On April 17, 2017, the United States District Court for the Eastern District of Wisconsin struck down an ordinance restricting the residency of convicted sex offenders in the Village of Pleasant Prairie (the “Village”). In Hoffman v. Village of Pleasant Prairie, No. 16-CV-697-JPS, 2017 WL 1380560 (E.D. Wis. Apr. 17, 2017), a group of convicted child sex offenders (“Plaintiffs”) challenged a Village ordinance (passed on April 18, 2016) regulating residency for sex offenders within its borders (the “Ordinance”). The federal Court granted summary judgment in favor of the Plaintiffs holding that the ordinance violated the Ex Post Facto Clause of the United States Constitution and violated Plaintiffs’ constitutional right to equal protection.
Among other things, the Ordinance prohibited sex offenders from residing in the Village within 3,000 feet of a “prohibited location,” which included any school, licensed day-care center, park, trail, playground, place of worship, athletic field used by minors, or any other placed designated by the Village as a place where minors were known to congregate, and prevented sex offenders from moving into the Village unless they already lived in the Village at the time of their most recent offense.
Practically speaking, under the Ordinance, more than 90% of the Village would be off-limits to sex offenders and the remaining 10% was largely non-residential. The majority of the Plaintiffs were told that, in light of the Ordinance, they would have to leave the Village.
The Court held as a matter of law that the Ordinance was an illegal Ex Post Facto law and that it violated the Equal Protection Clause of the Constitution.
Ex Post Facto Clause
First, the Court held that the Ordinance violated the Ex Post Facto Clause of the Constitution. The Ex Post Facto Clause prohibits retroactive punishment by the government. Since the Ordinance’s stated purpose was not to impose a criminal penalty, but instead to protect the health and welfare of the Village’s citizens, the Court undertook to determine whether the Ordinance was so punitive either in purpose or effect as to negate the Village’s intention to deem the Ordinance civil and not criminal.
The Court held that the Ordinance was in fact criminal punishment rather than a civil ordinance because: (1) the Ordinance banished Plaintiffs from the Village, and banishment is a traditional form of punishment; (2) the Ordinance imposed severe restraints on sex offenders, limiting their residence to 10% of the Village’s land area—an area that was largely non-residential; (3) the Ordinance advanced the traditional punishment aims of incapacitation, retribution, and deterrence; and (4) the Ordinance banned sex offenders from the Village without any individualized inquiry into their risk to the community.
The Court held that the Plaintiffs provided sufficient proof that the Ordinance’s stated non-punitive purpose was overborne by its punitive effects. As a criminal punishment that clearly applied retroactively, the Ordinance violated the Ex Post Facto Clause.
Equal Protection Clause
The Fourteenth Amendment’s Equal Protection Clause commands that no state shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. Courts apply a “rational review” to laws that do not infringe on a protected class (such as race or gender) or a fundamental right (such as the right to vote). In this case, the Court did not address whether a higher level of review should be applied, because it found that the Ordinance failed under rational review. The Court explained that, to prove an equal protection claim under rational review, the Plaintiffs needed to show: (1) The Village intentionally treated them differently from others similarly situated; (2) the Village intentionally treated them differently because of their membership in the class to which they belonged; and (3) the difference in treatment was not rationally related to a legitimate governmental interest.
The Plaintiffs argued that the Ordinance violated their equal protection rights because it treated certain sex offenders differently from others (such as where they lived at the time of their last offense) without reason and the Village presented no evidence to support its rationale for the Ordinance. The Court agreed and held that that the Ordinance violated Plaintiffs’ equal protection rights in making an irrational, domicile-based distinction between sex offenders, and that the “bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Sex offender residency restriction ordinances are common in Wisconsin and throughout the country. Restricting where sex offenders can live within a community is generally considered a legitimate way to promote the public health, safety, and welfare. Hoffman, however, serves as a warning for how far these ordinances can restrict the residency of these individuals. Hoffman does not say that these ordinances are always unconstitutional. In fact, the Court provides somewhat of a blue print for local municipalities to withstand challenges to their ordinances, even those as stringent as the Village’s.
Specifically, the Court emphasized the Village’s total lack of empirical data to support its Ordinance. The Court stated that, when enacting the Ordinance, the Village did not obtain or consider any studies or data regarding the safety risk of allowing sex offenders to live near the various “prohibited locations” or near one another, and also had no evidence that sex offenders who lived outside the Village at the time of their last offense posed a greater safety risk than those who were living within the Village when they last committed an offense.
In ruling on the Ex Post Facto portion of the case, the Court noted that the Village had admitted that the Ordinance was based on its own conjecture about the dangers posed by sex offenders since no data or studies on the matter were considered in passing the Ordinance. Furthermore, the Court said that the Village could have sought objective evidence to support the Ordinance’s restrictions, but chose not to; if the Village had even a sliver of factual material to support the stated goals of the Ordinance, the outcome on this claim would likely have been different.
With regards to the equal protection claim, the Court based its decision on the fact that the Village admitted that it had no evidence that the difference between the sex offender groups—where they lived at the time of their last offense—had any bearing on their safety risk to the community. Similar to the Ex Post Facto claim, the Court cited this lack of evidence as the Ordinance’s downfall under equal protection, stating that the Court would likely be compelled to find the Ordinance constitutional if the Village had offered any evidence providing a rational justification.
Therefore, in drafting ordinances seeking to restrict where sex offenders may live, municipal officials must be cognizant that some type of evidence is necessary to justify the restrictions. Empirical studies or data concerning the location of the commission of sex crimes, or the residency of the perpetrators, could be helpful in crafting an effective justification for the imposition of residency restrictions. Based on the language used by the Court, it appears that the level or sophistication of the data or studies does not need to be high. The references to a “sliver of factual material” and “any evidence providing a rational justification” suggest that perhaps even anecdotal evidence from local administrators or law enforcement personnel would be sufficient to provide that rational reason for the residency restriction. Relying solely on the political unpopularity of the group is unwise and there must be some empirical data to support not only the decision to restrict sex offenders, but the method chosen to accomplish this.
Additionally, in reviewing a proposed ordinance, the percentage of land restricted, including the availability of residential and low-income housing, must be considered since a court could find that a restriction is, in practical effect, a ban. Also, making an ordinance forward looking rather than retroactive can help avoid an Ex Post Facto Clause challenge in the future. Local legislators should also be mindful that the record of their discussions (such as meeting minutes) on a proposed ordinance may help or hurt if the ordinance is later challenged.
It is also important to remember that, in these types of cases, federal law allows for the awarding of attorney fees to a prevailing plaintiff in civil rights litigation so that the community faces additional exposure if an ordinance is deemed unconstitutional by a court.
Finally, note that amending an ordinance after a lawsuit is filed is not an effective way to mitigate risk. In Hoffman, even though the Village later amended the Ordinance, the Court still found the Village liable for damages under the original Ordinance. Waiting to amend a questionable ordinance until after it is challenged is not an effective course of action.
When considering whether to create an ordinance restricting the residency of sex offenders, municipalities should carefully consider the decision in Hoffman and use it as a guidepost in determining what the reach of the restrictions should be and how to protect the ordinance from future legal challenges.
If you have any questions regarding this article, please contact an attorney at Mallery & Zimmerman.