Clements v Florida Denied Writ
The US Supreme Court met in conference on Friday, Dec 8, to discuss a number of cases including Clements v Florida. You will recall this case requested the Court to declare that being on the registry under Florida’s SORNA was being held “in custody” under Federal Statute.
This morning the Court published that they have denied the petition.
A positive spin is that this case was not the right approach to further address the issue that the registry is punishment. Being “in custody” under a writ of habeous has an element of creative thinking, but so were the penumbras of previous cases and the Chevron deference to Government agencies until the major decisions cases and so and so on.
No area of federal or state law remains as unsettled as the existence of SORNA, SORR and Ex Post Facto. No area of law is as incongruent with constitutional principles. The fact is that SORNA is punishment; that SORR can’t be linked to improved measures of safety for children or vulnerable adults; and that these schemes are not civil but criminal in nature. Most damning of all, however, is that legislators are free to legislate new ex post facto requirements every day without consequence and without limits except when a few brave judges put some brakes on the efforts. That makes this scheme entirely un-recognizable in the rest of the country’s constitutional and legal framework. This will compel time in front of SCOTUS.
Federal Districts are starting to divide and progress is being made at some state levels so there is evidence of some progress. A different case will need to champion this effort at the US Supreme Court.
SCOTUS Justices are [moderated]. Yes, we know that everyone dislikes S.O. issues, but, GD!, it is their job to address these legal issues! 😠
Supreme court will never overturn SORNA. They are scared to death of the consequences of doing so, even knowing it is constitutionally illegal and ineffective. Anyone with a brain can see that after reviewing the data for 15 minutes.
I remember a district judge saying “I will not be the one to bring down the Registry” and have to deal with the consequences of doing so.
Someday there will be a judge close to retirement who will do the right thing.
Judge Matsch tried at the US Fed Court of CO and it was overturned by the 10th CCOA
I remember that and I also remember then Judge Gorsich dessenting with this line “We can not give the states a blank check” or something to that effect. I agree SCOTUS is going to punt on this until one of wins at the COA level on the arguement of addtions to the First SORNA upheld by Doe V Alaska. All I am asking for is that. Look at what it was initially and what it is now and rull the now expost facto.
Well, “someday” is a nonspecific theoretical point which exists only as a concept in the mind and in a future which may or may not exist.
We only have the present to live in and as such we just got screwed.
The same fear you allege holds them is the same that held slavery and segregated education in place until someone brought forth a case they could not refuse and reversed precedent.
This case would have been entirely different at the district court and appellate court level IF the plaintiff was on probationary/supervised release status because that status is considered “in custody” for the purposes of habeas proceedings in federal court. We need someone on probation/supervised release to tweak Mr. Clement’s arguments. I would have done it myself but my federal supervision terminated already.
Why am I not surprised considering how many of those in government appear to into questionable things it’s no wonder that they continue to demonize a very select few. Those most passionately working to continue this registry are the most likely to actually belong on it.
Looking at the direction the country is going it’s not going to matter soon anyway. Glad I am old and will at least not have to live through what is in store for the USA and the world in general. Dark days
I believe this is good news really. We don’t want anything but the best case possible making it to Scotus. You see what Smith V Doe has done for over two decades. It has done nothing but hurt us. We don’t need more of that.
I agree. This case was not the rock solid one we needed. If ruled against us it would set us back years. I do believe that case it out there and will force SCOTUS’ hand one day.
Imagine that you were sentenced to 15 years and part way through, the judge changes their mind and re-sentences you life on paperwork. Would that be legal? Well that is basically what has happened to many of us. And they keep getting away with it because they state it is not punishment. I doubt a single judge would last 90 days on the registry.
The US Constitution itself does not state Ex Post Facto laws only apply to criminal law. It was the USSC in 1798 who decided, incorrectly according to most constitutional lawyers, that EX Post Facto did not include Civil law. Get that overturned with a case that has nothing to do with SORNA or the registry and it would go away for all civil laws.
Yes, Calder v Bull needs another review, a more in-depth review of it to see the error of the court then.
There is nothing Civil in Nature about Floridas, Registry. Florida Civil Statutes are in TITLE VI, CIVIL PRACTICE AND PROCEDURE Ch.45-88. Florida Criminal Statutes are, TITLE XLVI CRIMES Ch.775-896. So there is 700 chapters between Florida Civil and Criminal law… this alone should overturn Florida Registry is argued right as it contradicts the Alaska Supreme Court case of 2003, Smith v. Doe, 538 U.S. 84 (2003)
Maybe the Doe v. Lee case in Tennessee that is in the 6th which includes Michigan could be the case that gets us there. https://www.courthousenews.com/wp-content/uploads/2023/12/sixth-circuit-tn-sex-offender-registry-convicts-brief.pdf There lawsuit is a strong one and being in the 6th is a plus.
Likewise Michigan has already ruled the registrant punitive however it seems to largely remain in place like it was before so maybe the 3rd time is the charm https://caselaw.findlaw.com/court/us-6th-circuit/2202349.html since the State of Michigan appealed to the Supreme Court and they declined to hear it and this is Michigan 3rd expost facto lawsuit maybe after this lost they will implore the Supreme Court for guidance.
Then we have the Pennsylvania vs Torsilieri case where I think this our best shot. Here you have a man who has a right to reputation and he argues that it’s unfair to label him a danger without due process. This case Torsilieri has the advantage since he has won all the lower court victories and it has already been remanded to the lower court where they still found it punitive. That case was heard in the middle of this year and they say the average length to give a decision is almost a year in Pennsylvania, but like the McGuire case they can take as long as they want before they issue it.
There is a lot of well fought cases in the works. And we can forget about ours as well.
I hear you on both cases. However keep in mind Florida, unless i am wrong, does no have “Right to Reputation” clause in our constitution.
I believe and I hope that it will be a bunch of smart lawyers looking at those 49 other state’s constitutions and seeing how if the supreme courts did rule on Pennsylvania right to reputation it would only be valid for Pennsylvania and not other states. Since it’s still forced speech with the other states as well.
With a smart lawyer I would argue that section 2 of Florida constitution you have the right to defend life and liberty. They say those are inalienable rights that can’t be taken away.
Or section 4 freedom of speech “ No law shall be passed to restrain or abridge the liberty of speech” I would argue that we should be able to say that we are not a sex offender, and it is compelled speech to say differently without any due process
And somehow make the linking between right to reputation to life and liberty or freedom of speech/ compelled speech.
That’s the angle I would take if Pennsylvania is successful we don’t have the right reputation per se but I’m sure there’s something in our constitution that has to be somewhat argumentative similar.
I would say the only part of FSORNA that is compelled speech is our internet identifiers and our branded Drivers license. Other than that idk of or can not think of anything else. I believe if their was a right to reputation was part of the Florida Constitution our registry scheme would be different or at least beatable. The 11th Circuits lack of vision to see the difference in the 1997 law Doe v Alaska 2003 and what we have in place now is our steel wall. Until they see that. I am afraid to say, we are stuck and should looking at TROs to stop any added legislation
Tearfuleagle
If I am not home when the compliance check is done, the officer places a bright yellow banner on my front door that says “Sex offender” task force right on it. How about that for compelled speech. I saved one of them just in case I go before a judge eventually.
Dear God what county does this?
@Lauren
I sent a photo of it about 2 years ago to F.A.C and they never got back to me on it. I see people fighting over the Halloween signs which our county doesn’t use, but they like the bright yellow flyers on the door if you are not home.
I am not on probation so do not ever have to be home. And yet for every time I am not home, the worse the embarrassment is. First the yellow flyer, next a visit to a neighbor to see when they last saw you, and after that, you are considered an absconder, EVEN if you have already registered for that time period.
Why the Hell do the courts not consider home visits the same as a probation officer coming to your home? Name ONE other person not on probation who have to have their living quarters verified 4 times a year? I am sorry but when did we become Communist Russia? And what happened to the integrity of the U.S Supreme court who uses personally feelings on their rulings instead of what is fair and just.
Clements did not argue about the visits or residency restrictions, he didnt argue his case well and the court pretty much said so much. Argued correctly it will be considered “in custody”
Cherokeejack,
Is that Brevard County?
No not brevard county.
Prefer not to say where I live though as I am already having issues, and they are getting worse.
I would say that is: 1. Tresspassing if you have a sign up. 2. The same thing as placing a sign in your yard for Halloween and is compelled speach and should not be happening.
That may be considered compelled speech using the Halloween sign precedent given they are speaking for the residents at the residence while the sign is up for all to see until it is removed.
@Eugene
How can we be sex offenders unless we are currently offending? DUI’s, murders, robbers, thieves, Car jackers and any other crimes, seem to move on with their lives once they have done their time. Even the areas that have a murderer registry, it is not made public from what I have heard (I have tried to access it with no luck) and do not think they have to register every 90 days or are banned from living in certain places once their probation/sentence is complete.
Why are we singled out like the scarlet letter carriers. It is for sure a discriminatory scheme.
@Eugene V Debs
Define “defend life and liberty”
From Cornell, liberty (https://www.law.cornell.edu/wex/liberty) is:
The term “liberty” appears in the due process clauses of both the Fifth and Fourteenth Amendments of the Constitution. As used in the Constitution, liberty means freedom from arbitrary and unreasonable restraint upon an individual. Freedom from restraint refers to more than just physical restraint, but also the freedom to act according to one’s own will. On numerous occasions the Supreme Court has sought to explain what liberty means and what it encompasses. For example:
The Supreme Court in Meyer v. Nebraska stated “[liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
In Bolling v. Sharpe, the Supreme Court stated “[liberty] is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”
In Ingraham v. Wright, the Supreme Court stated liberty includes “freedom from bodily restraint and punishment” and “a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security.”
Using those as a base, one then has to define what a life is and that is hard in this country due to all the caveats and exceptions courts have put into place over the time. There may be more case precedent for liberty definitions.
The Pennsylvania Supreme Court was very strategic and intentional in its ruling in the Torsilieri case, ensuring that it was based on a specific provision in the Pennsylvania state constitution, thereby preventing SCOTUS from reversing it since there was, at least for the Pennsylvania right to privacy, no federal issue in question. This deprived SCOTUS of jurisdiction.
What is the game plan now? What can we do to help?
Donate to the Ex Post Facto Plus cases.
Until this country realizes that fostering a culture of hatred through acts like the registry is a cancer, we will continue to spiral downward until violence consumes this nation.
Longshot here, as any one heard of a covenant before. https://www.npr.org/2021/11/17/1049052531/racial-covenants-housing-discrimination
They were using these to pass laws legally openly discriminate against people who were not white.
A Supreme Court case tested it https://supreme.justia.com/cases/federal/us/334/1/ it won, However, they were later superseded by the fair housing act however, we’re not covered by the fair housing act, but the Supreme Court case made covenants illegal. They local citizens make a promise every time a local living restrictions is passed that this land is excluded from us they’ll say yeah we can buy a house there. We can’t live there so we should have standing. Maybe we can we challenge the residency restrictions based on the Shelley v. Kraemer, 334 U.S. 1 (1948) case.
[moderator clarifies: The above cases concern racially-restrictive covenants specifically].
Coming up with new legal arguments is easy. The hard part is proving them in court. How confident are we that the state cannot produce contrary evidence?