By Christopher Zoukis

The New York Court of Appeals has ruled that efforts by local governments to restrict where sex offenders may reside in New York are preempted by state law, rendering them invalid.

The court considered Nassau County Local Law 4, which prohibited registered sex offenders from residing within 1,000 feet of a school or 500 feet of a park. The trial level court found that the Nassau County prohibitions were preempted by state laws which already regulate sex offender residency issues. The Appellate Term, New York's midlevel court, reversed, finding that these laws were not preempted. The New York Court of Appeals, the state's highest court, reversed the Appellate Term, settling the issue.

"Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State," noted the court.

The highest court found that the state had clearly indicated its intent to occupy the field of sex offender regulation. Evidence of that fact was found in the significant legislative efforts to manage sex offenders, including legislation that specifically acknowledged the "well-intentioned" local ordinances that were making it difficult, if not impossible, for convicted sex offenders to find suitable housing. That legislation, Chapter 568 of the Laws of 2008, directed state agencies to promulgate rules relating to the housing of sex offenders, in order to address the difficulties faced by sex offenders trying to find residency.

While the court determined that the doctrine of preemption prohibited local government restrictions such as the Nassau County regulation, the Justices also noted the inherent problems associated with sex offender residency restrictions in general.

"[T]he maintenance and location of acceptable housing for sex offenders constitutes 'an enormous challenge that impacts all areas of the State' because sex offenders, upon release from prison, typically return to the communities where they previously resided and the proliferation of well-intentioned local ordinances imposing residency restriction has hampered the ability of the State and local authorities to address the difficulty in finding appropriate housing for sex offenders," said the court.

Case:  People v. Diack, New York Court of Appeals, Slip Op. 01376 (February 17, 2015).

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