Great News! Ex Post Facto II moves forward
Ex Post Facto II will move forward!!!
The below Order just came down from the Northern District of Florida. It says it’s partially granting the defendant’s motion to dismiss (which sounds like it’s bad), but that means that other parts of the motion to dismiss were denied and the case will move forward. The court has set a scheduling order, with a trial date set for January 17, 2023.
The main issue that the court will proceed forward on is the three-day travel requirement, which the Court agreed was absurd. This is also great news as the legislature is currently trying to reduce that even further to three “parts of a day” or 24 hours for vacation rentals!
Separately, the Court denied the Plaintiff’s motion to proceed anonymously, so unfortunately she will not be able to proceed under the Jane Doe pseudonym. We need to do our best to encourage and protect this brave individual who is fighting for all of us.
We will do a more comprehensive analysis of the Order short, but in the interest of time wanted to share it with you quickly.
Hot Damn!!! The judge says (in part)
“…There is no obvious rational, nonpunitive purpose for requiring an in-person
report of a three-day trip, let alone three one-day trips. The most obvious purposes
for such a requirement are punishment and discouraging sex offenders from
traveling at all.”
Judge is very smart. Same on in The Delgado case who clarified what social media is. Also with this being allowed to go forward is there a way to get an injunction against enforcing the points being allowed to proceed. The Judge uses Doe Alaska case but does fail to point out that SCOTUS refusal in Doe v Snyder and Muniz 1 which basically found the registry to ex post facto. In my opinion SCOTUS also opened the door for lack of jurisdiction by the doj to make SORNA Retroactive when they said the Executive branch lacked authority to force the vaccine mandate
The Alaska case is binding precedent. Does v Snyder is not, except in a different circuit.
Yes but my point is that you can infer that SCOTUS not taking the case that they felt there was nothing to review and the Sixth got it right. Which would and does contradict the controlling Does original case. The Supremes simply kicked the can
This does seem to be good news. Does it mean the Court is recognizing that the registry is punitive/punishment for an ex post facto challenge?
“Challenges to the new provisions are not foreclosed by decisions that did not address them.”
Not to be a naysayer but I thought the main purpose of the Ex post Facto lawsuit was the retro active application of the registry? Was that what got thrown out, if so then the rest is pretty much moot.
And the fact that they cannot remain anonymous is why many of us haven’t been the plaintiffs in these types of cases. They are using this as a scare tactic and it works. Oy Vey! 🙁
I will pray for the best and expect the worst.
CherokeeJack
Being anonymous isn’t the issue for me, but it’s the vengeance from the Florida government including FDLE if you win. I think they make it tough for people not to bring lawsuits and find anything to get a case dismissed or the decision watered down. Florida doesn’t like being a loser; yet it’s fine with being an embarrassment. Every time a weird story comes out guess where it happens? Starts with a F and ends in duh.
Brandon
In fact, to your point, there is even a book that was published called Weird Florida. I have never read it because we basically LIVE the weird Florida so why do I need to read about it.
CherokeeJack
I have that book and I laugh every time I read it. Did you know it’s illegal to molest an alligator in Florida? I would assume that’s common sense, unless you want a missing limb or face the jaws of death.
Brandon
You are on to me, that is how I got on the registry. If the gator would have just kept quiet and let me make some boots out of it , everyone would have called me Gator Jack.
What has been the experience of our Brevard petitioners with respect to proceeding with their suit non-anonymously? Do they live with their family members, and has the Brevard suit affected them at all?
Overall, is there any advice that the Brevard petitioners would give this petitioner wrt proceeding non-anonymously, pros and cons?
I’m not following… this is not the Brevard case.
What advice do Brevard petitioners have here for Ms Doe, wrt proceeding in her own name? She has a personal decision to make.
I read the order and I unfortunately do not share FAC’s enthusiasm. All of the claims were dismissed except for the 3-day temporary residence provision. Everything else, including the 48-hour deadlines for reporting internet identifiers, vehicles owned, employment addresses, telephone numbers, etc., as well as the lifetime registration requirement, were summarily upheld, again with cursory citation to Smith v. Doe. I guess rolling things back to 5 days instead of 3 would be a very small victory, marginally better than nothing, but the Court said that all registration components except the 3-day travel requirement are constitutional. That’s a 90% loss and a 10% possible future victory.
‘All claims were dismissed except for 3-day residence provision’ is not correct.
The 3-day residence provision is not even claim. It’s just a provision of the law. Other provisions also remain vulnerable to this challenge, particularly those passed since the 2005 opinion cited in the ruling. The 3-day provision was the court’s example of a provision that might not pass the rational basis test.
Those with a law background are of course free to correct me if I’m misinterpreting.
I have a friend who has residences in both Michigan and Florida, and who is also on the registry in both states. As a lifelong fisherman, I have always wanted to visit Florida, but I won’t visit my friend there because of Florida’s onerous sex offender law. It’s obvious that the state continues to make changes in the law simply as a trap to ensnare more people and expose them to more public shaming. There is no evidence that their registry law has made anyone safer, but much evidence of the harm it does to registrants and their families. It does make a lot of money though for the conmen and women who get rich lobbying for the continued persecution of people who are just trying to get on with their lives. I noticed that the plaintiff in the case had been convicted of having sex with a 16 year old. Legislators know full well that a very large percentage of teens do NOT wait until they are 18 to have sex. Many of those same legislators were sexually active before they reached 18. But politicians obviously no longer believe that lies and hypocrisy are sins in any religion.
I have a question regarding the 3 day and especially the 1day ruling. I’m a veteran and I go to the Tampa VA hospital which is in Hillsborough county I live in Lakeland in Polk county. I have been admitted to the hospital at least once a year if not more with a stay of at least 3 days. I let the detective in charge know if I’m admitted for more than 3 days. What does the change do to me reporting? Do I have to report anytime I’m admitted?
I am also a Veteran. I was admitted to the Naval Hospital here in Jacksonville for almost a month. YES I had to report to my POC at the Registry Office the Naval Hospital was a temporary residence.
I was transferred to Brooks Rehab (inpatient) also here in Jacksonville and as required, shared this location as my temporary residence. I was supposed to be there for at least 14 to 45 days. I was admitted on a Friday after hours, Monday was a holiday and Tuesday my POC at the Registry Office was notified of my change. On Thursday at 9 am, I was notified I was being discharged to home. (I am sure that my including Brooks as a temporary residence was the base line of my premature discharge). Again, my POC at the Registry Office was notified.
On Monday, I went into the Naval Hospital to see my primary care DR and he said “You are worse off now than you were when you were discharged from our hospital” and I was immediately placed inpatient in the ICU for another week or so. Yes my POC was notified of the new status of my temporary residence.
This went on from Dec 2016 until some point in 2018 when my need to be placed inpatient was no longer needed. Yes I had to call/text my POC at the Registry Office to provide them updates. Yes a few times they were “You need to come into the office to update your status” until they realized that would place my life in jeopardy and waived that foolish requirement.
Brooks Rehab and the Naval Hospital both remained on my registry as temporary housing for a long time… I think until 2020.
My only saving grace is, I have my detective who understands I am trying to follow the rules and he works with me. He also understands I have little control over when I get admitted to or discharged from a medical facility. My advice, try to find your advocate in your local Registry Office. Someone who you can text when/if things outside your control happen. Good luck.
Can someone explain why they wouldn’t let her proceed anonymously? Especially a woman who’s on the registry. They know the harassment is real and can be very costly. What would it hurt for her to be anonymous?
I completely agree, Pariah. What harm would impact respondents by allowing Jane Doe to remain anonymous. This seems tome tobe a blatant attempt to pressure her into dropping the case. Judges are asses. 😡
Once again, lawyers have failed to impart onto the judges that sex offender laws and registration laws are punishment (a fact as clear as the sky is blue). Interesting that the judge can so clearly determine that in person reporting for a three day trip are “punishment and meant to discourage sex offenders from traveling at all,” but apparently isn’t willing to deem the entire scheme of sex offender registration and notification as punitive. One wonders what causes such a dichotomous view on this issue. Professor Catherine Carpenter suggests the reason is simple “animous.”
No judge is going to opine, ‘any provision of any registry scheme is punishment no matter what.’
That’s why we see fewer constitutional challenges against the registry schemes of, say, Vermont, Massachusetts, Oregon.
Doesn’t Massachusetts have a Supreme Court Justice who believes the registry is punishment?
See court opinions and dissents that said it is, e.g., Judge Matsch, et al
rpsabq
OR, the judge is saving face and doesn’t want to be known as the judge who ended the sex registry. However, in giving us “Something” they did say parts were punishment which can be a lead in to other parts of it taken down. Having to go get a new mug shot basically every time we registry is total bull crap, oh along with all of it really.
Judges should follow the law and the constitution they took an oath to. If they follow public opinion and their own emotions they are unfit to wear a robe and apply at lost luggage at the local airport.
Brandon
Nooooooooo
Have you ever been to lost luggage? if you have you know that if you sent bad judges there, all they would do is “Judge” you and tell you that you should have paid more for better luggage. LOL
CherokeeJack
I don’t want them working at the power plant my lights would be out all the time just like theirs. Maybe they can be your security guards.
When I lived in Florida I would have to give my flight information and where I was staying out of state for over 3 days. Does the state think I’m going rogue by saying I’m leaving and I’ll really be bushes lurking? Florida really is the hanging chad and it’s proof the state has gone mad!!
I do not know. I only know that in the year 2022 things can change drastically. The Fl outlook on punishment can be found in this documentary. https://youtu.be/2h3wu2zHTB0 . It is in it’s roots to be over-punished. It can change now possibly. I was in that area constantly as a young kid. It’s just downright depressing, and I was threatened that I would be there one day the way I was acting as a kid.
I regret I was a party to the failed Doe vs Moore which basically set horrible case law. Thank you to the lawyers I hired.
I have read numerous filings for civil rights and they all labeled each allegation “cause of action 1”, “cause of action 2”, “cause of action 3” I asked the lawyers to do that and they said it was not necessary.
So it was easy for the judge to dismiss it based on the defendants claim that there was a failure to state a cause of action.
I hope this lawyer working on the specifically high lights each allegation with the words “Cause of action #”.
If they don’t, this case will be also likely be dismissed for “failure to state a cause of action”. It is a lot harder for the judge to agree with the defendant’s if the allegations are titled “Cause of action #”
The judge has also pretty much showed his hand when he failed to let the case go on anonymously. There is no harm to the state to let it proceed as a pseudonym, however there is great harm to the plaintiff. Even in Doe vs Moore the judge allowed the plaintiffs to remain as Doe. This judge is already sticking it to the plaintiff.
My hopes are not high :(.
uhhhh…. It wasn’t dismissed. It’s proceeding.
Also, the same judge ruled that the plaintiffs in the internet identifier challenge could not proceed anonymously and that was a huge win.
I’m not really sure I agree with your comment… any part of it.
I was referring to the Doe vs Moore case being dismissed not this one.
Regarding anonymity, the only reason the state fights it is to further humiliate the plaintiff, hoping they will not want to continue. This judge unnecessary supports that strategy.
And i am sorry, but how was the internet identifier case a huge win?
https://floridaactioncommittee.org/disappointing-decision-in-internet-identifier-case/
We still must register the identifiers and the FDLE can still make the list available to the public. Nothing changed at all. The only (essentially non) win was that names could not be given with the email address, which they were not providing before anyway. Before the case the FDLE was not providing names linked with the email addresses, but they were and still are providing inquires to the list of registered emails so websites like facebook can deny access, which still inhibits free speech.
The only win in the internet identifier case was for the defense in that they got to humiliate the plaintiff by outing them publicly. The registrants gained literally zero.
Wasn’t the indentifiers case the one where the Judge strictly defined what social media was and that it had to be a situation where there was direct user to user. For example this site is not direct user to user. Also just having the identifiers does not trigger reporting it’s use it what triggers. For a lot of this craziness it’s more about the lack of clarity than the rule. The definition of day for example is horrible, what to do if you need to rent a car at 5 on a Thursday night and your office doesn’t open until the following Tuesday but you returned it Monday. Idk
One individual characterized the internet identifier case as a ‘loss,’ below.
People forget how bad the internet identifier law had become. It was convoluted and opaque but practically would have required registration of every URL you visited and would have been a severe burden on internet use. It was my registration office that advised me of the injunction against the new law, instructing only to register identifiers used for direct social communication. The registration office predicted registrants would ultimately win their challenge, since the expanded law was “a joke,” and they were right. At the time I was not even familiar with the organization behind this challenge.
On the minus side, Does II will not give us any additional relief on internet identifiers unless substantial new evidence is presented. I normally shy away from predicting what courts will do, but in this case we are in the exact same court!
Another year! Another hope!! Thanks FAC!!!!!!
A layman’s more comprehensive analysis/conclusions of the Order:
Based on the claims that were dismissed, we can ascertain that strict liability does not apply to the enforcement of the registry since the judge stated, “The statute does not impose strict criminal liability.”
We can follow FDLE guidance on the three-day rule, which I have explained ad nauseam, since the judge stated, “The statute is not unconstitutionally vague,” in response to the claim that the statute’s requirements for travel-related disclosures are unconstitutionally vague.
I see both of these “defeats” as beneficial to fairness and common sense.
Still on the three-day rule, the judge thinks it will be ruled as punitive since he stated, “At the motion-to-dismiss stage, it cannot be held that the three-day temporary residence provision has “a rational connection to a nonpunitive purpose.””
Since the judge did not dismiss the ex post facto claim, but narrowed it, I think any ratcheting up of, or additional requirements after Doe v. Moore [June 6, 2005] may be seen as not having a rational connection to a nonpunitive purpose, thus punishment, thus unconstitutional for a “civil” law.
Even though many consider Doe v. Moore a disaster, it did establish a snapshot of the Floriduh registry at that time. Most of us suffer from “enhanced” requirements enacted after that date.
Although the entire Floriduh registry cannot be struck down, the judge did state, “An injunction precluding the defendant from enforcing the registry statute’s unconstitutional provisions, if indeed there are any, will solve the problem.”
So I do see this as a positive step forward, even though we have to wait another 11 months for the next phase.
Excellent analysis by JZ.
Whats FDLE guidance on the 3-day rule? I doubt my county is following it. Is there, say, a source document?
And why 11 months til the next phase? I didn’t know these timelines were predictable.
FDLE filed a motion to dismiss to our Does v Swearingen complaint in November of 2018
Starting at bottom of Page 11:
“1. The Meaning of “Day”
Plaintiffs’ first vagueness challenges alleges it is unclear whether the word “day” within §775.21(1)(n) and § 943.0435(1)(f) means a “full 24-hour day or a specific date.” (D.E. 1 at ¶ 38.)
They ask whether a hotel arrival at 11:50 p.m. on May 1 would mean that May 1 is the first day, or that the first day ends 24 hours after the arrival. (Id.) This hypothetical shows that Plaintiffs are not actually raising any question as to the meaning of the word “day,” but as to how Florida law generally computes the time in which an action must be done. That computational question is not governed by the word “day,” or by § 943.0435 at all.
In any event, a statute’s words are not vague if they can be ascertained through “judicial decisions, common laws, dictionaries, and the words themselves because they possess a common and
generally accepted meaning.” United States v. Eckhardt, 466 F.3d 938, 944 (11 th Cir. 2006) (quoting United States v. Bowker, 372 F.3d 365, 381 (6 th Cir. 2004)); United States v. Panfil, 338 F.3d 1299, 1301 (11 th Cir. 2003) (statutory terms not vague where they have “plain and ordinary meanings”).
Despite Plaintiffs’ allegation that the word “day” is vague, a “day” has a common and generally accepted meaning. “The general rule is that when the word ‘day’ is used it means calendar day which includes the entire day from midnight to midnight.” State v. Sheets, 338 N.W. 2d 886, 887 (Iowa1983). See also Burgo v. Gen. Dynamics Corp., 122 F.3d 140, 143 (2d Cir. 1997) (“A day is the period of time during which the earth makes on revolution on its axis, the average length of this interval being 24 hours.”) (citing Merriam-Webster’s Collegiate Dictionary 294 (10 th ed. 1997)); S. Tr. Ins. Co. v. First Fed. Sav. & Loan Ass’n of Summerville, 310 S.E. 2d 712, 713 (Ga. Ct. App. 1983) (when not qualified, the word “day” means calendar day “consisting of 24 hours from midnight to midnight”).
A day is an indivisible unit; the law does not recognize fractions of a day. Lapeyre v. United States, 84 U.S. 191, 198 (1872); Maxwell v. Jacksonville Loan & Imp. Co., 34 So. 255, 264 (Fla. 1903).
A court must presume the Legislature knows the plain and ordinary meaning of the words it uses in statutes. Brooks v. Anastasia Mosquito Control Dist., 148 So. 2d 64, 66 (Fla. 1963). See also United States v. Forest Hills Garden E. Condo. Ass’n, Inc., 990 F. Supp. 2d 1344, 1347 (S.D. Fla. 2014) (courts presume “the Legislature ‘said what it meant and meant what it said’”) (quoting Rine v. Imagitas, Inc., 590 F.3d 1215, 1222 (11 th Cir. 2009)).
If the Legislature wanted to couch a temporary residence in terms of 24-hour blocks and not calendar days, it would have done so—as it did in numerous other parts of the statute. For example, § 943.0435(2)(a)1, (b)3 and (4)(a) all require reporting “within 48 hours,” while
§ 943.0435(b)2 uses both hours and days (“within 48 hours,” “every 30 days”).”
Apparently, Legislator Hooper doesn’t know the plain and ordinary meaning of the words he uses in SB 1932.
Thank you, JZ. I will send this info to the Senate Criminal Justice Committee where the bill is now sitting. As a member of this committee, Hooper will be receiving the info, too.
FDLE has issued no guidance to registration offices. Nevertheless, any definition will become moot if the legislature re-defines it in law. Then a day (for purposes of residence registration) will become whatever the legislature says it is.
What’s a day
You know what, I think I am going back to work. I will work for ten minutes and tell my boss, “Hey, according to the law, a day is considered “Any part of a day, so as far as I am concerned, I gave you my day, now pay me”.
As the law changes, how is it not retroactive that folks that accepted terms like 20 year term to apply for removal, but now must wait 25 years.
When the law was written, it stated that 20 year started at date of conviction if not incarcerated. It now states 20 year starts at completion of sentence whether it be probation or prison?
Sorna had not been passed but folks must accept moving to goal post or changing the rules at halftime.
Attorney Ron Kleiner, on FAC’s Attorney Referral page, has successfully argued something similar in court— that you can’t change the goalposts on removal.
How many registrants will be in violation when the sheriff’s office doesn’t do registration on certain days and times? Can’t say, “ Your Honor the legislators keep changing the definition of a day and my sheriff’s office is just as confused as me. We get nothing from FDLE except a warrant for non-compliance.”
Florida needs a requirement that legislators do no harm to their communities, state, and are smarter than a 1st grader.
The simplest way to solve all this is the start filing injunctions against the state of Florida for defamation of character mental anguish stress and and suffering and also 542 us-93 for civil rights violation Class B action
This will get the state’s attention if all of us start filing on this because it’s the truth there is mental anguish stress and suffering going on if you can file on it when you’re injured why not file this the same way when you have been convicted of this crime it is called similar facts here also slavery was abolished in 1865 so that means we are slaves of the state while we’re on the registry so slavery was abolished that qualifies it as a federal class B action lawsuit thank you for for listening