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Judge Rules Against San Diego Sex Offender Ordinance

The Federal Justice Center in downtown San Diego in this undated photo.

Photo by Alexander Nguyen

Above: The Federal Justice Center in downtown San Diego in this undated photo.

A federal judge ruled Wednesday a San Diego ordinance restricting where registered sex offenders can live violates state law.

U.S. District Judge Cynthia Bashant found the ordinance, one of the most restrictive of its kind in California, is preempted by state law and that the city has no authority to restrict the residency of sex offenders who are no longer on parole.

"San Diego's ordinance, which provides residency restrictions on more people than only sex offenders on parole, enters a field fully occupied by state law and exceeds the scope of what is permitted by state law," Bashant wrote.

The city passed the Child Protection Act in 2008 but has not enforced it since 2009 because of concerns that it violates sex offenders' constitutional rights.

The ordinance prohibits sex offenders from living within 2,000 feet of a "minor-oriented facility" such as a school, park or arcade. It applies to all people on the state's sex offender registry, regardless of whether they were ever convicted of a crime involving a child, regardless of their crime's severity and regardless of when it occurred.

RELATED: San Diego Sex Offender Residency Law Faces Uphill Legal Battle

Critically, it also applies to sex offenders who are no longer on parole. A state law passed by voters in 2006, Jessica's Law, allows local governments to control where sex offenders can live. However, courts have since ruled that local authority applies only to parolees.

Janice Bellucci, the attorney representing the two anonymous sex offender plaintiffs, said the judge's decision effectively voids the city ordinance.

"It's a significant victory for people on the registry who do not pose a current danger to anyone," she said. "I believe it's a final decision and that there's nothing else for the parties to argue about. However, it's possible the city has a slightly different opinion."

Meanwhile, Chris Morris, the private attorney representing the city in the case, said the judge's decision allows the city to enforce the Child Protection Act against sex offenders on parole. He said he would seek to present the City Council with its options in a future closed session.

Bashant did not rule on the plaintiff's second claim in the lawsuit — that the Child Protection Act violates their rights under the U.S. Constitution's equal protection and due process clauses.

RELATED: Councilman Wants To Rewrite San Diego Sex Offender Law

Bellucci filed the lawsuit in August 2017 after the City Council voted 5-4 against repealing the ordinance. They did so against the advice of City Attorney Mara Elliott, who warned council members that the ordinance would likely not survive a court challenge.

Elliott said in a statement Wednesday that the ruling "comes as no surprise."

"We advised the City Council that the city had not enforced its ordinance for a decade because the California Supreme Court found a nearly identical ordinance unconstitutional," Elliott said. "Five members ignored our advice and the council hired an outside lawyer. As a result, taxpayers are now on the hook for what will likely be hundreds of thousands of dollars."

Elliott's advice was based in part on a 2015 California Supreme Court ruling that blanket restrictions on where all sex offenders can live are unconstitutional. The court cited evidence that such laws increase the rate of homelessness among sex offenders, preventing them from accessing social services and making it more difficult for law enforcement to track them.

RELATED: Which City Council Member Changed Their Vote On Sex Offender Law?

"No one is served, no one is supported, by a registrant being homeless and having no place to live, which is the unfortunate result of the San Diego ordinance," said Bellucci, who is also the executive director of the nonprofit Alliance for Constitutional Sex Offense Laws. Bellucci said she would be seeking reimbursement from the city for attorneys fees, but that she did not have an estimate of how much that would be.

Earlier this month the council voted to increase the maximum value of Morris' contract from $50,000 to $150,000.

Only council members Chris Cate and Mark Kersey voted against increasing the value of the contract. Kersey said in a statement: "I continue to oppose spending taxpayer money on this lawsuit. As both a father and a champion of public safety, I fully support the intent of the (Child Protection Act) — but the Supreme Court has spoken."

Cate did not respond to a request for comment explaining his vote against increasing the value of the contract. Cate was one of the five council members who voted in 2017 to uphold the Child Protection Act.

Listen to this story by Andrew Bowen.

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