The Better Part of Valor: Amending Local Sex Offender Ordinances
Michael R. Cobden is assistant city attorney for Grass Valley and Auburn and an associate with the law firm of Colantuono, Highsmith & Whatley, PC; he can be reached at MCobden@chwlaw.us. Teresa L. Highsmith is city attorney for Barstow, Sierra Madre and South Pasadena and a partner in Colantuono, Highsmith & Whatley, PC; she can be reached at THighsmith@chwlaw.us.
A series of lawsuits against California cities has brought the issue of sex offenders in the community back to many city agendas and local public meetings. Two recent decisions by the California Court of Appeal and a case pending before the California Supreme Court effectively limit cities’ ability to enforce local ordinances regulating registered sex offenders who live in their jurisdictions. Few city officials or residents favor the idea of repealing an ordinance intended to protect children from predators, but many cities with such ordinances are being forced to do just that as a result of legal challenges. By moving quickly and carefully, city councils can address the appellate rulings and avoid paying for the privilege of repealing their ordinances.
Background on Sex Offender Laws
Sex offender registries have existed in the state since the 1940s when the City of Los Angeles created the first model, quickly adopted by the Legislature. Since then, federal law has required every state to create a sex offender registry.1 The California version can be found at Penal Code Section 290 and is not compromised by the appellate cases discussed here.2 Essentially, if a person is convicted of committing a crime listed under Section 290, he or she must:
- Register as a sex offender with local law enforcement; and
- Remain registered for the rest of his or her life.
Once registered, he or she must update the registration at least annually. The list of crimes requiring registration is not limited to sexual acts with children; there are various categories of registered sex offenders. It includes many crimes not involving children (such as sexual battery) and crimes that may have no direct victim (such as indecent exposure). Registration information about most registrants is required to be made available to the public under “Megan’s Law” and can be accessed on the state Department of Justice Megan’s Law website.3
Beyond state law, many cities have enacted other kinds of local regulations applicable to where and how sex offenders may reside in the community. Following the recent appellate decisions and depending on how the Supreme Court rules, these ordinances are likely vulnerable to potentially costly lawsuits.
Common Types of Local Ordinances Regulating Sex Offenders
Local ordinances sometimes create increased residency restrictions and prohibitions from entering parks and libraries — and even prevent participation in Halloween trick-or-treating.
Distance Restrictions
The Legislature in 2006 adopted “Jessica’s Law,” a state statute that prohibits a registered sex offender from living within 2,000 feet of any school or park where children regularly gather.4 Jessica’s Law also expressly allows cities, by ordinance, to increase that distance restriction and to include other places a registrant cannot live near, such as libraries, day care centers and the like.5 However, in a case known as In Re: Taylor, the California Supreme Court is currently considering constitutional challenges by sex offenders to Jessica’s Law, including claims that these restrictions effectively banish registered sex offenders from San Diego County.6 Accordingly, many district attorneys are not prosecuting violations of Jessica’s Law, pending the final word from the Supreme Court on its enforceability. Although the Taylor case addresses only the statewide version of Jessica’s Law, local laws that increase the state distance restrictions may also be affected, so it makes sense to wait for the ruling to provide guidance on what cities can and cannot do in this area. In the meantime, cities should probably suspend enforcement of this type of local ordinance. Be aware, though, that a local Jessica’s Law regulation that effectively prevents a registrant from living in a particular jurisdiction may be vulnerable to legal challenge in any event.
Prohibitions From Parks and Libraries
The second type of local regulation is one that prohibits sex offenders from entering parks, libraries or other places children frequent or where they are potentially vulnerable. These differ from the Jessica’s Law ordinances in two important ways:
- They do not regulate where a registrant can live — rather, they regulate where a registrant can go; and
- State law does not expressly provide authority for cities to enact them.
These “Child Safety Zone” laws are particularly common in Orange County. In 2013 the Court of Appeal in People v. Nguyen held that the City of Irvine’s ordinance of this type was pre-empted by California law.7 The court found because the state has fully regulated registered sex offenders’ daily lives, local governments cannot do so unless a statute affirmatively says they can (such as expressly provided under Jessica’s Law).8 Immediately after the case was published, the Supreme Court declined to review it or its companion case, People v. Godinez.9 This effectively means that cities cannot enforce ordinances that regulate where registered sex offenders can and cannot go. Cities with Child Safety Zone ordinances in their municipal codes should therefore — at a minimum — suspend their enforcement and will likely need to repeal or amend them as well to ward off litigation.
Halloween Ordinances
A third kind of local ordinance prevents registered sex offenders from participating in trick-or-treating on Halloween and can take various forms. Such ordinances are a popular target for federal lawsuits because sex offender advocacy groups believe they violate registrants’ First Amendment “rights” to participate in the holiday. These ordinances can be difficult to analyze because small changes can make a big difference in defensibility. For example, limiting application of the ordinance to registrants who have committed crimes against children will dramatically improve a court’s analysis of whether the ordinance is sufficiently tailored to meet the harm it seeks to prevent (that is to say, protecting children from predators). There is no general rule to follow when adopting or amending these ordinances, although requiring a sign to be posted outside a registrant’s home will most likely be considered impermissible compelled speech. Consider asking the city attorney to analyze such an ordinance for potential constitutional violations or other legal issues if your city has one on the books.
Challenges to Local Ordinances Regulating Sex Offenders
Following the appellate court rulings in Orange County and the Supreme Court’s grant of review of In Re: Taylor, cities are facing a wave of lawsuits from registered sex offenders and their champions, demanding the repeal of ordinances like the ones at issue in those cases. It is fair to say ordinances that prohibit all registered sex offenders from entering certain places within a city are highly vulnerable, and cities that did not repeal them after the Supreme Court declined to review the Orange County cases will need to do so. It is wise to repeal such ordinances sooner rather than later, thus avoiding a sex offender advocacy attorney from demanding repeal and “catalyst” legal fees for prompting the repeal action. Depending on how extensive they are, Halloween ordinances may also need to be repealed or substantially amended. However, repealing local residency distance restrictions, such as those authorized by Jessica’s Law, may not be necessary until the Supreme Court ultimately provides guidance in the Taylor case on what cities can and cannot enforce.
What Can Cities Do Now?
How does a city repeal a popular ordinance believed to protect children from sexual predators? Local public officials can do a few things now to potentially soften the blow. First, recognize and publicize the fact that your city is not alone. Dozens of cities have already repealed these ordinances, and some have literally paid for the privilege through attorneys’ fees awarded to plaintiffs who challenged them. At least with respect to the Child Safety Zone ordinances, cities have few or no options at this time. The Legislature enacted the statutes governing sex offender regulation, and the courts have interpreted them to permit very few types of local laws.
In addition, a city should consider amending its ordinance to simply track state law. This approach was successfully implemented by the cities of Lompoc and Hesperia,10 where the local ordinances cite Penal Code sections that regulate sex offenders when they enter or loiter in parks and schools.11 Sometimes it can be more palatable to amend an ordinance rather than repeal it; by tracking what a city is authorized to do under state law, public officials can honestly tell their constituents that they are doing all they can to enforce the law and protect the community. Along the same lines, although it is not likely at this time that the local district attorney will prosecute violations of Jessica’s Law — including your agency’s local residency restrictions — city officials can always ask the Police Department to file violations and forward them to the district attorney for future prosecution when the Supreme Court clarifies the enforceability of those laws in Taylor.
Finally, it may be useful to include public awareness presentations in the meetings at which the city council considers repealing or amending a vulnerable ordinance. The California Sex Offender Management Board publishes a number of balanced and well-researched papers about sex offenders, the registry and how it does (and does not) protect the public.12 This kind of information can be useful in developing staff reports and presentations that better inform the public about the true efficacy of sex offender regulations. It may also defuse some of the angry rhetoric and allow for informed decision-making.
Conclusion
There is no easy answer to the predicament facing local public officials this year as they wrestle with legal rulings that seemingly offer little choice but to amend or repeal popular ordinances intended to protect youth. But the better part of valor may be discretion, and in the end city officials should be aware of the rulings and steer clear of costly lawsuits if possible.
Footnotes:
[1] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act was enacted as part of the Omnibus Crime bill of 1994.
[2] Penal Code section 290 is sometimes erroneously referred to as “Megan’s Law” but that name applies to the public posting of registrant information mandated under Penal Code Section 290.46. Section 290 itself predates the trend of naming laws after a high-profile victim of a horrific crime.
[3] http://www.meganslaw.ca.gov
[4] Penal Code § 3003.5(b)
[5] Penal Code §3003.5(c)
[6] In re Taylor Cal. Sup. Case No. S206143. The case arose in San Diego County and addressed the alleged banishment of registrants throughout the county. It has been fully briefed since June 2013, but no argument date has been set as of publication of this article.
[7] Irvine, like many cities in Orange County, adopted a local ordinance modeled on the county’s “Child Safety Zone” ordinance. The county’s ordinance was struck down in an unpublished decision: People v. Godinez, Court of Appeal Case No. G047657.
[8] People v. Ngyuen (2014) 222 Cal.App.4th 1168
[9] Godinez involved very similar facts to the Nguyen case, but was not published.
[10] My thanks to Lindsay Tabaian, assistant city attorney for Hesperia, and Eric Dunn, Hesperia city attorney, for providing this strategem.
[11] For example, Penal Code section 3053.8 prohibits park access to registrants on parole who victimized children under 14 years of age. Also, section 653b prohibits all registered sex offenders from loitering “about any school or public place at or near which children attend or normally congregate” if asked to leave by a police officer or authorized school official. These restrictions may not be as stringent or effective as those in the local ordinances invalidated in Ngyuen, but they may ease residents’ concerns about a city removing all additional local restrictions from its municipal code.
Photo credit: Yellowj/Shutterstock.com; Angelo Gilardelli/Shutterstock.com
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
This article appears in the October 2014 issue of
Western City
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