Ex Post Facto Plus I Oral Arguments

(Weekly Update #209)

Dear Members and Advocates,

I’m going to begin this week’s update with a paraphrase of Justice William Pryor’s observation during oral argument on Does v. Swearingen (Ex Post Facto Plus I) this past week. “Was Rosa Parks too late?”

He posed this hypothetical to counsel for the FDLE when counsel argued that the plaintiffs were too late in bringing their facial challenge to the constitutionality of the sex offender registration laws in Florida. In other words, just because Rosa Parks decided to stand up against segregation decades after the laws had been on the books, was she barred from doing so because she missed her window?

Clearly Justice Pryor was equating the situation and not the populations, but the example he gave and the line of questioning from all three Justices of the 11^th Circuit Court of Appeals clearly demonstrates that they got it! If you have not already had a chance to listen to the oral arguments, you can (and should) listen to them here.

We are very pleased with how oral arguments went, but want to remind you that while we can be proud of the job plaintiff’s attorneys did on behalf of our population and cautiously optimistic at how things went, we still don’t know how the Court will rule. Until the Order comes out, we won’t know where things go from here. So what are the next steps?

We wait for an order. There is no time-frame for an answer. It can come out in weeks or, as in the case of McGuire (the Alabama case that’s also pending decision from the 11^th Circuit), it can take years. Until that happens, it’s status quo. When the order does come out, if it’s favorable the 11^th Circuit can reverse the lower court and potentially remand it back to the District Court to be heard on the merits. If that’s the case, we are back to where we were before and just took a year long detour.

The 11^th Circuit can also consider the case de novo (Latin for “from the beginning”) and arrive at its own conclusions on the merits. On the other hand, if the Plaintiffs lose and the 11^th Circuit decides that the case was properly dismissed based on the statute of limitations, Ex Post Facto I ends (yes, it can be appealed to the Supreme Court but a statute of limitations train is not the vehicle we want to drive there in). The good news is that Ex Post Facto II was already filed with a plaintiff who has absolutely no statute of limitations issues and that has already survived the Motion to Dismiss!

For the moment, let’s remain very positive and hopeful that we continue to have two horses in this race based on what we heard during oral argument. With that, we need to keep the wheels turning and forge ahead… which is an appropriate time to point out that we are very short in our goal for the 2022 Ex Post Facto Sustainer challenge (https://floridaactioncommittee.org/donations/). Please do what you can to help sustain these challenges. Not one penny of the funds collected go to FAC and not one penny go to the attorneys in this case. 100% of all funds donated are applied to litigation costs. For those who have ever been part of a multi-year legal challenge that has included a federal appeal, our 2022 fundraising goal of $25,000 barely covers that but we do what we can do.

Thank you to attorneys Val and Todd, to the plaintiffs, to everyone who has donated to kickstart and sustain this lawsuit, and to the three Justices of the 11^th Circuit who gave this case the proper consideration.

Sincerely,

The Florida Action Committee

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SOME HEADLINES FROM THIS WEEK

Recording of Oral Argument in Ex Post Facto Plus I

The recording of the oral argument that took place this past Friday before a panel of the 11th Circuit Court of Appeals in the Ex Post Facto Plus lawsuit (Does v. Swearingen) on appeal from the Southern District of Florida is now available. You can listen to the…read more

Richard Swearingen Retires from FDLE

Rick Swearingen is a name we might only be familiar with because he has been the Defendant in a number of lawsuits brought against the Florida Department of Law Enforcement (FDLE) challenging the enforcement of different aspects of the Florida Sex Offender Registry…read more

OK: Bill aims to eliminate licensing barriers, except for…

Oklahoma SB 1619 would prevent licensing agencies from using old crimes to disqualify applicants, setting a time limit of five years from the date of conviction or release from prison, whichever is later. However, boards will still be able to consider violent felonies…read more

Thank you Stephanie!

Stephanie is a hero. Stephanie is the Plaintiff in the Ex Post Facto Plus II lawsuit. Stephanie is her real name. It’s not “Jane Doe” or some other pseudonym used in this post to protect her anonymity, because she can’t. She is forced to bear the stress of proceeding…read more