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Tuesday, September 05, 2006

Ind. Decisions - 7th Circuit decides Michigan City ban on park use by convicted child molester [Updated]

In Robert Brown v. Michigan City (ND Ind., Robert L. Miller, Jr., Chief Judge), a 27-page opinion, Circuit Judge Ripple wrotes:

On August 1, 2002, Robert Brown was banned from all properties or programs operated by the Michigan City Department of Parks and Recreation. On August 13, 2002, he filed this suit against the City of Michigan City, Indiana (“City”); he alleged that the ban violated his rights to procedural and substantive due process guaranteed by the Fourteenth Amendment. On September 19, 2005, the United States District Court for the Northern District of Indiana granted summary judgment in favor of the City. Mr. Brown now appeals. For the reasons set forth in this opinion, we affirm the judgment of the district court.
The Court references its earlier decision in Doe v. City of Lafayette [for background on the City of Lafayette case, start with this 2004 ILB entry]:
Mr. Brown also contends that the City violated his right to substantive due process when it banned him from entering its public parks. * * *

The right to enter a public park is not among this list [of recognized “fundamental” rights]. In fact, in Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004), we explicitly refused to expand the list of fundamental liberties to include a right to enter city parks. In Doe, the plaintiff previously had been convicted of child molestation. While on probation, he reportedly was seen “cruising parks and watching young children.” * * *

Mr. Brown does not challenge Doe’s conclusion that the right to enter a park is not fundamental. * * * Unlike in Doe, he urges, where the plaintiff was observed engaging in behavior “threatening [and] dangerous” to children, Mr. Brown’s behavior was largely benign: He merely sat alone in his R.V., observing patrons on the beach and in the park.

We cannot accept this argument. Rational-basis review is “highly-deferential.” Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000). To find that a government action violates the requirements of substantive due process in this context, it must be “utterly lacking in rational justification.” Id. (internal quotation marks omitted). In this case, Michigan City park personnel received reports that Mr. Brown had been sitting in his van, watching beach patrons through binoculars; he came to Washington Park once or twice daily; he previously had been seen at a nearby beach watching a family; and he has a criminal record for molesting a child. Of course, there are significant differences between Mr. Brown and the plaintiff in Doe; for example, there is no evidence that Mr. Brown was “[l]ooking for children” or “having . . . urges” while watching children at the park. Doe, 377 F.3d at 759-60 (quoting Mr. Doe’s admissions). Nor can we conclude on the basis of the record before us, as we did in Doe, that Mr. Brown necessarily is heading down a “slippery slope into abuse.” Id. at 773. Nevertheless, the reality is that “children, some of the most vulnerable members of society, are susceptible to abuse in parks,” id., and that the City has a duty to shield them, ex ante, from the mere risk of child abuse or molestation. The ban of Mr. Brown from the City’s parks bears a rational relationship to its goal of protecting the children of its community. As a practical matter of ensuring public safety, Mr. Brown is not just another patron of the public parks. He is a convicted child molester whose frequency of attendance and atypical behavior while in the park justified the concern of those public officials charged with ensuring the safety of members of the public who visit the recreational site.

Mr. Brown responds that, because Michigan City has not chosen to ban all child molesters from its parks, only Mr. Brown, its actions are “fundamentally irrational.” Appellant’s Br. at 34. But the City’s means need not be “narrowly tailored” to its goals; rather, they need only be “reasonably related to [those] goal[s].” City of Chicago v. Shalala, 189 F.3d 598, 607 (7th Cir. 1999). Unlike other persons previously convicted of child molestation, Mr. Brown was witnessed repeatedly in Washington Park watching patrons through binoculars; there is no indication that park officials had seen other sex offenders on City property, engaged in activity similar to Mr. Brown’s. Further, as we concluded in Doe, “[t]here is certainly nothing in the record to suggest the City would act differently when faced with a similar case.” Doe, 377 F.3d at 773 n.14.9

Conclusion. For the reasons set forth in this opinion, we affirm the judgment of the district court.

The district court opinion in Brown is available at the end of this ILB entry from 9/28/05.

[Updated] Charles Wilson of the AP has a brief story this afternoon that concludes:

The appeals court's reasoning was similar to a 2003 ruling upholding a similar law in Lafayette.

Six sexual offenders also filed a federal lawsuit against Indianapolis in May to block a new ordinance that bans them from coming within 1,000 feet of parks, pools, playgrounds and other sites when children are present.

Posted by Marcia Oddi on September 5, 2006 11:52 AM
Posted to Ind. (7th Cir.) Decisions