Friday, September 18, 2009

MA - ACLU fighting town sex offender law - Lawsuit says exclusion zones unconstitutional

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By David Still II

A Barnstable ordinance restricting where registered sex offenders can live is being challenged in Barnstable Superior Court as being in violation of both the U.S. Constitution and the Massachusetts Declaration of Rights.

The ordinance in question is the Barnstable Active Safety Information for Child Awareness, known as BASIC. Among its provisions is a 2,000-foot exclusion zone from places where services to children are provided for sex offenders registered categorized by the state at levels 2 or 3 "by reason of a sexual offense against a child."

The American Civil Liberties Union of Massachusetts (Email) (ACLU) is representing the plaintiff, and filed the 39-page complaint in Barnstable Superior Court in late August. It is the first challenge of residential restriction ordinances in Massachusetts.

The plaintiff, allowed by the court to proceed under the pseudonym "Mark Moe," is described as 34 years old and living with a family member in Barnstable. His classification as a level 2 sex offender stems from a juvenile California case when he was 16. According to the complaint, Moe was found delinquent for engaging in sexual acts with his 13-year-old girlfriend. According to the complaint, this is his only offense.

"Because the ordinance effectively forecloses all of the housing options in town, the plaintiff will be forced to leave Barnstable and, because he is indigent, will become homeless," the introduction to the complaint reads.

The town has agreed to suspend enforcement of the ordinance on the plaintiff while the case is pending.

Barnstable Assistant Town Attorney David Houghton said the town served a motion to dismiss this week, which has been received by the plaintiff’s attorney.

ACLU’s John Reinstein, lead attorney in the case said that in general, the issue of residential restrictions on sex offenders "one that we’ve been concerned with."

In addition to seeking a permanent injunction against the enforcement of the BASIC ordinance against the plaintiff, the complaint asks the court to enter a declaratory judgment that BASIC ordinance violates the Home Rule Amendment and violates the Fifth and Fourteenth Amendments to the U.S. Constitution and articles 1,10, 12 and 24 of the Massachusetts Declaration of Rights.

The plaintiff also seeks court costs and "further relief as this Court deems appropriate."

A statement on the ACLU of Massachusetts Web site ( explains the organization’s opposition to such restrictions: "The empirical data suggest, however, that these measures are not only ineffective, but may actually increase the likelihood of sex offenses. In addition, they raise serious constitutional questions by infringing upon well established civil rights."

Since going into effect in February 2007, the Barnstable Police Department has issued 20 citations under BASIC all to separate individuals.

The Plaintiff

Moe moved to Massachusetts in 2000 to be near family and registered as a sex offender in 2007, although "he contests his obligation to register in Massachusetts." Moe also says that he was not informed of his right to a hearing by the Sex Offender Registry Board, which classifies offenders a at one of three levels, low, moderate and high for risks of re-offense.

Moe is classified as a level 2 offender based on the California case.

The plaintiff has had difficulty finding and holding a job, due in part, according to the complaint, to his status as a registered sex offender. He moved to Barnstable in January, accepting the offer of a cousin. That residence is described in the complaint as being on Pitcher’s Way in Hyannis. His mother lives a short distance away, according to the complaint.

On Feb. 17, 2009, Barnstable Police served Moe with a citation for a single violation of the BASIC ordinance, which carried a $300 fine. Failure to pay the fine or request a hearing within 21 days could result in a criminal complaint being issued.

According to the court filing, Moe did request a hearing, but the town applied for a criminal complaint on Feb. 27. That resulted in a court magistrate issuing a criminal complaint, which is pending in Barnstable First District Court.

The Town of Barnstable has relied upon the Massachusetts Home Rule Amendment as the basis for some of its more progressive legislation and legal positions. Among the arguments put forth in the complaint is that the town’s BASIC ordinance exceeds its permissible scope under Home Rule.

The stated purpose of the BASIC ordinance is "to advance the public safety and welfare of the residents of the Town of Barnstable by making certain environmental information and controls available for the benefit of children and those who care for children."

It was approved by the town council in late 2006 and went into effect in February 2007.

"The Barnstable residency restriction at issue here violates the Home Rule Amendment and Act because it is inconsistent with a number of different statutes formulated to monitor the whereabouts of sex offenders," the complaint reads.

Moe argues that the state’s statutory scheme for regulation of sex offenders preempts local legislation.

"Local residence restrictions for sex offenders such as the BASIC ordinance significantly interfere with the implementation of state law and policy," the complaint reads.

"The ordinance is not rationally related to any legitimate governmental objective and subjects the plaintiff Moe to arbitrary, capricious and unreasonable restrictions on his freedom of movement, association and residence," the complaint reads.

The ACLU is expected to file an opposition to the motion to dismiss, after which a hearing before the court will be filed.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of a civilization. We must have a desire to rehabilitate into the world of industry, all those who have paid their dues in the hard coinage of punishment." - Winston Churchill (United States Constitution)

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