Why Florida Keeps Out-of-State Registrants on Its Registry for Life
In Florida, leaving the state does not necessarily mean leaving its registry behind. Florida’s law reaches people who establish even a temporary residence there, and once someone has registered, moving away or being released from registration elsewhere does not necessarily mean removal from Florida’s public website. Lindsey v. Swearingen explains why – the Constitution does not require Florida to adopt another state’s decision to end registration, or to remove a former registrant’s information simply because that person has left.
Douglas Lindsey was convicted in Oklahoma in 1999 and required to register there. In 2009, an Oklahoma court terminated his registration after an individualized finding that he posed a low risk of reoffending. He moved to Florida in 2011, and the state did not tell him he had to register until 2017. When he asked the Florida Department of Law Enforcement to honor Oklahoma’s order, it refused. He returned to Oklahoma in 2020, but his photograph and offense information stayed on Florida’s website. He sued under 42 U.S.C. § 1983, raising full faith and credit, equal protection, and right-to-travel claims.
The Northern District of Florida dismissed the complaint for failure to state a claim in 2022. Full faith and credit obliges Florida to respect what the Oklahoma judgment decided – that Lindsey need not register in Oklahoma – but not to adopt Oklahoma’s policy about who registers in Florida. Once a person has registered, “the United States Constitution does not require Florida to purge or deny public access to the prior registration” merely because he has left. Lindsey v. Swearingen, 582 F. Supp. 3d 1127, 1132 (N.D. Fla. 2022). The Eleventh Circuit affirmed on the full faith and credit claim, holding that Florida “need not dispense with its preferred method” of protecting its citizens “because another jurisdiction has less restrictive requirements on sex offender registration.” Lindsey v. Comm’r of Fla. Dep’t of L. Enf’t, No. 22-10420, 2022 WL 4231823, at *3 (11th Cir. Sept. 14, 2022) (per curiam) (unpublished).
Registration is triggered by establishing a residence in Florida – even a “temporary residence,” defined extraordinarily broadly as any place a qualifying registrant stays three or more days in the aggregate during a calendar year. A short vacation or work trip may be enough. Once registered, section 943.0435(11) provides that a person “shall maintain registration with the department for the duration of his or her life” absent a full pardon or a conviction set aside. A petition is available after twenty-five arrest-free years, but not to people convicted of the many offenses the statute excludes. And as the Eleventh Circuit put it, the Act “does not provide a mechanism for removal from the Florida Registry upon domiciling outside the state.”
That stale listing does not stay in Florida. Federal law directs that the Dru Sjodin National Sex Offender Public Website “shall include relevant information for each sex offender and other person listed on a jurisdiction’s Internet site.” 34 U.S.C. § 20922(b). A Florida entry therefore surfaces in nationwide searches and background checks no matter where the person now lives, creating consequences for employment and housing far beyond the state’s borders.
Lindsey at least reached the substance; many out-of-state challenges never got that far. Florida uses a four-year limitations period for these claims, and the clock starts the day the registrant initially registers in Florida. Later events do not restart it. In McGroarty v. Swearingen (11th Cir. 2020) and Huff v. Swearingen (11th Cir. 2021), the Eleventh Circuit drew a distinction between continuing harm and continuing legal violations. Florida’s continued publication of a registrant’s information may keep causing harm, but that ongoing harm does not restart or extend the four-year limitations period.
Momeni v. Swearingen applies the same rule in state court and shows how severe it is. Momeni was convicted in Oregon, registered in Florida in 2012, returned to Oregon in 2019, and was released from Oregon’s registry in March 2020. He sued in Leon County circuit court under the Florida Constitution. In May 2023 the court dismissed with prejudice, reasoning that he “was aware or should have been aware” in 2012 that Florida registration was for life. His deadline expired in 2016 – four years before Oregon released him, and years before he had anything to complain about. The lesson is urgent: consult an attorney promptly to avoid statute-of-limitations problems.
While the online FL registration remains present, it need never be updated by the registrant. This leaves a stale, dated, never updated listing. It’s hard to imagine how this listing could possibly assist FL citizens in protecting themselves in any manner.
Nonetheless, as these courts have read the Constitution, Florida need not honor another state’s decision that someone no longer must register, nor take down a record after that person has left the state. That is a choice reflected in Florida’s statutory scheme, and unless the Legislature changes it, thousands will remain on Florida’s registry despite having been released everywhere else.
Thanks to NARSOL for providing this write-up.
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My mom who had dementia got licked in an mental hospital. I flew down (getting permission was insane too) to get her out. Got all the paperwork done, emptied her apartment and drove her car to my house. Four day stay. Now registered for life in Florida.
They simply want it to remain bloated to obtain funding. It’s like watering a dead flower in practice.
Bingo. This right here. And for the exact same reason dead registrants aren’t removed (despite registration being “for life”). I would really like one of the Florida courts mentioned above to explain the “rational relationship” of continued registration of dead and out-of-state persons to the state’s (presumed*) interest in protecting Floridians.
They have justified it as being able to give the victim, et al, time to be notified they person has passed but never have said how long that time needs to be after they passed.
They want reciprocity for guns but not for a civil clerical action. One would think the commerce clause or some similar state to state or federal arguments would prevail here. So if you’re fortunate enough to get removed from Florida’s registry, will you then need to petition to be removed from the national registry as well or is that automatic?
Ben, the “national” registry simply pulls info from all the states, so if a person is removed from that state, he/she comes off the national one too.
Not to mention, that the more people on the registry, the more federal funding they get. Critics and reports have noted that Florida’s broad registration laws (which include lifetime requirements, keeping individuals who have moved or passed away on the list, and requiring temporary visitors to register) maintain an inflated registry number, which has historically factored into federal funding formulas assessing state compliance and scale
The way to address this is to get the elected WDC officials from all states to vote on a proposed bill which would require all active registrations and only active registrations to be counted for funding purposes which would exclude all of stale registrations such as these when it come to financial implications for each state via the grant for which registration is funded under. FLA would see that as a personal attack but the principle would be set and it would also reduce by a small (very small) fraction the monies spent in places where it is purely pork spending should it come to fruition.
By the Feds allowing this to happen, they are condoning the spending as is and are encouraging other spending of this type for this matter as well as others.
If the people of this nation outside of FLA want to send this idea in to their elected officials for comment, then it would be interesting to hear back from them, if the officials commented.
So in other words Gov. DeSantis and those before him and all the congress people, politicians, and policing are defrauding taxpayers and our federal government by keeping people on the rolls who shouldn’t even be there. HMMMMMM!!
Not exactly. Out-of-state and deceased individuals are identified as such on the registry website. But we haven’t heard any elected officials express any justification for continuing to list them.
The funny thing about that is that part of federal compliance is having active warrants out on registrants with out-of-date entries. So from that, we’re apparently to presume that Florida has active warrants out on all of its dead and out-of-state registrants to ensure their status hasn’t changed. That there are not, I would think, would push Florida out of compliance with federal standards regarding their funding rules.
But of course, like every other government office at all levels, the last thing on earth that the so-called SMART office wants is to end the year at or under budget. That’s why the full compliance originally required for their grants was changed to “substantial” compliance – too many states found that full compliance would cost more than the grants that were offered.
Follow the money, I am sure that is their only motivation to maintain thousands of people with no direct impact on Florida public safety. They must get federal funding for every person counted towards the registry total.
Maybe the Ex parte Young, 209 U.S. 123 (1908), is a landmark U.S. Supreme Court decision that allows private plaintiffs to sue state officers in federal court for prospective injunctive or declaratory relief to stop an ongoing violation of federal law or the Constitution, bypassing the state’s Eleventh Amendment sovereign immunity way.
https://floridaactioncommittee.org/recording-of-oral-argument-in-ex-post-facto-plus-i/
I thought we had a cause of action since it’s an ongoing enforcement.
What ongoing violation? In FLA’s eyes, there is none but to the PFR there is who is no longer in FLA. Does it not need to be declared a violation first before it can be challenged?
Thanks for all you do to keep the forum masses educated. It is a learning experience each time.