Sexual Offender Ordinances

by Karen A. Feld on October 9, 2014

posted in Law Enforcement, Sex Offenders,

Local entities (cities and counties) have been faced with legal challenges to their sex offender ordinances that were passed after Jessica’s Law in 2006. They are also faced with frustrated citizens who demand the most restrictive ordinances possible, without realizing the legal limitations. It is important for entities to understand the background for these laws, recent court developments and future legislation.

Legal Background

Penal Code Section 290 requires someone who is convicted of certain sex crimes to register with the Chief of Police within five working days of coming into a city for the rest of their lives as long as they reside, work, or attend school in California. A violation of this law can be a misdemeanor or felony, depending on the underlying offense. The list of crimes requiring registration can also include sexual battery and indecent exposure.

State laws regulate sex offenders as follows:

Sex offenders must obtain permission from his or her parole agent before entering a park (Penal Code 290);
Sex offenders may not reside within 2,000 feet of a school (Penal Code 290) or park where children regularly gather (Penal Code 3003.5(b)). (The 2,000 foot residency rule applies only to a registrant’s future release onto parole (In re E.J. (2010) 47 Cal. 4^th 1258))
Unrelated sex offenders on parole may not live together in the same household, with limited exceptions (Penal Code section 3003.5(a));
Sex offenders may not enter a child daycare or adult residential care facility without first notifying the staff of the 290 registration status (Penal Code 290);
Sex offenders may not accept any job working with minors if the victim in the offender’s underlying crime was 16 years old or younger (Penal Code 290);
Sex offenders may enter the grounds of a secondary school (K-12) without prior written permission of the school’s principal (Penal Code 626.81(a));
State 290 parolees must be wear a GPS ankle tracking device (Penal Code 3004; 3000.07 and 1202.8);
If State 290 parolees were convicted of an offense involving a victim under the age of 14, they are prohibited from being in any park without prior express approval from his or her parole agent (Penal Code 3053.8);
Parole can be extended for 10 years or more;
Sex offenders must disclose their status in certain professional and volunteer positions where they may be in unaccompanied or physical contact with minors, and forbids employment where direct, unsupervised contact with children under the age of 16 is involved (Penal Code 290.95).

Local ordinances have attempted to regulate sex offenders using (1) Residency Restrictions, (2) Location Restrictions and to a lesser extent, (3) Holiday Restrictions. Their success has been somewhat stymied by the courts.

Residency Restrictions

Jessica’s Law (officially called the Sexual Predator Punishment and Control Act (SPPCA)) was adopted by statewide initiative (Proposition 83) on November 7, 2006. The residency restrictions set out in Penal Code 3003.5 (b) and (c) provide as follows:

It is unlawful for any 290 registrant to reside within 2000 feet of any public or private school or park where children regularly gather.
Nothing in this section shall prohibit municipal jurisdictions from enacting local ordinances that further restrict the residency of any such registrant.

The Department of Corrections enforces the 2000 foot residency restriction. The provisions of Jessica’s Law above (in bold) provided the basis for cities and counties to adopt stricter Residence Restrictions.

The California Supreme Court is currently considering constitutional challenges by sex offenders to Jessica’s Law, including claims that these Residency Restrictions effectively banish registered sex offenders from entire counties. (In Re: Taylor, Cal. Sup. Case No. S206143). No oral argument date has been set.

Location Restrictions

Restrictions on where a sex offender physically may be present, as opposed to where he or she may live, are referred to as Location Restrictions, “child-safety zones,” and/or “anti-loitering” statutes. Local ordinances were passed to prohibit sex offenders from being present at parks, libraries, or other places children frequent or where they are potentially vulnerable.

As discussed below, local ordinances regarding Location Restrictions were struck down by the courts in People v. Godinez and People v. Nguyen.

Holiday Restrictions

Other entities took it one step further and prohibited sex offenders from participating in Halloween activities such as trick-or-treating or requiring 290 registrants to post warning signs outside their home. These ordinances will probably be challenged on free speech grounds.

Legal Attack on Location Restrictions

The doctrine of Preemption means that state laws have priority over local ordinances on the same subject.

Under article XI, section 7 of the California Constitution, a city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general [state] laws. If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. A conflict exists if the local legislation “duplicates, contradicts or enters an area fully occupied by general law, either expressly or by legislative implication.” O’Connell v. City of Stockton (2007) 41 Cal. 4th 1061.

Two cases were decided which struck down Location Restriction ordinances. In People v. Godinez (Orange County) (2014) Case No. G047657 (unpublished) and People v. Nguyen (Irvine) (2014) 222 Cal. App 4^th 1168, registered sex offenders violated a local ordinance prohibiting their presence in a public park. They argued that the local ordinances were unconstitutional because state law already covered restrictions on sexual offenders.

The Court of Appeal in People v. Nguyen held that the City of Irvine’s location restriction was preempted by California law.The court found because the state had regulated registered sex offenders’ daily lives, local governments could not do so unless the legislature affirmatively permitted it.

The California Supreme Court did not grant review of the decisions which means that the lower court decisions stand.

However, these two cases addressed restrictions as to where sex offenders could be present; they did not address where a sex offender could live. As indicated above, legal challenges to sex offender residency restrictions are still pending in the California Supreme Court.

Reaction to the Lawsuits

Frank Lindsay, and his attorney Janice Bellucci, have filed lawsuits in federal court against cities all over California starting with the City of Carson in April 2014. So far, 22 lawsuits have been filed. The section below entitled “Local Entity Responses to Sex Offender Ordinances” shows the status of which cities have been sued and their response.

In response, cities have stopped enforcing their ordinances, actively repealed them or amended their ordinances to follow state law.

National City, Victorville, and Carson have not settled the cases and have not repealed their ordinances.

Riverside County recently repealed their ordinance only as to the Location Restrictions but kept their Residency Restrictions.

New and Pending Legislation

The most recent legislation is SB 57, which creates a felony for any person who willfully removes or disables, or willfully permits another to remove or disable the GPS affixed to his or her person. This was signed on October 12, 2013. (Penal Code Section 3010.10).

Some of the proposed legislation is as follows:

AB 321 – Requires law enforcement to check new residence of registrant to ensure registrant does not live at a place where children are services such as day care centers or foster homes. If the registrant is living in such a place, s/he would be required to move within 60 days. (Assembly Member Donnelly, Republican, Hesperia)

AB 992 – Would require juveniles placed on probation or parole for committing or attempting to commit sex offenses (assault with intent to commit rape, sodomy, oral copulation and other crimes) to register as a sex offender effective January 1, 2014. (Assembly Member Perea, Democrat, Fresno)

SB 386 – Permits local entities to pass Location Restrictions such as parks, beaches, museums and libraries and private locations such as movie theaters, bowling alleys, and arcades. (Senator Correa, Democrat, Orange County). This Act will amend Penal Code 290.03(c) to stated that Legislature does not preempt local agencies from enacting ordinances that restrict where persons required to register pursuant to Section 290 may go within a municipality.

AB 702 – Will create a tiered registry bill and allow some 290 registrants to leave the registry 10 or 20 years after conviction if they have not committed a subsequent sex-related offense. (Assembly Member Ammiano, Democrat, San Francisco)

Outlook

It is important for local entities to recognize the challenges that face their Sex Offender Location Restriction Ordinances. Given the challenges, local entities can either (1) fight the inevitable lawsuit and risk a loss (plus paying attorneys fees), (2) repeal the ordinance, (3) amend the ordinance to comply with state law or (4) pass a Resolution indicating that the ordinance will not be enforced pending a decision by the California Supreme Court.

LOCAL ENTITY RESPONSES TO SEX OFFENDER ORDINANCES

Santa Barbara County

Lompoc – Lindsay filed federal lawsuit 4/21/14; settled

Kern County

Wasco – Lindsay filed federal lawsuit 5/15/14; settled
Taft – Lindsay filed federal lawsuit 5/29/14; settled
Tehachapi – repealed 6/14

Tulare County

Porterville – repealed 6/14
Shafter – not enforced

San Joaquin County

Stockton – Lindsay filed federal lawsuit 5/27/14; repealed ordinance 7/14

El Dorado County

County – repealed 1/2014
Placerville – repealed 6/2014
South Lake Tahoe – Lindsay filed federal lawsuit 3/31/2014; settled

Sacramento County

County – Lindsay filed federal lawsuit 4/30/14; settled
Galt – repealed 6/3/14

Los Angeles County

Pomona – Lindsay filed federal lawsuit 3/24/14; settled
Carson – Lindsay filed federal lawsuit 4/11/14; council did not repeal or revise ordinance after meeting on 8/5/14
Bell Gardens – repealed 7/31/14
Pasadena – Lindsay filed federal lawsuit 9/9/14; settlement pending
Commerce – Lindsay filed federal lawsuit 10/2/14
South Pasadena – sued 9/14
Sierra Madre – not enforce 12/2013
Simi Valley – federal lawsuit filed 9/12

San Bernardino County

Hesperia – Lindsay filed federal lawsuit 7/24/14; settled 8/14
Beaumont – Lindsay filed federal lawsuit 6/24/14; settled
Adelanto – Lindsay filed federal lawsuit 7/21/14; settled
Ontario – Lindsay filed federal lawsuit 5/21/14; settled
Victorville – Lindsay filed federal lawsuit 8/14; no settlement
Redlands – repealed 4/14
Loma Linda – will not enforce 3/2014
Grand Terrace – will not enforce 3/2014
Lancaster – TRO filed 1/2013; repealed 3/2013
Palmdale – repealed 4/2013

Orange County

County – ordinance struck down (required sex offenders to get permission before entering a city or county park) (People v. Godinez) – Lindsay filed federal lawsuit 6/17/14; settled
Irvine – ordinance struck down (People v. Nguyen) 222 Cal. App 4th 1168 (2014)
Fullerton – repealed
Santa Ana – Lindsay filed federal lawsuit 5/7/14; repealed 6/3/14
Tustin – repealed
Anaheim – repealed 10/12
Costa Mesa – repealed
Lake Forest – repealed 12/12
Westminster – Lindsay filed federal lawsuit 8/29/14; settled
Mission Viejo – repealed 6/2/14
Huntington Beach – repealed 3/2013

Riverside County

County – repealed 7/29/14 (eliminated the anti-loitering provisions while retaining the rules on where sex offenders can live and with whom).
Menifee – repealed
Canyon Lake – Lindsay filed federal lawsuit 9/24/14

San Diego County