                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0131p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                       X
                                  Plaintiff-Appellant, -
 JOHN DOE,
                                                        -
                                                        -
                                                        -
                                                                          No. 06-6393
             v.
                                                        ,
                                                         >
 PHIL BREDESEN, Governor of the State of                -
                                                        -
                                                        -
 Tennessee, CHARLES M. TRAUGHBER, Chairman,

                                                        -
 Tennessee Board of Probation and Parole, MARK

                                                        -
 GWYN, Director of the Tennessee Bureau of
                                                        -
 Investigation, and RANDALL NICHOLS, District
                                                        -
 Attorney General 6th Judicial District,
                               Defendants-Appellees. -
                                                       N

                                           Filed: March 31, 2008
       Before: KEITH and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.*
                                          ______________________
                                            AMENDED ORDER
                                          ______________________
        The court having received a petition for rehearing en banc, and the petition having been
circulated not only to the original panel members but also to all other active judges of this court, and
less than a majority of the judges having favored the suggestion, the petition for rehearing has been
referred to the original panel.
       The panel has further reviewed the petition for rehearing and concludes that the issues raised
in the petition were fully considered upon the original submission and decision of the case.
Accordingly, the petition is denied.




         *
           The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.


                                                         1
No. 06-6393           Doe v. Bredesen                                                          Page 2


      DAMON J. KEITH, Circuit Judge, with whom MARTIN, DAUGHTREY, MOORE, COLE,
and CLAY, Circuit Judges, join, dissenting from the denial of the petition for rehearing en banc.
       This case presents a rare “question of exceptional importance” for which en banc review is
appropriate. Fed. R. App. P. 35(a)(2).
         The Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the
“Surveillance Act”), TENN. CODE ANN. § 40-39-301 et seq., imposes retroactively a requirement
that all convicted sex offenders not only register with the Tennessee sexual offender registry, but
also wear a relatively large device (a global positioning system, “G.P.S.”) at all times. This
“Satellite-Based Monitoring Program” allows the Tennessee Board of Probation and Parole to
monitor a sex offender’s movements.
        However, given the large size of the G.P.S. device, the Surveillance Act violates Appellant
Doe’s constitutional rights under the Ex Post Facto Clause. The box measures 6 inches by 3.25
inches by 1.75 inches. Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007). The box must be worn
outside any coat or outer garment, making it plainly visible to onlookers. Id. at 1002. In essence,
this box is a modern day “scarlet letter,” branding sex offenders with a marker of their crime for all
to see.
        I believe that the retroactive application of the Surveillance Act constitutes an Ex Post Facto
Clause violation because (1) as a catalyst for public ridicule, it is a form of shaming, humiliation,
and banishment, which are well-recognized historical forms of punishment, Smith v. Doe, 538 U.S.
84, 97-98, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Femedeer v. Haun, 227 F.3d 1244, 1250-51
(10th Cir. 2000); Cutshall v. Sundquist, 193 F.3d 466, 475 (6th Cir. 1999); E.B. v. Verniero, 119
F.3d 1077, 1099-1100 (3d Cir. 1997); (2) it promotes the traditional aims of punishment; and (3) it
is excessive in forcing Doe to broadcast his sex offender status not only to those who choose to
inquire, but also to the general public. The majority, in upholding the Surveillance Act, deliberately
turned a blind eye to the obvious effects of forcing Doe to wear such a large box on his person.
Moreover, the majority erred in its emphasis that such boxes “will only become smaller and less
cumbersome as technology progresses.” Bredesen, 507 F.3d at 1005. The question at hand was
whether the required technology under the Surveillance Act violates the Ex Post Facto Clause today,
not whether technology could conceivably develop such that it will become inconspicuous in the
future.
       Whether or not other members of this court agree with my dissent, this issue is important
enough to merit review by the full court. We must be careful, in our rush to condemn one of the
most despicable crimes in our society, not to undermine the freedom and constitutional rights that
make our nation great. I dissent.
                                               ENTERED BY ORDER OF THE COURT


                                                     /s/ Leonard Green
                                               ___________________________________
                                                             Clerk
