FORT WAYNE, Ind. (CN) – A federal judge in Indiana ruled that the loitering ban in a city’s sex-offender ordinance retroactively punishes convicted sex offenders in violation of their 14th Amendment rights.
The ruling arises from a federal class action filed by the American Civil Liberties Union of Indiana last year on behalf of convicted sex offender and Indiana resident Brian Valenti, and any convicted sex offenders who may live in, travel to, or simply visit someone in Hartford City, Ind.
Hartford City Ordinance 2008-01, titled "regulation of sex offenders," prohibits the presence of sex offenders near parks, schools and other places children most commonly frequent. "Child safety zones," as designated by the town, also include libraries, bowling alleys, child care facilities and youth centers.
Valenti, who was convicted by a California court in 1993 of lewd and lascivious acts with a child under 14 years of age, moved to Indiana in 2014. Upon establishing Indiana residence, he complied with state law and registered as a sex offender.
Valenti claims Hartford City’s ordinance prevents him from being an effective parent because he cannot enter his child's school, take her to the library, drop her off or pick her up at child care, or attend youth center activities with her, among other restrictions.
At the center of the 2015 lawsuit is the loitering ban included in the ordinance. As written in 2008, the ban makes it an offense for registered sex offenders to “knowingly loiter on a public way within 300 feet of a child safety zone.”
U.S. District Judge Theresa Springmann ruled Thursday that the loitering ban is unconstitutionally vague.
"There is no indication of how long a person must be standing or sitting, or remaining in an area, before he is in violation of the ordinance," Springmann wrote in a 32-page opinion. "The subjective standard is not tied to any other objective criteria by which enforcement would be required to rely upon before finding a violation."
Springmann used a practical example to illustrate her point.
"For example, the YMCA in Hartford City, which is a child safety zone, is within 300 feet of a grocery store and a restaurant. Normal community activity would include sitting at a table in the restaurant, or even sitting in a car waiting for a take-out order,” the judge wrote. “Both restaurants and parking lots are included in the definition of a 'public way' where loitering (sitting idly) is prohibited. Whether sitting in the restaurant is a violation of the ordinance depends on how a police officer would subjectively choose to characterize the purpose." (Parentheses in original.)
After the ACLU filed the lawsuit in 2015, Hartford City amended its definition of "loiter" to "remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim."
But Springmann ruled that the intent of the sex-offender registry ordinance – public safety – does not offset its unconstitutional effects.
Ordinance 2008-01, she said, is "so punitive in effect that it has been transformed into a criminal penalty despite its regulatory intent."
"Considered as a whole, the ordinance imposes substantial affirmative restraints on [Valenti] that he did not have fair warning of when he committed his offense in 1988, or was convicted in 1993,” the judge wrote.
"Whether a person who is remaining within 300 feet of a Child Safety Zone is attempting to 'locate' a 'potential victim' would invite police officers to guess at the person’s intent, potentially without the benefit of any action other than sitting in proximity to children,” Springmann said. “The ordinance thus fails to provide adequate guidance and authorizes arbitrary and discriminatory enforcement.”
Thursday’s ruling only applies to Hartford City’s loitering provision and does not enjoin all enforcement of the sex-offender registry in Indiana.
"It is only the inclusion of the loitering prohibition that creates a due process violation. Thus Hartford City is enjoined from enforcing it against plaintiff Valenti. The remainder of the ordinance has not been challenged, and remains intact and enforceable,” Springmann ruled.
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