NH- Sex offender restrictions face reversal

8-5-2009 New Hampshire:

Dover's loss may extend westward

Four local communities could be forced to re-examine their sex offender residency restrictions after a district court judge ruled Dover's ordinance unconstitutional.

Franklin, Tilton, Northfield and Boscawen have sex offender ordinances based on Dover's, which in 2005 became the first community in the state to enact the residency restrictions. On Friday, District Court Judge Mark Weaver rejected the ordinance, saying it violated equal protection rights because the state had not proved it worked.

Barbara Keshen, of the New Hampshire Civil Liberties Union, said she expects the ruling to reverberate throughout the state.

"If the Dover ordinance is unconstitutional, so are the others," said Keshen, who represented Richard Jennings, a convicted sex offender, in the Dover case. "The problem is, as the judge said, (Dover) never justified the ordinance . . . and neither did these towns."

Police chiefs and town officials in Franklin, Tilton and Northfield said yesterday they will continue to enforce the ordinances while waiting to see whether Dover appeals the decision.

"What we're advised to do, obviously, we will do," said Franklin police Chief David Goldstein. "I think it's a little early to say right now. . . . For the time being, we're going to continue along the way we have been so far."

Dover's ordinance banned sex offenders from living within 2,500 feet of a school or day care. City officials began considering the restrictions in light of concerns raised by residents, and they drafted an ordinance that met with the city attorney's approval - avoiding provisions that led courts in other states to shoot down similar ordinances.

They did not, however, consult with experts or conduct research, Weaver noted in his ruling. And though officials acted with a legitimate interest in protecting children, they couldn't prove the ordinance had, in fact, protected children, Weaver wrote.

"The State has not produced any evidence showing a causal connection between the residency restrictions and the protection of minors," Weaver wrote. He added that "unexamined 'common sense' is insufficient under the standard set by the New Hampshire Supreme Court for the review of an ordinance that impairs a substantive constitutional right."

Keshen, who has decried the ordinances as feel-good measures that don't benefit public safety, said she hoped the decision would spur discussion about residency restrictions.

"These kinds of laws have been in existence now for about 10 years . . . and, rather than protect children, may have the actual consequence of harming them, by destabilizing sex offenders, driving them underground," she said. "These residency restrictions do not work.

"Global positioning works," she continued. "Improved and better counseling works. Having more probation officers that can actually monitor someone, as they reintegrate into the community, those kinds of things work. But they cost money."

Goldstein, who said he had read the ruling but declined to comment on it, said it could be too early to evaluate whether sex offender ordinances work.

"It's going to take a while to develop research paradigms and then find legitimate avenues to study this," he said. "That's the same with any research. You could take out 'sex offender' and you could put in 'cigarette smoker.' Are we really preventing disease by limiting people from smoking in bars and restaurants?"

Franklin adopted its ordinance in 2007, and the city's mayor, Ken Merrifield, said he believes "it's worked quite well."

He mentioned situations where sex offenders weren't able to live where they wanted, "but I personally feel that has a lot more to do with the state's definition of a registered sex offender than it does with the ordinance," he said.

Merrifield said he had not yet read Friday's ruling, but he said that in the past, the city's attorney has advised that "unless it's your ordinance that's been ruled upon, you really should not take much stock in another ruling" in a different part of the state.

Tilton Town Administrator Joyce Fulweiler also said she had yet to read the ruling, but "it's fair to say the selectmen will be reviewing the decision, reviewing the ordinance and talking with our police chief," she said. "And we'll go from there."

In Northfield, eyes are on Dover. Town Administrator Glenn Smith said police Chief Stephen Adams has indicated "he's pretty much going to wait and see if this gets appealed to the Supreme Court."

Dover police Chief Anthony Colarusso said yesterday the city is weighing its chances before going forward with an appeal.

"We were disappointed in the decision," he said. The city is no longer enforcing its ordinance, which Colarusso said he considered "one tool in the toolbox to protect children."

Colarusso said the judge "used a high standard" in his decision since it's hard to prove the effect of the restrictions - as with other prevention programs, he said.

"It's very difficult to prove a negative," he said. "I don't know if we prevented an assault."

He does know, he said, that at least seven or eight offenders who tried to move to a restricted area in Dover ended up living elsewhere - mostly outside the city. "There lies one of the issues, to be honest," Colarusso said. "If Dover restricts offenders, and they just move to the surrounding town, that's just displacing people to a different area. That's probably one of the factors in the ruling about its effectiveness." ..Source.. by MADDIE HANNA, Monitor staff




Judge nixes one city's sex-offender law

A registered sex offender has won his legal battle against Dover's sex-offender ordinance after a District Court judge ruled it unconstitutional.

The decision is applies only to the Dover ordinance, but an appeal to the state Supreme Court could have significant legal implications for other communities with similar ordinances.

Franklin is one of the communities with such an ordinance and it is not interested in changing it, the police chief said.

In his ruling, District Court Judge Mark Weaver said the ordinance which prohibits registered sex offenders from residing within 2,500 feet of a school or day-care center, is unconstitutional because it violates Richard Jennings' equal protection rights and doesn't accomplish its intended purpose of protecting children.

The ordinance came under challenge last year by the New Hampshire Civil Liberties Union, which filed a motion to dismiss the ordinance on behalf of Jennings.

As a result of the decision, the city will no longer enforce the ordinance, Police Chief Anthony Colarusso said Monday afternoon. In addition, the judge dismissed an ordinance violation charge against Jennings.

"We're disappointed in the ruling and at this point we're weighing our options on whether or not it should be appealed to the (state) Supreme Court," he said.

The city has 30 days to decide whether it will appeal the decision. In that time, Colarusso said he would be consulting with City Attorney Allan Krans, City Manager Mike Joyal and the state Attorney General's Office.

In Franklin, the second community in New Hampshire to enact a similar ordinance, Police Chief David Goldstein said he has read the decision and, until he is directed otherwise, will continue to enforce his city's restrictions.

"I have to believe [the ordinance] has been effective," said Goldstein who was not the chief when his city passed the ordinance two years ago.

When the ordinance passed unanimously, it was May 2007 and there were 27 registered sex offenders in Franklin according the state sex offender registry maintained by the N.H. State Police. A check of the same registry on Tuesday indicated Franklin had 14 sex registered offenders and two who last registered in Franklin but for whom arrest warrants have been issued.

Franklin's ordinance restricts sex offenders from living within 2,500 feet or a school, playground, day care, park or other public place where children are known to congregate.

In March of this year, the city faced its own challenge spearheaded by the NHCLU but the case was dropped when NHCLU attorneys and the plaintiff, Frank Singleton III, were unable to agree on the goals of the suit.

In his ruling, Weaver said because the ordinance impacts the rights of certain individuals to use and enjoy property, he applied an intermediate scrutiny test, which evaluated whether the state provided evidence showing the ordinance met its objective of protecting minors.

During a hearing at Dover District Court in October, police testified that both the number of sex offenders and sexual assault cases in the city had gone down since the ordinance passed in 2005. However, on cross-examination police were not able to show a significant decrease in prosecutions for sex crimes against children and in one case there was an increase.

"In any event, given the statistics were based upon such small numbers, and were provided with no other information or analysis to make them meaningful, the court finds that they cannot be used to draw any conclusions relating to the ordinance," Weaver wrote in his ruling. "In order to attribute any meaning to them, the State would have to present significantly more factual information, which it failed to do."

Weaver went on to say the ordinance doesn't prevent sexual offenders from being near children as it only restricts how close a sex offender may live to a school or day care center, but doesn't prevent them from otherwise being near these locations.

The ordinance also doesn't protect children from sex offenders living in other areas of the city, Weaver said in his ruling.

"Even if the State could establish that restricting where convicted sex offenders live will reduce the likelihood that they will re-offend, the State has failed to show how a 2,500 foot buffer zone is substantially related to protecting children, as opposed to 1,000 feet or 500 feet," the ruling states.

The NHCLU had also argued that the city didn't have the authority to enact such an order and the state's sex offender laws would preempt any authority the city did have. Weaver didn't agree with those two arguments.

NHCLU Attorney Barbara Keshen said she has been "on cloud nine" since hearing about the ruling and said it reaffirms what she has been saying all along about how these ordinances don't work. She called such ordinances a "feel good measure."

"There's a lot of misinformation and hysteria about sex offenders," she said. "People obviously care about their children and want to see them cared for but legislating out of fear is not a way to accomplish that."

Keshen said she is confident this decision will have an impact on other communities in the state with similar ordinances. In addition to Franklin, these communities include Tilton, Northfield and Boscawen.

Colarusso said he is aware of the potential impact a Dover appeal could have on these communities.

"Certainly if the city was to appeal to the Supreme Court that would be a statewide ruling," he said. "We realize the implications of taking the case to the Supreme Court."

Colarusso didn't set a timetable for when he would have an appeal decision. ..Source.. by AARON SANBORN