Former sex offender challenges residence restrictions

On Oct. 2, 2017, the U.S. Supreme Court denied a petition for certiorari in Snyder v Doe, a decision from the 6th U.S. Circuit Court of Appeals that said that Michigan’s sex offender registration law violated the Ex Post Facto Clause’s ban on retroactive punishment. The law restricted where former sex offenders could live.

The 6th Circuit is at odds with many other opinions that have rejected constitutional challenges to sex offender laws, but that didn’t convince the Supreme Court to take the case. The court invited the Solicitor General to file a brief, but he declined, saying the case was correctly decided.

Some observers say that Snyder could persuade other courts to take a hard look at sex offender restrictions, particularly since the court expressly recognized scientific studies showing that sex offenders as a group do not pose a significant recidivism risk.

John Tunheim

Thomas Evenstad, now a resident of West St. Paul, is asking the Minnesota District Court to do that very thing. He is suing the city of West St. Paul over its ordinance that prevents him from living within 1,200 feet of a school, child care facility or group home. He secured an ex parte temporary restraining order preventing him from being evicted on Oct. 1 and his request for a preliminary injunction is pending before Judge John Tunheim.

Evenstad, 52, was convicted in 1999 of first degree criminal sexual conduct involving an 18-year-old. He was also convicted of felony stalking in 2014. The West St. Paul ordinance was adopted in 2016. The house in which he rents a room is within 1,200 feet of a day care and a group home — as is most of West St. Paul, his pleadings note. He has a job at Burlington Coat Factory in West St. Paul.

Evenstad argued in his pleadings that the West St. Paul ordinance violates the Ex Post Facto Clause, which forbids governments from imposing retroactive punishment or retroactively increasing punishment for a crime. The ordinance imposes punishment, he asserts, because “banishment is a form of punishment,” as the Court of Appeals observed in Snyder.

It also imposes disabilities and restraints as well as promoting the traditional aims of punishment, including incapacitation, retribution and deterrence, he argues.

And, Evenstad argues, the ordinance’s restrictions are excessive with respect to their nonpunitive purpose of protecting public safety because there is no individualized consideration of risk, it applies to persons who have never offended against a minor and there is scant evidence that residency restrictions are effective.

That means that the law is not rationally related to a nonpunitive purpose, Evenstad argued. He argued that research casts doubt on the U.S. Supreme Court’s rationale in Smith v. Doe, decided in 2003, which was that the risk of recidivism posed by sex offenders is frightening and high. “[R]esearch shows that residential proximity to schools, day cares and other places where children congregate has no effect on re-offense rates,” he states in his brief.

8th Circuit disagrees

But, enter 8th Circuit precedent. Defendants assert that in two decisions, Doe v. Miller and Weems v. Little Rock Police Department, the 8th Circuit has conclusively decided that a residency restriction against a convicted sex offender does not violate the Ex Post Facto Clause. The plaintiff is unlikely to succeed on the merits given this precedent, and the District Court should reject the plaintiff’s attempt to overturn those cases, which are indistinguishable from Evenstad, defendants argue.

In Miller, the 8th Circuit held that a 2,000-foot residency restriction for convicted sex offenders did not violate the Ex Post Facto Clause. The purpose of the law was regulatory even though it imposed difficult conditions on offenders, the court said. It unquestionably had a rational basis to the legitimate purpose of protecting society.

Relying on Smith v. Doe, “The Eighth Circuit concluded that in light of the high risk of recidivism posed by sex offenders, the legislature reasonably could conclude that a residency restriction would protect society by minimizing the risk of repeated sex offenses against minors,” defendants said.

The 8th Circuit also upheld a 2,000-foot requirement in Weems in 2006, defendants continue.

In both cases, the 8th Circuit found that residency restrictions were intended to create a civil, nonpunitive regulatory scheme, defendants assert. “This Court has no reason to conclude otherwise, and it must give deference to the ordinance’s stated intent,” defendants said. Additionally, the fact that Evenstad’s offense did not involve a minor is not a principled basis for distinguishing the cases, defendants say.

The court should reject the plaintiff’s attempt to overturn Miller based on new research, defendants continue. A rational connection to a nonpunitive purpose may exist even in the light of new studies, and evolving research is not a legitimate basis to depart from the case law.

Furthermore, plaintiff did not demonstrate that irreparable harm would result without a preliminary injunction, defendants continue. Not only is he unlikely to succeed on the merits, but the cost and inconvenience of moving do not constitute irreparable injuries, defendants argue. If a real threat of homelessness existed, that might be irreparable harm, but plaintiff has not demonstrated that he cannot find any alternative housing, the defendants said.

On the other hand, the city has a strong interest in enforcing its ordinance and thereby protecting the public interest. Although it is often in the public interest to protect constitutional rights, “the public interest factor tips against granting a preliminary injunction where the determination of the likelihood of success on the merits indicates that the constitutional claims are improbable. Here, based on Eighth Circuit precedent, Plaintiff has a very low likelihood of success on the merits of their constitutional claim, defendants argue.” Therefore, the public interest favors denying plaintiff’s requested injunctive relief, defendants conclude.

Constitutional limits have to mean something

Evenstad is represented by Chicago attorney Adele Nicholas and local attorney Peter Nickitas. Nicholas is involved with an organization called Illinois Voices for Reform, whose goal is bringing “more rationality” to laws regulating sex offenders, she said. The organization took some cases in Wisconsin because other lawyers wouldn’t do them, and was successful, she said. It won a summary judgment against the village of Pleasant Prairie and, after that, Milwaukee repealed its ordinance, Nicholas said.

“Even though there is some adverse precedent in the 8th Circuit we thought the case compelling enough to take it,” Nicholas said.

Evenstad has a job in West St. Paul earning $11 per hour, which is inadequate for most housing, she said. But he has a family friend willing to give him a chance to get on his feet. “West St. Paul would rather have him living on the street than living where they know where he is. They can’t say how this would make anyone safer,” she said.

Even if Evenstad could find other housing, Nicholas continued, “These constitutional limits have to mean something. We understand how serious sex offenses are. It’s a matter of who punishes and where it stops,” she said.

Eric Janus

Professor Eric Janus of Mitchell Hamline School of Law, an authority on the law involving sexual offenses, agrees with Evenstad’s arguments. Study after study has showed that sex offenders have low recidivism rates, and no study has ever found that residence restrictions are beneficial, he said.

They may be detrimental for several reasons, Janus continued. Unstable housing makes supervision of offenders more difficult and impairs reintegration into the community, with all of its social benefits. For many offenders, connections to the community are inhibitors of reoffending, he said.

“Sex offenders have done their time. We have a system for supervising and reintegrating them. It’s a statewide system and we shouldn’t have individual municipalities making their own laws. That gives municipalities an incentive to say “not in my back yard,” and puts pressure on other municipalities,” Janus said.

“No municipality is entitled to enact laws that are arbitrary and without any basis in fact. When you begin to pass laws with these very detrimental effects on people, at least some courts are starting to say you can’t do that on a whim, without some demonstrable benefit to some public policy that justifies that. More courts have been willing to take a look at whether these laws have a rational relationship or are they detrimental to a public purpose,” Janus said.