« Has the First Circuit blessed disregarding loss in some white-collar sentencings? | Main | Upcoming Sandusky sentencing generates little suspense, but lots of stories »

October 6, 2012

New California sex offender lawsuit challenges local restrictions on access to public parks and beaches

As reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities.  Here are the details of this distinct lawsuit:

A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.

The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.

The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.

Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....

The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.

October 6, 2012 at 12:32 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017c325c2bc7970b

Listed below are links to weblogs that reference New California sex offender lawsuit challenges local restrictions on access to public parks and beaches:

Comments

Finally! Actually, I was wondering what was taking this long since I was the FIRST person to publicly predict this litigation in front of the Orange County Board of Supervisors. While the suit isn't specifically against the county, the cities that have come up with their own bans were predicated by the county ban.

Here is the link to the news report on the board meeting where I was present last year in March, 2011:

http://totalbuzz.ocregister.com/2011/03/21/law-would-ban-sex-offenders-from-county-parks/50283/

Posted by: Eric Knight | Oct 6, 2012 2:51:45 PM

The spirit of Thomas Swift lives on in the ♥s of city legislators .

Posted by: Anon. #3.14159 | Oct 7, 2012 12:01:40 PM

If sex offenders could unite, they'd have a field day of lawsuits across the country and against the country for oppressive, suppressive and Draconian legislation foisted upon them and their families. America must choose either to
build registries for every type of criminal offense alike, or to abolish the Sex Offender Registry...Or, void the promise of Equality.

Posted by: Brian B | Oct 8, 2012 7:45:29 AM

Thank you to Janice Bellucci ESQ. and all parties that is trying to enforce our constitution, come to Florida when you guys get done in CA.

Posted by: Curt | Oct 8, 2012 9:13:30 AM

Brain B --

"Or, void the promise of Equality."

No one promised that all crimes would be treated equally, nor is it even sane to think that such a promise ought to be made.

The punishment for manslaughter is going to be different from the punishment for burglary which is going to be different from the punishment for embezzling $1000 from your employer. Sometimes the jail term imposed will be followed by post-jail requirements or restrictions, and sometimes it won't. Sex offender registries are one form of post-jail requirement and, to my knowledge, not a single court has found them to be unconstitutional per se, much less to be unconstitutional because non-sex offenders are not required to have their own registries.

If you could point to such a case, I'll be all ears.

Posted by: Bill Otis | Oct 8, 2012 9:21:50 AM

Bill:

Your argument fails because of the SC decisionss, SO registries are not punishment.

Posted by: albeed | Oct 8, 2012 9:56:23 AM

The punishment for manslaughter is going to be different from the punishment for burglary which is going to be different from the punishment for embezzling $1000 from your employer. Sometimes the jail term imposed will be followed by post-jail requirements or restrictions, and sometimes it won't. (emphasis added)

I think you've unwittingly revealed a serious defect in the pro-registry arguments by classifying it as "punishment." Proponents have got around ex post facto laws by arguing otherwise, take for example future Chief Justice Roberts in oral arguments in Smith v. Doe:

The question is whether the burdens that the law imposes constitute punishment.

If it's not punishment, then it's perfectly valid to apply it to people who were convicted prior to the effective date.

This is the view that prevailed in the majority opinion as well:

If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ”

So I think it's invalid, as a general principle, to defend sex offender laws as just another sort of punishment. Deep down, I think most people have known this "it's not a punishment, really!" argument presented in court has been a bit of a farce--the words of proponents themselves tend to betray them.

Posted by: dsfan | Oct 8, 2012 9:58:24 AM

dsfan --

It's either one of two things. Either the requirement to register is a punishment or it's not.

If it is, then it's, as I said, no different from other kinds of post-jail requirements or prohibitions, which are routinely imposed.

If it's not, then a post-offense registration requirement is not forbidden under the ex post facto clause. If it is to be knocked out, it must be under some other provision of the Constitution. If there is a case designating such a provision and applying it, I'm not aware of it.

Posted by: Bill Otis | Oct 8, 2012 11:47:42 AM

If it is, then it's, as I said, no different from other kinds of post-jail requirements or prohibitions, which are routinely imposed.

If it's a punishment, as I would argue it surely is in both intent and effect, regardless of what advocates may claim in court, then it needs to be imposed at sentencing, or as a condition of release on parole. It is substantially different to impose a "punishment" years after a person has completed probation, as appears to be the case with this plaintiff. I'd be very surprised if the cities would even attempt to make this argument in court given the Supreme Court's finding in Smith v. Doe. I think they'd be more likely to argue it's not a punishment, and I also think there's a limit to how far Justice Kennedy will let that argument go, given that the argument focused largely on the fact that the facts of conviction were already public record and therefore registration supposedly did not add much punitive effect. I grant that there is not to my knowledge a case that has directly addressed it, but I am almost certain that with the proliferation of such laws, the courts will eventually have to clarify at what point they have become so irrationally detached from any reasonable regulatory scheme that they have to be classified as punishment.

Posted by: dsfan | Oct 8, 2012 12:36:27 PM

The view that registries, or the multitude of restrictions that are piled on sex offenders every election cycle, are not punishment is a stark example of head-in-the-sand solipsism. At some point, certainly, these restrictions become so restrictive as to be punitive in effect, even if the legislature, tongue firmly in cheek, insists that they are merely regulatory in nature. It's death by a thousand restrictions, and eventually some intellectual honesty is going to leak into some of these opinions.

Posted by: Guy | Oct 8, 2012 1:39:48 PM

hmm

"Brain B --

"Or, void the promise of Equality."

No one promised that all crimes would be treated equally, nor is it even sane to think that such a promise ought to be made.

The punishment for manslaughter is going to be different from the punishment for burglary which is going to be different from the punishment for embezzling $1000 from your employer. Sometimes the jail term imposed will be followed by post-jail requirements or restrictions, and sometimes it won't. Sex offender registries are one form of post-jail requirement and, to my knowledge, not a single court has found them to be unconstitutional per se, much less to be unconstitutional because non-sex offenders are not required to have their own registries.

If you could point to such a case, I'll be all ears."

Horse shit bill. In one of those other crimes can the state come back years if not decades after the fact and pass a law that says "since you stole a car 25 years ago you can now no longer live within 2,000 feet of a car lot, parking lot or anywhere else cars congragate."

as for this bit of criminal stupidity

"Sometimes the jail term imposed will be followed by post-jail requirements or restrictions, and sometimes it won't"

Yes it is true to a point. That point is reached when those conditions are set by the Judge at sentencing. Not some fucktard govt stooge 20 years afterward.

and here you screwed the pooch again.

"not a single court has found them to be unconstitutional per se,"

WRONG!

There are at least 3 diff state's trying to rewrite thier own fucking state constitutions to make retroactive laws legal in the case of sex crimes because their own high courts have tossed the illegal laws.

Hell even Alaska one of the two states that were part of the only real United States Supreme Court decison about the registry bullshit has now went back and said they fucked up and it has in fact and in law become a punishment and therefore illegal when applied after the fact.

Posted by: rodsmith | Oct 8, 2012 2:17:53 PM

Actualy Brian this is wrong.

"If sex offenders could unite, they'd have a field day of lawsuits across the country and against the country for oppressive, suppressive and Draconian legislation foisted upon them and their families. America must choose either to
build registries for every type of criminal offense alike, or to abolish the Sex Offender Registry...Or, void the promise of Equality."

If tomorrow just 10% of them decided we are never going to be left along by the hate filled nazi wannbee fucktards who now run this country. That we are never going to be left alone to live our life like every other American Citizen. Well the SCREW IT! If i'm not going to have a life i might as well go out with a bang and take a fucktard with me.

That would be eighty thousand suicide bombers minimum. This fucked up country would be dreaming of the good old days when it only had alqada to deal with.

Posted by: rodsmith | Oct 8, 2012 2:25:13 PM

rodsmith --

What I said was that no court to my knowledge has found sex registries to be unconstitutional per se. It may well be the case, as you note, that some registry statutes are defenctive in one way or another, and therefore have to be re-drafted, but that is hardly to say that they are unconstitional per se. Indeed, it is strongly to imply the opposite.

Posted by: Bill Otis | Oct 8, 2012 3:14:04 PM

horse pucky bill! like i said at least 3 states have been trying to rewrite their own constutions becasue their high courts have ruled thier version of the sex offender registry is in fact and in law a retroactive punishment therefore illegan under their constutions which seem to have better protections than the federal one.

there is no per se about it!

there would have been 4 if alaska had took it up after thier high court tossed it as applied after the fact. But i suspect the AG was told to leave it alone. Since all their court said was that it had in fact become a punishment thanks to the exta 10,000 new illegal addons! So it was still legal to apply it to those convicted after it's passage. Which is of course legal.

Posted by: rodsmith | Oct 8, 2012 3:31:18 PM

nice bill. I see you chicken'd out on these two!

"Horse shit bill. In one of those other crimes can the state come back years if not decades after the fact and pass a law that says "since you stole a car 25 years ago you can now no longer live within 2,000 feet of a car lot, parking lot or anywhere else cars congragate."

as for this bit of criminal stupidity

"Sometimes the jail term imposed will be followed by post-jail requirements or restrictions, and sometimes it won't"

Yes it is true to a point. That point is reached when those conditions are set by the Judge at sentencing. Not some fucktard govt stooge 20 years afterward."

What no way to make these illegal actions legal? At least with a straight face?

Posted by: rodsmith | Oct 8, 2012 3:34:24 PM

I have some knowledge of the law firm and the plaintiff in this case, though not personal interaction or consultation. The two points I am aware of are that the plaintiff and his upstate law firm have sufficient financial resources to both extensively research the case, sustain the case when it is appealed by the (whether it be Doe or Cities), and provide the extensive citations that have been available in a variety of venues since Smith v. Doe. In short, it's not just about fighting the obvious constitutional questions, but in financially backing it up.

As far as I know, this is the first privately-funded effort against elements of registration that have occurred in the country. Every other case involved criminal appeals using state funds, or civil cases involving non-profits such as the ACLU or the Ohio Justice and Policy Center. This is extremely important, as monetary damages will not be expected, as they would be in normally any other civil case.

Posted by: Eric Knight | Oct 8, 2012 6:07:17 PM

Nice Eric but i dont' know why you couldn't demand monitary damages. The whole ideal about those is to punish via the wallet those who you have no other real way to punish. If the client can go into court and prove that first the entire registry scheme is based on lies to the court back in the 1990's That the govt is in direct violation of the 2002 doe v smith decision. Why not demand damages for each day that violation has been in place. Could run to billions if the day count goes back to 2002 or 2003?

Posted by: rodsmith | Oct 8, 2012 7:47:10 PM

"Nice Eric but i dont' know why you couldn't demand monitary damages."

Demanding is one thing. Getting is quite another. And while juries / judges may tend to side with the sex offender with regard to unconstitutional restrictions on occasion (rolls eyes), they would be very reticent at making the state pay the offender with taxpayer money. That WOULD be a real first!

Oh, there may be unspecified damages in the suit that I'm unaware of, but it's not really the point of the suit as much as the law itself.

Posted by: Eric Knight | Oct 9, 2012 12:18:46 AM

The problem Eric is every time the courts decide our typical fucktard govt stooges have passed an illegal law. They simply go back and change one or two words that basically change nothing in the law itself. Then the people being affected by the plainly illegal law get to spend a few hundred thousand in legal fees and spend a few more years fighting the same illegal law. Till there is a monitary punishment for doing this. It will continue. Would work even better if the Individual Politicians be required to paid said fines.

Sorry in my book when a politician walks out of a meeting and announces they have passed a new law that is probably unconstitutional...but what the hell we'll let the courts sort it out. They have moved outside the protections and are completley liable for thier actions.

Posted by: rodsmith | Oct 9, 2012 9:44:16 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB