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Local Government Q&A Ancel Glink attorneys each month post a new question and answer on the website. Many of these questions have been edited and collected in a pamphlet in the Ancel Glink Library: 230 Questions that have Actual Answers. Set out below are a series of recent questions and answers. Test your knowledge of questions and answers about local governmental bodies with those listed below. Many of these questions are directed to municipalities, but others specifically deal with municipalities with some questions concern legal issues in the context of other governmental bodies. Many of these answers apply to all governments in Illinois.Click here to submit a question to Ancel Glink.
Municipal Q&A - September 2005
Can a local government ban convicted sex offenders from use of public parks?
ANSWER:
Yes. Section 5/11-9.4 of the Illinois Criminal Code prohibits anyone convicted of a sex crime or required to register as a sex offender from being present on or within 500 feet of park property or in any park facility while children under the age of 18 are present. Local governments can monitor or discover who is a registered sex offender by reviewing the Illinois State Police Sex Offender Registry which can be easily accessed via the Internet at www.isp.state.il.us. This information is public and so local governments are entirely within their authority to conduct checks of program registrants and facility pass holders against the Sex Offender Registry list.
The spirit of Section 5/11-9.4 can be taken a bit further and prohibit sex offenders from being present on park property at any time, whether or not children under age 18 are present, but only where the local government has reasonable cause to believe that the person has a predilection to sexual urges directed to or inciting or producing imminent lawless action and is likely to incite or produce such action.
Local governments understandably wish to protect children from sex offenders who cruise parks in search of their next victims. That concern, however, must be balanced against the convicted sex offender's right to lawful use of public property. A government entity runs afoul of the Constitution when it punishes an individual for mere thought. But regulations aimed at conduct which has only an incidental effect on thought, instead of regulating mere thought, has been held to not violate the First Amendment's freedom of mind mandate. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67-68 (1973); Osborne v. Ohio, 495 U.S. 103 (1990). So, the trick in drafting an ordinance that effectively bans a sex offender from use of the public park system is not to focus on prohibiting the person from having sexual fantasies about children, but to prohibit that person from taking dangerous steps toward gratifying their sexual urges by going to a place where the individual is likely to find children in a vulnerable situation.
It is our opinion that local governments can lawfully ban convicted sex offenders from being present on public park property at any time based on our review of the Seventh Circuit's recent decision in Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004). In City of Lafayette, the Seventh Circuit held that an order banning a former sex offender from public parks because the person had thought about reoffending did not violate the Constitution. In January 2000, Doe visited a city park and watched several children playing. He had a long history of sex offenses involving minors and on that evening admitted he thought about initiating a sexual encounter with the children he saw in the park. He did not act on his urges, however, and went home. He later reported the incident to his therapist and support group and began taking medication to control his urges. The Lafayette Parks and Recreation Department was tipped off about the incident and, as a result, issued an order permanently banning Doe from all park property.
In holding for the City, the Seventh Circuit focused on the fact that while Doe stopped himself before he could harm any children in the park, his fantasies certainly made it more likely that he would do so. The evidence showed that Doe, fueled by his urges, and knowing of his dangerous propensity, put himself in a position where he could have acted to satisfy his desires. Doe admitted, for example, that he would likely have acted on his sexual fantasies but for the fact that there were many children in the area and not only one or two. In light of these facts, the court found that the City had reasonable cause to exclude Doe from the parks because, given the context in which Doe's urges occurred and the action they precipitated, they were likely to incite or produce imminent lawless action.
So, if a local government has reasonable cause to believe a sex offender is likely to reoffend through use of the public parks, the public body can prohibit the person from being present on park property. We suggest that the ordinance include measures to ensure that the public body's consideration of a registered sex offender's use of the parks is accurate. We believe that procedural safeguards such as hearing and periodic review of the necessity of the ban will provide a stronger justification for any actions taken. We also suggest that the public body contact their attorney before expelling individuals, particularly where the case involves a close question.
Please contact Robert K. Bush or Stephanie Posey if your public body would like assistance to enact an ordinance on this subject.
Previous Questions
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May a governmental body give money to a charitable or religious organization?
What is the new Illinois law regarding terms of office of elected public officials?
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What Must Municipal Officials Do To Comply With The New Federal and State Overtime Regulations?
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Can a special use or variance be granted only to a particular person for for a limited time?
Does charging a fee for private use of public property destroy its tax-exempt status?
Does the one-year tort statute of limitations always apply against governmental bodies?
Do fire protection district codes supercede municipal codes?
Are Courts Especially Hard On Governmental Bodies?
What Are the New Rules About Recording Closed Meetings?
What Does a Municipality Need to Know About Extending
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Are Courts Especially Hard On Governmental Bodies?
How Can You Achieve Flexibilty in
Health Care Coverages in a Collective Bargaining Agreement?
Are political discussions subject to the Open Meetings Act?
What can be done about IMRF Overfunding?
How can a municipality regulate wireless internet service providers?
How can governments counter unionization?
Where can I find an outline of zoning and planning issues?
How are closed session Minutes taken, approved and reviewed?
Will insurance companies and governmental pools cover claims
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Who gets to choose the municipal attorney?
How are the Open Meetings Act and FOIA impacted by municipal
elections?
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