By John Earl
Surf City Voice

On May 16 the City Council directed City Attorney Jennifer McGrath to craft an ordinance that will limit the presence in city parks and beaches of convicted sex offenders who have been released from prison.

The intended ordinance, introduced on behalf of the Orange County District Attorney by Councilmembers Matt Harper and Mayor Joe Carchio, models after a recently passed county law that bans all sex offenders from using county parks and beaches without written permission from the Orange County Sheriff’s Department and offers jail time and a $500 fine for violators.

During public comments, Deputy District Attorney Brian Fitzpatrick assured that “This will go a long way to protecting children in parks” and that it was consistent with the state’s ongoing trend to increase restrictions on the movement of sex offenders who have served their time.

“We noticed that there was a hole in the law protecting our children and that was with respect to our parks,” he said.

“Just because somebody hasn’t molested a child in the past, doesn’t mean that he won’t do it in the future as a registered sex offender,” Fitzpatrick warned, lumping all sex offenders into one category while arguably implying that the presumption of innocence—which extends from the 5th, 6th and 14th Amendments to the U.S. Constitution—is an obstacle to justice.

“Constitutionally, we have researched this [ordinance] and we have found that it would pass Constitutional muster,” Fitzpatrick said, trying to head off arguments that that the ordinance would lead to lawsuits as similar laws have in other locations. “It’s narrowly protected to tailoring places where children regularly gather.”

But neither Fitzpatrick nor his proxies Harper and Carchio mentioned what criteria would determine which offenders, if any, will receive permission to visit parks or how non-compliant offenders would be monitored. Nor did they say how much it would cost the city to maintain the program or upon what research, if any, it had been determined that it would produce any overall benefit.

Contrary to Fitzpatrick’s contention that the law passes Constitutional muster, Los Angeles Superior Court Judge Peter Espinoza ruled last November in a lawsuit brought by four registered sex offenders that the portion of Jessica’s Law that restricts released sex offenders to live more than 2,000 feet of parks and schools is unconstitutional. Enforcement of that portion of the law has been suspended by the state’s Department of Corrections.

According to the Los Angeles Times, the judge also noted LA Chief of Police Charlie Beck’s finding that the living proximity of sex offenders to schools does not determine the likelihood that a sexual offense will take place and that Jessica’s Law has forced sex offenders into the streets in droves.

That “sharp rise in homelessness rates in sex offenders on active parole in Los Angeles County actually undermines public safety,” Espinoza wrote in his 10-page legal opinion, according to the Times.

Other lawsuits have popped up around the country to challenge laws that restrict released sex offenders. Legal issues include violation of the ex post facto prohibitions in Article 1, Sections 9 and 10 of the U.S. Constitution (that a person can’t be punished twice for the same crime), First Amendment rights, and the right to public access.

Outside of the courts, cost is another issue. McGrath estimated that it would cost the city about $250,000 to defend against a lawsuit in its lower court stages, not to mention taking it all the way to the State or U.S. Supreme Court.

Critical Analysis
Predictably, Carchio and Harper were short on critical analysis and not about to challenge the Republican DA’s game plan, which offers them political capital and public image enhancement in return for their enthusiastic compliance.

True to form, Carchio took that opportunity to the limit. In a blustering speech, he referenced the brutal sex-related kidnapping and murders of five-year-old Samantha Runnion in 2002 by Alejandro Avila and 12-year-old Huntington Beach resident Robin Samsoe 23 years ago by serial-killerRodney James Alcala, then promised that “I will not sit idly by, not in this city—and not at the expense of our kids and their families.”

A bit later he reached a crescendo, declaring that “I don’t want sex offenders to think that they have the run of the city. Not in Huntington Beach. Not when I’m mayor.”

Attempting a more logical approach, Harper warned that if the city didn’t pass the proposed ordinance sex offenders, who are banned now from going to Harriet Weider Regional Park located on county land, could visit Harriet Weider City Park nearby.

“Why should it be that sex offenders are allowed in one of those parks and not the other,” Harper asked. Huntington Beach should follow suit with the county and “take steps to protect children and families,” he argued.

But neither Harper nor Carchio gave any indication how their proposed ordinance would give added protection to children and their families or why it wouldn’t make problems worse considering the known history of similar laws. Boardman, however, asked Chief of Police Ken Small for the statistics on sex offenses in city parks and what he thought of the DA’s ordinance.

There were 141 reported alleged sex crimes in the entire city in 2010, according to Small, and only six of those incidents were alleged to have taken place in city parks or beaches. Not all of the six were prosecuted and all of those reports were made by private persons, he said.

“The problem is, there is such a strong emotional appeal to this type of legislation that it’s hard to speak against it without looking or sounding stupid,” Small explained, adding that “this legislation paints a very broad brush in terms of what it prohibits.”

Illustrating the potential scope of the ordinance, Small pointed out that “Members of the council have been contacted by parents who had offenses decades ago [and] who are now raising children, who would be prohibited from going to the park.”

Small also has concerns about how the ordinance would apply to city libraries and to employees who work in the city’s parks.

Small suggested adopting an ordinance like the city of Tustin did that prohibits sex offenders from loitering (being without purpose) in the parks instead of strictly following the DA’s plan.

“That’s an ordinance that would accomplish very much the same thing without the broad prohibition that the Orange County ordinance does,” he said.

That idea set well with Councilmembers Boardman, Joe Shaw and Keith Bohr. The loitering version would allow parents who are former offenders but now law abiding citizens to go to the city’s parks, beaches and libraries with their kids “because they are there with a purpose,” Boardman said. “But it would prevent sex offenders from just loitering.”

But loitering laws have also been successfully challenged in court on Constitutional grounds because they didn’t specify what types of behaviors loitering entails. Specific behaviors that might be targeted in the city’s ordinance were not discussed by the council.

Harper, with Carchio tagging along, neither acknowledged the legal issues riding with their joint proposal nor considered the Chief’s concerns. He conceded only that the ordinance could be tailored to Huntington Beach because “there are some cases in which our facilities are a little bit different than those offered by the county.”

Without explaining the relevance of those supposed differences, Harper moved as originally planned to ask the city attorney to “draft an ordinance prohibiting registered sex offenders from entering city parks and beaches similar to that adopted by the Orange County Board of Supervisors.”

The motion passed 7 – 0.

Shawn Roselius also contributed to this story.