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Monday, October 05, 2009

Ind. Law - "Parks off limits to sex offenders"

Rebecca S. Green of the Fort Wayne Journal Gazette has an overview today on ordinances banning sex offenders from parks:

There are seven public parks in the city of Garrett and just about that many registered sex offenders living in the small DeKalb County city.

And to Police Chief Rex Harpel’s knowledge, there has never been any trouble with sex offenders in those city parks, but as of August, they are no longer welcome in the parks.

In fact, they will be fined $100 the first time they are caught inside the parks and $200 on subsequent offenses, according to the ordinance passed this past summer.

“I don’t anticipate having any problems with it,” Harpel said.

It was time to redo the park ordinance for the city, population 5,681 in 2008, such as setting closing times and banning smoking. Harpel said he wanted to get the sex offender ban in there.

“We want the parks to be enjoyable for everybody,” he said.

Garrett’s is not the only ordinance of its kind in Indiana, though it may be somewhat unusual in the area. And the bans have survived legal challenges to their constitutionality. * * *

Indiana University law professor Craig Bradley said there is no question the state can, by law, place additional limitations on sex offenders listed on the state’s registry, maintained by the Indiana Criminal Justice Institute.

Whether cities and towns can do it is another question, he said.

“Whether municipalities can do it raises issues of deprivations of liberty,” Bradley said.

The state can make additional limitations because it is the state that establishes punishments for crimes, such as prison time and the registry, he said.

Keeping someone from entering a public park could be included in that, all rolled up as a punishment, he said.

Bradley has problems with municipalities doing it because it is not their role in the government, though they can justify such bans under the umbrella of controlling their own parks and deciding who can come and go and when.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said the issue is whether the ban is intended as a form of punishment.

In one legal challenge heard by the Indiana Court of Appeals, the city of Plainfield’s ordinance was held up as constitutional.

The court ruled that while the ordinance was certainly restrictive, it was related to the non-punishment goal of promoting public safety.

Falk appealed that ruling to the Indiana Supreme Court, which declined to hear the case this summer.

In another case, this one challenging the city of Jeffersonville’s ordinance, a part of the law was struck down because the challenge came from a convicted sex offender no longer required to register.

In that case, the appellate court ruled that while the bans have been found to be constitutional, to apply them to people who are no longer required to register – even though their name appears as part of the record forever – is punishment after the fact.

Falk again represented the sex offender in that case, though this time it was the city that challenged the appellate court’s ruling and asked the Indiana Supreme Court to review.

Again the state’s highest court declined.

And with no ruling by the Supreme Court in either case, Falk said the state is left with something less than a definitive position on the bans.

The appellate court’s ruling said in the Plainfield case said the bans are constitutional. But, Falk said, in the Jeffersonville case the court said the bans are unconstitutional when applied to those who no longer have to register.

He wonders whether Garrett’s ordinance may be unconstitutional because of its wording, applying to “individuals listed on the (sex offender registry).”

If it is applied to someone who is no longer required by law to register, but whose name still appears on the list, then it could be found unconstitutional, Falk said.

Posted by Marcia Oddi on October 5, 2009 10:41 AM
Posted to Indiana Law