Vol. 25 No. 23- Part Of Jessica’s Law Appears To Be Unconstitutional According To L.A. Judge

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.

On November 1, 2010, Los Angeles Superior Court Judge Peter Espinosa ruled that the 2,000 foot restriction, contained in Jessica’s Law, on sex offenders living near schools or parks,  appears to be unconstitutional.  As a result, the judge issued a temporary stay on the enforcement of that part of Jessica’s Law pending further litigation.

The court stated that it “… made a prima facie determination that the petitioners have presented sufficient facts which, if ultimately found to be true, would indicate that section 3003.5(b) is unconstitutional on its face . . . .”  The court noted that it “has not made a final determination on the merits of the instant case . . .” and that the “determination is tentative, not final.”

This is the third action taken by this judge on this matter within the past two months.  [See Jones & Mayer Client Alert Memos

dated 9/3/10 and 9/10/10.]  On August 31, 2010 the judge originally issued an order staying the provision of Penal Code 3003.5(b) “as to all individuals who are subject to the terms of section 3003.5(b) and who are currently serving a term of active parole in Los Angeles County . . . .”  Three days later, on September 3, 2010, he “stayed” that order until a hearing on the petitioner’s motion could be heard.  And now, he has again issued a temporary stay.

On each occasion, the California Department of Corrections and Rehabilitation (CDCR) issued memos to its staff in L.A. County providing direction on how to proceed as a result of the court’s ruling.  The first memo ordered the staff to not enforce the restriction on residency if the parolee lived in L.A. County.  Following the court’s staying its order, CDCR issued another memo cancelling the first one.  Now they have sent out a third memo, directing staff to not enforce the 2,000 foot residency restriction, in light of the latest decision by the judge.

The Court’s Ruling

The judge’s 10 page ruling followed a hearing on a motion filed by the petitioners (four registered sex offenders on parole) wherein the court concluded that the residency restriction was so sweeping in scope that it forced some sex offenders to either become homeless or violate the law.

“The petitioners have alleged immediate and significant harm — namely that the respondent’s enforcement of Pen. Code sec. 3003.5(b) as a condition of parole forces registered sex offenders who are on active parole in Los Angeles County to either become homeless or be sent to prison.”

In support of its action the court stated that “the need for the temporary relief sought by the petitioners grows more patent each day.  In addition to the four named petitioners in this consolidated order to show cause, the court is now in receipt of more than 650 habeas petitions raising nearly identical issues of law and fact.”

Furthermore, the court rejected the respondents argument that the order is overbroad since it has not yet been shown that other parolees will be adversely affected by the law.  “The respondent urges the court to bury its head in the sand and pretend that the hundreds of petitions which continue to be filed each month, and nearly all of which allege present or immediate homelessness as a result of enforcement of Pen. Code sec. 3003.5(b), is not at least preliminary evidence that similar alleged constitutional violations are being imposed upon parolees who have not yet filed petitions. The Court cannot do so.”

The judge stated that, “rather than protecting public safety, it appears that the sharp rise in homelessness rates in sex offenders on active parole in Los Angeles County actually undermines public safety.  The evidence presented suggests that despite lay belief, a sex offender parolee’s residential proximity to a school or park where children regularly gather does not bear on the parolee’s likelihood to commit a sexual offense against a child.”

Results of Court’s Ruling

As stated above, CDCR has now issued a new memo to its staff informing them that they should suspend enforcing that portion of Jessica’s Law which prohibits sex offenders from living within 2,000 feet of a school, park or play area.  CDCR indicated that the state planned on appealing the court’s ruling.

Civil rights attorneys praised the judge’s action arguing that there are virtually no places in which sex offenders could legally reside in many of the state’s densely populated areas such as San Francisco, Los Angeles, and in many other cities and counties.

In February of 2010, the California Supreme Court held that registered sex offenders had standing to challenge the residency requirements if it could be shown that it was impossible to find housing.  Obviously, action by the Supreme Court could negate this court’s ruling.  Time will tell.

HOW THIS AFFECTS YOUR AGENCY

Again, as noted in our earlier Client Alert Memos, this ruling applies only to sex offender parolees residing in Los Angeles

County.  As such, it has no immediate impact on other areas throughout the state.  It is possible, however, that this decision will prompt similar challenges to the law in other parts of the state.

Some [including Jones & Mayer in our previous Client Alert Memo] have raised the question of why the court issuing a countywide stay on enforcement of sec. 3003.5(b), since no testimony has yet been offered to support the need for such broad action.

It is interesting to note that, according to the court, the respondents did ”  . . . not challenge the petitioner’s assertion that the balance of harms, both to the petitioners and to public safety, weighs heavily in favor of the countywide stay.” (Emphasis added.)

The court also noted that “nothing in the instant order precludes the respondent from continuing to enforce the more narrowly tailored residency restriction found in Pen. Code 3003(g) which restricts offenders who have a history of sex offenses against children and who have recently been determined to be “high risk” offenders from living within a half-mile of a school.”

Ironically, Jessica’s Law allows local jurisdictions to establish more restrictive rules than those contained in the state law but it would appear that, in light of the court’s finding that the 2,000 foot rule is unconstitutional, more restrictive laws would also fail.

As always, consultation with your legal counsel is important when confronting legal issues. However, if you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.