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Ind. high court asked to clarify sex offender ban

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The Indiana Supreme Court is being asked to prevent an Indianapolis suburb from banning sex offenders from public parks in a case that could expand a trend of state court rulings finding constitutional problems with restrictions on sex offenders.

The American Civil Liberties Union of Indiana appealed a state Court of Appeals ruling that upheld Plainfield’s ban last September. So far the high court hasn’t said whether it will hear the case brought by a sex offender listed only as John Doe in court documents.

The case could join a handful of recent Indiana rulings on laws that restrict sex offenders’ activities after they’ve done their time.

Last month, the Supreme Court ruled that a state law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center could not be used to force a sex offender to move from a home where he had lived for 20 years.

In April, the high court overturned a man’s conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state’s Sex Offender Registration Act was passed.

The Supreme Court has also been asked to hear the appeal of the Court of Appeals ruling in June that found Jeffersonville officials unconstitutionally applied a park ban against a man who no longer was required to register as an offender.

Joel Schumm, a professor at the Indiana University School of Law in Indianapolis, said Wednesday that Indiana appears to be more willing to consider such cases than other states where similar bans are generally upheld.

“The court’s shown a willingness to take a hard and thoughtful look at these kinds of cases,” he said.

Schumm said the ACLU of Indiana is simply asking the court to take the “next step” in restricting such ordinances by finding that Plainfield’s ban also violates a state constitutional prohibition on excessive punishment.

Besides arguing that the ordinance retroactively increased the penalty for the plaintiff’s original offense, the ACLU contends that the use of public parks is a constitutionally protected “core value” that all citizens have the right to enjoy unless they forfeit that right by committing a crime in a park.

“I think parks are a special place. I think parks exist for a specific reason, not just recreation, but it’s a place where people are free to go and free to exist without undue government restriction without cause,” said Ken Falk, legal director of the ACLU of Indiana.

Attorney Mel Daniel, who handled the appeal for Plainfield, said officials were just trying to keep parks safe in the Indianapolis suburb of about 28,000 when they passed the ordinance in 2002. The rule bans people listed on the state sex offender registry from the town’s extensive park system.

Daniel said the sex offender ban was among several restrictions included in the ordinance, including prohibitions on weapons and alcohol. Registered sex offenders who visit the parks are subject to fines of $100 to $200.

“They have really taken safety in those parks seriously,” Daniel said.

Supporters of similar bans argue the ordinances are needed to protect children because sex offenders have a high risk of repeat offenses. Opponents like the ACLU argue that the bans often unconstitutionally continue to punish individuals who already have served prison sentences and probation.

The plaintiff in the ACLU case was convicted in 2001 for child exploitation and possession of child pornography. He was released from probation in August 2004. He was visiting the Splash Island water park with his young son in June 2005, when police warned him not to return because he was listed on the sex offender registry.

“Our view is you can go anywhere you want to go, just not the park,” Daniel said.

Falk countered: “There are lots of public places. Do we ban people from sidewalks? Do we ban people from public buildings?”

The Supreme Court’s decision in the case could affect other Indiana communities. Officials in Lebanon, about 25 miles northwest of Indianapolis, is contemplating its own park ban, and the ACLU has put its lawsuit on hold against the Indianapolis suburb of Greenwood, which bans people convicted of certain sex-related and drug-related offenses from its parks.

More litigation will likely ensue until the high court clarifies the law, and it should “settle the law so that every community in Indiana will understand that the law is settled,” the ACLU said in court documents.

The Plainfield case has been awaiting transfer to the high court for nine months, which is unusually long, said Schumm, the university professor. That might indicate the court is preparing an opinion or having trouble agreeing on what to do, he said.

If the Supreme Court doesn’t hear the case, the Court of Appeals ruling upholding Plainfield’s ordinance stands. If it does hear the case, the Supreme Court could reverse, uphold or modify the decision.

© 2009 Associated Press. Displayed by permission. All rights reserved.

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