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
