court-challenge-in-florida-concerning-branding-driver-license-with-sexual-predator/
For sure and I am aware of that case and it should be a win. But even the statute number is compelled speech. The second part of comment about the internet identifiers, do we have recourse in this as for v Marshall came after our Delgado case.
Doe v Marshall did not find statute number to be compelled speech. In fact, it characterized statute number as a discrete label that represented an example of a less restrictive means of achieving state’s interest.
The statute that is only on person’s forced to register along with a special hologram is.
I agree and that was not my point. But the mear presence of the statute number on the front in blue font. Is still compelled speech. It is still making me say to, my banker, the bouncher at the club, the hotel when I check in, the doctors office, etc. hey look at me I am a regisitered citizen.
Trust me those people are trained to notice stuff like that on our license do not fool yourself. Least restrictive and not compelled speech would have it not on there at all. When that police office does random plate scans, if that car is registered to you. They know who you are and do need your license to tell them that.
Wow so different from when it all started. 3 day travel rule… What a joke and you consider that a win. A lot of money for nothing. It is punishment we know it and they know it too, they just don’t care. Pre 1997 ex post facto. A better example of the roller coaster is how much the story changes. Tell me again how we are winning?
Truth
I am keeping my mouth shut, less I get kicked off of FAC. Regardless if we win or lose, I am enjoy having the friendship on here of like minded people. I do not talk too much to my parents about all this stuff as they are elderly and my Mom gets upset. I just keep telling her I am ok and I am not 12 anymore, I can fight a grizzly bear with one hand behind my back and all that stuff. Oy Vey.
I’m a big boy and this is still America so please don’t keep your mouth shut. I would absolutely love to have this conversation with you. I’ve been a member of FAC from the beginning Jack. Out of all the things that we go through every day do you really think anyone really cares about the 3 day rule? I’ve also been on the registry pretty much from the beginning. So I’m not new to this or the changes I’ve seen through out the years. Thank you FAC for posting my comment. Integrity is key.
[moderated]
Truth
Yeah I stopped leaving the state when I saw people comment they were ending up having to register in the state they traveled to, or were detained by law enforcement during a license plate reader stop.
Heck I get nervous leaving my county. The cops where I live are pretty decent but I have been detained in other Florida cities for up to 5 hours, just for “Driving while registered.
But yeah, the 3 day rule does not help me but glad it can help someone else. Even though I do not do Halloween, I am glad they went up against that because even if you did not participate, they were making you put a nasty sign on your lawn making you a target. So yeah, that was a win in my book.
But the thing I really want to say would get me banned (Even though I said it on here before and I was told I was correct) so I am not going to stir up bees again as after that, none of my posts were allowed for about 2 months.
Truth I understand the want for the regisistry to be immediatley overturned but as we found in maguire the 11th circuit can be tough. This will have to be brought down piece by piece. And imagine if we could take a extended weekend vacation with out having to register. 3 to 5 days would be a huge step in the right direction. Also remember we still have ex post facto 1 that is addressing multiple facets of the registry.
Just my opinion:
The original lawsuit got thrown out since it was past four years statue limitations. We then had to find a new plaintiff (doe II) whose charge was under the four years so the first case is pending on the outcome of the second case.
you could look at it that way or see the bigger picture. If we win Does II case (which we should) showing that the registry is punishment (traveling going from 5 to 3 days) we can then challenge all the other burdensome requirements that the legislature has enacted after your offense.
If we win this lawsuit it should open the floodgates for a lot more lawsuits since we have established
precedence that the registry is punishment. It very well could be our watershed moment of our registry battle.
I absolutely appreciate and share your frustration. However, I am hopeful that Judge Hinkle (and Judge Williams) will do the right thing and give us the win on this one point. Truly, 5 days instead of three days is an improvement.
The changing of the tide (literal or figurative) doesn’t happen with the snap of fingers. My thoughts are on the coming legislative session, and what a powerful, chilling message our potential win (and the recent wins in other states) should send to the lawmakers who seek, each and every year, to make our lives more miserable.
I know that many of you, like myself, are Believers, and every. single. day. of my life I lay the grave injustice of the registry at His feet. Our God hates sin, that is true. But our God is also just and merciful, and I know that the injustice and cruelty of these laws anger him just as much as the mistakes that placed us under them. I’m reminding myself to keep praying, keep running the race with patience, and to keep looking unto Jesus, the author and the finisher of our faith. Maybe this is the year we’ll be handed a fantastic Christmas gift.
The real win in that decision would be a judge calling it punitive and then the case in sought Florida agreeing. Remember this whole thing was built on it being constitutional because it isn’t punitive. The more courts that use that word the more likely we can build a far greater case that the whole thing is punitive. It will take time but is moving in the right direction.
I’m confused about this 3 day rule being challenged in court. I have a document from FDLE that says we PFRs don’t have to notify our local Florida sheriff office when traveling for more than 3 days out of state unless we stay in the same place for 3 or more days. So, is the court challenge against the 3 day notification OR the 3 day stay?
Please forgive me as I think in my utter desperation ive just drawn a blank. I am totally uncertain what this all means to us and im actually more tense reading it than i was before. Is there any good to this?
So all we get is going back to 5 day instead of 3 for travel over this years long tens of thousands of dollar lawsuit? Sorry if I am wrong here…
It is not over. This was a plaintiff who could not be dimissed on the 4-year statute of limitations while the original case dismissal based on that 4-year statute of limitations was being appealed. This single plaintiff was placed on the registry in 2017 and only able to challenge changes from 2018.
The plaintiffs in the original case have been on the registry more than 4 years and will be challenging other issues, now that the case won the appeal and is expected to go to trial next.
Ok membership, so what you’re saying is we are challenging the 2018 Florida version of the registry and if successful (which I hope we are) then we can challenge the older versions which are passed the 4 year statue of limitations.
So then are you going to find a plaintiff whose charge was before the registry and then argue that if the 2018 statue is punishment as well as Does I case is punishment, therefore the registry is punishment overall?
What I don’t understand is how they plan on defining what groups to place people in if it goes by the date of conviction? It feels like every other year they implement new obligations that we are forced to adhere to, the time to report these changes has shrunk on each new revision of the registry. I just don’t see how they can keep everything thing straight there’s going to be people who conviction predated certain requirements but not others key requirements and some people whos offense predated the registry period.
Every year of changes implemented to Florida Registry is punishment there is no way a honest judge can say anything else.
Eugene
I am an example of that, I have never, ever been told I could not participate in Halloween, (Once I was off probation) but I choose not to anyway, for obvious reasons. I get my 2 check ups from Sheriff’s office a year and other than the 4 registration times per year, I get left alone.
(Copied from a law school post online, A major known school I will not name so that I do not get accused of mis-quoting anyone)
The right to travel is a constitutional right that has been recognized by the Supreme Court of the United States. It is protected under the Privileges and Immunities Clause of the U.S. Constitution . The clause states that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. The Supreme Court has long recognized the right to travel from one state to another under the Privileges and Immunities Clause, as well as other constitutional provisions.
(Copied from a law school post online. Not my words but that of the law school)
** We seem to only have the right to travel if we register it, even though most of us are not on probation, so we are being denied travel unless we “Get permission from the registry gods”.
5 days versus 3 days would be absolutely huge imo. (At least for me) I currently limit where I go and how often based on this, and would be much less burdensome if it goes back to 5. Thank you FAC for this. Let’s hope the judge rules in our favor.
A Lot more the tens of thousands buddy. Why don’t we ask Fac what the total price is.