John Doe 6 v. Miami-Dade County, 974 F.3d 1333

Miami-Dade County Ordinance No. 05-206 (2005, amended 2010) bars certain sex offenders (convictions for offenses against victims 15 or younger) from residing within 2,500 feet of a school and applies retroactively, with limited grandfathering and municipal-preemption provisions.
Plaintiffs John Doe #5 and John Doe #6 are pre-2005 convicted sex offenders who became homeless and allege the Ordinance effectively prevents them from obtaining housing; they sued claiming ex post facto violations under federal and Florida constitutions.
The operative complaint asserted a facial challenge seeking injunctive relief against enforcement of the Ordinance as to pre-enactment offenders; the Does consistently described their challenge as facial through pretrial and trial.
Following a five-day bench trial largely focused on factual testimony about individual hardships, the Does moved on the last trial day under Fed. R. Civ. P. 15(b) to amend/conform pleadings to add an as-applied ex post facto claim; the County objected.
The District Court denied the Rule 15(b) motion, found the Ordinance constitutional on the facial ex post facto claim (no punitive intent and effects not so excessive as to be punitive), and entered judgment for the County; Does appealed the denial of Rule 15(b).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 15(b) permits amending at close of trial to add an as-applied ex post facto claim (implied consent)	Trial evidence about individual hardships and lack of objection by County implied consent to try as-applied claim	County lacked notice; parties repeatedly disavowed as-applied theory; thus no implied consent	Affirmed denial: no implied consent; County had inadequate notice of as-applied claim
Whether the facial/as-applied distinction meant amendment was unnecessary (AFSCME line)	AFSCME permits obtaining as-applied relief without formal amendment where remedy scope shifts	County relied on Does’ repeated statements that the challenge was only facial; changing at close of trial prejudices defense	Court treated AFSCME point as waived on appeal and in any event held notice and prejudice required under Rule 15(b) were not satisfied
Whether the Ordinance is facially invalid under the Ex Post Facto Clause	Ordinance is punishment in purpose or effect; retroactive residency ban imposes criminal punishment	County framed it as civil, regulatory, rationally related to child safety; many affected offenders found housing	District Court’s merits ruling affirmed: Ordinance not enacted with punitive intent and effects not so excessive as to transform it into punishment

Citizens United v. FEC, 558 U.S. 310 (2010) (facial vs. as‑applied distinction concerns remedy breadth, not strict pleading categories)
Am. Fed. of State, County & Mun. Emps. Council 79 v. Scott, 717 F.3d 851 (11th Cir. 2013) (recognizes fluidity between facial and as‑applied relief; context of summary judgment)
Smith v. Doe, 538 U.S. 84 (2003) (tests for ex post facto violations: punitive purpose or punitive effect)
Jimenez v. Tuna Vessel Granada, 652 F.2d 415 (5th Cir. 1981) (trial of unpled issues by implied consent requires satisfying notice demands of procedural due process)
Cioffe v. Morris, 676 F.2d 539 (11th Cir. 1982) (no implied consent if defendant would be prejudiced by unpled issue)
Int’l Harvester Credit Corp. v. E. Coast Truck, 547 F.2d 888 (5th Cir. 1977) (implied amendment not permitted where it results in substantial prejudice)