*The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0131p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_________________

J OHN D OE , Plaintiff-Appellant,

v.
P HIL B REDESEN , Governor of the State of Tennessee, C HARLES M. T RAUGHBER , Chairman, Tennessee Board of Probation and Parole, M ARK GWYN , Director of the Tennessee Bureau of Investigation, and RANDALL N ICHOLS , District Attorney General 6th Judicial District, Defendants-Appellees. X - - - -> , - - - - - - - - N No. 06-6393

Filed: March 31, 2008 Before: KEITH and GRIFFIN, Circu it Judges; VAN TATENHOVE, District Judge. *

______________________ AMENDED ORDER

______________________ The court having received a pe tition 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 favoredthe suggestion, the petition for rehearing has been referred to the original panel. The panel has further reviewed the petition for re hearing 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.

1No. 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 th e denial of the petition for rehearing en banc. This case presents a rare “question of excep tional importance” for which en banc review is appropriate. Fed. R. App. P. 35(a)(2). The Tennessee Serious and Violent Sex O ffender 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 th e 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-recogni zed 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 th e 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 majo rity, 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 Surveillan ce 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 ag ree with my dissent, th is 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 toundermine the freedom and constitutional rights that make our nation great. I dissent.
ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

___________________________________ Clerk