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Tuesday, February 12, 2019

Federal Court Finds Child Sex Offender Residency Restrictions Unconstitutional

Last year we reported that the Illinois Supreme Court upheld a state statute making it unlawful for a sexual predator or a child sex offender to knowingly be present in any public park or on real property comprising any public park. Illinois law also makes it unlawful for a child sex offender to reside within 500 feet of a school, playground, or any facility providing programs or services exclusively directed toward people under age 18.  Recently, however, a federal district court case found unconstitutional a municipality’s attempt to impose stricter residency restrictions on child sex offenders.  While the case is not directly applicable in Illinois, the decision is instructive for those local governments seeking to impose similar restrictions.

In 2016, the Village of Pleasant Prairie, Wisconsin adopted an ordinance prohibiting child sex offenders from residing within 3,000 feet of schools, day care centers, parks, trails, playgrounds, places of worship, athletic fields used by minors, or any other place minors were known to congregate.  The ordinance also prohibited offenders from moving into the Village unless they were already domiciled there, restricted offenders from living within 500 feet of one another, and prohibited offenders from leasing property.  The effect of the ordinance made more than 90% of the Village off-limits to child sex offenders with most of the available property in rural locations.

In Hoffman v. Village of Pleasant Prairie, a federal district court found these restrictions retroactively punished offenders and violated equal protection.  The prohibition on leasing property to offenders and the 90% ban on available locations effectively banished offenders from the Village.  Without making any individualized assessment of a particular offender’s conduct or undertaking any objective studies, the court found the Village’s laws had a criminal rather than civil purpose effectively punishing the offenders a second time for the same offense.

The court also found the ordinance treated the same class of offenders differently, allowing those domiciled in the Village to stay while banning others.  Even though the offenders were not a protected class, and the Village only had to provide a reasonable basis for the distinction, because the Village could provide no evidence to justify the distinction the court found it had violated plaintiffs’ right to equal protection under the law.

The case does not establish bright-line limits regarding what types of residency restrictions a municipality may impose.  Instead, it holds that even ordinances having a clear public purpose, in this case protecting children against the risks of recidivism by convicted child sex offenders, must still be supported by evidence in the record supporting restrictions that infringe on constitutional rights.

Post Authored by David Warner, Ancel Glink


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