NH- Decision on Dover sex-offender ordinance may come in November

10-2-2008 New Hampshire:

DOVER — A judge has taken under advisement a registered sex offender's motion to dismiss the city's sex offender ordinance and rule it unconstitutional.

A decision on the matter may not come until November, City Attorney Allan Krans said after the hearing Wednesday afternoon.

The ordinance — Dover City Code, 131-20 — prohibits registered sex offenders from residing within 2,500 feet of a school or day care center. The ordinance was challenged earlier this year by the New Hampshire Civil Liberties Union, which filed a motion to dismiss the ordinance on behalf of registered sex offender Richard Jennings.

During a five-hour hearing at Dover District Court, NHCLU Attorney Barbara Keshen presented the case why ordinances such as the one enacted in Dover don't work. City officials presented why they believe the ordinance has made the Garrison City safer.

The city used six witnesses while Keshen presented just one, Carolyn Lucet, a licensed social worker with experience treating sex offenders. She testified on how these ordinances can sometimes make the situation worse.

"Our expert indicated that she has read all the studies that have come down the pike on these issues and not one study supports these restrictions or indicate they prevent crime," Keshen said. "In fact, there's a good deal of evidence that these ordinances make the community unsafe for children because it destabilizes sex offenders."

That happens because the ordinances can force the offenders underground and sometimes separate them from their loved ones — like what happened with Jennings, Keshen said.

The city presented evidence to show the opposite can happen, as detectives from the Dover Police Department presented statistics that showed a reduction in registered sex offenders and sex assaults in the city, Krans said.

"We presented a case that demonstrated to the court that the City Council enacted the ordinance within its authority and in a rational and reasonable way with a narrow but effective approach to protecting children in Dover," he said.

Former Police Chief William Fenniman and former City Councilor Matt Mayberry also testified on the city's behalf about the origins of the ordinance and why it's effective.

Mayberry proposed the ordinance in 2005 after seeing first-hand in his job as a real estate agent how many sex offenders lived near schools. Fenniman helped him develop the ordinance.

The city also presented two witnesses from the Planning Office to present exhibits of the ordinance map, Krans said.

"We think we got a full and fair hearing, and we feel confident a judge will thoroughly review the case and come up with a decision that's favorable to us," he said.

Keshen, confident she presented a good case, said she believes the ordinance will be ruled unconstitutional.

"I continue to feel this ordinance is unlawful for a variety of reasons and that it doesn't actually achieve what the council hoped to achieve," she said.

When the ordinance was enacted there were 35 sex offenders in the city. Now there are 17.

"What happened to those 18 people?" Keshen asked. "Did they go underground or did they go to neighboring towns? If they (sex offenders) are such a burden like the city claims, why should Rochester, Somersworth and Portsmouth absorb more than their share?"

Both sides have until Oct. 20 to file any new legal briefs and, after that, Judge Mark Weaver said it might take 30 days to render a decision, according to Krans.

Still, it's likely the case will end up in the Supreme Court, as both parties have said they would appeal the decision if they lost.

Jennings, 41, was charged with violating the ordinance in November 2007 after being charged with felony-level failure to register as a sexual offender for not notifying police that he moved from Portsmouth to 175 Locust St. in Dover to live with his fiancee.

Police also charged him with the ordinance violation since 175 Locust St. is located about 1,200 feet from My School Kindergarten at 118 Locust St.

Jennings was convicted in May 2000 on a charge of felonious sexual assault on a minor. Since the victim was 15 at the time of the offense, Jennings is required to register as a sex offender for life.

He was arrested again in April for living at the Locust Street address and still not registering with city police. Jennings had claimed he was living with his parents in Epping, but several neighbors tipped police off about Jennings still living at the address, which led to police performing surveillance in the area.

He recently finished serving a six-month jail sentence for the April charge.

In July, similar ordinances were struck down in New Jersey on the grounds they were pre-empted by state law. ..News Source.. by AARON SANBORN