The McGuire decision sucks
The opinion that came out of the 11th Circuit yesterday in the McGuire case sucks.
There is no other way to put it, no other way to see it. It sucks on so many levels. The opinion itself is awful. It basically ignores everything that has happened since Smith v. Doe and relies on the same flawed reasoning as that Court’s. The registry is not punishment, so anything the legislature wants to pile on as a requirement or restriction is also, therefore not punishment. It’s as if you took a basket and wrote “not punishment” on it, and threw whatever you wanted into that bucket and that was magically also not punishment because it is in that bucket.
Throw residency restrictions into the bucket and they are not punishment. Employment restrictions are in there, also not punishment. Castration? Waterboarding? It basically means that whatever the legislature wants to add, they have a blank check to do so and the presumption is that it’s not punishment because it’s part of the registry and “the registry is not punishment”.
It sucks also because this was a decision everyone in the 11th circuit was waiting for for seven years! Earlier this month FAC sent a letter to the Court and now this! If the court were to simply reject all of McGuire’s claims, relying on opinions written decades ago, they could have done this years ago and spared everyone the anticipation. It is very, very bizarre.
I did have the opportunity to speak with the lead attorney in our Ex Post Facto Plus case and while there is no good way to view McGuire, there are some very important distinctions between Alabama and Florida. For example, Alabama’s requirements are different than Florida’s. Where Florida provides 48 hours (which makes reporting impossible in some cases), Alabama has 3 business days. Also, Alabama’s impacts are different than Florida’s. For example; in McGuire’s case, they claimed there were only 3 homeless registrants, whereas in some cities in Florida there are more than 300.
It’s difficult to draw a line determining what is punitive and what is not. As the Ohio supreme Court said in State v. Cook “There is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a `matter of degree.'” This leaves the court in a position to determine where that line is drawn. Maybe 3 business days, which ensures you have time to actually register when the office is open is not so punitive, but 48 hours, irrespective of whether its a weekend, holiday or hurricane, is not? Maybe a residency restriction that only leaves 3 people without housing isn’t so punitive, but one that leaves 300 without housing is?
Also, In the seven years since this appeal had been pending, the Alabama legislature did away with a couple of the requirements that McGuire was fighting. For those, the 11th Circuit simply said the issues were moot. In a sense it was lucky that other Justices heard those cases, because if this Court would have heard these issues, who knows how they would have decided?
I’ll now jump to the questions most of you have been asking. Will McGuire be appealed and how does this impact our “Ex Post Facto Plus” challenges?
We’ve not heard anything about a potential appeal in McGuire. Phil Telfeyan, one of the lead attorneys in the case, circulated the decision to a group of people who had been following the case yesterday afternoon, literally minutes before it was shared here, and he didn’t even have a chance to digest it at that time. We will update if any decision is made, but remember that the chance of the SCOTUS even picking up this case would be such a longshot, that we should not count on this as a Plan A to move forward.
Our Ex Post Facto Plus challenges are naturally bruised by the precedent McGuire creates, specifically with respect to the “ex post facto” part. As for the “plus”, we are still in good shape. Remember, our case in the Northern District survived a motion to dismiss. That’s a good sign. Also, our “plus” part is a right to travel and first amendment challenge, in which the burden is on the State (not the plaintiff), so at least some of our case will fall under a different standard. And finally, in the Judge’s opinion (denying FDLE’s motion to dismiss), he expressed a distaste for the purpose behind the 3 day travel notice. It would be unexpected for him to change course now.
This is a very disappointing day for everyone in the 11th circuit, especially for those in Alabama and especially for McGuire and his legal team who gave this their all. We just need to keep fighting.
I normally write comments for some sort of snarky comment which is basically my pain and anger in disguise about how shitting the registry is, but in this case I do sincerely want to say “thank you” for a very honest post about what we are all thinking about this decision. I genuinely hope this is taken up to SCOTUS and it is overturned – I’m not hopeful it will be given the current flavor of the court.
Again – Thank you.
Let’s have a re-naming contest for Ex Post Facto Plus.
I’ll go first. The 1A & Travel Challenge?
I forget what the first amendment issue was (other than the two FJI challenges where the issue is more obvious). But a win on either of these issues would benefit all registrants, present and future.
This ruling also serves as a reminder to get to know our state senators and representatives and to support our Legislative Committee volunteers however we can. Our elected officials may think that additional restrictions are constitutional, but are they still popular? Not if we educate them otherwise.
For the time being I am thinking of those citizens in the community who’ve set an example by remaining crime-free for decades and this is how the law thanks them.
Judges aged 69, 72, 79. I find that kind of interesting.
As discouraging as this is, it also highlights the changes/successes that were already made and found to be moot. So we keep on fighting. That is what we will do.
MP, you make a good point about their ages. When I went to trial on a simple possession of cp case, there was a change of judges—from one who was younger to an old man in his 70’s. My attorney was very pleased to have the younger judge assigned when we were about to go to the suppression of evidence phase because younger people typically have a better understanding of how computers work (and don’t work). But the old judge took over and what went from an almost certain case where the feds’ evidence would’ve been suppressed because of their contamination chain of custody issues quickly became a case where the older judge clearly was confused and ruled in favor of the feds. Sadly, many people in their 70s or older still believe whatever the govt tells them.
Not an ounce of empathy in all those pages. Our fight just became an even steeper uphill battle. Disheartening to say the least.
Maybe the new SCOTUS Justice and Sotomayor can persuade a couple of conservative Justices to join the Liberals in an opinion favorable to us. Absent that, we need to get real about our situation. 🙈
As long as we have a 6-3 conservative supermajority, you may as well forget about revisiting Smith v Doe. It was the conservative that voted for it.
It’s not absolutely a liberal/conservative issue. Kennedy was socially liberal and we all know what he did. Scalia was as right-wing as they get but came up with a pretty decent ruling and a sixth amendment case that favored some SOs. Still, it’s true that if I were playing roulette I would put my money on the liberal side.
Where does empathy play into law?
You shouldn’t assume that liberal justices are automatically against sex offender registries. Sotomayor had written opinions in the past that show no sympathy whatsoever for criminals who were sentenced harshly. And current reports indicate that the liberal and conservative Justices are hardly speaking to one another since Roe was overturned. And unless and until Smith is overruled, it is the official law of the land, as determined by the Supreme Court. I believe that the reason why the Court refused to take up the Does v Snyder 6th Circuit case is because they don’t want to take up the issue at all.
For the laziest among us who want the shortest of summaries, the Court basically said some legal arguments were moot points because law had changed, and the rest of the laws that didn’t change were not punishment.
This court relied so much on the 2003 Smith v Doe ruling they could’ve just copy-pasted it.
But if you want to torture yourself, read their logic on the residency restrictions not being punishment. It is mind-boggling. It seems the 11th Circuit cares more about upholding bad laws than about upholding the Constitution.
As bad as the Smith v Doe decision was, the state at issue (Alaska) did not have residency restrictions at the time of that ruling, and SCOTUS actually went to some length to distinguish Alaska’s registry scheme from anything restricting a person’s movements.
Apparently even that lame distinction might be gone now. Unbelievable.
How can I get a mailing address for the 11th District Court judges so I can add them to the Phase IV media blitz mailing list?
Bob, start here: https://www.ca11.uscourts.gov/
This is the 11th Circuit Court of Appeals website where the neanderthals than made the ruling work. They are in the Montgomery, AL.
Here is a link within that site which will give you more information on how the court works and all the locations. There are 9 district courts in the 11th Circuit: 3 in each state they cover (FL, AL, and GA)). Each state has a North, Middle, and Southern District. Each District Court location has a website that lists the judges. Good luck.
Bob, Here is the 2nd link I referred to: Sorry I omitted it from my comment:
https://www.ca11.uscourts.gov/about-court
Question: How is progress made within the 3 branches of the Federal government?
Answer: One retirement at a time.
Folks, dont forget there are other cases coming about in different courts across the US as more and more of us fight for our constitutional rights. Sooner or later, there will be a split among courts on the ex post facto issues. Any case that shows splits among lower appellate courts has a better chance at being reviewed by SCOTUS. It’s not often that SCOTUS overturns its prior rulings, but they did recently in the abortion case of Dobbs by overturning Roe.
I hope there is no appeal as a reflex action by McGuire. As FAC pointed out, the Supreme Court (SCOTUS) picking up the case is a longshot. It is also possible that SCOTUS could render a bad decision which would apply to the entire country and would be nearly impossible to undo.
SCOTUS is most prone to take a case if it 1) has constitutional implications, and 2) there is a circuit split on the issue. The 11th circuit has staked out its position. In some cases, other circuits have determined certain provisions unconstitutional.
Using analyses from this entire body of cases, the SO advocacy community could collectively develop attacks on each specific point used to justify registration. For example, doing a deep dive into the question of what constitutes a “rational” relationship to a legitimate public good might reveal a crack in that argument. Perhaps digging into legislative deliberations could show a pattern indicating punishment is the intent.
Rather than, or in addition to, playing “whack-a-mole” by fighting individual issues in different jurisdictions, we could form nation-wide working groups, ala Wiki, to develop a cohesive legal counter argument against each pillar supporting registration. Somehow, we need to gain control of the narrative. I for one would assist in such an effort with whatever time and money I could spare.
I have said it for almost 30 years now and I will say it again.. THE registry will never go away. Slavery in America never went away. Hunting Witches never went away… America just rebrands, rewashes and repeats… Prison inmates are now the new big business slave labor workforce and anything sex related is the new witches.. for 1)government will make everything and anything illegal to insure they have the slave workforce required and the media will brainwash the braindead population so they not only accept it but clamor for it.. 2) The government will make everything sexual legal and illegal at the same time so everyone is a sex offender and media will continue to demonize sex while also promoting it in everything.. funny that isnt it?
This cycle will always continue as long as there is an America and will only change names and faces until the next government replaces he current rotten one..
It’s not only registrants who are angry with this decision. Check out the numerous reader comments in the Talking Points Memo article on this case.
From the comments section quite a few mention they believe the judges were stalling since they knew the plaintiff was right. Unfortunately we live in a pos world where these judges just toyed with this man for 7 years only to tell him the law has good intentions. This just seems so shady of a court decision. It’s like they realized the registry is punishment, but instead of issuing such they weighed their decision for seven years; if they rule this Alabama Registry unconstitutional what damage would it cause versus keeping the status quo? Then sat on it as long as possible. Then said, wait what if we give a BS ruling the defendant only hope will be to appeal this decision and if on the slight chance they agree to hear the defendant might just yet die and we keep the status quo.
I just wish a media person would ask the Judges why does it take you 7 years to come to a decision? But we would never get the truth out of them. Even with this decision I hope it brings attention to the media how bad Registrants have it in the 11th. 7 years to get a decision even our waiting times are punishment.
The court seemed to intentionally give the Alabama legislature seven years to repeal the worst portions of the law so they could then upheld the slightly less bad portions of the law.
Elana, thanks for the info. I have a busy morning scheduled but I will get started on addresses this afternoon and the judges will be added to Phase IV of the media blitz project.
It is a sad state of affairs when ‘right’ and ‘left’ are given to determining justice and not ‘right’ and ‘wrong’. With my faith in God, ‘right’ is always right, and ‘wrong’ is always wrong. While the laws found in the Bible have changed from the Old Testament to the New Testament, to make adjustment to current events, the principles have stayed consistent. With man, the principles change with whoever is in power…or the weather. I hope and pray that one day Americans will wake up to the founding principles of our nation. Until they do, our society will only continue to deteriorate until we have gone beyond the point of no return. And then only the ‘second coming’ will save us.
History is written (and rewritten and rewritten and rewritten, etc.) by the Victor. Facts are irrelevant, afterall, if you tell a lie enough and others repeat said lie it eventually becomes a (frightening and high) truth. It’s been a go to tool for politicians for a very long time.
Let me get this straight……
I’ve been on the sex offender registry now for over 25 years after having never been convicted of anything. In that time, I have found it extremely difficult to maintain consistent and gainful work opportunities. Achieving and maintaining a normal career at times has felt almost impossible. This constant financial jeopardy led me to conclude years ago that I should never try to have children or a family. I used to be a regular attendee of church services but my registry status was used against me when I accidentally uncovered corruption with the leadership. I’ll never go to another church again. I’ve been self-employed now for over 20 years and the writing is on the wall. I’ll never have a normal retirement. It’s almost impossible for me to maintain savings. I will never have a pension or a 401k or anything like that. I’m doing good just keep myself fed and housed. Then there is the psychological stress of having the full faith and credit of the state government character assassinate me at every turn it can. Everyone has a smartphone in their pocket now and it never ceases to amaze me how often this issue comes in to sabotage something I’m doing. This state-sponsored character assassination campaign is pretty much part of my daily life at this point. It took several years of panic attacks and anxiety for me to realize that I have some type of PTSD now. Sometimes I am extremely angry and paranoid over things that simply aren’t real. My personal favorite is waking up at 3:00 in the morning with my mind racing with about 20 million different things flying through it at one time. So glad to know that none of this has been the punishment. It’s just a administrative process and nothing more.
How did you make the registry without a conviction?
Asking because my spouse is in the same boat, and we want to travel. Is there a list, other than national information available, where i should check for his name.
Does FAC have a committee that researches how judges voted on causes that affect our community? The Floriduh Supreme Court and the First District Court of Appeal has five judges each on the November 2022 ballot in Duval. Their voting records would surely help us to influence our families, friends, and supporters on which judges should be retained.
We do not.