Sweet Victory in Florida: Eleventh Circuit gives go-ahead to F.A.C. case

By Larry . . . The U.S. Court of Appeals for the Eleventh Circuit has breathed new life into the case of Does v. Richard L. Swearingen. While this is indeed good news, NARSOL cautions that we not become too giddy. The court noted that “. . . the constitutionality of the registry law is not before us— we must determine whether the plaintiffs’ claims are timely.” This means that the underlying claims must be fully adjudicated by the District Court upon remand from the Eleventh Circuit.

The plaintiffs, whose offenses predate the existence of registration in Florida, have been subject to this reporting structure since the registry law was enacted in 1997. The state moved to dismiss the complaint, contending in part that the underlying basis for the claims accrued long ago. For each claim, the state traced the alleged injury to an amendment to the registry law and measured the limitations period from that amendment’s effective date. The plaintiffs responded that they were not challenging their designation as sex offenders but the constitutionality of second-generation registration burdens and the continuing threat of imprisonment for failing to meet them. The district court dismissed the claims, agreeing with Florida that the plaintiffs’ injuries stem from one-time acts, the enactment of each provision that allegedly injures them. Therefore, under the applicable statute of limitations, they [plaintiffs] were required to sue within four years of the date that each provision that imposed the challenged burdens was enacted. This decision from the Eleventh Circuit is the result of an appeal.

The plaintiffs alleged the following facts which the court must accept as true. The plaintiffs committed qualifying offenses prior to 1997, meaning they were registered for more than twenty years prior to the 2018 amendments. John Does 1 and 7 each report in person about eight times per year to re-register and report information changes, such as those caused by travel. Neither has been arrested for violating the registry law, but they fear that the law has become so onerous that an inadvertent failure to register is unavoidable. John Doe 6 suffers from a mental disability that requires him to depend on his sister to comply with his registration requirements, including his obligation to report in person four times a year. Before his sister began helping him, John Doe 6 was arrested twice for failing to comply with requirements that he did not understand. Like the other plaintiffs, he fears that the registry law now virtually ensures his future incarceration.

The Appeals Court noted that over the past twenty-five years, the Florida legislature amended the registry law more than a dozen times. The information collected now ranges from basic identifying information like a registrant’s permanent address to details like the license tag number of his roommate’s car. Any change to this information triggers a registrant’s duty to report, and failure to comply is a third-degree felony. The plaintiffs alleged that the reporting requirement became intolerable in 2018, when Florida again amended the registry law. Registrants are now required to report any absence from their permanent residence, for any reason, that lasts more than three days.

The case was salvaged by the Continuing Violations Doctrine. According to the Court, “The continuing violation doctrine permits a plaintiff to sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period.” If a defendant’s actions violate a plaintiff’s rights on a repeated or ongoing basis, then a cause of action may be timely even if the first violation took place outside the statute of limitations, citing Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448–49 (11th Cir. 1993). The Court stated, “We believe the plaintiffs have alleged a continuing violation. The registry law requires the plaintiffs to make multiple in-person reports each year, even if nothing about their registration information changes. In addition to that requirement, each day the plaintiffs must try to determine whether an action they take—whether, for example, they wish to purchase a new car, book a weekend trip, or create a new online account—requires making an in-person report. The complaint contends that these reports are time-consuming and burdensome, and the plaintiffs allege that they have forgone certain opportunities because of the likelihood that they would have to report information to the Commissioner.”

The plaintiffs also argued that they have been injured by their very classification as sex offenders. They contend that they are being unconstitutionally punished under the Eighth Amendment because the law imposes obligations on them “until they die” without any individualized assessment of their risk of re-offense. The court stated, “We believe the counts about this alleged injury are based on nothing more than the lingering effects of the plaintiffs’ initial designation as sex offenders, which occurred over twenty years prior to this lawsuit. The plaintiffs were either provided with appropriate process before they were ‘punished’ by being placed on the list, or they were not.” This means that this specific claim is dead.

The case, however, is very much alive, and NARSOL is grateful for the work done by our affiliate, the Florida Action Committee. We look forward to reporting more on this case as it develops in the District Court.

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12 Thoughts to “Sweet Victory in Florida: Eleventh Circuit gives go-ahead to F.A.C. case”

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  1. Tim in WI

    Ok ok ok, still talking effect and not intent. Rock solid intent! “registry” “database” “property” “labor” “liberty”
    HUMAN LIBERTY>MACHINE LIBERTY
    HUMAN USE MACHINE ~ monkey follow. OR not.
    Humans are mean.

  2. Larry

    I can agree that these resent court rulings are all well and good but I put no hope in them effecting me in anyway. You can study each case and if you are not specifically named they mean nothing to the most of us. The courts always have a path to dance around and never even consider the merits of the case or argument presented. They will dismiss any appeal for what ever reason they choose or make up. You can quote any precedent you like and they will have some obscure one to contradict it or some court rule to disallow it.
    You also need a well funded organization or lawyer to take the case. Pro sey filings are worthless and a waste of time, paper and postage.
    I have 16 years of supervised release and want to get a reduction or a dismissal but can’t find an attorney that will even look at a post conviction case for a sex offender. I can get them all day if it was a murder conviction or if I have $260,000 to put up as a retainer.
    Yes I am glad that these few people are getting some relief but I don’t believe that there will ever come a day when any court will stand up and openly admit and rule that this registry is unconstitutional.
    There is a series on Netflix called Manifest that I recommend. It’s about a group of people that are placed on a registry because of something they experienced. I won’t go into details but it is a perfect example showing how oppressive and destructive a registry is.
    If they post this I would encourage you to watch it. It just posted up it’s 4th season, and the previous 3 are complete so you can see how it starts and proceeds due to irrational fear and misinformation. Just about the same as it is for us.
    They haven’t posted my last couple of comments but maybe they will let this one through.

    1. Joann D'Aprile-Lubrano

      They did, and thank you for that information on the series.
      Th lawmakers indeed just look to justify their irrational thinking by finding some bit of law that supports their warped views, even if those laws have nothing to do with the offender case directly. It’s like going through a semantics maze.
      Good luck to you sir. Keep on keeping on.

  3. Trevoe Sisk

    You mean we can submit a case?? OMG. Thank you so much 11th Circuit for you permission. Now, how many motions and how many years will take to get you read it?

    Folks, I am convinced that here in Florida we are in the midst of an effort on the part of the entire Judiciary which serves case in Florida to engage in acts of Constituional Avoidance and Judicial Minimalism along with the use of petty, but legal rulings based on the slightest technacality.

    We have a Supreme Court who outright refuses to hear any case involving a sex offender and Fedaral District and Appellant Judges who are determined to disallow any sex offender case to take root or win.

    I don’t think these judges are stupid. I actuall think they are showing above average competancy by getting away with saying dogs can talk and the other judges agree.

    1. Trevoe Sisk

      Plus we have a Governor who has a wide range of decretionary powers not found in other states and is using that power to remove and replace judges, school boards and state prosecutors.

      Please prove me wrong. All I know is we have been working hard for 10 solid years – one of the most active groups in the country and have yet to find ANY meaningful relief from the courts. We had a Federal Judge in Miami that said a policy which forces people into homelessness ISN’T punishment for christ’s sake! Another judge who dismissed one of our cases without provocation or reason, forcing a lengthy appeal.

      Something is rotten Denmark!

  4. Jim

    This is just a b/s ruling that spins it back into the court system. The us will never admit the registry is wrong. They still hold on to the Indian reservations for the same reasons. But there is a different way to make us heard.

  5. A Mistake They Made

    In todays Kangaroo courts the challenge is not trying to make a good case it is trying to get a ruling on the MERITS of the said case that posses the biggest challenge. They just love to waive your right to a argument that makes you wrongfully convicted. This goes against every fiber of our justice system. I have a very strong PCR case based on ineffective assistance of counsel it did not make it to the appeals court because my lawyer did not file it in time he said he missed the e-mail. So Now I need a PCR IAOC case to get my PCR IAOC to be in front of the court. It just reassures me that my case is very strong. How many times/ways can lawyers make a mistake before you start to wonder if it is on purpose? If the Merits of a case show injustice no technicality should be able to stop the remedy of said injustice.

  6. Jacob

    I’m surprised at the number of negative comments here about an appellate court agreeing with our side and RULING IN OUR FAVOR on our appeal that we filed with them.

    Some of us are sore winners. If there’s a negative way to spin something, you can count on NARSOL members to find a way to do so. Or perhaps some readers just misunderstood the ruling.

    1. Tim in WI

      The negative spiral reflects the nation as a whole.
      The people around have witnessed inevitable failure despite rulings ” in their favor” but without results in reality– See the state of MI. WI has stated victory in the issue in a fed district court only to be overturned by the 7th. These events breed hopelessness. The hole the people are focused on child rearing and bad guys and the use of the databas, the purveyors of the databases & DDI are behaving like fascists engaged in imperialism. Kings of Capital!

    2. Larry

      Jacob, I say this with over 12 years of experience dealing with this system and the courts. This is a positive ruling as long as you are named. The fact is that the courts are defensive of each other but their own comes first.
      This ruling will accomplish nothing as it doesn’t set precedent in any court other than it’s self. The Federal district courts will not touch any constitutional issues as they are not Articale III courts. The only court that is authorized to decide a constitutional challenge is SCOTUS. I have filed for certiorari on 5 different occasions and was denied for 5 different reasons. I even had a SCOTUS clerk help me and I received a denial for a reason that he hadn’t heard of. Not once were the merits of the arguments even mentioned.
      One case did reach SCOTUS and the record was sealed.
      So yes this ruling was positive, but it has little effect on anyone else. The better bet is the recent one in Pennsylvania, because it is on a state level where the registry is the law. The registry is not Federal law.

  7. Tim in WI

    M
    Its a mistake to presume lack of cognitive function upon our leadership. When it come to technology, most of which is derived of gov grants to institutions galore, the intermediate time line is considered. One must necessarily consider “collateral consequences.” Smith V Doe. The registry is a database machine. Mother more and nothing less. We know the idea came long before it’s codification. Codification is another term being tossed about these days ( abortion) and was also probative and in the Doh! Opinion. In was the first time human became indentured servant to machine, ones remoteness notwithstanding. (Kozminski et. al. 488 US 931) Who benefits most from electronic surveillance? Clearly America has millions of cameras & recording devices but note one has prevented an attempted crime. All stored camera captured images are also stored on electric database. Surely the device is useful to capture crimes being enacted even crimes committed by cops but still doesn’t deter much at all. Police use it to set up stings, but these tactics were being utilized long before the database. Sex offender registration was about much more than passive interdiction. it was about unfettered uses and application. Only the purveyors of the machine would benefit most. Eisenhower made his point clear but the smell of profit and power made it happen. Thus an old judge named it cruel and unusual!

  8. rpsabq

    You watch the next excuse the State will use is 11th Ammendment Immunity which bars Federal Courts from telling State officials how to comply with State Law. If you take a look at which cases have actually had any effect it is those which have been decided by that State’s Supreme Court or appeals from state Supreme Court decisions. State Courts avoid the argument completely and the The Supreme Court of Florida refuses to hear any cases involving sex offenders. Federal Courts have not been any help and it doesn’t look like this will change anytime soon. Florida’s only hope is for a case to make it to the SCOTUS which gives them an opportunity to say something like, “Sex Offender Registries are illegal everywhere” or “Sex Offender Laws in all 50 states are punishment.” Time will tell is the only constant. SCOTUS is more often willing to hear and overturn a State Supreme Court decision rather than a Federal Appeals Court decision.