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 recording below.
Once you have listened to the argument, please share your opinion in the comments below.
Our attorney did an awesome job. I have never heard an oral argument where the judges were more clearly on one side than the other. I loved that one of the judges made several hypotheticals posed at the State of Florida to show how ridiculous their arguments were. I would not be surprised if we have a strong opinion from the 11th Circuit that strengthens our case(s) below.
If initial registration was in July of 2017, and if statute of limitations were to apply for the 3-day rule, when would it run out?
TO: W
Isn’t it funny that NONE of us (As far as I know) were told by the sentencing judge, “You have “X” amount of years to challenge your registry application”. Guess they will use the old “Ignorance of the law is no excuse”? What a cop out. Sad really. No wonder so many people do years in prison for something they didn’t do, no one wants to listen, even sometimes their own attorney.
For me and many others, there simply was no registry when we were sentence so even a judge telling us that wouldn’t have help since we had already been sentenced, and the judge wouldn’t have known. THAT should have been the lawyers defense. How can we challenge something that didn’t exist at time of sentencing and was retroactively/forcibly applied.
Amen to that! Was forced into a plea bargain for a crime that did not exist and then forced into a longer life of rules and regulations for a crime that still didn’t exist. 1989, there was no such thing. Yet, the world watches and waits (literally) for you to step out of bounds just so they can hit speed dial and have you locked up. Why are we so defenseless?
Listening to these oral arguments is disturbing. Hearing justices and lawyers debating very abstract and substantively meaningless aspects of the law and the claims against it makes me believe that the justice system has lost all connection with reality. They are likened to Pharisees worrying about straining out gnats (arguing over statute of limitations, etc.) when they’re content to swallow a camel (allowing laws to exist that openly oppress fellow citizens).
The merits of the claims in the case should be obvious to all. The fact that it apparently isn’t is perhaps the greatest tragedy in all of this.
When I first heard that the claim was barred by a statute of limitations I questioned Brown v Board of Education, how could they have ever have successfully challenged laws years after their enactment. These incredible judges, I think all but one saw the issue from the very beginning. They even helped Todd steer the argument where it needed to go. One even brought of Rosa Parks being barred from her claim because the statutes had been on the books for years.
Plaintiffs are not challenging the original registration, they are challenging the prospective enforcement of the law. And from what comments and questions I heard from the judges, that is likely how I hope their ruling will be.
Out load, I found myself screaming “You get it!” during most of these judges comments!
GREAT job Todd Scher! It helped that he was blessed with a clear-thinking panel. Who would’ve expected the panel to bring up ROSA PARKS!
I would also like to thank the FDLE for sending an attorney who seemed to have difficulty overcoming the panel’s skepticism of FDLE’s arguments.
I felt like we made a strong argument and how the judges were questioning the states validity and giving multiple hypotheticals seems to work in our favor.
I’m tired of this, I want to challenge this now! Never thought that Rosa Parks and the registry had so much in common!
The continued enforcement, nullifies the statue of limitations.
I want to live like everyone else. It’s been 20 plus yrs. Time for injunctive relief.
Same. 20+ years on the Registry is too long. 😩
Part of me fears that DeSantis and the legislature, just like they bullied Disney, might seek to punish PFR’s by passing more registration burdens should courts start siding with PFR’s.
The judges were impressive and on point. And seemed to be the one’s guiding the argument the best. I am not sure I understand the whole context of the case in which this took place. In fact I don’t. The more I pay attention to this the more I will. I did not however like the last line…”They are not saying their not sex offenders.” That upset me. That was horrible phrasing and was not even a necessary comment. At some point the phrasing has to change even in court. Why is it so hard to get people involved in this movement to stop using that term?
I appreciate the hard work on this and the plaintiffs so very much.
I personally took no issue with that comment. It is certainly a true statement. Whether or not it was “necessary” probably could only be determined if one’s hands are in this case day in and day out and if they were in that room, and is regardless, a matter of opinion. A statement like that, I would think, makes the plaintiffs sound less problematic; states in a way “they aren’t asking for much.”
I may be inexperienced in these matters, but to my untrained ear, it sounded as if all 3 judges’ words were positive for our case. I especially appreciated the Rosa Parks comparison, as some of the legal jargon in the first half of the argument was making my head spin; that comparison helped me frame it much better in my mind. Much thanks to all working so hard at another shot. Do we know who the 3 judges were? Or is that intended to be unknown? How long does the court typically take to arrive at their resolution?
The panel was comprised of Chief Judge William H. Pryor Jr.(who gave the Rosa Parks example, Judge Robin S. Rosenbaum, and the man who gave the speed limit example was Judge Andrew L. Brasher
So question. Lets say we win this case (what we all want). What happens next? Do they resend the case back down to the district level since our statues of limitations claim was ruled in our favor and they had to try the case again. Or do we go back to the 2005 (or what ever year it was first introduced) ordinance since anything after that would be punishment. Or scenario 3 maybe even to what ever they kept increasing the rules to the corresponding year you were put on the registry?
The lower court never tried the case to begin with because it was dismissed based on the statute of limitations. It never got to be heard on the merits. If Plaintiffs prevail and it gets remanded it would be tried for the first time. The 11th Circuit can always make some rulings themselves (which is what they were referring to when they said it can be considered de novo), but with the way their questions were focused on the statute of limitations issue and not any of the underlying arguments in the case, my lay-person guess would be that a win would be a remand.
Thank you.
Good questions. They can punt it back to the District Court to retry the case (the easy way out) OR rule on each issue on their own (kind of like the 6th Circuit did in Does v Snyder). Based on what Judge Pryor said when Todd suggested that it should be sent back to the District Court, Pryor said that they would consider the case De Novo (without considering the lower court’s decision) makes me think this could be a situation where the Court puts on their Big-Boy pants and make the decision on their own. I could be wrong but that is the sense I get.
I’m glad you shared your thoughts because I was hesitant to share mine. I thought the opposite as far as whether they would send it back or make the important decisions on their own. My reason for thinking it will be sent back was because there was no trial and aside from the pleadings there is not much of a record for the appellate court to base their decision on.
I agree that it will be sent back to the lower court but, if I assume correctly, the Appeals Court can direct the lower court to consider previous decisions and make their own assumption about the Statute of Limitations or it can say ” you were were wrong and here is how you erred” and have the lower court completely drop the consideration limitations argument completely and try the case based on their ruling that the limitations is not a valid issue. I loved how the judges help crafted our argument!
I just wish I understood what I just listened to.. My GED diploma didn’t cover any of this. Color me confused.
Pariah
Do not feel bad. I am a college graduate, two years of that was Criminal justice. I do not understand half or sometimes more of the jargon and other malarky spoken in the courts. Maybe if they would stop trying to be fancy using Latin, and use English, we would better understand.
For example, Ex post facto. We know it generally means retroactively. Well then JUST say that for Heavens sake. When I was being sentenced, the judge, the lawyers and the prosecutor were speaking Klingon for all I knew. But when I went back a few years later on Appeal, the appeals judge spoke so plainly and politely I felt like an Angel was speaking to me. AND I WON.
I cried when I was sentenced but think I cried even harder when I won a dissolvance of the remainder of my sentence. I thought I was free, but the registry is barely less punitive than probation.
Hi guys I have a question that have no clear answer. If I do a new Tatoo do I have to wait for my re-registration to let them
Know or do I have to do it right away ?
Thanks
Joe
If you are in Florida, the law makes it pretty clear that you need to come in within a certain amount of time (48 hours?) or you can be arrested for failure to update. Any changes need to be updated in person as soon as possible per Florida Statues. If you are in another state, I do not know.
If you have kept(you should keep all of them) a copy of your last registration papers, it tells you most of that on the last few pages. At least they do where I register.
CheerokeeJack that is some good advice. SAVE ALL your previous registry documents. About 7 or 8 years ago I had a pair of Officers come to my home to arrest me for failure to re-register. I quickly shared IF they will give me just a moment I have proof I was within all my requirements per the Registry. My wife kept the door open but we did not invite the Officers in. I went straight to my filing cabinet and pulled out about 15 years worth of documents (specifically from the Sheriffs office). I asked what re-reg was I suspected of being in violation of. I pulled my copy and the Officer reviewed it and asked if he could keep that copy. My answer was quickly NO, BUT I will make you a copy for your records. As I was making the copies the second cop made some comment about he had some real work to do and left the primary Officer with us. When it was just us, the remaining Officer said there was an update to the system and a number of individuals that had complied with the re-reg requirements the system “lost” their info. The Officer took the copy I provided, thanked me for my time, apologized for any inconveniences and departed. SAVE YOUR DOCUMENTS!
Big Al
I was going to say the story (The cops not yours) is a bunch of bull about losing your files. Having said that, I bought some tires a few years ago with warranty. When I went back in, they suddenly said I am not in their system. I had brought my paperwork and they said “Oh we just updated our system. I went back for warrantly flat 5 weeks later and again said I was not in there. Again had paperwork but this time called corporate headquarters and they said if that ever happens again, call us ASAP.
So many people just toss receipts, files, claims, proof etc. I have boxes and boxes labeled with what and when they are. If I sell something or throw it away, or a warranty expires, only then do I throw something out.
But I still think they sheriff’s office is doing the “you did not register” thing on purpose”. I am also glad you did not let them take your only copy. Imagine if you did and the next day you were in jail after they shredded it.
I went today to the Hillsborough Sheriff Office and they said I only need to report the tattoos on the re-registration. They asked me to come on my registration month to add the tattoo. Just want to share this info!
It does not say that in the statute, so nobody should rely on that.
FAC 3, I think what Hillsborough told him about tattoos is consistent with statute.
I may be misreading, but there are certain things that don’t require 72 hours. It says tattoos are disclosed “at the time of registration,” no?
Tattoos, per statute, are provided ‘at registration,’ not ‘within 48 hours’ like certain things.
I think Hillsborough is right.
What should I do then? I cannot force them to see my tattoo right? I have my name on the list there where I signed. What are my options?
Thanks
Joe
I would have gone ahead and went in person and stated I had an update. If they refused to update it I would get a business card from the employee stating I did not have to add the new item until the next registration. It is 100% up to you to be proactive as this is no joke. They want us all back behind bars for life.
Thank you FAC for posting the recording! It’s encouraging to hear an attorney argue on behalf of registered persons, while the FDLE attorney repeatedly used ‘they’, as if ‘they’ are the enemy, not deserving of respect or fairness. And that’s how the FDLE views registered persons. I also loved the Rosa Parks comparison!! At the end, I got the feeling the judges wanted to make sure if they ruled in favor of the plaintiffs, they could not be viewed as ‘taking away the registry’.
It almost sounded like the judge thought we had registered one time years ago so what is the big deal. Was waiting for the lawyer to point blank ask him, did you not know these registrants have to register every 90 days and cops come to your house at all hours of the day and night just like probation officers. Failure to communicate/understand the law you are defending.
Also it seemed to me there was too much agreement on the false claims that we were not upset with any registry rules prior to 2018??? What the Helicopter?
Half the time I was not sure who was on what side. I did not like the lawyer agreed we admit we are sex offenders and are not wanting to end the registry. So confused, no wonder people give up. The only positive thing I heard was everyone seemed to somewhat being cordial.
Perhaps they will decide the case on the substantive issues, realizing that if they decide just the SOL issue in our favor and remand back to the DC then courts IN THE circuit may be flooded with litigation from registrants who thought they were barred from challenging registration requirements due to the passage of time. 🙏🙏
In a Real and Fair World we wouldn’t have the Registry and if we did it would and should be subject to the Date of the RULES when the alleged crime was committed or sentenced. How on earth does anybody believe its correct to be able to keep adding more and more Restrictions that cause a person to be Arrested! Its very much Punitiv. I was pretty much forced to take a plea on something I didn’t even do with fear of years in Prison. Even the Judge I believe had doubts as I received NO Regular Probation! No Victim Restitution! No SO Probation. No Sex! but a allegation of a Grope on the outside of a shirt. Well Floridah calls that in my case a Attempted S Battery! Go figure a Misdemeanor in most states and not even a Registerable action in Utah without 2 Convictions. Now the registry and all its rules is a life long Probation with ever changing restrictions to basically make you want to move into the Jungle. You most likely would get arrested even if you did that cause how could you register in the swamp!
Why are all these decisions made on ridiculous technical nonsense rather than the obvious conclusion that these laws are against the constitution and illegal? Any sane person can realize this if they read the constitution…
Because the case was dismissed on the technicality and that was the issue raised on appeal. If the case had been decided on the merits and Plaintiffs had appealed, or if the case was dismissed for other grounds, or if the Plaintiffs had lost on summary judgment, then the issues raised on appeal would have been different and the subject of oral argument would have been different.
The lower court specifically dismissed the case on statute of limitations (SOL) grounds without even considering the claims. Judge Williams found that the Plaintiffs claims were barred by the SOL. That dismissal was the subject of the appeal.
This is can heard on our Youtube Channel as well:
https://www.youtube.com/c/FloridaActionCommittee
Of course the judges have called out the State on their ridiculous statute of limitations claim using Rosa Parks as a perfect example. By doing so they are also making the District Judge who fell for that argument and dismissed the case look equally inept….. or corrupt? The State has a habit of purposefully bringing up these meaningless arguments, turning our cases into complex legal quagmires and rejoicing when the Judge sides with them or becomes too exasperated to deal with it, all to simply delay rulings and to force us to expend more resources, etc. It’s a shady game they’re playing and our lawyers are to be commended for fighting the good fight!
I believe the 11th circuit will rule in our favor. Question is timing. They have had the McGuire case now for almost 3 years. Therein lies the issue
Every SCOTUS Member oversees a group of appellate courts….
PER SCOTUS
For the District of Columbia Circuit – John G. Roberts, Jr., Chief Justice
For the First Circuit – Stephen Breyer, Associate Justice
(Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island)
For the Second Circuit – Sonia Sotomayor, Associate Justice
(Connecticut, New York, Vermont)
For the Third Circuit – Samuel A. Alito, Jr., Associate Justice
(Delaware, New Jersey, Pennsylvania, Virgin Islands)
For the Fourth Circuit – John G. Roberts, Jr., Chief Justice
(Maryland, North Carolina, South Carolina, West Virginia, Virginia)
For the Fifth Circuit – Samuel A. Alito, Jr., Associate Justice
(Louisiana, Mississippi, Texas)
For the Sixth Circuit – Brett M. Kavanaugh, Associate Justice
(Kentucky, Michigan, Ohio, Tennessee)
For the Seventh Circuit – Amy Coney Barrett, Associate Justice
(Illinois, Indiana, Wisconsin)
For the Eighth Circuit – Brett M. Kavanaugh, Associate Justice
(Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)
For the Ninth Circuit – Elena Kagan, Associate Justice
(Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands, Washington)
For the Tenth Circuit – Neil M. Gorsuch, Associate Justice
(Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming)
For the Eleventh Circuit – Clarence Thomas, Associate Justice
(Alabama, Florida, Georgia)
For the Federal Circuit – John G. Roberts, Jr., Chief Justice.
Not following. What does that have to do with the speed at which the circuit court makes decisions