MIAMI (CN) — An attorney for two Florida sex offenders asked an 11th Circuit panel Tuesday to reinstate a lawsuit challenging residency restrictions in Miami-Dade County that effectively rendered them homeless.
The unnamed offenders, represented by the American Civil Liberties Union, filed a lawsuit in 2014 against Miami-Dade County, claiming an ordinance that prevented certain sex offenders from living within 2,500 feet of a school left them without anywhere to live.
“They were forced into homelessness,” Daniel Tilley with the ACLU of Florida told a three-judge panel of the Atlanta-based appeals court Tuesday.
The Lauren Book Child Safety Ordinance bans adults convicted of certain sex crimes against children under the age of 16 from living within 2,500 feet of a Miami-Dade County school. It is named after Florida State Senator Lauren Book, who was sexually abused as a child by her nanny. Florida law only requires a 1,000-foot buffer.
With Miami-Dade County’s high density and lack of affordable housing, the restrictions force sex offenders to live under bridges and along railroad tracks, according to the amended complaint. The ACLU argues this punishes the plaintiffs after their original convictions and violates the constitutional prohibition against ex post facto laws, which increase punishment for crimes already committed.
The ordinance received national attention in 2007 after the Miami New Times reported a cluster of 100 homeless registered sex offenders were living under a bridge – one of the only places in the county they could live without violating the ordinance.
Since then, the offenders have moved to various encampments around the county, which are routinely broken up by police and county health officials.
A 2018 report by the Florida Department of Law Enforcement found 447 homeless sex offenders living in Miami-Dade County.
In 2018, U.S. District Judge Paul Huck upheld the ordinance, spurring the appeal to the 11th Circuit.
“Because the ordinance’s goal is to prevent sex offenders from reoffending by limiting their access and opportunity, it is remedial, not retributive,” Huck, a Bill Clinton appointee, wrote in his ruling.
Tuesday's oral arguments, held via teleconference due to the Covid-19 pandemic, mostly focused on the ACLU’s last-minute request to amend their complaint to add an “as-applied” claim. This would direct the judge’s decision to affect only the plaintiffs in the case and not strike down the entire law, which is a more difficult hurdle in constitutional cases. Huck refused and later dismissed the case with prejudice.
Tilley said using the “as-applied” standard made sense, because “the county always had a laser-light focus on the plaintiffs.”
Miami-Dade County Assistant Attorney Michael Valdes criticized the ACLU for attempting to amend the pleadings on the last day of trial.
“This continuously becomes a moving target whereas there’s these last-minute awakenings to better arguments that could have been raised but weren’t raised,” Valdes said.
If the county knew the lawsuit would only apply to individual plaintiffs, “there’s other evidence that would have been relevant to those claims,” he said, such as mental health examinations.
U.S. Circuit Judge Kevin Newsom, a Donald Trump appointee, also expressed skepticism over the plaintiffs’ argument.
“This sounds a little jinky,” he said.
U.S. Circuit Judge Beverly Martin asked the county’s attorney if he agreed with the federal judge’s opinion that there is no evidence of inadequate housing for sex offenders.
“When I look at the evidence and Doe 5, it seemed to me that he was able to live with his family but not for the ordinance,” the Barack Obama appointee said. “The finding of fact was not right, was it?”
“There is no obligation that the plaintiffs have to be able to reside with the family member,” responded Valdes. “There was evidence that they had found compliant housing in the past ... and for a variety of reasons those options fell through.”
“The homelessness question isn’t about whether they can live at that house or that location, but whether they can live in any location,” he added before Martin interrupted him.
“They were not living in any location,” she said.
Martin also asked if the individual plaintiffs could come back to federal court at a later date with an as-applied challenge.
“There comes a time when there has to be a finality in litigation,” Valdes answered.
Newsom and Martin were joined on the panel by Senior U.S. District Judge William Keith Watkins, a George W. Bush appointee sitting by designation from the Middle District of Alabama.
The judges did not indicate when they will reach a decision in the case.
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