All Illinois local governments that operate public parks should be aware of the recent decision from an Illinois Appellate Court in People v. Pepitone. In this decision, the Court found a statute prohibiting sexual predators and child sex offenders from entering public parks or park buildings unconstitutional.
In Pepitone, the Court was presented with a challenge Section 11-9.4-1(b) of the Criminal Code of 2012. Section 11-9.4-1(b) makes it “unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” The defendant, who had previously been convicted of a child sex offense, was discovered by local law enforcement walking his dog in a public park. The police officer discovered the defendant’s prior conviction after running his license plate, and arrested him for being a child sex offender in a public park in violation of Section 11-9.41-(b). After being convicted at trial, the defendant appealed, claiming that Section 11-9.4-1(b) was facially unconstitutional.
The Court began its analysis by noting that Section 11-9.4-1(b) was clearly meant to protect the public from sexual predators and child sex offenders, but the real question was whether the total ban on previously convicted sex offenders from all public parks and buildings was a reasonable method of protecting the public. The Court noted that two prior decisions had touched on the constitutionality of Section 11-9.4-1(b) and found the ban valid. However, the Court was not persuaded by these prior decisions, finding their analysis incomplete.
Instead, the Court found Section 11-9.4-1(b) unconstitutional on substantive due process grounds because the statute criminalizes innocent conduct, as a person’s mere presence in a public park building or public park, without more, is not unlawful conduct. The Court specifically mentioned that the statute not only prohibits the innocent act of walking a dog in a public park, but also prohibits a child sex offender from attending a wide variety of events in public parks such as picnics, concerts, and rallies. The Court also noted that the statute prohibits a child sex offender from attending a Chicago Bears game or from visiting any of the major museums on the Chicago lakefront because they are located on Chicago Park District property.
Additionally, the Court relied on the fact that that the statute does not require that anyone, particularly a child, even be present in the park or park building for a violation to occur, nor does it attempt to assess the dangerousness of a particular individual or the likelihood of an individual offending again.
Ultimately, the Court found that Section 11-9.4-1(b) is unconstitutional on its face because it is not reasonably related to the goal of protecting the public, especially children, from child sex offenders or sexual predators, and that the statute arbitrarily stripped away the defendant’s rights as a citizen and taxpayer who had already paid the penalty for his crime.
Although the Court found the prohibition contained in Section 11-9.4-1(b) unconstitutional, the Court did not address the constitutionality of a similar provision, Section 11-9.3(a-10), which prohibits a child sex offender from knowingly being present in any public park or park building “when persons under 18 are present in the building or on the grounds and to approach, contact, or communicate with a child of 18 years of age” unless the offender is a parent or guardian of a minor present in the building or park. 720 ILCS 5/11-9.3(a-10). Although this provision was not before the Court, the Court did reference a prior version of the Criminal Code that contained this exact language. The Court noted that, unlike Section 11-9.4-1(b), the language in Section 11-9.3(a-10) at least attempts to tie the child sex offender’s presence to times that minors are actually present in a public park or park building, and also requires that the offender approach, contact, or communicate with a minor for a violation to occur.
Post Authored by Kurt Asprooth, Ancel Glink