California: Local Ordinances Banning Sex Offenders from Parks Invalidated

by Mark Wilson

On April 23, 2014, the California Supreme Court refused to review two lower court decisions that invalidated local ordinances barring sex offenders from parks and other public places.

In 2006, California voters passed Jessica’s Law, which, among other provisions, prohibits registered sex offenders from living within 2,000 feet of schools and parks. Some prosecutors have complained that such restrictions do not go far enough.

Orange County District Attorney Tony Rackauckas spearheaded efforts to tighten restrictions on sex offenders by enacting city and county ordinances banning them from parks and other public areas. The ordinances spread like wildfire across California, as Rackauckas advised communities on how to implement similar bans.

A total of 70 California cities and five counties ultimately enacted such measures according to Janice Bellucci, a Santa Maria attorney and president of a group called California Reform Sex Offender Laws, an affiliate of the national organization Reform Sex Offender Laws (RSOL).

El Dorado County District Attorney Vern Pierson blamed state lawmakers for the local ordinances. “This is more than anything else due to the Legislature’s inability to craft appropriate legislation to control the behavior and conduct of sex offenders that are out,” claimed Pierson. “It’s trying to balance the competing rights here in an appropriate way that safeguards the children.”

He apparently didn’t differentiate between sex offenders who do not commit crimes against children. In any event, the California Supreme Court effectively struck down all 75 local sex offender ordinances by refusing to review a lower court decision that invalidated Irvine’s ordinance.

Irvine Municipal Code § 4-14-803 prohibited any person required to register as a sex offender due to a crime involving a minor from entering any city park or recreational facility without written permission by the police chief.

Jean Pierre Cuong Nguyen, a registered sex offender, entered an Irvine park in September 2012 without the police chief’s permission.

Rackauckas’ office learned of Nguyen’s park visit and filed a misdemeanor complaint, charging him with a violation of § 4-14-803. The Superior Court of Orange County granted Nguyen’s demurrer to the complaint, finding that state law preempted § 4-14-803 and the ordinance was unconstitutionally vague and overbroad.

Rackauckas appealed but the California Court of Appeal for the Fourth Appellate District affirmed the Superior Court’s judgment on January 10, 2014, holding that local governments cannot impose restrictions on sex offenders more stringent than those imposed by state law. See: People v. Nguyen, 222 Cal.App.4th 1168, 166 Cal.Rptr.3d 590 (Cal. App. 4th Dist. 2014).

The California Supreme Court denied Rackauckas’ request to review the appellate decision; it also refused to hear a second, similar case involving a sex offender cited for attending a company picnic at a county park. [See: PLN, Sept. 2014, p.20].

“We still believe that we were right on the law and we respectfully disagree,” said Susan Kang Schroeder, Rackauckas’ chief of staff. “We don’t regret the choices that we made in trying to keep sex offenders out of parks and keep children safe.”

Nevertheless, she admitted that the Supreme Court’s refusal to review the lower court decisions effectively invalidated all local sex offender ordinances. “If I read the tea leaves correctly, it’s probably dead everywhere in California,” she said.

Bellucci has been suing over many of the local ordinances, calling such challenges a “civil rights issue.” On March 31, 2014 she filed a federal lawsuit challenging a South Lake Tahoe ordinance which prohibits sex offenders from being in or within 300 feet of public or private schools, parks, video arcades, swimming pools or other areas where children might congregate.

The suit argues that the ordinance prohibits her clients from visiting doctor’s offices, hospitals and even businesses they may own that are adjacent to areas encompassed by the ordinance.

South Lake Tahoe suspended enforcement of its ordinance in response to Bellucci’s suit. The city’s attorney, Thomas Watson, said the city had entered into settlement negotiations with Bellucci and would likely need to rescind the ordinance in light of the Supreme Court’s action. El Dorado County also rescinded its ordinance in response to a previous lawsuit.

Some prosecutors remain unapologetic about pushing ordinances that impose blanket restrictions on the civil rights of an entire class of citizens, albeit an unpopular and stigmatized class. “We felt like, for what it’s worth ... it’s good for sex offenders not to be around children,” Schroeder declared.

According to DA Pierson, however, that was not the intent in El Dorado County. “I think there’s this misimpression that we want to ban sex offenders from going anywhere and doing anything,” he said. “What we’re attempting to do is deal with the unusual situations where they’re predatory. If they go to an ice skating rink because they want to look at the young children, that’s who we’re trying to prevent from being in that kind of situation.”

Bellucci agrees that the California legislature should address the issue in a way that differentiates between predatory and non-predatory sex offenders. Pierson suggested, however, that the legislature’s failure to address the need for balanced restrictions may lead to new local initiatives.

In the meantime, the California Supreme Court’s decision to effectively uphold the lower court rulings invalidating local ordinances is a “major victory,” said Bellucci. “It means that our people on the [state’s sex offender] registry – and we have over 105,000 now – can go to public and private places that they could not go before.”

An October 11, 2014 news article in The Sun reported that Bellucci has filed federal lawsuits challenging sex offender ordinances in 18 cities, including Ontario, National City, Adelanto, Victorville, Carson, South Pasadena and Commerce. Fifteen of the suits have settled. She has partnered with Frank Lindsay, 62, who has been on the state’s sex offender registry for 35 years and serves as a plaintiff in the lawsuits. Thirty-eight California cities have agreed to repeal their local ordinances to avoid being sued, many taking action after the Supreme Court’s decision, while another six cities suspended enforcement of their ordinances.

“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” Bellucci remarked.

A 2014 report by the California Sex Offender Management Board found the vast majority – around 93% – of sex crimes involving children are committed by offenders who know the victim, not by strangers. Further, a report released by the California Department of Corrections and Rehabilitation in 2013 determined that just 1.8 percent of registered sex offenders are re-incarcerated for new sex crimes.

“All elected officials take an oath of office to protect the Constitution of the U.S. and the state of California, and they’re not doing it,” Lindsay noted. “The Constitution is being trampled upon when it comes to sex offenders. Who’s next to go on this list?”

As previously reported in PLN, some states have already started registries for offenders convicted of murder and various drug crimes. [See: PLN, April 2012, p.30; Oct. 2008, p.32].

Sources: www.sacbee.com, www.sbsun.com, www.voiceofoc.org, www.nationalrosl.org

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