Legal Update: Doe v. Swearingen II – New Complaint filed in Ex Post Facto Plus Case!
As promised, there is good news to report this week.
To resolve the Statute of Limitations issue that caused Does v. Swearingen to be dismissed, Doe v. Swearingen II was filed today with a plaintiff who has no Statute of Limitation Issue.
The Ex Post Facto Plus Challenge moves forward!
The new complaint was filed in the Northern District of Florida (where the new Doe resides) and assigned to Judge Robert Hinkle (who presided over the Internet Identifier Challenge that was successful). It was assigned case number 4:21-cv-00085
A copy of the Complaint can be accessed at the link below and as we always try to do, we will keep you continuously updated on how it progresses.
Thanks to the attorneys for getting this filed so quickly and thanks to all those who contribute to our legal fund, without whose continued support this would not be possible.
As I read through the “Parties” section of the suit, something again occurred to me regarding “scars” we must report (FYI, I’m not in FL, so bear with me). Isn’t that unconstitutionally vague? Which scars do they want, all of them? They want the scars from where my wisdom teeth were removed? They want my vasectomy scars? What about my cataract surgery scars? Achilles-tendon repair scar? Hernia? What if I had cosmetic surgery (facelift, boob job, tummy tuck)? As you can see, the list goes on and on “ad ridiculum,” as I like to say. (BTW, isn’t one’s belly button technically a scar?) In my state, they also want “marks,” which raises the question of whether that includes moles, pimples, liver spots, 1st-degree burns, skin tags, etc. And if it does, do I then also need to report when they are removed or healed?
Without the a person of average intelligence being able to determine which items meet the criteria and which do not, isn’t it unconstitutionally vague?
Visible scars.
FL statute does not require reporting of “marks.”
Again, really no other group of people who are “Done” with their sentences, have to give this much private and personal information. The majority of which is available to the public on a website anyone can access.
Why does my neighbor need to know I might have a 7 inch scar on my left butt cheek? They do stuff like this to their population in Soviet Russia.
So I cut my finger badly resulting in a ‘scar’…Really, I must report it?!?!?….WELL FCK FLORI-DUH, then!
YOU ARE OUT OF YOUR MIND!
You got to be kidding me! No wonder why cops are being shot all the time….goes to show!
I think we’re going overboard and irrational here.
We know of nobody who was violated because they cut their finger and got a scar. Identify one such case and then we can debate it in our forum, but until then, let’s get back to reality please.
Secondly, the cops are enforcing the laws, not passing them. Yes, there are bad cops and there are sheriffs who actively seek out petty and unknowing violations just to round up a bunch of FTRs for free publicity, but that’s not a justification for shooting – nothing is.
In the present climate and given the events of last week where two FBI agents were killed trying to serve a warrant, I think we need to be more conscious of our comments and rational with our arguments and positions.
FAC: My point in the original post was to highlight another possible weakness in what is expected of RCs. Unless the State can delineate what and which types of “visible” scars are required, it’s a possible trap for a RC. Has it happened? Probably not. Could it? Absolutely. The State only expects common sense application when it prevents further work on its part. When it’s to the State’s advantage (i.e. busting a RC), common-sense application goes out the window.
I still maintain one could argue vagueness on what a “visible scar” is. Aside from surgical procedures conducted via nose, mouth or rectum, every scar is “visible.”
Your argument is “spot” on. Its much like what is a day? from 12:00am to 11:59pm? A business “day”? How about within 48 hours? Does that include weekends or holidays? What does within mean? To answer your question you must report ALL scars including surgical, visible or not or face a 3rd degree felony.
FAC…Not going ‘overboard’ but stating a potential real-life situation….
As was said in an earlier post, We shall be EXTRA vigilant now, due to passing of 2 Distinguished FBI Agents who were doing their jobs in their line of duty,,,,,
‘WE’ all could really get the short end of the stick….All I was pointing out was a real life situation that may occur for those stuck in Flori-DUH!
Jacob: so do you report your belly button? I checked; it is indeed a scar. Besides, every scar I mentioned is “visible.” One would simply need to check my gums, my scrotum, my eyes, etc., to see them. Unless they define “visible,” the question remains, “visible in what situation or attire?” I may have a zipper scar from heart surgery but it’s not “visible” if I have a shirt on. Achilles repair isn’t “visible” if I have socks on. An appendectomy isn’t “visible” unless rather unclothed. And yet they are all readily “visible” upon one’s body.
You’re suggesting that a registrant could be at risk for failure to register their belly button. That’s hard to take seriously. The registry has bigger problems than that.
You still missed my point but that’s fine. I do think you trust LE and the State to act honorably more than I do.
AJ
I thought of a way to get out of my charges. I am going to get a sex change. The reasoning? They arrested a man. If I become a woman, I can say “You got the wrong person” LOL
All kidding aside, all this is to set us up for failure.
Great news and great to hear about the Legal Fund donations helping with the progress!
You want to help rso you need to look at how many rso got arrested in brevard yesterday it’s like it’s open season on us here.Its ridiculous my family and I are going to move because if you’re a rso you will be arrested for something sooner or later it’s really bad here in brevard my charge is 35 years old was told I could move then after a year and a half was told it was 3 feet to close to a park then made to move then got violated because I didn’t get to change my address on my DL in time due to having to move a family of 6 and no money for it now I’m on House arrest after never being In trouble since 91 this is getting out of hand and fac is supposed to be help the only help I see is info on other states this is ashame.
Tired
So sorry my friend. This is their plan. They hate that ANY of us was free and are not in prison for life. I believe that was the registry plan all along, a path to get us all new charges. I have come close so many times I stopped counting.
I pray everytime I go in to register because every time, there is either a new person doing the registry or some new rule. The latest is, we all have to stand out in the cold in a line in front of a big sign that states “Line forms here for offender registration”.
So before we just looked like a citizen going inside to do police business, now everyone who passes us in a busy area think right away we are “scum bags”. To make matters worse, some of the registry violations for a “NON punishment requirement”, can land us more prison time than our original sentences.
I’m concerned that IF we EVER WIN this case, it will be narrowly tailored to the SOLE plaintiff (Jane Doe) and only reverse the last four years of HER retro-active punishments.
Even on the off chance that happens it will be great precedent for everyone who comes next.
Forgive me if I’ve spoken “out of school,” but the language of the complaint’s “Request For Relief” gives the court a choice of declaring the statute unconstitutional and/or unconstitutional as applied only to Jane Doe.
“WHEREFORE, Jane Doe respectfully requests that the Court:
Declare Fla. Stat. § 943.0435, Fla. Stat. (2020) unconstitutional, facially and/or as applied to Jane Doe.”
From my observations, the courts narrowly tailor relief for as few people as possible, usually just the plaintiffs. In this case, just for Jane Doe and not for any of the other 30,000+ required to register.
In no way am I impugning the time, effort, and cost of this litigation nor all the good people involved. I hope I am wrong, but if I’m not, a loss of this magnitude would be totally devastating.
JZ, all these cases are brought facially and as applied to the named plaintiff. If you read the last one it read precisely the same way.
If you’re talking about ex post facto registration, somewhere between 1,400 and 2,000 registrants were unlucky enough to feel what truly “being stripped of your Constitutional rights guaranteed by the United States of America” felt like, according to my attorney I am currently working with.
Edward
I believe it was a lot more than the number you are stating. They pretty much retroactively applied this to not only those who served their sentences before the registry, but also those who who were sentenced before the registry.
If a man/woman was arrested for a sex offense in 1980 and released in 1998 (a year after the registry was implemented) they gots to register up. My incident took place in 1991. I have had to register since 1997 for life.
Not only that they keep changing and adding new crap (Requirments) at every opportunity they get. They changed me from 2 times a year registration to 4 times a year. Recently the clerk at the sheriffs office said they were told the Florida legislature was looking into having some offenders register monthly. That would be a nightmare. Sounds more and more like probation.
What exactly happened to the first case? Is there a short and accurate answer and is that case completely dismissed? Thanks
This was explained in an earlier weekly update and on this month’s member call. Please reference one of these for an explanation. If you are not sure how to access a member call, please contact membership by emailing membership@floridaactioncommittee.org.
Plaintiffs became time-barred as a result of a new ruling in the 11th Circuit. So court had to dismiss but agreed we could file a new action. So we did, with new plaintiff who is not time-barred.
It will only be persuasive precedent not biding precedent so other courts don’t have to follow it.
JZ:
You bring up a good point. I read through the complaint and can’t see where they requested class-action status. They can request class status in a subsequent motion. This is not “devastating” if they don’t. It only means a few more years until non-parties get relief (i.e., Does v Snyder). The issue of constitutionality was fully litigated in Does I so doesn’t have to be relitigated in Does II. What’s missing in Does II is a request for monetary compensation. They couldn’t request monetary compensation in Does I because the unconstitutionality of these laws wasn’t “settled”. The can request monetary compensation in Does II because the unconstitutionality issue is now settled law. They won’t seek monetary compensation because the ACLU doesn’t usually sue for monetary compensation.
This is a huge problem. Registrants aren’t getting attorneys who seek monetary compensation. If registrants started winning multi-million dollar suits, they would stop passing these dumb laws. Take the current bill for example seeking to strip parents of custody in divorce proceedings. It is patently unconstitutional to say that a child is safe to live with a registrant who’s custody is not being contested while saying that it is unsafe for a child to live with a parent who is contesting custody. Essentially, Florida is basing the child’s safety on the issue of whether custody is contested or not. This doesn’t form a rational basis to determine safety and is unconstitutional in any sense. Let’s say this bill passes, registrants contest the law and win. They overturn the law and say we “won”. They won on the issue of custody but Florida will pass a different law that they have to contest. But if they asked for monetary compensation and this law affected 1,000 registrants who win $50,000 each, they will win $50,000,000 in monetary compensation. This will create bad press for Florida so they will think before passing future legislation that affects registrants. This is why I keep pushing monetary compensation in these lawsuits, not to get registrants money but to discourage state legislatures from passing these laws in the first place.
The reason that attorneys are not requesting monetary compensation is because registrants keep starting lawsuits that are poorly planned and inadequately funded. Think of the cost of an attorney. A decent attorney can be had for $400 per hour. Registrants raise $20,000 for a lawsuit. That is only enough to pay the attorney for 50 hours worth of work. For an attorney to maintain an office and to have a secretary, paralegal, etc., his break even point is about $150 per hour of money actually paid in. So after spending 133 hours on the case, the attorney has to start to consider cutting his losses.
Registrants need a minimum of $100,000 to fully litigate a constitutional issue. Until they are willing to pay that much to properly litigate these cases, they will keep losing 80% of these cases and receiving 1/2 “victories” in the other 20% or relying on the ACLU which isn’t going to give Florida the economic incentive to stop passing these laws.
Also, it takes years of trial preparation to properly prepare an issue for trial. Registrants are not willing to donate $100,000 prior to a lawsuit being filed and giving attorneys the time they need to prepare for trial. Getting back in court quickly makes registrants feel good but is not good longterm trial strategy.
Does attorneys Val Jonas and Todd Scher are doing an amazing job.
I would not change anything they are doing, nor am I qualified to advise them to do so.
We are fortunate that we did not need to raise anywhere near $100,000 to bring this motion and sustain it.
When this case started It was about pre-1997… seems so different now. I was called by the Florida action committee to possibly be a part of the original case. For what ever reason I was not picked. But I made sure to donate. What I would like to know is where do pre1997 people stand? There was not a registry when I got arrested. Was this not one of the main issues when this started? Feel kinda misled from the original phone calls I received. Did we just go through all these years/money just to help one person? So discouraging what this has become and what it is not any longer.
A win will benefit ALL on the registry.
The change was only because of a STANDING OF THE NAMED PLAINTIFFS issue. It changes nothing about the case.
Too many people have such as misguided and misinformed idea of what this filing is about. I wish more people would have tuned into our monthly member call this past week to learn first hand, rather than perpetuate misinformation in this forum. THIS IS NOT (N-O-T) TO HELP JUST ONE PERSON. The case is FACIAL and as applied and the only reason why someone recently added was named was because there is no question she will not be barred by the statute of limitations.
How foolish it would be for us not to give the court the option of an as-applied ruling.
“Too many people have such as misguided and misinformed idea of what this filing is about. I wish more people would have tuned into our monthly member call this past week to learn first hand, rather than perpetuate misinformation in this forum.”
Sorry I missed the call as I was attending to a family emergency. I didn’t realize expressing my concern would have me vilified as “perpetuating misinformation.”
This might go in the other lawsuit info.. but trial date was pushed back. https://www.pacermonitor.com/public/case/38167792/doe_v_SWEARINGEN
Good News – pretrial date set by 05/22/2023
https://www.pacermonitor.com/public/case/38167792/doe_v_SWEARINGEN