Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations
KPBS Midday Edition

San Diego Sex Offender Residency Law Faces Uphill Legal Battle

San Diego City Attorney Mara Elliott sits at the dais, Dec. 12, 2016.
Milan Kovacevic
San Diego City Attorney Mara Elliott sits at the dais, Dec. 12, 2016.
San Diego Sex Offender Residency Law Faces Uphill Legal Battle
San Diego Sex Offender Residency Law Faces Uphill Legal Battle GUEST:Andrew Bowen, metro reporter, KPBS News

This is KPBS Midday Edition. I am KPBS Midday Edition. City council were warned that a vote might result in a lawsuit and that prediction has turned out to be true. A federal lawsuit has been filed against San Diego over laws that restrict where sex offenders can live. The child protection act has not been enforced since 2009. Maria Elliott informed failure to appeal the restrictions could put them in danger of a Supreme Court ruling but they reap failed to repeal and now the lawsuit is filed on behalf of of two sex offenders who live in San Diego. Joining me is Andrew Bowen. Welcome.Thank you.Talk about the child protection act. How restrictive is it when it comes to where sex offenders can live withIt was passed by the city Council in 2008. It prohibits registered sex offenders, regardless of circumstances from living within 2000 feet of schools, parks, daycare centers, arcades and other minor oriented places. There were questions after the passage other -- whether it was constitutional. It has not been enforced since 2009. This ordinance on the books is doing nothing to protect children.Why does this law conflict with a court ruling ?The state Supreme Court of California a case that challenged a similar law that was passed by the county Board of Supervisors. It applied to unincorporated areas. The court ruled in 2015 that blanket restrictions on sex offenders when applied regardless of circumstances violates the Constitution. It found that the restrictions that made it impossible for sex offenders to find housing and they were forced to live on the street and it could not access medical care or social services or treatment for whatever issues or addictions they may have. The most pernicious thing was that by forcing sex offenders and homelessness, it it made it more difficult for law enforcement to keep track of them. It may have been enacted with good intentions but it did nothing to protect children and it may have done the opposite by forcing sex offenders underground.Elliott advised the Council to repeal the current residency restrictions. Was there much discussion about this ?The Council heard this enclosed session a while ago. The public meeting last week, there was very little discussion. Of them members that voted against repealing, forgave no retreat -- no reason. Here's what Lauren said.I do not have a lot of sympathy in regard to sex offenders. I do not like them living in our communities and they are subjected to strict areas where they can live, is okay with me. You know, I know people can be rehabilitated but time and again study showed that sex offenders are usually not in that category.I do not know what peer-reviewed research she is read on sex offenders but in fact, the state board that manages the sex offender registry they have quite a bit of data on recidivism and risk factors. It has found that one third of the sex offenders on the registry are considered high risk. Two thirds are considered moderate to low for recidivism. We know that the longer a sex offender goes without reoffending, the less likely they are to reoffend. Because California law requires lifetime registration of all sex offenders, some remain on the registry for crimes they committed 30 years ago. The data suggest that they are at a low risk for reoffending. Contrary to what she says come you cannot paint all sex offenders with the same pressure.It sounds like she voted not to repeal the law. Who else voted not to repeal the law ?Chris Ward Emma Gomez and David Alvarez.Any reasons given ?I got some statements saying that they will always vote in favor of protecting children. It is not their job to make things is ears were predators. You know, none of them acknowledged what the we established early on in our conversation which it is not being enforced and it it does not protect children.Did they say why she did not want to see the city have to defend the law ?She told the Council that the police department is empowered by existing laws to protect children from predators in different ways, through Parole, existing restrictions placed on sex offenders on where they can and cannot go through various monitoring and check-in requirements and none of this was explained last week in the meeting. The police were in the Council chamber to explain this to the members, not a member invited the police up to speakNow we have a federal lawsuit that is filed because of the restrictive laws. How much might it cost the city to battle this lawsuit ?I figured of hundreds of thousands of dollars from councilmember Sherman. He voted to repeal the law. It is not wise to keep it on the books when it is not enforced.The cost depends on how long the Council members hold out. They could refuse to repeal the law and they could refuse to settle with the attorney who filed the lawsuit if this case goes to court and the city loses which it probably will, it will have to pay the fees and expenses. This could cost quite a bit of money for San Diego.I am speaking with Andrew Bowen. Thank you.Thank you.

San Diego Sex Offender Residency Law Faces Uphill Legal Battle
A lawsuit has been filed over a San Diego law restricting where registered sex offenders can live. Courts have found similar laws unconstitutional — and counterproductive to their goal of protecting children.

An attorney filed a lawsuit in federal court on Monday challenging a San Diego law that restricts where registered sex offenders can live. The City Attorney's Office may now face the difficult task of fighting a legal battle it is not confident it can win.

San Diego's "Child Protection Act," passed by the City Council in 2008, bars registered sex offenders from living within 2,000 feet of minor-oriented facilities, including arcades, schools, parks and libraries. The law has not been enforced since 2009 because of concerns over its legality.

The state Supreme Court ruled in 2015 that a similar law covering unincorporated San Diego County was unconstitutional. It found the residency restrictions increased the rate of homelessness among sex offenders, preventing them from accessing help and — counterproductively — making it more difficult for law enforcement to keep track of them.

City Attorney Mara Elliott last week urged council members to repeal the ordinance, warning them of a potentially unwinnable legal battle over an unenforceable law that is giving people "false hope."

"My concern, of course, as your city attorney is fighting lawsuits like this that we are not convinced that we could win, and ensuring that we're using the very limited resources within my office to protect San Diegans in a way that means something," Elliott told the council at its Aug. 1 meeting.

She added that the San Diego Police Department has tools outside of the ordinance to protect children from sexual abuse. She said the police department was there to explain further, but no council member invited the police department's representative to speak.

The vote to repeal the ordinance initially failed on a 4-4 split, with council members Chris Ward, Chris Cate, David Alvarez and Georgette Gomez voting against the repeal. Councilwoman Lorie Zapf was initially absent. Ward then moved to reconsider the item after Zapf arrived at the meeting, but he did not change his vote. The second vote failed 5-4, with Zapf joining those opposing the repeal.

A spokesman for Ward said he was traveling and unavailable to explain his vote. Gomez was also not immediately available for comment. Neither explained their votes during last week's meeting.

Alvarez's office sent a statement saying: "I will always vote in support of protecting children." Zapf's office sent a statement saying: "It is my job to protect San Diego's children, not to make it easier for convicted sex predators to live next door." Cate's office sent a statement saying: "I will not support a proposal that will put the safety of children and families in our neighborhoods in danger."

None of the council members acknowledged in their statements that the law they voted to uphold is not being enforced.

Sex Offender Lawsuit
A lawsuit filed on behalf of two registered sex offenders in San Diego challenges a city ordinance restricting where they can live.
To view PDF files, download Acrobat Reader.

The lawsuit was filed Monday by Janice Bellucci, the executive director of the Alliance for Constitutional Sex Offense Laws. Bellucci said of the 25 other lawsuits she has filed against cities with similar residency restrictions, none had gone to trial and most have been resolved with the cities repealing their ordinances.

"Perhaps this has gotten the attention of the other City Council members, and there is in fact somebody who would be willing to vote in support" of repealing the law, she said. "This is a case that could be settled outside of court, and we're certainly open to that possibility."

Bellucci added that some crimes that can land people on sex offender registries are "ridiculous," pointing to cases of teenagers being charged with distributing child pornography because they sent nude selfies to their significant others.

If Bellucci's suit against San Diego goes to trial and the city loses, taxpayers will likely have to pay her attorney fees and expenses.

California is one of only four states that requires all sex offenders to remain on the registry for their entire lives. The state board tasked with managing the registry has said it is overburdened with keeping track of thousands of offenders with a low risk of recidivism.

A bill in the state legislature would create a tiered system allowing such low-risk offenders to be removed from the registry after 10 or 20 years. Offenders with a high risk of recidivism would remain on the registry for life.