Doe v Swearingen: Federal Court Revives Lawsuit Against Florida’s Sex Offense Registry

Otober 21, 2022: Doe v. Swearingen, No. 21-10644 (11th Cir.)

Reviving a lawsuit against Florida’s sex offender registry, the U.S. Court of Appeals for the Eleventh Circuit (overseeing the federal courts in Florida, Alabama, and Georgia) held on Friday that the federal district court in the Southern District of Florida’s dismissal of the lawsuit as “untimely filed” was wrong and sent the case back to the district court for a ruling. Here’s some of the Eleventh Circuit’s opinion, followed by the full opinion in pdf format for downloading.

The Court began with a little background:

The Commissioner of the Florida Department of Law Enforcement maintains a sex-offender registry that lists identifying information about registrants. The Commissioner obtains this information directly from the registrant either when he registers, which he must do in person at least twice a year, or when any of his registration information changes, which triggers an in-person report that must take place within forty-eight hours. The plaintiffs here, whose offenses predate the registry, have been subject to this reporting structure since the registry law was enacted in 1997.

Over the past twenty-five years, however, the Florida legislature amended the registry law more than a dozen times. The information collected by the Commissioner 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 allege 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. And the Florida legislature imposed a new mandatory-minimum term of supervision for violations of the registry law. The plaintiffs sued the Commissioner of the Florida Department of Law Enforcement in his official capacity, contending that the registry law’s previously manageable burdens were rendered unconstitutional by the 2018 amendments.

The constitutionality of the registry law is not before us- we must determine whether the plaintiffs’ claims are timely. The plaintiffs sued to remedy various injuries, some caused by the 2018 amendments and some arising from other provisions that have been on the books for several years. The district court dismissed the plaintiffs’ claims, agreeing with the Commissioner 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 were required to sue within four years of the date that each provision that imposed the challenged burdens was enacted.

We disagree. Although the plaintiffs’ injuries undoubtedly originated when the challenged provisions permitted the Commissioner to first injure them, the district court failed to consider  whether the plaintiffs, who are subject to the registration requirements day after day, were continually injured by the requirements within the statutory period.

The statute of limitations that the district court relied on had a four-year limit for any claims. The time limit for filing a federal lawsuit is based on whatever the time limit is under state law for the same type of claim. The Court then analyzed how the constant requirement that the plaintiffs adhere to the harsh Florida sex offender registry was an on-going injury that rendered their lawsuit timely-filed:

Because the enforcement of an unconstitutional statute causes an injury, a person can challenge a statute enacted long ago based on a new threat of enforcement; conversely, he cannot challenge a statute enacted yesterday if there is no threat of enforcement against him today. 

The Court ended with this conclusion, which allowed the lawsuit to continue in the district court:

We believe, however, that these time-barred claims are saved under the continuing violation doctrine. The plaintiffs argue that the Commissioner’s enforcement of certain provisions continues to harm the plaintiffs’ reputations on an ongoing basis. Because the Commissioner sends officers to the plaintiffs’ neighborhoods to verify where they live on an ongoing basis, the plaintiffs contend that this enforcement sends a continuing signal to their neighbors that they are dangerous people, inflicting reputational harm. The plaintiffs further allege that the Commissioner must continue to take these actions regularly to comply with his duties under the statute.

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