11th Cir. Revives Sex Offenders' Challenge to Miami Residency Restrictions

By Casey C. Sullivan, Esq. on September 29, 2016 | Last updated on March 21, 2019

In Miami-Dade County, sex offenders who have been convicted of crimes involving victims under the age of 16 cannot live within 2,500 feet of any school, with few exceptions. Now, two sex offenders say that the restrictions were so harsh they were driven to homelessness. Miami-Dade's law so limited housing options that both offenders had nowhere left to live but a homeless encampment, they claim.

Those offenders sued, alleging that the law, adopted in 2005 and after their convictions, was so punitive that it violated the ex post facto clause of the federal and Florida constitutions. Though their claims were initially tossed out, the Eleventh Circuit revived their suit on Monday, finding that the offenders had sufficiently alleged that Miami-Dade County had violated their constitutional rights.

Pushed Into Homeless Encampments

The sex offenders, John Does both, allege that they were driven from their homes after Miami-Dade County adopted the Lauren Book Child Safety Ordinance, the law at issue in the suit. Doe #1 says that when he could no longer live at his sister's due to the restrictions, his probation officer told him, twice, to move to the homeless encampment.

He was joined there by Doe #3, who lives out of his car at the same encampment, being unable to find housing elsewhere. (Doe #2 merited little comment from the court, since his conviction came after the ordinance was adopted.)

When the Does sued, the district court dismissed their suit for failure to state a claim. The Eleventh Circuit disagreed, however, finding that Does #1 and #3 had sufficiently alleged that the ordinance violated the ex post facto clauses and was "excessive in comparison to its public safety goal."

Smith Comes In

In so ruling, the Eleventh joined the Sixth, Eighth, and Tenth Circuits in applying the framework from Smith v. Doe to ex post facto challenges to sex offender residency restrictions. In Smith, the Supreme Court examined Alaska's sex offender registration law, ruling that such laws, when "civil and nonpunitive," must be judged by "whether the statutory scheme is so punitive either in purpose or effect as to negate the state's intention to deem it civil."

The offenders will now be able to pursue their claims under the Smith framework, where the court will examine whether the residency restriction operates as a punishment or imposes excessive restraints in connection to a nonpunitive goal.

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