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Saturday, July 31, 2004

Indiana Decisions - More on the 7th Circuit's En Banc Ruling Yesterday

Yesterday, as reported here by the Indiana Law Blog, the 7th Circuit, sitting en banc, ruled 8-3 to uphold the decision of Judge Sharp of the ND Indiana, banning John Doe for life from all park property in the City of Lafayette (and reversing an earlier panel which had ruled 2-1 against Sharp - access that ruling and discussion here). Bloomberg News covered the decision yesterday with this headline: "Pedophile Can Be Punished for Thoughts, Court Says." The Indianapolis Star has an AP story here.

The Lafayette Courier & Journal has lengthy coverage here in a story titled: "City parks ban upheld: Federal appeals court backs Lafayette's 'John Doe' argument." Some quotes:

In the case, John Doe v. the city of Lafayette, a Lafayette resident -- who was granted anonymity by the courts -- was banned after authorities received a tip that he had been watching children at Murdock Park and having sexual thoughts about them.

The 7th Circuit Court of Appeals, by an 8-3 vote, ruled Friday in favor of the city, reversing a decision made 13 months ago by a three-judge panel of the same Chicago-based federal court.

"We believe that Mr. Doe was banned from the parks because of his thoughts," said Ken Falk, an Indiana Civil Liberties Union attorney representing John Doe, "and that we all have the right to think, and that we should not be punished for those thoughts."

Falk said no decision has been made on whether to appeal the ruling to the U.S. Supreme Court, John Doe's last remaining legal recourse. * * *

John Doe filed the federal lawsuit in November 2000, challenging the parks ban on First Amendment and 14th Amendment grounds.

"Our First Amendment argument was that the reason he was banned was because of what he was thinking," Falk said. "And he did not act on those thoughts, and therefore that violated our basic First Amendment right to think.

"And our 14th Amendment argument was based on the fact that we as citizens have the right to wander and enter public spaces absent some compelling reason, and the compelling reason can't be based on thought." * * *

Lafayette attorney Jerry Withered represented the city in the case.

"The court based its decision primarily on the fact that Mr. Doe's conduct in January 2000 was inappropriate," he said. "His actions of cruising for children, having sexual urges for children, going into Murdock Park, watching these kids for a while and almost molesting them before he left were inappropriate and deserving of a ban from the parks by the city.

"The court held that his conduct was just that -- conduct -- and not speech or thoughts. The distinction is important because the First Amendment protects speech or expressive conduct. The First Amendment does not provide fundamental-right protection for conduct only."

Interestingly, the Lafayette Journal & Courier reporter, Marc B. Geller, also picks up on an Indiana Court of Appeals ruling this week, Travis v. State (7/28/04) (see ILB entries here and here) relating to banning an individual from a Kokomo park:
In a separate case, the Indiana Court of Appeals ruled Wednesday that state law does not authorize police officers to place people on a trespass list or ban them from a public park.

The state appeals court said a Kokomo police officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for trespass. Another officer, Greg Baldini, had encountered Travis and some other people gambling in the park two days earlier and told him not to come back or he would be arrested for trespass.

"We don't think the Kokomo case has any bearing on the John Doe case," Withered said. "First, the Kokomo situation was a criminal trespassing case, whereas this is a civil ban of Mr. Doe from city parks.

"Secondly, the Kokomo case involved a police officer issuing a ban to the individual, and the court of appeals held that the police officer had no legal authority to do so. Here, it was the city parks department, which actually controls all of the park property, which issued the ban to Mr. Doe."

Joe Bumbleburg, attorney for the Lafayette parks department, expects his counterparts across the country will look to the 7th Circuit Court of Appeals decision for guidance.

Finally, accompanying the article is a timeline of the John Doe case.

Posted by Marcia Oddi on July 31, 2004 11:51 AM
Posted to Indiana Decisions