IN- Judge to rule on park ban ordinance

While it is likely true that use of a park is not a fundamental right, it is not true that constitutional protections do not apply. A park is a place that is made available to the general public and restrictions on its use or entry into them are probably valid. However, there is a constitutional right to equal access to the park on grounds that are applied equally to everyone that uses them. The court denies Dowell based on criminal record but there is nothing posted in the park which makes that known to anyone, nor does the city strive to find out if anyone else has a criminal record and therefore should also be banned. Hopefully the ACLU will take such a tack when arguing this case. See earlier articles.

8-27-2008 Indiana:

JEFFERSONVILLE, Ind. — An ordinance that prevents a convicted sex offender from watching his son play baseball in a city park is unconstitutional, a lawyer for the American Civil Liberties Union argued.

But the attorney who wrote Jeffersonville's sex offender ordinance said that use of parks is not a fundamental right and constitutional protections don't apply.

Eric Dowdell, 36, is contesting the ordinance in Clark Superior Court. He twice has been denied exemptions from the ordinance to allow him to watch his son play baseball in a park in the Ohio River city near Louisville, Ky.

Dowdell was put on the state sex-offender registry after admitting that he engaged in sexual activity with a 13-year-old girl when he was 21, according to court records. He was given a three-year suspended sentence. He completed a 10-year term on the registry in 2006.

Ken Falk, legal director of the ACLU of Indiana, argued during a hearing Monday that the park rule "bans people who have had no offense in a park" and violates Dowdell's "rights to personal autonomy." He also told Judge Vicki Carmichael there is no evidence that Dowdell presents a particular risk to children in the park.

Attorney Larry Wilder, who wrote the ordinance, argued that cities have the authority to make laws protecting their citizens in city parks.

Carmichael said she would issue a decision after Sept. 12, the deadline for both sides to submit final documents.

Dowdell has previously sought exemptions from the ordinance. In 2007, a waiver was denied because he had not provided all the required documents. A judge denied an exemption earlier this year due to three battery charges against Dowdell since his 1996 sex offense.

Falk said those offenses have no bearing on whether the parks ordinance is constitutional. ..News Source.. by Fort Mills Times