50A - ORDINANCE - SEX OFFENDERS - Laserfiche WebLink

Home Browse Search

LEGAL ISSUES EXPLORED: Child Safety Zones - Constitutionality A court will examine each law to determine whether it is narrowly tailored to the government interest. Child safety zone laws appear easier to defend than residency restrictions. Safety zone laws are more narrowly tailored to furthering the interest of protecting children by keeping sex offenders away from areas in which children congregate. The more broadly a restriction sweeps, the more likely a court will find it is not narrowly tailored- The more tailored a law appears to protect children from sex offenders, while still permitting legitimate activities by the sex offenders, the more likely it will survive a constitutional challenge. There are two types of constitutional challenges: (1) a facial challenge, which considers only the text of the law and seeks to void the law as a whole; and (2) an as-applied challenge, which considers the law's application to a particular challenger's facts. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084_) To defeat the entire law in a facial challenge, the challenger must show it "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions." (Ibid.) For example, a particular offender may argue a law aimed at all sex offenders - as opposed to a law tailored to sex offenders whose victims were children - is not narrowly tailored. It seems unlikely, however, that a court would find the law totally conflicts with constitutional principles, since many of the registered sex offenders committed crimes against children. Furthermore, many offenders have both adult and child victims (e.g_ Rodney Alcala as further explained later) while others commit crimes which may lead to future victims (e.g. indecent exposure defendants commit offenses in public places with children). Thus, the law would not be constitutionally overbroad when applied to those offenders. A particular offender could bring an as-applied constitutional challenge. Such a challenge considers whether the law is being applied in a constitutionally impermissible manner- (Tobe v. City of Santa Ana, supra, 9 Cal.4th 1069, 1084.) The court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction. (Ibid.) This could preclude application of the relevant law to a particular sex offender, but would not render the law constitutionally infirm as to others. Retroactivity In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. (In re E.J_, supra, 47 Cal.4th 1258, 1273.) Therefore, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. (Ibid.) In In re E.J., supra, 47 Cal.4th 1258, the court indicated it may be impermissible to apply the 2,000-foot residency restriction to a sex offender who acquired housing before the law's effective date. (Id. at pp. 1275-1276.) The offender would not have had notice of the restriction before the conduct to which the law speaks occurred. (Id_ at p_ 1276, citing Doe v. Schwarzenegger (E-D. Cal_ 2007) 476 F.Supp_2d 1178, 1179, fn. 1 [residency restriction could not be applied retroactively to persons paroled and released from prison prior to the law's effective date].) For our purposes, the last act necessary to trigger application of child safety zone laws would seem to be the offender's unlawful entry and/or loitering upon property within a protected zone. Thus, application to all offenders would not seem to be impermissibly retroactive. 6 5OA-22