Illinois Court Strikes Sex Offender Park Ban

see also: IL law barring sex offenders from public parks sparking conversations about legality and Illinois Appeals Court Says Banning Sex Offenders From Parks Is Unconstitutional

2-14-17 Illinois:

An Illinois appeals court (Oral argument for those interested) ruled that a state law making it a crime for convicted sex offenders to set foot in public parks is unconstitutional because it can punish innocent conduct.

Friday’s ruling stems from the 2013 conviction of Marc A. Pepitone, a previously convicted sex offender who was arrested while walking his dog in a public park in Bolingbrook, Ill., a southwest suburb of Chicago.

A Will County jury found Pepitone, who was convicted in 1999 of predatory criminal sexual assault, guilty of being a child sex offender in a public park, in violation of an Illinois law.

As written, the law at issue makes it a crime for convicted sex offenders to attend concerts, picnics, rallies, or Chicago Bears games at Soldier Field, for example, or visit popular places like the Field Museum, the Shedd Aquarium, the Art Institute, the Adler Planetarium, or the Museum of Science and Industry, all of which are public buildings on park land.

Pepitone was sentenced to 24 months of conditional discharge and 100 hours of public service and given a $400 fine, but he appealed the conviction, claiming the banishment of sex offenders from public parks is “unconstitutional on its face because it bears no reasonable relationship to protecting the public.”

Pepitone argued in his appeal that the law sweeps too broadly and therefore must be struck down. He said, “The specific issue is . . . whether an all-out banishment, of all child sex offenders, from all public parks . . . at all times. . .is a reasonable means of achieving the legislature’s stated goal of ‘protect[ing] users of public parks from child sex offenders and sexual predators.’”

The Illinois Appellate Court’s Third District agreed with Pepitone on Friday in a 2-1 ruling and reversed his conviction of being a child sex offender in a public park.

“We hold that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator,” Justice Mary McDade wrote for the majority. “Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime.”

McDade said the sweep of the law “is extraordinary.”

“Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present,” the ruling states.

The appeals panel’s majority found that the law “criminalizes substantial amounts of innocent conduct” and “makes no attempt to assess the dangerousness of a particular individual.”

Quoting a previous ruling by the Illinois Supreme Court, McDade wrote, “’Statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.’”

Justice Robert Carter dissented, disagreeing that the state law is facially unconstitutional.

“By keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend,” he wrote. “Whether the statute could be more finely-tuned to accomplish that goal is a question for the legislature, not for the courts.”

In December, a federal judge in Indiana struck down part of a similar city ordinance that prohibited sex offenders from loitering near parks, schools and other places children most commonly frequent, calling the ordinance “unconstitutionally vague.” ..Source.. by MARCIE SHIELDS

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Cities and Towns Scaling Back Limits on Sex Offenders

12-1-2014 National:

Officials Say Buffer Zones Don’t Prevent Repeat Offenses and Make Predators Harder to Track

When Palm Beach County , Fla. , was sued earlier this year over its housing restrictions for registered sex offenders, its attorneys took an unusual approach: They suggested the county relax its law.

The county’s commissioners— prompted largely by the lawsuit brought by a sex offender who claimed the limits rendered him homeless—voted in July to let such offenders legally live closer to schools, day-care centers and other places with concentrations of children.

“We realized the law was costing the taxpayers money [for services for the homeless] and was causing more problems than it was solving,” said county attorney Denise Nieman.

In the mid-1990s, states and cities began barring sex offenders from living within certain distances of schools, playgrounds and parks. The rationale: to prevent the horrible crimes sometimes committed by offenders after their release. In October, for instance, officials charged sex offender Darren Deon Vann with murdering two women in Indiana . Mr. Vann, who is suspected of killing several others, pleaded not guilty.

Now, a growing number of communities are rejecting or scaling back such limits—out of concern that they don’t prevent repeat offenses, and, in some instances, may make sex offenders harder to track.

Before Palm Beach County shrunk its buffer zones, only small pockets of the county were open to sex offenders, said Mark Jolly, the head of the unit at the county sheriff’s office charged with tracking sex offenders. “They’d either just become homeless or they’d tell us they were homeless, then would move into housing within a restricted zone,” he said. “It became a nightmare to track these guys.”

Mike Rodriguez, the executive director of the county’s criminal justice commission, estimates that the change in the law increased the area in which sex offenders could live by about 70%.

In August, the Dallas City Council considered a proposal to adopt residency restrictions for Dallas ’s nearly 4,000 sex offenders. Jerry Allen, a council member, said he “looked for research” to support the idea, but came up empty. So Mr. Allen persuaded the council to shelve the proposal.

A 2013 Justice Department study that examined Michigan ’s and Missouri ’s statewide restrictions showed they “had little effect on recidivism.” Other studies have found the vast majority of sex-offense cases involving children are committed not by strangers but by family members or others with established connections to the victims, such as coaches or teachers.

About 30 states and thousands of cities and towns have laws restricting where sex offenders can live, while others are adding them. In March, a 1,000-foot buffer from parks took effect in San Antonio . In July, Milwaukee passed a law banning sex offenders from living within 2,000 feet of a variety of places where children gather.

In October, the City Council in Elkhorn , Wis. , population 10,000, passed an ordinance requiring offenders who move into town to live at least 2,000 feet from places such as schools and parks. The move was prompted by an influx of sex offenders released from the nearby county jail, many of whom had begun to congregate in the town’s business district, said Mayor Brian Olson. After the vote, he said he got several calls and letters from residents thanking him. “I think people were afraid to speak up on the issue, and that there was a bit of a sigh of relief,” Mr. Olson said. We’re just trying to keep our kids safe, and just did what a lot of other communities around the state have done,” he said.

Critics, however, say such moves do little more than score lawmakers political points and give an area’s residents a false sense of security. Some argue they can make communities less safe, by making it hard for offenders to find stable housing.

David Prater, district attorney of the county that encompasses Oklahoma City , said he and other state prosecutors have tried to get the state to relax its 2,000-foot buffer, to no avail. “No politician wants to be labeled the guy who lessens restrictions on sex offenders,” he said.

The police chief in Greeley, Colo., Jerry Garner, said he started having doubts about the restrictions when, a few years ago, Greeley officers discovered a registered sex offender living in his car, partly, recalls Mr. Garner, because he was “boxed out” of so much of the city. “Because of the restrictions, he was basically living as close to children as he wanted to,” said Mr. Garner. At his urging, in February Greeley slashed the size of the restricted areas for its 265 registered sex offenders from 1,000 feet around places like schools to 300 feet.

In October, three residents of a Miami outdoor encampment sued Miami-Dade County in federal court, claiming that sex-offender residency restrictions in the county rendered them “unable to locate stable, affordable housing,” thereby forcing them and “hundreds” of others into homelessness.

A Miami-Dade County spokeswoman declined to comment on the suit.

Miami-Dade County has come under fire for its residency restrictions before. In 2006, an encampment that ultimately grew to include more than 100 homeless sex offenders developed under a Miami freeway, largely as a result of the county’s residency restrictions. Four years later, to alleviate the problem the county eliminated some of its 2,500-foot buffer zones for sex offenders.

Some smaller towns are chucking restrictions, partly in the name of public safety. De Pere , Wis. , a town of 23,000 south of Green Bay , tossed out its 500-foot buffer last year after reviewing data on its effectiveness, said several council members. The issue was reopened by some townspeople several months ago ,when a convicted sex offender moved across the street from a school for children with special needs. But the council didn’t budge.

“You track where they live, you check in on them, but you let them live at home, where they’re comfortable and stable,” said Scott Crevier, a DePere city councilman. “I feel we’re actually safer than a lot of other towns in the state that have them.” ..Continued.. Sub Req.. by ASHBY JONES

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Sacramento County sued over sex offender ordinance

4-30-2014 California:

Sacramento County became the latest governmental entity Wednesday to be sued over an ordinance limiting the movements of registered sex offenders near parks and other public places, but the practical effect of the suit may be negligible.

Attorney Janice Bellucci filed the suit in U.S. District Court in Sacramento on behalf of Frank Lindsay, a San Luis Obispo man who is a registered sex offender and has sued other municipalities over their ordinances limiting where sex offenders may go in public.

The suit challenges a 2006 county ordinance that forbids offenders from being within 300 feet of schools, parks, video arcades and other areas where children may be present. However, the practical effect of the suit is unclear because of earlier court rulings in Southern California that invalidated similar ordinances.

An appellate court in those cases found that such ordinances are invalid and leaves the state’s Jessica’s Law, passed by voters in 2006, as the main enforcement tool over paroled sex offenders. That measure prevents sex offenders on parole from living within 2,000 feet of schools and parks.

The Orange County district attorney had been pushing for additional local ordinances in Southern California communities, but the appeals court found them invalid. That finding was appealed to the state Supreme Court, which refused to hear the matter. ..Source.. by Sam Stanton

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CA Supreme Court Decision Allows Sex Offenders in OC Parks

4-24-2014 California:

About 30 cities statewide, including 15 in Orange County, had passed sex-offender laws that are now invalidated by the Supreme Court’s action.

A decision made by the California Supreme Court Wednesday will, as a result, allow sex offenders to frequent parks and beaches across the state, including in Orange County.

The California Supreme Court declined to review a lower court's ruling that had struck down on laws that regulated sex offenders in Orange County.

"We're obviously disappointed that the California Supreme Court denied certification to hear this case," Orange County district attorney spokesperson Susan Kang Schroeder said.

"Predator bans" in Orange County had made it a crime for registered sex offenders to be in public parks, whether or not they had done something criminal.

"To us it was a no-brainer, to keep sex offenders away from children. Right now as the law states, unless they're on probation or parole, even if they have molested hundreds of children, they can still go in to parks," Schroeder said.

The Supreme Court decision Wednesday means that the local bans in dozens of California communities are trumped by state law and invalidated, as the 4th District Court of Appeal found in January.

About 30 cities statewide, including 15 in Orange County, had passed sex-offender laws that are now invalidated by the Supreme Court’s action.

"It concerns us," parent Vanessa Butt said. "As parents we want our kids to be safe. And It's scary that we have to constantly watch our kids."

In 2011, Orange County banned sex offenders from parks and beaches unless they had written permission from the sheriff.

But in 2012, a county court overturned the misdemeanor conviction of a sex offender, Hugo Godinez, for going to a company picnic at a Fountain Valley park and asked the appeals court to rule on the case and the legality of the regulations.

The appeals judges found that the rule conflicts with laws passed by the state that already provide a "comprehensive statutory scheme regulating the daily life of sex offenders." ..Source.. by Samia Khan and Beverly White

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Hugo Godinez, Registered Sex Offender, is Unlikely "Star" of Constitutional Challenges

2-20-2014 California:

When Hugo Godinez was ordered to register as a sex offender with the Costa Mesa Police Department at his sentencing for a 2010 misdemeanor sexual battery conviction, the Santa Ana resident could not have foreseen his future in shaping California law.

The latest ripple came Wednesday when the Orange County District Attorney's office filed a petition in hopes the state Supreme Court will uphold ordinances banning sex offenders from municipal parks and recreational facilities.

OC District Attorney Called "Foolish" to Take Pervs-in-Parks Ban Case to Supreme Court

"The people of the state of California respectfully petition this court to grant review of an important issue affecting every city and county in California," Deputy District Attorney Brian Fitzpatrick wrote in his petition to the state Supremes. "Cities and counties need to know whether they can act to protect children within their communities from the approximately 75,000 sex offenders living in the state."

The state's high court can either reject the petition, letting appellate court rulings stand that have found pervs-in-parks bans unconstitutional, or set up another round of appeals before the justices.

Scott VanCamp, an attorney with the Orange County Public Defender's Office, argued the case based on Godinez's conviction for violating the county ordinance that was before the appellate court.

"I expected this would happen, but I'm hopeful the California Supreme Court will not take the case because I think the opinion from the appellate court is very well reasoned and very clear and easy to understand," VanCamp told City News Service.

Pervs-and-parks fever swept through Orange County after Supervisor Shawn Nelson and District Attorney Tony Rackauckas crafted the original county ordinance that was adopted in April 2011. The pair, Sheriff Sandra Hutchens and other law enforcement representatives then went city to city in Orange County to lobby for local versions of the law.

More than a dozen OC cities passed similar ordinances, which require registered sex offenders to stay out of local parks and recreational areas unless they get permission first from the law enforcement agency that patrols that municipality. In the case of Hutchens' agency, such permission has been difficult to obtain. Irvine and Fountain Valley, anticipating the legal challenges ahead, only applied their ordinances to registered sex offenders who had been convicted of preying on children.

If caught in these so-called Child Safety Zones without permission, the sex offender risked a fine or jail time. That's what happened to Godinez on May 5, 2011, when he attended what he claimed to be a "mandatory" company Cinco de Mayo party at Mile Square Regional Park, a county facility in Fountain Valley.

Godinez was later sentenced to 100 days in jail and five years of probation for violating the county ordinance, but a panel of Superior Court judges sought a review from the state's 4th District Court of Appeals. The appellate court overturned the Godinez conviction on grounds the county law is unconstitutional because the state already has laws on the books dealing with registered sex offenders.

A panel of justices from the same court also overturned Irvine's ordinance on the same grounds. JeanPierre Cuong Nguyen, the plaintiff in that case, had been arrested by Irvine police officers who'd been tipped he would be visiting a local tennis court.

The district attorney's office took the position at the time of the appellate decisions that they only applied to Godinez and Nguyen. But the public defender's office maintained the rulings had struck down as unconstitutional all such bans in the state.

An official with the DA's office previously told the Weekly that court challenges were anticipated when the county ordinance was enacted and that the DA was prepared to make a case before the state's highest court. District Attorney Tony Rackauckas can make that call without the permission of the county Board of Supervisors, although three members have indicated they would prefer to let the appellate rulings stand than spend more money to fight them.

That was the same rationale Lake Forest cited when it repealed its ordinance last year, agreeing that defending the law would cut too deeply into the city treasury.

Fitzpatrick's writ to the high court was filed a day after the Costa Mesa City Council unanimously repealed its ordinance due to the appellate rulings. The city has also been named in a civil lawsuit filed by a sex offender known in court papers as "John Doe."

"If the appellate court says it's unconstitutional and you can't do it, then we don't want to do it," Costa Mesa Mayor Jim Righeimer explained to City News Service. "If they appeal and win, we can always come back to it, but we don't want that thing hanging out there if it's unconstitutional. We like the protections, but if it's constitutional and it's not cleared up, we don't want it on our books." ..Source.. by Matt Coker

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District Attorney Wants Top Court to Review Rulings Overturning Ban on Sex Offenders in Parks

2-20-2014 California:

“Cities and counties need to know whether they can act to protect children within their communities from the approximately 75,000 sex offenders living in the state,” says a deputy D.A.

Orange County prosecutors petitioned the state Supreme Court to review two appellate court rulings striking down a ban on registered sex offenders in the county's parks and in more than a dozen of its cities.

“The people of the state of California respectfully petition this court to grant review of an important issue affecting every city and county in California,” Deputy District Attorney Brian Fitzpatrick wrote in his petition to the high court. “Cities and counties need to know whether they can act to protect children within their communities from the approximately 75,000 sex offenders living in the state.”

Last month, a panel of Fourth District Court of Appeal justice struck down the county's ordinance and one in Irvine. Since the Irvine ruling was published, it acts as precedent and makes all of the bans unconstitutional.

The state's high court can either reject the petition, letting the appellate court rulings stand, or it can set up another round of appeals before the Supreme Court.

“I expected this would happen, but I'm hopeful the California Supreme Court will not take the case because I think the opinion from the appellate court is very well reasoned and very clear and easy to understand,'' said Scott VanCamp, an attorney with the Orange County Public Defender's Office, who argued the case before the appellate court.

The appellate panel ruled that the local ordinances conflicted with state law, which takes precedence.

“The Court of Appeal also makes it clear in its opinions that if the state legislature did not mean to preempt these local ordinances, it would be very easy for the legislature to pass a law saying that,” VanCamp said.

Fitzpatrick argues in his petition to the state's high court that the law is not settled on the question of whether state law takes precedence over local ordinances in all cases.

“If the appellate court says it's unconstitutional and you can't do it, then we don't want to do it,” Mayor Jim Righeimer told City News Service. “If they appeal and win, we can always come back to it, but we don't want that thing hanging out there if it's unconstitutional. … We don't want it on our books.''

The city was also named in a civil lawsuit challenging the ordinance.

Orange County District Attorney Tony Rackauckas' office does not need the county board's permission to seek a supreme court review, but at least three supervisors on the Orange County board have said they would rather let the appellate court's rulings stand than spend more money on the legal battle.

In the Irvine case, JeanPierre Cuong Nguyen's success in getting his misdemeanor conviction dismissed by a lower court was affirmed. Nguyen was charged with violating Irvine's ordinance because he went to one of the city's parks in September 2012 without the written permission of Irvine's police
chief.

The county's ordinance also made it a misdemeanor for a registered sex offender to enter a county park without the county sheriff's written permission. The appellate justices' ruling in that case stemmed from a visit by Hugo Godinez, a registered sex offender with Costa Mesa police, to Mile Square Regional Park in Fountain Valley on May 5, 2011, during a Cinco de Mayo
celebration.

Godinez was found guilty, but a panel of Orange County Superior Court judges, who handle appeals in misdemeanor cases overturned his conviction last April and sent the case to the Fourth District Court of Appeal for further review.

Ordinances banning registered sex offenders from parks were on the books in 15 Orange County cities. Most of them banned registered sex offenders, except in Irvine and Fountain Valley, which target those convicted of crimes against children.

Lake Forest, Lancaster and Palmdale and El Dorado County repealed bans because of “legal uncertainty,” according to Fitzpatrick's petition. ..Source.. by City News Service

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Court rules state law overrides O.C. restrictions on sex offenders

1-14-2014 California:

California appeals court declares Orange County ordinance banning sex offenders from parks and beaches unconstitutional.

A panel of California appeals court judges found Friday that state law trumps Orange County's regulations on sex offenders that ban them from parks and beaches.

The decision by the 4th District Court of Appeal reverses the conviction of Hugo Godinez, a registered sex offender who was convicted of a misdemeanor for violating the county ordinance after he went to a company picnic at Mile Square Regional Park in Fountain Valley in 2011. Godinez had been convicted of misdemeanor sexual battery in 2010.

"Godinez argues state law preempts the county ordinance and therefore his conviction is void. We agree," the panel wrote, adding that the state Legislature has already enacted a "comprehensive statutory scheme regulating the daily life of sex offenders."

The Orange County restriction conflicts with it and is therefore unconstitutional, the panel found.

Orange County's ordinance allows sex offenders to go to parks with written permission from the county sheriff. The appeals court found that requirement amounts to a "de facto registration requirement" that conflicts with the state's existing sex offender registration requirements.

Susan Kang Schroeder, chief of staff to Orange County Dist. Atty. Tony Rackauckas, said her office will discuss next week whether to appeal the ruling.

"We believe local jurisdictions have the right to protect children by restricting sex offenders from parks … and that the state never intended to be the last word on every single rule regarding sex offenders," she said late Friday.

State law prohibits sex offenders from living within 2,000 feet of a park or school and requires written permission for them to enter a school, but does not ban them from visiting parks unless they are on parole for crimes against children under 14.

Orange County's restrictions, passed in 2011, were among the most aggressive in the state. More than a dozen cities within the county adopted versions of the law at the urging of the district attorney's office.

An Orange County Superior Court appeals panel overturned Godinez's conviction in 2012. In response, the Orange County Sheriff's Department stopped enforcing the law, and the Lake Forest City Council voted to repeal its ban.

The county appeals panel said the sex offender ordinance appeared to be illegal and asked the 4th District to hear the case.

Janice Bellucci, president of the California chapter of Reform Sex Offender Laws, said she hopes Friday's ruling sends a message to other cities that have passed ordinances restricting where sex offenders are allowed to go.

"It really does tell 100-plus cities in our state that ordinances they passed are preempted by state law," she said.

Bellucci's group says laws restricting sex offenders have gone too far and are a civil rights issue. In El Dorado County, for instance, which recently repealed its own sex offender law, Bellucci said, sex offenders were prohibited from eating at a Carl's Jr. with an attached playground. ..Source.. by Abby Sewell

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District Attorney will take sex-offenders fight to state Supreme Court

1-13-2014 California:

Rulings struck down laws barring offenders from parks. “Protecting children from dangerous sex offenders is an ongoing war,” says D.A. chief of staff.

The Orange County District Attorney’s Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks without police permission.

A state appeals court on Monday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. On Friday, the court also struck down a similar Orange County law.

About a dozen other Orange County cities have passed similar ordinances banning sex offenders from parks after a 2011 letter from District Attorney Tony Rackauckas on the issue. Rackauckas helped craft Orange County’s law with county Supervisor Shawn Nelson.

“Protecting children from dangerous sex offenders is an ongoing war, and we believe that it’s one of the most important jobs we have at the D.A.’s (office),” said Susan Kang Schroeder, Rackauckas’ chief of staff.

She said the district attorney plans to seek a hearing with the California Supreme Court. The District Attorney’s Office had anticipated the local laws would end up going through the courts, she added.

“Some of the best minds of the District Attorney’s Office helped draft this law, and we still believe we’re right on the law,” she said.

COUNTY ORDINANCE SPAWNED OTHERS

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff’s Department. Those convicted would face six months in jail or a $500 fine.

In Monday’s ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances. State law has long overseen sex-offender registration, the opinion said, which also superseded any written permission from local police.

Citing previous cases, the court said local ordinances may not undermine areas “fully occupied by state law” – where state legislators had already created a comprehensive set of regulations. In such areas, it is implied that state law should overtake local regulations.

State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement officials via GPS. Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agent. Other regulations deal with certain types of sex offenders and day care, schools and jobs involving children.

When looked at together, the laws create a comprehensive system regulating sex offenders’ daily lives, the court said. No outright ban on sex offenders in parks is included in state law, an omission which “manifests a legislative determination that such a ban is not warranted,” the court said. Any local laws in a field regulated in such detail by state law undermines the decisions of the Legislature, the court said.

IRVINE CASE

In the Irvine case, Jean Pierre Nguyen was taken into custody in 2012 after he went to Citrus Glen Park to play tennis. The Orange County Probation Department had received information that the 51-year-old Garden Grove resident, who was convicted of child annoyance in 1996 and was on probation for indecent exposure, often visited the park. He was the first person arrested on suspicion of violating the ordinance in Irvine. At the time of his arrest, four other people had been arrested in connection with the bans in other parts of Orange County.

About 90 percent of child victims of sexual offenses know their offender, almost half of whom are family members, according to the state attorney general. Even with those statistics, it’s important to protect children from strangers, Schroeder said. In some cases, sex offenders go to parks to watch children, she said, and they could use that as an opportunity to get to know children.

“We think it’s best for the sex offenders and the children to keep them out of parks,” she said. ..Source.. by CLAUDIA KOERNER

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Appeals court rules against Orange County on sex offender law

1-10-2014 California:

A panel of California appeals court judges found Friday that state law trumps Orange County's regulations on sex offenders that ban them from parks and beaches.

The fourth appellate district decision reverses the conviction of Hugo Godinez, a registered sex offender who was convicted of a misdemeanor for violating the county ordinance after he went to a company picnic at Mile Square Regional Park in Fountain Valley in 2011. Godinez had been convicted of misdemeanor sexual battery in 2010.

The county's restrictions on sex offenders, passed in 2011, were among the most aggressive in the state.

A number of cities within Orange County adopted versions of the law at the urging of the district attorney's office, and many of them also faced court challenges.

An Orange County Superior Court appeals panel overturned Godinez's conviction in 2012. In response, the Orange County Sheriff's Department stopped enforcing the law, and the Lake Forest City Council voted to repeal its ban.

The county appeals panel said the sex offender law appeared to be illegal and asked the 4th District Court of Appeal to hear the case.

"Godinez argues state law preempts the county ordinance and therefore his conviction is void. We agree," the appeals court ruling said.

The state Legislature has already enacted a "comprehensive statutory scheme regulating the daily life of sex offenders," and the Orange County law conflicts with it, the panel found.

Orange County's law allows sex offenders to go to parks with written permission from the county sheriff. The appeals court found that requirement amounts to a "de facto registration requirement" that conflicts with the state's existing sex offender registration requirements.

Representatives of the Orange County district attorney's office could not immediately be reached for comment. ..Source.. by Abby Sewell

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State appeals court finds California law trumps Orange County's strict sex offender measures

LOS ANGELES — A California appeals court ruled Friday that state law trumps Orange County regulations banning sex offenders from parks and beaches, dealing a serious setback to some of the strictest sex-offender rules in the state.

The decision comes after a county court in 2012 overturned the conviction of a sex offender for going to a park and asked the 4th District Court of Appeal to rule on the case and the legality of the regulations, the Los Angeles Times reported. (http://bit.ly/1lKYYCU) The Sheriff's Department had already stopped enforcing the law in response.

The registered sex offender, Hugo Godinez, was convicted of a misdemeanor for going to a company picnic at a Fountain Valley park in 2012. He had been convicted of misdemeanor sexual battery two years earlier to earn the sex offender status.

Orange County's restrictions passed in 2011 barred offenders from parks and beaches unless they got written permission from the sheriff.

The appeals judges on Friday found that the rule amounted to a "de facto registration requirement" and conflicts with laws passed by the state which already provide a "comprehensive statutory scheme regulating the daily life of sex offenders."

A phone message left with the district attorney's office after business hours by The Associated Press was not immediately returned, but the DA's Chief of Staff Susan Kang Schroeder told City News Service the county may appeal further.

"We're going to review our options requesting the Supreme Court of California to review this case," Schroeder said. "We believe in this war in protecting children against sex offenders that the state never intended to pre-empt every law keeping sex offenders out of parks."

On the urging of the district attorney, several cities passed similar measures, the Times reported. Many of them were also facing legal challenges and one, Lake Forest, has already repealed its rules. ..Source.. by Daily Journal

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Another OC City Backs Off Sex Offender Ban

1-8-2013 California:

As lawsuits prompt OC cities to reconsider bans on sex offenders in parks, Westminster officials decided to drop charges against a sex offender who challenged the law.

Westminster became the latest Orange County city to distance itself from a law banning sex offenders from city or county parks.

A number of cities including Mission Viejo, Seal Beach, Fountain Valley, Los Alamitos and Laguna Niguel have similar bans, all of which could face challenges in court. An attorney who represents a sex offender in the Westminster case represents several offenders challenging similar bans around the county as an infringement on civil liberty. Many of the bans could depend on a pending appeals court decision about a Fountain Valley case.

The threat of a lawsuit prompted Lake Forest City Council to reverse its ban, and cities such as Seal Beach are reviewing their bans. And on Thursday Westminster city attorneys dismissed a misdemeanor case against a man accused of violating Westminster's ordinance prohibiting sex offenders from its parks, a law overturned by a panel of Orange County Superior Court judges and whose constitutionality is being considered by the Fourth District Court of Appeal.

Steven James Dietrich was accused of violating Westminster's ordinance on Oct. 11. His attorney, Scott Van Camp of the Orange County Public Defender's Office, filed a motion to throw out the case, but the Westminster City Attorney's Office dismissed the charges before that motion could be considered.

Van Camp represents multiple defendants presenting constitutional challenges to ordinances banning registered sex offenders from parks in more than a dozen Orange County cities as well as unincorporated areas.

All the ordinances will hinge on how the appellate court rules on the misdemeanor case against Hugo Godinez. Godinez's misdemeanor conviction for violating the county's ordinance was dismissed in November by a panel of Orange County Superior Court judges, who asked the higher court to consider the ruling in December.

It could take another six months for the appellate court to rule, Van Camp said. The appellate court's ruling would establish legal precedence.

The three-court panel of Orange County Superior Court judges overturned the Godinez conviction because they concluded that state law preempts the city ordinances. If the state has a law regarding a specific crime cities are not allowed to pass ordinances that expand on them or are variations on them unless the state law permits that.

State laws ban parolees for some serious sex offenses involving victims younger than 14 from entering parks, Van Camp said.

The judges who overruled Godinez's conviction noted sex offenders would have a difficult time navigating a ``patchwork'' of ordinances throughout Orange County.

Godinez is a registered sex offender with Costa Mesa because of his misdemeanor conviction for sexual battery on June 23, 2010, according to prosecutors. Godinez went to Mile Square Regional Park in Fountain Valley on May 5, 2011, during a Cinco de Mayo celebration. He was convicted of violating the county's ordinance on Nov. 14, 2011. ..Source.. by City News Service

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Orange County Pervs-in-Parks Ban Violates State Constitution: Judicial Panel

11-30-2012 California:

The County of Orange ordinance that bars registered sex offenders from entering county parks and recreational areas has been ruled unlawful, according to a decision issued Nov. 15 by a panel of three Superior Court judges.

The unanimous ruling does not apply to the ordinances several Orange County cities adopted at the urging of county Supervisor Shawn Nelson and District Attorney Tony Rackauckas, who authored the original county version the Board of Supervisors approved in April 2011.

Nor does the judges' decision have anything to do with a separate complaint filed in federal court against four Orange County cities that passed ordinances mirroring the county's.

Judges Craig L. Griffin, Clay M. Smith and Charles Margines of the Appellate Division of the Superior Court in Santa Ana found Orange County's ordinance violates the California Constitution because it preempts state law that prohibits some, but not all, sex offender registrants from entering public parks.

The decision will now be forwarded to the California Court of Appeals, which can review it, let it stand or send it back down for revisions. A decision on how that court will proceed is expected by December.

Janice Bellucci, a Reform Sex Offender Laws (RSOL) California organizer, is already calling the lower court ruling, "a major victory for registrants, not only in Orange County, but throughout the state of California."

In an RSOL statement, Bellucci continues, "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined."

The case before the judges centered on Hugo Godinez, a lifetime sex offender registrant who was arrested May 5, 2011, at Mile Square Park in Fountain Valley. According to Godinez's Orange County Public Defender's Office attorneys, he was attending a "mandatory" company party celebrating Cinco de Mayo. Nevertheless, the Santa Ana resident was convicted in November on one misdemeanor count of failing to register and show proof of residency upon release from incarceration. He received a sentence of 100 days in jail and five years probation.

Godinez has been forced to register as a sex offender with the Costa Mesa Police Department since his sentencing for a 2010 misdemeanor sexual battery conviction.

The Orange County District Attorney's office (OCDA) said at the time of Godinez's Fountain Valley arrest that he had signed paperwork indicating he knew he had to re-register in other jurisdictions if he changed his address, and three days before his arrest at the regional park he'd talked with his probation officer about the county ban on registered sex offenders in recreational areas where children gather. The crux of Public Defender Scott M. Van Camp's argument before the judicial panel was different residency requirements in different cities are unfair and trumped by state law anyway.

Under the so-called Child Safety Zone Ordinance, registered sex offenders cannot enter parks unless they first get the permission from the Orange County Sheriff's Department, if it is a regional facility, or the local police department, if it is in a city that has passed a similar ban.

A previous records check indicated the sheriff's department has been stingy in granting such requests. Sheriff Sandra Hutchens has joined Nelson and Rackauckas on the circuit of Orange County city councils, urging the adoption of so-called Child Safety Zones like the county has.

The OCDA says it will have a statement about the judges' ruling later this afternoon.

UPDATE, NOV. 28, 3:54 P.M.: According to the OCDA, the decision by the Appellate Division of the Superior Court regarding the County of Orange's Child Safety Zones ordinance is part of the normal process of shaping laws in California.

District Attorney Tony Rackauckas "always viewed this as a long-term battle to protect children from sex offenders, which is part of our duties," explained his chief of staff, Susan Kang Schroeder.

At issue is whether state law preempts the Orange County ordinance. The OCDA's view is it does not, arguing that the state constitution allows local jurisdictions to enact policing (and other) ordinances so long as they do not conflict with general law or delve into areas fully covered by the state Legislature. Hugo Godinez's attorney Scott M. Van Camp and his Public Defender's office colleagues counter the Legislature indicates an intent to occupy the field of sex offender registration under the state Penal Code.

The main Penal Code section cited by Godinez's attorneys prevents sex offenders who are on parole from entering any park without first getting permission from his or her parole officer, something that came out of Chelsea's Law of 2010. There are other state prohibitions that apply to those who have preyed on children ages 14 and under. Because the Legislature limited its scope to parolees, the OCDA argues, it is not fully occupying the field when it comes to where sex offenders congregate.

As the case progresses, the county will argue it lawfully expanded such prohibitions to sex offenders, and that this does not fly in the face of existing state laws. The Godinez team also argues that the Jessica's Law voter initiative and other laws passed by the Legislature show the state is fully invested in where sex offenders are allowed to go. The OCDA brief tries to shoot down that legal argument, noting one Penal Code section cited by Godinez's attorneys states it specifically does not supersede other laws, which would include those adopted locally.

An OCDA brief filed for the judicial panel cited other local ordinances that expanded on, but did not preempt, state law, as well as local laws dictating where criminals may go that have withstood legal challenges, if they have been challenged at all.

When it comes to Godinez's specific circumstances, the brief notes that while his original offense in Costa Mesa concerned a woman he battered, he had expressed to his probation officer about fantasizing about a 12-year-old niece he had hugged and whose buttocks he grabbed and that his boss' 6-year-old niece was flirting with him. This prompted his probation officer to put a GPS tracker anklet on Godinez and explain how he could not enter Child Safety Zones enacted by the county and local cities, the OCDA brief states.

The brief goes on to deny Godinez's challenges that the county ordinance is unconstitutional, vague or over broad when applied generally or to this specific sex offender.

As things now stand, the OCDA believes the Appellate Division of the Superior Court decision applies only to the Godinez case, and not all the county ordinance as a whole, despite the Reform Sex Offender Laws representative's statement in my original post that, "Registrants can now recreate in the parks, beaches and harbors of Orange County without fear of being arrested or fined." (The OCDA chose not to react directly to the RSOL statement, pointing instead to its appellate court brief.)

The OCDA also pointed out that the three-judge panel, in its decision, references the Godinez and other cases regarding sex offender ordinances winding through the court system, urging a higher appeals panel to take up the central question of whether local jurisdictions can ban registered sex offenders from parks where children gather. ..Source.. by Matt Coker

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Sex offender sues four Orange County cities over park, beach bans

10-5-2012 California:

A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of laws that ban 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 after the county’s sex offender law, which bans those people from entering county parks and other public facilities.

The lawsuit, filed Sept. 28 in U.S. District Court, claims the ordinances that ban the plaintiff from entering city parks or beaches violate the Constitution and his protected rights under the law. The lawsuit also names Orange County Sheriff Sandra Hutchens and the four cities' police chiefs.

The San Francisco law firm representing the sex offender, whose name was not listed but was verified by the courts, 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.
The lawsuit also claims that because he completed his sentence long before the ban was enacted, those cities' laws stand to potentially increase his punishment, a constitutional violation.

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. ...Source...

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S. Dakota Supreme Court upholds law barring sex offenders from loitering near parks, schools

8-12-2011 South Dakota:

PIERRE, S.D. — A state law barring registered sex offenders from loitering near schools, public parks and public playgrounds is constitutional because it provides sufficient warning of what conduct is prohibited, the South Dakota Supreme Court ruled Thursday.

The high court's unanimous ruling upheld the conviction of a Sioux Falls man who argued the law is unconstitutional because it is too vague.

Kenneth Dale Stark, 61, was convicted of two counts of loitering in a community safety zone after law officers observed him near two public parks in Sioux Falls. A circuit judge then sentenced him to six years in prison.

Stark had registered as a sex offender after a prior conviction.

After a woman reported that someone in a vehicle registered to Stark was watching or following children going to swimming lessons in April 2009, law officers followed Stark after he left work the following day. They testified in his trial that they saw Stark circle one park for about 20 minutes and later saw him drive away after being parked near another park.

Stark's lawyer declined to comment on the case Thursday. South Dakota Attorney General Marty Jackley was not immediately available to comment because he was attending a funeral.

During his trial and in the appeal, Stark argued the law was too vague and violated his constitutional freedom to loiter for innocent purposes. He contended he just drove past the first park and pulled over near the second park to yield to an oncoming car and allow some children to cross the street.

The Supreme Court said criminal laws must provide sufficient notice of what conduct is prohibited and must give law officers sufficient guidelines for enforcement.

South Dakota law specifically prohibits registered sex offenders from loitering within 500 feet of any school, public park or public playground for the purpose of observing or contacting minors, the Supreme Court ruled. That language limits application of the law to loitering that has an apparently harmful purpose or effect, the justices said.

"The statutes at issue were sufficient to provide Stark with notice that his conduct was prohibited, and they did not authorize the law enforcement officers in this case to act in an arbitrary or discriminatory manner," Justice Glen Severson wrote for the court.

Prosecutors provided sufficient evidence for the jury to find Stark's primary purpose for remaining near the parks was to observe or contact minors, the Supreme Court said. ..Source.. by CHET BROKAW

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