Tuesday, September 05, 2006

7th Circuit Upholds Michigan City Park Ban For Sex Offender

Robert Brown liked to go to Michigan City's Washington Park daily in his RV and people watch. But throw in the binoculars, a camera and conviction for child molestation, and his presence was more than local police wanted to leave to chance. He was banned from the park and, adding further insult to injury, the park district adopted a resolution formally banning him and certain other sex offenders from the park with convictions for offenses against children. Brown sued the park district for violating his substantive and procedural due process rights under the U.S. Constiution. After he filed his suit, the original resolution was rescinded and replaced with another resolution which banned only Brown based upon his conviction for child molesting and his observed behavior deemed to be a threat to children. In Brown v. City of Michigan City, a 7th Circuit panel ruled that neither Brown's procedural nor his substantive due process rights were violated by the city park's actions.

Brown was initially told in writing that he was banned from the park, then the city's park board invited him to attend a board meeting at which it was going to consider a resolution permanently banning him from the park. Brown passed on the opportunity to attend the hearing because park district officials wouldn't assure him in writing that he wouldn't be arrested if he attended the meeting at the park board's office within the park. He also didn't attend the second hearing at which the original resolution was rescinded and the second adopted because he did not get notice of the hearing.

The 7th Circuit found that the deprival of Brown's free park pass did not deprive him of a protectable property interest. The court also rejected an argument Brown made that he had a protectable liberty interest in his reputation which he was deprived when city officials labeled him a present threat to children. While the court conceded that Brown was likely defamed by the city's actions, it found that he failed to show that his legal status or reputation had been altered. The right to enter a public park, the court reasoned, was not "a right or status previously recognized by state law."

On Brown's substantive due process claim, the court relied on a 2003 ruling it made involving a Lafayatte, Indiana man who was banned from that city's parks. No fundamental right is implicated by a person's right to enter a public park according to the court; therefore, the court applied a rational basis test to determine the constitutionality of the ban. On that point, the court found that the city's interest in protecting children is "not merely legitimate, but compelling." Brown insisted, however, that unlike the Lafayette case where the plaintiff was observed to be engaged in behavior "threatening and dangerous to children", his actions were benign. The court disagreed, describing Brown's actions as follows:

In this case, Michigan City park personnel received reports that Mr. Brown had been sitting in his van, watching beach patrons through binoculars; he came to Washington Park once or twice daily; he previously had been seen at a nearby beach watching a family; and he has a criminal record for molesting a child. Of course, there are significant differences between Mr. Brown and the plaintiff in Doe; for example, there is no evidence that Mr. Brown was “[l]ooking for children” or “having . . . urges” while watching children at the park. Nor can we conclude on the basis of the record before us, as we did in Doe, that Mr. Brown necessarily is heading down a
“slippery slope into abuse.” Nevertheless, the reality is that “children, some of the most vulnerable members of society, are susceptible to abuse in parks,” and that the
City has a duty to shield them, ex ante, from the mere risk of child abuse or molestation. The ban of Mr. Brown from the City’s parks bears a rational relationship to its goal of protecting the children of its community. As a practical matter of ensuring public safety, Mr. Brown is not just another patron of the public parks. He is a convicted child molester whose frequency of attendance and atypical behavior while in the park justified the concern of those public officials charged with ensuring the safety of members of the public who visit the recreational site.

Brown argued that the city's actions were irrational because it only chose to ban him and not other convicted child molesters from the park. Rejecting this argument, the court said, "But the City’s means need not be 'narrowly tailored' to its goals; rather, they need only be 'reasonably related to [those] goal[s].'" There was nothing in the record indicating that police had observed other child molesters in the park as they had observed Brown the court noted.

It is too soon to read too much into this new decision, particularly as to how it will impact Indianapolis' recently adopted ban subjecting certain sex offenders deemed a danger to children to fines if they enter the city's public parks and other places frequented by children. Michigan City only banned Brown from the park based upon the observations of police and other park personnel; it did not ban all sex offenders who were convicted of certain crimes as Indianapolis' ordinance does. The Indiana Civil Liberties Union initiated Brown's challenge to the ban. The group has launched a similar challenge to Indianapolis' recently adopted ordinance.

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