Clements v Florida at SCOTUS
After seeking a waiver from having to respond, being prompted by the Court to file a response, and then needing an extension, Florida’s long overdue defense to this case was filed.
Clements filed suit claiming that Florida’s lifetime sex offense registration requirement put the individual in “custody” and subject to habeas corpus. Their petition stressed that a person is ““in custody” when subject to restrictions that “significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do.””
Florida’s defense rests on 3 arguments:
1) that the lifetime registration is a collateral consequence to being convicted of certain crimes and not part of a sentence.
2) that the proper time to file this suit had long passed.
3) that 7 out of 8 district courts ruled that being on a registry is not being in custody. The one ruling that being on a registry was being in “custody”, that state (Pennsylvania) had much stricter registration laws than Florida.
The defense punted on the topic of residency restrictions as something not to be addressed by this review.
The arguments made by the State downplay the hardships of life on the registry. The full range of requirements and frequency to go in person to a registration office are sidestepped. This is clearest with travel. The State argues they don’t approve or deny travel, but no mention is made of the need for in-person registration at the local sheriff for each trip. The State also fails to acknowledge that the burden of the registry grows every few years as new requirements keep being added.
If SCOTUS chooses to rule on Clements, defining ‘freedom of movement’ will weigh heavily on the outcome. Are people on the registry free to move about and live similarly to those not on the registry? That would be quite a debate.
I’m not sure that habeas corpus could ever get anywhere because we are not held in an incarceration facility like a jail or prison and that is what the courts are seeing.My personal view to attack this issue is the ‘inalienable rights’ and also ‘life, liberty, and the pursuit of happiness’ which we are denied liberty and the pursuit of happiness.
Inalienable means ‘unable to be taken away’ but they are taken away from us and thereby urinating on the constitution and downright refusing to abide by what it clearly says under the ‘we have to protect the public’
maxim which the constitution makes no provision for.
Correct me if I am wrong, but there is NOWHERE in the constitution that disavows the right to liberty to a felon once they have served their sentence-they are free with no restrictions and NOWHERE do I read in the constitution that there is a blanket clause that allows an exception to freedom after incarceration such as ‘we have to protect to the public’.
All too often I hear that phrase and it is used to circumvent the constitution, just like law enforcement use the phrase after shooting someone ‘I was in fear for my life’ in an attempt to circumvent any consequences of their actions.
Either our rights are ‘inalienable’ which would include freedom of our movement or every copy of the constitution needs to have that wording removed.
They cannot deem us as second-class citizens either, because their is no provision in the constitution that would allow any court to do that.
We can ‘un-citizen’ our self where we don’t pay taxes, but we also lose all American rights and this is done by our own application and free-will.
We are either Americans who enjoy all rights enjoined to us by the founding fathers of this nation, or we not Americans at all and have no rights at all.
DVC, I think you’re correct in most of what you wrote. However, courts DO recognize that a person on probation or suprvised release are considered “in-custody” for the purposes of habeas corpus. This petitioner, Mr Clements was neither incarcerated nor under a term of probation or supervised release. The courts have made post-conviction relief nearly impossible to obtain. It’s become increasingly rare for a conviction to be overturned on any grounds.
JS, you and I and all others hope he wins.
i truly believe it’s a long shot.
I would also argue against florida on 1) where they say ‘the registry is a collateral consequence and not part of the sentence.’ Whatever the judge hands down and it’s mandated requirements IS part of the sentence e.g., if someone is convicted of domestic violence and it is written in the state law as a requirement that the offender take 1 year of Anger Management classes then that IS part of the sentence because it is mandated by state law and is NOT a collateral consequence.
With florida’s kind of reasoning they could say probation or prc is not part of the sentencing but a collateral consequence.
How are Registrants “Free To Move” when the registry … AND Court sentencing… specifically Dictate, not only where Registrants “may Not live”, but where they may travel “without undue delay” ?
Also just realized, not only are registrants directly instructed where they can’t be or remain without undue delay, but they also may not travel to other countries what have similar registries… which is a lot of countries. So, they’re essentially imprisoned by the registry restrictions…
Jake
Isn’t there something in the U.S constitution about the freedom to travel (if you are not on probation)?
I do not know of any other convicted felons, even murderers who are not on probation who are banned from traveling “At will” with no restrictions or “Checking in” with authorities.
I might be wrong but if a father who is a convicted murderer wants to go to a school to have a meeting with the teacher about his childs grades, I think they are allowed since it is a school function based on a parent teacher conference. But someone with a sex offense would most likely have to do that on a phone call or zoom? So we not only have restricted acesss out of state but even have “No-no” zones in our own communities.
Courts have noted : “The Articles of Confederation’s privileges and immunities clause explicitly protected the free ingress and regress to and from any other State.” (Copied from constitution.congress.gov)
What about any of this does not scream Punitive in nature? I can understand things like an ex-felon no longer being able to own a gun and having a record for life, but how much can you throw at a person and allow them to even still feel like a citizen of this country? (Or even want to)
I was at the registry office in Hillsborough County last week. There was a guy there on Monday who was originally there the Friday beofre. He (came back) because they told him he couldn’t report his travel on Friday because it was too soon. It was longer than the 48 hours minimum you have to report beofre he was to leave on Monday. So he was basically restricted to leave. If that’s not a restraint on his movements I don’t know what is. He lost the weekends travel because he had to go back on Monday to report it. So you tell me if we’re free.
Wow!! So true. So true.
Pariah
I wish we could secretly wear a body cam when we go into register. Then force the personnel into court and show the lies by playing the hidden camera footage. Most of the time that won’t hold up in court because they didn’t give their consent, yet people have gotten cops fired while beating a suspect and filmed by the public.
The deputy who comes to my house won’t even come to our door because he does not want to be on camera (We have security cameras and I suggest everyone get them). And if they start giving you grief, remind them, they are on your property and being recorded.
I use to work in law enforcement and can lay my hand on the Bible and tell you, cops will and do lie to cover their behinds. And many of them make up fake laws that don’t exist. For example, stopping to harass a homeless person sitting on a bus stop bench and telling them it is against the law to sit on the bench if you are not going to ride the bus. (Might be selfish but not against the law)
You do realize you can record them in their element secretly without their knowledge? You don’t need video but merely audio of the interaction with the right equipment to pick up everything. The cop shop is a public building paid for by taxes which means it belongs to the people, including those doing business therein.
It’s a shame they chose not to add the residency restrictions as that is one of the major pieces that makes this law punishment and therefore puts us in custody.
Unfortunately he did not bring residency up in the initial lawsuit. He stated and “all entails of the registry” but didn’t list this as a separate dispute. And since he filled pro-se he maybe could have have a better start with legal help behind him. But we still have a shot.
I think we need to set everyone up to file pro-se all at one time (Even family members who are affected). We need to flood the court systems of this nation!!
Imagine tens of thousands of lawsuits across the nation all at one time!!
Not to dump on JJJJ, but imagine tens of thousands of court rulings that all say “denied.”
The courts can do that, you know.
Courts have the tools to deal with a flood of filings. Among those tools are delay, denial, and the precedent created when those denials are upheld.
What we need instead are proper arguments made on behalf of the best plaintiffs, proven by qualified expert witnesses. Anything short of that risks creating bad precedent for tens of thousands of others.
I share JJJJ’s wish that there was an option to simply take down registry schemes expeditiously and in one fell swoop. But they’ve already been tried.
Yeah, Jacob, I know you are right.
But there are about 1 million of us right now. There must be something we can do. Image 1 million people saying, “Hell no!” (all at one time).
@JJJJ
If there was a very expensive lawyer that would take on the registry covering all 50 states and each one of the million just gave $1 that would be One million dollars for a massive fight. If we lost the case, all we lost is a dollar. (Money wise anyway)
The has to be a magic formula some lawyer can make work.
@CherokeeJack
That’s an excellent point.
I wonder if we could sue at the federal level?
I still think, though, that a well-written petition, signed by every affected person and presented to the US Congress (and various other dignataries simultaneously – both nationally and internationally) would get some action.
But we’d have to get everyone on one list, nationally.
Jacob
That happened a few back with FAC. They had filed a case and then an individual filed the same case and FAC was worried that if that person was denied, it could mess up the FAC. I do not know what ever came of it but remember someone from FAC telling the person to please wait but they didn’t agree.
In my opinion, we need to get every single person who is forced to register in the US to sign a petition for redress of grievances and present that petition to the US Congress!
Half-measures are anathema to our fight for our liberty!
We all know the Registry has gotten out of Hand and has life changing CRIMINAL not civil Penalties. Its worse then Probation as it NEVER ends in Florida I have had the Registry effect everything from my ability to find housing to Travel (Been returned and Banned) I have lost Business deals and even had people not Rent because of my Status. I was told I couldnt even get into a Hospital to see my Niece be borned as they scan your DL and Offenders are not allowed!. I Panic everytime my License is requested. I had 1 Bar tell me after looking at My FLorida DL that I couldnt eventer!. How can anybody believe this is like having a Samsclub Or Costco Membership. I dont believe any Judge who would experience the Registry in FLorida would believe its not Punishment. Its never ever expanding and different counties use it to make up there own local rules. Its time these retroactive lifetime punishments stop! I hope Scotus does a new analyses on this as the previous is not relevent and uses false science. It has set many bad laws and precedent’s
This year I have had to give a full itinerary for my travel. When driving across country you don’t exactly know where you will stop each night and they won’t allow you to say either Louisiana or Mississippi… I’m not on parole nor probation and the requirements treat me as such. I might add that Florida is trying to exert authority outside of their jurisdiction. Once you leave the state they have no jurisdiction over you and if your itinerary is subject to change it’s not their business.